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15 Cal.App.3d 845 (1971) 93 Cal. Rptr. 560 THE PEOPLE, Plaintiff and Appellant, v. JOSE MEDINA, JR., Defendant and Respondent. Docket No. 18634. Court of Appeals of California, Second District, Division Two. March 5, 1971. *847 COUNSEL Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger and Joseph P. Busch, Jr., District Attorneys, Harry Wood and Harry B. Sondheim, Deputy District Attorneys, for Plaintiff and Appellant. Richard S. Buckley, Public Defender, James L. McCormick, Dale C. Frailey and Dennis A. Fischer, Deputy Public Defenders, for Defendant and Respondent. OPINION FLEMING, J. Appeal by the People from the dismissal of an information. On 9 March 1970 Jose Medina, Jr., was arrested on a public street in Azusa. At the time of his arrest he was staggering and swaying, he spoke with slurred speech, his eyes were watery, bloodshot, and glassy, and he was unable to pass a sobriety test. His breath did not smell of alcohol, and a post-arrest search disclosed dangerous drugs on his person. Medina was charged with a violation of Penal Code section 647, subdivision (f), being in a public place under the influence of liquor or drugs, and with two violations of Health and Safety Code section 11910, possession of dangerous drugs. Section 647 provides: "Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: ... (f) Who is found in any public place under the influence of intoxicating liquor, [or] any drug ... or any combination ... in such a condition that he is unable to exercise care for his own safety or the safety of others...." In 1969 while the Legislature was adopting multiple amendments to section 647, it inadvertently failed to re-enact the section's introductory declaration: "Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor." On 23 March 1970 the introductory declaration was restored to the section by emergency legislation. The issue at bench is whether during the interim period section 647 stated a public offense for violation of which a person could be criminally prosecuted. The court below concluded it did not, and thereafter it suppressed the evidence of dangerous drugs and dismissed the information. (1a) We have concluded that the order of the trial court was erroneous. 1. Regardless of the validity of section 647, the evidence relating to *848 possession of dangerous drugs should not have been suppressed. (2) The purpose of the exclusionary rule of evidence is to require the police to comply with constitutional prohibitions against unreasonable searches and seizures. (People v. Cahan, 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513].) (1b) In this case the police officer acted reasonably in arresting Medina as he staggered, glassy-eyed on a public street. Prior to the 1969 amendment public drunkenness had always been a crime in California, and even under the defective text of the amendment it remained the officer's responsibility to protect society from a person who is "in such a condition that he is unable to exercise care for his own safety or the safety of others." We could not expect a police officer to be aware of something the Legislature itself had been unaware, viz., that there had been a temporary inadvertent deletion of the introductory declaration to section 647, nor, even if the officer had been aware of the deletion, could we require him to draw the correct legal conclusion as to its effect, a subject on which judges themselves, as this cause illustrates, have differing opinions. The arrest, therefore, was proper, and since Medina's breath did not smell of alcohol, it was reasonable for the arresting officers to make a cursory search of Medina's person for drugs. Since both arrest and search were valid, the suppression of the evidence of dangerous drugs was erroneous. 2. (3) Did section 647 state a valid offense on 9 March 1970 at a time when, as both parties conceded, the introductory declaration in the section had been inadvertently omitted? Yes. Medina argues that the canons of statutory construction do not permit courts to add to a statute the text of language which has been unintentionally omitted from the statute; he further argues that even if the canons could be interpreted to permit such an addition, his prosecution for a crime of which he had no notice would deny him due process of law. The argument on statutory construction is not sound. If the intent of the Legislature is clearly ascertainable, words inadvertently omitted from a statute may be supplied in the process of construction in order to effectuate the legislative intent. (People v. Pallares, 112 Cal. App.2d Supp. 895, 900 [246 P.2d 173].) Directly in point is People v. Williams, 124 Cal. App.2d 32, 35-37 [268 P.2d 156], where, as here, the Legislature was considering two proposed amendments to the same statute. Both amendments were adopted, but the amendment last in time inadvertently did not include the changes made by the amendment first in time. Under traditional canons of construction the second amendment would have voided changes made in the statute by the first. Nevertheless, the court concluded that the intent of the Legislature was so clearly apparent that the court would read the changes in the first amendment into the second amendment in order to *849 effectuate the legislative intent. So here — the omission was inadvertent, and the intent of the Legislature was clear. By construction we may supply the missing language. (Cf. Pen. Code, §§ 4, 5, 177, 960, 1258; Cal.Const., art. IV, § 9, art. VI, § 13.) Medina relies on People v. Crutcher, 262 Cal. App.2d 750, 755 [68 Cal. Rptr. 904], a case involving a criminal prosecution for violation of those Election Code sections which restrict endorsement claims in political literature circulated during primary election campaigns. The court found the prohibition of those sections not penal, because, "Had this been the intent of the Legislature (to make penal that which is specifically enjoinable), certainly it would have done so, and it is not for us to so judicially legislate." Here, unlike Crutcher, the legislative intent to punish the prohibited conduct by penal sanction is manifest, and no uncertainty of legislative intent exists. (4) As to the argument on due process, if we assume that between 10 November 1969 and 9 March 1970 Medina checked the latest supplement to the Penal Code and discovered that the Legislature had deleted the introductory declaration to section 647, we believe he would have still received adequate notice of the nature of the offense with which he was later charged. Section 647 is found in part I of the Penal Code, entitled "Of Crimes and Punishments," title 15, entitled "Miscellaneous Crimes," chapter 2, entitled "Of Other Miscellaneous Crimes," and it carries the caption "Disorderly Conduct." The section lists nine acts, among them soliciting, loitering, accosting, and prowling. Other parts of the statute discuss pleadings, trial, conviction, sentence, probation, imprisonment in the county jail, and parole. A reader would have had no difficulty in determining that the Legislature intended to prohibit and punish as misdemeanors those acts listed in section 647. In sharp contrast is Keeler v. Superior Court, 2 Cal.3d 619 [87 Cal. Rptr. 481, 470 P.2d 617], a case where the court invalidated an attempt to create a new crime (the killing of an unborn fetus as murder) by enlargement of the terms of the existing murder statute. Finally, we note that this same temporary inadvertent deletion from section 647 formed the basis for a petition for habeas corpus filed with the Supreme Court in In re McCarthy, Crim. 14729. The court denied the petition (June 24, 1970), citing in its minute order People v. Williams, 124 Cal. App.2d 32 [268 P.2d 156], and California Constitution, article IV, section 9. ("A section of a statute may not be amended unless the section is re-enacted as amended.") While denial of a petition for extraordinary relief does not amount to an authoritative interpretation of law, where as in this instance a statute has been attacked *850 as a nullity the denial of the petition logically re-inforces a conclusion that the statute is valid. The order suppressing evidence and dismissing the information is reversed. Roth, P.J., and Herndon, J., concurred. Respondent's petition for a hearing by the Supreme Court was denied April 29, 1971.

277 F.2d 354 Mattie M. EVANS, Appellant,v.UNITED STATES of America, Appellee. No. 15389. United States Court of Appeals District of Columbia Circuit. Argued December 22, 1959. Decided March 31, 1960. Mr. Henry Kaiser, with whom Mr. Stephen Schlossberg, Washington, D. C. (both appointed by this Court), was on the brief for appellant. Mr. Louis M. Kaplan, Asst. U. S. Atty., at the time of oral argument, with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee. Before EDGERTON, BAZELON and FAHY, Circuit Judges. BAZELON, Circuit Judge. 1 Appellant was convicted of second-degree murder. The homicide occurred on the sidewalk of a street in Washington about 5:30 a. m., on May 1, 1955.1 The Government called three disinterested eyewitnesses, none of whom observed all the events surrounding the homicide. When pieced together, however, their testimony showed that appellant was in the company of two other women and a man; that they hailed the deceased, who was walking on the other side of the street, and he joined the group; and that a few moments later, tussling and fighting began in the group, in the course of which appellant inflicted mortal wounds with a knife. There was also strong evidence that the deceased was drunk. The Government advanced no motive for the killing and none appears. Since appellant and the deceased were total strangers and money on his person was undisturbed, there is no basis for imputing a personal or a robbery motive. 2 Appellant took the stand and testified that she killed the deceased in defending herself from a sexual assault. She said that she was returning home alone; that the decedent came up from behind and asked whether she was "out for some sporting"; that when she rebuffed this and other obscenities, he grabbed her, ripping some of her clothing. Appellant admitted that in the course of the ensuing struggle she stabbed the decedent with a knife which she carried for protection. 3 Able counsel appointed by this court urge only one ground for reversal. It is that the trial court erred in rejecting the defendant's proffer of testimony by the deceased's wife that he 4 "was ill mentally, not insane * * a lost soul who wanted to be with people, get along with the rest, and did not know how to do it; that at times, that he would like to drink and at times on drinking and otherwise he would even go to the extent of being psychotic, perhaps, and with her at least she would know — acted belligerent and in a really bellicose type of manner." 5 Appellant's counsel contend that upon a plea of self-defense, evidence of the deceased's "character and belligerency," though unknown to the defendant, is admissible in corroboration of the defendant's testimony that the deceased was the aggressor. They say this is but a logical extension of the rule of Griffin v. United States, 1950, 87 U.S. App.D.C. 172, 174, 183 F.2d 990, 992, that "evidence of uncommunicated threats of the deceased against the defendant is admissible."2 We agree The reasons for our view are well summarized by Professor Wigmore: 6 "When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased's action: [footnote omitted] 7 * * * * * * 8 "[The] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief." I Wigmore, Evidence § 63, at 467, 470-471 (3d ed. 1940). See also 2 id. § 246, at 54. 9 Although the proffer in this case was inartful, we think that, at the very least, it adequately apprised the trial judge that the evidence would show that the deceased was aggressive when drunk. Since it is clear that the deceased was drunk, such testimony was relevant in corroborating appellant's contention that she was attacked. Moreover, the proffer, broadly construed, purported to explain the deceased's general character and reputation. We think that, in the circumstances of this case, almost any evidence showing what kind of man the decedent was would be highly relevant in helping the jury to determine whether appellant's story of a sexual assault was truthful, and would therefore serve the interests of justice. 10 We cannot say that the error in excluding this testimony was harmless. It is true that three disinterested prosecution witnesses testified that appellant was not alone at the time of the incident, and that this adversely affected her credibility. But none of the Government's witnesses could say who instigated the fight.3 Consequently even if the jury believed all that the Government's witnesses said, it still could have found that appellant acted in self-defense if it believed her uncontradicted statement that the deceased was the aggressor. We think the proffered evidence might have led the jury to believe that statement, notwithstanding its apparent doubts as to appellant's credibility on other phases of her testimony. 11 Finally, but equally important, even if it convincingly appeared that the excluded testimony could not induce the jury to acquit, evidence suggesting that he was the aggressor might well have induced the jury to convict appellant for the lesser included offense of manslaughter, instead of second-degree murder. 12 Reversed and remanded. Notes: 1 Following a trial, the District Court entered judgment on January 18, 1956 and sentenced appellant to a prison term of five to twenty years. On January 23, 1956, appellant, through her court-appointed trial counsel, made timely application to the District Court for leave to appeal informa pauperis. This application was denied, and on January 27, 1956, appellant, through the same counsel, renewed her application in this court. (Misc. No. 619). By order dated February 27, 1956, we denied the petition "without prejudice to renewal upon a more adequate showing." The petition was not renewed and on June 14, 1956, we dismissed the appeal for failure to comply with the procedural rules. On April 15, 1959, appellant resubmitted an application to this court for leave to appeal in forma pauperis. She stated that after she filled out her appeal papers she neither saw nor heard from her attorney again. It appears that he resigned from the District of Columbia Bar on June 11, 1959, following his conviction for embezzlement of a client's funds. He was subsequently disbarred from practice before this court. No application for bail was ever made, quite apparently because appellant was without funds or friends. Thus she has been imprisoned for over four years since her conviction for second degree murder, notwithstanding her meritorious appeal. On September 16, 1959, we allowed her to proceed on appeal in forma pauperis, and appointed present counsel to assist her. 2 Marshall v. United States, 1916, 45 App. D.C. 373, 383, recognizes the rule that specific acts of violence as well as the general reputation of the deceased for cruelty and violence are admissible in support of the theory of self-defense. Id. at page 383. Although these traits were known to the accused in that case, the court articulated no such limitation upon their admissibility The rule urged by counsel, which we adopt, has been approved by the Supreme Court, Smith v. United States, 1896, 161 U.S. 85, 16 S.Ct. 483, 40 L.Ed. 626 and by a great many state courts, see, e. g., People v. Cellura, 1939, 288 Mich. 54, 284 N.W. 643, 647; Randolph v. Commonwealth, 1949, 190 Va. 256, 56 S.E. 2d 226, 230; and cases collected in Annotation 64 A.L.R. 1029 (1929); Wigmore, supra; 26 Am.Jur. Homicide §§ 344, 346 (1940). 3 The only eyewitness to the actual encounter testified that he was not paying much attention because he thought all the participants were drunk, and that he could not see too well as the fight occurred across the street behind a row of parked cars. All he saw were three women and two men "all mingling up there together, [and it] looked like they was fighting." 13 FAHY, Circuit Judge (dissenting). 14 The defense offered was the need to kill deceased in resisting a sexual assault. In my view the proffered testimony was too tenuous in corroborative relationship to this particular defense to justify reversal because of rejection of the proffer, especially when all the evidence as to the manner in which the homicide occurred is considered. It follows from this view that I attach no significance to the circumstance that the jury could convict of manslaughter.

603 F.2d 722 Nathaniel Errol SMITH, Appellant,v.UNITED STATES of America, Appellee. No. 79-1117. United States Court of Appeals,Eighth Circuit. Submitted July 25, 1979.Decided Aug. 2, 1979. Nathaniel Errol Smith, pro se. Robert D. Kingsland, U. S. Atty., and Mark A. Helfers, Asst. U. S. Atty., St. Louis, Mo., filing brief, for appellee. Before LAY, BRIGHT and HENLEY, Circuit Judges. PER CURIAM. 1 Nathaniel Errol Smith, proceeding pro se,1 appeals from dismissal of his post-conviction petition brought under 28 U.S.C. § 2255. We review his contentions seriatim. 2 On appeal Smith contends the transfer of jurisdiction over his probation from the Western District of Louisiana to the Eastern District of Missouri was improper because he did not consent to the transfer. The transfer was accomplished pursuant to 18 U.S.C. § 3653. The decision to transfer jurisdiction is within the sound discretion of the transferor court and requires only the concurrence of the transferee court. Id. 3 Smith also asserts his probation was revoked on insufficient grounds. He did not contest revocation on a warrant charging: (1) loss of contact and failure to report; (2) admission to possession of a firearm; and (3) being a fugitive from local police authorities on a homicide charge. These are not merely technical violations; we find no abuse of discretion in the revocation of his probation. 4 Smith further asserts the sentencing court failed to give him credit for "street time." There is no support for this contention. See United States v. Shead, 568 F.2d 678 (10th Cir. 1978); Holder v. United States, 546 F.2d 616 (5th Cir. 1977); Hall v. Bostic, 529 F.2d 990 (4th Cir. 1975), Cert. denied, 425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d 199 (1976).2 5 Accordingly, we affirm the judgment below. 1 After briefs were filed, this court denied appointment of counsel by administrative order, finding Smith failed to raise any arguable claims for relief 2 Two additional claims are not cognizable grounds for relief under 28 U.S.C. § 2255. Smith attacks his conviction, arguing that the court should have informed him before it accepted his guilty plea of the possibility that jurisdiction over his probation could be transferred. Such information is not material to the voluntariness of the plea and is not within the technical requirements of Fed.R.Crim.P. 11. Smith's challenges to the admissibility and sufficiency of evidence in his probation revocation hearing are not cognizable under § 2255. Houser v. United States, 508 F.2d 509, 515-16 (8th Cir. 1974). Reliable hearsay evidence is admissible in probation revocation hearings. United States v. Burkhalter, 588 F.2d 604 (8th Cir. 1978)

Filed Washington State Court of Appeals Division Two August 6, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 51201-7-II Respondent, v. ANTHONY GLEN HOUCK, PUBLISHED OPINION Appellant. CRUSER, J. — Anthony Houck appeals the trial court’s imposition of two community custody conditions and certain legal financial obligations (LFOs) following his convictions for unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver. Houck argues that the trial court abused its discretion when it imposed a condition of community custody that prohibited him from associating with known drug users and sellers and erred by imposing a condition of community custody that prohibited possession or consumption of medical marijuana under the Medical Use of Cannabis Act, ch. 69.51A RCW. Houck also challenges the trial court’s imposition of LFOs and interest provision. We hold that the trial court’s imposition of community custody conditions was proper, but that the $200 criminal filing fee and interest provision must be stricken. We also hold that the State bears the burden of demonstrating that Houck’s deoxyribonucleic acid (DNA) has not previously been collected and remand for the trial court to consider whether the DNA collection fee should be imposed. Accordingly, we affirm in part and remand for further proceedings. No. 51201-7-II FACTS A jury convicted Anthony Houck of unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver. The trial court sentenced Houck to a term of confinement and community custody. The trial court imposed the following relevant community custody conditions: (B) While on community placement or community custody, the defendant shall: . . . (4) not consume controlled substances except pursuant to lawfully issued prescriptions; . . . . .... [x] have no contact with known drug users/sellers except in [treatment] setting. Clerk’s Papers (CP) at 152. As a part of Houck’s sentence, the trial court ordered Houck to pay the $500 crime victim penalty assessment, $200 criminal filing fee, and $100 DNA collection fee. The trial court waived interest on all fees until 90 days following his release from custody. Houck appeals the trial court’s imposition of the aforementioned community custody conditions, the criminal filing fee, the DNA collection fee, and the interest provision. ANALYSIS Ⅰ. COMMUNITY CUSTODY CONDITIONS Houck challenges the community custody conditions prohibiting him from association with known drug users and sellers and prohibiting him from consuming controlled substances except pursuant to lawfully issued prescriptions. Houck argues that the condition prohibiting association with known drug users and sellers is unconstitutionally vague. He further argues that the trial court did not have lawful authority to impose the condition prohibiting him from consuming controlled substances except pursuant to lawfully issued prescriptions because the condition subjects him to 2 No. 51201-7-II criminal sanctions if he possesses or consumes marijuana for medical purposes in violation of the Medical Use of Cannabis Act. We disagree. A. LEGAL PRINCIPLES When a prison term is imposed for a felony drug offense, a sentencing court must impose an additional term of community custody. RCW 9.94A.701(3)(c).1 “Washington sentencing courts are required to impose certain community custody conditions in specified circumstances and may impose others.” State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008); RCW 9.94A.703. RCW 9.94A.703 prescribes community custody conditions that are mandatory, waivable, or discretionary. A court may impose a condition requiring an offender to refrain from direct or indirect contact with a specified class of individuals. RCW 9.94A.703(3)(b). Unless specifically waived by the court, the court must order an offender to refrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions as part of any term of community custody. RCW 9.94A.703(2)(c). B. ASSOCIATION WITH KNOWN DRUG USERS AND SELLERS Houck argues that the community custody condition barring him from associating with known drug users and sellers is unconstitutionally vague. 1 RCW 9.94A.701(3)(c) states that a court shall sentence an offender to community custody for one year when the court sentences the person to the custody of the Department of Corrections (DOC) for a felony offense under ch. 69.50 or 69.52 RCW. Houck’s offenses include two felony offenses under RCW 69.50.401(1) and (2)(b). 3 No. 51201-7-II 1. Standard of Review and Principles of Law The due process vagueness doctrine requires that citizens have fair warning of proscribed behavior. U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3; Bahl, 164 Wn.2d at 752. A community custody condition that does not provide fair warning is unconstitutionally vague. Id. at 753. A community custody condition does not provide fair warning if (1) “it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition” or (2) “it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.” State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). A community custody condition is valid if a person of ordinary intelligence can understand what behavior a condition forbids, given the context in which its terms are used. State v. Hai Minh Nguyen, 191 Wn.2d 671, 679, 425 P.3d 847 (2018). A sufficiently clear condition can survive a vagueness challenge “‘notwithstanding some possible areas of disagreement.’” Bahl, 164 Wn.2d at 754 (quoting Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990)). Additionally, it is not necessary that a condition provide “‘complete certainty the exact point at which his actions would be classified as prohibited conduct.’” Padilla, 190 Wn.2d at 677 (internal quotation marks omitted) (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)). We review a community custody condition for abuse of discretion and will reverse only if the condition is manifestly unreasonable. Sanchez Valencia, 169 Wn.2d at 791-92. A trial court necessarily abuses its discretion by imposing an unconstitutionally vague community custody condition. Padilla, 190 Wn.2d at 677. We do not presume that a community custody condition is constitutional. Sanchez Valencia, 169 Wn.2d at 793. 4 No. 51201-7-II 2. “Known” Drug Users and Sellers Houck argues that the community custody condition that prohibits him from “associating with ‘known drug users/sellers, except in treatment settings’” is unconstitutionally vague because it is unclear who must have knowledge that a person is a “known” drug user or seller. Appellant’s Opening Br. at 6-8. Houck contends that because it is unclear who must have the knowledge that a person is a “known” drug user or seller, the condition is subject to arbitrary enforcement. Houck relies on State v. Irwin, 191 Wn. App. 644, 364 P.3d 830 (2015), which held that a community custody condition that prohibits “frequenting areas where minor children are known to congregate, as defined by the supervising CCO” is unconditionally vague. Id. at 652, 655. First, the court concluded that areas where “‘children are known to congregate’” is sufficiently broad to require clarification. Id. at 654. The number of possible places where children may congregate, such as “‘public parks, bowling alleys, shopping malls, theaters, churches, [and] hiking trails’” is so extensive and wide ranging that an ordinary person may not know what places to avoid. See Id. at 654. Second, a condition that explicitly requires further definitions from community corrections officers (CCOs)2 leaves the condition vulnerable to arbitrary enforcement. Id. at 655. Therefore, the court held that the condition failed under both prongs of the vagueness doctrine. Id. But Division One of this court recently held that a community custody provision that prohibits offenders from associating with known “‘users or sellers of illegal drugs’” is not unconstitutionally vague. In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161, 169, 430 P.3d 677 2 During a period of court-ordered community custody, an offender is under the supervision of the DOC. RCW 9.94A.704(1). The DOC, through its CCOs, are responsible for the supervision of sentenced offenders and monitoring sentence conditions. RCW 9.94A.030(4). 5 No. 51201-7-II (2018). The Brettell court relied on United States v. Vega, 545 F.3d 743, 749 (9th Cir. 2008), where the Ninth Circuit rejected a vagueness challenge to a similar condition that prohibited the offender from associating “‘with any member of any criminal street gang.’” 6 Wn. App. 2d at 170. The Vega court acknowledged that “‘incidental contacts’—such as those [an offender would] fear he would be punished for inadvertently engaging in—do not constitute ‘association.’” 545 F.3d at 746 (quoting United States v. Soltero, 510 F.3d 858, 866-67 (9th Cir. 2007)). The Vega court held that the condition was constitutional but that the condition could be improved by adding the term “known” to limit its reach to people known by the defendant to be gang members. Brettell, 6 Wn. App. 2d at 170 (citing 545 F.3d at 749-50). We agree with Brettell. Here, the condition prohibiting association “with known drug users/sellers” is not unconstitutionally vague. CP at 152. The condition does not explicitly require further definition or clarification from a CCO and the terms “known drug users/sellers” effectively notify a person of ordinary intelligence who needs to be avoided. CP at 152. The term “known” qualifies that the condition prohibits the offender’s knowing contact with drug users and sellers. Brettell, 6 Wn. App. 2d at 170; Vega, 545 F.3d at 749-50. By limiting the condition’s reach to those known by the offender, the condition provides fair warning of proscribed conduct and meaningful guidance to protect against arbitrary enforcement. Accordingly, we hold that the trial court properly exercised its discretion by prohibiting Houck from associating with known drug users and sellers during his term of community custody because the condition is not unconstitutionally vague. 6 No. 51201-7-II C. MARIJUANA CONDITION Houck next argues that the trial court exceeded its statutory authority when it imposed the community custody condition prohibiting Houck from possessing or consuming medical marijuana because the Medical Use of Cannabis Act “(1) divest courts of any authority to impose conditions of community custody or probation that can subject a qualified medical marijuana user to criminal sanctions; and (2) directs supervising entities, like the [DOC], to establish a procedure before imposing a condition of community custody or probation that prohibits a qualified patient from using medical marijuana.” Appellant’s Opening Br. at 12-13. He bases this argument on public policy and three canons of statutory interpretation: expressio unius est exclusio alterius, noscitur a socis, and edjusdem generis, each of which we discuss below. 1. Standard of Review and Principles of Law A trial court lacks authority to impose a community custody condition unless authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173 (2013). We review a trial court’s statutory authority to impose a particular community custody condition de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). RCW 9.94A.703 states as follows: When a court sentences a person to a term of community custody, the court shall impose conditions of community custody as provided in this section. .... (2) Waivable conditions. Unless waived by the court, as part of any term of community custody, the court shall order an offender to: .... (c) Refrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions. (Emphasis added.) The definition of “controlled substance” is “a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board 7 No. 51201-7-II rules.” Former RCW 69.50.101(2)(d) (2013). Marijuana is listed as a schedule I controlled substance. RCW 69.50.204(c)(22). The Medical Use of Cannabis Act did not implicitly or explicitly repeal the statutory classification of marijuana as a schedule I controlled substance. State v. Atchley, 142 Wn. App. 147, 164-65, 173 P.3d 323 (2007); State v. Hanson, 138 Wn. App. 322, 330, 157 P.3d 438 (2007). Doctors are prohibited from issuing prescriptions for medical marijuana and are merely allowed to issue an “authorization” for medical marijuana use. Former RCW 69.51A.030(2)(a) (2011); former RCW 69.50.308 (2013). 2. Statutory Interpretation Houck points out that former “RCW 69.51A.005(2)(b) [(2011)] explicitly states that the legislature intended for ‘qualifying patients’ who benefit from marijuana to not be subject to arrest, prosecution, or other criminal sanctions based on their use of medical marijuana” and argues that former RCW 69.51A.040 (2011) “reaffirms that such qualified patients are insulated from criminal consequences for their use of medical marijuana.” Appellant’s Opening Br. at 10-11. However, he concedes that both former RCW 69.51A.005(4) (2011) and RCW 69.51A.055(1) limit this protection. The statutes provide in relevant part, The arrest and prosecution protections established in RCW 69.51A.040 may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails, that has determined that the terms of this section are inconsistent with and contrary to his or her supervision. RCW 69.51A.055(1)(a). Nothing in this chapter diminishes the authority of correctional agencies and departments, including local governments or jails, to establish a procedure for determining when the use of cannabis would impact community safety or the effective supervision of those on active supervision for a criminal conviction, nor 8 No. 51201-7-II does it create the right to any accommodation of any medical use of cannabis in any correctional facility or jail. Former RCW 69.51A.005(4). Houck argues that these provisions divest courts of any authority to impose community custody conditions that subject a qualified medical marijuana user to criminal sanctions, and direct supervising entities, like the DOC, to establish a procedure before imposing a condition of community custody that prohibits a qualified patient from using medical marijuana. First, Houck relies on “expressio unius est exclusion alterius,” which means that the “Legislative inclusion of certain items in a category implies that other items in that category [were] intended to be excluded.” Bour v. Johnson, 122 Wn.2d 829, 836, 864 P.2d 380 (1993). He suggests that we must presume that the legislature’s omission of the term “court” in former RCW 69.51A.005(4) and RCW 69.51A.055(1)(a) was deliberate, and therefore courts do not possess the authority to impose a condition of community custody that can subject a medical marijuana user to criminal sanctions for their use of medical marijuana in conformity with former RCW 69.51A.040. Second, Houck relies on noscitur a socis. Noscitur a socis “provides that a single word in a statute should not be read in isolation, and that ‘the meaning of words may be indicated or controlled by those with which they are associated.’” State v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999)). Finally, Houck relies on edjusdem generis, which provides that “‘[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding words.’” Dep’t of Soc. & 9 No. 51201-7-II Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384, 123 S. Ct. 1017, 154 L. Ed. 2d 972 (2003) (internal quotation marks omitted) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001)). Houck argues that the term “‘local government’” should be read narrowly to mean something similar to the other words associated with the term, namely, “‘correctional agencies’” and “‘jails.’” Appellant’s Opening Br. at 17. Houck’s arguments rely on the assumption that former RCW 69.51A.005(4) and RCW 69.51A.055(1)(a) create an exhaustive list of which agencies or departments can impose community custody conditions regarding controlled substances. However, the language of the statutes indicate otherwise. “Nothing in this chapter diminishes the authority of correctional agencies and departments, including local governments or jails, to establish a procedure for . . . the effective supervision of those on active supervision for a criminal conviction.” Former RCW 69.51A.005(4) (emphasis added). “The arrest and prosecution protections established in RCW 69.51A.040 may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails.” RCW 69.51A.055(1)(a) (emphasis added). The statutes on which Houck relies apply to establishing procedures for “effective supervision” and to “supervision revocation or violation hearing[s].” Former RCW 69.51A.005(4); RCW 69.51A.055(1)(a). The imposition of community custody conditions fit into neither of these categories. Houck also argues that RCW 69.51A.055(1)(a) grants supervising entities, not courts, exclusive authority to restrict medical marijuana use. However, a supervising entity has the authority to execute only the court-imposed sentence by supervising offenders on the basis of conditions imposed by the court. RCW 9.94A.030(4), .704(2)(b). Furthermore, the DOC may 10 No. 51201-7-II exercise its authority only by imposing an additional community custody condition when it does not interfere or contradict conditions imposed by the court. RCW 9.94A.704(6). Therefore, although such agencies or departments may have authority to impose community custody conditions regarding controlled substances, their authority is limited by conditions imposed by the trial court. Houck’s argument also implies that the Medical Use of Cannabis Act supersedes RCW 9.94A.703. We disagree. A court is required to impose the following condition unless it exercises its discretion to waive it: an offender must “[r]efrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions.” RCW 9.94A.703(2)(c). As noted above, the Medical Use of Cannabis Act did not implicitly or explicitly repeal the statutory classification of marijuana as a schedule I controlled substance. Atchley, 142 Wn. App. at 164-65; Hanson, 138 Wn. App. at 330. We conclude that the Act also does not supersede community custody conditions that trial courts “shall order” under RCW 9.94A.703(2). Therefore, we hold that Houck’s argument fails and affirm the community custody condition.3 II. LEGAL FINANCIAL OBLIGATIONS The trial court ordered Houck to pay mandatory LFOs in the form of a $500 crime victim penalty assessment, a $200 criminal filing fee, and a $100 DNA collection fee. The trial court also ordered Houck to pay interest on his nonrestitution LFOs. Houck challenges the imposition of the $200 criminal filing fee and the $100 DNA collection fee, as well as the imposition of interest, on 3 Because the Medical Use of Cannabis Act and the Sentencing Reform Act of 1981, ch. 9.94A RCW, can be harmonized, we do not reach Houck’s rule of lenity or public policy arguments. 11 No. 51201-7-II the basis that the trial court failed to consider his ability to pay those fees as required by RCW 9.94A.777(1) and based on recent statutory amendments that apply to his case. The State concedes that the $200 criminal filing fee and the interest provision should be stricken from Houck’s judgment and sentence, but the State maintains that the imposition of the DNA collection fee was proper because Houck failed to prove that the State has previously collected his DNA. See RCW 43.43.7541. The legislature recently amended former RCW 36.18.020(2)(h) to prohibit the superior courts from imposing the $200 criminal filing fee and interest on the nonrestitution portions of LFOs on defendants found indigent under RCW 10.101.010(3)(a) through (c). LAWS OF 2018, ch. 269, § 17; RCW 36.18.020(2)(h); State v. Ramirez, 191 Wn.2d 732, 746, 426 P.3d 714 (2018). These statutory amendments apply to any case not yet final at the time of their passage. Ramirez, 191 Wn.2d at 747. Because the trial court found Houck to be indigent, we accept the State’s concession and agree that the $200 criminal filing fee and imposition of interest should be stricken. But we do not agree with the State’s contention that the DNA collection fee was properly imposed. The State argues that we should not strike Houck’s DNA collection fee because Houck fails to show that the State previously collected his DNA. A DNA collection fee is mandatory “unless the state has previously collected the offender’s DNA as a result of a prior conviction.” RCW 43.43.7541 (emphasis added); Ramirez, 191 Wn.2d at 747; State v. Catling, 193 Wn.2d 252, 257-58, 438 P.3d 1174 (2019). RCW 43.43.7541 requires the collection of a DNA sample from every adult or juvenile convicted of a felony. Houck has a prior felony conviction, but the record on appeal is silent as to whether the State previously collected his DNA. If such collection occurred, the trial court’s imposition of the DNA collection fee was improper. 12 No. 51201-7-II We remand to the trial court to determine whether the State has previously collected a DNA sample from Houck. The trial court, on remand, shall strike the DNA collection fee unless the State demonstrates that Houck’s DNA has not been collected.4 Houck also contends that the trial court failed to inquire whether he had the means to pay LFOs based on his mental condition, relying on our opinion in State v. Tedder, 194 Wn. App. 753, 378 P.3d 246 (2016). At sentencing, Houck presented evidence that he suffers from chronic and severe mental health disorders. Before imposing any LFO, excluding restitution and the victim penalty assessment, the trial court must determine whether a defendant who suffers from a mental health condition has the ability to pay the obligations. RCW 9.94A.777(1); Tedder, 194 Wn. App. at 756-57. A defendant suffers from a mental health condition when the defendant has been diagnosed with a mental disorder that prevents him from participating in gainful employment. RCW 9.94A.777(2). Based on the evidence Houck presented at sentencing, the trial court was required to consider, under RCW 9.94A.777(1), whether Houck has the means to pay LFOs. Because the trial court did not consider evidence of Houck’s mental conditions before imposing LFOs, we hold that the trial court abused its discretion. 4 At oral argument, the parties disagreed about who should bear the burden of demonstrating whether a defendant’s DNA has previously been collected when the defendant has a prior Washington felony conviction. The State urged us to hold it is the defendant’s burden to demonstrate that the State has not previously collected his DNA. We disagree and hold that when a defendant has a prior Washington felony conviction, the State must show that the defendant’s DNA has not previously been collected. See State v. Van Wolvelaere, ___ Wn. App. 2d ___, 440 P.3d 1005, 1007 (2019) (holding that the defendant’s prior Washington State felony convictions give rise to a presumption that the State previously collected a DNA sample from the defendant). 13 No. 51201-7-II On remand, if the trial court finds that the State has not previously collected Houck’s DNA, the trial court must then consider whether the DNA collection fee should be waived after performing the necessary inquiry under RCW 9.94A.777. CONCLUSION We affirm the trial court’s imposition of a community custody condition that prohibits Houck from associating with known drug users and sellers during his term of community custody. We hold that the trial court had statutory authority to impose a community custody condition prohibiting Houck from possessing or consuming medical marijuana under the Medical Use of Cannabis Act during his term of community custody and affirm the condition. Finally, we remand to the trial court to strike the $200 criminal filing fee and interest provision and to reconsider the imposition of DNA collection fee consistent with this opinion. CRUSER, J. We concur: WORSWICK, J. LEE, A.C.J. 14 

United States Court of Appeals For the First Circuit No. 09-2596 PLUMBERS' UNION LOCAL NO. 12 PENSION FUND, Individually and on behalf of all others similarly situated; PLUMBERS' & PIPEFITTERS' WELFARE EDUCATIONAL FUND; NECA-IBEW HEALTH & WELFARE FUND, Plaintiffs, Appellants, v. NOMURA ASSET ACCEPTANCE CORPORATION; JOHN P. GRAHAM; NATHAN GORIN; JOHN McCARTHY; DAVID FINDLAY; ALTERNATIVE LOAN TRUST 2006-AF1; ALTERNATIVE LOAN TRUST 2006-AF2; ALTERNATIVE LOAN TRUST 2006-AP1; ALTERNATIVE LOAN TRUST AR2; ALTERNATIVE LOAN TRUST AR3; ALTERNATIVE LOAN TRUST 2006-AR4; ALTERNATIVE LOAN TRUST 2006-WF1; NOMURA SECURITIES INTERNATIONAL, INC.; GREENWICH CAPITAL MARKETS, INC.; UBS SECURITIES, LLC; CITIGROUP GLOBAL MARKETS, INC.; MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.; GOLDMAN, SACHS & CO.; ALTERNATIVE LOAN TRUST 2006-AR1, Defendants, Appellees. ERRATA The opinion of this Court, issued on January 20, 2011, should be amended as follows. On page 4, line 2, replace "April 16, 2006," with "April 19, 2006,". On page 13, line 3 of footnote 7, insert "to" between "entitled" and "maintain". 

(2008) FEDERAL TRADE COMMISSION, Petitioner, v. Scott TARRIFF, et al., Respondents. Misc. Action No. 08-217(RCL). United States District Court, District of Columbia. June 2, 2008. MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. Presently before the Court is the Federal Trade Commission's Petition for an Order Enforcing Subpoenas ad Testificandum. Specifically, the Federal Trade Commission ("FTC" or "Commission") petitions this Court for an Order requiring Mr. Scott Tarriff, the former Chief Executive Officer of Par Pharmaceutical Companies, Inc. ("Par"), Mr. Edward Maloney, a senior executive of Paddock Laboratories, Inc. ("Paddock"), and Mr. Paul Campanelli, President of Par's Generic division (collectively "respondents") to comply with the subpoenas ad testificandum issued by the FTC to each of these individuals. Upon consideration of the petition, the opposition and reply thereto, arguments made during an oral hearing, the parties' supplemental filings, the applicable law, and the record herein, the Court finds that the petition should be GRANTED. I. BACKGROUND This matter stems from an ongoing Commission law enforcement investigation. The investigation seeks to determine whether agreements between Unimed Pharmaceuticals, Inc., Laboratories Besins Iscovesco, and Solvay Pharmaceuticals, Inc. (collectively, "Solvay") and Par or Paddock, or any other agreement, unlawfully delayed entry of a lower-cost generic version of the drug AndroGel in violation of Section 5 of the FTC Act, 15 U.S.C. § 45. The Commission staff issued subpoenas to the respondents requiring them to appear for investigational hearings. Specifically, the subpoenas were issued to obtain the respondents' testimony relating to the negotiation and terms of the settlement agreements. On November 29, 2007, a subpoena ad testificandum for an investigational hearing was issued for Mr. Campanelli. (Resp't Opp'n 10.) Subsequently, on January 16, 2008, subpoenas ad testificandum for investigational hearings were issued for Messrs. Tarriff and Maloney. (Id.) At this point, none of the subpoenas provided for recording the investigational hearings by means other than by stenographic recording. (Id.) On January 16, 2008, Mr. Campanelli appeared for his investigational hearing as scheduled by his subpoena. The January 16 hearing was recorded only by stenographic means. (Id.) After a full-day hearing, Mr. Campanelli agreed to the Commission staffs request to continue the hearing a second day, March 5, 2008. (Id.) After a series of communications between respondents' counsel and the Commission staff regarding the latter's intention to record by sound-and-visual means the future investigational hearings of Messrs. Campanelli, Tarriff, and Maloney, the Commission issued amended subpoenas to the respondents on February 13, 2008. (Resp't Opp'n 12.) The new subpoenas ad testificandum provided that the investigational hearings would be recorded by sound-and-visual means in addition to stenographic means. (Mem.Supp.Pet.5.) On February 20, 2008, Par and Paddock filed with the Secretary of the Commission a Petition to Quash or Limit the Subpoenas. (Id.) The Petition to Quash sought to quash or limit the subpoenas to the extent they required videotaping of the investigational hearings. On March 14, 2008, the Commission issued a letter opinion rejecting the Petition to Quash finding that the Commission's rules "do not explicitly forbid the use of videotaping." (Resp't Opp'n 14.) On March 21, 2008, Par and Paddock notified the Commission of their intention not to comply with the subpoenas, and that the individual respondents refused to appear for the videotaped investigational hearings. (Id. at 15.) The Commission brought this subpoena enforcement action on April 16, 2008, seeking an order requiring respondents to show cause why they should not fully comply with the subpoenas. This Court entered its Order to Show Cause on April 17, 2008. Respondents filed their Response to Order to Show Cause on May 7, 2008, which was followed by the Commission's reply brief on May 14, 2008. This Court held a show cause hearing on May 23, 2008, at which time both parties presented oral argument. II. DISCUSSION The sole issue before the Court is whether the Commission has authority to videotape investigational hearings pursuant to Rule 2.8(b), 16 C.F.R. § 2.8(b). That section provides: Investigational hearings shall be conducted by any Commission member, examiner, attorney, investigator, or other person duly designated under the FTC Act, for the purpose of hearing the testimony of witnesses and receiving documents and other data relating to any subject under investigation. Such hearings shall be stenographically reported and a transcript thereof shall be made part of the record of the investigation. 16 C.F.R. § 2.8(b) (emphasis added). Respondents argue that the Commission's authority to record investigational hearings is limited to that provided in Rule 2.8(b) — that investigational hearings "shall be stenographically reported." Otherwise stated, respondents interpret the word "shall" as used in Rule 2.8(b) as not only mandatory, but also limiting. According to respondents, the rule mandates stenographic reporting but precludes the use of any additional means of recording, such as videotape. The Commission contends that Rule 2.8(b)'s requirement that investigational hearings be "stenographically recorded" and transcribed establishes a minimum standard of recordation. The Commission interprets the word "shall" as used in the rule as a mandate for stenographic transcription rather than as a term of limitation. That is, so long as the Commission stenographically records its investigational hearings, Rule 2.8(b) places no restriction on additional means of recordation. This Court agrees. Respondents have failed to convince this Court that the word "shall" expresses not only a mandatory direction, but also a limiting principle. This Court sees no basis to stretch the term "shall" beyond its ordinary meaning and usage. See Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (words of a statute must be given their "ordinary, contemporary, common meaning"). Rather, "shall" most commonly means "must." See BLACK'S LAW DICTIONARY 1407 (8th ed.2004) (defining "shall" as "has a duty to; more broadly, is required to"); see also WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1081 (Merriam-Webster 1990) ("shall" is "used in laws, regulations, or directives to express what is mandatory"); accord Merriam-Webster Online Dictionary, http://www.merriam-webster.com/ dictionary/shall (last visited May 30, 3008). As the Commission successfully argues, this definition is in accord with the normal usage of the word "shall."[1] Respondents primarily rely on Beverly Health & Rehabilitation Services, Inc. v. NLRB, 317 F.3d 316 (D.C.Cir.2003) to support their argument that the plain meaning of the words in Rule 2.8(b) requires the Commission to record investigational hearings only by stenographic means. In Beverly Health, the D.C. Circuit addressed a statute's requirement for unions to notify their employer institutions at least ten days before the union would begin to strike. The statute further provided that "[t]he notice, once given, may be extended by the written agreement of both parties." Beverly Health, 317 F.3d at 320. The National Labor Relations Board argued that the statute permitted a union to unilaterally extend a strike deadline since the statute did not expressly state that agreement of the parties is the only means to obtain an extension. The Court rejected that argument finding that there was no ambiguity where Congress carved out a single express exception for extending the strike deadline — when both parties consent in writing. Id. at 321. The rule in Beverly Health is not relevant in the instant matter for two reasons. First, the focus in that case was whether Congress intended that the statute would permit a substitute method of extending the strike deadline other than the single exception provided. To that question, the court read the plain language of the statute to require mutual agreement as the only means of obtaining an extension. In this matter, neither party disputes that the Commission is required to record its investigational hearings by stenographic transcription. The Commission does not, and could not lawfully attempt to substitute stenographic recording with videotaping. Rather, it seeks to use videotape as an additional means of recording the hearings. Second, the Beverly Health court had no occasion to interpret the meaning of the term "shall." If anything, the reasoning in that case primarily relates to the meaning of the term "may" as it is used in the statute: "[t]he notice, once given, may be extended by the written agreement of both parties." Respondents also cite authority to support their contention that since the words in Rule 2.8(b) only specify stenographic recording, those words set both the "ceiling" and the "floor" of the Commission's authority to record investigational hearings. (See Resp't Opp'n 19 (citing Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___-___, 127 S.Ct. 2518, 2532-33, 168 L.Ed.2d 467 (2007) (holding that a statute's use of "shall" rendered the criteria set forth in the statute mandatory and exclusive)).) In Defenders of Wildlife, the Supreme Court held that where Congress provided that the EPA "shall approve" a transfer application unless the state: lacks authority to perform the nine functions specified in the section, the EPA has no discretion to deny an application because some other criteria is not met. In other words, once the state satisfies the nine conditions set forth in the statute, the application must be granted. The statutory language at issue in Defenders of Wildlife is altogether different from the language in Rule 2.8(b). In that case, the statute set forth conditions precedent for EPA's nondiscretionary approval of a transfer application. Here, the Commission established a minimum requirement for what it must do to record investigational hearings, irrespective of any condition precedent. Defenders of Wildlife is therefore irrelevant to the Court's interpretation of the instant provision. Similarly, respondents rely upon the interpretive canon, expressio unius est exclusio alterius, "expressing one item of [an] associated group or series excludes another left unmentioned." Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002) (citation omitted). Respondents cite this Court's decision in District of Columbia Financial Responsibility and Management Authority v. Concerned Senior Citizens of the Roosevelt Tenant Ass'n, 129 F.Supp.2d 13 (D.D.C.2000) (Lamberth, J.), to support their arguments. In that case, Congress established a list of laws of the District of Columbia that "shall apply" to the Control Board. This Court relied upon the expression-exclusion rule and held that Congress's "affirmative statement that certain laws `shall apply' to the Control Board necessarily implies that laws not referenced shall not apply." 129 F.Supp.2d at 16. Respondents' reliance on the expression-exclusion rule in the instant matter, however is misguided. As the Supreme Court explained, "[t]he canon [expressio unius] depends on identifying a series of two or more terms or things that should be understood to go hand in hand." Chevron, 536 U.S. at 81, 122 S.Ct. 2045; see Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 370 (2d Cir.2006) (recognizing that expressio unius "applies only when the statute identifies a series of two or more terms ... [that] rais[e] the inference that a similar unlisted term was deliberately excluded"). As Rule 2.8(b) includes no such series of terms, this Court sees no basis to find, based on the construction of the rule, that additional means of recordation are excluded. Moreover, respondents' interpretation of Rule 2.8(b), if adopted, would lead to absurd results. The Commission argues, for example, that under the respondents' interpretation, Rule 2.8(b) could even prohibit both Commission staff and counsel for the witness from taking longhand notes during the course of investigational hearings, or from using laptop computers. Indeed, respondents do not argue that the language at the end of Rule 2.8(b) providing that "a transcript [of the hearing] shall be made part of the record" restricts the Commission from also providing a copy of the transcript to the witness or the witness's counsel.[2] Finally, respondents, both in their opposition brief and at oral argument, urge this Court to compare the context and history of Rule 2.8(b) to that of Federal Rule of Civil Procedure 30, which has been amended over the years to expressly provide for recording testimony using means other than stenographic transcription. The respondents claim that the Commission's failure to amend the original language of Rule 2.8(b) to expressly provide for additional recording methods even after the Federal Rules were amended, is evidence that Rule 2.8(b) allows the Commission to record investigational hearings only by stenographic means. (See Resp't Opp'n 24-25.) Respondents' argument ignores, however, that the original language in Rule 2.8(b) and Federal Rule of Civil Procedure 30(c) is quite different on its face. The 1967 version of Rule 2.8(b) stated then (and states now) as follows: "Such hearings shall be stenographically reported and a transcript thereof shall be made part of the record of investigation." The 1967 version of Federal Rule of Civil Procedure 30(c) read: "The testimony shall be taken stenographically and transcribed unless the parties agree otherwise." The final clause of the federal civil rule — "unless the parties agree otherwise" — makes it clear that, absent mutual agreement, stenographic transcription is the only permissible means of recordation under the rule. Commission Rule 2.8(b) has never contained a clause similar to the "unless" clause of the 1967 version of the federal civil rule. Thus, the 1968 district court case interpreting Rule 30(c) to prohibit videotaping upon which respondents rely, is not instructive here. (See Resp't Opp'n 23 (citing U.S. Steel Corp. v. United States, 43 F.R.D. 447, 451 (S.D.N.Y.1968))).[3] III. CONCLUSION This Court finds that the language in Rule 2.8(b) does not preclude the Commission from using videotape as an additional means of recording testimony during investigational hearings. The rule mandates that the Commission must record the hearings stenographically and make the transcript part of the record. As long as the Commission satisfies that minimum requirement, there is nothing in Rule 2.8(b) that prohibits the Commission from using additional recording methods. Moreover, this Court recognizes the added value of demeanor evidence in accessing the credibility of witnesses. For all of the reasons stated above, the Commission's Petition for an Order Enforcing Subpoenas ad Testificandum shall be GRANTED. A separate order shall issue this date. NOTES [1] The Commission provides the following illustrative example: "A direction to a teenage son that he `shall' clean his room does not thereby forbid him from taking out the trash, walking the dog, or going to school." (Pet'r Reply 3.) [2] Nor could they. Respondents complain in their opposition brief that "[t]o date, the Commission has not provided Mr. Campanelli with a transcript of the first day of his investigational hearing." (Resp't Opp'n 10.) Under respondents' own interpretation of the Rule, however, the word "shall" would limit the Commission's handling of transcripts to the precise action required by the rule — that the Commission merely make the transcript part of the record. Providing a copy of the hearing transcript to the witness is therefore forbidden under the logic of respondents' interpretation. [3] For a critique and discussion of U.S. Steel Corp., see 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2115 (2d ed.2008) (explaining that "it is difficult to see the basis for the [U.S. Steel Corp.] decision, since as long as the examination was to be recorded stenographically in the usual manner as well as electronically the provisions of the rule were complied with").

163 F.3d 1164 1999 CJ C.A.R. 1333 UNITED STATES of America, Plaintiff-Appellee,v.Herta WITTGENSTEIN, also known as Herta Hilscher, also knownas Herta Christiensen, Defendant-Appellant. No. 97-2379. United States Court of Appeals,Tenth Circuit. Dec. 16, 1998. John V. Butcher, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant. Laura Fashing, Assistant United States Attorney (John J. Kelly, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee. Before TACHA, BALDOCK, and KELLY, Circuit Judges. TACHA, Circuit Judge. 1 Defendant-Appellant Herta Wittgenstein appeals from her conviction of having been found in the United States without permission of the Attorney General after prior arrest and deportation in violation of 8 U.S.C. § 1326 (1994). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Background 2 Ms. Wittgenstein, a native and citizen of Austria, has resided in the United States since August 13, 1964, when she entered as a non-immigrant visitor. For the bulk of these years, she has lived here illegally. Not until April 13, 1992, did an immigration judge grant her status as a "lawful permanent resident." Three years later, on April 19, 1995, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause why Ms. Wittgenstein should not be deported as an "alien who at any time after entry is convicted of two or more crimes involving moral turpitude...." 8 U.S.C. § 1251(a)(4) (1994). Ms. Wittgenstein had been convicted of a fraud involving more than $2500 and attempted tax evasion under New Mexico state law. See N.M. Stat. Ann. § 7-1-72; Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir.1997). Shortly after an INS agent served Ms. Wittgenstein with the Order to Show Cause, she left the country, attempting to reenter the United States through Atlanta, Georgia, on May 16, 1995. At the Atlanta port of entry, an INS inspector noted that Ms. Wittgenstein was inadmissible into the United States. However, he "paroled" her into the country for "deferred inspection" at the Albuquerque, New Mexico INS office. When she presented herself in Albuquerque, Agent Godshall affirmed that he wrote "admitted" on Ms. Wittgenstein's Form I-94 (Departure Record). 3 After Ms. Wittgenstein returned to the United States, the deportation hearing resumed, and on January 26, 1996, the immigration judge ordered Ms. Wittgenstein deported. The INS issued a Warrant of Deportation the same day. On February 5, 1996, Ms. Wittgenstein filed a motion for reconsideration. Under INS regulations, the motion did not stay her deportation. 4 On February 15, 1996, INS agents, along with a Santa Fe County deputy sheriff, went to Ms. Wittgenstein's home to execute the Warrant of Deportation. When she answered the door, an INS agent stepped inside, handcuffed her, told her he had a Warrant of Deportation for her arrest, and showed her the warrant. Ms. Wittgenstein protested that she had a motion pending before the immigration court and requested removal of the handcuffs so that she could call the judge. The INS agent obliged. Ultimately, Ms. Wittgenstein received a telephonic hearing before the immigration judge on her motion to reconsider. During the telephonic hearing, the immigration judge denied Ms. Wittgenstein's motion and shortly thereafter faxed her written decision to Ms. Wittgenstein's residence. 5 Ms. Wittgenstein requested permission to shower and change her clothes before the agents took her into custody. Again, the INS agents obliged. Eventually, the INS agents no longer heard movement in the bedroom. They knocked on the door and received no response. After ascertaining that Ms. Wittgenstein was no longer in the bedroom, the agents searched the entire house for her to no avail. In one declaration, Ms. Wittgenstein maintained that she had hid in her bedroom closet until the agents left. In another affidavit, she claimed that she retreated to a room on the lower level until she felt calmer and to her "astonishment" the INS agents had left when she returned upstairs. The INS agents had no further contact with Ms. Wittgenstein until March 31, 1997, when they took her into custody for violating 8 U.S.C. § 1326 (1994). 6 Although the INS agents did not find Ms. Wittgenstein until the end of March 1997, they periodically attempted to locate her. In January 1997, responding to an inquiry by Albuquerque INS Special Agent Godshall, Atlanta INS Special Agent Holth investigated the possibility that defendant had flown from London, England to Atlanta, Georgia on January 25, 1997. The investigation revealed that an individual by the name of Herta Wittgenstein had made that flight and continued on to Albuquerque. No one with that name, however, had passed through United States Customs that day. Instead, someone using the name Herta Christiensen, with the same date of birth and nationality as Ms. Wittgenstein, and coming from the same flight, presented herself to Customs. Agent Holth relayed this information, as well as information that Ms. Wittgenstein had lost something during the course of the flight that Delta Airlines later sent to her home in Santa Fe via Federal Express, to the INS office in Albuquerque on January 29, 1997. 7 On February 13, 1997, INS Special Agent Lee requested a search warrant for Ms. Wittgenstein's home in Santa Fe. The affidavit in support of the search warrant stated that Ms. Wittgenstein, a native and citizen of Austria, was illegally in the United States and that an agent of the New Mexico Attorney General's office had recently seen her in Santa Fe. Agent Lee also averred that he had passed her home and saw a Mercedes Benz registered to her parked at the residence. A United States Magistrate issued a warrant to search Ms. Wittgenstein's home for her and documents relating to her alienage or citizenship. Several INS agents and two Santa Fe Deputy Sheriffs executed the warrant on February 14, 1997. Although Ms. Wittgenstein was not at home, the officers seized several documents indicating that she had left the United States on December 23, 1997, and returned on January 25, 1997. 8 On March 31, 1997, in response to tip from a friend of Ms. Wittgenstein's, Sandoval County Deputy Sheriff Wiese arrested the defendant in Regina, New Mexico. Defendant requested that Deputy Wiese return to the house where the officers arrested her so that she could get her shoulder bag. Officer Wiese complied with this request. At the Cuba, New Mexico substation, Deputy Wiese searched the bag for weapons, removing two pocket knives. When two INS agents arrived an hour later, Deputy Wiese gave them Ms. Wittgenstein's passport, pocket knives, and shoulder bag. The INS agents transported her to Albuquerque where they stowed her belongings in a storage locker. The following day, they conducted a search of the bag, seizing several documents pertinent to her travels outside the country from December 1996 to January 1997. 9 On April 16, 1997, a federal grand jury returned a one-count indictment against Ms. Wittgenstein charging her with violating 8 U.S.C. § 1326 because she was found in the United States without the permission of the Attorney General after having been previously deported. After a two-day trial, a jury convicted Ms. Wittgenstein on August 5, 1997. The court sentenced her to eighteen months in prison followed by three years supervised release and imposed a $30,000 fine. 10 On appeal, Ms. Wittgenstein argues that the district court (1) erred in instructing the jury regarding the arrest element of 8 U.S.C. § 1326 and therefore erred in denying her motion for acquittal; (2) erred in denying her motion to dismiss in which she claimed that the immigration judge lacked jurisdiction to issue the deportation order against her and failed to properly advise her of her right to appeal; (3) erred in denying her motion to suppress evidence seized during a search of her residence and a later search of her shoulder bag at the time of her arrest; (4) erred in admitting evidence of prior bad acts; (5) erred in instructing the jury that it should consider prior sworn testimony of Agent Lee for impeachment purposes only; and (6) erred in imposing a $30,000 fine. Discussion I. 11 To find a defendant guilty of violating 8 U.S.C. § 1326 (1994), the government must prove beyond a reasonable doubt that defendant was an alien who had been arrested, deported, and thereafter found in the United States without the Attorney General's consent for readmission. See 8 U.S.C. § 1326 (1994); United States v. Martinez-Morel, 118 F.3d 710, 712-13 (10th Cir.1997). Ms. Wittgenstein argues that the district court, over defense objections, erroneously instructed the jury as to the meaning of the arrest element. She asserts that this violated her Fifth and Sixth Amendment rights and thus constitutes reversible error. Her argument presents two pertinent issues: whether the instruction given was legally incorrect; and if so, whether it constitutes harmless error. 12 After instructing the jury regarding the elements the government must prove, including the arrest element, the district court stated that "[t]he issuance of a Warrant of Deportation by the Immigration and Naturalization Service is a sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint." Jury Instruction 8c. Ms. Wittgenstein argues that the mere issuance of a warrant does not provide notice, and therefore cannot constitute an arrest. "We review the jury instructions de novo to determine whether, as a whole, the instructions correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standards." United States v. Cecil, 96 F.3d 1344, 1347 (10th Cir.1996), cert. denied, 519 U.S. 1129, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997); see also Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1324 (10th Cir.1998). 13 In this case, the district court judge relied on the only Tenth Circuit case to address the arrest element of 8 U.S.C. § 1326, United States v. Hernandez, 693 F.2d 996 (10th Cir.1982). In Hernandez, this court declared, "INS ... issued a Warrant of Deportation under § 243.2.... 'That is sufficient restraint on liberty to constitute an arrest, even without custodial manhandling and physical restraint....' " 693 F.2d at 998 (citation omitted). Thus, an isolated read of the Hernandez opinion supports the accuracy of the district court's jury instruction. However, when Hernandez is read in light of the developed case law of the Fifth and Ninth Circuit, which it implicitly incorporated, a different conclusion is reached. See id. (citing United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (Wong Kim Bo II ), and United States v. Farias-Arroyo, 528 F.2d 904, 905 (9th Cir.1975)). Therefore, we find that the district court understated the legal standard for finding an arrest under 8 U.S.C. § 1326.1 14 The seminal case pertaining to the meaning of "arrest" in the context of immigration cases, United States v. Wong Kim Bo, 466 F.2d 1298 (5th Cir.1972), and its progeny reveal that the arrest element's primary concern is procedural fairness, and that the hallmark inquiry under the arrest element is whether the defendant had knowledge or notice of a final deportation order. See United States v. Bahena-Cardenas, 70 F.3d 1071, 1073 (9th Cir.1995) (asserting that "[w]ithout notice, there can be no arrest, and no restraint on the liberty that an arrest connotes"); United States v. Quezada, 754 F.2d 1190, 1192 (5th Cir.1985) ("[N]otice is critical ... for it insures that criminal sanctions are not imposed for reentry where the alien does not know that he has previously been officially deported."). For example, in Wong Kim Bo, the Fifth Circuit declared:Congress might understandably hesitate to impose criminal sanctions for reentry where the alien does not know or realize that he has been officially ordered deported. The arrest of an alien after an order of deportation has become final provides great assurance that the alien understands that he is being officially deported. 15 466 F.2d at 1304 (emphasis in original). 16 Ms. Wittgenstein argues that the INS never properly served her with a valid Warrant of Deportation and, thus, never arrested her within the meaning of the statute. While it is true that the courts in Wong Kim Bo, Bahena-Cardenas, and Quezada found that each defendant had been served with a Warrant of Deportation and therefore arrested, these opinions do not stand for the proposition that service is necessary where actual knowledge of a final deportation order exists. In fact, in each of those cases, as noted above, the court indicated that notice constituted the primary concern of the arrest element. Service merely provided the most ready proof that the defendants had notice that a final deportation order had issued against them. Thus, properly read, these cases support the proposition that a defendant is arrested under 8 U.S.C. § 1326 as soon as he or she knows or receives notice that a final deportation order has issued against him or her. 17 Consequently, we find that the district court's jury instructions erroneously understated the legal standard for arrest under 8 U.S.C. § 1326. The instruction should have stated that knowledge or notice of a final deportation order, whether by service of a Warrant for Deportation or otherwise, provides a sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint. 18 Having found that the district court misstated the arrest element of an 8 U.S.C. § 1326 offense, we must assess whether the instruction nevertheless constitutes harmless error. This court will reverse for instructional error only where it is "prejudicial in view of the entire record." United States v. Cecil, 96 F.3d 1344, 1347 (10th Cir.1996), cert. denied, 519 U.S. 1129, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997). In other words, on a direct criminal appeal, we generally disregard those errors that do not affect a substantial right. See Fed.R.Crim.P. 52(a). Here, Ms. Wittgenstein argues that the erroneous jury instruction violated her Fifth and Sixth Amendment rights to a jury determination of guilt beyond a reasonable doubt as to every element of her offense. Under Rule 52(a), the government bears the burden of proving lack of prejudice. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). 19 Ms. Wittgenstein correctly asserts that the Fifth and Sixth Amendment entitle those accused of serious crimes to an actual jury verdict of guilty beyond a reasonable doubt as to every element of the charged crime. See Sullivan v. Louisiana, 508 U.S. 275, 278-80, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). However, no constitutional violation presents itself in this case. A review of the record indicates that we may properly find harmless error without running afoul of Fifth and Sixth Amendment concerns. 20 The right to a jury trial as to every element of an offense may be waived when a defendant admits an essential element, cf. Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (finding jury instruction error in state trial involving an essential element of crime properly considered harmless and not violative of the Fourteenth Amendment Due Process Clause when defendant conceded the existence of the element), or has stipulated to facts establishing the essential element, see United States v. Mason, 85 F.3d 471, 472 (10th Cir.1996). In such cases, an erroneous jury instruction relating to the admitted or stipulated element may constitute harmless error without implicating the Fifth and Sixth Amendments. Ms. Wittgenstein admitted on several occasions that she knew the immigration judge had issued a final order of deportation against her and that the INS had issued a Warrant for Deportation. For example, during the telephonic hearing conducted while INS agents were in her home on February 15, 1996, Ms. Wittgenstein stated that the INS agent "has a warrant of deportation signed (coughing), I'm sorry--signed by District Director in El Paso on January 26." Appellee's Supp.App. at 6. She also stated in a written declaration to the INS: 21 [O]n a recent morning two Immigration Agents appeared at the door. "Get your passport and pack a small bag" they said, "we're going to take you now to a detention facility in Texas and from there you'll be deported within 72 hours." 22 Not willing to abandon everything I've worked so hard on at a moment's notice, ... I decided to take the law into my own hands and pursue due process. A closet in the house which had sheltered the children and me became a refuge until the agents left.... 23 Id. at 8. Moreover, in a sworn affidavit, Ms. Wittgenstein admitted that INS officers told her on February 15, 1996, when they arrived at her house to take her into custody, that she was to be deported and showed her a Warrant for Deportation. Most telling, Ms. Wittgenstein further admits in her affidavit that the immigration judge denied her Motion to Reopen as well as her Request for a Stay. In fact, she even admits receiving Judge Smith's written decision via fax later that morning while the INS agents were still in her home. Although these various statements diverge on a few details such as whether the warrant was signed and where and whether she hid from the INS agents, nothing contradicts her ultimate admissions of knowledge of the final deportation order. In sum, Ms. Wittgenstein admitted having actual notice of the deportation order, thereby satisfying the arrest element of 8 U.S.C. § 1326. As a result, she has waived her right to a jury trial with respect to that element. We therefore conclude that the district court's erroneous jury instruction regarding the arrest element constituted harmless error and does not warrant reversal. II. 24 At trial, Ms. Wittgenstein moved to dismiss, arguing that the immigration court violated her right to due process because it lacked jurisdiction to enter the deportation order and failed to properly advise her of her right to appeal. She asserts the district court erroneously denied this motion. Whether the district court erred in failing to dismiss the indictment due to alleged violations of due process in the underlying immigration proceedings is a mixed question of law and fact that we review de novo. See United States v. Aranda-Hernandez, 95 F.3d 977, 980 (10th Cir.1996); cert. denied, 520 U.S. 1144, 117 S.Ct. 1314, 137 L.Ed.2d 477 (1997); United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir.1994). 25 To collaterally challenge an order of deportation in a prosecution under 8 U.S.C. § 1326, the defendant must prove that: 26 (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; 27 (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and 28 (3) the entry of the order was fundamentally unfair. 29 8 U.S.C. § 1326(d) (Supp.1996) (emphasis added).2 This section comports with the constitutional standard for due process set forth in United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). As the Tenth Circuit has cogently stated: 30 A defendant may collaterally challenge a deportation hearing in a 8 U.S.C. § 1326 prosecution if the defendant can show that the deportation hearing was fundamentally unfair and deprived the alien to the right of judicial review. In order to establish fundamental unfairness, the alien must show that he was prejudiced. 31 Meraz-Valeta, 26 F.3d at 998 (citation omitted) (emphasis added); see also Aranda-Hernandez, 95 F.3d at 980. In this case, the government does not dispute that Ms. Wittgenstein had exhausted all administrative remedies available to her. Thus, our analysis concerning the appropriateness of her collateral attack on the underlying deportation order is the same whether we conduct a statutory or constitutional analysis. 32 To prevail, Ms. Wittgenstein must prove both that the deportation hearing deprived her of her right to judicial review and was fundamentally unfair. She can do neither. First, this court heard the merits of her appeal and affirmed the immigration judge's issuance of a deportation order. See Wittgenstein v. INS, 124 F.3d 1244, 1245 (10th Cir.1997). Thus, she certainly cannot show that the deportation proceedings deprived her of her right to judicial review. 33 Additionally, Ms. Wittgenstein cannot show that the deportation hearing was fundamentally unfair. In attempting to establish fundamental unfairness, she first argues that the immigration judge lacked jurisdiction to order her deported. Essentially, she asserts that because she left the country after the deportation hearings began, the immigration judge lost jurisdiction to order her deported. She argues that when she returned to the United States in May 1995, the INS merely "paroled" her into the country, never properly "admitting" her. Thus, she claims that the immigration court could only determine her admissibility and legal status in an exclusion hearing. We need not address this issue because no prejudice resulted from the immigration judge entering a deportation order against her rather than excluding her.3 34 Ms. Wittgenstein admits that she would have been properly excluded from the United States had exclusion rather than deportation proceedings occurred. Regardless of whether Ms. Wittgenstein was deported or excluded, reentering the United States without having obtained the permission of the Attorney General is a violation of 8 U.S.C. § 1326. The only difference Ms. Wittgenstein can point to in this case between exclusion and deportation is that one who is excluded can apply for readmission into the United States after one year, while those who are deported must wait five. In this case, however, Ms. Wittgenstein reentered the country just one month after deportation and did not apply for readmission at all. Thus, no prejudice resulted from deporting Ms. Wittgenstein instead of excluding her. 35 Ms. Wittgenstein further argues that fundamental unfairness resulted from her deportation hearings because the immigration judge unconstitutionally failed to fully advise her as to her right to appeal. The record, however, belies this contention. In a colloquy encompassing six pages of the deportation hearing transcript, the immigration judge advised Ms. Wittgenstein of her right to appeal and the procedures for doing so. At one point, the judge stated, "Should you not file an appeal, or should you file an appeal and your appeal be dismissed, the decision of the Court will become administratively final. The Immigration Service can then require that you submit yourself for deportation; report for deportation." Deportation Hearing Tr. at 613. Towards the end of the discussion, Ms. Wittgenstein demonstrated her knowledge of the time frame in which she had to file notice of her appeal. She stated, "If I understood you correctly, I have to file the notice of appeal by February 5th." Id. at 618. The judge responded affirmatively and gave her the opportunity to ask additional questions regarding the appeal procedure. Thus, the immigration judge properly apprized Ms. Wittgenstein of her right to appeal. We find that no fundamental unfairness resulted from the deportation hearing. III. 36 Ms. Wittgenstein also claims that the district court erred in failing to grant her motion to suppress evidence seized during a search of her residence. She argues that the underlying affidavit lacked any basis for the magistrate to conclude that probable cause existed. We disagree. 37 In determining whether an affidavit contains sufficient information to support a finding of probable cause for the issuance of a search warrant, this court, like the issuing judge or magistrate, must consider the totality of the circumstances and determine whether the affidavit established the probability that evidence of criminal activity would be located in the desired search area. See, e.g., Lawmaster v. Ward, 125 F.3d 1341, 1348 (10th Cir.1997); United States v. Janus Indus., 48 F.3d 1548, 1552 (10th Cir.1995). We grant the magistrate's determination of probable cause " 'great deference' such that we ask only whether the issuing magistrate had a 'substantial basis' for determining probable cause existed." Lawmaster, 125 F.3d at 1348; accord Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Glover, 104 F.3d 1570, 1577 (10th Cir.1997). 38 The magistrate in this case issued a warrant to search 4 West Wildflower, Santa Fe, New Mexico for Ms. Wittgenstein and any documents relating to her alienage or citizenship. Based upon our review of the affidavit in support of the search warrant, we conclude that, when read as a whole, it stated facts sufficient to support the magistrate's determination of probable cause. The affidavit stated that a Special Agent of the New Mexico Attorney General's office had recently seen Ms. Wittgenstein, whom he knew because he had arrested her in the past, in Santa Fe. Furthermore, the affidavit stated that on February 12, 1997, the affiant, INS Special Agent Lee, observed a vehicle registered to Ms. Wittgenstein parked in front of the residence. Finally, the affidavit also stated that Ms. Wittgenstein had listed the 4 West Wildflower house as her address since 1986. Accordingly, we affirm the district court's refusal to grant Ms. Wittgenstein's motion to suppress the evidence obtained by the February 14, 1997, search of her home. 39 Ms. Wittgenstein further argues that the district court erred in denying her motion to suppress evidence obtained through a search of her shoulder bag after her arrest. The documents seized from her shoulder bag are similar to those seized during the search of her residence, both sets providing evidence that she traveled outside the United States and reentered the country in January 1997. Ms. Wittgenstein acknowledges that any error in admitting the evidence from one source would constitute harmless error unless the court should have suppressed evidence from both sources. Because we have upheld the search of her home, we need not confront the constitutionality of the shoulder bag search. IV. 40 Ms. Wittgenstein additionally argues that the court violated Federal Rules of Evidence 404(b) and 403 by admitting testimony of Marybeth Boissonnault that Ms. Wittgenstein had cheated her in a car purchase transaction. Ms. Boissonnault was a former friend to Ms. Wittgenstein and witness for the government. We review the admission of evidence at trial for abuse of discretion. See, e.g., United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998); United States v. Wilson, 107 F.3d 774, 780 (10th Cir.1997). However, even if the trial court erroneously admits evidence, such error does not require reversal if it was harmless. See Wilson, 107 F.3d at 785. 41 Ms. Wittgenstein concedes that even if the trial court abused its discretion in admitting this testimony, it constitutes harmless error unless we reverse the district court's denial of both suppression motions discussed above. Because we upheld the search of Ms. Wittgenstein's residence and refused to reach the merits of the shoulder bag search, we deny relief on this claim. V. 42 Ms. Wittgenstein next argues that the trial court committed reversible error when it limited the jury's consideration of prior inconsistent statements to impeachment purposes only. She claims that Agent Lee's testimony regarding whether he "arrested" Ms. Wittgenstein on February 15, 1997, changed from the time of his pretrial testimony because the government's attorney informed him that "arrest" was an essential element of an 8 U.S.C. § 1326 violation. Although under Federal Rule of Evidence 801(d)(1)(a), prior inconsistent testimony given under oath is admissible as substantive evidence, we find no reversible error. Some dispute exists as to whether Agent Lee's testimony was actually inconsistent. However, even if it were, Ms. Wittgenstein suffered no prejudice as a result of the district court's instruction. Given our above analysis and conclusion regarding the meaning of "arrest" under 8 U.S.C. § 1326, we find that even if the district court's instruction constituted error, it was harmless.VI. 43 Finally, Ms. Wittgenstein disputes the imposition of her $30,000 fine. We review the district court's imposition of a fine within the range set by the Sentencing Guidelines for abuse of discretion. See United States v. Meuli, 8 F.3d 1481, 1487 (10th Cir.1993); United States v. Washington-Williams, 945 F.2d 325, 326 (10th Cir.1991). We accept the district court's findings of fact relating to the defendant's ability to pay a fine unless clearly erroneous. See Washington-Williams, 945 F.2d at 326. After reviewing the record, we find no clear error in the district court's factual findings and hold that the district court did not abuse its discretion in levying this fine against Ms. Wittgenstein. Conclusion 44 Based upon the foregoing analysis and conclusions, we find that the district court committed no reversible error. Therefore, we AFFIRM the conviction of Ms. Wittgenstein under 8 U.S.C. § 1326. 45 PAUL KELLY, Jr., Circuit Judge, dissenting. 46 The court holds that the arrest element of former 18 U.S.C. § 1326 is satisfied by knowledge or notice of a deportation order, and that Ms. Wittgenstein "waived her right to a jury trial with respect to that element" based upon her statements showing that she was aware of the order. See Ct. Op. at 1170. Because service of a warrant of deportation is essential for an arrest (not merely notice of a final deportation order), and because "[t]he Constitution gives a criminal defendant the right to demand that a jury find him guilty of all of the elements of the crime with which he is charged," United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), I respectfully dissent. A. 47 A legally incorrect instruction constitutes error. See United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). While I agree with the court that the district court's instruction understated the legal standard for arrest, so too does the court's formulation. While the court acknowledges that all of the cases it relies upon for the meaning of "arrest" involve service of a warrant of deportation, it still concludes that "these opinions do not stand for the proposition that service is necessary where actual knowledge of a final deportation order exists." Ct. Op. at 1169. The cases plainly require service of a warrant of deportation and do not hold it may dispensed with upon actual knowledge of a final order of deportation, let alone the warrant. See United States v. Bahena-Cardenas, 70 F.3d 1071, 1073-74 (9th Cir.1995) ("We are not aware of any case holding that an alien who was not served with the warrant was 'arrested' under the statute. We agree with the Fifth Circuit and hold that the term 'arrested' in 8 U.S.C. § 1326 requires that a warrant of deportation be served on the alien."); United States v. Quezada, 754 F.2d 1190, 1192 (5th Cir.1985) ( "[A]n 'arrest' under the statute is accomplished by service on the alien of the warrant of deportation, thus providing the requisite notice to trigger criminal sanctions for illegal reentry thereafter."); United States v. Wong Kim Bo, 466 F.2d 1298, 1306 (5th Cir.1972) ("Accordingly, since there is no evidence that a warrant of arrest for deportation was issued or served, the Government failed to prove an element of the criminal offense."). 48 To equate an arrest with mere knowledge or notice of a final deportation order is to ignore that an arrest is accomplished by a warrant of deportation and service. See Bahena-Cardenas, 70 F.3d at 1073 (warrant of deportation must be issued and served). Although the court recognizes that service of a warrant of deportation may give knowledge or notice of a final deportation order, the court's formulation dispenses with an element of the statute (arrest pursuant to a warrant) in favor of one of the purposes of an arrest (notice or knowledge of an order of deportation). I would suggest that an element contained in the statute may not be disregarded merely because one purpose of the element may have been fulfilled by some other means. Otherwise, the meaning of a statute would vary from one expositor to another and policy would eclipse statute. 49 The seminal case discussed "service [of a warrant of deportation] of which constitutes an 'arrest' as we understand the term[:]"Once service has been had, an arrest has been consummated (for purposes of this statute) since thereafter the alien is continually subject to the restraints and orders of the District Director, and in "custody" even though physical surrender may be deferred for several days.... [This] "custody" results from the restraint on liberty attendant upon being subject to the orders of another. The act which effectuates that result--in this case, service of the Warrant of Deportation--must be characterized as an "arrest." 50 Wong Kim Bo, 466 F.2d at 1308 n. 17. No case has been cited upholding a § 1326 conviction where the defendant had not been served with the warrant of deportation, i.e. arrested. See, e.g., Bahena-Cardenas, 70 F.3d at 1073-74 (reversing conviction where defendant was not served); Quezada, 754 F.2d at 1194 ("We further believe that the warrant of deportation in this case establishes the service required by Wong Kim Bo. Appellant's thumbprint on the warrant indicates that the warrant was presented to him prior to departure."); United States v. Hernandez, 693 F.2d 996, 998 (10th Cir.1982) (signature of defendant appeared on reverse side of three of four warrants and INS agent testified that he was the arresting officer each time). Holding that the arrest element could be satisfied on mere notice of an order of deportation, or even the issuance of a warrant of deportation, "would eliminate the arrest element altogether." Bahena-Cardenas, 70 F.3d at 1073. B. 51 The court compounds the problem by determining that the erroneous jury instruction was harmless error. According to the court, the evidence that Ms. Wittgenstein had actual knowledge or notice of the final deportation order constitutes an admission of the "arrest" element, and therefore, she has waived her right to a jury trial on that element. Ct. Op. at 1170. 52 As background, the court's approach goes far beyond deciding the correct law that applies to the evidence and into the realm of applying that law to the facts. Of course, only the jury is empowered to do the latter. 53 After the government has presented its evidence as to each element, and the defendant has had the opportunity to present a defense, if the defendant so chooses, the judge must [correctly] instruct the jury on the law applicable to the issues raised at trial. See United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986). Under Sixth Amendment jurisprudence, the next two steps are strictly for the jury: (1) determining the facts as to each element of the crime, and (2) applying the law as instructed by the judge to those facts. 54 United States v. Johnson, 71 F.3d 139, 143 (4th Cir.1995). 55 In a direct criminal appeal, error committed over objection is generally reviewed under Fed.R.Crim.P. 52(a). Because Ms. Wittgenstein posed a timely objection, the government bears the burden of proving a lack of prejudice in this direct criminal appeal. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. The Supreme Court and this court have described rare situations where an elemental instructional error may be harmless. One, of course, is where the defendant was ultimately acquitted of the relevant charge, and other charges were unaffected. See Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion). In addition, because the right to jury trial may be waived, others are where a defendant admitted the essential element, see id., or stipulated to facts establishing (not merely tending to establish) the essential element, see United States v. Mason, 85 F.3d 471, 472 (10th Cir.1996). 56 Here, Ms. Wittgenstein did not admit the arrest element, nor did she stipulate to facts establishing it. Quite the contrary, the evidence at trial put this element in dispute and she vigorously contended throughout the proceedings that she was never arrested within the meaning of the statute. See I R. doc. 30 at 22-23 (Motion to Dismiss and Memorandum in Support) ("Herta Wittgenstein has not been arrested within the meaning of 8 U.S.C. § 1326(a)."); I.R. doc. 33, Instruction No. K (Defendant's Requested Jury Instructions); I.R. doc. 73; IX R. at 288 (Motion for Judgment of Acquittal at close of prosecution's case-in-chief); IX at 329 (Motion for Judgment of Acquittal at close of all of the evidence); IX R. 325-26, 360-61 (objections to court's jury instructions); IX R. 352 (government's closing argument stating issuance of the warrant of deportation was all that was required, notwithstanding Ms. Wittgenstein's argument that she was never arrested). 57 The government makes but one argument in its effort to carry its burden: that its presentation of overwhelming evidence of service and notice at trial renders the erroneous instruction harmless. The government relies upon language of the Supreme Court stating that "[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed." Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). This approach, however, was unanimously debunked in Yates v. Evatt, 500 U.S. 391, 402-03 n. 8, 111 S.Ct. 1884, 114 L.Ed.2d 432. (1991). It offends a defendant's Fifth and Sixth Amendment rights to a jury determination of guilt beyond a reasonable doubt as to every element of the crime charged. See Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); see also Yates, 500 U.S. at 407, 111 S.Ct. 1884 (reversing because state court's analysis of record evidence left it unclear whether jury verdict "did rest on that evidence"). 58 The Sixth Amendment embodies "a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The jury right "was designed to guard against a spirit of oppression and tyranny on the part of rulers, and was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties." Gaudin, 515 U.S. at 510-11, 115 S.Ct. 2310 (internal quotation marks and citation omitted). To these ends, the Sixth Amendment entitles those accused of serious crimes to more than a hypothetical jury verdict, it entitles them to an actual jury verdict. See Sullivan, 508 U.S. at 280, 113 S.Ct. 2078. If not actual in form, a verdict must at least be actual in fact. See United States v. Holland, 116 F.3d 1353, 1357 n. 3. (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997), overruled on other grounds, Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). 59 To determine whether a jury verdict was actual in fact, courts must initially determine the scope of the record in the context of which the erroneous instruction's affect is to be assessed. See Yates, 500 U.S. at 404, 111 S.Ct. 1884; see also Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. The scope of the record considered must be determined by review of the set of instructions the jury was given, consistent with the customary rule that juries are presumed to have followed their instructions. See Yates, 500 U.S. at 403-04, 111 S.Ct. 1884; Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). To blindly assume the jury considered all of the evidence would fail to ensure that a judgment of harmlessness is made in a manner that preserves a defendant's right to jury trial. See Yates, 500 U.S. at 405-06, 111 S.Ct. 1884. Reviewing courts would engage in a prohibited subjective inquiry into jurors' minds, weighing all of the evidence and necessarily speculating as to whether a jury, if it considered that evidence, would have found guilt beyond a reasonable doubt. See id. at 404-06, 111 S.Ct. 1884. 60 Accordingly, the Supreme Court has repeatedly held that even overwhelming evidence cannot constitutionally substitute for an actual jury finding, whether formal or effective, on an essential element of a serious crime. See Sullivan, 508 U.S. at 279-80, 113 S.Ct. 2078; United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 973 (1947); Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 90 L.Ed. 350 (1946); see also Cabana v. Bullock, 474 U.S. 376, 384-85, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). "[T]he question is not whether guilt may be spelt out of a record," Bollenbach, 326 U.S. at 614, 66 S.Ct. 402, but whether the verdict "actually rendered" was unaffected by the erroneous instruction, Sullivan, 508 U.S. at 279, 113 S.Ct. 2078; see Yates, 500 U.S. at 404, 111 S.Ct. 1884. If the rule were different, the "wrong entity" could determine guilt, and directed verdicts for the government might as well be permitted. See Rose, 478 U.S. at 578, 106 S.Ct. 3101; Sparf v. United States, 156 U.S. 51, 105-06, 15 S.Ct. 273, 39 L.Ed. 343 (1895). 61 Once the scope of the record is determined, Justice Scalia's concurring opinion in California v. Roy provides guidance in an assessment of whether a misdescribed element was nevertheless found beyond a reasonable doubt, so that the misdescription was harmless. The Court in that case was also concerned with "an error in the instruction that defined the crime." California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996). Justice Scalia explained that "[t]he error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well." Id. at 339-40 (Scalia, J., concurring) (emphasis in original) (quoted with approval in Holland, 116 F.3d at 1357). 62 This approach is consistent with this circuit's § 924(c) "use or carry" cases. In those cases, where jury instructions on "use" were faulty after Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the court did not uphold convictions based on overwhelming evidence of "use," notwithstanding the faulty instructions. See, e.g., Holland, 116 F.3d at 1357 (declining to base decision on government's argument). Rather, convictions were affirmed based on other instructions given and the resultant jury consideration of evidence bearing on "carrying," and necessary jury findings of "carrying," an explicit alternative element under the statute. See, e.g., id. at 1359. Convictions were not upheld based on hypothetical jury verdicts, but actual jury verdicts, effective in fact if not in form. See United States v. McDonald, 150 F.3d 1301, 1304-05 (10th Cir.1998); United States v. Durham, 139 F.3d 1325, 1335-36 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 158, 142 L.Ed.2d 130 (1998). 63 The government makes no argument that the instruction at issue, or any other instruction given, indicates the jury considered any evidence of service, much less necessarily found service beyond a reasonable doubt. I can find none, nor can I find any evidence that the jury considered whether Ms. Wittgenstein had knowledge of a final order of deportation under the court's incorrect formulation. Rather, the erroneous district court instruction, like a narrow conclusive presumption, indicates that a jury would not have considered other evidence bearing on an arrest, or notice of a final order of deportation under the court's incorrect formulation. See Yates, 500 U.S. at 403-04, 111 S.Ct. 1884; Johnson, 460 U.S. at 85-86, 103 S.Ct. 969; Carella v. California, 491 U.S. 263, 269, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring). The challenged instruction told the jury that the mere issuance of a warrant constitutes arrest, and issuance was undisputed. Thus, presuming jurors follow their instructions, it would have been a waste of the jurors' time to consider any other evidence of notice, service, or arrest generally. See Sandstrom v. Montana, 442 U.S. 510, 526 n. 13, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Likewise then, neither the challenged instruction, nor any other instruction, indicates a necessary jury finding either embracing service or making it impossible to not also have found service. The government, therefore, has not demonstrated a means to say the jury verdict "actually rendered" on the instructions given was unaffected by the error, only that a jury verdict hypothetically could have been rendered on all of the evidence. Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. This case does not present a Griffin situation because the jury instructions did not provide the jurors any independent alternative ground for finding an arrest. See Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). Instead, the challenged instruction stated that issuance "constitute[d]" arrest. I R. doc. 75. 64 As part of its argument, the government quotes the Supreme Court in Pope v. Illinois, 481 U.S. 497, 503, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), in which it stated, "While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand." The government quotes Pope out of context. In that case, the Court held that an instruction directing the use of a community standard in judging the value of allegedly obscene material rather than a reasonable person standard was potentially harmless error. See id. at 498-99, 501-02, 107 S.Ct. 1918. First, a jury considering whether the material lacked value under a community standard would consider the same evidence under a reasonable person standard. See id. at 503, 107 S.Ct. 1918. Second, the error in Pope would have been harmless if no rational juror who found a lack of value under a community standard (which the jury in Pope did find) possibly could have found value under a reasonable person standard. See id. at 503 & 504, 107 S.Ct. 1918 (Scalia, J., concurring). 65 In this case, however, a jury instructed that mere issuance of a warrant constitutes arrest would not necessarily consider the same evidence of arrest as a jury instructed that service is required. Indeed, the government told the jury that it need not consider any other evidence than issuance of the warrant of deportation.1 Furthermore, it not possible to say that no rational juror who found issuance of a warrant (or notice of a final order of deportation under the court's formulation) possibly could fail to also find service. Issuance and service are dissimilar and unrelated. Thus, "[t]here is no way of knowing here whether the jury's verdict was based on facts within the condemned instructions," or based on notice and service. United Bhd. of Carpenters & Joiners, 330 U.S. at 408, 67 S.Ct. 775. 66 Based on the foregoing, the error in this case was not harmless. Contrary to the government's position and that of the court, see Ct. Op. at 1170 (stating that Ms. Wittgenstein has "waived" her right to a jury trial on the arrest element because she admitted to actual notice of the final deportation order), Ms. Wittgenstein is entitled to an actual jury finding, either formal or effective, on each essential element irrespective of even overwhelming evidence against her. See Mason, 85 F.3d at 472 (trial court may not "remove[ ] the consideration of an issue based upon the strength or similarity of the government's evidence"). To consider misdescription of an essential element harmless based on a judge's assessment of overwhelming evidence alone "would give too much weight to society's interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made." Johnson, 460 U.S. at 86, 103 S.Ct. 969. I would reverse and remand for a new trial. 1 On September 30, 1996, Congress amended 8 U.S.C. § 1326 and omitted the arrest element. See 8 U.S.C. § 1326(a) (Supp.1996). With certain exceptions and subject to certain transitional rules inapplicable here, the amendment did not take effect until April 1, 1997. See Berehe v. INS, 114 F.3d 159, 161 (10th Cir.1997). The government charged Ms. Wittgenstein with violation of 8 U.S.C. § 1326 on March 31, 1997, and therefore, does not benefit from the amendment 2 8 U.S.C. § 1326(d) applies to criminal proceedings, like this case, initiated after April 24, 1996 3 In 1996, Congress amended the Immigration and Nationality Act and made the determination of whether an alien is admissible or deportable part of a single process called a removal proceeding. See 8 U.S.C. § 1229a (Supp.1996). Because this amendment did not take effect until April 1, 1997, it does not affect this case 1 The government stated: [Defense counsel] has spent a lot of time talking about what it means to be taken into custody and arrested, and preserving Ms. Wittgenstein's right to appeal. And I want to make it plain to you what the instruction was that the Court gave. The issuance of a warrant of deportation by the Immigration and Naturalization Service is sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint. The Government's Exhibit 2, the issuance of the warrant of deportation. This by itself constitutes an arrest. IX R. 352.

797 F.2d 977 Austinv.Servac Shipping Line 85-2462 United States Court of Appeals,Fifth Circuit. 8/4/86 E.D.Tex., 794 F.2d 941

537 U.S. 882 DOWNSv.POTTER, POSTMASTER GENERAL. No. 02-74. Supreme Court of United States. October 7, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 848.

274 Md. 264 (1975) 334 A.2d 98 ENGLAND AND EDWARDS v. STATE OF MARYLAND [No. 162, September Term, 1974.] Court of Appeals of Maryland. Decided March 24, 1975. The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ. Gerald A. Kroop and Jacob D. Hornstein, Assigned Public Defenders, for appellants. Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee. LEVINE, J., delivered the opinion of the Court. After a jury in the Criminal Court of Baltimore had convicted petitioners, James Lee Stanley England (England) and Thomas Edwards (Edwards), on charges of rape, perverted sexual practices and assault, the trial judge (Hinkel, J.) sentenced them to imprisonment for the balance of their natural lives on the rape convictions, and suspended the imposition of sentence on the remaining offenses. On appeal to the Maryland Court of Special Appeals, the convictions were affirmed in England and Edwards v. State, *266 21 Md. App. 412, 320 A.2d 66 (1974). We then granted a Writ of Certiorari. The nature and scope of the questions presented on appeal to this Court obviate the need for a detailed account of the crimes. Suffice it to say that on the evening of December 8, 1972, the prosecutrix was abducted at knifepoint by petitioners while walking near her residence in Baltimore, and was taken by them in England's automobile to Druid Hill Park. There, she was repeatedly raped by the use of violence and threats, and was forced to engage in perverted acts. She finally managed to free herself and was driven to her home by the occupants of another automobile. On reaching the safety of that vehicle, she was able to obtain the license number of the England car. Immediately upon arriving at her residence, the prosecutrix telephoned the police. Responding to that call, Officer William Harris arrived at 12:15 a.m. on December 9. She not only furnished him the license number, but provided remarkably detailed descriptions of the assailants and the automobile. She also advised the officer that the driver was called "Lee" by his companion, and that the latter had a pronounced keloid scar on his side which the victim had felt while she was being raped by him. She described the automobile as light in color, having a brown decal or contact paper decorating the front fenders. The prosecutrix was then taken to Central Police Station where, following a medical examination, she readily identified England by selecting his photograph from a group of eight shown to her by Officer Harris. The officer had already learned from the Motor Vehicle Administration that the automobile bearing the tag number furnished by the prosecutrix was owned by England. On that same day — December 9 — Officer Harris and his supervisor went to the England address, but were informed by his mother that he was not at home. He subsequently surrendered to the police on December 11. On December 12, Officer Harris learned from a fellow officer, Detective Giangrasso, that the latter had just *267 observed the automobile at the England residence. He responded to that location and observed, parked in the street in front of the England residence, a yellow Dodge Dart bearing the license number furnished by the prosecutrix. There was a small patterned or textured design along the fender and the front of the car. Noting that the car was unlocked, Officer Harris then called the police crime laboratory and requested that a technician be dispatched to the scene. Together, they conducted a warrantless search of the automobile. Among the objects disgorged by that search — and removed by them — was a soiled towel on which seminal fluid and spermatozoa were found by microscopic examination. The prosecutrix had related to Officer Harris that England had "wiped himself" with a towel which he had pulled from beneath the driver's seat. In addition, Officer Harris obtained a tape recording of a song called "The Coldest Day of My Life" from England's brother at the residence. While the attacks were being carried out, the prosecutrix had heard this song being played on a device mounted on the bottom of the dashboard in the automobile. The officers took photographs of the interior of the automobile which were received in evidence. A motion to suppress the evidence seized from the automobile was denied during the trial. When England was interrogated by Detective Giangrasso at the Baltimore City jail on the 13th, he claimed to have been elsewhere with his girlfriend and one Thomas Edwards while the crimes were being perpetrated. A day or two later, the detective showed five photographs to the victim who readily selected one of petitioner Edwards and positively identified him as the second rapist. At the trial, the prosecutrix, without objection, made positive in-court identifications of both petitioners as her two assailants. These contentions are presented here: 1. That the trial judge erred in refusing to suppress the evidence seized during the warrantless search of the automobile. *268 2. That the trial judge erred in refusing to grant one of petitioner Edwards's requested instructions. 3. That the life sentences imposed upon petitioners were invalid because the trial judge did not explicitly instruct the jury that if it qualified a guilty verdict by adding the words "without capital punishment," the maximum punishment which could then be imposed would be a sentence of 20 years. In the alternative, they urge that we strike down the sentences on the rape convictions as being illegal in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). (1) When the State sought to elicit testimony from Officer Harris regarding the December 12 search conducted by him and the laboratory technician, petitioners moved to suppress any evidence seized from the automobile.[1] The trial judge then excused the jury and heard oral argument from counsel.[2] At the conclusion of the hearing, the trial court denied the motions and, finding there was probable cause to search the automobile coupled with exigent circumstances, admitted the seized evidence under the so-called "automobile exception" to the Fourth Amendment proscription against warrantless searches and seizures. On appeal to the Court of Special Appeals, that court concluded that the search and seizure were illegal because there were no exigent circumstances preventing the police officer from obtaining a warrant to search the automobile, but held that the error was harmless beyond a reasonable doubt, England and Edwards v. State, supra, 21 Md. App. at 416-20. We think that such exigent circumstances were present. *269 As we observed in Mobley and King v. State, 270 Md. 76, 80, 310 A.2d 803 (1973), cert. denied, 416 U.S. 975 (1974), the "automobile exception" had its genesis in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925). In Mobley and King, Chief Judge Murphy said for the Court: "... Under [the `automobile exception'], a motor vehicle, unlike a home, may be searched without a warrant or previous arrest under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of a crime. See, Dyke v. Taylor Implement Mfg. Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). Since the rule is justified on the basis that an automobile is so readily movable as to make impracticable the obtaining of a search warrant, the existence of exigent circumstances must be shown in addition to probable cause to validate the warrantless search. .. ." 270 Md. at 80-81. At the outset, petitioners readily concede that the police, at the time of the search here, had probable cause to believe that the automobile contained the "fruits, instrumentalities or other evidence of a crime." They argue forcefully, however, that there were no exigent circumstances. The cardinal principle upon which petitioners bottom their attack is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. *270 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The "automobile exception" — the only one capable of justifying the search here — is not applicable, they say, because the element of unforeseeability, so essential to its application, is lacking. They rest this contention on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In agreeing with this argument, the Court of Special Appeals also drew heavily upon Coolidge for support. The state counters this argument with the contention that Coolidge, said to be the only "automobile exception" case in which the Supreme Court has found a lack of exigent circumstances, arose out of a unique factual situation and is virtually sui generis. Moreover, it is contended, the element of unforeseeability was present here, since the police had been unable to locate the automobile until just prior to the search on December 12. In short, the state maintains that there were exigent circumstances because the automobile could be quickly moved out of the "locality or jurisdiction"; hence, it was not practicable to obtain a search warrant. Unquestionably, the holding in Coolidge is severely circumscribed by its unusual facts. For example, a search and seizure warrant was actually obtained there, albeit one which was defective because it was issued by the Attorney General of the state acting as a justice of the peace, rather than by "a neutral and detached magistrate." The police had known the identity of the automobile and its owner, and had possessed probable cause to search the vehicle, for several weeks before they actually attempted to do so. These facts alone overwhelmingly established the practicability of obtaining a valid search warrant. The Coolidge automobile was immobilized upon a private driveway, where it had been parked regularly. Not only had he been arrested, but his wife had been placed in what amounted to protective custody in another town before the search was initiated. The Coolidge premises, although totally unoccupied, were nevertheless guarded throughout the night by two policemen. There were no "confederates" who might have moved or destroyed the evidence. In rejecting application of the Carroll doctrine, the *271 Coolidge Court, quoting in part from Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), emphasized that exigent circumstances arise when the car is "`movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.' `[T]he opportunity to search is fleeting....'" 403 U.S. at 460. Thus, the Court said, "by no possible stretch of the legal imagination can this be made into a case where `it is not practicable to secure a warrant,' ... and the `automobile exception,' despite its label, is simply irrelevant." 403 U.S. at 462. The facts here, indeed, stand in marked contrast to those in Coolidge. Although the police had known the identity of the vehicle and its owner for three days, it is apparent that they were unable to locate the car until just before they searched it on the 12th. Only one inference can be drawn from the evidence — that they had been looking for it at the England residence during that entire period. After three days of failure, and with England already in custody and unavailable to drive it, the surprise appearance of the automobile on the street in front of his residence was as much a fortuity as might have been its discovery by the police while parked at some other location, or while it was actually being driven in that neighborhood. Furthermore, the absence of the owner from the car while it was being approached did not necessarily eliminate the mobility factor. Here there was ample opportunity for England's "confederate," who was still at large, to remove the car or its contents just as quickly as it had appeared. One can readily understand why the police officer did not pause to obtain a warrant under those circumstances. The automobile was not only accessible to Edwards and members of England's family, who had a set of keys in their home, but in its unlocked condition, it was fair game for any vandal who, noting the absence of its owner, might have wished to open the unlocked door. Unlike the Coolidge automobile, which was secured in a private driveway, the vehicle here was parked and, for all the police knew, completely unattended on a public street. *272 In Chambers v. Maroney, supra, the Court said: "... Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." 399 U.S. at 51. From what we have said, it is evident that the car here was also movable, that one of its two occupants was alerted, and that the car's contents might never have been found had the police officer interrupted his trip to obtain a search warrant. In short, the criteria postulated by Carroll for establishing exigent circumstances — still recognized by the Supreme Court today — are present in this case. That the car searched here, like its counterpart in Coolidge, was not stopped while being driven on the "open highway," as was the case in Carroll, Brinegar and Chambers, does not defeat the claim of exigent circumstances. Concededly, it is quite likely that in most cases where the claim is advanced, the automobile will be in actual operation. Nevertheless, there is no absolute requirement that an occupied car be stopped on the "open highway" to invoke the "automobile exception." See, e.g., Scales v. State, 13 Md. App. 474, 481-82, 284 A.2d 45 (1971) (search of an unoccupied automobile on apartment house parking lot); United States v. Church, 490 F.2d 353, 354-55 (9th Cir.1973), cert. denied, 42 U.S.L.W. 3631 (U.S. May 13, 1974) (search of an unoccupied automobile parked on public street); United States v. Cohn, 472 F.2d 290, 292 (9th Cir.1973) (unoccupied automobile parked on public street); United States v. Castaldi, 453 F.2d 506, 510 (7th Cir.1971), cert. denied, 405 U.S. 992 (1972) (unoccupied vehicle parked on public street seized after operator in custody); People v. Dumas, 9 Cal.3d 871, 109 Cal. Rptr. 304, 313, 512 P.2d 1208 (1973) (search of unoccupied automobile parked on public street 100 feet from owner's residence); People v. Elaman, 51 *273 Mich. App. 55, 214 N.W.2d 557, 559-60 (1974) (unattended car on parking lot); cf. People v. Brandys, 15 Ill. App.3d 379, 304 N.E.2d 471 (1973), cert. denied, 43 U.S.L.W. 3209 (U.S. Oct. 15, 1974). Nor is the claim of exigent circumstances lost by the action of the police officer in searching the automobile immediately instead of delaying the search until he removed the car to the police station and obtained a warrant. What the Court said in Chambers is apposite: "Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the `lesser' intrusion is permissible until the magistrate authorizes the `greater.' But which is the `greater' and which the `lesser' intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." 399 U.S. at 51-52. In the final analysis, we are confronted here with a situation in which the police officer had as much reason to be concerned with a sudden disappearance of the automobile as he might have had while observing it in movement on the "open highway." Under the particular circumstances which then obtained, it was not unreasonable for him to believe that the opportunity to search was "fleeting." It is unreasonable searches and seizures, of course, that the Fourth Amendment forbids. We are not, in any event, prepared to fault his judgment in determining that it was "not practicable to secure a warrant," since we think he had ample reason to fear that the car might "be quickly moved out of the locality or jurisdiction." We therefore hold there *274 were exigent circumstances present when the search and seizure were made. Hence, the objection to the seized evidence was properly overruled. A caveat is in order. We do not mean to be understood as declaring "open season" on every unattended automobile which the police have probable cause to believe contains the "fruits, instrumentalities or other evidence of a crime." The elements of the exigent circumstances requirement — so necessary to the application of the "automobile exception" — remain. Only when it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought, that is, only when it can be said that the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained, are there exigent circumstances. In short, the opportunity to search must be fleeting. (2) At the conclusion of the evidence, petitioner Edwards submitted the following instruction: "The Court instructs the jury that testimony tending to prove identity be scrutinized with extreme care and that the possibility of human error or mistakes, and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must carefully consider these factors in passing upon the credibility that you attach to each of the witnesses' testimony and you must be satisfied beyond a reasonable doubt as to the accuracy of the witnesses' identification of the Defendant." Although refusing to grant the specific instruction, the court charged the jury meticulously and completely. In addition to carefully explaining the presumption of innocence and the burden of proof, the court included the following: "... The defendant is entitled to every inference in *275 his favor which can be reasonably drawn from the evidence. Where two inferences may be drawn from the same set of facts, one consistent with guilt and one consistent with innocence, the defendant is entitled to the inference which is consistent with innocence. "In making or reaching a conclusion as to the credibility of any witness, and in weighing the testimony of any witness, you may consider any matter that may have a bearing on that subject.... A witness may be impeached by contradictory evidence. That is, if the witness has previously said something, or previously acted in a manner inconsistent with his present testimony. You may consider the demeanor or behavior of the witness on the stand. You may consider whether the witness has any motive for not telling the truth. Whether the witness had full opportunity to observe the matters concerning that which he has testified to; or whether the witness has any interest in the outcome of the case. * * * "The identification of an accused person by a single eyewitness, if believed, may be sufficient to sustain a conviction. Lack of positiveness in identification of an accused person affects only its weight, and the sufficiency of the identification is for your determination. Corroboration of the said identity, if any you find, may give more weight to the witness' testimony. The identification of an accused person by the victim needs no corroboration." Although, when requested to do so, it is incumbent upon the trial judge in a criminal case to give an advisory instruction on every point of law essential to the crime charged if supported by evidence, Hardison v. State, 226 Md. 53, 172 A.2d 407 (1961); Mumford v. State, 19 Md. App. 640, *276 313 A.2d 563 (1974); Carter v. State, 15 Md. App. 242, 289 A.2d 837 (1972), where the point of law embodied in the requested instruction is fairly covered in the instructions actually given, no error is committed by the refusal to grant the requested instruction, Bartholomey v. State, 260 Md. 504, 273 A.2d 164 (1971), modified, 408 U.S. 938 (1972); Cropper v. State, 233 Md. 384, 197 A.2d 112, 16 A.L.R.3d 1069 (1964); Brown v. State, 222 Md. 290, 159 A.2d 844 (1960); Harris v. State, 11 Md. App. 658, 276 A.2d 406 (1971). This principle is dispositive of petitioners' contention. We think that the point sought to be made by the proffered instruction was fairly covered by the thorough instructions given on the burden of proof and the weighing of evidence. McKenzie v. United States, 126 F.2d 533 (D.C. Cir.1942), heavily relied upon by petitioners, as Judge Gilbert said for the Court of Special Appeals, "is both factually and legally inapposite." England and Edwards v. State, supra, 21 Md. App. at 426. We have noted, of course, that only petitioner Edwards submitted the instruction and excepted to its denial. As to England, therefore, this issue is not, in any event, properly preserved for appellate review. Maryland Rule 885.[3] (3) In charging the jury, the court stated: "There are a number of possible verdicts that you may render in these cases.... "Under count one ..., Mr. England is charged with rape. You may return in that count, the verdict of not guilty, guilty, or guilty without capital punishment. If your verdict is guilty, then under the present statute, the law of Maryland, this Court is without the power to impose the penalty of death, but may sentence the defendant to confinement for life; confinement for not more than twenty years, if your verdict is guilty without capital punishment, then the maximum sentence *277 that I may impose may be confinement for not more than twenty years. * * * "Now, as to Mr. Edwards, ... count one again charges that defendant with rape. And you may return the same type verdicts; that is not guilty, guilty, guilty without capital punishment, and the same explanation applies to that count in that indictment...." Later, the court indicated that the possible verdicts would be furnished the jurors in writing while they deliberated. In this Court, petitioners mount a two-pronged attack on those instructions. First, they contend that the court failed to advise the jury with sufficient clarity that it could limit the sentence of the court to 20 years on the rape charges by adding the words "without capital punishment" to its verdict of guilty. Secondly, they argue that the effect of the Supreme Court holding in Furman v. Georgia, supra, is to limit the punishment which can be imposed in the event of a rape conviction to a maximum of 20 years. We find no merit in either contention. What more the court might have said to the members of the jury to advise them of the possible verdicts in this case eludes us. In any event, as we said in the face of an identical contention in Domneys v. Warden, 232 Md. 659, 661, 194 A.2d 443 (1963), cert. denied, 377 U.S. 949 (1964), on facts virtually indistinguishable from those here, "We think there can be no real doubt that the jury was made fully aware that, if it deemed it proper, it could prevent the death penalty (life imprisonment) by qualifying its verdict of guilty by the phrase `without capital punishment.'" The other facet to petitioners' attack on their life sentences arises from what they contend is the effect of Furman on Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 461, which prescribes the possible punishments for the crime of rape.[4] In essence, they argue that the excision of the death *278 penalty provision from § 461 had a modifying effect on § 463, so as to limit the maximum punishment for this crime to a sentence of 20 years.[5] This result is compelled, they say, because these two sections of the Code are "inseparably intertwined." We think the answer to this contention, as did the Court of Special Appeals, is found in the reasoning of the court in Johnson v. Warden, 16 Md. App. 227, 295 A.2d 820 (1972), where Judge Orth said for the court: "... We think that Furman has no effect on § 463. It is true that the court could not impose the death penalty whether or not the jury added the words `without capital punishment' to their verdict, but by adding those words the jury limits the maximum punishment which may be imposed to imprisonment for not more than 20 years. This may be explained to the jury. In other words it was the obvious intent of the legislature that by adding the words of limitation to their verdict the jury could preclude the imposition not only of the death penalty but also of life imprisonment. That intent may still be fulfilled. We hold that Code, Art. 27, § 463 is in full force." 16 Md. App. at 231. In sum, although the language of § 463 would appear somewhat anomalous at a time when there is no death penalty, that section of the Code nevertheless remains intact. When read together with § 461, it reveals a legislative intent that the words "without capital punishment" are to *279 prevent not only the death penalty, but also life imprisonment. Whenever a jury qualifies its verdict by adding those words, the punishment is not to exceed 20 years' imprisonment. We think the jury was properly instructed with respect to the possible verdicts which it might render, and that the court was free to impose a life sentence in the absence of a verdict qualified with the words "without capital punishment." Judgment affirmed. NOTES [1] In addition to seizing the soiled towel and taking the photographs, the police also removed a pair of black-rimmed glasses, a "bath cloth," a napkin and a piece of tissue paper. On appeal, petitioners press their argument only with respect to the towel, the tape player and the tape itself. The tape player, however, was neither seized nor offered as evidence, and the tape was obtained from the England home, not from the automobile. [2] Regrettably, additional testimony, which might have filled some of the gaps we have encountered in this record, was not presented during this hearing. [3] Counsel on appeal did not represent petitioners in the trial of this case. [4] Section 461 provides in relevant part: "Every person convicted of a crime of rape or as being accessory thereto before the fact shall, at the discretion of the court, suffer death, or be sentenced to confinement in the penitentiary for the period of his natural life, or undergo a confinement in the penitentiary for not less than eighteen months nor more than twenty-one years; ..." [5] Section 463 provides in relevant part: "The jury which finds any person guilty of rape under § 461 of this subtitle, ... may add to their verdict the words `without capital punishment,' in which event the sentence of the court shall not exceed twenty years in the penitentiary; and in no such case in which the jury has returned a verdict including the words `without capital punishment' shall the court in imposing sentence, sentence the convicted person to pay the death penalty or to be confined in the penitentiary for more than twenty years."

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-50652 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HUMBERTO RUIZ-GONZALEZ, also known as Humerto Ruiz, also known as Humberto Gonzales Ruiz, also known as Humberto Ruiz, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-564-1-EP - - - - - - - - - - February 15, 2001 Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Humberto Ruiz-Gonzalez appeals his sentence following his guilty plea conviction for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Ruiz argues that his sentence should not have exceeded the two-year maximum sentence under 8 U.S.C. § 1326(a). Ruiz acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 00-50652 - 2 - Ruiz’s argument is foreclosed by Almendarez-Torres, 523 U.S. at 235. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that the judgment of the district court be affirmed and that an appellee’s brief not be required. The motion is granted. AFFIRMED; MOTION GRANTED. 

107 Ariz. 126 (1971) 483 P.2d 541 STATE of Arizona, Appellee, v. Edward Lee MICHAEL, Jr., Appellant. No. 2098. Supreme Court of Arizona, In Banc. April 2, 1971. *127 Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee. John J. Flynn, Phoenix, for appellant. LOCKWOOD, Justice: This is an appeal by Edward Lee Michael, Jr. from the conviction of murder, second degree, resulting from a retrial after his previous conviction was reversed by this Court. See State v. Michael, 103 Ariz. 46, 436 P.2d 595 (1968). Defendant was informed against for murder of an undesignated degree and after his second trial was found guilty by a jury of murder, second degree. He was sentenced from a minimum of ten to a maximum of twenty years in the state prison. From his conviction, denial of motions for new trial and directed verdict and sentence, he appeals. The questions presented for review are: "1. Did the trial court err in failing to suppress evidence obtained as the `poisonous fruit' of inadmissible, involuntary statements of the appellant? "2. Was the search and seizure of the weapons and ammunition in violation of the Fourth Amendment because the items seized were not within appellant's immediate control and thus the search and seizure was not incidental to his arrest? *128 "3. Did the court err in allowing the expert testimony of F.B.I. Agent George Burley based upon his analysis of missing and inadmissible evidence? "(a) Should an expert witness be allowed to testify as to tests conducted upon tangible evidence not produced at trial? "(b) Should an expert witness be allowed to testify as to tests conducted upon unlawfully seized evidence? "4. Did the court err in allowing a neighbor of decedent to give hearsay testimony concerning statements made by the decedent with regard to domestic strife between the latter and appellant? "5. Did the jury instruction on malice aforethought adequately inform the jury of the legal requisites of second degree murder? "6. Did the prosecutor engage in misconduct that improperly influenced the jury? "7. Is the Fifth Amendment requirement that capital crimes be prosecuted by indictment applicable to the states?" The reversal of defendant's previous conviction was based on the admission in evidence of certain incriminating statements by the defendant to police officers before he was advised of his right to remain silent and to have counsel, in violation of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). (Since his first trial occurred before the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, its principles were not involved.) In the present appeal defendant's first two questions challenge the admission in evidence of weapons and ammunition which he contends were the "poisonous fruits" of the oral admissions involved in his first appeal, or in the alternative that such evidence was the product of an unlawful search and seizure. The facts material to our consideration of these arguments are as follows: On July 6, 1965, about midnight, Police Officer Thomas Star was dispatched to investigate a shooting at the defendant's residence in Scottsdale, Arizona. The officer arrived shortly after an ambulance, and was met in the driveway by defendant's father who said "my son just shot his wife. I think she's dead". Officer Star was then escorted by defendant's father to a bedroom in the home where the defendant was lying on the bed. The deceased, Florence Michael, was slumped over in a chair with an apparent bullet wound in her cheek. As the body was being removed from the room by ambulance attendants the defendant arose from the bed and started to follow; Officer Star grasped the defendant's right arm and asked "Where is the gun?"[1] defendant responded "I shot my wife. Is she dead? Please help her." Again Officer Star asked where the gun was and the defendant responded "Its over there." and pointed to the interior of the bedroom with his arm. The defendant's son Timothy, who had entered the room, then opened the desk drawer and said to the officer, "Here it is." Star looked into the drawer and identified a .22 caliber revolver and a .45 caliber automatic both enclosed in holsters and then closed the *129 drawer and accompanied the defendant into the living room. Star then assumed a position which would enable him to observe the bedroom and the defendant. Other officers arrived and placed the defendant under arrest. The incriminating admissions of the defendant and declarations of his father were not admitted in evidence at the second trial, but are taken from the testimony given at the hearings held before and throughout the trial, on defendant's motion to suppress the physical evidence. Such statements are material to the court's determination of whether circumstances existed which would allow a search to be made without a warrant. We believe that the search was reasonable under exceptions enunciated by the United States Supreme Court. The officer had a right and duty to locate the weapon incident to the safety of himself and other persons present at the scene, as well as the obligation to preserve the evidence connected with the crime. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. A.R.S. § 13-1415. In his argument at trial and in this appeal defendant relies upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 as supporting his position that the search exceeded the scope permitted by that decision. Chimel, supra, is not applicable to the facts of this case. Further, since we are dealing with a retrial of a case tried before Chimel, the law as it existed prior to that decision, as summarized in Justice White's dissenting opinion is controlling. Chimel has been held not to be retroactive. Williams v. United States, 418 F.2d 159 (9th Cir.); State v. Bustamante, 11 Ariz. App. 129, 462 P.2d 822; State v. Ramos, 11 Ariz. App. 196, 463 P.2d 91. In Chimel, supra, the absence of probable cause was the reason advance judicial approval of the search had not been obtained. No emergency there existed as it did in the instant case. The physical evidence of the deceased, with an evident gunshot wound visible, coupled with the father's statement that his son had just shot his wife furnished probable cause for the officer to expect to find a gun nearby. The next question is did the evidence become tainted by reason of the defendant's inadmissible statements and co-operation in indicating the location of the guns. A similar problem was presented this Court in the retrial of Miranda, supra, and in State v. Miranda, 104 Ariz. 174, 450 P.2d 364, cert. denied, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 we held: "That the `fruits' doctrine is not a for-the-loss-of-a-nail-a-kingdom-was-lost rule is indicated in Wong Sun v. United States [371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441]. It seems probable that Wong Sun would not have `voluntarily' (83 S.Ct. 419) returned to the office of the Narcotics Bureau (83 S.Ct. 411) to make his incriminating statement if he had not been previously made aware of the physical power of the law when he was arrested `* * * without probable cause or reasonable grounds.' 83 S.Ct. 419. Yet, in Wong Sun, the Court found that the confession was sufficiently `* * * "attenuated to dissipate the taint."' 371 U.S. 490, 83 S.Ct. 419. "It seems to this Court that there is a natural classification of `fruits' into at least three possible categories. The first would be the situation presented in Wong Sun — that of a subsequent confession of the accused himself. The second might be tangibles of evidentiary value. The third might be testimony of witnesses who have personal knowledge of the crime. In declining order, there would usually be a decreasing degree of causal connection between the previous invasion of privacy and the existence of the incriminating evidence and its availability to the prosecution." *130 The specific location of the guns was furnished by the defendant's son Timothy who had placed them in the drawer following the shooting. In his own right as a witness Timothy could disclose the location. However, if we adopt the defendant's theory that Timothy responded to his father's remarks to Officer Star that he was to assist in the search for the weapon then we can conclude that defendant consented to the search and Timothy was his agent. Prior to the decisions in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) a preliminary notification of a right was not held to be a condition precedent to a valid waiver of that right and therefore the facts and law would support the proposition that defendant consented to the search and seizure. Manni v. United States, 1 Cir., 391 F.2d 922, cert. denied, 393 U.S. 873, 89 S.Ct. 166, 21 L.Ed.2d 143; People v. Lyles, 260 Cal. App.2d 62, 66 Cal. Rptr. 799; People v. Trent, 85 Ill. App.2d 157, 228 N.E.2d 535; People v. Smith, 63 Cal. App.2d 779, 48 Cal. Rptr. 382, 409 P.2d 222. In People v. Smith, supra, the California Supreme Court held that the statements of a defendant were inadmissible because of failure of the police to give the warnings required by Escobedo, supra, but the search of the house was held to be lawful by reason of her voluntary consent. The United States Supreme Court referring to the Miranda decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 acknowledges a distinction between testimonial evidence and search and seizure under the Fifth Amendment guarantee against self-incrimination. We hold that the evidence was admissible. Following the arrest of the defendant the murder weapon together with nine cartridges which had been in the cylinder, one of which had been fired leaving an empty casing, the slug which had been removed from the victim and an unknown quantity of extra cartridges which police had obtained in a subsequent search of the defendant's home (without a warrant) were forwarded by the police to the F.B.I. Crime Center in Washington, D.C. At the trial F.B.I. Agent and Ballistic Expert George Burley testified for the state. Defendant contends that such testimony was based upon inadmissible and missing evidence and should have been excluded from his trial. The spent casing was lost prior to the trial and was not introduced in evidence. A photograph, however, was available to the court. The tests performed by Agent Burley had been conducted with the aid of the missing casing and extra cartridges. The trial court refused to admit the extra cartridges in evidence, as having been seized unlawfully in the subsequent search. The agent's testimony was confined to the missing casing and his experience in general with the characteristics of that ammunition, which was identified by manufacturer's name as well as period of manufacture. Whether to permit an expert witness to testify about physical objects not in evidence is within the sound discretion of the trial court, according to the circumstances existing. Patterson v. Chenowth, 89 Ariz. 183, 360 P.2d 202; State v. Romo, 66 Ariz. 174, 185 P.2d 757. We can find no error to the defendant in admitting this limited testimony. The missing shell did not create a handicap to the defendant's ballistics expert who testified to the same matters. The reasonableness of the testimony was a question for the jury. This evidence bore upon the question of whether the wound was self-inflicted by the victim in connection with the asserted defense that the death was a suicide and not murder. The significance of the presence or absence of powder burns can best be explained by an expert and not left to speculation by the jury solely on inference drawn by counsel in closing argument. At the close of the trial the court at defendant's request instructed the jury on missing evidence as follows: "If you find that the State has destroyed or lost, or caused to be destroyed or lost, any evidence whose nature, quality or description is an issue, *131 you may infer that the true fact is against the State's interest." Defendant next contends that the testimony of Annabelle Tomcheck, a neighbor and friend of the deceased who testified relating to statements made by decedent shortly before her death should have been excluded since they were hearsay and inadmissible in the state's case in chief. The prosecution called such witness to establish the "state of mind" of the deceased shortly before her death. Such testimony was not offered for the truth of the statements, but as an exception to the hearsay rule. Udall, Arizona Law of Evidence, § 173 at 353. The witness Tomcheck testified as follows: "Q. Mrs. Tomcheck, would you please tell the jury what Flouncy Michael told you on the night of the 4th of July 1965, which was just shortly before she died? "A. Just what she told me? Can I include my conversation to her? "Q. Tell the jury what she told you that night. "A. She told me that she was going to stay at the Michael residence until the youngest, Bruce, was — he would be out of high school, and she would then get a divorce and go out and start a new life. Her only concern at that time was for the boys. "Q. Did she state how long a period of time this would be? "A. Five years." Defense counsel in his brief maintains such testimony was inadmissible as the deceased's state of mind was not in issue. We cannot agree with defense counsel that the state of mind of deceased was not in issue in view of the earlier statements on that subject by the defense. In cross-examination of the defendant's father Edward L. Michael, Sr. (a state's witness) the following is shown by the record. "Q. BY MR. KESSLER: (Defense Counsel) Mr. Michael, when we described her condition, or her conduct as having ups and downs, can you give any specific examples, do you remember any — observing any experiences, even though they may seem minimal or slight or trivial, which would indicate that she was having moody periods or different types of conduct exhibited? "A. Yes. One Saturday afternoon — this I would call it an `up' — I heard loud voices from the back yard, so I entered the house to learn what was going on just as Flouncy addressed somebody in the living room, the boys among others, and saying, `Your camping trip is off, you can't go.' "MR. DIETTRICH: I object, hearsay testimony by the witness. "MR. KESSLER: Well, your Honor, I'm not so much offering this for what was said but rather for a condition, or a state of mind because I think in this particular case, the state of mind of the deceased is in issue just as much as the defendant's. I'm offering it primarily for this purpose, not for what she said, but how she said it, her demeanor and conduct, so I'm offering for the act itself as opposed to the actual words. "THE COURT: I'll allow it for that purpose." Defendant having opened the door on the issue of "state of mind" in order to prepare the jury to be receptive to a defense cannot object if the other party offers evidence of like nature on the same subject. Turley v. State, 48 Ariz. 61, 75, 59 P.2d 312, 318; Udall on Evidence, § 11. Defendant maintains that the court's instruction on malice was both unintelligible and a misstatement of the law. The reporter's transcript reveals that such instruction as well as defendant's requested instructions No. 7 and No. 8 were incomplete, garbled statements. When compared to the written version in the record from which the court read it is obvious that the error was in the transcribing. Such statements if in fact made would have brought both attorneys to their feet and interrupted the proceedings. No objection was made following the instructions to the jury, although *132 the court made the customary inquiry as to whether there were any further instructions. Defendant does not avow that such statements were made by the court, but rather states that since he had previously objected to the court's standard instruction on malice, from that point forward it was no longer necessary to object concerning that instruction. With this we do not agree. A specific objection to an instruction upon one ground does not raise an objection upon some other ground. Rule 51, Rules of Civil Procedure, 16 A.R.S. Musgrave v. Githens, 80 Ariz. 188, 294 P.2d 674. In reviewing the proceedings below this Court does not look beyond the record on appeal. Crouch v. Truman, 84 Ariz. 360, 328 P.2d 614. See also State v. Rockefeller, 9 Ariz. App. 265, 451 P.2d 623, cert. denied 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199. Defendant objected to a portion of the court's instruction on malice. Defendant contends that such portion of the instruction is not a correct statement of the law and amounts to a comment on the evidence by the court. Defendant requested instead that the court read to the jury the definition of malice as set forth in A.R.S. § 13-451. Upon an examination of the entire instruction given we find no error. State v. Mathis, 92 Ariz. 194, 375 P.2d 388; State v. Preis, 89 Ariz. 336, 362 P.2d 660. Defendant contends that he was deprived of a fair trial as a result of the various occurrences of misconduct of the prosecutor during the trial. We note that counsel for both the defense and the state represented their positions with zeal. Likewise the court's attention was drawn to any possible improper act by the adversary in the form of objections and in the case of the defense, numerous motions for a mistrial, directed verdict and later a new trial. The court heard argument and exercised its discretion and in the absence of an abuse of that discretion this court will not disturb such rulings. The parading between court and chambers and lengthy argument by counsel concerning admissibility of evidence no doubt can be attributed to various changes in the law applicable to admission of evidence which we dealt with previously in this opinion. We do not believe the court abused its discretion in its rulings on the separate alleged "improprieties" of the prosecution, to which defense had raised objection, which in effect was a finding that they were not prejudicial. Early in the development of changes in the law on admissibility of evidence Justice Frankfurter in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, made the observation: "Dispatch in the trial of criminal causes is essential in bringing crime to book. Therefore, timely steps must be taken to secure judicial determination of claims of illegality on the part of agents of the Government in obtaining testimony. To interrupt the course of the trial for such auxiliary inquiries impedes the momentum of the main proceeding and breaks the continuity of the jury's attention. * * * And if such a claim is made after the trial is under way, the judge must likewise be satisfied that the accused could not at an earlier stage have had adequate knowledge to make his claim. The civilized conduct of criminal trials cannot be confined within mechanical rules. It necessarily demands the authority of limited direction entrusted to the judge presiding in federal trials, including a well-established range of judicial discretion, subject to appropriate review on appeal, in ruling upon preliminary questions of fact. * * *" Defendant's final contention that, the trial upon information and not indictment was a violation of his Fifth Amendment rights was also raised in his first appeal, we have held it to be without merit. State v. Michael, supra, 103 Ariz. at page 47, 436 P.2d 595. State v. Foggy, 101 Ariz. 459, 420 P.2d 934, cert. denied, 386 U.S. 1025, 87 S.Ct. 1386, 18 L.Ed.2d 468, *133 rehearing denied, 387 U.S. 938, 87 S.Ct. 2060, 18 L.Ed.2d 1008. We are of the opinion that the defendant was accorded a fair and impartial trial. The judgment of the Superior Court of Maricopa County is affirmed. STRUCKMEYER, C.J., HAYS, V.C.J., and UDALL and CAMERON, JJ., concur. NOTES [1] In his first trial we found that the case had reached the accusatory stage and we said in 103 Ariz. at page 49, 436 P.2d at page 598: "* * * Defendant had started to follow the body as it was being removed from the room, but Star took hold of his arm, stopped him and asked, `Where is the gun?' In effect this was telling defendant that he (defendant) had knowledge of where the gun was that had been used in killing the deceased, which was asking defendant to furnish evidence which would be used against him at the trial. He had not been advised of his rights. Star had stopped defendant while he was following the attendants who were removing the body of the deceased from the room, evidently for the purpose of eliciting incriminating statements. The question was therefore not just in the investigatory stage, but had begun to focus on defendant as a particular suspect, and had therefore reached the accusatory stage."

October 15, 2015 JUDGMENT The Fourteenth Court of Appeals REBECCA VICTORIA HUMARAN, Appellant NO. 14-14-00421-CR V. THE STATE OF TEXAS, Appellee ________________________________ This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED. We further order this decision certified below for observance. 

410 F.3d 51 TEVA PHARMACEUTICAL INDUSTRIES LTD. and TEVA PHARMACEUTICALS, USA, INC., Appellantsv.Lester M. CRAWFORD, Jr., Acting Commissioner of Food and Drugs, et al., Appellees No. 05-5004. United States Court of Appeals, District of Columbia Circuit. Argued May 9, 2005. Decided June 3, 2005. Appeal from the United States District Court for the District of Columbia. (No. 04cv01416). William H. Rooney argued the cause for appellants. With him on the briefs were Theodore C. Whitehouse and James N. Czaban. William A. Rakoczy, Christine J. Siwik, Amy D. Brody, and Lara E. Monroe-Sampson were on the brief for amicus curiae Mylan Pharmaceuticals, Inc. in support of appellants. Jeffrey S. Bucholtz, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, Eugene M. Thirolf, Director, Andrew E. Clark, Attorney, Alex M. Azar, II, General Counsel, Food & Drug Administration, and Eric M. Blumberg, Deputy Chief Counsel. Bert W. Rein argued the cause for appellees Pfizer Inc., et al. With him on the brief were Karyn K. Ablin and Jeffrey B. Chasnow. Before: GINSBURG, Chief Judge, and SENTELLE and ROGERS, Circuit Judges. GINSBURG, Chief Judge. 1 Teva Pharmaceutical Industries has sued to overturn the Food and Drug Administration's denial of its "citizen petition" requesting that the agency prohibit Pfizer, Inc., the holder of the approved New Drug Application (NDA) for gabapentin, from marketing that drug in "generic" form during the 180-day exclusivity period provided by the Drug Price Competition and Patent Term Restoration Act, also known as the "Hatch-Waxman Amendments" to the Food, Drug, & Cosmetic Act. Because the exclusivity provision does not apply to the holder of an approved NDA, the district court entered a summary judgment for the FDA, which we now affirm. I. Background 2 Section 355(j) of 21 U.S.C. provides that a drug manufacturer may submit an "Abbreviated New Drug Application" (ANDA) for approval to market a so-called "generic" drug, which is the bioequivalent to a "branded" drug previously approved pursuant to a NDA filed under 21 U.S.C. § 355(b). Unlike a NDA, an ANDA need not contain clinical evidence of the safety or efficacy of the drug. 3 The ANDA must certify either that the approved product is not protected by a patent or "that such patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug for which the application is submitted." 21 U.S.C. § 355(j)(2)(A)(vii)(para.IV). The statute rewards the first generic applicant successfully to challenge the patent on an approved drug with a 180-day exclusivity period during which no other ANDA for the same drug may be approved. Id. at § 355(j)(5)(B)(iv).* 4 Teva entered into an agreement by which Purepac Pharmaceutical Co ., the first ANDA filer to challenge the patent for gabapentin, agreed to share its exclusivity period with Teva in exchange for a portion of Teva's revenues. During that period, which ends on June 6, 2005, Pfizer has marketed its own "generic" version of gabapentin, which it has priced substantially below its name-brand equivalent (Neurontin), packaged in "generic" trade dress, and distributed through many of the same channels Teva uses for its generic product. Pfizer's so-called "brand-generic" or "authorized-generic" gabapentin qualifies for "generic substitution" under state laws and third-party purchasing plans, such as HMO formularies, and thus has competed directly with Teva's product during its period of exclusivity. 5 Teva petitioned the FDA first simply to "prohibit the marketing and distribution of `authorized generic' versions of brand name products until after the expiration of any '180-day exclusivity period' applicable to an [ANDA] for the drug product." Teva argued in the alternative that the FDA should "require Pfizer to submit a pre-approval supplemental new drug application (sNDA) [under 21 U.S.C. § 356a(d)] before marketing or distributing any version of [a name-brand drug] changed in any way such that the product purports to be, resembles, or could be confused with, a generic (unbranded) version of [the drug]." 6 By letter of July 2, 2004 the FDA denied Teva's petition, concluding § 355(j)(5)(B)(iv) "does not contemplate or countenance delaying the marketing of authorized generics." The Agency further held "there is no statutory basis for imposing categorical approval requirements for the marketing of authorized generics, as a means to prevent their marketing during a 180-day exclusivity period applicable to the drug under an ANDA." 7 Teva then brought this action in the district court, which, like the Agency, concluded that "[n]othing in the statute provides any support for the argument that the FDA can prohibit NDA holders from entering the market with [an authorized] generic drug during the exclusivity period." Teva Pharm. Indus. v. FDA, 355 F.Supp.2d 111, 117 (D.D.C.2004). The court granted summary judgment for the FDA and Intervenor-defendant Pfizer, from which Teva now appeals. II. Analysis 8 Teva urges this court to adopt what it calls a "functional" interpretation of § 355(j)(5)(B)(iv), arguing that "literal interpretation cannot defeat statutory purpose"; the Congress's purpose, according to Teva, was to grant the first ANDA filer complete exclusivity in the generic market for 180 days. The FDA and Pfizer argue the words the Congress chose simply cannot bear the result Teva seeks. 9 We review the FDA's interpretation of the Act it administers under the two-step framework of Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1279 (D.C.Cir.2004) (reviewing FDA letter ruling on generic exclusivity under Chevron). We do not reach step two, however, if the court, "employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue[;] that intention is the law and must be given effect." Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. Of the traditional tools of statutory construction, the "cardinal canon" is the first: We "must presume that a legislature says in a statute what it means and means in a statute what it says .... When the words of a statute are unambiguous ... this first canon is also the last: judicial inquiry is complete." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). 10 Section 355(j)(5)(B)(iv) says nothing about how the holder of an approved NDA may market its drug; rather, that provision grants "exclusivity" to the first to file an ANDA containing a paragraph IV certification by delaying the effective date upon which the FDA may approve any subsequent ANDA containing a paragraph IV certification with respect to the same drug. Further, as the FDA explained in its decision letter, other provisions of the Act "establish[ ] numerous express grounds for refusal to approve [a NDA], and ... grounds for compelling the withdrawal of previously approved products .... [but none] addresses marketing arrangements in any manner." See 21 U.S.C. § 355(d) & (e). Indeed, as Teva's counsel conceded at oral argument, prior to the Hatch-Waxman Amendments, nothing in the Act prohibited the holder of an approved NDA from marketing a "brand-generic" version of its drug; thus Teva asks the court to declare that a previously lawful practice became unlawful when the Congress passed a statute that said nothing about that practice. 11 Teva's argument proceeds from the following premises: (1) the purpose of the 180-day exclusivity period was "to encourage generic companies to file Paragraph IV challenges to brand-drug patents"; (2) the marketing of a brand-generic competitor during that period will reduce the revenues going to the first to file an ANDA; and (3) such "brand-generic intrusion [into the exclusivity period] developed only recently as a routine brand-company business strategy." Neither the FDA nor Pfizer disputes any of these propositions. The parties part company, however, when Teva goes on to argue that because the Congress could not have anticipated brand-generic competition during the exclusivity period, adhering to the "literal" terms of the statute would lead to an absurd result, namely, that § 355(j)(5)(B)(iv) grants only a "meaningless" exclusivity against subsequent ANDA filers rather than a "commercially effective" exclusivity that runs against the NDA holder as well. 12 It does not follow, however, from the Congress having intended to create an incentive to challenge brand-drug patents—as it clearly did—that the incentive it created is without limitation. Rather, as even the formal name of the Hatch-Waxman Amendments (the Drug Price Competition and Patent Term Restoration Act) reflects, the Congress sought to strike a balance between incentives, on the one hand, for innovation, and on the other, for quickly getting lower-cost generic drugs to market. Because the balance struck between these competing goals is quintessentially a matter for legislative judgment, the court must attend closely to the terms in which the Congress expressed that judgment. As Teva itself points out, without any apparent sense of irony, the FDA may not 13 revise the specific statutory incentive that Congress enacted or ... alter the means chosen by Congress to implement its purpose by offering a different incentive. See MCI Telecommunications Corp. v. AT & T, 512 U.S. 218, 231 n. 4, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (stating that agencies "are bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed for the pursuit of those purposes"). 14 The means the Congress "deemed appropriate, and prescribed" to give generic drug makers an incentive to challenge brand-drug patents is unambiguous: The FDA may not approve a second or later ANDA containing a paragraph (IV) certification until 180 days after the first filer with such a certification begins commercially marketing the drug or wins a court decision against the patent holder. There is simply no way to read that limitation upon what the FDA may do in such a way as to prevent the holder of an approved NDA, which does not need to file an ANDA and certainly would not challenge its own patent, from marketing a brand-generic product. Nor, contra Teva, is the result of reading the Act as it is written to render "meaningless" the "specific statutory incentive that Congress enacted." For 180 days the generic market is the exclusive preserve of two firms; absent an agreement of the sort by which Teva itself entered the market for generic gabapentin, no other firm may enter and take any part of either company's market share. 15 Finally, nothing in § 356a(d)—which allows the FDA to require the holder of an approved NDA to submit a supplemental application for "manufacturing changes that are not major"—permits the agency to create a de facto type of exclusivity against the NDA holder's brand-generic drug. As the FDA points out, the purpose of requiring a sNDA is to "validate[ ] the effects of the change [in manufacturing] on the identity, strength, quality, purity, and potency of the drug as [they] may relate to the safety or effectiveness of the drug," 21 U.S.C. § 356a(b). The FDA may not, as it says, "require sNDAs ... for reasons wholly unrelated to the safety or efficacy of the brand company's product." Nor may the FDA use this general authority to expand the specific but more limited grant of exclusivity in § 355(j)(5)(B)(iv). Cf. Am. Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C.Cir.1995) ("general grant of rulemaking power ... cannot trump specific portions of the [statute]"). III. Conclusion 16 We hold § 355(j)(5)(B)(iv) of the Act clearly does not prohibit the holder of an approved NDA from marketing, during the 180-day exclusivity period, its own "brand-generic" version of its drug. We therefore do not reach Teva's argument that the FDA previously interpreted that section in a manner inconsistent with its ruling in this case. For the foregoing reasons, the judgment of the district court is 17 Affirmed. Notes: * Prior to December 2003, § 355(j)(5)(B)(iv) provided: If the [ANDA] contains a certification described in subclause (IV) ... and is for a drug for which a previous [ANDA] has been submitted under this subsection [containing] such a certification, the [ANDA] shall be made effective not earlier than one hundred and eighty days after— (I) the date the Secretary receives notice from the applicant under the previous [ANDA] of the first commercial marketing of the drug under the previous [ANDA], or (II) the date of a decision of a court in an action ... holding the patent which is the subject of the certification to be invalid or not infringed, whichever is earlier. The Medicare Prescription Drug, Improvement, and Modernization Act of 2003(MMA), Pub.L. No. 108-173, 117 Stat.2066 (Dec. 8, 2003), amended this provision, but it did not substantively alter the statutory provisions at issue in this case. Because the decisions of the FDA and of the district court refer to the pre-MMA text, we do so as well.

                                                             11th Court of Appeals                                                                   Eastland, Texas                                                                         Opinion   Sarah Elizabeth Hauser Appellant Vs.                   No. 11-03-00115-CR B Appeal from Collin County State of Texas Appellee   This is an appeal from an order placing Sarah Elizabeth Hauser on community supervision without  adjudicating her guilt.  Appellant entered a plea of guilty to the offense of possession of more than 4 grams but less than 400 grams of 3,4-methylenedioxy methamphetamine (ecstasy). Pursuant to the plea bargain agreement, the trial court deferred the adjudication of guilt and placed appellant on community supervision for 3 years and assessed a $750 fine.  We affirm. In her sole issue, appellant argues that the trial court abused its discretion in denying her motion to suppress the drugs recovered from her vehicle.  Appellant contends that there was no state law to support her initial detention by the police officers and that the State failed to produce any evidence that probable cause existed. In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997).  We must afford the same amount of deference to the trial court=s rulings on “mixed questions of law and fact,” such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Guzman v. State, supra at 89.  Appellate courts, however, review de novo “mixed questions of law and fact” not falling within the previous category.   Guzman v. State, supra.  When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling “turns” on an evaluation of credibility and demeanor.  Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998).  A question “turns” on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.  Loserth v. State, supra.  We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case.  Guzman v. State, supra. Dallas Police Officer Russell Sanchez testified that he and his partner were dispatched on a possible burglary call to Jayson Wesley Valcik=s apartment.  Valcik described the items that had been stolen from his apartment.  While Officer Sanchez was present, Valcik received a phone call from  appellant.  Appellant was identified as a possible suspect, and Officer Sanchez was told that she was driving a “white detailed in color” Rav 4 SUV.  As they were leaving the apartment complex, Officer Sanchez and his partner saw a vehicle that matched the description of appellant=s vehicle.  The officers stopped the vehicle.  As he approached the vehicle, Officer Sanchez saw appellant sitting in the driver=s seat, a male sitting in the passenger=s seat, and several items that matched Valcik=s description of his missing property.  The officers arrested appellant for theft and the passenger for public intoxication.  A search of appellant=s vehicle revealed a tin can and a small purse, both of which contained several different types of narcotic items.  There was also a list of names and phone numbers.  Officer Sanchez also found a small packet of loose pills.  On cross examination, Officer Sanchez stated that Valcik had told the officers that the phone call was from appellant and that appellant had his property.  Officer Sanchez also stated that Valcik never told him that the items were not stolen.  Officer Sanchez stated that, while appellant had failed to signal as she pulled out of a parking lot, the “real” reason the officers stopped her was that they had reason to believe that the vehicle contained a possible suspect from a recent crime.  Valcik testified on behalf of appellant.  Valcik stated that, when he got home, his apartment was empty.  He called his dad and asked what should he do.  Valcik followed his father=s advice and called the police.  Valcik called the police a second time and said that he thought he saw someone in his apartment.  Valcik remembered Officer Sanchez as one of the officers who came to his apartment.  While the officers, including Officer Sanchez, were present, appellant called Valcik.  Valcik told the police that appellant had his “stuff” and that she was going to bring it back.  Valcik also told the officers that he owed her some money and that “it” was between appellant and him.  As far as Valcik was concerned, there was no theft.  Valcik also testified that appellant drove a green Rav 4.  The trial court was the sole judge of the credibility of the witnesses= testimony.  Guzman v. State, supra.  The trial court could have reasonably concluded from the testimony that the primary reason Officer Sanchez and his partner stopped appellant was that appellant=s vehicle matched the description that they had been given.  Once they saw the stolen property in appellant=s car and placed her under arrest for theft, Officer Sanchez and his partner had the authority to search appellant=s vehicle incident to her arrest.  New York v. Belton, 453 U.S. 454 (1981); Busby v. State, 990 S.W.2d 263 (Tex.Cr.App.1999).  Appellant=s arguments contending that the search was a result of an invalid initial traffic stop are overruled. Appellant also argues that the State=s failure to call Officer Sanchez=s partner or any officer who actually arrested appellant resulted in the State “wholly [failing] in its burden to show that the unidentified officer had probable cause to arrest [appellant].”  We disagree.  The record reflects that the trial court had ample evidence to find probable cause.  Officer Sanchez testified that appellant had property in her vehicle that matched Valcik=s description of his missing property.  It was undisputed that the property had been removed from Valcik=s apartment without his knowledge or permission.  Appellant=s arguments concerning probable cause are overruled.  Appellant=s sole issue on appeal is overruled. The judgment of the trial court is affirmed.   TERRY McCALL JUSTICE   September 25, 2003 Do not publish.  See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.        

195 Va. 138 (1953) RICHARD L. MEAGHER, ET AL. v. APPALACHIAN ELECTRIC POWER COMPANY, A CORPORATION. Record No. 4101. Supreme Court of Virginia. September 10, 1953. Dodson & Pence, Earl A. Fitzpatrick and Jack B. Coulter, for the appellants. Present, Eggleston, Spratley, Buchanan, Miller and Whittle, JJ. 1. The erection by defendant of high voltage transmission towers on lots owned by it in certain residential subdivisions was a violation of a covenant and restriction applying to the land that no portion of it should be "improved or occupied for other than residential purposes." 2. The restrictive covenants applicable to all lots in the subdivisions involved constituted a property right in favor of those for whose benefit they were imposed. Hence defendant's breach of the covenants binding on its lands in these subdivisions constituted a taking or damaging of property rights for which compensation must be paid; and the taking of such property without just compensation by a corporation having the power of eminent domain could be prevented by injunction. 3. Owners of lots in the subdivisions who bought their property before defendant acquired its lands therein were clearly entitled to injunctive relief; as was one who bought after defendant's purchase but before defendant breached the applicable covenants. Nor was it material in the latter case that the purchase was made with knowledge of defendant's intended use of its property. 4. An owner who had sold his lot in the subdivisions prior to the time of defendant's breach of the covenants was not entitled to injunctive relief, having an adequate remedy at law for any damages suffered from having to sell at a reduced price. 5. Owners of lots in a subdivision adjoining those in which defendant was erecting its transmission towers had no ground for relief against defendant for its breach of the restrictive covenants applying in the latter subdivision. Though the enforcement of such covenants does not depend on privity of contract but on the intention of the parties imposing them, the facts of the instant case negatived any intent to make them applicable for the benefit of property owners in any other subdivision. Appeal from a decree of the Circuit Court of Roanoke county. Hon. Earl L. Abbott, judge designate presiding. The opinion states the case. Woods, Rogers, Muse & Walker, for the appellee. EGGLESTON EGGLESTON, J., delivered the opinion of the court. This is an appeal from a final decree sustaining a demurrer to and dismissing the bill of complaint filed by Richard L. Meagher and others, hereinafter called the plaintiffs, against the Appalachian Electric Power Company, hereinafter called the defendant, seeking alternative relief against the defendant for the erection of high-voltage transmission towers on certain lots owned by it, which erection the plaintiffs claimed was in violation of the restrictive covenants binding on the lands of the plaintiffs and the defendant. The plaintiffs sought either to have the defendant corporation enjoined from using its property for other than residential purposes, or alternatively, to require it to exercise its privilege of eminent domain with respect to the alleged property rights of the plaintiffs. *140 The principal allegations of the bill may be summarized thus: The plaintiffs, Richard L. and Laura A. C. Meagher, W. Earl Allen, Jr., and Mildred H. Allen, and Charles S. Patton, Jr., and Frances S. Patton, are fee simple owners of certain lots of land lying in an "exclusively residential" subdivision known as "Grubb Land Development" in Roanoke county, just west of the city of Roanoke. The Meaghers and the Allens acquired their properties in 1948, and the Pattons acquired theirs in 1951. Prior to 1950 another of the plaintiffs, Herman Weaver, acquired certain lots in a similar residential development known as "Crestmoor," which is adjacent to and immediately south of the Grubb Land Development. The deeds whereby these several properties were conveyed were expressly made subject to certain covenants, conditions and restrictions, which by recorded instruments had been imposed on and ran with all of the lands in the two subdivisions for a period of fifty years from January 1, 1946. Among the covenants and restrictions were these: "All persons who shall acquire any land described in this deed shall take and hold the same, and agree and covenant with the proprietors of said land, and their assigns and each of them, to conform to and observe the following restrictions and conditions as to the use thereof. * * *" * * * "(2) No portion of the land hereby conveyed shall be improved or occupied for other than residential purposes, and no flat, apartment house, trailer, or temporary living quarters shall be erected thereon." * * * "(6) No intoxicating liquors shall be sold on any of the premises hereby conveyed, nor shall any cows, hogs, or sheep be kept thereon; nor shall any noxious or offensive trade be carried on upon any lot, nor shall anything be done thereon which may be or become a nuisance to the neighborhood." *141 In April, 1950, the Appalachian Electric Power Company purchased from Marcia Johnston and Robert L. Brown, respectively, certain lots in the Grubb Land Development, and in March and April, 1950, it acquired from H. G. Cole, Jr., Olen F. Levell, Jr., and Lawrence D. Johnson certain lots in the Crestmoor subdivision. Whether the several deeds by which these properties were acquired were expressly made subject to the covenants and restrictions which had been imposed on the lands is not disclosed in the bill. However, it is alleged that the defendant took the several properties with constructive notice of the covenants and restrictions which had been expressly incorporated in prior deeds in the defendant's chains of title, and that hence its acquisition of the property was subject thereto. The plaintiffs, T.J. and Nellie G. Orander, Robert P. and Maude M. Grogan, Florence L. John, Lake L. Newton, and George W. and Miriam B. Parsons, are the owners of properties in a residential district known as "Belle Air" subdivision, which lies immediately to the east of the Grubb Land and Crestmoor subdivisions. The bill alleges that these Belle Air owners acquired their properties by deeds which were expressly subject "to the identical covenants, restrictions and conditions applying to the Crestmoor subdivision." The plaintiffs, J. Kyle Montague and Lucy M. Montague, are the former owners of the property in the Grubb Land subdivision now owned by the Pattons, having conveyed it to them in May, 1951, and after the defendant had acquired its properties in the vicinity. The bill alleges "That relying upon the residential character of this area as assured by the aforesaid several separate sets of restrictions, covenants and conditions, which being equitable servitudes enured to their benefit and thereby constituted vested property rights, the complainants at great cost and expense planned for" and constructed their respective residences. It is further alleged that in violation of the "duly recorded covenants, restrictions and conditions" binding upon *142 the lands which the defendant had acquired in these subdivisions, and over the protest of the plaintiffs, the defenant has erected "for commercial use" "a large, unsightly, obnoxious and dangerous steel tower," standing over 100 feet high, "with three crossarms and seven high-voltage transmission lines," on the lot in the Grubb Land subdivision which it acquired from Marcia Johnston, and a similar tower on the lot in the Crestmoor subdivision which it acquired from Lawrence D. Johnson, and has announced its plan to erect similar towers, and for the same purpose, on the other lots which it owns in these subdivisions. These acts of the defendant, it is alleged, have the effect of "greatly detracting from the value of the general area as an exclusively residential district," constitute a violation of "the vested property rights" of the plaintiffs which had been secured to them by such restrictions, and a taking and damaging of their properties without due process of law. There is no allegation that any of the defendant's structures have been located or are planned to be located on, or that any of its transmission lines will cross over, any of the lots located in the Belle Air subdivision. The prayer of the bill is in the alternative, that the defendant corporation "be enjoined from using its property for other than residential purposes and be required to conform with and abide by the restrictions, covenants and conditions applying to its lands;" or, if injunctive relief be denied, "that the defendant corporation then be ordered to exercise forthwith its privilege of eminent domain with respect to the rights" of the plaintiffs, as required by law. In its demurrer, which was sustained, the defendant advanced these propositions: (1) The use of its property for the purpose stated does not violate any of the restrictive covenants which attached thereto; (2) The plaintiffs' rights in the restrictive covenants are not "property" within the meaning of section 58 of the Constitution and the laws of the State, with respect to the taking and damaging of property for public uses; (3) No element of damage compensable under the Constitution and the laws of the State is alleged; *143 (4) The several plaintiffs whose properties are located in the Belle Air subdivision have no enforceable interest in the alleged breach of the Grubb Land and Crestmoor restrictions, nor has any of their property been taken or damaged within the meaning of the Constitution and the laws of the State; (5) Neither the Montagues nor Pattons have any rights in law or in equity to the relief sought, the Montagues having sold their interest in the property, and the Pattons having acquired it with full notice and knowledge of the defendant's intended use thereof. In its written opinion the trial court found it unnecessary to pass upon the first point raised by the demurrer, but sustained the others. We are of opinion that the use and intended use by the defendant of its lands in erecting the steel transmission towers thereon violate the covenants, restrictions and conditions applying to the lands. It is plain that the clear intent of those who imposed the restrictions was to assure that the area be used exclusively for residential purposes. By the terms of the covenants and restrictions "all persons who shall acquire any land" in the subdivisions were to "take and hold the same," and agreed "to conform to and observe" the recited "restrictions and conditions as to the use" of the lands. One of the covenants is that "No portion of the land * * * shall be improved or occupied for other than residential purposes, * * *." (Italics supplied.) The restriction is on both the nature of the improvement, that is, the type of structure to be erected on the land, and the use or occupancy of the property. Both are confined to "residential purposes." Manifestly, the erection of a 100-foot steel tower to support high-voltage transmission wires is both an improvement and occupancy "for other than residential purposes." The covenants here are quite different from those in Stokely Owens, 189 Va. 248, 52 S.E.(2d) 164, upon which the defendant relies. There the type of construction was limited to a residence, with an additional covenant that "no noxious or offensive trade or activity" should be *144 carried on upon the property. We held that these restrictions, read together, did not exclude a commercial business conducted in a residence unless it were "noxious or offensive." Here the restriction, as has been observed, excludes both the type of improvement and use of the property "for other than residential purposes." The next question is whether the restrictive covenants applicable to all of the lots in the subdivisions are a property right in favor of those for whose benefit they were imposed. The precise question has not heretofore been presented to this court and the decisions from other jurisdictions are in conflict. In the recent case of City of Raleigh Edwards, 235 N.C. 671, 71 S.E.(2d) 396, there is a clear and concise discussion of the subject. There the city of Raleigh instituted condemnation proceedings to acquire property in a subdivision for the erection of a water tower. Several property owners in the subdivision intervened and asserted the claim that the proposed public improvement was in violation of the covenants restricting the use of the property in the subdivision to "private dwelling purposes only," and would deprive them of vested property rights of substantial value created by such covenants, and entitle them to compensation therefor. After a careful review of the authorities the court thus expressed its agreement with that view: "* * * the decided weight of authority in other jurisdictions supports the proposition that such a restriction, being in the nature of an equitable servitude, is an interest in land and must be paid for when taken. The theory is that these restrictions impose negative easements on the land restricted in favor of and appendant to the rest of the land in the restricted area, and when a particular parcel thereof is appropriated for a public use that will violate the restrictions, such appropriation amounts in a constitutional sense to a taking or damaging of property of the other landowners for whose benefit the restrictions are imposed. 18 Am. Jur., Eminent Domain, | 157, p. 788; Annotations: 17 A.L.R. 554; 67 A.L.R. 385; 122 A.L.R. 1464. *145 " "It is true that such other landowners may not enforce the restrictions against the condemnor, but they are none-theless entitled to an award of compensation 'where, through the exercise of the power of eminent domain, there is a taking or damaging of such property rights * * *.' 18 Am. Jur., Eminent Domain, | 157, p. 788. * * *" (71 S.E.(2d), at page 401.) The North Carolina court declined to follow the minority view which, it said, "is grounded on the theory that these restrictions, being contractual rights enforceable in equity only between parties in privy, do not constitute an interest in property at all." (71 S.E.(2d), at page 401.) Among other authorities taking the majority view are, Ladd City of Boston, 151 Mass. 585, 24 N.E. 858, 21 Am.St.Rep. 481 (opinion by Holmes, J.); Riverbank Improvement Co. Chadwick, 228 Mass. 242, 117 N.E. 244, L.R.A. 1918B, 55; Johnstone Detroit, etc. R. Co., 245 Mich. 65, 222 N.W. 325, 67 A.L.R. 373; Peters Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A.L.R. 543; Flynn New York, etc. R. Co., 218 N.Y. 140, 112 N.E. 913, Ann. Cas. 1918B, 588. See also, Nichols' The Law of Eminent Domain, 3d ed., Vol. 2, | 5.73, pp. 81-84. A leading case presenting the minority view is Anderson Lynch, 188 Ga. 154, 3 S.E.(2d) 85, 122 A.L.R. 1456, where the principal authorities relied upon by the defendant here are collected. Our previous decisions have clearly indicated that restrictive covenants create a valuable right in property. In Spilling Hutcheson, 111 Va. 179, 183, 68 S.E. 250, we approved the statement in 4 Pomeroy's Equity Jur., 3d ed., | 1342, that "restrictive covenants in deeds * * * limiting the use of land in a specific manner, or prescribing a peculiar use, * * * create equitable servitudes on the land." (Italics supplied.) In Cheatham Taylor, 148 Va. 26, 39, 138 S.E. 545, we said "that the right of a third person to the protection of the [restrictive] covenant is an equitable right by whatever name called." (Italics supplied.) *146 In Springer Gaddy, 172 Va. 533, 541, 2 S.E.(2d) 355, 358, we approved the holding that the right under such a restrictive covenant is "a negative easement." But whatever may be its correct designation, we are of opinion that such restrictive covenants create an "interest or estate" in land, which a public utility may acquire by eminent domain (Code, | 25-8), but subject to the protection of section 58 of the Constitution that it may not "be taken or damaged for public uses, without just compensation." It is argued that such restrictions cannot be invoked against a public service corporation clothed under the laws of the State with the power of eminent domain, because public necessity may require the taking of property in such an area despite such restrictions. The answer is, that "'Public necessity may justify the taking, but cannot justify the taking without compensation.'" City of Raleigh Edwards, supra, 71 S.E.(2d), at page 399. We are of opinion, then, that the acts of the defendant are a breach of the covenants and restrictions binding on its lands in these subdivisions, and constitute a taking or damaging of property rights for which compensation must be paid. Injunction is the proper remedy to prevent the taking or damaging of private property for a public use without just compensation by one who is invested with the power of eminent domain. Virginia Hot Springs Co. Lowman, 126 Va. 424, 437, 101 S.E. 326; Nichols Central Va. Power Co., 143 Va. 405, 413-415, 130 S.E. 764, 44 A.L.R. 727; 30 C.J.S., Eminent Domain, | 405, p. 125. Our next inquiry is, which of the plaintiffs are entitled to relief? Clearly, under the view we have taken of the matter, the Meaghers and Allens who acquired their property in the Grubb Land Development, and Weaver who acquired his in the Crestmoor subdivision, subject to the stated restrictions, prior to the time the defendant acquired any of its properties in these subdivisions, are entitled to relief, and the lower court erred in sustaining the demurrer as to their claims in the bill. *147 The lower court held in its written opinion that the Pattons, who acquired their property in the Grubb Land Development after the defendant had acquired its properties in that and the adjacent subdivision, "have no right in equity to enjoin the defendant corporation in the use being made of its property since they have suffered no damage." It is well settled that "The right to enjoin the breach of restrictive covenants does not depend upon whether the covenantee will be damaged by the breach; the mere breach is sufficient ground for interference by injunction." 14 Am. Jur., Covenants, etc., | 339, p. 666. See also, Pomeroy's Equity Jur., 5th Ed., Vol. 4, | 1342, p. 942. But aside from this, the taking or damaging of the property rights occurred at the time the defendant began the improvement or occupancy of its property "for other than residential purposes," in violation of the restrictions, and since this was after the Pattons had acquired their property they are among the plaintiffs who are entitled to relief. Nor is it a sufficient defense to say, as the defendant argues, that the Pattons are not entitled to relief because they purchased their property with full notice of the defendant's intended use of its properties. If this argument were sound, compensation for property taken or damaged in an eminent domain proceeding might be avoided by a mere showing that the owner acquired it after notice that it might be necessary that it be taken for public use, a manifestly unjust result. Consequently, we are of opinion that the lower court erred in sustaining the demurrer to the claims asserted in the bill by the Pattons. The lower court further held that the Montagues, having sold their property to the Pattons, "have no right in equity to enjoin the defendant corporation for the alleged violations of the restrictive covenants," but if they have "suffered any loss in the sale of their lot by reason of the alleged violations," "their remedy, if any, is an action at law for damages." *148 In their brief counsel for the Montagues admit that there is doubt as to their right to injunctive relief (14 Am. Jur., Covenants, etc., | 310, p. 651), but say that these former owners were made parties plaintiff to recover damages which they suffered in having sold their property "at a greatly reduced price," due to "the depreciation in value caused by the [defendant's] erection of the first tower." There are two answers to this argument. In the first place, there is no allegation in the bill that the Montagues sold their property at a "greatly reduced price" because of the acts of the defendant. The only allegation is that the Montagues are the "former owners" of the property which they have sold to the Pattons. Next, if it be a fact that these plaintiffs have suffered damage by reason of the defendant's breach of the covenants and restrictions they have an adequate remedy at law, as the trial court held. 14 Am. Jur., Covenants, etc., | 34, p. 511; 21 C.J.S., Covenants, | 114, pp. 982, 983. Hence, we conclude that the lower court was right in sustaining the demurrer as to the claims of the Montagues asserted in the bill of complaint. The final inquiry is whether the plaintiffs, the Oranders, Grogans, Parsons, John and Newton, the owners of properties in the Belle Air subdivision, have stated a case for relief against the defendant corporation. As has been said, there was no allegation that the defendant has located or is planning to locate any of the structures on, or that any of its transmission lines will cross over, any of the lots located in the Belle Air subdivision. The lower court held that these plaintiff property owners "have no right in equity to enjoin the defendant corporation for the alleged violation of the restrictive covenants since there is no privity of contract. * * * It is well settled that the lot owners of one subdivision have no right to enforce the restrictive covenants of another and separate subdivision." It is true, as these plaintiffs argue, that the right of enforcement of such restrictive covenants depends not upon privity of contract, but upon the intention of the parties imposing them. "Whether or not third persons, not parties *149 to the instrument, are within its purview, is one of intention, and this intention may appear either from the instrument alone, or from the instrument with the aid of the surrounding facts and circumstance. * * * If a person is within the benefits intended to be conferred, he has an equitable interest which a court of equity will protect." Cheatham Taylor, supra, 148 Va., at page 34. See also, 14 Am. Jur., Covenants, etc., | 311, pp. 651, 652. Moreover, in this State a restrictive covenant for the benefit of a third party may be enforced in his own name under Code, | 55-22. Cheatham Taylor, supra, 148 Va., at page 46. Although these plaintiffs argue that the restrictions imposed on the Grubb Land and Crestmoor subdivisions were for the benefit of the owners of property in the Belle Air subdivision, there is no such allegation in the bill. The only allegation is that the lots in the Belle Air subdivision are "subject, for the most part, to the identical covenants, restrictions and conditions applying to the Crestmoor subdivision." We have been pointed to no authority, nor have we been able to find any, to sustain the contention that, irrespective of mutual covenants designed for the purpose between adjoining property owners, restrictive covenants binding on property in one subdivision are for the benefit of, or may be enforced by, property owners in an adjoining subdivision subject to like restrictions. As to the effect of mutual covenants between owners of adjoining lands, see 26 C.J.S., Deeds, | 167-d, pp. 560-1. Furthermore, the bill alleges that the Grubb Land Development restrictions were imposed by the owners "to insure the residential character of their respective properties." (Italics supplied.) Again, the Crestmoor restrictions expressly provide that "it shall be lawful for any other person or persons owning any other lot or lots in said development or subdivision to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenant or restriction." (Italics supplied.) Such allegations negative an intention that the restrictions *150 imposed on the Grubb Land Development and Crestmoor properties were intended to be for the benefit of property owners in any other subdivision. We are of opinion, then, that the lower court was right in sustaining the demurrer as to the claims of the plaintiffs who own properties in the Belle Air subdivision. So much of the decree appealed from sustaining the demurrer to the claims of the plaintiffs, the Montagues, Oranders, Grogans, Parsons, John, and Newton, is affirmed. That portion of the decree which sustains the demurrer to the claims of the plaintiffs, the Meaghers, Allens, Pattons and Weaver, is reversed and the cause remanded for further proceedings in conformity with the views here expressed. Affirmed in part; Reversed in part and remanded.

156 B.R. 713 (1993) In re Robert Phillip PEARSON and Fannie Lancaster Pearson, Debtors. Bankruptcy No. 92-18926. United States Bankruptcy Court, D. Massachusetts. June 4, 1993. Harvey S. Shapiro, Joseph M. Szabo. *714 MEMORANDUM JOAN N. FEENEY, Bankruptcy Judge. I. INTRODUCTION The Court has before it the Interim Application and Itemized Disclosure of Harvey S. Shapiro Respecting the Allowance or Payment of Compensation and Reimbursement of Expenses to Counsel to Debtors. This case presents the following issue: What is reasonable compensation for a debtor's attorney in a Chapter 13 case? As in many jurisdictions, there are "customs" that govern the amount and method of payment of fees for debtors' counsel in the Eastern Division of the District of Massachusetts. See generally II Keith M. Lundin, Chapter 13 Bankruptcy, § 7.28 at 7-57 (1991). It was the practice of the late Chief Judge James N. Gabriel to allow fees in the approximate amount of $750. More recently, fees have been allowed, without the necessity of formal application, at a higher level, ranging from $750 to $1,500. This case provides the opportunity to transform the unwritten rules to written ones for the benefit of all Chapter 13 practitioners, particularly those who, with the increase in the number of Chapter 13 cases, are new to this area of practice. II. THE PEARSON CASE Robert and Fannie Pearson (the "Pearsons") filed a Chapter 13 petition on August 31, 1992. On September 16, 1992, they filed their Schedules and Statement of Affairs, as well as a Statement of Attorney Compensation. Approximately one week later they filed their Chapter 13 plan, having obtained Court approval for an extension of time within which to file it. The Statement of Attorney Compensation signed by the Pearsons' attorney, Harvey S. Shapiro ("Attorney Shapiro"), contained the following information: "Filing fee and attorneys fees are to be paid by the Boston Teachers' Union Pre-Paid Legal Services Plan at the rate of $70.00/hour." At the commencement of the case, Attorney Shapiro had received no retainer. The Debtors, through their Chapter 13 plan, proposed to submit future earnings of $2,270.32 per month for sixty months to satisfy their creditors, as well as net proceeds ("court award or settlement exclusive of attorneys fees, disbursements and subrogation rights of medical and other insurance carriers, if any") from the resolution of a personal injury suit pending in the Maine Superior Court, York County, up to a maximum of $20,592.97. With respect to their personal residence located at 11 Pheasantwood Lane, Sharon, Massachusetts, which the Debtors valued at $170,450, the Debtors proposed to pay the secured claim of the Town of Sharon in the amount of $4,326.98 in full. The Debtors proposed to treat the $154,000 claim of Equitable Mortgage Associates ("Equitable"), a second mortgagee, as secured in the amount of $111,822.61 and unsecured in the amount of $42,177.39. Additionally, they proposed to make a lump sum payment of $11,822.61 to Equitable upon confirmation of their plan and to pay the $154,000 arrearage on that mortgage with monthly payments of $1,933.29. The Debtors proposed to pay the first mortgagee, Brookline Savings Bank ("Brookline"), $54,300.41 in monthly installments of $944.84 outside their plan. The third mortgage held by Martin Hodas in the amount of $24,000, which was set forth on Schedule A, was not specifically mentioned in their plan. The Debtors divided their unsecured creditors into two classes: creditors with nondischargeable debts arising from student loans and regular unsecured creditors. The latter class was to receive the net proceeds of the Maine litigation. On October 14, 1992, Equitable filed a motion for relief from stay, alleging that the Debtors lacked equity in their residence. The motion was heard on November 13, 1992, and the Debtors were instructed to commence an adversary proceeding with respect to the bifurcation of the mortgage claim. In the meantime, Massachusetts Credit Union Share Insurance Corporation on behalf of the Massachusetts Teachers Association Credit Union (the "Credit Union") and *715 Martin Hodas ("Hodas") filed objections to the Debtors' plan. Although the creditors hold somewhat different claims, an attachment which the Debtors seek to avoid as impairing their exemption in the case of the Credit Union and a fully or partially unsecured mortgage, depending upon the value of the property, in the case of Hodas, both creditors objected to the liquidation value used by the Debtors in their plan. The Court sustained the objections, pending the outcome of the adversary proceeding which the Debtors commenced on November 17, 1992 by the filing of a "Complaint to Determine the Extent and Nature of Security Interest in Residential Premises, and for Damages on Account of Overcharges" in which the Credit Union, Hodas, Equitable, and Brookline are named defendants. At this time, the Debtors have not succeeded in obtaining confirmation of their Chapter 13 plan, nor have they proposed an amended plan. They have obtained Court authority to employ an appraiser and to employ special counsel to continue the personal injury litigation in Maine. A pre-trial conference in the adversary proceeding commenced on November 17, 1993 was held on June 2, 1993. The Debtors' attorney reported a settlement with two of the defendants and the likelihood of settlement with the other defendant that responded to the complaint. The Court scheduled a trial for August 25, 1993. Prior to the pre-trial hearing, Attorney Shapiro filed six supplements to his Statement of Attorney Compensation as follows: 1/11/93 $7,038.80 (inclusive of $120 fee) 09/28/92-12/31/92 2/17/93 $1,565.20 01/06/93-02/11/93 2/19/93 Agreement by Debtors to pay unreimbursed expenses 4/06/93 $756.20 02/19/93-04/05/93 5/06/93 $997.50 04/05/93-05/05/93 5/24/93 Agreement by Debtors to be obligated for attorney fees and costs at the rate of $70.00/hour In view of the supplements, it is evident that Attorney Shapiro's total fees shall exceed $11,000 in this case. The supplements also reveal Attorney Shapiro has been paid $10,357.70 by the Boston Teachers' Union Pre-Paid Legal Services Plan. Upon receipt of the Supplemental Statement of Attorney Compensation dated January 11, 1993, this Court ordered Attorney Shapiro to file a fee application in conformance with 11 U.S.C. §§ 329, 330, Federal Rule of Bankruptcy Procedure 2016 and Local Rule 34. Attorney Shapiro complied with the order and filed an Interim Application and Itemized Disclosure of Harvey S. Shapiro Respecting the Allowance or Payment of Compensation and Reimbursement of Expenses to Counsel to Debtors (the "Application"). Attorney Shapiro seeks $10,309.94 for 144 hours of work at the rate of $70.00/hour in his Application, which covered the period from August 24, 1992 through January 31, 1993, as well as $229.94 for expenses. His Application contains a statement that $9,744.70 was "received or pending in full satisfaction." However, the Court is unable to reconcile this number ($9,744.70) with those appearing on the Supplements as of February 19, 1993, the time of the filing of the Application which total $8,604. III. THE CODE AND THE RULES Section 329 of the Bankruptcy Code provides the following: (a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such *716 attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation. (b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to— (1) the estate, if the property transferred— (A) would have been property of the estate; or (B) was to be paid by or on behalf of the debtor under a plan under chapter 11, 12, or 13 of this title; or (2) the entity that made such payment. 11 U.S.C. § 329. With respect to the amount of compensation awarded, section 330 of the Bankruptcy Code provides in pertinent part: (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to . . . the debtor's attorney— (1) reasonable compensation for actual, necessary services rendered by such . . . attorney, . . . and by any paraprofessional persons employed by such . . . attorney, . . . based on the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330. Federal Rule of Bankruptcy Procedure 2016(b) implements section 329 by requiring every attorney for the debtor to file and transmit to the United States trustee the statement required by section 329 within 15 days of the order for relief. Federal Rules of Bankruptcy Procedure 2016(a) and 2017 govern the filing of fee applications and oversight of payments to attorneys, respectively. Moreover, Federal Rule of Bankruptcy Procedure 1006(b)(3) requires the payment in full of the filing fee before the debtor or Chapter 13 trustee may pay an attorney or any other person who renders services to the debtor in connection with the case. IV. CASE LAW The role of the Boston Teachers' Union Pre-Paid Legal Services Plan as the source of the funds to pay the Debtors' legal fees does not relieve the Court of its duty to examine the reasonableness of compensation. See In re Bush, 131 B.R. 364, 365 (Bankr.W.D.Mich.1991). As the Bush court recognized in circumstances that admittedly are different than the instant case: This obligation is especially important in a Chapter 13 case where a debtor has neither inclination nor motivation to object to attorney's fees. Once disposable income has been determined, it generally makes no difference to the debtor whether that money goes to his or her attorney as fees or to the debtor's prepetition creditors, since, in any event, the money is not available to the debtor. Id. at 365. Although there are a plethora of cases regarding what amount of compensation is reasonable in the context of Chapter 13, see In re Bush, supra, ($600); In re Smith, 111 B.R. 81 (Bankr.E.D.PA.1990) ($1,000); In re Taylor, 100 B.R. 42 (Bankr. D.Colo.1989) ($970); In re Ashton, 92 B.R. 254 (Bankr.S.D.Ohio 1988) ($650); In re Richardson, 89 B.R. 716 (Bankr.N.D.Ill. 1988) ($750), a case from this circuit has set the parameters for this Court's analysis. See In re Rodriguez, 76 B.R. 252 (Bankr. D.P.R.1987). In that case, the bankruptcy court recognized that the First Circuit's adoption of the "lodestar" analysis common to attorney compensation determinations in other chapters is applicable to the review of the reasonableness of attorney compensation in Chapter 13 cases, Boston and Maine Corp. v. Moore, 776 F.2d 2, 6 (1st Cir.1985). That test provides for the adjustment *717 of the lodestar fee up or down upon consideration of twelve factors, including the novelty and difficulty of the issues raised, the skill required to perform the legal services, the amount in controversy and the results obtained, and customary fees for like work. See Harman v. Levin, 772 F.2d 1150, 1152 n. 1 (4th Cir.1985); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The bankruptcy court also noted that the Court of Appeals for the First Circuit has permitted non-hourly fee arrangements. Rodriguez, supra, at 253; Boston and Maine Corp. v. Sheehan, Phinney, Bass & Green, 778 F.2d 890, 894 (1st Cir.1985). In Rodriguez, the court stated: The practice in this district is to charge a fixed rate for the filing of a Chapter 13 petition. The Court finds that the rates ranging from $450.00 to $600.00 are reasonable provided the quality of service and results obtained are as expected by both the debtor and the Court and that the fee does not exceed twenty-five percent (25%) of the payments to be made under the plan. 76 B.R. at 254. The court explained that the 25% figure was based upon the Social Security Act, 42 U.S.C. § 406(b)(1), 20 C.F.R. § 404.1730 and a Puerto Rican law regulating attorneys' fees of a contingent nature in actions to recover damages. It added that when fees exceeded $600 or 25% of the payments under a Chapter 13 plan, it would apply the lodestar analysis to determine the reasonableness of the fee. V. GENERAL CONCLUSIONS This Court agrees with the approach taken by the bankruptcy court for the district of Puerto Rico. The Court also agrees that the time and labor required in an uncomplicated Chapter 13 case, particularly in light of the very recent United States Supreme Court decision in Nobelman v. American Savings Bank, ___ U.S. ___, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), that resolves the contentious mortgage bifurcation issue, is or should be approximately 10 hours for the preparation of schedules, the statement of affairs, and the Chapter 13 plan, and attendance at the section 341 meeting and confirmation hearing. Moreover, as the circuit court in Harman v. Levin, supra, noted, "Chapter 13 bankruptcy cases often involve a number of relatively routine questions with which regular practitioners quickly become familiar, so they represent the type of cases where a court may well utilize factors in addition to the time reasonably expended and a reasonable hourly rate." Id. at 1153. Accordingly, this Court shall permit fees in the range of $750-$1,000 without the need for filing a detailed fee application, although the Court obviously shall review all fees in view of the mandate of section 330 of the Bankruptcy Code, particularly if the Statement of Attorney Compensation and the Chapter 13 plan reveal that the fee may be excessive in light of the distribution to creditors. With respect to the payment of fees in uncomplicated cases where no formal fee application is required, the Court shall permit debtor's counsel, if he or she receives a retainer, to apply one-half of the fee at the commencement of the case and the balance from a client fund account at confirmation, unless payment of all or part of the fees is to be made by the Chapter 13 trustee during the course of the debtor's plan. In those circumstances where no plan is confirmed within 120 days of the commencement of the Chapter 13 case, this Court, in its discretion, shall issue an order to show cause why fees should not be disgorged as excessive. See In re Rodriguez, supra, at 253-54; Fed.R.Bankr.P. 2017. In circumstances, such as the instant case, where fees exceed $1,000, the Court shall require the filing of a fee application that strictly conforms with the requirements of section 330, Fed.R.Bankr.P. 2016(a) and Local Rule 34. V. ATTORNEY SHAPIRO'S APPLICATION Attorney Shapiro divided his time according to five categories of work: 1) case administration; 2) document review; *718 3) motion for relief from stay, objections to plan, motions for employment of counsel (tort litigation), real estate appraiser, and broker (adversary proceeding); 4) research; and 5) litigation of adversary proceeding against Equitable Mortgage Associates, Brookline Savings Bank, Martin Hodas and MISC. Attorney Shapiro did not tabulate the number of hours spent on each category of work, but the Court's review of the Application reveals that he spent at least 45.92 hours on document review, at least 25.41 hours on research, 19.62 hours in conferences with his clients or other attorneys; and 38.39 hours preparing documents. The number of hours spent on this case appear at first blush to be excessive. However, in view of Attorney Shapiro's modest $70 hourly rate, the Court is not inclined to reduce Attorney Shapiro's fees for this reason, particularly as a review of the adversary proceeding indicates an exemplary degree of preparation and thoroughness on Attorney Shapiro's part. Nevertheless, given the present status of the case—a pending adversary proceeding the results of which will require the filing of an amended plan regardless of its outcome —this Court shall authorize an award of interim compensation only at this time. Accordingly, the Court hereby allows Attorney Shapiro $7,500 in fees and $229.94 in expenses as an interim award. Attorney Shapiro shall file either a second interim application or a final fee application prior to the confirmation hearing. At that time, the Court will be in a position to fairly assess the reasonableness of Attorney Shapiro's fees and the benefit of his services to the estate. See 11 U.S.C. §§ 330(a), 503(b)(2), 507(a)(1). An appropriate order shall issue.

14 So.3d 199 (2007) JAMES MICHAEL MOORE v. STATE. No. CR-06-0415. Court of Criminal Appeals of Alabama. August 24, 2007. Decision of the Alabama Court of Criminal Appeals without opinion Affirmed.

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-14-00314-CR RACHEL JOHNSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2013-438,766, Honorable John J. "Trey" McClendon, Presiding May 14, 2015 MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant, Rachel Johnson, appeals her conviction for robbery. Through a single issue, she contends that the sentence assessed violates the state and federal prohibition on cruel and unusual punishment. We affirm. Background Appellant was charged with aggravated robbery. However, after a bench trial she was found guilty of robbery. The trial court sentenced her to six years in prison. On appeal, appellant contends that she was probation eligible, she had one prior misdemeanor assault charge for which she received deferred adjudication, there was testimony from a probation officer that she would be a good candidate for probation, she used a pellet gun during the robbery, she purportedly looked uncomfortable holding the pellet gun, and she apologized to the victim in open court. Standard of Review Assuming, arguendo, that the contention was preserved for review even though not raised below, compare Garza v. State, 435 S.W.3d 258, 263 (Tex. Crim. App. 2014) (indicating that Garza’s Eighth Amendment claim was not forfeited by his failure to urge his claim in the trial court) and Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (stating that the failure to object that the sentence constitutes cruel and unusual punishment waives error), we nonetheless overrule it. The Eighth Amendment of the United States Constitution prohibits excessive bail or fines as well as cruel and unusual punishment. See U.S. Const. Amend. VIII. The provision is applicable to the states through the Fourteenth Amendment, Furman v. Georgia, 408 U.S. 238, 239, 92 S.Ct. 2726, 2727, 33 L.Ed.2d 346 (1972); Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 1420-21, 8 L.Ed.2d 758 (1962), and flows from the basic “‘precept of justice that punishment for crime should be graduated and proportioned to the offense.’” Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 2246, 153 L.Ed.2d 335 (2002), quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910). It is undisputed that the sentence imposed by the trial court in the case before us was within the range of punishment authorized by the Legislature. Appellant was sentenced to six years in prison. The punishment range for a second degree felony 2 offense of robbery is not more than twenty years or less than two years. TEX. PENAL CODE ANN. § 12.33 (a) (West 2011). Furthermore, Texas courts have traditionally held that punishment assessed within the range set by the Legislature is not excessive, cruel, or unusual. E.g., Price v. State, 35 S.W.3d 136, 144 (Tex. App.—Waco 2000, pet. ref’d); Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo 2008, pet. ref’d); Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no pet.). Nevertheless, appellant suggests that her claim of gross disproportionality is independent of that analysis and survives such proof. So too does she cite authority to support her proposition. See e.g., Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.— Dallas 1994, writ ref’d) (stating that the Dallas court will review a sentence to determine whether it is grossly disproportionate), citing Harmelin v. Michigan, 501 U.S. 957, 991- 93, 111 S.Ct. 2680, 2700, 115 L.Ed.2d 836 (1991) (Scalia, J., plurality op.). The Lackey court mentioned various factors considered in determining disproportionality, which factors were first discussed in Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983). They consist of the gravity of the offense, the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the commission of the same crime in other jurisdictions. Lackey v. State, 881 S.W.2d at 420-21. Assuming, arguendo, that they are applicable, our consideration of same does not lead us to conclude that the sentence was cruel and unusual. As previously mentioned, the sentence fell within the range of punishment mandated by statute; consequently, the people of Texas (as reflected through the vote of the Legislature) considered the punishment appropriate. Furthermore, the offense 3 was dispatched as a robbery with a gun. When police spoke with the victim, she was “hysterical,” “crying uncontrollably, visibly shaking [and] very upset.” The victim stated that “someone had come in, pointed a gun at her, demanded money, and then left the store.” Furthermore, according to the officer, “[i]t took several minutes [for the victim to talk], [I] had to console her, try to calm her down . . . .” A counselor was requested for the victim and she continued to shake while speaking to the counselor. The officer subsequently viewed videotape of the robbery and was able to obtain a description of the assailant. Furthermore, he observed “a large black female enter the store with a hunting style rifle, scope mounted on top of it. It was carried under her left arm. The way she moved in the store with the gun in her arm, she appeared to not be very comfortable with it, not like a - - almost like she hadn’t handled it a lot prior to, kind of just the way it moved. It waived around, just not smooth. . . .” He, further, viewed the “suspect approach the counter, point the barrel of the rifle directly at the victim in her face, and it – face, head area. It looked - - the barrel was kind of up from under her arm, pointing up. . . .” That the weapon appeared to be a firearm is clear. Though never recovered and characterized as a BB or pellet gun, an expert testified that it was “capable of causing death or serious bodily injury.” The victim also testified that appellant pulled a gun and pointed it at her when she entered the convenience store and that she was “scared for [her] life.” Appellant asked her for money and the victim gave it to her. Allegedly, appellant was the sole care taker of five children and of her father. Furthermore, she told the victim she was sorry and became emotional and cried during 4 the trial. Finally, appellant failed to cite us to evidence describing the measure of punishment levied in like cases. From the foregoing, we find that the trial court could well have concluded that the offense was grave. The victim did not view the situation as minor but rather suffered from being involved therein. Furthermore, this was not appellant’s first criminal transgression. And, while she may be responsible for five children, we know of no defense that allows one in such a situation to engage in criminal conduct. Given the totality of the circumstances, appellant’s status as being qualified for probation is not telling. Indeed, she had enjoyed community supervision for another offense only to engage in criminality again. To use the vernacular proffered by appellant, the “punishment fit both the crime and the offender,” or so a rational fact finder concluded, and we cannot hold otherwise under the law or record. Appellant’s sentence was not disproportionate or cruel and unusual. Accordingly, we affirm the judgment of the trial court. Per Curiam Do not publish. 5 

447 F.3d 292 B. David RIDPATH, Plaintiff-Appelleev.BOARD OF GOVERNORS MARSHALL UNIVERSITY; Dan Angel; F. Layton Cottrill; K. Edward Grose, Defendants-Appellants, andBob Pruett; Richard Hilliard, Defendants.B. David Ridpath, Plaintiff-Appellee,v.Bob Pruett, Defendant-Appellant, andBoard of Governors Marshall University; Dan Angel; F. Layton Cottrill; K. Edward Grose; Richard Hilliard, Defendants. No. 04-1314. No. 04-1328. United States Court of Appeals, Fourth Circuit. Argued February 3, 2005. Decided May 11, 2006. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED ARGUED: Charles R. Bailey, Bailey & Wyant, P.L.L.C., Charleston, West Virginia, for Appellants. Jason Eskwith Huber, Forman & Huber, L.C., Charleston, West Virginia, for Appellee. ON BRIEF: Cheryl L. Connelly, Edward M. Kowal, Jr., Campbell, Wood, Bagley, Emerson, McNeer & Herndon, Huntington, West Virginia, for Appellant Bob Pruett. Before WIDENER and KING, Circuit Judges, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation. Dismissed in part and affirmed in part by published opinion. Judge KING wrote the opinion, in which Judge FLOYD joined. Judge WIDENER wrote a separate opinion concurring in part and dissenting in part. OPINION KING, Circuit Judge. 1 David Ridpath initiated this lawsuit in the Southern District of West Virginia in August 2003 against the Board of Governors of Marshall University; three of the University's administrators, Dan Angel, Layton Cottrill, and Edward Grose (collectively, the "Administrators"); then-Head Football Coach Bob Pruett; and Richard Hilliard, who had been retained by the University as its Special Legal Counsel.1 Ridpath, a Marshall University employee and former athletics official, alleged multiple state and federal causes of action against the Defendants in their individual and official capacities, centered on their conduct with respect to an investigation of the University's violations of National Collegiate Athletic Association ("NCAA") rules. These causes of action included claims under 42 U.S.C. § 1983 (collectively, the "§ 1983 claims") that Ridpath's Fourteenth Amendment right to due process was violated by the Board, the Administrators, and Hilliard, and that his First Amendment right to free speech was infringed in one way by the Board and the Administrators, and in a second way by these Defendants and Coach Pruett. Asserting various grounds, the Board, the Administrators, and Coach Pruett promptly sought dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court denied these motions in part, rejecting, inter alia, the Board's and the Administrators' assertions of qualified immunity on the three § 1983 claims. See Ridpath v. Bd. of Governors, No. CA-03-2037 (S.D.W.Va. Feb. 17, 2004) (the "Opinion"). 2 By these appeals, the Board, the Administrators, and Coach Pruett seek review of the district court's denial of qualified immunity, relying on the collateral order doctrine for appellate jurisdiction. As explained below, we dismiss Coach Pruett's appeal for lack of standing, and we conclude that the appeal of the Board and the Administrators is properly before us. On the merits of qualified immunity, we affirm the decision of the district court in rejecting this defense at the Rule 12(b)(6) stage of these proceedings.2 I. A. 3 The facts relevant to these appeals are largely drawn from the operative complaint in these proceedings, i.e., Ridpath's "Amended Complaint" of December 19, 2003, superseding his "Initial Complaint" of August 4, 2003.3 According to the Amended Complaint, Ridpath's chosen career is in intercollegiate athletics administration, particularly in the area of overseeing compliance with NCAA rules. See Amended Complaint at ¶¶ 14-15, 52. Ridpath was hired by Marshall University in November 1997 as an Assistant Athletic Director in charge of the Compliance Office, or "Compliance Director." Id. at ¶ 16. At some point, Ridpath was also assigned teaching responsibilities as an Adjunct Professor in the Exercise and Sports Science Department. Id. at ¶ 46. 4 On approximately July 2, 1999, it was reported to Ridpath that several Marshall football players were involved in academic fraud, having received an advance copy of a physical education test. See Amended Complaint at ¶ 19. Ridpath informed the NCAA of this allegation, prompting an investigation conducted by the NCAA and the University. Id. at ¶ 20. During this investigation, the University discovered and informed the NCAA of further infractions involving certain "props," i.e., students seeking academic eligibility to join sports teams. Id. at ¶¶ 20-21. Members of the coaching staff had improperly alluded to employment opportunities in recruiting these props, and assisted them in securing jobs — at above-market wages — with a local business known as McCorkle Machine Shop. Id. at ¶¶ 21-22. 5 Prior to the investigation, Ridpath had no knowledge of the props' employment at the Machine Shop, as the relevant information was not (but should have been) reported to the University's Compliance Office. See Amended Complaint at ¶¶ 22, 24. During the investigation, members of the coaching staff attempted to cover up their wrongdoing, and Coach Pruett, in testimony, suggested that Ridpath and the Compliance Office were to blame for any improprieties. Id. at ¶¶ 23, 25-26. Meanwhile, Ridpath was not allowed to personally interview witnesses or investigate facts relating to the props' employment at the Machine Shop. Id. at ¶ 27. Indeed, he was specifically directed not to interview the Machine Shop's owner, Marshall Reynolds (who had a history of involvement in NCAA infractions at the University), a directive that came from Cottrill, Hilliard, and Coach Pruett. Id. They and Angel encouraged Ridpath, however, to defend the University vigorously throughout the investigation and at a hearing conducted on September 22, 2001, by the NCAA's Committee on Infractions. Id. at ¶¶ 30-32. Cottrill and Hilliard also assured Ridpath on several occasions that he did not need personal legal representation during the NCAA proceedings. Id. at ¶ 51(a). Ridpath's defense of the University was not well received by the NCAA committee. Id. at ¶ 38. Thereafter, although Ridpath had not been involved in the NCAA rules violations, he became a "convenient scapegoat" for the University. Id. at ¶¶ 38-39. 6 On approximately October 1, 2001, Ridpath agreed to be reassigned from being the University's Compliance Director to become its Director of Judicial Programs, despite lacking the necessary education or training for this position. See Amended Complaint at ¶¶ 33-34.4 7 Ridpath consented to this reassignment "for numerous reasons both personal and professional." Id. at ¶ 33. Ridpath was given a raise to accept the new position, and, at the time he filed the Amended Complaint, he was being paid some $15,000 more annually than his predecessor as Director of Judicial Programs. Id. at ¶ 34. As an additional inducement for the transfer, Cottrill and Grose (as agents of the University) agreed to inform the NCAA and the public that Ridpath's reassignment was not the result of any wrongdoing on his part as Compliance Director. Id. at ¶ 35. In contravention of this agreement, however, Hilliard subsequently informed the NCAA that Ridpath's reassignment was a "corrective action" taken by the University to remedy its NCAA rules violations. Id. at ¶ 36. 8 Ridpath was excluded from the decision-making process with respect to the designation of his transfer as a "corrective action." See Amended Complaint at ¶ 51(b). Moreover, during a meeting held on approximately November 1, 2001, concerning the University's violation of its agreement with Ridpath, Cottrill warned Ridpath: "You [Ridpath] have no say in the matter. You need to think about your family young man." Id. at ¶ 57(a) (alteration in original). At this same meeting, Grose threatened Ridpath: "I am telling you. You do anything to resurrect this [NCAA Infractions issues] and I will bury you personally and professionally." Id. (alteration in original). 9 On December 21, 2001, the NCAA Committee on Infractions published its report (the "Infractions Report"). See Amended Complaint at ¶ 57(b). Its findings included two major NCAA rules violations — academic fraud and impermissible employment of props at the Machine Shop — and it labeled Ridpath's reassignment as a "corrective action" taken in response to these infractions. Id. at ¶¶ 37, 41, 51(c). An advance copy of the Infractions Report had been provided to the University and, in the days leading up to its public release, a group of school officials met to review and discuss it. Id. at ¶ 57(b). During this meeting, some participants raised concerns about "cheap shots" taken against Ridpath in the Infractions Report. Id. Additionally, the group discussed the fact that Ridpath would wish to clear his name. Id. In this regard, Angel, the University's President, asserted that he "would cut the dead limb from the tree" if Ridpath commented publicly. Id. Angel further stated that he had previously dealt with similar situations, and that he would have "no problem firing [Ridpath] on the spot" if he spoke publicly about the NCAA investigation. Id. Because of the threats articulated by Angel, and those previously made by Cottrill and Grose, Ridpath initially refrained from publicly challenging the findings of the Infractions Report and the "corrective action" label that had been placed on his reassignment. Id. at ¶ 58. 10 Later, however, Ridpath retained counsel and filed a civil action based on alleged constitutional violations. See Amended Complaint at ¶ 62.5 Subsequently, on July 14, 2003, Ridpath was relieved of his responsibilities as an Adjunct Professor in the Exercise and Sports Science Department (but not as the Director of Judicial Programs). Id. at ¶¶ 46, 59. During related grievance proceedings, a University official acknowledged under oath that Ridpath was discharged from his teaching position due to negative comments he made about the University's conduct during the NCAA investigation. Id. at ¶¶ 47, 61. 11 As of the filing of the Amended Complaint in these proceedings, Ridpath remained in his position as the University's Director of Judicial Programs. See Amended Complaint at¶¶ 1, 34. Meanwhile, he continued to apply to other colleges and universities for a position in his chosen field, as a compliance director or other intercollegiate athletics administrator. Id. at ¶¶ 42, 52. He was unable to procure other employment, however, because his professional reputation had been permanently damaged by the "corrective action" label placed on his reassignment from Marshall University's Department of Athletics. Id. at ¶ 52. According to the Amended Complaint, this label "calls into question his honesty, integrity and professional competence as an NCAA Compliance Coordinator," destroying his future career opportunities in intercollegiate athletics. Id. at ¶¶ 40-41. And, despite the devastating effect of the "corrective action" label, no means were available to Ridpath under NCAA bylaws to challenge it or the other contents of the Infractions Report. Id. at ¶ 51(c). B. 12 On August 4, 2003, Ridpath instituted these proceedings with the filing of his Initial Complaint against the Board, the Administrators, and Coach Pruett. In the Initial Complaint, Ridpath alleged, inter alia, the three § 1983 claims: specifically, that the Board had violated his Fourteenth Amendment right to due process (the "due process claim"); and that the Board, the Administrators, and Coach Pruett had infringed on his First Amendment right to free speech in two distinct ways (the "free speech claims").6 On September 15, 2003, the Board and the Administrators, without answering the Initial Complaint, sought dismissal under Rule 12(b)(6) or, in the alternative, transfer to the appropriate state court. On September 30, 2003, Coach Pruett separately sought a Rule 12(b)(6) dismissal. In their motions and supporting memoranda of law (collectively, the "September 2003 Motions"), these Defendants asserted multiple bases for dismissal, but never contended that qualified immunity shielded any of them from suit.7 13 On October 20, 2003, Ridpath filed a response in opposition to the motions to dismiss. Subsequently, on October 30, 2003, the Board and the Administrators filed a reply to Ridpath's response (the "October 2003 Reply Brief"). Therein, they asserted and argued, for the first time, the defense of qualified immunity. Even then, their discussion of this defense was limited to a few paragraphs inserted in the midst of a largely unrelated argument on Eleventh Amendment immunity. 14 On December 19, 2003, while the September 2003 Motions were pending, Ridpath sought leave to amend the Initial Complaint. On January 20, 2004, the district court authorized the filing of the Amended Complaint, nunc pro tunc to December 19, 2003. The Amended Complaint alleged the same causes of action as those in the Initial Complaint. The Amended Complaint added Hilliard as a Defendant, however, and it asserted the due process claim against the Board, the Administrators, and Hilliard (instead of against the Board alone, as in the Initial Complaint). As for the other § 1983 claims, the Amended Complaint reasserted the two free speech claims against the same Defendants, i.e., the Board, the Administrators, and (on one of the two claims only) Coach Pruett.8 15 In early February 2004, the Board, the Administrators, and Coach Pruett filed Rule 12(b)(6) motions to dismiss the Amended Complaint (collectively, the "February 2004 Motions"). Shortly thereafter, on February 17, 2004, the district court filed its Opinion, ruling on the September 2003 Motions (which had sought dismissal of the Initial Complaint), and applying those motions to the Amended Complaint. The Opinion did not address the February 2004 Motions (which had been directed to the Amended Complaint).9 Although qualified immunity was not raised by the Board and the Administrators in their September 2003 Motion, but rather only in their October 2003 Reply Brief, the court ruled on this defense. The court concluded that the Board and the Administrators were not entitled to qualified immunity on the § 1983 claims as alleged in the Amended Complaint. See Opinion at 15.10 16 On March 5, 2004, the Board and the Administrators filed a notice of interlocutory appeal. On March 12, 2004, Coach Pruett filed a similar notice. They collectively seek review of the district court's February 17, 2004 qualified immunity ruling.11 II. 17 The interlocutory nature of these appeals, and the somewhat tortuous course of the district court proceedings, cause us to question our jurisdiction. We therefore must first assess whether these appeals are properly before us. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (observing that appellate courts are obliged to inquire into jurisdictional issues sua sponte whenever doubt arises as to existence of jurisdiction).12 A. 18 Normally, of course, a district court's denial of a Rule 12(b)(6) motion is not an appealable ruling, because it is not a final order under 28 U.S.C. § 1291. Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.1997) (en banc). The Appellants rely, however, on the collateral order doctrine, under which the Supreme Court has carved out a "small class" of trial court decisions that, though short of final judgment, are immediately appealable. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Such decisions are appealable because they "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. 19 In Mitchell v. Forsyth, the Court held that the denial of qualified immunity is immediately appealable under the collateral order doctrine to the extent that the availability of this defense turns on a question of law. 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This principle applies whether qualified immunity was rejected at the dismissal stage (as in these proceedings), or at the summary judgment stage. See Jenkins, 119 F.3d at 1159 & n. 2 (citing Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). Accordingly, the Board, the Administrators, and Coach Pruett have properly invoked the collateral order doctrine. B. 20 Our jurisdictional assessment does not, however, end here. Only if a party has standing to appeal do we possess authority to decide the merits of his contentions. See Davis v. Scott, 176 F.3d 805, 807 (4th Cir.1999) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 549, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). And, for standing to appeal, a party must be "aggrieved" by a trial court's judgment. HCA Health Serve. v. Metro. Life Ins. Co., 957 F.2d 120, 123 (4th Cir.1992). 21 In these proceedings, the district court ruled only that the Board and the Administrators are not entitled to qualified immunity on the § 1983 claims. The court thus did not address the availability of this defense to Coach Pruett — and had no reason to do so, as he had not raised qualified immunity as of the filing of the Opinion. Coach Pruett therefore was not aggrieved by the court's qualified immunity ruling, and we must dismiss his appeal. By contrast, the Board and the Administrators were aggrieved by the Opinion, because it denied their claims of qualified immunity. Thus, they have standing to appeal. C. 22 Finally, however, there remains some doubt on whether we should consider the merits of the appeal by the Board and the Administrators, because they belatedly raised their claims of qualified immunity, in their October 2003 Reply Brief. We observe that qualified immunity is an affirmative defense, and the burden of pleading it "rests with the defendant." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); see also Sales v. Grant, 224 F.3d 293, 296 (4th Cir.2000) (recognizing that qualified immunity can be waived if not "squarely presented" to district court). Generally, qualified immunity must be raised in an answer or a dismissal motion. See Fed.R.Civ.P. 8(c) ("In pleading to a preceding pleading, a party shall set forth affirmatively ... any other matter constituting an avoidance or affirmative defense."); Fed.R.Civ.P. 12(b)(6) (allowing defense of failure to state claim upon which relief can be granted to be raised by pre-answer motion). Moreover, where — as here — defendants raise an issue such as qualified immunity only in a reply brief, a district court is entitled to refuse to consider it at that stage of the proceedings. See, e.g., Montalvo v. Park Ridge Police Dep't, 170 F.Supp.2d 800, 803 (N.D.Ill.2001). And, we may refuse to consider this defense on appeal if it was not preserved below. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 226 (4th Cir.1997); Buffington v. Balt. County, 913 F.2d 113, 122 (4th Cir.1990). 23 We are not, however, precluded from considering an affirmative defense that was not properly asserted in the trial court, if the court has nonetheless chosen to address it. See, e.g., Curry v. Syracuse, 316 F.3d 324, 330-31 (2d Cir.2003) (affirming district court's application of collateral estoppel over plaintiff's contention that defendant waived defense by raising it only in supplemental memorandum to pending summary judgment motion). Such review is particularly appropriate if the plaintiff suffers no prejudice, and if hearing the appeal serves "the strong public policy in economizing the use of judicial resources by avoiding relitigation." See id. at 331 (internal quotation marks omitted). 24 Here, we cannot say that Ridpath was prejudiced by the district court's consideration of the untimely qualified immunity claims of the Board and the Administrators. Indeed, the court rejected them. Moreover, although there is no indication in the record that Ridpath was allowed to respond to these claims, it also does not appear that he sought to do so. Ridpath fully addressed the relevant qualified immunity issues in his submissions to us, and he did not initially object to our jurisdiction. In these circumstances, and in the interest of judicial economy, we will consider the merits of the qualified immunity claims of the Board and the Administrators. III. 25 We review de novo the denial of a motion to dismiss based on qualified immunity, accepting as true the facts alleged in the complaint and viewing them in the light most favorable to the plaintiff. See Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.1997) (en banc). Qualified immunity shields government officials performing discretionary functions from personal-capacity liability for civil damages under § 1983, "`insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); see also Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Government officials are entitled to the defense of qualified immunity unless a § 1983 claim satisfies the following two-prong test (the "qualified immunity test"): (1) the allegations underlying the claim, if true, substantiate the violation of a federal statutory or constitutional right; and (2) this violation was of a "clearly established" right "of which a reasonable person would have known." See Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir.2003) (citing Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Harlow, 457 U.S. at 818, 102 S.Ct. 2727) (internal quotation marks omitted); see also Wilson, 526 U.S. at 609, 119 S.Ct. 1692. A. 26 In view of basic principles of qualified immunity, we can easily dispose of the Board's assertions of this defense. Qualified immunity may be invoked by a government official sued in his personal, or individual, capacity. See Graham, 473 U.S. 159 at 165-67, 105 S.Ct. 3099. This defense is not available in an official-capacity suit brought against a government entity or a government officer as that entity's agent. Id. In these proceedings, the Board was named as a defendant in its capacity as a "public institution," i.e., as the proper party to be sued on behalf of the University. See Amended Complaint at ¶ 2. And, an action against an entity like the Board is necessarily an official-capacity suit. See Graham, 473 U.S. at 165-66, 105 S.Ct. 3099. Accordingly, the Board is not entitled to the qualified immunity defense. See id. at 166-67, 105 S.Ct. 3099. We therefore affirm the district court's denial of qualified immunity to the Board on the § 1983 claims. We also recognize that, to the extent Ridpath's claims are asserted against the Administrators in their official capacities, the Administrators likewise are not entitled to qualified immunity.13 27 In their individual capacities, however, the Administrators may yet possess colorable claims of qualified immunity. We assess these claims in turn, focusing on the Administrators' assertions of qualified immunity with respect to, first, the due process claim and, second, the free speech claims. B. 28 Under the qualified immunity test, the initial question with respect to the due process claim is whether Ridpath has sufficiently alleged the violation of a Fourteenth Amendment right. See Mellen, 327 F.3d at 365. The next question is whether, at the time of the Administrators' alleged conduct, this right was a clearly established one of which a reasonable person would have known. Id. For the following reasons, Ridpath's due process claim satisfies each of these prongs, and the district court's denial of qualified immunity on this claim must be affirmed. 1. 29 With respect to his due process claim, Ridpath has identified the constitutional right at issue as the right to procedural due process when governmental action threatens a person's liberty interest in his reputation and choice of occupation. See Bd. of Regents v. Roth, 408 U.S. 564, 573 & n. 12, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (recognizing that notice and hearing would have been required if "[t]he State, in declining to rehire the respondent, [had made] any charge against him that might seriously damage his standing and associations in his community" or had "imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities"); cf. Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (observing that "the liberty component of the Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment, but a right which is nevertheless subject to reasonable government regulation").14 In support of this claim, Ridpath asserts that, by placing the "corrective action" label on his reassignment from Compliance Director to Director of Judicial Programs at the University, the Administrators knowingly foreclosed his career opportunities in his chosen field of intercollegiate athletics administration without allowing him an opportunity to defend himself. See Amended Complaint at ¶¶ 40, 51. 30 Ridpath maintains that he was not provided any procedural safeguards with respect to the use of the "corrective action" label. The Amended Complaint specifically alleges that Ridpath was not to blame for the NCAA rules violations, and excluded from participating in much of the related investigation, but that he was nonetheless made a "scapegoat" for the infractions; that he was discouraged from retaining personal counsel during the investigation; that the decision to place the "corrective action" label on his reassignment was made without his input and in contravention of an agreement between him and the University; and that he had no means to challenge this label or other aspects of the Infractions Report. The Administrators do not dispute that these allegations are sufficient to establish a lack of procedural safeguards. 31 The Administrators contend, however, that they were not required to provide Ridpath with any procedural safeguards, because the "corrective action" label did not implicate a protected liberty interest. Relying on precedent establishing the elements of a valid liberty interest claim, they maintain that the Amended Complaint's allegations are insufficient to establish the following (collectively, the "liberty interest contentions"): (a) that the "corrective action" label constituted a charge of a serious character defect; (b) that this label accompanied any damage to Ridpath's employment status; (c) that it was made public; and (d) that it was false. We are thus obliged to assess the Administrators' four liberty interest contentions, in order to determine whether Ridpath has sufficiently alleged a Fourteenth Amendment violation and thus satisfied the first prong of the qualified immunity test. 32 a. 33 The first of the liberty interest contentions is that the "corrective action" label did not implicate a protected liberty interest because it cannot be understood to constitute a charge of a serious character defect.15 The type of communication that gives rise to a protected liberty interest implies "the existence of serious character defects such as dishonesty or immorality." Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir.1982) (citing Roth, 408 U.S. at 573, 92 S.Ct. 2701). In assessing liberty interest claims, we have distinguished statements that imply such serious character defects from statements that simply allege "incompetence." Compare Boston v. Webb, 783 F.2d 1163, 1165-66 (4th Cir. 1986) (recognizing that plaintiff's liberty interest "was surely implicated" by public announcement that he was discharged after failing to disprove allegation of receiving bribe), Cox v. N. Va. Transp. Comm'n, 551 F.2d 555, 557-58 (4th Cir.1976) (affirming trial court's determination that plaintiff's liberty interest was infringed when employer publicly linked her discharge to investigation of financial irregularities, thus "insinuating dishonesty"), and McNeill v. Butz, 480 F.2d 314, 319-20 (4th Cir.1973) (concluding that federal employees' liberty interests were implicated by government-employer's charges of Agriculture Department regulation violations that "smack of deliberate fraud" and "in effect allege dishonesty"), with Zepp v. Rehrmann, 79 F.3d 381, 388 (4th Cir.1996) (rejecting deprivation of liberty interest claim where employer announced that plaintiff was being forced to retire "due to management problems" — an accusation, at most, "of incompetence or unsatisfactory job performance"), and Robertson, 679 F.2d at 1091-92 (concluding that liberty interest was not implicated by nonrenewal of employment contract for "incompetence and outside activities," because such allegations did not involve attack on plaintiff's integrity or honor). 34 The Administrators maintain that, by using the "corrective action" label, they provided no reasons for Ridpath's reassignment, or at least indicated nothing more than that he was incompetent as Compliance Director. Ridpath alleges, however, that this label calls into question not only his "professional competence as an NCAA Compliance Coordinator," but also his "honesty" and "integrity." Amended Complaint at ¶ 41. Of course, we are obliged, in applying Rule 12(b)(6) principles, to accept the allegations of the Amended Complaint as true and to view them in the light most favorable to Ridpath. See Jenkins, 119 F.3d at 1159. Utilizing this standard, we agree with Ridpath: the Administrators' use of the "corrective action" label lays blame on him for the University's NCAA rules violations — including academic fraud and impermissible employment of props at the Machine Shop — and thus insinuates "the existence of serious character defects such as dishonesty or immorality." Robertson, 679 F.2d at 1092. Indeed, Ridpath contends that, within the intercollegiate athletics community in particular, the use of the "corrective action" label in this context is typically understood to connote dishonesty and other serious character defects on the part of the label's bearer. This, as the district court recognized, is a question of fact, not properly assessed on a Rule 12(b)(6) motion. We therefore reject the Administrators' first liberty interest contention, that the "corrective action" label cannot be understood to imply a serious character defect. 35 b. 36 The Administrators' second liberty interest contention is that the "corrective action" label did not implicate a protected liberty interest because it did not accompany damage to Ridpath's employment status. We have required that, in order to deprive an employee of a liberty interest, a public employer's stigmatizing remarks must be "made in the course of a discharge or significant demotion." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n. 5 (4th Cir.1988) (citing Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1139 (7th Cir.1984); Mosrie v. Barry, 718 F.2d 1151, 1160-62 (D.C.Cir. 1983); Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977)). As established in decisions of our sister circuits on which we relied in Stone, such a "significant demotion" may include the reassignment of an employee to a position outside his field of choice. See Lawson, 725 F.2d at 1139; Moore, 557 F.2d at 438 & n. 11.16 37 The Administrators disregard the gravity of Ridpath's reassignment outside the Department of Athletics, from Compliance Director to Director of Judicial Programs. Rather, the Administrators essentially contend that Ridpath, having "voluntarily" changed positions, was neither discharged nor given a significant demotion. Properly assessing Ridpath's allegations in the light most favorable to him, however, these allegations establish that Ridpath's reassignment was neither voluntary nor an innocuous transfer. Rather, it was a significant demotion to a position outside his chosen field, rendering it tantamount to an outright discharge. 38 The Amended Complaint paints an ugly picture of the circumstances surrounding Ridpath's reassignment. As a key component to the scheme to make him a "scapegoat" for the University's NCAA rules violations, Ridpath was banished from the Department of Athletics. He was then relegated to a position for which he lacked the necessary education and training — a position that may have been prized by others, but to Ridpath constituted, at best, a perilous detour on his career path and, at worst, a dead end. Ridpath had to be persuaded to accept this transfer with the offer of significant inducements. Hence, he was given a pay raise, and was eventually making $15,000 more than the previous Director of Judicial Programs. More importantly, he was also falsely promised that he would be exonerated of blame for the athletics program infractions. Once this promise was broken and his reassignment was characterized as a "corrective action" to the NCAA, Ridpath was threatened against publicly challenging this label or the other conclusions in the Infractions Report. Cottrill warned Ridpath that "[y]ou need to think about your family young man." Amended Complaint at ¶ 57(a). Grose threatened to "bury [Ridpath] personally and professionally." Id. And Angel, the University's President, asserted that he "would cut the dead limb from the tree" and would have "no problem firing [Ridpath] on the spot" if he commented publicly. Id. at ¶ 57(b). These circumstances belie any notion that Ridpath's reassignment cannot be considered a significant demotion. Indeed, the circumstances strongly suggest that the Administrators knew the reassignment constituted a significant demotion and thus attempted to frame it as a voluntary transfer, so that if their attempts to muzzle Ridpath failed, they could still evade liability in any future litigation. 39 Under our precedent, Ridpath's allegations are more than sufficient to show that he was subjected to an involuntary and significant demotion in connection with the stigmatizing "corrective action" label. First of all, we have spelled out that a change in employment status is not voluntary if it is "obtained by the employer's misrepresentation or deception" or "forced by the employer's duress or coercion." Stone, 855 F.2d at 174. The circumstances alleged here — including the ruse that Ridpath would not be blamed for the NCAA rules violations if he agreed to the reassignment — are squarely within the Stone standard. Cf. id. at 172 n. 5, 175 (concluding that, absent showing of either misrepresentation or coercion, Stone plaintiff voluntarily resigned his employment and thus could not sustain liberty interest claim). 40 Moreover, the Lawson and Moore decisions, on which we relied in Stone, establish that the reassignment of an employee to a position outside his field of choice may very well constitute a "significant demotion" sufficient to invoke due process protections.17 In Lawson, the Seventh Circuit specifically recognized that "[t]he concept of liberty in Fourteenth Amendment jurisprudence has long included the liberty to follow a trade, profession, or other calling." 725 F.2d at 1138. The court further observed that an employee's liberty interest may be infringed by a firing or other employment action that serves to "exclu[de him] from his occupation." Id. at 1139. Accordingly, the court held that a public employer cannot avoid liability "by offering the employee a job far beneath the one he had," where being so demoted "is to be as effectively excluded from one's trade or calling as by being thrown out on the street." Id. Similarly, in Moore, the Fifth Circuit recognized that the internal transfer of an employee would support a liberty interest claim if the transfer "constitutes such a change of status as to be regarded essentially as a loss of employment." 557 F.2d at 438.18 The circumstances of Ridpath's reassignment fit neatly with those that the Lawson and Moore courts have recognized, with our approval, would support a liberty interest claim. Ridpath was not simply transferred from one position to a slightly less desirable or even a better one (no matter what his salary as Director of Judicial Programs or how appealing that position might have been to others). Rather, in a dramatic change of status equivalent to outright discharge, he was ousted from the University's Department of Athletics and completely excluded from his chosen field of intercollegiate athletics administration.19 We therefore reject the Administrators' second liberty interest contention, that the "corrective action" label did not accompany damage to Ridpath's employment status sufficient to invoke his right to procedural due process.20 41 c. 42 The Administrators' third liberty interest contention is that the "corrective action" label did not implicate a protected liberty interest, as it was not made public. In order to invoke due process protections, a charge of a serious character defect must be publicly disclosed. See Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552, 555 (4th Cir.1981); Fuller v. Laurens County Sch. Dist. No. 56, 563 F.2d 137, 141 (4th Cir. 1977). In this matter, Ridpath has plainly alleged that the "corrective action" label was communicated to the NCAA and to the public at large. Rather than disputing the sufficiency of this allegation, the Administrators contend that absolute witness immunity shields them from liability for any otherwise public use of the "corrective action" label during the NCAA administrative process. See generally Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (recognizing that parties and witnesses are entitled to absolute immunity from damages liability for their testimony in judicial proceedings). Unfortunately for the Administrators, their appeal is premised not on a denial of witness immunity, but on the denial of qualified immunity only. As a result, their claims of witness immunity are not before us, and we must conclude that their third liberty interest contention is without merit. 43 d. 44 The Administrators' final liberty interest contention is that the "corrective action" label did not implicate a protected liberty interest because it did not constitute a false statement. There can be no deprivation of liberty unless the stigmatizing charges at issue are false. See Stone, 855 F.2d at 172 n. 5. The Administrators assert that Ridpath has not alleged that his reassignment was not a "corrective action." This contention is belied by the Amended Complaint. Ridpath repeatedly disputes therein the central implication of the "corrective action" label, i.e., that he was responsible for the University's NCAA rules violations. Indeed, the essence of Ridpath's due process claim is that he should have been provided notice and a hearing to prove his lack of culpability and clear his name. This is a matter in which the falsity of a stigmatizing charge is fervently contested — not, for instance, one in which the plaintiff had previously conceded the truth of stigmatizing charges, in effect acting as his own accuser and rendering a hearing useless. Cf. McNeill, 480 F.2d at 326. We therefore reject the Administrators' final liberty interest contention. 45 In summary, contrary to the Administrators' liberty interest contentions, the allegations of Ridpath's Amended Complaint and the reasonable inferences drawn therefrom establish that the Administrators publicly made a false charge against Ridpath, connoting dishonesty and other serious character defects on his part, in the course of subjecting him to a significant demotion to a position outside his field of choice. Moreover, it is undisputed that the Amended Complaint reflects that Ridpath was not provided notice or an opportunity to be heard with respect to this charge. Ridpath therefore has sufficiently alleged the violation of his Fourteenth Amendment right to due process when a liberty interest is at stake. And, thus, the allegations underlying his due process claim satisfy the first prong of the qualified immunity test. 2. 46 Turning to the second prong of the qualified immunity test, we must next assess whether the Fourteenth Amendment right allegedly contravened by the Administrators was a "clearly established" right "of which a reasonable person would have known." Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir.2003) (internal quotation marks omitted). In its decision in Hope v. Pelzer, the Supreme Court clarified the appropriate inquiry on this issue. See 536 U.S. 730, 739-41, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also Jones v. Buchanan, 325 F.3d 520, 531-32 (4th Cir. 2003). As the Court explained, a constitutional right is clearly established when "its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope, 536 U.S. at 739, 122 S.Ct. 2508 (internal quotation marks omitted). That is, "`in the light of pre-existing law the unlawfulness must be apparent,'" id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)), but "the very action in question [need not have] previously been held unlawful," id. (internal quotation marks omitted), because "`general statements of the law are not inherently incapable of giving fair and clear warning, and ... a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question,'" id. at 741, 122 S.Ct. 2508 (quoting United States v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). Thus, "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. The "salient question" is whether the state of the law at the time of the events in question gave the officials "fair warning" that their conduct was unconstitutional. Id. 47 The key events alleged here — the labeling of Ridpath's reassignment outside the Department of Athletics as a "corrective action" without giving him notice or a hearing — occurred in late 2001. At that time, the state of the law was such that the Administrators were on notice that their conduct infringed on a liberty interest held by Ridpath, rendering their failure to provide him with procedural safeguards a violation of his Fourteenth Amendment right to due process. Indeed, decades earlier, in its decision in Board of Regents v. Roth, the Supreme Court recognized that "notice and an opportunity to be heard are essential" when a public employee's liberty interest is infringed by a charge implying such serious character defects as "dishonesty[ ] or immorality" lodged in the course of an injury such as failure to rehire. See 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (internal quotation marks omitted); see also Siegert v. Gilley, 500 U.S. 226, 233, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In the wake of Roth and its progeny, we have reiterated and expounded on the requirements of such a liberty interest claim on numerous occasions. 48 We have provided, in several decisions, concrete examples of the types of public statements implying the existence of serious character defects such as dishonesty and immorality. See Boston v. Webb, 783 F.2d 1163, 1165-66 (4th Cir.1986) (announcement that plaintiff was discharged after failing to disprove allegation of receiving bribe); Cox v. N. Va. Transp. Comm'n, 551 F.2d 555, 557-58 (4th Cir. 1976) (statement linking plaintiff's discharge to investigation of financial irregularities); McNeill v. Butz, 480 F.2d 314, 319-20 (4th Cir.1973) (charges against government employees of Agriculture Department regulation violations such as fraudulently obtaining federal payments for farm operators). Of course, none of these decisions involved the use of the "corrective action" label in the course of an NCAA investigation. However, there is no logical distinction between, for instance, linking an employee's discharge to an investigation of financial irregularities, see Cox, 551 F.2d at 557-58, and tying Ridpath's reassignment from the Department of Athletics to the University's serious NCAA rules violations (as the "corrective action" label served to do). In each of these scenarios, the charge at issue can be understood to insinuate dishonesty and other serious character defects. Thus, our precedent gave the Administrators fair warning that the "corrective action" label was just the type of charge that implicates a protected liberty interest.21 49 Similarly, we have specified that a public employer's stigmatizing remarks may infringe on an employee's liberty interest if such remarks are "made in the course of a discharge or significant demotion." Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n. 5 (4th Cir.1988). For that proposition, we relied on decisions of our sister circuits, including Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1139 (7th Cir.1984), and Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977). Although we had no occasion to elaborate on the definition of "significant demotion" in Stone, the courts in Lawson and Moore did so, with our approval. And the definitions they provided — such as an offer of "a job far beneath the one he had," where being so demoted "is to be as effectively excluded from one's trade or calling as by being thrown out on the street" — squarely correspond with Ridpath's reassignment from Compliance Director to Director of Judicial Programs (a position wholly outside his chosen field). See Lawson, 725 F.2d at 1139. The Administrators therefore were provided with fair and clear warning that, by banishing Ridpath from the Department of Athletics, they were unlawfully subjecting him to a "significant demotion" within the meaning of Stone and authorities relied on therein.22 50 Finally, because it is undisputed that Ridpath was not provided any procedural safeguards with respect to the labeling of his reassignment as a "corrective action," it cannot be questioned that the Administrators contravened Roth's requirement for "notice and an opportunity to be heard." See 408 U.S. at 573, 92 S.Ct. 2701. Accordingly, accepting the allegations of the Amended Complaint as true, the Administrators contravened a clearly established Fourteenth Amendment procedural due process right of which a reasonable person would have known. They therefore are not entitled to qualified immunity at this stage of these proceedings on Ridpath's due process claim. C. 51 The Administrators next maintain that the district court erred in denying their Rule 12(b)(6) motion to dismiss Ridpath's free speech claims on qualified immunity grounds. The Administrators are entitled to qualified immunity on these claims unless each claim satisfies both prongs of the qualified immunity test. As explained below, we conclude that each claim meets this test.23 1. 52 The first question before us on the free speech claims is whether, as to each claim, Ridpath has sufficiently alleged a violation of a First Amendment right. See Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir. 2003). Ridpath has raised two distinct free speech claims against the Administrators. First, he maintains that being relieved from his adjunct teaching position in the Department of Exercise and Sports Science constituted impermissible retaliation, in part "for his speaking out against [the University's] conduct during the NCAA infractions process," and in part for "having exercised his First Amendment right to petition the government for redress of grievance by retaining counsel and filing a civil action in response to ... constitutional violations" (the "retaliation claim"). Amended Complaint at ¶¶ 61-62.24 Second, he maintains that the Administrators threatened him professionally (and personally) if he spoke out publicly about the NCAA investigation and that, as a result, he "refrained from immediately and/or publicly challenging the NCAA Infractions Report and `corrective action' label" (the "chilling claim"). Id. at ¶¶ 57-58. We assess in turn the sufficiency of the allegations underlying each free speech claim. 53 a. 54 With regard to the retaliation claim, a public employer contravenes a public employee's First Amendment rights when it discharges or "refuses to rehire [the] employee," or when it makes decisions relating to "promotion, transfer, recall, and hiring based on the exercise of" that employee's free speech rights. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir.2000) (internal quotation marks omitted).25 In order to prove that a retaliatory employment action violated a public employee's free speech rights, the employee must satisfy the three prong-test we laid out in McVey v. Stacy, 157 F.3d 271 (4th Cir.1998) (the "McVey test"). First, the public employee must have spoken as a citizen, not as an employee, on a matter of public concern. Id. at 277. Second, the employee's interest in the expression at issue must have outweighed the employer's "interest in providing effective and efficient services to the public." Id. Third, there must have been a sufficient causal nexus between the protected speech and the retaliatory employment action. Id. at 277-78.26 55 i. 56 Under the first prong of the McVey test, we must assess whether the Amended Complaint has sufficiently alleged that Ridpath's speech was as a private citizen on a matter of public concern. See McVey, 157 F.3d at 277. An employee's speech involves a matter of public concern if it addresses "an issue of social, political, or other interest to a community." Urofsky v. Gilmore, 216 F.3d 401, 406-07 (4th Cir.2000) (en banc). Importantly, "the place where the speech occurs is irrelevant: An employee may speak as a citizen on a matter of public concern at the workplace, and may speak as an employee away from the workplace." Id. at 407. While "[t]he inquiry into the protected status of speech is one of law, not fact," Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), such status "must be determined by the content, form, and context of a given statement, as revealed by the whole record," id. at 147-48, 103 S.Ct. 1684. 57 The Amended Complaint alleges that Ridpath was relieved of his teaching duties for, inter alia, "speaking out against [the University's] conduct during the NCAA infractions process." Amended Complaint at ¶ 61. It does not specify whether Ridpath's remarks concerned the University's treatment of Ridpath, its general response to the NCAA rules violations, or its perpetration of the underlying violations. Nevertheless, a district court may reject a claim at the Rule 12(b)(6) stage only if "it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.2001). Allegations of NCAA rules violations by a prominent sports program at a major public university, and the nature of the university's handling of such allegations, are matters of great "social, political, or other interest to a community." See Urofsky, 216 F.3d at 406. We therefore cannot say that Ridpath will be unable to build a factual record which demonstrates that his remarks were on a matter of public concern. Moreover, the Amended Complaint supports the inference that Ridpath commented on the University's conduct during the NCAA infractions process in a personal capacity and not as a representative of the University. Accordingly, Ridpath has sufficiently alleged that he was speaking as a private citizen on a matter of public concern and satisfied the first prong of the McVey test.27 58 ii. 59 Under the McVey test's second prong, commonly referred to as "Pickering balancing," we must assess whether the Amended Complaint has sufficiently alleged that Ridpath's interest in First Amendment expression outweighed the University's interest in the efficient provision of public services. See McVey, 157 F.3d at 277. For Pickering balancing, "we must take into account the context of the employee's speech" and "the extent to which it disrupts the operation and mission" of the institution. Id. at 278. Factors relevant to this inquiry include whether a public employee's speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee's duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee's role entailed. Id.28 60 Here, we cannot say that Ridpath will be unable to show that his interest in First Amendment expression outweighed the University's interest in the efficient operation of his workplace. Nothing in the Amended Complaint indicates, for example, that his comments impaired the maintenance of discipline, hurt workplace morale, or constituted an abuse of his position. Moreover, the Administrators have not suggested how — or even that — Ridpath's remarks interfered with the University's efficient operation.29 61 Once a factual record is developed through discovery, the evidence could support the inference that Ridpath's workplace was impaired as a result of his comments and that he simply had to be terminated from his adjunct teaching position. Such a question, however, is not to be assessed under Rule 12(b)(6) but in Rule 56 summary judgment proceedings. See McVey, 157 F.3d at 278-79 (affirming district court's decision to defer deciding qualified immunity until "record is better developed" in part because complaint did not "resolve on its face" second prong of McVey test). At the Rule 12(b)(6) stage, Ridpath's allegations warrant the inference that his free speech interests outweigh the detrimental effect, if any, his comments may have had on the efficiency of his workplace. Indeed, read in the proper light, the Amended Complaint alleges that he was relieved of his adjunct teaching position for protected statements that had no impact on his workplace whatsoever. Accepting those allegations as true and giving Ridpath the benefit of the reasonable factual inferences, we cannot say that "it appears beyond all doubt that [Ridpath] can prove no set of facts" to tip the Pickering balance in his favor. See Trulock, 275 F.3d at 405. Accordingly, Ridpath has sufficiently shown that his interest in speaking outweighed the University's interest in promoting the efficient provision of public services, and he has satisfied the second prong of the McVey test. 62 iii. 63 Under the third prong of the McVey test, Ridpath must demonstrate a causal relationship between his protected speech and the termination of his teaching duties. See McVey, 157 F.3d at 277-78. The causation requirement is "rigorous" in that the protected expression must have been the "but for" cause of the adverse employment action alleged. Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir.1990). As explained below, Ridpath's Amended Complaint has sufficiently alleged causation. 64 The Amended Complaint alleges that during related internal grievance proceedings, a University official "testified, under oath, that Dr. Ridpath's adjunct faculty position was terminated, in whole or in part, for his speaking out against [the University's] conduct during the NCAA infractions process." Amended Complaint at ¶ 61. It further alleges that Ridpath was relieved of his teaching position "in direct ... retaliation for having exercised his First Amendment right to petition the government for redress of grievance by retaining counsel and filing a civil action in response to ... constitutional violations." Id. at ¶ 62. Thus, the Amended Complaint alleges that Ridpath's protected speech was the "but for" cause of the termination of his teaching duties, satisfying the causation requirement embodied in the third prong of the McVey test. Having met each prong of the McVey test at this stage, Ridpath has sufficiently alleged a First Amendment retaliation claim. 65 b. 66 We turn next to the second of Ridpath's free speech claims, the chilling claim. Under our precedent, "a public employer is prohibited from threatening to discharge a public employee in an effort to chill that employee's rights under the First Amendment." Edwards v. City of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999).30 A chilling claim is essentially the derivative of a retaliation claim: if a public employer cannot fire, demote, or similarly punish a public employee for engaging in protected speech, the employer also cannot intimidate the employee into silence by threatening impermissible retribution. 67 According to the Amended Complaint, each of the Administrators warned that if Ridpath commented publicly on the NCAA investigation, he would face professional, as well as personal, repercussions. On November 1, 2001, Cottrill told Ridpath "[y]ou ... have no say in the matter. You need to think about your family young man." Amended Complaint at ¶ 57(a). Grose then advised him: "I am telling you. You do anything to resurrect this [NCAA Infractions issues] and I will bury you personally and professionally." Id. (alteration in original). Later, Angel asserted at a meeting of University officials that if Ridpath commented on the "cheap shots" taken at him in the NCAA Infractions Report, Angel "would cut the dead limb from the tree." Id. at ¶ 57(b). Angel even elaborated on the point, asserting that he had handled similar situations before and would have "no problem firing [Ridpath] on the spot" if he commented on the investigation. Id. (alteration in original).31 68 Because the prohibition against the chilling of free speech derives from the prohibition against retaliation, we must utilize a McVey-type analysis to determine whether the speech at issue in the chilling claim is entitled to First Amendment protection. See Edwards, 178 F.3d at 245-49 (inquiring in single McVey-type analysis whether speech was protected for both retaliation and chilling claims). As discussed previously, the NCAA rules violations against the University, the University's response to the violations, and the University's treatment of Ridpath were matters of public concern. See McVey, 157 F.3d at 277 (requiring employee's speech to be on matter of public concern). Furthermore, the Administrators have, again, not asserted why — or even that — they feared the University's efficient operation might be harmed if Ridpath, who was no longer the Compliance Director, spoke publicly. See id. at 278 ("[W]e must take into account the context of the employee's speech including the employee's role in the institution and the extent to which it disrupts the operation and mission of the agency"). Accordingly, the speech at issue in the chilling claim is protected by the First Amendment. 69 Reading the statements attributed to the Administrators in the proper light, each of them was seeking to use his position at the University to intimidate Ridpath into silence. Under Edwards, the Administrators' misuse of the power vested in them by the University contravened Ridpath's free speech rights. Accordingly, Ridpath has alleged facts sufficient to support his chilling claim. As a result, each of Ridpath's free speech claims sufficiently states the violation of a First Amendment right, and each claim thus survives the first prong of the qualified immunity test. 2. 70 Under the second prong of the qualified immunity test, we assess whether the free speech claims would contravene clearly established rights of which a reasonable person would have known. See Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir.2003). We apply this test to, first of all, Ridpath's retaliation claim and, secondly, to his chilling claim. 71 a. 72 The Administrators contend that Ridpath's retaliation claim is not based on a clearly established First Amendment right. We are constrained to disagree. According to the Amended Complaint, Ridpath was relieved of his adjunct teaching position on July 14, 2003. See Amended Complaint at ¶ 59. At that time a long line of decisions, both the Supreme Court's and our own, established that a public employee could not be fired solely for making protected statements. See, e.g., Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) ("It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech."); Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("For at least 15 years it has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression."); McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998) ("The First Amendment protects public employees from termination of their employment in retaliation for their exercise of speech on matters of public concern."). Furthermore, by the time Ridpath was relieved of his teaching position at the University, we had been applying the "McVey test" to such retaliation claims for more than a decade. See, e.g., McVey, 157 F.3d at 277-78; Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.1992). Thus, the prohibition against retaliation for protected speech was clearly established at the time Ridpath was relieved of his teaching position. 73 Our inquiry on this issue does not end here, however, because we must also examine whether reasonable persons would have been aware that relieving Ridpath of his adjunct teaching position for his remarks violated his constitutionally protected free speech rights. In making such a determination, we have aptly observed that "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." McVey, 157 F.3d at 277 (internal quotation marks omitted). And because of the "sophisticated balancing" involved in First Amendment questions, "only infrequently will it be clearly established that a public employee's speech on a matter of public concern is constitutionally protected." Id. (internal quotation marks omitted). Still, public employers enjoy only qualified — not absolute — immunity, and a public employer can find no refuge in qualified immunity when an adverse employment decision clearly contravenes a public employee's First Amendment rights. 74 While further factual development in this case may present a murky picture of why Ridpath was relieved of his teaching position, the content and context of his statements, and any negative impact his remarks had on the efficiency of his workplace, the scene painted by the Amended Complaint is crystal clear. Read in the proper light, it alleges that the Administrators retaliated against Ridpath for making protected statements that they did not like. Such activity does not merely implicate the gray edges of the right Ridpath asserts; it goes to its very core. And taking the allegations of the Amended Complaint as true, a clearer violation of constitutionally protected free speech would be difficult to fathom. Therefore, Ridpath's retaliation claim alleges a violation of clearly established law of which a reasonable person would have known.32 75 b. 76 The Administrators similarly assert that Ridpath's chilling claim is not based on a clearly established First Amendment right. As previously discussed, comments by Ridpath concerning the NCAA rules violations, the University's response to those violations, or the University's treatment of Ridpath would be clearly protected. In Edwards v. City of Goldsboro, decided by us more than two years prior to the events alleged in the Amended Complaint, we held that, under the applicable legal principles, "a public employer is prohibited from threatening to discharge a public employee in an effort to chill that employee's rights under the First Amendment." 178 F.3d 231, 246 (4th Cir. 1999). Given this precedent, we are obliged to conclude that the Administrators' threats violated clearly established law of which reasonable persons would have known. Accordingly, the Administrators are not entitled to qualified immunity on Ridpath's free speech claims at this stage in the proceedings.33 IV. 77 Pursuant to the foregoing, we dismiss the appeal of Coach Pruett and affirm the denial of qualified immunity to the Board and the Administrators. 78 DISMISSED IN PART AND AFFIRMED IN PART. Notes: 1 When this lawsuit was filed, Angel was the University's President, Cottrill its Vice President for Executive Affairs and General Counsel, and Grose its Senior Vice President for Operations. Two notices of appeal have been filed: one by the Board and the Administrators; and a second by Coach Pruett. Hilliard is not a party to these appeals 2 In ruling today, we acknowledge that the Appellants are not precluded from reasserting claims of qualified immunity at the summary judgment stage of the underlying proceedings, or from appealing, under the collateral order doctrine, any adverse district court rulings on such claimsSee Behrens v. Pelletier, 516 U.S. 299, 306-07, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (recognizing that defendant may raise qualified immunity at successive stages of litigation, and appeal denial of such defense more than once). 3 We are obliged, in our review of the district court's qualified immunity ruling, to accept as true the facts alleged in the Amended Complaint and to view them in the light most favorable to RidpathSee Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.1997) (en banc). In addition to the Amended Complaint, several exhibits are before us. By Order of October 22, 2004, we permitted the Appellants to attach these exhibits to their reply brief. We further allowed Ridpath to object to the use of any fact shown in the exhibits that was not otherwise alleged in the Amended Complaint. In the final analysis, the exhibits have been of limited utility to our review, because the Appellants rely on them largely in an effort to contradict and disprove the Amended Complaint's allegations, which we must, of course, accept as true. In this regard, we also deny as moot two pending motions filed by Ridpath with respect to these exhibits and other materials submitted by the Appellants — the "Appellee's Motion to File Sur Reply to Appellants' Reply," filed on January 28, 2005, and the "Appellee's Motion to Strike Appellants' Notice of Decision Regarding Dr. Ridpath's Level IV Grievance," filed on February 11, 2005. 4 Ridpath's chosen profession is intercollegiate athletics administration, but the Director of Judicial Programs is a position outside the University's Department of AthleticsSee Amended Complaint at ¶¶ 14-15, 35. According to information available through the University's website, the Director of Judicial Programs oversees enforcement of the University's Code of Student Rights and Responsibilities, which outlines standards of expected student conduct and establishes disciplinary procedures for violations of these standards. See http://www. marshall.edu/ judicial" affairs. 5 In December 2002, Ridpath filed a complaint against several of the Defendants herein, making allegations similar to those in these proceedings. On July 8, 2003, that civil action — deemed a separate lawsuit from these proceedings in the district court and assigned a different case number — was voluntarily dismissed without prejudice by Ridpath 6 Ridpath asserted each of the two free speech claims against the Board and the Administrators, and only one of them against Coach Pruett 7 In their Rule 12(b)(6) effort, the Board and the Administrators raised thirteen grounds, five of which pertained to the § 1983 claims, as follows: (1) that they were entitled to Eleventh Amendment immunity; (2) that they were entitled to witness immunity; (3) that Ridpath did not possess a constitutionally protected property right in his employment with the University; (4) that they did not infringe on Ridpath's First and Fourteenth Amendment rights; and (5) that Ridpath had failed to join Hilliard, an indispensable party. In Coach Pruett's separate motion, he asserted three grounds for relief, including Eleventh Amendment immunity. 8 In addition to the three § 1983 claims at issue in these appeals, Ridpath alleged, in both the Initial Complaint and the Amended Complaint, a separate claim under § 1983 for civil conspiracy. He also asserted six state law claims, arising under the Constitution of West Virginia and state common law 9 The February 2004 Motions included the following: Coach Pruett's February 5, 2004 motion to dismiss, incorporating by reference his earlier dismissal motion and asserting no additional grounds; and the Board's February 12, 2004 motion to dismiss or, alternatively, to transfer these proceedings to state court. The Board's motion was accompanied by a memorandum of law submitted in its name, as well as those of the Administrators (who were not named as movants in the motion to dismiss). This memorandum reasserted many of the grounds relied on by the Board and the Administrators in support of their earlier dismissal motion; however, unlike the October 2003 Reply Brief, the memorandum did not articulate any claims of qualified immunity. These anomalies in the February 2004 Motions —i.e., the failure to raise qualified immunity and the omission of the Administrators as movants — are immaterial in these appeals, because the qualified immunity ruling at issue was made pursuant to only the September 2003 Motions. 10 On February 25, 2004, after the district court filed its Opinion, Hilliard sought dismissal of the Amended Complaint on the basis of,inter alia, qualified immunity. On February 27, 2004, Coach Pruett filed an answer to the Amended Complaint, invoking qualified immunity. Those qualified immunity claims were the first raised by Hilliard and Coach Pruett. 11 After the filing of the notices of appeal, the district court ruled on the February 2004 Motions. Specifically, on April 27, 2004, the court disposed of Coach Pruett's February 5, 2004 motion to dismiss (in which qualified immunity was not at issue). Also on April 27, 2004, the court granted the unopposed motion of the Board and the Administrators to stay the district court proceedings pending our disposition of these appeals. Despite this stay, the district court proceedings continued, and, on September 23, 2004, the court ruled on the Board's February 12, 2004 motion to dismiss. In rendering its decision on that motion, the court did not disturb its earlier qualified immunity ruling of February 17, 2004, which remains the sole subject of these appeals 12 Following oral argument, we requested supplemental briefing from the parties on the jurisdictional issues. Although Ridpath had not previously challenged our jurisdiction, he did so in his supplemental submission. Meanwhile, the Appellants continued to maintain that we possess jurisdiction over their appeals 13 The § 1983 claims against the Administrators in their official capacities are essentially duplicative of the § 1983 claims against the BoardSee Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir.2004) (citing Graham, 473 U.S. at 165-66, 105 S.Ct. 3099). Although the Board and the Administrators, in their official capacities, are not entitled to qualified immunity on the § 1983 claims, they may be entitled to other immunities and defenses. See Graham, 473 U.S. at 167, 105 S.Ct. 3099. For example, the district court ruled that the Eleventh Amendment bars Ridpath from obtaining money damages (but not prospective injunctive relief) from any of the official-capacity Defendants on the § 1983 claims, see Opinion at 303, a ruling not before us in these appeals. 14 As the Supreme Court has recognized, "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Roth, 408 U.S. at 569, 92 S.Ct. 2701. In order to have a protected property interest in his employment, a person must possess a legitimate claim of entitlement to it — created, for example, by contract or state law. See id. at 577-78, 92 S.Ct. 2701; Robertson v. Rogers, 679 F.2d 1090, 1091 (4th Cir.1982). Ridpath, an at-will employee of the University, is not claiming any protected property interest in his employment. 15 On this issue and others, the Administrators extensively rely on unpublished decisions of this Court. Of course, under Local Rule 36(c), citations to unpublished decisions are disfavored. These citations might be warranted if, for example, there were no published decision on point. Because such circumstances are not present here, however, we do not address the unpublished decisions cited by the Administrators 16 Stone and the decisions relied on therein followed the Supreme Court's decision in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), explaining its earlier decision in Roth. The plaintiff in Paul had asserted a § 1983 claim based on allegations that the defendant-police chief had included the plaintiff's name and photograph on a flyer of "Active Shoplifters" distributed for posting by local merchants, thus branding him as a criminal and seriously impairing his future employment opportunities. See 424 U.S. at 697, 96 S.Ct. 1155. In rejecting this claim as one for defamation alone, the Supreme Court characterized its previous decision in Roth as recognizing "that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation." Paul, 424 U.S. at 709-10, 96 S.Ct. 1155 (citing Roth, 408 U.S. at 573, 92 S.Ct. 2701) (emphasis added). The Paul Court deemed the language of Roth to be "inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable under the Fourteenth Amendment." Paul, 424 U.S. at 709, 96 S.Ct. 1155. Accordingly, under what is sometimes referred to as its "stigma plus" test, the Paul Court instructed that no deprivation of a liberty interest occurs when, in the course of defaming a person, a public official solely impairs that person's future employment opportunities, without subjecting him to a present injury such as termination of government employment. Id.; accord Siegert v. Gilley, 500 U.S. 226, 233, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ("Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation." (emphasis added)); see also Johnson v. Morris, 903 F.2d 996, 999 (4th Cir.1990) ("Publication of stigmatizing charges alone, without damages to `tangible interests such as employment,' does not invoke the due process clause." (quoting Paul, 424 U.S. at 701, 96 S.Ct. 1155)). 17 The third decision of a sister circuit on which we relied inStone — the D.C. Circuit's decision in Mosrie — is not on point with the issues herein. See Mosrie, 718 F.2d at 1161 (concluding that lateral transfer within same line of work, with no reduction in rank or pay, did not constitute deprivation of liberty). 18 Unlike theLawson court, the Moore court did not explicitly discuss the significance of one's liberty interest in pursuing a chosen occupation or calling. However, as an example of the type of internal transfer that might support a liberty interest claim, the Moore court identified a hypothetical demotion from police corporal to janitor (which, obviously, would constitute a change in line of work). See 557 F.2d at 438 n. 11. 19 These facts stand in stark contrast to those that have been deemed insufficient to support liberty interest claims. InJohnson v. Morris, for example, we rejected the liberty interest claim of a plaintiff who was merely demoted from one position to another within the Virginia Department of Corrections, presumably with no change in line of work (as there was no allegation to the contrary). See 903 F.2d 996, 997-99 (4th Cir.1990). Likewise, in Moore, the Fifth Circuit concluded that no liberty interest was implicated where the plaintiff was only demoted from police corporal to patrolman. See 557 F.2d at 438. 20 In his dissent on this aspect of the Administrators' appeal, our distinguished colleague mischaracterizes Ridpath's due process claim as one for defamation alone and, in so doing, erroneously analogizes the facts before us to those presented inSiegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). There, the Supreme Court rejected the plaintiff-employee's liberty interest claim for failure to satisfy the "stigma plus" test previously outlined in Paul v. Davis, 424 U.S. 693, 709-10, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (recognizing that defamatory remark may implicate liberty interest if made in connection with discharge from employment). See Siegert, 500 U.S. at 233-34, 111 S.Ct. 1789; see also supra note 16. In rejecting Siegert's liberty interest claim, the Court explained that "[t]he alleged defamation was not uttered incident to the termination of Siegert's employment," in that (1) "he voluntarily resigned from his position," and (2) the alleged defamation did not occur until "several weeks later." Siegert, 500 U.S. at 234, 111 S.Ct. 1789. Here, by stark contrast, the alleged defamation — the use of the "corrective action" label — occurred incident to Ridpath's involuntary and significant demotion. 21 Our precedent also clarifies that, in order to sustain a liberty interest claim, the stigmatizing charge at issue must have been both publicized and falseSee, e.g., Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n. 5 (4th Cir.1988); Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552, 555 (4th Cir.1981). According to the Amended Complaint, the "corrective action" label was communicated to the NCAA and to the public at large, falsely conveying that Ridpath was at fault for the University's NCAA rules violations. Our precedent applies with obvious clarity to this alleged conduct. 22 Moreover, the Administrators cannot have equated the circumstances of Ridpath's reassignment with the facts ofStone, in which we rejected the plaintiff's liberty interest claim on the ground that he had voluntarily resigned from his employment. See 855 F.2d at 172 n. 5, 178. As we spelled out in Stone, a change in employment status is not voluntary if it is "obtained by the employer's misrepresentation or deception" or "forced by the employer's duress or coercion." Id. at 174. Viewing the allegations of the Amended Complaint in the light most favorable to Ridpath, the circumstances of his reassignment readily meet this standard. 23 In affirming the district court's denial of qualified immunity to the Administrators on Ridpath's free speech claims, we emphasize that these proceedings are at the 12(b)(6) dismissal stage, and that we are thus required to accept as true the facts alleged in the Amended Complaint and view them in the light most favorable to RidpathSee Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). Based on the allegations of the Amended Complaint, we are unable to say that Ridpath cannot build a factual record to demonstrate that his clearly established First Amendment rights were contravened. Simply put, the qualified immunity issue is open for further assessment upon development of the factual record, and neither this decision nor the district court's Opinion precludes the Administrators from reasserting claims of qualified immunity at a later stage of these proceedings. Cf. McVey v. Stacy, 157 F.3d 271, 279 (4th Cir.1998) (affirming district court's ruling to defer deciding qualified immunity issue until record better developed on plaintiff's First Amendment claim). 24 We observe that Ridpath alleges that he was relieved of his teaching position, not his position as Compliance Director, in retaliation for the exercise of his First Amendment rights 25 Contrary to the Administrators' contention, a public employee need not have a protected property interest in his employment to state a retaliation claimSee Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ("Even though he could have been discharged for no reason whatever, ... he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms."). 26 TheMcVey test fleshes out the balancing test first articulated by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and further explained in later decisions. The McVey test's first prong, whether the employee's speech addressed a matter of public concern, is "[t]he threshold question." See Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). The second prong, whether the employee's interest in speaking outweighed the employer's interest in the efficient provision of public services, embodies Pickering's original formula. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. The McVey test's third prong, causation, requires the employee to demonstrate a sufficient nexus between the protected speech and an adverse employment action by the employer. See Huang v. Bd. of Governors, 902 F.2d 1134, 1140 (4th Cir.1990) (requiring employee to show "but for" connection). 27 The Amended Complaint also alleges that Ridpath was relieved of his teaching position for "retaining counsel and filing a civil action in response to ... constitutional violations." Amended Complaint at ¶ 62. In their appeal, the Administrators have not challenged Ridpath's position that his filing of a civil action constituted protected speech 28 A majority of theMcVey panel observed that both this Court and the Supreme Court have also included the value of the employee's speech to the public in the Pickering balance. See McVey, 157 F.3d at 279 (Murnaghan, J., concurring in part and concurring in the judgment) (emphasizing importance of considering public interest in Pickering balancing); id. at 282 (Michael, J.) (concurring "except to the extent ... qualified by Judge Murnaghan's separate opinion"). Judge Murnaghan observed that, in Connick, the Supreme Court cautioned that "`a stronger showing [of employer interest] may be necessary if the employee's speech more substantially involved matters of public concern.'" Id. at 279 (quoting Connick, 461 U.S. at 152, 103 S.Ct. 1684) (alteration in original). In the present analysis, however, we need not assess the value of Ridpath's speech to the public, as it would be difficult to calculate based on the Amended Complaint, and we can decide in Ridpath's favor without reaching it. 29 Instead, the Administrators contend that the University was a more efficient place after Ridpath was relieved of his teaching position because the University no longer had to pay his salary and he had been an inefficient teacher 30 As the Supreme Court has explained, "the threat of dismissal from public employment is... a potent means of inhibiting speech."Pickering v. Bd. of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). 31 On the face of the Amended Complaint, it is unclear whether Ridpath was at the meeting when Angel threatened to "fire [Ridpath] on the spot" and, if not, when and how he later learned of Angel's remarks. Reading the Amended Complaint in the proper light, however, we should infer that, if Ridpath was not present at the meeting, he was made aware of Angel's threats shortly thereafter 32 The Administrators assert on appeal that Ridpath's position was eliminated, and that "no reasonable official would have known that, by canceling a class because of budgetary concerns, he or she would be exposed to a First Amendment claim by an adjunct faculty professor."See Reply Br. of Appellants at 28-29. However, the Amended Complaint alleges that Ridpath was relieved of his teaching position at the University in retaliation for protected speech, see Amended Complaint at ¶¶ 61-62, and we cannot, under controlling Rule 12(b)(6) principles, accept the Administrators' contrary factual assertion. 33 Finally, the Appellants contend that Ridpath's free speech claims should be dismissed because he has not exhausted his state administrative remedies. However, as the Appellants only appealed qualified immunity rulings, we have no jurisdiction to review their administrative-exhaustion contention 79 WIDENER, Circuit Judge, concurring and dissenting: 80 As to Count I of the complaint, I respectfully dissent. As to Count II, I concur in the result. I concur in the dismissal of the appeal of Coach Pruett. 81 I respectfully dissent on account of the failure of the district court, and the majority in our case, to grant qualified immunity to the administrators at Marshall University with respect to the defamation count, Count I of the complaint. 82 The § 1983 claims are based on two incidents. The first is the NCAA infraction report of December 21, 2001, an advance copy of which had been supplied to the University sometime previously. That report described, at the instance of the University, the "transfer [ ... of] the compliance director from athletics to another department at the university" as a "corrective action [...]" 83 The plaintiff claims such use, by the University, of the term "corrective action" is defamatory and has damaged his reputation so that his opportunities for employment within his chosen profession, college athletics, have been, or will be, damaged. 84 In the first incident, based on defamation, the record does not disclose the words which were used by the University in reporting to the NCAA Dr. Ridpath's transfer as a corrective action. Neither does it show whether that communication was oral or written. 85 I assume for the moment, for argument, that labeling Dr. Ridpath's transfer from the athletic department to be the Director of Judicial Programs could be defamatory when described as a corrective action, but that does not end the inquiry. Damage to Dr. Ridpath's reputation, which is the root cause of this law suit, is not actionable under § 1983. 86 The district court, in its opinion, described Dr. Ridpath's claim: 87 Ridpath, on the other hand, contends that he has not alleged that he had a property interest in his employment at MU. Instead, he asserts that the `corrective action' label assigned to his transfer to the position of Director of Judicial programs at MU without due process has destroyed his reputation in the field of collegiate athletics because that label is generally understood by those connected to college athletics to be a code term importing dishonesty and incompetence on the part of individuals to whom it is alleged. J.A. 242. (Italics added.) 88 In my opinion, this case is controlled by Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). In that case, St. Elizabeths Hospital, a facility of the United States, notified Siegert, a clinical psychologist, that it was preparing to terminate his employment, giving as the reason that his "`proposed removal was based upon his inability to report for duty in a dependable and reliable manner, his failure to comply with supervisory directives, and cumulative charges of absence without approved leave.' ... After meeting with hospital officials, Siegert agreed to resign from the hospital and thereby avoid a termination that might damage his reputation." 500 U.S. at 228, 111 S.Ct. 1789. Siegert then began work as a clinical psychologist in a United States Army hospital in Bremerhaven, West Germany. At that Army hospital, he signed a credential information request form, asking that St. Elizabeths provide all information on job performance and privileges while at St. Elizabeths. Siegert's request was referred to Gilley, who had been Siegert's supervisor at St. Elizabeths. Gilley notified the Army that 89 "he could not recommend [Siegert] for privileges as a psychologist." ... In that letter, Gilley wrote that he "considered Dr. Siegert to be both inept and unethical, perhaps the least trustworthy individual I have supervised in my thirteen years at [St. Elizabeths]." 500 U.S. at 228, 111 S.Ct. 1789. 90 After receiving Gilley's letter, the Army told Siegert that because reports about him were extremely unfavorable, its Credential Committee was recommending that he not be credentialed. He later was given provisional credentials limited to his work with adults. Siegert's suit against Gilley followed. Siegert contended that "the loss of his position at the Bremerhaven Hospital, followed by the refusal of the Army hospital in Stuttgart to consider his application for employment, and his general inability to find comparable work because of Gilley's letter, constituted such a deprivation [of a `liberty interest' secured by the Fifth Amendment to the United States Constitution]." 500 U.S. at 232, 111 S.Ct. 1789. 91 The Court decided that injury to reputation is not an interest protected under the Constitution. "Defamation, by itself, is a tort actionable under the laws of most States, but not a Constitutional deprivation." 500 U.S. at 233, 111 S.Ct. 1789. The Court reasoned that 92 The statements contained in the letter would undoubtedly damage the reputation of one in his position, and impair his future employment prospects .... But so long as such damage flows from injury caused by the defendant to a plaintiff's reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action. 500 U.S. at 234, 111 S.Ct. 1789. 93 The court affirmed the dismissal of Siegert's Bivens claim, and its holding was explicit and free from doubt: 94 We hold that the petitioner in this case [Siegert] failed to satisfy the first inquiry in the examination of such a claim; he failed to allege the violation of a clearly established constitutional right. 500 U.S. at 231, 111 S.Ct. 1789. 95 And the Court noted, at 229 and 234, that Siegert did not make a claim of diverse citizenship to prosecute a claim for defamation. We note that Dr. Ridpath has made no state law claim for defamation here. If Dr. Ridpath had wished to bring a defamation suit for slander or libel in a court of appropriate jurisdiction, he might have done so, but that is not a question before us. 96 I note that, in DiMeglio v. Haines, 45 F.3d 790 (4th Cir.1995), a § 1983 case as here, we followed Siegert and held "[i]n deciding qualified immunity claims, courts should determine whether the plaintiff has alleged the violation of a constitutional right that was clearly established at the time of the defendant's actions, before they proceed to address any ancillary issues." 45 F.3d at 797. 97 In my opinion, the facts in the Siegert case and the facts in the present case are so nearly the same that Siegert must control. The defamatory language in Siegert is equally as defamatory as that claimed here; the claims of Siegert and Dr. Ridpath are each based on due process, whether under the Fifth Amendment or the Fourteenth, is a matter of indifference; and both Siegert and Dr. Ridpath claim that resulting damage is because of injury to reputation, which the Court held not actionable under Siegert as a Constitutional deprivation. 500 U.S. at 233, 111 S.Ct. 1789. 98 No violation of a Constitutional right having been established, qualified immunity should have been granted as to the defamation claim. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.1991); Kitchen v. Upshaw, 286 F.3d 179, 189 (4th Cir.2002); DiMeglio, 45 F.3d at 808. 99 As for the second incident, Count II of the complaint, based on free speech, I concur in the result on the basis of our decision in McVey v. Stacy, 157 F.3d 271 (4th Cir.1998). In McVey, the district court had declined to dismiss the First Amendment claim, as here, and it rejected qualified immunity "at this stage in the litigation" because "the record had not been developed." McVey, 157 F.3d at 275. Our decision was to "affirm the district court's ruling to defer deciding on the qualified immunity issue until the record is better developed on the immunity issues." McVey, 157 F.3d at 279. I continue to disagree with the majority that the complaint alone justifies a finding that Ridpath spoke as a citizen rather than as an employee, largely because he had been instructed by his superiors not to speak out publicly. See Connick v. Myers, 461 U.S. 138, esp. p. 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (deciding for the State, the Court found, at p. 150, 103 S.Ct. 1684, "The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public."); and DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995) (holding a municipal government employee's remarks may not be protected under Connick if he was speaking as an employee, rather than as a citizen). Nevertheless, I believe a concurrence in the result is more in order than a dissent in view of the majority's decision that the matter is not closed. See footnote 23, supra. So any present error on this account is harmless.

997 F.2d 1244 Joe MORGAN, Plaintiff-Appellee,v.Bill WOESSNER, Defendant,andClay Searle; Los Angeles City, Defendants-Appellants (Two Cases). Nos. 91-55728, 91-55863. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 9, 1992.Opinion Filed Sept. 15, 1992.Opinion Withdrawn June 10, 1993.Opinion Filed June 10, 1993. Thomas C. Hokinson, Sr. Asst. City Atty. and Richard M. Helgeson, Asst. City Atty., Los Angeles, CA, for defendants-appellants. William A. Barnes and Edwin J. Wilson, Jr., Erickson, Beasley, Hewitt & Wilson, Oakland, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: SNEED and D.W. NELSON, Circuit Judges, and ROLL, District Judge.* ORDER The opinion filed September 15, 1992, 975 F.2d 629, is withdrawn, and the attached opinion and dissent are filed in its place. OPINION SNEED, Circuit Judge: I. OVERVIEW 1 Joe Morgan, an ex-professional baseball player and television commentator, brought a section 1983 suit against Los Angeles policemen Clay Searle and Bill Woessner and the City of Los Angeles for harm associated with Officer Searle's stop of Morgan at Los Angeles International Airport (LAX) in March of 1988. At the first trial, the jury found that Morgan had not been unlawfully detained. The district court, however, granted Morgan's motion for a judgment notwithstanding the verdict (JNOV) and a new trial because it found that Searle's stop of Morgan was unconstitutional as a matter of law. 2 At the second trial, the district court instructed the jury that the initial contact between Morgan and Searle was unconstitutional, and instructed it to determine only whether Morgan's subsequent arrest was lawful and whether Morgan suffered harm in connection with any unconstitutional conduct, and to consider Morgan's state law claims of false imprisonment, battery, and intentional infliction of emotional distress. The jury found for Morgan on all of these issues, and awarded Morgan a total of $90,000 in compensatory damages and another $450,000 in punitive damages. Searle and the City of Los Angeles appeal.1 They challenge the grant of JNOV and the punitive damages awarded, and raise several other challenges concerning the district court's ruling on jury instructions and evidentiary matters. We affirm in part and reverse and remand in part the punitive damage award. II. FACTS 3 In presiding over this case, the district court was presented with seriously conflicting factual accounts of what precisely took place between Mr. Morgan and Officer Searle at LAX. In granting a JNOV, however, the district court concluded that even on the basis of the defendants' account, Officer Searle's stop of Morgan was unconstitutional as a matter of law. Because the conflicting accounts are very much relevant to the question of whether the district court's grant of JNOV was proper, as well as to the secondary question of whether the punitive damage awards were justified, we find it necessary to discuss each account in some detail. A. Joe Morgan's Testimony 4 On March 15, 1988, Joe Morgan was at LAX waiting for a flight to Phoenix. He passed the time in the gate area, chatting with people who recognized him. At some point during his layover, he decided to make a phone call. Leaving his bags at the waiting area, he headed to some phone banks about forty feet away. According to Morgan, while he was dialing, Agent Searle grabbed his shoulder and turned him around. Morgan asked Searle what he wanted. Searle insisted that Morgan was traveling with another person. Morgan responded that he was traveling alone, and asked again what the problem was. According to Morgan, Searle responded with words to the effect of "I'm doing a drug investigation and you're a part of it." Morgan again said he was alone; Searle insisted that Morgan was "with this guy" and told him "you are coming with me." Morgan replied, "Why am I coming with you? I didn't do anything. I am making a phone call." Searle did not tell Morgan that he was free to go. 5 Searle asked Morgan for identification. Morgan replied that it was in his luggage approximately forty feet away. Morgan took a step toward his luggage, and Searle grabbed his upper torso and told him, "I will put you on the ground if you don't come with me." Morgan testified that after this exchange, a bystander came up and said to the effect, "that's Joe Morgan, the baseball player, and I can identify him." Searle responded with hostility, flashing his identification and warning the bystander to back off. 6 Morgan testified that at that moment he began to get frightened: "Well, at that point ... I became very nervous. Before that, you know, I was standing up kind of saying, 'Hey, I don't want to go with you. Let me get my I.D.' or whatever, but he was very hostile.... I felt like it didn't matter if I did have my I.D.... He was going to do something to me.... I said to him, 'Okay. Where do you want me to go?' " According to Morgan, Searle responded by pointing over Morgan's shoulder. As Morgan turned toward that direction, Searle grabbed him around the neck from behind, forced Morgan to the floor, and handcuffed him. 7 While Morgan was on the ground, Agent Woessner came up with another man, Tony Floyd. As Woessner approached, Searle asked him, "You saw him swing at me, didn't you?" According to Morgan, one of the officers asked Floyd if Morgan "was the guy that was with you?" and Floyd answered no. 8 Searle pulled Morgan to his feet, and led him down the concourse, past the waiting area where Morgan had just been signing autographs. As they passed Morgan's luggage, Morgan again asked to be allowed to get his identification. Searle placed his hand over Morgan's mouth and nose and led him into a small room marked "nursery." Morgan testified that he had difficulty breathing and felt totally out of control. Inside the nursery room, Floyd repeated that Morgan was not the person he was with. Morgan testified that Searle threatened to report to the press that he was a part of a narcotics investigation, and offered to release Morgan if Morgan would promise to forget what had happened. Morgan responded, "You do what you have to do, and I'll do what I have to do." After a few moments of further exchange, Searle removed the handcuffs and allowed Morgan to leave. 9 According to Morgan, at no time during this course of events did he make any aggressive or hostile physical gestures toward either Searle or Woessner. He testified that at no time did he resist, use profanity, or scream. B. Richard Ruybalid's Testimony 10 Richard Ruybalid, an individual not otherwise associated with Morgan, was on the same plane into LAX as Morgan, and was waiting for the same connecting flight to Phoenix. Ruybalid had recognized Morgan on the flight, but did not speak to him. Ruybalid testified that he was making a call from the same phone bank as Morgan when Searle approached Morgan. Ruybalid's attention was caught by a "heated conversation." Ruybalid approached to within ten feet, and witnessed the confrontation between Morgan and Searle. Ruybalid heard Searle saying to Morgan, "Come along. Come with us. Come with us." Morgan responded, "No I am not going. Leave me alone. I want to get my identification." According to Ruybalid, Searle was insistent, repeating "You are coming with us. Forget it. You are coming with us right now." 11 Ruybalid moved in closer and said, "Hey, what are you doing? That's Joe Morgan the famous baseball player." Searle responded by flashing his I.D. and saying, "Back off, narcotics officer." Ruybalid testified that at this time Morgan was not doing anything threatening or violent, but that Morgan's demeanor was defensive, bothered, angry. Ruybalid testified that Searle was very angry and his tone of voice very stern, and that Ruybalid felt he was being ordered to leave the area by a person of authority. 12 Ruybalid backed away, but continued to monitor the situation, remaining within fifteen or twenty feet from Morgan and Searle. He did not see Morgan taken to the floor, but he heard the noise caused by that fall. He testified that prior to that noise, he did not hear any yelling, screaming or swearing. When he heard the noise of the fall, Ruybalid approached the men; he observed Searle pull Morgan to his feet and lead him away, holding his hand over Morgan's mouth. Ruybalid testified that Morgan walked reluctantly but did not resist, and that he did not use any profanity or scream. C. Defendants' Testimony 13 On March 15, 1988, Searle and Woessner were on a routine narcotics patrol at LAX. They observed Tony Floyd, a black man, moving rapidly through the concourse. Floyd had a carry-on bag which appeared to be half-empty. Floyd made eye contact with Searle and Woessner, and then looked away. To the agents, he appeared to be nervous. Finding these actions suggestive of narcotics involvement, Searle and Woessner decided to question Floyd. 14 Searle and Woessner identified themselves to Floyd, and told him that he was not under arrest and that he was free to go. Floyd agreed to talk with them. They asked him for identification, but he had none. They asked to look at his ticket, and he produced a one-way cash ticket issued in a name other than Floyd. They obtained permission to search his person and his carry-on bag; they found only clothing and toiletries. They then took Floyd to the men's room and conducted a pat down search which revealed nothing illegal, but did reveal that Floyd was carrying a second ticket. Although Floyd initially claimed to be traveling alone, he eventually admitted that he had a travel companion. Floyd did not remember the second person's name, but told the agents that the second traveler should be right behind him. The agents asked Floyd what the traveler looked like; Floyd responded that "he looks like me." 15 Based on their exchange with Floyd, the agents concluded that Floyd was a drug courier and that his companion was the "mule," the person who actually carried the drugs. The officers handcuffed Floyd, and left the bathroom with him to look for the second traveler. As they stepped out, they observed Morgan walking in their direction. The officers testified that Morgan was not running, or dressed unusually. The only thing that linked Morgan to Floyd was that both men were black. The officers found this significant because Floyd had said that the second traveler looked like him, and in their experience couriers tended to work with people of their own ethnic group. According to Searle and Woessner, when Morgan got within twenty feet of the trio he looked directly at them, stopped, and then abruptly turned around and started walking in the direction from which he had come. 16 Searle followed Morgan, and approached him as he was standing facing a telephone with the receiver in his hand. According to Searle, he tapped Morgan on the shoulder, displayed his identification card, and said, "I'm a police officer." Morgan immediately replied, "I don't give a fuck who you are." When Searle asked for identification, Morgan responded by saying, "I don't have to show you shit. I don't have any identification." Searle told Morgan that he was conducting a narcotics investigation, and that he wanted to determine if Morgan was traveling with anyone. Morgan responded by stating that he hadn't done anything, and by repeatedly yelling, at louder and louder volume, "You're not a police officer." Searle stated that he handed his police identification to Morgan, and that Morgan examined it and handed it back. 17 At that point, Searle testified that a citizen stepped forward, but that he did not remember him offering to identify Morgan. Searle testified only that he showed Ruybalid his I.D. and told him that he was a police officer. 18 Searle then told Morgan that he wanted Morgan to go with him to see if he was traveling with somebody, and gestured toward the direction of Agent Woessner. Searle testified that he did not believe Morgan was free to go at that moment, and that he believed that Morgan was required to show him some identification. Morgan kept asking "why, why," and Searle repeated his request: 19 Searle: I kept explaining to him I wanted to see if he was traveling with somebody, and eventually he starts walking with me. We probably take about three or four steps before he freaks out, before he starts screaming and then yelling. 20 Question: Okay. So you said, "I want to take you to some location or to take you to somebody so they can identify you?" 21 Searle: I said, 'I'd like you to go with me to see if you're traveling with this person we're investigating. That's all I want to do. I want to see if you are together and then we can solve this,' and he's screaming 'why, why' at the top of his lungs, but then he starts walking with me. I'd take a step and he'd take a step with me, and we eventually take some steps toward where I last left Agent Woessner and Mr. Floyd. 22 Question: So at this point, you were starting to leave the area of the phone bank? 23 Searle: Yes, we did. 24 Question: Okay. And about how far were you from the phone bank when you stopped again? 25 Searle: Probably maybe got 10 feet away eventually. 26 Searle Deposition, E.R. at 138-39. 27 Searle and Morgan walked toward Woessner and Floyd. According to Searle, after a few moments Morgan "freaked out" and began gesturing wildly, screaming at the top of his lungs. Woessner testified that he could hear Morgan yelling from some distance. Both officers testified that Morgan was waving his arms wildly; Searle had to duck to avoid getting hit, and at that point was bumped by Morgan's body. Searle grabbed Morgan around the chest and they fell to the floor; Searle ended up on top of Morgan. Searle testified that he told Morgan to put his hands behind his back, and that Morgan cooperated. Searle then got handcuffs from Woessner and cuffed Morgan. 28 Searle testified that then Morgan began screaming "Help, help" at the top of his lungs. As they walked down the concourse, Searle testified that he put his hand over Morgan's mouth to shut him up, because he was afraid that Morgan's screaming would attract attention and that "he didn't want another fight to break out with somebody else jumping in because he's screaming." Searle did not inform Morgan that he was under arrest or read him his rights. Once in the nursery room, Searle released Morgan after Floyd verified that Morgan was not his companion. III. PROCEDURAL BACKGROUND A. Trial and Verdict 29 Based on this course of events, Morgan filed a complaint in the Central District of California, naming Searle, Woessner, and the City of Los Angeles as defendants. Morgan alleged that he had been falsely detained, arrested and imprisoned by Searle and Woessner, and brought eight claims under federal and state law. 30 Trial was held in April 1990. The record indicates that from the beginning, the district court believed that Morgan's detention was illegal as a matter of law.2 However, the court chose to submit the question to the jury because it feared that a directed verdict on that issue would influence the jury's deliberations regarding whether Morgan had been the aggressor in the subsequent physical altercation and thus whether he was falsely imprisoned, and regarding whether damages were justified.3 After deliberations, the jury found that Morgan's constitutional rights had not been violated because the detention was lawful. B. JNOV and Second Trial 31 Morgan moved for a JNOV and a new trial, or in the alternative, asked that the district court make a finding as to damages. As noted above, the court granted a JNOV and the motion for a new trial. The second trial was held in February 1991. After both parties had put on their case, the district court instructed the jury a second time. This time, the court stated that the court had already decided that the initial contact between Searle and Morgan was a seizure unsupported by reasonable suspicion, and therefore that Searle had violated Morgan's constitutional rights.4 After deliberations, the jury returned a verdict for Morgan on his federal civil rights and state law claims. Specifically, it found: 1) that Morgan had suffered actual harm as a result of his unlawful detention; 2) that after the initial detention, Searle violated Morgan's constitutional rights by arresting him without probable cause and using excessive force against him, causing Morgan actual harm; and 3) that Searle falsely imprisoned Morgan, committed battery on Morgan, and intentionally inflicted emotional distress on Morgan (the state law claims). The jury awarded Morgan damages against Searle as follows: 1) claim one--$10,000 in compensatory and $150,000 in punitive damages; 2) claim two--$40,000 in compensatory and $150,000 in punitive damages; and 3) claim three--$40,000 in compensatory (awarded against defendants Searle and the City of Los Angeles) and $150,000 in punitive damages. 32 On February 28, 1991, the district court entered a judgment awarding Morgan a total of $90,000 in compensatory damages and $450,000 in punitive damages. The district court also awarded Morgan attorney's fees pursuant to 42 U.S.C. § 1988. Defendants Searle and the City of Los Angeles appeal. IV. DISCUSSION A. The Judgment Notwithstanding the Verdict 33 We review a grant of JNOV de novo. Meehan v. County of Los Angeles, 856 F.2d 102, 106 (9th Cir.1988). "A directed verdict is proper where the evidence permits only one reasonable conclusion as to the verdict; it is inappropriate if there is substantial evidence to support a verdict for the nonmoving party." Id. Evidence should be viewed in the light most favorable to the nonmoving party. Id. 34 In directing a verdict for Morgan, the district court concluded, as a matter of law, that Morgan had been "seized" within the meaning of the Fourth Amendment, and that the seizure was unconstitutional because there was no reasonable suspicion to support it. We address these legal conclusions separately. 1. Morgan Was Seized 35 Stops under the Fourth Amendment fall into three categories. First, police may stop a citizen for questioning at any time, so long as that citizen recognizes that he or she is free to leave. Florida v. Bostik, --- U.S. ----, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Such brief, "consensual" exchanges need not be supported by any suspicion that the citizen is engaged in wrongdoing, and such stops are not considered seizures. Second, the police may "seize" citizens for brief, investigatory stops. This class of stops is not consensual, and such stops must be supported by "reasonable suspicion." See, e.g., Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); United States v. Holzman, 871 F.2d 1496, 1502 (9th Cir.1989). Finally, police stops may be full-scale arrests. These stops, of course, are seizures, and must be supported by probable cause. Adams v. Williams, 407 U.S. 143, 148-49, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). 36 Defendants contend that Searle did not seize or detain Morgan until after Morgan allegedly became violent and tried to "take a swing" at Searle. Prior to that point, they contend that because Searle was merely questioning Morgan and Morgan was free to leave, the encounter was a consensual exchange not requiring either reasonable suspicion or probable cause. They contend that although Morgan was indeed seized after he allegedly became violent, the seizure was not unconstitutional because it was justified by Morgan's conduct at that point. Defendants also contend that a determination of whether Morgan was seized requires a resolution of facts in dispute, and that this issue therefore should have been left for the jury. 37 In considering whether a stop is a "seizure" or merely a consensual exchange, the Supreme Court has observed: 38 [A] person is "seized" only when by means of physical force or a show of authority, his freedom of movement is restrained.... As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification. 39 United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (emphasis added). Thus, the "essential inquiry is whether the person stopped reasonably believed that he or she was not free to leave." United States v. Patino, 649 F.2d 724, 726-27 (9th Cir.1981) (citations omitted). This inquiry is largely a factual one which depends on the totality of the circumstances. Id. In granting a JNOV, however, the district court found that even on the facts as construed in the defendants' favor, Morgan was seized well before any alleged physical altercation took place. We agree. Based on the events that, according to Searle's own testimony, took place before Morgan allegedly "freaked out," we find that the district court was quite justified in finding that Morgan "reasonably believed" that he was not free to leave. 40 By definition, a "consensual" exchange between police and citizens cannot take place in the absence of consent. When a citizen expresses his or her desire not to cooperate, continued questioning cannot be deemed consensual. In this case, according to Searle himself, Morgan never consented or otherwise conveyed a willingness to cooperate with Searle. Rather, Searle testified that after he approached Morgan, Morgan indicated in no uncertain terms that he did not want to be bothered. Despite Morgan's unwillingness, Searle insisted that Morgan answer his inquiries and demanded that Morgan come with him. We find that Morgan's unequivocal expression of his desire to be left alone demonstrates that the exchange between Morgan and Searle was not consensual.5 Because the exchange was nonconsensual, we do not hesitate to find that Morgan was indeed seized well before he allegedly became violent. The district court correctly found that Morgan was seized within the meaning of the Fourth Amendment. 41 2. The Seizure Was Not Supported by Reasonable Suspicion 42 Having determined that Morgan was in fact seized, we now turn to the question of whether the seizure was supported by reasonable suspicion. It was not. At bottom, Searle stopped Morgan for two reasons: Floyd's tip, which essentially made all black men suspect, and the supposed fact that Morgan looked at them, turned and walked away. No court would be likely to find that reasonable suspicion supported a seizure. 43 The contrast between the facts of this case and the facts of a case in which the Supreme Court found no reasonable suspicion existed is illuminating. In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), the Court found no reasonable suspicion where the police based their stop of defendant on the facts that: 1) defendant had arrived from a drug source city; 2) defendant arrived early in the morning, a time when law enforcement activity is diminished; 3) defendant and a second traveler tried to conceal the fact that they were traveling together; 4) defendant had no luggage other than a shoulder bag; and 5) defendant repeatedly looked over his shoulder in the direction of the other man. Id. at 441, 100 S.Ct. at 2754. For the Court, these factors described a "very large category of presumably innocent travelers, who would be subject to virtually random seizures were the court to conclude that as little foundation as there was in this case could justify a seizure." Id. 44 The only factors justifying the seizure of Morgan were the tip from Floyd, which put agents Searle and Woessner on the lookout for all black men, and the fact that Morgan appeared to look directly at them and turn abruptly around. These facts even fall short of the factors treated as insufficient to establish reasonable suspicion in Reid. There is no claim that Morgan was dressed in an unusual manner, that he was hurrying through the airport, that he was carrying anything unusual, that he seemed nervous, or that any of the other factors normally relied upon in justifying investigatory stops at airports existed.6 Accordingly, we agree with the district court that no reasonable suspicion justified the seizure of Morgan. 45 The JNOV was entirely proper. B. Punitive Damage Awards 46 In challenging the punitive damages in this case, defendants advance two arguments. First, they contend that the award amounts were excessive and violative of due process. Second, they argue the jury and trial court were required under California law to consider Officer Searle's financial worth in deciding the amount of the state law punitive damages. We look first to the defendants' contentions under federal law and then under state law. 1. Punitive Damages Based on Federal Claims 47 As Part III.B. sets forth, the jury in the second trial awarded Mr. Morgan $300,000 in punitive damages on his section 1983 claims against Officer Searle. It is well established that a "jury may award punitive damages under section 1983 either when a defendant's conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others." Davis v. Mason County, 927 F.2d 1473, 1485 (9th Cir.1991) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1982)). There is no problem with the imposition of some punitive damages in this case. We must decide, however, whether the amount of the imposition in this case comports with the Due Process Clause. 48 a. Haslip: Due Process Applies to Punitive Damages 49 The Supreme Court recently considered, in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), the effect of the Due Process Clause on the award of punitive damages. After noting the growing concern with excessive awards, the Court said that "unlimited jury discretion--or unlimited judicial discretion for that matter--in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities." Id. at 15, 111 S.Ct. at 1043. The Court there applied a Due Process analysis, which is described below, to the fairly elaborate Alabama system for imposing and reviewing punitive damages, and found that it comported with Due Process. 50 The Due Process Clause is a federal constitutional standard to be applied in the case of federal as well as state punitive damage awards. Although the Court in Haslip discussed the Due Process Clause of the Fourteenth Amendment, the Court's analysis applies equally under the Fifth Amendment. The two Clauses should be applied in the same manner when two situations present identical questions differing only in that one involves a proscription against the federal government and the other a proscription against the States.7 If state punitive damage awards are subject to the strictures of the Constitution, there is no reason that the standards employed by federal courts to review federal punitive damage awards should escape the scrutiny of the Due Process Clause. It should make no difference whether the imposition of such damages was by a federal or state court or whether on federal or state claims. For this purpose there is only one Due Process Clause. The principles of Haslip are applicable, therefore, to punitive damages imposed by federal courts for violations of federal law.8 51 The Court in Haslip did not mandate a single standard, applied at a single level, for reviewing punitive damages. Instead, the Court held that the three-stage Alabama punitive damage system comported with the Due Process Clause. Id. at 16-18, 111 S.Ct. at 1044-46. In the Alabama system, the first stage is jury instructions crafted to describe the proper purpose of punitive damages.9 The next stage is the trial court's review of the jury award for excessiveness.10 The third stage is appellate court review.11 A three-stage approach is appropriate in the context of the punitive damage issues in this case as well. 52 b. The Three Stages of Due Process Scrutiny 53 The Supreme Court did not find that the elements of the Alabama system were necessary to comport with due process, but merely sufficient.12 Although we adopt a three-stage approach similar to Alabama's, we need not look solely to the substance of its Hammond factors. Instead, we note that the "general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus." Haslip, 499 U.S. at 15, 111 S.Ct. at 1043. 1. Jury Instructions by the Trial Court 54 As the first stage of scrutiny, a trial court should instruct the jury on the proper role of punitive damages. Haslip said that instructions should be fashioned to describe the proper purposes of punitive damages, so that the jury understands that punitive damages are not to compensate the plaintiff, but to punish the defendant and to deter the defendant and others from such conduct in the future. Id. at 16, 111 S.Ct. at 1044. In the case before us, the trial court performed this task by use of an instruction that focused upon the discretionary nature of the award, the need to punish the defendant, and the need to deter repetition of such conduct. Specifically, the instruction focused on (1) the reprehensibility of the conduct of the defendant, and (2) the amount of punitive damages which will have a deterrent effect on the defendant in light of the defendant's financial condition.13 Although the court could have included instructions detailing that punitive damages are not to be used to compensate the plaintiff, the instructions on compensatory damages made this clear. The instructions in this case were adequate. 55 2. Trial Court Review of the Amount of the Award 56 As the second stage of scrutiny, a trial court should review the punitive award and record its reasons for upholding or altering it. The trial court can look to the Hammond factors14 or other general elements of reasonableness to determine whether a punitive damage award should be upheld. The broader picture must not be lost. The task of the court is a comparison between the amount of punitive damages actually assessed and a figure derived from the facts of the case at hand. To arrive at this figure, the court should look to awards in similar cases and to its own experience. If the district court rejects the jury award, it should give the plaintiff the option of a remittitur or a new trial on the punitive damage issue.15 57 Here, the district court failed to record its reasons for finding the punitive award proper. Several courts dealing with punitives based on state law violations have remanded cases to the district court when they had failed to state the reasons for rejecting a challenge to the award. American Employers Ins. Co., v. Southern Seeding Services, Inc., 931 F.2d 1453, 1458 (11th Cir.1991) (remanding case because district court failed to apply the Hammond criteria and reflect its reasoning for the denial of the motions to alter punitive award); Cole v. Control Data Corp., 947 F.2d 313, 320 (8th Cir.1991) (remanding so the district court could review under the standard articulated in Haslip). 58 Following the lead of these cases, we think it best to remand the punitive award in this case to the district court to analyze it in light of this opinion and to record its reasons for its conclusion. This remand assures that the defendant will have the three stages of Due Process scrutiny endorsed by the Supreme Court in Haslip. 59 3. Appellate Court Review of Procedure and the Amount of the Award 60 As the third stage of scrutiny, an appellate court should undertake two distinct inquiries. First, it must satisfy itself that the defendant was afforded the two prior stages of scrutiny, i.e., proper instructions and a recording of reasons for upholding or altering the award. If the district court failed to give proper instructions, a new trial is in order on that issue. If the district court failed to record its reasons for upholding or altering the award, as is the case here, the circuit court should remand the case so that the district court may make its analysis and record its conclusions. If either of the two prior stages is lacking, the circuit court should reverse and remand; it should not undertake the substantive review of the award. 61 The appellate court's second inquiry is a substantive review of the amount of the award. Appellate review, as the Supreme Court pointed out in Haslip, is necessary 62 to ensure that the award does "not exceed an amount that will accomplish society's goals of punishment and deterrence." ... This appellate review makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition. Id. at 17, 111 S.Ct. at 1045 (citations omitted). 63 The Ninth Circuit's standard states that "[u]nless the amount of damages is grossly excessive, unsupported by the evidence, or based solely on speculation, the reviewing court must uphold the jury's determination of the amount." Davis, 927 F.2d at 1485 (citing Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 791 F.2d 1356, 1360 (9th Cir.1986)). In Haslip, the Court suggested that a "manifestly and grossly excessive" standard, such as the one used by this circuit, does not comport with Due Process. Haslip, 499 U.S. at 17 n. 10, 111 S.Ct. at 1045 n. 10. 64 Following this lead, the Fourth Circuit found in Mattison v. Dallas Carrier Corp., 947 F.2d 95, 105 (4th Cir.1991), that Virginia's "excessiveness" standard for reviewing punitive damages was lacking. The substantive content of the Ninth Circuit's "grossly excessive" standard is now refashioned to give it a definite shape and texture and to avoid any conflict with the Due Process Clause.16 A circuit court should determine whether a punitive damage award exceeds the amount necessary to accomplish the goals of punishment and deterrence in deciding whether it is grossly excessive. 65 c. The Seventh Amendment's Guarantee to Trial by Jury 66 The Seventh Amendment's guarantee to a trial by jury may require a court reviewing an award of punitive damages to give a plaintiff the option of a new trial on punitive damages if it finds an award grossly excessive and otherwise would order a remittitur. The Supreme Court, it appears, has never given its blessing to an appellate court reducing an award without affording the plaintiff an opportunity to retry that issue. See Browning-Ferris Industries, 492 U.S. at 279 n. 25, 109 S.Ct. at 2922 n. 25. 67 Several circuits, however, have reduced the amount of punitive damages awarded without giving the plaintiff a choice of a new trial on that issue. See, e.g., Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 207 (1st Cir.1987); Shimman v. Frank, 625 F.2d 80, 102-04 (6th Cir.1980); Bell v. City of Milwaukee, 746 F.2d 1205, 1279 (7th Cir.1984); Douglas v. Metro Rental Services, Inc., 827 F.2d 252, 257 (7th Cir.1987); Guzman v. Western State Bank of Devils Lake, 540 F.2d 948, 954 (8th Cir.1976). However, none of these cases considered the Seventh Amendment, and we do not think it wise to follow this course of action. 68 Two cases already have held that a remittitur without the option of a new trial is a violation of the Seventh Amendment. In McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984), the court reversed the district court's remittitur of punitive damages, without option of a new trial, against police officers in a section 1983 case. The court said, the "Seventh Amendment reserves the determination of damages, in jury trials within its scope, to the jury.... The proper corrective is to give McKinnon the choice he was improperly denied, between accepting the remittitur and having a new trial on damages." Id. 750 F.2d at 1392. The Fourth Circuit also held that the Seventh Amendment guarantees a right to a jury determination of the amount of punitive damages. Defender Indust., Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 507 (4th Cir.1991) (en banc). 69 To avoid any conflict with the Seventh Amendment, the preferable course is to afford the party awarded the grossly excessive punitive damages, whether that is determined by a trial or appellate court, the option of either accepting the remittitur of the punitive damage award or a new trial on that issue. See, e.g., Ramsey v. American Air Filter Co., 772 F.2d 1303, 1314 (7th Cir.1985); Hollins v. Powell, 773 F.2d 191, 198 (8th Cir.1985), cert. denied, 475 U.S. 1119, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986); Mason v. Texaco, 948 F.2d 1546, 1561 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992). 2. Punitive Damages Based on State Claims 70 The award of $150,000 on the state law claims presents a different problem. As was said above, the Due Process analysis is the same whether the punitive damages are based on federal or state law. The state punitive damages are treated separately here only because of the additional issue of evidence of financial worth. In reviewing a punitive damage award based on state law, the district court has an additional duty; it must make sure that the award is within the confines set by state law. Browning-Ferris Industries, 492 U.S. at 279, 109 S.Ct. at 2922. Recently, in Adams v. Murakami, 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348 (1991), the California Supreme Court held that an award of punitive damages cannot be properly reviewed unless the record contains evidence of a defendant's financial worth. The Murakami court held that such evidence must be presented to the jury, and that the burden of presentation lies with the plaintiff. Thus, defendants' contention that Murakami requires the trier of fact to consider evidence of defendants' financial worth in considering the appropriateness of punitive awards under California state law claims is accurate. 71 Therefore, we remand the state law portion of the damages award to the district court for the dual purposes of reconsidering that award in light of Murakami and Haslip. On remand, the district court shall consider evidence as to Officer Searle's financial worth, determine whether or not a remittitur is appropriate, and record the reasons for its conclusions. C. Qualified Immunity Instruction 72 Defendants next take issue with the district court's refusal to give to the jury a qualified immunity instruction. Police officers "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In other words, police officers are entitled to assert a qualified immunity defense (and therefore to an instruction) only if they can affirmatively show that "their conduct 'was justified by an objectively reasonable belief that it was lawful.' " Bilbrey v. Brown, 738 F.2d 1462, 1467 (9th Cir.1984) (quoting Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). 73 Although it is not particularly clear, defendants' argument seems to be that they were entitled to a qualified immunity instruction because "while the law was clearly established that an officer may not detain an individual without reasonable suspicion, it was not firmly established how the principle applied to the entire question concerning airport stops involving potential drug couriers."17 74 We reject this contention. It was well-established at the time of this case that Fourth Amendment seizures occur when a person is not free to leave, and that such seizures must be justified by either probable cause or reasonable suspicion. Defendants offer no reason why we should draw a distinction between stops occurring in airports and those occurring in other places, or any reason why a police officer would believe that citizens' Fourth Amendment rights are somehow diminished in airports. Even if we were inclined to analyze as distinct the law of airport/courier stops, our conclusion would remain the same. That law was well developed by the time the events leading to this suit took place--virtually every case the parties discuss in their briefs had been decided several years earlier. 75 Moreover, the Supreme Court has made clear that in the context of Fourth Amendment violations, there can be no inquiry as to a police officer's subjective intent or belief. Rather, only an officer's "objective 'good faith'--that is, whether he could reasonably have believed that [his conduct] did not violate the Fourth Amendment--may be relevant to the availability of the qualified immunity defense to monetary liability under § 1983." Graham v. Connor, 490 U.S. 386, 399 n. 12, 109 S.Ct. 1865, 1873 n. 12, 104 L.Ed.2d 443 (1989) (emphasis in original). Thus, our conclusion that Officer Searle acted unconstitutionally as a matter of law is the end of our inquiry on qualified immunity. See, e.g., Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 706 (9th Cir.1989) ("Our preceding discussion about the obvious lack of probable cause is dispositive of the qualified immunity question."); Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.1991) (where police officer had used excessive force in violation of the Fourth Amendment, and relevant law was well established, officer is not entitled to qualified immunity); cf. Hopkins v. Andaya, 958 F.2d 881, 885 n. 3 (9th Cir.1992) ("In Fourth Amendment unreasonable force cases, unlike in other cases, the qualified immunity inquiry is the same as the inquiry made on the merits."). 76 Defendants do not argue that Searle had an objective "good faith" belief that his actions were constitutional. Nor could such a finding comport with the facts of this case. We note in particular the fact that Agent Woessner testified that at the time Morgan turned and walked away from the officers, they did not have reasonable suspicion that would justify detaining Morgan for a brief investigatory stop. In light of that testimony, a claim of objective good faith would be difficult indeed. We find that the facts of this case and our analysis regarding reasonable suspicion preclude a finding that Searle could have objectively believed that his conduct was constitutional. Therefore, we find that the district court did not err in refusing to give a qualified immunity instruction. D. Reputation Testimony 77 Defendants next contend that the district court erred in permitting Morgan to put on witnesses who testified as to his reputation. We disagree. We review a district court's evidentiary rulings for an abuse of discretion and will not reverse those decisions absent some prejudice to the appealing party. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir.1988). 78 The defendants objected in the district court to the admission of evidence as to Morgan's character and reputation on the ground that it was impermissible under Fed.R.Evid. Rule 403 as evidence of prior conduct indicating habit or custom. Defendants argued further that evidence would lead the jury to believe that Morgan would not have acted aggressively against Searle that day.18 Morgan's counsel requested the introduction of this evidence for the purposes of establishing that because Morgan's reputation was so important to him, he suffered a great deal of emotional distress as a result of the unlawful arrest. The district court permitted the testimony, preceding it with the following cautionary instruction: 79 The testimony which you are going to hear is not offered to show that Mr. Morgan did or did not act in any particular way on the date and at the time of the incident in question here. It is offered on the issue of damages, the damages that he has been claiming--that he does claim, so let me say it again to you. 80 It is not offered to show or to convince you that Mr. Morgan did or did not do certain kinds of things on the date and at the time alleged herein but offered instead on the issue of the damages that Mr. Morgan is claiming. 81 We consider the question whether such evidence should have been admitted to be a fairly close one. The jury may well have been more inclined to believe Morgan rather than Searle once they heard from others about Morgan's integrity and good reputation. However, in civil cases, even the improper admission of evidence is not grounds for granting a new trial unless it constitutes prejudicial error. As discussed above, the jury had plenty of evidence from which to conclude that Searle rather than Morgan was the aggressor. Most important, however, is the probable effect of the district court's cautionary jury instruction and its statement expressly forbidding plaintiff's counsel from implying that such evidence went to habit or custom. We believe that those precautionary steps blunted significantly the impact of this testimony. Therefore, we conclude that the district court did not abuse its discretion in admitting this evidence. 82 E. "Juror Irregularities" 83 Defendants' final argument on appeal is that they are entitled to a new trial because of the following juror "misconduct": 1) after they were excused, some of the jurors told Los Angeles Times reporters that they had "wanted to send a message to City Hall" that police cannot act uncontrollably; and 2) three of the jurors revealed in interviews that the question of whether the damages should cover Morgan's attorney's fees was raised during deliberations, and one juror speculated that his attorney's fees might be around $90,000. Defendants argue that "the injection of such extraneous prejudicial information, and the use of these sorts of influence, to bear upon juror deliberations is improper and arguably falls within the exception to the prohibition contained in Fed.R.Evid. Rule 606(b)." 84 Without conducting an evidentiary hearing on the question, the district court refused to grant a new trial on the basis of this alleged misconduct. We review a district court's refusal to grant a new trial for an abuse of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir.1985). 85 Defendants offer no legal support for their argument that the sentiments revealed by the jurors constitute a basis for reversing the district court's denial of the motion for a new trial. Nor has our research revealed any. Therefore, we affirm the district court. 86 The juror's observations about sending messages to City Hall and speculation as to the amount of Morgan's attorney's fees simply do not constitute the sort of "extraneous prejudicial information" that falls within the scope of Fed.R.Evid. Rule 606(b). As we have observed before, "[t]he type of after-acquired information that potentially taints a jury verdict should be carefully distinguished from the general knowledge, opinions, feelings and bias that every juror carries into the jury room." Hard v. Burlington Northern R.R. Co., 870 F.2d 1454, 1461 (9th Cir.1989). The jury observations complained of here are the type of subjective thoughts and beliefs which are beyond the scope of inquiry in a motion for a new trial on the grounds of juror misconduct. 87 A party has grounds to seek an evidentiary hearing to determine whether a new trial is necessary because of extrinsic prejudicial information "only when these materials are sufficient on their face to require setting aside the verdict." Burlington Northern, Id. at 1461. For example, in Burlington Northern, one juror told the others that he had worked in the same place as the plaintiff, that when he injured himself on the job he'd received paid leave, speculated that defendant railroad company had probably already compensated the plaintiff for his injuries, and brought to the deliberations regarding plaintiff's injuries his independent knowledge of x-ray interpretation. Id. at 1458. Although the allegations of juror impropriety made in Burlington Northern were far more direct and damaging than those advanced here, the Burlington Northern court found no violation of Rule 606(b) or other impropriety sufficient to reverse a trial court's refusal to grant a new trial. See also Carson v. Polley, 689 F.2d 562, 579-82 (5th Cir.1982) (juror's speculations as to the weakness of plaintiff's case, the relationship between plaintiff and his attorney and the amount of fees plaintiff paid considered "the subjective thoughts and emotions that may have influenced a juror's deliberations" and therefore not the grounds of a motion for a new trial on the basis of juror misconduct.) In light of our past jurisprudence in this area, we have little difficulty affirming the district court's refusal to grant a new trial or hold an evidentiary hearing on the question of juror impropriety. V. CONCLUSION 88 We affirm the district court with respect to its decisions regarding the grant of JNOV, the question of Officer Searle's entitlement to a qualified immunity instruction, the admission of reputational evidence, and the issue of juror "improprieties." With respect to the federal punitive damages, we remand the issue to the district court to analyze the award under the principles set out in this opinion. Finally, with respect to the state law punitive damage awards, we remand to the district court so that it may hear evidence regarding Officer's Searle's financial condition. After considering that evidence, the district court is instructed to determine, following the reasoning of this opinion, whether to approve the award or grant a remittitur with the option of a new trial and to record its reasons for its conclusion. 89 AFFIRMED in Part and REVERSED and REMANDED in Part. 90 D.W. NELSON, Circuit Judge, dissenting. 91 I respectfully dissent from portions of part IV.B of the majority opinion. I agree with my colleagues that, in our first opinion in this case, we erroneously granted a remittitur on the federal punitive damages award, reducing it from $300,000 to $100,000. I also agree that the state punitive damages award must be remanded under Adams v. Murakami, 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348 (1991). I part company with the majority, however, over its interpretation of the Supreme Court's decision in Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). 92 Searle and the City make two separate arguments with respect to the size of the punitive damages award in this case. First, they question whether California's procedure for reviewing such awards comports with due process.1 Second, they claim that the punitive damages award is generally "excessive." I address each of these arguments in turn. 1. The Due Process Claim 93 a. Interpreting Haslip 94 In Haslip, the Court considered whether a punitive damages award of $840,000 in an insurance fraud case violated due process. In finding that it did not, the Court favorably considered Alabama's common law procedures regarding the imposition and review of punitive damages. Alabama's system is three-tiered: (1) at the trial stage, there are detailed jury instructions regarding the purpose of punitive damages; (2) after any award of punitive damages, the trial court will scrutinize the award (application of the so-called Hammond factors) and consider defendants' motions for new trial or remittitur; (3) finally, the appellate court conducts an independent review using its own common law standards. Id. 499 U.S. at 16, 111 S.Ct. at 1045. 95 In finding that the Alabama review procedure met due process standards, however, the Court did not hold that the States must adopt, at a minimum, the Alabama procedure in order to survive constitutional review. The majority reaches beyond the Court's opinion to draw such a conclusion when, in fact, the Haslip court went out of its way to avoid taking such a formulaic approach: 96 We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus. 97 Haslip, 499 U.S. at 15, 111 S.Ct. at 1043 (emphasis added). Indeed, Justice Scalia, who concurred separately, faulted the majority opinion in Haslip precisely because it did not take a bright line approach: "... the Court chooses to decide only that the jury discretion in the present case was not undue.... This jury-like verdict provides no guidance as to whether any other procedures are sufficiently 'reasonable' ..." Haslip, 499 U.S. at 17, 111 S.Ct. at 1046-47 (Scalia, J., concurring). 98 Rather than a bright line rule, then, the Court adopted a flexible approach which emphasized the overall reasonableness of a challenged review procedure. By its nature, such an approach is fact intensive and case specific. As such, it is consistent with the inherently variable nature of punitive damages. In his concurring opinion in Haslip, Justice Kennedy noted that punitive damages awards are bound to differ on a case-by-case basis. 99 Some inconsistency of jury results can be expected for at least two reasons. First, the jury is empaneled to act as a decisionmaker in a single case, not as a more permanent body.... Second, the generality of the instructions may contribute to a certain lack of predictability ... These features of the jury system for assessing punitive damages discourage uniform results, but nonuniformity cannot be equated with constitutional infirmity. 100 Haslip, 499 U.S. at 28, 111 S.Ct. at 1055 (Kennedy, J., concurring). 101 Thus, under my reading of Haslip, a due process analysis of a punitive damages award review procedure consists of two fundamental inquiries: (1) what safeguards are in place at the trial court level, when the factfinder makes the decision of whether or not to impose punitive damages?; and (2) what post-verdict review procedures are there, at the trial court and/or appellate levels, and how meaningful are they? This interpretation is consistent with that expressed by most circuit courts which have considered the decision. In Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir.1991), the Fifth Circuit expressly rejected the view that Haslip is "a vehicle for expansive appellate review of punitive damages awards." 934 F.2d at 1382. Instead, that court interpreted Haslip narrowly, as requiring 102 two practical considerations: (1) whether the circumstances of the case indicate that the award is reasonable, and (2) whether the procedure used in assessing and reviewing the award imposes a sufficiently definite and meaningful constraint on the discretion of the factfinder.... This is a fact intensive analysis. 103 Id. 934 F.2d at 1381-82. See also Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1992) (affirming a $6 million punitive damages award). 104 Similarly, the Eighth Circuit rejected the defendant's argument that Haslip identified "the Alabama process ... as setting a minimum standard for acceptable due process in the awarding of punitive damages." Latham Seed v. Nickerson Am. Plant Breeders, 978 F.2d 1493 (8th Cir.1992). See also Jordan v. Clayton Brokerage Co. of St. Louis, Inc., 975 F.2d 539 (8th Cir.1992); Peoples Bank and Trust v. Globe Intern. Publishing, Inc., 978 F.2d 1065 (8th Cir.1992).2 The Second and Eleventh Circuits also have interpreted Haslip as standing for a more generalized, flexible due process analysis of punitive awards which focuses on overall reasonableness. While the Second Circuit reduced a punitive damages award in Vasbinder v. Scott, 976 F.2d 118 (2nd Cir.1992), it nonetheless did so under a broad interpretation of Haslip as requiring that such awards be "reasonable and rational." 976 F.2d at 121. Taking a similarly broad approach to Haslip, the Tenth Circuit reduced a punitive damages award from $25 million to $12.5 million in a products liability case. Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992).3 105 b. Applying Haslip to this case 106 In light of Haslip, I would review the defendants' due process claim with respect to the $450,000 punitive damages award under a two-stage inquiry. First, I would consider what safeguards were in place at the trial court level to insure that the award was reasonable in light of the defendants' actions and the punishment and deterrence goals of punitive damages. Second, I would consider what post-verdict review procedures there were to further assess the reasonableness of the award. 107 The touchstone of the first level inquiry is the trial court's instruction of the jury. In this case, the district court gave the standard California instruction on the imposition of punitive damages: 108 You may in your discretion award such damages, if, but only if, you find by clear and convincing evidence that said defendant was guilty of oppression or malice in the conduct on which you base your finding of liability. 109 'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. A person acts with conscious disregard of the rights and safety of others when he is aware of the probable dangerous consequences of his conduct and willfully and deliberately fails to avoid those consequences.... 110 Jury Instruction (emphasis added). With respect to the amount of punitive damages, the district court instructed the jury as follows: 111 The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury's sound discretion, exercised without passion or prejudice. 112 In arriving at any award of punitive damages, you are to consider the following: 113 (1) The reprehensibility of the conduct of the defendant. 114 (2) The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant's financial condition. 115 (3) That the punitive damages must bear a reasonable relationship to the injury, harm, or damage actually suffered by the plaintiff. 116 Jury Instruction (emphasis added). 117 As the majority opinion concedes, these instructions clearly satisfy the concerns of the Haslip court: 118 [The Alabama instructions] enlightened the jury as to the punitive damages' nature and purpose, identified the damages as punishment for civil wrong doing of the kind involved, and explained that their imposition was not compulsory.... As long as the discretion [to award punitive damages] is exercised within reasonable constraints, due process is satisfied. 119 Haslip, 499 U.S. at 16, 111 S.Ct. at 1044. First, the California instructions limit the jury's discretion to award punitive damages in at least three respects.4 The court also instructed the jury that, in order to award punitive damages in any amount, it had to first find that the defendant acted with "oppression or malice" and defined these terms for the jury. Finally, the court warned the jury that it could not act out of prejudice and passion. 120 The California instructions in this case also meet the Haslip requirement of discussing the nature and purpose of punitive damages. The instructions spell-out the purposes of punishment of the defendant and future deterrence. And, importantly, they explicitly link these purposes to the degree of reprehensibility of the defendant's conduct and the defendant's financial condition. In these respects, the California instructions on punitive damages are more stringent than Alabama's. Accord Hilgedick v. Koehring Finance Corp., 12 Cal.App.4th 330, 8 Cal.Rptr.2d 76 (1992); Wollersheim v. Church of Scientology of California, 10 Cal.App.4th 370, 15 Cal.App.4th 1426, 6 Cal.Rptr.2d 532 (1992). 121 I would next inquire into the post-verdict procedures for reviewing punitive damages. Under Haslip, we assess this review process to "make[ ] certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition." Haslip, 499 U.S. at 17, 111 S.Ct. at 1045. In the absence of statutory review procedures, we again turn to the California common law review procedure for reviewing punitive damages awards.5 Under state common law, the district court was required to sit as an independent trier of fact when reviewing the award of punitive damages. Hilgedick, 12 Cal.App.4th at 353, 8 Cal.Rptr.2d 76 (citations omitted). In considering defense motions for a new trial or a judgment notwithstanding the verdict, the trial court should consider the following factors: (1) the relative egregiousness of the defendant's conduct; (2) the relationship between the punitive award and the plaintiff's injury; and (3) whether the size of the award reasonably relates to the defendant's financial condition. Wollersheim, 10 Cal.App.4th at 383-387, 6 Cal.Rptr.2d 532 (citations omitted). While not word-for-word like Alabama's so-called Hammond factors, the California factors parallel the concerns expressed in the Alabama common law review procedure, and so I would uphold them.6 122 In contrast to my colleagues in the majority, I conclude that the twin processes of instructing the factfinder about the nature and purpose of punitive damages and the independent post-verdict review by the trial court meet the requirements of Haslip. These procedures are "meaningful and adequate" rather than "standardless," and so comport with the general reasonableness requirements of Haslip.2. Excessiveness Claim 123 In addition to claiming that the general process of awarding punitive damages violated due process, Searle and the City argue that the award is "excessive" and that the district court erred by failing to reduce it. We review for abuse of discretion a district court's decision to grant or deny a motion for a new trial or remittitur because of the size of a punitive damages award. Browning-Ferris Industries, 492 U.S. at 278, 109 S.Ct. at 2922. 124 The defendants argue that the Court effectively overruled much of its holding in Browning-Ferris Industries with Haslip. Despite its concern with punitive damages, Haslip does not affect the abuse of discretion standard of review mandated by Browning-Ferris Industries; the two cases concern fundamentally different questions. Whereas Browning-Ferris Industries deals with the standards of appellate review of common law procedures for reviewing punitive damage awards, Haslip concerns the overarching constitutional validity of these very procedures. Haslip did not expressly or impliedly overrule any holding in Browning-Ferris Industries.7 125 In short, even after Haslip, we continue to review the defendants' excessiveness claim under an abuse of discretion standard.8 126 This court must uphold a punitive damages award "[u]nless the amount of damages is grossly excessive, unsupported by the evidence, or based solely on speculation...." Id. 927 F.2d at 1485 (citing Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 791 F.2d 1356, 1360 (9th Cir.1986)). Under this deferential standard of review, I would uphold the punitive damages award on the federal claims. Although there was conflicting testimony about the altercation between Morgan and the officers, the jury clearly was persuaded by Morgan's testimony and that of the other witnesses for the plaintiff. Thus, the evidence supports a finding that state actors violated Morgan's civil rights under Section 1983 and that the defendants' conduct "involved a reckless or callous indifference to the constitutional rights of others" warranting punitive damages. Id. 927 F.2d at 1485. 127 The "grossly excessive" standard involves an inquiry into the relationship between the wrong committed and the goals of punishment and deterrence which punitive damages serve. The jury found that Searle initially approached and further harassed Morgan solely because of his African-American race. By awarding substantial punitive damages, the jury publicly condemned this conduct. Further, this award serves to deter generally police officers who might single out citizens on the basis of their race. In this context, we find that an award of $300,000 in punitive damages is not "grossly excessive." Prior to today's decision by the majority, this circuit never had reversed a punitive damages award in a police misconduct case on the ground that it was too large.9 128 Because I believe that neither the defendant's due process nor excessiveness claims have merit, I would affirm the punitive damages award as to the federal claims. I respectfully dissent. * The Honorable John M. Roll, United States District Judge for the District of Arizona, sitting by designation 1 Defendant Woessner was dismissed by stipulation of the parties 2 During the first jury's deliberations, the court remarked to counsel: Let me stop you for just one minute. I left one thing out ... and that is, that under no circumstances would I have permitted a jury to decide otherwise. There isn't any possible other conclusion but that the stop was illegal. E.R. at 7. And later: I think you will both have to give a lot of thought to what we are going to do because there is not the slightest doubt here about the portion of the case that deals with detention. Now, I will agree that there is a factual issue after the detention is made, but there is no factual issue up to that point. E.R. at 10. 3 The court observed: I think the mistake I made in this case was that I found that there was an illegal detention, and I didn't tell the jury that.... I knew that if I told the jury that there had been an illegal detention of Mr. Morgan that that would--or at least I believed that that would dictate the remainder--the outcome of the remainder of the case or at least it would so heavily weight the case on one side that it is likely they would come in and find for the plaintiff on the rest of the case because it is the clearest credibility crisis here in this case that you could ever imagine. E.R. at 2. 4 The district court gave the following instruction: One of Mr. Morgan's claims is that he was detained by Officer Searle without due process of law, in violation of his constitutional rights.... The Court has already determined, in prior proceedings in this case, (1) that Officer Searle did detain Mr. Morgan prior to the time that any physical altercation arose between the two, and (2) that the detention was not justified by reasonable suspicion on the officer's part at that point in time. Therefore, plaintiff has established that his constitutional rights were violated in this one particular regard. It is however for you to determine if this violation was the proximate cause of damages to Mr. Morgan, and the amount of those damages. It is also for you to determine if plaintiff has proved, by a preponderance of the evidence, that his rights were violated in any of the other ways specified in his other claims. The Court has determined only that unlawful detention issue and in instructing you that the Court has made that determination, the Court does not indicate any view whatsoever as to which party is entitled to a verdict on any other issue in the case. You must reach your own fair and impartial verdict on those issues without regard to the conclusion reached by the Court with respect to the unlawful detention issue. E.R. at 400-401. 5 In addition to Morgan's expression of disinterest, other factors lend support to our conclusion that Morgan reasonably believed he was not free to leave. First, Searle's insistence that Morgan answer his questions may have indicated to Morgan that his cooperation was compelled. See Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; see also Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir.1987) Second, Searle testified that he believed that Morgan was not free to go. See Mendenhall, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6. Although an officer's subjective belief is ordinarily irrelevant to the question whether a citizen believes that he or she is free to go, it becomes relevant if there is reason to believe that the officer's belief was conveyed to the detainee. In this case, the fact that Searle repeatedly demanded that Morgan accompany him heightens the likelihood that Searle conveyed his belief that Morgan was not free to go. Third, Searle did not advise Morgan that he was not under arrest and that he was free to go. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229; Patino, 649 F.2d at 727; U.S. v. Johnson, 903 F.2d 1219, 1221. Although an officer's failure to advise a citizen of his freedom to walk away is not dispositive of the question of whether the citizen knew he was free to go, it is another significant indicator of what that citizen reasonably believed. Fourth, according to Searle, Searle and Morgan traveled "maybe ten feet" in the direction of Woessner and Floyd before Morgan "freaked out." An officer's request that an individual accompany him to another location may tend to indicate that the individual reasonably believed that he was not free to walk away. Royer, 491 U.S. at 503, 103 S.Ct. at 1327. Finally, Searle made statements which intimated that an investigation focussed on Morgan, and such statements "easily could induce a reasonable person to believe the failure to cooperate would lead only to formal detention." United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982) (en banc). In this case, Searle conveyed to Morgan that he was the specific target of Searle's concern in two ways. First, he told Morgan specifically that he was conducting a narcotics investigation, and that he wanted Morgan to accompany him so that he could see if Morgan was traveling with a person they were investigating. Second, and more importantly, the exchange with Ruybalid, even as under Searle's characterization, communicated to Morgan that he alone was the subject of Searle's attentions. Again, the exchange with Ruybalid occurred well before Morgan allegedly became violent. In addition to the above factors, the Supreme Court has hinted that courts may consider whether "the investigative methods employed [are] the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time" in determining whether the Fourth Amendment was violated, although the extent to which this factor is relevant is unclear. Royer, 460 U.S. at 500, 103 S.Ct. at 1325; see also Holzman, 871 F.2d at 1501. Here, Searle, in the same amount of time it took him to walk over to Morgan, could have walked over to Morgan accompanied by Floyd. With Floyd in tow, it would have taken a second or two to determine that Morgan was not Floyd's companion, and Morgan would not have been disturbed at all. The fact that this alternative was so readily available may weigh in the Fourth Amendment calculus. 6 For cases in which the Supreme Court has found reasonable suspicion supported a stop, see Royer, 460 U.S. at 502, 103 S.Ct. at 1326, and United States v. Sokolow, 490 U.S. 1, 3, 109 S.Ct. 1581, 1583, 104 L.Ed.2d 1 (1989) 7 The Due Process Clause, as all know, first appeared in the Fifth Amendment of the Bill of Rights. Only in the aftermath of the Civil War did the Clause appear in the second sentence of Section 1 of the Fourteenth Amendment. According to Representative John Bingham of Ohio, a member of the Thirty-Ninth Congress which enacted the Fourteenth Amendment, the Fifth Amendment Due Process Clause was the source of that Clause in the Fourteenth Amendment. Cong. Globe, 39th Cong., 1st Sess. 1034 (1866). Bingham is said by many to be the father of that portion of the Fourteenth Amendment in which the Due Process Clause appears, and his paternity is quite widely accepted. See Adamson v. California, 332 U.S. 46, 73, 67 S.Ct. 1672, 1686, 91 L.Ed. 1903 (1947) (Black, J., dissenting). Of more importance to our issue is that Bingham himself frequently linked the Fourteenth Amendment's Due Process Clause with the Fifth Amendment 8 In the previous version of this opinion, we thought that Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989), was the guiding Supreme Court opinion and that Haslip did not apply to punitive damages based on violations of federal law. Upon further reflection we have determined that it is Haslip, not Browning-Ferris Industries, that provides the guidance in this volatile area. It would be incongruous for the Due Process Clause of the Fourteenth Amendment to apply to state law punitive damages and the Due Process Clause of the Fifth Amendment not apply to federal punitive damages. We made a false distinction when we distinguished on the basis of the legal source of the punitive award. As was said in the text above, for this purpose, there is only one Due Process Clause Furthermore, Browning-Ferris Industries does not provide the guidance this court requires for dealing with challenges to the amount of a punitive damage award. The main holding in Browning-Ferris Industries was that the $6 million punitive damage award did not violate the Excessive Fines Clause of the Eighth Amendment. Although the Court considered the role of federal courts in cases involving punitive damage awards based on state law, and made it clear that a court of appeals should review the district court's decision concerning a jury award, it did not say what the substance of that review should be. Haslip provides the guidance that is necessary when dealing with punitive damages challenged on Due Process or excessiveness grounds, and today we employ its full Due Process review. 9 Under the Alabama system, the instructions explain that the purpose of punitive damages is not to compensate the plaintiff, but to punish the defendant and deter the defendant and others from such conduct in the future. Id. at 16, 111 S.Ct. at 1044 10 The Supreme Court noted that Alabama trial courts look to what it called the Hammond factors after Hammond v. City of Gadsden, 493 So.2d 1374, 1379 (Ala.1986). Haslip, 499 U.S. at 16, 111 S.Ct. at 1044. In Hammond, the Alabama Supreme Court said the trial court should consider factors such as the culpability of the defendant's conduct, the desirability of discouraging similar conduct, the impact on the parties, and other factors including impact on innocent third parties. Id. The Alabama courts refined these criteria to the seven factors, listed in Haslip on page 1045 and in this opinion under Part IV.B.1.b.2, in Green Oil v. Hornsby, 539 So.2d 218, 223-224 (Ala.1989), and Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371, 376-77 (Ala.1989). We still call them by the original name, the Hammond factors, however 11 The Supreme Court in Haslip approved the seven Hammond factors that Alabama courts use when considering punitive damages. 499 U.S. at 17, 111 S.Ct. at 1045. These factors are listed later in this opinion under Part IV.B.1.b.2 12 Although Haslip does not require that we follow the Alabama system's procedure, it certainly permits it. The difference between the approach we take and that suggested by Judge Nelson in her dissent is that we believe a modified Haslip system for reviewing punitive damages is preferable to the uncertain elasticity of other standards 13 The full instruction said, "In arriving at any award of punitive damages, you are to consider the following: (1) The reprehensibility of the conduct of the defendant. (2) The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant's financial condition. (3) That the punitive damage must bear a reasonable relationship to the injury, harm, or damage actually suffered by the plaintiff." E.R. at 428-29. This instruction properly informed the jury of the punishment and deterrence goals of punitive damages, as well as the noncompulsory nature of the award. Justice O'Connor's dissent in Haslip argued that instructions such as these were unconstitutionally vague. Id. at 31, 111 S.Ct. at 1056. She suggested that the Hammond factors would serve as adequate guidance to the jury. Id., 499 U.S. at 38, 111 S.Ct. at 1061. While this may be prudent, the majority of the Court did not find it necessary. 14 The Hammond factors, as described by the Supreme Court, are: (a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred; (b) the degree of reprehensibility of the defendant's conduct, duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the "financial position" of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanctions on the defendant for its conduct, these to be taken in mitigation; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation. Haslip, 499 U.S. at 17, 111 S.Ct. at 1045. 15 This is done to comply with the Seventh Amendment's guarantee to a trial by jury. This is discussed more fully under Part IV.B.1.c 16 The recent grant of certiorari by the Supreme Court in TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 cert. granted, --- U.S. ----, 113 S.Ct. 594, 121 L.Ed.2d 532 (1992), does not alter our conclusion concerning our "grossly excessive" standard. It is likely the Supreme Court in TXO will further refine its Haslip standards 17 Defendants also argue that determinations about qualified immunity are properly the province of the jury. However, there is no question that Judge Pfaelzer was entitled to decide this question as a matter of law. See Thorsted v. Kelly, 858 F.2d 571, 575 (9th Cir.1988). In fact, in its latest word on the issue, the Supreme Court has indicated that "Immunity ordinarily should be decided by the court long before trial." Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991) 18 In their opening brief, defendants refer to violations of Rules 404 and 405. However, defendants failed to challenge this testimony on any basis other than Rule 403 before the district court. Therefore, only a challenge on the basis of that rule has been preserved for appeal. See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.) ("[A] party fails to preserve an evidentiary issue for appeal not only by failing to make a specific objection, [citations omitted], but also by making the wrong specific objection [citations omitted]"), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990) 1 It is not at all clear that this court should even consider a due process claim. In their initial brief to this court, the defendants cited Haslip, but appeared to use that case merely to support their argument regarding the appropriate standard of review for claims that punitive awards are excessive. They never used the words "due process" nor did they cite to Supreme Court or lower federal court cases prior to Haslip which concerned due process arguments with respect to punitive damages. Only in their reply brief did they squarely raise the due process argument Thus, under this court's policy of not considering issues "not specifically and distinctly raised and argued" in the opening brief, Officers for Justice v. Civil Service Commission, 979 F.2d 721, 726 (9th Cir.1992), we need not reach the due process claim. See also United States v. Traynor, 990 F.2d 1153 (9th Cir.1993) (holding that an appellant waives his right to raise a claim when he does not do so in the opening brief but only in the reply brief); Belanger v. Madera Unified School District, 963 F.2d 248, 250 n. 1 (9th Cir.1992) (refusing to consider issues not listed in "statement of issues presented for review" or in appellant's opening brief which are raised for the first time reply brief). 2 I note, however, that the Eighth Circuit recently withdrew a major opinion on the constitutionality of a punitive damages award in order to hear the case en banc. Robertson Oil Co., Inc. v. Phillips Petroleum Co., 979 F.2d 1314 (8th Cir.1993) 3 Only the Fourth Circuit has read Haslip to require the States to parrot Alabama's system of reviewing punitive damages awards. See Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir.1992) (en banc); Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991). In Johnson and Mattison, the Fourth Circuit invalidated Virginia's and South Carolina's review processes, respectively, because they did not correspond to the Alabama model. As with the majority's opinion today, such an outcome amounts to the imposition "upon the state [of Virginia of] a federal common law [of punitive damages]." Johnson, 974 F.2d at 1425, 1428 (Luttig, J., concurring in part, dissenting in part) 4 It is worth noting that the trial court instructed the jury to make its findings under the "clear and convincing evidence" standard, an evidentiary standard is more stringent than Alabama's preponderance of the evidence standard 5 The California Supreme Court has not addressed directly the issue of whether California's common law review procedures comport with Haslip. In Murakami, the court expressly declined to reach this issue, 54 Cal.3d at 118, 284 Cal.Rptr. 318, 813 P.2d 1348, but the court recently granted review petitions in two cases which squarely raise the issue. See Gourley v. State Farm Mutual Automobile Insur. Co., 92 Daily Journal DAR 9796 (July 9, 1992); MGW, Inc. v. Fredricks Development Corp., 10 Cal.Rptr.2d 85, 832 P.2d 586 (1992) 6 Once again, I note that California's system appears to be more strict than the trial court review procedure approved in Haslip in terms of the degree of independence attributed to the trial court's review of the award. In the case at bar, furthermore, the trial court was especially well-suited to such a task, as it had heard first-hand the evidence in two trials of the same case. So, while the district court was not required to and did not state its reasons for rejecting the defendants' motions for a new trial and judgment notwithstanding the verdict on the record, it was required to consider these defense motions independently 7 Some courts have read a footnote in Haslip as condemning, for constitutional infirmity, state common law procedures for awarding and reviewing punitive damages which do not mirror those in Alabama. See Mattison, 947 F.2d at 106. In note 10, the Court does note differences between the Alabama method which it approves and other methods: In those respective schemes, an amount awarded would be set aside or modified only if it was 'manifestly and grossly excessive,' or would be considered excessive when 'it evinces passion, bias and prejudice on the part of the jury so as to shock the conscience.' Haslip, 499 U.S. at 17 n. 10, 111 S.Ct. at 1045, n. 10 (citations omitted). I do not believe that the Supreme Court intended to overrule Browning-Ferris Industries in a footnote. The Court itself noted, in that case, that the defendants' had not made the due process claim. Further, there is not evidence to suggest that each and every "shock the conscience" or similar common law standard would fail to pass constitutional muster. Under my reading of Haslip, each procedure would have to be assessed on a case-by-case basis to explore the content of the common law standard. 8 This conclusion is buttressed by the fact that, subsequent to Haslip, this court has relied on the standard of review articulated in Browning-Ferris Industries. See Davis; Larez v. City of Los Angeles, 946 F.2d 630, 639 (9th Cir.1991) 9 In two recent police misconduct cases, this court upheld the punitive damages awards against excessiveness challenges. See Corder v. Gates, 947 F.2d 374 (9th Cir.1991); Larez, 946 F.2d at 639

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE ) IN RE JOSEPH A. HURLEY, ) C.M. No. N19M-07-067 ) Corrected' Order of Contempt as to Joseph A. Hurley, Esquire This 17th day of July, 2019, upon consideration of the record in this case and the applicable legal authorities, including 11 Del. C. § 1271 and Rule 42 of the Superior Court Rules of Criminal Procedure, it appears to the Court that: l, On March 15, 2018, Joseph A. Hurley (“Hurley”) was not present for the 9 a.m. call of the criminal trial calendar. Hurley’s office called the Prothonotary’s office a minute or two before 9 a.m. to advise he would be 10 minutes late. At 9:30 a.m., he still had not appeared for the calendar. When he did appear, at approximately 9:40 a.m., Hurley offered no explanation for his tardiness except to say that he had a “personal, medical” issue. Ds, Hurley’s late appearance was not his first such transgression in this Court, and he therefore was warned on the record that he would be sanctioned by the Court if he was late for the call of the calendar in the future. Hurley acknowledged on the record that he understood the Court’s warning. 3. On July 9, 2019, Hurley again did not appear by 9 a.m. for the criminal trial calendar. On that date, he had two cases on the calendar, one of ' This version of the Court’s July 9, 2019 order corrects a statutory citation in Paragraph 4. The order otherwise remains unchanged. which was likely to (and did) go to trial. At 9:20 a.m., at the conclusion of the “first call” of the calendar, Hurley still had not appeared. At the “second call,” at 9:45, Hurley appeared, apologized for his tardiness, and explained that due to a three-week old issue with his phones, he was late getting on a conference call with another judge and therefore was late getting to the courthouse for the trial calendar. 4. Hurley’s tardiness disrupts Court proceedings by causing unnecessary delays and attendant inconvenience and frustration for the Court and the parties. For example, in the case that went to trial on July 9, 2019, Hurley’s failure to appear for the “first call” delayed the start of trial by at least an hour, affecting the trial judge, court staff, witnesses, opposing counsel, and prospective jurors. Because Hurley’s tardiness is an issue entirely of his own making, and because he fails to appear on time despite repeated warnings from the Court, the Court finds Hurley in contempt under 11 Del. C. § 1271(1) and orders him to pay $1,000 to the Superior Court as a sanction. Now, therefore, Joseph A. Hurley shall pay the ordered sanction within 10 business days. If the sanction remains unsatisfied after that date, an additional sanction of $10 per day shall be imposed until the entire sanction is paid. IT IS Me. ae ~ Abigail. LeGrew, Judge SO ORDERED. Original to Prothonotary cc: Jordan A. Braunsberg, Deputy Attorney General Joseph A. Hurley, Esquire 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/03/2018 12:09 AM CDT - 171 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 Frederick Heiden and A nn Heiden, husband and wife, appellees, v. Tracy J. Norris, appellant. ___ N.W.2d ___ Filed June 8, 2018. No. S-17-689.  1. Visitation: Appeal and Error. Determinations concerning grandparent visitation are initially entrusted to the discretion of the trial court, whose determinations on appeal will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial court’s discretion.  2. Standing. Under the doctrine of standing, a court may decline to deter- mine the merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination.  3. Statutes. Statutory interpretation presents a question of law.  4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to inter- pretation to ascertain the meaning of words which are plain, direct, and unambiguous.  5. Statutes: Legislature: Intent. In discerning the meaning of a statute, a court determines and gives effect to the purpose and intent of the Legislature as ascertained from the entire language considered in its plain, ordinary, and popular sense.  6. Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.   7. ____. The whole and every part of a statute must be considered in fixing the meaning of any of its parts.  8. Statutes: Intent. In construing a statute, a court looks to the statutory objective to be accomplished, the evils and mischiefs sought to be rem- edied, and the purpose to be served. A court must then reasonably or liberally construe the statute to achieve the statute’s purpose, rather than construing it in a manner that defeats the statutory purpose.  9. Statutes: Courts. Generally, statutes in derogation of the common law are to be strictly construed.  - 172 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 10. Visitation: Statutes: Courts. Grandparent visitation did not exist at common law, and thus should be strictly limited to the definition pro- vided by law. Appeal from the District Court for Hamilton County: R achel A. Daugherty, Judge. Order vacated, and cause remanded with directions to dismiss. James M. Buchanan, P.C., L.L.O., for appellant. Scott D. Grafton, of Grafton Law Office, P.C., L.L.O., for appellees. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Welch, Judge. Heavican, C.J. INTRODUCTION Frederick Heiden and Ann Heiden filed a complaint to establish grandparent visitation. Visitation was granted. Tracy J. Norris, the biological father of the children impacted by the order, has appealed. The primary issue on appeal is whether the Heidens are grandparents for purposes of the grandpar- ent visitation statutes, Neb. Rev. Stat. §§ 43-1801 to 43-1803 (Reissue 2016). We vacate the order of visitation and remand the cause with directions to dismiss. BACKGROUND Tracy and Katherine Norris were divorced in 2016 in Hamilton County, Nebraska. The couple had three children together. Katherine died on July 14, 2016. Since that time, the children have resided with Tracy in Fort Collins, Colorado; the Heidens live in Hampton, Nebraska. The record includes a partial transcript from Tracy and Katherine’s divorce pro- ceeding in which the Heidens acknowledge that they were not Katherine’s legal (adoptive or biological) parents, but had raised Katherine since she was 3 years of age. On October 21, 2016, the Heidens sought grandparent visita- tion, alleging that they were  - 173 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 grandparents of the minor children as the context requires as they have acted as the grandparents of the minor chil- dren during their entire lives. Prior to the death of the minor children’s mother, a significant beneficial relation- ship existed between the minor children and the [Heidens] as they resided together from approximately November of 2013 to July 14th, 2016 and the [Heidens] had signifi- cant contact with each of the children from the time they were born. (Emphasis supplied.) Tracy was apparently served with this complaint, but did not appear. An order granting default judg- ment and visitation to the Heidens was entered on January 5, 2017. On January 11, 2017, Tracy filed a motion to alter or amend, and on February 2, he filed a motion to vacate, alleging that the Hamilton County District Court did not have jurisdiction. At the hearing, Tracy explained that he did not respond to the complaint because he did not think the Heidens would be able to establish that they were the children’s grandparents. Following the district court’s conclusion that it had juris- diction, Tracy filed another motion on May 8, 2017, entitled “Motion to Vacate, Motion to Alter or Amend, or, Notice of Appeal.” On June 29, the district court sustained this motion in part, amending the prior visitation order. Tracy appeals. ASSIGNMENT OF ERROR Tracy assigns that the district court erred in finding that the Heidens had standing to bring this action. STANDARD OF REVIEW [1] Determinations concerning grandparent visitation are initially entrusted to the discretion of the trial court, whose determinations on appeal will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial court’s discretion.1  1 See Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).  - 174 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 ANALYSIS Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.2 The district court concluded that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.3 Having reviewed the record, we agree.4 We turn to Tracy’s sole argument on appeal that the Heidens lacked standing to bring an action for grandpar- ent visitation. Tracy contends that the Heidens are unable to prove that they are the children’s grandparents for purposes of Nebraska’s grandparent visitation statutes because they were not Katherine’s “biological or adoptive parents” as required by those statutes.5 [2] Tracy conflates standing with the merits of the Heidens’ claim. Under the doctrine of standing, a court may decline to determine the merits of a legal claim because the party advancing it is not properly situated to be entitled to its judi- cial determination.6 But as we have said previously, the focus of the standing inquiry is “on the party, not the claim itself.”7 For that very reason, in considering standing, the legal and factual validity of the claim presented must be assumed.8 Here, if the Heidens’ assertions that they are grandparents  2 Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).  3 Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016).  4 See § 43-1239.  5 Brief for appellant at 7. See § 43-1801.  6 Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).  7 Id. at 541-42, 788 N.W.2d at 260.  8 See, e.g., Cotrell v. Alcon Laboratories, 874 F.3d 154 (3d Cir. 2017); Delaware Dept. of Nat. Resources v. F.E.R.C., 558 F.3d 575 (D.C. Cir. 2009) (citing Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)); Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006); Mr. Furniture v. Barclays American/Commercial Inc., 919 F.2d 1517 (11th Cir. 1990).  - 175 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 within the meaning of § 43-1801 and entitled to visitation under the statute are assumed to be valid, it becomes plain that the Heidens are the proper parties to bring such a claim and thus have standing. But the crux of Tracy’s argument is that the Heidens were not entitled to an order of visitation. Tracy contends that because the Heidens were not Katherine’s legal parents, they are not grandparents under our statutes and thus are not entitled to consideration of their request for visitation. We turn to that contention, which is a matter of statutory interpretation. Section 43-1802 sets forth a grandparent’s right to visitation in part as follows: (1) A grandparent may seek visitation with his or her minor grandchild if: (a) The child’s parent or parents are deceased; (b) The marriage of the child’s parents has been dis- solved or petition for the dissolution of such marriage has been filed, is still pending, but no decree has been entered; or (c) The parents of the minor child have never been married but paternity has been legally established. (2) In determining whether a grandparent shall be granted visitation, the court shall require evidence con- cerning the beneficial nature of the relationship of the grandparent to the child. The evidence may be presented by affidavit and shall demonstrate that a significant ben- eficial relationship exists, or has existed in the past, between the grandparent and the child and that it would be in the best interests of the child to allow such rela- tionship to continue. Reasonable rights of visitation may be granted when the court determines by clear and con- vincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship.  - 176 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 As relevant to this appeal, § 43-1801 provides that “unless the context otherwise requires, grandparent shall mean the biologi- cal or adoptive parent of a minor child’s biological or adop- tive parent.” This court has found Nebraska’s grandparent visitation statutes to be constitutional, relying in part on the limitation of only biological and adoptive grandparents as those entitled to visitation, as well as a limitation of those circumstances in which a grandparent could seek visitation and a high standard of proof required to show entitlement to an order of visitation.9 [3-5] The issue is one of statutory interpretation, which presents a question of law.10 Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of words which are plain, direct, and unambiguous.11 In discerning the meaning of a statute, a court determines and gives effect to the purpose and intent of the Legislature as ascertained from the entire language considered in its plain, ordinary, and popu- lar sense.12 [6-8] A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.13 The whole and every part of a statute must be considered in fixing the mean- ing of any of its parts.14 In construing a statute, a court looks to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served. A court must then reasonably or liberally construe the statute  9 Hamit v. Hamit, supra note 1. 10 Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018). 11 Id. 12 Id. 13 Id. 14 Id.  - 177 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 to achieve the statute’s purpose, rather than construing it in a manner that defeats the statutory purpose.15 [9,10] “Generally, statutes in derogation of the common law are to be strictly construed.”16 Grandparent visitation did not exist at common law,17 and thus should be strictly limited to the definition provided by law. Here, the plain meaning of the term “grandparent” excludes the Heidens. The Heidens argue, however, that the term “grandparent” means a biological or adoptive parent of the child’s biological or adoptive parent and that in this case, the “context” shows that they are the children’s grandparents. We disagree. A review of our case law suggests that the “context” referred to in § 43-1801 is not the factual circumstances presented by a case, but the context of the statutory language itself.18 In Pig Pro Nonstock Co-op v. Moore,19 we examined, but ultimately rejected, cases from other jurisdictions that went beyond the context of the statute to the facts in order to determine whether a cooperative was designated “nonprofit” for purposes of a stat- utory scheme. As another court has since explained: “The term ‘context’ in the statutory phrase ‘unless the context otherwise requires’ means the context ‘within which [a defined statutory term] is used within the statute’s substantive provisions.’”20 15 Id. 16 73 Am. Jur. 2d Statutes § 181 at 415 (2012). 17 See Hamit v. Hamit, supra note 1. 18 See, Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017); State v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016); State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015); First Data Corp. v. State, 263 Neb. 344, 639 N.W.2d 898 (2002). But see School Dist. of Omaha v. State Board of Education, 187 Neb. 76, 187 N.W.2d 592 (1971). 19 Pig Pro Nonstock Co-op v. Moore, 253 Neb. 72, 568 N.W.2d 217 (1997). 20 People v. Mendenhall, 363 P.3d 758, 766 (Colo. App. 2015), quoting Pima Financial Service Corp. v. Selby, 820 P.2d 1124, 1128 (Colo. App. 1991). See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 113 S. Ct. 716, 121 L.Ed.2d 656 (1993).  - 178 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports HEIDEN v. NORRIS Cite as 300 Neb. 171 Moreover, we note that a narrow definition of the term “grandparent” was a factor in our conclusion that such visi- tation statutes were constitutional. We specifically noted in Hamit v. Hamit 21 that “Nebraska’s statutes are . . . narrowly drawn . . . and explicitly protect parental rights while taking the child’s best interests into consideration.” Because the plain language of the statutes provides that a grandparent is defined as the biological or adoptive parent of a minor child’s biological or adoptive parent, and because the Heidens failed to show that they were Katherine’s biological or adoptive parents—indeed the record in this case affirm­ atively shows that they were not Katherine’s biological or adoptive parents—the Heidens are not entitled to an order of visitation under §§ 43-1801 to 43-1803. The district court’s order of visitation is vacated, and the cause is remanded to the district court with directions to dismiss. CONCLUSION The district court erred in granting the Heidens’ request for grandparent visitation. We vacate the order of visitation, and remand the cause with directions to dismiss. Order vacated, and cause remanded with directions to dismiss. 21 Hamit v. Hamit, supra note 1, 271 Neb. at 677, 715 N.W.2d at 527. 

377 So.2d 947 (1979) Ernest R. GREENE v. A. W. JONES and Cadwallader Jones, Jr. 78-416. Supreme Court of Alabama. November 30, 1979. *949 William K. Murray of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellant. Clifford M. Spencer, Jr., Birmingham, for appellee. PER CURIAM. Appellant, Ernest R. Greene, brought suit in 1975 against A. W. Jones and Cadwallader Jones and their spouses for specific performance of a land sales contract executed between Greene and A. W. Jones in 1971. A. W. and Cadwallader Jones are brothers, the former practicing law in Birmingham and the latter residing in Oklahoma City. Greene is a real estate agent, residing and doing business in Birmingham. In 1970, A. W. Jones retained Greene to sell the property which is the subject of this suit. Unable to find a purchaser, Greene became interested in purchasing the land for himself; and, on August 4, 1971, he ordered a title binder which, in addition to showing A. W. Jones and Cadwallader Jones as joint tenants, showed that there were certain quitclaim deeds held by adjoining landowners, the Davis family. There was also some question whether the Davis family residence was built on Davis or on Jones property. A standard real estate sales contract was signed by Greene and A. W. Jones on October 28, 1971, stipulating that the closing would be 30 days thence, but that the seller would have a reasonable length of time within which to perfect title. Although the contract was signed by only one of the Jones brothers, Greene maintains as the basis for his suit that A. W. Jones consistently represented that he had authority to act for his brother, Cadwallader, in all matters pertaining to the property. Greene ordered a survey of the land on November 12, 1971. Shortly after completion of the survey, the Davis family brought a quiet title action against the Jones brothers. At the end of the suit, some two years later, there was an exchange of deeds and some redrawing of boundaries so that the Jones brothers then had good title to all the land described in the 1971 contract except for a small corner, comprising the Davis homestead, which was conveyed to the Davis family in return for an additional strip of land along the eastern border of the Jones property. Greene demanded performance, agreeing to limit the conveyance to that portion of the land described in the contract still owned by the Jones brothers; and, after their refusal to sell, Greene brought suit. Except for granting the Plaintiff judgment for $500 (representing the return of his earnest money), the trial Court denied Plaintiff relief, stating: (1) that there was no written evidence of an agency relationship between the brothers, and Cadwallader Jones "admittedly has never given his consent to a sale of the realty;" (2) that damages against A. W. Jones would be inappropriate because, other than a prayer for general relief, Plaintiff sought only specific performance; and (3) that the executed contract did not accurately describe the property in question. We note that this denial of relief came not at the conclusion of a full trial, but in the context of the trial Court's granting of the Defendants' motion for a "directed verdict" which was made at the conclusion of Plaintiff's case.[1] We note further that, if, in fact, the Defendants had *950 rested their case, foreclosing any evidentiary support of their allegations of denial, the evidence would have supported but a single conclusion, favorable to the Plaintiff's claim against each of the brothers. We reverse and remand as to Defendants A. W. Jones and Cadwallader Jones. Finding a total absence of evidence linking their spouses, or either of them, to the contract of sale, however, we hold that the "directed verdict" was appropriate as to these Defendants, Mrs. A. W. Jones and Mrs. Cadwallader Jones; and, accordingly, this aspect of the judgment below is affirmed. It is Greene's contention that A. W. Jones acted as agent for his brother so as to bind both to the real estate sales contract. As evidence of the agency, Greene cites a letter written by A. W. Jones to Greene's attorney in response to the latter's demand for performance. The fact that A. W. Jones acted as one of the attorneys of record in the quiet title action filed against both brothers by the Davis family is also cited as evidence of the agency relationship. Greene contends, alternatively, that even if A. W. Jones was not authorized to act in his brother's behalf, his brother, Cadwallader Jones, nevertheless had knowledge of the contract and either ratified its contents or, by his silence, is now estopped to deny the contract of sale. Because our disposition of this appeal remands the cause for further proceedings, to comment more fully on the tendencies of the evidence on the agency issue would be inappropriate. Suffice it to say, we are clear to the conclusion that, on the posture of the record before us, the trial Court acted prematurely in granting the Defendants' motion for judgment as to both or either of the Defendants, A. W. and Cadwallader Jones. Whatever the trial Court concludes on the agency issue as to Cadwallader Jones's liability, however, does not necessarily preclude Plaintiff's equitable and legal remedies against A. W. Jones, who undisputedly signed a real estate sales contract with Plaintiff. In view of the joint interest in the land by the brothers, the only other issue concerning the contract, which remains to be determined upon remand, is whether A. W. Jones's agreement to sell was absolute or conditional. As is more fully discussed below, if A. W. Jones agreed to the sale only upon the condition of his brother's future consent, it follows that he could have committed no breach inasmuch as the trial Court, acting as the trier of fact, has already determined that Cadwallader Jones never expressly assented to the sale of the land. On the other hand, if the contract was not conditioned upon subsequent assent by his brother, Plaintiff is not precluded from relief as against A. W. Jones, even assuming the failure of his cause of action as against Cadwallader Jones. A vendor who is able to convey some, but not all, that he contracted for is not allowed to set up his inability as a defense to liability in a suit for specific performance. If a vendor is unable to transfer title to all of the land that he contracted to convey, the vendee, or purchaser, may demand such performance as is within the vendor's ability. In such cases, the vendee, or purchaser, is entitled to specific performance with respect to that part which the vendor can convey, together with an abatement in price proportionate to the deficiency, or partial performance and damages but without an abatement in price. Saliba v. Brackin, 260 Ala. 103, 69 So.2d 267 (1953); McCreary v. Stallworth, 212 Ala. 238, 102 So. 52 (1924); Corbin on Contracts, Vol. 5A, § 1160 at 188. There is similarly no merit to Appellee's argument that Appellant is not entitled to partial performance and/or damages because, other than a prayer for general relief, Appellant in the Court below sought only specific performance of the entire interest. ARCP 54(c) provides: "[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." *951 This Rule was copied directly from Federal Rules of Civil Procedure, 54(c) where the precise issue has been ruled upon. In Sapp v. Renfroe, 511 F.2d 172 (1975), the Fifth Circuit stated: "Rule 54(c) of the Federal Rules of Civil Procedure has been construed liberally and under it the demand for relief in the pleadings does not limit, except in cases of default, the relief a court may grant when entering judgment. See Thorington v. Cash, 494 F.2d 582, 586 n.9 (5th Cir. 1974). A party may be awarded the damages established by the pleadings or the facts proven at trial even though only injunctive relief was demanded in the complaint, unless such damages are foisted upon the parties by the court, or unless the failure to demand such relief prejudiced the opposing party. Robinson v. Lorillard Corp., 444 F.2d 791, 802-03 (4th Cir. 1971); see J. Moore, Federal Practice ¶ 54.62 (2d ed. 1974)." 511 F.2d at 176, n. 3. As already discussed above, if it is determined on remand that Cadwallader Jones is not liable under agency or estoppel principles and that A. W. Jones's contract to convey was conditional upon his brother's later assent also to convey, it follows that no breach could have been committed, it having already been established that concurring assent was never given. Where one of several owners of property in common promises to join in a conveyance of the whole with others but does not promise that the others will so join and does not promise that he will convey his own interest separately, it is no breach by him to refuse to convey when the others will not or cannot join. Corbin on Contracts, Vol. 5A, § 1160, at 195-196; Jones v. McGivern, 274 Ala. 232, 147 So.2d 813 (1962). It has, of course, not yet been determined conclusively that the contract signed by A. W. Jones was one to convey absolutely or conditionally. This remains to be determined upon remand. We note, however, that the written agreement, in the form of a standard real estate sales contract, is on its face an absolute promise to convey and any condition which would have formed part of the agreement would necessarily have to be established by parol evidence. Upon remand of this cause, Defendant A. W. Jones will have an opportunity to present his defense and show why the parol evidence rule should not operate in this case to preclude parol evidence to vary or contradict the written agreement between parties. See Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So.2d 431 (Ala.1979). The next issue raised by this appeal is the result of apparent confusion concerning the nature of the requirement of certainty as applied to the equitable remedy of specific performance. It is a well settled principle of equity that a contract will not be specifically enforced, unless it is certain in its terms, or is capable of being made certain, under rules of law and evidence. Conway v. Andrews, 286 Ala. 28, 236 So.2d 687 (1970); Rushton v. McKee & Co., 201 Ala. 49, 77 So. 343 (1917). The contract before us here describes the real estate to be conveyed as being situated in Jefferson County, Alabama, and comprising "The West ½ of the South 663' of the East 918' of the NW ¼ of the SW ¼ of Section 29, Township 17 South, Range 1 West." It is difficult to imagine how the realty, which is the subject of this contract, could have been described with any greater specificity. The confusion in this case which led the trial Court to hold that "the executed contract did not accurately describe the property in question" is the result, apparently, of the fact that the land Defendants held at the time of the contract's execution, differed from that which they held at the time Plaintiff demanded performance. This variance is relevant, however, only to the ability of the vendor to perform, discussed above, and has no bearing whatever on the ability of the Court to specifically enforce the contract to the extent of Defendant's or Defendants' ability to convey. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur. NOTES [1] Obviously the reference by Defendants and by the trial Court to a "directed verdict" is a mere inadvertence, the correct reference in a non-jury trial being "motion for judgment." See Rule 41(b), ARCP, and Chaney v. General Motors Corp., 348 So.2d 799 (Ala.Civ.App. 1977).

Court of Appeals of the State of Georgia ATLANTA, April 17, 2018 The Court of Appeals hereby passes the following order A18A1203. LARRY LEE AS GUARDIAN OF JOSHUA LEE et al. v. DIRECTV, LLC. Upon consideration of the APPELLANT'S motion FOR PERMISSION TO WITHDRAW THE APPEAL in the above styled case, it is ordered that the motion is hereby GRANTED. Court of Appeals of the State of Georgia Clerk's Office, Atlanta, April 17, 2018. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

884 F.2d 89 14 Fed.R.Serv.3d 664 HORNER EQUIPMENT INTERNATIONAL, INC., Appellee,v.SEASCAPE POOL CENTER, INC. and Robert J. Heym, Appellants. No. 88-3326. United States Court of Appeals, Third Circuit. Argued April 25, 1989.Decided Aug. 25, 1989. Scott A. Burton (argued), Law Offices of Wilfredo A. Geigel, Christiansted, St. Croix, U.S. Virgin Islands, for appellants. Eddy Rivera (argued), Christiansted, St. Croix, U.S. Virgin Islands, for appellee. Before HUTCHINSON, COWEN and GARTH, Circuit Judges. OPINION OF THE COURT HUTCHINSON, Circuit Judge. I. 1 Seascape Pool Center, Inc. (Seascape) and Robert J. Heym (Heym) appeal two orders of the District Court of the Virgin Islands, Appellate Division (appellate division). One dismissed their appeal from an order of the Territorial Court of the Virgin Islands,1 and the other denied their motion for reconsideration. In both orders, the appellate division stated that its action was based on Seascape and Heym's failure to pay for the territorial court trial transcript, despite repeated requests to do so. 2 Seascape and Heym contend the appellate division abused the discretion Federal Rule of Appellate Procedure 3(a) gives it to dismiss appeals for lack of prosecution. We are unable to tell from this record whether the appellate division exercised its discretion under Rule 3(a) or instead relied on the arguably mandatory provisions of certain directives on transcripts that the district court's former chief judge and the court clerk issued to the bar. 3 We conclude that these directives cannot substitute mandatory dismissal for exercise of the discretion which Rule 3(a) requires before the sanction of dismissal is imposed for failure to comply with the requirements of Federal Rule of Appellate Procedure 10(b) relating to transcripts. Therefore, we will vacate the order dismissing Seascape and Heym's appeal and remand to the appellate division for further proceedings consistent with this opinion. II. 4 We have appellate jurisdiction over the appellate division's orders dismissing Seascape and Heym's appeal and denying their motion for reconsideration under 28 U.S.C.A. Sec. 1291 (West Supp.1989). Seascape and Heym had filed a timely appeal to the appellate division from the territorial court's order denying their Federal Rule of Civil Procedure 60(b) motion for reconsideration of the judgment against them.2 We review the appellate division's order dismissing Seascape and Heym's appeal from the territorial court for failure to comply with the provisions of Rule 10(b) and its order denying their motion for reconsideration for abuse of discretion. III. 5 Horner began a debt collection action against Seascape in May, 1986 in the territorial court. After a bench trial, that court entered judgment for Horner on April 1, 1987. Seascape and Heym filed motions for relief from the judgment, pursuant to Federal Rule of Civil Procedure 60(b)(2), on April 27, 1987.3 The trial court denied these motions on September 28, 1987. Seascape and Heym then filed a notice of appeal with the appellate division on October 23, 1987. The notice stated that they appealed from both "the Judgment entered against them and this Court's Order of September 23, 1987."4 Joint Appendix (J.A.) at 5. 6 By letter dated December 1, 1987, the clerk of the district court informed Seascape and Heym that their appeal had been docketed that day. The clerk reminded them of their obligation, pursuant to Federal Rule of Appellate Procedure 3(e),5 to pay a docket fee by December 8 and, pursuant to Rule 10(b),6 to order the portions of the trial transcript relevant to the issues on appeal. The letter stated: "If you have not already done so, you should order the trial transcript within five (5) days of the date of this letter." Id. at 7. Thereafter, Seascape and Heym requested a trial transcript by letter dated December 7, 1987. Id. at 8.7 7 By its order dated February 24, 1988, the appellate division dismissed the appeal for failure to timely prosecute pursuant to Rule 3(a).8 Id. at 9. Seascape and Heym filed a motion for reconsideration the following day, asserting that their December 7 transcript request satisfied Rule 10(b). Id. at 10-11. 8 On March 18, 1988, the appellate division vacated its February 24 order and instead dismissed the appeal because the "appellants filed an untimely notice of appeal." Id. at 18. The court noted that final judgment was entered on April 1, 1987 and that notice of appeal should have been filed within thirty days of that date because the time for filing an appeal from the judgment was not tolled by their Rule 60(b) motion for reconsideration. Id. at 19. Seascape and Heym then filed a motion for reconsideration on March 24, 1988, conceding that their October 23 notice of appeal was untimely with respect to the April 1 judgment, but pointing out that they also specifically appealed from the territorial court's September 28 denial of their Rule 60(b) motion for relief from that judgment. Id. at 21-22.9 9 Thereafter, on April 18, 1988, the appellate division vacated its March 18 order dismissing the appeal as untimely, but reinstated its February 24 order dismissing it for failure to prosecute. It also denied Seascape's motion to reconsider the first order, stating: 10 Upon consideration of the two motions of appellants, Seascape Pool Center, Inc. and Robert J. Heym, for reconsideration of the Court's Order of February 24, 1988 which dismissed this matter for failure to timely prosecute, and for reconsideration of the Order of March 18, 1988 which vacated the earlier Order, but again dismissed this matter, for lack of jurisdiction. 11 IT IS ORDERED that the Order of this Court dated March 18, 1988 be, and the same is, hereby VACATED, thereby reinstating the Order of February 24, 1988; and it is 12 FURTHER ORDERED the motion of appellants for reconsideration of the Order of February 24, 1988 be, and the same is, hereby DENIED because of appellants' failure to pay for certain portions of the trial transcript inspite [sic] of repeated requests from the Court to do so. 13 Id. at 23 (emphasis added). 14 Seascape and Heym filed another motion for reconsideration on April 27, 1988. Id. at 25. Attached to that motion was an affidavit of counsel dated April 27, 1988, stating that he had ordered a transcript on December 7, 1987 but had never received it, "nor any request by the District Court, either in writing or telephonically, for payment." Id. at 27. The appellate division denied this motion on May 4, 1988. The order read: 15 It appearing to the Court that the clerk's office repeatedly requested that counsel for appellants pay for the trial transcript and that counsel ignored these requests, 16 IT IS ORDERED that the motion of appellants, Seascape Pool Center, Inc. and Robert J. Heym, for reconsideration of this Court's Order, dated April 18, 1988, be, and the same is, hereby DENIED. 17 Id. at 29.10 Seascape and Heym then appealed the appellate division's April 18 and May 4 orders to this Court on May 18, 1988. Id. at 1. IV. 18 The record in this case is insufficient to support an order imposing the sanction of dismissal for failure to comply with the provisions of Rule 10(b) concerning an appellant's responsibilities with respect to trial transcripts. Under Rule 10(b), it is, of course, plain that Seascape and Heym had a duty to make satisfactory arrangements to pay the reporter when they ordered the transcript on December 7, 1987 and that the appellate division has discretion to impose sanctions if they did not do so. As Professor Moore states: 19 Under Rule 10(b), the Appellant must order the transcript from the reporter, if one is to be ordered. The order must be in writing and at the time of ordering he must make satisfactory arrangements with the reporter for paying the cost of the transcript. If he does this within 10 days after the filing of the Notice of Appeal he has done his duty with respect to the preparation of the transcript. 20 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 211.07 (2d ed. 1989) [hereinafter Moore's Federal Practice ]. However, on the present record we cannot tell what arrangements they made, if any.11 21 Dismissal of an appeal for failure to comply with procedural rules is not favored, although Rule 3(a) does authorize it in the exercise of a sound discretion. That discretion should be sparingly used unless the party who suffers it has had an opportunity to cure the default and failed to do so. Moreover, before dismissing an appeal, we believe that a court should consider and weigh such factors as whether the defaulting party's action is willful or merely inadvertent, whether a lesser sanction can bring about compliance and the degree of prejudice the opposing party has suffered because of the default. Accord Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984) (discussing factors to be considered before district court can dismiss action under Federal Rule of Civil Procedure 37(b) for failing to comply with the rules on discovery). 22 This record does not show that the district court considered any of these factors, except the alleged willfulness of counsel in failing to make arrangements with the stenographer for payment after being advised to do so. Unfortunately, the record does not show any such requests and appellants' counsel has filed an affidavit disputing receipt of any specific requests from the court that he pay the stenographer. 23 In ordering dismissal, the chief judge of the district court may have relied on the Guidelines for Ordering Transcripts that the district court clerk issued on July 1, 1987 (July 1 guidelines).12 The July 1 guidelines and the district court's earlier directives on that subject may have been intended to put counsel practicing in the district court's appellate division on notice that failure to make satisfactory payment arrangements with the territorial court stenographer when ordering transcripts would result in sanctions as severe as dismissal.13 Nevertheless, they are an ineffective substitute for exercise of the discretion the Federal Rules of Appellate Procedure require and do not, in and of themselves, establish willful disregard of an appellant's duty under Rule 10(b)(4) to provide a transcript. 24 The July 1 guidelines, unlike an earlier April 29, 1986 memorandum to the Virgin Islands Bar from then-Chief Judge Christian on the same subject,14 do not expressly apply to transcripts of proceedings in the territorial court. Moreover, the July 1 guidelines state: "Kindly disregard all previously issued guidelines, regardless of their source." Appellee's Third Exhibit at 1 (emphasis in original). The July 1 guidelines direct persons ordering transcripts to do so through the clerk, not through the reporter. Id. They also require an accompanying check made payable to the stenographer to cover the estimate the appellant is supposed to have previously gotten from the stenographer. Id. at 3-4. 25 Thus, while the July 1 guidelines require that transcripts be ordered through the district court clerk, they do not specify how this is to work in practice when territorial court stenographers are involved. They also leave the determination of the estimated amount due in advance to the stenographer and appeal counsel. In addition, unlike the clerk's even earlier memo of August 2, 1985 to the Virgin Islands Bar on the same subject,15 they do not state that failure to serve a transcript order accompanied by payment within ten days "will result in dismissal."16 The July 1 guidelines contain no reference to sanctions at all. Under such circumstances, we believe a finding of willful violation of Seascape and Heym's duty to make satisfactory arrangements to pay for a transcript must be otherwise supported in the record. 26 In so ruling, we are not unaware of our decision in Smith v. Oelenschlager, 845 F.2d 1182 (3d Cir.1988). There we held that an order based on Local Rule 20(e) of the United States District Court for the Eastern District of Pennsylvania, which provides for mandatory dismissal of a motion for a new trial upon failure to timely follow the procedure regarding transcripts, was not an abuse of discretion.17 Both the July 1 guidelines and Local Rule 20(e) appear to be concerned with trial transcripts that the district court needs to decide post-trial motions. The guidelines do not expressly apply to transcripts of territorial court proceedings needed in appeals from the territorial court to the appellate division of the district court. In addition, this case is distinguishable from Smith. The July 1 guidelines, unlike Local Rule 20(e), do not expressly state that failure to follow them will, in and of itself, lead to dismissal. More importantly, the present record does not show that the July 1 guidelines were adopted in accordance with the requirements of local rulemaking.18 For these reasons, Smith is not controlling. 27 Although this record does not show that Seascape and Heym had the benefit of the considered discretion to which Rule 3(a) entitles them before an order is entered dismissing their appeal for not complying with Rule 10(b)(4), we hasten to add that they are not necessarily entitled to a favorable exercise of that discretion. See Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 406-07 (3d Cir.1980) (appeal dismissed because appendix did not conform to rules of this Court). Rule 10(b)(4)'s requirement that an appellant must make satisfactory arrangements for payment with the stenographer is a command, not a wish.19 It is up to Seascape and Heym, not the court or the stenographer, to show compliance. 28 An affidavit stating that Seascape and Heym were not asked to pay or that they relied on customary practice without proof that the stenographer was satisfied with that practice is not sufficient to show compliance. A showing, by affidavit or otherwise, that they made a reasonable offer of payment before ordering the transcript and that the stenographer was satisfied with that offer might be sufficient. At the very least, Seascape and Heym would be required to show that they asked the stenographer to give them an estimate of the cost and that they stood ready to pay it forthwith. If they can make such a showing, and if it also appears that the stenographer has failed to give them an estimate, they would then be in a position to move for an order requiring the stenographer to promptly furnish the estimate and, upon its equally prompt payment, to prepare and file the transcript. It is the responsibility of Seascape and Heym, not the court or the clerk, to impose upon the stenographer a legally enforceable duty to provide the transcript.20 29 Disposition of this appeal on its merits has been too long delayed. Upon remand, Seascape and Heym may wish to consider promptly filing a motion for an order requiring the stenographer to prepare the necessary transcript. Perhaps they could support that motion with facts, by affidavit or otherwise, sufficient to show that they or their counsel have taken all the steps necessary to impose upon the stenographer a duty to act. If such a motion is filed and so supported, the appellate division could decide that Seascape and Heym have done their duty under Rule 10(b)(4) and take steps to see that the stenographer does hers. Otherwise, the appellate division would be free, upon remand, to exercise its discretion under Rule 3(a) in favor of dismissing Seascape and Heym's appeal for their failure to comply with Rule 10(b). V. 30 We will vacate the appellate division's order dismissing Seascape and Heym's appeal for failure to prosecute and remand for further proceedings consistent with this opinion. 1 The territorial court's order had denied Seascape and Heym's Federal Rule of Civil Procedure 60(b) motion for reconsideration of a money judgment against them in this action by Horner Equipment International, Inc.'s (Horner) action to collect a debt 2 Seascape and Heym's failure to comply with any requirement about procuring a transcript does not affect their appeal's validity, but is "ground only for such action as the Court ... deems appropriate, which may include dismissal of the appeal." Fed.R.App.P. 3(a) 3 Seascape and Heym sought relief from the territorial court judgment on the basis of evidence they claimed was newly discovered 4 The appellate division of the district court follows the Federal Rules of Appellate Procedure. V.I.Code Ann. tit. 5, app. V, rule 20.15 (Supp.1988). Rule 3(a) requires that a notice of appeal be filed "within the time allowed by Rule 4." Rule 4(a)(1) states in part: In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from. As Seascape later conceded, its notice filed on October 23, 1987, was untimely with respect to the trial court's April 1 entry of judgment. Joint Appendix (J.A.) at 21. 5 That rule states: Payment of Fees. Upon the filing of any separate or joint notice of appeal from the district court, the appellant shall pay to the clerk of the district court such fees as are established by statute, and also the docket fee prescribed by the Judicial Conference of the United States, the latter to be received by the clerk of the district on behalf of the court of appeals. 6 Rule 10(b)(1) states in part: Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as the appellant deems necessary, subject to local rules of the courts of appeals. The order shall be in writing and within the same period a copy shall be filed with the clerk of the district court. Seascape and Heym did not order a transcript within ten days of filing the notice of appeal, but because of the delay in docketing, the clerk did not start the clock on ordering the transcript until docketing. The parties do not question that extension, nor will we. 7 The transcript request was timely according to the counting procedures of Federal Rule of Appellate Procedure 26(a) 8 In the event of an untimely notice of appeal, Rule 3(a) allows "such action as the court of appeals deems appropriate, which may include dismissal of the appeal." 9 In this posture, an appellate court cannot reach the merits of the underlying judgment unless it first determines that the trial court has abused its discretion to deny reconsideration under Rule 60(b) 10 The "repeated requests" the April 18 and May 4 orders refer to do not appear in the record 11 At oral argument counsel for Seascape and Heym represented to this Court that the practice in ordering transcripts in the territorial court is to order them from the stenographer, who then in "due course" furnishes an estimate of the cost. They also represented that they had made three inquiries about the transcript directly to the stenographer before the district court dismissed their appeal but received no estimate, bill or transcript. While these representations are thus far uncontradicted, we do not rely on them to reach our result, nor could we, as those representations do not appear as part of the record 12 Appellee's Third Exhibit filed per panel's order dated March 7, 1989 granting appellee's motion to supplement the appendix 13 See V.I.Code Ann. tit. 5, app. IV, rule 7 (1982), which states in relevant part that "practice and procedure in the territorial court shall conform as nearly as possible to that in the district court in like causes." 14 Appellee's Exhibit B at 2, p V 15 Appellee's Exhibit A 16 Former Chief Judge Christian's April 29, 1986 memo on the subject softened this mandatory sanction to a discretionary one. See Appellee's Exhibit B at 2 17 Local Rule 20(e) provides: Within ten (10) days after filing any post-trial motion, the movant shall either (a) order a transcript of the trial by a writing delivered to the Court Reporter Coordinator, or (b) file a verified motion showing good cause to be excused from this requirement. Unless a transcript is thus ordered, or the movant excused from obtaining a transcript, the post-trial motion must be dismissed for lack of prosecution. 18 Rule 20.15, supra note 4, gives the appellate division of the district court the authority to adopt "such local rules as experience determines to be necessary and appropriate." Promulgation of such local rules, however, is governed by Fed.R.Civ.P. 83 or Fed.R.App.P. 47, both of which require a majority of the active judges on a particular court to approve any rules governing practice before that court. They also require that copies of such rules be furnished to the Administrative Office of the United States Courts. In addition, Fed.R.Civ.P. 83 requires that "appropriate public notice and an opportunity for comment" be given before such rules go into effect. V.I.Code Ann. tit. 5, app. I, rule 83 (Supp.1988). Fed.R.App.P. 47 did not require public notice and comments at the time. But see 28 U.S.C.A. Sec. 2071 (West Supp.1989), which recently was amended to require public notice with respect to local appellate rules promulgated after December 1, 1988 19 Rule 10(b)(4) provides: At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the cost of the transcript. (Emphasis added.) 20 As Professor Moore states: Once an order [for a transcript] is placed and satisfactory financial arrangements have been made, normally prepayment of the estimated costs and an undertaking to pay the balance, the reporter has a statutory duty to provide the transcript to the party ordering it and a certified copy of the check. Moore's Federal Practice, supra, at p 211.07.

60 Wn.2d 500 (1962) 374 P.2d 1011 JOANNE KOZAK, Respondent, v. FAIRWAY FINANCE — SEATTLE, INC., Appellant.[*] No. 36007. The Supreme Court of Washington, Department One. September 20, 1962. Floyd F. Fulle, for appellant. Culp, Dwyer & Guterson, by Murray B. Guterson, for respondent. FINLEY, C.J. This action was commenced to recover possession of an automobile or the value thereof. The trial *501 court allowed recovery by the plaintiff and awarded a judgment for $1,215 plus interest and costs. The defendant has appealed. The facts and events leading to this review are as follows: Respondent owned a 1955 Mercury station wagon, in her separate capacity, which she desired to sell. She entered into a consignment and sales agreement with one Robert Stubblefield, and delivered possession of the automobile to him for the purpose of facilitating a sale. Stubblefield was then doing business as a car dealer under the banner of National Car Liquidators. At that time, respondent did not possess a certificate of ownership to the automobile and believed it was lost. She did possess a registration certificate. Stubblefield advised respondent that he would obtain a duplicate certificate for her from the Department of Licenses if she would sign a power of attorney giving him authority to do so. Respondent gave a power of attorney to Stubblefield, who thereafter arranged for the issuance of a duplicate certificate of ownership. The duplicate certificate indicated that the registered owner was Joanne Lockwood (the former name of respondent). Joanne Lockwood's address was listed as "c/o National Car Liquidators, 9827 17th Southwest, Seattle" (Stubblefield's business address). On the reverse side of the duplicate certificate, in the space designated for the signature of the registered owner upon release of ownership, the words "Evidence of Release on File — Dept. of Licenses" were affixed with a rubber stamp followed by the signature of a license department employee. The face of the duplicate certificate reflected October 5, 1959, as the date of issue. The date of October 6, 1959, was stamped on the back of the duplicate certificate adjacent to the license department employee's signature. After obtaining the certificate, Stubblefield went to appellant to negotiate a loan. Appellant knew that Stubblefield was in the business of selling automobiles and had done business with him previously on a number of occasions, over a period of two years. Stubblefield told appellant's representative that he owned the automobile which *502 had been entrusted to him for purposes of sale by the respondent. As indicia of ownership of the automobile, Stubblefield had (1) possession, and (2) a newly issued duplicate certificate of ownership issued in the name of Joanne Lockwood with the words "Evidence of Release on File" stamped on the back. Appellant loaned Stubblefield $800 on the strength of this evidence of ownership and took in return a note secured by a purported chattel mortgage on the auto in question. Subsequently, Stubblefield died. No part of the principal of appellant's loan to Stubblefield had been paid. Upon notice of Stubblefield's death, appellant took possession of the automobile and refused to accede to respondent's demand for its return. Thereafter this action was brought. For the purposes of this decision we will assume that the mortgage given by Stubblefield to appellant as security for the note was properly executed. Appellant contends that it acted reasonably when it executed a loan to Stubblefield on the strength of the indicia of ownership exhibited by him. Appellant argues that respondent should be estopped from claiming an interest in the automobile superior to appellant's interest as mortgagee, and thus that respondent should bear the loss occasioned by Stubblefield's unauthorized conduct. The pertinent portion of RCW 46.12.100, the statute relating to transfer of automobile certificates of title, reads as follows: "In the event of the sale or other transfer to a new registered owner of any vehicle for which a certificate of ownership and a certificate of license registration have been issued, the registered and legal owners shall endorse upon the back of the certificate of ownership an assignment thereof in form printed thereon, and shall record thereon name of purchaser and date of transaction and shall deliver the same to the purchaser or transferee at the time of the delivery to him of the vehicle...." The statute pertaining to issuance of duplicate certificates of ownership is found in RCW 46.12.180, where it is stated: "In the event that a certificate of ownership or certificate of license registration is lost, mutilated, or has become *503 illegible, the holder shall immediately file with the director an application for the issuance of a duplicate, the application to be on a form prescribed and furnished by the director, accompanied by a fee of one dollar. Upon receipt of such application and fee, the director shall issue a duplicate of the certificate if its loss or mutilation is established by satisfactory proof." [1] If it could be said that as a matter of law the stamped words "Evidence of Release on File" are equivalent to the registered owner's signature as evidence of transfer of ownership or other interest, the appellant's position would be strengthened considerably. But this interpretation is precluded by the explicit requirements of RCW 46.12.100, and the lack of any provision in RCW chapter 46.12 authorizing the procedure utilized by the Department of Licenses in this case in lieu of the owner's signature. The fact of issuance of a duplicate certificate, standing alone, is, of course, not indicative of a transfer of interest. The duplicate certificate exhibited by Stubblefield to appellant did not bear Joanne Lockwood's signature although she was designated as the registered owner on the face of the certificate, nor was the appropriate blank filled in relating to the designated transferee or purchaser. Thus, the statutory provisions relating to the transfer of certificates of ownership were not satisfied. An administrative act, i.e., the stamp affixed by an employee of the Department of Licenses, is not a legally sufficient substitute for the explicit statutory requirements of RCW 46.12.100. The crucial aspect of appellant's contention thus evolves around the question whether appellant acted reasonably in assuming that the stamped words on the duplicate certificate, along with other circumstances of the case, revealed evidence sufficient to indicate that Joanne Lockwood had transferred her interest in the automobile to Stubblefield. We should note at this point that the manner in which the indicia of ownership were acquired by Stubblefield is irrelevant to the question of whether appellant acted reasonably. The fact that the power of attorney *504 given by respondent enabled Stubblefield to acquire the duplicate certificate was unknown to appellant and was not a factor motivating appellant's actions. Appellant's own witnesses so testified. [2] Whether appellant acted reasonably under the circumstances is, in the final analysis, a factual question. The trial court, sitting as the trier of fact, found that the discrepancy in dates on the face and back of the duplicate certificate, and the use of Joanne Lockwood's name in conjunction with Stubblefield's business address, as well as the ambiguity inherent in the stamped words, should have put appellant on notice to inquire further concerning the authority of Stubblefield to deal with the automobile as his own. We cannot say that the trial court's finding in this regard is erroneous as a matter of law. [3] In the face of the trial court's finding, which is in effect that appellant did not act reasonably under the circumstances, appellant's estoppel argument is unavailing. That argument is pertinent where a situation is presented involving two innocent parties and the court is called upon to determine which must bear a loss. E.g., Hutson v. Walker, 37 Wn. (2d) 12, 221 P. (2d) 506 (1950), reversed on other grounds in Richardson v. Seattle-First Nat. Bank, 38 Wn. (2d) 314, 229 P. (2d) 341 (1951). Appellant must, at a minimum, make a showing of blamelessness or reasonable conduct under the circumstances or it is without standing to assert estoppel as a defense. See Annotation, 18 A.L.R. (2d) 813 (1951), especially pp. 833-836. On the facts in the instant case, appellant has not met the required standard of conduct. The decision of the trial court is affirmed.[1] DONWORTH, WEAVER, ROSELLINI, and HAMILTON, JJ., concur. November 1, 1962. Petition for rehearing denied. NOTES [*] Reported in 374 P. (2d) 1011. [1] In fairness to the trial court, one further comment should be made. As its primary ground for determining that respondent should prevail, the trial court emphasized that the chattel mortgage executed by Stubblefield to appellant was without force and effect because the accompanying affidavit of good faith did not satisfy the requirements of RCW 61.04.020. While we have elected to place this decision on an alternative ground advanced by counsel on the basis of the trial court's findings, we do not thereby indicate disapproval of the trial court's reasoning or of the statements reflected in the trial court's oral opinion.

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 24, 2019 Decided February 15, 2019 Before DANIEL A. MANION, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18-1411 FRAN WATKINS, Appeal from the United States District Plaintiff-Appellant, Court for the Central District of Illinois. v. No. 2:16-cv-02252-CSB-EIL RIVERSIDE MEDICAL CENTER and Colin S. Bruce, RIVERSIDE SENIOR LIVING CENTER, Judge. Defendants-Appellees. ORDER Fran Watkins sued her former employer, Riverside Medical Center, for violating Title VII of the Civil Rights Act of 1964. The district court entered summary judgment for the defendants, deciding that no reasonable jury could find that Watkins’s workplace was racially hostile or that she was fired because of her race. We affirm the district court’s judgment. Watkins, who is black, began working at Riverside, a senior living facility, in 2008. Her duties included assisting residents with daily activities, such as eating and hygiene. No. 17-1728 Page 2 In early October 2014, Watkins was walking with a resident to the dining area when the resident became agitated and tried to pull her arm away from Watkins. To prevent the resident from falling backwards, Watkins kept hold of the resident’s arm. A coworker, Virginia Perhach, heard the commotion, came into the hallway, and asked Watkins if she needed any help escorting the resident. Watkins said yes, and Perhach escorted the resident away. Either Perhach or another employee reported the incident to Watkins’s supervisor, Diane Marek. In response, Marek interviewed Perhach and watched video footage of the incident. Marek also interviewed another employee, Nicole Rzyski, who told Marek that she had recently heard Watkins in a different resident’s room using an aggressive voice to get the resident to change clothes. Based on these allegations, Marek decided to investigate Watkins for potential resident abuse and suspended Watkins pending the results. Riverside’s Abuse and Neglect Policy prohibits physical abuse and mental injury to residents. Employees that violate the policy can be terminated. As part of the investigation, Marek reviewed Watkins’s personnel file and discovered that Watkins had previously been investigated for improperly handling a resident. Watkins’s supervisors allegedly had spoken with her about the incident and reminded her about the importance of adhering to the abuse policy, though Watkins denies that she did anything improper or that her supervisors had discussed the incident with her. Watkins’s file also contained three corrective action reports that she had received for inadequate job performance, such as for failing to dispense medication. Marek also had Nora O’Gorman, an administrator, assist with the investigation. O’Gorman interviewed Perhach and two other employees about incidents during which they allegedly witnessed Watkins being abusive. Perhach, Rzyski, and the two other employees also provided handwritten statements. O’Gorman compiled the interviews, handwritten statements, and her findings into a report for Marek to review. Marek found O’Gorman’s report, along with the interviews and written statements of various employees, trustworthy. Based on the interviews, statements, and the other incidents, Marek concluded that Watkins had violated Riverside’s Abuse and Neglect Policy and that it would be in the residents’ best interests if Watkins no longer worked at Riverside. She terminated Watkins’s employment. No. 17-1728 Page 3 Watkins filed a charge of race discrimination with the Equal Employment Opportunity Commission, which eventually dismissed the charge and gave notice of her right to sue. Watkins then filed a complaint in district court, alleging a racially hostile work environment 1 and wrongful termination based on race in violation of Title VII, 42 U.S.C. §§ 2000e et seq. She claimed that because she had not been abusive towards residents and that the video of the resident pulling her arm away did not show otherwise, she had been fired because she was black. She also asserted that her work environment was racially hostile because Marek had repeatedly called her “trouble” and frequently asked if she was “staying out of trouble.” To support her claim of race discrimination, Watkins pointed to white coworkers who had violated Riverside’s Abuse and Neglect Policy but had not been fired. Two such “comparator” employees, Natalie Mesewicz and Lorely Taylor, had been accused of patient abuse. Chelsea Smothers made a medication error. And Ashley Whitaker had been reported for not changing residents’ soiled garments. The defendants moved for summary judgment, arguing that Marek had not created a racially hostile work environment and that Watkins was not fired because of her race. The district court granted the motion, first deciding that there was insufficient evidence to permit a reasonable factfinder to conclude that Marek fired Watkins because of her race rather than for Watkins’s violations of Riverside’s policy. The court next determined that Watkins had failed to show that any similarly situated employees who were not black were treated better than Watkins. The court finally concluded that, while Marek’s “trouble” comments were frequent and perceived by Watkins as offensive, the evidence was insufficient to show a workplace so permeated with discrimination that would alter the conditions of employment and create an abusive working environment. On appeal, Watkins first argues that she produced evidence that Marek fired her because of her race sufficient to survive summary judgment. Watkins invokes the framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), which requires her to provide evidence that: (1) she is a member of a protected class; (2) she 1 Watkins did not allege a hostile work environment in her administrative charge. But Riverside did not argue failure to exhaust, and although the failure appears plain, this court will affirm on any ground supported by the record if “it was adequately addressed below and the plaintiffs had an opportunity to contest the issue.” O'Brien v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). No. 17-1728 Page 4 was meeting her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) at least one similarly situated employee not in her protected class was treated more favorably. David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017). This court has emphasized that, although the McDonnell Douglas framework can focus the evidence, the ultimate inquiry is simply whether the evidence could permit a reasonable factfinder to conclude that the plaintiff’s race caused her discharge. Id. at 224; Ortiz v. Werner Enters., 834 F.3d 760, 765 (7th Cir. 2016). Arguing that she made a prima facie showing of discriminatory discharge, Watkins first contends that she met Riverside’s performance expectations because “there was absolutely no misconduct on [her part] in this incident; and therefore, she performed her job satisfactorily.” By “this incident” her brief makes clear that she means keeping hold of the resident’s arm to prevent the resident from falling—and her insistence that she did nothing wrong at that time underlies nearly every argument in her brief. But even if Watkins had performed her job satisfactorily when holding on to the agitated resident, that incident alone did not cause her firing. Instead, it provided the impetus for Marek’s investigation into her performance. The interviews with employees who alleged that Watkins was abusive, their written statements that Watkins had abused residents on multiple occasions, and Watkins’s prior violations of Riverside’s policy, shed further light on Watkins’s performance—and she does not dispute that. Watkins also lacks adequate evidence that she was treated less favorably than similarly situated employees who are not black. Similarly situated employees must be directly comparable to Watkins in all material respects. See Formella v. Brennan, 817 F.3d 503, 512 (7th Cir. 2016). “Employees typically are similarly situated if they had the same supervisor, were subject to the same employment standards, and engaged in similar conduct.” Majors v. General Elec. Co., 714 F.3d 527, 538 (7th Cir. 2013). None of Watkins’s comparator employees was similarly situated to her. The investigation into Watkins disclosed numerous instances of abuse and error over a period of years. And while Mesewicz was indeed investigated for a single incident of alleged resident abuse, it was concluded that she had accidentally hit a resident’s wheelchair against the door; she had not abused the resident. Regarding the claims that Taylor and Whitaker had abused or neglected residents, Marek was never informed of those allegations and was not in a position to impose discipline. Nor was Watkins similarly situated to Smothers, who made a medication error but had a different supervisor responsible for disciplining her. Thus, Watkins’s claim that similarly situated No. 17-1728 Page 5 employees who were not black were treated differently fails “to eliminate confounding variables, such as differing roles, performance histories, or decision-making personnel, which helps isolate the critical independent variable: complaints about discrimination.” Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007). Watkins fell short of making a prima facie case of discrimination under McDonnell Douglas. More importantly, looking cumulatively at the evidence, a reasonable factfinder could not find that Watkins was fired because of her race. See David, 846 F.3d at 227. Other than the fact that she is black, Watkins offers no evidence from which a juror could infer that race played any role in Marek’s decision to fire her. She provides nothing but speculation that Marek’s review of the video, interpretation of the situation, and decision to open an investigation into her conduct, was racially motivated or a pretext to discriminate. Nor does she deny that Marek’s investigation revealed that she had a history of allegations that she was physically and verbally abusive with residents, and that she had made medication errors. Watkins was an at-will employee and had certain rules for the performance of her job. She appeared to have failed to abide by those rules, and as a result was terminated. Considering all the evidence, a reasonable jury could not conclude that Watkins was terminated because of her race. Watkins finally argues that she produced sufficient evidence to create a genuine issue of material fact that Riverside had a racially hostile work environment. Such an environment exists when an employee experiences harassment “based on” her race that is sufficiently severe or pervasive to alter the terms and conditions of employment. Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 895 (7th Cir. 2016). Watkins’s only evidence that her work environment was racially hostile is that Marek frequently referred to her as having “trouble” and asked if she was staying out of trouble. In arguing that these remarks are “objectively offensive” because they imply laziness, she relies on a magazine article about the word “lazy”—a word that Marek never used—and an undergraduate paper that analyzes the stereotype of a “loud talking and trouble making” black character in the Rush Hour movie trilogy. But these obscure sources of questionable weight are not evidence of the work environment at Riverside and do not create any issue of material fact. Being called “trouble” does not show that Watkins’s workplace was permeated with discriminatory intent, physically threatening, humiliating, or otherwise so severe as to be a hostile work environment. See Boss v. Castro, 816 F.3d 910, 920–21 (7th Cir. 2016); Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014); see also Cole, 838 F.3d at 897 (calling black workers “worthless,” without more, not race discrimination solely because they were black). Her No. 17-1728 Page 6 sparse evidence could not lead a reasonable jury to conclude that she suffered from a hostile work environment. AFFIRMED 

516 F.Supp. 1249 (1981) INTERNATIONAL FIDELITY INSURANCE COMPANY, Plaintiff, v. David CROSLAND, as Acting Commissioner of the Immigration and Naturalization Service and John J. Gaffney, as Acting District Director of the New York District of the Immigration and Naturalization Service, Defendants. 80 Civ. 6338 (GLG). United States District Court, S. D. New York. June 26, 1981. *1250 Barst & Mukamal, New York City, for plaintiff; Nicholas Paul Altomerianos, New York City, of counsel. John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City, for defendants; Michael D. Patrick, Sp. Asst. U. S. Atty., New York City, of counsel. OPINION GOETTEL, District Judge: Plaintiff International Fidelity Insurance Company ("International"), an obligor of a $3000 immigrant delivery bond, posted pursuant to section 242(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a), has brought this action seeking review of the defendants' determination that the bond has been breached, and for an order canceling the bond. Having agreed that there are no genuine issues of fact to be tried, the parties have cross-moved for summary judgment. Evangelo Hatzis ("Hatzis"), a Greek national, entered the United States illegally in November, 1974, when, as a crewman on the Greek ship "Queen Anne Marie," he jumped ship. The Immigration and Naturalization Service ("INS") arrested him in July, 1977. INS subsequently released him under the subject $3000 immigration bond issued by the plaintiff insurance company. INS did not issue its final order for Hatzis's deportation until June 20, 1979. After Hatzis failed to voluntarily depart, a warrant for his arrest and immediate deportation was issued. On November 13, 1979, INS sent a letter, certified mail, return receipt requested, to the plaintiff, notifying it that it must produce Hatzis on November 20, 1979.[1] The plaintiff failed to produce him and Hatzis has yet to surrender to INS authorities. Thereafter, INS declared that the bond had been breached. The plaintiff appealed to the Regional Commissioner, claiming that it did not receive the 72 hours advance notice to which it claims it is entitled under the INS regulations. See 8 C.F.R. § 243.3 (1981). (The plaintiff claims that it did not receive the notice until November 19, 1979, one day before it was required to produce Hatzis.) The Regional Commissioner dismissed the appeal, ruling that the notice to the plaintiff by certified mail, return receipt requested, fulfilled the requirements of the regulations. International thereafter filed this action for a declaratory judgment, seeking review of INS's decision. The bond, formally entitled a "Bond Conditioned for the Delivery of an Alien," provided that: [T]he obligor hereby furnishes such bond with the following conditions: if said alien is released from custody and if the above mentioned obligor shall cause the said alien to be produced or to produce himself to an immigration officer of the United States upon each and every request of such officer until deportation proceedings in his case are finally terminated or until the said alien is actually accepted by such immigration officer for detention or deportation, then this obligation shall be void; otherwise it shall immediately become due and payable. Under the regulations promulgated by INS, a bond is not breached unless there has been a "substantial violation" of the terms of the bond. 8 C.F.R. § 103.6(e) *1251 (1981). International argues that there has not been a "substantial violation" of the terms of the bond because it was not given 72 hours advance notice that the alien was to be produced. INS responds that the obligor is not entitled to 72 hours advance notice. In addition, INS argues that International constructively received four days notice, since the regulations provide for notice to be calculated from the date of mailing, rather than the date of receipt. See 8 C.F.R. § 103.5a (1981). Section 243.3 of the INS regulations provides, in pertinent part: Once an order of deportation becomes final, an alien, not in the physical custody of [INS], shall be given not less than 72 hours advance notice in writing of the time and place of his surrender for deportation. If the alien fails to surrender as directed, he shall be deported without further notice when located.... The advance notice requirement above does not preclude taking an alien into custody at any time, including any time within the 72 hour period, if his being at large constitutes a danger to public safety or security, or the district director has reason to believe the alien is likely to abscond.... However, in such an instance, the alien's deportation shall not be effected prior to the expiration of 72 hours from the time of apprehension or of the 72 hours notice period, whichever is less. 8 C.F.R. § 243.3 (1981). International contends, on the basis of this regulation, that the obligor of a maintenance bond is also entitled to 72 hours advance notice. INS, however, interprets this provision as applying only to aliens.[2] An agency's interpretation of its own regulations should, of course, be afforded great deference, see Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1964); National Wildlife Federation v. Benn, 491 F.Supp. 1234, 1245 (S.D.N.Y. 1980), and must be applied unless such interpretation is plainly erroneous or inconsistent with the regulation. Mohomed v. Vician, 490 F.Supp. 954, 957 (S.D.N.Y. 1980). See International Fidelity Insurance Company v. Crosland, 490 F.Supp. 446 (S.D.N.Y. 1980). International has not cited any authority that indicates that INS's interpretation is clearly erroneous.[3] Indeed, the interpretation that only aliens are entitled to the 72 hours advance notice is perfectly consistent with the face of the regulation. Consequently, the Court will accept this interpretation of the regulation. Moreover, International would be in breach of the bond even if it had been entitled to 72 hours advance notice. The regulations provide for personal service of notice of any proceeding initiated by INS which might have an adverse effect. 8 C.F.R. § 103.5a(c)(1) (1981). Personal service specifically includes mailing by certified mail, return receipt requested, 8 C.F.R. § 103.5a(a)(2)(iv) (1981), in which case three days are added to the prescribed period of notice. Service is "complete upon mailing." 8 C.F.R. § 103.5a(b) (1981). Thus, INS constructively gave International four days notice, since it mailed the notice seven days before Hatzis was to be produced. The fact that International may not have received the letter until one day before it was required to produce Hatzis is technically irrelevant to the calculation of notice. See generally Kiki Undies Corporation v. Promenade Hosiery Mills, Inc., 308 F.Supp. 489, 495 (S.D.N.Y.), aff'd in part and rev'd in *1252 part on other grounds, 411 F.2d 1097 (2d Cir. 1969), cert. denied, 396 U.S. 1054, 90 S.Ct. 707, 24 L.Ed.2d 698 (1970). While INS's interpretation of its regulations might appear to be severe, it is important to note that International has never produced the alien. International does not claim that it would have been able to produce Hatzis had it received 72 hours advance notice, nor does it claim that it would be able to produce him if it had the opportunity to do so now. This is not a situation in which the alien is produced shortly after the required time of production. In that instance, although the obligor might be in technical violation of the bond, it might not be in breach because there has not been a "substantial violation" of the terms of the bond. See generally International Fidelity Insurance Company v. Crosland, supra. That is not the case here, however. Accordingly, the defendants' cross-motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied. The action is dismissed. SO ORDERED. NOTES [1] Notice was also sent to Hatzis. He apparently had already absconded. [2] At oral argument, the Assistant United States Attorney representing INS explained that the purpose of the 72 hours advance notice is to afford the alien an opportunity to contest his deportation before he is actually deported. Thus, while an alien may be taken in less than 72 hours if the district director believes that he will abscond, or if his being at large constitutes a public danger, the alien may not be deported until the expiration of 72 hours from the time of apprehension or of the 72 hours notice period, whichever is less. 8 C.F.R. § 243.3 (1981). [3] International cites a 1975 decision of the Regional Commissioner for the proposition that it is entitled to 72 hours advance notice. That case is factually distinguishable, however, in that the alien was ultimately produced. Moreover, the Regional Commissioner may modify and reverse previous decisions. See 8 C.F.R. § 103.3(e) (1981).

149 Conn. 478 (1962) ANTHONY AUGLIERA, INC., ET AL. v. EUGENE S. LOUGHLIN ET AL., PUBLIC UTILITIES COMMISSION, ET AL. Supreme Court of Connecticut. Argued February 13, 1962. Decided May 8, 1962. BALDWIN, C. J., KING, MURPHY, SHEA and ALCORN, JS. *479 Sidney L. Goldstein, with whom, on the brief, was Paul J. Goldstein, for the appellants (named plaintiff et al.). *480 Reubin Kaminsky, for the appellant (plaintiff Nygard Express Company, Inc.). Louis Weinstein, assistant attorney general, with whom were Samuel Kanell, assistant attorney general, and, on the brief, Albert L. Coles, attorney general, for the appellees (defendants). BALDWIN, C. J. The plaintiffs, Anthony Augliera, Inc., Roy Hurlburt, and the Nygard Express Company, are motor contract carriers operating under certificates issued by the public utilities commission. See General Statutes §§ 16-281(d), 16-292. The plaintiffs have appealed from a judgment of the Superior Court which dismissed their appeal from an order of the commission of June 9, 1960, raising their rates on the carriage of iron and steel articles to the level of the rates for those articles applicable to motor common carriers under a rate stabilization order of the commission, Docket No. 9652, dated April 15, 1959. The plaintiffs claim that the order of June 9, 1960, is illegal, arbitrary and unreasonable and that it will destroy their transportation business with shippers for whom they have contracted to carry iron and steel. General Statutes § 16-296 provides, inter alia, that the commission may, on its own motion after a hearing, prescribe minimum rates and charges covering the operation of motor contract carriers in intrastate competition with motor common carriers; that such minimum rates and charges "shall give no advantage or preference to any such contract carrier in competition with any common carrier by motor vehicle ... which the commission finds to be undue or inconsistent with the public interest"; and that each contract carrier shall file *481 with the commission the minimum rates charged. On March 9, 1960, the commission, acting pursuant to § 16-296, notified the plaintiffs, together with three other authorized contract carriers, of a public hearing to be held for the purpose of prescribing minimum rates and charges covering the intrastate operation of motor contract carriers of iron and steel articles. As a result of the hearing, the commission concluded: The contract carrier rates were lower than the common carrier rates for the same articles and gave to contract carriers in competition with common carriers an advantage or preference which was undue and inconsistent with the public interest. The commission, on June 9, 1960, issued the order appealed from. It fixed the minimum rates for motor contract carriers of iron and steel articles at the same level as the minimum common carrier rates for such articles and canceled all existing contract carrier rates which were lower. The plaintiffs' appeal from the commission's order raises the basic issue whether there was competition which justified interference by the commission with the contract carrier rates on file with it. See General Statutes §§ 16-296, 16-294. The appeal was taken pursuant to General Statutes § 16-307, which incorporates the principles and procedures outlined in §§ 16-35 to 16-39 for appeals from an order, authorization or decision of the commission. Under § 16-37, the court reviews, on a certified record, the proceedings of the commission, examines the legality of the order, authorization or decision appealed from and its propriety and expediency so far as the court has cognizance of the subject, and proceeds in the same manner as on complaints for equitable relief. The court cannot substitute its discretion for that legally vested in the commission *482 but determines on the record whether there is a logical and rational basis for the decision of the commission or whether, in the light of the evidence, it has acted illegally or in abuse of its discretion. A plaintiff has the burden of proof as to the existence of any abuse. General Statutes § 16-37; Briggs v. Public Utilities Commission, 148 Conn. 678, 687, 174 A.2d 529; Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 512, 64 S. Ct. 1129, 88 L. Ed. 1420; Rochester Telephone Corporation v. United States, 307 U.S. 125, 145, 59 S. Ct. 754, 83 L. Ed. 1147; 42 Am. Jur. 644, § 217. In Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 252, 140 A.2d 874, we discussed § 16-37 (then Rev. 1949, § 5427) and pointed out that a finding by the commission should state with clarity and completeness the facts and conclusions essential to its decision, so that the trial court and this court could determine from the record of the commission whether the facts furnished justifiable reason for its action. See also Briggs v. Public Utilities Commission, supra. The proceeding at bar stems from an earlier proceeding in which the plaintiffs were not parties. In it, several common carriers applied for exemptions from the iron and steel rates prescribed in the commission's rate stabilization order of April 15, 1959, so that, as they claimed, they could remain competitive with contract carriers of the same commodities. See P.U.C. Docket No. 9652-18, p. 5 (Mar. 9, 1960). One requested exemption was granted. See General Statutes § 16-287 (a). The others were denied either on the ground that the service as offered was not sufficiently specialized to warrant an exemption or that the lower rates proposed were not reasonably compensatory to the carrier. Nevertheless, *483 the commission stated in its finding: "Obviously, the availability of alternate service by contract carriage at lower rates can prove destructive to common carriage of these commodities. Such a development could defeat the main purpose of the rate stabilization order, i.e., the prescription of just, reasonable and compensatory rates, in order to foster the existence of a healthy common carrier industry." P.U.C. Docket No. 9652-18, p. 5 (Mar. 9, 1960). Accordingly, the commission, acting pursuant to General Statutes § 16-296, determined in that proceeding to summon, on its own motion, contract carriers to show cause why their rates should not be fixed on a basis comparable to those prescribed for common carriers. Ibid. The present proceeding, in which the plaintiffs, with three other contract carriers, were summoned, is the result of that determination. General Statutes § 16-281 specifically recognizes three classes of motor carriers: "motor common carriers," "motor contract carriers," and "motor private carriers." The statutory distinction between the first two, pertinent to the present case, is that the motor common carrier transports property for hire for the general public, while the motor contract carrier transports property under special and individual contracts with its shippers. § 16-281 (c), (d). Each motor contract carrier, however, is limited by statute to not more than four such contracts. § 16-297. Manifestly, the statutes recognize that the operations of these two classes of carriers are essentially different, but they also contemplate that the two classes may become engaged in competition harmful to the common carriers and that there is a consequent need for regulation. To justify a fixing of identical rates for each class, *484 however, it must appear that they are actually in competition and that that competition is such as to reduce the income of the common carriers so that they are unable to maintain adequate and efficient carrier service for the public at large. Briggs v. Public Utilities Commission, 148 Conn. 678, 684, 174 A.2d 529. The evidence in the instant case falls far short of showing any actual competition between the plaintiffs and common carriers in the same area. It is possible for one to offer a service at less cost than another and, by so doing, take business away from the other. There is, however, an almost infinite variety of factors involved in the transportation business. The commission, taking into consideration all of the factors pertinent to a particular case, must have before it sufficient proof to enable it reasonably to conclude that there is competition, not as a mere possibility, but as a probability, and that that competition is undue and inconsistent with the public interest. General Statutes § 16-296; see Lugdon v. Meriden, 145 Conn. 360, 363, 143 A.2d 157; Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473. There was evidence at the hearing in the case at bar that at least two of the plaintiffs' shippers, Fox Steel Company and Eastern Steel and Metal Company, had been using contract carriage in preference to common carriage for many years. The commission's own finding states that the shippers emphasized that their operations required contract carriage, and they all acknowledged that they seldom, if ever, used the services of a common carrier. The plaintiffs offered evidence, which was not controverted, that their operations are being conducted profitably, with operating ratios—i.e., the proportion of expense to revenue—ranging from 69 to *485 92.5 percent. According to the commission's finding in the earlier proceeding, Docket No. 9652-18, none of the common carriers therein appearing could show an operating ratio lower than 92 percent under the rates from which they sought exemption. The fact that this figure was not higher was largely attributable to a single isolated consignee operation which afforded a peculiar and most efficient use of the particular carrier's facilities. P.U.C. Docket No. 9652-18, p. 3 (Mar. 9, 1960). The named plaintiff offered evidence that its services were confined largely to deliveries of heavy material to construction sites off highways, involving unusual conditions and special equipment. Evidence offered by the Nygard Express Company and Roy Hurlburt showed that they were able to operate profitably because of certain economies inherent in their particular operations. There was no evidence that there were any common carriers operating in the area who were seeking this traffic or were equipped to compete with the plaintiffs even if they all operated on the same rate schedule. See Briggs v. Public Utilities Commission, 148 Conn. 678, 686, 174 A.2d 529. Competition has been defined as "the effort of two or more parties to secure the custom of a third party by the offer of the most favorable terms." Webster's Third New International Dictionary; see Russellville Canning Co. v. American Can Co., 87 F. Sup. 484, 499 (W.D. Ark.). The record in the case at bar shows no such effort. Furthermore, it demonstrates that the contract carrier system is clearly better adapted to the peculiar needs of the plaintiffs' shippers and that it was preferred by them. See Public Utilities Commission v. Utterstrom Bros., Inc., 136 Me. 263, 266, 8 A.2d 207. *486 The result reached by the commission appears to be predicated on the proposition that a loss to common carriers would necessarily result from the rate disparity and that such a loss was ipso facto not in the public interest. Under some circumstances, this proposition might be sound. In the instant case, however, there is no evidence from which facts could be found, and none were found, to support it. It is true that a primary aim of contract carrier regulation is the protection of the common carrier by eliminating destructive competition. Betterman v. American Stores Co., 367 Pa. 193, 199, 80 A.2d 66, cert. denied, 342 U.S. 827, 72 S. Ct. 49, 96 L. Ed. 625; United Parcel Service v. Public Utilities Commission, 240 Wis. 603, 611, 4 N.W.2d 138; General Mills, Inc. v. Steele, 154 F.2d 367, 374 (5th Cir.), rev'd on other grounds, 329 U.S. 433, 67 S. Ct. 439, 91 L. Ed. 402, rehearing denied, 329 U.S. 834, 67 S. Ct. 628, 91 L. Ed. 706. Nevertheless, the legislature in its regulatory legislation has recognized that contract carriers, because of the special nature of their operations, may properly be accorded some advantage in rates so long as the advantage does not lead to destructive competition inconsistent with the public interest. The legislature has given the commission authority over contract carriers: the commission may issue or refuse permits and impose conditions for the operation of contract carriers; General Statutes §§ 16-291—16-295, 16-304; fix their rates; § 16-296; and revoke their permits; §§ 16-301, 16-302. The legislature has limited the number of contracts each contract carrier may have to not more than four. § 16-297. So long as the contract carrier remains a separate class of carrier, it would appear that the commission has adequate power, when the facts warrant it, to prevent ruinous competition. *487 The uncontradicted evidence here shows that if the proposed rate increase were put into effect, the plaintiffs' shippers would forsake both contract and common carrier service in favor of private carriage. If they did, such a diversion of trade would not strengthen the common carriers, and it would necessarily be accomplished at the expense of the contract carriers. See Associated Transports, Inc. v. United States, 169 F. Sup. 769, 773 (E.D. Mo.). The result would clearly not be in the public interest. Briggs v. Public Utilities Commission, 148 Conn. 678, 683, 174 A.2d 529. There is error, the judgment is set aside and the case is remanded with direction to render judgment sustaining the appeal and vacating the commission's order. In this opinion the other judges concurred.

229 Cal.App.2d 672 (1964) CHESTER M. OKSNER et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOHN R. THERIOT, Real Party in Interest. Civ. No. 28501. California Court of Appeals. Second Dist., Div. Two. Sept. 15, 1964. Grant B. Cooper, Richard M. Moore and Fitzpatrick & Wiley for Petitioners. No appearance for Respondent. Robert A. Neeb, Jr., Brinton N. Bowles, Von Herzen & Hutton, Von Herzen & Laidig and Peter F. Burum for Real Party in Interest. ASHBURN, J. [fn. *] Now before us are writ of review testing the validity of an order adjudging petitioner Oksner guilty of contempt of court and an alternative writ of mandate commanding the superior court to vacate certain orders made on June 11, 1964, and June 26, 1964, directing petitioner Atlantic Savings and Loan Association (hereinafter called Atlantic) and petitioner Oksner to surrender to the clerk of the court a certain valuable note and deed of trust held by Atlantic as pledgee, and also directing the lower court to vacate certain other related orders made on the same day. This proceeding centers upon and revolves around the occurrences of June 26, 1964. The background is tedious but most of it essential to understanding of the problems before us. Prior to said June 26, 1964, there were three actions pending in Los Angeles Superior Court which are designated by petitioners' counsel as Theriot 1, Theriot 2, and Theriot 3, respectively, each being entitled "John R. Theriot, Plaintiff, v. Milton H. Durand, et al., Defendants," numbered respectively 669675, 838617, and 840251 on the records of said *675 superior court. Theriot 1 (No. 669675) was filed on November 15, 1956, and sought an accounting and damages from Durand based upon a charge of fraud; this resulted in judgment for plaintiff against Durand on January 29, 1964, in the sum of $108,233.78 plus costs. Atlantic has never been a party to that action. Prior to rendition of that judgment Atlantic made a loan of $600,000 to Durand and others for construction of Brasilia Motel in Pomona, California; the loan was secured by a trust deed on four parcels of real property, viz., Parcel One, the motel site; Parcel Two, Durand's residence; Parcel Three, an apartment house belonging to Durand; and Parcel Four, residence of one Johnson, a partner in the Brasilia venture. The loan was also secured by assignment and pledge of a note for $439,338.07 secured by second trust deed upon property of Sky Villa Motel, a limited partnership, which note and trust deed had belonged to Durand. Prior to August 1963 four additional loans were made by Atlantic to Durand and his associates in the Brasilia venture, aggregating $190,000 in principal amounts and made for the purpose of completion and furnishing of Brasilia Motel; they were secured by the original $600,000 trust deed. Total $790,000. For practical reasons these loans were shifted a bit, resulting in an unpaid balance of principal of $780,000 at the time of filing of petition herein. On February 27, 1964, garnishment based upon said judgment in Theriot 1 was served on Atlantic which answered that it was not indebted to defendant but did have in its possession and under its control personal property belonging to defendant, adding "... to wit: However, the Association is the Assignee of a Note in the original amount of $439,338.07 dated December 22, 1960 secured by Deed of Trust recorded in Book T1602 Page 507 Official Records of Los Angeles County, California, as security for a loan and repayment of a Note, which has an unpaid principal balance of $779,587.49 as of November 5, 1963." Then Durand defaulted upon all his trust deed loans and Atlantic noticed a foreclosure sale under the power contained in the trust deeds covering Parcels Two and Three, sale being set for May 15, 1964. On the 14th of May Theriot 2 was filed and served on Atlantic. It sought damages and an injunction against the sale of Parcels Two and Three upon the claim that they had been made in violation of a restraining order issued in Theriot 1 pursuant to stipulation of September *676 6, 1962. [fn. 1] A temporary restraining order and order to show cause re temporary injunction issued against said contemplated sale of Parcels Two and Three, returnable on May 29, 1964, in Department 54 over which Judge Otto Emme presided at all times pertinent to this proceeding. On May 21, 1964, more than five days before the scheduled hearing, petitioner Oksner as attorney for Atlantic filed in said Theriot 2 a declaration of disqualification of said Judge under section 170.6, Code of Civil Procedure, and said motion to disqualify was granted, the order to show cause being transferred to department 15 for hearing on June 10. Atlantic then elected to sell under power of sale contained in its pledge agreement the Sky Villa note and trust deed, sale set for June 12, 1964, and it served notice thereof upon plaintiff Theriot. The order to show cause in Theriot 2 came on for hearing in department 15 on June 10 and the moving party Theriot withdrew his application for a preliminary injunction because, as "he stated he could not make the required bond, even if the injunction was granted." The court placed the application off calendar and dissolved the temporary restraining order. Thus Atlantic was brought to June 11, 1964, without any restraint upon its proceeding with its previously noticed sales and with an affirmative showing upon the record that plaintiff Theriot was unable or unwilling to give the customary bond to protect the enjoined party if the sales were thus blocked. However, the bond problem was bypassed on that day through obtaining from the judge in Theriot 1 an ex parte "Order of Court in Aid of Execution" directing the sheriff to "pick up at the office of Atlantic Savings & Loan Association the above described note and deed of trust and return the same to the courtroom of Otto J. Emme, Judge presiding in Department 54 of the Superior Court of the State of California, in and for the County of Los Angeles, and deposit the said documents with the Clerk of the said Court." The order was served upon Atlantic that *677 same day and the officer was told that the note and trust deed were in possession of its attorneys, one of whom was petitioner Oksner. Whereupon the order was served upon him and he "believing the ex parte Order was in excess of the Court's jurisdiction, and void, refused to surrender the Note and Trust Deed." This order had no return date and Mr. Oksner hastily prepared and filed a notice of motion to vacate said ex parte order and a declaration of disqualification of the Judge under section 170.6, Code of Civil Procedure. The petition herein avers "On the face of the Notice of Motion, Oksner indicated that this was a 'special appearance' by Atlantic, since Atlantic had never been a party to Theriot 1 and had never been served with any papers or pleadings in that action until receipt of the ex parte Order of June 11, 1964." This motion was filed June 12 and returnable on June 22, 1964. On June 12 Atlantic was served with summons, complaint and order to show cause for preliminary injunction in Theriot 3, which order contained temporary restraint against pledgee's sale of Sky Villa note and trust deed which was scheduled for that day. The order to show cause was returnable in department 54 on June 26, 1964. However, there being then no judicial restraint against same, the sales under trust deeds covering Parcels Two and Three proceeded and Atlantic bought the properties for the full amount of the lien on each. June 26, 1964. Upon the calendar of department 54 was the order to show cause issued in Theriot 3 which restrained the Sky Villa sale. Oksner had filed on June 12 a declaration of disqualification of Judge Emme under section 170.6 and on June 15 Oksner had orally moved for an order of disqualification which was granted and the order to show cause continued for hearing in department 65 on June 26. On June 22 Oksner's motion to vacate the ex parte order of June 11 was transferred to department 1 and continued for hearing to July 20. On June 23 the attorneys for plaintiff Theriot advised Oksner that said motion to vacate had been transferred to department 54 for hearing by Judge Emme on June 26. This order was made without prior knowledge and without consent of Atlantic or its attorneys. There was nothing before department 54 on that day in Theriot 1 or Theriot 2 except the motion to vacate the ex parte order of June 11 in Theriot 1. The three causes had not been consolidated nor had any attempt been made to that end. *678 However, a subpoena duces tecum had been issued in Theriot 3 and served upon Atlantic and Oksner requiring production in Department 54 on June 26 of said Sky Villa note and trust deed. This subpoena, as just noted, was issued in Theriot 3, the action in which the order to show cause was pending and was not issued in Theriot 1, the action to which Atlantic was not and had not been a party. Upon call of the matter Oksner immediately made an oral motion for disqualification of the Judge based upon the declaration previously filed on June 12; the motion was presented and denied. Oksner argued that the motion was good and any action taken by the Judge would be in excess of jurisdiction and void. Mr. Burum, his opponent, contended that a disqualification could be urged under section 170.6 only by a party and that Atlantic was not a party to Theriot 1. Oksner urged that the only matter before the court was his motion to vacate the ex parte order of June 11 and that Atlantic certainly was a party to that special proceeding and the order was invalid in the first place. Burum insisted that the statute was confined to parties and that Atlantic had no standing to urge such a motion; also that section 128, Code of Civil Procedure, confers upon the court express power to enforce all orders made by it even if that involves third persons. The court denied the disqualification. After the ruling Oksner declined to proceed with his motion to vacate. Opposing counsel then referred to the subpoena duces tecum which had been served in connection with his order to show cause in Theriot 3. Oksner reiterated that no subpoena in Theriot 1 had been served, "which again is the only proceeding that is before this court, this morning." The Judge suggested a continuance of plaintiff's order to show cause and Mr. Burum remarked "the problem with such a solution to that is the danger of loss because of the valuableness of the document we are concerned with. This would be fine providing that there was a proper restraining order, which the Court has the power to give in connection with supplemental proceedings, ..." "Mr. Oksner: ... It seems to me that under these circumstances, your Honor, it might be well to continue the hearing on the motion to vacate because after all Mr. Burum's concern about the value of the note and deed of trust is not really the real problem, your Honor. We are just as concerned about its value as he is, and we are concerned about it because we do not want to let it out of our hands and into his, we are not about to do that, to let that note get lost. It is a *679 three hundred some thousand dollar balance and I am sure we are perfectly competent to take good care of it in the meantime." "Mr. Burum: That might well be so. However, the Court has ordered and ruled, and it has validly ordered in this particular order that it be turned over to the custody of the clerk, not to me, to the custody of the Court for safekeeping, ..." "Is it your position they haven't been served?" "Mr. Oksner: ... I will make an answer to counsel's question and then, again not trying to be disrespectful or rude, I am going to leave this courtroom, sir." "It is my position that Atlantic Savings likewise was not served with a subpoena duces tecum in Theriot v. Durand, 669, 675 (Theriot 1)." "Mr. Burum: ... you have appeared before the Court on your own motion, and I think you will be in contempt of court if you walked out and disregarded the Court's order. That is already his rule and I don't think you have any choice, Mr. Oksner." "Mr. Oksner: Well, your Honor, with all due respect to your Honor, that is the risk I think I have to take under the circumstances." "The Court: You are ordered to remain here to proceed with the proceedings. The motion has been overruled. ..." The petition herein alleges without contradiction: "At no time was petitioner Oksner ever disrespectful in his demeanor toward the court, nor did he use any improper or offensive language in stating his position to the court in behalf of his client Atlantic, nor is any such conduct alleged in the commitment." * * * "The Court: You are ordered to remain here to proceed with the proceedings. The motion has been overruled." "Mr. Oksner: Well, your Honor, I am sorry but I will respectfully actually decline to proceed. May I point out something else to your Honor. I do know there is a hearing, an Order to Show Cause and temporary restraining order set in Department 65 at 9:30 this morning. That is the hearing on the plaintiff's application for a preliminary injunction to restrain the sale of the same note and trust deed that is involved here. Now, your Honor has disqualified himself in that action." "The Court: That is right. *680" "Mr. Oksner: Now, ... if in the hearing in Department 65 at 9:30 the temporary restraining order is vacated and the preliminary injunction denied, of course Atlantic will be free to hold its pledgee's sale; but if here the plaintiff can force Atlantic to produce that note and trust deed and get it out of Atlantic's possession, they will effectively have blocked that sale even though the preliminary injunction is denied. ... The real issue is whether or not Atlantic Savings should be permitted to go forward with that sale. That is the question that is going to be heard in Department 65 at 9:30." "Now, if your Honor goes along with counsel's position you are permitting them to pervert the whole purpose of this Court's powers by accomplishing in a lefthanded backward way what they may not be able to accomplish legitimately in Department 65, because obviously we can't hold a pledgee sale if the preliminary injunction is denied and if we don't have the note and deed of trust to sell. ..." "Mr. Oksner: Again, your Honor, I suggest putting the matter over until after we have a chance to file our writ, until they have ruled on the companion matter in Department 65." "The Court: Will you stipulate to holding this status quo until the writ can be determined? ..." "Mr. Oksner: I think I should go forward with the hearing in Department 65 this morning, but what I am trying to say is, even if the preliminary injunction is denied in Department 65 so that the temporary restraining order is vacated, we would still not hold a sale or transfer or encumber that note until after a decision was made on this matter. ..." "Mr. Burum: ... I would be agreeable providing this Court would consider issuing a restraining order to that effect. We have to have a written order. ... So, if the Court's Minute Order would provide, and you have this power under the code sections in supplementary proceedings, I believe, to issue a restraining order pending an action of this sort, separate and apart from the preliminary or temporary restraining orders." "Mr. Oksner: ... Such a temporary restraining order by your Honor would also be void. ..." "The Court: Do you want to make a motion?" "Mr. Burum: Your Honor, we make a motion at this time that the Court enter a restraining order restraining the Atlantic Savings & Loan Association and their attorneys from disposing of the note and trust deed, a note secured by a trust deed in the original amount of $437,388.07, dated December *681 22, 1960. That said persons and organization be restrained from disposing of said note in any manner whatsoever. ..." "The Court: That motion is granted. What date do you want? ..." "The Court: Is the note present in court? ..." "Mr. Burum: ... Now, the note is present in the courtroom, before his Honor, under a subpoena duces tecum, though it might refer technically to another associate case by number; I think the Court, in compliance with his order and fulfillment of his order, should order this document be placed in custody of the Court, regardless of the statements of counsel that it is safe in their hands. Their conduct has not indicated that. They have taken directly diverted positions with respect to that piece of paper. So I see no reason why the Court should rely on statements that are made even off the record." "The Court: The Court orders delivery of the note in question to the Clerk of this Court." "Mr. Oksner: I am sorry, your Honor, I must refuse." "The Court: The Court holds counsel in contempt of court and orders the bailiff to take charge and hold him until such time as he delivers the note to the Clerk. The Court further orders that he be sent to the County Jail and ordered placed in the custody of the Sheriff of the County of Los Angeles until such time as the note is delivered to the Clerk of this Court." [fn. 2] Three points present themselves for solution: 1. Is the judgment of contempt void; 2. Is the order requiring Atlantic to deliver its valuable security to the clerk of the court in excess of jurisdiction; 3. Was the temporary injunction against sale of the Sky Villa note and trust deed, which was made without notice, for an unlimited period, without requiring bond and without any showing of real cause for such interference with Atlantic's dominion over its own property, an exercise of discretion lying within the jurisdiction of the court? [1] The law is well settled to the effect that refusal to obey a void order of court is not a contempt and cannot be punished as such. (Kreling v. Superior Court, 18 Cal.2d 884, 885 [118 P.2d 470]; Ex parte Brown, 97 Cal. 83, 85 [31 P. 840]; Ex parte Clarke, 126 Cal. 235, 240 [58 P. 546, 77 Am.St.Rep. 176, 46 L.R.A. 835].) *682 [2a] The order to Mr. Oksner to surrender the note and trust deed was made in an action which was not then before the Judge; it was produced in court pursuant to subpoena duces tecum issued in the action which was then on for hearing in department 65 upon the order to show cause re temporary injunction against sale of the note and trust deed. However, the fact that these instruments were then shown to be in the court room made it lawful for the Judge, regardless of how they happened to be there, to require their production for any proper purpose,--such as use in examining a witness (Morehouse v. Morehouse, 136 Cal. 332, 337 [68 P. 976]; 54 Cal.Jur.2d 17, p. 231), but the discussion of counsel above quoted plainly shows that the object of plaintiff's attorney in seeking a surrender of the note and trust deed was to prevent their sale under the power of the pledge agreement, the very matter that was involved in the motion to be heard that same morning before another judge in department 65. So far as appears the object of the judge of department 54 was the same as that of counsel. There is a real distinction between requiring production of a document for testimonial or other evidentiary purposes and its seizure for purpose of impounding same, especially when it does not belong to and is not claimed to belong to the judgment debtor. Ex parte Clarke, 126 Cal. 235 [58 P. 546, 77 Am.St. Rep. 176, 46 L.R.A. 835], reaches to the fundamentals of the present problem. It held that a corporate secretary could not be adjudged in contempt for refusing to produce his company's books in court in the absence of a showing that they contained matter material or pertinent to the issues in the action wherein they were sought. At page 238 the court said: "The question here presented is of great importance to all citizens, for it involves the constitutional right of the people to 'be secure in their persons, houses, papers, and effects against unreasonable seizures and searches.' (Const. art I, 19.) To compel a person to deliver his books and papers to another who does not claim any ownership in them is to violate the sanctity of most important private rights, and is not to be tolerated except when warranted by some law clearly not inconsistent with the constitutional provision." See also Lewis v. Chamberlain, 108 Cal. 525, 527 [41 P. 413]; McDowell v. Bell, 86 Cal. 615, 616 [25 P. 128]; McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 396 [159 P.2d 944]; Letz v. Letz, 123 Mont. 494 [215 P.2d 534, 540]. *683 State v. Smithmeyer, 110 Kan. 172 [202 P. 638, 639-640]: "While the production of the documents in obedience to a subpoena duces tecum did not violate section 15 of the Bill of Rights of the Constitution of this state, the retention of those documents by the Attorney General after the witnesses had been examined and discharged is an altogether different question. ..." "The rule appears to be clear and well settled that one who procures or compels the production of papers cannot take the custody of those papers from the person producing them. The statute under which the Attorney General was proceeding did not authorize him to retain possession of the documents after the examination of the witnesses had been completed. It necessarily follows that when the Attorney General was through with his examination of the witnesses he should have returned the books and documents to the witnesses who had produced them." In re Atlas Lathing Corp., 176 Misc. 959 [29 N.Y.S.2d 458, 460]: "The power to subpoena a record for pertinent examination does not imply any concomitant right of seizure." " 'The rule appears to be clear and well settled that one who procures or compels the production of papers cannot take the custody of those papers from the person producing them.' State v. Smithmeyer, 110 Kan. 172, at page 176 [202 P. 638, 640]." See also In re Randell, 87 App.Div. 245 [84 N.Y.S. 294, 295]; Annenberg v. Roberts, 333 Pa. 203 [2 A.2d 612, 617]. Volume 79 Corpus Juris Secundum section 34, page 798: "Seizure and retention of a corporation's books and papers under the guise of a subpoena duces tecum are within the prohibition of the constitutional guaranty." Section 35, page 799: "To compel an individual to produce evidence, under penalties if he refuses, is in effect a search and seizure, and, unless confined to proper limits, violates his constitutional right to immunity in that respect. ... and a court is not justified in abusing its process in order to secure the production of evidence where such abuse of process constitutes the equivalent of an unlawful search and seizure." Volume 97 Corpus Juris Secundum section 25, page 395: "Books or papers produced in obedience to a subpoena duces tecum remain under the control of the person producing them, and he cannot be required to deposit and leave the same with a commissioner or officer who is conducting the examination, or the clerk of the court, but they must be returned to him *684 after such use or examination of them as may be necessary and proper has been made." Plainly this note and trust deed were not needed or wanted for evidence; they were recorded documents and all pertinent facts were already in the record. The objective was stopping, without a bond which plaintiff Theriot confessedly could not or would not raise, Atlantic's sale under its pledge agreement. Moreover it was not claimed or suggested that they were not claimed to be the property of Atlantic to the extent of its special lien as pledgee of same. Speaking of levy of execution upon pledged property 19 California Jurisprudence 2d section 106, page 489 says: "The writ is therefore levied in the same manner as prescribed by statute in other cases where personal property is in the possession of third persons, and the lien created by the levy is of course inferior to that of a bona fide pledgee." [3a] Due process forbids the seizure of one man's property for satisfaction of the debt of another. "A judgment creditor is, of course, entitled to subject to his judgment only property which belongs to his debtor, and the property of third parties is not subject to levy under writ of execution or attachment issued to enforce a claim against the defendant. Therefore, property of a third person which is merely in the debtor's possession is not liable for the satisfaction of his obligations." (19 Cal.Jur.2d 62, pp. 416-417.) This was not a supplementary proceeding and indeed presented none of the characteristics of one; (see 19 Cal.Jur.2d 227, p. 680; Code Civ. Proc., 715); it was merely "an order of court in aid of execution of judgment," which Theriot's counsel attempts to justify as an exercise of the court's inherent power to enforce its judgments. Even if it were a supplementary proceeding, section 719, Code of Civil Procedure, would condemn such an order for it says "no such order can be made as to money or property in the hands of any other person or claimed to be due from him to the judgment debtor, if such person claims an interest in the property adverse to the judgment debtor or denies the debt." Without this statutory prohibition such an order would offend due process. The adverse claim of the third party (Atlantic) requires resort to an equity suit where it can be fully tried upon its merits and not summarily disposed of as in a supplementary proceeding. (Ex parte Hollis, 59 Cal. 405, 413; High v. Bank of Commerce, 103 Cal. 525, 527 [37 P. 508]; Lewis v. Chamberlain, supra, 108 Cal. 525, 527; Bond v. Bulgheroni, 215 Cal. 7, 10 [8 P.2d 130]; Takahashi v. Kunishima, *685 34 Cal.App.2d 367, 372-373 [93 P.2d 645]; 19 Cal.Jur.2d 229, p. 684; 240, p. 709.) [4] Reliance by respondent upon Code of Civil Procedure, section 128, subdivision 4, is misplaced. It says: "Every court shall have power: ... To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein." But this power does not extend to application of the property of a third person to the debt of another without previously affording a full hearing to said third person. [3b] Due process forbids and it protects the claims of a pledgee as well as any other adverse claimant (Farmers & Merchants Bank v. Bank of Italy, 216 Cal. 452, 454-458 [14 P.2d 527]). Blake v. Blake, 86 Cal.App. 377, 381 [260 P. 937]: "While the remedy by supplementary proceedings, where property may be reached, is intended as a substitute for a creditor's bill, these proceedings do not supersede the remedy by action where the grantee or transferee of a judgment debtor asserts title in himself for the reason that they are not adequate to accomplish the purpose of the action. The reason is, that to make an order directing the application of property claimed by a person in his own right, if it could have any effect, would be to deprive him of his property upon a summary proceeding and without due process of law (11 Cal.Jur., p. 157)." Lewis v. Chamberlain, supra, 108 Cal. 525, 527: "I think it is entirely clear upon the face of the statute that no order could be legally made requiring Mrs. Morse or Mrs. Conklin to surrender the property mentioned in the affidavit of the plaintiff, and its application in satisfaction of his judgment, otherwise than upon their admission that it was the property of the judgment debtor. To make such order in relation to property which they claimed to own in their own right, if it could have any effect or operation, would be to deprive them of their property upon a summary proceeding and without due process of law. If the plaintiff claims or believes their title under the conveyances mentioned in his affidavit to be invalid, an issue as to such ownership and title should be properly made and tried in an appropriate action, in which the verdict of a jury or the findings of a court may be regularly had determining those questions, and upon which a judgment could be regularly entered by which the parties would be conclusively bound. But this precise question has been decided by this court in McDowell v. Bell, 86 Cal. 615 [25 P. 128], where, under facts similar to those involved in *686 this case, the court below granted the order subjecting property to the satisfaction of the judgment, and this court held that in granting such order the court below exceeded its jurisdiction; that 'his only power in the premises was to make an order authorizing the judgment creditor to institute an action in the proper court' for the recovery of the property, and granted a writ of prohibition restraining the enforcement of the order." Colyear v. Superior Court, 40 Cal.App. 462, 464-465 [181 P. 74]: "It is perfectly clear that petitioner claimed an interest in the property adverse to Mitchell by virtue of his lien thereon as a warehouseman for the storage of the property consigned to him by one who, in so far as this record shows, was at the time of the consignment in the lawful possession thereof. The law does not authorize the trial of the rights of a third party claiming property adverse to a judgment debtor in this summary manner. ..." "The court acted in excess of its jurisdiction in making the order requiring petitioner to deliver possession of the property to plaintiff in said action. [Citations.] Hence it follows that the violation of such order constitutes no warrant for adjudging petitioner guilty of contempt and imposing punishment therefor." See also 33 Corpus Juris Secundum section 378c, page 692; section 383c, page 700. [2b] We conclude that the order requiring Atlantic and its attorney to surrender the note and trust deed to the clerk of the court was made in excess of jurisdiction and is void. [5] The order made by the court on June 26, 1964, enjoining sale of the Sky Villa trust deed note must meet the same fate. It provides that Atlantic, its attorneys, agents and employees be restrained "from disposing of the note secured by deed of trust in the original sum of $437,388.07, dated Dec. 22, 1960; that said persons and organization be restrained from disposing of said note in any manner whatsoever; that the matter be continued for a period of 60 days to Aug. 26, 1964 at 9:00 A.M. with the provision that, in the event a determination is made by the appellate court, the matter be advanced for hearing at that time is granted." The period of the injunction (termed restraining order in the minutes) is indefinite, certainly exceeds the statutory period of ten days permissible for a restraining order (see 27 Cal.Jur.2d 76, p. 198) when made without previous notice as in this instance. (Code Civ. Proc., 527.) [6] An injunction order made under section 720, Code of Civil Procedure, in a supplementary proceeding requires no bond *687 (Pioneer Investment etc. Co. v. Muncey, 33 Cal.App. 740, 743 [166 P. 591]; 19 Cal.Jur.2d, 229, p. 687), but an injunction designed to preserve the status quo during the pendency of an action to set aside a fraudulent conveyance, as here, falls under section 529, Code of Civil Procedure, and does require a bond--one such as plaintiff Theriot had on June 10 declared himself unable to post. Without the bond a preliminary injunction is a nullity. (Federal Automotive Services v. Lane Buick Co., 204 Cal.App.2d 689, 695 [22 Cal.Rptr. 603]; 27 Cal.Jur.2d, 70, p. 193.) [7] Moreover this injunction was made upon oral motion in open court without any previous notice such as required by section 527, Code of Civil Procedure, and that defect renders it void (see Thompson & Holmes, Ltd. v. Superior Court, 184 Cal.App.2d 306, 307 [7 Cal.Rptr. 386]) for it cannot be said that notice was waived in this instance; the motion was made on the spur of the moment and without any information given to Atlantic or its attorney prior to their appearing in court. [8] Before this injunction order or the contempt adjudication was made Atlantic had insisted upon the disqualification declared in its declaration previously filed under section 170.6, Code of Civil Procedure. The judge declined to recognize this challenge to his right to conduct the hearing and so far as this record shows or suggests the only conceivable basis for his so doing would be late filing of the declaration. On May 21, 1964, a like declaration had been filed in Theriot 2 and the same judge had granted the motion to disqualify. Likewise a similar declaration and motion had been upheld in Theriot 3 on June 15. Apparently that judge was not to hear Atlantic's motion to vacate the ex parte order of June 11 for it was transferred to Department One on June 22 for hearing on July 20; but on June 23 Theriot's attorneys advised Mr. Oksner that this matter, in Theriot 1, had been transferred to Department 54 for hearing on June 26,--this having been done without knowledge or consent of Oksner or his client. Thus their first information that the previously challenged judge actually would hear this matter was obtained only three days before the date set therefor. Section 170.6 says in subdivision (2) "Where the judge assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date." Also "If the motion is directed to a hearing (other than the trial *688 of a cause), the motion must be made not later than the commencement of the hearing." In subdivision (3) "Under no circumstances shall a party or attorney be permitted to make more than one such motion in any one action or special proceeding pursuant to this section; and in actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding." Of course the 10 day provision did not apply in this instance and Mr. Oksner, having filed his declaration of disqualification on June 12, immediately upon the cause being called on the 26th made an oral motion for the Judge to disqualify himself on the basis of the declaration. There was and could be no element of surprise or negligence in this and the situation falls within the purview of Spector v. Superior Court, 55 Cal.2d 839 [13 Cal.Rptr. 189, 361 P.2d 909]. The court there said in part at page 842-843: "December 21, 1960, the motion filed December 16, 1960, in proceeding No. 91313 and the order to show cause in proceeding No. 91688 were called at the same time on the law and motion calendar, with Judge Cotton presiding." "Counsel for petitioner immediately requested that both matters be heard by Judge Millington (who was available), because the latter had issued the original injunction and had instructed the receiver and therefore 'was familiar with the background of the litigation.' Judge Cotton denied the request and ruled that he would hear the matters." "Petitioner's counsel then promptly filed an affidavit of bias and prejudice as to each of the matters, requesting that Judge Cotton disqualify himself. Judge Cotton denied petitioner's request, on the ground that the affidavits of disqualification were filed 'too late.' ..." "First. Should Judge Cotton have disqualified himself under the provisions of section 170.6 of the Code of Civil Procedure when petitioner's counsel filed the affidavits of bias and prejudice against him?" "Yes. He should have disqualified himself in proceeding No. 91688. ..." "Applying the foregoing rules to the facts of the present case, it appears that petitioner's counsel, as soon as he knew that Judge Cotton was going to hear the matters before him, filed an affidavit of bias and prejudice against Judge Cotton *689 as to each of the matters, requesting that he disqualify himself. The record shows that petitioner's motion was made 'at the commencement of the hearing on December 21, 1960,' and that petitioner did not know prior to such date that Judge Cotton intended to hear these matters." "Since the December 21, 1960 hearing was the first court hearing in proceeding No. 91688, it is clear that Judge Cotton was disqualified from taking further action in that proceeding and should have disqualified himself. (Cf. Johnson v. Superior Court, 50 Cal.2d 693 [329 P.2d 5].)" See also Thompson v. Superior Court, 206 Cal.App.2d 702, 706, 710 [23 Cal.Rptr. 841]; People v. Smith, 196 Cal.App.2d 854, 859 [17 Cal.Rptr. 330]. [9] The only other question that emerges from this record is whether we here deal with a proceeding which is a continuation or a supplement to one previously tried by the same judge and whether for this reason the challenge of disqualification was asserted too late. Jacobs v. Superior Court, 53 Cal.2d 187 says at pages 190-191 [1 Cal.Rptr. 9, 347 P.2d 9]: "The question here is whether the motion was timely. Although the statute does not expressly so provide, it follows that, since the motion must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings. ..." "If a disqualification were permitted under section 170.6 in matters which are continuations of a prior proceeding, it would mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, and without any judicial determination of the facts, be disqualified from hearing such matters as motions for modification of a support order or an injunction, as well as motions for change of custody of children. Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues." This case was explained and applied in McClenny v. Superior Court, 60 Cal.2d 677, 680-681, 684-685 [36 Cal.Rptr. 459, 388 P.2d 691]. See also Stafford v. Russell, 201 Cal.App.2d 719, 721 *690 [20 Cal.Rptr. 112]; Raff v. Raff, [fn. *](Cal.App.) 37 Cal.Rptr. 155; Eagle Maintenance & Supply Co. v. Superior Court, 196 Cal.App.2d 692, 694-695 [16 Cal.Rptr. 745]; Estate of Cuneo, 214 Cal.App.2d 381, 385 [29 Cal.Rptr. 497]; Oak Grove School Dist. v. City Title Ins. Co., 217 Cal.App.2d 678, 704 [32 Cal.Rptr. 288]; People v. Paramount Citrus Assn., 177 Cal.App.2d 505, 511-512 [2 Cal.Rptr. 216]. In our opinion this situation clearly falls within the rationale of the Spector and Jacobs cases. It was a hearing upon Atlantic's motion to vacate the ex parte order of June 11, 1964; both that order and the motion to vacate were made in Theriot 1, a case to which Atlantic was never a party and in which no prior proceedings had been taken with respect to it. The statute refers to "anyone action or special proceeding," not to any series of actions. In no sense was this motion to vacate a continuation of or a supplement to anything previously done in said action Theriot 1. The fact that Atlantic had successfully challenged the same judge in two separate actions is immaterial. [2c] It follows that the judgment of contempt and the order granting a preliminary injunction against the sale of the Sky Villa note and trust deed are void, not only for the reasons first above mentioned but also upon the ground that the Judge was disqualified under section 170.6, Code of Civil Procedure, and was without jurisdiction to make any orders with respect to Atlantic in said action known as Theriot 1. Petitioners also seek an award of costs. This lies within the discretion of the court in a mandamus proceeding (Kramer v. State Board of Accountancy, 200 Cal.App.2d 163, 177 [19 Cal.Rptr. 266]; Miles California Co. v. Hawkins, 175 Cal.App.2d 162, 164 [345 P.2d 492]; Union Trust Co. v. Superior Court, 13 Cal.2d 541, 543 [90 P.2d 582]). [10] Where a court or judge is named as respondent the award of costs cannot run against it or him if it be found that the proceeding was defended in good faith (Code Civ. Proc., 1095; see also McKelley v. Turner, 96 Cal.App. 292, 295 [273 P. 1101]; 32 Cal.Jur.2d 76, at p. 288); we find that such good faith was exercised here by court and judge. But this does not preclude award of costs (which do not include attorney fees, Agnew v. Cronin, 167 Cal.App.2d 154, 156-157 [334 P.2d 256]) *691 against an unsuccessful real party in interest (Lerner v. Superior Court, 38 Cal.2d 676, 686-687 [242 P.2d 321]). So far as concerns the annulment of the contempt order on certiorari the result is the same. Though costs flow automatically in favor of a successful respondent, (Miles California Co. v. Hawkins, supra, 175 Cal.App.2d 162, 165) they will not be imposed upon the court or judge (Platnauer v. Superior Court, 33 Cal.App. 394, 395 [165 P. 41]). Hence costs should be awarded petitioners against real party in interest, John R. Theriot, upon both certiorari and mandamus petitions. The judgment of contempt and commitment therefor are annulled and a permanent writ of mandate will issue directing the lower court to vacate the oral and written orders of June 11, 1964, and June 26, 1964, requiring petitioners Oksner and Atlantic Savings and Loan Association to deliver possession of said Sky Villa note and trust deed to the clerk of the court and also directing said court to vacate the order of said June 26, 1964, enjoining Atlantic from disposing of said note and trust deed. Costs are awarded petitioners against real party in interest John R. Theriot with respect to writ of certiorari and writ of mandate. Fox, P. J., and Roth, J., concurred. NOTES [fn. *] *. Retired Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council. [fn. 1] 1. Minute order made in said Theriot 1 on said date contains the following: "Later in Chambers: Upon stipulation of counsel, representing to the Court that a settlement has been reached in this matter, the cause is ordered off calendar. Counsel further stipulate and the court orders that if either party refuses to sign the written agreement, a judgment may be entered according to the terms of the agreement in this number case. Counsel further stipulate and the court orders that the jurors may be advised by telephone that they are excused from further attendance to these proceedings." [fn. 2] 2. The entire discussion is set forth in Appendix to Petition for Writ at pages 40-54 thereof. [fn. *] *. A hearing was granted by the Supreme Court on March 13, 1964. The final opinion of that court is reported in 61 Cal.2d 514 [39 Cal.Rptr. 366, 393 P.2d 678].

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 7-25-2006 Gilliam v. Holt Precedential or Non-Precedential: Non-Precedential Docket No. 06-1427 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Gilliam v. Holt" (2006). 2006 Decisions. Paper 697. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/697 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  BPS-265 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 06-1427 FOREST GILLIAM, Appellant v. RONNIE HOLT ___________________ On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civil No. 05-cv-02351) District Judge: Honorable A. Richard Caputo ___________________ Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6 July 7, 2006 Before: RENDELL, AMBRO and GREENBERG, Circuit Judges (Filed: July 25, 2006) _______________ OPINION OF THE COURT _______________ PER CURIAM Appellant Forrest Gilliam appeals from the denial of his habeas corpus petition under 28 U.S.C. § 2241. The Appellee filed a motion for summary action. Because no substantial question is presented, we will grant the Appellee’s motion. See L.A.R. 27.4.  I. On July 25, 2005, Gilliam was charged with the high severity disciplinary infraction “fighting.” Gilliam admitted to the charges at a hearing before a Disciplinary Hearing Officer (“DHO”). The DHO sanctioned him with thirty days of disciplinary segregation, forfeiture of twenty-seven days of future good-time credit, loss of sixty days of non-vested good-time credit, and the loss of telephone and visiting privileges. On November 14, Gilliam filed a habeas petition under 28 U.S.C. § 2241 claiming that the sanctions he received were racially motivated and excessive, prison officials improperly ordered his transfer, and officials incorrectly processed the return of another inmate. The District Court denied the petition. It concluded that only the claims relating to the denial of good-time credit were cognizable under § 2241 and that the sanctions imposed did not violate due process. II. We have jurisdiction pursuant to 28 U.S.C. § 1291, and because the issues in this case are purely legal, we exercise plenary review. See Roussos v. Menifee, 122 F.3d 159, 161 n.3 (3d Cir. 1997); Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1990). Claims brought under a § 2241 petition must challenge the fact or duration of a sentence or confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Leamer v. Fauver, 288 F.3d 532, 540-42 (3d Cir. 2002). Gilliam’s challenges to the loss of privileges, his transfer, placement in the special housing unit, and the processing of other prisoners do 2 not implicate the fact or length of his sentence. Thus, the District Court properly declined to address these matters. With respect to his loss of good-time credit, his claim can be construed to raise two points. First, that the discipline was imposed in violation of due process, and second, that his discipline was racially motivated, in violation of the Equal Protection Clause. Federal inmates possess a liberty interest in good-time credit. See Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974); Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991). Wolff provides a set of minimum procedural protections that must apply to prison disciplinary proceedings. Wolff, 418 U.S. at 556. In order to meet the minimum requirements of procedural due process, the disciplinary findings must be supported by “some evidence” in the record. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). The prison and DHO afforded Gilliam all of the procedural protections required by the Constitution, and Gilliam’s admission certainly satisfies the “some evidence” standard. Additionally, his discipline conforms with the sanctions permitted under 28 C.F.R. § 514.13, table 3, Code 201. His due process rights were not violated. The District Court did not address the possible equal protection claim, but we find no evidence of a violation. The Equal Protection Clause requires that all people similarly situated be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Gilliam’s single allegation that one Caucasian inmate received a lesser sanction for the same disciplinary infraction does not amount to evidence of discriminatory 3 treatment. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (holding that petitioner must show purposeful discrimination which had a discriminatory effect on the petitioner). Gilliam admitted to the offense and was sanctioned in conformity with the regulation. He fails to show that his sanction was motivated with a discriminatory purpose or that it had a discriminatory effect. For the foregoing reasons, we grant the Appellee’s motion and will affirm the order of the District Court. Gilliam’s motion to adopt the District Court record is denied as moot. 4 

227 Cal.App.2d 800 (1964) 39 Cal. Rptr. 144 DOROTHY M. NEWHALL, Plaintiff and Respondent, v. RUTHIE M. NEWHALL, as Executrix, etc., Defendant and Appellant. Docket No. 20787. Court of Appeals of California, First District, Division One. June 15, 1964. *804 Dinkelspiel & Dinkelspiel, Richard C. Dinkelspiel and John Poppin for Defendant and Appellant. Young, Rabinowitz & Chouteau and Walter C. Chouteau for Plaintiff and Respondent. SULLIVAN, J. We hold here that the obligation of a deceased husband to make payments pursuant to an approved property settlement agreement and interlocutory judgment of divorce, for the support of his minor children until their respective ages of majority, did not cease upon his death but survived as a charge against his estate. The trial court properly determined that decedent's former wife was entitled to judgment against his executrix upon the wife's creditor's claims for the amounts of such child support as well as for amounts to be paid under the agreement for the wife's own support. We therefore affirm those portions of the judgment appealed from. The facts are not in dispute. Plaintiff Dorothy Newhall and George A. Newhall were married on November 21, 1942, in Carson City, Nevada. There are two minor children born issue of this marriage: George Almer Newhall III and Caroline Taylor Newhall. Plaintiff obtained an interlocutory judgment of divorce from Mr. Newhall in San Francisco on October 27, 1952, and a final decree of divorce on November 3, 1953. Under the provisions of the interlocutory judgment, the custody of both children was awarded to the parties jointly with physical custody and general control in the plaintiff. The interlocutory judgment also ratified and approved a property settlement agreement executed by the parties on October 23, 1952. This agreement provided among other things that George Newhall pay to plaintiff $5,000 annually in 12 equal monthly installments as his share of the support and maintenance of each of the minor children until their majority and to pay to *805 plaintiff $22,000 annually in 12 equal installments for her support and maintenance. It was also provided that the payments to plaintiff for her support should cease in the event of her death or the death of George Newhall, subject to the further proviso that if Newhall died within 10 years from October 23, 1952, plaintiff should nevertheless continue to receive such payments until October 23, 1962, unless she should sooner die or remarry. Under the provisions of the interlocutory judgment, the agreement was ratified and approved and each of the parties was ordered to perform his or her obligations thereunder. In addition defendant was ordered pursuant to the agreement to make the payments to plaintiff for her support and the support of the children already summarized herein. George Newhall died on July 13, 1958. His last will was admitted to probate and his second wife Ruthie M. Newhall, defendant herein, appointed executrix. Thereafter plaintiff timely filed in such estate proceeding creditor's claims for monies due and to become due from said decedent by virtue of the above mentioned property settlement agreement and the interlocutory and final decrees of divorce. Upon the rejection of such claims by defendant executrix, plaintiff on March 5, 1959, commenced the instant "action in equity to establish claims." The trial court found, so far as is here pertinent, that on October 23, 1952, plaintiff and George Newhall entered into a written property settlement agreement which provided "that said George A. Newhall should pay to plaintiff the sum of $5,000.00 annually in twelve (12) installments as his share of the support and maintenance of each child until his or her majority respectively"; that at the time of the death of George Newhall $24,166.67 was due, owing and unpaid from said decedent to plaintiff for child support payments; that child support payments during the balance of the minority of George Almer Newhall III commencing on August 1, 1958, and continuing until February 28, 1965, would amount to $32,916.63, payable at the rate of $416.66 per month; that child support payments during the balance of the minority of Caroline Taylor Newhall commencing on August 1, 1958, and continuing until November 10, 1966, would amount to $41,666.65 payable at the rate of $416.66 per month; that at the time of said decedent's death, $37,833.22 was due, owing and unpaid from him to plaintiff for her own support and maintenance; and that from the date of death of said decedent *806 until the expiration of the 10-year period heretofore mentioned such support and maintenance payments would amount to $93,499.83 at the rate of $1,833.33 per month until October 1962, or until plaintiff's death or remarriage prior to October 1962. Judgment was rendered accordingly.[1] We face two basic questions: (1) Did the decedent's obligation to make child support payments pursuant to the property settlement agreement continue after his death? (2) Was the judgment in plaintiff's favor for support payments for herself and her children, both due and to become due, sustained by the law and the evidence? We have concluded that both questions should be answered in the affirmative. [1a] The property settlement agreement required decedent to make specified annual payments to plaintiff as his share of the support and maintenance of each child "until his or her majority." It contained no provision that such payments were to cease upon decedent's death.[2] [2] "In California the rule is that the obligation of a father to support his minor child which is fixed by divorce decree or property settlement agreement, does not cease upon the father's death, but survives as a charge against his estate." (Taylor v. George (1949) 34 Cal.2d 552, 556 [212 P.2d 505]. In accord: Newman v. Burwell (1932) 216 Cal. 608, 612-613 [15 P.2d 511]; Estate of Smith (1927) 200 Cal. 654, 659-660 [254 *807 P. 567]; Estate of Caldwell (1933) 129 Cal. App. 613, 615 [19 P.2d 9]; Estate of Goulart (1963) 218 Cal. App.2d 260, 263 [32 Cal. Rptr. 229].) In Newman v. Burwell, supra, at page 612 the court said: "It is true that in certain of the cited cases the father's obligation was to pay a designated sum monthly during the minority of the child, thus tending to irrefutably indicate that it was to survive the father, ..." (Last italics added.) [1b] Clearly under the settled rule declared in the above cases, decedent's estate was liable not only for child support payments accrued at the date of death but also for such payments after his death and during the balance of the minority of each of the children. Defendant argues that an intent to have the child support payments terminate at death is evident from the fact that although the agreement made specific provision in respect to the wife's support payments after death, it is silent as to the continuance of the child support payments. We disagree. As already pointed out, the agreement expressly obligates the husband to make such payments for each of the children "until his or her majority." (See Newman v. Burwell, supra.) Nowhere in the agreement is there any limitation or restriction of this express obligation. If the parties had intended to terminate the child support payments upon the husband's death, it would have been very easy to so provide in the agreement. Each of the parties was represented by able counsel who endorsed their approval of the agreement at the end thereof. Notwithstanding the express language of the agreement, defendant also argues that, because of certain other considerations of which there was evidence below, we must conclude that the only reasonable interpretation of the agreement is that the child support payments were not to continue after death. Assuming without deciding that the pertinent extrinsic evidence was properly before the trial court, we are not persuaded that it had a countervailing effect upon the agreement or that in the light of such evidence the trial court's interpretation of the agreement was unreasonable and erroneous. [3] We briefly dispose of the points of defendant's argument. First, it is urged that at the time they executed the agreement the parties knew that upon George Newhall's death, his two children would receive substantial interests in the trust created under the will of Mr. Newhall's mother, *808 then deceased,[3] and therefore must have intended that the husband's child support payments would terminate at his death. However it does not necessarily follow that because the children were to receive substantial assets from their grandmother's trust, such assets were to be a substitute for an obligation manifestly undertaken by a carefully prepared contract. Indeed these facts give rise to a contrary inference: that the husband being well apprised of them intended to charge his estate with the obligation of the agreement even though the children received benefits from the trust and that if the parties had intended to make the trust benefits a substitute for obligations of the agreement, they could have very easily so provided. [4] In addition we observe, as the trial court did, that decedent was required to make the payments in question "as his share" (see footnote 2, ante) of the children's support. The above quoted language is susceptible of the implication that the husband's payments were not the total amount necessary for their support; it does not of necessity suggest that the children might not receive other funds. [5] Secondly, it is urged that an intent to have the so-called "grandmother's trust" relieve the husband's estate from the burden of supporting the children is evident from the fact that in the property settlement agreement, he agreed to assign his interest in said trust as security for his obligation to make payments of support.[4] It does not follow that because the obligation was to be secured during his lifetime, it of necessity was to be dissolved at his death. As the court said in Newman v. Burwell, supra, 216 Cal. 608, 613, "We conclude, therefore, both upon reason and authority, that the existence of security is neither a controlling circumstance nor an essential prerequisite to a determination of the continuing character of the decedent's obligation." Furthermore the husband agreed to assign his interest in the trust as security *809 for the wife's support payments as well as the children's. (See footnote 4, ante.) Defendant nowhere claims that as a result the husband's estate was to be relieved from the burden of the wife's payments as well. [6] Finally defendant claims that the decedent's express exclusion of his children from any benefits under his will, shows his intent that his children (including another child born issue of decedent's marriage existing at the time of his death) should be provided for after his death by the grandmother's trust. The will in question was executed on March 26, 1958, approximately five and a half years after the execution of the agreement. Such a unilateral act is ineffective to release the husband from the obligations of his contract and clearly not a helpful, let alone controlling circumstance, in the construction of its terms. Taylor v. George, supra, 34 Cal.2d 552, relied upon by defendant is distinguishable from the case before us since there a reasonable construction of the husband's will showed that he intended to and did fulfill his obligation of support by means of life insurance policies which were more than sufficient to meet the future payments required by the divorce decree.[5] It is clear that the trial court declined to draw from the extrinsic evidence the inferences urged by defendant and concluded upon all the evidence before it that the parties to the agreement did not intend that under its provisions the child support payments would terminate upon decedent's death. Defendant's position that the inferences urged by her are the only reasonable inferences deducible from the evidence and that a conclusion against continuance of the payments after death is the only reasonable interpretation of the contract is untenable. [7] On the contrary we are of the opinion that the trial court's interpretation of the agreement is reasonable and consistent with the intent of the parties apparent in its language. Under such circumstances, we will not substitute another interpretation, even though it might seem (and none does here) equally tenable. (Tide Water Associated Oil Co. v. Curtin (1940) 41 Cal. App.2d 884, 895 [107 P.2d 945]; Riccomini v. Riccomini (1947) 77 Cal. App.2d 850, 853 [176 P.2d 750]; Alexander v. Alexander (1948) 88 Cal. App.2d 724, 727 [199 P.2d 348]; La Jolla Casa de Manana v. Hopkins (1950) 98 Cal. App.2d 339, 348 [219 P.2d *810 871]; Shepard v. Shepard (1953) 116 Cal. App.2d 594, 596 [254 P.2d 120].) We therefore proceed to consider the second question presented by the appeal, that is whether the recovery granted by the court is supported by the law and the evidence. [8] As we have pointed out, plaintiff timely filed against decedent's estate creditor's claims not only for the child support payments but for payments of her own support as well. This she was required to do, even as to those support payments which were not yet due or were contingent. (Prob. Code, §§ 707, 732; Verdier v. Roach (1892) 96 Cal. 467, 478-479 [31 P. 554].) [9] Upon rejection of her claims, she was entitled to bring an action against defendant executrix in accordance with the provision of section 714 of the Probate Code.[6] However she was not entitled to bring an action at law on that portion of the claim not yet due or contingent until within two months after such payments had become due. (Prob. Code, § 714; Southern Pac. Co. v. Catucci (1941) 47 Cal. App.2d 596, 598 [118 P.2d 494].) [10] Plaintiff therefore commenced the instant "action in equity to establish claims," as her complaint is entitled, in order to recover those child support payments which had accrued at the date of decedent's death and in addition to secure a decree impounding and sequestering assets and funds belonging to the estate sufficient to meet those payments not yet due. It is settled that such a proceeding is one in equity and that the equity side of the court may be invoked to protect the owners of contingent claims which will mature after the period within which distribution may take place. (Miller v. Miller (1915) 171 Cal. 269, 271-272 [152 P. 728]; Newman v. Burwell, supra, 216 Cal. 608, 614; Dabney v. Dabney (1935) 9 Cal. App.2d 665, 672-673 [51 P.2d 108]; Jones v. Roberts (1958) 163 Cal. App.2d 89, 94 [329 P.2d 50]; Prob. Code. §§ 953, 953.1.)[7] [11] In such a proceeding, the plaintiff *811 must show the condition of the estate of the decedent, the ability of the executor or administrator to provide for the future payments, and the desirability of creating a fund to meet them. (Miller v. Miller, supra; Newman v. Burwell supra; Southern Pac. Co. v. Catucci, supra, 47 Cal. App.2d 596, 599.) In the instant case judgment was rendered in favor of plaintiff and against defendant executrix for all support payments both for the children and plaintiff herself which had accrued up to and including February 1962, the month preceding the entry of judgment. The court thus gave judgment against the estate for a total of $166,666.41.[8] In addition the court rendered judgment in plaintiff's favor against the executrix as follows: For the sum of $416.66 per month for child support of George Almer Newhall III "commencing March, 1962 and continuing until said minor reaches his majority on February 28, 1965, or if said minor dies prior thereto until the date of his death" (paragraph I subdivision (c) of judgment); for the sum of *812 $416.66 per month for child support of Caroline Taylor Newhall "commencing March, 1962 and continuing until said minor reaches her majority on November 10, 1966, or if said minor dies prior thereto until the date of her death" (paragraph I, subdivision (d)); and for the sum of $1,833.33 per month for plaintiff's support "commencing March, 1962 and continuing up to and including October, 1962, or if the plaintiff dies or remarries prior to October, 1962, then until the date of such death or remarriage" (paragraph I, subdivision (g)). In separate paragraphs of the judgment (paragraphs IV and V) the court then made provision for the determination and payment upon final distribution of decedent's estate of those sums due under paragraph I, subdivisions (c), (d) and (g)[9] and of those sums to become due thereafter under such subdivisions. In respect to the latter, the court directed that the "then present value" of the support payments be determined and that sufficient funds be distributed to a court appointed trustee pursuant to section 953.1 of the Probate Code (see footnote 7, ante) to meet all such support payments, the balance thereof to be returned to the estate upon the failure of any of the contingent claims.[10] Finally, the judgment ordered "[t]hat all of the aforesaid sums be paid in due course of the probate administration of the Estate of George A. Newhall, deceased." Defendant's first attack on the judgment asserts that it constitutes an "enforcement" of the support provisions of the agreement, that the trial court had the equitable power to *813 refuse such enforcement and that it should have done so. Although not expressly stated, the clear implication of the contention is that the court committed error in granting judgment for all support payments both accrued and accruing. [12] Three arguments are advanced to support this position: The first is grounded on the premise that under section 139 of the Civil Code a decree of divorce "may be enforced by the court by execution or by such order or orders as in its discretion it may from time to time deem necessary." (Italics added.) Citing Messenger v. Messenger (1956) 46 Cal.2d 619, 630 [297 P.2d 988]; Baum v. Baum (1959) 172 Cal. App.2d 658, 664 [342 P.2d 940]; Tobin v. Tobin (1960) 181 Cal. App.2d 789, 794 [5 Cal. Rptr. 712]; and Power v. California Bank (1962) 204 Cal. App.2d 754 [22 Cal. Rptr. 629], defendant argues that the practical effect of section 139 and of the above cases is to make enforcement of the support provisions of an integrated property settlement agreement discretionary with the trial court. The instant action however is one brought on rejected creditor's claims and does not involve the question of the court's discretion in the issuance of a writ of execution (cf. Messenger v. Messenger, supra), the appointment of a receiver (cf. Baum v. Baum, supra; Tobin v. Tobin, supra) or similar orders to which the above quoted language of section 139 relates.[11] It is next urged that "the very terms of the property settlement agreement make the enforcement of the child support provisions discretionary with the court." This is so, says defendant, because the agreement states that the child support provisions are "[s]ubject to any future order of any court having jurisdiction of the subject matter."[12] It is convenient to note at this point that the agreement now engaging *814 our attention was construed by this court in Newhall v. Newhall (1958) 157 Cal. App.2d 786 [321 P.2d 818], an action between this plaintiff and decedent George Newhall. The same contention above-mentioned was made to and rejected by us on the appeal in that case. (See 157 Cal. App.2d at pp. 794-795.) Finally defendant argues without citation of any authority that "Civil Code section 139 as amended, 1961, indicates a clear legislative intent that equitable considerations should be applied to the enforcement of support agreements." Defendant directs our attention to the second paragraph of section 139 as it then read.[13] Here again defendant seeks to equate the instant action with the enforcement procedures referred to in the first paragraph of section 139. We have already explained that we are not here confronted with an enforcement problem arising under that section. [13] It is almost unnecessary to point out that the amendments enacted in 1959 and 1961 to the second paragraph of section 139 relied upon by defendant (see footnote 13, ante) and authorizing modification of an integrated property settlement agreement are not effective as to the agreement in the instant case.[14] Thus the Legislature clearly indicated that integrated agreements entered into before 1959, such as the one here, are to remain unmodifiable unless altered by consent of the contracting parties. (See Taliaferro v. Taliaferro (1962) 200 Cal. App.2d 190, 195 [19 Cal. Rptr. 220].) Defendant's second attack on the judgment charges that the trial court "abused its discretion" in allowing recovery on plaintiff's rejected claims. It is to be noted that defendant applies this argument to payments both for the support of the children and for plaintiff's own support and to those payments which accrued before the death of decedent as well as to those accruing thereafter. Here again defendant's theory is that the instant action represents an "enforcement" *815 of a divorce decree under section 139 and that by rendering judgment in plaintiff's favor, the court below "abdicated" its equitable powers under that section. This convenient transposition of the concept of discretionary enforcement from procedures contemplated by section 139 to the instant action is, as we have said, totally unsupported by authority. The real thrust and purpose of defendant's arguments is to secure the modification of an integrated agreement which this court has already held in the first Newhall case to be unmodifiable. To accomplish this, defendant equates the discretionary enforcement of decrees under section 139 with the complete nonrecognition of valid contractual obligations. [14] As was said in Bradley v. Superior Court (1957) 48 Cal.2d 509, 519 [310 P.2d 634], "[n]either the court nor the Legislature may impair the obligation of a valid contract (Cal. Const., art. I, §§ 1, 16) and a court cannot lawfully disregard the provisions of such contracts or deny to either party his rights thereunder. [Citations.]" There is accordingly no merit to defendant's argument that her decedent was "locked" into an inequitable agreement by our decision in the first Newhall case and that the trial court in the instant action abused its discretion in not releasing decedent's estate from such harsh imprisonment. We held in Newhall that the agreement now engaging our attention constituted an integrated inseverable property settlement agreement, that decedent's obligation to make support payments to this plaintiff pursuant to the agreement became fixed and is not subject to modification, and that his additional obligation to make child support payments to this plaintiff also "could not be modified downward though it could be modified upward upon a showing of an appropriate change in circumstances ... unless incident to a change in the custody of the children." (Newhall v. Newhall, supra, 157 Cal. App.2d 786, at pp. 790-794.) Accordingly we there affirmed the order of the lower court denying decedent George Newhall's motion to modify the final decree of divorce. Defendant's present argument represents an attempt to annul the decision in Newhall and, by urging nonenforcement of the agreement, to bring about in effect its modification. [15] The issue as to whether the agreement was integrated and its support provisions modifiable, was finally determined against decedent in the prior action and is binding upon him and defendant executrix, his successor in *816 interest, in the instant one. (Code Civ. Proc. § 1908, subd. 2; Zaragosa v. Craven (1949) 33 Cal.2d 315, 317 [202 P.2d 73, 6 A.L.R.2d 461]; Basore v. Metropolitan Trust Co. (1951) 105 Cal. App.2d 834, 837 [234 P.2d 296].) The obligations of such agreement were definite and fixed in amount and to the extent thereof were binding upon the decedent and his estate. The present case is therefore distinguishable from Power v. California Bank, supra, 204 Cal. App.2d 754, relied on by defendant where the property settlement did not bind the husband to pay a definite amount for support but only such reasonable amount as might be determined by the court according to the station in life of the children in that case and the ability of the father's estate to pay. Defendant complains that the net result of allowing plaintiff's claim is to deplete decedent's estate to the prejudice of his creditors and legatees. Therefore, she argues, the judgment is inequitable and constitutes an abuse of discretion. In this connection it is to be noted that the trial court found to be "not true" the allegations of defendant's ninth affirmative defense to the effect that if plaintiff's claims were granted, the assets of the estate would be so depleted by payment of them that it would be inequitable and contrary to the proper administration of justice to allow such claims as prayed for and to permit execution to issue on the basis thereof. We have concluded that the record supports this finding, that the court's action in allowing recovery on plaintiff's claim was proper under all of the circumstances of the case and that defendant's argument is without merit. [16] The obligation on which plaintiff's creditor's claim was predicated was fixed, definite and binding on decedent and his estate. (See Taylor v. George, supra, 34 Cal.2d 552 and other authorities cited supra; Bradley v. Superior Court, supra, 48 Cal.2d 509.) As we have explained, the trial court first ordered judgment for all payments accrued to the date of the judgment, a total sum of $166,666.41. We cannot say that the court's action in this respect was improper. (Cf. Lisle v. Ragle (1936) 11 Cal. App.2d 537 [54 P.2d 44].) Although some of the payments were not yet due at the time the instant action was commenced, March 5, 1959, all payments represented by the above sum of $166,666.41 had accrued at the time of the judgment. It would be technical to insist that, as to the payments becoming due in the interim, plaintiff should have commenced one or more independent actions. No inequity was worked on other creditors since the obligation involved was just as much a binding obligation of *817 decedent as his other contract obligations. Payment of the $166,666.41 was to be made only upon an appropriate order in probate. (Prob. Code, §§ 950, 951, 952.) [17] Even assuming arguendo that decedent's estate might be insufficient to pay all debts in the same class as the accrued payments, we must also assume that the probate court would order any payment thereof on a pro rata basis. (Prob. Code, § 952.) [18] Nor can we find any impropriety in that portion of the court's judgment which ordered determination and payment on the final distribution of decedent's estate of support payments becoming due between the date of the judgment and the date of such final distribution. The amount of such monthly payments ordered by the court was fixed by the property settlement agreement. Assuming arguendo that the estate might be insufficient to pay these and other debts in the same class, we must assume that in respect to these amounts also, the probate court would order any payment on a pro rata basis. (Prob. Code, § 952.) If defendant should desire to close the estate (there is no present indication that she does), she could avail herself of those provisions of the judgment directing payment at the time of final distribution to a court-appointed trustee pursuant to Probate Code section 953.1 of all payments becoming due thereafter. We observe that the matter of continuing monthly payments commencing with March 1962 has this realistic aspect: At the present time all payments for plaintiff's own support have long since accrued, the last payment being in October 1962. Most of the payments for the support of the children have now accrued. Decedent's son George Almer Newhall III is now over 20 years of age; unless he dies sooner, his support payments terminate on February 28, 1965. Decedent's daughter Caroline is approximately 19-1/2 years old; unless she dies sooner, her support payments terminate on November 10, 1966. [19] Nor do we find any impropriety in the court's order directing distribution upon final distribution of decedent's estate of the then present value of any future support payments pursuant to Probate Code section 953.1. The trial court took judicial notice of the county clerk's file In the Matter of the Estate of George A. Newhall, alias, Deceased. This file which has been brought before us shows an inventory and appraisement filed therein on January 4, 1960, indicating decedent's assets at date of death to be of a value of $597,636.48. In her opening brief, filed herein on December 14, *818 1962, defendant asserts that the value of the assets in the estate "is" approximately $247,313. Plaintiff's reply brief did not take issue with this statement. However, it is not clear what defendant means by "value of the assets" in the above statement. As supportive of the statement she refers us to defendant's exhibits 4 (a bookkeeping transcript prepared by the estate's accountant and received in evidence over plaintiff's objection) and 5 (a copy of decedent's federal estate tax return). The latter document obviously includes not only those assets subject to probate but those assets which, while not subject to probate, constitute part of decedent's gross taxable estate. We are furnished with no reconcilement between the inventory and appraisement filed in the probate court and such return, and do not feel called upon to perform this task ourselves. In a supplementary letter memorandum filed with us after oral argument, defendant asserts that the value of decedent's assets in the estate at the time of trial as computed from the inventory and appraisement is $267,291.28. Again plaintiff takes no issue with the statement. Defendant states that to determine the condition of the estate at the time of trial the inventory and appraisement must be read in conjunction with exhibit 4 above mentioned. The record and the exhibit show that none of the inventoried assets, except certain notes receivable, were listed on exhibit 4. The accountant for the estate testified that exhibit 4 "should reflect what items had gone out of the estate." However, we find nowhere in the record an adjustment of the inventory and appraisement which gives the assets in the estate at the time of trial. Defendant's letter to the court does not enlighten us on this matter. Defendant also advises us in said letter that the inventory and appraisement must be read in conjunction with a certain exhibit filed by defendant executrix with her first account on October 17, 1962. This occurred after the entry of judgment below and could not possibly have been judicially noticed by the trial court. Defendant asserts that "testimony" established that the assets listed in the exhibit attached to the first account of the executrix were the assets in the estate at the time of trial. However she furnishes us with no transcript references to support such statement.[15] *819 It is neither necessary nor possible for us to determine whether the trial court made any adjustment of the inventory value of the estate in the manner now urged upon us. In the light of the inventory and appraisement in the sum of almost $600,000, we think that the court could have well concluded that there would be assets available to meet the payments of support accruing after judgment. Even if it subsequently appeared that the court was mistaken in this conclusion, no injustice would be done other creditors. Distribution to a court-appointed trustee was ordered to be made in due course of administration. If there were insufficient funds to meet this and other obligations of the same class, we must assume that any distribution would be pro rata. Nor do we see any merit in the claim that if the estate were depleted the legatees would be prejudiced. [20] The fact that the continuing obligations of a decedent survive as charges against his estate and may aggregate sufficiently to consume it entirely leaving nothing upon which either testamentary disposition or the laws of succession may operate, does not immunize the estate from the liability. (Cf. Newman v. Burwell, supra, 216 Cal. 608, 613-614; Estate of Smith, supra, 200 Cal. 654, 659-660.) These unfortunate consequences are not uncommon in probate administration generally. [21] Finally we dispose of defendant's following claim that the court abused its discretion: In the agreement decedent undertook to assign to plaintiff his life interest in the so-called "grandmother's trust" as security for all support payments (see footnote 4, ante); plaintiff failed to take advantage of this security when the support payments were in arrears; therefore, defendant concludes, it was inequitable to allow plaintiff to enforce her claims for such arrearages against decedent's estate when the income from the trust which was intended to be used to pay the arrearages is now lost to the estate (the life interest having terminated) and became vested in decedent's children as remaindermen. The argument has no merit. At the trial plaintiff offered uncontradicted evidence that to the best of her knowledge decedent never executed any assignment. To permit decedent's estate to avoid wholly or in part liability on such grounds would in effect permit the decedent to take advantage of his own wrong (Civ. Code, § 3517). Furthermore as plaintiff correctly points out, the record is devoid of any evidence that the decedent did not receive the trust income during his lifetime and therefore the trial court could have well concluded that *820 no prejudice to decedent's creditors or to the beneficiaries of his will could have resulted from his apparent failure to assign the interest as security. The judgment is affirmed as to those portions thereof appealed from. Bray, P.J., and Molinari, J., concurred. Appellant's petition for a hearing by the Supreme Court was denied August 12, 1964. NOTES [1] The findings of fact and conclusions of law and the judgment were both filed on March 2, 1962. The judgment ordered payment to plaintiff of the above amounts of child support, specifying the amount thereof due up until decedent's death, accruing the amounts thereof due to and including February 1962 (the month preceding the judgment), and ordering monthly payments thereof ($416.66 for each child) commencing with March 1962. Similarly, the judgment ordered payment to plaintiff of her own support, specifying the amount due at decedent's death ($37,833.32), accruing the amount thereof due to and including February 1962 ($78,833.19 as corrected by amendment of final judgment entered nunc pro tunc), and ordering monthly payments thereof ($1,833.33) to and including October 1962, unless plaintiff died or remarried. We explain infra those portions of the judgment relating to (a) support payments to be made from March 1962 until the final distribution of the estate and (b) payments to be made after such final distribution. It is to be noted that the court denied plaintiff recovery for her claim relating to attorneys' fees and costs. Defendant does not appeal from that portion of the judgment. [2] The entire clause of the agreement is as follows: "Husband agrees to pay to wife the sum of Five Thousand ($5,000.00) Dollars annually, in twelve equal installments, as his share of the support and maintenance of each child until his or her majority." [3] George Newhall was the life income beneficiary and his two children the remaindermen. At oral argument counsel for the parties agreed the value of each child's share is approximately $464,000 and the annual income of each share approximately $25,000. [4] The agreement provides: "Husband agrees to assign to wife his interest under the trust created by the will of his mother for the purpose of securing the payment of all sums of money herein agreed to be paid to wife for the support and maintenance of herself and said minor children. Said assignment shall be in a form satisfactory to both husband and wife and also in a form satisfactory to the trustee under said trust." [5] In Taylor the court said: "No reason appears why the testator could not, by his will, designate the fund out of which his obligations were to be met." (P. 558.) [6] Section 714 of the Probate Code provides in part: "When a claim is rejected either by the executor or administrator or by the judge, written notice of such rejection shall be given by the executor or administrator to the holder of the claim or to the person filing or presenting it, and the holder must bring suit in the proper court against the executor or administrator, within three months after the date of service of such notice if the claim is then due, or, if not, within two months after it becomes due; otherwise the claim shall be forever barred...." [7] Probate Code section 953 provides: "If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established, or absolute, must be paid into court, and there remain, to be paid over to the party when he becomes entitled thereto; or, if he fails to establish his claim, to be paid over or distributed as the circumstances of the estate require. If a creditor whose claim has been allowed, but is not yet due, appears and assents to a deduction therefrom of the legal interest for the time the claim has yet to run, he is entitled to be paid accordingly. The payments provided for in this section are not to be made when the estate is insolvent, unless a pro rata distribution is ordered." Probate Code section 953.1 in relevant part provides: "Notwithstanding any other provision of law, when a contingent claim is filed, which is payable in installments or upon the happening of a stated event, the court may in its discretion appoint a trustee to whom the funds shall be paid with the directions to said trustee to invest the money as authorized by court or in securities which are legal investment for savings banks, and the trustee shall make the payments as ordered by the court. The court in determining the amount of the contingent claim payable in installments or upon a stated event, will compute the present value thereof, giving consideration to a reasonable interest rate upon the funds to be invested; upon completing the payments as provided in the decree, order or judgment allowing said claim, any excess funds in possession of the trustee shall be paid in accordance with the decree of distribution." [8] In summary this portion of the judgment is as follows: $24,166.67 for both children up to July 13, 1958, the date of decedent's death; $25,833.23 for both children from July 13, 1958 to and including February 1962; $37,833.32 for plaintiff's own support until July 13, 1958; and $78,833.19 for plaintiff's own support from July 13, 1958 to and including February 1962. [9] Paragraph IV of the judgment provides: "That upon the final distribution of the Estate of George A. Newhall, deceased, the Court will determine the sums due to plaintiff, if any, under paragraph I, subdivisions (c), (d) and (g) of this Judgment, from and including March, 1962 to the date of final distribution of said estate and order the same to be paid to plaintiff by defendant as executrix of the Estate of George A. Newhall, deceased." [10] Paragraph V of the judgment provides: "That upon the final distribution of the Estate of George A. Newhall, deceased, the Court will determine the then present value of the amounts to become due thereafter, if any, under paragraph I, subdivisions (c), (d), and (g) of this Judgment, based upon the formula for the then present value of an annuity payable in monthly installments invested at 4% interest per annum compounded quarterly. A separate computation to be made for each of said subdivisions. That said present value be distributed to a trustee pursuant to section 953.1 of the Probate Code of the State of California for payment to the plaintiff in conformance to the terms of said subdivisions. Upon the failure of any of said contingent claims then the trustee shall be directed upon such failure to return the balance of said sum held for that contingent claim to the aforesaid estate." [11] Power v. California Bank, supra, did not involve the ordinary enforcement procedures under Civil Code section 139 but was an action in equity against the husband's estate. In Power, unlike the instant case, the property settlement agreement did not specify any definite sum to be paid by the husband's estate but provided that upon the husband's death, in the absence of any agreement, "any Court of competent jurisdiction shall fix the amount which ... his estate shall pay to" the wife for child support. The trial court's judgment in favor of the executor was sustained under all the circumstances there prevailing. [12] This is the opening language of paragraph Sixth of the agreement which contains as subdivision A thereof the provisions as to custody and as subdivision B the provisions as to child support. (See footnote 2, ante.) [13] The language of section 139 relied upon is as follows: "That portion of the decree or judgment making any such allowance or allowances, and the order or orders of the court to enforce the same, including any order for support of children or order for support of the other party based on a provision for such support in an integrated property settlement agreement, may be modified or revoked at any time at the discretion of the court except as to any amount that may have accrued prior to the order of modification or revocation...." [14] The 1959 amendment specifically declared that it was "effective only with respect to property settlement agreements entered into after the effective date of such amendments." [15] In her said letter defendant also submits information concerning the present condition of the estate, which she states is in response to our request. She is mistaken. We did not request it and decline to consider it. Our proper function is to review the evidence before the trial court.

13-3745 (L) Cox v. United States 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2014 5 (Submitted: January 21, 2015 Decided: April 13, 2015) 6 Docket Nos. 13-3745, 13-4473, 13-4699 7 -----------------------------------------------------------X 8 CLINTON D. COX, 9 Petitioner-Appellant, 10 v. 11 UNITED STATES OF AMERICA, 12 Respondent-Appellee. 13 -----------------------------------------------------------X 14 Before: LEVAL, POOLER, and CHIN, Circuit Judges: 15 Motion by Petitioner-Appellant Clinton D. Cox, a federal prisoner acting pro se, 16 for Certificates of Appealability (“COAs”) in support of his appeal from the denial by the 17 United States District Court for the District of Connecticut (Thompson, J.) of his petition 18 under 28 U.S.C. § 2255 for a writ of habeas corpus. The Court determines it has 19 jurisdiction of the appeal. Motion DENIED. 20 Clinton D. Cox, Bruceton Mills, WV, pro se, for 21 Petitioner-Appellant. 22 Alina P. Reynolds, Assistant U.S. Attorney, 23 Bridgeport, CT (Sandra S. Glover, Assistant 24 U.S. Attorney, New Haven, CT, of counsel), for 25 Respondent-Appellee.  13-3745 (L) Cox v. United States 1 PER CURIAM: 2 Petitioner-Appellant Clinton D. Cox, a federal prisoner acting pro se, moves for 3 Certificates of Appealability (“COAs”) in support of his appeal from the denial by the 4 United States District Court for the District of Connecticut (Thompson, J.) of his petition 5 under 28 U.S.C. § 2255 for a writ of habeas corpus overturning his conviction on federal 6 narcotics charges. The first question we face is whether this court has appellate 7 jurisdiction, which turns on whether Cox’s appeal is taken from a “final decision[] of the 8 district court[].” 28 U.S.C. § 1291. If that question is answered in the affirmative, his 9 entitlement to a COA turns on whether he has made a “substantial showing of the denial 10 of a constitutional right.” 28 U.S.C. § 2253(c)(2). 11 BACKGROUND 12 Cox was convicted in 2001 on federal narcotics and firearms charges and was 13 sentenced at first to 540 months’ imprisonment, to be followed by a 10-year term of 14 supervised release. On direct appeal, Cox’s conviction and sentence were affirmed. See 15 United States v. Cox, 324 F.3d 77 (2d Cir. 2003); United States v. Cox, 59 F. App’x 437 16 (2d Cir. 2003). In 2004, he moved for a new trial, arguing that the Government 17 knowingly allowed witnesses to testify falsely at trial to his transactions in guns of a type 18 that had not yet been manufactured. The district court denied the motion in 2006, finding 19 that Cox’s evidence was altered and his claims had no basis in fact. 20 Later in 2004, Cox filed a first motion under § 2255 to set aside the convictions, on 21 grounds not relevant to the present appeal, which the district court denied. He later moved 2  13-3745 (L) Cox v. United States 1 to set aside his firearms convictions. The district court granted this motion and vacated 2 the firearms convictions.1 The court then resentenced Cox on the narcotics convictions, 3 imposing four concurrent 360-month prison terms. Cox appealed, and this court affirmed. 4 United States v. Cox, 458 F. App’x 79 (2d Cir. 2012). 5 In October 2011, Cox filed the present § 2255 motion, seeking to overturn the 6 narcotics convictions.2 He supported the motion by numerous allegations, including 7 claims of ineffective assistance of counsel in the course of trial. He later amended the 8 motion, adding claims of ineffective assistance by counsel who represented him on appeal 9 and by counsel who served him at his resentencing. The asserted ineffectiveness of 10 counsel lay in their failure to detect and protest the prosecution’s failure to disclose 11 exculpatory evidence. While the motion was pending, Cox filed motions for bail and for 12 discovery of alleged exculpatory material. 13 In September 2013, the district court denied this § 2255 motion. The court 14 explained in part that Cox’s claims were time-barred because they “relate[d] only to the 15 original sentencing,” as well as procedurally barred because the claims were raised for the 16 first time on collateral review, and Cox had not demonstrated cause and actual prejudice 1 Under authority of an intervening decision of the Supreme Court, Watson v. United States, 552 U.S. 74 (2007), the district court determined that Cox’s conduct, which served as the basis for the firearms convictions, did not constitute a violation of the firearms statute. 2  Because Cox was resentenced after he filed his first § 2255 motion, his second motion is not deemed to be a “second or successive motion” subject to the exacting requirements of § 2255(h). See Vu v. United States, 648 F.3d 111, 113 (2d Cir. 2011). 3  13-3745 (L) Cox v. United States 1 or actual innocence to excuse his failure to raise them previously. Cox timely noticed this 2 appeal. 3 Cox’s motion for a COA relates to (1) various claims of prosecutorial misconduct, 4 false testimony, and ineffective assistance of counsel at his trial; and (2) claims that the 5 lawyers who represented him on his appeal and at his resentencing were ineffective for 6 failure to challenge alleged false testimony and government misconduct. 7 DISCUSSION 8 A. Jurisdiction 9 The first question is whether our court has jurisdiction over Cox’s appeal, which 10 turns on whether Cox appeals from a “final” judgment within the meaning of 28 U.S.C. § 11 1291 (“The courts of appeals . . . shall have jurisdiction of appeals from all final decisions 12 of the district courts . . . .”).3 A final order is one that “ends the litigation on the merits 13 and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. 14 Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 15 (1945)). 16 It appears clear on the face of the court’s ruling that it “end[ed] the litigation [of 17 his § 2255 proceeding,] leav[ing] nothing for the court to do but execute the judgment.” 18 Id. The order stated, “the Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence 19 pursuant to 28 U.S.C. § 2255 . . . is hereby DENIED.” Cox v. United States, No. 3:11-cv- 3 The requirement of a final order has exceptions, not relevant here. 4  13-3745 (L) Cox v. United States 1 1568-AWT, Dkt. 37 at 13 (D. Conn. Sept. 24, 2013). This dismissed Cox’s petition in its 2 entirety, leaving nothing to be adjudicated in the district court. 3 On the other hand, the reasoning on which the court relied was erroneous as to 4 some of Cox’s claims. The court explained that, because “the claims [Cox] raises . . . 5 relate only to the original sentencing,” they were therefore time barred. Id. at 8. The court 6 further reasoned that Cox was procedurally barred from raising his arguments for the first 7 time on collateral review. This ruling was incorrect in two respects. First, as the petition 8 raised claims of ineffective assistance of counsel on Cox’s appeal and his resentencing, 9 his claims did not “relate only to the original sentencing.” Second, the claims of 10 ineffective assistance of counsel at his resentencing were not procedurally barred. A 11 petitioner is not obliged to raise a claim of ineffective assistance of counsel while 12 represented by the very attorney alleged to have rendered ineffective assistance. See Billy- 13 Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993), abrogated on other grounds by 14 Massaro v. United States, 538 U.S. 500, 509 (2003). And claims that counsel in the trial 15 court was ineffective are not forfeited for failure to raise them for the first time on appeal. 16 Massaro, 538 U.S. at 509. As such claims almost invariably depend on fact finding, 17 which cannot be performed by appellate courts, they are more appropriately reserved for 18 collateral approach. Id. at 504-06. Thus, at least the claims accusing his resentencing 19 counsel of ineffective assistance were not waived. Accordingly, while the court clearly 20 intended to dismiss the petition in its entirety, the reasons the court gave for the ruling 21 were not valid as explanations for the dismissal of some of the claims. 5  13-3745 (L) Cox v. United States 1 Nonetheless, as the order clearly stated that the petition was dismissed in its 2 entirety, and the court clearly intended exactly that result, we conclude it was a “final” 3 order and that we therefore have jurisdiction over the appeal. The issue, however, calls 4 for some discussion of the distinction between this case and United States ex rel. 5 Polansky v. Pfizer, Inc., 762 F.3d 160 (2d Cir. 2014). 6 In Polansky, this court found that a district court order of dismissal was not final 7 (and was therefore not appealable) in circumstances where it was unclear “how much of 8 the complaint the district court intended to dismiss.” Id. at 161. The circumstances were 9 unusual: the plaintiff had filed a civil suit against his employer alleging that (1) the 10 employer had defrauded the federal and state governments; and (2) the defendant had 11 retaliated against the plaintiff for reporting alleged violations of law. Id. On the 12 defendant’s motion to dismiss, the district court dismissed the fraud claims but explicitly 13 denied the motion to dismiss the retaliation claims. Id. at 162. The court granted the 14 plaintiff leave to amend the fraud claims, which the plaintiff did. Id. The defendant again 15 moved to dismiss the fraud claims. Id. The case was then transferred to a new judge. The 16 court wrote an opinion addressing only the fraud claims, and granted the motion to 17 dismiss. The court then directed the clerk to “enter judgment in favor of defendant, 18 dismissing the complaint.” Id. We concluded “it remained unclear whether [the district 19 court] intended to dismiss [the retaliation claims], whether it overlooked those claims, or 20 whether it intended to only dismiss the fraud claims.” Id. (emphasis added). 6  13-3745 (L) Cox v. United States 1 Our opinion found it “most plausible” that the district court intended to dismiss 2 only the fraud claims. Id. at 163. The apparently broader order was akin to a ministerial 3 error. Because we construed the order as not dismissing the plaintiff’s suit in its entirety, 4 we concluded it was not a final order under 28 U.S.C. § 1291. Id. at 164. 5 Polansky might conceivably be read as supporting the proposition that, when a 6 district court’s order by its terms dismisses a suit in its entirety, but the court’s reasoning 7 supports the dismissal of only some of the claims, the judgment is not a final order for the 8 purposes of § 1291. Were that the rule, the district court’s order of dismissal in this case 9 would not have been a final order and we would have no jurisdiction of this appeal. 10 However, we do not think Polansky bears such an expansive reading.The Polansky 11 opinion depended on the appellate court’s conclusion that the district court had not 12 intended to issue a final judgment dismissing the action in its entirety. The conclusion 13 was based on the irreconcilable inconsistency between the court’s explicit refusal to 14 dismiss the retaliation claims and its dismissal of the case in its entirety. 15 In the present case, by contrast, there can be no doubt that the district court fully 16 intended to deny Cox’s petition, leaving nothing further to adjudicate in the district court. 17 Though the district court may have been mistaken in believing that the reasons it gave 18 would justify dismissal of all of Cox’s claims, nothing in the record suggests that the 19 district court did not intend its order as a final decision terminating the case in its entirety. 20 There is no inconsistency between our ruling that the district court’s order in this case 21 was a final decision and Polansky’s conclusion that the order in that case was not. 7  13-3745 (L) Cox v. United States 1 A rule that a district court’s order, which by its terms dismisses a case in its 2 entirety, is nonetheless not deemed a “final decision” that allows for appeal if the reasons 3 given for dismissal are erroneous or would not justify dismissing all of the claims, would 4 have harmful consequences for our system of justice. First, it would often be difficult for 5 the losing party to know whether an apparently final order is in fact appealable. Second, a 6 party that has suffered an adverse final judgment is subject to strict time limitations for 7 filing an appeal. See Fed. R. App. P. 4(a)(1). Those time limits would be effectively 8 erased if an order of dismissal were considered not “final” by virtue of its erroneous or 9 incomplete reasoning. An arguably erroneous judgment could be appealed at any time, 10 even years later, because the apparent order of dismissal would not have qualified as an 11 appealable final order. Not only would the time for appeal not have expired—it would not 12 even have begun to run. We do not believe the Polanksy opinion established such a rule. 13 We conclude that the district court’s order of dismissal was an appealable final 14 decision. Our court therefore has jurisdiction over Cox’s appeals and his motions for 15 COAs. 16 B. Standard of Review 17 This court may issue a COA “only if the applicant has made a substantial showing 18 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this 19 standard by demonstrating that jurists of reason could disagree with the district court’s 20 resolution of his constitutional claims or that jurists could conclude the issues presented 21 are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 8  13-3745 (L) Cox v. United States 1 U.S. 322, 327 (2003) (internal citations omitted). In reviewing a district court’s denial of 2 relief under § 2255, we review findings of fact for clear error and conclusions of law de 3 novo. Campusano v. United States, 442 F.3d 770, 773 (2d Cir. 2006). 4 C. Entitlement to Certificates of Appealability 5 Cox fails to show entitlement to COAs for his numerous claims, as to some 6 because he fails to make a substantial showing of denial of a constitutional right, and as to 7 others because his claims are procedurally barred. Cox’s first claim is that his trial 8 counsel was ineffective for failure to investigate evidence that weapons, which a witness 9 testified Cox had traded for drugs, were not manufactured until after the events in 10 question. The district court convincingly found that there was no such evidence. Next, 11 Cox argues that the prosecution ought to have disclosed exculpatory evidence that a 12 witness was the target of a grand jury investigation and that the witness perjured himself 13 at trial. The district court reasonably found that there was no evidence that the witness 14 was under investigation at the time of trial or that he perjured himself. Cox’s claims of 15 ineffectiveness of appellate and resentencing counsel fail because their validity depends 16 on the validity of Cox’s contentions regarding the time of manufacture of the guns, which 17 the district court properly rejected as baseless. 18 As for Cox’s claim that the prosecution should have identified individuals who 19 purchased firearms from one of the witnesses at trial and produced interview notes 20 regarding those individuals, it is procedurally barred. Cox was aware of the requested 21 material at least since trial. Indeed, the alleged exculpatory evidence appears to have been 9  13-3745 (L) Cox v. United States 1 the basis of Cox’s motion for new trial in 2004. Since that time, Cox has appealed his 2 conviction twice, and does not appear to have raised this argument. See United States v. 3 Cox, 324 F.3d 77 (2d Cir. 2003); United States v. Cox, 59 F. App’x 437 (2d Cir. 2003); 4 United States v. Cox, 458 F. App’x 79 (2012). “Where a defendant has procedurally 5 defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas 6 only if the defendant can first demonstrate either cause and actual prejudice, or that he is 7 actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations and 8 internal quotations omitted). Since Cox has demonstrated none of these elements, his 9 claim is barred. 10 Thus, in spite of the district court’s error in holding that certain of Cox’s claims 11 were time barred and procedurally defective, Cox nonetheless fails to make the requisite 12 substantial showing of the denial of a constitutional right. Cox’s discovery and bail 13 motions also rely on the plainly inadequate factual basis for his § 2255 motion, and are 14 therefore similarly denied. 15 CONCLUSION 16 For the foregoing reasons, Cox’s motions (Dkt. No. 110 in Case No. 13-3745; Dkt. 17 No. 51 in Case No. 13-4473; and Dkt. No. 37 in Case No. 13-4699) are hereby DENIED. 10 

UNITED STATES of America, Plaintiff-Appellee, v. Scott T. JAMIESON, Defendant-Appellant. No. 98-5059. United States Court of Appeals, Eleventh Circuit. Jan. 31, 2000. Appeal from the United States District Court for the Southern District of Florida. No. 97-06142-CR-KLR), Kenneth L. Ryskamp, Judge. Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge. DUBINA, Circuit Judge: Appellant Scott Jamieson ("Jamieson") appeals his 71-month sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jamieson argues that the district court based his offense level upon an erroneous interpretation of 18 U.S.C. § 921(a)(30)(A)(i). We agree. Therefore, we vacate Jamieson's sentence and remand this case for resentencing. I. BACKGROUND A. Procedural History A federal grand jury in the Southern District of Florida returned an indictment charging Jamieson with felonious possession of a firearm. Jamieson entered into a written plea agreement with the government. Under the terms of the plea agreement, Jamieson agreed to plead guilty to the indictment and the government agreed to make a non-binding recommendation at sentencing that Jamieson be awarded a three-point offense level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court accepted Jamieson's guilty plea. To aid the district court in sentencing, the Probation Officer prepared a pre-sentence investigation report ("PSI"). Jamieson filed written objections to the PSI and specifically objected to the enhancement for possession of an allegedly stolen firearm. The government filed no written objections.  In a second addendum to the PSI, the probation officer agreed with Jamieson's objection and deleted the two-level enhancement for possession of an allegedly stolen firearm. The probation officer further noted that the government had "orally reported" objections to the PSI. The government argued that Jamieson's firearm was a prohibited semiautomatic assault weapon described in 18 U.S.C. § 921(a)(30), and therefore qualified him for the enhanced base offense level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3). The probation officer then submitted a revised PSI reflecting the deletion of the two-level enhancement for the allegedly stolen firearm, but increasing the base offense level by two levels pursuant to § 2K2.1(a)(3). The PSI also reflected the 3-level adjustment for acceptance of responsibility. These changes resulted in a total offense level of 21, which was identical to the level set forth in the original PSI. At his sentencing hearing, Jamieson objected to the government's oral request for an enhancement of the base offense level due to his alleged possession of a prohibited semiautomatic assault weapon. In an attempt to meet its burden of proof, the government presented the testimony of firearms expert Agent Steve Barborini of the Bureau of Alcohol, Tobacco and Firearms. According to Agent Barborini's testimony, under current federal law, a semiautomatic rifle that can accept a magazine of over five rounds is illegal if it has two or more of the following: a protruding pistol grip, a bayonet lug or flash hider, a threaded barrel, or a shroud designed so that the rifle could be gripped without one's hand being burned. Agent Barborini testified that the Norinco firearm at issue holds a 30-round magazine and is a semiautomatic gas operated rifle. He further testified that Norinco changed the way it manufactured the firearm at issue after Congress passed a new law banning certain types of assault weapons. Finally, Agent Barborini testified that, as a result of the redesign, the firearm at issue did not possess two of the prohibited items, and thus, was a legal weapon. Even though Agent Barborini testified that the firearm at issue was not an illegal semiautomatic assault weapon, the district court decided to apply the enhancement of U.S.S.G. § 2K2.1(a)(3) because it interpreted 18 U.S.C. § 921(a)(30)(A)(i) to prohibit any semiautomatic assault weapon manufactured by 2 Norinco. We conclude that the district court's interpretation of 18 U.S.C. § 921(a)(30)(A)(i) is incorrect. Neither the language of § 921(a)(30)(A)(i) nor the legislative history supports such an interpretation. II. STANDARD OF REVIEW This court reviews the district court's findings of fact for clear error and its application of the sentencing guidelines to those facts de novo. See United States v. Gallo, 195 F.3d 1278, 1280-81 (11th Cir.1999); United States v. Tillmon, 195 F.3d 640, 642 (11th Cir.1999). III. DISCUSSION Jamieson argues on appeal that the district court incorrectly interpreted 18 U.S.C. § 921(a)(30)(A)(i) in calculating his base offense level under U.S.S.G. § 2K2.1(a)(3). Specifically, Jamieson contends that although § 921 prohibits all models of Norinco's "Avtomat Kalashnikovs," it does not prohibit all Norinco weapons, as the district court concluded. Moreover, Jamieson underscores Agent Barborini's testimony that the firearm at issue was a legal weapon because it did not have two or more of the features prohibited in § 921(a)(30)(B). The government agrees with Jamieson's position and confesses error.1 Notwithstanding the government's admission of error, we feel compelled to briefly address this first impression issue. On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (the "Violent Crime Control Act"), in order to amend and expand various existing statutory and regulatory provisions found in 18 U.S.C. §§ 921-930 relating to the manufacture, distribution, and possession of certain weapons. See National Rifle Ass'n of America v. Magaw, 132 F.3d 272, 277 (6th Cir.1997); Navegar, Inc. v. United States, 103 F.3d 994, 997 (D.C.Cir.1997). Of significance to this appeal, the 1994 Violent Crime Control Act banned the manufacture, transfer, or possession of semiautomatic assault weapons. See 18 U.S.C. §§ 922(v)(1), 922(w)(1). Title 18 U.S.C. § 921(a)(30) defines a "semiautomatic assault weapon" as one of the nine specified firearms listed in § 1 We appreciate the government's candor in not only admitting that the district court committed error, but also in acknowledging its contribution to the district court's confusion. 3 921(a)(30)(A) or as a semiautomatic rifle that meets certain requirements as listed in § 921(a)(30)(B). Section 921(a)(30)(A) provides: The term "semiautomatic assault weapon" means— (A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as— (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12. 18 U.S.C. § 921(a)(30)(A)(i)-(ix). Congress passed § 921(a)(30)(A)(i)-(ix) in order to ban the specific weapons listed therein, including in sub-section (i) "(all models)" of Norinco "Avtomat Kalashnikovs." In addition to banning certain specific firearms, Congress enacted 18 U.S.C. § 921(a)(30)(B) to ban semiautomatic rifles regardless of make, model, or identity of manufacturer, if they had two or more of the proscribed characteristics listed in § 921(a)(30)(B). After passage of the Violent Crime Control Act, the Sentencing Commission established a specific base offense level of 22 for felons, like Jamieson, who had one prior felony conviction of a crime of violence and who were convicted of being a felon-in-possession under 18 U.S.C. § 922(g)(1), if the offense involved a firearm described in 18 U.S.C. § 921(a)(30). See U.S.S.G. § 2K2.1(a)(3). In applying 18 U.S.C. § 921(a)(30) to Jamieson, the district court, without argument to the contrary, mistakenly concluded that all Norinco weapons came within the ambit of 18 U.S.C. § 921(a)(30)(A)(i). Accordingly, the district court 4 decided that the enhanced sentence provided in U.S.S.G. § 2K2.1(a)(3) was appropriate for the Norinco firearm at issue. We hold that the district court's conclusion contradicts the language of § 921(a)(30) and the legislative history of the Violent Crime Control Act. Congress narrowly crafted the assault weapons ban to limit the number of weapons being banned. See H.R.Rep. No. 103-489, at 6 (1994), reprinted in 1994 U.S.C.C.A.N. 1801, 1803. Moreover, the provisions of the Violent Crime Control Act set forth in 18 U.S.C. § 922 buttress the conclusion that not all Norinco weapons are illegal. The Violent Crime Control Act "exempts certain weapons from its prohibitions, as listed in § 922, Appendix A, and described in § 922(v)(3)." Magaw, 132 F.3d at 277. Appendix A to § 922 lists a variety of weapons manufactured by Norinco which are not prohibited. Although the Appendix does not include Jamieson's firearm, the fact that a firearm is not listed in Appendix A does not mean that the firearm is prohibited. See 18 U.S.C. § 922(v)(1)(3). In summary, we conclude that 18 U.S.C. § 921(a)(30) does not encompass all Norinco weapons. Section 921(a)(30)(A)(i) only bans all models of Norinco Avtomat Kalashnikovs. There was no testimony at sentencing, nor was it the government's position, that Jamieson's weapon was an Avtomat Kalashnikov. Moreover, Jamieson's sentence could not be enhanced pursuant to § 921(a)(30)(B). Section 921(a)(30)(B) includes only semiautomatic weapons, regardless of make, which display two or more proscribed characteristics. At sentencing, the government stated that Jamieson's weapon did not display two or more of those prohibited characteristics. Therefore, the district court erred in concluding that all Norinco weapons fit within the ambit of 18 U.S.C. § 921(a)(30)(A)(i), and in subsequently applying the offense level in U.S.S.G. § 2K2.1(a)(3). Because Jamieson's sentence was based on an erroneous interpretation of the law, we vacate his sentence and remand this case to the district court for resentencing consistent with this opinion. VACATED and REMANDED. 5 

191 N.W.2d 177 (1971) Elmer DE WITT, Plaintiff and Appellant, v. Frances DE WITT, Defendant and Respondent. No. 10891. Supreme Court of South Dakota. October 26, 1971. *178 Charles Poches, Jr., Fort Pierre, for plaintiff and appellant. Keith A. Tidball, Pierre, for defendant and respondent. HERTZ, Circuit Judge. Defendant was granted a decree of divorce upon her cross-complaint. Plaintiff appeals from that portion of the decree awarding defendant wife, in addition to other property, the sum of $15,000 cash, together with attorney fees in the sum of $2,500 and costs of $85. Plaintiff contends both the cash award and attorney fees are grossly excessive. The trial court found that plaintiff and defendant were married on August 4, 1958; that there were no children born of this marriage; that plaintiff was guilty of extreme cruelty; that defendant supported herself and four children by a former marriage during the entire period of the marriage. By written stipulation of the parties, the ownership and value of the property were agreed to be as follows: Plaintiff was the owner of 600 acres of land, with a value of $60,000. Plaintiff was the owner of 320 acres of this land prior to the marriage to the defendant, and acquired the additional 280 acres by inheritance from his father's estate during the term of the marriage. Plaintiff was also the owner of farm machinery, a 1969 Ford Torino automobile, cash on hand, stock in the Black Hills Development Company, certain livestock, all of the value of $28,033.93. The total of plaintiff's property was valued at $88,033.93. Plaintiff and defendant were owners in joint tenancy of a residence in Pierre, South Dakota, of the stipulated value of $8,500. Defendant owned an automobile valued at $100. It was further stipulated that defendant has employment with the Federal Government with a GS-3 rating, and that her take home pay from this employment amounts to $130 every two weeks. It was further stipulated that plaintiff paid all expenses of the farming and ranching operation out of his own income, and that defendant, who was employed all during the term of the marriage, bought her own groceries, and supported the children by a previous marriage and herself. *179 Based on the foregoing, the trial court awarded to defendant wife the residence in Pierre, South Dakota, valued at $8,500, together with all of the personal property located therein; certain shares of stock in the Black Hills Development Company, valued at $750, and $15,000 in cash. The division of the property to defendant represented approximately 25 percent of the property of the plaintiff. After the marriage on August 4, 1958, defendant wife resided one day at the farm and ranch home of the plaintiff located in Hyde County, South Dakota, three weeks in an apartment at Highmore, South Dakota, about one month with a friend of defendant in Pierre, South Dakota, and thereafter in the residence in Pierre which was purchased and paid for by plaintiff. Plaintiff, on the other hand, continued his residence at the ranch home in Hyde County during the 12 years of the marriage, and made weekend visits of various duration to the defendant in Pierre. Defendant urges that by the use of all of her income towards the maintenance of the residence in Pierre and in the support of herself and the four children by a previous marriage (none of whom presently resides with defendant), she thereby directly contributed to the assets acquired and held by the plaintiff, and by reason thereof is entitled to participate in a division of plaintiff's property. Defendant is 45 years old, is in fair health, and has a gross annual income of approximately $5,000 which includes retirement and hospitalization. Plaintiff is 67 years old, a rancher with a gross income in 1969 of $2,777.76. SDCL 25-4-44 provides: "Where a divorce is granted for an offense of either husband or wife, the courts shall in such action have full power to make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property the court shall have regard for equity and the circumstances of the parties." A trial court has discretionary authority to make both the allowance to the wife for her support and an equitable division of the property of the parties. We may not disturb the trial court's determination unless it clearly appears that court has abused its discretion. Peterson v. Peterson, 71 S.D. 314, 24 N.W.2d 35, 37; Meyer v. Meyer, 76 S.D. 268, 77 N.W.2d 559. The various factors which must be considered by the trial court in the making of an equitable division of the property are well settled and need not be repeated here. See Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601; Peterson v. Peterson, supra; Swenson v. Swenson, 1970, S.D., 181 N.W.2d 864; Schroeder v. Schroeder, 74 S.D. 385, 53 N.W.2d 293; and Meyer v. Meyer, supra. In the present case, the divorce was granted to the defendant on her cross-complaint for an offense of the plaintiff. On the record before this court, however, it can reasonably be concluded that defendant's conduct, in some measure at least, contributed to the marital difficulties of the parties and is a factor to be considered in the making of a division of the property. Meyer v. Meyer, Kressly v. Kressly, and Swenson v. Swenson, supra. In Kressly v. Kressly, supra, cited with approval in Swenson v. Swenson, this court said: "We expressly hold that a trial judge * * * is not bound by any mathematical formula but shall make such award from the material factors before him having due regard for equity and the circumstances of the parties." The question obviously is what is a fair and just award after a consideration of all of the material factors in the case. Considering the duration and special circumstances of this marriage, the value of each spouse's property, the age, health, and earning capacity of the parties, *180 the contribution made by each, and the acts of both plaintiff and defendant leading up to the divorce, we believe the $15,000 cash award, given in addition to the residence and stock shares, is excessive and that the judgment of the trial court should be modified by reducing the cash award to the sum of $5,000 which is to be paid within 30 days from entry thereof. Plaintiff further urges that the award of counsel fees in the sum of $2,500 is grossly excessive. No question is raised as to reimbursable costs in the sum of $85, nor as to the award of $200 counsel fees to defendant for the purposes of this appeal. A review of the settled record reveals the usual pleadings. There is a summons, complaint, answer and cross-complaint, and reply. Discovery procedure is limited to certain interrogatories proposed by both plaintiff and defendant. Plaintiff did not contest the grounds for divorce. The ownership and value of the property of the parties was agreed to by the written stipulation of the parties. The reporter's transcript of the trial consists of only eight pages of testimony. It appears no briefs were filed with the court and there was no intricate legal problem involved. Counsel for defendant states that he has consumed 107 hours in investigations, office work, and innumerable conferences with defendant and plaintiff's counsel. The fees are based on the minimum bar fee of $25 per hour. The allowance of attorney fees rests in the sound discretion of the trial court. Baron v. Baron, 71 S.D. 641, 28 N. W.2d 836, and will not be interfered with by this court unless it appears there is error in the exercise thereof. Each case must rest on its own facts, and there is little to be gained by comparing the present fee with others which have previously been allowed. As counsel for defendant has stated, many of the 107 hours claimed by him were the result of numerous conferences with the defendant and with plaintiff's counsel. It appears to us, however, that there comes a time when counsel is obliged to limit such conferences or accept the fact that he cannot always expect full remuneration for the time so consumed. This is particularly true in divorce actions. Some litigants will virtually take over counsel's office and absorb most of his time if permitted by counsel to do so. In determining what constitutes a fair and reasonable counsel fee, the trial court should consider not only the amount or value of the property involved, but also the intricacy and importance of the litigation, the labor and time involved, the skill required to draw the pleadings and the trying of the cause, the discovery procedures utilized, whether there existed complicated legal problems, the time required to try the cause, and whether written briefs were required. In the present case, and after considering the various factors alluded to in the preceding paragraph, we are of the opinion that the award of $2,500 attorney fees is excessive and that such fees be reduced to $800 plus the $200 awarded for the prosecution of the appeal, plus $85 costs, making a total of $1,085. Except as herein modified, the judgment is affirmed. No costs to be allowed either party on this appeal. HANSON and WOLLMAN, JJ., concur. BIEGELMEIER, P. J., concurs specially. HERTZ, Circuit Judge, sitting for WINANS, J., disqualified. BIEGELMEIER, Presiding Judge (concurring specially). I agree that both the award to defendant wife and allowance to counsel for fees were excessive, but believe this court has made too great a reduction in both. I otherwise agree with all that is said in the opinion.

536 U.S. 938 UNITED STATES HEALTHCARE SYSTEMS OF PENNSYLVANIA, INC.v.PENNSYLVANIA HOSPITAL INSURANCE CO. ET AL. No. 01-200. Supreme Court of the United States. June 24, 2002. 1 Sup. Ct. Pa. Certiorari denied. Reported below: 564 Pa. 407, 768 A. 2d 1089.

64 F.3d 671 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.FRANK J. MARTIN COMPANY and Olympus Lock Inc., Plaintiffs-Appellants,v.NATIONAL CABINET LOCK, INC., Defendant-Appellee. No. 95-1288. United States Court of Appeals, Federal Circuit. June 27, 1995. 1 APPEAL DISMISSED. ORDER 2 The appellant having failed to file the brief required by Federal Circuit Rule 31. (a) within the time permitted by the rules, it is 3 ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

65 F.3d 175 76 A.F.T.R.2d 95-6123 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Glen NIGHTENGALE; Ruby Nightengale, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 95-70239. United States Court of Appeals, Ninth Circuit. Submitted Aug. 16, 1995.*Decided Aug. 22, 1995. Before: ALARCON, FERNANDEZ and RYMER, Circuit Judges. 1 MEMORANDUM** 2 Glen and Ruby Nightengale appeal pro se the tax court's dismissal for failure to state a claim of their petition for redetermination of federal income tax deficiencies for tax years 1988 through 1991. They also appeal the denial of their motion to vacate the tax court's decision. We have jurisdiction pursuant to 26 U.S.C. Sec. 7482, and we affirm. 3 The Nightengales contend that the compensation they received from their employers is not taxable because their basis in their labor is equal to the amount of compensation they received. The tax court properly rejected this frivolous contention. See Carter v. Commissioner, 784 F.2d 1006, 1009 (9th Cir.1986); Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.1985). 4 Because we agree with the tax court that the Nightengales' petition was frivolous, we affirm the tax court's imposition of a penalty pursuant to 26 U.S.C. Sec. 6673. See Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir.1985) (per curiam). 5 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON July 19, 2012 Session CITY OF MEMPHIS CIVIL SERVICE COMMISSION v. STEVEN PAYTON Direct Appeal from the Chancery Court for Shelby County No. CH-11-0253-2 Arnold B. Goldin, Chancellor No. W2011-02501-COA-R3-CV - Filed November 7, 2012 SEPARATE CONCURRENCE ______________________________ HOLLY M. KIRBY, J., CONCURRING SEPARATELY: I concur in the majority’s holding that the followup drug screen at issue was not a “[r]ecord[] of the identity, diagnosis, prognosis, or treatment” of Mr. Payton, and therefore was not covered by 42 U.S.C.A. § 290dd-2(a). I write separately to clarify the status of the law in the wake of our decision. The case of Dickson v. City of Memphis Civil Service Comm’n, 194 S.W.3d 457 (Tenn. Ct. App. 2005), discussed at length in the majority opinion, held under similar facts that the results of the employee’s followup drug screen were inadmissible in the absence of a written consent form that complied with the federal regulations. The holding in Dickson was based on the premise – indeed, the assumption – that 42 U.S.C.A. § 290dd-2 was applicable to the results of the subject employee’s followup drug screen. In the case at bar, we hold that the followup drug screen was not a record of the patient’s “identity, diagnosis, prognosis, or treatment,” and so 42 U.S.C.A. § 290dd-2 is not applicable to a followup drug screen. This holding is directly contrary to the premise of this Court’s holding in Dickson. Our holding in this case is in accordance with what common sense tells us, that the purpose of the followup drug screen was to ensure the safety of the citizens who depend on the City’s firefighters, not to assist in Payton’s treatment. Indeed, in researching this issue to reach our decision in this case, this member of the Court found no case in the nation holding that followup drug testing is subject to Section 290dd-2. Such a holding would be at odds with the intent and purpose behind Section 290dd-2. A consent form that comports with the federal regulations must necessarily include a “statement that the consent is subject to revocation at any time” except under limited specific circumstances. 42 C.F.R. § 2.31(8). Requiring such a consent form would make the City’s EAP program untenable, because it would allow a firefighter who had completed substance abuse treatment and had been returned to active duty to simply revoke his consent to disclosure of the results of any followup drug tests. The City would thus be left with an active duty firefighter with a known history of substance abuse and no ability to do followup drug screens. Such a situation would leave the City with little choice but to scrap its substance abuse program and discharge employees with an addiction problem on the first offense. Clearly, then, any holding that the followup drug screens are protected under Section 290dd-2 would be contrary to the intent and purpose of that statute. I write separately to more fully explain my reasoning, and also to state expressly that our holding in this case abrogates the Court’s prior holding in Dickson v. City of Memphis Civil Service Comm’n. _______________________________________ HOLLY M. KIRBY, JUDGE -2- 

779 So.2d 247 (2000) JWM, INC. v. Dorothy M. RAINES. 2980636. Court of Civil Appeals of Alabama. January 7, 2000. Rehearing Denied April 28, 2000. *248 Edward G. Bowron and Michael A. Montgomery of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellant. John L. Moore IV, Mobile, for appellee. MONROE, Judge. Dorothy M. Raines sued her employer, JWM, Inc., for workers' compensation benefits claiming to have been injured in the line and scope of her employment. Raines claimed that as a result of the injury, she was permanently disabled. After a hearing, the trial court entered a judgment finding that Raines was permanently and totally disabled as a result of an on-the-job accident and awarding benefits accordingly. JWM appeals. JWM, a Mississippi corporation doing business in Alabama, contends that the trial court erred in awarding workers' compensation benefits to Raines because, it says, Raines was engaged in farm labor at the time of her injury and therefore, pursuant to § 25-5-50(a), Ala.Code 1975, is precluded from receiving workers' compensation benefits. The provisions of the Workers' Compensation Act do not apply to "an employer of a farm laborer." § 25-5-50(a). This court has explained the farm-laborer exception to the Act as follows: "[I]t is generally recognized that the exemption of farm labor from workmen's compensation coverage is construed according to the character of the work regularly performed by the employee, not according to the nature of the employer's business. See 1C A. Larson, The Law of Workmen's Compensation § 53.00 (1982). In other words, it is the nature of the work the employee does that determines whether he is a `farm laborer' for purposes of Ala.Code § 25-5-50 (1975). Therefore, generally speaking, the employer's business can be agricultural, but if the employee's work is nonagricultural or significantly disassociated from the normal routine of running a farm, the farm laborer exemption will not apply. On the other hand, if the specific employee's work is nonagricultural, but is such an indispensable part of the normal routine of running a farm that the job is not merely incidental to the farming operation, then the farm laborer exemption will apply." Patrick v. Miller, 440 So.2d 1096, 1097 (Ala.Civ.App.1983). Raines testified that she was injured on her first day of work for JWM. She said that her job was to gather trees in the field, bundle them together, and put them in a bag. Men would then load the bundles of trees onto a truck. James Morrison, the "principal" of JWM, Inc., said that he hired Raines to harvest pine and hardwood nursery stock. Bill Vinson, an occupational consultant, testified that he believed harvesting trees in a nursery constituted work in the forestry industry. In its judgment, the trial court said that it had looked to Minnesota workers' compensation law as persuasive authority in this instance because there was no Alabama law on point. See, Buchanan v. Pankey, 531 So.2d 1225 (Ala.Civ.App. 1988). One of the Minnesota cases relied upon by the trial court held, "To be considered a farm laborer, an individual must perform chores typically considered part of operating a farm and must perform those chores on a farm." Wurst v. Friendshuh, 517 N.W.2d 53, 56 (Minn.Ct.App.1994). The other case relied upon held, "Although it is the policy of the legislature to exempt farm labor from the Workmen's Compensation Act, we should not extend that policy by such a broad interpretation of the term as to include independent and separate commercial enterprises clearly not intended to be included within the meaning of `farm labor.'" Tucker v. Newman, 217 Minn. 473, 14 N.W.2d 767, 772 (1944). In applying those holdings to the facts in this *249 case, the trial court concluded that Raines was employed in the forestry industry and not as a farm laborer, and, therefore, that she was entitled to recover worker's compensation benefits. We must bear in mind that the Workers' Compensation Act is to be liberally construed to accomplish its beneficent purposes and that all doubts must be resolved in favor of the employee. Scott Paper Co. v. Smith, 600 So.2d 269 (Ala.Civ. App.1992). A trial court's factual findings based upon conflicting ore tenus evidence will not be disturbed on appeal unless they are "clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997). The trial court heard testimony regarding the nature of JWM's enterprise and the work performed by Raines. The trial court found that JWM is involved in the forestry industry and is not a farm. Evidence supports the findings that harvesting hardwood trees is not farm labor, that JWM is not a farm, and that Raines was not working as a farm laborer when she was injured. Furthermore, if we held that a job within the forestry industry was "farm labor," then conceivably workers involved in commercial activities within the timber and pulpwood industries could be held to be excluded from receiving workers' compensation benefits. If the employers in those industries lost the benefits provided them by the statutory provisions making workers' compensation benefits the employee's exclusive remedy for a work-related injury (see § 25-5-52, Ala.Code 1975), then they would be liable for such an injury in accordance with the ordinary rules of civil liability. It would appear that both the employee and the employer benefit from having the Workers' Compensation Act apply in this case. The judgment of the trial court is due to be affirmed. AFFIRMED. ROBERTSON, P.J., and YATES, J., concur. CRAWLEY and THOMPSON, JJ., dissent. CRAWLEY, Judge, dissenting. I conclude that the worker was engaged in farm labor at the time of her injury, and, therefore, that she is exempt from coverage under the Workers' Compensation Act, pursuant to Ala.Code 1975, § 25-5-50(a), which states in pertinent part: "This article and Article 2 of this chapter shall not be construed or held to apply to ... an employer of a farm laborer." As Judge Monroe states, this court has stated: "[T]he exemption of farm labor from [workers'] compensation coverage is construed according to the character of the work regularly performed by the employee, not according to the nature of the [company's] business." Patrick v. Miller, 440 So.2d 1096, 1097 (Ala.Civ.App.1983). This court has specifically held that a worker employed as a "general farm laborer" at a commercial dairy is a farm laborer and thus is not covered by the Workers' Compensation Act. Buchanan v. Pankey, 531 So.2d 1225 (Ala.Civ.App.1988). This court has also held that a worker employed to repair fences, clean stables, and feed livestock was a farm laborer and thus would not be included as an "employee" for the purpose of determining whether the employer had enough employees to be covered by the Act. Early v. Dunn, 615 So.2d 1209 (Ala.Civ.App.1992). This worker was injured the first day of her employment with the company. She described her work duties as follows: "A. Well, I went to the field to gather trees, 25 to the bunch; packaged *250 them together, inserted them in a bag and the men loaded them on the truck. And— "Q. Then what else were you required to do? "A. Well, we went in and they have spray nozzles that they fertilize the plants, and then the bags are lifted over to a conveyor belt. And the conveyor belt puts a metal band on it and then they are packed in bigger packages to be shipped." James Morrison, the company's principal, testified that the worker was hired to "harvest pine and hardwood nursery stock out of [a] nursery." The company had been the successful bidder on a state contract to harvest the trees from a state-owned pine and hardwood nursery. Mr. Morrison also testified that the company has workers' compensation coverage. Alabama courts have not addressed the issue whether duties such as those performed by this worker, harvesting and preparing trees at a pine and hardwood nursery, are farm-labor activities as contemplated by § 25-5-50. "The Alabama legislature adopted Minnesota's compensation law and the Minnesota court's interpretation of such law in 1919. Pow v. Southern [Constr.] Co., 235 Ala. 580, 180 So. 288 (1938). Today, Minnesota's construction of its workmen's compensation law serves as a source of persuasive value in those cases where Alabama law offers no guidance. Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 266 So.2d 276 (1972)." Buchanan, 531 So.2d at 1226. However, my research discloses that Minnesota has not addressed this precise issue, either. The trial court's order addressed the issue whether the worker is a farm laborer exempt from the Workers' Compensation Act: "The [company] did not operate a farm but instead was a successful bidder on a state contract to process seedlings. Because this precise question appears to have never been addressed in Alabama, the Court has looked to Minnesota Law, the source of our [workers' compensation] law, for persuasive authority on workers' compensation issues not yet addressed by our Courts.... `To be considered a farm laborer, an individual must perform chores typically considered part of operating a farm and must perform those chores on a farm.' Wurst v. Friendsuh [Friendshuh], 517 N.W.2d 53, 56 (Minn.App.1994). The Minnesota Courts have stated: `Although it is the policy of the legislature to exempt farm labor from the Workers' Compensation Act, we should not extend that policy by such a broad interpretation of the term as to include independent and separate commercial enterprises clearly not intended to be included within the meaning of "farm labor."` Tucker v. Newman, 217 Minn. 473, 481-82, 14 N.W.2d 767, 772 (1944). The Court concludes that the [worker] was engaged in work within the forestry industry, that the [company] was not operating a farm but instead was engaged in a commercial enterprise which the Court believes our legislature did not intend to be included in their definition of a farm." In its order, the trial court cited two Minnesota cases. In Tucker v. Newman, 217 Minn. 473, 14 N.W.2d 767 (1944), the Minnesota Supreme Court held that a worker employed to feed and care for foxes and minks that were raised on a farm for commercial sale was not a farm laborer. The employer operated a large traditional farm, raising crops and traditional livestock, such as horses, cattle, and sheep. The court held that "[w]ork may be farm labor if associated with farm activity, but if carried on as a commercial enterprise it is subject to the Workmen's Compensation Act." 217 Minn. at 478, 14 N.W.2d at 770. The court ruled that the fox and mink operation was a "substantial, commercial enterprise, separate and distinct from the farming activity." Id. *251 The court also cited Wurst v. Friendshuh, 517 N.W.2d 53 (Minn.App.1994). The court held in that case that a worker who milked dairy cows and performed related chores at a dairy farm was not exempt as a farm laborer, because the farm for which she worked had paid more than $8,000 to farm laborers for services rendered in the preceding year. Minn.Stat. § 176.021, subd. 11a. (1990), provides that farm laborers who work for farms that pay more than $8,000 a year to farm laborers are covered by the Minnesota Workers' Compensation Act. The company cites two Tennessee cases for its argument that harvesting trees is farm labor. In Ginn v. Forest Nursery Co., 165 Tenn. 9, 15, 52 S.W.2d 141, 142 (1932), the court described the worker's duties as "[tilling] the soil, [tending] growing plants, shrubs, and young trees, [preparing] them for market, and [delivering] them to a shipping point." The court concluded that such work was farm labor and that the worker was excluded from workers' compensation coverage. In Dills v. Tennessee Nursery Co., 188 Tenn. 241, 243, 218 S.W.2d 992, 993 (1949), the court described the worker's duties: "[H]e planted trees during the growing season, `dug them up,' `cultivated between the rows' and `planted seed, layed off the rows and cultivated them.' Also, `he dug and baled and got stuff ready for shipment and hauled to the freight office,' and did just `anything that needed to be done.'" I agree with the company that the work duties described in Ginn and Dills are almost identical to the worker's job duties in the present case. As stated above, Minnesota law has not addressed the issue whether a worker employed to harvest trees from a pine and hardwood nursery is a farm laborer. The trial court relied on Tucker and Wurst for the proposition that "commercial enterprises" distinct from farming operations are not exempt from the Minnesota Workers' Compensation Act. The trial court concluded that the company's pine and hardwood harvesting operation is also a "commercial enterprise" that is not a traditional farming operation. As this court stated in that portion of Patrick v. Miller quoted above, "the exemption of farm labor from [workers'] compensation coverage is construed according to the character of the work regularly performed by the employee, not according to the nature of the employer's business." I conclude that in this present case it is inappropriate to rely on the Minnesota cases because the trial court's reliance on those cases emphasized the company's business operations rather than the worker's job duties, in determining whether the worker was a farm laborer. Also, the holding in Wurst was based on the $8,000 statutory exemption of § 176.021, subd. 11a. Section 25-5-50 has no monetary exemption. Furthermore, Wurst involved a worker on a dairy farm, and, as stated above, this court has already held in Buchanan that a worker employed by a commercial dairy is a farm laborer exempt from our Workers' Compensation Act. Other Alabama statutes contemplate that the work performed in harvesting trees is to be considered an agricultural activity. Ala. Const.1901, Amend. 373, provides that agricultural property and forest property have the same ad valorem taxation classification. Ala.Code 1975, § 2-10-50(1), includes forestry products in the definition of "agricultural products," and § 2-10-50(5) includes production of forestry products in the definition of "production of agricultural products." Therefore, relying on the Tennessee cases of Ginn and Dills, as well as Alabama law defining agricultural terms and interpreting the term "farm labor," I conclude that the worker in this present case was, as a matter of law, at the time of her injury, a "farm laborer" within the meaning of § 25-5-50 and that she is therefore *252 exempt from the coverage of the Workers' Compensation Act. Although Alabama law requires me to conclude that the worker was engaged in farm labor at the time of her injury, I question the wisdom of the farm-labor exemption. Professor Larson states: "Many reasons, of varying degrees of validity, have been given to explain the agricultural exemption. The only one which seems to have much substance is the practical administrative difficulty that would be encountered by hundreds of thousands of small farmers in handling the necessary records, insurance, and accounting. If this is the reason, it ought to follow that the exemption should be confined to small farmers and not at the same time relieve from compensation responsibility the great fruit, truck, sugarcane, dairy, and wheat farms which have much more in common with industry than with old-fashioned dirt farming. With the exception mentioned, based on minimum number of employees or the hazardous or mechanical nature of the employment, this all-important distinction has been largely disregarded in the statutes. "Less convincing is the argument that the farmer cannot, like the manufacturer, add his compensation cost to the price of his product and pass it on to the consumer. This might be true if an isolated state attempted compulsory coverage, but if all states extended coverage to farm labor, there would be no competitive disadvantage so far as the domestic market is concerned. As to the disparity between the domestic and world market, that problem already exists, and will not become essentially different because of a slight change in one domestic agricultural cost factor. "Least convincing of all is the assertion that farm laborers do not need this kind of protection. Whatever the compensation acts may say, agriculture is one of the most hazardous of all occupations. In 1964, of 4,761,000 agricultural workers, 3,000 were fatally injured, while of 17,259,000 manufacturing employees, the number of fatalities was 2,000. "It is important to ask what valid reason lies behind the exemption in order to have some guide in construing the notoriously troublesome terms `farm' and `agriculture.' If, as is here suggested, that reason is one of administrative difficulty, one might expect to find that where the difficulty does not exist, due to the virtual industrialization of the agricultural activity, close questions of definition will be resolved in the direction of compensation coverage." Arthur Larson and Lex Larson, Larson's Workers' Compensation Law § 53.20 (1997) (footnote omitted). The continued validity of the farm-labor exemption is an issue for the legislature.

679 So.2d 477 (1996) NAB NATURAL RESOURCES, L.L.C., Plaintiff-Appellant, v. WILLAMETTE INDUSTRIES, INC., et al., Defendants-Appellees. No. 28555-CA. Court of Appeal of Louisiana, Second Circuit. August 21, 1996. Rehearing Denied September 19, 1996. *478 Nelson, Ltd., by Harry R. Nelson, Shreveport, for NAB Natural Resources, L.L.C. Hudson, Potts & Bernstein by W. Craig Henry, for Co-Trustee of the Roy and Christene Sturgis Charitable and Educational Trust. McConnell & Slattery by Charles E. McConnell, Springhill, for Homer Manufacturing Company and Garland Anthony, Jr. Shaw, Weaver & Henry by Patrick E. Henry, Baton Rouge, for Intervenors. Blanchard, Walker, O'Quin & Roberts by Robert W. Johnson, Shreveport, for Willamette Industries, Inc. Liskow & Lewis by Cheryl V. Cunningham, John M. Wilson, New Orleans, for Nations Bank of Texas, N.A., Trustee for the Roy and Christene Sturgis Charitable and Educational Trust. Napper, Waltman, Madden, Rogers & Waltman by O.L. Waltman, Jr., Ruston, for Willamette Industries, Inc. Weems, Wright, Schimpf, Hayter & Carmouche by John O. Hayter III, Shreveport, for Sarah Broughton, et al. Before SEXTON, NORRIS and WILLIAMS, JJ. WILLIAMS, Judge. In this action for damages based on breach of contract, the plaintiff, NAB Natural Resources, L.L.C., and intervenors, Ann B. King, individually and as usufructuary and as trustee, Kathryn Lillard and Stephen King, appeal a trial court judgment granting partial summary judgment in favor of the defendants, Willamette Industries Inc., Homer Manufacturing Company, John Speer, Robert Speer, Sarah Broughton, Beatrice Speer, Lucy Roseberry, Marie Speer and Nations Bank of Texas. The trial court dismissed all of the plaintiff's and intervenors' claims, except those claims for damages arising from defendants' alleged failure to maintain fences, soil and residual trees on the land. For the following reasons, we affirm. FACTS This dispute arises from two written agreements between F.B. King ("King") and Homer Manufacturing Company ("Homer") concerning the sale of timber on certain lands in Claiborne Parish. The plaintiff and intervenors are successors-in-interest to King, and the defendants are Homer and its assigns and successors. The first contract, dated November 25, 1947, involved approximately 5,400 acres of land. In February 1948, the parties executed the second contract, which involved approximately 1,450 acres of land. King received payments of $155,000 for existing and future timber under the first contract and $45,000 for such timber under the second contract. As set forth in each contract, defendants acquired the right to use the land to grow timber, wood and other forest products, to conserve and promote the supply and growth of timber on the property and to remove and market this timber for a term of 40 years. Defendants were required to pay the annual property taxes as rent. Under the terms of each agreement, King agreed to terminate the farming operations on the land, evict all but one of the existing tenant farmers and remove all existing improvements from the subject land at his expense. King warranted title to the land and reserved the right to hunt and fish on the property, conduct oil and gas activities and permit an existing tenant to farm on 200 acres of the land. *479 At some point prior to the termination of the contracts, the plaintiff observed that defendants were "clear-cutting" timber on the land. Plaintiff gave written notice to defendants, alleging breach of the contracts and demanding that defendants conduct forestry operations in accord with the terms of the agreements. Subsequently, plaintiff filed this action, in which the intervenors join, seeking damages and an accounting. Prior to trial, the defendants filed a motion for partial summary judgment regarding those claims alleging that the contracts required defendants to produce a sustaining yield of timber and return the property to plaintiff in a reforested condition. The trial court granted defendants' motion and dismissed the claims of plaintiff and intervenors, except for those seeking damages for defendants' alleged failure to maintain fences, soil, land surface and residual trees. The court found that the agreement between the parties was a contract of sale, which created a separate estate in the timber on the land for the period of the contract. Plaintiff and intervenors unsuccessfully filed a motion for new trial. This appeal followed. DISCUSSION LSA-C.C.P. Art. 966 provides that a party, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief sought. After "adequate discovery" or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. LSA-C.C.P. Art. 966C. Plaintiff and intervenors ("plaintiffs") argue that the provisions of recently amended LSA-C.C.P. Art. 966 apply retroactively to this case. They contend that the defendants' motion for partial summary judgment was premature because the parties had not completed adequate discovery. Procedural and interpretive laws apply retroactively unless there is legislative expression to the contrary. LSA-C.C. Art. 6. Procedural laws describe methods for enforcing, administering or determining rights, liabilities or status. La. D.O.T.D. v. Hellenic, Inc., 93-0870 (La.App. 1st Cir. 4/8/94), 636 So.2d 1004. Article 966 establishes the proper method for obtaining summary judgment and thus it is a procedural rule applicable to the present case. The record includes the pleadings, the defendants' motion for partial summary judgment, answers to interrogatories, memoranda and affidavits filed in opposition to the motion, and copies of the original contracts between King and Homer. Plaintiffs complain that defendants did not submit affidavits with their motion for partial summary judgment and that discovery had not been completed when the motion was filed. However, Article 966 provides that a party may file a motion for summary judgment without affidavits and does not require completion of discovery before the court may rule on such a motion. Under the circumstances, Article 966 did not preclude the filing of defendants' partial summary judgment motion or its consideration by the trial court. The plaintiffs' argument lacks merit. In several assignments of error, the plaintiff and intervenors ("plaintiffs") argue the trial court erred in granting the defendants' motion for partial summary judgment and in dismissing plaintiffs' claims for damages based on defendants' failure to implement a forestry plan for producing a sustained yield of timber, to replant the land and remove undesirable growth, and on defendants' removal of timber not purchased under the contracts of 1947 or 1948. Plaintiffs contend that material facts are in dispute between the parties. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. When a motion for summary judgment is made and supported, an adverse *480 party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial. Miramon v. Woods, 25,850 (La.App. 2d Cir. 6/22/94), 639 So.2d 353. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Kelly v. Sneed, 27,171 (La.App. 2d Cir. 8/23/95), 660 So.2d 118. In the present case, the record shows that the original parties, King and Homer, entered into contracts and their validity is not contested. The payment of the agreed sale price and the annual taxes is not disputed. The parties agree that the defendants did not replant the land or implement a sustained yield forestry plan. However, the plaintiffs contend that the question of whether the contracts constitute a sale or lease represents a disputed issue of material fact precluding summary judgment. A fact is material if its existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Facts are "material" if they potentially ensure or preclude recovery, affect the litigant's ultimate success or determine the outcome of a legal dispute. Smith v. Our Lady of the Lake Hospital, 93-2512 (La. 7/5/94), 639 So.2d 730; Miramon v. Woods, supra. Here, the fact that the contract grants a lease of the land does not, in itself, determine the duties of the parties or the outcome of the case, and thus is not "material" in that sense. After reviewing the record, we do not find that there are material facts at issue. The assignment of error lacks merit. We now consider whether defendants are entitled to judgment as a matter of law. Plaintiffs argue the trial court erred in finding that defendants are entitled to partial summary judgment as a matter of law. Plaintiffs contend that the contracts obligated defendants to conduct operations to grow timber, to implement a plan for sustained yield forestry management and to leave a reforested stand of trees upon termination of the lease. Ordinarily, the meaning and intent of the parties to a written instrument should be determined within the four corners of the document, and its terms cannot be explained or contradicted by extrinsic evidence. Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741; Billingsley v. Bach Energy Corp., 588 So.2d 786 (La.App. 2d Cir.1991). When a contract is subject to interpretation from the four corners of the instrument, without the necessity of extrinsic evidence, that interpretation is a matter of law. Brown v. Drillers, Inc., supra. In the present case, the contracts at issue involve the sale of all existing and future timber and give lessee the right to use the land to grow and cut forest products at will. This right "is in the nature of a lease of said land...." See McCain v. Continental Can Company, Inc., 299 So.2d 454 (La.App. 2d Cir.1974); and see IP Timberlands Operating Co. v. Denmiss Corp., 93-1637 (La. App. 1st Cir. 5/23/95), 657 So.2d 282. Plaintiffs assert that the agreements obligated defendants to conduct continuous forestry operations to produce a sustaining yield of timber. Paragraph one of both contracts provides that the buyer is acquiring "the right to use said lands in the future ... for the purpose of growing timber, wood and other forest products and promoting the supply, stand and growth of timber ... on the land and removing and marketing the same from time to time and at will...." The contracts expressly state that the buyer: shall have the right to cut and remove all timber ... from said property or from any part thereof repeatedly, at such times as it may elect during the life of this contract and the removal of all or a part of the timber ... from said property or any portion thereof, one or more times, shall not terminate or affect the BUYER'S right at subsequent times to remove timber and other forest products that may be on said property or may grow thereon during the life of this contract; all of which rights are subject to payment of taxes on the property... as herein provided. Contrary to plaintiffs' assertion, the plain meaning of this language cannot be construed *481 to create an obligation on the part of defendants to produce a certain amount of timber for the benefit of the landowner. The plaintiffs contend that language in paragraph two of the contracts indicates that King expected to receive the benefit of a standing forest upon termination of the lease. However, a reasonable reading of this provision does not support plaintiffs' contention. Paragraph two states that King is executing the contracts in order to retain ownership of the land without the expense of paying taxes and to secure "the benefits that will accrue to the SELLER from the operations of the BUYER on said property in order that the SELLER may avail himself of all the benefits of present and prospective oil, gas and mineral rights...." Reading this provision in context with the remaining contract provisions shows that the benefits expected by King were the preservation of his mineral rights without production and protection against unauthorized encroachments on the land. Plaintiffs argue that the defendants, as lessees, were obligated to utilize the property as a prudent administrator for the purpose of promoting the supply of timber and to return the property in good condition as reforested timberland upon termination of the lease. LSA-C.C. Art. 2710 provides that the lessee is obligated to enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease, and to pay rent. The plaintiffs' argument is based on the assertion that the lease required the defendants to grow and manage the supply of timber for the benefit of plaintiffs. We have already noted that the plain wording of the contracts does not support this argument. The instruments gave defendants the right to use the lands for the purpose of growing and removing timber at their option, and did not impose any obligation to reforest. The only limit on the defendants' right to remove timber is found in paragraph eleven of the agreements, which prohibits defendants from cutting at any time any pine tree measuring less than five inches in diameter, except as necessary to conform with good forestry practices or to construct roads. Under this provision, defendants were required upon termination of the lease to return the land containing all trees smaller than the stipulated size at the time of their final cut. Whether the defendants complied with this condition is an issue remaining before the trial court for disposition, as acknowledged by defendants at the motion hearing and in their brief to this court. After reviewing the record and the express language contained in the instruments, we conclude that the defendants were entitled to a judgment as a matter of law on the issues presented in their motion. The assignments of error lack merit. Plaintiffs also argue that they are entitled to recover based on the legal theory of unjust enrichment. They contend that the purchase price stipulated in the contracts paid only for the timber standing on the land in 1947 and 1948. However, the plain wording of the agreements contradicts the plaintiffs' contention. The contracts expressly provide that the consideration paid covered all rights and privileges, "in addition to the purchase of the timber, wood and other forest products presently on said property." This argument lacks merit. CONCLUSION For the foregoing reasons, the trial court's partial summary judgment in favor of the defendants is affirmed. Costs of this appeal are assessed to the plaintiff, NAB Natural Resources, L.L.C., and the intervenors, Ann Breed King, individually and as usufructuary and trustee, Kathryn King Lillard and Stephen King. AFFIRMED. APPLICATION FOR REHEARING Before SEXTON, NORRIS, WILLIAMS, STEWART and GASKINS, JJ. Rehearing denied.

Cite as 2016 Ark. 408 SUPREME COURT OF ARKANSAS IN RE AMENDMENT TO RULES Opinion Delivered November 17, 2016 GOVERNING ADMISSION TO THE BAR, RULE VII(C)(17) PER CURIAM On June 18, 2015, we adopted as final the Arkansas Bar Association’s recommendation concerning amendments to Rule VII(C) of the Rules Governing Admission to the Bar. In re Amendments to Rules Governing Admission to the Bar, Rule VII, 2015 Ark. 280 (per curiam). The rule as amended provides for the automatic suspension of attorneys who fail to pay the annual fee by the final deadline of April 15 following three pre-suspension notices. The rule also requires the court to identify attorneys so suspended in per curiam opinions following the final deadline each year and requires the clerk of this court to mail a copy of the per curiam opinions to each suspended attorney and to all judges in the state. The list attached to the most recent Rule VII per curiam opinion is 29 pages in length and identifies 763 suspended attorneys, the vast majority of whom have failed to pay the annual fee for several years. See In re Updated List of Attorneys Suspended for Failure to Pay 2016 Annual Attorney-License Fee, 2016 Ark. 260 (per curiam). Additionally, it appears that many of those suspended attorneys have failed to keep current their contact information on file with the clerk as required by Rule VII(F) as many of the copies of the per curiam opinions sent to the suspended attorneys were returned as undeliverable. In other words,  Cite as 2016 Ark. 408 many of these 763 attorneys appear to have abandoned their licenses to practice law, and further attempts to notify these attorneys is likely futile and a waste of court resources. Today, we amend Rule VII(C)(17) as set out below to provide that attorney licenses that have been or that become suspended for more than three (3) consecutive years for failure to pay annual fees shall be deemed surrendered voluntarily, and the names of those attorneys shall be removed from the roster of licensed attorneys. This amendment is effective immediately. RULES GOVERNING ADMISSION TO THE BAR Rule VII. Application for license. .... C. SUSPENSION FOR FAILURE TO PAY FEE .... (17) If a suspension is for more than three (3) consecutive years, the attorney shall be deemed to have surrendered his or her license voluntarily, and the attorney’s name shall be removed from the roles of licensed attorneys. To be reinstated, application must be made to the Board of Law Examiners by the suspended attorney on a form supplied by the Executive Secretary of the Board and accompanied by a tender of all unpaid license fees and penalties and a Board reinstatement fee of $100. 2 

UNITED STATES DISTRICT COURT F I h E D FOR THE DISTRICT OF COLUMBIA .|AN 3 1 2012 ~C|erk, U.S. Dlst_rict,& Bankrupf€y Lent Christopher Carr, II, ) Courts for the District of columbia ) Plaintiff, ) ) v. ) Civil Action N0. ) Eric Holder et al., ) ) Defendants. ) MEMORANDUM OPINION This matter is before the Court on review of plaintiffs pro se complaint and application to proceed in forma pauperis. The application will be granted and the complaint will be dismissed pursuant to 28 U.S.C. § l9l5A (requiring dismissal of a prisoner’s complaint upon a determination that the complaint fails to state a claim upon which relief may be granted). Plaintiff is an inmate at the United States Penitentiary Hazelton in Bruceton Mills, West Virginia, suing for monetary damages under Bivens v. Sz`x Unknown Named Agems of F ederal Bureau ofNarcotics, 403 U.S. 388 (1971). He challenges "Defendant[’s] fraudulent induced indictment, conviction and sentence," Compl. at 2, resulting from proceedings in the United States District Court for the Eastern District of N0rth Carolina. See id. at 4. Specif`ically, plaintiff claims that the sentencing court lacked jurisdiction over the criminal case, Id. Because the success of plaintiffs claim would necessarily void his conviction, plaintiff cannot recover monetary damages under Bivens without first showing that he has invalidated the conviction by "revers[al] on direct appeal, expunge[ment] by executive order, declar[ation of invalidity] by a state tribunal authorized to make such deterrnination, or . . . a federal court’s issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see, e.g., Taylor v. U.S. Bd. ofParole, 194 F.2d 882, 883 (D.C. Cir. 1952) (stating that a motion to vacate under 28 U.S.C. § 2255 is the proper vehicle for challenging the constitutionality of a statute under which a defendant is convicted); Oj0 v. I.N.S., 106 F.3d 680, 683 (5"‘ Cir. 1997) (explaining that the sentencing court is the only court with jurisdiction to hear a defendant’s complaint regarding errors that occurred before or during sentencing). Plaintiff has not shown the invalidation of his conviction and, thus, has failed to state a claim upon which relief can be granted under Bz'vens. A separate Order of dismissal accompanies l/ nited S `strict judge j. / M€)l)#? Date:.lanuary ,2012 this Memorandum Opinion.

876 F.2d 106 Celani (Frederick George)v.U.S. NO. 88-2238 United States Court of Appeals,Seventh Circuit. MAY 12, 1989 1 Appeal From: C.D.Ill. 2 AFFIRMED.

73 F.Supp.2d 44 (1999) Eyleen MATIAS-GONZALEZ Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security Administration, Defendant. Civil Action No. 98-40132-NMG. United States District Court, D. Massachusetts. September 21, 1999. Bruce E. Hopper, Worcester, MA, for plaintiff. Rayford A. Farquhar, United States Attorney's Office, Boston, MA, for defendant. MEMORANDUM AND ORDER GORTON, District Judge. Plaintiff Eyleen Matias-Gonzalez ("Matias-Gonzalez" or "Plaintiff") brings this action to review the dismissal by Defendant Kenneth S. Apfel, Commissioner of the Social Security Administration ("SSA") ("Defendant" or "the Commissioner") of her claim for benefits under Title XVI of the Social Security Act ("the Act"). Pending before this Court are 1) a motion by Defendant to dismiss this action for lack of subject matter jurisdiction (Docket No. 3), on the grounds that a "final decision" of the Commissioner, a prerequisite under the Act for judicial review, is lacking; and 2) a motion by Plaintiff to amend the complaint (Docket No. 7). I. Procedural Background The procedural facts in this case, albeit somewhat convoluted and confusing, are *45 critical to the pending motions and thus warrant close attention in this opinion. On March 31, 1993, Matias-Gonzalez filed an application for supplemental security income ("SSI") alleging disability commencing November 22, 1992 ("Application No. 1"). Application No. 1 was denied on May 14, 1993 and was not further appealed. On October 7, 1993, Matias-Gonzalez filed a second application for SSI alleging disability commencing January 1992 ("Application No. 2") due to alleged heart problems, numbness in her legs, breathlessness, dizziness and chest pains. Application No. 2 was denied initially on February 4, 1994 and upon reconsideration on April 1, 1994. Subsequently, Matias-Gonzalez filed a request for hearing on May 26, 1994 and was heard before an Administrative Law Judge ("ALJ") nearly one year later on May 2, 1995. On June 21, 1995, the ALJ issued a decision denying Application No. 2. On August 18, 1995, Matias-Gonzalez filed a timely request for review of the decision of the ALJ. During the pendency of the appeal of Application No. 2, the SSA misplaced the file relating to Application No. 2.[1] According to Plaintiff, SSA offices in Fitchburg and Worcester, Massachusetts, Phoenix, Arizona, and Falls Church, Virginia, could not locate her file. Plaintiff maintains that during the time her file was missing, she attempted to submit additional new evidence pertaining to Application No. 2. However, Plaintiff was informed that the SSA was unable to receive and process any additional evidence on her application because her file could not be located. Plaintiff alleges that she was, therefore, unable to submit her additional evidence for consideration by the Appeals Council. United States Senator John Kerry, Congressman James McGovern and members of their respective staffs attempted to locate the file to no avail. According to Plaintiff, the SSA eventually advised plaintiff, through her counsel, to reapply for benefits.[2] As a result, Matias-Gonzalez reapplied for benefits on October 3, 1996 with a claimed onset of disability of January 1, 1992 ("Reapplication No. 2"). Reapplication No. 2 was denied initially and again upon reconsideration. Shortly thereafter, the Application No. 2 file mysteriously reappeared and, on November 21, 1996, the Appeals Council denied plaintiff's August 1995 request for review of the denial of Application No. 2, thereby rendering the ALJ's determination a final decision, subject to judicial review. See Da Rosa v. Secretary of Health and Human Services, 803 F.2d 24, 25 (1st Cir.1986). No civil action seeking judicial review of that decision was filed. On June 3, 1997, Plaintiff filed a timely request for hearing before an ALJ with respect to the denial of Reapplication No. 2. On July 22, 1997, Senior Attorney Advisor Constance Carter, with respect to Reapplication No. 2, found the claimant disabled since the filing date of that reapplication. On September 4, 1997, an ALJ issued an order dismissing the June 3, 1997 request for hearing stating, "The Attorney Advisor Decision stands as the final decision of the Social Security Administration on the issue of the claimant's disability." Upon learning of the attorney advisor's decision, Plaintiff promptly requested, on November 3, 1997, that the Appeals Council reopen Application No. 2, alleging, inter alia, new and material evidence to substantiate her claims of pain and inability to perform sustained sedentary work. On *46 May 13, 1998, the Appeals Council denied Plaintiff's request to reopen, on the grounds that Plaintiff had failed to request reopening within the two-year time limit, in accordance with 20 C.F.R. § 416.1488. According to Matias-Gonzalez, notice of that denial was received by Plaintiff's counsel on or about May 18, 1998. On July 16, 1998 (within 60 days of her receipt of such notice), Matias-Gonzalez filed a civil action with this Court with respect to Application No. 2. II. Motion to Dismiss Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of administrative decisions on claims arising under Title II of the Social Security Act, stating, in relevant part: Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Section 205(h) further provides that [t]he findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. 42 U.S.C. § 405(h). The Supreme Court has held that section 205(g) of the Act provides the sole avenue of judicial review for Social Security disability claims. Heckler v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) The Commissioner maintains that this Court lacks jurisdiction over this action because there is no "final decision of the Commissioner made after a hearing" within the meaning of section 205(g) of the Act. Specifically, the Commissioner argues that section 205(g) does not authorize judicial review of its May 13, 1998 decision to deny Matias-Gonzalez's request to reopen Application No. 2. Indeed, this Court acknowledges that the decision of the Commissioner not to reopen a prior application is generally not subject to judicial review. Califano v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court, however, has recognized the availability of judicial review where a denial of a petition to reopen is challenged on constitutional grounds. Califano, 430 U.S. at 109, 97 S.Ct. 980 (noting that "when constitutional questions are in issue, the availability of judicial review is presumed"); see Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir.1991); see also Jones v. Dep't of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir.1991)(holding that a decision not to reopen a prior determination is reviewable when a colorable constitutional claim is raised). Here, plaintiff's argument on appeal appears to be one based, inter alia, on due process grounds. At a hearing held on July 27, 1999, Plaintiff informed this Court that, during the pendency of her August 18, 1995 request for review, she tried in vain to provide the Appeals Council with new and material evidence. According to Plaintiff, she was informed that the SSA's negligent misplacement of her file precluded the receipt of new and material evidence with respect to Application No 2.[3] Therefore, when the Appeals Council finally found her file and then issued its denial on November 21, 1996, that alleged new evidence was not in the file for its consideration. Plaintiff argues that her *47 right to due process of law in the handling of her claim was violated because she was improperly denied the opportunity to present new and material evidence to the Appeals Council for its consideration. In light of Plaintiff's colorable due process challenge against the Commissioner's decision not to reopen Application No. 2, this Court determines that it has jurisdiction over this case.[4] Accordingly, the Commissioner's motion to dismiss will be denied. Furthermore, to the extent that the Commissioner contends that Matias-Gonzalez missed her opportunity to seek judicial review on account of her failure to file a civil action within 60 days of the action taken by the Appeals Council on November 21, 1996, this Court takes exception and, although unnecessary to its decision, makes the following observations for the sake of completeness: 1) As Plaintiff pointed out to this Court at the hearing, at the time the Appeals Council denied her request for review of Application No. 2 on November 21, 1996, Reapplication No. 2 had already been filed and was pending. 2) Plaintiff maintains that the resolution of Reapplication No. 2 could have mooted any appealable issues regarding Application No. 2. 3) Without knowing the outcome of Reapplication No. 2, Plaintiff was unable to determine whether it was necessary to seek judicial review or to request the Appeals Council to reopen Application No. 2. 4) Shortly after learning of the Attorney Advisor Decision issued on July 22, 1997, Plaintiff properly requested the Appeals Council to reopen Application No. 2. III. Motion to Amend the Complaint In response to the Commissioner's motion to dismiss, Plaintiff moved to amend her Complaint. In light of the Court's decision herein, however, the original complaint correctly states the relevant decision of the Appeals Council and need not be amended. Therefore, Plaintiff's motion to amend the complaint will be denied as moot. ORDER For the foregoing reasons, Defendant's motion to dismiss (Docket No. 3) is DENIED, and Plaintiff's motion to amend the complaint (Docket No. 7) is DENIED. The Court anticipates that a motion to remand and/or to otherwise dispose of this appeal will be promptly forthcoming. So ordered. NOTES [1] The subsequent confusion presented by this case is, therefore, a direct result of the SSA's negligence in case file management and tracking. [2] The government does not dispute the plaintiff's assertion that the SSA misplaced Matias-Gonzalez's file and advised her to resubmit her application. [3] Plaintiff was told that, due to the SSA's inability to locate her file, the SSA lacked a "place" to file any additional evidence pertaining to Application No. 2 and was therefore incapable of receiving that evidence. [4] 20 C.F.R. § 422.210(c) provides that 1) the 60-day limitations period (set forth in Section 205(g) of the Act) starts from the date notice is received by the claimant and 2) receipt of notice shall be presumed to occur five days after the date of such notice, unless there is a reasonable showing otherwise. Accord Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984). Accordingly, it is undisputed that the filing of this civil action by the plaintiff on July 16, 1998, complied with the 60-day limitation.

328 S.C. 627 (1997) 494 S.E.2d 431 Sally McCORMICK, Appellant, v. Kent ENGLAND, M.D., and Michael Meyers, M.S.W., Defendants, of whom Kent England, M.D., is Respondent. No. 2751. Court of Appeals of South Carolina. Heard November 4, 1997. Decided November 17, 1997. Rehearing Denied January 22, 1998. *630 J. Brent Kiker, of Svalina, Richardson & Larson, Beaufort, and James B. Richardson, Jr., of Svalina, Richardson & Larson, Columbia, for Appellant. Hutson S. Davis, Jr. and Scott A. Seelhoff, both of Davis, Tupper, Grimsley & Seelhoff, Beaufort, for Respondent. ANDERSON, Judge: Sally McCormick filed a complaint alleging that her physician, Kent England, breached a duty of confidentiality by disclosing information about her emotional health during a divorce proceeding involving her former husband. The special circuit court judge struck the allegation from the complaint, finding it did not state a cause of action. McCormick appeals. We hold South Carolina shall recognize a cause of action for a physician's breach of a duty of confidentiality. Accordingly, we reverse and remand. FACTUAL/PROCEDURAL BACKGROUND Dr. England was the family physician for McCormick, her former husband, and their children. McCormick and her husband became involved in a divorce action in which custody of the children was at issue. In support of his Motion for Emergency Relief and a Restraining Order, McCormick's husband submitted two letters to the family court regarding McCormick's emotional status. One letter was from a licensed social worker, defendant Michael Meyers, who alleged that McCormick had a severe drinking problem which caused her to be a danger to herself and to her family. The other letter was prepared by Dr. England and was addressed "To Whom It May Concern." In his letter, Dr. England diagnosed McCormick as suffering from "major depression and alcoholism, acute and chronic." Further, Dr. England stated the children had experienced school difficulties due to the family *631 discord caused by McCormick's drinking. He stated it was his medical opinion that McCormick was "a danger to herself and to her family with her substance abuse and major depressive symptoms," and concluded that she required hospitalization. There is no indication in the record that the letter was prepared under court order.[1] McCormick brought this action for negligence, libel, invasion of privacy, outrage, breach of confidence, and civil conspiracy against Dr. England and Meyers. She alleged in her fifth cause of action for breach of confidence that Dr. England and Meyers had breached "a duty of non-disclosure of confidential communications with the plaintiff concerning her mental health conditions" by publishing and disseminating these confidential communications to the public "in direct contravention of South Carolina statutory law." Specifically, McCormick alleged a duty of confidentiality existed pursuant to S.C.Code Ann. § 19-11-95 (Supp.1996), entitled "Confidences of patients of mental illness or emotional conditions." Dr. England filed a motion to strike the fifth cause of action for breach of confidence on the basis the facts alleged failed to constitute a cause of action.[2] At the hearing on the motion, McCormick additionally relied on the Physicians' Patient Records Act, S.C.Code Ann. §§ 44-115-10 to -150 (Supp.1996), which prohibits the disclosure of medical records without the patient's consent. The judge granted the motion to strike the breach of confidence action as to Dr. England, stating, "It is well known that South Carolina does not recognize the physician-patient privilege at common law." The judge found there was no statutory duty of confidentiality alleged that was applicable to Dr. England. The judge noted that, under its terms, § 19-11-95 applies only to licensed psychologists, counselors, family therapists, social workers, and registered nurses. Therefore, *632 the statute did not apply to Dr. England. Further, since the letter did not disclose any medical records as such, the judge found the "duty of confidentiality" imposed by the Records Act, §§ 44-115-10 to -150, was also inapplicable. Finally, the judge found that, in any event, there was no breach of confidence resulting from Dr. England's disclosures because "the letter was written out of necessity and for the express purpose of protecting others as well as [McCormick] herself due to her mental and emotional condition at that time." McCormick filed a motion to alter or amend the order in which she argued that a physician's duty of confidentiality exists under the common law, and that her cause of action should not have been stricken if she was entitled to recovery under any theory. The judge denied the motion, stating he would have considered allowing McCormick to amend her pleadings to allege a cause of action for common law breach of confidence, but that he was not convinced such a duty exists since South Carolina does not recognize the physician-patient privilege. He also noted that any damages which might be recovered could be recovered under her claim for invasion of privacy. Finally, the judge found that even if a cause of action for breach of a duty of confidentiality existed, Dr. England's letter would not violate that duty "because it was necessary in the proceeding before the court for the protection of [McCormick] and her family that the information be disclosed to the court." McCormick appeals, arguing the trial court erred in finding South Carolina does not recognize the tort of breach of confidence applicable to the physician-patient relationship, in deciding an issue of first impression on a motion to strike, and in holding the publication was not a breach of the duty of confidentiality. ISSUE Does South Carolina recognize a cause of action for a physician's breach of the duty of confidentiality? STANDARD OF REVIEW A motion to strike which challenges a theory of recovery in the complaint is in the nature of a motion to dismiss under Rule 12(b)(6), SCRCP. A ruling on a motion to *633 dismiss a claim must be based solely on the allegations set forth on the face of the complaint. The motion cannot be sustained if the facts alleged and the inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case. See Dye v. Gainey, 320 S.C. 65, 463 S.E.2d 97 (Ct.App.1995). The question is whether in the light most favorable to the plaintiff, and with every reasonable doubt resolved in her behalf, the complaint states any valid claim for relief. The cause of action should not be struck merely because the court doubts the plaintiff will prevail in the action. Id. at 68, 463 S.E.2d at 99. LAW/ANALYSIS McCormick argues the trial court erred in finding South Carolina does not recognize the common law tort of breach of confidence as applied to the physician-patient relationship.[3] We agree. Whether a separate tort action for a physician's breach of a duty of confidentiality exists under the common law is a novel issue in this state. Dr. England contends South Carolina courts have previously ruled that no duty of confidentiality exists between a physician and patient; therefore, there can be no action for its breach. He cites Aakjer v. Spagnoli, 291 S.C. 165, 173, 352 S.E.2d 503, 508 (Ct.App.1987), wherein this Court stated, "There is no physician-patient privilege in South Carolina." "At common law neither the patient nor the physician has the privilege to refuse to disclose in court a communication of one to the other, nor does either have a privilege *634 that the communication not be disclosed to a third person." 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 169 (1981) (emphasis added). Although many states have statutorily created a "physician-patient testimonial privilege," South Carolina has not enacted a similar statute and does not recognize the physician-patient privilege. Peagler v. Atlantic Coast Line R.R. Co., 232 S.C. 274, 101 S.E.2d 821 (1958) (statutes have been enacted in most states making communications between a physician and patient privileged from compulsory disclosure, but there is no such statute in South Carolina). However, the absence of a testimonial privilege prohibiting certain in-court disclosures is not determinative of our issue because this evidentiary privilege is distinguishable from a duty of confidentiality. As our Supreme Court recently observed in South Carolina State Board of Medical Examiners v. Hedgepath, 325 S.C. 166, 480 S.E.2d 724 (1997): "The terms `privilege' and `confidences' are not synonymous, and a professional's duty to maintain his client's confidences is independent of the issue whether he can be legally compelled to reveal some or all of those confidences, that is, whether those communications are privileged." Id. at 169, 480 S.E.2d at 726. Hedgepath was a disciplinary proceeding against a physician rather than a private action seeking damages for breach of confidence; however, it involves facts strikingly similar to the case on appeal. In Hedgepath, a physician, who initially acted as the family therapist for a married couple and then as an individual therapist for the wife, prepared an affidavit for use at a family court hearing. The physician provided the affidavit to the husband's attorney without consulting or obtaining permission from the wife. The affidavit was not compelled by subpoena or other legal process. The State Board of Medical Examiners disciplined the physician for misconduct for breaching a duty of confidentiality imposed by the regulations governing the medical profession. See 26 S.C.Code Ann. Regs. 81-60(D) (Supp.1996) ("A physician shall respect the rights of patients ... and shall safeguard patient confidence within the constraints of the law."). The Board is authorized to discipline a physician for misconduct pursuant to S.C.Code Ann. § 40-47-200 (Supp.1996). The circuit court reversed, finding a South Carolina physician has no ethical duty to maintain a patient's confidences. *635 The court reasoned that since no law prohibited the physician from making the affidavit, the regulation had not been violated. The Supreme Court reversed and reinstated the Board's decision. The court held that a physician commits misconduct when he reveals a patient's confidences where the revelation is neither compelled by law (i.e. by subpoena or statute) nor consented to by the patient. The Supreme Court found the circuit judge erred in finding no duty of confidentiality exists in South Carolina merely because the state does not recognize the physician-patient evidentiary privilege. The court concluded the physician violated Reg. 81-60(D) when he voluntarily provided an affidavit which revealed confidences entrusted to him by the wife. The Supreme Court explained that "Reg. 81-60(D) enjoins a physician to maintain his patients' confidences within the constraints (or limitations) of the law." Id. at 169, 480 S.E.2d at 726. Although the Supreme Court recognized that physicians owe their patients a duty of confidentiality within the limits of the law, it did not address whether a breach of the duty is actionable as a separate tort. Breach of Physician's Duty of Confidentiality as Independent Tort A person who lacks medical training usually must disclose much information to his or her physician which may have a bearing upon diagnosis and treatment. Such disclosures are not totally voluntary; therefore, in order to obtain cooperation, it is expected that the physician will keep such information confidential. See generally 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 169 (1981). "Being a fiduciary relationship, mutual trust and confidence are essential." Id. at § 167. The belief that physicians should respect the confidences revealed by their patients in the course of treatment is a concept that has its genesis in the Hippocratic Oath, which states in pertinent part: "Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all such should be kept secret." Taber's Cyclopedic Medical Dictionary 902 (17th ed. 1993). *636 The modern trend recognizes that the confidentiality of the physician-patient relationship is an interest worth protecting. See generally Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, 82 Colum.L.Rev. 1426 (1982). A majority of the jurisdictions faced with the issue have recognized a cause of action against a physician for the unauthorized disclosure of confidential information unless the disclosure is compelled by law or is in the patient's interest or the public interest.[4]See, e.g., Hammonds v. Aetna Cas. & Sur. Co., 243 F.Supp. 793 (N.D.Ohio 1965); Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973); Vassiliades v. Garfinckel's, 492 A.2d 580 (D.C.1985); Leger v. Spurlock, 589 So.2d 40 (La.Ct.App.1991); Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113 (1985), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Saur v. Probes, 190 Mich.App. 636, 476 N.W.2d 496 (1991); Brandt v. Medical Defense Assocs., 856 S.W.2d 667 (Mo.1993) (en banc); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920); Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962); Estate of Behringer v. Medical Ctr. at Princeton, 249 N.J.Super. 597, 592 A.2d 1251 (Law Div.1991); MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801 (N.Y.App.Div.1982); Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985) (en banc); Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134 (1974); Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814 (1958); Morris v. Consolidation Coal Co., 191 W.Va. 426, 446 S.E.2d 648 (1994). In the absence of express legislation, courts have found the basis for a right of action for wrongful disclosure in four main sources: (1) state physician licensing statutes, (2) evidentiary rules and privileged communication statutes which prohibit a physician from testifying in judicial proceedings, (3) common law principles of trust, and (4) the Hippocratic Oath and principles of medical ethics which proscribe the revelation of patient confidences. Vassiliades v. Garfinckel's, 492 A.2d 580, 590 (D.C.1985).[5] The jurisdictions that recognize the duty of *637 confidentiality have relied on various theories for the cause of action, including invasion of privacy, breach of implied contract, medical malpractice, and breach of a fiduciary duty or a duty of confidentiality. See generally Judy E. Zelin, Annotation, Physician's Tort Liability for Unauthorized Disclosure of Confidential Information About Patient, 48 A.L.R.4th 668 (1986). In Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973), Horne's physician disclosed information to his employer, contrary to his express instructions. Horne alleged that the doctor-patient relationship was a confidential relationship which created a fiduciary duty by the doctor, that the unauthorized release of information breached the fiduciary duty, and further, that it violated the Hippocratic Oath, constituting unprofessional conduct. The Supreme Court of Alabama held there was a confidential relationship between a physician and patient which imposed a duty upon the physician not to disclose information concerning the patient obtained in the course of treatment. The court noted that, although the state had not enacted the physician-patient testimonial privilege, this did not control the issue of liability of a physician for unauthorized extra-judicial disclosures of such information. The court stated it is "important *638 that patients seeking medical attention be able to freely divulge information about themselves to their attending physician without fear that the information so revealed will be frivolously disclosed[.]" Id. at 829. In Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962), the Supreme Court of New Jersey stated that, ordinarily, a physician receives information relating to a patient's health in a confidential capacity and should not disclose such information without the patient's consent except where the public interest or the private interest of the patient so demands. Id. at 349. The court observed that it was not concerned with the physician-patient privilege because "it deals with testimony in a judicial proceeding." Id. at 348. The court explained the importance of the physician-patient duty of confidentiality: "A patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled." Id. at 349. In Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134 (1974), Schaffer brought an action against her psychiatrist, Dr. Spicer, for wrongfully disclosing confidential information. Dr. Spicer gave a detailed affidavit concerning Schaffer's mental health to her ex-husband's attorney during litigation seeking a change of custody of their children. Schaffer relied on a statute which provided that, unless the patient consents, a physician cannot be examined in a civil action as to any information acquired in treating the patient. Id. at 136. The court noted that "[t]he physician-patient privilege expresses a long-standing policy to encourage uninhibited communication between a physician and his patient." Id. at 138. After noting that when a court is called upon to determine custody of children it must consider all relevant circumstances, including the fitness of each parent, the court stated that it was not concerned with what the doctor might be compelled to disclose if he were a witness giving evidence in a judicial proceeding. Rather, the court observed that the affidavit was first published to a third party, the attorney for Schaffer's exhusband, not to a court upon its order. The court quoted with approval the case of Hammonds v. Aetna Casualty & Surety *639 Co., 243 F.Supp. 793 (N.D.Ohio 1965), wherein the Ohio District Court of Appeals stated that even if a plaintiff waived a testimonial privilege, it did not authorize a private conference between a doctor and opposing counsel because there is a "duty of secrecy" and a "duty of loyalty in litigation" which should not be breached. Id., 215 N.W.2d at 137. In reversing the trial court's granting of summary judgment, the Supreme Court of South Dakota concluded there was insufficient evidence that the privilege had been waived in this case. Id. at 137-38. There is evidence that South Carolina has a public policy in favor of maintaining the confidentiality of physician-patient relationships. In Hodge v. Shea, 252 S.C. 601, 168 S.E.2d 82 (1969), our Supreme Court stated that the physician-patient relationship is a confidential relationship.[6] Further, South Carolina's legislature has recognized a physician's duty to maintain confidences gained in the course of treatment and has empowered the State Board of Medical Examiners to discipline physicians for the unauthorized disclosure of patient confidences. See S.C.Code Ann. § 40-47-200 (Supp.1996); 26 S.C.Code Ann. Regs. 81-60(D) (Supp.1996). In Hedgepath, our Supreme Court ruled that Reg. 81-60(D) required a physician to maintain patient confidences within the limits of the law. Although Reg. 81-60(D) does not in itself create civil liability for an unauthorized disclosure, at least one court has found that such a provision unquestionably establishes a physician's duty of confidentiality. See Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527, 535 (1985) (en banc) (in which the Supreme Court of Oregon stated that the actionable wrong lies in the breach of duty in a confidential relationship, whereas a statute providing for the disciplining of a physician who divulges a professional secret "only establishes the duty of secrecy in the medical relationship."). The South Carolina legislature has also recently enacted the Physicians' Patient Records Act, S.C.Code Ann. §§ 44-115-10 to -150 (Supp. 1996), which prohibits a physician's disclosure of a patient's medical records without the patient's consent. *640 We find the reasoning of the cases from other jurisdictions persuasive on this issue and today we join the majority and hold that an actionable tort[7] lies for a physician's breach of the duty to maintain the confidences of his or her patient in the absence of a compelling public interest or other justification for the disclosure. Existence of Remedy for Invasion of Privacy In the order from the motion for reconsideration, the trial court rejected the common law tort of breach of confidence, explaining, "I do not tarry too long with concern because in my opinion any damages which might be recovered if such a cause of action existed can here be recovered in the invasion of privacy cause of action." Although there may be some overlap between the two, we find the existence of a cause of action for invasion of privacy should not preclude our recognition of an independent tort for a physician's breach of confidence because the actions are distinguishable. Invasion of privacy consists of the public disclosure of private facts about the plaintiff, and the gravamen of the tort is publicity as opposed to mere publication. The defendant must intentionally reveal facts which are of no legitimate public interest, as there is no right of privacy in public matters. In addition, the disclosure must be such as would be highly offensive and likely to cause serious mental injury to a person of ordinary sensibilities. Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2 (Ct.App. 1989). Thus, an invasion of privacy claim narrowly proscribes the conduct to that which is "highly offensive" and "likely to cause serious mental injury." This standard is not consistent with the duty attaching to a confidential relationship because it focuses on the content, rather than the source *641 of the information. The unauthorized revelation of confidential medical information should be protected without regard to the degree of its offensiveness. The privacy standard would not protect information that happens to be very distressing to a particular patient, even though the individual would likely not have revealed it without the expectation of confidentiality. Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, supra, at 1441. Further, the requirement of "publicity" is a limitation which would preclude many cases involving a breach of confidentiality. Publicity involves disclosure to the public, not just an individual or a small group. Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 (Ct.App.1984). See also Swinton Creek Nursery v. Edisto Farm Credit, 326 S.C. 426, 483 S.E.2d 789 (Ct.App.1997) (a communication to an individual or even a small group does not give rise to liability unless there is some breach of contract, trust, or confidential relationship which will afford an independent basis for relief). However, where the information disclosed is received in confidence, "one can imagine many cases where the greatest injury results from disclosure to a single person, such as a spouse, or to a small group, such as an insurance company resisting a claim. A confidential relationship is breached if unauthorized disclosure is made to only one person not a party to the confidence, but the right of privacy does not cover such a case." Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, supra, at 1442. The Note distinguished invasion of privacy from an action for breach of confidentiality: Privacy is a right against the public at large. Its doctrinal limits narrowly circumscribe the zone of proscribed conduct in order to prevent hindrance of public expression. In contrast, a right to confidentiality exists against a specific person, who, by virtue of his relationship to the confider, has notice of the duty to preserve the secrecy of clearly identifiable information. Privacy's doctrinal limits are thus unnecessary in breach-of-confidence situations, and should not bar recovery to plaintiffs deserving of a remedy. Id. at 1440. Limitations on Liability Although many jurisdictions recognize a cause of action for breach of the duty of confidentiality, they do not hold that this *642 duty is absolute. Public policy requires that where it is reasonably necessary to protect the interest of the patient or others, a physician may breach the duty to maintain patient confidentiality. The Utah Supreme Court explained, "Where life, safety, well-being or other important interest is in jeopardy, one having information which could protect against the hazard, may have a conditional privilege to reveal information for such a purpose...." Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814, 817-18 (1958). See also Mull v. String, 448 So.2d 952 (Ala.1984) (disclosure of patient information allowed when patient's health is at issue in litigation); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920) (disclosure of information about a highly contagious disease is privileged and not a breach of the duty of confidentiality). In Saur v. Probes, 190 Mich.App. 636, 476 N.W.2d 496, 499-500 (1991), the Michigan Court of Appeals found "[t]he issue whether the disclosures were reasonably necessary to protect the interests of [the] plaintiff or others is one for the jury [where] the facts are such that reasonable minds could differ." In Estate of Behringer v. Medical Center at Princeton, 249 N.J.Super. 597, 592 A.2d 1251, 1268-69 (Law Div.1991), the New Jersey court discussed a variety of exceptions to the duty of confidentiality. In South Carolina, our legislature has determined that, under certain circumstances, the public interest may demand disclosure of information gained by physicians in their professional capacity. See, e.g., S.C.Code Ann. § 20-7-510 (Supp. 1996) (physicians receiving information in their professional capacity that a child may have been physically or mentally abused or neglected must report the abuse); S.C.Code Ann. § 20-7-540 (Supp.1996) (providing persons required to report child abuse pursuant to § 20-7-510 are immune from civil and criminal liability which might otherwise result and that the person's good faith compliance is rebuttably presumed); S.C.Code Ann. § 20-7-550 (Supp.1996) (abrogating "[t]he privileged quality of communication" between any professional person and his or her patient for reports made regarding the abuse or neglect of children); S.C.Code Ann. § 44-29-146 (Supp.1996) (stating "[a] physician or state agency identifying and notifying a spouse or known contact of a person having... (HIV) infection or ... (AIDS) is not liable for damages resulting from the disclosure."). Statements that the physician *643 is "immune from civil ... liability" and "is not liable for damages resulting from the disclosure" constitutes an implicit recognition of liability for a physician's breach of the duty of confidentiality. See Brandt v. Medical Defense Assocs., 856 S.W.2d 667, 670 (Mo.1993) (en banc) ("By providing specific exemptions to the physician's fiduciary duty of confidentiality, these statutes implicitly acknowledge that, in the absence of such an exemption, there would be a breach of this duty...."). Dr. England claims that in McCormick's attempt to establish a duty of physician-patient confidentiality she failed to recognize §§ 20-7-510 and -550. These statutes are only applicable to reports made to the county department of social services or to a law enforcement agency by persons required or permitted to report child abuse or neglect. The statutes do not directly provide immunity to a physician who writes a "To Whom It May Concern" letter that is submitted in a family court proceeding. It would exceed the legislative intent for this Court to extend these statutes to the disclosure in the present case. See Singletary v. South Carolina Dep't of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct.App.1994) (all rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the purpose of the statute). However, the public policy of protecting the welfare of children through disclosure by physicians and other professionals, as evidenced in §§ 20-7-510, -540 and -550, should be considered in deciding if Dr. England's disclosures were privileged from the duty of confidentiality. Because this claim for breach of confidence was decided on a motion to strike, the record is incomplete on whether the disclosure was necessary for the protection of the children and we make no comment in this regard. On remand, the court should consider whether under the circumstances Dr. England's disclosures were privileged. CONCLUSION For the foregoing reasons, we hold South Carolina should recognize the common law tort of breach of a physician's duty of confidentiality. Patients have the right to be candid in *644 their disclosures of private information to their physicians without fearing this information will be disseminated throughout the community. However, this right is not absolute and must give way when disclosure is compelled by law or is in the best interest of the patient or others. Prospective Application This decision shall apply only to this case and to causes of action arising after the filing of this opinion. Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213 (1985) (the general rule is that decisions creating new substantive rights have prospective effect only); Grooms v. Medical Soc'y of South Carolina, 298 S.C. 399, 380 S.E.2d 855 (Ct.App.1989) (a court decision recognizing a new tort will not be applied to claims that arise before the effective date of the decision). Without expressing any opinion on the merits of the claim, we REVERSE AND REMAND the case sub judice to the circuit court for proceedings consistent with this decision. CONNOR and HUFF, JJ., concur. NOTES [1] Dr. England states in his brief that he prepared his letter in lieu of attending a family court hearing, for which he had been issued a subpoena. However, his letter is dated February 21, 1995, while the date on the subpoena appears to be April 1, 1995. The trial court did not mention the subpoena. [2] This appeal concerns only the disposition of the cause of action against Dr. England. [3] On appeal, McCormick concedes that § 19-11-95 is inapplicable to Dr. England. Further, she does not challenge the judge's finding that the Records Act, §§ 44-115-10 to -150, does not afford relief in this instance since McCormick's medical records were not disclosed. Rather, she asserts only that her cause of action should not have been stricken because a duty of confidentiality exists under the common law. Although we are aware that an issue normally may not be raised for the first time in a Rule 59 motion if it could have been raised previously, the judge addressed the common law theory in his order and no argument is raised on appeal that the issue should have been precluded from consideration. Therefore, we shall assume the issue was properly preserved. [4] Some jurisdictions have rejected recovery for a physician's breach of the duty of confidentiality. E.g., Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965). [5] In Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113, 119 (1985), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985), the Supreme Judicial Court of Massachusetts observed, "The courts that have imposed on physicians a duty of confidentiality and have recognized a cause of action to enforce that duty have grounded their decisions on the determination that public policy favors the protection of a patient's right to confidentiality. Courts have found indications of that public policy in statutes creating a testimonial privilege with respect to confidential communications between a patient and a physician and in licensing statutes that authorize the suspension or revocation of a license to practice medicine if a doctor divulges a professional secret without authorization. The absence of statutes of that type, however, does not indicate that no public policy favoring a patient's right to confidentiality exists. No testimonial privilege statute existed in Alabama when the Supreme Court of Alabama decided Home v. Patton, supra. Nor did such a statute exist in New Jersey when the Supreme Court of New Jersey decided Hague v. Williams, supra. The principle that society is entitled to every person's evidence in order that the truth may be discovered may require a physician to testify in court about information obtained from a patient in the course of treatment. However, that principle has no application to disclosures made out of court. Hence, it does not preclude a cause of action based on such disclosures." [6] In Hodge, the court recognized the physician-patient relationship was a confidential one and addressed the duty of good faith and fair dealing in financial transactions. However, the court did not discuss a duty of confidentiality that would prevent the unauthorized disclosure of patient information. [7] "[T]he duty of confidentiality, where it exists, generally arises out of broadly applicable societal norms and public policy concerning the kind of relationship at issue. It does not arise out of specific agreement or particularized circumstances. Moreover, the object of the law when this duty is violated is compensation for the resulting injuries, not fulfillment of expectation. Therefore, liability should be grounded in tort law." Alan B. Vickery, Note, Breach of Confidence: An Emerging Tort, supra, at 1451.

714 So.2d 939 (1998) James H. BROWN, Commissioner of Insurance for the State of Louisiana v. ASSOCIATED INSURANCE CONSULTANTS, INC. and Associated Auditors, Inc. James H. BROWN, Commissioner of Insurance for the State of Louisiana v. PHYSICIANS MEDICAL INDEMNITY ASSOCIATION, INC., Physicians Medical Indemnity Association (A Risk Retention Group a/k/a Physicians Mutual Indemnity Association). James H. BROWN, Commissioner of Insurance for the State of Louisiana v. LEME REINSURANCE LIMITED, Numa, Inc., Eric T. Schmidt, John O'Brien, and Gary Bennett. Nos. 97 CA 1396 to 97 CA 1398. Court of Appeal of Louisiana, First Circuit. June 29, 1998. *940 Gary McGoffin, Lafayette, for Plaintiff/Appellee Robert A. Bourgeois and Louisiana Receivership Offices, Inc. Jerry F. Pepper, Baton Rouge, for Defendant/Appellant Associated Finance Corporation, et al. David L. Guerry, Baton Rouge, for Defendant/Appellant Del Norte, Inc. Before FOIL, WHIPPLE and KUHN, JJ. WHIPPLE, Judge. This is an appeal by certain entities included in a single business enterprise ("SBE") from a judgment of the trial court, maintaining an exception of no right of action and dismissing their application for an injunction. For the following reasons, we affirm. PROCEDURAL HISTORY These consolidated matters involve the efforts of the Commissioner of Insurance to liquidate twelve business entities comprising the "Lloyd's Assurance SBE."[1] By judgment rendered June 21, 1994, the trial court ruled that the entities had violated LSA-R.S. 22:733(A)(13) through diversion of the insurers' assets, fraud affecting the insurers and other illegal conduct indicating that the insurers' assets were endangered and diminished, leading to the insolvency of the Lloyd's Assurance SBE. Thus, the trial court ordered liquidation of the entities comprising the Lloyds Assurance SBE. Subsequently, *941 by order dated October 9, 1996, Robert A. Bourgeois was appointed interim Receiver, Rehabilitator and Liquidator with respect to the Lloyd's Assurance SBE, to act in the stead of James Brown, Commissioner of Insurance for the State of Louisiana. On January 28, 1997, nine of the entities comprising the Lloyd's Assurance SBE, appearing through parties identified in the pleading as their "stakeholders," filed an Application for Injunction and Temporary Restraining Order, seeking to enjoin the transfer of certain mortgage notes which had been owned by these entities. The application for injunction and TRO named as defendants Bourgeois; the Louisiana Receivership Offices, Inc. ("the LROI"); and Del Norte, Inc. The applicants averred that Bourgeois and the LROI had pooled and offered at auction sale real estate mortgages formerly belonging to entities within the Lloyd's Assurance SBE and that Del Norte, Inc. was the successful high bidder. However, the applicants averred that the "net bid price" was substantially less than the fair market value of these assets. Thus, they asserted that the sale would result in substantial losses to the Lloyd's Assurance SBE and should be restrained or enjoined. The trial court denied the request for a TRO and scheduled a hearing on the application for injunctive relief. Thereafter, Bourgeois and the LROI filed various exceptions, including an exception raising the objection of no right of action. On the day of the hearing on the application for preliminary injunction, the applicants filed a "First Amending and Supplemental Application for Injunction (and Writ of Quo Warranto)," in which the identity of the "stakeholders" was revealed as Eric T. Schmidt and John P. O'Brien, shareholders of these entities. Following the hearing on the request for preliminary injunction, the trial court maintained the exception of no right of action filed by Bourgeois and the LROI. In oral reasons for judgment, the trial court stated as follows: Considering the arguments that I have heard here today and the evidence which has been presented, the court is of the opinion that when this company was placed in liquidation back on June 21, 1994 by Judge Landry, that since then the Commissioner has in fact exercised his right of supervision of these various estates, he formed the L.R.O. Mr. Bardwell was appointed to handle these matters. The successor to Mr. Bardwell is Mr. Bourgeois. The Court is of the opinion that Mr. Bourgeois is in fact the proper party to be handling these matters and that the exceptions should be granted and the Court so orders. By judgment dated February 13, 1997, the trial court maintained the exception of no right of action, dismissing the application for injunction. From this judgment, Schmidt and O'Brien filed a motion and order for suspensive appeal. However, the trial court granted a devolutive appeal. See LSA-C.C.P. art. 3612. DISCUSSION The peremptory exception pleading the objection of no right of action tests whether the particular plaintiff falls, as a matter of law, within the particular class to which the law grants a remedy for the particular harm alleged. LSA-C.C.P. art. 927(A)(5); Stafford Construction Company, Inc. v. Terrebonne Parish School Board, 612 So.2d 847, 851 (La.App. 1st Cir.1992), writ denied, 614 So.2d 82 (La.1993). This objection is a threshold device to terminate a suit brought by one who has no interest in enforcing judicially the right asserted. Stafford, 612 So.2d at 851. Evidence supporting or controverting the exception is admissible, but the objection of no right of action cannot be used simply because there may be a valid defense to the proceeding. To prevail on the exception of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. Falco Lime, Inc. v. Plaquemine Contracting Co., Inc., 95-1784, pp. 5-6 (La.App. 1st Cir. 4/4/96); 672 So.2d 356, 359. Appellants, Schmidt and O'Brien, argue that as stockholders of the entities in *942 liquidation, they have a direct interest in preventing waste of assets of the Lloyd's Assurance SBE, and, as such, they have a right to seek to enjoin the sale and transfer of the mortgage notes in question.[2] We disagree. Louisiana Revised Statutes 22:732 et seq. provide a statutory scheme for rehabilitation and liquidation of domestic insurers. If liquidation or rehabilitation is ordered under this scheme, the trial court directs the Commissioner of Insurance to take possession of the property, business and affairs of the insurer and to rehabilitate or liquidate it, as the case may be. LSA-R.S. 22:735; Bernard v. Fireside Commercial Life Insurance Company, 633 So.2d 177, 185 (La.App. 1st Cir.1993), writ denied, 93-3170 (La.3/11/94); 634 So.2d 839. The Commissioner is vested with title to "all property, contracts, and rights of action of the insurer as of the date of the order directing rehabilitation or liquidation." LSA-R.S. 22:735(A). Where a liquidation order has been entered, the Commissioner shall then proceed to liquidate the property. LSA-R.S. 22:737(A). In furtherance of this duty, the Commissioner may sell or otherwise dispose of property, upon obtaining court approval. LSA-R.S. 22:737(B). Thus, the court has a function in overseeing the actions of the Commissioner. The officers, directors, owners and agents of the insurer, among others, are charged with a statutory duty to "cooperate with the commissioner in any proceeding under this Part." LSA-R.S. 22:734.1(A). Additionally, LSA-R.S. 22:734 gives the court authority to issue an injunction restraining the insurer and its officers and agents from transacting any insurance business or disposing of its property and to "issue such other injunctions or enter such other orders as may be deemed necessary to prevent interference with the proceedings, ... or to prevent interference with the conduct of the business by the commissioner of insurance...." This statutory scheme for the liquidation and/or rehabilitation of insurers is comprehensive and exclusive in scope. LeBlanc v. Bernard, 554 So.2d 1378, 1383 (La. App. 1st Cir.1989), writ denied, 559 So.2d 1357 (La.1990). There is no place in this scheme for the entities under order of liquidation to seek to enjoin the sale of assets, approved by the court, to achieve liquidation. To allow the very entities which the Commissioner is charged with liquidating to object to the actions of the Commissioner in furtherance of the liquidation order would clearly allow these entities, through their shareholders, to interfere with the powers and duties of the Commissioner in liquidation, and, in effect, to collaterally attack the liquidation order. See Bernard, 633 So.2d at 185. Clearly a right of action does not exist in favor of these entities. Moreover, any attempt by these entities to enjoin the Commissioner (through the appointed liquidator) from performing his role as liquidator would clearly violate the exclusivity of the rehabilitation scheme provided by law. See LSA-R.S. 22:734, 734.1(A); see also Bernard, 633 So.2d at 185. We, therefore, find no error in the trial court's judgment maintaining the exception of no right of action. CONCLUSION For the above and foregoing reasons, the February 13, 1997 judgment, maintaining the exception of no right of action and dismissing the application for injunction, is affirmed. Costs of this appeal are assessed against Eric T. Schmidt and John P. O'Brien. AFFIRMED. NOTES [1] The Lloyd's Assurance SBE is comprised of the following business entities: Associated Agencies, Inc.; Associated Auditors, Inc.; Associated Insurance Consultants, Inc.; Associated Underwriter, Inc.; GEMAR, Inc.; LEME Reinsurance Limited; Lloyd's Assurance of Louisiana, A Louisiana Partnership; Lloyd's Assurance of Louisiana, Inc.; Physician's Medical Indemnity Association, Inc.; and Physician's Medical Indemnity Association (A Risk Retention Group). [2] In briefs to this court, appellees, Bourgeois, the LROI and Del Norte, Inc., aver that the basis of appellants' appeal, i.e., enjoining the transfer of the mortgage notes, is now moot. They assert that formal assignment of the notes took place on February 14, 1997. However, there is no evidence in the record to support this assertion. Pursuant to LSA-C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Our Lady of the Lake Hospital v. Vanner, 95-0754, pp. 3-4 (La. App. 1st Cir. 12/15/95); 669 So.2d 463, 465. Thus, we do not address the issue of mootness.

333 F.2d 592 George C. LEVIN and James V. Hallisey, as Trustees in Reorganization of the Estates of Swan-Finch Oil Corporation, Keta Gas and Oil Company and Swan Finch Petro Chemical Corporation, Plaintiffs-Respondents.v.RUBY TRADING CORPORATION, Lowell M. Birrell, Herbert A. Birrell, Harry Casper and Lois B. Morrill, Defendants,Peter Jakobson Corporation, Peter Jakobson, Applicants for Intervention-Appellants. No. 458. Docket 28786. United States Court of Appeals Second Circuit. Argued May 5, 1964. Decided June 9, 1964. William M. Kahn, New York City (David W. Kahn and William M. Kahn, New York City) (Emil & Kobrin, New York City) (Lawrence A. Kobrin and Loren A. Wittner, New York City, of counsel), for appellants. James V. Hallisey, New York City (George C. Levin, James V. Hallisey, New York City), for respondents. Before WATERMAN, FRIENDLY and SMITH, Circuit Judges. FRIENDLY, Circuit Judge. 1 This action was brought in the District Court for the Southern District of New York in August, 1962, by the Trustees in Reorganization of Swan-Finch Oil Corporation, Keta Gas and Oil Company, and Swan Finch Petro Chemical Corporation. The complaint alleged that various frauds on these companies had been perpetrated by Lowell Birrell commencing in May, 1954; that he controlled Ruby Trading Corporation, which in 1944 had acquired an apartment house at 1050 Park Avenue, New York City; that in 1951 Ruby Trading deeded the property to Lowell's brother, Herbert; that in March, 1962, Herbert executed a five-year lease to Peter Jakobson; and that the deed to Herbert and the lease to Jakobson were in fraud of creditors. Jakobson was served, but Herbert Birrell, who was in Canada, was not. The court made an order appointing a receiver, 213 F.Supp. 638 (S.D.N.Y.1962), which this court affirmed on the basis that "a reversal of this order might render nugatory and futile further action by Judge Palmieri," 313 F.2d 140, cert. denied, Jakobson v. Levin, 375 U.S. 813, 84 S.Ct. 44, 11 L.Ed.2d 49 (1963); the receiver cancelled Jakobson's lease under a termination clause. Plaintiffs then discontinued the action against Jakobson. They later amended their complaint to add as a defendant Lois B. Morrill, to whom various mortgages on the property had been assigned, allegedly in fraud of creditors; she answered. 2 Meanwhile, in January, 1963, Herbert Birrell, still in Canada, transferred title to a Nevada corporation, Empire Associates, Inc., wholly owned by him; in February Empire entered into a contract to sell the property to Peter Jakobson Corporation (hereafter the Corporation). The contract provided for a closing "when title to the property is quieted and clear," except for certain mortgages, and any receiver was removed. The Corporation promised to use its best efforts to these ends; Empire undertook to cooperate and Herbert Birrell agreed to appear as a witness. When the attorneys for the Corporation informed the district judge of the contract, he enjoined its recording. Jakobson and the Corporation then sought to intervene, the former in his status as lessee, which he claimed not to have been validly terminated, the latter to protect its position as "contractvendee." Denial of both applications led to this appeal. 3 We must first consider the question of our jurisdiction despite the failure of the parties to do so. Where the sole ground urged for reversal of an order denying permissive intervention is abuse of the trial judge's discretion, we would be reluctant to permit the fragmentation and delay that would result from allowing such orders to be appealed, at least so long as the applicant has "other adequate means of asserting his rights." See Cresta Blanca Wine Co. v. Eastern Wine Corp., 143 F.2d 1012 (2 Cir. 1944); Ford Motor Co. v. Bisanz Bros., Inc., 249 F.2d 22, 26-27 (8 Cir. 1957). On the other hand, it is settled law that if an applicant is entitled to intervene as of right an order denying intervention is appealable. Brotherhood of Railroad Trainmen v. Baltimore & O. R. R. Co., 331 U.S. 519, 524-525, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). See also Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19 (1951); Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). Since this makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm. Cf. Cameron v. President and Fellows of Harvard College, 157 F.2d 993, 997 (1 Cir. 1946); contrast Farmland Irrigation Co. v. Dopplmaier, 220 F.2d 247, 248 (9 Cir. 1955), holding that if intervention was sought as a matter of right, denial was appealable even though the court concluded the assertion was unwarranted. Since we decide that the appellants were entitled to intervene as of right, Brotherhood of Railroad Trainmen sustains our jurisdiction to decide this. 4 The principal ground for denying intervention was the judge's belief that Jakobson and the Corporation were fronting for Herbert Birrell and that to allow them to intervene would further Herbert's plan to remain beyond the reach of the court's processes save in the role of a witness, in which he would enjoy immunity from service to the extent recognized in In re Equitable Plan Co., 277 F.2d 319 (2 Cir. 1960). Whatever pertinence such considerations may have to a decision which is committed to the trial judge's discretion, they are of no consequence when the applicant has a right to intervene under Federal Rule 24 (a), as we find was true of both Jakobson and the Corporation. Furthermore, whatever bearing such thoughts might have as to the Corporation, whose interest in the property arose from transactions by Herbert in Canada several months after this action was instituted against him and after the appointment of the receiver, we fail to see their relevance to the interest of Jakobson as lessee, a status created prior to Herbert's departure for Canada and, indeed, five months before this action was brought, and which the plaintiffs originally thought sufficient to warrant naming Jakobson as a defendant. Such a case comes squarely within F.R.Civ.Proc. 24(a) (3), granting intervention of right "when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof." See 4 Moore, Federal Practice, ¶24.09 [3] (2d ed. 1962). It may be that Jakobson could institute a separate action to require the receiver to disgorge the excess of rents over necessary expenditures, which, if the lease was not validly terminated, belong to Jakobson.1 But Rule 24 (a) (3) requires only that the applicant be "adversely affected" by the disposition in the proceeding, not that he be altogether without other means of asserting his rights; furthermore the most appropriate forum for determining the validity of the receiver's action is surely the court that appointed him. 5 The Corporation's application ought also to have been granted. The Corporation's interest as contract vendee of property over which the court had assumed control could be "adversely affected" by this proceeding. It was thus entitled to intervene as of right under Rule 24(a) (3). See Gaines v. Clark, 51 App.D.C. 71, 275 F. 1017 (1921). Moreover, the Corporation would qualify for permissive intervention under F.R.Civ. Proc. 24(b), on the basis that its "claim or defense and the main action have a question of law or fact in common," unless there was sufficient reason for denying this. We cannot see that there was, and although we should not have been inclined to entertain the appeal on this ground alone, it constitutes an added reason for reversal. Although the court understandably wished to be in a position to render a judgment effective against Herbert Birrell, a combination of F.R. Civ.Proc. 4(e) and §§ 314 and 315 of the New York CPLR or their predecessors has always permitted this so far as his interests in the real property were concerned. True, neither service by publication nor representation by the Corporation if that should be found, see A.L.I. Restatement of Judgments, § 85, would empower the court to render an effective judgment against Herbert Birrell with respect to moneys alleged to have been wrongfully withdrawn by him from the property, as an appearance on his part would. But this is an inadequate reason for failing to get ahead with the principal subject of the action, the interests asserted by plaintiffs in the real property. If they are found to be wrong, the issue of Herbert Birrell's personal liability will never be reached; if they are found to be right, they will at least have the property or some interest in it. 6 Reversed. Notes: 1 The judge's opinion suggests that the validity of the receiver's termination isres judicata as a result of a previous order of the district court and an "affirmance" by a single judge of this Court without opinion. An affidavit of Jakobson's describes the nature of these proceedings quite differently. Since counsel for the Trustees has not favored us with an appendix save for reprinting his memorandum in the district court, and a passage from this rather substantiates appellant's contention, we do not regard the issue as thus foreclosed.

206 Wis.2d 549 (1996) 557 N.W.2d 469 Richard SCHWERSENSKA, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Travis J. Menge, and Michael Neitzke, Defendants-Respondents. No. 95-3620. Court of Appeals of Wisconsin. Submitted on briefs October 11, 1996. Decided November 21, 1996. *550 For the plaintiff-appellant the cause was submitted on the briefs of Gordon S. Johnson, Jr. of Berlin. For the defendant-respondent the cause was submitted on the brief of Russell W. Wilson and Matthew E. Yde of Ruder, Ware & Michler, S.C., of Wausau. Before Dykman, P.J., Vergeront and Deininger, JJ. DYKMAN, P.J. On March 6, 1994, Travis Menge, while a passenger in Michael Neitzke's car, shot Richard Schwersenska in the left arm. Schwersenska was driving a pickup truck following Neitzke's car. Schwersenska filed suit against Menge, Neitzke and American Family Mutual Insurance Company, which had issued a homeowners policy to Neitzke's parents. The policy covered Neitzke. American Family moved for summary judgment, arguing that its homeowners policy specifically excluded coverage for the claims alleged against Neitzke. The trial court granted American *551 Family's motion because the policy excluded coverage for bodily injury or property damage "which is expected or intended by any insured." Schwersenska appeals, arguing that summary judgment is not appropriate because a jury, not the court, should determine whether Neitzke intended to cause bodily injury. We conclude that Neitzke's intent to injure can be inferred from his conduct as a matter of law. We therefore affirm.[1] BACKGROUND On Friday, March 4, 1994, Neitzke, then twenty-two years old, was struck on the side of the face with a snowball at the car wash in Berlin, Wisconsin. Neitzke confronted the individual who threw the snowball and grabbed him by the shirt. Menge, who was also twenty-two years old and had been friends with Neitzke for about ten years, pushed the person away, and Neitzke and Menge left. On Saturday, March 5, Neitzke and Menge drove into Berlin at around 6:30 or 7:00 p.m. in Neitzke's car. They took a quarter barrel of beer with them and planned to pick up some people and return to Menge's house to have a party. While meeting with some people that Menge knew at the car wash, Neitzke and Menge *552 were confronted about the prior evening by a person who alleged that they struck the person who threw the snowball. Neitzke and Menge moved across the parking lot, and their accuser left. Neitzke and Menge drove to Hardees. A car pulled into the parking lot and Menge, apparently recognizing the people in the car, told Neitzke that they should leave. They did, and as they drove past the car wash, people started yelling and throwing plastic soda bottles and snowballs at them. A vehicle pulled out and followed their car. After driving about three miles, Neitzke lost the pursuing vehicle. Neitzke and Menge drove into town a second time. They again drove past the car wash, and again people yelled and threw things at them. This time, two vehicles chased Neitzke's car, but Neitzke outraced them. At around 11:00 p.m., Neitzke and Menge returned to Menge's house, which was five or six miles away, so that Menge could get his semi-automatic deer rifle. Menge told Neitzke that he wanted to use the rifle to scare their adversaries. Menge took the rifle and about fifteen to twenty rounds of ammunition from his house, and they again departed. Neitzke and Menge returned to Berlin to confront the people at the car wash and find out why they were upset with them. On the ride back, Menge loaded the rifle's magazine with ammunition. They reached town about midnight, and the people at the car wash again started yelling and throwing things. One person chased them with a tire iron, and four cars followed. As Neitzke drove out of town, he noticed a pursuing vehicle seventy-five yards away. Neitzke gained some distance from the closest vehicle, but could still see its headlights through the fog. Menge loaded the magazine into the rifle, sat on the passenger-side door *553 with his body outside the car, and fired four shots in quick succession at the pursuing vehicle, striking its driver, Richard Schwersenska, in the arm. Schwersenska brought suit against Menge, Neitzke, and American Family Mutual Insurance Company, which provided liability insurance coverage for Neitzke pursuant to a homeowners policy issued to Neitzke's father. American Family moved for summary judgment, arguing that its homeowners policy specifically excluded coverage for the claims alleged against Neitzke because the policy in question excluded coverage for bodily injury or property damage "which is expected or intended by any insured." The trial court granted American Family's motion, and Schwersenska appeals. DISCUSSION [1] Schwersenska argues that the trial court erred by granting summary judgment because an issue of material fact existed as to whether Neitzke's act was intentional so as to fall under the exemption of the homeowner's insurance policy. Summary judgment may be utilized to address insurance policy coverage issues. Raby v. Moe, 153 Wis. 2d 101, 109, 450 N.W.2d 452, 454 (1990). We have described summary judgment methodology many times. See State Bank v. Elsen, 128 Wis. 2d 508, 511-12, 383 N.W.2d 916, 917-18 (Ct. App. 1986). We need not repeat it here. In Loveridge v. Chartier, 161 Wis. 2d 150, 168, 468 N.W.2d 146, 150 (1991), the court summarized how Wisconsin courts construe intentional acts exclusions in insurance policies: *554 In Wisconsin, an intentional-acts exclusion precludes insurance coverage only where the insured acts intentionally and intends some harm or injury to follow from the act. An insured intends to injure or harm another if he "intend[s] the consequences of his act, or believe[s] that they are substantially certain to follow." In other words, intent may be actual (a subjective standard) or inferred by the nature of the insured's intentional act (an objective standard). Therefore, an intentional-acts exclusion precludes insurance coverage where an intentional act is substantially certain to produce injury even if the insured asserts, honestly or dishonestly, that he did not intend any harm. (Citations omitted.) In his deposition, Neitzke testified that at no time did he expect that Menge was going to shoot the gun. Because no evidence has been offered to establish that Neitzke actually intended to cause harm or injury, his intent cannot be established under a subjective standard. Therefore, we must determine whether Neitzke's intent can be established under an objective standard as a matter of law. [2,3] Ordinarily, the question of whether an insured intended harm or injury to result from an intentional act is a question of fact. Raby, 153 Wis. 2d at 112, 450 N.W.2d at 456. However, we may infer that an insured intended to injure or harm as a matter of law "if the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law." K.A.G. v. Stanford, 148 Wis. 2d 158, 163, 434 N.W.2d 790, 792 (Ct. App. 1988). When determining whether intent can be inferred as a matter of law, each set of facts "must be considered on a case-by-case basis; the more likely harm is to result from certain *555 intentional conduct, the more likely intent to harm may be inferred as a matter of law." Id. at 165, 434 N.W.2d at 793. In Raby v. Moe, 153 Wis. 2d 101, 450 N.W.2d 452 (1990), the court faced a situation similar to the one we face here. Jeff Thompson asked Terrance Moe to assist him in robbing a liquor store, and Moe agreed to drive the getaway car. Id. at 105-06, 450 N.W.2d at 453. Moe drove Thompson to the liquor store and waited in the car while Thompson entered the store with a loaded shotgun, took money from the cash register, and shot and killed Steven Raby, the store clerk. Id. at 106, 450 N.W.2d at 453. Moe pleaded guilty to second-degree murder, party to a crime, under §§ 940.02(2) and 939.05, STATS., 1985-86. Id. Raby's parents commenced a civil action against Moe and Heritage Mutual Insurance Company, which provided Moe's homeowners insurance. Id. at 104, 450 N.W.2d at 453. Heritage moved for summary judgment, arguing that its policy did not cover damages resulting from Raby's death because the policy excluded coverage for injury "expected or intended" by the insured. Id. The supreme court stated that the rule which permits a court to infer an intent to injure in limited circumstances "is applicable whenever the criminal conduct of the insured is of such a dangerous character as to impose a substantial threat to the well-being and safety of innocent victims caught in the midst of that criminal conduct." Id. at 113, 450 N.W.2d at 456. The court concluded: In the instant case, Thompson [and] Moe ... conspired to commit an armed robbery and agreed that that robbery would be carried out with a loaded 12-gauge *556 shotgun. On these facts, we do not think that it can reasonably be said that the death of Steven Raby occurred merely by accident. Moe must be held to know the substantial risk of injury inherent in his criminal wrongdoing and cannot expect his homeowners insurer to provide coverage for damages resulting from that wrongdoing simply by saying, after the fact, that he did not intend for any harm to result. Id. [4] Likewise, Neitzke and Menge conspired to scare their adversaries at the car wash with a semi-automatic deer rifle. Neitzke saw Menge take the shells and gun from his house. Neitzke saw Menge load the shells into the magazine. Neitzke heard the bolt go forward, chambering a round. And Neitzke saw Menge climb out of the car and position himself so that he could look back toward the pursuing car.[2] Yet Neitzke did nothing to stop Menge from firing four rounds at the following vehicle. Like Moe, Neitzke must be held to know the substantial risk of injury inherent in taking Menge to confront a seemingly angry mob with a semi-automatic deer rifle and fifteen to twenty rounds of ammunition. We infer that Neitzke intended to cause Schwersenska's injuries as a matter of law. *557 Schwersenska argues that this case is distinguishable from Raby because Menge abandoned the plan to use the rifle to scare the people at the car wash, while Thompson and Moe never abandoned their plan of armed robbery. The facts set forth in the court of appeals opinion of Raby v. Moe, 149 Wis. 2d 370, 381, 441 N.W.2d 263, 266 (Ct. App. 1989), rev'd, 153 Wis. 2d 101, 450 N.W.2d 452 (1990), however, indicate that Moe's plan also was not followed: Moe testified that, while he thought Thompson might use the gun to attempt to scare the store clerk, it was not "any part of the plan for the armed robbery that anybody should shoot [Raby]." According to Moe, when he and the others planned the robbery, no one expressed any intention to shoot the clerk, and he stated unequivocally that he neither intended nor expected that any shooting would occur, or that the clerk would suffer any harm. What is important, then, is not whether the original plan was continued, but whether "the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law." K.A.G., 148 Wis. 2d at 163, 434 N.W.2d at 792. Schwersenska argues that this case is analogous to Poston v. U.S. Fidelity & Guaranty Co., 107 Wis. 2d 215, 320 N.W.2d 9 (Ct. App. 1982), in which the court did not infer an intent to injure. In Poston, the plaintiff was injured when Thomas Coyne "sloshed" gasoline on her and an onlooker ignited it. Id. at 217, 320 N.W.2d at 10. Poston brought suit against Coyne and his insurer. Because Coyne's liability policy excluded coverage for intentional acts, his insurer moved for summary judgment, which the circuit court granted. Id. at 217, 320 N.W.2d at 10. The court of appeals *558 reversed, rejecting the insurer's argument that "Coyne's acts were done with the intention of causing injury or with the expectation that some injury was substantially certain to follow." Id. at 223, 320 N.W.2d at 13. The Raby court summarized Poston as follows: [I]n that case, there was no plan or agreement between the insured and the third party to commit the crime causing injury to the plaintiff. Absent such a plan, it could not be said that the insured's intentional act of "sloshing" gasoline on the plaintiff was, in itself, so substantially certain to result in bodily injury that an intent to injure could be inferred from the nature of the insured's intentional act as a matter of law. 153 Wis. 2d at 114, 450 N.W.2d at 457. Because there was no plan or agreement between Neitzke and Menge to commit the crime causing injury, Schwersenska argues, this case is analogous to Poston and Neitzke's intent to injure cannot be inferred as a matter of law. Schwersenska misconstrues the Raby court's reading of Poston. Absent a plan or agreement, Coyne had no reason to expect that a third person would light Poston on fire after he sloshed gasoline on her. Therefore, under the facts of Poston, a plan or agreement was needed in order for Coyne to be substantially certain that his actions would result in bodily injury. Neitzke, on the other hand, did not need to be carrying out a plan with Menge to be substantially certain that Menge's actions would result in bodily injury. Neitzke directly observed Menge's actions in taking a rifle and ammunition to confront an angry mob, loading the *559 rifle, and climbing outside the car with the rifle and facing a pursuing car. Poston is thus distinguishable.[3] Schwersenska also argues that this case is distinguishable from Raby because the confrontation at the car wash is inherently different from armed robbery. Schwersenska argues that harm is more likely to result from armed robbery than confrontations at a car wash, and therefore it is more likely that intent to harm may be inferred from armed robbery as a matter of law. See K.A.G., 148 Wis. 2d at 165, 434 N.W.2d at 793. Schwersenska may be correct in concluding that armed robbery is more likely to result in injury than the confrontation at the car wash. Regardless, because we have concluded that the degree of certainty that Neitzke's actions would cause injury is sufficiently great to justify inferring his intent to injure as a matter of law, the question of which conduct was more certain to result in harm is irrelevant. Finally, Schwersenska argues that Neitzke's intent to injure cannot be inferred as a matter of law because Neitzke did not plead guilty to criminal charges.[4] In both Raby and N.N. v. Moraine Mut. Ins. Co., 153 Wis. 2d 84, 450 N.W.2d 445 (1990), the court considered the insured's plea of guilty in inferring an intent to injure. Schwersenska argues that the exception to the rule that intent to injure is a question of fact *560 should be limited to cases in which the insured has pleaded guilty to criminal charges. We disagree. In Raby, the court did not conclude that Moe's guilty plea was necessary to establish intent. The court first stated that "Moe's testimony at the criminal trial of Jeff Thompson indisputably established that Moe willingly and actively assisted Thompson in the commission of the armed robbery by driving the getaway car." Raby, 153 Wis. 2d at 110, 450 N.W.2d at 455 (emphasis added). Only after providing that Moe's intent was indisputably established did the court state that Moe's voluntary plea of guilty "further established" his intent to act. Id. Therefore, Raby did not conclude that an admission of guilt is necessary to establish intent. In N.N., the court concluded that the defendant's guilty plea was the "determinative fact" in the case. 153 Wis. 2d at 91, 450 N.W.2d at 448. The court did not, however, maintain that an intent to injure cannot be inferred absent a guilty plea. In fact, it appears that the court focused on the guilty plea because the guilty plea was the focus of the insurance companies' motion for summary judgment: "Defendant insurance companies made their prima facie case for summary judgment based first upon the guilty plea of the defendant and additionally upon the fact that sexual assault is by its very nature an intentional act." Id. And the court did not focus solely on the guilty plea in establishing intent: "We conclude on the basis of the guilty plea and consistent evidence of intentional acts supporting the acceptance of the plea that the intentional nature of Metz's behavior has been demonstrated." Id. at 96, 450 N.W.2d at 450 (emphasis added). K.A.G. v. Stanford, 148 Wis. 2d 158, 434 N.W.2d 790 (Ct. App. 1988), was the first Wisconsin opinion to *561 conclude that intent "may be inferred as a matter of law without regard to the actor's claimed intent." Id. at 163, 434 N.W.2d at 792. In setting forth the applicability of this rule, the court did not provide that a guilty plea is a predicate to inferring intent as a matter of law. Instead, the court provided that for the rule to apply: [T]wo requirements must be met. First, the conduct must be intentional. Second, the conduct must be substantially certain to cause injury. If these conditions are met, the rule will only be applied if the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law. Id. We have already established that Neitzke's conduct satisfied these requirements. In addition, the K.A.G. court noted that the rule "is not susceptible to a bright-line test and must be considered on a case-by-case basis." Id. at 165, 434 N.W.2d at 793. If we were to follow Neitzke's argument that intent to injure cannot be inferred absent the insured's plea of guilty to criminal charges, we would establish a bright-line test for determining whether to infer intent to injure. Because the rule is not susceptible to a bright-line test and must be considered on a case-by-case basis, we reject Neitzke's argument. By the Court.—Order affirmed. NOTES [1] In its motion for summary judgment, American Family also argued that Neitzke's actions were excluded from coverage because its homeowners policy specifically excluded coverage for bodily injury or property damage "arising out of the operation [or] use ... of ... any type of motor vehicle." Because we conclude that Neitzke's acts fell under the intentional acts exclusion of the homeowners policy, we do not reach the issue of whether Neitzke's acts fell under the motor vehicle exclusion. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983). [2] At least in this facet of the case, Neitzke's intent to injure Schwersenska is more conclusively established than Moe's intent to injure the store clerk. Moe waited in the car while Thompson murdered the liquor store clerk, and therefore was in no position to stop Thompson's actions. Neitzke, on the other hand, was with Menge at the time of the shooting. Neitzke could have told Menge to stay in the car and refrain from firing the gun. Or Neitzke at least could have swerved the car to hinder Menge's ability to aim. Neitzke's decision to do nothing to prevent the shooting evinces an intent to cause injury. [3] The result in Poston might well have been different had Coyne observed the third person standing near Poston with a lighted match prior to the gasoline "sloshing." In Raby v. Moe, 153 Wis. 2d 101, 450 N.W.2d 452 (1990), in addition to the conspiracy to commit armed robbery, the supreme court noted that "Moe knew that Thompson entered the liquor store with a loaded 12-gauge shotgun and intended to point the gun at the store clerk." Id. at 114, 450 N.W.2d at 457 (emphasis added). [4] Neitzke pleaded no contest to first-degree reckless injury.

210 Ga. App. 214 (1993) 435 S.E.2d 734 LEA v. AMERICAN HOME EQUITIES, INC. et al. A93A1518. Court of Appeals of Georgia. Decided September 9, 1993. Goodman & Goodman. Barry Goodman, for appellant. Ware & Associates, Robin P. Lourie, Suzanne T. Fink, Bentley, Karesh & Seacrest, Gary L. Seacrest, for appellees. JOHNSON, Judge. Ann Lea rode the elevator in her apartment building down two floors to get her mail and put her newspapers in a recycling bin located in the garage. When she got off the elevator she noticed that the indoor/outdoor carpeting in the hallway was soaking wet. She saw a small cardboard sign which had been posted warning her to "Watch your step." She deposited her newspapers and got her mail. She crossed the wet carpet again and entered the elevator, slipping on the marble floor. Lea filed this lawsuit to recover damages for injuries she sustained as a result of the fall. The trial court granted summary judgment in favor of defendants American Home Equities, Inc., and Lenox South, Ltd., owners and managers of the apartment building. Lea appeals. 1. Lea asserts that the lower court erred in granting defendants' motion for summary judgment because they had superior knowledge a of the specific risk of danger confronting Lea. The record establishes that the water on the carpet was the result of a cleaning process which had been undertaken as a result of a spill of hydraulic oil which had occurred in the elevator service room on the garage level. Lea argues that the defendants had superior knowledge of the oil spill, and that oil was the specific risk to which she was exposed. There is evidence in the record that some of the oil seeped out of the elevator room onto the carpet immediately adjacent thereto. There is no evidence, however, that any of the oil extended to the area which Lea traversed in walking from the elevators to the garage and back again. It would be mere speculation to assume that the spilled oil played any part in her fall. "In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury." (Citations and punctuation omitted.) Dougherty County Farm Bureau v. Hinman, 184 Ga. App. 244, 245 (361 SE2d 236) (1987). The specific risk to which Lea was exposed was not oil, but the water remaining in the carpet after cleaning and Lea admits in her deposition that she was aware of the condition of the carpet: "It was very obvious, the carpet was wet — squishy wet." In order to establish a proprietor's liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of a foreign substance and (2) that the plaintiff was without knowledge of the *215 substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). It is uncontroverted that Lea knew of the condition of the carpet and that she saw the warning sign which had been posted in the hallway. "When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]" Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Lea also stated in her deposition that she retraced her route knowing the carpet was were and entered the elevator even though she was aware that the marble floor in the elevator was slick. Under these circumstances it appears that Lea had equal knowledge of the specific risks which she faced in choosing to return to her apartment by the same route she had just taken to the garage. 2. In her second and final enumeration of error, Lea contends that the lower court erred in granting defendants' motion for summary judgment because she had no reasonable alternative route to return to her apartment. This assertion is not supported by the facts of this case which indicate that Lea knew of three other routes back to her apartment but found them less desirable. She could have walked up two flights of stairs, she could have walked up one flight to the lobby and then caught the elevator, or she could have walked outside the garage and around the building and into the lobby. Where a plaintiff is not required to traverse a route upon which a known hazard exists, but chooses to do so, she can be deemed to have voluntarily assumed the risk of injury. See Powell v. Woodbridge Condo. Assn., 206 Ga. App. 176, 178 (424 SE2d 855) (1992); Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13) (1987); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 160 (335 SE2d 408) (1985). The route taken was not one of necessity and the trial court did not err in entering summary judgment in favor of the defendants. Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. United States Court of Appeals for the Federal Circuit 04-1070 SLIP TRACK SYSTEMS, INC., Plaintiff-Appellee, v. METAL LITE, INC., Defendant-Appellant. __________________________ DECIDED: December 1, 2004 __________________________ Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit Judge. Opinion for the court filed by Circuit Judge SCHALL. Opinion dissenting-in-part filed by Circuit Judge NEWMAN. SCHALL, Circuit Judge. DECISION Metal Lite, Inc. (“Metal Lite”) appeals the final judgment of the United States District Court for the Central District of California (1) that U.S. Patent No. 5,127,760 (“the ‘760 patent”), owned by Slip Track Systems, Inc. (“Slip Track”), has priority over U.S. Patent. No. 5,127,203 (“the ‘203 patent”), owned by both Metal Lite and Slip Track; and (2) that Metal Lite infringed the ‘760 patent and is liable for damages in the amount of $7,000,000 by reason of that infringement. Slip Track Sys., Inc. v. Metal Lite, Inc., No. SA CV 98-20 AHS (C.D. Cal. Oct. 22, 2003) (“Final Judgment”). For the reasons set forth below, we affirm the judgment of the district court on the priority issue. However, we vacate the judgment of infringement and the award of damages in favor of Slip Track and remand the case to the district court for further proceedings on the issue of infringement based upon the claim construction set forth in this opinion. DISCUSSION I. After remand following our decision in Slip Track Systems, Inc. v. Metal Lite, Inc., 304 F.3d 1256 (Fed. Cir. 2002) (“Slip Track II”), the district court awarded the ‘760 patent priority over the ‘203 patent. The district court’s award of priority was based on a jury’s finding that the invention of the ‘760 patent was reduced to practice before the invention of the ‘203 patent. Metal Lite’s sole argument on appeal with respect to the priority issue is that the district court erred in not granting its motion in limine to bar Slip Track, an assignee and 50% owner of the ‘203 patent, from challenging the validity of the ‘203 patent based upon the doctrine of assignee estoppel. We find no error in the district court’s decision. Assignee estoppel is an equitable doctrine which, under appropriate circumstances, bars the assignee of a patent from contesting the validity of the assigned patent. C.f. Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1225 (Fed. Cir. 1988) (“[D]espite the public policy encouraging people to challenge potentially invalid patents, there are still circumstances in which the equities of the contractual 04-1070 2 relationships between the parties should deprive one party . . . of the right to bring that challenge.”). For example, circumstance may warrant application of the doctrine to prevent an assignee from avoiding royalty payments otherwise due under an assignment contract by challenging the validity of the assigned patent. See Baladevon, Inc. v. Abbott Labs., Inc., 871 F. Supp. 89, 96 (D. Mass. 1994); Sybron Transition Corp. v. Nixon, 770 F. Supp. 803, 811-12 (W.D.N.Y. 1991). This case, however, does not present such circumstances. Slip Track only asserted invalidity of the ‘203 patent after Metal Lite put Slip Track’s ‘760 patent into reexamination before the Patent and Trademark Office on the grounds that it was invalid in view of the ‘203 patent. See Slip Track Sys., Inc. v. Metal Lite, Inc., 159 F.3d 1337, 1338-39 (Fed. Cir. 1998) (“Slip Track I”). Moreover, Slip Track owns 100% of the ‘760 patent but only 50% of the ‘203 patent. The reexamination consequently forced Slip Track to choose between protecting the validity of either the ‘760 patent or the ‘203 patent. Slip Track made the natural decision to protect its greater of two property interests, the ‘760 patent. There is nothing inequitable here. Having rejected Metal Lite’s assignee estoppel argument, we affirm the judgment of the district court on the priority issue. II. After determining that the ‘760 patent has priority over the ‘203 patent, the district court granted Slip Track’s motion in limine barring Metal Lite from contesting infringement and subsequently entered judgment against Metal Lite for infringement of the ‘760 patent. The district court based its decision to grant the motion on three separate grounds: (1) the doctrine of marking estoppel; (2) our decision in Slip Track II; and (3) Metal Lite’s litigation conduct. Slip Track Sys., Inc. v. Metal Lite, Inc., No. SA 04-1070 3 CV 98-20 AHS, slip op. at 6-13 (C.D. Cal. Dec. 11, 2003) (“Order Denying Motion for New Trial”). For the reasons that follow, we reject each of the grounds upon which the district court relied in granting Slip Track’s motion in limine. We consequently vacate the judgment of infringement and damages in favor of Slip Track and remand the case to the district court for proceedings on the issue of infringement. A. Marking Estoppel The district court determined that Metal Lite’s marking of its product with the ‘760 and ‘203 patents estopped it from contesting infringement of the ‘760 patent under the doctrine of marking estoppel. Specifically, the court determined that the combination of (1) Metal Lite’s deliberate marking with the ‘760 patent from 1994 to September of 1995, while in partnership with Slip Track; and (2) Metal Lite’s continued marking with the ‘203 patent following dissolution of the partnership in September of 1995, justified estopping Metal Lite from subsequently denying infringement of the ‘760 patent. The district court reasoned that marking with the ‘203 patent was tantamount to marking with the ‘760 patent because Metal Lite had argued invalidity of the ‘760 patent during the priority dispute based on overlapping subject matter with the ‘203 patent. Order Denying Motion for New Trial, slip op. at 7-9. At the outset, we note that the parties dispute the continued viability of the doctrine of marking estoppel. We find it unnecessary to address this issue because, even assuming the doctrine remains viable, it does not apply to the facts of this case. “[The doctrine of] marking estoppel, like other varieties of estoppel, should arise only when a consideration of all aspects of a defendant’s pertinent conduct makes it inequitable for him to take a position contrary to his prior statements or actions.” Boyd 04-1070 4 v. Shildkraut Giftware Corp., 936 F.2d 76, 79 (2d Cir. 1991). The doctrine serves to protect the public by cautioning manufacturers that “care must be taken in avoiding misrepresentation to the public that goods are protected by a patent.” Smithkline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 890-91 (Fed. Cir. 1988) (quoting Crane Co. v. Aeroquip Corp., 364 F. Supp. 547, 560 (N.D. Ill. 1973)). It is undisputed that Metal Lite only marked its product with the ‘760 patent for a period of about one year while in partnership with Slip Track. This marking was deliberate. Indeed, Slip Track consented to the marking. There is no evidence, however, that Metal Lite deliberately mismarked its products during this time. In other words, nothing indicates Metal Lite believed its product to fall outside the scope of the ‘760 patent’s claims when it made the decision to mark with the ‘760 patent. See Boyd, 936 F.2d at 79 (explaining that “deliberate mismarking” may provide grounds for applying estoppel); see also Crane, 364 F. Supp. at 560 (applying marking estoppel to a licensee who continued marking its product with the licensed patent after designing around the claimed invention). The similarities between the ‘203 and ‘760 patents also fail to provide a sufficient basis for applying estoppel. In particular, the record does not indicate that marking with the ‘203 patent created a risk to the public—that is, a risk of misleading the public to believe the accused product was also covered by the ‘760 patent—sufficient to warrant application of estoppel. B. The Decision of the Federal Circuit in Slip Track II Having concluded that the district court erred in its application of marking estoppel, we turn to the court’s second basis for granting Slip Track’s motion in limine: 04-1070 5 this court’s decision in Slip Track II.1 The district court stated that in Slip Track II we determined that, with the exception of the wallboard limitation of the ‘203 patent, the ‘203 and ‘760 patents cover identical subject matter. Order Denying Motion for New Trial, slip op. at 10. The court reasoned that the necessary implication of this is that the claims of the two patents are virtually identical. Id. The district court further reasoned that since Metal Lite made its product pursuant to the ‘203 patent, it must also infringe the ‘760 patent. Id. The district court’s decision suffers from two errors: (1) equating the scope of the interfering subject matter with the scope of the claims of the two patents; and (2) equating the scope of the interfering subject matter with the elements of the accused product. With respect to the first issue, although this case involves an interference proceeding filed in district court as opposed to the PTO, we have explained that “the count is not a claim to an invention.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Rather, the overlapping subject matter “of an interference is merely the vehicle for contesting the priority of invention and determining what evidence is relevant to the issue of priority.” Id. (emphasis added). The definition of interfering subject matter is not relevant to the separate issue of infringement. Therefore, after determining priority, the district court had an obligation to interpret the claims of the ‘760 patent in order to address the separate issue of infringement. After construing the claims, the second step in the infringement analysis requires the court to compare the properly construed claims to the accused product. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 1 The appeal in Slip Track II concerned the scope of interfering subject matter between the ‘760 and ‘203 patents. 04-1070 6 370, 116 S. Ct. 1384, 134 L.Ed.2d 577 (1996). In bypassing this step, the district court failed to consider that even assuming virtually identical breadth of the claims of the ‘203 and ‘760 patents, Metal Lite’s products do not necessarily infringe the ‘760 patent. In other words, the fact that the accused product was made pursuant to the ‘203 patent and, under the district court’s reasoning, pursuant to the virtually identical ‘760 patent, does not necessarily mean the completed product actually contains all of the limitations of the ‘760 patent. In sum, the district court was required to determine the issue of infringement using our two-step analysis of (1) construing the claims and (2) comparing the accused product to the properly construed claims. Id. C. Metal Lite’s Litigation Conduct The district court cited Metal Lite’s litigation conduct as a third reason for barring Metal Lite from contesting infringement. The court noted that Metal Lite’s sole defense up until three months before trial was invalidity of the ‘760 patent based upon priority of the ‘203 patent. The court also noted that it was not until May 12, 2003, that Metal Lite requested a claim construction, and not until July of 2003 that Metal Lite raised its specific “claims-based theory of non-infringement.”2 Order Denying Motion for New Trial, slip op. at 12. The court found Metal Lite’s tardiness in presenting its claims- based theory of non-infringement contrary to the objective reflected in Rule 26 of the Federal Rules of Civil Procedure of “fully air[ing] each parties’ theories of the case well in advance of trial.” Id. at 13. 2 The district court distinguished between invalidity-based and claims-based theories of non-infringement, the invalidity-based theory being premised on invalidity of the ‘760 patent and the claims-based theory being premised on a traditional non- infringement position. 04-1070 7  An evidentiary ruling based on a party’s litigation conduct is not unique to patent law, so we apply the standard of review of the regional circuit of the district court. Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1363 (Fed. Cir. 2004). The Ninth Circuit reviews evidentiary rulings for an abuse of discretion. Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995). In this case, we conclude that the district court erred in granting Slip Track’s motion in limine based on Metal Lite’s litigation conduct and that the error rose to the level of an abuse of discretion. We so hold because the record does not support the district court’s position that, up until three months before trial, Metal Lite’s sole defense of non-infringement was invalidity of the ‘760 patent. In its answer to Slip Track’s complaint for patent infringement, Metal Lite denied infringement of the ‘760 patent (Answer and Countercl. at 3) and separately sought a declaration of invalidity (Answer and Countercl. at 9). Metal Lite’s delay after that in presenting its claims-based theory of non-infringement is explained by the long procedural history of this case. Until recently in the case, the focus of both parties was on the issue of priority. (Decl. Ronald P. Oines at 7.) This was a logical focal point considering that the issue of infringement would only become relevant in the event the ‘760 patent was declared senior to the ‘203 patent.3 Indeed, it is telling that, as of our remand in Slip Track II, Slip Track had not come forward with its claims-based theory of infringement. Accordingly, we hold that the district court abused its discretion in granting Slip Track’s motion in limine barring Metal Lite from contesting infringement. 3 This is because Slip Track, as a co-owner of the ‘203 patent, could not be sued for infringing the ‘203 patent. 04-1070 8  III. The district court entered judgment of infringement of the ‘760 patent without having construed the pertinent claim terms at issue. On appeal, Metal Lite argues that under the claim construction it urges, its accused product does not infringe the ‘760 patent. Slip Track, on the other hand, argues that under its proposed claim construction, the accused product does infringe the ‘760 patent. Both parties urge us to construe the pertinent claim terms at this time. In view of the relatively straightforward nature of the claim construction issue and the interest in bringing this litigation to a conclusion, we accept the parties’ invitation to construe the claims. The ‘760 patent relates to a “slotted track” or “slotted header” wall assembly used to alleviate stress on a wall’s infrastructure caused by environmental forces, such as earthquakes. Slip Track alleges that Metal Lite’s product, a particular slotted track wall assembly, infringes the claims of the ‘760 patent. The patent contains two independent claims and eight dependent claims. Claim 1 of the ‘760 patent is representative of the claims at issue and reads: A building construction assembly that includes a header and a stud wherein the header is capable of vertical movement relative to said assembly comprising: a header having a web and flanges with said flanges connected to said web; at least one of said flanges having at least one vertical slot therein; a stud having a width less than the distance between said flanges of said header and having a top end; said stud having at least one hole formed therein proximal to said top end; said top end fitting between said flanges perpendicular to said header positioned so that said hole is aligned with said vertical slot; and 04-1070 9  an attachment means passing through said slot and through said hole to slideably unite said header to said stud whereby said slot permits said header to move vertically with respect to said stud while restricting horizontal movement of said header. The sole claim construction issue relates to the limitation “said stud having at least one hole formed therein proximal to said top end.” Metal Lite argues that the prosecution history requires the stud to have a “pre-existing hole,” meaning a stud with a hole in existence prior to inserting the stud between the flanges of the header. Slip Track argues that the limitation in no way requires a pre-existing hole and that the claim encompasses assemblies wherein the hole is formed before or after inserting the stud between the flanges. Requiring a pre-existing hole, Slip Track argues, would impermissibly limit the apparatus claim to a product-by-process claim and also would exclude the preferred embodiment. We agree with Metal Lite that claim 1 is limited to a stud having a hole in existence prior to inserting the stud between the flanges of the header. Claim construction starts with the language of the claims as understood by one of ordinary skill in the art. See ResQNet.com, Inc. v. Lansa, Inc., 346 F.3d 1374, 1378 (Fed. Cir. 2003); CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002); Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999). Intrinsic evidence—namely, the specification and, if in evidence, the prosecution history—are also highly relevant to claim construction. See Victronics, Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). One reason “[t]his court . . . considers the prosecution history . . . [is] to determine whether the applicant clearly and unambiguously ‘disclaimed or disavowed [any interpretation] during prosecution in order 04-1070 10 to obtain claim allowance.’” Middleton, Inc. v. Minn. Mining & Mfg. Co., 311 F.3d 1384, 1388 (Fed. Cir. 2002) (quoting Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985)); see also Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) (explaining that prosecution disclaimer does not apply “where the alleged disavowel of claim scope is ambiguous”). In this case, the prosecution history of the ‘760 patent reveals that the patentee limited its invention to studs having pre-existing holes. Claim 1, as originally drafted, read, in pertinent part, “said stud being aligned with said vertical slot.” On March 29, 1991, the Examiner issued a first rejection finding the claim obvious and “indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.” The Examiner specifically asked: “Re: claim 1 . . . line 10, how is the stud ‘aligned’ with the vertical slot . . . ?” The patentee responded by amending claim 1 to read: “said stud having at least one hole formed therein proximal to said top end; said top end fitting between said flanges perpendicular to said header positioned so that said hole is aligned with said vertical slot.” The patentee also made the following remark accompanying the amendment: First, the Examiner’s question of how the stud is aligned with the vertical slot has been answered by adding hole 22 proximal to top end 40 of the stud as an element of the claims. The hole 22 serves as a reference point on the stud which is used to align the stud and the slot. This amendment should overcome the Examiner’s § 112 rejection based upon indefiteness with respect to claim 1 and the claims dependent therefrom. This amendment and accompanying statement provide clear and unambiguous evidence that the patentee limited the claim to a stud with a pre-existing hole. 04-1070 11  Slip Track’s argument that such a construction improperly limits its apparatus claim to a product-by-process claim is unavailing. Our case law makes clear that statements made during prosecution may limit what began as an apparatus claim to a product-by-process claim. See Minn. Mining & Mfg. Co. v. Avery Dennison Corp., 350 F.3d 1365, 1373 (Fed. Cir. 2003); Vanguard Prods. Corp. v. Parker Hannifin Corp., 234 F.3d 1370, 1372 (Fed. Cir. 2000). This is exactly what Slip Track did in this case. By making the above amendment, the patentee overcame the Examiner’s obviousness and indefiniteness rejection, but did so at the price of limiting its claim to a product made by a particular process. We also reject Slip Track’s argument that our claim construction is wrong because it excludes the preferred method of assembly. This is because, while recognizing the general rule disfavoring a claim construction that excludes a preferred embodiment, the prosecution disclaimer in this case provides “highly persuasive evidentiary support” for our construction. See Vitronics, 90 F.3d at 1583. In short, we hold that the limitation “said stud having at least one hole formed therein proximal to said top end,” means that a hole must be formed in the stud prior to insertion of the stud between the flanges so that the hole can be used to align the stud with the vertical slot before passing the attachment means through the vertical slot and into the stud. In the infringement proceedings that are to follow on remand, the district court is to apply this claim construction. IV. In sum, (1) We affirm the district court’s grant of Slip Track’s motion in limine precluding Metal Lite from offering evidence on the issue of assignee estoppel. We 04-1070 12 consequently affirm the district court’s judgment on the issue of priority of the ‘760 patent over the ‘203 patent. (2) Because we find error in the district court’s grant of Slip Track’s motion in limine precluding Metal Lite from contesting infringement, we vacate the district court’s judgment of infringement and award of damages in favor of Slip Track. (3) We consequently remand the case to the district court for further proceedings on the issue of infringement based upon the claim construction set forth in this opinion. We thus affirm-in-part, vacate-in-part, and remand. 04-1070 13  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. United States Court of Appeals for the Federal Circuit 04-1070 SLIP TRACK SYSTEMS, INC., Plaintiff-Appellee, v. METAL LITE, INC., Defendant-Appellant. NEWMAN, Circuit Judge, dissenting in part. In this exceedingly complex and multi-issued case, I do not discern reversible error in the district court's opinion, and would affirm it in the major respects presented on this appeal. 

451 Pa. 319 (1973) Commonwealth v. Mack, Appellant. Supreme Court of Pennsylvania. Submitted March 16, 1972. Reargued November 21, 1972. May 4, 1973. Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. Timothy J. Sullivan, Jr., and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant. Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee. *320 OPINION BY MR. JUSTICE ROBERTS, May 4, 1973: Appellant, James Mack, on September 1, 1967, was arrested and charged with possession of narcotics. No pretrial motion to suppress evidence was filed; however, at trial, the court permitted appellant's retained counsel to file an oral motion to suppress the narcotics (seized pursuant to a warrant). This motion, after an evidentiary hearing, was denied. Thereafter, on March 19, 1969, appellant was found guilty, as charged, by the court, sitting without a jury. On June 23, 1969, appellant was sentenced to serve a two-four year term of imprisonment. No post-trial motions were filed and no appeal taken. On September 24, 1970, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq. (Supp. 1972), alleging (1) the use of illegally seized evidence at trial; (2) ineffective assistance of counsel and; (3) an obstruction of his appellate rights. An evidentiary hearing was held on January 7, 1971, at which time appellant was represented by appointed counsel. On January 20, 1971, appellant's petition was denied. An appeal to the Superior Court resulted in an opinionless per curiam order of affirmance. This Court granted allocatur and we now affirm. Appellant here contends that the PCHA (Post Conviction Hearing Act) court erred in two respects; (1) by finding that probable cause existed to sustain the issuance of the search warrant, and (2) by finding that the issue had been waived, since appellant knowingly and intelligently failed to take a direct appeal. We agree with the court below that the legality of the search cannot now be raised.[1] *321 Section 3 of the PCHA mandates that "[t]o be eligible for relief under this act, a person must . . . prove *322. . . [t]hat the error resulting in his conviction and sentence has not been . . . waived." Act of January 25, 1966, P.L. (1965) 1580, § 3, 19 P.S. § 1180-3 (Supp. 1972). The Act further provides that an issue is waived if: "(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and "(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. "(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure." Act of January 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. § 1180-4 (Supp. 1972). Here, Mack failed to appeal from the judgment of sentence. Our review of the record convinces us, applying the standards enunciated in Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A. 2d 760, 762 (1968), that the PCHA court was correct in its determination that appellant voluntarily and intelligently waived his known appellate rights, thus foreclosing appellant from now raising, in a collateral proceeding, alleged errors committed at trial. See Post Conviction Hearing Act, § 4, supra. On March 19, 1969, after appellant's adjudication of guilt, sentence was postponed pending the filing and disposition of post-trial motions. No motions were, in fact, filed, and on June 23, 1969 (more than three months after conviction), appellant was sentenced. At the conclusion of the sentencing proceeding, the trial court apprised appellant, in clear and concise terms, of his appellate rights (Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963)). *323 "I should advise you of your right to appeal. If you are dissatisfied with the action of the Court, you have a right of appeal. You would appeal by filing a motion for new trial and arrest of judgment within seven days of today in this court and an appeal to the next higher court within forty-five days from today. You are entitled to the assistance of an attorney on an appeal; and if you do not have funds to hire an attorney of your own choice, the county will appoint one to assist you at no cost to you. "JAMES MACK: Yes, sir. Thank you." Prior to this Douglas advisement, however, appellant had contacted his retained counsel and inquired as to whether an appeal had been taken.[2] In response to this letter, counsel replied that although an appeal would be required to correct the alleged trial error, ". . . the money he [appellant] had paid that far would not be enough to cover the cost of appeal." The clear import of this letter was that if no further funds were forthcoming, retained counsel would be unable to prosecute Mack's appeal. Despite this notice, and the trial court's post-sentencing Douglas advisement, given more than two months later, appellant made no further effort to pursue his appellate rights, or contact counsel, until some fifteen months later, when the instant PCHA petition was filed. The record undeniably supports the PCHA court's finding that appellant knew precisely the nature of his appellate rights. Appellant, at the PCHA hearing, testified that he not only knew of these rights (and understood them), but also that, at the time of sentencing, he had sufficient funds to retain private counsel.[3] *324 On this record, no conclusion is possible other than that appellant intentionally relinquished his known right of appeal. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); Commonwealth v. Scatena, 432 Pa. 535, 541-42, 248 A. 2d 17, 19-20 (1968); cf. Commonwealth ex rel. Harbold v. Myers, 417 Pa. 358, 207 A. 2d 805 (1965). Accordingly, we agree with the PCHA court's holding that ". . . in the light of defendant's own testimony, the court's advice of his right to appeal, and his communications with his [sic] attorney, that the defendant knew what his appeal rights were, that free counsel was available to him for appeal purposes if needed, and that he knowingly and intelligently waived his right to appeal by failing for 14 [sic] [15] months to take any steps in that direction. . . . Commonwealth v. Wilson, 430 Pa. 1 (1968)." *325 Having knowingly relinquished his right of appeal (and right to free counsel, if indigent), appellant has now "waived" his right to challenge, in this post-conviction proceeding, the legality of the search, previously challenged at trial. Post Conviction Hearing Act, § 4, supra; Scatena, supra. Cf. Harbold, supra. Order affirmed. NOTES [1] Appellant also contends that he was denied the effective assistance of counsel at trial. Specifically, appellant argues that counsel was ineffective in failing to (1) file a pre-trial motion to suppress evidence and; (2) challenge the specificity of the search warrant and the reasonableness of the search. Appellant concedes that counsel did challenge the existence of probable cause, including the oral sworn testimony submitted to the magistrate as a supplement to the written affidavit. The PCHA court was correct in its finding that appellant's counsel was not ineffective at trial. Appellant's first contention obviously has no merit, since the trial court, waiving the time requirement embodied in Pa. R. Crim. P. 323(b) (motion to suppress must be filed at least 10 days prior to trial), permitted a suppression hearing to be conducted at trial. Appellant has alleged no prejudice from the utilization of this procedure. Rather, appellant advances the unsupported contention that because counsel did not see the search warrant, or the affidavit in support thereof, until a few minutes prior to trial, insufficient time remained for counsel to conduct a proper and complete investigation. No allegation is made as to how this shortness of time hampered counsel in his representation of appellant. As this Court has repeatedly held, ". . . shortness of time per se in the preparation of a defense does not [standing alone] constitute ineffective assistance." Commonwealth v. Hill, 450 Pa. 477, 481, 301 A. 2d 587, 590 (1973), and the cases cited therein. Appellant's second complaint as to counsel's ineffectiveness is equally devoid of merit. It is clear, from the record, that counsel's decision not to attack the specificity of the warrant and reasonableness (scope) of the search had a "reasonable basis" and was "designed to effectuate his [client's] best interest." Commonwealth v. Hill, supra at 479, 301 A. 2d at 590. On the face of the warrant, the place and person to be searched, and things [narcotics] to be seized, were set out with clarity. An attack on this issue would obviously have been futile. As to counsel's decision not to question the scope of the search, this too was eminently reasonable. The objects seized (38 packets of heroin) were found on appellant's possession, a "place" and "person" obviously within the scope of the warrant. We therefore conclude that counsel's tactical decision to attack only the lack of probable cause was reasonable. "[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A. 2d 349, 352 (1967). [2] The record indicates that this correspondence took place at some time between March 19, 1969 and April 7, 1969. [3] Appellant testified, under cross-examination by the district attorney, at the PCHA hearing as follows: "Q. Now, you are very familiar with the transcript and with the sentencing in the transcript, aren't you? A. I am familiar with it to an extent. Q. You, of course, were present at the time of sentencing? A. Yes. Q. You heard Judge McLEAN state to you, `I should advise you of your right to appeal.' He did say that to you? A. Yes. He did. Q. `If you are dissatisfied with the action of the Court, you have a right to appeal.' He told you that, didn't he? A. That's what he told me. Q. `You would appeal by filing a motion for a new trial and arrest of judgment within seven days of today in this Court and an appeal to the higher Court within the next 45 days from today.' He told you that? A. He told me that. Q. `You are entitled to the assistance of an attorney on appeal.' Did he tell you that? A. Yes. He told me. MR. GOLDRING: Your Honor, we will stipulate to whatever is in the transcript. Q. I want this record to show what was the advice given. And you were told `that if you had no funds to hire an attorney of your own choice, the County will appoint one to assist you at no cost to you.' A. That's right. Q. The Court told you that? A. His Honor told me that. Q. Now, did you have funds with which to compensate Mr. Frank for an appeal or motion on a new trial? A. I had a certain amount of funds available to me. Q. So that it wasn't necessary for you to go to the public defender? A. At that time, I didn't really believe it was. Q. And do you mind telling the Court what you mean when you said `funds available to you'? A. Money that I could get to."

540 U.S. 1070 BROWNEv.UNITED STATES, ante, p. 907. No. 03-5407. Supreme Court of United States. December 1, 2003. 1 Petition for rehearing denied.

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 25, 2015 519135 ____________________________________ In the Matter of MICHELLE A. JONES, Respondent, v MEMORANDUM AND ORDER JOHNNIE MOORE, Appellant. (And Two Other Related Proceedings.) ____________________________________ Calendar Date: June 4, 2015 Before: Garry, J.P., Rose, Devine and Clark, JJ. __________ Ciano J. Lama, Ithaca, for appellant. Francisco Berry, Ithaca, for respondent. Donna Chin, Ithaca, attorney for the child. __________ Clark, J. Appeal from an order of the Family Court of Chemung County (Hayden, J.), entered May 16, 2014, which, among other things, dismissed respondent's applications, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody. Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a daughter (born in 1999). An August 2010 Family Court order awarded sole custody of the child to the mother and provided the father with visitation every Wednesday evening and an overnight visitation every Saturday. In May 2013, the mother commenced a proceeding seeking  -2- 519135 modification of the prior custody order to the extent that the father no longer have an overnight visitation with the child. The father then commenced a modification proceeding seeking more visitation time with the child and, subsequently, commenced another modification proceeding seeking sole custody. Following a fact-finding hearing and a Lincoln hearing with the child, Family Court determined that neither party established that there had been any change in circumstances sufficient to warrant modification of the prior custody order and, accordingly, dismissed the petitions. The father now appeals and contends that Family Court erred in not affording proper weight to the child's expressed desire to reside with him half of the time. We disagree. "A parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since the entry of the prior order to warrant modification thereof in the child's best interests" (Matter of Bailey v Blair, 127 AD3d 1274, 1275 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Eller v Eller, 126 AD3d 1242, 1242 [2015]; Matter of Kent v Ordway, 125 AD3d 1203, 1203 [2015]). Further, it is well settled that, "while not dispositive, the express wishes of [an] older and more mature child[] can support the finding of a change in circumstances" (Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014] [internal quotation marks and citation omitted]; see Matter of Repsher v Finney, 111 AD3d 1074, 1075 [2013]; Matter of Casarotti v Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852 [2013]). Here, at an initial appearance in November 2013, the attorney for the child indicated that, at the time that the father sought sole custody of the child, he was in support of that request based upon the child's desire to reside with the father. The attorney for the child indicated, however, that, since that time, the child had changed her mind and recognized that her desire to live with the father stemmed from a disagreement that she had with the mother regarding discipline; thus, the child made it clear that she wanted to continue residing with her mother and visit the father during the times set forth in the August 2010 custody order. At the first day of  -3- 519135 the fact-finding hearing in May 2014, the attorney for the child read a letter from the child in which she stated that she wished "to live with both [her] mother and father." Family Court thereafter held a Lincoln hearing, following which it told the parties that it was troubled that the child seemed to have a prepared speech at the hearing. Based upon the foregoing, we find that, "absent other additional factors militating in favor of altering" the prior custody order (Matter of Repsher v Finney, 111 AD3d at 1075; see e.g. Matter of Meier v Meier, 79 AD3d 1295, 1295 [2010]), Family Court did not err in finding that the father failed to establish a change in circumstances sufficient to warrant modification of the prior custody order (see Matter of Repsher v Finney, 111 AD3d at 1075).1 The father's further assertion that Family Court erred in referencing, sua sponte, his criminal record is unpreserved for our review and, in any event, we find that any error was harmless (see Matter of Justin EE., 153 AD2d 772, 774 [1989], lv denied 75 NY2d 704 [1990]). The father's remaining contentions, to the extent that they are preserved, have been reviewed and found to be lacking in merit. Garry, J.P., Rose and Devine, JJ., concur. 1 The father also asserts that, since entry of the prior custody order, "the mother interfered" with his visitations and that this fact, coupled with the child's expressed wish, established a change in circumstances. The father, however, did not testify to any such interference at the fact-finding hearing and, further, we find that his claim is belied by the record (compare Matter of Parchinsky v Parchinsky, 114 AD3d at 1041).  -4- 519135 ORDERED that the order is affirmed, without costs. ENTER: Robert D. Mayberger Clerk of the Court 

392 S.E.2d 754 (1990) 99 N.C. App. 302 George E. WATKINS, Employee, Plaintiff, v. CITY OF ASHEVILLE, Employer, Self-Insured, Defendant. No. 8910IC1186. Court of Appeals of North Carolina. July 3, 1990. *755 DeVere C. Lentz, Jr., P.A. by Shirley H. Brown, Asheville, for plaintiff-appellant. Nesbitt & Slawter by William F. Slawter and Russell & King, P.A. by J. William Russell and Kathy A. Gleason, Asheville, for defendant-appellee. ORR, Judge. Plaintiff first argues that the Full Commission erred in finding as fact "[t]hat the surgery recommended by plaintiff's physician *756 has a high probability of significantly reducing the period of plaintiff's disability and would be sought by a similarly situated reasonable man." For the reasons set forth below, we find no error. In reviewing an opinion and award of the Industrial Commission, this Court is limited in its inquiry to two questions of law: "(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether ... the findings of fact of the Commission justify its legal conclusions and decisions." Dolbow v. Holland Industrial, 64 N.C.App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (citation omitted). Because the Commission is the sole judge of the credibility of the witnesses and the weight given to their testimony, the Commission may assign more credibility and weight to certain testimony than other testimony. Furthermore, the determination of the Commission is conclusive upon appeal even though the evidence is capable of supporting two contrary findings. Id. at 697, 308 S.E.2d at 336 (citations omitted). The Commission's "findings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them." Mayo v. City of Washington, 51 N.C.App. 402, 406, 276 S.E.2d 747, 750 (1981), citing, Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390-91 (1980). "[I]f the totality of the evidence, viewed in the light most favorable to the complainant, tends directly or by reasonable inference to support the Commission's findings, these findings are conclusive on appeal even though there may be plenary evidence to support findings to the contrary." Id. at 406-07, 276 S.E.2d at 750 (citations omitted). With these basic principles in mind, we now turn to whether there is competent evidence in the case before us to support the Commission's finding "[t]hat the surgery recommended by plaintiff's physician has a high probability of significantly reducing the period of plaintiff's disability and would be sought by a similarly situated reasonable man." The controversy over this finding of fact arises under N.C.Gen.Stat. § 97-25 (1985), which states in part, The refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar said employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Commission the circumstances justified the refusal, in which case, the Industrial Commission may order a change in the medical or hospital service. This portion of § 97-25 was construed in Crawley v. Southern Devices, Inc., 31 N.C.App. 284, 229 S.E.2d 325 (1976), disc. review denied, 292 N.C. 467, 234 S.E.2d 2 (1977). The Crawley Court stated that: The general rule is that where the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit, the refusal of the claimant to undergo surgery is reasonable and will not prejudice his claim. Id. at 290, 229 S.E.2d at 329 (citations omitted). David O. Jarrett, M.D., orthopaedic surgeon, qualified as an expert witness, and testified before the Commission that he provided a course of treatment for plaintiff as a result of plaintiff's back injury. This course of treatment began on 16 May 1986 and included hospital treatment in May 1986 and eight days of hospital treatment and diagnosis in February 1987. Dr. Jarrett's testimony addressed both the probability that surgery would significantly reduce plaintiff's disability and plaintiff's refusal of such surgery. Dr. Jarrett testified that he recommended that plaintiff undergo back surgery (lumbar laminectomy with removal of the disc) in order to alleviate plaintiff's condition and possibly return to work. Dr. Jarrett further testified that it was his opinion in July 1987 that plaintiff's condition would be improved with surgery and that his disability would be reduced from a *757 100% disability without surgery to a 10% to 15% disability with the surgery. According to Dr. Jarrett, the longer plaintiff waited to have surgery, the "poorer the results." Dr. Jarrett explained this statement, "[i]n my own experience, the patients that have surgery that actually had a disc fragment out as this man has had, do well and are able to continue on life in a normal manner." Dr. Jarrett also testified that "[b]etter than 90% of the patients that have a laminectomy within a year are almost back to normal." While Dr. Jarrett could not testify that plaintiff would definitely improve with surgery, his testimony supported the Commission's finding that the recommended surgery "had a high probability of significantly reducing the period of plaintiff's disability...." We will now address that portion of the Commission's finding that the recommended surgery "would be sought by a similarly situated reasonable man." Under § 97-25, reasonableness is determined by whether the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit. 31 N.C. App. at 290, 229 S.E.2d at 329-30. Regarding whether the surgery is of serious magnitude and risk, Dr. Jarrett explained that although he considered this surgery "of serious magnitude and risk," lumbar laminectomies are "fairly common," that the risks "are unusual but they can occur" and that there are "similar risks associated with most any surgical procedure that a person would undergo." He further testified that he has performed hundreds of laminectomies and that plaintiff is not "at a higher risk as a surgical candidate than [any other] patient." Dr. Jarrett further testified concerning the pain and suffering associated with the surgery. He stated that the "surgery involves considerable pain but the pain is short-lived [a week or so]." Dr. Jarrett did not testify to the "certain benefit" of the surgery to plaintiff. He testified, however, to the probabilities of plaintiff's condition improving after surgery as discussed above. He also stated that for "some patients" this surgery has an "uncertain outcome." Dr. Jarrett testified that he last examined plaintiff in February 1989 and recommended surgery at that time to improve plaintiff's condition. Richard Weiss, M.D., neurosurgeon, examined plaintiff on referral by defendant, and was deposed concerning his medical findings and conclusion on 25 May 1988. Dr. Weiss generally concurred with Dr. Jarrett's findings and recommendations, except that he believed the risk of the surgery is "minimal." There is ample evidence to support plaintiff's arguments and his valid concerns about this surgical procedure. However, there is sufficient evidence under the previously stated principles of law to support the Commission's determination that the surgery is not of serious magnitude and risk, does not involve much pain and suffering and is not of uncertain benefit to plaintiff. Therefore, we are compelled to affirm the Commission's decision "[t]hat the surgery recommended by plaintiff's physician has a high probability of significantly reducing the period of plaintiff's disability and would be sought by a similarly situated reasonable man." Based upon the Legislature's intent to authorize the Commission upon proper findings to require plaintiff to undergo that surgery or lose his right to compensation, we must affirm no matter how seemingly valid plaintiff's reasons are for refusing to submit to surgery. We have considered plaintiff's remaining assignment of error that the Commission erred in concluding as a matter of law that defendant was entitled to an order that plaintiff undergo a lumbar laminectomy or forego compensation on the grounds that defendant's request for such an order was not timely. We find this assignment to be without merit. For the reasons set forth above, we find that the Commission did not err in its finding of fact or conclusion of law. Affirmed. GREENE and LEWIS, JJ., concur.

996 F.2d 1224 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Richard HARRIS, Petitioner-Appellant,v.J.L. SIVLEY, Warden, Respondent-Appellee. No. 92-15429. United States Court of Appeals, Ninth Circuit. Submitted June 8, 1993.*Decided June 15, 1993. Before CANBY, FERNANDEZ and T.G. NELSON, Circuit Judges. 1 MEMORANDUM** 2 The appellant challenges the denial of parole by the Parole Commission (Commission) and the National Appeals Board (NAB) claiming that the reasons given for the denial were not sufficiently particular, that the parole guidelines are arbitrary and capricious, and that the Attorney General no longer has the statutory authority to keep him in custody. We affirm. I. FACTS AND PRIOR PROCEEDINGS 3 Appellant Harris was convicted of interstate transportation of forged securities, bank fraud, and mail fraud. In September of 1988, the district court imposed a sentence of five years and ordered him to pay restitution in the amount of $1,052,250. The appellant's conviction and sentence were affirmed on appeal. The appellant's motion for relief under former Fed.R.Crim.P. 35(b) was also denied. 4 The appellant applied for parole, but the Commission denied parole, continuing his incarceration until the expiration of his sentence. The NAB affirmed the decision of the Commission when the appellant administratively appealed the decision. 5 The appellant filed a petition for a writ of habeas corpus in the district court challenging the denial of parole. The district court denied the petition. The pro se appellant timely appeals that denial. II. JURISDICTION AND STANDARD OF REVIEW 6 The district court had jurisdiction pursuant to 28 U.S.C. § 2241. We have jurisdiction pursuant to 28 U.S.C. § 2253 and 28 U.S.C. § 1291. 7 We review the denial of a petition for a writ of habeas corpus de novo. Robbins v. Christianson, 904 F.2d 492, 494 (9th Cir.1990). The scope of judicial review of the Parole Commission's decision to deny parole is exceedingly narrow. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987). III. DISCUSSION A. Issues on Appeal 8 The appellant challenges the Commission's denial of parole on several grounds. He claims the Commission did not state with sufficient particularity its reasons for the denial. He also may be claiming that the NAB similarly did not state with particularity its reason for affirming. He challenges the Parole Guidelines as arbitrary and capricious and contrary to the intent of Congress. Lastly, he claims the Attorney General no longer has the statutory authority to hold him in custody. 9 B. The Commission's Statement of Reasons for Denying Parole 10 The appellant claims that the Commission's explanation for denying his parole did not meet the statutory requirement of particularity. 18 U.S.C. § 4206(b) states: 11 The Commission shall furnish the eligible prisoner with a written notice of its determination not later than twenty-one days, excluding holidays, after the date of the parole determination proceeding. If parole is denied such notice shall state with particularity the reasons for such denial. 12 The legislative history explains what is necessary to meet the particularity requirement. The Senate report of this section says, "If a prisoner who has not served the minimum period recommended by the guidelines is denied parole, he should receive a statement containing his severity of offense rating, the calculation of his salient factors score and an explanation of how such a determination utilizing the guidelines was reached." S.Rep. No. 369, 94th Cong., 2d Sess. 25 (1975), reprinted in 1976 U.S.C.C.A.N. 335, 346. 13 The Commission's report denying parole to the appellant states: 14 Your offense behavior has been rated as Category Six severity because it involved fraud amounting to more than $1,000,000. Your salient factor score (SFS-81) is 10. You have been in federal confinement as a result of your behavior for a total of 25 months. Guidelines established by the Commission indicate a range of 40-52 months to be served for cases with good institutional adjustment and program achievement. After review of all relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted. 15 Because the appellant had not served the minimum recommended by the Parole Guidelines, the statement of reasons satisfied the particularity requirement. It explained the appellant's severity of offense categorization, gave his salient factors score (the calculation is also explained in the report), and essentially explained that the Commission sees no reason to make an exception for this prisoner who has not served enough time under the guidelines to be paroled. The statement of reasons for denying the appellant parole was sufficiently particular. 16 This conclusion is supported by a similar case in which the Fifth Circuit held that a statement of reasons, nearly identical to the one used in this case, satisfied the particularity requirement of section 4206(b). Shahid v. Crawford, 599 F.2d 666, 671 (5th Cir.1979). That court similarly relied upon the legislative history to determine that the simple and understandable statement was sufficiently particular. Id. at 671-72. C. The National Appeals Board's Affirmance 17 The appellant may also be claiming that the NAB did not meet the particularity requirement when it affirmed the Commission. The NAB, however, is required only to inform the appellant of its decision and the reasons therefore in writing within sixty days. 18 U.S.C. § 4215(b). There is no particularity requirement. The NAB properly affirmed the Commission's decision by providing an adequate statement of reasons within the required time. D. Challenge to the Parole Guidelines 18 The appellant claims that the Parole Guidelines are arbitrary and capricious and contrary to the mandates of Congress contained in the United States Code. Specifically, he claims that 18 U.S.C. § 4205(a) mandates that a prisoner be eligible for parole after serving 1/3 of his sentence, 20 months in his case, and contrary to this mandate, his guideline range for release was 40-52 months. 19 If a regulation is at odds with a statute, it will not be upheld simply because it is technically consistent with it. United States v. Vogel Fertilizer Co., 455 U.S. 16, 26 (1982). Yet great deference is given to an agency's interpretation of the statute it is charged to administer. Udall v. Tallman, 380 U.S. 1, 16 (1965). 20 18 U.S.C. § 4203(a)(1) gives the Commission the power to promulgate regulations and guidelines concerning parole. 28 C.F.R. § 2.20 determines, based on the severity of the prisoner's offense and his likelihood of proper conduct upon release (salient factors score), when a prisoner should be released. Section 4205(a) merely sets a time at which a prisoner becomes eligible for parole, it does not determine when he is suitable to be released. The guidelines in no way contradict the statute or any congressional intent. They merely reflect the judgment of the Commission concerning when prisoners with specific characteristics are best suited to be released from incarceration. The appellant's claim that these guidelines are arbitrary, capricious, and contrary to congressional intent is baseless. 21 E. Attorney General's Power to Hold the Appellant in Custody 22 The appellant claims that because 18 U.S.C. § 4082(a) was repealed, the Attorney General no longer has the power to keep him in custody. Section 4082(a) committed a prisoner convicted of an offense against the United States to the custody of the Attorney General. When it was repealed, the Attorney General did not lose the power to hold the appellant. The general savings clause of the United States Code, 1 U.S.C. § 109, states: 23 The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. 24 There has not even been a suggestion that the repealing statute intended to divest the Attorney General of the power to hold persons committed to her custody. The appellant is validly being held in custody. 25 AFFIRMED. * The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a) ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

797 F.Supp.2d 1138 (2011) Wayne WATSON and Mary Watson, Plaintiffs, v. DILLON COMPANIES, INC., d/b/a/ King Soopers, also d/b/a Inter-American Products, Inc., et al., Defendants.[1] Civil Action No. 08-cv-00091-WDM-CBS. United States District Court, D. Colorado. June 22, 2011. *1141 Kenneth B. McClain, Andrew Kelley Smith, Scott A. Britton-Mehlisch, Steven E. Crick, Steven E. Crick, Humphrey, *1142 Farrington & McClain, PC, Independence, MO, for Plaintiffs. Jason D. Melichar, Suzanne Marie Meintzer, Nelson Levine De Luca & Horst, LLC, Bruce Alford Menk, Darin James Lang, Hall & Evans, LLC, Denver, CO, Kenneth J. Barrish, Scott D. Stephenson, Litchfield Cavo, LLP, Chicago, IL, for Defendants. ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO EXCLUDE TESTIMONY MILLER, Senior District Judge. This matter is before me on the Joint Motion for Summary Judgment (ECF No. 572) filed by Defendants Dillon Companies, Inc., d/b/a King Soopers, Inter-American Products, Inc., and The Kroger Company (collectively, the "Kroger Defendants"), Gilster-Mary Lee Corporation ("Gilster-Mary Lee") and Birds Eye Foods, Inc., ("Birds Eye"). These Defendants have also filed motions to exclude portions of testimony of Plaintiffs' expert witnesses (ECF Nos. 567, 568, 569, and 570). Plaintiffs Wayne and Mary Watson oppose the motions. A hearing regarding the motions to exclude was held on June 14-15, 2011; witness testimony was presented and exhibits were received into evidence. Upon review of the parties' filings and evidence presented at the hearing, I conclude that no further oral argument is required. For the reasons that follow, the motions to exclude are granted in part and denied in part. The motion for summary judgment will be denied. Background[2] This is a personal injury case arising out of Plaintiff Wayne Watson's respiratory disorders, which he contends are the result of inhaling butter flavoring ingredients contained in microwave popcorn. Mr. Watson prepared and consumed two to three bags of butter flavored microwave popcorn at his home daily for approximately seven years (2000-2007). He has been diagnosed with a rare lung condition called bronchiolitis obliterans; this disease and other airway/respiratory conditions have occurred in statistically significant numbers at factories where microwave popcorn is produced. Mr. Watson purchased and consumed popcorn sold under the labels "Kroger" and "First Choice." He purchased the popcorn at a King Soopers grocery store in his hometown of Centennial, Colorado. Kroger owns and operates King Soopers and other grocery stores. The popcorn was manufactured by Defendants Gilster-Mary Lee and Birds Eye to be sold by the Kroger Defendants under the private store labels; the packaging for the popcorn did not identify the actual manufacturer of the product and contained only the names of the Kroger entities. Gilster-Mary Lee makes almost half of all private label microwave popcorn sold in the U.S. It began making First Choice brand microwave popcorn before 2000. Birds Eye made two of the Kroger popcorn products until 2003; thereafter, Gilster-Mary Lee acquired Birds Eye's microwave popcorn business and manufactured all of the microwave popcorn products consumed by Mr. Watson. Production of microwave popcorn has some general similarities across plants. In general, workers called mixers measure and mix butter flavorings[3] with soybean *1143 oil, salt, and coloring, generally in large heated mixing tanks. See, e.g., Ahmed Gomaa, et al., NIOSH INVESTIGATION OF GILSTER MARY LEE, HETA # XXXX-XXXX, TECHNICAL ASSISTANCE TO MISSOURI DEPARTMENT OF HEALTH, INTERIM REPORT (Aug. 22, 2001), Exh. 5 to Pls.' Statement of Facts, ECF No. 600-5, at 5-6. The combination of oil, butter flavoring, salt, and coloring is often referred to in the industry as the "slurry." The slurry is kept heated, at approximately 108 degrees Fahrenheit, piped to a holding tank and then injected into the microwave popcorn bags as they move along the line. Id., at 6. The bags are then sealed and wrapped. Id. Quality control ("QC") workers pop finished bags and often pour the contents into graduated cylinders to measure the proportion of popped to unpopped kernels and review other quality issues. The number of bags popped by workers in the QC area varies with the plant, but could be as much as 100 bags per worker per shift. A relationship between butter flavoring ingredients and worker health was first noted in 1999-2000. In 1999, five employees filed workers compensation claims against Gilster-Mary Lee alleging that they had developed permanent lung injuries from exposures to hazards at a Gilster-Mary Lee popcorn plant in Jasper, Missouri. Exh. 24 to Pls.' Statement of Facts, ECF No. 601-4. Dr. Allen J. Parmet, an occupational medicine physician in Missouri noted a "cluster" of respiratory problems in workers at the same plant in 2000 and brought the issue to the attention of public health officials. Kathleen Kreiss, M.D., et al., Clinical Bronchiolitis Obliterans in Workers at a Microwave-Popcorn Plant, NEW ENG. J. MED., Vol. 347, No. 5, 330 (Aug. 1, 2002), Exh. 1 to Pls.' Statement of Facts, ECF No. 600-1, at 337. Nine workers were reported to have bronchiolitis obliterans, a rare but serious lung disease. INTERIM REPORT, supra, ECF No. 600-5, at 4. Four of these workers were placed on a lung transplant list. Id. The Missouri Department of Health requested assistance from the National Institute for Occupational Safety and Health ("NIOSH"), a section of the Centers for Disease Control and Prevention. Id. NIOSH performed a Health Hazard Evaluation to determine whether exposures at the plant contributed to the disease. Id. NIOSH conducted environmental assessments and performed medical surveys and other examinations of the workers at the plant. Id. at 7-9. It discovered that plant employees had 2.6 times the rates of chronic cough and shortness of breath compared to national data, adjusted for smoking and age group, and that overall plant employees had 3.3 times the rate of obstructive spirometry abnormalities compared to national rates. Kreiss, supra, ECF No. 600-1, at 330. Rates of obstruction directly correlated with higher levels of exposure to butter flavoring ingredients. Id., at 332-33. NIOSH also found other statistically significant disparities in worker health at the Jasper plant as compared to national rates. Id. at 335. NIOSH thereafter investigated employee health and plant conditions at a number of other popcorn production plants. See, e.g., NIOSH HEALTH HAZARD EVALUATION REPORT: HETA XXXX-XXXX-XXXX, AGRILINK FOODS POPOCORN PLANT, RIDGWAY, ILLINOIS, October 2003, Exh. 38 to Pls.' Statement of Facts, ECF No. 601-19 at ii, 12 (finding statistically significant increased rates of chronic cough and airway obstruction in employees); Richard Kanwal, M.D., M.P.H., et al., Evaluation of Flavorings-Related Lung Disease Risk at Six Microwave Popcorn Plants, J. OCC. & ENV. MED., Vol. 48, No. 2, 149 (Feb. 2006), Exh. A-2 to Defs.' Statement of Facts, ECF No. 560-14, at 150, 153. More case clusters were found, which were again notable given the age and lack of smoking history of many of the affected workers. NIOSH ALERT: *1144 PREVENTING LUNG DISEASE IN WORKERS WHO USE OR MAKE FLAVORINGS, DHHS (NIOSH) Pub. No. 2004-110, Exh. 4 to Pls.' Statement of Facts, ECF No. 600-4, at 3-5. A common feature of such cases was abnormal lung function that did not improve in response to bronchodilator and corticosteroid medications. Id. Additional research has shown further inflammatory effects from inhalation of butter flavorings. Muge Akpinar-Elci, et al., Induced Sputum Evaluation in Microwave Popcorn Production Workers, CHEST: THE CARDIOPULMONARY AND CRITICAL CARE JOURNAL, 128, 991 (2005), Exh. 9 to Pls.' Statement of Facts, ECF No. 600-9, at 995-96 ("Our analysis showed that high exposure to popcorn flavoring agents is significantly associated with neutrophilic airway inflammation in popcorn production workers. . . . Neutrophilic airways inflammation is a potentially important underlying factor in development of the bronchiolitis obliterans syndrome (BOS) previously documented in workers at this plant."). From early in the NIOSH investigations and other research studies, attention focused on diacetyl, a chemical used in artificial butter flavor. Kreiss, supra, ECF No. 600-1, at 331. Diacetyl is typically measured in parts per million ("ppm"). Although the U.S. Food and Drug Administration categorizes diacetyl as "GRAS," or "Generally Recognized as Safe," this label apparently concerns eating or consumption, and does not necessarily mean that the chemical is safe to inhale. Egilman Report, Exh. 17 to Pls.' Statement of Facts, ECF No. 600-17, at 19-20. It has a relatively low boiling point and so it vaporizes at temperatures common in food production. Philip Harber, et al., Diacetyl-Induced Lung Disease, TOXICOLOGY REVIEW, 25(4), 261 (2006), Exh. 7 to Pls.' Statement of Facts, ECF No. 600-7, at 262. It also occurs naturally in many foods. Id. at 263. Animal studies have confirmed that diacetyl vapor causes damage to nasal and airway linings of rats. A.F. Hubbs, et al., Necrosis of Nasal and Airway Epithelium in Rats Inhaling Vapors of Artificial Butter Flavoring, TOXICOLOGY AND APPLIED PHARM., 185, 128 (2002), Exh. 3 to Pls.' Statement of Facts, ECF No. 600-3, at 128; Harber, supra, ECF No. 600-7, at 265 (diacetyl causes direct injury to airway epithelium, or lining). Diacetyl was the predominant chemical in air sampling of volatile chemicals at the plants. Kathleen Kreiss, Flavoring-related Bronchiolitis Obliterans, CURR. OPIN. ALLERGY CLIN. IMMUNOL., 7: 162, Exh. 6 to Pls.' Statement of Facts, ECF No. 600-6, at 165. Studies at popcorn plants revealed a strong association between exposure to vapors from flavorings, including diacetyl, and decreased lung function. Kreiss, supra, ECF No. 600-1, at 333 ("The prevalence of airway obstruction increased with increasing cumulative exposure to diacetyl"); NIOSH ALERT, supra, ECF No. 600-4, at 1; INTERIM REPORT (Aug. 22, 2001), supra, ECF No. 600-5, at 18 ("The exposure-response relationship between diacetyl cumulative exposure and pulmonary function was unequivocal"); Harber, supra, ECF No. 600-7, at 262 (results of surveys at popcorn plants "pointed to a clear association between a particular chemical agent (diacetyl) and bronchiolitis obliterans"). Studies of emissions from microwave popcorn preparation have shown that the highest levels of release occur when opening the bag after popping. Jacky A. Rosati, et al., Emissions from Cooking Microwave Popcorn, CRIT. REV. IN FOOD SCI. & NUTRITION, 47, 701 (2007), Exh. 47 to Pls.' Statement of Facts, ECF No. 602-7, at 709. It has been established that chemicals emitted during normal popping of microwave popcorn are similar to those found by NIOSH in popcorn manufacturing plants, with the exception of one chemical not at issue here. Id. *1145 at 706. However, some studies have also concluded that although high levels of diacetyl are emitted in the microwave chamber, the levels are likely diluted by the space between the oven and the user. Roger Pearson, Ph.D, Aspen Research Corp., Evaluation of Microwave Popcorn Potential to Emit Organic Compounds, Aspen Project No. 34579 (May 5, 2005), Exh. 51 to Pls.' Statement of Facts, ECF No. 602-11, at 3-4. Based on these findings, NIOSH and other researchers have issued recommendations for reducing exposures in the workplace, including better exhaust and ventilation, closed production systems, personal protective equipment, and removal of diacetyl as an ingredient in butter flavoring. NIOSH ALERT, supra, ECF No. 600-4, at 3; Harber, supra, ECF No. 600-7, at 269; Nancy Sahakian & Kathleen Kreiss, Lung Disease in Flavoring and Food Production: Learning from Butter Flavoring, ADVANCES IN FOOD AND NUTRITION RESEARCH, Vol. 55, 163 (2009), Exh. 11 to Pls.' Statement of Facts, ECF No. 600-11, at 182. Gilster-Mary Lee ceased using diacetyl in its butter flavoring around 2006-2007. Welge Dep., Exh. 18 to Pls.' Statement of Facts, ECF No. 600-18, at 76; Welge Dep., Exh. 32 to Pls.' Statement of Facts, ECF No. 601-13, at 54. Although the relationship between exposure to butter flavorings and respiratory problems has been established, there remain numerous unanswered questions about what level of exposure triggers health effects and whether such effects are caused by peak or by cumulative exposures. NIOSH ALERT, supra, ECF No. 600-4, at 6; Kreiss, supra, ECF No. 600-6, at 165-66; Harber, supra, ECF No. 600-7, at 268. There is little dispute that ongoing high levels of exposure leads to problems. The research has shown that mixers, in particular, at all plants had high rates of exposure to the flavoring chemicals and have had correspondingly higher rates of respiratory and airway disorders. Kanwal, supra, ECF No. 560-14, at 153; INTERIM REPORT (Aug. 22, 2001), supra, ECF No. 600-5, at 17; NIOSH HEALTH HAZARD EVALUATION REPORT: HETA XXXX-XXXX-XXXX, AGRILINK FOODS POPOCORN PLANT, RIDGWAY, ILLINOIS, supra, ECF No. 601-19 (finding high vapor levels in both mixing and QC rooms and high levels of lung disease). Workers who worked near inadequately isolated tanks of flavorings, such as those in the packaging area, also show higher rates of disease and risk. Kanwal, supra, ECF No. 560-14, at 155. Evidence relating to workers exposed at lower levels than mixers is less conclusive. Plaintiffs argue that Mr. Watson's exposure is more similar to that of QC workers, who pop and open popcorn in the same manner as consumers, albeit at much greater rates. Kreiss, supra, ECF No. 600-1, at 337 (QC workers' exposures exceed those likely to occur in households "by orders of magnitude"). Exposure levels of QC workers varies across plants; further difficulty in research occurs because in some plants QC workers also do or have done other jobs and because of differences in the number of bags opened per shift. Kanwal, supra, ECF No. 560-14, at 154. At the Jasper plant, for example, workers popped 100 bags of popcorn each shift in a small room with little ventilation and had higher rates of abnormal lung function. NIOSH ALERT, supra, ECF No. 600-4, at 46. At that plant, the exposure levels of QC workers were lower than those of mixers[4] but QC workers still had high rates of airway obstruction. *1146 Kreiss, supra, ECF No. 600-6, at 165. In contrast, QC workers in other plants, where exposure levels were lower, did not show such high rates of disease. NIOSH HEALTH HAZARD EVALUATION REPORT, HETA # XXXX-XXXX-XXXX, GILSTER-MARY LEE CORP., JASPER, MISSOURI (Jan. 2006), Exh. 37 to Pls.' Statement of Facts, ECF No. 601-18 at 13; NIOSH HEALTH HAZARD EVALUATION REPORT, HETA # XXXX-XXXX-XXXX, AMERICAN POP CORN CO., SIOUX CITY, IOWA (July 2004), Exh. 39 to Pls.' Statement of Facts, ECF No. 601-20; Kanwal, supra, ECF No. 560-14, at 154. Animal studies have also focused on acute exposures and not on repetitive or low-dose exposures. Harber, supra, ECF No. 600-7, at 266. However, researchers from at least one study have concluded that the risk to QC workers, as with mixers, may result from brief, intense exposures to the flavoring chemicals even when low average exposures are maintained. Kanwal, supra, ECF No. 560-14, at 156. This study also noted that the risk to QC workers is of a different nature than other workers because they work with the product at much higher temperatures, which increases the volatility of the flavoring chemicals. Id.; see also WORKER UPDATE ABOUT NIOSH TESTING AT JASPER POPCORN, HETA 2000-0401 (Aug. 2, 2002), Exh. 28 to Pls.' Statement of Facts, ECF No. 601-9, at GML 22302 (opining that QC workers receive peak exposures to flavoring vapors when microwaving the bags, opening the bags, and measuring the hot popcorn as a result of the high cooking temperatures). I now turn to the evidence relating to Mr. Watson's health history and his diagnosis of bronchiolitis obliterans. Bronchiolitis obliterans is a rare lung disease involving inflammation of the small airways. INTERIM REPORT (Aug. 22, 2001), supra, ECF No. 600-5, at 15. It is characterized by airway obstruction which does not improve with use of an inhaled brochodilator and shortness of breath upon mild to moderate exertion. Id. Its known causes include reactions after lung or bone marrow transplants, exposure to certain chemicals (including nitrogen oxides, chlorine gas, ozone, hydrogen sulphide and sulphur dioxide), viral pneumonia and other viral infections, and ulcerative colitis. Id.; Harber, supra, ECF No. 600-7 at 264. NIOSH and other researchers have concluded that the flavoring ingredients can cause bronchiolitis obliterans in the workplace. NIOSH ALERT, supra, ECF No. 600-4, at 2. Mr. Watson owned a carpet cleaning company from approximately 1998 or 1999 to 2001. He was exposed to carpet cleaning chemicals in the course of that work and did not regularly use respiratory safety equipment, although he testified that he used fans for ventilation and kept windows and doors open while working. As noted above, his heavy consumption of Defendants' microwave popcorn products occurred from around 2000 to 2007. Mr. Watson's history of respiratory problems goes back some time. He was diagnosed with asthma and pneumonia in 1998, although no pneumonia was revealed on his chest x-ray at that time. He also had reflux disease. Mr. Watson was diagnosed with pneumonia again in 2000, but the chest x-ray again was not conclusive. His medical records showed additional breathing problems and coughing in 2002 and 2003. In 2005, he began noticing that while singing he could not sustain his notes and that he was short of breath. His records show more evidence of breathing difficulty and coughing in 2006. He consulted a physician at National Jewish Medical and Research Center in May 2006, where he was evaluated for sleep apnea; his decreased pulmonary function was also noted. A lung biopsy was taken, which showed various abnormalities. In 2006, his physician noted that even though Mr. *1147 Watson's exposure to carpet cleaning chemicals had ceased in 1999, his shortness of breath had progressed. Mr. Watson was examined by Dr. Cecile Rose at National Jewish in February 2007. She noted that he consumed large amounts of microwave popcorn on a daily basis and recommended that he stop. He did and began feeling better; his symptoms have apparently stabilized since then. Dr. Rose has worked as a consultant to the flavoring industry with respect to occupational exposure to flavoring ingredients and was already quite familiar with the research concerning respiratory problems among popcorn factory workers. It appears that Dr. Rose diagnosed Mr. Watson with bronchiolitis obliterans and opines that his disease was caused by his exposure to microwave popcorn flavorings. The basis for her opinion is discussed further below. Mr. Watson has also had heart problems and in 2009 underwent heart surgery for an aneurysm on the thoracic aorta. On February 22, 2007, John Martyny, Ph.D., an industrial hygienist, performed an assessment of diacetyl levels in the Watson home before and during the process of preparing two bags of microwave popcorn. Martyny Dep., Exh. 53 to Pls.' Statement of Facts, ECF No. 602-13, at 27. Dr. Martyny used two methods to measure diacetyl levels: (1) an integrated sampling method, used in the NIOSH evaluations of popcorn plants; and (2) an Innova gas monitor to measure peak diacetyl concentrations in various places. Id. at 26-27. Using the first method, all of the samples were below the limit of detection. Nestmann Report, Exh. A-8 to Defs.' Statement of Facts, ECF No. 560-25, at 9. Using the gas monitor, a peak diacetyl concentration was measured at 3.045 ppm, which occurred upon opening the microwave door immediately following completion of popping the first bag of popcorn. Id. Upon opening the bag, a peak concentration of 1.143 ppm was measured. Id. This was similar to background levels measured before popping, see hearing Exhibit 209, which could signify unreliability in the measurement, as Defendants' witnesses suggest, or the presence of residual diacetyl in the Watson home, as Plaintiffs' witnesses suggest. On July 18, 2007, Dr. Rose wrote a letter to the Food and Drug Administration and other regulatory agencies identifying Mr. Watson as perhaps the first case of a consumer developing lung disease from butter flavorings. Exh. 52 to Pls.' Statement of Facts, ECF No. 602-12 ("We have recently identified a patient with significant lung disease whose clinical findings are similar to those described in affected workers, but whose only inhalation is as a heavy, daily consumer of butter flavored microwave popcorn."). She explains the reasons that she believes his illness was caused by butter flavoring, including his heavy consumption of microwave popcorn, his worsening condition without a bronchodilator response, which is similar to symptoms of popcorn workers, his CT scan and lung biopsy, the fact that his clinical course was consistent with those microwave popcorn workers who developed bronchiolitis obliterans, the stabilization of his condition with the cessation of popcorn consumption, and the measurement of diacetyl in his home. Id. She recognizes the difficulty of making a causal connection from one case study but states she is providing the information to the federal agencies because of the possible public health implications. Id. Defendants seek to exclude much of the opinion testimony of Plaintiffs' expert witnesses based on Rule 702 of the Federal Rules of Evidence and the reliability standards set forth by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 *1148 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. Assuming that testimony is excluded, Defendants then seek summary judgment in their favor, arguing that Plaintiffs will be unable to present evidence in support of key elements of their claims. Defendants also seek summary judgment on other aspects of the claims. At the June 14-15, 2011 hearing, testimony was provided by Dr. David Egilman, Dr. Allen J. Parmet, Dr. E. Neil Schachter, Dr. Colin Soskolne, and Dr. Kenneth Kulig. Several exhibits were referenced and the parties have stipulated to their admission into evidence.[5] Standard of Review Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying `a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.'" Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)). Then, "[t]o avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Id. Rule 702 permits an expert to testify in the form of an opinion if (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. Under Daubert, a trial court faced with a proffer of expert testimony must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. 509 U.S. at 592-93, 113 S.Ct. 2786. This "gatekeeping" function applies to all expert testimony proffered under Fed.R.Evid. 702. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert's holding on scientific expert testimony to all expert testimony). The objective of the function "is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152, 119 S.Ct. 1167. The two key determinations are whether the expert evidence "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597, 113 S.Ct. 2786. Factors that may be considered in determining whether a theory or technique is scientific (or expert) knowledge include whether it can be (and has been) tested, whether it has been subjected to peer review and publication, the known or potential rate of error (including the existence and maintenance of standards *1149 controlling a technique's operation) and whether it has been generally accepted within the relevant expert community. Id. at 593-94, 113 S.Ct. 2786. These factors are not exclusive and should be applied as relevant to the particular case at hand. Kumho, 526 U.S. at 152-53, 119 S.Ct. 1167. See also Daubert, 509 U.S. at 591, 113 S.Ct. 2786 (the theory must "fit" the facts of the case, i.e., be relevant); Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999) (same). The trial judge has "considerable leeway" in determining how to test an expert's reliability. Kumho, 526 U.S. at 152, 119 S.Ct. 1167. Discussion Plaintiffs' Fourth Amended Complaint contains the following claims for relief: (1) negligence; (2) strict liability in tort—design defect; (3) failure to warn; (4) violation of the Colorado Consumer Protection Act ("CCPA"); (5) loss of consortium (asserted by Plaintiff Mary Watson, Mr. Watson's wife); and (6) recovery of medical expenses. ECF No. 548. Plaintiffs seek recovery of punitive damages against Gilster-Mary Lee. Id. Defendants move for summary judgment on several grounds: (1) Plaintiffs cannot establish general or specific causation for their negligence, strict liability, and failure to warn claims; these arguments are based on the motions to exclude Plaintiffs' expert opinion testimony on causation; (2) Plaintiffs' CCPA claim fails because they cannot establish that Defendants engaged in an unfair or deceptive trade practice that significantly impacts the public; (3) the product liability claim against the Kroger Defendants fails because Kroger did not have actual knowledge of the alleged defect, did not design the specifications relating to the alleged defect, and did not have substantial control over the manufacturing process; (4) punitive damages are inappropriate because Plaintiffs cannot establish that Gilster-Mary Lee was aware of and disregarded a serious risk to consumers from microwave popcorn flavorings. A. Motions to Exclude Plaintiffs have the burden of proving that popcorn flavoring ingredients caused Mr. Watson's injury. This requires a two-fold showing: (1) that the substance at issue is capable of causing a particular injury or condition (general causation); and (2) whether that substance caused the plaintiff's particular injury. Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir.2005). Elements that may assist in establishing specific causation include the following: (1) the toxic substance at issue has been demonstrated to cause in humans the disease or illness suffered by the plaintiff; (2) the individual has been exposed to a sufficient amount of the substance in question to elicit the health effect at issue; (3) the chronological relationship between exposure and effect is biologically plausible; and (4) the likelihood that the chemical caused the disease or illness is considered in the context of other known causes. Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142, 1156 (E.D.Wash.2009) (citation omitted). Of particular concern is the "dose-response" relationship, i.e., "the relationship in which a change in amount, intensity, or duration of exposure to a chemical is associated with a change in risk of disease" and the amount of the plaintiff's alleged exposure. Id. at 1157 (citations omitted). Nonetheless, "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship," provided the methods employed by the expert are otherwise reliable. Id. Plaintiffs have proffered three experts who have opined that Mr. Watson has bronchiolitis obliterans caused by exposure *1150 to microwave popcorn flavoring. This is clearly relevant to the issues to be decided; the dispute here concerns only the reliability of those opinions. I will summarize the proposed testimony and opinions of each expert and Defendants' objections. Defendants do not appear to contend that these witnesses are not qualified to serve as experts but rather take issue with the substance of their proposed testimony. Therefore, I will only briefly review the credentials of each witness. 1. David Egilman, M.D. (expert report attached as Exh. 17 to Pls' Statement of Facts, ECF No. 600-17) Dr. Egilman is a medical doctor and Clinical Associate Professor of Community Medicine at Brown University. He is board certified in Internal Medicine and Preventive-Occupational Medicine. He has offered opinions on both general and specific causation. In his expert report, Dr. Egilman reviews Mr. Watson's medical records and other evidence pertaining to his medical history. Dr. Egilman also reviews Mr. Watson's work history, including his time working as a carpet cleaner. He notes that Mr. Watson is a lifelong non-smoker. He reviews the possible causes of bronchiolitis obliterans and opines that pneumonia was not the cause of Mr. Watson's disease because the diagnoses of pneumonia were not conclusive and there was no evidence of bronchiolitis obliterans in Mr. Watson's tests in 1999 and 2000. He also rules out chemical exposure as a cause because Mr. Watson has not been exposed to the chemicals known to cause this condition. Dr. Egilman then discusses the research on health hazards associated with diacetyl, particularly in the microwave popcorn factory setting. He reviews two other cases involving consumers claiming to have suffered lung disease as a result of exposure to butter flavoring ingredients. Dr. Egilman opines on general causation using a model for determining causality developed by Sir Austin Bradford Hill. This model requires examination of temporality, biologic gradient (dose-response), consistency, biologic plausibility, strength of association, analogy, experimental evidence, coherence and specificity, concepts which are explained in detail. Egilman Report, ECF No. 600-17, at 20-25. Applying the framework, Dr. Egilman relies on much of the research cited above to show a strength of association between bronchiolitis obliterans (or other respiratory symptoms) and exposure to diacetyl and butter flavoring. This research has generally shown that workers in higher exposure areas have significantly higher rates of symptoms that those who work in areas with lower exposures. He focuses in particular on the studies at the Gilster-Mary Lee plant in Jasper. Id. at 25 (citing Kreiss, supra, ECF No. 600-1). He also relies on an article examining data from six separate studies conducted at microwave popcorn plants, which concluded that microwave popcorn workers at many plants are at risk for flavoring related lung disease. Id. at 26 (citing Kanwal, supra, ECF No. 560-14). Turning to temporality, Dr. Egilman notes that diacetyl exposure preceded the occurrence of bronchiolitis obliterans in all studies. He then addresses the question of dose-response, and opines that "diacetyl's effect on the lung follows a dose-response relationship." Id. at 26. As grounds, Dr. Egilman relies on an animal study showing that diacetyl was shown to cause increased necrosis in the airway epithelia of rates exposed to a higher dose of diacetyl than a lower dose. Id. at 26 (citing Hubbs, supra, ECF No. 600-3). He also relies on the studies of plant workers *1151 that showed that the rates of respiratory symptoms were lower in areas with less exposure to diacetyl; similarly, workers who reported being mixers for longer periods of time had more symptoms than those with less time. Id. at 26-27 (citing Kreiss, supra, ECF No. 600-1; Kanwal, supra, ECF No. 560-14) He then discusses the consistency of the findings, observing that associations have been found between diacetyl exposure from butter flavoring in at least six popcorn manufacturing plants. He also notes that animal studies have consistently shown a relationship between diacetyl exposure and necrosis of the airway epithelial tissue. He observes that several researchers, including those with NIOSH, have relied on these animal studies to conclude that diacetyl is the mechanism causing damage. Id. at 28 (citing NIOSH reports for various popcorn factories). He also cites studies showing that cases of lung disease have been reported in association with diacetyl exposure across a number of food manufacturing industries, including raw material workers, butter flavoring manufacturing, popcorn production, and other flavoring workers. Id. As to specificity, Dr. Egilman states that the adverse effects have been limited to lung and other mucus membranes where the chemicals have direct contact with human or animal cells. Id. at 29. He notes that bronchiolitis obliterans is a very rare disease (other than for organ transplant patients) but has been diagnosed in a number of workers exposed to diacetyl. He addresses biologic plausibility, and cites research from the 2002 Kreiss, et al., study as well as a 2009 study in which the researchers reported that artificial butter flavoring was the causative agent in the cases of brochiolitis obliterans at the Jasper plant. Id. (citing Sahakian & Kreiss, supra, ECF No. 600-11). He further notes that diacetyl is an alpha-dicarbonyl compound, which inhibits protection from oxidative stress. Id. (citing Kreiss, supra, ECF No. 600-1). He argues that this explanation is coherent and has been supported by the animal studies discussed above. Id. at 30-33 (citing research on rats, guinea pigs showing direct toxic effect on respiratory linings, as well as other studies showing respiratory health effects on mice). He cites literature noting that although mouse and rat biology is different from humans, the studies "suggest significant amounts of inspired diacetyl penetrate to the bronchioles of the human, with greater penetration occurring during exercise than rest." Id. at 32 (citing Morris, JB, Toxicology Program, University of Conn., Storrs, CT, Abstract: A PBPK Model for Inspired Vapor Intake in the Human and its Application to Diacetyl Diosmetry, Society of Toxicology, 2010 Annual Meeting). Finally, he addresses the analogy component of the model, and notes that other substances have proved toxic when inhaled, including substances that cause changes in the respiratory epithelium, and that exposures to these chemicals are accepted causes of bronchiolitis obliterans. Id. at 33. Dr. Egilman then opines that microwave popcorn emits diacetyl vapors when bags are opened and that diacetyl remains in the air after popping. Id. at 33. He relies on a 2007 EPA study which specifically tested chemical emissions in seventeen types of microwave popcorn from eight different brads; all contained diacetyl but in different amounts. Id. (citing Rosati, supra, ECF No. 602-7). As noted above, the Rosati study determined that the highest rate of emission occurred at the stage when the bags were opened, and the second occurred during popping; diacetyl remained in the air for up to 40 minutes after popping. *1152 Dr. Egilman also opines on specific causation. He relies on the levels of diacetyl found by Dr. Martyny and compares the peak levels measured in the Watson home, approximately 3 ppm, to levels at the Gilster-Mary Lee plant. Id. at 40. He contends that peak levels in the Jasper plant upon opening a bag and in a QC worker's breathing zone (approximately 4 ppm, 7 ppm, and 13 ppm) are comparable to the peak levels to which Mr. Watson was exposed in his consumption of the Kroger label popcorn. Id. He then calculates a daily average exposure for Mr. Watson of 0.0015 to 0.003 ppm for weekdays and 0.0015 ppm to 0.0045 ppm on weekends, and an average cumulative exposure level. Id. at 41. He argues that these levels are similar to those found in QC areas of microwave popcorn plants, relying primarily on data from the Jasper plant. He also notes the conclusion of some researchers that "intermittent peak exposure" may increase risk of disease even if average exposures are lower. Id. at 41 (citing Kanwal, supra, ECF No. 560-14). Dr. Egilman also relies on Dr. Rose's letter to the FDA and her conclusion that it was plausible that Mr. Watson's exposure to butter flavoring vapors caused his lung disease. Id. at 42. I now address Defendants' objections to these opinions. As noted above, the burden with respect to general causation is to show that "the substance at issue" is capable of causing the kind of harm alleged. Defendants seek to exclude Dr. Egilman's opinion regarding general causation on the grounds that it has not been shown that the substance that Mr. Watson was exposed to is the same substance that caused illness in microwave popcorn factory workers and because no published research has established any risk to consumers from butter flavorings emitted in preparing microwave popcorn. They further argue that the animal studies cannot be extrapolated to opine on human health effects. Defendants argue that Mr. Watson was exposed to "microwave popcorn vapors," and that this differs somehow from the diacetyl or the "slurry vapors" upon which all the referenced animal and epidemiological studies have been based. Defendants rely heavily on Henricksen, supra, in which the court found an expert's causation testimony to be unreliable. The plaintiff had been exposed to gasoline containing benzene; while benzene had been shown to cause harm to human health, no studies had ever linked the plaintiff's disease to gasoline. 605 F.Supp.2d at 1161. Noting that the plaintiff had been exposed to gasoline, not benzene, the court concluded that the plaintiff's expert could not "simply presume that the qualitative toxic and carcinogenic effects of benzene from any source are the same." Id. at 1156. Moreover, all the experts in the case had testified that benzene induced diseases were dose dependent but there was no evidence as to the plaintiff's actual exposure.[6]Id. at 1162. While the concern noted in Henricksen is important, I conclude that the facts presented here are distinguishable. I agree with Plaintiffs that the "substance at issue" here is vapor from butter flavoring containing diacetyl. The "slurry" in the factory setting is the same combination of ingredients put in the packages of popcorn and so I fail to see a meaningful distinction between the two, particularly since the product consumed by Mr. Watson is the same as that produced in the Gilster-Mary Lee plant in Jasper. Indeed, studies of emissions from cooking microwave popcorn *1153 have established that the chemicals emitted are essentially the same as those sampled in the air at microwave popcorn factories. Rosati, supra, ECF No. 602-7, at 706. Moreover, the published literature on this issue indicates that the exposure risk from popping may be greater, because the higher temperature involved means greater volatility and release of the chemicals in the flavoring ingredients.[7] Kanwal, supra, ECF No. 560-14, at 156. Defendants' arguments essentially seek to make a distinction based on quantity or level of exposure, which is clearly greater in the factory setting. That issue, however, is a matter relevant to specific causation, not to the general causation question of whether the chemicals emitted in vaporizing butter flavoring ingredients can cause harm to the human respiratory system. Defendants next argue that Dr. Egilman's opinions are unreliable because there are no epidemiological studies showing the effects of vapors from popping microwave popcorn. They argue the studies of QC workers are inapplicable because of the significantly higher number of bags popped per day (often a hundred or more compared to Mr. Watson's two to three) and variations in the workplace assignments and environments. They further note that no studies have been done on consumer exposures. I agree with Defendants that there appear to be few if any epidemiological studies examining the effect of exposure from popping microwave popcorn at the levels that Mr. Watson prepared popcorn. Again, however, I conclude that the level of exposure is an issue going to specific causation, not general causation, and that there is adequate evidence for Dr. Egilman to opine that vapors from butter flavorings can be harmful. Moreover, the Tenth Circuit has recognized that a medical expert does not always have to cite to published studies on general causation in order to establish causation and, under the right circumstances, a differential diagnosis (i.e., ruling out other possible causes of the condition) may reliably form the basis of an opinion that a particular item caused an injury. Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1211-12 (10th Cir.2002) (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir.2000)). "The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims' condition and the toxic substance, has not yet been completed." Turner, 229 F.3d at 1209. Dr. Egilman and Dr. Rose have both discussed why they believe that other known causes of bronchiolitis obliterans have been eliminated, leaving Mr. Watson's exposure to butter flavoring vapors as the most plausible explanation. Accordingly, I conclude that the lack of epidemiological studies on consumers does not mean that Dr. Egilman's general causation opinion is unreliable or irrelevant. I will discuss the issues regarding the applicability of studies of QC workers to Mr. Watson's condition with respect to specific causation, below. Finally, Defendants argue that Dr. Egilman's reliance on animal studies makes his opinion unreliable because of differences between the respiratory systems of mice/ rats and humans. However, scientists at NIOSH and other researchers have relied on these same studies in concluding that diacetyl is the cause of injury in microwave popcorn workers' respiratory disorders. Dr. Egilman, as well as the researchers he *1154 cites, have explained the extent to which these studies are applicable to human health effects. The animal studies have shown that diacetyl has a direct toxic effect on respiratory linings of the test subjects; the limits of the comparisons to humans are discussed and acknowledged. Defendants' disputes regarding animal studies go to the weight of the evidence, not its admissibility. Given the significant evidence of the toxicity of diacetyl and the epidemiological studies showing health effects from inhalation of butter flavoring ingredients containing diacetyl, I conclude that Dr. Egilman should be permitted to opine regarding general causation. Defendants also seek to exclude Dr. Egilman's testimony with respect to specific causation, i.e., that inhalation of butter flavoring ingredients from microwave popcorn caused Mr. Watson's disease. First, Defendants argue that Dr. Egilman's opinion is flawed because there is inadequate evidence of a dose-response relationship to show that Plaintiff was exposed to an amount of the substance sufficient to cause his illness. Dr. Egilman opines that "levels of diacetyl exposure around .02 ppm and above have caused [bronchiolitis obliterans] and other respiratory illness." Egilman Report, ECF No. 600-17, at 42. I agree with Defendants that there is little to no reliable evidence establishing a threshold dose and that Dr. Egilman's opinion in this regard is not based on a reliable foundation. Dr. Egilman establishes this amount based primarily on the data from the Jasper plant, where five of six quality control workers showed evidence of airway obstruction. However, as Defendants note, the QC workers in that plant were exposed to vapors not only from popping bags but also potentially from passing through other parts of the plant where vapors were present and/or from performing other jobs at the plant. Even Plaintiff's own witness, Dr. Parmet, testified at the hearing that all of the exposures at the plant could have contributed to illness of the QC workers, although he believes that most of the exposure came from working in the QC lab. As discussed above, and as acknowledged in Dr. Egilman's report, the average diacetyl air concentration at the Jasper plant was significantly higher than the 0.02 ppm he opines is a threshold; in his report, Dr. Egilman sets the Jasper plant levels at 0.6 ppm. Id. at 41. Dr. Egilman then discusses two other plants, one of which had mean diacetyl concentrations of 0.001 ppm and no QC workers with illness, and another with mean concentrations of 0.02 ppm with one of eleven QC workers showing illness. Id. (citing Kanwal, supra, ECF No. 560-14). The researchers, however, did not consider the results at the third plant to be significant. Kanwal, supra, ECF No. 560-14, at 154. These studies do not provide a reliable basis for Dr. Egilman's opinion that 0.02 ppm is the minimum exposure level that can cause illness. It is apparent from the research literature provided that the dose mechanism is not understood at this time. There is no reliable data to show what is the minimum amount of exposure that will trigger respiratory problems and it is apparent that considerable questions remain regarding whether lower amounts in repetitive or peak dosages will cause disease. Therefore, Dr. Egilman's opinions regarding a specific dose-response or minimum threshold exposure level should be excluded. Defendants next argue that Dr. Egilman's opinion is unreliable because it relies in part on the results of Dr. Martyny's measurements of diacetyl in the Watson home. Dr. Egilman disregards the non-detectable levels measured in the using the NIOSH 2557 method, claiming this method to be unreliable. However, as Defendants *1155 note, this is the method used in the NIOSH studies of the popcorn plants, which Dr. Egilman uses to establish his alleged minimum threshold level. Since I have excluded the opinion regarding the threshold exposure level, I need not address this discrepancy. Defendants also argue that Dr. Egilman relies on the peak level of 3.045 ppm measured by the second method (using the Innova monitor) but fails to adjust for background levels of diacetyl which were present before any popcorn was popped and the evaluation was in general not a controlled scientific study. I conclude that these are issues for cross examination but do not render all of Dr. Egilman's conclusions inadmissible. Dr. Martyny's measurements are sufficient to demonstrate that Mr. Watson was exposed to some level of diacetyl, although the precise amount is disputed, and Dr. Egilman's opinions are admissible to the extent that they are based on the fact of that exposure. Defendants further contend that Dr. Egilman cannot rely solely on a temporal relationship between Mr. Watson's exposure to microwave popcorn flavoring vapors and his illness. Were this the only basis for Dr. Egilman's conclusions I would agree. However, this is but one factor that Dr. Egilman considered in his analysis and I see no reason to exclude his entire causation opinion testimony on this basis, when temporality appears to be a factor taken into account in considering causation. Finally, Defendants object to Dr. Egilman's differential diagnosis to rule out other causes of Mr. Watson's bronchiolitis obliterans. "Differential diagnosis refers to the process by which a physician `rules in' all scientifically plausible causes of the plaintiff's injury. The physician then `rules out' the least plausible causes of injury until the most likely cause remains." Sandoz, 289 F.3d at 1209 (citations and internal punctuation omitted). The Tenth Circuit has implicitly approved of the use of differential diagnosis as a method for determining causation in appropriate circumstances. Id. at 1211-12. Defendants argue that Dr. Egilman did not properly "rule out" Mr. Watson's history of pneumonia and his exposure to carpet cleaning chemicals as possible alternative causes of his illness. I again conclude that these are issues that go to the weight of the evidence, not its admissibility, and can be addressed on cross-examination. Dr. Egilman does explain why he has ruled out these possible explanations for Mr. Watson's illness. As to pneumonia, Dr. Egilman opines that the diagnosis of pneumonia was not definite and, even if had this been the cause, there would have been signs of bronchiolitis obliterans soon after the illness in 2000. Dr. Rose also explains why she believes that pneumonia was not the cause of Mr. Watson's illness, specifically that his condition would have continued to deteriorate instead of stabilizing after ceasing to consume microwave popcorn. Similarly, Dr. Egilman explains, albeit briefly, why he does not consider that the chemical exposure from carpet cleaning is the cause: Mr. Watson was not exposed to chemicals known to cause bronchiolitis obliterans. Defendants present evidence that Mr. Watson may have used a product called polymethyl methacrylate, which can in some cases cause hypersensitivity pneumonitis and that there may be some kind of relationship between hypersensitivity pneumonitis and bronchiolitis obliterans. Mr. Watson has also been diagnosed with hypersensitivity pneumonitis. While this relationship may be something to explore on cross-examination, Defendants have not demonstrated that Mr. Watson was exposed to a chemical known to cause bronchiolitis obliterans in quantities sufficient to cause the condition such that Dr. Egilman's opinion regarding alternative *1156 causes is entirely unreliable and inadmissible. Additional evidence regarding the reliability of Dr. Egilman's methodology in arriving at an opinion regarding general and specific causation was provided at the hearing. Dr. Soskolne was proffered as an expert in epidemiology and testified that he had reviewed Dr. Egilman's report for the purpose of evaluating the reliability of the methods used. He testified that it is entirely appropriate to extrapolate disease causation from the occupational setting to other contexts, as Dr. Egilman did here. Dr. Soskolne also testified that Dr. Egilman's methods for arriving at his opinion, including his use of the Hill factors and a differential diagnosis, were accepted in the field and were applied validly. He noted that Dr. Egilman's source data was provided and that the methods were reproducible, which are the standards that Dr. Soskolne would apply in reviewing an article for publication. Dr. Schachter was offered by Plaintiffs as an expert in pulmonary medicine. He also had reviewed Dr. Egilman's report and was prepared to testify regarding the reliability of the methodology used by Dr. Egilman. Dr. Schachter also opined that it is an appropriate scientific practice to extend theories of causation from occupational disease to the same disease occurring other settings. He also explained why it is considered acceptable in medical field to make a causal inference even without knowledge of an exact dose or dose threshold of a particular disease-causing agent. Dr. Schachter testified that Dr. Egilman applied the Hill criteria appropriately and properly performed a differential diagnosis in determining the cause of Mr. Watson's disease. In rebuttal, Defendants presented Dr. Kulig, an expert in medical toxicology. Dr. Kulig did not question the validity of the use of the Hill factors or of the use of a differential diagnosis in determining causation; indeed, on cross-examination, he admitted that these are commonly used tools in the field. Rather, he critiqued the validity of using Dr. Rose's letter as a "case study" to prove causation, arguing that a true case study involves extensive case history and detail and publication in a peer-reviewed journal so that other practitioners may evaluate the legitimacy of the claimed causal relationship. He argued that key details were omitted from Dr. Rose's letter and that Dr. Martyny's data was unreliable and not a good determinant of Mr. Watson's exposure or of the dose relationship. Dr. Kulig's criticisms again go to the weight of the evidence but do not demonstrate that the basic methodology employed by Dr. Egilman was unreliable or that the data upon which he based his opinion, other than the measurements of diacetyl in Mr. Watson's home, were insufficient. Given the evidence and authority discussed above, I conclude that Dr. Egilman's opinions regarding both general and specific causation, with one exception, employ reliable methods and are based on sufficient, reliable data. The exception concerns the portions of Dr. Egilman's testimony that purport to establish a minimum threshold amount of diacetyl sufficient to cause respiratory illness, including bronchiolitis obliterans. These opinions will not be permitted at trial. Otherwise, Defendants' motions to strike Dr. Egilman's opinions are denied. 2. Alan J. Parmet, M.D., MPH (expert report attached as Exh. 36 to Pls.' Statement of Facts, ECF No. 601-17) Dr. Parmet is another medical doctor who opines on specific causation. Dr. Parmet has significant experience with popcorn flavoring related illness and was *1157 the physician who first observed the cluster of cases at the Jasper plant and has remained involved in the study of these conditions. In his proffered expert report, Dr. Parmet reviews Mr. Watson's medical records and current status. Dr. Parmet also performed a physical examination of Mr. Watson and reports those findings. His diagnosis is "Flavoring-induced bronchiolitis obliterans/bronchiolitis obliterans syndrome/popcorn worker's lung." Parmet Report, ECF No. 601-17, at 12. As grounds, he observes that Mr. Watson's consumption exceeds average consumer intake of microwave popcorn. He notes that Mr. Watson's cough and other respiratory problems from the 1990s were resolved with treatment for reflux. However, he concludes that Mr. Watson's condition has progressed to severe pulmonary abnormalities and that his lung biopsy is consistent with flavoring-induced bronchiolitis obliterans. Other factors include Mr. Watson's lack of smoking history. Dr. Parmet contends that Mr. Watson's exposure to solvents and cleansers as a carpet cleaner was "minor" and "could not possibly [ac]count for the severity of [Mr. Watson's] current lung disease." Id. Dr. Parmet concludes there is no other reasonable cause that is demonstrated, particularly since Mr. Watson has responded to all other treatments of his health conditions. Defendants seek to exclude Dr. Parmet's evidence as unreliable because no dose-response level has been established and because temporality alone is not an adequate basis to prove causation. As discussed above, the Tenth Circuit has accepted that a differential diagnosis may be sufficient evidence of causation and so the lack of a dose-response level in this case does not preclude all causation testimony. Dr. Parmet's opinion is based on his experience with popcorn workers' exposures and diseases, his review and examination of Mr. Watson's health history and current physical condition, and his differential diagnosis, which is an acceptable methodology under appropriate circumstances. Defendants also seek to exclude Dr. Parmet's opinion on the grounds that his review of Mr. Watson's medical records was incomplete and because he does not adequately address other causes. Again, with respect to the differential diagnosis, Dr. Parmet has explained why he does not believe carpet cleaning solvents are responsible and Defendants may address this at trial; the jury will give it whatever weight it deems appropriate. The same applies to the records allegedly omitted from the review; given Dr. Parmet's examination of Mr. Watson and experience with the condition, Defendants have not established that Dr. Parmet's omission in this regard renders the opinions unreliable. 3. Cecile Rose, M.D. (opinions contained in deposition excerpts, Exh. 14 to Pls.' Statement of Facts, ECF No. 600-14) As noted above, Dr. Rose is one of Mr. Watson's physicians and has treated him since 2007. In addition to her practice as a pulmonary specialist, she is a professor of medicine at the University of Colorado's medical school and the Director of the Occupational/Environmental Medicine Clinical Program at National Jewish. She is board certified in internal medicine, pulmonary medicine, and occupational and environmental medicine. Dr. Rose has been a consultant to the flavorings industry regarding occupational exposures for some time and has read much of the published literature concerning respiratory illnesses among microwave popcorn workers. She is an unretained expert witness in this case. She opines on specific causation, stating to a reasonable degree of medical *1158 probability that Mr. Watson's lung disease was caused by his exposure to microwave popcorn butter flavorings. Rose Dep., ECF No. 600-14, at 79. In her deposition, she explains that she was asked to consult on Mr. Watson's case after his lung biopsy was found to have characteristics of hypersensitivity pneumonitis and Mr. Watson's lung function was continuing to deteriorate. Id. at 23. The biopsy also showed signs of bronchiolitis obliterans. Id. at 25. She believes that both conditions were caused by his exposure to the butter flavorings. Id. at 96. The basis for her opinion on causation is the following: (1) that Mr. Watson's lung disease stabilized when he ceased using the product; (2) there was no other causal explanation; (3) the clinical findings in his lung disease were similar to those that occurred in workers exposed to butter flavorings. Id. at 80. She acknowledges that Mr. Watson's exposures to the flavoring ingredients were likely lower than those experienced by workers in production processes. Id. at 81. She explains that she rules out pneumonia as a cause because his lung function would have continued to decline; she explains that progressive bronchiolitis obliterans after an infection is difficult to interrupt, but Mr. Watson's condition stabilized after he stopped consuming microwave popcorn. Id. at 107. She also acknowledges his exposure to carpet cleaning chemicals. Rose Dep., Exh. A-15 to Def.'s Statement of Facts, ECF No. 560-37, at 53. She states, however, that she is unaware of any of the chemicals to which he was exposed being potential causes of bronchiolitis obliterans. Id. at 54-55. In challenging Dr. Rose's testimony, Defendants rely on several of the same arguments that I have rejected above. Defendants also argue that Dr. Rose is somewhat equivocal as to the cause of Mr. Watson's disease, claiming that she has stated she is not "sure" of the cause of his disease and arguing that she has not adequately ruled out other causes. Again, I see no basis to exclude Dr. Rose's testimony. There is no requirement that a medical expert be one hundred percent certain as to a diagnosis or cause and Dr. Rose has stated her opinion to a reasonable degree of medical probability. She has also provided an explanation for why other causes are not probable, which Defendants may challenge on cross-examination at trial. The motion will be denied. However, since Defendants were not given a chance to cross-examine Dr. Rose at the hearing[8], this denial is without prejudice to refiling and a future hearing regarding the validity of Dr. Rose's methods. B. Motion for Summary Judgment 1. Causation Defendants first argue that Plaintiffs cannot demonstrate causation because the testimony of their expert witnesses on causation should be excluded as unreliable. I have addressed the expert issues above and conclude that the opinions are generally admissible. Defendants next argue that there is no evidence to prove general causation, i.e., that exposure to microwave popcorn vapors can result in lung injury. This is plainly not the case. Defendants' argument, therefore, seems to be that because Mr. Watson popped and consumed fewer bags of popcorn than QC workers at various plants, some of whom were not shown to have higher rates of lung disease and respiratory disorders, his disease cannot possibly have been caused by exposure to microwave popcorn flavoring ingredients. *1159 Defendants further argue that Plaintiffs cannot extrapolate from the occupational context to the consumer context because of differences in level of exposures and because a single consumer case, such as Mr. Watson, does not establish general causation. These arguments have been addressed in connection with the expert witness issues and I conclude that there is sufficient evidence on these matters to submit the question to a jury. Similarly, I agree that Plaintiffs have presented sufficient evidence of specific causation to survive summary judgment. Plaintiffs' evidence is not solely comprised of exposure levels, which as an average appear to have been lower than levels of diacetyl in the plants studied. Plaintiffs' experts have also relied on clinical findings, which are similar to affected popcorn plant workers, as well as differential diagnoses. While Defendants' experts may contest these conclusions based on the same or other evidence, these are issues of fact for a jury to decide and do not show that Defendants are entitled to judgment as a matter of law. 2. Colorado Consumer Protection Act Claim Plaintiffs' CCPA claim is based on their assertion that Defendants knew or should have known that microwave popcorn containing butter flavoring was unreasonably dangerous and that Defendants failed to provide material facts about the risks of the product in the statements they made to consumers. Plaintiffs broadly allege that Defendants used deception, fraud, false promise, misrepresentation and/or unfair practices in their marketing, promoting, and labeling of microwave popcorn with butter flavorings and that this created or reinforced a false impression as to its safety. Defendants argue that summary judgment on this claim is appropriate because there is no evidence to show that they knew of any risk to consumers from microwave flavorings during the relevant time period. They further contend that Plaintiffs cannot demonstrate a significant public impact. The CCPA is intended to provide "prompt, economical and readily available remedies against consumer fraud," W. Food Plan v. Dist. Court, 198 Colo. 251, 256, 598 P.2d 1038, 1041 (Colo.1979); I should therefore keep in mind its "strong and sweeping remedial purposes." Crowe v. Tull, 126 P.3d 196, 202 (Colo.2006). To prevail on a CCPA claim, a plaintiff must show: "(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business, vocation, or occupation; (3) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property; (4) that the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiff's injury." Rhino Linings USA, Inc. v. Rocky Mt. Rhino Lining, 62 P.3d 142, 146-47 (Colo. 2003). In defining the unfair trade practice at issue here, two provisions of the CCPA appear to be relevant to Plaintiffs' claim: (g) [representing] that goods, food, services, or property are of a particular standard, quality, or grade . . . if [the seller] knows or should know that they are of another; * * * (u) [failing] to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction; C.R.S. § 6-1-405(1). Defendants argue that although the NIOSH investigations into occupational illness *1160 at microwave popcorn plants revealed a risk to workers, no research has revealed the same for consumers. Indeed, NIOSH specifically stated in 2008 that consumers were not at risk of lung disease from butter flavoring chemicals. Dr. Rose also acknowledges that there is no published research indicating a risk to consumers from ordinary consumption of microwave popcorn and she was unaware of any such risk until she consulted on Mr. Watson's case. In response, Plaintiffs argue that the NIOSH investigations and workers' compensation lawsuits were sufficient to put the manufacturers on notice that butter flavoring containing diacetyl was harmful and could cause respiratory damage. They further argue that materials from the flavoring manufacturers informed Gilster-Mary Lee and Birds Eye of the health hazards from the butter flavoring, including the risk of irritation to the respiratory tract, and the need to have adequate exhaust. See, e.g., Flavor Concepts Material Safety Data Sheet ("MSDS"), Exh. 33 to Pls.' Statement of Facts, ECF No. 601-14; Flavor Concepts proposed Diacetyl MSDS Acknowledgement Form, Exh. 34 to Pls.' Statement of Facts, ECF No. 601-15. I agree with Defendants that there is no evidence that they actually knew of a risk to consumers from butter flavoring ingredients and none of Plaintiffs evidence demonstrates warnings from experts that consumers could receive sufficient exposure to raise concerns about possible health hazards. However, in light of the significant data regarding the risk of the product at some level of exposure and the remedial purpose of the statute, I conclude that there is an issue of fact as to whether the Defendants should have known that there was a potential risk to consumers and therefore marketed and labeled their product with appropriate alerts or qualifiers. Defendants also argue there is no evidence that alleged failure to disclose has affected a large number of consumers or has the potential to do so in the future. In determining whether a practice has a public impact for the purposes of the CCPA, a court may consider: "(1) the number of consumers directly affected by the challenged practice, (2) the relative sophistication and bargaining power of the consumers affected by the challenged practice, and (3) evidence that the challenged practice has previously impacted other consumers or has the significant potential to do so in the future." Rhino Linings, 62 P.3d at 149. Plaintiffs have provided evidence of a handful of other consumer cases, two of which have gone to trial in civil lawsuits and failed on the merits. Newkirk v. ConAgra Foods, Case No. 2:08-cv-00273-RMP (E.D.Wash.2009) (dismissed on motions); Khoury, et al. v. ConAgra Foods, Inc., et al., Case No. 0816-CV-31620, Circuit Court of Jackson County, Missouri (jury verdict for defense). Defendants argue that this small number of cases indicates that even if Defendants had not adequately marketed or labeled the product, the impact to consumers is minimal. Plaintiffs contend in response that a significant public impact is shown because of the large number of consumers who buy microwave popcorn and the serious health risk posed by the product. They also contend that other lawsuits involving consumers alleging harm from microwave popcorn butter flavoring are pending. Although Plaintiffs do not provide any evidence regarding how many consumers purchase the product at issue and what the potential impact is, I conclude that there is sufficient evidence on this element for the claim to go forward. See Warner v. Ford Motor Co., Civil Action No. 06-cv-02443-JLK-MEH, 2008 WL 4452338 at *15 (D.Colo., Sept. 30, 2008) (because vehicle *1161 was sold to the general public and allegedly contained defect capable of causing serious injury, plaintiffs adequately demonstrated that alleged nondisclosure was not "private in nature"). As in Warner, the product at issue is marketed to general consumers, which is a large group. Although there is no evidence regarding how many consumers of popcorn use the product in the quantities alleged here, given the seriousness of the harm alleged, i.e., permanent respiratory damage, it is reasonable to assume the potential impact is significant. Therefore, summary judgment on this claim is not appropriate. 3. Kroger Defendants as Manufacturers Defendants argue that Plaintiffs' negligence, strict liability, and failure to warn claims against the Kroger Defendants fail because Plaintiffs cannot show that any of the Kroger Defendants is a "manufacturer" under Colorado's Product Liability Act. Under this statute, no product defect liability action may be "commenced or maintained against any seller of a product unless said seller is also the manufacturer of said product...." C.R.S. § 13-21-402(1). A "manufacturer" is defined as: ... a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer. The term includes any seller who has actual knowledge of a defect in a product or a seller of a product who creates and furnishes a manufacturer with specifications relevant to the alleged defect for producing the product or who otherwise exercises some significant control over all or a portion of the manufacturing process or who alters or modifies a product in any significant manner after the product comes into his possession and before it is sold to the ultimate user or consumer.... A seller not otherwise a manufacturer shall not be deemed to be a manufacturer merely because he places or has placed a private label on a product if he did not otherwise specify how the product shall be produced or control, in some significant manner, the manufacturing process of the product and the seller discloses who the actual manufacturer is. C.R.S. § 13-21-401(1). Defendants contend that there is no evidence that the Kroger Defendants had actual knowledge of the danger to consumers from butter flavoring ingredients until 2007 and did not exercise sufficient control over the product or its production to be deemed a manufacturer. In response, Plaintiffs argue that the Kroger Defendants may nonetheless be considered apparent manufacturers because they did not disclose the actual maker of the popcorn. Yoder v. Honeywell Inc., 104 F.3d 1215, 1223 (10th Cir.1997) (interpreting the last sentence of section 401(1) as allowing "a seller who places a private label on a product without disclosing the actual manufacturer to be held liable as a manufacturer."). I agree with Defendants that Plaintiffs have offered no evidence that would show that the Kroger Defendants actually knew that butter flavoring ingredients in the microwave popcorn they sold posed a potential health risk to consumers, as opposed to factory workers, until notified of Mr. Watson's case in 2007. Indeed, it is still not proven that there is such a risk. I also agree with Defendants that the evidence indicates that the Kroger Defendants did not control the manufacturing process and offered only general specifications regarding the product (i.e., that it should taste and smell like the national brand target), not specific ingredient lists or the like. There is certainly no evidence that the Kroger Defendants required that *1162 the flavoring ingredients include diacetyl. Nonetheless, I agree with Plaintiffs that the Kroger Defendants may be considered an apparent manufacturer under the statute despite this because they did not disclose the actual manufacturer of the product. See Restatement 2d Torts, § 400 ("One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer."). As noted above, the product label did not provide to the buyer any name other than those of the Kroger entities. It is unclear whether Colorado courts would adopt the Restatement approach in its entirety, but at least one federal court considering the issue has concluded that section 401(1) of the product liability act indicates that Colorado law will permit a product defect action against a seller who holds out a product as his own. Yoder, 104 F.3d at 1223. I will leave it to the parties to outline the exact contours of this claim at trial, including whether any other elements are required, such as causation or reliance. 4. Punitive Damages Finally, Defendants seek summary judgment on Plaintiffs' claim for punitive damages against Gilster-Mary Lee. Colorado law permits recovery of punitive damages against a defendant where the conduct at issue is "wanton and willful." C.R.S. § 13-21-102(1)(a). This is defined as conduct "purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff." Id. Wanton and willful conduct must be proven beyond a reasonable doubt. C.R.S. § 13-25-127(2). Defendants argue that Plaintiffs cannot show more than negligence because the evidence does not demonstrate knowledge that there was a substantial risk of harm to consumers from butter flavorings released in popping microwave popcorn. In response, Plaintiffs appear to argue that the severity of the health effects on workers at the Gilster-Mary Lee plant in Jasper, including on QC workers who pop popcorn, and the knowledge that the condition was most likely caused by inhalation of butter flavoring vapors should have led Gilster-Mary Lee to provide warnings to consumers about the potential risk. As noted above, Plaintiffs' evidence is sufficient to establish that perhaps the manufacturers should have known or should have investigated the risk to consumers given the severe health effects suffered by workers exposed to butter flavoring ingredients. A reasonable jury could find that given the magnitude of the harm and the lack of information about the minimum exposure level capable of causing harm, the manufacturer acted recklessly in failing to investigate or warn consumers of the potential for harm. Accordingly, whether the conduct of Gilster-Mary Lee amounts to willful and wanton conduct is an issue of fact and cannot be decided as a matter of law. Accordingly, it is ordered: 1. The Joint Motion for Summary Judgment (ECF No. 572) is denied. 2. The Joint Motion to Exclude General Causation Testimony (ECF No. 567) and the Joint Motion to Exclude Specific Causation Testimony of Plaintiffs' Expert Allen Parmet (ECF No. 569) are denied. 3. The Joint Motion to Exclude Specific Causation of Plaintiffs' Expert Cecile Rose (ECF No. 570) is denied without prejudice. Defendants may refile the motion and schedule a hearing for cross-examination of Dr. Rose if they deem it necessary in light of the resolution of the issues in this order. The court will allow *1163 Defendants to claim reasonable expense of travel and lodging for Defendants' counsel for any such rescheduled hearing. 4. The Joint Motion to Exclude Specific Causation Testimony of Plaintiffs' Expert David Egilman (ECF No. 568) is granted with respect to Dr. Egilman's opinions regarding a minimal threshold exposure level sufficient to cause injury. The motion is otherwise denied. NOTES [1] This case includes a number of third-party and other related litigation. However, since the motions addressed here concern only the primary parties, I have not included the related matters in the caption of this order. [2] The facts set forth here are taken from the parties' briefs and attached exhibits and are undisputed or, where disputed, presented in the light most favorable to the non-moving party. [3] According to testimony presented at the hearing, the formulae for butter flavoring differ across brands and products but there appear to have been some common ingredients, including diacetyl, during the relevant time period. [4] While mixers at the Jasper plant had a mean area exposure of 37.8 ppm, with a range of 98 ppm, the quality control room had a mean area exposure of 0.6 ppm with a range of 0.9 ppm. Kreiss, supra, ECF No. 600-6, at 165. [5] The stipulated exhibits are set forth in ECF No. 650. [6] As discussed below and as the court in Henricksen noted, the level of exposure of the plaintiff and the dose-response relationship generally is a factor with regard to specific causation, not general causation. [7] Although Defendants suggest that the higher heat used in popping the popcorn could theoretically change the characteristics of the chemicals contained in the slurry, the research does not support this hypothesis. [8] The circumstances regarding Dr. Rose's non-appearance at the hearing are set forth in various motions and orders preceding the hearing. See ECF Nos. 635 & 642.

Citation Nr: 1528196 Decision Date: 06/30/15 Archive Date: 07/09/15 DOCKET NO. 12-13 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran requested a Board hearing and was scheduled for a hearing in February 2013. However, the Veteran did not report for the hearing and did not provide good cause for the failure to report. Consequently, he is deemed to have waived his hearing request. See 38 C.F.R. §§ 20.703, 20.704 (2014). The Board may therefore proceed to adjudicate this appeal. In December 2013 and October 2014, the Board remanded the matter on appeal for additional development. For the reasons discussed below, the Board finds that another remand is warranted. In the Board's December 2013 remand, the Board referred to the Agency of Original Jurisdiction (AOJ) the following original claims of entitlement: (a) service connection for sleep apnea; (b) service connection for a vision disability, to include as secondary to hypertension; and (c) a total disability rating based on individual unemployability. See Veteran's April 2010 statement on VA Form 21-4142; July 2010 VA treatment record; May 2012 VA Form 9. To date, these claims have not yet been adjudicated by the AOJ. They are referred again for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND As acknowledged previously, this matter was previously before the Board in December 2013 and October 2014. In the December 2013 remand, the Board instructed the AOJ to provide an examination to determine the nature and etiology of the Veteran's hypertension. Although the Veteran's service treatment records include a June 1981 note regarding high blood pressure, the clinician who examined the Veteran in February 2014 noted that he could not find evidence of treated hypertension while in service. In light of this incomplete understanding of the Veteran's medical history, the matter was remanded again in October 2014 for an adequate opinion regarding the etiology of the Veteran's hypertension. Pursuant to the October 2014 remand directives, the Veteran was scheduled for an examination in February 2015, but failed to report. In a May 2015 brief, the Veteran's representative reported that the Veteran moved from Arkansas to Texas and requested that the examination be rescheduled in Texas. Generally, a claimant is obligated to cooperate in the development of evidence, and failure to do so puts him at risk of an adverse adjudication based on an incomplete and underdeveloped record. Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). The Board finds, however, that the Veteran has shown good cause for his failure to report for the previously scheduled examination. See 38 C.F.R. § 3.655(a). Thus, the Board grants the Veteran another opportunity to report. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records. All reasonable attempts should be made to obtain such records. 2. After the above has been completed, schedule the Veteran for a VA hypertension examination, by an appropriate examiner. The entire claims file should be made available to the examiner, and the report of the examination should include discussion of the Veteran's documented medical history and lay statements. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that hypertension: a. Was incurred during service; b. Manifested within one year of separation from service by diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; that he had a history of diastolic pressure that were predominantly 100 or more that required continuous medication for control; or c. Is otherwise etiologically or causally related to military service. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to speculation, he or she should so indicate and provide a rationale as to why such an opinion requires speculation. 3. Upon completion of the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and an appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).

673 F.2d 1332 Parisiev.Franzen 81-1194 UNITED STATES COURT OF APPEALS Seventh Circuit 11/13/81 1 S.D.Ill. AFFIRMED

FILED United States Court of Appeals Tenth Circuit May 6, 2014 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT PAMELA MILLER; RANDY HOWARD; DONNA PATTERSON; on behalf of themselves and all others similarly situated, Plaintiffs Intervenors- Defendants - Appellees, v. No. 13-4048 BASIC RESEARCH, LLC; DYNAKOR PHARMACAL, LLC; DENNIS GAY; DANIEL B. MOWREY, Ph.D.; MITCHELL K. FRIEDLANDER, Defendants - Appellants. and DOES 1 through 50, Defendants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. NO. 2:07-CV-00871-TS-DBP) Christopher B. Sullivan, Snell & Wilmer, L.L.P. (Wesley D. Felix, Snell & Wilmer, L.L.P., and Jon V. Harper, Anderson & Karrenberg, with him on the opening brief, and Wesley D. Felix, Snell & Wilmer, L.L.P., and Richard D. Burbidge, Jefferson W. Gross, and Aida Neimarlija, Burbidge, Mitchell & Gross, with him on the reply brief) Salt Lake City, Utah, for Appellants. Scott R. Shepherd, Shepherd, Finkelman, Miller & Shah, LLP, Media, Pennsylvania (Kevin P. Roddy, Wilentz, Goldman & Spitzer, P.A., Woodbridge, New Jersey, with him on the brief) for Appellees. Before TYMKOVICH, O’BRIEN, and HOLMES, Circuit Judges. TYMKOVICH, Circuit Judge. “Eat all you want and still lose weight,” said the advertisement for a weight-loss supplement. Consumers who purchased the advertised product and were dissatisfied with the results filed a class action against the manufacturers for false advertising. The parties entered into mediation, where they drafted and signed a document outlining the terms of a settlement. They then informed the district court that the mediation had been successful and, over the following months, exchanged several drafts further documenting the settlement. But the drafting hit a snag, and the defendants eventually informed the district court that they no longer intended to settle. The plaintiff class then filed a motion to enforce the settlement achieved at the mediation, and the district court granted that motion because it concluded the parties had entered into an enforceable agreement. On appeal, the plaintiffs contest our interlocutory jurisdiction. The defendants challenge the merits of the district court’s conclusion that the parties had, in fact, reached a binding settlement. -2-  We conclude that the case is an impermissible interlocutory appeal because no exceptions apply to the general rule that we must wait for a final judgment in the underlying case before exercising appellate jurisdiction. Finding that we lack jurisdiction, we DISMISS the appeal. I. Background Basic Research produces a weight-loss dietary supplement it calls Akävar 20/50. As part of the marketing campaign for the supplement, Basic and the other parties involved in the product’s distribution advertised, among other things, “Eat all you want and still lose weight.” A class of purchasers of the supplement who allege they relied on the marketing pitch and were dissatisfied with the results filed suit, claiming the Akävar 20/50 slogan constituted false and misleading advertising. After discovery and various motions practice, the district court dismissed some of the claims, leaving two corporate defendants and three individual defendants. The court also certified a class “limited to those persons who purchased Akavar in reliance on the slogan ‘Eat all you want and still lose weight,’” and we denied permission to appeal the certification. Basic Research v. Miller, No. 10-603, slip op. at 2 (10th Cir. Nov. 2, 2010) (Hartz, J., dissenting). Upon class certification, the parties entered into mediation. After a series of discussions, the defendants’ counsel drafted and all parties signed a handwritten “Proposed Terms” document outlining the terms of an expected class -3- settlement. The parties filed a notice with the district court that the mediation was “successful” and that they were preparing a formal settlement agreement. 1 App. 178. But, at some point, the lawyers for the defendants stopped participating in the drafting process. The plaintiff class filed a motion to enforce what it considered to be a binding contract. The district court, after reviewing documentation submitted by the parties, concluded that they had in fact agreed to the material terms of a settlement and any ongoing disagreements concerned only “linguistic changes.” Miller v. Basic Research, LLC, 2013 WL 1194721, at *1 (D. Utah Mar. 22, 2013). Accordingly, the district court granted the motion to enforce the settlement. II. Analysis As a general matter, the courts of appeal have jurisdiction only to review the “final decisions” of district courts. 28 U.S.C. § 1291. “To be final, a decision ordinarily ends the litigation on the merits and leaves nothing for the court to do 1 In full, the Joint Status Report reads, “Pursuant to the Court’s Minute Entry dated June 18, 2012 [Dkt. No. 249], counsel for the Defendants and counsel for the Plaintiffs respectfully submit this Joint Status Report concerning the Parties’ efforts to resolve this case. The Parties state: 1) The Parties jointly participated in mediation on September 10, 2012 with mediator Mr. Antonio Piazza in San Francisco, California. 2) The mediation was ultimately successful. 3) The Parties are now engaged in the process of preparing and finalizing a formal settlement agreement, together with a motion seeking Court approval of this agreement.” App. 178. -4- but execute the judgment.” United States v. Gonzales, 531 F.3d 1198, 1201 (10th Cir. 2008). The parties here agree that the district court has not yet reached its final decision since it has not approved the proposed settlement as is required in class actions under Rule 23 of the Federal Rules of Civil Procedure. Thus, without an exception to the final judgment rule, we lack appellate jurisdiction. The defendants offer two exceptions to the rule. First, we may review the issuance or denial of injunctive relief. 28 U.S.C. § 1292(a)(1). To qualify for that exception, the defendants contend the district court’s order granting enforcement of the settlement is the functional equivalent of an injunction because it prospectively controls the rights and liabilities of the parties to a large extent. Second, we have jurisdiction to resolve certain collateral orders when their effect on the litigation is significant. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)). The defendants contend that the district court order is an appealable collateral order because their rights will be effectively unreviewable at a later time in the litigation. 2 Section 1292(a)(1)’s grant of jurisdiction allows us to review district court orders “granting, continuing, modifying, refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1). Federal Rule of Civil Procedure 65 requires a court entering 2 Another basis for appellate jurisdiction is to ask the district court to certify under Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1292(b) that a controlling question of law has been decided and that appellate review is appropriate. The defendants did not attempt to invoke this basis for jurisdiction. -5- an injunction to “(A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail―and not by referring to the complaint or other document―the act or acts restrained or required.” Fed. R. Civ. P. 65(d); see also 13-65 James Wm. Moore et al., Moore’s Federal Practice § 65.60 (3d ed. 2014). The district court did not formally enter an injunction in this case. But “[w]hen an order, although not expressly denying or granting an injunction, has the practical effect of doing so,” it is appropriate to exercise jurisdiction in limited circumstances. Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1351 (10th Cir. 1989). Thus, an order that has the practical effect of an injunction can be appealed if (1) the “appeal will further the statutory purpose of permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence” and, (2) the order can be “effectually challenged” only by immediate appeal. Carson, 450 U.S. at 84 (internal quotation marks omitted); see also Forest Guardians v. Babbitt, 174 F.3d 1178, 1185 (10th Cir. 1999) (serious consequences found where there was potential harm to an endangered species); United States v. McVeigh, 157 F.3d 809, 813 (10th Cir. 1998) (serious consequences found where the right to a fair trial might be compromised); Hutchinson v. Pfeil, 105 F.3d 566, 570 (10th Cir. 1997) (no serious consequences alleged in dispute over value of a painting). -6-  Appellate jurisdiction can also be based on the so-called collateral order doctrine. Under the collateral order doctrine, the district court’s “order must [1] conclusively determine the disputed question [on appeal], [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” In re Tri-Valley Distrib., Inc., 533 F.3d 1209, 1215 (10th Cir. 2008). But this exception to the final judgment rule is narrow. United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 2010) (“In case after case in year after year, the Supreme Court has issued increasingly emphatic instructions that the class of cases capable of satisfying this ‘stringent’ test should be understood as ‘small,’ ‘modest,’ and ‘narrow.’”). The third factor of the collateral order doctrine is most relevant here. The “decisive consideration” in determining whether an order is effectively unreviewable is “whether delaying review until the entry of final judgment would imperil a substantial public interest or some particular value of a high order.” Mohawk Indus. v. Carpenter, 558 U.S. 100, 107 (2009) (internal quotation marks omitted). “[T]he chance that the litigation at hand might be speeded, or a particular injustice averted, does not provide a basis for jurisdiction under § 1291.” Id. (internal quotation marks omitted). The defendants contend the district court’s order imposes serious or irreparable consequences on them and the litigation and is practicably unreviewable in a later appeal. First, they claim the settlement is fundamentally -7- unfair to the putative class members. They plan to challenge the settlement at the fairness hearing required under Federal Rule of Civil Procedure 23, 3 and thus argue that denying appellate review places counsel in a bind in defending a settlement they say is unfair to the class. Second, they claim the expense of notifying the class of the settlement cannot be undone by a later appeal. They also claim that, if they disclose the details of an unfair settlement to the class and the court later rejects that settlement, the disclosure will prejudice their ability to later try the case or achieve a better settlement for the class. Finally, they claim the class will view the notification of the settlement as a tacit acknowledgment of liability. We find none of these reasons sufficient to confer appellate jurisdiction. Even assuming that the order has the practical effect of an injunction, we are not persuaded that delaying appellate jurisdiction imposes serious consequences or that the district court’s decision finding a binding settlement will effectively evade appellate review. First, the fairness to the plaintiff class will be addressed at the Rule 23 hearing. At that point, the plaintiff class and the district court will be able to evaluate the merits of the proposed settlement. While we appreciate that the district court has ordered the defendants to submit the settlement for a fairness 3 Rule 23 provides that “the court may approve [a settlement that would bind class members] only after a hearing and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e). -8- hearing, nothing prevents them from asserting the same objections to the settlement they have made here or otherwise reserving their prospective right to contest the settlement and its terms. Second, although they object to the cost of the notice, the defendants have not quantified the cost of notice or even the size of the class to demonstrate the financial burden they face. To be sure, some possibility exists that the settlement will not be approved or will be overturned on appeal, and thus the cost of notification would have been theoretically unnecessary. That is true in every case where a party contests the validity of a settlement. Here, the parties apparently contemplate an email notice, and we are not persuaded the expense of notifying the class will result in serious or irreparable harm. Nor are we persuaded that sending out notice would diminish the likelihood of a future settlement or prejudice the ongoing litigation. If the settlement is not approved, the defendants have not demonstrated with any specificity how the opportunity for a more favorable settlement or their right to a fair trial might have been prejudiced. In any event, if the district court approves the settlement, the court’s decision will eventually be reduced to a final judgment susceptible to appellate review, including the efficacy of the settlement and other issues (such as class definition) that might flow from a rejection of the settlement. Finally, we do not see the proposed settlement as an admission of liability. Not only do parties regularly settle disputes without stipulating liability, the -9- language in the record expressly states that the defendants do not concede liability. It is worth noting, moreover, that the district court will be required to approve the contents of the notice before it goes to the class, and any special concerns, including the framing of the defendants’ denial of liability or the defendants’ objections to the settlement, can be addressed by the district court in the first instance. In sum, because the district court’s order does not qualify for interlocutory review or review under the collateral order doctrine, we lack jurisdiction until the district court issues a final decision and therefore DISMISS this appeal. -10- 

FILED NOT FOR PUBLICATION JAN 20 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RICARDO GUARDIANO, No. 08-72305 Petitioner, Agency No. A046-814-674 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Ricardo Guardiano, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). questions of law, Mercado-Zazueta v. Holder, 580 F.3d 1102, 1104 (9th Cir. 2009), and we deny the petition for review. The BIA properly concluded that Guardiano was statutorily ineligible for cancellation of removal because he could not establish seven years of continuous residence in the United States after being “admitted in any status.” See 8 U.S.C. § 1229b(a)(2). Guardiano’s contention that his mother’s admission to the United States may be imputed to him is unavailing. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir. 2005) (“[F]or purposes of satisfying the seven-years of continuous residence ‘after having been admitted in any status’ required for cancellation of removal under 8 U.S.C. § 1229b(a), a parent’s admission for permanent resident status is imputed to the parent’s unemancipated minor children residing with the parent.”) (emphasis added). PETITION FOR REVIEW DENIED. 2 08-72305 

153 Va. 838 (1929) WILLARD BOGGS v. COMMONWEALTH. Supreme Court of Virginia. September 19, 1929. D. F. Kennedy and A. C. Anderson, for the plaintiff in error. 1. APPEAL AND ERROR -- Record -- Identification of Evidence -- Evidence Copied into Record by Clerk -- Dismissal of Writ of Error as Improvidently Granted -- Case at Bar. -- In the instant case the Commonwealth moved to dismiss the writ of error as improvidently granted, because the evidence alleged to be inadmissible and illegal was not properly a part of the record. The only attempt at identification of the evidence was found in four skeleton bills of exceptions. Following each bill of exceptions the clerk had copied into the record what purported to be the examination of the four witnesses. Whether this evidence copied by the clerk was the evidence objected to is not apparent from an inspection of the record, as it was not authenticated by the court. Held: That the mere fact that the clerk of the trial court copies certain alleged evidence into the record cannot make it a part thereof, unless the evidence is properly identified by the trial court and made a part of the record by bill of exceptions, and that the motion to dismiss the writ as improvidently awarded should be sustained. 2. APPEAL AND ERROR -- Rule 22 of the Supreme Court of Appeals -- Grounds of Objections in Trial Court. -- Under Rule 22 of the Supreme Court of Appeals it must appear that the objections urged in the trial court to the admissibility of evidence are substantially the same objections which are relied upon in the Supreme Court of Appeals. Rule 22 requires that all objections to the admissibility of evidence requiring a ruling of the trial court shall state with reasonable certainty the grounds of such objection. This language is explicit, and, unless good cause is shown why the objections were not made in the trial court, the Supreme Court of Appeals will not consider the objections relied upon, unless the ends of justice in the particular case demand it. 3. APPEAL AND ERROR -- Rule 22 of the Supreme Court of Appeals -- Grounds of Objections in Trial Court -- No Injustice Done Accused -- Case at Bar. -- In the instant case, a prosecution for murder, the Supreme Court of Appeals dismissed the writ of error under Rule 22 of the Supreme Court of Appeals, which requires that objections to the admissibility of evidence should state the grounds of such objections. The record, however, clearly disclosed that no injustice had been done the accused. In the exercise of its power, the jury found the accused guilty of assault and battery when it would have been warranted, in the exercise of its right, under the evidence adduced by the Commonwealth, in finding him guilty of murder in the first degree. Error to a judgment of the Circuit Court of Wise county. The opinion states the case. John R. Saunders, Attorney-General, and Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, for the Commonwealth. CAMPBELL CAMPBELL, J., delivered the opinion of the court. Willard Boggs was indicted in the Circuit Court of Wise county for the murder of Leonard Bolling, was found guilty of assault and battery by a jury, and his punishment fixed at confinement in jail for six months and a fine of $200.00. Judgment was pronounced by the court, carrying into effect the verdict of the jury. To this judgment of the circuit court a writ of error was awarded by one of the judges of this court. The only assignment of error is that the trial court erred in admitting in evidence certain alleged dying statements, made by the deceased, that the accused had beaten him with a chair and kicked him. We are met at the threshold of this case with a motion to dismiss this writ of error as improvidently *840 awarded. The basis of the motion of the Attorney General is that the evidence alleged to be inadmissible and illegal is not properly a part of the record. The motion of the Commonwealth must be granted. The evidence is not identified by the trial court. The only attempt at identification is found in four skeleton bills of exceptions which are identical in form with the exception of the names of the witnesses. Omitting the style of the case, they read as follows: "Be it remembered and the court doth certify that upon the trial in the above styled case the following questions were propounded and the answers obtained from the witness * * * and that the defendant by counsel objected to what the witness stated about Leonard Bolling's so called dying declaration but that the court overruled said objections and permitted the witness to state about the same. The defendant by counsel excepted." "Given under my hand this the 3rd day of October, 1928." "H. A. W. SKEEN," "In the Circuit Court of Wise county." It is true that following each bill of exceptions the clerk has copied into the record what purports to be the examination of the four witnesses. Whether the purported evidence copied by the clerk is the evidence objected to is not apparent from an inspection of the record. The law is well settled in this State that the mere fact that the clerk of the trial court copies certain alleged evidence into the record cannot make it a part thereof, unless the evidence is properly identified by the trial court and made a part of the record by bill of exceptions. In Reynolds Commonwealth, 135 Va. 722, 115 S.E. 514, Chief Justice Prentis said: "The writ of error *841 must be dismissed in this case for a perfectly obvious reason. The statement of the evidence appearing in the record is not identified by the judge of the trial court. He signed a skeleton bill of exceptions in which this is certified: '* * * That the Commonwealth, to sustain the issue on her part, introduced. (Here insert the Commonwealth's evidence). And the defendant, to sustain the issue on his part, introduced. (Here insert defendant's evidence) * * *;' but, as indicated, the evidence which was thus to be inserted is in no way authenticated by the trial judge. That this is clearly insufficient has long been settled in this court. Blackwood Coal Co. James, 107 Va. 658, 60 S.E. 90." In Dove Co. New River Coal Co., 150 Va. 828, 143 S.E. 317, 327, we read: "The court deems it proper to call attention to the following condition of the record in this case. The proceedings and evidence in the trial, appearing in the printed record from page eighty-nine to page 303, were manifestly taken from the stenographer's transcript. It is not in any way identified nor authenticated by the trial judge. Bill of exceptions No. 11 merely refers to "the following as the evidence," but there is nothing to indicate what is the evidence. Such a reference does not comply with the requirement held requisite in Turner Smith, 143 Va. 206, 129 S.E. 367; Blackwood Coal Company James' Adm'r, 107 Va. 656, 60 S.E. 90, and Pereira Moon, 146 Va. 225, 135 S.E. 672." Even though the evidence had been in some way identified by the trial court, there is still another reason why we are precluded from passing upon this assignment of error. An examination of the purported stenographic report of the evidence shows that it is devoid of grounds of objections made in the trial *842 court. Under Rule 22, which has been frequently adverted to in the decisions of this court, it must appear that the objections urged in the trial court to the admissibility of evidence are substantially the same objections which are relied upon in this court. All that the record discloses is that when the evidence complained of was offered by the Commonwealth, counsel for the accused entered a general objection to its admissibility. Rule 22 requires that all objections to the admissibility of evidence requiring a ruling of the trial court shall state with reasonable certainty the grounds of such objection. This language is explicit, and, unless good cause is shown why the objections were not made in the trial court, this court will not consider the objections here relied upon, unless the ends of justice in the particular case demand it. In Rauch & Co. Graham, etc., 145 Va. 691, 134 S.E. 692, 695, Judge Burks, delivering the opinion of the court, said: "Sundry exceptions were taken by the plaintiffs in error to rulings of the trial court on the admissibility of evidence, but in the main they are not such as will be considered by this court. For instance, certificate of exception No. 2 is a mere extract from the stenographer's report of the testimony, and contains twelve rulings on evidence, each as follows: 'Objection. Overruled. Exception.' This court will not assume the burden of undertaking to ascertain the ground of such objections. If not obvious, the ground must be set out in the certificate or bill of exception. Norfolk & Western R. Co. Shott, 92 Va. 34, 22 S.E. 811; Robertson Atlantic, etc., R. Co., 129 Va. 494, 106 S.E. 521; Burgess Commonwealth, 136 Va. 697, 118 S.E. 273; Hinkel Commonwealth, 137 Va. 791, 119 S.E. 53." In the instant case the record clearly discloses *843 that no injustice has been done the accused. In the exercise of its power, the jury found the accused guilty of assault and battery when it would have been warranted, in the exercise of its right under the evidence adduced by the Commonwealth, in finding him guilty of murder in the first degree. A brief statement of the facts, in our opinion, supports this conclusion. It appears that the original trouble between the accused and the deceased arose out of a statement made by the deceased to certain moonshiners that the accused was preparing to tell the officers where their still was located. The operators of the still went to the accused and inquired why he proposed to do this. The accused denied having made the statement and demanded that he be confronted with the deceased. Thereupon, Monroe Church, Fred Church and Charley Church, who were interested in the still, went to the deceased and brought him to the place where the accused was. The deceased was at that time intoxicated, and, on being questioned by the accused, insisted that the accused had told him that he was going to denounce the Churches for operating the still. Monroe Church testified that the accused said to the deceased: "If you were not drunk, I would pick up a rock and beat your head into this sand." Prior to the arrival of the deceased, the accused stated to Monroe Church that if the deceased said he had made the statements complained of: "I will pick up a chair and beat him to death; he is too big for me, I could not fight him fair." Charley Church testified that during the conversation between the accused and the deceased, the accused said: "Don't you tell me that no more, if you do I will beat your head in the sand," and later said to the deceased that he would let him alone until the next morning because he was drunk. Charley *844 Church also testified that the accused further stated to deceased: "If you say I said it, I will take a chair and beat you to death." Fred Church testified to the same effect. The accused testified that on the following morning he went to the place where the deceased was staying and a fight ensued between him and the deceased. It is true that he testified that the deceased was the aggressor, but he admits that he struck the deceased and knocked him down. The Commonwealth proved by Caleb Church that shortly after the fight the accused made the statement in his presence that this was one of the times he had "made his words true," and that the accused further stated: "I told him yesterday evening if he told me this morning what he said yesterday evening I would take a chair and beat his brains out, and I have made my words true." About half past nine o'clock on the same morning the accused told Samp Hampton that he had had "a racket" with the deceased. This witness testified further: "He said him and Bolling had had a racket and I done just what I said I was going to. If he gets away from there any ways quick, he will have to be carried away." The accused told Volley Hampton that it was possible that the deceased had intended to "give the still away" and lay it on him, the accused, and then said: "If he does, the boys will have plenty of time to get away before he gets out of here, if he gets out any ways soon, he will be carried out." The accused further stated to this witness that he hated to have any trouble on account of his people, "but if a fellow told a lie on him, he did like to peck on him." The accused also stated in the presence of Mrs. Samp Hampton that he had had a little scrap with the deceased *845 and that he, the accused, had "done just what he said he was going to do, and he guessed if he got away from there any ways soon he would be carried away." Wade Hampton, who saw the deceased the day after the fight, testified that there was a bruise on the deceased's arm and a large wound or cut on his head. At that time the deceased was spitting blood. The doctor who made the examination of the deceased's body, about twenty-four or thirty hours after his death, testified that the body was in such a state of decomposition and so discolored he could not tell anything about any external wounds. From the information he obtained, however, he was of the opinion that the deceased died of a hemorrhage of the stomach. The accused testified that the deceased had told him that he had been hurt in a mine; that, when he went to see him, the deceased, on the morning of the fight, they quarrelled about the statements made to the distillers by the deceased, and that the deceased struck at him first. His wife testified, on direct examination, that her husband stated on the day before the fight, with reference to the deceased, that "he would talk to his head, he said when he got sober he would give him a whipping." Varney Hounshell, who arrived at the scene of the fight just after it occurred, testified that he found the accused standing up and the deceased lying on the floor partially propped up. He testified on cross-examination that a chair was overturned on the floor, and that, before he arrived at the scene, he heard sounds like scuffling. He also testified that there was blood on the floor, and that, when he first went there, the deceased tried to raise up but could not do so. Writ dismissed.

539 U.S. 917 Moorev.Texas. No. 02-9944. Supreme Court of United States. June 9, 2003. 1 Appeal from the Ct. App. Tex., 11th Dist. 2 Certiorari denied.

Docket No. 89043–Agenda 16–March 2001. STEVEN HANSEN, Special Adm’r of the Estate of Andrina Hansen, Appellee, v. BAXTER HEALTHCARE CORPORATION, Appellant. Opinion filed January 25, 2002. JUSTICE KILBRIDE delivered the opinion of the court: Plaintiff’s decedent, Andrina Hansen, suffered an air embolism because an intravenous (IV) tube became detached from a catheter inserted into her jugular vein. The embolism caused brain damage and paralysis; Andrina died a little more than four years later. The administrator of Andrina’s estate filed medical malpractice claims, in the circuit court of Cook County, against the hospital and one of her treating nurses. He later added survival and wrongful-death claims based on a products liability theory against the manufacturer of the IV tube and connecting devices, Baxter Healthcare Corporation (Baxter). Shortly before trial, the plaintiff settled all claims against the medical malpractice defendants for a total of $2,880,000. The administrator then filed an amended complaint against Baxter alleging products liability and negligence theories. Following trial, plaintiff dismissed the negligence claims and the matter was submitted to the jury on only the products liability theory. The jury awarded plaintiff $18,047,000. The award was reduced by a partial setoff of the amounts paid by the settling defendants. On appeal, the appellate court found that the evidence was sufficient to justify the verdict based on a defective-design theory. The appellate court further found that the jury’s verdict could not be sustained on the theory that Baxter breached its duty to warn of its products’ inherent dangers. However, because the jury reached a general verdict, unchecked by any inconsistent answers to special interrogatories, the appellate court refused to disturb the verdict except to reduce the judgment amount by the full amount of the settlements. 309 Ill. App. 3d 869. Baxter appeals to this court, primarily arguing that the appellate court erred in finding that the jury’s verdict could be supported under a defective-design theory. Plaintiff cross-appeals, arguing that we should reverse the appellate court’s finding that Baxter had no duty to warn the medical profession of dangers inherent in its product. We affirm the judgment of the appellate court. BACKGROUND Baxter designs, manufactures and distributes IV tubing sets to hospitals nationwide. These IV sets are prescription medical devices used to deliver fluids, such as blood products, medicines, or nutrients. An IV set consists of tubing and a connector, allowing it to be attached to other sections of tubing or to a catheter inserted into a patient’s venous system. There are two types of connectors: “friction-fit” and “Luer-lock.” The friction-fit type consists of two mating tapered fittings. A medical professional must push the ends of the two fittings together with sufficient force to maintain a leak-proof connection. The Luer-lock type is similar to a friction-fit connector but also has a threaded collar that screws onto the hub of the catheter. In its patent application, Baxter stated that the Luer-lock was designed to overcome the problem of inadvertent disconnection that occurs with friction-fit connectors. Baxter continued to distribute both friction-fit and Luer-lock connectors to hospitals. In March 1991, Andrina was admitted to Mt. Sinai Hospital for treatment of stomach ulcers. Following successful surgery, fluids were administered intravenously to Andrina through her jugular vein. This procedure is known as a “central line” application. Unfortunately, the Baxter friction-fit connector used to connect the IV tube to a catheter came apart, causing Andrina to suffer a seizure. She also suffered an air embolism resulting in brain damage, paralysis and, ultimately, death. The administrator’s complaint alleged, inter alia , that: (1) the tubing was unreasonably dangerous because it was designed, manufactured, and sold without a Luer-lock connection; (2) the friction-fit connection failed when the product was used in a reasonably foreseeable manner; and (3) Baxter failed to warn of the likelihood of unintentional disconnection and the need to use tubing equipped with the Luer-locking device. At trial, plaintiff called Baxter employees as adverse witnesses to establish the propensity of the friction-fit connectors to disconnect unintentionally and to prove that Luer-locking devices provided a more secure connection. According to Margaret Foss, a registered nurse and Baxter vice-president, Baxter was aware at the time Andrina was injured that friction-fit connectors sometimes failed due to patient movement. Foss admitted that this could cause air embolisms in central line applications. She conceded that friction-fit connectors were inadequate for central line use and that, in such instances, medical professionals should use Luer-locks. She testified, however, that Baxter did not encourage sales representatives to recommend Luer-locks for central line applications. Instead, Baxter simply made both products available to its customers. Baxter’s sales representatives provided similar testimony. For example, one representative admitted that she knew prior to Andrina’s injury that friction-fit IV sets could unintentionally disconnect and should not be used in central line applications. Birenda Lal, Baxter’s chief engineer in charge of the IV product line, was called as an adverse witness. He testified that friction-fit connectors could accidentally disconnect. He also stated that friction-fit connectors were being used in central lines and agreed that an air embolism could result if they became disconnected. For this reason, he recommended using Luer-locks in central line applications. He added, however, that Baxter did not advise hospitals to use one product or the other, and Baxter had not developed and marketed Luer-locks to prevent accidental disconnections or to increase patient safety. Rather, the Luer-lock mechanism was a competitive response to industry demands. Lal testified that adding Luer-locks to all connectors was technically feasible and would add between three and five cents to the cost of each unit. He believed that Baxter would put locking collars on all their connectors if customers demanded it. Neil Sheehan testified as plaintiff’s expert witness without objection. Sheehan is a mechanical engineer and had worked for several companies that developed and sold IV components. Sheehan had personally designed and, in some cases, patented medical devices, including IV equipment. He explained that the main problem with using a friction-fit connector was that the amount of force needed to disconnect it depended on several factors, including (1) the force used to connect it; (2) its composition; (3) the method used to sterilize it; and (4) variations in molding. Thus, the strength of the connection varied as different persons used different friction-fit connectors at different times. Generally, however, if the connection was made with less force, it was more likely to fail. Sheehan also described the technical aspects of the Luer-lock. He stated that a Luer-lock prevents the accidental disconnection of IV lines and that it is four to five times stronger than a friction-fit. In order to disconnect a Luer-lock without unscrewing it, the components would have to be pulled apart with great force until the threads on one component tore. Sheehan testified that air embolisms can be avoided by using Luer-locks and that Luer-locks should always be used in central line applications. In his opinion, the friction-fit connector became obsolete once the Luer-lock became available. In addition, Sheehan stated that is was foreseeable that friction-fit connectors might be used in a central line application. He opined, however, that a friction-fit connection was not a safe design in any application and that it was especially hazardous when used in a central vein. He also believed that if medical personnel had used a Luer-lock connector, Andrina’s injury would have been prevented. Dr. William Schumer, chief of surgery at Mt. Sinai Hospital, testified that decisions regarding the purchase of medical supplies were made by a nursing products committee. He said that Luer-locks were not used at Mt. Sinai prior to the incident, and he believed that most hospitals did not use them at that time. He stated that he assumed friction-fit connectors were safe because they were readily available in the market. The chair of the nursing products committee at Mt. Sinai testified that the hospital staff relied on product manufacturers to advise them of the appropriate uses for their products. The nurse responsible for the actual purchase and distribution of medical supplies at Mt. Sinai stated that at the time of Andrina’s injury she did not know the difference between a friction-fit connector and a Luer-lock connector. She also noted that at that time she did not know that friction-fits should not be used in central line applications. Dr. Ricky Maddox, a second-year resident in general surgery at Mt. Sinai at the time of Andrina’s operation, testified that he placed the catheter in Andrina’s jugular vein. Although he knew about using friction-fit connectors on IV tubing, he was unfamiliar with Luer-lock connectors. He did not learn of them until after Andrina was injured, when they began to be used exclusively at Mt. Sinai Hospital. Dr. Henry Roztoczynski, Andrina’s surgeon, testified that he was aware that friction-fit connectors could unintentionally disconnect and that Luer-lock connectors were safe to use in central lines. He never mentioned Luer-lock connectors to his colleagues at Mt. Sinai and did not advocate their use prior to the incident involving Andrina. Dr. Norbert Strohmayer, was a fifth-year surgical resident when he assisted Dr. Roztoczynski with Andrina’s surgery. He testified that he was familiar with both friction-fit and Luer-lock connectors. He was unaware of the requisite force necessary to disconnect friction-fit connectors and could not specifically recall one coming apart. He was also unaware of any literature describing the frequency of accidental disconnection, although he read several well-known medical journals. He agreed that the unintentional disconnection of an IV device could have adverse effects in any application and is “never a good idea.” He acknowledged that Luer-lock connectors were less likely to fail due to a patient’s movement. In its case in chief, Baxter presented testimony from two expert witnesses. First, William McVay, a “medical device consultant” with a degree in mechanical engineering, testified as an expert witness. He agreed that only Luer-locks should be used in central line applications. McVay acknowledged that Baxter was aware of the dangers of using friction-fit connectors in central lines but believed that Baxter was not obliged to reveal this information. Next, Kathleen Medica, a registered nurse with a master’s degree, testified as an expert witness for Baxter. In her opinion, a friction-fit connector was much more likely to fail than a Luer-lock, although she did not know whether this was a well-known complication in the field. She acknowledged that some nurses may never have had the experience of a friction-fit coming apart. After hearing the evidence, the jury returned a general verdict for the decedent’s estate. No special interrogatories were requested or submitted to the jury. The trial court denied Baxter’s post-trial motion seeking judgment notwithstanding the verdict or a new trial. Baxter then appealed. Relying on the learned intermediary doctrine, the appellate court found that Baxter was not obliged to warn Andrina’s health-care providers of the risks associated with friction-fit connectors because they already knew that such risks existed. 309 Ill. App. 3d at 882. The court found, however, that the evidence sufficiently supported the verdict based on the theory of defective design. 309 Ill. App. 3d at 883. The court affirmed the judgment but reduced the award by the full settlement amount. We granted Baxter’s petition for leave to appeal. 177 Ill. 2d R. 315. ANALYSIS Baxter argues that the appellate court erred in (1) holding that the patient, rather than the prescribing physician, is the “ordinary consumer” of prescription medical products; (2) finding that the connector was defective based on Sheehan’s expert opinion testimony since he was an engineer and had no medical training; (3) performing its proximate cause analysis; and (4) applying risk-benefit analysis in determining whether the friction-fit connector was unreasonably dangerous due to a defect in its design. Plaintiff argues that Baxter has waived the last three of these arguments. Therefore, we will first determine whether waiver applies here. A. Waiver Baxter argues that the appellate court erred in finding a prescription medical product defective without expert medical testimony on its proper uses. On that issue, plaintiff offered only the testimony of Neil Sheehan, who is a mechanical engineer and lacks medical training. We agree that Baxter failed to preserve this issue for review. At trial, Baxter did not challenge Sheehan’s qualifications to testify or the sufficiency of his testimony to support plaintiff’s burden of proof. Baxter also failed to raise this issue in the appellate court and raised it for the first time in its petition for leave to appeal before this court. In Daniels v. Anderson , 162 Ill. 2d 47 (1994), we held that parties may not raise arguments for the first time on appeal. To do so weakens the adversarial process and would likely prejudice the other party, who did not present relevant evidence and argument on that issue at trial. Daniels , 162 Ill. 2d at 59. Baxter offers no persuasive reason to depart from the waiver doctrine in this case. Baxter also argues that the appellate court erred in performing a proximate cause analysis. Plaintiff contends that Baxter failed to raise this argument in its petition for leave to appeal and therefore should be foreclosed from raising it now. Again, we agree with plaintiff. Supreme Court Rule 315(b) provides that a party’s petition for leave to appeal “shall contain *** (3) a statement of the points relied upon for reversal of the judgment of the Appellate Court.” 177 Ill. 2d R. 315(b)(3). Failure to raise an argument in the petition for leave to appeal may be deemed a waiver of that argument. Federal Deposit Insurance Corp. v. O’Malley , 163 Ill. 2d 130, 154 (1994). Adherence to the rule is not a jurisdictional prerequisite to our review of an issue; it is a principle of administrative convenience. Dineen v. City of Chicago , 125 Ill. 2d 248, 265 (1988). Here, the issue of proximate cause was thoroughly and thoughtfully discussed in the appellate court’s opinion and it need not be repeated here. We find no sufficient justification to overlook the administrative requirements of Rule 315 in this instance. Finally, we examine whether Baxter has waived its argument that the appellate court erred in applying the risk-benefit test in analyzing whether the friction-fit connector was unreasonably dangerous by reason of a defective design. We conclude that it has not. Although Baxter did not expressly designate this point as a separate argument in its petition for leave to appeal, it did argue that the appellate court’s decision is contrary to a body of precedent prohibiting a finding of liability solely on the existence of an alternative design. Thus, the application of the risk-benefit test is inextricably intertwined with any fair analysis of the elements of plaintiff’s defective design case. For that reason we will consider the merits of Baxter’s argument on this issue. B. Duty To Warn We first address whether Baxter had a duty to warn of dangers inherent in the friction-fit connector. For the reasons that follow, we conclude that it did. Generally, the manufacturer of a prescription medical device has a duty to warn prescribing physicians or other health professionals who may prescribe the device of the product’s known dangerous propensities. Kirk v. Michael Reese Hospital & Medical Center , 117 Ill. 2d 507, 517 (1987). Likewise, physicians, using their medical judgment, have a duty to convey the warnings to their patients. Kirk , 117 Ill. 2d at 517. The duty to warn the health-care professional, rather than the ultimate consumer or patient, is an expression of the “learned intermediary” doctrine. A corollary of that doctrine is the principle that a prescription medical device manufacturer need not provide a warning of risks already known to the medical community. Proctor v. Davis , 291 Ill. App. 3d 265, 277 (1997). In this case, the appellate court held that Baxter had no duty to warn Mt. Sinai Hospital’s doctors about the risks of disconnection of the friction-fit device because the medical community was already aware of those risks. 309 Ill. App. 3d at 882. In plaintiff’s request for cross-relief in this court, he argues that the appellate court erred by finding that Baxter had no duty to warn as a matter of law because health-care providers already knew of the dangers associated with friction-fit connectors and the need to use Luer-locks. Plaintiff asserts that since there is conflicting evidence concerning the comparative knowledge of Baxter and the medical community about this peril, the jury was properly allowed to decide this issue. We agree that the record contains sufficient conflicting evidence to raise factual questions concerning the comparative knowledge of Baxter and that of the medical community concerning both the danger of using friction-fits in central lines and the need to use only Luer-locks in these applications. The record indicates that Baxter’s employees knew of the inherent dangers of friction-fits and that Baxter’s patent indicates that Luer-locks were designed to avoid accidental disconnections. For example, both Baxter’s chief engineer, Birenda Lal, and its expert medical device consultant, William McVay, knew that only Luer-locks should be used on central lines because they are less likely to come apart. In contrast, the testimony from persons on the medical staff at Mt. Sinai shows that they had significantly less knowledge. The chairperson of the nursing products committee testified that hospital staff relied on product manufacturers to advise them regarding the appropriate uses of a product. The nurse responsible for the actual purchase and distribution of medical supplies at Mt. Sinai testified that, in March 1991, she did not know the difference between a friction-fit connector and a Luer-lock and that she did not know that friction-fit connectors should not be used in central lines. Morever, Dr. Norbert Strohmayer, the fifth-year resident who assisted at Andrina’s surgery, was unaware of any literature describing the frequency of unintentional separation with friction-fit connectors, despite reading and subscribing to several well-known medical journals. He was also unaware of the force necessary to disconnect a friction-fit connector. In addition, Dr. Ricky Maddox, who actually placed the catheter in Andrina’s jugular vein, stated that he was unfamiliar with Luer-lock connectors and did not learn about them until after the incident. Thus, he could not have known that friction-fit connectors should never be used in central line applications. In Proctor v. Davis , 291 Ill. App. 3d 265 (1997), the appellate court held that a drug manufacturer that only shared information about its product’s toxicity with its own employees breached its duty to warn the medical community because without this information, doctors could not provide appropriate and comprehensive medical advice for their patients. This prevented them from functioning as “learned intermediaries” to protect their patients’ best medical interests. The court said, “Doctors who have not been sufficiently warned of the harmful effects of a drug cannot be considered ‘learned intermediaries’ and the adequacy of warnings is a question of fact, not law, for the jury to determine, as it did in the instant case.” (Emphasis added.) Proctor , 291 Ill. App. 3d at 283. In the instant case, Baxter gave the medical community no warning at all about the need to use Luer-locks in central line applications. Thus, this issue was properly submitted to the jury. The jury’s general verdict for plaintiff could have been reasonably based on a finding that Baxter’s knowledge with respect to the use of friction-fit connectors was superior to that of the medical community and thus Baxter breached its duty to warn. The evidence does not so strongly favor Baxter that the jury’s conclusion cannot stand and therefore we will not disturb it on appeal. See Pedrick v. Peoria & Eastern R.R. Co. , 37 Ill. 2d 494, 510 (1967). The appellate court erred by holding otherwise. C. Design Defect We next consider whether the jury’s verdict can be supported under a design-defect theory. We find that it can. A manufacturer has a nondelegable duty to produce a product that is reasonably safe for all intended uses. Doser v. Savage Manufacturing & Sales, Inc. , 142 Ill. 2d 176, 189 (1990). In Lamkin v. Towner , 138 Ill. 2d 510, 529 (1990), we said: “A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (l) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.” The first way is commonly referred to as the consumer expectation test. The second is called the risk-utility or risk-benefit test. The appellate court held that under either test, the evidence justified a finding of defective design. We agree. 1. The Consumer Expectation Test In affirming the jury’s verdict, the appellate court held that it was not against the manifest weight of the evidence for the jury to find that the friction-fit device failed to meet Andrina’s reasonable expectation that it would function properly. 309 Ill. App. 3d at 884. Baxter contends that the health-care professional (rather than the patient) should be deemed “the consumer” for purposes of the consumer expectation test. This approach, Baxter argues, is consistent with the traditional application of the learned intermediary doctrine. Baxter further argues that this is true because, in the case of a prescription medical device, the patient has no more independent ability to assess the product’s risks or benefits than to appreciate or assess the warnings as to its use. Thus, under the consumer expectation test, the issue is whether the product is more dangerous than expected by the ordinary learned intermediary. Neither Baxter nor its amicus , the Product Liability Advisory Council, has cited any Illinois authority in support of this argument. Baxter refers us to Shanks v. Upjohn Co. , 835 P.2d 1189 (Alaska 1992). In that case, the court concluded that a prescription drug is defectively designed and imposes strict liability on its manufacturer if it fails to perform as safely as an ordinary doctor would expect, when used by the patient in an intended and reasonably foreseeable manner. Shanks , 835 P.2d at 1195. In a footnote, the court observed: “With certain types of prescription drugs, the role of the doctor in the decision to use a specific product is significantly reduced. Examples of such atypical prescription products include contraceptives, where the patient initiates and directs the usage, drugs administered in a clinical setting with little or no physician involvement, or drugs marketed under a strategy designed to appeal directly to the consuming public. These are areas where courts have held that manufacturers have a duty to warn patients directly. In strict liability design cases involving such products, it may be appropriate to apply the ‘ordinary consumer expectation’ test rather than the ‘ordinary doctor expectation test.’ ” Shanks , 835 P.2d at 1195 n.7. In the case before us, the evidence showed that the decision to purchase friction-fit connectors was made exclusively by the nursing products committee at Mt. Sinai. The chairperson of that committee testified that the hospital staff relied on the product manufacturer to advise them of the proper uses for the product. The person who actually purchased the friction-fit connectors from Baxter’s sales representative was not a physician and did not know that those devices should not be used in central line applications. Since the purchase of the product had little physician involvement, it would appear that the facts in this case are similar to those described in the Shanks footnote. In such cases, the application of the “ordinary consumer” expectation test, rather than the “ordinary physician” expectation test, is appropriate. Moreover, in Haudrich v. Howmedica, Inc. , 169 Ill. 2d 525 (1996), plaintiff sought recovery on a strict liability theory against the manufacturer of a knee prosthesis that failed prematurely, causing personal injuries. The evidence was conflicting as to whether the device failed because of a design defect, a manufacturing defect, or both. In any event, this court held that the evidence was sufficient to support a finding that the plaintiff was injured by an unreasonably dangerous condition of the knee device. The court stated: “sufficient evidence was presented to support a finding that the device failed to perform in a manner reasonably expected in light of its nature and intended function and subjected the plaintiff to an unreasonable risk of harm beyond that contemplated by an ordinary person. ” (Emphasis added.) Haudrich , 169 Ill. 2d at 542. Although the Haudrich court was not presented with the argument that the contemplation of the doctors, rather than the patient, should be controlling, that case clearly used the “ordinary person” standard in applying the consumer expectation test. Andrina, who was conscious after surgery, could have reasonably expected that her IV catheter connection, if properly designed and manufactured, would be safe to use for its intended purpose. She was the person who would be harmed if the device failed. The expert testimony adduced at trial was sufficient to establish that the design of the device was defective and that this defective design caused her injury. Thus, we agree with the appellate court’s conclusion that the jury’s decision did not contradict the manifest weight of the evidence. 2. The Risk-Utility Test Baxter also argues that the appellate court erred in finding that the jury’s verdict could be supported under the risk-utility test. The appellate court held that the record supported a finding that a connector existed that would prevent foreseeable harm without hindering its function or significantly increasing its price. Hansen , 309 Ill. App. 3d at 884. We disagree with Baxter on this point. As this court held in Kerns v. Engelke , 76 Ill. 2d 154, 162-63 (1979), a plaintiff may demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented the injury and was feasible in terms of cost, practicality and technological possibility. The record in this case contains sufficient evidence to establish that the Luer-lock collar was designed to, and would have, prevented an unintentional disconnection at a cost of between three and five cents per unit. This record is sufficient to sustain a finding of unreasonable dangerousness under a risk-utility analysis. Baxter argues, however, that a risk-utility analysis is inappropriate in this case because the device in question is simple and because the risks are well-known to the medical community that uses the device. Baxter cites Scoby v. Vulcan-Hart Corp. , 211 Ill. App. 3d 106 (1991), in support of its argument. In that case, the appellate court reviewed a grant of summary judgment by the trial court in favor of the defendant manufacturer of a deep-fat fryer used in a restaurant. Plaintiff was a cook who was burned when he slipped and lost his balance, causing his arm to be submersed in hot oil. Plaintiff claimed the injury could have been prevented if the fryer had been equipped either with a simmer cover or a tank cover. The manufacturer offered each protective cover as a separate product. The parties stipulated that the purpose of the simmer cover was to trap moisture in the product being cooked, and that the purpose of the tank cover was to prevent vermin from getting into the jelled cooking oil after it had cooled. Neither cover was developed or marketed as a safety device. In affirming the trial court’s decision, the appellate court remarked: “We do not deem that Lamkin or other cases applying aspects of the danger-utility test intend that all manufacturers of products described above should be subject to liability depending upon a trier of fact’s balancing under that test, when suit is brought by one injured by such a product. Somewhere, a line must be drawn beyond which the danger-utility test cannot be applied. Considering not only the obvious nature of any danger here but, also, the simple nature of the mechanism involved, we conclude the circuit court properly applied only the consumer-user contemplation test.” Scoby , 211 Ill. App. 3d at 112. That conclusion is not compelled by the facts in this case. Baxter’s patent application stated that the Luer-lock was designed to overcome the problem of inadvertent disconnection of the friction-fit. Thus, it is reasonable to infer that Baxter, unlike the manufacturer in Scoby , developed and marketed its product as a safety device. As plaintiff’s expert Neil Sheehan testified, the likelihood of disconnection of a friction-fit device is dependent on several variables, including the force applied to engage it, differences in molding and differences in sterilization procedures. Sheehan further opined that the friction-fit connectors became obsolete once the Luer-lock was invented. Even though the doctors assumed the friction-fit device was safe to use in central line applications, the reasonable conclusion is that the danger in the friction-fit was not obvious, nor was the mechanism simple. There can be no rational comparison between this device and a kettle of boiling oil. Thus, Scoby is inapposite. We believe the analysis of the appellate court was correct on this issue and we hold that the jury’s decision against Baxter based on application of the risk-utility test was not against the manifest weight of the evidence. Baxter also argues that if the risk-utility test is to be applied in the defective design analysis, then we should apply the standard defined by the new Restatement (Third) of Torts. That standard would allow a finding of unreasonably dangerous design only if reasonable health-care providers, knowing the foreseeable risks and therapeutic benefits, would not prescribe the device for any class of patients. Restatement (Third) of Torts: Product Liability §6 (1998). Baxter did not argue this point in the trial court and it was asserted for the first time in Baxter’s reply brief in the appellate court. The appellate court, however, made no reference to this argument in its opinion. Application of the Restatement (Third) of Torts standard would apparently require expert medical testimony to establish whether reasonable health-care providers, knowing the foreseeable risks and therapeutic benefits of the friction-fit device, would prescribe it for any class of patient. No such expert medical testimony was proffered by either party. We have already held that Baxter waived the argument that it was error to rely on the testimony of a mechanical engineer with no medical training or expertise and, thus, there is no evidentiary basis for the application of the Restatement (Third) of Torts standard. We decline, therefore, to address this issue We do not foreclose the consideration of the Restatement (Third) of Torts standard in another case where it is raised at trial and is appropriately briefed and argued. CONCLUSION We disagree with the appellate court’s conclusion that, under the learned intermediary doctrine, Baxter had no duty to warn of the inherent dangers associated with friction-fit locks. We find that the duty to warn was properly submitted to a jury and that the jury’s verdict does not contradict the manifest weight of the evidence. We agree with the appellate court’s conclusion that the defective-design theory was properly submitted to a jury and that the verdict does not contradict the manifest weight of the evidence. Therefore, for the reasons stated, we affirm the judgment of the appellate court, which affirmed the judgment of the circuit court as modified. Appellate court judgment affirmed.

J-S46031-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 J.L., F.L. AND L.L., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees v. A.A.M., Appellant No. 530 MDA 2014 Appeal from the Order entered on February 25, 2014, in the Court of Common Pleas of Franklin County, Civil Division, at No.: 2013-1943 BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014 Custody - proceedings. The trial court set forth the procedural history of this appeal as follows: This matter arose by a Complaint for Custody, filed by [Father and Paternal Grandparents] on May 13, 2013. The parties attended a conciliation conference on August 2, 2013. [The trial c]ourt approved the recommendations of the Conciliatio[r], and a temporary custody [O]rder was entered on August 16, 2013. Under that [O]rder, Mother and Father had J-S46031-14 shared legal custody, with Father having primary physical custody and Mother having custody one weekend per month. On September 11, 2013, Mother filed a Motion for Scheduling of a pre-trial conference. The matter proceeded to trial, which was held on February 12, 2014. Trial Court Opinion, 4/15/14, at 2 (some capitalization omitted). The trial court set forth the relevant testimony presented at the custody trial1 as follows: When [C]hild was born, Mother and Father lived with [C]hild Pennsylvania. [N.T., 2/12/14,] at 26. In February [] 2010, Mother moved out of that house and stayed with her mother in Chambersburg. Id. at 58-59. Mother then moved in with her grandmother in Fayetteville until June [] 2010. Id. at 59. During that time, the parties operated under a week-on, week- off custody schedule, each parent [having] alternating weeks with [C]hild. Id. at 59. Upon Mother securing an apartment in June, the parties continued to share custody on a weekly basis. Id. In June [] 2011, Mother moved to Conneaut Lake, Pennsylvania, approximately 3.5 [to] 4 hours away from Chambersburg. Id. Mother did not seek to relocate with [C]hild, and a relocation petition was never filed with [the trial c]ourt. The reason for her relocation was that her boyfriend had obtained new employment in that area and had to move. Id. at 60. Mother and her boyfriend are the parents of a three[-]year[-]old child who lives with them. Id. at 61. Upon the move to Conneaut Lake, Mother attended school from Degree as a medical assistant. Id. at 60. During this time, [C]hild continued to live with Father at [P]aternal Id. at 61. Mother usually sees [C]hild once a month. Id. at 63. 1 The trial court heard testimony from Father, Paternal Grandmother, in camera). We note that both Father and Paternal Grandparents appeared pro se, and Paternal Grandmother questioned several of the witnesses and raised objections during the course of the trial. -2 - J-S46031-14 factory located in Chambersburg. Id. at 8-10.] Father then began residing part-time with his girlfriend in Shippensburg, Pennsylvania, who was pregnant at the time. Id. at 7. The custody arrangement has been that Father gets [C]hild on weekends and any day he has off [] work. Id. Father works the second shift at [the factory], from 3:00 p.m. until approximately 1:00 a.m. Id. at 10. He calls [C]hild at [P]aternal Id. schedule, Father and [P]aternal [G]randparents have established a routine where [C]hild during the week. Trial Court Opinion, 4/15/14, at 3-4. On February 24, 2014, the trial court orally set forth its findings and decision in open court on the record. The next day, the court entered the Custody Order, awarding, inter alia, (1) primary physical custody of Child to Father, with a provision that Paternal Grandparents could exercise partial ;2 (2) partial physical custody to Mother during the school year, in accordance with a schedule; and (3) primary physical custody to Mother during the summer, when Child is not in school. Mother filed a Motion for Reconsideration, which the trial court denied. Thereafter, Mother timely filed a Notice of Appeal, along with a Concise 2 Father shall have primary physical custody of [Child] during the school year. Father may permit [Child] to reside with [Paternal Grandfather] and [Paternal Grandmother] during the school week due to his current work schedule, but shall transition to another work schedule if available so that [Child] may -3 - J-S46031-14 Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), after which the trial court issued an Opinion. On appeal, Mother presents the following issue for our review: Whether the award of [] primary custody to Father with a provision that he can delegate his custody to [Paternal G]randparents[,] when the [trial] court has specifically found that [Paternal G]randparents have not overcome [Mother and prima facie right to primary custody[,] is [an] abuse of discretion? Mother argues that Father is largely unavailable to care for Child (and thus not an appropriate resource for primary physical custody), and that the trial court improperly permitted him to delegate his physical custody to Paternal Grandparents during his workweek. Id. at 9, 12; see also id. at 9 (wherein Mother asserts that, under the Custody Order, Father essentially does not exercise physical custody of Child on Monday through Saturday Mother points out that the trial court found that neither parent was unfit to care for Child. Id. at 9, 11. Mother further argues that Paternal legally entitled to partial physical custody, not primary custody, which, Mother asserts, the Custody Order effectively awarded to Paternal Grandparents, not Father. Id. at 9-12. Accordingly, Mother requests this Court to vacate the Custody Order and remand the matter to the trial court -4 - J-S46031-14 to enter an order awarding her primary physical custody, in Conneaut Lake, Pennsylvania. Id. at 13. Our standard of review is as follows: In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first- deductions or inferences from its factual findings. Ultimately, as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). With any custody case, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of Child Custody 3 provides that, upon petition, a trial court may modify a custody order if it serves the best interests of the child. Id. § 5338. Section 5328(a) of the Act sets forth sixteen best interest factors (collectively when awarding custody. Id. § 5328(a). 3 See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F., 45 A.3d at 445 (stating that, where, as here, the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). -5 - J-S46031-14 Further, where, as here, a request for relocation of the subject child is involved, the trial court must consider the ten relocation factors (collectively Act. Id. § 5337(h); see also E.D. v. M.P., 33 A.3d 73, 81 (Pa. Super. ial court shall consider all of the factors listed therein, giving weighted consideration to is no black letter formula that easily resolves relocation disputes; rather, custody disputes are delicate issues that must be handled on a case-by- C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012) (citation and quotation marks omitted). Initially, we must address whether Paternal Grandparents have standing to sue in their own right in this case.4 Section 5324 of the Act provides the following with regard to standing to file a custody action: § 5324. Standing for any form of physical custody or legal custody The following individuals may file an action under this chapter for any form of physical custody or legal custody: 4 Although the trial court indicates in its Opinion that Mother does not in fact, raise this issue, as she argues, and the trial court concedes, that entitlement to primary physical custody of Child as Father or Mother, as See Trial Court Opinion, 4/15/14, at 6. -6 - J-S46031-14 (1) A parent of the child. (2) A person who stands in loco parentis to the child. (3) A grandparent of the child who is not in loco parentis to the child: (i) whose relationship with the child began either with the consent of a parent of the child or under a court order; (ii) who assumes or is willing to assume responsibility for the child; and (iii) when one of the following conditions is met: (A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters); (B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or (C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home. 23 Pa.C.S.A. § 5324. Here, it is undisputed that Paternal Grandparents were not eligible to seek primary physical custody in their own right, as they cannot satisfy any of the subsections of section 5324. However, section 5325 of the Act provides, in relevant part, as follows: grandparents and great-grandparents may file an action -7 - J-S46031-14 under this chapter for partial physical custody or supervised physical custody in the following situations: *** (2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage[.] 23 Pa.C.S.A. § 5325(2); see also Hill v. Divecchio, 625 A.2d 642, 645-48 (Pa. Super. 1993) (addressing whether grandparents had standing to sue for partial physical custody in their own right under section 5312 of the former 3 Pa.C.S.A. § 5312 (i.e., the predecessor statute to the standing provisions set forth at sections 5324 and 5325)). at least six months, and they were never married. Thus, we determine that the trial court properly granted Paternal Grandparents standing to seek partial physical custody pursuant to 23 Pa.C.S.A. § 5325(2). Mother argues that Paternal Grandparents have not met their burden prima facie custody when Mother, as a parent, is ready, willing, and able to assume custody. See Brief for Mother at 10-12. -established legal principal that natural parents have a rebuttable presumption against third parties, including grandparents, in custody disputes. See 23 Pa.C.S.A. § 5327(b) (providing parent of the child and a nonparent, there shall be a presumption that -8 - J-S46031-14 custody shall be awarded to the parent. The presumption in favor of the see also V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super. 2012) (discussing the presumption in section 5327(b) and stating th preclude an award of custody to a non-parent. Rather they simply instruct the [trial] judge that the non-parent bears the burden of production and the burden of persuasion and that the non- omitted)). In its Opinion, the trial court found that Paternal Grandparents had met this heightened burden, and discussed its reasons for entering the Custody Order, stating as follows: In this case, the dispute was not between the parents on one side and the grandparents on the other. Father and [P]aternal Grandparents [jointly] filed their Complaint against Mother, and[,] thus, there was a parent on either side. This [c]ourt awarded primary physical custody to Father, and granted [P]aternal [G]randparents partial physical custody during the detail on the record. Mother focuses on the fact that, because exercise custody, she should be granted primary physical custody over Father, and over any third party. This [c]ourt stands by its findings that granting Mother *** This [c]ourt cannot simply ignore the bigger picture sought to neglect his parental responsibilities due to any kind of personal selfishness. This [c]ourt found no evidence -9 - J-S46031-14 arrangements were made for reasons other than what was in on the record that Father will not be permitted to simply coast along, making no effort to obtain a different work schedule, one that would permit him to spend time with [C]hild weekly. This [c]ourt was required to render a determination regarding relation to a fixed standard, but by determining what is best for Commonwealth ex rel. Batturs v. Batturs, 60 A.2d 610, 611 (Pa. Super. 1948).] This [c]ourt examined the entirely of the circumstances, taking into account all been, and found that awarding Father primary physical custody Trial Court Opinion, 4/15/14, at 7, 9 (emphasis in original). However, this case also involves considerations of relocation. 5 While the trial court considered and discussed the sixteen section 5328(a) best interest factors on the record, it did not consider the ten relocation factors on the record, nor did it set forth any findings regarding section 5337(h) in its Pa.R.A.P. 1925(a) Opinion. cases involving proposed relocation, this Court has stated as follows: Section 5337(h) requires courts to consider all relocation factors. The record must be clear on appeal that the trial court considered all the factors. 5 As discussed above, Mother sought primary physical custody and to relocate Child to live with her and her boyfriend in Conneaut Lake. Father also sought primary physical custody; however, primary physical custody under an arrangement whereby Child would not relocate from Paternal custody for Father would i Shippensburg, which he shares with his girlfriend and their daughter. -10 - J-S46031-14 Section 5323(d) [of the Act] provides that a trial court and relocation. A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis added; citations to case law and quotation marks omitted). We determine that the trial court committed an error of law when it failed to consider the section 5337(h) relocation factors, either on the record or in a written opinion or order. See E.D., 33 A.3d at 81, 82 (vacating the custody order and remanding to the trial court where the court had failed to consider the relocation factors in a case involving relocation, and stating that the trial court to consider each of the factors set forth in section 5337(h), and to state both its reasoning and see also A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013) (stating that the trial court must consider all ten relocation factors, and all sixteen best interest factors, when making a decision on relocation that also involves a custody decision). Therefore, we must remand the matter to the trial court for further proceedings and a consideration of the relocation factors. See E.D., 33 A.3d at 82; see also A.V., 87 A.3d at 825. On remand, the trial court should consider all of the -11 - J-S46031-14 best interest and relocation factors, and set forth its analysis in a written opinion.6 Finally, Mother argues that the Custody Order is improper in that it essentially awarded primary physical custody of [C]hild to [] Paternal Grandparents[,] while couching it [the award] in language that they were actually awarded partial physical custody. This was done despite the Grandparents were only entitled to partial physical custody under [the Act] and under the facts of this case. th Paternal Grandparents (while Father resides with his girlfriend in Shippensburg), and Paternal Grandparents are not entitled to an award of primary physical custody. See 23 Pa.C.S.A. § 5324. Accordingly, on remand, we instruct the trial court that it may not award primary physical custody to Father and, at the same time, have Child reside at the home of Paternal Grandparents, if that is not where Father is going to be residing during his workweek. Based upon the foregoing, we vacate the Custody Order and remand the case to the trial court for further proceedings and the entry of a new 6 Moreover, on remand, the trial court should ensure that it does not consider any inappropriate factual matter developed by Paternal Grandmother questioning witnesses or making objections at the custody trial, as she was not able to serve as an attorney for any of the pro se plaintiffs but herself. This Court has observed that the right to self- representation in a civil case does not give leave for the party to fail to comply with rules of procedure and substantive law. Winpenny v. Winpenny, 775 A.2d 815, 817 n.1 (Pa. Super. 2001). -12 - J-S46031-14 custody order and a supplemental Pa.R.A.P. 1925(a) Opinion, consistent with this Memorandum. Order vacated. Case remanded for further proceedings. Superior Court jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/28/2014 -13 - 

SECOND DIVISION MILLER, P. J., REESE and GOBEIL, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules June 12, 2019 In the Court of Appeals of Georgia A19A0322. AIKG, LLC v. MARSHALL. MILLER, Presiding Judge. In this civil action, Tanisha Marshall sued AIKG, LLC, alleging negligence in the operation of its indoor go-kart facility where Marshall sustained serious bodily injuries from a crash while operating a go-kart. Following a jury verdict and judgment in Marshall’s favor, AIKG, LLC appeals. In its sole enumeration of error,1 AIKG argues that the trial court erred in granting Marshall’s Batson2 challenge to the use of its peremptory strikes. For the reasons that follow, we affirm. 1 In its reply brief to this Court, AIKG withdrew the second enumeration of error regarding the trial court’s denial of its motion for directed verdict concerning its assumption of risk affirmative defense. At oral argument, AIKG confirmed that it had abandoned that enumeration. 2 Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LEd2d 69) (1986).  The record shows that Marshall filed a complaint against AIKG after sustaining injuries from a crash while operating a go-kart at AIKG’s facility, and the case proceeded to trial. During voir dire, Marshall raised a Batson challenge regarding AIKG’s use of its peremptory strikes. Marshall argued that of the twenty-five members of the jury pool, fifteen were Caucasian and ten were African-American, and of the ten African-American prospective jurors, only three of those jurors were selected. The trial court noted that all of the strikes used by AIKG were against African-Americans, and directed AIKG to respond to Marshall’s Batson challenge. AIKG began its response by noting that it had not used all of its peremptory strikes and had one strike remaining. AIKG then provided explanations for each of its strikes. As to the first strike, AIKG’s counsel explained, So my first strike was Number 11. This was a retired gentlemen and in my experience I typically do not like retirees, no matter what their background is. I find that they, I don’t know if it’s from daytime television or what, but in my experience retirees have not been particularly good defense jurors. As to the second strike, AIKG’s counsel said, Number 13, . . . we didn’t learn that much information from [Juror 13]. The only note that I have written down about [Juror 13] was that she 2  commented during [Mr.] Hoffspiegel’s voir dire that when people drive too fast, it can lead to great injuries or death. Mr. Hoffspiegel, as I saw a preview of his case yesterday, during opening statements, the case that we mistried is going to be spending a great deal of time, I think, in this case discussing speed, which is why I noted that, and which is why I struck Juror Number 13. As to the third strike, AIKG’s counsel explained, Juror Number 14, . . . -- Oh, she’s also -- She didn’t have -- [Juror 13] and [Juror 14] were the two ladies that were seated side by side and neither one of them offered us much information to glean about them despite Mr. Hoffspiegel’s fairly extensive voir dire and the only thing that I wrote down with her is that she had a pretty visceral reaction to one of the questions during Mr. Hoffspiegel’s examination, which was that she was very, very, very adamant about seatbelt usage and seemed to indicate that she thought that seatbelts would basically prevent any sort of injury. Regarding the fourth strike, AIKG’s counsel stated, Number 17 was a juror that I actually followed up on because he said something during Mr. Hoffspiegel’s questioning that caused me a little bit of concern and that was that, if you don’t follow the rules, people get hurt, and again having access to having heard Mr. Hoffspiegel’s opening statement yesterday, and frankly his voir dire both days, I know that this 3  is going to be a safety rule case and he’s going to allege there were multiple violations of safety rules. As to the fifth strike, AIKG’s counsel elaborated, Let’s see, the last juror that I struck, [Juror 23]. Again we didn’t learn a lot about [Juror 23], but the one thing that I wrote down about [Juror 23] was that, businesses should make sure that people cannot get hurt, and that is a direct quote from her during the voir dire process. That’s why I chose to strike [Juror 23] and that’s the end of my strikes for the jury. As to the strike of a juror on the alternate panel, AIKG’s counsel explained, So with the alternate knowing that we basically had those three jurors to choose from, I looked at that and compared the jurors against one another and, frankly, the fact that I had the opportunity to have a younger male, who I thought might frankly understand go karting a little bit better than an older lady, that’s why I wanted to use my strike on her to hopefully get the younger guy. After AIKG’s counsel gave the reasons for the strikes, the trial court initially ruled that AIKG improperly exercised all of its peremptory strikes with the exception of its fourth strike against Juror 17. Specifically, as to the first strike, the trial court stated, “[t]he retiree, I do not find that to be a race-neutral reason for striking someone 4 because they are retired. So I will put that juror back in the pool.” The trial court continued, As it relates to Juror Number 13 and 14, . . . both being [African]- American women, where defense attorney has stated, did not offer much information on either, but the first one the reason being that the juror commented, that great injuries and death when you drive too fast [sic]. And the other juror the reason given was they made a comment as it relates to Plaintiff’s question about seatbelts and them saving people. I do not find either of those reasons to be race-neutral. Seatbelts, jurors, appears to be pretexts for Jurors 12, 13 and for the retiree juror, that was Juror Number 11. Regarding Jurors 23 and 30, the trial court stated, Juror Number 23, defense asserted, not a lot about [Juror 23] either -- businesses should make sure that the place is safe for their people and I find that is not a race-neutral reason, since not much information was gathered and it appears to be that any comment or any statement that these jurors made was given as a pretext for a reason to strike them since not that much dialog was taken from them. ... Juror Number 30, . . . reason indicated that -- Juror Number 30 indicated that the reason the juror was taken because there were the alternate choices, there were younger jurors and they may know more about race cars and go karts. And I guess, if I looked at the other jurors, who may 5  have been selected, I guess in looking at the ages of the jurors, this juror was born in 1987. And the juror that was struck was born in 1960. And so if I look at Juror Number 7, . . . who was a white female, she was born in 1957. If I looked at another Juror Number 9, . . . he was born in 1959. So when looking at those two jurors, who have aged, they’re varying ages on there, but I find that is not a race-neutral reason considering that there are other jurors who are as old or older, so seat the juror. The trial court took a brief recess after its initial ruling on Marshall’s Batson challenge.3 After reconvening, the trial court directed Marshall to respond to AIKG’s arguments concerning its reasons for the strikes. After Marshall’s pretext arguments, the trial court upheld its initial ruling, stating, [B]ased upon the fact that race neutral reasons were not given; based upon the fact that several of the jurors, namely . . . Jurors Number 11, Juror Number 13, Juror Number 14 and Juror Number 30 and Juror Number 33,4 were asked few, if any, questions. And the questions, the limiting or the lack of questioning or the lack of meaningful questioning, is one of the reasons that I considered in striking the jurors -- I’m sorry 3 Prior to the recess, the trial court heard arguments on AIKG’s Batson challenge to Marshall’s strikes, which the trial court denied. 4 Although the trial court referred to Juror 33, it appears that the trial court misspoke and meant to reference Juror 23. 6  in reseating the jurors and indicating that the reasons given by the defense were not race neutral reasons. Based upon the strikes that the defense made, it was an overwhelming pattern of strikes against African-Americans and reasons are previously given not a lot of meaningful questioned [sic] asked by them. If we look at the jury list that has been submitted and the jurors who were chosen, the parties had six strikes each. The Plaintiff used four of their strikes and the Defendant used five of their strikes. Based upon the jurors, who were struck for cause, the parties, if they had used all of their strikes, would have gone to Number 29 [s]ince the plaintiff only used four, the defense used five, they stopped at Number 25. But in looking at the jury sheet another factor that I considered, the defense had another strike, which would have been Juror Number 27, and Juror Number 27, being an African-American, was struck by the defense but it was crossed through because they realized, the parties realized, they did not need to go past 25 because they would have had 12 jurors. So if I take all of that information, put it together and come up with an explanation as to why the jurors should be seated, it was overwhelmingly that the reasons given were not race neutral. Few, if any, questions were asked and it was overwhelmingly a number of African-Americans that were struck. The case proceeded to trial and the jury returned a verdict in Marshall’s favor. The jury allocated 64 percent of the fault to AIKG, 24 percent of the fault to the driver who crashed into Marshall, 12 percent of the fault to Marshall, and awarded $2 7 million in damages. The trial court subsequently entered its judgment in Marshall’s favor. This appeal followed. AIKG contends that the trial court conducted an improper Batson analysis by finding pretext at step two of the Batson test and by failing to analyze whether Marshall proved discriminatory intent as required under Batson’s third step. We are unpersuaded. In Batson, the United States Supreme Court barred the government from striking prospective jurors from the jury panel on the basis of race. Ultra Telecom, Inc. v. Merchant, 328 Ga. App. 230, 232 (761 SE2d 623) (2014). See also Batson, supra, 476 U. S. at 84. In Edmonson v. Leesville Concrete Co., 500 U. S. 614 (111 SCt 2077, 114 LEd2d 660) (1991), the Supreme Court extended its holding in Batson to civil cases. Ultra Telecom, supra, 328 Ga. App. at 232. Establishing a Batson violation requires satisfaction of a three-prong test: “(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.” (Citation omitted.) Id. 8  [I]n reviewing the trial court’s disposition of Batson motion, we must bear in mind that the trial court’s decision rests largely upon assessment of the proponent’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. Thus, the trial court’s findings as to whether the opponent of the strike has met the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous. (Citations and punctuation omitted.) Ultra Telecom, supra, 328 Ga. App. at 232-233. With these guiding principles in mind, we turn to the facts surrounding AIKG’s claim of error. As AIKG concedes, a similar legal issue to the one raised here was also raised in Dunn v. State, 304 Ga. 647 (821 SE2d 354) (2018). In Dunn, the trial court heard the State’s argument of a prima facie case for its McCollum5 challenge, which requires proof of the same elements for a Batson challenge. Id. at 649 (2). After the trial court heard the defense’s race-neutral arguments, the trial court ruled that one juror was improperly struck from the jury. Id. at 649-650 (2). After the trial court’s initial ruling, the State provided additional arguments as to why the defense’s reason 5 In Georgia v. McCollum, 505 U.S. 42 (111 SCt 2348, 120 LE2d 33) (1992), the United States Supreme Court extended Batson to challenges made by the government, and prohibited criminal defendants from exercising peremptory strikes in a racially discriminatory manner. 9 for the strike, although facially race-neutral, was pretext. Id. The trial court subsequently upheld its initial ruling and seated the improperly struck juror. Id. at 651 (2). Dunn argued on appeal, as AIKG argues here, that “the trial court failed to consider step three of the [Batson] test, and improperly found in step two of the analysis that his explanation was not race-neutral.” Id. In rejecting Dunn’s argument, our Supreme Court reasoned that “[w]hile the trial court did not expressly indicate that it was moving to step three of the McCollum analysis, we do not look merely at the nomenclature used during a colloquy, but at the totality of the discussion, including the trial court’s inquiry.” Dunn, supra, 304 Ga. at 651 (2). The Supreme Court noted that “[w]e don’t read statements in isolation; we read them in context.” (Citation and punctuation omitted.) Id. The Court noted that while the trial court incorrectly ruled that Dunn failed to articulate a race-neutral reason for his strike, the trial court subsequently heard argument from the State as to why the defense’s reason for the strike was pretext. Id. at 650-651 (2). The Court further recognized that after the State’s pretext argument, the trial court “concluded that the explanation was pretextual and made with discriminatory intent.” Id. Thus, the Court held that, in light of the totality of the discussions, the trial court conducted 10 the proper McCollum inquiry, and the Court affirmed the trial court’s finding of purposeful discrimination. Id. at 651-652 (2). Here, as in Dunn, the trial court heard Marshall’s argument of a prima facie case of purposeful discrimination in AIKG’s exercise of its peremptory strikes, as well as AIKG’s race-neutral explanations for its strikes. Like Dunn, after AIKG proffered its race-neutral explanations for its strikes, the trial court initially incorrectly found pretext in AIKG’s exercise of its strikes. However, like the State in Dunn, Marshall supplied arguments prior to the trial court’s final ruling that AIKG’s explanations for the strikes, although facially race-neutral, were pretext. Accordingly, under Dunn, AIKG’s contention that the trial court erred by conducting an improper Batson inquiry must fail. While the trial court did not expressly state that it was moving to the third step of the Batson analysis, we look at “the totality of the discussion, including the trial court’s inquiry” as instructed by our Supreme Court. Dunn, supra, 304 Ga. at 651 (2). In reviewing the totality of the discussion, we determine that the trial court heard argument from both Marshall and AIKG prior to the trial court’s ultimate ruling regarding purposeful discrimination. Thus, the trial court conducted a proper Batson inquiry. Id. at 651-652 (2). The fact that the trial court used the term “race-neutral” in the discussion as to whether 11 AIKG’s strikes were pretextual is not dispositive and does not alter our conclusion. See id. at 651 (2) (“The use by the State and the trial court, as well as defense counsel, of the term ‘race neutral’ in the discussion of whether Dunn’s stated reason for the strike was pretextual is not dispositive.”); Coleman v. State, 301 Ga. 720, 723- 724 (4) (804 SE2d 24) (2017) (stating that the trial court’s use of the term “race- neutral” was not dispositive, and that the trial court “implicitly engaged in the third step” of Batson by hearing from both sides prior to the final determination of purposeful discrimination). Furthermore, AIKG’s argument that reversal is required because the trial court failed to make “individualized findings” regarding Marshall’s pretext arguments also fails. See Dunn, supra, 304 Ga. at 649-652 (2) (trial court merely concluding that the State’s reasoning was pretextual, and that the juror would be seated). Moreover, this Court has previously rejected the argument that a trial court conducts an improper Batson inquiry by failing to make express findings regarding a party’s pretext argument. See York v. State, 242 Ga. App. 281, 290 (4) (b) (528 SE2d 823) (2000) (“Appellants also contend that the trial court did not complete the ‘three step process,’ because the court failed to make a separate determination on the record that the defense had failed to prove discriminatory intent. This determination, 12 however, was implicit in the trial court’s denial of the Batson motion and does not require a separate, specific finding on the record.”). When all three steps of the Batson inquiry are completed and the explanations for the peremptory strikes are given, “the trial court must ultimately decide the credibility of such explanation, and because the third step of the [Batson] procedure mandates that the trial court act as the trier of fact, the trial court’s findings are to be given great deference and are to be affirmed unless clearly erroneous.” (Citation omitted.) Dunn, supra, 304 Ga. at 652 (2). “In determining whether a strike is pretextual, the trial court, which can directly evaluate an attorney’s credibility and whether discriminatory intent is present, should focus on the genuineness of the explanation, rather than its reasonableness.” (Citation and punctuation omitted.) Id. Additionally, although AIKG contends that the failure to ask few or any questions of the stricken jurors is not relevant in determining discriminatory intent, other courts have noted otherwise. Both the United States Supreme Court and the Eleventh Circuit Court of Appeals have noted that disparate questioning or the failure to question stricken jurors are factors a trial court can consider in adjudicating a Batson claim. See Miller-El v. Dretke, 545 U. S. 231, 266 (125 SCt 2317, 162 LE2d 196) (2005) (stating that the State’s “strikes correlate[d] with no fact as well as they correlate[d] 13 with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State.”); Madison v. Commr. Ala. Dept. of Corrections, 761 F3d 1240, 1252 (11th Cir. 2014) (noting that among the relevant factors supporting Madison’s Batson claim was the prosecutor’s failure to question three of the stricken jurors). Given that all of the stricken jurors were African-American, as well as the trial court’s finding of AIKG’s admission that it did not “glean” information from several of the stricken jurors, the disparate or lack of questioning of the stricken jurors, and AIKG’s striking of an African-American juror on the alternate panel, the trial court did not clearly err in finding purposeful discrimination in AIKG’s use of its peremptory strikes. Accordingly, we affirm the trial court’s ruling granting Marshall’s Batson challenge. Judgment affirmed. Reese and Gobeil, JJ., concur. 14 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 6, 2007 No. 06-12624 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ BIA No. A96-001-732 CARLOS PINO ARANGO, OLGA ELENA PIEDRAHITA LONDONO, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (June 6, 2007) Before BLACK, MARCUS and KRAVITCH, Circuit Judges. PER CURIAM: Carlos Pino Arango (“Arango”) and his step-daughter Olga Elena Piedrahita-Londono (“Olga”) seek review of the Immigration Judge’s (“IJ”) order denying their application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158 and 1231(b)(3), 8 C.F.R. § 208.16(c). After a thorough review of the record, we deny the petition in part and dismiss in part. I. Background Arango was a self-employed taxi driver in Colombia who was threatened by members of the National Liberation Army (“ELN”) after he refused to pay 10 million Colombian pesos the ELN had demanded. The ELN had robbed Arango and Olga and forced them into a car that the members drove into a ditch, sent him an extortion letter in which they referred to him as “the owner of a fleet of taxi cabs,” and made threatening phone calls in which they threatened to rape or kidnap Olga and kill Arango. As a result of these incidents, the petitioners left Colombia and entered the United States using fraudulent visas. The Department of Homeland Security issued them notices to appear, charging them with removability. The petitioners filed for asylum, withholding of removal, and for relief under the CAT, alleging that they had been persecuted based on their political views and membership in a particular social group. The IJ denied relief, finding that the petitioners’ allegations did not 2 “demonstrate a ‘reasonable’ possibility that they would be subject to persecution, or harmed, or threatened . . . based on a protected ground” if they returned to Colombia. The IJ stated that, while he was not unsympathetic to the petitioners’ problems, there was no nexus between the alleged persecution and a protected ground because Arango had testified that the only reason that the ELN had targeted him was because they wanted him to pay money. The petitioners appealed to the Board of Immigration Appeals (“BIA”), arguing that the IJ erred by finding that their allegations did not rise to the level of persecution on a protected ground because they demonstrated that they suffered past persecution and had a well-founded fear of future persecution based on their imputed political opinion and membership in a social group. The BIA summarily affirmed the IJ’s opinion. Arango and Olga petition this court for review. II. Petition for Review The petitioners first argue that they were members of a protected social group based on their imputed political opinion, that of their opposition to the ELN, and the threats and kidnaping that they suffered in Colombia for not paying extortion money to the ELN amounted to persecution. They further argue that, because the ELN classified Arango as “the owner of a fleet of taxi cabs,” he was a member of a particular social group of business owners. When the BIA issues a summary affirmance of the IJ’s opinion, we review 3 the IJ’s opinion. Mendoza v. U.S. Att’y Gen., 327 F.3d at 1284 n. 1 (11th Cir. 2003). To the extent that the decision was based on a legal determination, it is reviewed de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). Factual determinations are reviewed under the substantial evidence test, and we “must affirm the [IJ’s] decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (internal quotations omitted). “To reverse the IJ’s fact findings, we must find that the record not only supports reversal, but compels it.” Mendoza, 327 F.3d at 1287. A. Asylum The Secretary of Homeland Security or the Attorney General has discretion to grant asylum if an alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is: any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of . . . , membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause such future persecution. 8 C.F.R. § 208.13(a), 4 (b); Al Najjar, 257 F.3d at 1287. “Demonstrating such a connection requires the alien to present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of” a statutory factor. Al Najjar, 257 F.3d at 1287 (internal quotations omitted)(emphasis in original). An asylum applicant may not show merely that he has a political opinion, but must show that he was persecuted because of that opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). However, if the applicant can show that the persecution was, at least in part, motivated by a protected ground, then the applicant can establish eligibility for asylum. In re S-P-, 21 I & N Dec. 486 (BIA 1996) (noting that, in a mixed motive case, “the standard for review is whether the applicant has produced evidence from which it is reasonable to believe that the harm was motivated by a protected ground”). This court has stated that persecution is an “extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation, and that mere harassment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). An alien who has not shown past persecution still may be entitled to asylum if he can demonstrate a future threat to his life or freedom on a protected ground in his country. 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2). To establish a “well-founded fear,” an applicant must show that he has a fear of persecution in his home country 5 and that “there is a reasonable possibility of suffering such persecution if he or she were to return to that country.” 8 C.F.R. § 208.13(b)(2)(I). To qualify for withholding of removal under the INA, an alien must show that, if returned to his country, his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Generally, where an alien fails to meet the “well-founded fear” standard for establishing asylum eligibility, the alien cannot establish the higher burden for withholding of removal. Al Najjar, 257 F.3d at 1292-93. This court has held that “[a]n imputed political opinion, whether correctly or incorrectly attributed, may constitute a ground for a well-founded fear of political persecution within the meaning of the INA.” Al Najjar, 257 F.3d at 1289 (internal quotations omitted). In order to qualify for relief from removal based on a political opinion, the petitioner “must establish that the guerillas persecuted her or will seek to persecute her in the future because of her actual or imputed political opinion.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004) (citations omitted) (emphasis in original). “It is not enough to show that she was or will be persecuted or tortured due to her refusal to cooperate with the guerillas.” Id. (citations omitted); see also Rivera v. U.S. Att’y Gen., No. 06-10209, manuscript op. at 12 (11th Cir. May 23, 2007). Moreover, the refusal to pay a war tax does not amount 6 to persecution on account of a protected ground. See Rivera, manuscript op. at 12. Thus, the refusal to submit to the extortion demands does not provide a basis for asylum or withholding relief. We further conclude that Arango and Olga are not entitled to relief under the theory that the alleged persecution was on account of their membership in a particular social group. This court recently analyzed the meaning of “particular social group,” and determined that a particular social group was one comprised of “persons . . . who[] share a common, immutable characteristic,” which could be an “innate” characteristic or a “shared past experience such as former military leadership or land ownership.” See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1193 (11th Cir. 2006) (citing Matter of Acosta, 19 I.&N. Dec. 211 (BIA 1985) (overruled on separate grounds). This court has cautioned that a “particular social group should not be a catch all for all persons alleging persecution who do not fit elsewhere.” Castillo-Arias, 446 F.3d at 1197 (internal quotations and citations omitted). Based on the record, we conclude that the petitioners failed to establish that they were entitled to asylum or withholding of removal relief based on a statutorily protected ground because: (1) their refusal to pay a guerrilla organization extortion money does not constitute an imputed political opinion; and (2) taxi owners do not constitute a particular social group. 7  B. CAT Relief The petitioners next argue that the Colombian government is unable to protect them from the guerrillas, which are “public officials,” such that they are entitled to CAT relief. “A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). This requirement is jurisdictional and bars review of claims not raised before the BIA. Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003). Because the petitioners did not raise before the BIA their argument that the ELN guerillas are public officials who tortured them, entitling them to relief under the CAT, they did not exhaust their administrative remedies on this claim. Therefore, we lack jurisdiction to review that claim. For the foregoing reasons, the petition for review is DENIED IN PART, and DISMISSED IN PART. 8 

687 N.E.2d 214 (1997) Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants. No. 06A01-9609-CV-293. Court of Appeals of Indiana. October 31, 1997. *215 Paul S. Kruse, Anthony W. Patterson, Parr Richey Obremskey & Morton, Lebanon, for Appellants-Plaintiffs. Todd J. Kaiser, Nicholas C. Pappas, Sandra Boyd Williams, Locke Reynolds Boyd & Weisell, Indianapolis, for Appellees-Defendants. OPINION NAJAM, Judge. STATEMENT OF THE CASE Alice Jean Smith ("Smith") slipped and fell on an icy sidewalk outside of Hook Drugs, Inc. ("Hook's"). Smith was an employee of Hook's at the time of her fall. She and her husband, Richard Smith, filed a complaint against Standard Life Insurance Company of *216 Indiana ("Standard Life"), the owner and lessor of the premises. The trial court entered summary judgment in favor of Standard Life, and Smith now appeals. The dispositive issue presented for our review is whether Smith, as an employee of the tenant, qualifies as a "third person" under the public use exception to the general rule of non-liability for landlords. We affirm. FACTS In 1979, Standard Life purchased a building from Hook's in Zionsville and immediately leased it back to Hook's. Under a twenty-year written lease, Standard Life surrendered complete possession and control of the entire premises to Hook's. Standard Life did not participate in the design or construction of the building, which was erected in 1975. Hook's sublet an area to Pizza King Village Station ("Pizza King"). Pizza King is located in a part of the building adjacent to and set back from that part occupied by Hook's. Hook's hired Smith in 1979, and she worked as a cashier in the Zionsville location continuously except for one four-month period. Smith would frequent Pizza King for lunch and always walked the same route. During Smith's employment, the manager of Hook's had consistently removed snow and ice from the sidewalk. Smith had also performed that task on occasion. However, Smith and her co-workers removed snow and ice only from the area directly in front of the Hook's store. On February 23, 1993, Smith was injured when she slipped and fell on an icy area of the sidewalk between Hook's and Pizza King. Subsequently, Smith filed a complaint against several defendants, including Standard Life. Smith alleged that Standard Life had breached its duty of reasonable care when it knew or should have known at the time of the lease that a dangerous condition existed on the premises and was negligent because it had failed to remove accumulations of snow and ice from the sidewalk. Specifically, Smith alleged that a drain spout had directed water onto the sidewalk in a concentrated area, which caused ice to form, and that Standard Life either knew about or should have discovered the condition. Standard Life filed a Motion for Summary Judgment, which the trial court granted. Smith now appeals. DISCUSSION AND DECISION Standard of Review The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Monon Corp. v. Townsend, 678 N.E.2d 807, 809 (Ind. Ct.App.1997), trans. denied. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. Id. The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in the light most favorable to the non-movant. Ramon v. Glenroy Constr. Co., 609 N.E.2d 1123, 1127 (Ind.Ct.App.1993), trans. denied. When reviewing a decision upon a motion for summary judgment, this court applies the same standard as the trial court. Miller Brewing Co. v. Bartholemew Co. Beverage Co., Inc., 674 N.E.2d 193, 198 (Ind.Ct. App.1996), trans. denied. We stand in the shoes of the trial court and liberally construe all designated evidentiary material in favor of the nonmoving party. Rotec, Div. of Orbitron, Inc. v. Murray Equip., Inc., 626 N.E.2d 533, 535 (Ind.Ct.App.1993). In order to prevail on appeal when a summary judgment motion has been granted in favor of an opposing party, the appealing party must establish the existence of a genuine issue of material fact from materials designated to the trial court. Thompson v. Murat Shrine Club, Inc., 639 N.E.2d 1039, 1040 (Ind.Ct. App.1994), trans. denied. Where the facts are not in dispute, summary judgment is *217 inappropriate only when the fact-finder may reasonably draw conflicting inferences from the undisputed facts. Nobles v. Cartwright, 659 N.E.2d 1064, 1071 (Ind.Ct.App.1995). Premises Liability: General Rule of Non-Liability for Landlords Smith's complaint alleges that Standard Life breached its duty of reasonable care when it knew or should have known of the dangerous condition at the time of the lease. Smith further asserts that Standard Life was negligent for failing to remove accumulations of snow and ice and for permitting the dangerous condition to continue. The tort of negligence is comprised of three elements: (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, (3) which proximately causes the plaintiff's damage. Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d 412, 414 (Ind.Ct.App.1991). Whether a duty exists is a question of law for the court to decide. Id. The duty that a landlord owes to tenants or third parties lawfully upon the leased premises was discussed in Rogers v. Grunden, 589 N.E.2d 248 (Ind.Ct.App.1992), trans. denied, in which we stated: The law of this jurisdiction is clear; as a general rule, in the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant or other persons lawfully upon the leased property. Generally, once possession and control of property have been surrendered, a landlord does not owe a duty to protect tenants from defective conditions. Id. at 254 (citations omitted). The parties do not dispute that Standard Life had relinquished complete possession and control of the premises to Hook's. Specifically, pursuant to the lease, Hook's accepted "the premises in their [sic] present condition" and agreed to "keep [it] in good condition and repair." Hook's also retained the right to alter the premises. Consequently, Hook's was responsible for the maintenance and repair of the building and typically dispatched its own maintenance workers to make improvements or repairs. Further, Hook's employees removed the snow and ice from the sidewalk, and the store manager made certain that the sidewalk in front of Hook's was clear of snow and ice prior to opening for business each day. Given these undisputed facts, under the general rule of non-liability for landlords, Standard Life did not owe Smith a duty. The Public Use Exception Still, Smith asserts that summary judgment is precluded in that the "public use" exception to the general rule of landlord non-liability applies and creates a duty owed by Standard Life to Smith. Specifically, Smith maintains that Standard Life leased the property to Hook's for a public purpose and that a material issue of fact exists as to whether, at the time of the lease, a dangerous condition existed which rendered the premises unsafe for public use. Smith further alleges that Standard Life knew about or should have discovered the condition by the exercise of reasonable care. Finally, Smith contends that she qualifies as a "third person" protected by the public use exception. The public use exception, which we first recognized in Walker v. Ellis, 126 Ind. App. 353, 129 N.E.2d 65 (1955), trans. denied, provides: Where premises are leased for public or semi-public purposes, and at [the] time of lease[,] conditions exist which render premises unsafe for purposes intended, or constitute a nuisance, and landlord knows or by exercise of reasonable care ought to know of conditions, and a third person suffers injury on account thereof, landlord is liable, because [the] third person is there at invitation of landlord, as well as of tenant. Id. at 73 (citations omitted). In order for the public use exception to apply, Smith must designate evidence of the following facts in the record: (1) the property was leased for a public purpose, (2) a condition existed at the time of the lease which rendered the premises unsafe and the landlord knew or should have known of the condition by the exercise *218 of reasonable care, and (3) a third person was injured because of the existing condition. Id. The parties dispute whether the premises were leased for a public purpose and whether Standard Life knew or should have known of the alleged dangerous condition. We need not consider whether these are disputed issues of material fact because the dispositive issue in this case is whether Smith qualifies as a "third person" under the public use exception. "Third Person" Requirement In order to invoke the public use exception, Smith must demonstrate that as an employee of Hook's she qualifies as a "third person." Smith argues that she is a third person because she was injured on the sidewalk outside of the area occupied by Hook's. Standard Life counters that Smith was injured during the course of her employment and does not qualify as a third person under the exception. We agree with Standard Life. In Walker, the leading Indiana case that discusses the public use exception, we recognized that a landlord may be liable to a "third person" when premises are leased for public use because the third person is there at the invitation of both the landlord and the tenant. Walker, 129 N.E.2d at 73. The plaintiff in Walker was a customer of the tenant. Here, in contrast, Smith was on the premises as an employee of Hook's and not at the invitation of Standard Life. The parties dispute whether in Place v. Sagamore, 604 N.E.2d 671 (Ind.Ct.App.1992), trans. denied, we decided that an employee of the tenant did not qualify as a "third person" under the public use exception. Although we expressed our doubts that the exception applied, our decision in Place was based primarily on other grounds, namely, that Place had failed to allege any facts indicating that the landlord had leased the premises to Place's employer for a public purpose. Id. at 675. Thus, we consider this a case of first impression. The definition of a third person on business premises that are open to the public is found in the Restatement (Second) of Torts: b. "Third persons" include all persons other than the possessor of the land, or his servants acting within the scope of their employment. It includes such servants when they are acting outside of the scope of their employment, as well as other invitees or licensees upon the premises, and also trespassers on the land, and even persons outside of the land whose acts endanger the safety of the visitor. RESTATEMENT (SECOND) OF TORTS § 344 cmt.b (1965). Both our supreme court and this court have previously relied on the Restatement (Second) of Torts in resolving premises liability questions. See Burrell v. Meads, 569 N.E.2d 637, 642 (Ind.1991) (incorporating Restatement (Second) of Torts § 332 in adopting the "invitation test" for use in determining who qualifies as an invitee in premises liability actions); see also Frye v. Rumbletown Free Methodist Church, 657 N.E.2d 745, 750 (Ind.Ct.App.1995) (adopting Restatement (Second) of Torts § 330 in determining that Indiana recognizes the privilege to enter another's land implied by custom). We agree with the Restatement (Second) of Torts § 344, comment b, and adopt the Restatement definition of who qualifies as a "third person" under the public use exception. Smith argues that she is a "third person" because her injury occurred outside the area occupied by Hook's rather than inside the store. We are not persuaded by her argument. While Standard Life owns the premises, the lease gave Hook's complete possession and control. Regardless of the exact location where her injury occurred, Smith was on the premises controlled by Hook's when she was injured, and there is no dispute that she was acting within the scope of her employment at the time she sustained her injury. Thus, Smith is not a stranger to the lease and does not qualify as a third person under the Restatement (Second) of Torts § 344 definition. We conclude that Smith has failed to meet the "third person" requirement of the public use exception, and, therefore, that the exception does not apply. Standard Life owes no duty to Smith under the exception. The trial *219 court did not err in granting summary judgment in favor of Standard Life. Affirmed. BAKER and KIRSCH, JJ., concur.

19 F.3d 644 U.S.v.Ditullio (Angelo), a/k/a 'Chickie' NO. 93-1694 United States Court of Appeals,Third Circuit. Feb 28, 1994 Appeal From: E.D.Pa., O'Neill, J. 1 AFFIRMED.

In the United States Court of Appeals For the Seventh Circuit ____________ No. 07-3428 M ATTHEW S. C ARLSON, v. Petitioner-Appellee, C ATHY JESS, Respondent-Appellant. ____________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 C 481—Lynn Adelman, Judge. ____________ A RGUED M ARCH 31, 2008—D ECIDED M AY 19, 2008 ____________ Before K ANNE, E VANS, and SYKES, Circuit Judges. E VANS, Circuit Judge. After a one-day jury trial, Mat- thew Carlson was convicted of first-degree sexual assault of a child and sentenced to 55 years in a Wis- consin state prison. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the state trial court’s denial of his motion to substitute counsel and for a continuance violated his Sixth Amendment right to counsel of choice and his Fourteenth Amendment right to due process. He also maintains that the state court of appeals’ decision affirming the trial court’s judgment was unreasonable. The district court (Judge Lynn Adel- 2 No. 07-3428 man) agreed with Carlson and granted his petition in a comprehensive opinion. Carlson v. Jess, 507 F. Supp. 2d 968 (E.D. Wis. 2007). The State now appeals. Back in 1996, Carlson was convicted of one count of sexual assault of a boy under the age of 13. At that time, the complainant here, we’ll call him “Gino,” was 9 years old and a friend of Carlson’s stepson. Upon hearing of the conviction, Gino’s grandparents asked him whether Carlson had ever assaulted him. Gino denied any im- proper behavior on the part of Carlson. Six years later, in 2002 when Gino was 15 years old, he alleged that Carlson sexually assaulted him in 1996 and 1998. Gino initially complained to the staff of Raw- hide Boys Ranch,1 where he then resided. Soon thereafter, the Ozaukee County 2 district attorney charged Carlson with several counts of sexually assaulting Gino. Carlson hired attorney Randall Kaiser to represent him. At Carlson’s May 20, 2002, arraignment, the trial court set a trial date of August 27, 2002. The parties agreed that 1 On its Web site, www.rawhide.org, Rawhide describes itself as “a faith-based, non-profit residential care center dedicated to changing the lives of troubled teen boys.” Its mission is to “inspire and equip at-risk, teenage boys to become responsible young men through family-centered care, treatment, and education.” 2 Ozaukee County is located just north of Milwaukee County on the western shores of Lake Michigan. Ozaukee County is rather small, only some 86,000 residents, compared to Mil- waukee County which checks in, according to a 2006 estimate, at 915,000. Also, according to U.S. Census Bureau statistics, Ozaukee County is fairly wealthy: its median household in- come is $69,174 as compared to Milwaukee County’s $39,481. No. 07-3428 3 the trial would take, at most, two days to complete. Carlson remained in jail from the time of his arrest until his eventual trial. In the weeks leading up to the trial, Carlson requested two brief continuances, one for additional preparation time and one to permit Kaiser’s co-counsel to assist him at trial. The trial judge denied both requests, citing his calendar and the fact that the complainant was a juve- nile. In the meantime, Carlson lost confidence in Kaiser’s ability to represent him. On August 17, ten days before the scheduled start of the trial, Carlson notified Kaiser that he had hired another attorney, Robin Shellow, to replace him. Two days later, Kaiser moved to with- draw as counsel. On August 23, Carlson, with Shellow’s help, moved to substitute Shellow for Kaiser as his counsel, conditioned upon an adjournment so that Shellow could prepare for trial. In support of the motion, Ms. Shellow submitted a detailed explanation of the additional investigation she wanted to conduct before trial. The trial judge, however, did not sit during the week of August 19 and thus did not promptly address Kaiser’s motion to withdraw or Carlson’s motion for substitu- tion and a continuance. On August 26, the day before the trial was scheduled to begin, the judge returned to the bench and held a hearing on the motions. There, Kaiser stated: I am in a very tough position I think if I am not allowed to withdraw. As I said, our communication has com- pletely broken down. We have differences of opin- ions, and I know they don’t feel confident, he and his family. I think it’s better for everyone if I withdraw. I don’t feel that the state is prejudiced by allowing me to withdraw. It’s my understanding that they 4 No. 07-3428 really only have one citizen witness. This is a case that allegedly occurred approximately six years ago and was not charged until April of this year. So I don’t think Attorney Shellow or I—I don’t want to speak for her, but I don’t think we are requesting a long adjournment. This is the first request that Mr. Carlson has made for a new attorney. Kaiser also explained that Carlson was not seeking to delay the proceedings unnecessarily and reminded the court that Carlson was and would remain in custody during a continuance. The prosecutor opposed Kaiser’s request because Shellow “ha[d] already indicated in papers that she wouldn’t be able to proceed tomorrow” and because the complainant was a child. The trial judge conceded that “the defendant has a right to counsel,” but stated: I think here there are paramount issues. And the first issue is the orderly administration of this Court. I said last week or on the 14th that it would be months before this case got back on the trial calendar. And these late motions to withdraw, I am not in- clined to grant it—in fact, I am not going to grant the motion to withdraw. This case is going to trial tomor- row. I don’t see any reason why it can’t go. This Court is prepared to try it. I also am concerned that you have a young victim in this. Not as young as some the Court sees, but young. And I don’t see anything in the motion papers that were filed by Attorney Shellow that is of a magni- tude that causes the Court to hesitate and say this Court can’t go to trial tomorrow. I am ordering it to go ahead. No. 07-3428 5 Shellow then asked to be heard and stated that the case involved factual issues that Kaiser had not ex- plored and constitutional issues that he had not researched. She explained that she wished to explore Gino’s motives for making the allegation and to engage an expert regarding a number of questions, including ques- tions raised by Gino’s reporting of the assaults to Rawhide staff years after they allegedly occurred. Shellow stated that she also wished to examine possible improper police coaching and a Miranda issue. She also noted that Kaiser’s failure to explore any of these matters raised issues of ineffective assistance of counsel. The judge’s only response was to ask Shellow if she was prepared to try the case tomorrow. When Shellow replied that she was not, the court stated: Then I am not granting the motion. This case is staying on the calendar. I understand the problems, but I find that a case that’s been set 90 days out, and then to come in the day before and say I want to withdraw and I want it taken off the Court’s calen- dar, is a serious problem for administration of this Court. And I realize there are issues. But I think Mr. Carlson can get a fair trial. His attorneys have been working on this. They have been in court numerous times. And I think there are other issues that have to be factored into the analysis, and I have done that, and I am denying the request. The next day, before the trial commenced, Carlson himself asked to address the court. He stated: I have tried on numerous occasions to convey my concerns with Mr. Kaiser, to no avail. I have been met with argumentative comments, I have been met 6 No. 07-3428 with the impression to take a plea bargain which I’ve signed several papers stating I would not, and that seems to be our whole matters. . . . .... . . . I have not received one piece of paper con- cerning this case since I have been incarcerated. I have not one sheet of paper about this case to look back on when I am in jail. Also, one of [Kaiser’s] associates, who I will not name, when I met the first time I could swear under oath I have smelled liquor on his breath. I am not—I am not gonna men- tion any names, I didn’t want to risk a lawsuit. And also I have talked to Mr. Kaiser several times about different witnesses that obviously he doesn’t feel I need, and I have mentioned to him and so have my parents and my wife about possibly different people we could bring, prior to May 23rd or whatever that was, and I still have not heard nothing about that either. The judge acknowledged that “there are situations where release of counsel is warranted, when there’s an ethical dilemma, when there is a situation where the rela- tionship has broken down to the point where there’s no communication,” but he said Carlson and Kaiser’s rela- tionship was only suffering because of “differing views of how the case is approached,” and “strategic decision[s].” The judge continued: Against [Carlson’s request to substitute counsel and for a continuance] the Court has the responsibility, some countervailing responsibilities. One is to admin- istration of this Court. . . . I have the victim rights obligations that I have to consider, I have to consider No. 07-3428 7 a fair trial for you, and I have to consider the adminis- tration of this Court’s calendar. . . . I don’t have another date that could fit a trial like this in until probably after the beginning of the year. . . . I also have a young victim, not the youngest as I acknowl- edged yesterday, who has to have this hanging out over their head. And on balance I denied the request. And I am comfortable with the request, I’m comfort- able that Mr. Kaiser can represent you in a competent manner. 90 days ago this trial date was set, and the desire to have a different lawyer or these other issues should have been brought up much earlier in the proceedings. Kaiser then addressed the judge one last time, imploring him to allow the substitution: [W]e’ve had a breakdown in communication, and that is one of the factors I think to allow withdrawal of an attorney. I understand it’s sort of the last minute, but he hired new counsel and I’m still of the opinion that because of the total breakdown in com- munication that we’ve had, that—and there is no taxpayer expense, this is only a one-day trial, I don’t, considering the long time it took the alleged victim to report this case, I don’t think a short ad- journment would prejudice anyone but the Court. So I’m renewing my objection and just stating that we’ve had a breakdown in communication. The court denied the motion and trial proceeded as scheduled. Gino testified that Carlson sexually assaulted him on several occasions in 1996 and 1998 when he spent the night with Carlson’s stepson and once when he rode in a car with Carlson. A detective testified about Gino’s initial statement accusing Carlson of sexual assault. Gino’s 8 No. 07-3428 mother testified that Gino spent the night with Carlson’s stepson on several occasions and rode in a car with him at least once. She also testified that her son had never indicated any animosity toward Carlson or concerns about visiting his stepson prior to reporting the sexual assaults in 2002. Carlson testified, denying Gino’s charges. Carlson’s wife testified that they lived in a small apart- ment and that she was home during all of her son’s sleepovers and thus would have seen or heard any inter- action between Carlson and Gino. The jury convicted Carlson of five counts of first-degree sexual assault of a child and, as we said, he was sentenced to 55 years in prison. Carlson appealed to the state court of appeals, arguing among other things that the trial judge’s refusal to grant his motion for substitution of counsel and a continu- ance deprived him of his right to counsel of choice and his right to due process of law. The court of appeals, in a per curiam decision that noted “This opinion will not be published,” affirmed, and the state supreme court sub- sequently declined to review the case. Having exhausted his state court remedies, Carlson petitioned the federal district court for habeas relief, arguing that the state court’s decision was an unrea- sonable determination of the facts and contrary to, or an unreasonable application of, clearly established federal law. The district court first determined that the record contained no evidence supporting the state trial judge’s finding that communication between Carlson and Kaiser had not totally broken down. Accordingly, the district court found that because the finding was unreasonable, the state court of appeals’ decision to accept and rely on it was also unreasonable. With this determination, the No. 07-3428 9 district court then examined the merits of Carlson’s constitutional claim and concluded that the trial court’s denial of Carlson’s motion for substitution of counsel and a continuance was arbitrary and had an adverse effect on the presentation of his case. The district court then granted Carlson’s petition for relief.3 We review the district court’s findings of fact for clear error and its legal conclusions, as well as mixed questions of law and fact, de novo. Harding v. Walls, 300 F.3d 824, 827 (7th Cir. 2002). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may issue a writ of habeas corpus only if the decision of the last state court to examine the merits of the peti- tioner’s claim (here, the court of appeals) (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The first issue is whether the district court correctly determined that the state court of appeals affirmed the trial court’s denial of Carlson’s motion for substitution and a continuance based on an unreasonable factual determination—namely, that communication between Carlson and Kaiser had not completely broken down. A state court’s factual findings are presumptively cor- rect absent rebuttal by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Nevertheless, “[a] federal court can 3 The district court did not address Carlson’s argument that the court of appeals’ decision was contrary to, or an unrea- sonable application of, clearly established federal law. 10 No. 07-3428 disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incor- rect[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The record reveals absolutely no support for the state trial court’s determination that Carlson’s motion for substitution was based on “differing views of how the case is approached” and “strategic decision[s].” Rather, the record is littered with statements by Kaiser and Carlson himself that communications had completely broken down. On August 26, Kaiser stated that communi- cation “has completely broken down.” On August 27, he repeated this statement twice, telling the court that “we’ve had a breakdown of communication” and that there had been a “total breakdown in communication.” That same day, Carlson himself told that court that he had “tried on numerous occasions to convey [his] con- cerns with Mr. Kaiser, to no avail” and that he “still ha[d] not heard nothing” about his requests that Kaiser interview certain witnesses. Based on these statements, the trial judge should have at least probed the matter further by asking Carlson and Kaiser some follow-up questions. Instead, however, the judge simply made a factual finding that “the relationship has [not] broken down to the point where there’s no communication.” The trial court’s statement that Kaiser had “discussed wit- nesses” with Carlson is belied by Carlson’s statement that he had not yet heard anything from Kaiser on that issue. With nothing in the record to back it up, the trial judge’s finding was clearly unreasonable. The court of appeals also neglected to consider the evidence supporting Carlson’s motion. In its decision, it merely paraphrased the trial judge’s findings and stated No. 07-3428 11 that it was “not convinced that the trial court erred when it concluded that the asserted conflict between counsel and Carlson was not so great that it resulted in a total lack of communication.” Thus, the district court properly found that both the trial court’s finding and the court of appeals’ acceptance and reliance on that finding was unreasonable. See 28 U.S.C. § 2254(d)(2); see also Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004) (“In passing section 2254(d)(2), Congress has reminded us that we may no more uphold [an unreasonable] factual deter- mination than we may set aside reasonable state-court fact-finding.”). The second issue is whether the district court correctly determined that the trial court’s denial of his motion for substitution and a continuance violated Carlson’s constitutional rights. Because the trial court based its decision on an unreasonable factual determination, the substantive merits of Carlson’s claim are analyzed under the pre-AEDPA standard—that is, de novo—because there is no state court analysis to apply AEDPA standards to. Conner v. McBride, 375 F.3d 643, 655 n.5 (7th Cir. 2004). The pre-AEDPA standard directs us to “dispose of the matter as law and justice require.” 28 U.S.C. § 2243. Carlson maintains that the trial court’s decision vio- lated his Sixth Amendment right to counsel of choice and his Fourteenth Amendment right to due process. The Sixth Amendment secures the right to the assistance of counsel. It also includes the right to select, and be repre- sented by, one’s preferred attorney; thus, trial courts must recognize a presumption in favor of a defendant’s counsel of choice. Wheat v. United States, 486 U.S. 153, 164 (1988). Accordingly, the Sixth Amendment bars a court from denying a defendant the right to retain counsel of 12 No. 07-3428 his choice arbitrarily or unreasonably. Ford v. Israel, 701 F.2d 689, 692 (7th Cir. 1983). The Fourteenth Amendment’s Due Process Clause also bars a court from denying a defendant’s motion for a continuance arbitrarily or unrea- sonably. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Thus, motions for substitution of retained counsel and for a continuance can implicate both the Sixth Amendment right to counsel of choice and the Fourteenth Amendment right to due process of law. See Morris v. Slappy, 461 U.S. 1, 11 (1983). The right to counsel of choice, however, is qualified in several respects. One qualification is that an indigent defendant generally has no right to have his counsel of choice appointed. Wheat, 486 U.S. at 159. Thus, when a trial court refuses to appoint new counsel, the defendant can only show a denial of a constitutional right if he can establish that his counsel was ultimately ineffec- tive—that is, he must show prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984). United States v. Harris, 394 F.3d 543, 554 (7th Cir. 2005); United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992). The Supreme Court recently resolved a circuit split and held that a defendant claiming a denial of the right to counsel of choice does not have to show Strickland prejudice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 2562 (2006). At the time Carlson’s conviction became final, our governing case, Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004), stated a similar rule. However, Rodriguez did require a defendant claiming a denial of the right to counsel of choice to establish that the denial had an “adverse effect” on the presentation of his case. Id. at 675. Thus, to resolve the merits of Carlson’s constitu- tional claim, we must answer two questions: (1) was the No. 07-3428 13 trial court’s denial of his motion for substitution of coun- sel and a continuance arbitrary and if so, (2) did the denial have an adverse effect on the presentation of his case? First, we examine whether the trial court’s denial of Carlson’s motion for substitution of counsel and a con- tinuance was arbitrary. Because trial courts have broad discretion on matters of continuances, “only an unreason- ing and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris, 461 U.S. at 11-12 (quot- ing Ungar, 376 U.S. at 589). The State argues that the trial court’s exercise of discretion was not arbitrary be- cause it listened to the arguments and concluded that (1) the timing of the request for adjournment, (2) the young age of the victim, and (3) the satisfactory rela- tionship between Kaiser and Carlson all necessitated denying Carlson’s request for an adjournment to sub- stitute counsel. We have already determined that the trial court’s conclusion that the relationship between Kaiser and Carlson was satisfactory was unreasonable.4 The other two arguments fail as well. The State’s argument that Carlson was not entitled to a continuance because of the timing of his request is far from compelling. Courts have denied motions for con- 4 In its brief, the government states that “there is no reason to think that the [trial] court would not have granted the motion to substitute, had Shellow been prepared to try the case on the scheduled date.” Rather than justifying the trial court’s decision, this statement actually reveals that the court’s primary consideration was its calendar, not the relationship between Carlson and his counsel or the age of the complainant. 14 No. 07-3428 tinuances based on administrative concerns in a number of fact situations. See Carlson, 507 F. Supp. 2d at 982 (col- lecting cases). Here, however, there were few administra- tive problems to consider. This was a relatively simple case, and the parties predicted that the trial would take a little over a day. The State had only three witnesses, Gino, his mother, and a police officer, who could have easily appeared at a later date. Carlson filed his motion a week before trial; through no fault of his own, the court did not hear it until the day before the trial was set to start. Nevertheless, even at that point, the witnesses and jurors had not yet assembled. The court repeatedly cited its calendar as a reason for denial, saying that “it would be months before this case got back on the trial calendar.” But, trial dates open up all the time—for instance, when a defendant decides to plead guilty.5 Even the inconvenience of pushing the trial back a month or so would be easily outweighed by Carlson’s interest in having his counsel of choice properly prepared to defend him against such serious charges. Furthermore, Carlson was obviously not seeking to delay the trial unnecessarily. As Ms. Shellow pointed out, Carlson had remained in jail from the time of his arrest; 5 We also note that Ozaukee County, perhaps because it’s fairly affluent, does not appear to be a hotbed of criminal activity. According to the Wisconsin courts Web site, www.wicourts.gov, the judges in Ozaukee conducted a total of only 22 jury trials in all classes of criminal cases—felony, misdemeanor, and criminal traffic—in 2007. That’s not a very heavy diet of cases compared to its neighboring county to the south (Milwaukee) where 389 such jury trials were conducted in 2007. No. 07-3428 15 thus, he had nothing to gain by needlessly delaying the trial. He had never requested to substitute counsel previously and had no history of “gaming” the system. The trial judge repeatedly referred to Carlson’s motion as “late,” but considering that the charges against him had been pending such a relatively short time and that he filed his motion to substitute immediately after he retained new counsel, the timing of his motion was cer- tainly understandable. Finally, Carlson was not asking for a long continuance. Notably, we do not know how long Ms. Shellow would have needed to prepare because the trial judge never asked her. Apparently, any delay would have been unacceptable to the trial judge. That sort of rigidity can only be characterized as arbitrary. See, e.g., Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981) (holding that, in a case involving serious charges, a trial judge acted arbitrarily in denying a continuance where there was no evidence of a scheme to delay the trial, no showing of inconvenience to the witnesses, opposing counsel, or the court, and the length of the requested delay was not unreasonable). The State’s argument that Carlson was not entitled to a continuance because of the young age of the victim, although facially legitimate, is unpersuasive on the record in this case. Undoubtedly, a trial court may reasonably consider the effect of a continuance on a complainant. Here, however, the court never actually considered whether a continuance would affect Gino. Despite the court’s repeated statements to the contrary, the record indicates that a short delay would not have been detri- mental to him. His initial complaint came some four to six years after the alleged assaults; thus, he would not appear to be at risk for forgetting relevant information a 16 No. 07-3428 few months later. Moreover, Gino was a teenager, not a young child, and there was no evidence that a brief delay would have caused him emotional or psychological harm. Against these ultimately unconvincing reasons to deny Carlson a continuance were several compelling reasons he proffered in support of his motion for a substitution. Specifically, Carlson stated that (1) communication be- tween Kaiser and himself had totally broken down; (2) Kaiser had inadequately investigated the case; and (3) he disagreed with Kaiser’s overall approach to de- fending him. As we previously explained, these reasons were facially valid; thus, the trial court needed to ex- plore them and, because Carlson also requested a con- tinuance, balance them against the reasons for not granting Carlson’s motion. The trial judge, however, made no effort to do so. In casting Carlson’s arguments aside, the judge may have been attempting to follow precedent on appointed counsel and the right to effective assistance of counsel, which sets higher standards for relief than the right to be represented by retained counsel of choice. For instance, a total breakdown in communication justifies the appoint- ment of new counsel for an indigent defendant. Harris, 394 F.3d at 552. However, even if a breakdown in com- munication is not so severe as to implicate the right to counsel, it may still provide a reasonable justification for a substitution of retained counsel and a continuance. And, while an attorney’s strategic decisions are not defi- cient performance under the test for ineffective assistance of counsel, Strickland, 466 U.S. 668, 688-89 (1984), a signifi- cant dispute about strategy may implicate a defendant’s right to counsel of choice. Thus, when Carlson presented No. 07-3428 17 his arguments, the trial judge erred in dismissing them as irrelevant to his constitutional rights. In sum, the trial judge ignored the presumption in favor of Carlson’s counsel of choice and insisted upon expeditiousness for its own sake. The judge made no effort to ascertain the facts and follow up on Carlson’s reasonable justifications for seeking a substitution. The reasons the judge did cite for denying a continuance were weak, and he made no attempt to balance them against the effect of Kaiser’s possible failings and Carlson’s interest in having his attorney of choice defend him against serious charges. Thus, the trial court’s denial of Carlson’s motion for substitution and a continuance was arbitrary and in violation of the Sixth and Fourteenth Amendments. Finally, we analyze whether the denial of Carlson’s right to retain his chosen counsel had an “adverse effect” on the presentation of his case. Under Rodriguez, such adverse effect means an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial. The difference does not have to be great enough to under- mine confidence in the outcome—that is the stand- ard under Strickland—but it must be enough to show that the defendant’s representation suffered a set- back from the disqualification. 382 F.3d at 675 (internal citations omitted). Rodriguez went on to say that adverse effect might be shown if, for example, “counsel failed to pursue a reasonable alter- native defense strategy.” Id. 18 No. 07-3428 Our case easily meets this standard because Kaiser failed to pursue the sensible defense strategy advocated by Shellow. In the motion for substitution and in her statement to the court, Shellow explained that she wished to explore Gino’s motives for making the allega- tion. She planned to engage an expert (whom she identi- fied by name) regarding a number of questions, in- cluding issues raised by Gino’s reporting of the assaults to Rawhide staff four to six years after they allegedly occurred. Shellow also wanted to present evidence that Gino was aware that Carlson had previously been con- victed of child sexual abuse (and thus knew that a similar allegation against him would be taken seriously) and that Gino had previously denied any sexual contact with Carlson. This strategy would have forced Carlson to divulge the nature of his prior conviction—which is why Kaiser did not want to pursue it—but it also would have elicited Gino’s prior inconsistent statement and undermined his credibility. Because this was a rea- sonable alternative defense, the trial court’s denial of Carlson’s right to retain his chosen counsel had an ad- verse effect on the presentation of his defense. For these reasons, Carlson is entitled to his release from custody unless the State gives him a new trial with 180 days. For these reasons, the judgment of the district court granting petitioner’s application for a writ of habeas corpus is A FFIRMED. USCA-02-C-0072—5-19-08 

Filed 7/18/19 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2019 ND 196 In the Matter of the Estate of Kandi Ann Hall, Deceased Tyson Hall, Personal Representative of the Estate of Kandi Ann Hall, Petitioner and Appellee v. Brianna McLaen, Respondent and Appellant and Brittany Fiala, Shayla Fiala, and W.H., Respondents No. 20190009 Appeal from the District Court of Sargent County, Southeast Judicial District, the Honorable Mark T. Blumer, Judge. REVERSED AND REMANDED. Opinion of the Court by Tufte, Justice. John D. Bullis (argued) and Brittany L. Hatting (on brief), Wahpeton, N.D., for petitioner and appellee. Ronald H. McLean (argued) and Ian McLean (on brief), Fargo, N.D., for respondent and appellant.  Estate of Hall No. 20190009 Tufte, Justice. [¶1] Brianna McLaen appeals from an order granting Tyson Hall’s petition for an elective share of the Estate of Kandi Ann Hall. McLaen argues the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate and by deciding a warranty deed for certain real property was void. We conclude a surviving spouse may claim an elective share of an intestate estate under N.D.C.C. § 30.1-05-01, but the court erred in determining ownership of the real property. We reverse and remand. I [¶2] Kandi and Tyson Hall were married on May 23, 2013. They have one minor child together. Kandi Hall also has three adult children unrelated to Tyson Hall, including McLaen. Kandi Hall died intestate on February 10, 2018. [¶3] At the time of Kandi Hall’s death, she owned real property described as “Lots 12 and 13 and the South 10 feet of Lot 14, all in Block 34, First Addition to the City of Forman, Sargent County, North Dakota.” She initially acquired an undivided one- fourth interest in the property by a July 18, 2012, Personal Representative’s Deed of Distribution. Kandi Hall’s three sisters held the remaining three-fourths interest. She later purchased her sisters’ interests in the property. Kandi Hall and her three sisters executed a warranty deed transferring their interests in the property to Kandi Hall and McLaen “as joint tenants and not as tenants in common.” The deed was executed by Kandi as “a single woman.” Each of Kandi’s sisters was joined in executing the deed by her husband. Kandi and Tyson Hall were residing in a house on the property at the time of her death in February 2018. [¶4] In April 2018, Tyson Hall was appointed personal representative of Kandi Hall’s intestate estate. In June 2018, Tyson Hall petitioned for an elective share of 1 the augmented estate under N.D.C.C. ch. 30.1-05. Tyson Hall argued Kandi Hall owned property worth $62,468.10 at the time of her death, including the real property. He also argued the 2013 warranty deed transferring the real property to Kandi Hall and McLaen as joint tenants was void because he was married to Kandi Hall at the time the deed was executed, he did not join in the deed or consent to the conveyance, and a homestead in North Dakota cannot be transferred without the signatures of both the husband and wife under N.D.C.C. § 47-18-05. He claimed he is entitled to an elective share of the augmented estate as a surviving spouse under N.D.C.C. ch. 30.1- 05, the entire value of the real property must be included in the augmented estate because the deed is void, and he should be awarded all of the estate’s assets because they are worth less than the amount of the elective share. [¶5] McLaen opposed the petition. McLaen argued Tyson Hall’s inventory of the estate’s assets failed to account for various assets, the deed transferring the property to Kandi Hall and McLaen was not void, and Tyson Hall already received more than his elective share of the estate. She requested the court recognize her as the rightful owner of the real property pursuant to the recorded deed and award her the costs she incurred to preserve the property from tax foreclosure. [¶6] After a hearing, the district court granted Tyson Hall’s petition for an elective share of Kandi Hall’s augmented estate. The court found Tyson Hall, as surviving spouse, had a right of election to take an elective share amount of the augmented estate, any attempt to transfer the real property into joint tenancy with McLaen was void because Tyson Hall did not join in the conveyance, the entire value of the real property must be included in the augmented estate, and Tyson Hall was entitled to distribution of all of the identified assets to satisfy the elective share. The court ordered McLaen divested of her interest as a joint tenant in the real property and be required to issue a quit claim deed transferring the property to the estate’s personal representative. II 2 [¶7] McLaen argues the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate under N.D.C.C. ch. 30.1-05 because an elective share may be taken by a surviving spouse only if there is a will. She contends the purpose of an elective share is not served by applying it in an intestate proceeding because the elective share is to protect a spouse from being disinherited under a will. [¶8] The interpretation of a statute is a question of law, which is fully reviewable on appeal. In re Estate of Johnson, 2015 ND 110, ¶ 12, 863 N.W.2d 215. Our primary objective in interpreting a statute is to determine the intent of the legislation, as expressed in its statutory language. In re Estate of Brandt, 2019 ND 87, ¶ 13, 924 N.W.2d 762. Words are given their plain, ordinary, and commonly understood meaning, unless they are specifically defined or contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07; Brandt, at ¶ 13. We interpret statutes to give effect to all of their provisions. N.D.C.C. § 1-02-38(2). When a uniform statute is interpreted it must be construed to effectuate its general purpose to make the law uniform in the states which enacted it. N.D.C.C. § 1-02-13. [¶9] Section 30.1-05-01, N.D.C.C., governs the elective share for a surviving spouse, and states: 1. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this chapter, to take an elective share amount equal to fifty percent of the augmented estate. 2. If the sum of the amounts described in [N.D.C.C. § 30.1-05- 02(2)(d)], [N.D.C.C. § 30.1-05-03(1)(a)], and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under [N.D.C.C. § 30.1-05-03(2) and (3)] is less than seventy-five thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to seventy-five thousand dollars minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in [N.D.C.C. § 30.1-05-03(2) and (3)]. 3  3. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts. [¶10] Nothing in the plain language of the statute limits the right of election to testate cases where there is a will. Section 30.1-05-01, N.D.C.C., is based on Uniform Probate Code § 2-202. The official comment to the uniform provision does not specifically address whether the right to an elective share is limited to testate estates, but simply states, “To have the right to an elective share under subsection (a), the decedent’s spouse must survive the decedent.” [¶11] Section 30.1-05-03(1), N.D.C.C., which governs the sources from which an elective share may be satisfied, states the “[a]mounts included in the augmented estate under [N.D.C.C. § 30.1-05-02(2)(a)] which pass or have passed to the surviving spouse by testate or intestate succession” are to be applied first to satisfy the elective share. This statute expressly states the elective share may be satisfied by property that passes to the surviving spouse by intestate succession. The statute anticipates the elective share may be applied to both testate and intestate estates. When the statutes are read together and harmonized, they support interpreting N.D.C.C. § 30.1-05-01 to allow a surviving spouse to claim an elective share in both testate and intestate cases. [¶12] In Jones v. Jones, 310 N.W.2d 753, 757 (N.D. 1981), while discussing ownership of partnership property, this Court said in dicta that a prior version of N.D.C.C. § 30.1-05-01 “gives the surviving spouse the right of election to take one- third of the estate under certain limitations and conditions if the other spouse dies intestate.” The prior version of N.D.C.C. § 30.1-05-01 contained language similar to the current version. See N.D.C.C. § 30.1-05-01 (1976) (stating “[i]f a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated”). Although this Court’s statement in Jones is dicta, it 4 is consistent with the plain language of N.D.C.C. § 30.1-05-01. We conclude the surviving spouse of a decedent may claim an elective share of either a testate or intestate estate under N.D.C.C. § 30.1-05-01. [¶13] Our interpretation of N.D.C.C. § 30.1-05-01 is consistent with the interpretation of similar statutes in other states. See, e.g., In re Estate of Antonopoulos, 993 P.2d 637, 641-43 (Kan. 1999) (holding the surviving spouse of an intestate decedent is not precluded from exercising elective-share rights under Kan. Stat. Ann. § 59-6a201 et seq.); In re Will of Shepherd, 761 S.E.2d 221, 225-26 (N.C. Ct. App. 2014) (stating it is clear from the plain language of the statute that an elective share may be claimed by a surviving spouse if the decedent dies intestate because the statute requires property passing by intestate succession to be included in calculating the elective share); In re Estate of Smith, 401 N.W.2d 736, 738, 740 (S.D. 1987) (stating the surviving spouse may opt to take an elective share of the augmented estate when the decedent died intestate and the intestate succession statute does not conflict with the elective share statute). See also Lawrence H. Averill, Jr., Uniform Probate Code in a Nutshell, 79 (3d ed. 1993) (stating the opportunity to take an elective share “exists whether the decedent died intestate, testate with a will which disinherits the surviving spouse, or testate with a will which gives all or part of the estate to the surviving spouse”). [¶14] McLaen contends the purpose of the elective share statutes is to protect a surviving spouse from being disinherited under a will and therefore an elective share is unnecessary when there is an intestate estate because the surviving spouse is already entitled to a portion of the intestate estate. Although a surviving spouse may be disinherited under a will, testate and intestate decedents may also disinherit a surviving spouse through nonprobate transactions. Therefore, our interpretation of N.D.C.C. § 30.1-05-01 is consistent with the purpose of the statute. See Antonopoulos, 993 P.2d at 642 (discussing the underlying public policy of elective share statutes). 5 [¶15] From the language used in N.D.C.C. ch. 30.1-05, we conclude a surviving spouse may exercise the right to an elective share of a testate or intestate estate. The district court did not err by deciding Tyson Hall could claim an elective share. III [¶16] McLaen argues the district court erred by deciding that the 2013 warranty deed conveying the real property to Kandi Hall and McLaen as joint tenants is void and by ordering that the effect of the voided deed was for Tyson Hall to obtain a full interest in the property. She contends Tyson Hall did not have an interest in Kandi Hall’s property and he did not need to sign the warranty deed in order for it to be valid. McLaen contends that even if the warranty deed is void, Tyson Hall would not be entitled to a full interest in the property because Kandi Hall and her sisters each would continue to have a one-fourth interest in the property. [¶17] A legal conclusion of whether a deed is void or voidable is a question of law. Gannaway v. Torres, 2017 ND 287, ¶ 12, 904 N.W.2d 317. Factual findings in a probate proceeding are reviewed under the clearly erroneous standard. In re Estate of Eagon, 2017 ND 243, ¶ 11, 902 N.W.2d 751. [¶18] The district court found the conveyance of the real property to McLaen as a joint tenant was void and ordered McLaen to issue a quit claim deed transferring her interest in the property to Tyson Hall. The court found the entire value of the house should be included in the augmented estate because Kandi Hall contributed all monies to the purchase of the property and McLaen did not contribute any funds. The court also found the property “was the homestead of the parties from May 23, 2013 and continuing through the present, any attempted transfer of the homestead into joint tenancy, with Brianna McLaen, was void in that the decedent’s spouse . . . did not join in the conveyance.” The court further concluded, “[Tyson Hall’s elective] share cannot be satisfied without including the value of the decedent’s non-probate transfers to others pursuant to N.D.C.C. § 35.1-05-02. As a result, [Tyson Hall] is entitled to 6 the homestead in its entirety including any share of the joint tenant, Brianna McLaen . . . .” [¶19] Tyson Hall contends the warranty deed is void under N.D.C.C. § 47-18-05. Section 47-18-05, N.D.C.C., states, “The homestead of a married person, without regard to the value thereof, cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both the husband and wife.” The conveyance of a homestead or any portion thereof must be executed and acknowledged by both husband and wife, or it is void and ineffective. See Nichols v. Schutte, 26 N.W.2d 515, 521 (N.D. 1947). [¶20] The district court found the property was Tyson and Kandi Hall’s homestead, and McLaen does not argue the court’s finding is clearly erroneous. In July 2012, Kandi Hall and her three sisters each received an undivided one-fourth interest in the property through a Personal Representative’s Deed of Distribution. Kandi Hall married Tyson Hall in May 2013. After the marriage, Kandi Hall and her sisters executed a warranty deed intended to convey the property to Kandi Hall and McLaen as joint tenants. Kandi Hall’s three sisters and their spouses all signed the warranty deed as grantors. Tyson Hall did not sign the warranty deed. Because Tyson Hall was married to Kandi Hall when the warranty deed was executed and he did not sign the deed, the deed is ineffective to convey any interest Kandi Hall held in the property to McLaen. See Anderson v. Blixt, 72 N.W.2d 799, 803 (N.D. 1955). Any homestead interest of Tyson Hall’s did not invalidate the deed to the extent it conveyed an interest from one of Kandi Hall’s sisters to Kandi Hall and McLaen. [¶21] Before the deed, Kandi Hall owned a one-fourth interest subject to her husband Tyson Hall’s homestead interest. This one-fourth interest was held as a tenant in common with Kandi Hall’s three sisters. The deed did not affect this interest. Because the sisters’ conveyances are not void, the deed did convey their three-fourths interest to Kandi Hall and McLaen as joint tenants. See Jackson v. O’Connell, 177 N.E.2d 194, 196 (Ill. 1961) (recognizing as “settled . . . that a valid joint tenancy may exist in an undivided interest”). The interest Kandi Hall held in the joint 7 tenancy divested at her death. See Seehafer v. Seehafer, 2005 ND 175, ¶ 19, 704 N.W.2d 841. To satisfy Tyson Hall’s elective share, the value of Kandi Hall’s joint tenancy interest in the three-fourths interest is included in the augmented estate. N.D.C.C. § 30.1-05-02(2)(b)(1)(b); Estate of Krueger, 2019 ND 42, ¶ 9, 923 N.W.2d 475. Thus Kandi Hall’s estate holds title to a one-quarter interest in the property, and McLaen holds title to a three-fourths interest in the property. The augmented estate includes five-eighths of the value of the property: the value of Kandi Hall’s one- fourth interest plus half the value of McLaen’s three-fourths interest. [¶22] The district court erred by finding any conveyance of the property to McLaen was void, McLaen does not own a valid interest in the property, and the entire value of the property was includable in the augmented estate. The court also erred by ordering McLaen is divested of her interest in the property and must issue a quit claim deed conveying her interest in the property to the estate’s personal representative. IV [¶23] McLaen argues the district court erred by failing to order the estate to reimburse her for the 2015-2017 property taxes and insurance she paid on the property. She alleges that after Kandi Hall’s death she paid $3,735.32 for overdue property taxes and $609.20 for property insurance. Tyson Hall admits the property taxes should be paid, but claims the court ordered the estate to pay the taxes because the court found the estate’s debts included taxes and stated the conveyance of the property to Tyson Hall was subject to all liens and encumbrances including claims against the estate. [¶24] The district court did not specifically address McLaen’s request for the costs in its order. Tyson Hall concedes the estate should reimburse McLaen for the property taxes, and we agree. On remand, the court must explicitly order the estate to reimburse McLaen for the 2015-2017 property taxes. [¶25] Tyson Hall argues the district court did not err by failing to order him to reimburse McLaen for the property insurance because McLaen was named as loss 8 payee on the policy, the policy did not benefit the estate, no insurance was required on the property, and no one asked McLaen to take out the insurance. There was no evidence McLaen was required to take out insurance on the property. We conclude the court did not err by failing to order the estate to reimburse McLaen for the property insurance. V [¶26] We reverse the district court’s order and remand for the court to enter an order consistent with this opinion. [¶27] Jerod E. Tufte Daniel J. Crothers Jon J. Jensen Daniel S. El-Dweek, D.J. Gerald W. VandeWalle, C.J. [¶28] The Honorable Daniel S. El-Dweek, D.J., sitting in place of McEvers, J., disqualified. 9 

655 F.2d 1254 211 U.S.App.D.C. 24 MONONGAHELA POWER COMPANY, et al., Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents,National Cable Television Assoc., Inc., U. S. IndependentTelephone Association, Upper Peninsula Power Company, TexasPower & Light Company, GTE Service Corporation, ConsumersPower Company, Intervenors.GTE SERVICE CORPORATION, Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents,Gulf States Utilities Company, Intervenor.CONSUMERS POWER COMPANY, a Michigan Corporation, Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents. Nos. 80-1390, 80-1483, 80-1490, 80-1499. United States Court of Appeals,District of Columbia Circuit. Argued March 27, 1981.Decided May 15, 1981. Charles M. Meehan with whom Shirley S. Fujimoto, Honolulu, Hawaii, was on the brief for Monongahela Power Company, et al., petitioner. William H. Bode and Alfred Lawrence Toombs, Washington, D.C., were on the brief for Consumers Power Company, etc., petitioner in 80-1499 and intervenor in 80-1390. Richard M. Cahill, Johnstown, N.Y., Richard McKenna, Stamford, Conn., and James R. Hobson, Washington, D.C., were on the brief for GTE Service Corp., petitioner in 80-1483 and intervenor in 80-1390. Edward L. Friedman, Thomas M. Eichenberger and Keith E. McClintock, Washington, D.C., were on the brief for AT&T Company, petitioner in 80-1490. Jack D. Smith, Washington, D.C., counsel, FCC, with whom Sanford M. Litvack, Asst. Atty. Gen. Dept. of Justice, Daniel M. Armstrong, Associate Gen. Counsel, FCC, John J. Powers, III, and Andrea Limmer, Dept. of Justice, Washington, D.C., were on the brief for respondents. Robert R. Bruce, Gen. Counsel, FCC, and Nancy C. Garrison, Dept. of Justice, Washington, D.C., also entered an appearance for respondents. 1 Jay E. Ricks, Washington, D.C., with whom Gardner F. Gillespie, Paul Glist, Washington, D.C., Robert Ross, Brenda Fox, Washington, D.C., and James H. Ewalt were on the brief, for National Cable TV Association, Inc., intervenor in 80-1390. 2 Peyton G. Bowman, III, and Daniel J. Wright, Washington, D.C., were on the brief for Upper Peninsula Power Company and Texas Power and Light Co., intervenors in 80-1390. 3 Thomas J. O'Reilly, Washington, D.C., and Daniel J. Greenwald, III, New York City, were on the brief for United States Independent Telephone Association, intervenor in 80-1390. 4 Peter B. Kelsey, Washington, D.C. was on the brief for Edison Electric Institute, amicus curiae, urging that the order be set aside in 80-1390, 80-1483 & 80-1499. 5 Before WILKEY, WALD and MIKVA, Circuit Judges. 6 Opinion PER CURIAM. PER CURIAM: 7 In the Communications Act Amendments of 1978 (Act), Pub.L.No. 95-234, 92 Stat. 33, Congress granted the Federal Communications Commission (FCC) jurisdiction over arrangements for the attachment of a cable television (CATV) system to poles owned or controlled by utility companies. The FCC was directed to "regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable." Id. § 6 (codified at 47 U.S.C. § 224(b)(1) (Supp. II 1978)). In the present consolidated cases, a number of utility companies petition for review of a set of FCC orders promulgating rules and policies for rate regulation under the Act. In particular, petitioners and intervenors challenge the FCC's determinations that CATV should be regarded as occupying one foot of the usable space on utility poles, that capital costs should be assessed whenever possible on the basis of historical costs rather than replacement costs, and that the Act's provisions for rate regulation apply prospectively to all pole attachments, including those arranged pursuant to contracts made before the enactment of the statute. We uphold the FCC orders. 8 For the first five years of the Act's effectiveness, the FCC is to be guided by a statutory specification of the range of rates that may be considered just and reasonable: 9 (A) rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, not more than an amount determined by multiplying the percentage of the total usable space ... which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole.... 10 Act § 6 (codified at 47 U.S.C. § 224(d)(1) (Supp. II 1978)) (emphasis added). The operation of this interim rate system is illustrated by a calculation explicitly worked out in a Senate report: 11 (O)n a typical utility pole 35 feet in length there are 11 feet of usable space (that space above minimum grade level clearance used to attach cable, telephone, and electric wires and associated equipment). By what is virtually a uniform practice throughout the United States, cable television is assigned 1 foot out of the 11 feet of usable space. (While cable only physically occupies approximately 1 inch of this space, the clearance space between CATV and the next adjacent pole user is attributed to CATV.) Cable's share of the total capital costs and operating expenses for the entire 35-foot pole would be one-eleventh. 12 S.Rep. No. 580, 95th Cong., 2d Sess. 20 (1978) U.S.Code Cong. & Admin.News 1978, pp. 109, 128. The FCC's announced procedure for determining whether rates are just and reasonable is consistent with the Senate report's analysis and the industry practice it describes: the FCC has attributed one foot of the usable space to CATV. Petitioners attack this decision as arbitrary and capricious. 13 Petitioners concede that Congress left the FCC broad discretion to determine the amount of space "occupied by the pole attachment" for purposes of the initial implementation of the Act. They argue, however, that the FCC failed to exercise its discretion by erroneously regarding itself as bound by the illustrative example in the Senate report. But the FCC's language, especially that in its final Memorandum Opinion and Order on the subject, 77 F.C.C.2d 187 (1980), demonstrates that the FCC viewed the legislative history as supporting its own reasoning. That reasoning was based in part on industry practice, in part on utility companies' profitable use of the safety clearance space, and in part on the risk of replacement cost that many utility contracts imposed on their CATV lessees. "In sum," the FCC stated, "we conclude that our decision on usable space was not only grounded in the legislative intent, but was also amply justified as an equitable and practical matter in the record before us." 77 F.C.C.2d at 191. We find that the FCC's determination was a conscientious exercise of discretion, and was a reasonable interpretation of the Act, particularly in view of the interim nature of the current regulatory structure. 14 Petitioners attack the FCC's preference for historical cost data in evaluating the reasonableness of rates. The Act does not specify the precise method for calculating "actual capital costs," and the legislative history suggests that Congress intended to give the FCC discretion to decide when historical cost data would be appropriate. "Not wishing to foreclose the Commission from accepting any particular costing methodology, the committee merely seeks to permit the Commission to consider each case on its own merits and according to its own facts." 124 Cong.Rec. 1598 (remarks of Sen. Hollings). The FCC has decided that historical cost data will be preferred, although other approaches will be permitted when historical data are unavailable. Notice of Proposed Rulemaking, 68 F.C.C.2d 3, 11 (1978); Memorandum Opinion and Order, 77 F.C.C.2d 187, 198 (1980). This determination is clearly within the agency's discretion; Congress did not intend to require the FCC to reevaluate the merits of current replacement cost data in every rate case. 15 Finally, intervenors challenge the FCC's authority to apply its regulatory structure to release CATV operators prospectively from contractual arrangements made before the passage of the Act. Intervenors recognize the issue as one of statutory interpretation, and raise no constitutional argument. See Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911). 16 The statute itself is all-encompassing in its wording: the FCC is to "regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable," and is authorized to "hear and resolve complaints concerning such rates, terms, and conditions." Act § 6 (codified at 47 U.S.C. § 224(b)(1) (Supp. II 1978)). This sweeping language is consistent with the urgings of the Act's sponsors, who were alarmed by "numerous abuses of (the utilities') monopoly power," 123 Cong.Rec. 35,00 6 (1977) (remarks of Rep. Wirth), and who encouraged Congress to "act quickly" for the protection of "consumers now receiving cable television as well as consumers who desire access to this service in the future," id. at 16,694 (remarks of Rep. Wirth). Intervenors point to no evidence whatever that Congress meant to deny the FCC the disputed power. 17 Moreover, this view of the legislative intent is supported by the agency's interpretation of the statute. The FCC concluded that it would be "powerless to act in accordance with its mandate" if it were required to await the expiration of existing contracts before granting relief to CATV lessees. First Report and Order, 68 F.C.C.2d 1585, 1591 (1978). 18 For the reasons stated, we uphold the FCC's orders. The Commission may proceed "to hear and resolve complaints regarding the arrangements between cable television systems and the owners or controllers of utility poles," S.Rep.No. 580, 95th Cong., 2d Sess. 2 (1978), U.S.Code Cong. & Admin.News, 1978, p. 110, including those involving preexisting contracts, using the methods for calculating and apportioning costs that it has prescribed. 19 So ordered.

IN THE TENTH COURT OF APPEALS No. 10-10-00263-CV IN RE LOUIS F. BOUSE Original Proceeding DISSENTING OPINION Election contests, unfortunately, frequently come with short external deadlines which make thoughtful appellate legal analysis and research much more difficult. That is the situation in which this mandamus proceeding has been processed. It is my opinion, based upon the issues as presented and argued, and based upon my own research and analysis, that the Court has failed to heed the most important admonition of election law as it relates to an initiative election: In order to protect the people of the city in the exercise of this reserved legislative power, the right to proceed by an initiative election should be liberally construed in favor of the power reserved. INITIATIVE ELECTIONS The authority to compel a city council to adopt a resolution consistent with an initiative election is a legislative act that the citizens have retained. It can, however, be given up by the people. Thus, like the United States Constitution defines those rights that have been given up by the people to the federal government and the Tenth Amendment expressly provides that those powers/rights not expressly described in the constitution are retained by the people/states, unless we can find an express surrender of the right to pursue the initiative election process, the people retain that right.1 The Court has decided that the City of College Station and the two amicus organizations, Texas Municipal League and Texas City Attorney’s Association, are correct in their position that the Texas Legislature has removed the right of the people to compel the governing body of a city, the city council, to consent to an ordinance regarding incorporation of an area that lies within the extraterritorial jurisdiction of a city. I, however, agree with the Citizens for Wellborn, the Committee of Circulators, Louis Bouse, Teri Gerst, Beth Becker, Marcy Halterman, and Brian Alg, and an individual amicus, Rusty Adams, that the right to proceed by an initiative election to obtain the consent of the governing body is not inconsistent with or contrary to the statute relied upon by College Station and the Court. To fully appreciate the need to liberally construe the right to proceed by an initiative election in this situation, it is necessary to step back and review the alternatives and some of the broader issues that impact the advisability and operation of the interpretation of the relevant statute. ISSUES PRESENTED There are essentially two issues around which this mandamus proceeding has been briefed and decided. The Citizens, apparently due to the time pressure, have, I 1 “The powers not delegated to the United States by Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. CONST. amend. X. In re Bouse Page 2 believe inadvertently, opened the door to College Station’s ability to argue the second issue, but which I believe is not ripe for review. It is, nevertheless, the issue upon which the Court decides to deny the mandamus and therefore I, too, will address it. 1. Did the College Station City Secretary, Connie Hooks, fail to perform a ministerial duty by refusing to certify the sufficiency of the initiative petition calling for a city council ordinance consenting to Wellborn’s request to hold an incorporation election? (Alternatively worded: Did the amended initiative petition meet the technical requirements of College Station’s Charter?) Answer: Yes. 2. Can the initiative petition/election process in College Station’s charter be used to compel the city council’s consent to hold an incorporation election for Wellborn? (Alternatively worded: Is compelling the city council’s consent by an initiative election consistent with Texas Local Government Code Section 42.041?) Answer: Yes. BACKGROUND College Station is a home-rule city. As a home-rule city it has all the powers of governing itself which the citizens have delegated to it in the city’s charter so long as the power delegated does not conflict with any statute or constitutional provision. See TEX. LOC. GOV’T CODE ANN. Ch. 9 (Vernon 2008), TEX. CONST. art. XI, § 5. College Station’s charter defines the procedure the voters must follow to utilize the initiative process. The relevant provisions in the city’s charter are contained in Article X thereof. Because of the importance of compliance with those provisions in answering the first question above stated, I will set out the relevant charter provisions in their entirety. The only portions omitted will be those related solely to referendum petitions and recall elections. In the quoted documents set out in this opinion, I have italicized those portions of greater importance to the issues addressed in this dissenting opinion. In re Bouse Page 3  COLLEGE STATION CHARTER PROVISIONS ARTICLE X Power of Initiative Section 83. The electors shall have power to propose any ordinance, except an ordinance zoning or rezoning property, appropriating money, authorizing the issuance of bonds, or authorizing the levy of taxes, and to adopt or reject the same at the polls, such power being known as the initiative. Any initiative ordinance may be submitted to the City Council by a petition signed by qualified electors of the City equal in number to at least twenty-five (25) percent of the number of votes cast at the last regular municipal election. Form of Petitions: Committee of Petitioners Section 85. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition the names and addresses of five electors, who, as a committee of the petitioners, shall be regarded as responsible for the circulation and filing on the petition. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that it bears a stated number of signatures, that all signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be. Filing; Examination and Certification of Petitions Section 86. All petition papers comprising an initiative or referendum petition shall be assembled and filed with the City Secretary as one instrument. Within ten (10) days after the petition is filed, the City Secretary shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by a sufficient number of qualified electors. The City Secretary shall declare any petition paper entirely invalid which does not have attached thereto an affidavit signed by the circulator thereof. If a petition paper is found to be signed by more persons than the number of signatures certified by the circulator, the last signatures in excess of the number certified shall be disregarded. If a petition paper is found to be signed by fewer persons than the number certified, the signatures shall be accepted unless void on other grounds. After completing his examination of the petition, the City Secretary shall certify the result thereof to the city council at its next regular meeting. If he shall In re Bouse Page 4  certify that the petition is insufficient, he shall set forth in his certificate the particulars in which it is defective and shall at once notify the committee of the petitioners of his findings. Amendment of Petitions Section 87. An initiative or referendum petition may be amended at any time within ten (10) days after the notification of insufficiency has been sent by the City Secretary, by filing a supplementary petition upon additional papers signed and filed as provided in case of an original petition. The City Secretary shall, within five (5) days after such an amendment is filed, make examination of the amended petition and, if the petition be still insufficient, he shall file his certificate to that effect in his office and notify the committee of petitioners of his findings, and no further action shall be had on such insufficient petition. The finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose. Consideration by City Council Section 89. Whenever the City Council receives a certified initiative or referendum petition from the City Secretary, it shall proceed at once to consider such petition. A proposed initiative ordinance shall be read and provision shall be made for a public hearing upon the proposed ordinance. The City Council shall take final action on the ordinance not later than sixty (60) days after the date on which such ordinance was submitted by the City Secretary. A referred ordinance shall be reconsidered by the City Council and its final vote upon such reconsideration shall be upon the question. “Shall the ordinance specified in the referendum petition be repealed?” As relevant to this proceeding, and what I believe is the only issue ripe for our consideration herein, I will first focus upon whether the city secretary, Connie Hooks, has failed to perform a purely ministerial duty. I believe the record shows that she has. There is no factual dispute that the Citizens filed an initiative petition on May 4, 2010. Hooks timely undertook to perform her duties to review the petition. And on May 18, 2010 she sent an email to Janet Cohen with a subject of “Verification of Initiative Petition.” The text of the email is as follows: Good morning Mrs. Cohen, In re Bouse Page 5  I presented the results of my examination of the initiative petition to the College Station City Council during its workshop meeting on Monday May 17. This process is outlined in Section 86 of the City Charter. The petition was determined insufficient per Charter requirements. You are being notified of the particulars in which the petition is defective and may within ten days amend the original petition. I will mail a copy of the attachments to your home today. If additional information is needed, please feel free to contact me. Thank you, Connie The city attorney, Harvey Cargill, Jr., provided a Memorandum dated May 13, 2010 to the city secretary, in which he purported to concur in her assessment of various particulars in which the petition was deficient. He went on to elaborate on other reasons he believed the Citizens were not entitled to proceed by the initiative process and why Wellborn was not entitled to incorporate. The text of the memorandum is as follows: MEMORANDUM TO: Connie Hooks, City Secretary FROM: Harvey Cargill, Jr., City Attorney DATE: May 13, 2010 RE: Wellborn 1. As we discussed, I agree with your conclusion that the Petition submitted for an Initiative Ordinance is invalid because it does not have attached to each petition paper an affidavit signed by the circulator and does not contain the full text of the proposed ordinance. Section 86 of the Charter specifically requires that the City Secretary “shall” declare the petition invalid if the circulator requirement is not net. 2. Additionally, the ordinance attached to the Initiative petition proposing that consent be granted provides it is for the area delineated on the In re Bouse Page 6  attached plat. There is no plat attached to the ordinance. By the Charter, the full text of the proposed ordinance must be contained in the petition papers. If this petition with the ordinance was shown to the voters signing the Petition without the plat attached, the voters were given no idea of what area was to be incorporated, and the ordinance is vague and invalid. If a plat was shown to each voter and represented to the voters as being the area to be incorporated, the voters would know what area is to be incorporated and the plat can be added to the Petition documents. However, the circulators would have to swear the plat was attached and represented to each voter as being the area to be incorporated. At this point the City does not know what area is to be incorporated by Wellborn, and the Charter requirements have not been met. 3. Further, as was stated in the letter of March 29, 2010, if a plat was shown to the voters, and it was the same plat or map that Wellborn previously submitted to the City Council, the area does not constitute a city/town as provided by Section 6.001, 7.001 and 8.001 of the Texas Local Government Code. As provided in the 2003 edition of the Municipal Law & Procedure Manual, “Before incorporation under any statute, there must be an unincorporated community in existence with a compact center or nucleus of population around which a city or town or village has developed.” State ex rel Needham v. Wilbank, 595 S.W.2d 849 (Tex. 1980). If the incorporation is challenged, the Court will look at whether there is a community in a fairly compact area. There should be a nucleus or center which can be shown by such things as businesses, a community hall, a post office or school in fairly close proximity. The area proposed for incorporation must be capable of receiving municipal services on a reasonable basis. This is the language that appeared before Mr. Bojorquez took over editing the Manual, and it is the current law. If the area proposed in the Initiative Petition ordinance to be incorporated is the previously set out area, it does not meet the legal requirement for incorporation. 4. In order to incorporate Wellborn must comply with Section 42.041 of the Texas Local Government Code. The first step is to request consent to incorporate from the City Council. If consent is not given, the statute provides for a specific second step, to request the area be annexed, after getting 50% of the landowners to request annexation. If the City of College Station fails to annex within 6 months, by operation of law, consent to incorporate is given. In re Bouse Page 7  There is no step for circulating an Initiative petition instead of following § 42.041. Texas courts have held that a city can no more add a step to the process than it can omit one. Annexation issues are not subject to direct democracy voting through referendum, but are reserved to representative democracy (City Council). The State has set up how and when an area can be incorporated, and the process needs to be followed. In conclusion, you have determined that as presented the Initiative Petition lacks the affidavits as required by the Charter, and the Petition must be declared invalid. If the Petition is corrected to include the affidavits, the ordinance remains invalid unless the plat is attached to the proposed ordinance and the circulators can swear that the plat was shown to each voter. If the plat shows the same area to be incorporated as was presented earlier, the area does not meet the legal requirements for incorporation. The purpose of incorporation is to recognize that an area has become an urban, compact, contiguous area of homes, not to incorporate a rural area then have folks come. Simply put, Wellborn is not an existing town. Finally, state law provides a process to be followed for incorporation, and an Initiative Petition is not part of that statutory process. If consent is given by College Station, it can’t be taken back. The result is growth in College Station in the southern direction will be cut off by Wellborn’s string of properties. Wellborn is already talking about filling in gaps to areas to be incorporated. The decision the City Council makes will be a decision that will decide present and future needs and growth patterns for College Station. Ultimately, the decision should be what is in the best interests of the citizens of College Station. The referenced email, if the city attorney’s memorandum was attached, is fairly characterized as substantial compliance with the requirement for a certification by the city secretary that sets forth “the particulars in which” the petition was insufficient. But that certification was certainly not in strict conformity with the procedure specified in the city’s charter. The certification was addressed to only one person who is not one of the circulator’s committee of petitioners, but who is president of the Citizen’s committee, Janet Cohen, it was presented to the city council in a work session rather In re Bouse Page 8 than in a regular meeting of the city council, and it does not appear to have been timely performed and communicated. Further, it is unclear whether the city attorney’s memo was attached to the email or whether it was part of the “attachments” that were going to be mailed to Cohen’s home. The most fundamental problem regarding compliance with the charter provisions is that the attachment failed to delineate the petition’s defects that the city secretary was responsible for determining and certifying to the city council as distinguished from what the city attorney believed to be other impediments to Wellborn’s ability to incorporate. And although the consequence of the city secretary’s failure to perform her certification duties properly is not specified in the charter, it is noted that the city wants to demand strict compliance with its charter provision but nevertheless is satisfied with only substantial compliance with the charter in regard to their own conduct. The Citizens, rather than complain about the city’s non-compliance with their charter provisions, simply proceeded to address the technical complaints they could identify in the certification of insufficiency of their initiative petition. Specifically, the certification and the city attorney’s memorandum made it clear that the circulator’s affidavit had to be attached to every petition page and that every petition page had to have a complete copy of the proposed ordinance attached, including the attachment of a copy of the plat referenced in the proposed ordinance. According to the letter transmitting the supplemental initiative petition, compliance with these formal requirements required the addition of almost 600 pages, but nevertheless was still based on the petitions originally submitted, which contained the signatures of 1500 registered In re Bouse Page 9 voters. The supplementation required the addition of the two-page ordinance, a copy of the plat, and the individual certification page by the circulator to each page of petition signatures, which could contain a maximum of 11 signatures. This supplementation was clearly intended to bring the petition into technical compliance with the city’s charter requirements for an initiative election and meet the deficiencies identified in items one and two of the city attorney’s memorandum. The city secretary acknowledged that the supplementation was timely received on May 27, 2010. On the following day the city attorney sent the following letter to the Citizen’s attorney: The City Secretary has not completed her review of the supplemental petition. At the completion of her review she will set out her findings. The first point I will make is that this is not a red-light camera initiative/petition situation. The current case law provides that annexation issues are controlled by the statutes dictating your next step. Wellborn’s next step is to request annexation by College Station. By letter of March 29, 2010, I told you that I would recommend that no initiative election be called because the precedent, as established by case law, is that zoning and annexation are not subject to initiative petition. I sent that letter in March so that Wellborn and you would know what my recommendation would be and not be surprised or expend energy circulating the petition, and then complain the City never told Wellborn that the law might bar Wellborn’s request. In spite of the letter, Wellborn has proceeded. My recommendation stands as before. I believe for Wellborn to prevail, it will have to change the law as it currently exists. Notwithstanding the requirements of the city’s charter, specifically the deadline to certify the initiative petition as sufficient or insufficient and the need to notify the Committee of that certification, it appears the city secretary never actually notified the In re Bouse Page 10 Committee of the petition insufficiency. After the supplemental petition was filed, it appears that the city secretary’s next official action with regard to the petition was on June 10, 2010 when she provided a report to the city manager, Glenn Brown. Within the context of the report, she first summarizes the previous events and then declares that the petition as supplemented is insufficient. The report states, in part, as follows: On May 27, 2010, Mrs. Cohen and members of the Citizens for Wellborn committee submitted supplemental documents to the original petition within the time frame required by the City Charter Section 87. The City Secretary reviewed the amended petition and concluded it is insufficient based on the following issues: 1. Not clear in all sworn affidavits that a complete initiative ordinance was presented to voters. If an incomplete ordinance was presented to the voters, it is vague, ambiguous and invalid. 2. The concerns stated by the City Attorney in his letter to City Secretary are not resolved. Based on this report, the city secretary does not state any particular defect that I can identify in the report. I have reviewed the petitions and have not been able to identify any insufficiency between the supplement as filed and the requirements of the city charter. And if I have overlooked some small aspect that the city secretary focused upon in her report item 1, surely it is beyond dispute that there is substantial compliance with the charter provisions. As to the issues identified by the city attorney other than compliance with the city charter for the form and content of the initiative petition, which I will address those more fully below, those cannot be a basis for the city secretary to certify the petition as insufficient. In re Bouse Page 11  Accordingly, the supplemental filing corrected the procedural deficiencies in the originally filed initiative petition. Therefore, the city secretary had no discretion other than to certify the initiative petition as sufficient, in essence that the form and content of the petition complied with the requirements of the city charter. Instead, it appears that the city secretary relied upon the city attorney’s opinion regarding other legal objections to using the initiative process to reject the Citizen’s petition. Accordingly, I would conditionally issue a writ of mandamus against the city secretary, Connie Hooks, but only if she failed to certify the petition as sufficient and provide the Court with confirmation of her having done so within the next business day after the issuance of the Court’s opinion. Because the majority does not, I respectfully dissent from that portion of the Court’s opinion and judgment. Further, it is my belief that the forgoing is the only portion of this mandamus proceeding that is ripe for our consideration. The city council has not been called upon to vote on the initiative ordinance. It is not clear on the record before this Court that a majority of the city council would now vote against the consent ordinance, although that might be an entirely reasonable supposition given that the city council did not voluntarily agree to Wellborn’s request to incorporate. Further, and more importantly, I cannot issue a mandamus against the city council without the issue being voted upon because, notwithstanding that they may not vote to adopt the ordinance, they may, nevertheless, reject the legal analysis and recommendation of the city attorney and vote to put the issue on the ballot and let the citizens decide whether they want Wellborn to be able to control its own fate through incorporation, or at least by letting Wellborn try In re Bouse Page 12 to meet the incorporation requirements. Because even if the city attorney is correct in his opinion that Wellborn does not meet the other statutory requirements for incorporation, an issue not before us in this proceeding, the city council may opt for the public vote to get the sense of the community so that they can consent, or withhold consent, accordingly. Nevertheless, the initiative petition has never been put to a vote by the city council and accordingly is not ripe for this Court to compel by mandamus. Thus, to the extent that the petition for writ of mandamus seeks to compel the mayor and members of the city council, Nancy Berry, John Crompton, Jess Fields, Dennis Maloney, Katy-Marie Lyles, Lawrence Stewart and Dave Ruesink, I would dismiss it. Because the Court addresses the merits and denies the petition for writ of mandamus, I respectfully dissent from that portion of the Court’s opinion and judgment. THE AVAILABILITY OF AN INIATIVE ELECTION TO OBTAIN THE GOVERNING BODY’S CONSENT TO INCORPORATION The second issue in this mandamus proceeding is whether the initiative process is even available to compel the city counsel to approve an ordinance that consents to Wellborn’s request to incorporate. I do not believe this issue is properly before us because the city council has not yet refused to consider the initiative petition, nor have they voted against the proposed ordinance and then refused to put it on the ballot for an initiative election. Because the city secretary refused to certify the initiative petition as sufficient, the issue has simply not been brought before the city council for consideration or vote of any type. Nevertheless, because College Station has defended its actions by asserting that the initiative process is not applicable, and the Court has In re Bouse Page 13 determined to deny the petition for writ of mandamus on that basis, I must express my disagreement with their legal reasoning and result. THE CHARTER As provided in the city’s charter, the initiative process may be used “to propose any ordinance, except an ordinance zoning or rezoning property, appropriating money, authorizing the issuance of bonds, or authorizing the levy of taxes.” The initiative election in this instance is to compel the city council to give their consent by a city ordinance for the community of Wellborn to incorporate.2 The incorporation ordinance is clearly not one of the types of ordinances for which the citizens of College Station have given up their right to proceed by an initiative petition in the city charter. Therefore, if the right to proceed by the initiative process has been taken from the people, as argued by College Station, it must have been taken by a statute of the State of Texas. THE STATUTE College Station, Texas Municipal League, and Texas City Attorneys Association have all concluded that the Local Government Code has a provision that has taken away the people’s right to obtain the city’s consent by an initiative election. This position is not terribly surprising since it is in their own interest of self-preservation that they have the maximum power to protect the city’s existence, expansion of the available tax base of the city, and the sphere of their control and power to regulate through the city’s governing board; the city council. The statute they rely upon is as follows: 2 For purposes of this opinion I will use the short hand references to College Station and Wellborn, even though the later is not yet an incorporated entity. In re Bouse Page 14  (a) A municipality may not be incorporated in the extraterritorial jurisdiction of an existing municipality unless the governing body of the existing municipality gives its written consent by ordinance or resolution. (b) If the governing body of the existing municipality refuses to give its consent, a majority of the qualified voters of the area of the proposed municipality and the owners of at least 50 percent of the land in the proposed municipality may petition the governing body to annex the area. If the governing body fails or refuses to annex the area within six months after the date it receives the petition, that failure or refusal constitutes the governing body’s consent to the incorporation of the proposed municipality. (c) The consent to the incorporation of the proposed municipality is only an authorization to initiate incorporation proceedings as provided by law. (d) If the consent to initiate incorporation proceedings is obtained, the incorporation must be initiated within six months after the date of the consent and must be finally completed within 18 months after the date of the consent. Failure to comply with either time requirement terminates the consent. (e) This section applies only to the proposed municipality’s area located in the extraterritorial jurisdiction of the existing municipality. TEX. LOC. GOV’T CODE ANN. § 42.041 (Vernon 2008). Thus, because Wellborn is within the extraterritorial jurisdiction of College Station, Wellborn must obtain the consent of the governing body of College Station, the city council, to proceed with incorporation. It appears that College Station may not want to voluntarily give its consent. Wellborn has made the request. College Station has not given it. But it has never actually been placed before the city council for a vote. The Court has determined that allowing consent to be compelled by an initiative election would be adding another step to the annexation process. In re Bouse Page 15  The reason College Station does not want to voluntarily consent, at least the city attorney’s reason as expressed in the memo to the city secretary, has to do with city growth. The city attorney expressed his view of why consent should not be given as follows: If consent is given by College Station, it can’t be taken back. The result is growth in College Station in the southern direction will be cut off by Wellborn’s string of properties. Wellborn is already talking about filling in gaps to areas to incorporate. The decision the City Council makes will be a decision that will decide present and future needs and growth patterns for College Station. Ultimately, the decision should be what is in the best interest of the citizens of College Station.3 It appears from their brief in reply to the Citizens response that College Station shares this view when it states that the Citizens are “now trying to obtain a hurried decision that ignores the impact that an additional step will have on cities who attempt to control growth within their ETJ’s.” And College Station’s brief to this Court makes it clear that they view this as a question of annexation to College Station, not consent to allow the Citizens to proceed by initiative election to let the voters decide if the city council must consent to allow Wellborn to move forward with its effort to incorporate. College Station’s brief states the prospect for allowing Wellborn to go forward as: Should this Court issue the writ of mandamus as petitioned by Relators to compel the City to hold an initiative election to allow Wellborn to incorporate, the Court would, in effect, add a procedural step to annexation that is not now permitted by statute. It is therefore, the Respondent’s position that this is an annexation process not subject to initiative petition. 3 It appears that the belief is that the city council is better able to make that determination than the voters of College Station. In re Bouse Page 16  Maybe I am reading too much into the legal position taken by College Station. But by refusing to consent to the incorporation election, and thus, under their argument, compelling Wellborn to take the next step they contend is required by the statute, College Station will be in a better position to annex Wellborn, thus avoiding giving Wellborn independent incorporation status. TEX. LOC. GOV’T CODE ANN. § 42.041(b) (Vernon 2008). At this point it may be helpful to recall that while the citizens of Wellborn are currently largely regulated by College Station because Wellborn is within the extraterritorial jurisdiction of College Station, the citizens of Wellborn have no voice in who is elected to the College Station city council or the passage of ordinances by College Station that have a regulatory impact on Wellborn because they live in the extraterritorial jurisdiction of College Station. Further, the initiative can only go forward if the required number of registered voters in College Station agrees to it. The residents of Wellborn do not even get to participate in the initiative. Thus, Wellborn must look to the citizens of College Station for help to secure the right to control their own municipal destiny. And even if College Station’s city secretary certifies the initiative petition as sufficient under the city’s charter, and presuming the city council does not voluntarily give their consent and, thus, College Station is required to proceed with the initiative election, the result is still up to the voters of College Station, not Wellborn. Further, even if the voters of College Station vote to compel the city council to consent to Wellborn’s incorporation, incorporation is certainly not a certainty. As discussed In re Bouse Page 17 above, the city attorney has already expressed his view that the map of Wellborn for the initiative election does not comply with state law regarding an area that can be incorporated. Of course, this is not a proper basis for the city secretary to not certify the initiative petition but it would nevertheless thwart Wellborn’s ultimate effort to incorporate. The statue quoted above also makes it clear that “consent” is “only an authorization to initiate incorporation proceedings as provided by law” and thus is no guarantee that the community will ultimately be allowed to incorporate. Thus, College Station can continue to assert its legal position, even after the initiation of the incorporation process, that Wellborn, as identified on the plat attached to the ordinance, is not a proper area for incorporation under the relevant laws of the State of Texas. Also by stepping back and taking a look at what it is that College Station wants to compel Wellborn to do by refusing to give its consent to incorporate, we may begin to understand why College Station is mounting this defense at this juncture. If the Court rejects Wellborn’s authority to obtain College Station’s consent to incorporation by way of the initiative election, Wellborn must ask to become part of College Station! See TEX. LOC. GOV’T CODE ANN. § 42.041(b) (Vernon 2008). It seems pretty clear that is the very result that Wellborn wants to avoid. No Inconsistency; Not an Additional Step; Just a Way to Get Consent I now turn to what I believe is the most substantive flaw in the legal reasoning put forward by College Station and adopted by the Court: That by allowing consent to be obtained by using the initiative process set out in College Station’s charter, an additional step would be added to the annexation process, an act prohibited by prior In re Bouse Page 18 cases interpreting annexation statutes. This legal position works only if you accept the city’s premise that this entire process, and specifically the statute it relies upon to defeat the ability to use the initiative process, is about annexation and not about regulating activity in a city’s exterritorial jurisdiction. Further, this legal position is based upon cases that have held that the comprehensive scheme that regulates annexation of areas by cities cannot be altered. I have no quarrel with those cases; but I believe the city and the Court’s reliance on them is misplaced. If we examine the statute that is relevant to this proceeding, the one both parties agree does apply, Texas Local Government Code 42.041, it becomes evident that the statute is dependant upon several other bodies of law. The statute is not intended to be a comprehensive statute dealing with any of the issues College Station and the Court have tried to squeeze into it. First, the provision is in Chapter 42, the Chapter of the Local Government Code related to Extraterritorial Jurisdiction, not Chapter 43 which is the comprehensive provisions of the Local Government Code that deal with Municipal Annexation. Second, even a cursory review of section 42.041 reveals that there are two significant bodies of law mentioned, but which the section does not even begin to address the details and implementation thereof; (1) incorporation of cities; and (2) annexation of areas to existing cities. Incorporation College Station has gone through great lengths to explain why Wellborn does not meet the criteria to incorporate as a city. But to make these arguments, College Station goes well outside section 42.041 and makes a cogent argument about the impediments In re Bouse Page 19 to Wellborn’s incorporation. By referencing other statutes regarding incorporation of cities, College Station has impliedly recognized that the section is not self-contained and is not intended to address every issue related to the subject matter referenced in section 42.041. In effect, College Station recognizes that you have to refer to additional laws to understand and be able to determine if Wellborn can incorporate. But we are not yet to the incorporation stage for Wellborn because that stage does not start until Wellborn obtains College Station’s consent to incorporate. And the statute makes it clear that just because Wellborn obtains College Station’s consent, it does not mean that Wellborn will ultimately be approved by Texas for incorporation. “The consent to the incorporation of the proposed municipality is only an authorization to initiate incorporation proceedings as provided by law.” TEX. LOC. GOV’T CODE ANN. § 42.041(c) (Vernon 2008). Annexation Further, College Station must concede that if its argument is accepted, it does not mean that Wellborn is automatically annexed simply because they comply with the provision in section 42.041(b) referencing annexation. To the contrary, before College Station could annex Wellborn, they would have to comply with the comprehensive steps for annexation contained in Chapter 43 of the Local Government Code. And as an indicator of how comprehensive Chapter 43 on Annexation is when compared to Chapter 42 on Extraterritorial Jurisdiction, Chapter 43 has 11 sub-chapters consisting of 102 sections whereas Chapter 42 has only four sub-chapters and 23 sections. It is this comprehensive set of laws once you get to the issue of annexation that College Station In re Bouse Page 20 would have to comply with if they decided to annex Wellborn. But quite simply, they are not there yet. College Station has not initiated annexation procedures, yet, nor has Wellborn asked to be annexed. Thus it is evident that there are two rather large bodies of law that are referenced in the specific statute that even College Station recognizes it must go elsewhere to determine what that law is and how it may apply to this statue. Subsection (b) deals with annexation which is fully addressed by Chapter 43 of the Local Government Code. Subsection (c) deals with incorporation of municipalities which is fully addressed by Chapters 6, 7, 8, and 9 of the Local Government Code depending upon what type municipality is attempting to be incorporated. Consent This brings me back to subsection (a) of 42.041. This subsection of the statute is about obtaining a city’s governing body’s consent. And this is where College Station wants to keep Wellborn from going to any other provision of law to determine how College Station’s city council’s consent can be obtained. We all agree there is no comprehensive body of state statutes that regulates or determines how to obtain a home-rule city council’s consent for some action. Of course, voluntary consent is easy. If the members of the city council wanted to do this, it would have been done a long time ago. But the city founders, in their wisdom, recognized that the city council’s interest and views may not always be consistent with the voters of the city. Therefore, the founders specified in College Station’s charter the procedures to be used by the voters to initiate an election to compel the city council to consent to an ordinance. In In re Bouse Page 21 this instance the required number of voters has taken the steps necessary to compel the city counsel to either pass an ordinance consenting to Wellborn initiating incorporation proceedings, or to compel the city counsel to put the ordinance to a vote of the electorate to compel their consent to such an ordinance. Thus it is the College Station charter that we look to for the purpose of determining how the governing body of College Station may “give its written consent by ordinance or resolution” for Wellborn to initiate incorporation proceedings. Case Authority I do not find the cases cited by College Station, Texas Municipal League and Texas City Attorneys Association that analyze the steps necessary to annexation relevant to our inquiry. Neither College Station nor Wellborn are in the annexation phase, yet. Likewise, Wellborn has not been authorized to initiate incorporation proceedings. The issue, if it is ripe for decision and I believe it is not, is whether the statute or College Station’s charter, the equivalent of the city’s constitution, has removed the right otherwise retained by the voters to obtain the city council’s consent though the initiative process. I believe the Citizens still have that right. And if there is any doubt that the right is retained, it should be resolved in favor of the Citizens having retained the right. CONCLUSION Based on the forgoing analysis I do not find that the statute, Texas Local Government Code Section 42.041 has withdrawn the initiative election process from being used to compel the governing body of College Station to consent to Wellborn’s In re Bouse Page 22 application to incorporate. Because the statute does not expressly remove the initiative process from being used to obtain the consent of College Station’s governing body, and further because College Station’s procedural objections to the initiative process were corrected in the supplemental filing, and finally because College Station’s growth plan and legal objections to the incorporation of Wellborn are not proper grounds upon which the city secretary can refuse to certify the petition as sufficient under the city charter, I would conditionally issue the writ of mandamus compelling the College Station City Secretary, Connie Hooks, to act in her official capacity and certify the petition as sufficient so that the city council must take action on it as specified in College Station’s charter. I would issue the writ only if the city secretary failed to act in accordance with this opinion and provide certification of compliance within the next business day after the issuance of this opinion. As noted above, I do not believe the petition for writ of mandamus to compel the members of the city council, Nancy Berry, John Crompton, Jess Fields, Dennis Maloney, Katy-Marie Lyles, Lawrence Stewart, and Dave Ruesink, to order the submission of the ordinance to a vote by the electorate is ripe for our mandamus jurisdiction and would dismiss that portion of it. Because the Court denies the petition for writ of mandamus in its entirety, I respectfully dissent from the Court’s opinion and judgment. TOM GRAY Chief Justice Dissenting opinion delivered and filed August 17, 2010 In re Bouse Page 23 

627 F.2d 238 *Hardy, Tumlinson & Moorev.St. Paul Fire & Marine Ins. Co. 80-3230 UNITED STATES COURT OF APPEALS Fifth Circuit 9/25/80 1 N.D.Miss. 2 AFFIRMED***

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ NETLIST, INC., Appellant v. SANDISK LLC, FKA SANDISK CORPORATION, Appellee ______________________ 2017-1617, 2017-1618 ______________________ Appeals from the United States Patent and Trade- mark Office, Patent Trial and Appeal Board in Nos. IPR2015-01020, IPR2015-01021. ______________________ JUDGMENT ______________________ SETH W. LLOYD, Morrison & Foerster LLP, Washing- ton, DC, argued for appellant. Also represented by BRIAN ROBERT MATSUI; MEHRAN ARJOMAND, Los Angeles, CA. JON WRIGHT, Sterne Kessler Goldstein & Fox, PLLC, Washington, DC, argued for appellee. Also represented by LORI A. GORDON, ROBERT EVAN SOKOHL. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (PROST, Chief Judge, LOURIE and CHEN, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT August 14, 2018 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court 

(2008) Kevin R. SANFORD, Plaintiff, v. UNITED STATES, Defendant. Civil Action No. 07-1792 (RCL). United States District Court, District of Columbia. July 22, 2008. MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. Now before the Court comes defendant United States' motion [4] to dismiss and plaintiff Kevin R. Sanford's cross-motion [8] for summary judgment. Upon consideration of the motions, opposition and reply briefs, the entire record herein, and applicable law, the Court finds that defendant's motion to dismiss will be GRANTED and that plaintiffs cross-motion for summary judgment will be DENIED. I. BACKGROUND This case raises the issue of whether a plaintiffs special-court martial conviction of a non-petty offense violates due process when the court-martial is composed of four members. (See Compl. ¶ 20.) Plaintiff is a United States citizen who previously served as a sergeant in the United States Marine Corps. (Id. ¶ 2.) On October 3, 2004, a special court-martial comprised of four members[1] convicted plaintiff of violating lawful order, dereliction of duty, larceny, and impersonating an officer, all in violation of the Uniform Code of Military Justice ("UCMJ"). (Id. ¶¶ 4, 10); see 10 U.S.C. §§ 801 et seq. Plaintiffs conviction was based on his false preparation of recall orders for a marine reservist and other false representations that induced the reservist's employer to purchase airfare on his behalf for travel from Texas to Camp Pendleton, California. See United States v. Sanford, 2006 WL 4571896, at *1 (N.M. Ct.Crim.App. Nov. 6, 2006). Plaintiff was sentenced to confinement for six months, forfeiture of $767.00 pay per month for six months, reduction from pay grade E-5 to grade E-1, and a bad-conduct discharge. See id. Claiming eight assignments of error, plaintiff appealed his conviction to the U.S. Navy-Marine Corps Court of Criminal Appeals. Id. That court considered each of plaintiffs contentions, affirmed his finding of guilt with some modifications, and decreased his sentence of confinement to 150 days. Id. at *11. Regarding plaintiffs assignment of error at issue before this Court, the military appeals court stated: "We have considered the appellant's eighth assignment of error challenging his convictions for `non-petty offenses' by a panel of only four members, and find it to be without merit." See id. at *10 n. 2 (citing United States v. Wolff, 5 M.J. 923, 925 (N.C.M.R. 1978)). On February 7, 2007, the Court of Appeals for the Armed Forces ("CAAF") denied plaintiffs petition for grant of review. See 64 M.J. 428 (C.A.A.F.2007): Plaintiff then filed suit in this Court on October 4, 2007. II. ANALYSIS A. Legal Standards 1. Motion to Dismiss Defendant moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a party files a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004). A court considering a motion to dismiss for lack of jurisdiction,must construe plaintiffs' complaint in plaintiffs' favor, accepting all inferences that can be derived from the facts alleged. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court will dismiss a claim if the plaintiff fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). This Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). 2. Summary Judgment Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment when the evidence demonstrates that there are no disputed issues of material fact and that the moving party is entitled to judgment on the undisputed facts as a matter of law. FED.R.CIV.P. 56(C). A genuine issue of material fact exists if the evidence, when viewed in a light most favorable to the nonmoving party, "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 3. Subject-Matter Jurisdiction and Scope of Review "[T]he Supreme Court has held that Congress didn't intend to confine collateral attacks on court-martial proceedings to [habeas petitions under 28 U.S.C.] § 2241."[2]United States ex. rel. New v. Rumsfeld ("New II"), 448 F.3d 403, 406 (D.C.Cir.2006) (citing Schlesinger v. Councilman, 420 U.S. 738, 748-53, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)). Rather, a district court may have subject-matter jurisdiction to hear a plaintiffs constitutional collateral attack pursuant to the court's section 1331 federal question jurisdiction.[3]See id.; Oppermann v. United States, 2007 WL 1748920, at *3 (D.D.C. June 15, 2007) ("Pursuant to 28 U.S.C. § 1331, federal district courts have subject-matter jurisdiction to review constitutional challenges to military court-martial proceedings."). In such a case, collateral relief is barred unless the judgment was "void." New II, 448 F.3d at 406. And that question "may turn on [1] the nature of the alleged defect, and [2] the gravity of the harm from which relief is sought." Specifically, the defect must be "fundamental," for "[a] judgment ... is not rendered void merely by error." Moreover, "both factors must be assessed in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress."[4] Id. at 406-07 (quoting Councilman, 420 U.S. at 747, 753, 95 S.Ct. 1300). A military court's judgment clearly will not suffer from a fundamental "defect if it satisfies Burns's `fair consideration' test." Id. at 408. This test limits a district court's role to determining whether the military fully and fairly considered each claim. See Burns v. Wilson, 346 U.S. 137, 142-44, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953) (noting that district courts cannot simply re-evaluate the evidence if a military decision fully and fairly dealt with the issue); see also New II, 448 F.3d at 407 (citing Burns, 346 U.S. at 144, 73 S.Ct. 1045). However, full, and fair consideration "has meant many things to many courts." Oppermann, 2007 WL 1748920, at *4 (quoting Kauffman v. Sec'y of the Air Force, 415 F.2d 991, 997 (D.C.Cir.1969)). This Circuit has viewed the term as requiring district courts to inquire not only as to whether the military court gave thorough consideration to a plaintiffs constitutional claims, but also whether the military court's constitutional decisions "conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule." Id. (quoting Kauffman, 415 F.2d at 997); see United States ex. rel. New v. Rumsfeld ("New I"), 350 F.Supp.2d 80, 89 (D.D.C.2004), aff'd, 448 F.3d 403 (D.C.Cir. 2006) (indicating that a district court need not defer to constitutional rulings not in conformity with Supreme Court standards). For the above reasons, to the extent that defendant moves for dismissal for lack of jurisdiction, that motion is denied, and this Court will proceed under the limited scope of review wherein it will address plaintiffs claims in a two-step analysis: (1) determination of whether the military courts gave plaintiffs constitutional claim thorough consideration, and (2) determination of whether the military courts' judgment was in contravention of Supreme Court standards unless conditions peculiar to military life require a different rule.[5]See Oppermann, 2007 WL 1748920, at *5 (citing New I, 350 F.Supp.2d at 92) (applying this standard). B. Application of Legal Standard 1. Thorough Consideration of Plaintiffs Constitutional Claim As a general rule, the thorough consideration component of a court's analysis is "established when it is briefed and argued by the parties, even if the judgment summarily disposes of the issue." Id. at *6 (citing Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.1986)); see also New I, 350 F.Supp.2d at 93 (finding full and fair consideration of an issue where it had been "fully litigated at trial and considered carefully by the military court of appeals"). Here, it is undisputed that (1) the due process implications of a four-member special court-martial were fully briefed at the military court; (2) the court specifically addressed the issue in its opinion and cited to precedent justifying its decision, see United States v. Sanford, 2006 WL 4571896, at *10 n. 2 (N.M. Ct. Crim.App. Nov. 6, 2006); (3) plaintiff briefed the issue in his appeal to the CAAF, (see Pet. for Review, Ex. K to Mot. for Summ. J. at 15-20.); and, (4) the CAAF summarily disposed of plaintiffs appeal, see 64 M.J. 428 (C.A.A.F.2007). In light of these facts, the Court finds that the military court system thoroughly considered plaintiffs claim. See Oppermann, 2007 WL 1748920, at *6 (holding that a plaintiffs claim received full and fair consideration based on similar facts). 2. Conformity with Supreme Court Standard "[I]t is undisputed that the Sixth Amendment doesn't create any jury right in courts-martial." New II, 448 F.3d at 408 (citing Ex parte Quirin, 317 U.S. 1, 38-41, 63 S.Ct. 2, 87 L.Ed. 3 (1942)); see Dodson v. Zelez, 917 F.2d 1250, 1253 (10th Cir.1990) ("We have been consistent in refusing to apply the sixth amendment right to a jury trial in the court-martial setting.") (citations omitted). "The constitution of courts-martial, like other matters relating to their organization and administration, is a matter appropriate for congressional action." Whelchel v. McDonald, 340 U.S. 122, 127, 71 S.Ct. 146, 95 L.Ed. 141 (1950) (citations omitted). However: Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. But in determining what process is due, courts "must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. CONST., art. I, § 8." Weiss v. United States, 510 U.S. 163, 176-77, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (citations omitted). In fact, "[j]udicial deference is at its apogee when reviewing congressional decisionmaking in this area" because the Constitution gives Congress "plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline." Id. at 177, 114 S.Ct. 752 (citations omitted). This deference extends to rules relating to servicemembers' rights. Id. Following the Supreme Court's guidance, this Court must ask whether the factors militating in favor of a six-member court-martial "are so extraordinarily weighty as to overcome the balance struck by Congress." See id. at 177-78, 114 S.Ct. 752. For the reasons set forth below, the Court answers that question in the negative. In determining if factors militate in favor of a six-member court-martial, this Court assesses whether plaintiffs four-member special court-martial violated Supreme Court standards. Specifically, the Court inquires as to whether plaintiffs fundamental right to "a fair trial in a fair tribunal" is burdened. See id. at 178, 114 S.Ct. 752 (explaining that this right is a basic due process requirement). In the civilian court system, the Sixth Amendment requires a jury composed of no fewer than six members for non-petty[6] criminal cases. Ballew v. Georgia, 435 U.S. 223, 243-45, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). While the six-member requirement does not automatically extend to the military court system — the Sixth Amendment's jury-right is inapplicable in this context and the Ballew Court was not faced with weighing due process implications against the heightened deference given to Congress in military affairs — a review of the Supreme Court's Ballew rationale is warranted because of the possibility that the factors discussed therein may be relevant to this Court's due process inquiry. In fact, the crux of plaintiffs argument is that Ballew mandates that a special court-martial conviction violates due process whenever someone is charged with a non-petty offense and the court-martial is composed of fewer than six members. (See Pl.'s Reply at 1.) Ballew looked at five main findings derived from scholarly studies that each indicated the shortcomings of smaller juries: (1) smaller juries are less likely to foster effective group deliberation; (2) smaller jury panels arrive at less accurate results; (3) verdicts of smaller juries vary in such a manner that tends to detriment defendants; (4) the opportunity for a jury panel that adequately represents a cross-section of the community decreases with smaller juries; and, (5) jury research often masks the problems of smaller jury sizes. See 435 U.S. at 231-239, 98 S.Ct. 1029. The Supreme Court determined that: [T]hese studies ... lead us to conclude that the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members.... [A]ny further reduction that promotes inaccurate and possibly biased decisionmaking, that causes untoward differences in verdicts, and that prevents truly representing their communities attains constitutional significance. Id. at 1038. Given that the Supreme Court's assessment of these scholarly studies was restricted to the civilian jury context, this Court is unwilling to adopt and apply that data to the military context. See United States v. Wolff, 5 M.J. 923, 925 (N.C.M.R. 1978) (describing the Ballew data as simply inapposite). The civilian and military legal systems are substantially distinct such that drawing an analogy to support plaintiffs claim that his fundamental due process rights were violated would be improper. For example, in the civilian context, the jury pool is random whereas in special courts-martial, the convening' authority must select members who are the "best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament." 10 U.S.C. § 825(d)(2); see United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F.2004) ("Simply stated, this statute mandates the selection of members who are `best qualified.'"). Further, each court-martial member is "drawn exclusively from the accused's own profession ... with specialized knowledge of the profession[.]"[7]United States v. Guilford, 8 M.J. 598, 602 (A.C.M.R.1979). These distinctions convince the Court that it cannot simply apply the Ballew logic to the military context in support of plaintiffs claim. And, in the absence of Supreme Court precedent other than Ballew that would militate in favor of a six-member special court-martial, this Court — with its deference to Congress at its apogee — finds that the factors in favor of plaintiffs claim are not so extraordinarily weighty as to overcome the balance struck by Congress.[8]See Weiss, 510 U.S. at 177-78, 114 S.Ct. 752. Thus, the plaintiffs's military conviction suffers from no fundamental defect and this case must be dismissed. III. CONCLUSION For the reasons set forth above, plaintiffs conviction by a special court-martial composed of four members did not violate constitutional principals established by the Supreme Court; plaintiff received all the process he was due under the Due Process Clause. Accordingly, defendant's motion to dismiss will GRANTED and plaintiffs cross-motion for summary judgment will be DENIED. A separate order shall issue this date. ORDER Now before the Court comes defendant United States' motion [4] to dismiss and plaintiff Kevin R. Sanford's cross-motion [8] for summary judgment. Upon full consideration of the motions, opposition and reply briefs, the entire record herein, and applicable law, it is for the reasons set forth in an accompanying Memorandum Opinion, hereby ORDERED that defendant's motion to dismiss is GRANTED; it is further hereby ORDERED that plaintiffs cross-motion for summary judgment is DENIED. This case is hereby dismissed with prejudice. SO ORDERED. NOTES [1] By statute, a special court-martial may proceed with as few as three members. See 10 U.S.C. § 829(c). [2] Federal courts are authorized to grant writs of habeas corpus pursuant to 28 U.S.C. § 2241. See United States ex. rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C.Cir.2006). However, section 2241(c) precludes granting the writ unless a petitioner is in custody, see id., which is no longer the case here. [3] Defendant argues against application of the D.C. Circuit's broad interpretation of Councilman. (See Def's Reply at 4.) In defendant's view, district courts have no jurisdiction to review courts-martial decisions of former service members who are not in custody and who bring their suit after separation from service; instead, defendant asserts that district court review is limited to habeas petitions or the "functional equivalent thereof." (See id.) This Court disagrees and follows this Circuit's guidance in New II, which allows for jurisdiction and the limited scope of review set forth in this Opinion. [4] Although Councilman stated this standard in dicta, this Circuit later adopted the standard for non-habeas review of court-martial judgments. See New II, 448 F.3d at 407-08 (citing Priest v. Sec'y of the Navy, 570 F.2d 1013, 1016 (D.C.Cir. 1977)). A plurality of the Supreme Court has described this standard as more deferential than habeas review of military judgments, which in turn is no less deferential than habeas review of state court judgments. Id. at 407 (citing Councilman, 420 U.S. at 753, 95 S.Ct. 1300). This Circuit has indicated that it seriously doubts whether applying such carefully delineated graduations of deference is possible and that, in at least some cases, it will suffice to operate under the core principle that a district court may only void a court-martial error if it was fundamental. Id. at 408. [5] Defendant asserts that this two-step approach is illogical because the thorough consideration component is rendered superfluous if the Court will in any event reach constitutional issues in the second prong of its analysis. (See Mot. to Dismiss at 12.) This Court sees value in the two-step analysis. If the military judgment fails the first prong, there is effectively no military decision for a district court to reference; this Court would not give weight to a judgment that was not based on thorough consideration. [6] A charge that carries an authorized maximum penalty of more than six months is a non-petty charge. Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). In 1999, Congress amended the UCMJ to permit special courts-martial to try non-petty offenses carrying a maximum penalty of up to one year. See 10 U.S.C. § 819 (2008). Previously, special courts-martial could impose only a maximum penalty of six months. See 10 U.S.C. § 819 (1998) (amended Oct. 5, 1999). [7] Other relevant differences that impact the application of Ballew to the current case include the facts that enlisted defendants have the option of requesting that their court-martial be composed of officer and enlisted members, see 10 U.S.C. § 825(c)(1), and that court-martial members have the ability to question witnesses, see United States v. Guilford, 8 M.J. 598, 602 (A.C.M.R.1979). [8] The parties dispute the extent to which increasing the court-martial panel size will detrimentally affect military resources. (See Mot. to Dismiss at 15-16; Pl.'s Mem. [8-5] at 15-16.) The Court need not resolve this issue. For the purposes of this Opinion, it is sufficient to recognize that Congress allocated military resources to the military court system as it saw fit. It is Congress's responsibility to consider that "[u]nlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise [and that] trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 100 L.Ed. 8 (1955). In this particular case, no compelling reason causes the Court to question the balance struck by Congress. Likewise, the parties debate the extent to which historical fact supports their positions. (See Mot. to Dismiss at 13-15; Pl.'s Mem. [8-5] at 13-14.) While history is "a factor that must be weighed" in this Court's due process calculation, see Weiss, 510 U.S. at 179, 114 S.Ct. 752, even assuming a lack of historical support for four-member military trials of non-petty offenses, in this case, that factor does not weigh sufficiently in plaintiff's favor to tip the scales against deferring to Congress' judgment.

175 Kan. 576 (1954) 266 P.2d 719 In the Matter of the Estate of C.A. Good, Deceased. MAMIE BRYSON, Petitioner and Appellee, v. BESSIE R. GOOD, Executrix of the Estate of C.A. Good, Deceased, Respondent and Appellant. No. 39,142 Supreme Court of Kansas. Opinion filed January 23, 1954. L.E. Quinlan, of Lyons, argued the cause and was on the brief for Appellee. John F. Eberhardt, of Wichita, argued the cause and Arthur C. Hodgson, of Lyons, and George Siefkin, George B. Powers, Samuel E. Bartlett, Carl T. Smith, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, and Robert M. Siefkin, all of Wichita, were with him on the brief and abstract for Appellant. The opinion of the court was delivered by HARVEY, C.J.: This was an action, initiated by the filing of a petition in the probate court of Rice county in the Estate of C.A. Good, deceased, in which plaintiff sought specific performance of an alleged oral contract made with the decedent in August, 1946, by which C.A. *577 Good proposed to her that he would will and devise to her a certain quarter section of land if she and her family would come and live with him and care and provide for him as they had done from November, 1945, to June, 1946, which proposal she accepted and she and her family performed the agreement until C.A. Good died June 27, 1952, and which land he failed to devise to her in his will. In order that it may be accurately stated the petition is attached hereto as Appendix A. After the petition was filed, the matter was duly transferred to the district court for trial in harmony with G.S. 1949, 59-2402a, et seq. In due time Bessie R. Good, the sole beneficiary of the will of C.A. Good and Executrix of his estate, filed an answer, which also is attached hereto as Appendix B. A trial by the court resulted in judgment for plaintiff, and the respondent has appealed. The general facts may be stated briefly as follows: C.A. Good was born in Iowa on December 12, 1869, and spent most of his life in Rice county, Kansas. About 1895 he married Bertha Wills, and they lived together as husband and wife for more than fifty years until her death in June, 1945. For a few months thereafter Mr. Good lived in Lyons where he had a housekeeper. The plaintiff Mamie Bryson and her husband Eugene had lived in Lyons since 1939. In 1940 they built and moved into a home which appears to have had a main floor under which is what is spoken of as a basement apartment. In October, 1945, Mr. Good bought this home for $7,000. The Brysons had two children, a son and a daughter, who were in school and made some arrangements with Mr. Good whereby they could live in the house for the remainder of the school year. They lived in the basement apartment and the living room furniture and perhaps other things were left in the main part of the house which was occupied by Mr. Good. He had his meals with them and Mrs. Bryson looked after him generally. When the school year ended the Brysons moved to Okmulgee, Okla. In August, 1946, the oral agreement in question was made and the Brysons moved back into the home they had sold to Mr. Good. At that time, however, Mr. Good lived in the basement apartment and the Brysons used the other part of the house for their living quarters until Mr. Good's marriage to Bessie R. Wills on March 31, 1951, when the Brysons again moved to the basement apartment and Mr. Good and his wife occupied the other part of the house. On January 15, 1951, Mr. Good sold the property to the Brysons. Mr. Good *578 was a man of substantial means and for about two years prior to his death he bought quite a number of shares of stock of United Funds, Inc., an investment company. Quite a few of the investments were made with the proceeds from the sale of real property. Some of the shares were purchased in the name of Mr. Good and the plaintiff as joint owners and so worded that Mr. Good received the income from them as long as he lived and after his death they became the property of the plaintiff. Following the trial by the court without a jury the court rendered and signed a written decision which was filed with the clerk of the court and which reads: "The above entitled cause of action was tried to the court commencing on May 27, 1952, at the conclusion of which trial, the court took the matter under advisement. "NOW, on this 28th day of October, 1952, the court, being fully advised in the premises, finds generally for the petitioner, Mamie Bryson, and against the Estate of C.A. Good, Deceased, and renders judgment in accordance with the prayer of said petition, costs in said action to be taxed against the Estate of C.A. Good, deceased. "IT IS SO ORDERED." On the same day, October 28, 1952, counsel for respondent moved the court to make findings of fact and conclusions of law reciting that he had understood that would be done and relying thereon had not made a special request therefor. Whereupon, the court made and filed with the clerk of the court the following: "FINDINGS OF FACT. The above entitled cause of action came on to be heard before the court on the 27th day of May, 1952, said cause being transferred from the probate court of Rice County, Kansas to the District Court of Rice county, Kansas. The court makes findings of fact as follows: "1. That C.A. Good, and the petitioner, Mamie Bryson, and her family, during the latter part of 1945, and in the spring of 1946, resided together in a residence in Lyons, Kansas, and that the decedent, C.A. Good, took his meals with petitioner and her family, and otherwise occupied the home, and that during said time the petitioner looked after said C.A. Good by furnishing him his meals, by doing his washing and ironing and mending, and also, with her husband would drive Mr. Good, in his car or in her car, around to look after Mr. Good's farm land and other business, to church, and to the doctor. "2. That in June, 1946, the petitioner and her family moved from Lyons, Kansas, to Okmulgee, Oklahoma, with the intention of making it their permanent home. "3. That in the month of August, 1946, petitioner came to Lyons, Kansas, for a visit with Mr. Good, and that the said C.A. Good made an oral offer and proposition to petitioner that if she and her family would move back to the home at 420 South Bell Street in Lyons, Kansas, and take care of him, and *579 look after him as they did when he lived with them from November, 1945 to June, 1946, as long as he lived, that he would devise and will to her certain land in Rice County, Kansas, which was identified in the testimony as the Southeast Quarter of Section 34, Township 19, Range 7, West of the 6th P.M., in Rice County, Kansas. That after petitioner had a conversation with her husband concerning said offer, and on August 9, 1946 she informed the decedent, C.A. Good, that she would accept the offer made to her by said C.A. Good that he would will and devise to her said above described land, and that they would move back to Lyons, Kansas, as soon as possible to begin the performance of her part of the contract, and that in compliance with said terms of the contract, petitioner and her family did move back to Lyons, Kansas, from Okmulgee, Oklahoma, on or about the 23rd day of September, 1946, and that petitioner looked after Mr. C.A. Good until his remarriage on the 31st day of March, 1951, and that after the marriage of Mr. C.A. Good to Mrs. Bessie Wills, that Mr. and Mrs. Good occupied the upper part of the house at 420 South Bell Street, and petitioner and her family occupied the basement part of said house, and that petitioner fully and completely performed all of her part of the oral contract and agreement made between she and Mr. Good on the 9th day of August, 1946 until the date of the death of Mr. C.A. Good. "4. That said C.A. Good died on the 27th day of June, 1951, and that previous to his death, on the 17th day of April, 1951, made and executed a last will and testament, by the terms of which he devised and bequeathed all of his estate to his wife, Bessie Wills Good. That by the terms of said will, C.A. Good failed to will and devise to the petitioner the above described quarter-section of land, and failed to fulfill his part of the contract and agreement between he and the petitioner. "5. That the said Bessie Wills Good, as executrix of the estate of C.A. Good, deceased, is now, and has been in possession of said land, and has collected the rents and profits therefrom. "6. That the petitioner is entitled to an accounting of all rents and profits from said quarter-section of land since the death of C.A. Good." .............. "CONCLUSIONS OF LAW. 1. The court concludes as a matter of law, that said petitioner and C.A. Good entered into an oral contract by the terms of which said C.A. Good would will and devise said land to petitioner, if petitioner would take care of him until his death, and that petitioner fully and completely fulfilled her part of said contract, and that the court renders judgment for petitioner, decreeing specific performance of the contract between petitioner and C.A. Good, and that petitioner is adjudged to be the owner and entitled to the immediate possession of the Southeast Quarter of Section 34, Township 19, Range 7, West of the 6th P.M., in Rice County, Kansas; and that the same is adjudged to be no part of the estate of C.A. Good, deceased, and that Bessie R. Good be adjudged to have no right, title, equity or interest therein. "2. That said Bessie R. Good, Executrix of the estate of C.A. Good, be required to account to this court for all rents and profits received from said land since the 27th day of June, 1951, and that she be ordered to pay to petitioner all such rents and profits so received. *580 "3. Costs in the case are taxed to the Estate of C.A. Good, deceased. "DATED, at Lyons, Kansas, this 28th day of October, 1952." On October 31, 1952, respondent filed a motion for a new trial upon the grounds (1) abuse of discretion by the court; (2) erroneous rulings of the court; (3) the decision of the court is in whole or in part contrary to the evidence; (4) newly discovered evidence material for the defense against the claim, which the Executrix could not, with reasonable diligence have discovered and produced at the trial; and, (5) that the decision was procured by the corruption of the party obtaining it. Respondent also filed a motion for additional findings of fact as follows: "1. That between January 28, 1950, and June 20, 1950, the decedent, C.A. Good purchased 1754 shares of United Funds, Inc., at a cost of $22,556.44. That the same were purchased in joint ownership with C.A. Good and Mamie Bryson, as joint owners. That the decedent received the income from the trust shares during his lifetime and that the principal of the trust shares immediately passed to Mamie Bryson upon the death of C.A. Good. "2. That in the last two years of the decedent's lifetime, the decedent entered into a program involving the sale of all farms owned by the decedent, and that said decedent was using the income from said sale to purchase trust shares in United Funds, Inc., that the decedent purchased 1754 trust shares payable to Mamie Bryson, and that said purchase was to constitute payment of any liability which may have been formerly created between the decedent, C.A. Good and Mamie Bryson by virtue of any oral contract to leave property to said Mamie Bryson as alleged in plaintiff's petition. "3. That it was not the intention of the decedent and of the claimant, Mamie Bryson, that any services rendered by Mamie Bryson under the oral contract should be paid for twice, and that the purchase of the trust shares in the name of Mamie Bryson was in lieu of, and in payment of, any obligation on the decedent's part to leave any other property to the said Mamie Bryson. "4. That the purchase of said trust shares and ultimate delivery thereof to the plaintiff, Mamie Bryson, constituted full, adequate and fair compensation for any services rendered by the said plaintiff, Mamie Bryson. "5. That the value of said trust shares at the time they were purchased was approximately the value of the farm which the claimant, Mamie Bryson, alleges the decedent, C.A. Good, agreed to leave to her." and for additional conclusions of law as follows: "1. That any oral contract between the decedent, C.A. Good, and Mamie Bryson, was paid in full by the delivery of 1754 trust shares in United Funds, Inc., which have been delivered to Mamie Bryson and accepted by her, and accordingly the claimant, Mamie Bryson, is denied recovery as requested in her Petition." On December 1, 1952, the plaintiff filed a motion for additional findings of fact in sixteen paragraphs, which we need not copy. *581 These motions came on for hearing before the court on December 5, 1952. At that time the motions were presented and informally discussed by counsel with the court and were held for further consideration. On December 16, 1952, respondent filed a motion for additional findings of fact as follows: "1. That any services performed by the claimant, Mamie Bryson, for the decedent, C.A. Good, between the dates of August 9, 1946 and the date of death of the decedent, C.A. Good, could be compensated for in money. "2. That the claimant, Mamie Bryson, had been adequately compensated for the services rendered to C.A. Good between the dates of August 9, 1946 and the date of decedent's death on the 27th day of June, 1951 and that if claimant, Mamie Bryson is allowed to keep 1754 shares of United Funds, Inc. and that quarter section of land described as the Southeast Quarter (SE 1/4) of Section Thirty-four (34), Township Nineteen (19) South, Range Seven (7) West in Rice County, Kansas, said claimant, Mamie Bryson, will in effect be receiving pay twice for her services. "3. That the claimant, Mamie Bryson, shall return to the estate the 1754 shares of United Funds, Inc. which she received from said estate or the value of said shares in money as of the time of the death of C.A. Good as of June 27, 1951." On February 2, 1953, when the motions were further discussed by respective counsel and court at the conclusion of which the court announced that its final decision would be withheld until the court reporter had time to make up the record so that the rights of the various parties, in case of an appeal, may be protected. The court's decision being withheld on all matters brought before the court on that day until such time as a final decision could be made, not only on the main part of the case but on the motions for additional findings of fact and conclusions of law and the motion for a new trial. On February 14, 1953, the court reduced to writing and filed the proposed finding and decision announced at the conclusion of the January 2, 1953, hearing, as follows: "DECISION OF THE COURT ON MOTION FOR NEW TRIAL AND MOTIONS FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW. The above entitled cause of action was presented to the court on December 5, 1952, and on February 2, 1953, on the motion for new trial filed by the Executrix of the Estate of C.A. Good, Deceased, and on motions for additional findings of fact, and for additional conclusions of law, filed by the petitioner and by the executrix. "The court, having examined the pleadings, and being fully advised in the premises, finds as follows: "1. The court finds that the motion for a new trial filed by the Executrix under date of October 31, 1952, should be, and the same is hereby overruled by the court. *582 "2. The court finds as follows concerning the motion for additional findings of fact filed by petitioner under date of December 1, 1952: "Paragraphs 1 and 2 of said motion are hereby overruled. "As to Paragraph 3 of said motion, the court makes the following finding: "3. From around the first part of November, 1945 until school was out in the spring of 1946, the petitioner and her family lived in a residence property in Lyons, Kansas, that they had sold to Mr. Good, and that Mr. Good occupied this residence with them. That during such time Mr. Good took his meals with the family and occupied the home, and the evidence shows that the petitioner performed the ordinary household services for Mr. Good, and that they also would take Mr. Good to look after his farms and other business, and to church, and to his burial plot, and the court reached the conclusion that Mr. Good had probably paid petitioner for these services. "As to Paragraph 4 of said motion, the court makes the following finding: "4. That evidence was introduced that about the 15th day of June, 1946, petitioner and her family moved from Lyons, Kansas, to Okmulgee, Oklahoma; that there was also evidence that they moved to Oklahoma with the intention of making it their permanent home. However, the evidence in the case discloses that the husband of petitioner was engaged in oilfield work, and that in such oilfield work, he was liable to be called to any place at any time. "As to Paragraph 5 of said motion, the court makes the following finding: "5. That along in the month of August, 1946, the petitioner came to Lyons, Kansas, to visit Mr. Good, and that at said time, Mr. Good made her the proposition that if she and her family would move to Lyons, Kansas and take care of him, and look after him as they did when he lived with them before, as long as he lived, he would devise and will to her the Southeast Quarter of Section 34, Township 19 South, Range 7 West, of the 6th P.M., Rice County, Kansas, and that after talking the matter over with her husband, she and her husband and family moved back to Lyons, Kansas. "As to Paragraph 6 of said motion, the court makes the following finding: "6. About September 25th, 1946, petitioner and her family moved from Okmulgee, Oklahoma to the home of Mr. Good in Lyons, Kansas, and began the performance of her part of the contract. "As to Paragraph 7 of said motion, the court makes the following finding: "7. During the time Mr. Good and petitioner and her family lived together preceding Mr. Good's marriage, that petitioner looked after, and helped take care of Mr. Good by preparing his meals, looking after the washing, ironing, and mending of his clothing, and also nursed him when he was ill, and assisted him in looking after his various business transactions. "Paragraph 8 of said motion is hereby denied. "Paragraph 9 of said motion is hereby denied. "As to Paragraph 10 of said motion, the court makes the following finding: "10. On numerous occasions Mr. Good stated to his preacher, his doctor, and his relatives and friends that petitioner was giving him more care, attention and affection than any other person he had ever known, including his own relatives. "As to Paragraph 11 of said motion, the court makes the following finding: "11. The nature of the contract between C.A. Good and petitioner was such that it required petitioner's companionship and affection as well as carrying *583 on the other duties required of her in such manner that the same could not be and was not intended to be compensated for in money, but was to be compensated for by willing or deeding to her the quarter-section of land in controversy. "As to Paragraph 12 of said motion, the court makes the following finding: "12. The said C.A. Good died on the 27th day of June, 1951, and previous to his death, on the 17th day of April, 1951, he made and executed a last will and testament by the terms of which he devised and bequeathed all of his estate to his wife, Bessie Wills Good; that by the terms of said will, C.A. Good failed to will and devise to petitioner the above described quarter-section of land and failed to fulfill his part of the contract and agreement between he and the petitioner. "Paragraph 13 of said motion is hereby denied. "As to Paragraph 14 of said motion, the court makes the following finding: "14. Petitioner fully and completely performed all her part of the oral contract and agreement made between she and C.A. Good about the 9th day of August, 1946. "As to Paragraph 15 of said motion, the court makes the following finding: "15. Between January 28, 1950, and June 20, 1950, decedent C.A. Good purchased 1754 shares of United Funds, Inc., at a cost of approximately $22,556.44. That the same were purchased in joint ownership with C.A. Good and Mamie Bryson, as joint owners. That the decedent received the income from the trust shares during his lifetime and the principal of the trust shares immediately passed to Mamie Bryson upon the death of C.A. Good. "As to Paragraph 16 of said motion, the court makes the following finding: "16. Bessie Wills Good, as executor of the estate of C.A. Good, deceased, is now and has been in possession of said land, and has collected the rents and profits therefrom since the death of the said C.A. Good. Petitioner is entitled to an accounting of all rents and profits from said quarter-section of land since the death of the said C.A. Good. "That the court makes the following additional finding of fact: "17. That at the time the contract was entered into between petitioner and C.A. Good, the estate of Mr. Good was worth approximately $250,000.00. That at the time of the death of C.A. Good, the value of the estate owned by C.A. Good was approximately $250,000.00, taking into consideration the values of the shares of stock of United Funds, Inc., which he had purchased from the proceeds of the sale of real estate, and which shares of stock were held by him in joint ownership with the following persons, as follows: Name of Joint Owner No. of Approximate value with C.A. Good Shares as of June, 1950. Mrs. Ruth H. Copeland 1858 $23,893.88 Mrs. Lottie Horning 1858 23,893.88 Helen Allison 929 11,946.94 Mrs. Avis Leatherock 929 11,946.94 Mamie Bryson 1754 22,556.44 Bessie Wills Good 5646 72,607.56 ___________ Total $166,845.64 *584 "That the appraised value of the estate of C.A. Good, after taking the above shares of United Funds, Inc., into consideration, and not including said shares, amounted to $91,225.86. "3. The court finds as follows concerning the motion for additional conclusions of law filed by petitioner herein under date of December 1, 1952: "Paragraph 1 of said motion is hereby overruled. "As to Paragraph 2 of said motion, the court makes the additional conclusion of law as follows: "2. The services performed by petitioner for the said C.A. Good in companionship, affection and obedience to his wishes as well as carrying on the other duties required of her under the terms of said contract were of such nature that the petitioner should be compensated therefor by the deeding, or willing, of the land involved in this controversy to her. "Paragraphs 3 and 4 of said motion are hereby overruled. "4. The court finds as follows concerning the motion for additional findings of fact filed by the Executrix herein under date of October 31, 1952: "As to Paragraph 1 of said motion, the court makes the following additional finding: "1. That between January 28, 1950, and June 20, 1950, the decedent, C.A. Good purchased 1754 shares of United Funds, Inc., at the cost of $22,556.44. That the same were purchased in joint ownership with C.A. Good and Mamie Bryson, as joint owners. That the decedent received the income from the trust shares during his lifetime and that the principal of the trust shares immediately passed to Mamie Bryson upon the death of C.A. Good. "As to Paragraph 2 of said motion, the court makes the following additional finding: "2. That in the last two years of the decedent's lifetime, the decedent entered into a program involving the sale of farms owned by the decedent, and that said decedent was using the income from said sale to purchase trust shares in United Funds, Inc.; that the decedent purchased 1754 shares payable to Mamie Bryson. "Paragraphs 3, 4, and 5, of said motion are hereby overruled. "5. The court finds that the motion for additional findings of fact filed by the Executrix under date of December 16, 1952, should be, and the same is hereby overruled. "6. The court finds that the motion for additional conclusions of law, filed by the Executrix under date of October 31, 1952, should be, and the same is hereby overruled. "7. That the additional findings of fact and conclusions of law herein set forth by the court, are to be considered in connection with, and in addition to the findings of fact and conclusions of law heretofore filed in this cause by the court under date of October 28, 1952. "DATED, at Lyons, Kansas, this 14 day of Feb., 1953." On the same date the Journal Entry of Judgment was prepared and filed. It recited the trial on May 27, and 28; the proceedings of the court on October 28; the filing of post-trial motions, and their hearing on December 5, 1952, and February 2, 1953, and continued: *585 "And be it further remembered that on this 14th day of February, 1953, the same being a regular judicial day of this Court and all of the officers thereof being present, said matter was again before the Court for its final judgment and rulings. All parties being represented as before. Thereupon the Court did make and enter its `DECISION OF THE COURT ON MOTION FOR A NEW TRIAL AND MOTIONS FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW' in writing and filed the same herein. "It is therefore ordered, adjudged and decreed that the motion for a new trial, filed herein by respondent Bessie R. Good, executrix, should be and the same is hereby overruled. "It is further ordered, adjudged and decreed and the Court renders judgment herein in accordance with the prayer of said petition, filed herein by petitioner, Mamie Bryson; that petitioner, Mamie Bryson, is adjudged to be the owner and entitled to the immediate possession of the Southeast Quarter of Section Thirty-four, Township Nineteen south, Range Seven, West of the Sixth P.M. in Rice County, Kansas; that the same is no part of the estate of the said C.A. Good, deceased, late of Rice County, Kansas and that Bessie R. Good has no right, title or equity therein. It is further adjudged and decreed that the total sum of the rents and income received and collected from said real estate by Bessie R. Good, executrix of the estate of the said C.A. Good, deceased, from the 27th day of June, 1951, less the taxes and other expense, is the sum of $3,895.53 and said executrix is ordered and directed to forthwith turn over and pay to petitioner, Mamie Bryson, said sum of $3,895.53. The costs of this proceeding are taxed against the estate of C.A. Good, deceased. "The Probate Court of Rice County, Kansas, is ordered and directed to enter a judgment and decree in accordance with the terms, condition and provisions of this judgment and enforce the same, all as provided by law." The notice of appeal was served and filed on April 10, 1953. Turning now to the questions raised by the pleadings which were argued here we note that defendant's answer, aside from a general denial, raised two specific issues; first, it was denied "... that C.A. Good ever made any agreement with Mamie Bryson to will and devise to her ..." the land in question as alleged by the petition. The actual making of the contract was testified to by but one person, Eugene Bryson, husband of plaintiff. It was contended that he was not a competent witness according to our statute G.S. 1949, 60-2804, "... inasmuch as he was a party to the alleged contract and directly interested in its enforcement." We think it cannot be said that he was a party to the contract. The contract was that if Mrs. Bryson and her family would move to Lyons, Kansas, and take care of him and look after him as they did when he lived with them before as long as he lived he would devise and will to her a certain described farm which he owned. Mrs. Bryson was the only one *586 who under the contract was to receive the farm and perhaps it was accurate to say that the duty was upon her to see to it that she and her family took care of Mr. Good for the remainder of his life whether that time be short or long, and irrespective of the condition of his health or what might prove to be necessary for his proper care. The point has been specifically passed upon by this court adverse to the contentions of appellant. In Schuler v. Rehberg, 145 Kan. 176, 64 P.2d 571, in the opinion (p. 181), the contract there involved was stated as follows: "There is evidence that plaintiff relied upon the contract or agreement she had with Herman Rehberg, which in effect was that she, with the aid of her husband, was to care for him and his home, even to furnish him a home if that should be needed, as long as he lived, and that at his death he was to leave her the home place." In that case Carl Schuler, husband of plaintiff, testified to the contract upon which the action was based. This testimony was objected to upon the ground that he was a necessary party to the contract and that his testimony should be stricken. This was overruled. This court held that there was no material error in the court's rulings upon the admission of evidence. This ruling was followed in Popp v. Wilhelm, 150 Kan. 753, 96 P.2d 620, where it was held: "In an action in the nature of specific performance of an oral contract by which in consideration of the conveyance by plaintiff to her mother of eighty acres of land the mother agreed to will the same eighty to plaintiff, the testimony of the husband of plaintiff concerning conversations between plaintiff and her mother was competent to prove the contract." Citing also, Bertholf v. Cornel, 132 Kan. 122, 126, 294 Pac. 673, to the same effect. While we hold that Mr. Bryson was a competent witness to testify to the making of the contract we need not pause to labor the point since counsel for appellant in their brief in this court (p. 18) say: "Apart from Mr. Bryson's own testimony, there was, we concede, other evidence adduced by plaintiff tending — if believed — to show that originally there was some type of agreement between Mr. Good and the Brysons that for their services Mrs. Bryson would be given some land...." While the evidence disclosed that Mr. Good was not a talkative man, as many as eight witnesses were produced by plaintiff, some of them relatives, others friends or associates, who testified that Mr. Good told them that he was well satisfied with the care and attention that was being given him and that he was going to give Mrs. Bryson some land, and in some cases *587 told them what land he was going to give her and spoke of it as Mrs. Bryson's land and in one or more instances when he drove by the land he pointed it out as Mrs. Bryson's land or the land he was going to give to Mrs. Bryson for taking care of him. It is true counsel for appellant in this court have made adverse comments upon the testimony of each of those witnesses. Perhaps that was done in the trial court. It is futile, of course, for them to present such comments here. This court does not pass upon the credibility of the witnesses or the weight to be given to their testimony. That was the function of the trial court which court evidently discarded the relatively minor criticisms of their testimony and gave credence thereto. In addition to that there is the fact clearly established by the evidence that in June, 1946, when school was out the Brysons had moved to Okmulgee, Oklahoma, where they bought a home with the intention of making their home there. This last phrase is criticized by counsel for appellant but we see no reason for them doing so. Mr. Bryson testified that his wife wanted to make their home in Okmulgee because she was reared there; her mother still lived there, also a sister. While Mr. Bryson did not go there immediately to stay because he had oil drilling work in Kansas there is testimony that he was planning on purchasing a business there which he expected to operate. The Brysons did move from their home in Okmulgee to Lyons and they did care for Mr. Good until his death about four and one-half years later and did so in a manner which was very satisfactory to him as he frequently told his doctor, his preacher, and others as specifically found by the trial court. This finding is not criticized by appellant. Indeed there is evidence that Mrs. Bessie R. Wills, who married Mr. Good March 31, 1951, knew about the agreement Mr. Good had made with Mrs. Bryson before her marriage and recognized that she was to have the land in question upon Mr. Good's death. Mr. Bryson testified that one morning about a month before the wedding in his presence and that of Mr. Kingsley Mr. Good said to his wife, "Mamie, I know where you can trade your farm, and Bessie (Mrs. Wills) wants to give her duplex — he called it — in Hutchinson, for your farm out here." And that his wife said she was not interested in property in Hutchinson. Substantially the same conversation was testified to by Mr. Kingsley. It was not contradicted by anyone. The second specific defense made in the answer alleged: "In case it shall be established that said alleged agreement was made *588... the said alleged agreement was fully settled and satisfied by the decedent in his lifetime by the payment and delivery to, and the acceptance by, the plaintiff of property and assets in excess of $20,000...." There is no evidence in the record that the agreement was "settled and satisfied" by Mr. Good and Mrs. Bryson in his lifetime. It is true that between January 28 and June 20, 1950, Mr. Good purchased seventeen hundred fifty-four shares of stock of United Funds, Inc. valued at the time of his death at $22,556.44. These were bought in the form of declarations of trust, that is, he would designate himself as trustee and name a beneficiary to whom the stock would go at his death. These were sold to him by Mr. G.A. McDonald of Hutchinson whose business is investments and who sells stock in United Funds, Inc. Beginning on April 24, 1948 to January 28, 1950, Mr. Good bought from Mr. McDonald shares of stock in which he named his three sister as beneficiaries; Mrs. Copland, Mrs. Horning, and another sister who lived in Oklahoma City, eighteen hundred fifty-eight shares for each. When the sister in Oklahoma City died he transferred her eighteen hundred fifty-eight shares to her two surviving daughters; one-half, or nine hundred twenty-nine shares to Mrs. Avis Leatherock and Helen Allison. On January 28, 1950, he commenced to purchase shares in which Mrs. Mamie Bryson was named beneficiary and finished buying for her on July 18, 1950, having bought the total of seventeen hundred fifty-four shares. Thereafter he began buying shares in his own name without any beneficiary until he bought fifty-six hundred forty-six shares. After he married Mrs. Bessie Wills he transferred these fifty-six hundred forty-six shares to her. After his death all the shares were transferred directly to the proper beneficiaries on March 11, 1952. The witness had a conversation with Mr. Good about his purchases. He said he was purchasing Mrs. Bryson's shares because she had done as much for him as anyone in his family and he wanted her to have a similar type or similar shares. He testified, "... Mrs. Bryson brought Mr. Good to Hutchinson, I think, but she didn't come with him to my office. When I talked to Mr. Good in Lyons I don't recall any time Mrs. Bryson participated in the conversations; I don't know whether or not she did. I don't know whether or not Mrs. Bryson knew about his purchasing the stock for her. She wouldn't unless he told her. We are not allowed to tell who is trustee (beneficiary) unless they do; that's *589 why Mrs. Copland and the others didn't know until after Mr. Good's death." Mr. Bryson testified that he did not know Mr. Good had purchased any shares in which Mrs. Bryson was named as beneficiary at the time it was done, nor until about the time of Mr. Good's marriage to Mrs. Wills. There is no evidence in the record as to when, if at all, Mrs. Bryson learned that Mr. Good had bought these shares naming her as beneficiary at any time prior to the death of Mr. Good and there is no hint in the record that Mr. Good, or anyone on his behalf, ever advised Mrs. Bryson that he had purchased these shares as a substitute or in lieu of the real property he had agreed to devise to her. Much of the argument of counsel for appellant in this court is predicated upon remarks made by the court during the course of the general discussions by court and counsel on December 5, 1952, and February 2, 1953. Some of these are spoken of in the brief as findings or holdings but they are not included in the findings made or judgment rendered by the court. We have copied these at length in this opinion. The phrase "findings of fact" is defined in 53 Am. Jur., p. 786, as follows: "... Findings of fact may be defined as the written statement of the ultimate facts as found by the court, signed by the court and filed therein, and essential to support the decision and judgment rendered thereon...." In Foster v. City of Augusta, 174 Kan. 324, 256 P.2d 121, it was held: "Remarks of a trial court indicating its theory or reasoning in arriving at a judgment form no part of the judgment and cannot limit or narrow the judgment actually rendered." See, also, Shelley v. Sentinel Life Ins. Co., 146 Kan. 227, 69 P.2d 737; Pool v. Gates, 116 Kan. 195, 225 Pac. 1069; and, The State v. Frey, 111 Kan. 798, 208 Pac. 574. Since this case was argued in this court counsel for appellant have called our attention to Wyatt v. Taylor, 166 Kan. 453, 201 P.2d 647, as laying down a different doctrine. We have examined the case and find it not in point here. There are not many cases in our reports which treat of this point. In the relatively few cases in which this type of argument is relied upon it is normally ignored. In cases of this general character the judgment depends very largely upon the facts of each particular case. Some general rules may be laid down, for example, when the duties to be performed *590 by the promisee pertain to the business of the promisor and are for a definite or ascertainable time and the financial value of such services are shown by competent evidence and the promisor or his estate has money available to pay the promisee the courts normally require payment in money. While there are many cases on this point it is well illustrated in Dixon v. Fluker, 155 Kan. 399, 125 P.2d 364. When the duties to be performed by the promisee are personal to the promisor such as stay with, or to look after and care for the promisor, as in his illness and/or his old age, particularly when the time is indefinite as for the remainder of the lifetime of the promisor and where the promisee has fully performed the duties imposed upon him by the contract the courts normally require the specific performance of the contract even though that results in a financial advantage to one of the parties. There are many cases on this point but it is well illustrated in In re Estate of Boller, 173 Kan. 30, 244 P.2d 678; In re Estate of Spark, 168 Kan. 270, 212 P.2d 369; In re Estate of Hutchison, 151 Kan. 333, 99 P.2d 992; and, Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351. Reverting to the specific defenses of the answer. It is no longer contended that the contract sued upon was not made, neither is it contended that it was not carried out by the plaintiff to the full satisfaction of Mr. Good. Neither is it seriously contended that there was any settlement of the contract during the lifetime of Mr. Good. Such a settlement would have to be with the knowledge and consent of both Mr. Good and the plaintiff. They do, however, mention the contents of the will and the testimony of the scrivener. The will was written by Mr. Rubert G. Martin, a reputable attorney of Lyons. He testified, "... Mr. and Mrs. Good came into my office one afternoon, and Mr. Good stated he wanted me to draw a will. I asked him if he had decided what disposition he wanted to make of his property, and he told me he had. He said, `I have taken care of all the rest of them with bonds or trust certificates' — I have forgotten what he called them — `and I want to leave all my property to Mrs. Good.' I asked him whether he wanted to make any present disposition of any other property, and he said no, ... His mental condition was clear and concise; he definitely knew what he wanted to do and was doing, and had the mental capacity to draw a will." The will had two disposing paragraphs: "FIRST: I direct that all of my just debts, including my funeral expenses, be paid by my Executrix. *591 "SECOND: I give, devise and bequeath to my wife, Bessie R. Good, all property of which I may die seized and possessed, whether it be real, personal or mixed and wheresoever located, to be hers in fee simple absolute forever." In the third paragraph he nominated and appointed his wife, Bessie R. Good, sole executrix and directed that she be not required to give bond. The question is propounded as to how that can be reconciled with plaintiff's theory that Mr. Good had agreed to devise this property to her and that the certificates he purchased for her in United Funds, Inc. were not intended by Mr. Good as being a settlement of that contract, in view of the fact that there is ample uncontroverted evidence that Mr. Good was a man of his word. We think it can be reconciled in this way. Mr. Good no longer regarded the land in question as his property. He had definitely made the contract by which Mrs. Bryson should have it on his death. He may have considered it an obligation which he owed and was covered by the first disposing clause, in any event, that it would no longer be his property at his death and would not pass to Bessie R. Good. This interpretation is in harmony with the unquestionably high character of Mr. Good and we prefer to use it. The interpretation of the will that he intended to violate his contract with the plaintiff and give that land to his wife would impute action and motive to him, perhaps prompted by his wife, which we decline to impute to either of them. Counsel for appellant do not ask us to remand this case for a new trial generally. They respectfully state, "... nothing could be gained by requiring the parties to reintroduce their same testimony to the same judge. Instead, the trial court should be instructed regarding the pertinent legal principles, told to disregard the testimony of Mr. Bryson, and directed to reconsider the evidence already introduced herein, and to render a new decision conforming to the rules and doctrines set forth in this Court's opinion." For reasons already stated we decline to do this. We find no error in the record. The judgment of the trial court is affirmed. APPENDIX A. PETITION. "Comes now Mamie Bryson and shows to the Court that her true place of residence is 420 South Bell Street, Lyons, Rice County, Kansas. *592 "For her claim and cause of action against the estate of the above named C.A. Good, deceased, who was also known as Charles A. Good, and whose Will and estate is being probated in the above named Court and cause, petitioner, Mamie Bryson, alleges and states: "That the said C.A. Good was born about December 12th, 1869, and spent most all of his lifetime in Rice County, Kansas; that about the year 1895 he married Bertha Wills, with whom he lived as husband and wife for more than fifty years; that the said Bertha Wills Good died in the month of August, 1945, at which time she and Mr. Good had accumulated Rice County, Kansas, farm land and other property of the value of approximately a quarter of a million dollars; that C.A. Good was the sole heir at law of Bertha Good and inherited all of her estate. "That on and prior to the 18th day of October, 1945, petitioner and her family resided in their home at 420 S. Bell St., in Lyons, Kansas; about October 18th, 1945, petitioner and her husband, Eugene Bryson, sold this home to C.A. Good. "That from about the fore part of November, 1945, until school was out in the spring of 1946 Mr. Good and petitioner and her family lived in this home together, during which time he took his meals with the family and otherwise occupied the home as a member of the family; also during this period petitioner washed, ironed and mended his clothing, and on numerous occasions petitioner or her husband or both of them, either in Mr. Good's car or in the Bryson car took Mr. Good to look after his farm land and other business, and to Church and the doctor, and to his burial lot and by these and other ways treated him as a member of the family. "That about the 15th day of June, 1946 petitioner and her family moved from Lyons, Kansas to Okmulgee, Oklahoma with the intention of making their permanent home. "Petitioner further alleges that in the fore part of August, 1946 she came to McPherson, Kansas, from Okmulgee, Oklahoma to visit her husband, who was working on an oil well, as a driller, in McPherson County. About the 8th day of August, 1946 she came to Lyons, Kansas for a visit with Mr. Good. At that time Mr. Good had a lady housekeeper, who, with her young son, were living there in the home with Mr. Good. While petitioner was visiting him on the 8th day of August, 1946 the said C.A. Good made an oral offer and proposition to petitioner that if she and her family would move *593 back to his home at 420 S. Bell St., in Lyons, Kansas, and take care of him and look after him as they did when he lived with them from Nov. 1945 to June of 1946, as long as he lived, he would devise and will to her the Southeast Quarter of Section Thirty-four, Township Nineteen, Range Seven, West of the Sixth P.M. in Rice County, Kansas. Petitioner returned to McPherson and had a conversation with her husband about this offer and proposition and on the 9th day of August, 1946 she and her husband came to Lyons to see Mr. Good. Mr. Good then and there stated to petitioner and her husband that he was not satisfied with the lady housekeeper and that he needed someone to look after him and take care of him, and then and there repeated his oral offer and proposition to petitioner to the effect that if she and her husband and family would move back to his home in Lyons, Kansas and take care of him and look after him as they did when he lived with them before, as long as he lived, he would will and devise to her the Southeast Quarter of Section Thirty-Four, Township Nineteen, Range Seven, West of the Sixth P.M. in Rice County, Kansas. After talking the matter over with her husband petitioner told Mr. Good that she would accept the offer and proposition and informed him that she and her family would move back to Lyons, as soon as they could conveniently do so, and begin the performance of her part of the contract. "Petitioner further alleges that about the 25th day of September, 1946 she and her family moved from Okmulgee, Oklahoma to the home of Mr. Good in Lyons, Kansas, and began the performance of her part of the contract. He was a person who liked the comforts of congenial home life; he was seventy-six years old; he was not in good health; because of his age he was hardly able to drive his automobile; and was in almost constant need of someone to look after him. "That upon moving to the home of Mr. Good petitioner and her family immediately proceeded to do everything possible to treat Mr. Good as though he were a member of the family. During all of the remainder of his lifetime until his remarriage on the 31st day of March, 1951, petitioner washed, ironed and mended his clothing; prepared his meals, which he took along with the family; served a birthday cake and birthday dinner, on each of his birthdays, for the family and his relatives and friends; provided sleeping quarters and food for his out of town relatives and friends when they visited him; *594 at least two times each week petitioner or her husband or both went with him to see about his farms and other business; nursed him when he was sick on numerous occasions; assisted him in keeping track of his business and income and preparing his income tax returns; took or went with him to church whenever he felt like going; consulted with him about all of his business matter, including the matter of distributing a portion of his estate to his relatives and relatives of his deceased wife, Bertha; nursed him in the home while he was convalescing, as a result of two surgical operations; took him to the Lyons, Kansas, cemetery on numerous occasions and assisted him in rearranging the headstone on his burial lot and in moving the body of his deceased sister to his burial lot; took him to Wichita, Kansas, in the summer of 1950, where he had an operation on one of his eyes, helped nurse and care for him while he was in the hospital following the operation, brought him home and nursed and took care of him while he was convalescing. "Petitioner further alleges that about the middle of December, 1950, she learned that Mr. Good was courting one Bessie Wills, who resided in Hutchinson, Kansas, and who was the widow of John Wills, deceased, late of Rice county, Kansas, and a sister-in-law, by marriage of Mr. Good. That on several occasions thereafter petitioner or her husband or both of them took Mr. Good to Hutchinson to the home of Mrs. Wills and at a stated time would return to the home of Mrs. Wills and bring Mr. Good back to Lyons; and when Mr. Good desired to go to Hutchinson by bus, to visit Mrs. Wills, petitioner or her husband or both of them would take Mr. Good to the bus station in Lyons and meet him at the bus station later in the same day and take him home; on several occasions helped entertain Mrs. Wills when she came to the home at 420 S. Bell St., in Lyons, to visit Mr. Good. "On February 15, 1951, petitioner and her husband bought back from Mr. Good the home located at 420 S. Bell, in Lyons, Kansas. "About the middle of January, 1951 petitioner and her family learned that Mr. Good and Mrs. Wills were going to get married. The wedding date was set for March 31st, 1951. Mr. Good stated to petitioner and her family that he wished to get married in their home. Shortly before the time for the wedding petitioner made several trips to Hutchinson and brought back to Lyons Mrs. Wills' clothing, canned goods, lamps, plants and other personal effects, storing part of them in the home at 420 S. Bell and taking the rest to a room Mrs. Wills had rented in the home of Mrs. Barnes. *595 "Petitioner further alleges that she prepared all of the details for the wedding in the home; she bought the flowers and the wedding cake and prepared and served the wedding supper. Mr. Good and Mrs. Wills were married in the home, by Reverend Smith of the Lyons Methodist Church, on March 31st, 1951; the only other persons present being petitioner and her family, Mr. Bryson having come from Medicine Lodge, Kansas, to attend the wedding. After the wedding petitioner rearranged her furniture and she and her family moved to the basement apartment in the home while Mr. and Mrs. Good commenced building a new home on East Avenue South in Lyons. On numerous occasions after the wedding petitioner took Mr. and Mrs. Good on trips around the county and otherwise looked after Mr. Good in any way that she could. "Petitioner further alleges that in addition to the facts as set out above she and her family bestowed upon Mr. Good all of the love, affection, attention and care that a child should give a parent or near relative, from September 1946 until his death. That petitioner has fully and completely performed all of her part of the oral contract and agreement made between she and Mr. Good on the 9th day of August, 1946, as set out above. "Petitioner further alleges that the said C.A. Good died on the 27th day of June, 1951. That shortly prior to his death and on the 17th day of April, 1951, he made and executed a last Will and Testament by the terms of which he devised and bequeathed all of his estate to his wife, Bessie Wills Good. That said last Will and Testament has been admitted to Probate and is now being Probated in the above named Court and Cause. Said last Will and Testament is made a part of this pleading by reference. "That by the terms of said Will the said C.A. Good failed to will and devise to petitioner the above described quarter section of land and failed to fulfill his part of the contract and agreement between he and this petitioner, as set out above. That Bessie R. Good, as executrix of the estate of the said C.A. Good, deceased, is now and has been since the death of Mr. Good in the possession of the above described land and has received and collected rents and profits therefrom, the amount of such rents and profits being unknown to petitioner. "Wherefore and by reason of all of which petitioner prays for an order and judgment of this Court decreeing a specific performance of the contract between petitioner and C.A. Good, as set out *596 above; that petitioner be adjudged to be the owner and entitled to the immediate possession of the Southeast Quarter of Section Thirty-Four, Township Nineteen, Range Seven, West of the Sixth P.M. in Rice County, Kansas; that the same be adjudged to be no part of the estate of C.A. Good, deceased, and that Bessie R. Good be adjudged to have no right, title, equity or interest therein; that Bessie R. Good executrix be required to account to this Court for all rents and profits received therefrom since the 27th day of June, 1951, and that she be ordered to pay to this petitioner all such rents and profits so received; and that petitioner have such other and further relief as may be just and equitable, including the costs of this proceeding." APPENDIX B ANSWER "Comes now Bessie R. Good and for her answer to the Petition filed herein by Mamie Bryson, said Bessie R. Good admits and states that she is the duly appointed, qualified and acting Executrix of the Estate of C.A. Good, deceased, and that C.A. Good died on the 27th day of June, 1951, and that his estate is being probated in the Probate Court of Rice County, Kansas. "Said Executrix further admits the place of residence of said Mamie Bryson, the petitioner; the date and place of birth of the decedent, C.A. Good; marriage to Bertha Wills, and the death of Bertha Wills Good. "The executrix further admits that Mamie Bryson and her husband bought back from Mr. Good, the home which he owned at 420 S. Bell in Lyons, Kansas, and that the date of said purchase was on February 15, 1951, and the Executrix further admits the date of marriage between C.A. Good and Bessie R. Wills. "The executrix further answer to the Petition of Mamie Bryson denies each and every allegations of fact contained in said Petition except such as heretofore admitted. "Executrix specifically denies that C.A. Good ever made any agreement with Mamie Bryson to will and devise to her the Southeast Quarter (SE 1/4) of Section Thirty-Four (34), Township Nineteen (19) South, Range Seven (7), West of the 6th P.M. in Rice County, Kansas, as alleged by the petitioner, Mamie Bryson. "In case it shall be established that said alleged agreement was made between the plaintiff, Mamie Bryson, and the decedent, C.A. *597 Good, which the Executrix respectfully denies, the said alleged agreement was fully settled and satisfied by the decedent in his lifetime by the payment and delivery to, and the acceptance by, the plaintiff of property and assets in excess of $20,000; and as a result thereof no liability exists by virtue of the said alleged agreement. "WHEREFORE, the Executrix prays that the petitioner, Mamie Bryson, take nothing by her petition, and that the costs of this proceeding be assessed against the petitioner, Mamie Bryson, and that the Executrix have such further and additional relief as to the Court may appear just and equitable."

United States Court of Appeals FOR THE EIGHTH CIRCUIT _____________ No. 00-3834EA _____________ Steve Brown, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Arkansas. Fifth Judicial District Drug * Task Force, * * Appellee. * ___________ Submitted: May 31, 2001 Filed: July 2, 2001 ___________ Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG, Circuit Judges. ___________ RICHARD S. ARNOLD, Circuit Judge. Steve Brown, the "coordinator" for the Fifth Judicial District Drug Task Force, brought this case under the Fair Labor Standards Act, claiming that the Task Force, his employer, had failed to pay him for overtime. The complaint alleged the following about the defendant: The Defendant is a multi-governmental unit organized under the laws of the State of Arkansas as an interlocal  cooperative consisting of Pope County, Arkansas, Franklin County, Arkansas, and Johnson County, Arkansas, together with the Cities of Russellville and Clarksville. Complaint ¶ 3, Joint Appendix (J. A.) 1. The defendant filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that it is not a legal entity capable of being sued. The plaintiff did not respond to this motion. The District Court1 granted the motion and dismissed the complaint. The plaintiff appeals. None of the arguments asserted by the plaintiff on appeal was made below. Accordingly, our review is for plain error. We hold that there was no plain error (if error there was at all), and affirm. The outcome of this case depends on the meaning of Fed. R. Civ. P. 17(b), which provides, in pertinent part, as follows: Capacity to Sue or be Sued . . . [C]apacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States . . .. The District Court based its holding on the first part of the rule: Defendant argues, and plaintiff does not dispute, that it is neither a natural nor an artificial person with a separate legal existence and it has not been granted statutory 1 The Hon. Susan Webber Wright, Chief Judge, United States District Court for the Eastern District of Arkansas. -2-  authority to sue or be sued; rather, it is an unincorporated, intergovernmental, multijurisdictional task force established to investigate and prosecute drug offenses in several counties together with the cities of Russellville and Clarksville. Steve Brown v. Fifth Judicial District Drug Task Force, No. 4:00-CV-00647-SWW (E.D. Ark., Oct. 12, 2000) (order). On appeal, the plaintiff does not contest the reasoning of the District Court, as far as it went. He does assert that the Fifth Judicial District Drug Task Force was created under an Arkansas statute, Ark. Code Ann. § 25-20-101 et seq., the Interlocal Cooperation Act. The complaint did not so allege; neither did the plaintiff at any time cite this statute in the District Court. The defendant, however, does not appear to dispute that it was in fact organized under the law cited, so we proceed under that assumption. The difficulty, however, from the plaintiff's point of view is that the statute itself leaves it open to the governmental units who decide on joint action to establish a separate legal entity, or not, to conduct the joint or cooperative undertaking, according as their agreement may provide. The record does not contain the text of this agreement. Indeed, the record is sparse, to say the least. It contains only four documents, the complaint, the defendant's motion to dismiss, the defendant's brief in support of the motion to dismiss, and the order of the District Court dismissing the complaint. We have to believe that if the agreement among these three counties and two cities in fact did establish a separate legal entity, the plaintiff would have brought this fact to the attention of the District Court, or, in any event, of this Court. This has not occurred. Instead, the plaintiff relies upon paragraph (1) of Rule 17(b). The defendant Task Force, it is argued, is an "unincorporated association, which has no such capacity by the law of such state" but "may sue or be sued in its common name for the purpose -3- of enforcing . . . against it a substantive right existing under . . . laws of the United States . . .." This case arises under the Fair Labor Standards Act, so a portion of this provision is satisfied. But is the Task Force a "unincorporated association," as that phrase is used in the Rule? In literal terms, it is: it is not incorporated, and it is a grouping of governmental units for a common purpose, certainly within the outer limits of the ordinary meaning of the word "association." So far, the plaintiff's theory is plausible. But is there "plain" error? United States v. Olano, 507 U.S. 725, 734 (1993), defines plain error as follows: The second limitation on appellate authority under Rule 52(b) is that the error be "plain." "Plain" is synonymous with "clear" or, equivalently, "obvious." . . . At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law. (Citations omitted.) Defendant argues that the "unincorporated association" provision applies only to private parties, not governmental ones. A labor union, for example, is an unincorporated association that can be sued under federal law. United Mineworkers v. Coronado Coal Co., 259 U.S. 344 (1921). So is a local telephone cooperative. Schmidt v. Peoples Telephone Union of Maryville, Missouri, 138 F.2d 13 (8th Cir. 1943). There is authority, however, that the questions of legal or juridical existence and capacity to sue and be sued are distinct, and that a group of persons working together for a common purpose must first be found to have legal existence before the question of capacity to sue or be sued can arise. Roby v. The Corporation of Lloyd's, 796 F. Supp. 103, 109-10 (S.D. N.Y. 1992), aff'd, 996 F.2d 1353 (2d Cir.), cert. denied, 510 U.S. 945 (1993). This case holds that Lloyd's of London, a group of -4- syndicates active in the business of insurance, is not an "unincorporated association" within the meaning of Fed. R. Civ. P. 17, because it has no legal existence apart from the individuals who make it up. " '[U]nincorporated association' is a term of art — every group that is not a corporation or partnership is not automatically an unincorporated association." Id. at 110. In addition, authorities more directly in point appear to be uniform in holding that drug task forces similar to the defendant in this case are not separate legal entities subject to suit. Eversole v. Steele, 59 F.3d 710 (7th Cir. 1995); Hervey v. Estes, 65 F.3d 784, 792 (9th Cir. 1995); Dillon v. Jefferson County Sheriff's Department, 973 F. Supp. 626 (E.D. Tex. 1997); Alexander v. City of Rockwall, No. CIV. A. 3:95-CV- 0489, 1998 WL 684255 (N.D. Tex., Sept. 29, 1998). In these circumstances, it seems to us that the District Court committed no error. In any case, the error, if there was one, is certainly not "plain." Accordingly, the judgment of the District Court, dismissing this complaint,2 must be and is Affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. 2 Perhaps the action could be re-filed directly against the five governmental entities whose agreement created the Task Force. We express no view on that question. -5- 

THE THIRTEENTH COURT OF APPEALS 13-16-00346-CV Fatih Ozcelebi, M.D. v. K. V. Chowdary, M.D. Individually and D/B/A Valley Gastroenterology Clinic, P.A.; Valley Gastroenterology Clinic P.A. On Appeal from the County Court at Law No. 7 of Hidalgo County, Texas Trial Cause No. CL-29,133-G JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged against appellant. We further order this decision certified below for observance. September 13, 2018 

T.C. Summary Opinion 2003-113 UNITED STATES TAX COURT THOMAS J. NORTHEN, JR., AND SHIRLEY COX, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 5020-02S. Filed August 13, 2003. Shirley Cox, pro se. Rebecca S. Duewer, for respondent. PAJAK, Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. Unless otherwise indicated, section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority.  - 2 - Respondent determined a deficiency in petitioners’ 1998 Federal income tax in the amount of $13,854. After a concession by petitioners, the issue this Court must decide is whether petitioner Shirley Cox (petitioner) is entitled to deduct the cost of removing and replacing the roof-covering material and related expenses on her commercial building. Some of the facts in this case have been stipulated and are so found. Petitioners resided in Belmont, California, at the time they filed their petition. During 1998, petitioner owned a one-half interest in a commercial building (building) at 590 Taylor Street, Belmont, California. The building contains 23,000 square feet of offices and a warehouse. The building was rented to Environmental Care Inc. (Environmental). One of Environmental’s jobs was to provide all the Christmas decorations for the World Trade Center in San Francisco, California. During the year in issue, the roof leaked, damaging Environmental’s materials. Environmental’s personnel complained to petitioner and even threatened legal action. Petitioner hired Armstrong Roofing (Armstrong) to stop the leaks and install a foam roofing system. The acting roof superintendent (superintendent) examined the roof and found it “basically * * * intact” except for one location “where water was  - 3 - coming through, almost like a river.” Twenty eight sheets of plywood on the roof were replaced due to dry rot. The superintendent explained that it was not necessary to remove the tar and gravel from the roof. However, Armstrong’s company policy was to remove all tar and gravel down to the plywood roof, spray the primer on, and top it off with a spray polyurethane foam coating. There were no structural changes made to the roof. The entire roof was sprayed to protect Armstrong against any potential liability in the future. The leaks were located under the rooftop air conditioning unit. In order to gain access to that area and stop the leaks, petitioner’s contractors had to move and replace the air conditioner with a crane, place supports under the air conditioner when it was replaced, disconnect and reconnect the gas lines, and install new electrical conduits. Respondent disallowed a repair expense deduction of $52,880, allowed a $656 depreciation deduction, and made an automatic adjustment. Respondent determined that $3,572 of the $52,880 had not been substantiated and that the remaining $49,308 was a capital expenditure. At trial, petitioner did not address the substantiation issue, and on brief petitioner conceded this issue. Petitioner claims that the roof-covering expense incurred is a deductible expense; respondent argues that it is a capital  - 4 - expenditure. Section 162(a) allows the deduction of all ordinary and necessary expenses paid or incurred during the taxable year in carrying on a trade or business. The cost of incidental repairs to property is deductible if those repairs neither materially add to the value of the property nor appreciably prolong the life of the property. Sec. 1.162-4, Income Tax Regs. Repairs in the nature of replacements, to the extent that they arrest deterioration and appreciably prolong the life of the property, must generally be capitalized and depreciated in accordance with section 167. Id. Further, section 263(a) provides that no deduction shall be allowed for permanent improvements or betterments made to increase the value of any property. The issue in this case has been considered previously by this Court in Oberman Manufacturing Co. v. Commissioner, 47 T.C. 471 (1967). In that case, the Court held that the cost of removing and replacing roof-covering material (as well as the cost of inserting an expansion joint in the roof) was a deductible expense. The Court observed that “it is necessary to take into consideration the purpose for which an expenditure is made in order to determine whether such expenditure is capital in nature or constitutes a current expense.” Id. at 482. The Court in Oberman Manufacturing Co. further observed that the taxpayer’s only purpose in having the work done was to prevent leakage and  - 5 - keep the leased property in an operating condition over its probable useful life and not to prolong the life of the property, increase its value, or make it adaptable to another use. Id. There was no replacement or substitution of the roof. Id. Here, as in Oberman Manufacturing Co., there was no replacement or substitution of the roof. Petitioner’s only purpose in having the work done to the roof was to prevent the leakage and keep her commercial property in operating condition and not to prolong the life of the property, increase its value, or make it adaptable to another use. Petitioner’s expenditure merely restored her commercial property to one with a roof free of leaks. That is why she hired Armstrong and the other contractors. The reason why Armstrong sprayed the entire roof with foam was to protect Armstrong against future liability. On this record, we hold that petitioner is entitled to deduct the expenditure in issue. Reviewed and adopted as the report of the Small Tax Case Division. Decision will be entered under Rule 155. 

13 N.Y.3d 909 (2009) 895 N.Y.S.2d 324 PEOPLE v. PRESCOTT. Court of Appeals of New York. December 28, 2009. Application in criminal case for leave to appeal denied. (Ciparick, J.).

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs May 8, 2001 STATE OF TENNESSEE v. KATHLEEN MALLEY Appeal from the Criminal Court for Shelby County No. 98-11653 Joseph B. Brown, Jr., Judge No. W2000-01064-CCA-R3-CD - Filed July 16, 2001 The Defendant, Kathleen Malley, entered a guilty plea to theft of over $60,000, a Class B felony, in exchange for an agreed sentence of eight years incarceration. Following a sentencing hearing to determine the manner of service of that sentence, the Defendant was ordered to serve six months in jail followed by twelve years of probation. She was also ordered to pay $100,000 in restitution. In this appeal as of right, the Defendant argues that the trial court erred by refusing to grant her full probation. We find no error. Thus, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN, J. and L.T. LAFFERTY, SR.J., joined. Leslie I. Ballin, Memphis, Tennessee, for the appellant, Kathleen Malley. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The facts presented at the Defendant’s guilty plea and sentencing hearings establish that the Defendant was employed as a bookkeeper for John R. Thompson, who owned a real estate business. She was hired in 1984 by Greta Thompson, John Thompson’s wife. In 1997, the Thompsons began noticing irregularities in their books. Following an investigation into the irregularities, the Thompsons discovered that the Defendant had been stealing money from the company. According to Ms. Thompson, the irregularities dated back to sometime in 1992. During this time, the Defendant had been taking payroll checks and making them payable to herself. She had also taken money from the escrow account. Although the Thompsons presented only about $60,000 in forged checks, Ms. Thompson believed that the actual loss was more than $200,000. The Thompsons asserted that they had to refinance their office building in order to stay in business, and that if they had not had good credit, they would have been driven completely out of business. Mr. Thompson testified that he was particularly troubled by the Defendant’s violation of his thirteen-year trust. Because of the stress of the situation, Mr. Thompson has been taking medication for depression. He testified that the Defendant never even apologized for her actions. According to Ms. Thompson, all of the people working for the business felt sorry for the Defendant and tried to help her through difficult times. Ms. Thompson testified that the Defendant moved into a new house with a $1,400 per month house payment, that she sent her children to private school, and that she bragged at work about her “wonderful” husband. However, two years before they discovered that she was stealing money, the Defendant filed for bankruptcy. Ms. Thompson said that the Defendant made no effort to move into a smaller house or otherwise reduce her bills. On one occasion the office took up a collection for the Defendant because the Defendant reported that her purse had been stolen and that it contained $1,400 in cash. On another occasion Mr. Thompson loaned the Defendant money for two house payments, which she never repaid. The Defendant admitted stealing money from her employer, John F. Thompson, but she could not remember when she started taking money or how much she took. She testified that she took the money to try to maintain a normal life for her children. She explained that she made only about $20,000 per year. Her husband owned a business which failed, and he quit helping her pay the bills. She eventually filed for bankruptcy in an effort to keep their new home. The Defendant testified that she thought she would be able to pay the money back after she and her husband received a settlement from a court case involving her husband’s business, but the lawsuit was unsuccessful. The Defendant testified that she had a nervous breakdown as a result of her personal problems, and her two teenage daughters have developed emotional problems as well. The Defendant could not explain to the court why filing for bankruptcy did not end her financial difficulties. She testified that she still needed money to take care of her children and her mother. At the time of sentencing the Defendant was fifty-two years old. She is a high school graduate with some college studies. She reported a history of steady employment. The Defendant underwent a psychological evaluation as part of her pre-sentence evaluation. The psychologist found that the Defendant “may have slightly overstated the extent of her difficulties, possibly for the purpose of gaining assistance,” however the psychologist also found that “[i]ncarceration may be detrimental for [the Defendant] in light of her current age and psychiatric symptomatology.” Following the sentencing hearing, the trial court sentenced the Defendant to serve her eight- year sentence in split confinement. At the time of sentencing, the Defendant had served forty-two days in jail. The trial court ordered her to spend an additional six months in jail, followed by twelve years probation. In so doing, the trial court stated, Now, The Court feels . . . considering violation of trust and that the defendant is responsible for this - - this is just egregious, she’s gutted this business, ruined it and caused some people who loved her and came to trust her, rely upon her and befriended her to be grievously harmed. -2-  I have read the Psychological Report, all that’s well and good. She has mental health issues which are severe, however, it’s a matter of character. She seeks to acquire attention and such like for her problems, but there are ways that are acceptable and ways that are not acceptable. The Defendant asserts on appeal that she should have been granted full probation instead of split confinement. When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875 S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988). If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). A defendant is eligible for probation if the actual sentence imposed upon the defendant is eight years or less and the offense for which the defendant is sentenced is not specifically excluded by statute. Tenn. Code Ann. § 40-35-303(a). Probation is to be automatically considered as a sentence alternative for eligible defendants; however, the burden of proving suitability for probation rests with the defendant. Id. § 40-35-303(b). In determining whether to grant probation, the court must consider the nature and circumstances of the offense; the defendant’s criminal record; his or her background and social history; his or her present condition, including physical and mental condition; the deterrent effect on the defendant; and the likelihood that probation is in the best interests of both the public and the defendant. See Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974); State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999). If the court determines that a period of probation is appropriate, it shall sentence the defendant to a specific sentence but then suspend that sentence and place the -3- defendant on supervised or unsupervised probation either immediately or after the service of a period of confinement. See Tenn. Code Ann. §§ 40-35-303(c), -306(a). We first note that because the Defendant was convicted of a Class B felony, she is not entitled to a presumption that she is a favorable candidate for alternative sentencing. See id. § 40-35- 102(6). Nevertheless, because the actual sentence imposed upon the Defendant is eight years, she is eligible for probation. See id. § 40-35-303(a). The Defendant asserts that she should have been granted full probation because she has no prior criminal history and she has a good potential for rehabilitation. She asserts that she is a college-educated fifty-two-year-old woman with two children to support; that she is willing and able to make restitution payments; and that she has mental health issues which would be aggravated by further incarceration. While we agree with the Defendant that these characteristics support a period of probation, we believe that the trial court considered these factors in its sentencing decision. In spite of these factors favoring probation, the trial court was clearly troubled by the nature of the offense and the Defendant’s attitude concerning her actions. The Defendant occupied a position of trust as a bookkeeper for a real estate agency, and she systematically abused that position of trust during a period of several years by stealing money from the company. She was convicted of a Class B felony, which has a sentence range of eight to twelve years for a Range I, standard offender. See id. § 40-35-112(a)(2). Had the Defendant not received the minimum sentence in the range, she would not have even been eligible for probation. See id. § 40-35-303(a). Although the facts and circumstances of the offense in this case are not so egregious as to outweigh all the other factors favoring partial probation, we conclude that they are “sufficiently reprehensible to deny full probation.” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Accordingly, we conclude that the trial court did not err or abuse its discretion by denying the Defendant full probation. The judgment of the trial court is affirmed. ___________________________________ DAVID H. WELLES, JUDGE -4- 

252 F.2d 109 COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.ESTATE of Harry A. ELLIS, Deceased, Helen R. Ellis, Bernard B. Largman and Dan Denenberg, Executors, Respondents. No. 12248. United States Court of Appeals Third Circuit. Argued November 21, 1957. Decided January 31, 1958. Marvin W. Weinstein, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Ellis N. Slack, Harry Baum, Attorneys, Department of Justice, Washington, D. C., on the brief), for petitioner. Herman H. Krekstein, Philadelphia, Pa. (Gerald Krekstein, Merle A. Wolfson, Philadelphia, Pa., on the brief), for respondent-appellee. Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges. BIGGS, Chief Judge. 1 On this review we are called upon to determine the application of Section 812 (e) (1) (F), and, alternatively, that of Section 812(e) (1) (A) of the Internal Revenue Code of 1939,1 in respect to federal estate taxes. Ellis, the decedent, a resident of Pennsylvania, died testate on July 30, 1951, survived by his wife, Helen. His will provided in pertinent part, as follows: 2 "All the rest, residue and remainder of my estate, real and personal, more particularly my interest in the partnership by and between Albert E. Hughes, Jr., and myself, trading as Philadelphia Distributors, I give, devise and bequeath to my trustees hereinafter named, in trust, to hold, invest and reinvest the same, to collect the income, and, after paying all expenses incident to the management of the trust, to pay over the net income to my beloved wife, Helen R. Ellis, for and during the term of her natural life, in monthly installments. I direct that there be paid to my wife not less than the sum of Five Thousand Dollars ($5,000.00) per annum, and should the income be less than that sum, I direct that the deficiency shall be made up out of the principal of the trust. I further direct that, should my dear wife, Helen R. Ellis, require sum or sums in excess of Five Thousand Dollars ($5,000.00) per annum, that she, and she alone, shall be the judge of how much shall be required and the same shall be paid to her monthly, and should the said sum in excess of Five Thousand Dollars ($5,000.00) be less [more?] than the income, I direct that the deficiency be applied against the principal of my trust; that upon the death of my wife, this trust shall terminate and I give, devise and bequeath one-half the principal, absolutely, unto the estate of my beloved wife, Helen R. Ellis, and the other half unto my dear children, Anita C. Denenberg and Marjorie J. Largman, and their heirs, share and share alike." 3 The will contained the following spendthrift provision: 4 "I direct that all legacies and all shares and interests in my Estate, whether principal or income, while in the hands of my Executors or Trustees, shall not be subject to attachment, execution or sequestration, for any debt, contract, obligation or liability of any legatee or beneficiary, and shall not be subject to pledge, assignment, conveyance or anticipation and the personal receipt by such legatee or beneficiary shall be the sufficient and only discharge of my Executors or Trustees." 5 Mrs. Ellis elected to take under the will and the estate was distributed in accordance with its terms. The Commissioner disallowed the claimed marital deduction, and the Tax Court three judges dissenting, overruled the Commissioner's determination, holding that the bequest qualified for the marital deduction. 26 T.C. 694. 6 The pertinent provisions of Section 812(e) are set out below.2 7 We will now discuss the theories upon any one of which the taxpayers insist they are entitled to prevail. 8 (1) The Taxpayers' Contention Under Section 812(e) (1) (F). The marital deduction provisions according to the Report of the Senate Committee on Finance (1948-1 Cum.Bull. 305-06, 332 et seq.) was enacted in order to give to estates of decedents in common law states the same favorable treatment, as nearly as might be effected, as that which is accorded to estates of decedents in community-property states. The marital deduction may be allowed in an amount equal to the value of any interest in property which passes from the decedent to his surviving spouse to a maximum of 50 percentum of the value of the adjusted gross estate, subject to certain limitation. Subparagraph (A) of Section 812(e) (1) sets out the basic rule for the marital deduction which may be an amount equal to the value of any property which passed from the decedent to the surviving spouse to the extent that that interest is included in determining the value of the decedent's gross estate. But subparagraph (B) qualifies the operation of the rule set out in subparagraph (A) because it disallows the marital deduction where, by lapse of time, or on the occurrence of an event or contingency, or on the failure of an event or contingency to take place, the interest going to the surviving spouse will terminate. 9 If, however, subparagraph (B) be read literally it is obvious that a life estate to the surviving spouse, coupled with a general power of appointment, by deed or will with a devise over in the event of a failure to appoint, would fail to meet the test provided for the marital deduction by the subparagraph. Subparagraph (F) was enacted to provide for the marital deduction when there is such a transfer. Subparagraph (F) creates an exception to the terminable interest provisions of subparagraph (B). This appears from the legislative history of the statute. The Report of the Senate Committee on Finance, id. supra, at p. 342 states: "These provisions have the effect of allowing a marital deduction with respect to the value of property transferred in trust by or at the direction of the decedent where the surviving spouse, by reason of her right to the income and a power of appointment, is the virtual owner of the property. This provision is designed to allow marital deduction for such cases where the value of the property over which the surviving spouse has a power of appointment will (if not consumed) be subject to either the estate tax or the gift tax in the case of such surviving spouse." 10 The Tax Court lays much emphasis, 26 T.C. at page 697, on the portion of the Senate Report last quoted and particularly on its final sentence. The Court also emphasized the provisions of Section 811(f) (2) (3) (A) of the Internal Revenue Code of 1939, relating to the ascertainment of the gross estate, and quoted Treasury Regulations 105, Section 81.24, relating to property subject to power of appointment by the decedent: for example, subparagraph (2): "[I]f a transfer in trust provides that the beneficiary may appropriate or consume the principal of the trust, such power to consume or appropriate is a power of appointment * * * ", but also subparagraph (3): "A power to consume, invade, or appropriate property for the benefit of the decedent which is limited by an ascertainable standard * * * shall not be deemed a general power of appointment * * * [and] A power to consume, invade, or appropriate property for comfort, pleasure, desire, or happiness is not a power limited by an ascertainable standard." 11 The Tax Court also quoted Treasury Regulations 105, Section 81.47a, relating to bequests to surviving spouse, setting out the five conditions prerequisite to the applicability of subparagraph (F). It is conceded, we believe, that the fourth condition is pertinent to the instant review, that "The power must be exercisable by * * * [the surviving spouse] alone, and in all events.". The third condition is also pertinent. It provides that "The spouse must have the power to appoint the entire corpus free of the trust, exercisable in her own favor or that of her estate * * *." 12 Ellis's will left the residue of the estate in trust, all income therefrom being payable to his widow for life. The will granted Mrs. Ellis the power to invade the corpus if she should so "require", "she and she alone to be the [sole] judge of how much shall be required * * *." The Tax Court construed the bequest and interpreted the will as giving Mrs. Ellis an unlimited power to consume the corpus. It also agreed with the respondents that the value of any part of the trust corpus remaining unconsumed at Mrs. Ellis's death would be includible as a part of her estate for the purposes of estate tax, relying largely on the legislative history which we have cited, on Section 811(f) (2) (3) (A), and Treasury Regulations 105, Section 81.24. 13 Now it will be observed immediately, first, that Mrs. Ellis under the will, as the surviving spouse, was not given the power to appoint the entire corpus free of the trust. Subparagraph (F) of Section 812. She possessed under the will the power to invade corpus but on her death the trust terminated and one-half of the remaining principal, whether or not the corpus was invaded, passed absolutely to her estate and the other half was given outright to the children. It is, of course, true and it is conceded that the power of the surviving spouse must be viewed as of the date of the decedent's death in determining whether it is exercisable "in all events" within the meaning of subparagraph (F). Starrett v. Commissioner of Internal Revenue, 1 Cir., 1955, 223 F.2d 163, 166. It is therefore apparent that if Mrs. Ellis did not consume the whole of the estate, one-half of the residual corpus would go to the children. If she had the "unlimited power to invade" referred to in Treasury Regulations 105, Section 81.47a, we would hold that the residuary estate, by the terms of subparagraph (F) and the provisions of the Treasury Regulation cited, would be entitled to the benefit of the marital deduction. We come then to the issue as to what was the exact nature of the power given Mrs. Ellis over the residuary estate during her lifetime. 14 The law of Pennsylvania must be applied to determine what was the nature of the power Mrs. Ellis possessed. Morgan v. Commissioner, 1939, 309 U.S. 78, 626, 60 S.Ct. 424, 84 L.Ed. 585, 1035; Helvering v. Stuart, 1942, 317 U.S. 154, 63 S.Ct. 140, 87 L.Ed. 154; Brodrick v. Gore, 10 Cir., 1955, 224 F.2d 892. We think that there can be no doubt that under that law the power to "consume" the corpus of the estate for herself was one to be exercised by her "in good faith", In re Rumsey's Estate, 1926, 287 Pa. 448, 451, 135 A. 119, 120 and "honestly and fairly", Zumbro v. Zumbro, 1918, 69 Pa.Super. 600, 603. The courts of Pennsylvania have demonstrated watchfulness to make sure that the donee of a power does not exercise it to deplete the estate "for the mere purpose of defeating the testator's intention or of preferring certain heirs or beneficiaries." Zumbro v. Zumbro, supra, 69 Pa.Super. at page 603. In Degenkolv v. Daube, 1941, 143 Pa.Super. 579, 586, 18 A.2d 464, 467, the Superior Court of Pennsylvania said that "under general principles of a life tenant, with power to consume, may not give the property away * * * [T]he plain effect of the gift in the present case would be to defeat the clear intent of the testator. * * *" In Re Tyson's Estate, 1899, 191 Pa. 218, 226, 43 A. 131, 133, the Supreme Court of Pennsylvania stated: "The extent of the widow's consumption of the estate was within her own control. Her decision was without appeal, but it must have been honestly reached in accordance with the purpose the testator intended, and not merely colorable to defeat his will. She had power to carry out his intentions by sale, transfer, and consumption of the proceeds in such a way as to leave nothing at her death. But a transfer with intent not to consume for herself, but to preserve for others after her death, and to change the beneficiaries after her [death] from those chosen by her husband to others of her own selection, would be a fraud on the testator and his will." It seems clear that Mrs. Ellis under the terms of the will did not possess and "unlimited" power to invade the corpus or appoint the corpus to herself as unqualified owner. Under the circumstances we are of the opinion that Mrs. Ellis's life interest coupled with her power to consume the corpus could not enlarge her estate into one equivalent to a fee simple. The decedent had named remaindermen to take one-half of the unconsumed corpus at her death and left her the other half for the benefit of her estate. Chesnut v. Chesnut, 1930, 300 Pa. 146, 151 A. 339, 75 A.L.R. 66. It therefore seems clear that the whole of the residuary estate cannot qualify for the marital deduction under the provisions of subparagraph (F) for she did not possess the power to appoint the corpus by will or during her life and "in all events." Cf. Estate of Pipe v. Commissioner, 2 Cir., 1957, 241 F.2d 210. 15 In so stating we are not unmindful of the legislative history of the marital deduction and the purpose for which it was enacted. But it appears that Congress looked to an absolute ownership of the surviving spouse in a community-property state as the test and that anything less should not be granted the deduction unless it comes squarely within a strict construction of subparagraph (F). 16 2(a) The Taxpayers' Contention Under Section 812(e) (1) (A). (a) The taxpayers' first contention under this heading is that at least one-half of the value of the residual bequests qualifies for the marital deduction under Section 812(e) (1) (A) of the Internal Revenue Code of 1939. The Tax Court did not pass upon this contention for under its disposition of the case this was unnecessary. 17 Under this point we must deal with the spendthrift provision of the trust, quoted above. The Pennsylvania courts have held that generally where a life interest in trust and a remainder interest in fee unite in a single person the interest will merge into a resulting absolute interest in fee in the holder of the several estates. In re Conley's Estate, 1900, 197 Pa. 291, 47 A. 238; Sharpless' Estate, 1892, 151 Pa. 214, 255 A. 44. 18 We believe that this is true even where a partial life interest meets a remainder, or a partial remainder, meets a life interest. In re Arnold's Estate, 1915, 249 Pa. 348, 94 A. 1076, and In re Conley's Estate, supra. The taxpayers contend that if it were not for the spendthrift clause of the will there could be no question as to the absolute nature of Mrs. Ellis's interest in one-half of the residuary bequest and that even where there is a spendthrift provision in a trust there can be a merger of two estates into an absolute fee if it was not the intent of the testator to preserve or shield the wife from her improvidence or incompetence by the spendthrift provisions. We cannot agree. The Pennsylvania courts jealously uphold spendthrift trusts and see to it that the will of the testator is given effect as he expressed it. In re Bosler's Estate, 1954, 378 Pa. 333, 107 A.2d 443, 444. In the cited case the Supreme Court of Pennsylvania stated categorically that "A life estate under a spendthrift trust will not coalesce or merge with an estate in remainder," citing In re Moser's Estate, 1921, 270 Pa. 217, 113 A. 199. 19 (b) The Taxpayers' Contention under the General Application of Section 812. The taxpayers' next contention is that the marital deduction is allowable under the general rule of Section 812 to the extent of one-half of the value of the trust created as an "estate trust".3 The petitioner contends that since on Mrs. Ellis's death a portion of the trust, one-half of the corpus remaining unconsumed will pass to the children, Mrs. Ellis's interest is a terminable one. In this the petitioner is in error. A terminable interest is defined in subsection (B) as one which will terminate or fail upon the lapse of time, or on the occurrence of an event or a contingency, or on the failure of an event or contingency to occur. A marital deduction will be denied if (1) there is a terminable interest, and (2) if any other party shares in that terminable interest with the surviving spouse. Thus, although for the disallowance of the marital deduction there must be a sharing of the terminable interest,4 it cannot be said properly that because the widow shares an interest in the whole corpus of a trust that this alone can make a severable non-terminable interest terminable.5 Mrs. Ellis is the recipient of the entire income of the trust for life, and upon her death the trust is to terminate and one-half of the unconsumed principal of the trust will go to her estate. Mrs. Ellis's interest is therefore unconditional, it cannot fail upon the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur. 20 The petitioner's interpretation of the statute would require us to treat the residuary estate as a single unit, the whole of it terminable for tax purposes. Actually as we have said only one-half of it is terminable, assuming that some portion of it will remain unconsumed. It follows that the provisions of Section 812(e) (1) (B) apply only to that portion of the residuary estate which is terminable, the part going to the children. The value of the remaining half which will go to Mrs. Ellis' estate constitutes a valid marital deduction. 21 The decision of the Tax Court will be vacated and the cause remanded to the end that the amount, if any, due to the taxpayers may be determined by the Tax Court in view of our decision. Notes: 1 Added by 62 Stat. 118 (1948), now Int.Rev.Code of 1954, Section 2056(b) (5), 26 U.S. C.A. § 2056(b) (5) 2 Sec. 812. Net Estate "For the purpose of the tax the value of the net estate shall be determined, in the case of a citizen or resident of the United States by deducting from the value of the gross estate — * * * * * "(e) Bequest, etc., to surviving spouse "(1) Allowance of marital deduction "(A) In general. An amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. "(B) Life estate or other terminable interest. Where, upon the lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur, such interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed with respect to such interest — "(i) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money's worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and "(ii) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse; and no deduction shall be allowed with respect to such interest (even if such deduction is not disallowed under clauses (i) and (ii)) — "(iii) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust. * * * * * "(F) Trust with power of appointment in surviving spouse. In the case of an interest in property passing from the decedent in trust, if under the terms of the trust his surviving spouse is entitled for life to all the income from the corpus of the trust, payable annually or at more frequent intervals, with power in the surviving spouse to appoint the entire corpus free of the trust (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the corpus to any person other than the surviving spouse — "(i) the interest so passing shall, for the purposes of subparagraph (A), be considered as passing to the surviving spouse, and "(ii) no part of the interest so passing shall, for the purposes of subparagraph (B) (i), be considered as passing to any person other than the surviving spouse. This subparagraph shall be applicable only if, under the terms of the trust, such power in the surviving spouse to appoint the corpus, whether exercisable by will or during life, is exercisable by such spouse alone and in all events." 3 The term "estate trust" is used to distinguish a trust qualifying under Section 812(e) (1) (A) from a power of appointment trust under Section 812(e) (1) (F). See Casner, Estate Planning Under the Revenue Act of 1948 — The Regulations, 63 Harv.L.Rev. 99 (1949) 4 Even a terminable interest may be the subject of a marital deduction if the termination of the terminable interest eliminates the existence of the property itself; for example, an annuity, a copyright, or a patent. See Casner, supra, note 4 at p. 440 5 S.Rept. No. 1013, Part 2, 80th Cong., 2d Sess. 336 (1948) states: "On the other hand, subparagraph (B) does not apply merely because another person has an interest in property in which the surviving spouse has an interest. There is no need to apply such subparagraph unless the interest passing to the surviving spouse is a terminable interest. Thus, if the decedent by his will devised Blackacre to X for life with the remainder to his surviving spouse, subparagraph (B) is not applicable inasmuch as the interest passing to the surviving spouse is not a terminable interest. Similarly, if the decedent by his will devises Blackacre to his wife and son as tenants in common, the marital deduction is allowed, since the surviving spouse's interest is not a terminable interest." (Italics supplied.)

723 P.2d 388 (1986) Anna Marie BERGER, personally, and Anna Marie Berger, as Personal Representative of the Estate of David V. Berger, Deceased, and Anna Marie Berger, as Guardian Ad Litem of Valerie Berger, Jennifer Berger, and David Berger, Plaintiffs and Appellants, v. The MINNESOTA MUTUAL LIFE INSURANCE COMPANY OF ST. PAUL, MINNESOTA; Utah Mortgage Loan Corporation of Logan, Utah; and Tracy J. Lee, personally, Defendants and Respondents. No. 19312. Supreme Court of Utah. July 22, 1986. *389 Mark S. Miner, Salt Lake City, for plaintiffs and appellants. John Snow, Michael Emery, Salt Lake City, for defendants and respondents. PER CURIAM: Plaintiff Anna Marie Berger appeals from the judgment entered on a jury verdict that denied her recovery of the proceeds of her husband's credit life insurance policy issued by defendant Minnesota Mutual Life Insurance Co. ("Minnesota Mutual"). Minnesota Mutual declined coverage under the policy, claiming that plaintiff's deceased husband materially misrepresented his medical condition when he submitted his insurance application form. In a 1974 preemployment physical examination at Kennecott Copper Corporation, David Berger was diagnosed as afflicted with mild diabetes mellitus. The physician discussed with Berger the diabetes tests given him and any past family history of the disease. Medication was prescribed for Berger, and the doctor noted that the diabetes could be controlled as long as Berger continued with prescribed medication and dietary restrictions. When Kennecott was advised that Berger's diabetes could be controlled if treated, Berger was hired by the company. On subsequent occasions between 1975 and 1979, Berger had several contacts with medical clinics and doctors who examined and discussed his diabetic condition and medication. In connection with another employment physical in June 1976, Berger listed his diabetes on his medical history form. There was also evidence that he often ignored the medication and dietary restrictions imposed to control his diabetes, which required more extensive medical treatment for his condition. In April 1979, Berger applied for and received group credit life insurance from Minnesota Mutual to satisfy his home mortgage in the event of his death. On the insurance application concerning his medical history, he wrote that in the past three years he had only consulted with a physician regarding an earache and sore throat and that he had never been treated for or advised that he had diabetes. The jury found these representations to be false but not fraudulently made. In February 1981, Berger was admitted to the hospital to bring his diabetes under control. A few weeks after his release, on March 8, 1981, he died of an acute codeine overdose. When a claim was made on the life policy, Minnesota Mutual undertook an independent investigation of the death. Discovering the preexisting diabetic condition, the insurer refused payment under its policy, claiming that the misrepresentation on the policy application was material to Berger's insurability and that Minnesota Mutual would not have issued the policy had the truth been disclosed at the time the application for insurance was made. Under our statute enacted in 1963, a misrepresentation, omission, or concealment of facts shall not prevent recovery under an insurance policy unless: (a) fraudulent; or (b) material either to the acceptance of the risk, or to the hazard assumed by the insurer; or (c) the insurer in good faith either would not have issued the policy, ... or would not have issued ... a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. *390 U.C.A., 1953, § 31-19-8(1) (1974 ed.).[1] The statutory alternatives are stated in the disjunctive, not the conjunctive. In order to invalidate a policy because of a misrepresentation by the insured, an insurer need prove applicable only one of the above provisions. Cf. Prudential Property & Casualty Insurance Co. v. Mardanlou, 607 P.2d 291 (Utah 1980).[2] The court submitted the matter to the jury under instructions setting forth the alternative provisions of section 31-19-8(1). Responding to special interrogatories, the jury found, inter alia, that: a. David Berger failed to disclose to Minnesota Mutual that he had been treated for and/or advised that he had diabetes; b. David Berger's diabetic condition was material either to the acceptance of the risk or the hazard assumed by Minnesota Mutual under the policy; c. Had David Berger disclosed his diabetic treatment, Minnesota Mutual, in good faith, either would not have issued the policy, or would not have issued the policy at the same rate or in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss. d. David Berger's diabetes did not cause or contribute to his death. e. The plaintiff was not entitled to recover on the policy. Consistent with these findings, the trial court entered judgment for defendants, voiding the policy. On appeal, we view the record in a light most favorable to the jury's findings and special verdict, which are entitled to a presumption of validity and will not be disturbed if supported by substantial evidence. Stanger v. Sentinel Security Life Insurance Co., 669 P.2d 1201 (Utah 1983); Williams v. State Farm Insurance Co., 656 P.2d 966, 968 (Utah 1982). We find a reasonable basis in the evidence to support the jury's verdict. Moore v. Prudential Insurance Co. of America, 26 Utah 2d 430, 491 P.2d 227 (1971). Regardless of section 31-19-8, plaintiff claims that our prior decisions require that in order to defeat coverage, a misrepresentation by an insured must be made with a knowing and willful intent to deceive.[3] However, our prior cases, cited by plaintiff to support this requirement, were decided under the statute which existed prior to 1963 and which allowed avoidance of a policy only if the misrepresentations materially affected the acceptance of the risk assumed and were made with an intent to deceive. See U.C.A., 1953, § 31-19-8 (repealed 1963 Utah Laws ch. 45, § 3). When a statutory defense is asserted, a defendant is entitled to rely upon the language of the existing statute for the requisite elements of that defense.[4] The jury was properly instructed regarding the statutory elements required to determine *391 whether the misrepresentation was sufficient to avoid the policy. The evidence supports the conclusion that, although not fraudulent, Berger's concealment of his diabetic condition was knowing and intentional. The misrepresentation was not merely considered as an expression or representation of his general health condition, but was a falsehood and a concealment of a significant medical illness. See 43 Am.Jur.2d Insurance § 1055, at 1059-61 (1982). We also reject plaintiff's second argument, that in order for the misrepresentation to be material, the insurer must prove that the fact misrepresented resulted in the insured's death. Again, plaintiff relies upon decisions under our prior statute. Under our present statute, a misrepresentation may prevent recovery under an insurance contract when it is material to the risk of death assumed by the insurer. There is substantial evidence to support the jury's verdict that Berger's diabetic condition was material to his insurability and to the acceptance by Minnesota Mutual of the risk of death. The materiality of a fact misrepresented or withheld is determined by the probable and reasonable effect that a truthful disclosure would have had upon the insurer in determining the advantages of the proposed contract. Holz Rubber Co. v. American Star Insurance Co., 14 Cal.3d 45, 533 P.2d 1055, 1065 (1975).[5] Because the materiality of a misrepresentation by the insured is determined by the extent to which it initially influenced the insurer to assume the risk of coverage, materiality is measured at the time that the risk is assumed and not at the subsequent death. Howard v. Aid Association for Lutherans, 272 N.W.2d 910 (Minn.1978). Therefore, the misrepresentation in an insurance application may be material if it diminishes the insurer's opportunity to determine or estimate its risk. Prudential Insurance Co. of America v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967). By withholding facts relevant to his insurability, the decedent prevented Minnesota Mutual from appraising its risk on the basis of the facts as they truly existed at the time the contract was made. According to the medical testimony, diabetes is associated with an acceleration of arthrosclerosis and heart and circulatory complications, resulting in a lower average life expectancy. There is also a greater risk of dangerous side effects from the controlling medication, particularly when used with alcohol and codeine. A finding that Berger did not die from diabetes does not necessarily determine the immateriality of the misrepresentation. Because the materiality of a misrepresentation is related to the insurer's willingness to initially accept the risk, the ultimate cause of death may be a factor considered by the jury, but is not of itself necessarily determinative.[6] Other jurisdictions have also held that the concealment or misrepresentation by the insured of a diabetic condition is material to the risk assumed by the insurer, even though the insured's death or injury results from other causes.[7] *392 The materiality of the misrepresentation in this case was for the jury to determine on the basis of what a reasonable and prudent insurer would do in the industry. Moore v. Prudential Insurance Co. of America, 26 Utah 2d 430, 491 P.2d 227 (1971). The evidence was unrebutted that a truthful representation by Berger of his diabetic condition would have caused rejection of this type of credit life policy. See Sentry Indemnity Co. v. Brady, 153 Ga.App. 168, 264 S.E.2d 702 (1980). The jury was entitled to conclude that Minnesota Mutual's practice to deny group life insurance to applicants with diabetes was reasonable and prudent. Therefore, we decline to disturb the jury's determination that the misrepresentation by the insured was material to the risk of death assumed by Minnesota Mutual and that it would not have issued the policy to Berger under truthful circumstances. Finally, plaintiff argues that defendants (including Utah Mortgage Company and the insurance agent) are estopped from denying coverage because of alleged violations of the insurance code and their failure to investigate decedent's medical history. The issue of estoppel, although alleged in plaintiff's complaint and argued below, was not properly submitted to the jury in any instruction. Plaintiff has not claimed any error in the failure of the trial court to submit a proper jury instruction and does not direct our attention to any instruction properly proffered on the issue. Therefore, we conclude that any legitimate argument on these matters was not properly presented below to the trier of fact. We do not consider the claim for the first time on appeal. The verdict and judgment below in favor of defendants are affirmed. NOTES [1] This section has now been replaced with the recodification of the Utah Insurance Code, effective July 1, 1986, Utah Laws ch. 242, § 26; U.C.A., 1953, § 31A-21-105 (Supp.1985). [2] Our statute is essentially identical to Okla.Stat. tit. 36, § 3609 (1981), and Idaho Code § 41-1811 (1977 ed.), see Industrial Indemnity Co. v. United States Fidelity & Guar. Co., 93 Idaho 59, 454 P.2d 956, 959 (1969). Similar provisions regarding the materiality of a misrepresentation are also found in other states' statutes, e.g., Ill.Rev. Stat. ch. 73, § 766 (1965), Or.Rev.Stat. § 743.042(1) (1984); Colo.Rev.Stat. § 10-8-111(2) (1973). But compare Ariz.Rev.Stat.Ann. § 20-1109 (1975 ed.), where the identical provisions are held to be in the conjunctive and an insurer must show all three conditions. Keplinger v. Mid-Century Ins. Co., 115 Ariz. 387, 565 P.2d 893 (App.1977). [3] Marks v. Continental Casualty Co., 19 Utah 2d 119, 427 P.2d 387 (1967); Pritchett v. Equitable Life & Casualty Ins. Co., 18 Utah 2d 279, 421 P.2d 943 (1966); Wootton v. Combined Ins. Co. of Am., 16 Utah 2d 52, 395 P.2d 724 (1964); Chadwick v. Beneficial Life Ins. Co., 54 Utah 443, 181 P. 448 (1919). [4] Our recent decision in Fuller v. Director of Finance, 694 P.2d 1045 (Utah 1985), is inapposite to our interpretation of current section 31-19-8 since that case involved insurance coverage under our workers' compensation statutes, and no claim or defense under this statute was asserted either on appeal or in the trial court. [5] See also Hatch v. Woodmen Accident & Life Co., 88 Ill.App.3d 36, 42 Ill.Dec. 925, 928, 409 N.E.2d 540, 543 (1980); Mayflower Ins. Exch. v. Gilmont, 280 F.2d 13, 17 (9th Cir.1960); 7 Couch on Insurance 2d § 35:79 (Rev. ed. 1985); 43 Am.Jur.2d § 1058, at 1062-64 (1982); cases cited in note 4, infra. [6] Mutual Benefit Health & Accident Ass'n v. Marsh, 60 Ga.App. 431, 4 S.E.2d 84 (1939); Jessup v. Franklin Life Ins. Co., 117 Ga.App. 389, 160 S.E.2d 612 (1968); Campbell v. Prudential Ins. Co. of Am., 15 Ill.2d 308, 155 N.E.2d 9 (1959); Hatch v. Woodmen Accident & Life Co., 42 Ill. Dec. 928, 409 N.E.2d at 543; Howard v. Aid Ass'n for Lutherans, 272 N.W.2d at 910; Prudential Ins. Co. of Am. v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967); Day v. Mutual of Omaha Ins. Co., 534 S.W.2d 859 (Tenn.App.1976); 7 Couch on Insurance 2d § 37:110 (Rev. ed. 1985); 1A Appleman, Insurance Law and Practice §§ 244-45 (1981), and cases cited therein. [7] Taylor v. Sentry Life Ins. Co., 729 F.2d 652 (9th Cir. 1984); Martin v. Mutual of Omaha Ins. Co., 198 Kan. 135, 422 P.2d 1009 (1967); Formosa v. Equitable Life Assurance Soc'y of the United States, 166 N.J.Super. 8, 398 A.2d 1301 (1979); Rhodes v. Metropolitan Life Ins. Co., 172 F.2d 183 (5th Cir.), cert. denied, 337 U.S. 930, 69 S.Ct. 1495, 93 L.Ed. 1738 (1949).

888 F.2d 1047 27 Soc.Sec.Rep.Ser. 504, Unempl.Ins.Rep. CCH 15057ATerry McQUIDDY, Plaintiff-Appellant,v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,Social Security Administration, Defendants-Appellees. No. 89-4385 Summary Calendar. United States Court of Appeals,Fifth Circuit. Oct. 17, 1989. Jim W. Wiley, Winnfield, La., for plaintiff-appellant. John Gough, Chief Counsel, Christopher Carillo, Office of Regional Counsel, HHS, Dallas, Tex., for defendants-appellees. Appeal from the United States District Court for the Western District of Louisiana. Before CLARK, Chief Judge, WILLIAMS and DUHE, Circuit Judges. PER CURIAM: 1 The United States District Court for the Western District of Louisiana granted summary judgment against Terry McQuiddy and in favor of the Secretary of Health and Human Services (HHS) in McQuiddy's suit to gain Social Security disability benefits. McQuiddy appeals. I. 2 On May 22, 1984 McQuiddy filed an application for Social Security disability benefits and for supplemental security income benefits. The basis of McQuiddy's claim was a back problem which made it inadvisable for him to lift with any frequency items weighing over twenty pounds. Both the Social Security Administration (SSA) and an administrative law judge (ALJ) declined McQuiddy's petitions for disability payments. The Appeals Council of the SSA denied review of the ALJ's decision. McQuiddy then filed this suit in the district court seeking review of the final denial of his claims by the Secretary of HHS. On motion of the Secretary the district court remanded to the Appeals Council for consideration of an amendment to the mental impairment listing of 20 C.F.R. Pt. 404, Subpt. P, App. 1. The Appeals Council remanded to the ALJ who found that, taken together, McQuiddy's physical and mental infirmities did establish that his proper classification was "disabled." 3 When the Appeals Council reviewed this decision, the Council determined additional evidence was needed on McQuiddy's mental health to enable it to resolve a conflict between I.Q. scores recorded in 1969 and 1986. If the higher 1969 score was the proper one, McQuiddy did not qualify for benefits. But if the lower 1986 score was applicable to McQuiddy's level of physical infirmity, he did qualify for benefits. The Council referred the case to a psychiatrist, Dr. Storey, who reported that the clinical evidence of McQuiddy's mental health corresponded with the higher 1969 I.Q. score and that the score from the 1986 testing was invalid. 4 The Appeals Council notified McQuiddy that it was considering Dr. Storey's report. On November 24, 1986 the Appeals Council informed McQuiddy that evidence in rebuttal to Dr. Storey's report could be submitted within twenty days. Although McQuiddy objected to the report, he submitted no contrary evidence to either the Appeals Council or later to the district court. Adopting Dr. Storey's opinion and using the 1969 scores for its evaluation of McQuiddy's claim, the Appeals Council reversed the ALJ and denied McQuiddy's claim. 5 At that point McQuiddy revived the current suit. Summary judgment was granted in favor of the Secretary, and McQuiddy appealed. 6 McQuiddy claims on appeal that the decision of the Appeals Council is based on insufficient evidence. Under 42 U.S.C. Sec. 405(g) (1983) the district court was correct to affirm the final decision of the Secretary if substantial evidence supported the decision. Such evidence must amount to more than a scintilla but could be less than a preponderance. Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987). The district court correctly held Dr. Storey's report provided substantial evidence in support of the Secretary's decision. 7 McQuiddy also claims that the procedure of the Appeals Council in supplementing the evidence before them without allowed the parties to present rebuttal evidence is violative of the Fifth Amendment Due Process Clause. The procedure following by the Appeals Council is allowed by 20 C.F.R. Sec. 404.977(e)(2), which states: 8 If the Appeals Council believes that more evidence is required, it may again remand the case to an administrative law judge for further inquiry into the issues, rehearing, receipt of evidence, and another decision or recommended decision. However, if the Appeals Council decides that it can get the additional evidence more quickly, it will take appropriate action. 9 After the Appeals Council had taken "appropriate action" and received Dr. Storey's report, McQuiddy was notified that the Council was considering the report and that he could submit rebuttal evidence within twenty days. During this period McQuiddy submitted nothing to the Appeals Council except an objection to their consideration of the report. McQuiddy did not subsequently present to the district court any evidence contradicting Dr. Storey's conclusions, nor did he assert such evidence existed. McQuiddy had a full opportunity to present evidence beneficial to his position, and failed to do so within the prescribed reasonable time limits. His due process claim is without merit. II. The judgment of the district court is 10 AFFIRMED.

448 B.R. 444 (2011) In re HARVEST OIL & GAS, LLC, et al., Debtors. The Harvest Group, LLC and Harvest Oil & Gas, LLC, Plaintiffs v. Barry Ray Salsbury, Brian Carl Albrecht, Shell Sibley, Willie Willard Powell and Carolyn Monica Greer, Defendants. Bankruptcy No. 09-50397. Adversary No. 10-05009. United States Bankruptcy Court, W.D. Louisiana. March 31, 2011. *445 Adams & Reese, LLP, Lisa M. Hedrick, Paul J. Goodwine, Colleen C. Jarrott, Schully Roberts Slattery & Marino PLC, John M. Duck, Robin B. Cheatham, Law Firm of Adams and Reese, LLP, New Orleans, LA, for Debtor. Leonard William Copeland, Shreveport, LA, for U.S. Trustee. Taylor, Porter, Brooks & Phillips, LLP, Michael A. Crawford, Baton Rouge, LA, Douglas S. Draper, New Orleans, LA, for Creditor Committee. MEMORANDUM RULING ROBERT SUMMERHAYS, Bankruptcy Judge. This adversary proceeding involves claims for breach of representations and warranties in two purchase and sale agreements executed in connection with the sale of membership interests in The Harvest Group, LLC and Harvest Oil & Gas, LLC (collectively, "Harvest"). The defendants—Barry Ray Salsbury, Brian Carl Albrecht, Shell Sibley, Willie Willard Powell, and Carolyn Monica Greer (collectively, "Defendants")—are former members of Harvest who sold their membership interests to Saratoga Resources, Inc. ("Saratoga") in 2007. Defendants filed a motion for summary judgment seeking dismissal of Harvest's claims. Harvest has filed a cross-motion for partial summary judgment. The core issue raised by these motions is whether Harvest's claims for breach of the representations and warranties in the purchase agreements are barred by the terms of those agreements. The court took both motions under advisement following a hearing. JURISDICTION The court has jurisdiction over this proceeding pursuant to the provisions of 28 U.S.C. § 1334. The court finds that this is a core proceeding pursuant to the provisions of 28 U.S.C. § 157(b)(2). BACKGROUND Saratoga is an independent oil and natural gas company. In October 2007, Saratoga purchased Defendants' membership interests in the Harvest Group, LLC and Harvest Oil & Gas, LLC. In connection with this sale, Saratoga and Defendants executed two purchase and sale agreements. With respect to the Harvest Group, Saratoga entered into a purchase and sale agreement with all five Defendants. With respect to Harvest Oil & Gas, Saratoga entered into a purchase and sale agreement with defendants Salsbury, Albrecht, and Sibley. Since the contractual provisions at issue in the present motions are the same in both purchase and sale agreements, the court will refer to both agreements collectively as the "Purchase and Sale Agreement." The sale closed on July 14, 2008. Article III of the Purchase Agreement contains specific representations and warranties pertaining to the transaction, including representations and warranties with respect to the royalty payments. Section 3.10 of the Purchase Agreement provides:[1] *446 Payment of Royalties. Schedule 3.10 sets forth an accurate and complete list of all overriding royalty interests pertaining to the Company Properties, and Seller and Company represent and warrant that all royalties pertaining to the Leases, Wells, Units, and the Company Properties have been, and are being, paid timely, except for those royalties as may be st forth on Schedule 3.07, which are disputed in good faith by Company and for which an adequate accounting reserve has been established by Company. Furthermore, Section 3.25 of the Purchase Agreement states: Effectiveness of Leases. Except as identified in Schedule 3.25, all leasehold and other mineral interests included within Company Properties identified on Exhibit "A" are presently being maintained to the terms of each individual Lease, and there are no outstanding demands for a release pending by any lessor. Article 12 of the Purchase Agreement addresses Harvest's right to indemnification for breaches of the representations and warranties in the agreement. Section 12.01 of the Purchase Agreement states: Survival. (a) The representations and warranties of Company and Seller set forth in Article III and IV shall survive and continue after Closing for period of one (1) year. The representations and warranties of Buyer contained in Article V shall survive and continue after Closing for period of one (1) year and/or one (1) year after the Saratoga Shares are issued, if any. The period of time, if any, for which a representation and warranty survives Closing is called a "Survival Period." From and after the expiration of the Survival Period, no party hereto shall be under any obligation with respect to any representation or warranty to which such Survival Period relates, except with respect to matters as to which notice has been received in accordance with Section 12.01(b). (b) No party hereto shall have any indemnification obligation pursuant to this Article XII or otherwise in respect of any representation, warranty or covenant unless (I) it shall have received from the party seeking indemnification written notice of the existence of the claim for or in respect of which indemnification is being sought and (ii) with respect to a representation and warranty, such notice is received on or before the expiration of the Survival Period for such representation and warranty. Such notice shall set forth with reasonable specificity (I) the basis under this Agreement, and the facts that otherwise form the basis of such claim, (ii) the estimate of the amount of such claim (which estimate shall not be conclusive of the final amount of such claim) and an explanation of the calculation of such estimate, including a statement of any significant assumptions employed therein, and (iii) the date on and manner in which the party delivering such notice became aware of the existence of such claim." Section 12.02 addresses Defendants' indemnification obligations: Indemnification by Seller. Seller shall indemnify, defend and hold harmless Buyer from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, penalties, costs, and expenses (including reasonable attorneys' fees and expenses), of any nature whatsoever (collectively, "Damages"), asserted against, *447 resulting from, imposed upon, or incurred by Buyer, directly or indirectly, by reason of or resulting from (I) any breach by Company or Seller of its representations, warranties and covenants contained in this Agreement, (ii) any Liens (except for Permitted Encumbrances) or claims (other than claims contested in good faith for which adequate reserves have been established or adequate insurance exists) against the Company Properties filed or arising between execution of this Agreement and the Closing Date. Notwithstanding the foregoing, Buyer shall not be entitled to indemnification from Seller with respect to claims that Company or Seller would have otherwise had notice of prior to the Closing Date had Buyer complied with Section 8.07 in all material respects. Pursuant to Section 12.01, the representations and warranties in the Purchase and Sale Agreement survive for a period of one year after the closing date of the sale. In order for Harvest to obtain indemnification based on a breach of the representations and warranties in the Purchase Agreement, Harvest had to provide notice to Defendants as required by Section 12.01(b) prior to the expiration of this one-year survival period. The one-year survival period expired July 14, 2009. Prior to July 14, 2009, the State of Louisiana Department of Natural Resources (the "LDNR") commenced a field audit of oil and gas royalty payments by Harvest covering royalty payments from September 1, 2005 through March 30, 2009. This audit included a period covered by the Purchase Agreement's representations and warranties on royalty payments. Purchase Agreement at §§ 3.10, 3.25. On or about July 9, 2009, the LDNR informed Harvest that their preliminary audit showed that royalties had not been accurately calculated and paid to the State of Louisiana. Specifically, Harvest's treatment of marketing fees and lease use gas violated its leases or the governing state regulations. Affidavit of Brian Daigle ("Daigle Aff.") at ¶ 7.[2] Some of these improper deductions were made within the period covered by the Purchase Agreement's representations and warranties. The LDNR, however, had not completed its audit and did not provide Harvest with an assessment of the amount of any underpayments that may have occurred because of the improper deductions. Pursuant to Section 12.01 of the Purchase Agreement, Harvest sent a formal notice of claim based on the initial findings of the LDNR auditors on July 13, 2009. Defendants responded that the notice was defective under Article XII of the Purchase and Sale Agreement. The LDNR ultimately concluded that Harvest owed the state $1,368,193.61 in unpaid royalties. See Exhibits 10 and 11 to Harvest's Cross-motion for Partial Summary Judgment. Harvest filed for relief under Chapter 11 of the Bankruptcy Code on March 31, 2009. When Defendants refused Harvest's indemnification request, Harvest commenced this adversary proceeding on February 9, 2010. The parties then filed the present motions for summary judgment with respect to claims arising from the LDNR's audit. Following the hearing on these motions, the court granted Harvest's motion for leave to file an amended complaint. Harvest filed its amended complaint on February 11, 2011. The court also granted Harvest's motion to consolidate the present case with a related adversary proceeding brought against Professional Oil & Gas Management, LLC. The *448 amended complaint does not moot the instant motions for summary judgment. A. Summary Judgment Standard Summary judgment is proper if the pleadings, discovery products on file, and affidavits show that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(b). The purpose of summary judgment is to pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial. See Matsushita Electric Industrail Co. v. Zenith Radio Corp. 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment procedure is designed to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where, as here, the movant does not bear the burden of persuasion, the movant may satisfy its summary judgment burden by pointing to an absence of evidence supporting an essential element of the non-moving party's claim. Id. at 324-326, 106 S.Ct. 2548. Assuming that the movant has met this burden, the non-movant must come forward with "substantial evidence" supporting the essential elements challenged in the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Substantial evidence" is evidence that is sufficient to withstand a motion for direct verdict and to support the verdict of a reasonable jury. Id. The non-movant cannot rely on unsupported assertions or arguments to survive summary judgment. B. Defendants' Motion for Summary Judgment Defendants contend that Harvest's indemnification rights with respect to the representations and warranties in the Purchase Agreement expired on the one year anniversary of closing, and that Harvest's July 13th notice did not preserve its claims. Defendants contend that Harvest's indemnification rights lapsed on the anniversary date because the LDNR had not completed its audit and Harvest had not suffered any loss as of July 14, 2009. Defendants also contend that the July 13th notice was defective because it lacked the information required by section 12.01(b) of the Purchase Agreement. The language in an indemnity agreement dictates the obligations of the parties to the agreement. Jessop v. City of Alexandria, 871 So.2d 1140 (La.App. 3d Cir.2004), writ denied, 883 So.2d 991 (La.2004). The general rules that govern the interpretation of other contracts apply in construing a contract of indemnity. See Soverign Ins. Co., v. Texas Pipe Line Co., 488 So.2d 982 (La. 1986); see also Soloco, Inc. v. Dupree, 758 So.2d 851 (La.App. 3d Cir.2000). Interpretation of a contract is the determination of the common intent of the parties. La. Civ.Code art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. Civ.Code art. 2046. Each provision in a contract must be interpreted in light of the contract's other provisions so that each is given the meaning suggested by the contract as a whole. La. Civ.Code art. 2050. Defendants' first argument focuses on the requirement that Harvest provide written notice "of the existence of the claim." Purchase Agreement at § 12.01(b). According to defendants, this language "presupposes that a claim [for indemnification] must actually exist when notice is given" under that provision. Defendants' Memorandum in Support of Motion for Summary Judgment ("Def. Memo.") at 8 (emphasis in original). Defendants *449 rely on Louisiana case law holding that a claim for indemnification does not arise until the indemnified party "actually makes payment or sustains loss." Suire v. Lafayette City-Parish Government, 907 So.2d 37, 51 (La.2005); see also Meloy v. Conoco, 504 So.2d 833 (La.1987). Defendants contend that no claim for indemnification existed at the one-year anniversary date of the closing because Harvest had not yet been assessed with any damages by the LDNR. Accordingly, Harvest is barred from asserting an indemnification claim based on the representations and warranties in the Purchase Agreement. In other words, in order for Harvest to assert its indemnification rights under the Purchase Agreement, Harvest must become "legally bound to pay such obligations during the Survival Period and only if they gave notice of such claims within the time period." Def. Memo. at 9. Defendants' argument is inconsistent with the language of the Purchase Agreement. To preserve the right to indemnification under section 12.01(b), the Purchase Agreement only requires that Harvest provide notice of the claim that is the basis for indemnification. The agreement does not impose an additional requirement that Harvest's right to indemnification be fully mature prior to the anniversary date. Defendants' argument that the language in section 12.01(b) requiring that Harvest provide notice of the "existence of a claim" means that there must be an existing, fully matured claim for indemnification ignores the remaining language of the provision. Reading section 12.01(b) in its entirety, the term "claim" refers not to a mature right to indemnification, but to "the claim for or in respect of which indemnification is being sought." Purchase Agreement at § 12.01(b) (emphasis added). Here, the claim "for or in respect of which indemnification is being sought" is a claim for breach of the representations and warranties in the Purchase Agreement pertaining to the payment of royalties. That claim is grounded on Defendants' pre-closing conduct. All the Purchase Agreement requires is that Harvest provide notice of that underlying claim prior to the anniversary date to preserve its right to later seek indemnification. Accordingly, Defendants' reliance on University Rehabilitation Hospital, Inc. v. International Co-op. Consultants, Inc., 2006 WL 1098905, *7 (W.D.La. 2006) and Winslow v. American Airlines, 2008 WL 4469962, *1 (E.D.La.2008) is misplaced. In both University Rehabilitation Hospital and Winslow, the indemnified party attempted to recover under an indemnification agreement prior to making any payments or suffering any loss. The courts held that those indemnification claims were premature. Neither case addressed the question of notice, or the sufficiency of notice of an underlying claim that may be subject to indemnification. Here, the Purchase Agreement does not require that a claim for indemnification be asserted prior to the anniversary date, only that Harvest provide notice of the underlying claim that is the basis for indemnification. Defendants also contend that Harvest's notice is defective because the notice did not include an estimate of damages. Section 12.01(b) of the Purchase Agreement states that the notice "shall set forth with reasonable specificity (i) the basis under this Agreement, and the facts that otherwise form the basis of such claim, (ii) the estimate of the amount of such claim (which estimate shall not be conclusive of the final amount of such claim) and an explanation of the calculation of such estimate, including a statement of any significant assumptions employed therein, and (iii) the date on and manner in which the party delivering such notice became aware of the existence of such claim." Harvest's July 13th notice states that it could not *450 provide an estimate of damages because the LDNR audit had not yet been completed. Harvest contends that its notice provided Defendants with reasonable notice of its claim based on the preliminary audit findings by the LDNR. The sufficiency of Harvest's notice must judged by the requirements of the Purchase Agreement. Jessop v. City of Alexandria, 871 So.2d 1140 (La.App. 3d Cir. 2004), writ denied, 883 So.2d 991 (La.2004) (holding that the language in an indemnity agreement dictates the obligations of the parties to the agreement). The Purchase Agreement requires written notice of a claim for breaches of that agreement's representations and warranties prior to the anniversary date in order to preserve Harvest's indemnification rights. The summary judgment record shows that written notice was provided on July 13, 2009. The Purchase Agreement requires that this written notice include specific categories of information, including an estimate of damages. This provision, however, conditions these content requirements by stating that the information must be provided with "reasonable specificity." This language indicates that the parties intended that compliance with these content requirements be judged by a reasonableness standard. The court cannot decide that question— the reasonableness of the notice provided by Harvest—as a matter of law based on the summary judgment record because the question of reasonableness raises genuine issues of material fact. C. Harvest's Motion for Partial Summary Judgment Harvest's cross-motion for partial summary judgment seeks summary judgment on its request for indemnification arising from alleged breaches of the representations and warranties in the Purchase Agreement. As the court previously stated, there are genuine issues of material fact with respect to Harvest's right to indemnification. Harvest's motion is, therefore, denied. CONCLUSION For the foregoing reasons, the court DENIES Defendants' motion for summary judgment. The court also DENIES Harvest's cross-motion for partial summary judgment. Counsel for Defendants and Harvest shall submit orders in conformity with the court's rulings herein within twenty (20) days of the entry of this Memorandum Ruling. NOTES [1] The purchase agreements are included in the summary judgment record as Exhibits A and B to Defendants' motion for summary judgment. [2] The Daigle Affidavit is included in the summary judgment record as Exhibit 9 to Harvest's cross-motion for partial summary judgment.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 05/18/2018 09:09 AM CDT - 400 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 M arc A. Lombardo, appellant and cross-appellee, v. M ichael J. Sedlacek, M.D., appellee and cross-appellant. ___ N.W.2d ___ Filed March 23, 2018. No. S-17-146.  1. Evidence: Appeal and Error. Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion.  2. Appeal and Error. Appellate review of a district court’s use of inherent power is for an abuse of discretion.  3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence.  4. Judgments: Motions for Continuance: Appeal and Error. A court’s grant or denial of a continuance and other judicial action authorized by Neb. Rev. Stat. § 25-1335 (Reissue 2016) are within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.  5. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favor- able to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.  6. Judgments: Pleadings: Appeal and Error. A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose deci- sion will be upheld in the absence of an abuse of that discretion.  7. Statutes: Jurisdiction. Jurisdictional statutes must be strictly construed.  8. Statutes: Jurisdiction: Legislature: Courts: Appeal and Error. To say that jurisdiction may be lodged in the Nebraska Supreme Court in any other manner than that provided by the plain words of the statute amounts to judicial legislation.  - 401 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400  9. Legislature: Intent. The intent of the Legislature is generally expressed by omission as well as by inclusion. 10. Statutes: Appeal and Error. An appellate court is not at liberty to add language to the plain terms of a statute to restrict its meaning. 11. Pleadings: Notice. The statutory description of the motion to alter or amend does not include any requirement that the motion be accompa- nied simultaneously by a notice of hearing before the district court. 12. Summary Judgment: Motions for Continuance: Affidavits. The pur- pose of Neb. Rev. Stat. § 25-1335 (Reissue 2016) is to provide a safe- guard against an improvident or premature grant of summary judgment. 13. ____: ____: ____. The affidavit in support of relief under Neb. Rev. Stat. § 25-1335 (Reissue 2016) need not contain evidence going to the merits of the case, but it must contain a reasonable excuse or good cause, explaining why a party is presently unable to offer evidence essential to justify opposition to the motion for summary judgment. 14. Summary Judgment: Malpractice: Physicians and Surgeons: Affidavits: Proof. At the summary judgment stage, it is well settled that a physician’s self-supporting affidavit suffices to make a prima facie case that the physician did not commit medical malpractice. 15. Malpractice: Physicians and Surgeons: Expert Witnesses: Presumptions. There are only very limited exceptions to the require- ment of expert testimony to rebut a prima facie case by a physician stat- ing that he or she met the standard of care, where the alleged negligence and the causal link to the plaintiff’s injuries are presumed to be within the comprehension of laymen. 16. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Appeal from the District Court for Douglas County: Horacio J. Wheelock, Judge. Affirmed. Christian T. Williams, of Domina Law Group, P.C., L.L.O., for appellant. Marc A. Lombardo, pro se. Mary M. Schott and Thomas J. Shomaker, of Sodoro, Daly, Shomaker & Selde, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.  - 402 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 Heavican, C.J. I. NATURE OF CASE A former patient sued a psychiatrist for medical malprac- tice. The psychiatrist moved for summary judgment. The psy- chiatrist averred that he had met the applicable standard of care and that he had given to the patient all materials in his possession pertaining to the patient’s care. The court granted the patient a 90-day continuance of the summary judgment hearing, in order to find an expert witness. The court stayed all discovery and pending motions until the summary judg- ment hearing or an expert witness indicated the need for more discovery. The patient failed to designate an expert within 90 days, and the court granted summary judgment in favor of the psychiatrist. The patient appeals, arguing that the court abused its discretion in staying discovery contingent upon his desig- nation of an expert witness, in refusing to admit into evidence at the summary judgment hearing his first set of requests for admission and the psychiatrist’s responses, and in erroneously relying on the psychiatrist’s affidavit that allegedly was not in evidence. II. BACKGROUND 1. Complaint Marc A. Lombardo, pro se, sued his former psychiatrist, Michael J. Sedlacek, for medical malpractice. Lombardo alleged that Sedlacek was negligent in failing to properly diagnose and treat Lombardo and that as a proximate result, Lombardo suffered permanent personal injuries and dam- ages, including but not limited to, loss of income, medical expenses, impairment of earning capacity, and mental pain and suffering. In Sedlacek’s answer to the amended complaint, he admitted that he provided medical care to Lombardo, but denied the remaining allegations. Sedlacek moved for sum- mary judgment.  - 403 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 2. Protective Orders The motion for summary judgment was originally set for hearing on June 1, 2016. At a hearing held on April 28, the court heard several motions. The court overruled Lombardo’s motion to strike Sedlacek’s answer on the ground that it was too general. The court also overruled a motion by Lombardo for a tem- porary protective order from Sedlacek’s discovery requests, pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). The motion had requested “the entry of a Protective Order for the purpose of preventing the disclosure and use of Confidential Information by any party or non-party other than as allowed by the order.” The court granted a motion by Sedlacek for a protective order requiring Lombardo to communicate with Sedlacek’s attorney, and not with Sedlacek directly. The court granted Lombardo a 1-month continuance for Lombardo to respond to Sedlacek’s discovery requests. On May 28, 2016, Lombardo sent Sedlacek his first set of requests for admission. 3. Continuance of Summary Judgment Hearing, Stay of Motions and Discovery, and Sedlacek’s A ffidavits On June 6, 2016, Lombardo filed a motion to compel Sedlacek to produce certain documents responsive to Lombardo’s first set of requests for production, which had been served on April 7. In the motion, Lombardo alleged that Sedlacek had not produced all the documents in his possession and that he had obscured or cropped portions of the documents provided. On June 9, Lombardo filed a motion to continue the hearing on the motion for summary judgment, pursuant to Neb. Rev. Stat. § 25-1335 (Reissue 2016). The court conducted a hearing on June 13, 2016. The court introduced the hearing as a hearing on summary judgment. At that point, Lombardo interjected that he had filed a motion to  - 404 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 continue the summary judgment hearing. Sedlacek responded that he had objected to the continuance. Lombardo offered into evidence exhibit 23 in support of his motion to continue. The court entered exhibit 23 into evidence without limitation. Exhibit 23 consists of Lombardo’s affidavit and several attachments. In his affidavit, Lombardo averred that he did not have all the medical records that Sedlacek was supposed to produce, that certain records appeared to contain misrepresentations or fabrications of facts, and that portions of the records were illeg- ible. Lombardo further stated in the affidavit that he needed to depose Sedlacek “in order to understand more about why the records contain the false information.” Lombardo requested a continuance of the summary judgment hearing for at least 9 months, after all records were produced, in order for Lombardo to name an expert. Also contained within exhibit 23 is an affidavit by Sedlacek, dated May 2, 2016. In the May 2 affidavit, Sedlacek averred that he had met or exceeded the applicable standard of care required of him under the circumstances in his treatment of Lombardo. Lombardo’s affidavit, to which Sedlacek’s affidavit was attached, did not call into question the authenticity of Sedlacek’s May 2, 2016, affidavit. Instead, Lombardo “responded” to Sedlacek’s affidavit, stating that he could not opine on the accu- racy of Sedlacek’s averments and that he disagreed Sedlacek had met the applicable standard of care. In response to Lombardo’s affidavit claiming he had not received all his medical records, Sedlacek entered into evi- dence exhibit 22. Exhibit 22 is Sedlacek’s affidavit, dated June 9, 2016, averring that he had provided all “materials pertaining to . . . Lombardo that I believe are my [sic] pos- session or the possession of my office staff to my attorneys” and that “[i]t is my understanding that all of the records that I provided to my attorneys were produced to . . . Lombardo in response to his Requests for Production of Documents.”  - 405 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 Lombardo confirmed at the hearing that on May 11, he had received 484 pages of documents from the offices of Sedlacek’s attorneys. Given the fairly recent receipt of his medical records, the court ultimately granted Lombardo a 90-day continuance of the summary judgment hearing, in order to find an expert. The court told Lombardo that he would not be allowed to designate an expert after September 13, 2016. The summary judgment hearing was continued to September 15. The court did not rule upon Lombardo’s motion to compel, but instead continued the hearing on any pending motions until September 15, 2016. The court specifically stated that Lombardo was not allowed to depose Sedlacek “until and after such time [Lombardo] has identified his expert or experts, and said expert or experts’ opinions.” The court explained that Lombardo needed to designate an expert “before we do any- thing else.” 4. Denial of Motion to A lter or A mend and Stay of Motions and Discovery The orders from the April 28 and June 13, 2016, hear- ings were file stamped on June 13, 2016. And, on June 23, Lombardo filed a “Motion to Alter or Amend” the June 13 order relating to the continuance of pending motions and the requirement that Lombardo designate an expert witness. Despite the court’s order staying discovery, Lombardo sent Sedlacek a second set of requests for admission on July 14, 2016. In response, on July 19, Sedlacek also moved for a stay of all discovery until September 15, unless Lombardo could show that the discovery was requested by a potential expert. Sedlacek also moved for a stay of all hearings on all motions filed by Lombardo that did not relate to his ability or duty to designate an expert until September 15. At a hearing on July 25, 2016, Lombardo again argued that Sedlacek had not provided all records in his possession.  - 406 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 Lombardo claimed he had proof in the form of a letter he received from Sedlacek, a copy of which was not in the records disclosed. Counsel for Sedlacek responded that they had scanned approximately 500 pages of records and had sent them to Lombardo and that those were all the pertinent records in Sedlacek’s possession. The court made a specific finding that all discovery had been complied with up to the date of the hearing. The court again stayed all discovery until Lombardo desig- nated an expert. The court stated that if Lombardo timely found an expert, and such expert indicated more discovery was nec- essary, the court would reopen discovery. The court explained that Sedlacek’s averment that he had met the standard of care created a prima facie case for summary judgment and that the burden had shifted to Lombardo to present expert testimony showing a material issue of fact. The court denied Lombardo’s motion to alter or amend. The court’s order was file stamped on July 26, 2016. 5. Lombardo’s Objection and Interlocutory A ppeal On August 5, 2016, Lombardo served upon Sedlacek a third set of requests for admission. And on August 8, Lombardo filed an “Objection and Motion.” Lombardo stated in the August 8 motion that he objected to the court’s order of July 26, because he had not received timely notice of Sedlacek’s July 19 motion for a stay of discovery. Lombardo stated, further, that Sedlacek had omitted 38 of 52 requests for admission, which were served on Sedlacek on May 28, 2016, before any stay of discovery. Lombardo asked the court to set aside its order on Sedlacek’s July 19 motion or to amend the order so as to remove the stay on discovery. On August 11, 2016, Lombardo filed a notice of appeal from the court’s orders of June 13 and July 26. In an order on August 22, the district court stated that it was retaining jurisdiction while the appeal was pending, on the ground that  - 407 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 Lombardo had appealed from nonfinal orders. On September 19, 2016, in case No. A-16-776, the August 11 appeal was summarily dismissed for lack of jurisdiction by the Nebraska Court of Appeals. 6. Hearing and Order R egarding Summary Judgment On September 12, 2016, Lombardo filed a motion to stay the summary judgment hearing, as well as a jury demand. In the motion to stay, Lombardo asserted that his August 11 notice of appeal deprived the court of jurisdiction. At a hearing on September 15, 2016, the court denied the motion to stay and proceeded with the motion for summary judgment. Lombardo conceded at the hearing that he had not designated an expert. Lombardo explained that he had spoken with a medical doctor, but had not hired the doctor or obtained an affidavit from the doctor expressing any opinion. Lombardo entered into evidence exhibit 34, entitled “Objection.” In the objection, Lombardo asserted, among other things, that Sedlacek’s May 2, 2016, affidavit was inadmis- sible, because Sedlacek made statements that were not based on personal knowledge and because Sedlacek relied on hearsay statements in the medical records. However, Lombardo did not object to the use of the May 2 affidavit on the grounds that it had allegedly been admitted for a limited purpose, that it had been admitted into evidence at a prior hearing, that Lombardo lacked notice it would be relied on in determining the motion for summary judgment, or that the affidavit was submitted by Lombardo rather than by Sedlacek. Lombardo also offered into evidence exhibit 35, containing Lombardo’s first set of requests for admission and Sedlacek’s responses. In an affidavit within exhibit 35, Lombardo averred that he mailed a copy of the requests to Sedlacek’s attorney on May 28, 2016, and mailed a notice of service on June 1. He further stated that he believed requests Nos. 3, 5 to 11, 13, 14, 16 to 18, 20, 21, 25, 27, and 31 to 52 should be deemed  - 408 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 admitted pursuant to Neb. Ct. R. Disc. § 6-336, because they were not responded to. A comparison of the requests and the responses found in Lombardo’s offer of proof indicates that, with the exception of request No. 38, the requests specified by Lombardo were not individually responded to. However, Sedlacek’s response to the first set of requests for admission stated with regard to these unanswered requests that they were “vague, unclear as to time and place, [sought] conclusions of law, [sought] conclusions as to the impressions of others, [were] unintelligible, and/or contain[ed] compound questions.” Sedlacek’s attorney objected to the admission of exhibit 35. She asserted that a general denial to a number of requests does not waive or permit those requests to be deemed admitted. The court sustained counsel’s objection and refused to enter exhibit 35 into evidence for purposes of the summary judg- ment hearing. Lombardo also offered into evidence exhibits 36 and 37, which consisted of Lombardo’s second and third sets of requests for admission, along with Lombardo’s affidavits stat- ing their dates of service and that Sedlacek had not responded to the requests. The court sustained Sedlacek’s objections to the exhibits on the ground that they were subject to the court’s stay of discovery. On September 20, 2016, the court granted summary judg- ment to Sedlacek. The court ruled that all other pending motions were denied as moot and explicitly stated that the court did not retain any motions for future disposition. 7. Motion to A lter or A mend On September 26, 2016, Lombardo filed a motion to alter or amend, asking the court to vacate its order of summary judgment. The motion was served upon Sedlacek, but did not contain a notice of hearing at the time of its filing. A notice of hearing was later filed on December 14, setting the hearing on the motion to alter or amend for December 30. The hearing  - 409 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 was rescheduled for January 13, 2017. Prior to the hearing, Lombardo filed an “Amended Motion to Alter or Amend Judgment,” as well as a motion to stay the hearing on his motion to alter or amend. At the hearing on January 13, 2017, Sedlacek objected to Lombardo’s motion to alter or amend on the ground that the district court lacked “jurisdiction” to hear the motion, because Lombardo had failed to comply with Rules of Dist. Ct. of Fourth Jud. Dist. 4-2(B)(1) (rev. 2005). That rule states in rel- evant part: Unless otherwise ordered by the court, all pretrial and posttrial motions or similar filings such as special appear- ances which require a hearing shall be filed in the case prior to the scheduled hearing. At the time of making said filing, the party shall obtain a date for hearing thereon from the judge in charge of the case or, in the absence of the judge or at the judge’s direction, from a member of the judge’s office staff. (Emphasis supplied.) Sedlacek acknowledged receipt of notice of the hearing, but argued that Lombardo should have obtained the notice of hearing before the motion was filed. The court overruled Sedlacek’s jurisdictional objection and considered the merits of Lombardo’s motion to alter or amend. During the hearing on Lombardo’s motion to alter or amend, one of the attorneys from the firm representing Sedlacek stated that as far as she could tell, Sedlacek’s affidavit stating he met the applicable standard of care had not been offered into evidence. The court disagreed. The judge stated that he recalled seeing the affidavit and that it had been “attached to something that was submitted.” In an order dated January 17, 2017, the court denied Lombardo’s motion to stay, his motion to alter or amend, and his amended motion to alter or amend. The court denied all other pending motions.  - 410 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 On February 6, 2017, Lombardo filed his notice of appeal and deposited his docket fee in the office of the clerk of the district court. That is the appeal presently before us. III. ASSIGNMENTS OF ERROR Lombardo assigns that the district court erred when it (1) granted summary judgment without an affidavit in support of the motion before it, (2) did not hear and did not grant Lombardo’s motion to compel discovery, (3) did not grant Lombardo’s motion for additional time in discovery, (4) did not hear and did not grant Lombardo’s motions for protection from discovery, (5) determined that Sedlacek had made a prima facie case on the basis of facts not in evidence, (6) relied on facts not in evidence, and (7) denied Lombardo’s offer of evidence in opposition to summary judgment. On cross-appeal, Sedlacek assigns that the district court should have sustained his objection to Lombardo’s motion to alter or amend and “acknowledged the case stood dismissed when no appeal was taken within 30 days of the Order granting Summary Judgment.” IV. STANDARD OF REVIEW [1,2] Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion.1 Similarly, appellate review of a district court’s use of inherent power is for an abuse of discretion.2 [3] An abuse of discretion occurs when a trial court’s deci- sion is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.3 [4] A court’s grant or denial of a continuance and other judi- cial action authorized by § 25-1335 are within the discretion  1 Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).  2 Id.  3 Id.  - 411 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.4 [5] In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.5 [6] A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.6 V. ANALYSIS 1. Jurisdiction We first address Sedlacek’s cross-appeal. Sedlacek asserts that we lack jurisdiction because Lombardo’s motion to alter or amend was defective and thus failed to toll the 30-day statu- tory period for perfecting his appeal to this court. Sedlacek contends that Lombardo’s motion was fatally defective because Lombardo failed to comply with local district court rule 4-2(B)(1), which requires parties to obtain a date for hearing simultaneously to the filing of any motion. [7-10] An appellate court acquires no jurisdiction unless the appellant has satisfied the requirements for appellate juris- diction.7 Jurisdictional statutes must be strictly construed.8 To say that jurisdiction may be lodged in our appellate court in any other manner than that provided by the plain words of the statute amounts to judicial legislation.9 The intent of the  4 See, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014); Wachtel v. Beer, 229 Neb. 392, 427 N.W.2d 56 (1988).  5 Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008).  6 Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).  7 Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).  8 State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).  9 See id.  - 412 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 Legislature is generally expressed by omission as well as by inclusion.10 We are not at liberty to add language to the plain terms of a statute to restrict its meaning.11 Neb. Rev. Stat. § 25-1912(1) (Reissue 2016) provides that an appeal is perfected and the appellate court has jurisdiction when a notice of appeal is properly filed within 30 days of the entry of the judgment, decree, or final order. Subsection (4) of § 25-1912 states: Except as otherwise provided in subsection (3) of this section . . . an appeal shall be deemed perfected and the appellate court shall have jurisdiction of the cause when such notice of appeal has been filed and such docket fee deposited in the office of the clerk of the district court, and after being perfected no appeal shall be dismissed without notice, and no step other than the filing of such notice of appeal and the depositing of such docket fee shall be deemed jurisdictional. (Emphasis supplied.) Section 25-1912(3) provides for termination of the 30-day period through a timely motion to alter or amend. It states in this regard: The running of the time for filing a notice of appeal shall be terminated as to all parties . . . (b) by a timely motion to alter or amend a judgment under section 25-1329, . . . and the full time for appeal fixed in subsection (1) of this section commences to run from the entry of the order rul- ing upon the motion filed pursuant to subdivision (a), (b), or (c) of this subsection. (Emphasis supplied.) Thus, under § 25-1912(3), the time to appeal to this court begins anew after the motion to alter or amend is disposed of.12 10 State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (2015). 11 Id. 12 See, Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017); Gebhardt v. Gebhardt, 16 Neb. App. 565, 746 N.W.2d 707 (2008).  - 413 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 The only express limitation to this exception within our statutes governing appellate jurisdiction is that the motion to alter or amend be as described by Neb. Rev. Stat. § 25-1329 (Reissue 2016). Section 25-1329 states in full: A motion to alter or amend a judgment shall be filed no later than ten days after the entry of the judgment. A motion to alter or amend a judgment filed after the announcement of a verdict or decision but before the entry of judgment shall be treated as filed after the entry of judgment and on the day thereof. [11] This statutory description of the motion to alter or amend does not include any requirement that the motion be accompanied simultaneously by a notice of hearing before the district court. Under the plain language of our jurisdic- tional statutes, to terminate the 30-day period for filing a notice of appeal, the motion to alter or amend needs to be filed within 10 days after the entry of the judgment. In this case, it was. And the district court accepted Lombardo’s motion to alter or amend as filed—despite Lombardo’s failure to timely set a hearing date under local district court rule 4-2(B)(1). The court specifically rejected Sedlacek’s contention that the motion was fatally defective and should not be recognized as filed, for the reason that Lombardo had not simultaneously obtained a date for its hearing. We find no error in the court’s ruling. Indeed, local district court rule 4-2(B)(1) does not by its plain language purport to set forth the requirements of a motion itself. Rather, the rule requires that the party filing a motion obtain a date for hearing on the motion when the motion is filed. It states in relevant part that “[a]t the time of making said filing, the party shall obtain a date for hearing thereon . . . .” Sedlacek points to no rule stating the consequences of fail- ing to abide by local district court rule 4-2(B)(1). Moreover, district courts have discretion to excuse procedural court  - 414 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 rules.13 An abuse of discretion occurs when a trial court’s deci- sion is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.14 We find no reason to conclude that the district court abused its discretion in accepting Lombardo’s motion to alter or amend as properly filed and under the court’s consid- eration until its ruling on January 17, 2017. Sedlacek’s reliance on Neb. Rev. Stat. § 25-910 (Reissue 2016) does not alter our analysis. Section 25-910 merely outlines the required written content of a notice of a motion “[w]here notice of a motion is required . . . .” It does not state that the motion must be filed simultaneously with a notice of hearing. Moreover, § 25-910 is not cross-referenced by our statutes governing appellate jurisdiction. The 30-day period for filing a notice of appeal was termi- nated until Lombardo’s motion to alter or amend (filed with the district court within 10 days of the judgment as required by § 25-1329) was disposed of. Then, a new 30-day period began. Lombardo filed his notice of appeal within 30 days of the January 17, 2017, order denying his motion to alter or amend. Therefore, the current appeal is timely and we have jurisdiction to consider the merits of Lombardo’s assignments of error. 2. Summary Judgment While Lombardo’s pro se brief touches upon many top- ics, we consider only arguments that were both specifically assigned and specifically argued in the appellate brief.15 Broadly, Lombardo presents three assertions of error that were both assigned and argued. First, he asserts that the dis- trict court erroneously relied on an affidavit not in evidence in its various rulings, including granting summary judgment 13 See Houser v. American Paving Asphalt, ante p. 1, 907 N.W.2d 16 (2018). 14 Putnam v. Scherbring, supra note 1. 15 See Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).  - 415 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 in Sedlacek’s favor. Second, Lombardo argues that he was unfairly hampered in the amount of discovery permitted before the court ruled on the summary judgment motion, by limit- ing its continuance to finding an expert and refusing to grant Lombardo’s motion to compel discovery. Third, Lombardo asserts that he was prejudiced at the summary judgment hear- ing by the district court’s allegedly erroneous ruling on his offer of exhibit 35, and its failure to grant his motion for a protective order under HIPAA. (a) Affidavit “Not in Evidence” We find no merit to Lombardo’s contention that Sedlacek’s affidavit, stating he met the applicable standard of care, was not in evidence. It is true, as Lombardo points out, that unless the affidavit is marked, offered, and accepted, it does not become part of the record and cannot be considered by the trial court as evidence.16 But, fortunately for Sedlacek, the May 2, 2016, affidavit, in which Sedlacek averred he met the appli- cable standard of care, was offered into evidence by Lombardo as part of exhibit 23. Lombardo’s affidavit did not purport to attach Sedlacek’s affidavit for a limited purpose. And the district court admitted exhibit 23 into evidence without any restriction on its use. Lombardo’s “Objection,” at exhibit 34, to the affidavit, on the ground that it was vague and relied on hearsay, was untimely. Accordingly, Sedlacek’s May 2, 2016, affidavit was part of the record and was properly considered by the district court as evidence. Most importantly, the court properly relied upon Sedlacek’s affidavit, which was submitted during the June 13 summary judgment hearing, in granting summary judgment in favor of Sedlacek. (b) Limited Continuance We equally find no merit to Lombardo’s claim that the court erred in deciding Sedlacek’s motion for summary judgment 16 Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d 34 (2002).  - 416 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 without allowing Lombardo adequate time for discovery to rebut Sedlacek’s prima facie case. [12] Lombardo asserts that pursuant to § 25-1335, the court should have refused Sedlacek’s motion for summary judgment or granted Lombardo a continuance on the hearing of the motion, in order to permit affidavits to be obtained, depositions to be taken, or discovery to be had. The purpose of § 25-1335 is to provide a safeguard against an improvident or premature grant of summary judgment.17 Section 25-1335 provides: Should it appear from the affidavits of a party oppos- ing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. [13] We have said that the affidavit in support of relief under § 25-1335 need not contain evidence going to the merits of the case,18 but it must contain a reasonable excuse or good cause, explaining why a party is presently unable to offer evidence essential to justify opposition to the motion for summary judgment.19 We have cited with approval case law holding that the affidavit must show how additional time will enable the party to rebut a summary judgment movant’s allegation that no genuine issue of material fact exists for disposition by trial.20 The affidavit should specifically identify the relevant information that will be obtained with additional 17 Gaytan v. Wal-Mart, supra note 4; Wachtel v. Beer, supra note 4. 18 See, Gaytan v. Wal-Mart, supra note 4; Dresser v. Union Pacific RR. Co., 282 Neb. 537, 809 N.W.2d 713 (2011); Wachtel v. Beer, supra note 4. 19 Id. 20 See Wachtel v. Beer, supra note 4, citing Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260 (10th Cir. 1984).  - 417 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 time and indicate some basis for the conclusion that the sought information actually exists.21 Generally, the control of discovery is a matter for judicial discretion.22 A court’s grant or denial of a continuance and other judicial action authorized by § 25-1335 is likewise within the discretion of the trial court, whose ruling will not be dis- turbed on appeal in the absence of an abuse of discretion.23 We first note that the court did, in fact, grant Lombardo relief under § 25-1335 in the form of a 90-day continu- ance for Lombardo to find an expert witness. Nevertheless, Lombardo argues that the court abused its discretion in so limiting the relief and in not allowing Lombardo more time for discovery without a designated expert. In particular, Lombardo argues he should have been allowed more time in order to depose Sedlacek. In his affidavit in support of relief under § 25-1335, Lombardo claimed he did not have all the medical records, certain records appeared to contain misrepresentations or fab- rications of facts, and portions of the records were illegible. He averred that he needed to depose Sedlacek “in order to understand more about why the records contain the false information.” But none of the allegations in Lombardo’s affidavit pre- sented a likelihood that additional time for discovery, with- out designating an expert, would allow Lombardo to rebut Sedlacek’s prima facie case for summary judgment. As the district court repeatedly explained, Lombardo needed an expert witness in order to do that. [14] At the summary judgment stage, it is well settled that a physician’s self-supporting affidavit suffices to make 21 See id., citing VISA Intern. Service v. Bankcard Holders, 784 F.2d 1472 (9th Cir. 1986). 22 See, Putnam v. Scherbring, supra note 1; Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002). 23 See, Gaytan v. Wal-Mart, supra note 4; Wachtel v. Beer, supra note 4.  - 418 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 a prima facie case that the physician did not commit medical malpractice.24 Sedlacek’s affidavit thus shifted the burden to Lombardo to produce admissible contradictory evidence rais- ing a genuine issue of material fact.25 And, in medical malpractice cases, expert testimony by a medical professional is normally required to establish the standard of care and causation under the circumstances.26 Therefore, once the defendant physician in a malpractice case states that he or she has met the standard of care, the plaintiff must normally present expert testimony to show that a material issue of fact exists preventing summary judgment.27 [15] There are only very limited exceptions to the require- ment of expert testimony to rebut a prima facie case by a physician stating that he or she met the standard of care, where the alleged negligence and the causal link to the plain- tiff’s injuries are presumed to be within the comprehension of laymen.28 Lombardo does not argue, however, that any such exception to the need for expert testimony applies to the facts of his case. Lombardo’s argument instead is that Sedlacek’s own statements might have created a material issue of fact, had Lombardo been given additional time to depose him. While a defendant physician’s own statements can be used to create a material issue of fact in a medical malpractice case,29 specula- tion that such statements might be obtained is a poor indica- tion that the sought information actually exists. Furthermore, 24 See Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008). 25 See id. 26 Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013). 27 See Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005). See, also, e.g., Wagner v. Pope, 247 Neb. 951, 531 N.W.2d 234 (1995). 28 See Thone v. Regional West Med. Ctr., supra note 24. 29 See, Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000); Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994).  - 419 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 Lombardo’s affidavit failed to present good cause as to why he had not deposed Sedlacek before the June 13, 2016, hearing, at which discovery was stayed. The district court did not abuse its discretion in granting only limited relief under § 25-1335, in the form of a 90-day continuance of the summary judgment hearing in order for Lombardo to obtain an expert witness. Relatedly, the district court did not err in refusing to enter- tain Lombardo’s motion to compel discovery until the sum- mary judgment hearing, unless Lombardo designated an expert witness stating the need for further discovery. Nor did the court err in ultimately denying Lombardo’s motion to compel when Lombardo failed to designate an expert witness by September 13, 2016. (c) Evidence Not Admitted at Summary Judgment Hearing Lastly, Lombardo argues that he was prejudiced in his abil- ity to present a material issue of fact at the summary judgment hearing by virtue of the court’s refusal to enter exhibit 35 into evidence and its denial of Lombardo’s motion for a protec- tive order. Lombardo argues that exhibit 35, containing Sedlacek’s responses to Lombardo’s first set of requests for admission, would have created a material issue of fact if the court had admitted it into evidence. Specifically, he asserts that the court should have recognized as admitted, under § 6-336, several “unanswered” requests for admission. These allegedly admitted allegations would, according to Lombardo, have established that Sedlacek breached his “duty as physician to establish a thorough and accurate medical history.”30 Section 6-336 states in relevant part, “The matter is admit- ted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, 30 Brief for appellant at 31.  - 420 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter . . . .” (Emphasis supplied.) Matters admitted pursuant to § 6-336 are a proper basis for a sum- mary judgment.31 Section 6-336 is self-enforcing but not self-executing.32 It requires that a party, claiming another party’s admission by failure to respond properly to a request for admission, must prove service of the request for admission and the served party’s failure to answer or object to the request and must sub- sequently offer the request for admission as evidence.33 If the necessary foundational requirements are met and no motion is sustained to withdraw an admission, the trial court is obligated to give effect to the provisions of § 6-336.34 While Lombardo’s affidavit in exhibit 35 proved service, he did not demonstrate Sedlacek’s failure to object to the request. Exhibit 35 demonstrated that Sedlacek had objected to the unanswered requests as vague, unclear as to time and place, sought conclusions of law, sought conclusions as to the impressions of others, were unintelligible, and/or contained compound questions. Lombardo did not take issue below with the fact that the objections referred to several requests simulta- neously, nor did he take issue with the form of the objections in his appellate brief. [16] In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substan- tial right of the complaining party.35 We conclude that even 31 Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993). 32 See, U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823 N.W.2d 460 (2012); Tymar v. Two Men and a Truck, 282 Neb. 692, 805 N.W.2d 648 (2011); Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 (1988). 33 Id. 34 U.S. Bank Nat. Assn. v. Peterson, supra note 32; Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009). 35 In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).  - 421 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports LOMBARDO v. SEDLACEK Cite as 299 Neb. 400 had the court admitted exhibit 35 into evidence, there would not have been matters admitted under § 6-336. Moreover, Lombardo fails to explain how the requests for admission, which were largely in hypothetical form, would have created a material issue of fact even if deemed admitted. We find no prejudicial error in the court’s ruling on exhibit 35. Lombardo also claims that he was prejudiced by the court’s refusal to grant his motion for a protective order under HIPAA. He claims that he could not offer his medical records as evi- dence at the summary judgment hearing, because they were not properly protected. Lombardo fails to point to what provision of HIPAA requires such a protective order or to any case law supporting his right to a protective order. And even if Lombardo had entered his medical records into evidence, they would not have created a material issue of fact. We agree with the district court that in order to create a material issue of fact, Lombardo needed to submit an expert’s opinion that Sedlacek had breached the applicable standard of care. Thus, again, we find no prejudi- cial error in the court’s order denying Lombardo’s motion for a protective order. VI. CONCLUSION The district court did not err in continuing the summary judgment hearing for only the limited purpose of giving Lombardo more time to hire an expert witness. The court did not err in relying on Sedlacek’s affidavit in which he averred that he had met the applicable standard of care. And Lombardo was not prejudiced by the court’s refusal to enter exhibit 35 into evidence at the summary judgment hearing or by its denial of Lombardo’s motion for a protective order under HIPAA. A ffirmed. Wright and K elch, JJ., not participating. 

157 Ga. App. 16 (1981) 276 S.E.2d 78 BARON et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. 60597. Court of Appeals of Georgia. Decided January 7, 1981. Kenneth C. Pollock, for appellants. Scott Barksdale, Richard Greer, Michael Wetzel, for appellee. CARLEY, Judge. On October 6, 1978, the appellants, the Barons, were involved in an automobile collision. At that time Mr. Baron was operating and Mrs. Baron was a passenger in a vehicle owned by Isidor Michael, a resident of Florida. The Michael automobile was insured by State Farm under a policy providing $5,000 Personal Injury Protection coverage and issued in accordance with the Florida Automobile Reparations Reform Act. The Barons' own automobile was also insured by State Farm under a policy issued in accordance with the Georgia Motor Vehicle Accident Reparations Act. The Barons' policy afforded them $10,000 Personal Injury Protection coverage. As the result of the collision Mrs. Baron sustained personal injuries and incurred $2,139.52 in medical expenses and $187 in "expenses reasonably incurred in obtaining from others ordinary and necessary services." The Barons made claim for those expenses and were paid under the Michael policy. The Barons then made a claim under their own policy for the same expenses incurred as the result of the collision. State Farm, *17 contending that it was uncertain whether the Barons were entitled to "duplication of benefits" and that to deny the claim would subject it to possible bad faith penalties and attorney fees, petitioned for a declaratory judgment that it "may legally deny the [Barons'] claim for duplicate personal injury benefits . . ." The Barons filed their answer to the petition for declaratory judgment, raising as one of multiple but interrelated defenses the failure of State Farm's petition to state a claim upon which relief could be granted. The Barons also counterclaimed against State Farm to recover the expenses under their policy. Thereafter the Barons filed an "Application for Hearing on Defenses," requesting the trial court to inquire into the merits of the Code Ann. ž 81A-112 (b) (6) defense raised in their answer and demanding that the petition for declaratory relief be dismissed. Prior to any disposition of the application for a hearing on the Code Ann. ž 81A-112 (b) (6) defense, State Farm moved for summary judgment in the case, countered by the Barons' own motion for partial summary judgment. On April 8, 1980, the trial court entered two orders. The first denied the Barons' motion for partial summary judgment and, with reference to their "Application for Hearing on Defenses," noted that "an application for an order on [the Barons'] special defenses may be made by motion under Ga. Code Ann. Section 81A-107 (b) and the [Barons] opted not to pursue this path." In the second order, the trial court granted summary judgment to State Farm. The Barons appeal from these two orders. 1. The Barons first enumerate error in the failure of the trial court "to grant the Application for Hearing on Defenses . .. and in failing to dismiss the Complaint as requested by said Application." In the order, the trial court, citing Hayes v. Superior Leasing Corp., 136 Ga. App. 98 (220 SE2d 86) (1975) and Howland v. Weeks, 133 Ga. App. 843 (212 SE2d 487) (1975), apparently held that the merits of a Code Ann.ž 81A-112 (b) (6) defense could only be pursued by motion under Code Ann. ž 81A-107 (b). We believe that the trial judge misconstrued those decisions and erroneously relied upon them as authority for declining to rule on the application by reason of the Barons' failure to follow the proper procedure in pursuing their Code Ann. ž 81A-112 (b) (6) defense. "Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required except that the following defenses may at the option of the pleader be made by motion in writing: . . . (6) failure to state a claim upon which relief can be granted . .." Code Ann. ž 81A-112 (b). "The choice of whether to raise the ž 81A-112 (b) defenses by motion or by *18 answer is entirely at the option of the pleader. If the choice is to proceed by motion, it must be before or at the time of the responsive pleading [or, in the special case of a ž 81A-112 (b) (6) defense, any time thereafter]. [Southern Concrete Co. v. Carter Const. Co., 121 Ga. App. 573 (174 SE2d 447) (1970)] . . . The proper procedure to be followed when the defense is made by answer is application for a preliminary hearing and determination under Code Ann. ž 81A-112 (d). [Cit.]" Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 99, supra. In the instant case, the Barons raised their ž 81A-112 (b) (6) defense in their answer, as they were clearly entitled to do. Having done so, it was procedurally correct to seek a ruling on this defense by filing their application for a hearing under Code Ann. ž 81A-112 (d) rather than by making a motion under Code Ann. ž 81A-107 (b). Both Howland and Hayes recognize and affirm this procedural rule. Those cases merely hold that where a ž 81A-112(b) defense has been raised by answer, the pleader should not be penalized for erroneously denominating his application under Code Ann. ž 81A-112 (d) for a hearing on the defense as a motion to dismiss under Code Ann. ž 81A-107 (b). "It is therefore apparent that the motion to dismiss in fact served every function of an application for preliminary hearing of a Code Ann. ž 81A-112 (b) defense and should not have been denied simply because it was styled a motion." Hayes, 136 Ga. App. at 101, supra. Likewise, in the instant case, the Barons should not be penalized for correctly denominating their "Application for Hearing on Defenses" under Code Ann. ž 81A-112 (d) as such, rather than as a motion. Having determined that the procedural ground expressed by the trial court as the basis for his failure to entertain the Barons' application for a hearing on their ž 81A-112 (b) (6) defense was erroneous, we turn to the question of whether that failure ÔÇö as opposed to the reasons given for the failure ÔÇö was, under the facts of this case, error. Thus, we must decide if it was error to fail to dismiss the petition for declaratory relief because it failed to state a claim. Suffice it to say that State Farm's petition asked for a declaration of the viability of its defenses to a claim by its insureds, the Barons, of benefits under their policy. That such a petition fails to a state a claim for declaratory relief is clear beyond question. Under such circumstances "the insurer is not faced with uncertainly and insecurity of making a jeopardizing election to enter into the defense of its alleged insured or to refuse to do so; suit looms against the insurer itself and its own defenses to liability can be presented without jeopardy when suit is entered by the claimant. [Cit.] Under these circumstances, there being no uncertainty or insecurity with *19 regard to the propriety of some future act or conduct, declaratory relief will not lie. [Cit.] . . . All rights have accrued; the [insurer] is either liable under the terms of its [policy] . . . or it is not. The [insurer] faces no risk of taking future undirected action; its defenses can be presented when suit is entered by the [claimant]. [Cit.] Therefore, the dismissal of [an insurer's] petition, which [seeks] a mere advisory opinion as to its defenses, [is] proper. [Cit.]" (Emphasis supplied.) Shield Ins. Co. v. Hutchins, 149 Ga. App. 742, 744-745 (256 SE2d 108) (1979). That, under these circumstances, the insurer seeks to avoid bad faith penalties and attorney fees by institution of the declaratory judgment proceeding does not insulate the petition from dismissal under ž 81A-112 (b) (6). State Farm Fire & Cas. Co. v. Gosdin, 147 Ga. App. 156 (248 SE2d 216) (1978); Sentry Ins. v. Almeida, 151 Ga. App. 514 (260 SE2d 356) (1979). Therefore, were we to view the Barons' application to dismiss the petition under ž 81A-112 (b) (6) in isolation and out of context we would be compelled to the conclusion that the trial court committed reversible error in failing to consider that application and to grant it. However, when the Barons filed their counterclaim for recovery of the expenses which were the basis of State Farm's petition, they effectively turned the controversy from one in which State Farm was seeking declaratory relief into one in which they were seeking affirmative relief. The entire controversy over coverage under the policy became, at that point, a suit by the Barons for affirmative relief from State Farm and, in our opinion, rendered moot any question of whether State Farm was or was not entitled to declaratory relief. Cf. Trainer v. City of Covington, 111 Ga. App. 425 (142 SE2d 75) (1965). If there were any doubts before the Barons filed their counterclaim that all rights had accured in the controversy, those doubts were removed when their counterclaim was filed. Since the issue of State Farm's entitlement to declaratory relief in the controversy was rendered moot and since there is no requirement that a counterclaim be answered, we see no reversible error in the trial court's failure to consider the Barons' application for a hearing on their Code Ann. ž 81A-112 (b) (6) defense, or in the trial court's apparent consideration of the mooted petition of State Farm as its "answer" to the counterclaim, or in the trial court's disposition of the entire controversy by ruling on the merits of the Barons' and State Farm's positions as evidenced by the cross-motions for summary judgment. If any ruling by the trial court "harmed" the Barons, it was the rulings on the substantive merits of the respective motions for summary judgment and the disposition of their claim for affirmative relief thereunder and not the failure to rule on their application for dismissal of State Farm's petition for declaratory relief. *20 2. We now turn to the substantive merits of this case. The Barons state their position as follows: "[They] have already collected no-fault benefits from the insurer of the vehicle involved in the collision. They now seek to duplicate benefits by recovering the same sums under the insurance policy which covers their personal vehicle which was not involved in the collision." The Barons' argument that such duplication of benefits is possible is predicated upon the language of Code Ann. ž 56-3407b which provides in part: "The insurer of a motor vehicle with respect to which security is required... shall pay basic no-fault benefits without regard to fault for economic loss resulting from: (a) accidental bodily injury sustained within the United States of America, its Territories or Possessions, or Canada by the insured and spouse and children if residing in the insured's household and the relatives of either if residents of the insured's household while occupying any motor vehicle, or while a pedestrian as the result of being struck by a motor vehicle; (b) accidental bodily injury sustained by any other person while occupying the owner's motor vehicle if the accident occurs within the United States of America, its Territories or Possessions, or Canada...." The Barons argue that they are entitled, under Code Ann. ž 56-3407b, to collect benefits from their own insurer under subsection (a) as well as from the insurer of the automobile in which they were riding at the time of the collision under subsection (b). In Georgia Cas. &c. Co. v. Waters, 146 Ga. App. 149 (246 SE2d 202) (1978), a case involving the interpretation of the "no fault" statutory scheme, it was held that "[i]n furtherance of the aim to limit basic PIP [Personal Injury Protection] recovery to an express amount, under the statute and under the policy provisions, . . . we have an automobile related plan by which insurance `follows the car.' That is, assuming one is occupying another vehicle or while a pedestrian is struck by another vehicle then the key question is whether the other vehicle has `no fault' coverage. If so, insofar as the basic PIP is concerned, one must look to the insurer of the other vehicle and not to one's own insurance company . . . For, where another insured vehicle is involved, then there is no basic PIP coverage under one's own policy. . . However, where an uninsured vehicle is involved then an injured person is protected under the terms of his own policy . . . Code Ann. ž 56-3403b indicates a legislative intent to prevent `stacking' of basic PIP coverages above the limit of $5,000. What is evinced is a clear command that a maximum of $5,000 be paid. In order to obtain greater benefits the insured must obtain additional PIP. Where he does so, his policy will then cover up to those limits even where the primary policy is limited ..." Ga. Cas. &c. Co. v. Waters, 146 Ga. App. at 152-153, supra. Thus, *21 where at the time of the collision one is occupying a vehicle "other" than his own and that vehicle has "no fault" coverage, the policy covering the "other" vehicle affords the injured party primary coverage and it is from that policy that the injured party must first seek PIP benefits. It is only when the limitations of PIP coverage under the "other" policy have been reached that the question of coverage under the PIP provisions of the injured party's own policy becomes important. The injured party is an "insured" under the PIP provisions of his own policy only to the extent that he has a claim for PIP benefits which are not met within the limits of coverage afforded him under the policy covering the "other" vehicle. In addition, such an injured party's entitlement to PIP benefits under his own policy may be further limited by the statutory command of Code Ann. ž 56-3403b that, absent an election of optional PIP coverage, "[t]he total benefits required to be paid... shall not exceed the sum of $5,000 per each individual covered as an insured person . . ., regardless of the number of insurers providing such benefits or of the number of policies providing such coverage." Thus, where an injured party has a claim for PIP benefits in excess of the coverage limitations of the "other" basic policy, he may recover those benefits under his own basic policy only up to an aggregate amount of PIP benefits under both policies of $5,000. National Gen. Ins. Co. v. Meeks, 145 Ga. App. 830 (244 SE2d 920) (1978). Applying the above stated rules to the facts of the instant case demonstrates that the Barons' claim for $2,139.52 in medical expenses has been satisfied in full under the basic PIP coverage provided to them by the policy insuring the Michael automobile. See Code Ann. ž 56-3403b (b) (1). Furthermore, when their claim for $187 for ordinary and reasonable services (Code Ann. ž 56-3403b (b) (3)) was coupled with their claim for medical expenses, the $5,000 limit on total PIP benefits available to them under the Michael policy was not exhausted and they have been paid in full for those services under that policy. Under our analysis of the no fault law in effect in this state the Barons would have to have medical expenses exceeding the limitation on coverage under the Michael policy (Meeks) or have otherwise exhausted their $5,000 in total PIP benefits under that policy (Waters) before they became "insureds" and entitled to a claim for benefits under the provisions of their own $10,000 optional "no fault" policy. Our "no fault" law simply does not allow duplication of PIP benefits under the circumstances that exist here. When the legitimate claims for PIP benefits exceed the coverage available under the "other" policy, our statute merely allows for the "stacking" of PIP coverage available under one's own policy upon the primary PIP coverage available under the "other" policy up to the *22 permissible limits of PIP coverage available under the circumstances ÔÇö $5,000 in "total" benefits where only basic PIP is involved. Of course, the permissible limits would be higher when there has been an election of optional PIP coverage under Code Ann. ž 56-3404b. Under our analysis, had the Barons' claim for necessary medical expenses arising from the collision exceeded the $2,500 limit on that coverage available to them under the Michael's policy or had their total claim for PIP benefits exceeded the $5,000 aggregate limit on the basis PIP coverage available thereunder, the PIP "no fault" provisions of their own policy would have been triggered and they would have been afforded coverage thereunder for the excess PIP claims up to the limits thereof. However, their PIP claims having been totally satisfied under the Michael's policy, they have no claim for any benefits available to them under the "no fault" provisions of their own policy. The Barons' arguments to the contrary are unpersuasive and unavailing. It is of no consequence to the Barons that former Code Ann. ž 56-3409b (a) provided: "The benefits payable under this Chapter shall not be reduced or eliminated by any workmen's compensation benefits, medical payments benefits or any other disability benefits, wage loss benefits or hospitalization benefits that the injured person is entitled to receive." Other "no fault" benefits, such as the Barons received under the Michael policy, are not included under this statute as being among those benefits which "shall not" reduce or eliminate "no fault" benefits are paid under an the Motor Vehicle Accident Reparations Act. Under our statutory "no fault" scheme where "no fault" benefits are paid under an "other" policy, those same benefits are not otherwise "payable under" the injured party's own policy and the injured but compensated party thus has no benefits payable under our "no fault" law not to be reduced or eliminated. When an injured party is primarily insured under the "no fault" coverage of an "other" policy, the "no fault" coverage under his own policy is excess, not duplicative, coverage. Judgment affirmed. Quillian, C. J., and Shulman, P. J., concur.

People v Cales (2017 NY Slip Op 08678) People v Cales 2017 NY Slip Op 08678 Decided on December 13, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 13, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN SYLVIA O. HINDS-RADIX FRANCESCA E. CONNOLLY, JJ. 2016-03686 [*1]The People of the State of New York, respondent, vJose Cales, also known as Jason Ortiz, also known as Jason Cales, appellant. (S.C.I. No. 161/16) Seymour W. James, Jr., New York, NY (Joanne Legano Ross of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano and Johnnette Traill of counsel; Victoria Randall on the brief), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Armstrong, J., at plea; E. Hart, J., at sentence), rendered March 18, 2016, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the defendant. ORDERED that the judgment is affirmed. We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606). RIVERA, J.P., AUSTIN, ROMAN, HINDS-RADIX and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

590 N.W.2d 510 (1999) UNIVERSITY OF IOWA, Appellee, v. George Wesley DUNBAR, Appellant. No. 97-889. Supreme Court of Iowa. March 24, 1999. David A. Morse of Garten & Wanek, Des Moines, for appellant. Thomas J. Miller, Attorney General, and James S. Wisby, Assistant Attorney General, for appellee. Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and CADY, JJ. CARTER, Justice. Defendant, George Wesley Dunbar, appeals from a judgment entered against him in favor of the University of Iowa based on nonpayment of student loans. The loans occurred in 1977 and 1978. The action to collect on the loans was commenced in 1996. Dunbar urged that the claims were time-barred pursuant to Iowa Code sections 614.1(5) and 614.5 (1995). The district court held that any statute of limitations otherwise applicable to the claims is abrogated by the provisions of Iowa Code section 262.19. Because we agree with that conclusion, we affirm the judgment of the district court. Dunbar attended the University of Iowa as a graduate student from August 1977 through December 1978. He received financial *511 assistance from the National Direct Student Loan Program. There were provisions in the student loan agreements that the fulfilling of certain teaching responsibilities after graduation would result in a reduction of the amounts owed. After graduating with a Masters Degree in Public Affairs, Dunbar taught briefly at Kirkwood College in Cedar Rapids. During most of the time that transpired between his obtaining of a degree from the University and the commencement of the present action, Dunbar resided in California. During this time, there was some correspondence with him concerning the repayment of the loans, and in his responses, he pressed for an acknowledgment of his entitlement to a reduction based on his teaching in the State of Iowa. The dispute between Dunbar and the University over the claimed reduction was never resolved; however, the district court found that his teaching at Kirkwood College was not the type of teaching that would qualify him for a reduction of payments. In 1993 Dunbar, who had by that time attained a law degree, returned to Iowa and sought admittance to the Iowa Bar. The loan dispute resurfaced at this time. In 1996 the University commenced the present action. Dunbar admits that he has made no payment on any of his student loans during the period since his graduation. The University has requested payment in the amount of $10,385.66, and the district court adjudged Dunbar to be liable for that sum. Iowa Code section 262.19 provides: "No lapse of time shall be a bar to any action to recover on any loan made on behalf of any institution." Because this statute is contained in the chapter of the Code dealing with the Iowa Board of Regents' institutions, it is implicit that the words "any institution" refer to the Board of Regents' institutions. Dunbar does not dispute that interpretation. He does claim, however, that the provisions of section 262.19 were intended to have limited applicability to a certain category of loans made from a particular fund established in the late 1800s and no longer in existence. Section 262.19 does not, he contends, apply to loans made pursuant to the National Direct Student Loan Program. The genesis of a statutory abrogation of time limitations on collecting loans by state colleges and universities is found in Iowa Code section 2639 (1897). That statute pertained exclusively to funds owed from the sale of land by the State University of Iowa. It was directed at actions by the treasurer of the State University of Iowa to collect monies owed for those land sales. At that time, the sections of the Code dealing with the State University of Iowa, the College of Agriculture and Mechanical Arts, and the State Normal School were contained in different chapters of the Code. In 1924 the statute abrogating time limitations on collections of the land sale monies by the treasurer of the University of Iowa was eliminated in the complete Code revision enacted in that year. This was a Code enacted in its entirety by the legislature and not a compilation. The provisions for sale of public lands by the State University of Iowa that had been contained in the 1897 Code were also eliminated. The present version of section 262.19 was enacted as chapter 195, section 3931 of the 1924 Code. It was contained in a chapter dealing with all of the Board of Regents' institutions. The intent of the legislature is the polestar of statutory construction and is primarily to be ascertained based on the language employed in the statute. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996); Citizens' Aide/Ombudsman v. Miller, 543 N.W.2d 899, 902 (Iowa 1996). The language contained in section 262.19 is not ambiguous and is not limited as to either the types of loans to which it applies or the particular institution making the loan. We conclude that the district court correctly interpreted the statute as abrogating any statute-of-limitations defense otherwise available to Dunbar. We have considered all arguments presented and conclude that the judgment of the district court must be affirmed. AFFIRMED.

485 So.2d 626 (1986) William G. NEWKIRK v. SEWERAGE AND WATER BOARD CITY OF NEW ORLEANS. No. CA-4279. Court of Appeal of Louisiana, Fourth Circuit. March 12, 1986. Rehearing Denied April 16, 1986. Writ Denied June 13, 1986. *627 Avis Topps, New Orleans Legal Assistance Corp., New Orleans, for appellant. Gerard M. Victor, Gen. Counsel, John D. Lambert, Jr., Sp. Counsel, Jacob Taranto, III, Asst. Sp. Counsel, Mary-Elizabeth Pattron, Senior Counsel, Leonard Crooks, Associate Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, for appellee. Before BYRNES, CIACCIO and WILLIAMS, JJ. CIACCIO, Judge. William G. Newkirk appeals the decision of the Civil Service Commission which upheld his suspension and dismissal from employment by the New Orleans Sewerage and Water Board. We affirm the plaintiff's suspension and reverse his termination. The principal issue presented is whether the Civil Service Commission erred in finding the appointing authority had met its burden of proof in this case. Plaintiff, William G. Newkirk, began his employment with the defendant, New Orleans Sewerage & Water Board, on August 10, 1981. He held the position of Utilities Plant Worker II. As a part of his assigned duties, Newkirk was responsible for visiting various sewerage plants in a given area of the City in order to insure the effective operation of those plants. Antoinette Jones, the operator of a private school bus service, filed a verbal complaint with the defendant against Newkirk. According to Ms. Jones, at approximately 7-7:15 a.m., on July 6, 1984, she was operating her school bus on Dwyer Road in New Orleans when she came upon Newkirk's truck stopped in a traffic lane of that roadway. Since there was no apparent reason for Newkirk's vehicle to be stopped, Jones blew the horn of her vehicle in an attempt to have Newkirk move his vehicle. According to the complaint filed by Jones, Newkirk made an obscene gesture to her and used vulgar language. She alleged that he thereafter continued to follow her in his vehicle along her school route. Fearing that he would follow her home, Jones drove into the Seventh District Police Station to report this incident. Newkirk stopped following Jones when she departed from her last stop on her school bus route. As a result of Jones' complaint, Charles Hartman, the plaintiff's supervisor, called Newkirk and his fellow worker, Jerry Celestine, into his office in order to question them about the alleged incident. According to Hartman, the plaintiff admitted that he had cursed Ms. Jones and he admitted being on Grant Street which was a street outside of his normal route area. Hartman thereafter checked the log books of the various stations and observed that the logs indicated that Newkirk passed certain stations without stopping to check them. Due to Newkirk's prior disciplinary actions and the occurrence of this incident, he was given written notice of a one week suspension followed immediately by his termination from employment by his appointing authority. In order to subject a permanent employee to disciplinary action there must exist legal cause La.Const. Art. 10 Sec. 8. Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3rd Cir., 1975). Repeated improper conduct after lesser disciplinary action has been taken, the totality of individual lesser offenses or even a single particular aggravated incident have all been found to constitute legal cause for dismissal. See: Ryder v. Dept. of Health & Human Resources, 400 So.2d 1123 (La. App., 1st Cir., 1981). The appointing authority must prove, by a preponderance of the evidence, the occurrence of the complained of activity. See: Dale v. French Market Corp., 452 So.2d 1180 (La.App., 4th Cir.,1984). Additionally, the appointing authority must prove that the conduct complained of impaired the efficiency of the public service and that it bears a real and substantial relationship to the efficient operation of the public service in which the *628 employee was engaged. Ryder v. Department of Health & Human Resources, supra; Reboul v. Dept. of Police, 420 So.2d 491 (La.App., 4th Cir.,1982). The Commission concluded from the evidence presented that the appointing authority had failed to prove that this employee used vulgar language or that he had made any obscene gestures, as the complainant testified that she could not hear what Newkirk was saying and the only gesture which she observed was Newkirk's indication that she should "come over" to his stopped vehicle. The Commission did, however, find that the complainant had been followed by the defendant and as a result she feared for her safety. This conclusion was based upon the testimony of the complainant and the unusual route taken by the employee on the morning of this incident. In our independent review of this record we must determine whether the conclusions reached by the Commission were arbitrary and capricious or manifestly wrong. Hanson v. Louisiana Racing Commission, 436 So.2d 1308 (La.App., 4th Cir. 1984), writ den. 443 So.2d 592. Plaintiff contends that the appointing authority failed to prove, by a preponderance of the evidence, the existence of cause for termination and the impairment of the public service. CAUSE Plaintiff maintains that the Commission failed to prove that he harassed Ms. Jones. The Commission found that the appointing authority had failed to prove that plaintiff used vulgar language towards Ms. Jones or that he had made any obscene gestures towards her. The Commission did find that the authority successfully proved that the plaintiff had followed the complainant and she was caused to fear for her safety. These conclusions are supported by the record. Ms. Jones testified that after she blew her horn at Newkirk and he did not move, that she waited and then drove around him. He thereafter proceeded to follow her along her school bus route. She has three stops on her route and she was proceeding to her second stop when this incident occurred. She testified that Newkirk followed her down approximately 4 or 5 streets for a period of 15-20 minutes. She stated that when she stopped her vehicle so did Newkirk and when she turned so did he. She also stated that she even proceeded down certain streets she does not normally travel, in an attempt to evade him. She testified that she feared he was going to follow her home so she drove to the Seventh District Police Station to complain. Based upon this evidence there existed cause for disciplinary action to be taken against the plaintiff. IMPAIRMENT OF PUBLIC SERVICE The next issue for consideration is whether these activities by the plaintiff had a real and substantial relation to and impaired the efficient operation of the public service. The record reveals that on the date in question, the logs of the various pumping stations show that the plaintiff visited the Pines Village Station at 7:15, the Crowder Road Station at 7:30, the Lamb Road Station at 8:05, the American Marine Station at 8:25, the Victoria Station at 8:40 and the Plum Orchard Station at 9:07, the Dodt Street Station at 9:20, the America Station at 9:35, the Wilson Station at 9:50, the Lawrence Station at 10:15 and the Lamb Road Station again at 10:45. According to Charles Hartman, the plaintiff's supervisor, the pattern of visitation taken by the plaintiff deviated from the pattern set down by his department and it resulted in a waste of travel time. Although Hartman maintained the department had a prescribed pattern of visitation for its employees to follow, he could not say that the plaintiff had been informed of this fact. Additionally the plaintiff and a fellow worker, Faxton Thurman, specifically denied that they were instructed to follow a set pattern when visiting the various pumping stations in their district. *629 Thurman testified that a worker was only required to inspect all stations in his district within an eight hour period. Newkirk testified that there was no fixed pattern of inspection but if a particular station needed attention, he would inspect it first. In this case the plaintiff inspected all the stations in his district within the time prescribed. The pattern utilized did not significantly impair the efficient operation of the public service, so as to warrant a termination action. Additionally, the plaintiff's prior record of disciplinary actions would not warrant termination as those incidents were not similar in nature to the current conduct and may not be used to result in a cumulative effect justifying dismissal. Moreover, to utilize the prior conduct as a basis for termination would in effect punish the appellant twice for the same offense. Since we find that the Commission has failed to prove by a preponderance of the evidence such an impairment to the efficiency of the public service as to warrant termination, we hereby reverse and set aside the plaintiff's termination. We do, however, find that these actions warrant the suspension previously imposed upon the plaintiff and we affirm the suspension. For the reasons assigned the ruling of the Civil Service Commission upholding the plaintiff's suspension is affirmed. The ruling is reversed insofar as it maintained the plaintiff's termination from employment and the plaintiff is ordered reinstated with back pay from the effective date of the completion of his suspension, August 7, 1984 and with retention of all ancillary benefits and status, however subject to a credit and set-off for all wages and salaries earned by appellant while in private employment during the period of separation following completion of his suspension. R.S. 49:113. Each party shall bear his own costs. JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.

Opinion issued March 5, 2013. In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00972-CV ——————————— TRACY BROWN, Appellant V. JANET KLEEREKOPER, Appellee On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2009-64884 MEMORANDUM OPINION After a jury trial, the trial court awarded the plaintiff, Tracy Brown, $20 on his theft-of-services claim and $242 on his breach-of-contract claim against appellee, Janet Kleerekoper. Because the jury found against Brown on his theft-of- property claim, the trial court awarded Kleerekoper $7,747.14 in attorney’s fees as the prevailing party on that claim. In four issues on appeal, Brown contends the trial court erred in (1) denying his motion for summary judgment, (2) denying his motion for judgment notwithstanding the verdict [JNOV], (3) awarding attorney’s fees to Kleerekoper because she was not the prevailing party, and that (4) the “loser pay” provision of the Texas Theft Liability Act [TTLA] is unconstitutional. We affirm. BACKGROUND In September 2007, Brown met Kleerekoper at the Alpha Shirt Company in Stafford, Texas, where he showed her his rhinestone transfer work, in which he creates text or images in rhinestones that can then be transferred to apparel, usually tee shirts. Later that day, Kleerekoper emailed Brown with several designs that she was interested in having made into rhinestone transfers. One of the designs requested was a Creekside Cheer logo. Three days later, Kleerekoper emailed another image she wanted made into a transfer, which was known as the GoForth logo. After completing a rush job for Kleerekoper on another transfer order, Brown and Kleerekoper returned their attention to the Creekside and GoForth transfers. Brown emailed a sample of the transfers to Kleerekoper for her review. Kleerekoper responded saying: “I like the Creekside Cheer and GoForth. Can the 2 C on the cheer move over some? It looks too far away from the H.” Kleerekoper then agreed to pay Brown $10.50 each for 23 Creekside Cheer transfers and $13 each for nine GoForth transfers. On October 2, 2007 Brown, Kleerekoper, and Kleerekoper’s husband met at a restaurant in Houston to complete the transfer. Brown gave Kleerekoper the transfers and Kleerekoper gave Brown a check for $358 dollars. Kleerekoper testified that when she got home and looked more closely at the Creekside Cheer transfers, she decided that they did not meet her specifications, so, after trying to reach Brown on the telephone, she placed a stop payment on the check the following day. The parties then began a series of email exchanges with Kleerekoper offering to pay for the GoForth transfers and Brown demanding full payment for all of the transfers. There was a dispute over whether Kleerekoper decided that she did not want the Creekside Cheer transfers because they were non-conforming or because she had lost the sale she had planned for them. Brown testified that, unable to resolve the issue, he sent Kleerekoper a letter via certified mail demanding payment, along with an itemized invoice. Kleerekoper did not respond, and two years later Brown filed suit alleging breach of contract, as well as theft of property and theft of services under the TTLA. After a jury trial, the trial court awarded the Brown $20 on his theft-of-services 3 claim and $242 on his breach-of-contract claim against Kleerekoper. Because the jury found against Brown on his theft-of-property claim, the trial court awarded Kleerekoper $7,747.14 in attorney’s fees as the prevailing party on that claim. MOTION FOR SUMMARY JUDGMENT In his first issue on appeal, Brown contends that the trial court erred when it denied him summary judgment on his theft-of-property claim. Essentially, Brown claims that he proved his entitlement to recovery on that issue as a matter of law. As a general matter, appellate courts do not have jurisdiction to hear the denial of a motion for summary judgment on appeal. 1 Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Cullum v. White, No. 04–09–00695–CV, 2011 WL 6202800, at *12 (Tex. App.—San Antonio Dec. 14, 2011, pet. denied). In any event, the denial of a motion for summary judgment is not reviewable after a trial on the merits. See Ackermann, 403 S.W.2d at 365; Cullum, 2011 WL 6202800, at *12. Here, Brown received a trial on the claims for which summary judgment was denied. Thus, the denial of Brown’s motion for summary judgment prior to the underlying trial on the merits presents nothing for our review. 1 There are limited exceptions to this rule. A party may appeal a denial of a motion for summary judgment (1) when both parties move for summary judgment, and the trial court grants one motion but denies the other, resulting in a final judgment, Comm’rs Court of Titus Co. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997), and (2) for certain types of cases listed in chapter 51 of the Texas Civil Practices and Remedies Code, TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) & (6) (Vernon Supp. 2012). This case does not fall within these exceptions. 4  Accordingly, we overrule Brown’s first issue on appeal. MOTION FOR JNOV In his second issue on appeal, Brown contends the trial court erred in overruling his motion for JNOV. Brown argues that the trial court should have disregarded the jury’s negative finding on his theft-of-property claim in light of its positive finding on his theft-of-services claim. As the party seeking recovery on his theft-of-property claim, who therefore carried the burden of proof, see Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991), Brown must demonstrate on appeal that the evidence conclusively established all vital facts in support of his claim as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); accord Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“A trial court may disregard a jury’s negative finding and substitute its own affirmative finding only if the evidence conclusively establishes the affirmative finding.”). In reviewing a legal-sufficiency challenge by the party who had the burden of proof at trial, the dispositive inquiry is whether the record establishes a proposition that contradicts the jury’s finding as a matter of law. See Sterner, 767 S.W.2d at 690. Only then may we sustain the legal-sufficiency challenge. See id. 5  In applying the legal-sufficiency standard, we must credit evidence that supports the judgment if reasonable jurors could credit that evidence, and we must disregard contrary evidence unless reasonable jurors could not disregard that evidence. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Accordingly, we review the evidence in the light most favorable to the verdict, but disregard all contrary evidence that a reasonable jury could have disbelieved. Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (citing City of Keller, 168 S.W.3d at 812). If the evidence falls within the zone of reasonable disagreement, we may not invade the role of the fact-finder, who alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or reject all or any part of that testimony. City of Keller, 168 S.W.3d at 822. The Texas Theft Liability Act permits a civil cause of action for damages against a party who commits theft via any of the numerous methods defined under the Texas Penal Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005 (Vernon 2011). Under the theory applicable to the present cause of action, Brown must prove the defendant unlawfully appropriated the plaintiff’s property with intent to deprive the plaintiff of the property and the plaintiff sustained damages. See id. §§ 134.002, .003; TEX. PEN.CODE ANN. § 31.03(a) (Vernon Supp. 2012). The jury charge on the theft-of-property claim provided: 6  Did Defendant Janet Kleerekoper unlawfully appropriate either the Creekside Cheer transfers or the GoForth transfers, by taking such transfers without Plaintiff Tracy Brown’s effective consent? “Without effective consent” means one of the following: (1) No consent. The plaintiff may prove that he did not consent to the appropriation. Consent is assent in fact, whether express or apparent. (2) Ineffective consent. The plaintiff may prove that, although he consented to the defendant’s taking of the property, the consent was ineffective because it was induced by deception. You are instructed that “deception is promising performance that is likely to affect the plaintiff’s judgment in the transaction and that the defendant does not intend to perform or knows will not be performed. However, the defendant’s failure to perform the promise, without other evidence of intent or knowledge, is not sufficient to prove the defendant did not intend to perform or knew the promise would not be performed. Answer “Yes” or “No” for each of the following Creekside Cheer Transfers Answer: No GoForth Transfers: Answer: No In this case, the challenged element is whether Kleerekoper unlawfully appropriated the rhinestone transfers because Brown’s consent in giving her the transfers was ineffective, i.e., induced by deception. “Deception” as defined in the charge means that Kleerekoper never intended to pay for the transfers and knew 7 that she would not be able to pay for them at the time she entered into the contract. See Daugherty v. State, 387 S.W.3d 654, 661 n.23 (Tex. Crim. App. 2013); see also TEX. PENAL CODE ANN. § 31.01(1)(E). Here, Kleerekoper testified, “When I purchased the transfers from Plaintiff Brown, I had every intention of paying him in full for the product . . . He simply did not provide the product for which I bargained[,]” and “I did not ‘steal’ the transfers as Plaintiff Brown alleges. He simply did not tender goods that conformed to the agreement.” Kleerekoper also testified that she offered to pay for the GoForth transfers that she believed conformed to the contract specifications and that she would have returned the Creekside Cheer transfers that she believed did not conform to the contract specifications, but Brown insisted on “all or nothing.” From this evidence, the jury could have rationally concluded that Kleerekoper intended to pay for the transfers at the time she entered into the contract for them, thus Brown’s consent was not induced by deception as defined in the charge and section 31.01(1)(E) of the Penal Code. That she ultimately did not pay is not legally sufficient evidence to prove that she never intended to pay. See TEX. PENAL CODE ANN. § 31.01(1)(E) (“The defendant’s failure to perform the promise, without other evidence of intent or knowledge, is not sufficient to prove the defendant did not intend to perform or knew the promise would not be performed”). 8  However, Brown argues that, because he proved and recovered on his theft- of-services claim, he necessarily proved and should also have recovered on his theft-of-property claim. We disagree because the elements of the offenses are completely different. The jury charge on the theft-of-services claim provided: Did Defendant Janet Kleerekoper intend to avoid payment for the service rendered by Plaintiff Tracy Brown by intentionally or knowingly securing the performance of said service by agreeing to provide compensation to Plaintiff Tracy Brown and, after the services was [sic] rendered, failed to make payment to Plaintiff Tracy Brown after receiving notice demanding payment? Answer “Yes” or “No” Answer: Yes. This jury question is based on section 31.04(a)(4) of the Penal Code, which provides: “A person commits theft of service if, with intent to avoid payment for service that the actor knows is provided only for compensation . . . the actor intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make full payment after receiving notice demanding payment.” TEX. PENAL CODE ANN. § 31.04(a)(4). The theft-of-services claim is based on securing performance of services by promising to pay for them, then avoiding payment for the services after receiving notice demanding payment. 9  Based on the evidence it heard, the jury could have believed, and apparently did believe because it answered the question in Brown’s favor, that Kleerekoper secured Brown’s service in creating the designs by promising to pay for the service, then avoided payment after receiving Brown’s notice demanding payment. The two TTLA offenses are completely separate. One focuses on services, i.e., the work spent designing the transfers, and the other focuses on the property, i.e., the transfers themselves. The theft-of-property claim required deception as defined by section 31.01(1)(E), whereas the theft-of-services claim did not. The theft-of-service claim required a demand for payment, but the theft-of-property claim did not. In short, it is not necessarily inconsistent that the jury found that Kleerekoper committed a theft of service, but did not commit a theft of property. Because the evidence did not conclusively establish that a positive finding on Brown’s theft-of-property claim was required as a matter of law, the trial court did not err by refusing to set aside the jury’s negative finding on that issue. We overrule Brown’s second issue on appeal. PREVAILING PARTY In his third issue, Brown contends that “the trial court erred in granting attorney fees to Kleerekoper under the Texas Theft Liability Act [TTLA] because Brown is the ‘prevailing party,’ as defined by the supreme court in Intercontinental 10 Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 651, 654 (Tex. 2009). Specifically, Brown argues that “by successfully prosecuting the breach of contract and the theft of services claims, two claims out of three, Brown ‘prevailed on the main issue, even though not to the extent of its original contention.’” The Theft Liability Act provides that “[e]ach person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney’s fees.” TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b) (Vernon 2011). The award of fees to a prevailing party in a TTLA action is mandatory. Peoples v. Genco Fed. Credit Union, No. 10–09–00032–CV, 2010 WL 1797266, at *7 (Tex. App.—Waco May 5, 2010, no pet.) (mem. op.) (affirming summary judgment for defendant in a TTLA suit and remanding for fee award). The TTLA requires the court to award attorney’s fees to a prevailing defendant “without any prerequisite that the claim is found to be groundless, frivolous, or brought in bad faith.” Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 686 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (“Statutes providing that a party ‘may recover,’ ‘shall be awarded,’ or ‘is entitled to’ attorney fees are not discretionary.”). Thus, we must decide whether Kleerekoper is a prevailing party under the TTLA when she prevailed on one TTLA claim, lost on another TTLA claim, and lost on a breach- of-contract claim. 11  In Moak v. Huff, No. 04-11-00184-CV, 2012 WL 566140, at *11 (Tex. App.—San Antonio Feb. 15, 2012, no pet.) (mem. op.) the plaintiff prevailed on her DTPA claim against the defendant, but the defendant successfully defended herself against the plaintiff’s TTLA claim. Id. at *1. On appeal, the defendant argued that the trial court erred by not awarding her attorney’s fees under the TTLA. Id. at *9. The plaintiff, like Brown here, argued that a person does not “prevail in a suit” unless he is the “party in whose favor a judgment is rendered” and is “vindicated by the judgment.” Id. at *10. The plaintiff contended that to recover attorney’s fees under the TTLA a party had to prevail not only on the TTLA cause of action, but on the suit as a whole. Id. The court of appeals disagreed, holding that “a person who prevails in a TTLA cause of action is entitled to recover the reasonable fees necessarily incurred prosecuting or defending that cause of action, even if the party is unsuccessful on other claims and counterclaims litigated in the same suit.” Id. at *11. We agree with the San Antonio court that a party who prevails on a TTLA cause of action is entitled to recover attorney’s fees, even though that party may not have prevailed on other causes of action asserted in the suit. Because Kleerekoper successfully defended herself on the theft-of-property claim under the TTLA, the trial court properly awarded her attorney’s fees. We overrule issue three. 12  CONSTITUTIONALITY OF ATTORNEY FEE PROVISION IN TEXAS THEFT LIABILITY STATUTE Equal Protection In issues four, Brown contends that “the ‘loser pay’ provision of the Texas Theft Liability Act is unconstitutional, in that Brown, a pro se litigant, is being made to pay attorney fees under said act, but cannot collect such fees for his win under said act.” Brown points out that both he and Kleerekoper prevailed on a TTLA claim, but that only Kleerekoper is allowed to recover attorney’s fees. Brown argues that this violates the equal protection clauses of both the state and federal constitutions. The principle of equal protection guarantees that all similarly situated persons should be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 109 S. Ct. 3249, 3254 (1985); see also Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998). A violation of the Equal Protection Clause may occur when the government discriminates against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right. Casarez v. State, 913 S.W.2d 468, 473 (Tex. Crim. App. 1994). Generally, to establish an equal protection claim when a fundamental right or suspect class is not at issue, as here, a party must prove that he or she was treated differently than other similarly situated parties without a rational basis. See 13 Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000). We find two cases—one from the United States Supreme Court and one from the Texas Supreme Court—instructive in determining whether such a rational basis exists in this case. In Kay v. Ehrler, 499 U.S. 432, 111 S. Ct. 1435 (1991) the United States Supreme Court considered whether an attorney who successfully represented himself in an action under § 1988 was eligible for attorney’s fees under that statute. See 499 U.S. at 437, 111 S. Ct. at 1436. The Supreme Court reasoned that the word “attorney” “assumes an agency relationship” and that Congress’s objective was to “enable potential plaintiffs to obtain the assistance of competent counsel.” Id. at 435–36, 111 S. Ct. at 1437; see also Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1290 (D.C. Cir. 1998) (refusing to award attorney’s fees to a pro se attorney-litigant who prevailed on a Federal Freedom of Information Act claim). A pro se attorney-litigant, the Court opined, is bereft of the benefits an independent third party brings “in framing the theory of the case . . . and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom.” Kay, 499 U.S. at 437, 111 S.Ct. at 1438. The Supreme Court concluded that an award of attorney’s fees to a successful pro se attorney-litigant would not serve “[t]he statutory policy of furthering the successful prosecution of meritorious claims” because it would 14 disincentivize attorneys “to retain counsel in every such case.” Id. at 438, 111 S. Ct. at 1438; Burka, 142 F.3d at 1289. The Texas Supreme Court cited and followed Kay and Burka in holding that a pro se attorney-litigant was not entitled to recover attorney’s fees for successfully bringing a case under the Texas Public Information Act. Jackson v. State Office of Administrative Hearings, 351 S.W.3d 290, 300 (Tex. 2011). As the Kay court recognized, “The statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case.” 499 U.S. at 438, 111 S. Ct. at 1438. In these cases, the courts have articulated a rational basis for concluding that attorney’s fees in cases involving similar statutes should not be awarded to pro se litigants, even in those cases where the litigant is actually an attorney. Because there is a rational basis for denying an attorney-litigant the recovery of attorney’s fees, a fortiori a non-attorney-litigant should not recover attorney’s fees. The statutory purpose of encouraging the prosecution of successful TTLA claims “is better served by a rule that creates an incentive to retain counsel in every such case.” Id. (emphasis added). Open Courts In issue five, Brown also argues that the “loser pay” provision of the TTLA violates the Open Courts Provision of the Texas Constitution. Article I, section 13 15 of the Texas Constitution provides in part that “all courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due court of law.” TEX. CONST. art. I, § 13. “The open courts provision includes at least three separate guarantees: (1) courts must actually be operating and available; (2) the Legislature cannot impede access to the courts through unreasonable financial barriers; and (3) meaningful remedies must be afforded, ‘so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress.’” Howell v. Tex. Workers’ Compensation Comm’n, 143 S.W.3d 416, 444 (Tex. App.—Austin 2004, pet. denied) (quoting Tex Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995)). Brown argues that denying him attorney’s fees under the statute violates the open courts provision because it impedes access to the court by imposing unfair financial barriers. However, as discussed above, the purpose of such attorney’s fees statutes is not to impede access to the courts, but to increase access to the courts by making an award of attorney’s fees to a litigant who might otherwise not be able to afford to hire an attorney to pursue a meritorious claim. An attorney would more likely take and successfully prosecute a meritorious claim under the TTLA because the statute provides that his fees would be paid by the losing party, 16 not his client. Thus, the TTLA attorney’s fees provision actually increases rather than decreases a TTLA plaintiff’s access to the courts. In light of the above, we overrule Brown’s fourth and fifth issues on appeal. CONCLUSION We affirm the trial court’s judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Brown. 17 

FILED NOT FOR PUBLICATION NOV 23 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MAX LOUMENA, No. 16-15296 Plaintiff-Appellant, D.C. No. 5:15-cv-02303-BLF v. MEMORANDUM* LESLIE NICHOLS; WALTER P. HAMMON, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding Submitted November 16, 2016** Before: LEAVY, BERZON, and MURGUIA, Circuit Judges. Max Loumena appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional violations arising from his parents’ state court divorce proceedings. We have jurisdiction under 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Loumena’s request for oral argument, set forth in his reply brief, is denied. § 1291. We review de novo a dismissal under the Rooker-Feldman doctrine. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). We affirm. The district court properly dismissed Loumena’s action because it is a “forbidden de facto appeal” of a state court order denying Loumena’s request for relief from restrictions on his ability to live with his mother and raises constitutional claims that are inextricably intertwined with that state court order. See Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) (the Rooker-Feldman doctrine bars de facto appeals of a state court decision and constitutional claims “inextricably intertwined” with the state court decision). The district court did not abuse its discretion in denying Loumena’s motion for recusal because Loumena failed to establish any ground for recusal. See United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (setting forth standard of review and grounds for recusal). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 2 16-15296 

Filed 4/25/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- CITY OF SANTA MARIA, C081190 Plaintiff and Appellant, (Super. Ct. No. 34201480001918CUMWGDS) v. MICHAEL COHEN, as Director, etc., Defendant and Respondent. APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Reversed. Aleshire & Wynder, June S. Ailin and Lona N. Laymon for Plaintiffs and Appellants. Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Stepan A. Haytayan, Deputy Attorney General, Jeffrey A. Rich, Deputy Attorney General, for Defendants and Respondents. 1  As successor to the former Redevelopment Agency of the City of Santa Maria, the City of Santa Maria owns parking facilities that were acquired and/or constructed with the proceeds of certain bonded indebtedness dating back to 1984.1 The city leases the parking facilities from the city as successor. The bonded indebtedness was most recently refinanced with bonds issued in 2003. In May 2012, the city as successor sought approval from the California Department of Finance (the department) to make payments due on the 2003 bonds from the redevelopment property tax trust fund (the fund). The department determined that the fund should not be used to make the bond payments because subdivision (a)(2)(B) of Health and Safety Code2 section 34183 provides that the fund can be used for payments to be made on revenue bonds “only to the extent the revenues pledged for [the bonds] are insufficient to make the payments and only where the agency’s tax increment revenues were also pledged for the repayment of the bonds.” The department concluded that subdivision (a)(2)(B) of section 34183 applied because the bonds at issue “did not have tax increments pledged and therefore, must be paid with other funding sources.” The city and the city as successor commenced the present mandamus action against the department and its director (jointly, the department) to challenge the department’s determination that the fund could not be used for the bond payments. The trial court agreed with the department that because tax increment revenues were not expressly pledged to satisfy the bond payments, the city as successor was not entitled to use the fund to make the bond payments under subdivision (a)(2)(B) of section 34183. The trial court further concluded, however, that to the extent the city’s lease payments for 1 We will refer to the former Redevelopment Agency of the City of Santa Maria as the agency. We will refer to the City of Santa Maria acting in its capacity as successor to the agency as the city as successor and otherwise as the city. 2 All further section references are to the Health and Safety Code. 2 the parking facilities are insufficient to cover the bond payments, the city as successor is entitled to use the fund to make the bond payments under subdivision (a)(2)(C) of section 34183, which allows the fund to be used for “[p]ayments scheduled for other debts and obligations listed in the Recognized Obligation Payment Schedule that are required to be paid from former tax increment revenue.” On appeal from the judgment partially granting their writ petition, the city and the city as successor contend the trial court erred in concluding that under subdivision (a)(2)(C) of section 34183 the city’s lease payments must be used first to make the bond payments and that the city as successor is entitled to use the fund for the bond payments only to the extent the lease payments are insufficient. In response, the department contends the trial court was correct in concluding that the city as successor is not entitled under subdivision (a)(2)(C) of section 34183 to use the fund first to make the bond payments. The department further contends, however, the trial court erred in concluding that the city as successor is entitled under that subdivision to use the fund to make the bond payments to the extent the city’s lease payments are insufficient for that purpose. For the reasons set forth below, we agree with the trial court that the city as successor is not entitled to use the fund to make the bond payments under subdivision (a)(2)(B) of section 34183. We further conclude that subdivision (a)(2)(C) of the statute does not apply to payments scheduled to be made on revenue bonds, and the trial court erred in concluding otherwise. Accordingly, we will reverse and remand with directions to enter judgment in favor of the department. LEGAL BACKGROUND Before June 2011, the Community Redevelopment Law (§ 33000 et seq.) authorized cities and counties to establish redevelopment agencies to remediate urban decay and revitalize blighted communities. (California Redevelopment Assoc. v. Matosantos (2011) 53 Cal.4th 231, 245-246.) To finance their activities, redevelopment 3 agencies relied on “tax increment financing . . . . [Citations.] Under this method, those public entities entitled to receive property tax revenue in a redevelopment project area (the cities, counties, special districts, and school districts containing territory in the area) [we]re allocated a portion based on the assessed value of the property prior to the effective date of the redevelopment plan. Any tax revenue in excess of that amount--the tax increment created by the increased value of project area property--[went] to the redevelopment agency for repayment of debt incurred to finance the project. [Citations.] In essence, property tax revenues for entities other than the redevelopment agency [we]re frozen, while revenue from any increase in value [wa]s awarded to the redevelopment agency on the theory that the increase [wa]s the result of redevelopment.” (Id. at pp. 246- 247.) In June 2011, as a partial means of closing the state’s projected budget deficit, the Legislature passed, and the Governor signed, Assembly Bill XI 26, which, in addition to other things, “dissolve[d] all redevelopment agencies [citation] and transfer[red] control of redevelopment agency assets to successor agencies, which are contemplated to be the city or county that created the redevelopment agency.” (California Redevelopment Assoc. v. Matosantos, supra, 53 Cal.4th at p. 251.) Under this law, the successor agency “is a separate public entity from the public agency that provides for its governance and the two entities shall not merge. The liabilities of the former redevelopment agency shall not be transferred to the sponsoring entity and the assets shall not become assets of the sponsoring entity.” (§ 34173, subd. (g).) Furthermore, “[t]he liability of any successor agency, acting pursuant to the powers granted under the act adding this part, shall be limited to the extent of the total sum of property tax revenues it receives pursuant to this part and the value of assets transferred to it as a successor agency for a dissolved redevelopment agency.” (Id., subd. (e).) A successor agency is required to “[c]ontinue to make payments due for enforceable obligations” (§ 34177, subd. (a)), which include “[b]onds, as defined by 4 Section 33602 and bonds issued pursuant to Chapter 10.5 (commencing with Section 5850) of Division 6 of Title 1 of the Government Code, including the required debt service, reserve set-asides, and any other payments required under the indenture or similar documents governing the issuance of the outstanding bonds of the former redevelopment agency” (§ 34171, subd. (d)(1)(A)). To that end, a successor agency is required to prepare, and submit to the department for approval, a recognized obligation payment schedule (ROP schedule) for every six-month fiscal period from January 1, 2012 through June 30, 2016. (§§ 34171, subd. (h), 34177, subds. (a)(1), (l) & (m).) An ROP schedule “set[s] forth the minimum payment amounts and due dates of payments required by enforceable obligations for each six-month fiscal period.” (§ 34171, subd. (h).) For each recognized obligation, the schedule must “identify one or more sources of payment.” (§ 34177, subd. (l)(1).) Among the possible sources of payment is the fund (id., subd. (l)(1)(E)), into which the county auditor-controller is charged with depositing “the amount of property taxes that would have been allocated to each redevelopment agency in the county had the redevelopment agency not been dissolved” (§ 34182, subd. (c)(1)). The fund is available as a source of payment, however, “only to the extent no other funding source is available or when payment from property tax revenues is required by an enforceable obligation or by the provisions of this part.” (§ 34177, subd. (l)(1)(E).) Section 34183 dictates how the county auditor-controller is to allocate moneys in the fund. After making certain allocations not relevant here (§ 34183, subd. (a)(1)), the county auditor-controller is directed to make the following allocations: “[O]n June 1, 2012, and each January 2 and June 1 thereafter, to each successor agency for payments listed in its Recognized Obligation Payment Schedule for the six- month fiscal period beginning January 1, 2012, and July 1, 2012, and each January 2 and June 1 thereafter, in the following order of priority: “(A) Debt service payments scheduled to be made for tax allocation bonds. 5  “(B) Payments scheduled to be made on revenue bonds, but only to the extent the revenues pledged for them are insufficient to make the payments and only if the agency’s tax increment revenues were also pledged for the repayment of the bonds. “(C) Payments scheduled for other debts and obligations listed in the Recognized Obligation Payment Schedule that are required to be paid from former tax increment revenues.” (§ 34183, subd. (a)(2).) With this legal background in mind, we turn to the facts of this case. FACTUAL AND PROCEDURAL BACKGROUND In 1984, the agency issued “Certificates of Participation” (the bond debt) to finance the purchase of land and a public parking facility from the city and to construct a second parking structure. The deal was structured so that the city would lease the parking facilities from the agency, and the city’s lease payments would be used to make the bond payments. The bond debt was refinanced in 1986, 1993, and 2003. As pertinent here, section 5.01 of the 2003 indenture of trust for the bond debt provides as follows: “(a) Payable from Tax Revenues. The Bonds constitute an obligation and indebtedness of the Agency which is payable from the Tax Revenues. The Agency shall comply with all requirements of law to insure the allocation and payment to it of the Tax Revenues, including without limitation the timely filing of any necessary statements of indebtedness . . . as required to enable the Agency to pay the principal of and interest on the Bonds from Tax Revenues to the extent the Tax Revenues received by the Agency are sufficient for that purpose. Notwithstanding the foregoing, (i) the Bonds are not secured by a pledge of or lien on the Tax Revenues, and (ii) the Agency may use the Tax Revenues for any other lawful purposes of the Agency in any Fiscal Year, notwithstanding that such other use of the Tax Revenues may cause the available Tax Revenues to be insufficient to pay in full the principal of and interest on the Bonds coming due in that Fiscal Year. 6  “(b) Pledge of Lease Revenues and Other Amounts. Subject only to the provisions of this Indenture . . . , all of the Lease Revenues and all amounts (including proceeds of the sale of the Bonds) held in any fund or account established under this Indenture are hereby pledged to secure the payment of the principal of and interest and premium (if any) on the Bonds in accordance with their terms and the provisions of this Indenture. Said pledge constitutes a lien on and security interest in the Lease Revenues and such amounts and shall attach, be perfected and be valid and binding from and after the Closing Date . . . .” Section 4.3 of the second amended and restated lease agreement from 2003 also provides as follows: “(b) Credit for Payments Made by Agency. The City and the Agency acknowledge and agree that the Bonds are payable from Tax Revenues of the Agency derived by the Agency from the Redevelopment Project, and that it is the intention of the Agency to pay the principal of and interest on the Bonds from that source. To the extent that the Agency deposits Tax Revenues derived by it from the Redevelopment Project with the Trustee, the amounts so deposited with the Trustee and held by it in the Bond Fund, the Interest Account and the Principal Account on any Lease Payment Date shall be credited towards the Lease Payments which the City would otherwise be required to pay hereunder on that Lease Payment Date.” Following the dissolution of all redevelopment agencies in 2011, the city took over as the successor to the agency. In May 2012, the oversight board of the city as successor approved an amended ROP statement for the period ending June 30, 2012. This amended ROP statement included the bond debt as the first item on the statement and requested a distribution from the fund of $2,681,325. At the same time, the oversight board approved the city as successor’s second ROP statement, for the period ending December 31, 2012. This ROP statement also included the bond debt as a proposed enforceable obligation and listed an amount requested of $2,636.012. 7  On May 21, 2012, the department objected to the June 30, 2012, and December 31, 2012, ROP statements, stating as follows in a letter to the city as successor: “Form A, Item No. 1 listed on both ROP statements is a Lease Revenue Bond in the amount of $2.6 million. Section 34183(2)(B) states [the fund] can fund revenue bonds, but only to the extent the revenues pledged for them are insufficient to make the payments and only where the agency’s tax increment revenues were also pledged for the repayment of the bonds. This line item did not have tax increments pledged and therefore, must be paid with other funding sources.” On May 25, 2012, the city as successor provided its response to the department’s position. The city as successor construed the department’s May 21 letter as “mean[ing] that the [d]epartment . . . does not recognize these bonds as an ‘enforceable obligation’ of the City’s former redevelopment agency under ABx1 26.” The city as successor “urge[d] the [d]epartment . . . to reverse its opinion concerning these Bonds,” stating as follows: “Under the 2003 agreement, the Bonds are to be paid from tax increment. . . . Although the indenture also provides for other funding sources in the Agency’s discretion, in particular, the lease revenues from the lease dated March 1, 2003; the Bond payments were clearly intended to be paid with tax increment revenues. In fact, the City has used all of the tax increment it has ever received to make payments on the Bonds. Unfortunately, for the City, the amount of available tax increment since the original issuance of bonds in 1986, and continuing to the present, has never been sufficient to render full payment owed to the bond holders, and therefore, additional sums have come from the lease revenues paid by the City’s General Fund.” On May 30, 2012, the department issued its final determination regarding the two ROP statements, stating that it was approving all items, “except for items disallowed in whole or in part as enforceable obligations noted in Finance’s letter dated May 21, 2012.” 8  The city and the city as successor (jointly, petitioners) commenced the present action on August 7, 2014, by filing a petition for writ of mandate and complaint for declaratory and injunctive relief. Petitioners sought a writ of mandate ordering the department to recognize the bond debt as an enforceable obligation and to allow the bond debt service to be paid from the fund. Petitioners further sought related declaratory and injunctive relief. The trial court agreed with the department that because tax increment revenues were not expressly pledged to satisfy the bond payments, the city as successor was not entitled to use the fund to make the bond payments under subdivision (a)(2)(B) of section 34183. The trial court further concluded, however, that to the extent the city’s lease payments are insufficient to cover the bond payments, the city as successor is entitled to use the fund to make the bond payments under subdivision (a)(2)(C) of section 34183 because in the event of such insufficiency “tax revenue is ‘required’ to prevent the Successor Agency from defaulting on the Bond Debt.” Finally, the trial court rejected petitioners’ argument that if the city as successor was not entitled to use the fund to make all bond payments, the city would be in violation of California’s constitutional debt limit. Based on the foregoing conclusions, the trial court granted the mandamus petition “in part, in that [the department] is ordered to recognize the Bond Debt as an enforceable obligation and to allow the Bond Debt to be paid with [the fund] to the extent the payments due and owing under the Lease are insufficient to satisfy the amount due on the Bond.” Petitioners timely appealed from the judgment. The department did not appeal or cross-appeal. DISCUSSION On appeal, petitioners contend the trial court erred in determining that the lease payments have to be used to make the bond payments before the city as successor is entitled to draw on the fund for that purpose. In advancing this contention, petitioners do not argue that the city as successor is entitled to use the fund under subdivision (a)(2)(B) 9 of section 34183. In other words, they concede that the agency’s tax increment revenues were not “pledged for the repayment of the bonds,” as required by subdivision (a)(2)(B). Instead, petitioners contend the bond payments were “required to be paid from former tax increment revenue” within the meaning of subdivision (a)(2)(C) and therefore the city as successor is entitled to use the fund to make the bond payments under that subdivision. And they contend the city as successor is entitled to use the fund under subdivision (a)(2)(C) before resorting to the lease payments, contrary to the trial court’s conclusion. For its part, the department contends petitioners’ reliance on subdivision (a)(2)(C) is “totally misplaced” because that subdivision “does not apply unless the Indenture imposes a binding obligation on the Successor Agency to make Bond Payments from Tax Revenues,” and here the indenture does not do so. We agree with the department that petitioners’ reliance on subdivision (a)(2)(C) is misplaced, but not for the same reason the department argues. Under subdivision (a)(2)(B) of section 34183, moneys in the fund can be allocated to a successor agency for “[p]ayments scheduled to be made on revenue bonds” if two conditions are satisfied: first, “only to the extent the revenues pledged for them are insufficient to make the payments,” and second, “only if the agency’s tax increment revenues were also pledged for the repayment of the bonds.” Unless both of these conditions are satisfied, the successor agency is not entitled to use the fund for the bond payments under the plain terms of subdivision (a)(2)(B) of section 34183. More important, though, for present purposes, is that if the conditions in subdivision (a)(2)(B) are not satisfied, then the successor agency has no right under subdivision (a)(2)(C) of section 34183 to access the fund to make the revenue bond payments disqualified under subdivision (a)(2)(B). This is so because, by its plain terms, subdivision (a)(2)(C) applies 10 only to “[p]ayments scheduled for other debts and obligations listed in the Recognized Obligation Payment Schedule that are required to be paid from former tax increment revenue.” (Italics added.) That is, subdivision (a)(2)(C) speaks to debts and obligations other than those already mentioned in subdivision (a)(2)(A) and (a)(2)(B) of the statute -- specifically, “[d]ebt service payments scheduled to be made for tax allocation bonds” and “[p]ayments scheduled to be made on revenue bonds.”3 When the statute is thus properly understood, it is evident that it does not matter whether the bond payments were “required to be paid from former tax increment revenue” within the meaning of subdivision (a)(2)(C) -- which is petitioners’ main argument in this appeal. Because the bond payments qualified as “[p]ayments scheduled to be made on revenue bonds,” the city as successor was entitled to money from the fund to make those payments, if at all, only pursuant to subdivision (a)(2)(B) and only if the conditions in that subdivision were met. In other words, because the debts or obligations at issue here are payments scheduled to be made on revenue bonds, they fall within the express purview of subdivision (a)(2)(B) and thus do not qualify as “other” debts or obligations that may fall within the purview of subdivision (a)(2)(C), even if they were required to be paid from former tax increment revenue. Thus, all of petitioners’ arguments regarding subdivision (a)(2)(C) are misplaced. This conclusion requires us to address two further arguments. First, petitioners contend that if the city’s lease payments are viewed as the primary repayment source for the bond debt -- which is the result of interpreting section 34183 as precluding the use of the fund for that purpose because tax increment was not pledged for the repayment of the bonds -- a violation of California’s constitutional debt limit (Cal. Const., art. XVI, § 18) results. Petitioners acknowledge that the deal, as originally structured, did “not violate 3 We understand this to be the position the department took in its initial rejection of the city as successor’s ROP statements. 11 the Constitutional Debt Limit because the City’s long-term general fund obligation is in the form of a lease (or sublease) payment that is exempt from Art[icle] XVI, [section] 18(a) under” what petitioners call the “Offner-Dean rule.”4 Nonetheless, petitioners argue that “if the City Lease Payments are placed in ‘first’ position for payment of the Bond Debt, the protections of the Offner-Dean rule are erased.” (Underlining omitted.) We disagree. As we have previously noted, the law provides that a successor agency “is a separate public entity from the public agency that provides for its governance and the two entities shall not merge” and “[t]he liabilities of the former redevelopment agency shall not be transferred to the sponsoring entity and the assets shall not become assets of the sponsoring entity.” (§ 34173, subd. (g).) Furthermore, “[t]he liability of any successor agency, acting pursuant to the powers granted under the act adding this part, shall be limited to the extent of the total sum of property tax revenues it receives pursuant to this part and the value of assets transferred to it as a successor agency for a dissolved redevelopment agency.” (Id., subd. (e).) Because the city and its general fund are insulated from direct liability for the bond debt under the provisions of section 34173, and the only liability of the city (as opposed to the city as successor, a separate public entity) is under the terms of the lease, which petitioners admit does not violate the constitutional debt limit, that limit does not affect our decision that the city as successor is not entitled under section 34183 to use the fund to make the bond payments. The second argument relates to the proper relief in this case. Our determination that subdivision (a)(2)(C) does not apply to payments on revenue bonds necessarily compels us to reject petitioners’ claim that the trial court erred in determining that the city as successor is entitled to use the fund under that subdivision only to the extent the city’s lease payments are insufficient for that purpose. Because subdivision (a)(2)(C) 4 See City of Los Angeles v. Offner (1942) 19 Cal.2d 483; Dean v. Kuchel (1950) 35 Cal.2d 444. 12 does not apply to payments on revenue bonds, the city as successor is not entitled to use the fund at all under that subdivision for the bond payments. This conclusion suggests that reversal of the trial court’s judgment would be the appropriate disposition, rather than the affirmance that usually would follow the rejection of an appellant’s arguments. To that end, in its respondent’s brief, the department urges us to reverse those portions of the trial court’s judgment that conclude the city as successor is entitled to use the fund under subdivision (a)(2)(C) to the extent the city’s lease payments are insufficient. The department acknowledges that it did not cross-appeal from the judgment, but argues that we may reverse nonetheless because the erroneous portions of the judgment are “interwoven with the issues raised on Santa Maria’s appeal.” In their reply brief, petitioners urge us to reject the department’s request for reversal because “a respondent who does not file a cross-appeal cannot assert error or seek relief.” The applicable rule can be found in In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 690, where the court wrote as follows: “As a general rule, a judgment becomes final against a nonappealing party even though reversed on the appeal of another party. However such a rule does not apply ‘where portions of the judgment adverse to a nonappealing party are so interwoven with the whole that appeal from a part affects the other parts; in such a situation, the appellate court can reverse the entire judgment if it is necessary to do justice.’ [Citations.] ‘The test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or interdependent upon, the matters or issues which have not been attacked. (Cites omitted.) 13 “. . . [T]he judgment is severable when the original determination of those issues by the trial court and reflected in the judgment or any determination which could be made as the result of an appeal cannot affect the determination of the remaining issues of the suit . . . .” (Cite omitted.)’ ” Here, the issue raised by petitioners’ appeal was whether the trial court properly interpreted and applied subdivision (a)(2)(C) of section 34183 to the facts of this case. We have concluded that the court did not do so, but our conclusion in that regard actually turns out to favor the department rather than petitioners. We cannot do justice here by determining, as we have, that subdivision (a)(2)(C) does not apply to payments on revenue bonds and yet upholding a trial court judgment that concludes otherwise. It is not a question of whether the department did or did not cross-appeal from the judgment. It is a question of properly interpreting the law and applying that interpretation to properly dispose of the matter before us. Here, that requires us to reverse the judgment, even though the department did not cross-appeal. In summary, we conclude the trial court erred in its interpretation of section 34183. Because tax increment revenues were not pledged for the repayment of the bonds at issue here, the city as successor is not entitled to use the fund to make payments on those bonds, whether the city’s lease payments are insufficient for that purpose. Accordingly, the trial court erred in granting petitioners relief on their petition and complaint. The proper disposition of this action is a judgment in favor of the department. 14  DISPOSITION The judgment is reversed, and the case is remanded to the trial court with directions to enter a new and different judgment in favor of the director. The department shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).) /s/ Robie, Acting P. J. We concur: /s/ Murray, J. /s/ Hoch, J. 15 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 30 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SAMUEL ANTHONY ACINELLI, Jr., No. 15-56955 Plaintiff-Appellant, D.C. No. 5:13-cv-00381-AB-PLA v. BLACKMON, Lt. Supervisor of Work MEMORANDUM* Assignments, individual capacity and official capacity, Defendant-Appellee. Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding Submitted January 18, 2017** Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges. Samuel Anthony Acinelli, Jr., a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs arising from his work * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). assignment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Acinelli failed to raise a genuine dispute of material fact as to whether defendant Lt. Blackmon was deliberately indifferent to Acinelli’s health by not removing Acinelli from his work assignment. See id. at 1057 (a prison official acts with deliberate indifference only if he or she knows of and disregards an excessive risk to the prisoner’s health); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (“[T]he Eighth Amendment does not apply [to prison labor conditions] unless prisoners are compelled to perform physical labor which is beyond their strength, endangers their lives or health, or causes undue pain.”). AFFIRMED. 2 15-56955 

976 A.2d 224 (2009) BELL v. U.S. No. 05-CF-737. District of Columbia Court of Appeals. July 28, 2009. Decision without published opinion. Affirmed and remanded.

34 So.3d 722 (2009) James Richard GUY v. STATE of Alabama. CR-08-0871. Court of Criminal Appeals of Alabama. October 2, 2009. *723 William D. King IV, Carrollton, for appellant. Troy King, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee. WISE, Presiding Judge. The appellant, James Richard Guy, entered a guilty plea to second-degree theft of property, a violation of § 13A-8-4, Ala. Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of fifteen years in prison. See § 13A-5-9(c)(1), Ala.Code 1975. It also ordered him to pay $1,115,000 in restitution to the victim. Guy filed a "Motion for Restitution Hearing and to Modify Sentence," which the trial court denied. This appeal followed. At the end of the guilty plea proceedings in this case, the trial court sentenced Guy and ordered him to pay $1,115,000 in restitution. The State did not present any testimony or documentary evidence regarding the amount of restitution during the guilty plea proceedings. In fact, the record is silent as to how the trial court arrived at the amount of restitution it ordered. After the guilty plea proceedings, Guy filed a "Motion for Restitution Hearing and to Modify Sentence" in which he alleged that the amount of restitution was in error, alleged that the documents submitted by the victim did not support the amount of restitution ordered, and requested that the trial court conduct a restitution hearing and modify the amount of restitution ordered.[1] However, the trial court denied that motion. Guy argues that the trial court erroneously ordered him to pay restitution without first requiring the State to prove the amount of restitution due to the victim. The State concedes that it appears that Guy has been denied a restitution hearing and that we should remand this case for the trial court to conduct a restitution hearing and to enter a final restitution order. "When a defendant is convicted of a criminal activity or conduct which has resulted in pecuniary damages or loss to a victim, the court shall hold a hearing to determine the amount or type of restitution due the victim or victims of such defendant's criminal acts. Such restitution hearings shall be held as a matter of course and in addition to any other sentence which it may impose, the court shall order that the defendant make restitution or otherwise compensate such victim for any pecuniary damages. The defendant, the victim or victims, or their representatives or the administrator of any victim's estate as well as the district attorney shall have the right to be present and be heard upon the issue of restitution at any such hearings." § 15-18-67, Ala.Code 1975. Also, this court addressed a similar situation in Alford v. State, 651 So.2d 1109, 1113-14 (Ala. Crim.App.1994), as follows: "The appellant further contends that the trial court erred in ordering restitution without requiring proper proof. We agree. The restitution statute requires *724 that the parties involved have an opportunity to be heard on the restitution issue. Varner v. State, 497 So.2d 1135 (Ala.Cr.App.1986). A defendant in a restitution hearing is entitled to a hearing at which legal evidence is introduced to determine the precise amount of restitution due the victim. Henry v. State, 468 So.2d 896 (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985). After examining the record of the restitution hearing and the restitution order in the instant case, we are of the opinion that they do not meet the requirements of §§ 15-18-65, et seq.; Rule 26.11, Ala. R. Cr. P.; and Alabama case law. The trial court failed to determine the precise amount of restitution to be paid based upon legal evidence. The restitution order is open-ended, i.e., the amount of restitution to be paid is left to future determination, is speculative, and is based upon vague and questionable testimony of the victim. No documentary evidence was introduced to support the amount awarded. Furthermore, the appellant had no opportunity to introduce evidence at the restitution hearing or to contest the testimony of the victim other than through cross-examination. Before a defendant can be held liable for restitution, it must be established that his criminal act was the proximate cause of the injury for which the victim is seeking restitution. Strough v. State, 501 So.2d 488 (Ala.Cr.App.1986). "We set aside the restitution order in this case and remand the case to the trial court for a new restitution hearing for the purpose of determining restitution in accordance with the restitution statutes and Rule 26.11. At that hearing, the appellant, represented by counsel, will be given an opportunity to appear and to present evidence in his behalf." Based on the record before us, we conclude that the trial court erroneously ordered Guy to pay restitution without conducting a restitution hearing and without requiring the State to prove the amount of restitution owed to the victim. Accordingly, we reverse the trial court's judgment ordering Guy to pay $1,115,000 in restitution and remand this case for the trial court to conduct a hearing regarding the amount of restitution owed to the victim. REVERSED AND REMANDED. WELCH, WINDOM, KELLUM, and MAIN, JJ., concur. NOTES [1] The record on appeal does not include any documents the victim may have submitted regarding the amount of restitution.

127 S.W.3d 826 (2003) Brandon PEREZ, by and through his next friend, Debra PEREZ, Individually and on behalf of similarly situated individuals, Appellant, v. BLUE CROSS BLUE SHIELD OF TEXAS, INCORPORATED, Appellee. No. 03-03-00183-CV. Court of Appeals of Texas, Austin. December 18, 2003. Rehearing Overruled March 4, 2004. *828 Garth A. Corbett, James H. Keahey, Austin, for appellant. Michael S. Hull, Andrew F. MacRae, Hull, Hendricks & MacRae, L.L.P., Austin, for appellee. Before Chief Justice LAW, Justices B.A. SMITH and JAN P. PATTERSON. OPINION JAN P. PATTERSON, Justice. In this insurance case, we must decide whether articles 21.21-6 and 21.21-8 of the insurance code allow a cause of action for denial of health insurance coverage to an individual with Down Syndrome. Appellant Brandon Perez, by and through his next friend, Debra Perez, individually and on behalf of similarly situated individuals, appeals the district court's grant of summary *829 judgment in favor of appellee Blue Cross Blue Shield of Texas ("BCBSTX" or "Blue Cross"). Perez contends in five issues that the district court erred because (i) although he now has health insurance through another insurance company, his causes of action are not moot; (ii) he has valid claims under articles 21.21-6 and 21.21-8 of the insurance code; (iii) the denial of coverage was not based on the affirmative defense of "sound actuarial principles"; and (iv) the affidavit of Blue Cross's actuarial expert should have been excluded. For the reasons set forth below, we affirm the order of the district court granting Blue Cross's motion for summary judgment and denying Perez's motions for summary judgment. FACTUAL AND PROCEDURAL BACKGROUND The pertinent facts of this case are not in dispute. In August 2000, Debra Perez applied for an individual Blue Cross health insurance policy for herself and her twelve-year-old son, Brandon Perez. She stated on the application that Brandon has Down Syndrome[1] but is "very, very healthy." Blue Cross provided coverage for Debra but excluded Brandon from the policy because of his diagnosis of Down Syndrome. Debra requested reconsideration of the decision, asking why Blue Cross never requested copies of Brandon's medical records or interviewed his doctor. She enclosed with her request a letter from Miguel Ibarra, M.D., Brandon's doctor for ten years, who stated that Brandon did not require any more medical care than any other healthy boy his age. Blue Cross did not reconsider the application. In an internal e-mail some months later, a Blue Cross representative wrote that "[w]e did not request any medical information on Brandon because Down's Syndrome is an automatic decline in our Underwriting Guidelines." Brandon, through his mother, filed suit in Travis County on behalf of himself and a putative class of all persons denied health insurance "based on a Down Syndrome diagnosis."[2] Perez sought a declaratory judgment that Blue Cross's practice of denying coverage to "healthy persons with Down Syndrome" violates, among other statutes, articles 21.21-6 and 21.21-8 of the insurance code and section 17.46(b)(12) of the deceptive trade practices act (DTPA). See Tex. Ins.Code Ann. arts. 21.21-6, 8 (West Supp.2004); Tex. Bus. & Com.Code Ann. § 17.46(b)(12) (West Supp.2004).[3] Perez further sought to enjoin Blue Cross from denying health insurance coverage to "individuals diagnosed with Down Syndrome." Both Perez and Blue Cross filed traditional motions for summary judgment. Perez contended that he was entitled to summary judgment because Blue Cross did not raise the affirmative defense that its decision to deny coverage was based on "sound underwriting or actuarial principles *830 reasonably related to actual or anticipated loss experience." Tex. Ins.Code Ann. art. 21.21-6, § 4(a). Blue Cross raised the affirmative defense in an amended answer and asserted that it was entitled to summary judgment because: Perez's claims were moot because he obtained health insurance through another insurance company; Perez did not have valid causes of action under articles 21.21-6 and 21.21-8 of the insurance code; and the denial of health insurance coverage was justified because it was based on sound underwriting or actuarial principles reasonably related to actual or anticipated loss experience. Perez then filed a no-evidence motion for summary judgment on the ground that Blue Cross presented no evidence of its affirmative defense, in part because Blue Cross's actuarial expert, Jay Ripps, did not support his conclusions in his affidavit with actuarial data and based his conclusions on "additional materials provided to me by counsel." The district court granted Blue Cross's motion for summary judgment, denied Perez's motions for summary judgment, and overruled Perez's objection to the Ripps affidavit. Perez appeals the grant of summary judgment in favor of Blue Cross, the failure to exclude the Ripps affidavit, and the denial of his own motions for summary judgment. ANALYSIS Whether Perez's Claims are Moot In his first issue, Perez contends that the district court erred in granting summary judgment because his claims are not moot. Blue Cross argues that this case is moot because Perez has obtained health insurance through another insurer. We disagree with Blue Cross. Under the mootness doctrine, appellate courts may only determine cases in which an actual controversy exists. See Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex.1988); University Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex.App.-Austin 1993, no writ). In general, a case becomes moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Here, Perez retains a legally cognizable interest in the outcome were a court to issue an injunction that Blue Cross discontinue its practice of denying health insurance coverage to people with Down Syndrome. Furthermore, Perez has a live claim for actual damages. Because his causes of action are not moot, we sustain Perez's first issue. Admissibility of Blue Cross's Actuarial Expert Witness Affidavit In his fifth issue, Perez asserts that the district court erred by failing to exclude the affidavit of Jay Ripps, Blue Cross's actuarial expert witness. Perez contends that Ripps's reliance on "additional materials provided to me by counsel" is improper summary judgment proof because it cannot be readily controverted. See Tex.R. Civ. P. 166a(c). The standard for the admissibility of expert testimony is the same on summary judgment as at trial. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). In determining whether the testimony is admissible, the trial court does not determine whether the expert's conclusions are correct, but only whether the analysis used to reach the conclusions is reliable. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 720 (Tex.1998). *831 As an appellate court, we do not consider the admissibility or inadmissibility of the evidence de novo. Instead, we review the trial court's decision under an abuse of discretion standard, inquiring whether the trial court acted without reference to any guiding rules or principles. See Longoria, 938 S.W.2d at 31; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, setting forth such facts as would be admissible in evidence, and must affirmatively show that the affiant is competent to testify to matters stated therein. Tex.R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Expert testimony must be comprised of more than conclusory statements and must be specific. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997). Additionally, the expert's affidavit must rest on a reliable foundation. Robinson, 923 S.W.2d at 556-57. Perez did not contest Ripps's qualifications. His chief objection was that Ripps relied on unidentified "additional materials" that could not be controverted and were not of the type reasonably relied upon by experts in his field. Our examination of the affidavit reveals that although Ripps listed "additional materials provided to me by counsel" in his general statement of documents upon which he relied, he specifically identified the particular source or sources for each of his opinions. For example, for his opinion that Down Syndrome leads to associated medical expenses, he identified the affidavits of Golder Wilson, M.D. and Benjamin Carnovale, M.D. For many other conclusions, he stated that his opinions were "[b]ased on my review of the affidavits of Dr. Benjamin Carnovale, Dr. Golder Wilson, and Mr. David Wilson, and on Actuarial Standard and Actuarial Statement." Ripps had previously identified the last two documents in full. The Actuarial Standard, which "articulate[s] actuarial principles for the actuarial profession in the United States," was based on the Actuarial Statement, which Ripps assisted in drafting when he was chair of the American Academy of Actuaries' Committee on Risk Classification. We cannot say that these documents were not of the type reasonably relied upon by experts in his field. "Could have been readily controverted" does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather signifies that the testimony could have been effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). That Ripps tied each of his opinions to specific documents gave Perez a sufficient basis on which to present opposing evidence. Accordingly, we do not find that the district court abused its discretion in admitting the Ripps affidavit. We overrule Perez's fifth issue. Summary Judgment Standard of Review Perez's remaining issues pertain to the parties' cross-motions for summary judgment. Blue Cross filed a traditional motion for summary judgment that included an assertion of an affirmative defense, whereas Perez filed both traditional and no-evidence motions. The standards for review of a traditional summary judgment are well established: the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take *832 evidence favorable to the nonmovant as true; and the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant moving for summary judgment must disprove at least one essential element of each of the plaintiff's theories of recovery or conclusively establish each element of an affirmative defense to prevail. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996). The plaintiff, as nonmovant as to defendant's affirmative defense, does not have any burden of proof unless the defendant proves conclusively all elements of its affirmative defense. See Rhone-Poulenc, 997 S.W.2d at 222-23. A party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the nonmovant's claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i). The nonmovant is not required to marshal its proof,[4] but it must point out evidence that raises a fact issue. Id. 166a(i) cmt. To raise a genuine issue of material fact, the nonmovant must set forth more than a scintilla of probative evidence to support each challenged element of the claims on which the nonmovant has the burden of proof at trial. See id. 166a(i); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of fact, and the legal effect is that there is no evidence. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex.App.-Austin 1998, no pet.) (quoting Kindred v. Con/ Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). If the nonmovant fails to present evidence raising a genuine issue of material fact as to the challenged element, the trial court must grant the motion. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. Jackson, 979 S.W.2d at 70. Generally, a party cannot appeal the denial of a motion for summary judgment because it is an interlocutory order and thus not appealable. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996). However, when both parties move for summary judgment and the district court grants one motion and denies the other, the unsuccessful party may appeal both the prevailing party's motion and the denial of its own. See Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). We will review the summary judgment evidence presented by both sides, determine all questions presented, and render such judgment as the trial court should *833 have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). We are required to consider all summary judgment grounds the trial court ruled on that are preserved for appellate review and are necessary for final disposition of the appeal. Cates, 927 S.W.2d at 625-26. In reviewing a summary judgment in which the trial court has not provided the specific basis for its decision, we must review each argument asserted in the motion and affirm the trial court's judgment if any of these arguments is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). We review the trial court's decision to grant summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). Cause of Action under Article 21.21-6 of the Insurance Code In his third issue, Perez asserts that he has a valid cause of action under article 21.21-6 of the insurance code. Tex. Ins. Code Ann. art. 21.21-6. Although Perez agrees with Blue Cross that article 21.21-6 does not provide for a private right of action because only the insurance commissioner may assess penalties under this provision, see id. § 5(a), he nevertheless contends that he may assert a claim under article 21.21-6 by way of insurance code article 21.21-8 and the DTPA "laundry list." See id. art. 21.21-8; Tex. Bus. & Com.Code Ann. § 17.46(b) (West Supp. 2004). This requires us to apply principles of statutory construction. Statutory construction is a question of law, which we review de novo. Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). We must ascertain and give effect to the legislature's intent for the provision we are construing. See Fleming Foods v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994); Calvert v. Texas Pipe Line Co., 517 S.W.2d 777, 780 (Tex.1974). The legislature's intent should be determined by reading the language used in the particular statute and construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998); Taylor v. Firemen's & Policemen's Civil Serv. Comm'n, 616 S.W.2d 187, 190 (Tex. 1981). Further, we should read every word, phrase, and expression in a statute as if it were deliberately chosen, and presume the words excluded from the statute are done so purposefully. See Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied); City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex.App.-Austin 1996) (citing Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)), aff'd, 7 S.W.3d 109 (Tex.1999); see also 2A Norman J. Singer, Sutherland Statutory Construction § 47.25 (6th ed.2000) (stating that there is generally an inference that omissions from a statute are intentional). Article 21.21-6 does not on its face provide a private cause of action. See Tex. Ins.Code. Ann. art. 21.21-6. Unlike article 21.21-8, article 21.21-6 is silent on the availability of a private civil remedy for an alleged violation. Compare id. with id. art. 21.21-8. Section five of article 21.21-6 addresses remedies for its violation, speaking only to administrative remedies that the insurance commissioner may pursue: "any legal entity ... found to be in violation... is subject to the sanctions authorized by Chapter 82 of this code or administrative penalties authorized by Chapter 84 of this code. The commissioner may also utilize the cease and desist procedures authorized by Chapter 83 of this code." Id. art. 21.21-6, § 5. *834 By analogy, article 21.21-2 of the insurance code, prohibiting unfair claim settlement practices, also does not explicitly provide for a private cause of action; instead, it outlines detailed administrative remedies that the commissioner may pursue. See id. art. 21.21-2 (West Supp. 2004). The supreme court has held that article 21.21-2 does not create a private cause of action for violations of that article. Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 148-49 (Tex.1994); see also American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 847 n. 11 (Tex.1994) (Article 21.21-2 is "subject to enforcement only by the State Board of Insurance."). The reasoning of Allstate applies because article 21.21-6, while not spelling out specific administrative remedies, incorporates remedies set forth in chapters 82, 83, and 84 of the insurance code. Tex. Ins.Code Ann. art. 21.21-6, § 5(a). Thus, we rely on Allstate to hold that there is no private cause of action available under article 21.21-6. We now turn to our examination of article 21.21-6 and its relationship with article 21.21-8. Under article 21.21-6, entitled "Unfair Discrimination," "[n]o person shall engage in any practice of unfair discrimination which is defined in this article or is determined pursuant to this article to be a practice of unfair discrimination in the business of insurance." Id. § 1. Unfair discrimination includes "refusing to insure ... because of disability or partial disability." Id. § 3(c). Article 21.21-8 provides that "[n]o person shall engage in any unfair discrimination by making or permitting any unfair discrimination between individuals of the same class and of essentially the same hazard." Id. art. 21.21-8, § 2. Perez contends that a violation of article 21.21-6 is a violation of article 21.21-8 because (i) both provisions were enacted in the same legislative session and refer to each other; (ii) 21.21-8, being more general, encompasses the more specific article 21.21-6; and (iii) the legislature intended both statutes to address the same types of problems by entitling them both "Unfair Discrimination" and applying both to insurers. Blue Cross disputes that Perez may bring a cause of action under article 21.21-6 and counters that even if Perez may bring a claim under this provision, Blue Cross's decision not to insure was not a violation because it was "based upon sound underwriting or actuarial principles reasonably related to actual or anticipated loss experience." Id. art. 21.21-6, § 4(a) (affirmative defense to allegation of unfair discrimination). As to Perez's first argument, the provisions do not refer to each other. Without such a cross-reference or some demonstration in the legislative history of an interrelationship, we cannot say that the remedy in article 21.21-8 encompasses that in article 21.21-6 simply because the provisions were enacted in the same legislative session. If anything, the opposite is true because, as discussed below, the statutes offer different remedies. Concerning Perez's second argument, assuming without deciding that article 21.21-8 is more general than article 21.21-6, it is a well-settled principle of statutory construction that a more specific statute controls over a more general one. See, e.g., Columbia Hosp. Corp. of Houston v. Moore, 92 S.W.3d 470, 473 & n. 19 (Tex.2002). As to Perez's third argument, our examination of the statutes and their legislative history does not lead us to conclude that one may bring a private cause of action through article 21.21-6 by way of article 21.21-8. The fact that article 21.21-8 provides *835 for a private cause of action, see id. art. 21.21-8, § 3, whereas article 21.21-6 allows only a public remedy, see id. art. 21.21-6, § 5, belies the suggestion that one provision encompasses the other. This distinction is borne out by the legislative history. The caption for article 21.21-6, enacted as part of a bill providing public remedies, reads that the act relates "to certain acts of unfair discrimination in the business of insurance ... providing administrative remedies." Act of June 8, 1995, 74th Leg., R.S., ch. 415, § 1, 1995 Tex. Gen. Laws 3005, 3005 (emphasis added). Article 21.21-8 was enacted in a separate chapter containing consumer protection provisions. The caption reads that the act relates "to civil remedies for deceptive, unfair, or discriminatory practices." Act of June 8, 1995, 74th Leg., ch. 414, § 18, 1995 Tex. Gen. Laws 2988, 3003 (emphasis added). We are also mindful of our holding that the definitions of "unfair discrimination" in the two provisions are not interchangeable. See Cortez v. Progressive County Mut. Ins. Co., 61 S.W.3d 68, 73 (Tex.App.-Austin 2001), pet. granted, judgm't vacated pursuant to settlement ("[W]hile article 21.21-6 prohibits discrimination based on differential treatment of members of different classes, article 21.21-8 prohibits discrimination based on differential treatment between individual members within the same class."). Accordingly, we hold that Perez may not bring a private cause of action under article 21.21-6 by way of article 21.21-8. Perez also asserts that he may bring a cause of action under article 21.21-6 through the DTPA laundry list. Blue Cross does not contend that the DTPA has no application, only that Perez has no claim under the DTPA because he is not a consumer. A consumer under the DTPA is a person who seeks or acquires goods or services by purchase or lease. See Tex. Bus. & Com.Code Ann. § 17.45(4) (West 2002). However, because the record does not demonstrate that Blue Cross presented this argument to the trial court, it is waived for purposes of appeal. Assuming without deciding that the DTPA does apply, there was no evidence of a DTPA violation: Perez argues that Blue Cross's discrimination violated an "unlisted practice" in the DTPA laundry list. The supreme court has held, however, that although the laundry list is not exclusive for DTPA purposes, it is exclusive for deceptive trade practices claims through article 21.21 of the insurance code. Watson, 876 S.W.2d at 149. More importantly, Perez's petition referred specifically and only to section 17.46(b)(12) of the laundry list, which requires evidence of "representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law." Tex. Bus. & Com.Code Ann. § 17.46(b)(12). There is no evidence that Blue Cross made any such representations. In the application for health insurance, Blue Cross made no promise that it would provide coverage. It instead declared that "This application does not provide coverage of any kind unless approval is provided by Blue Cross and Blue Shield of Texas, Inc." Having found that Perez cannot bring a private cause of action under article 21.21-6 by way of article 21.21-8 and did not present evidence of a DTPA violation, we need not address Blue Cross's contention that it established its affirmative defense as to Perez's article 21.21-6 claim. We overrule Perez's third issue. Cause of Action under Article 21.21-8 of the Insurance Code In his second issue, Perez contends he has a valid cause of action under *836 article 21.21-8. This provision states that "[n]o person shall engage in any unfair discrimination by making or permitting any unfair discrimination between individuals of the same class and of essentially the same hazard." Tex. Ins.Code Ann. art. 21.21-8, § 2. Perez argues that because the relevant class is either "the average person" or "all twelve-year-old boys," Blue Cross engaged in unfair discrimination by refusing to insure someone within the class who has Down Syndrome. Blue Cross counters that Perez may not maintain an action under article 21.21-8 because he did not satisfy the statutory requirement of sustaining economic damages. See id. § 3(a). Blue Cross, however, did not raise this argument in the trial court; therefore, we may not consider it. Blue Cross further contends that refusal to insure does not constitute unfair discrimination under article 21.21-8 because section two of the provision does not include the phrase "refusing to insure." See id. § 2. However, under section four, entitled "Affirmative Defenses," an insurance company is not in violation of section two if a "refusal to insure," among other actions, "is based upon sound actuarial principles." Id. § 4. Thus, reading sections two and four together, as we must, article 21.21-8 prohibits an insurance company's refusal to insure one person of the "same class and of essentially the same hazard" as another person who receives coverage. Blue Cross next contends that, because only persons with Down Syndrome constitute "individuals of the same class and of essentially the same hazard," it did not unfairly discriminate in declining to insure all persons within that class. Blue Cross argues in the alternative that it proved as a matter of law that its refusal to insure was based on "sound actuarial principles," an affirmative defense to a claim under article 21.21-8. Id. Even assuming that the relevant class is either "the average person" or "all twelve-year-old boys," as Perez proposes, Blue Cross's conduct did not constitute unfair discrimination under article 21.21-8. Unfair discrimination occurs when an insurance company treats a person differently, without justification, than another person not only of the same class but also "of essentially the same hazard." Id. § 2 (emphasis added). Here, both sides presented evidence that a person with Down Syndrome is not of essentially the same hazard as a person without the disability. The affidavit of Golder Wilson, M.D., Perez's medical expert, alone establishes that persons with Down Syndrome have up to a fifty percent incidence of heart problems, seventy percent incidence of vision and hearing deficits, and ninety percent incidence of periodontal disease. He further stated that "over 50 percent of individuals with Down Syndrome have medically uneventful lives," which implies that a large percentage has increased medical risks. The affidavit of Benjamin Carnovale, M.D., Blue Cross's medical expert, establishes that people with Down Syndrome "frequently have a lowered resistance to infection," "are at greater risk from autoimmune diseases," and are more likely to suffer seizures than people without Down Syndrome. With those statistics, we cannot say that a person with Down Syndrome is of essentially the same hazard as a person without the disability. Therefore, we conclude that Blue Cross's refusal to insure Perez because he has Down Syndrome did not constitute unfair discrimination under article 21.21-8 between individuals of the same class and essentially the same hazard. If the relevant *837 class is all persons, both parties presented sufficient proof that persons with Down Syndrome have greater medical risks than the average person and therefore are not of the same hazard as the average person. If the relevant class is all persons with Down Syndrome, then Blue Cross did not unfairly discriminate because it treated all persons within that class and hazard in the same manner. We overrule Perez's second issue. In light of our disposition of Perez's second and third issues concerning his causes of action under articles 21.21-6 and 21.21-8, we need not address whether Blue Cross's denial of coverage was based on sound actuarial principles. We affirm the order of the district court granting Blue Cross's motion for summary judgment and denying Perez's motions for summary judgment. CONCLUSION Perez's claims are not moot simply because he has since obtained health insurance from another insurance company. He retains a legally cognizable interest, at the least, in his claim for injunctive relief that Blue Cross discontinue the practice of declining to insure people with Down Syndrome. Further, we do not find that the district court abused its discretion in admitting the affidavit of Blue Cross's actuarial expert witness. Although the expert relied generally, in part, on "additional materials provided to me by counsel," he tied each of his opinions to specific documents. We cannot say that the specific documents on which he relied were not of the type reasonably relied upon by experts in his field. Perez may not maintain a cause of action under article 21.21-6 of the insurance code because (i) the statute provides only for a public remedy; (ii) the statute does not tie in with article 21.21-8 to create a private right of action; and (iii) Perez did not present sufficient proof of a cause of action under the DTPA laundry list by way of article 21.21-6. See Tex. Ins.Code Ann. arts. 21.21-6, 8; Tex. Bus. & Com. Code Ann. § 17.46(b). Perez additionally may not maintain a cause of action under article 21.21-8 because Blue Cross's policy of declining to insure all persons with Down Syndrome does not unfairly discriminate between persons of the same class and of essentially the same hazard. See Tex. Ins.Code Ann. art. 21.21-8, § 2. For these reasons, we affirm the order of the district court granting Blue Cross's motion for summary judgment and denying Perez's motions for summary judgment. NOTES [1] Down Syndrome is a "syndrome of mental retardation associated with a variable constellation of abnormalities caused by representation of at least a critical portion of chromosome 21 three times instead of twice in some or all cells," including a broad short skull, rounded small ears, and broad hands with short fingers. See Stedman's Medical Dictionary 1386 (5th Lawyer's ed.1982). [2] Because no class certification hearing was held, this appeal is limited to Perez's individual suit. [3] Because the substance of the statutes relevant to this case has not changed in recent legislative sessions, for convenience we will refer to the current codes. [4] To "marshal one's evidence" means to arrange all of the evidence in the order that it will be presented at trial. In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex.App.-Texarkana 1998, orig. proceeding).

258 S.W.3d 218 (2008) In the Matter of T.W.C., Appellant. No. 01-06-01150-CV. Court of Appeals of Texas, Houston (1st Dist.). April 24, 2008. *219 Mark B. Jones, Perry R. Stevens, Angleton, TX, for Appellant. Jeri Yenne, Criminal District Attorney, Joseph Kyle Verret, Brazoria County District Attorneys Office, Angleton, TX, for Appellee. Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND. OPINION SHERRY RADACK, Chief Justice. T.W.C., a juvenile, was adjudicated for engaging in delinquent conduct by committing *220 an aggravated assault.[1] Pursuant to a plea bargain with the State, the trial court assessed punishment at a six-year determinate sentence probation. In this appeal, we consider whether appellant's plea was involuntary in light of an erroneous admonishment given him by the trial court. We reverse and remand. Erroneous Admonishment Appellant contends that his plea was involuntary because the trial court erroneously informed him that the maximum punishment he could receive in the case was 40 years' punishment. At the initial setting for appellant's adjudication, the trial court admonished appellant as follows: You are here today because the State has filed a petition alleging delinquent conduct against you with an additional proviso of requesting a determinate sentence. A consequence of that petition if I find it to be true could be to place you on probation inside or outside of your home, or I could place you with the Texas Youth Commission or send you to the Youth Commission, then at age 18 cause a review to be had in order to determine whether to send you home or to the Texas Department of Criminal Justice Institutional Division for up to 40 years. You understand that? Both appellant and the State indicated that they were not ready to proceed with adjudication, so the trial court continued the hearing. When the hearing resumed a week later, the trial court again admonished appellant as follows: [Appellant], you are here today because the State has filed a petition against you alleging delinquent conduct and for determinate sentencing, is my understanding..... A consequence of that petition if I find it to be true could be to put you on probation inside or outside of your home or commitment to run out of the Texas Youth Commission into the Texas Department of Criminal Justice Institutional Division. In other words, prison. That could go up to 40 years. Do you understand that? "The Family Code requires a trial court to give certain explanations to a juvenile who is accused of criminal conduct that could result in an adjudication of delinquency." In re D.I.B., 988 S.W.2d 753, 755 (Tex.1999). Relevant to this case, the Family Code provides: (b) At the beginning of the adjudication hearing, the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem: (2) the nature and possible consequences of the proceeding, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding. TEX. FAM.CODE ANN. § 54.03(b)(2) (Vernon Supp.2007). Appellant alleges, and the State concedes, that the trial court's statements regarding a possible 40-year punishment were incorrect. Appellant was charged with aggravated assault, a second degree felony. See Tex. Pen.Code Ann. § 22.02 (Vernon Supp.2007). Under the Family Code, in a determinate sentence situation, the maximum punishment that a juvenile can receive for a second degree felony is 20 years. See Tex. Fam.Code Ann. § 54.04(a)(B) (Vernon Supp.2007). Nevertheless, the State argues that appellant failed to preserve error. Thus, the issues we decide are whether (1) appellant was required to object to the erroneous admonishment; and (2) the effect of the erroneous admonishment, i.e., whether appellant's plea was involuntary because of it. *221 Is it necessary to object to an erroneous admonishment? Though the State has conceded error, it nonetheless argues that appellant has failed to preserve the error for appeal because he did not object to the erroneous admonition at trial. Specifically, the State relies on section 54.03(i) of the Family Code, which provides: In order to preserve for appellate or collateral review the failure of the court to provide the child the explanation required by Subsection (b), the attorney for the child must comply with Rule 33.1, Texas Rules of Appellate Procedure, before testimony begins or, if the adjudication is uncontested, before the child pleads to the petition or agrees to a stipulation of evidence. TEX. FAM.CODE ANN. § 54.03(i) (Vernon Supp.2007). Rule 33.1 of the Texas Rules of Appellate Procedure requires that, as a prerequisite for presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion and was ruled on by the trial court, or that the trial court refused to rule. See TEX.R.APP. P. 33.1. Prior to the enactment of section 54.03(i) of the Family Code, no objection was required to preserve error regarding the omission of the required juvenile admonishments. See In re C.O.S., 988 S.W.2d 760, 767 (Tex.1999). Since the enactment of section 54.03(i), it has been applied to require an objection to an omitted or incomplete admonishment. See In re C.C., 13 S.W.3d 854, 859-60 (Tex.App.-Austin 2000, not pet.). However, we can find no cases holding that an objection is required to preserve error regarding an erroneous admonishment.[2] Indeed, the express language of section 54.03(i) shows that it applies to "the failure of the court to provide the child the explanation required [by the statute]." (Emphasis added). In this case, the trial court did not fail to provide the child with the required information. The trial court admonished the child, but the information conveyed in the admonishment was not a correct statement of the law. "The purpose of these admonishments is to `assist children, who are too inexperienced and unskilled to fully understand the nature of juvenile proceedings and the possible consequences thereof'." In re A.D.D., 974 S.W.2d 299, 304 (Tex.App.-San Antonio 1998, no pet.) (quoting In re A.L.S., 915 S.W.2d 114, 116 (Tex.App-San Antonio 1996, no pet.)). A further purpose of the admonishments in a juvenile adjudication hearing is to ensure the voluntariness of the juvenile's plea. D.R.H. v. State, 966 S.W.2d 618, 621 (Tex.App.-Houston [14th Dist.] 1998, no pet.). The purpose of the juvenile admonishments would not be furthered by requiring the child to object when the trial court gives an admonishment that is not a correct statement of the law. Under these circumstances, and in light of the specific language of section 54.03(i), we conclude that the section does not apply, and no objection was required to raise the issue of the erroneous admonishment on appeal. How does an erroneous admonishment affect the voluntariness of a guilty plea? Thus, we turn to the issue of what effect, if any, the erroneous admonishment *222 had on appellant's plea. Because juvenile proceedings are quasi-criminal in nature, see In re M.A.F., 966 S.W.2d 448, 450 (Tex.1998), we find it appropriate to consider analogous cases in similar adult criminal proceedings. See In re D.I.B., 988 S.W.2d 753, 757 (Tex.1999) (considering Court of Criminal Appeals decisions in adult cases to determine whether failure to provide admonishments in juvenile proceeding is subject to harmless error review). The Code of Criminal Procedure requires that, prior to accepting a plea of guilty or nolo contendere, the trial court shall admonish the defendant, among other things, of the range of punishment attached to the charged offense. TEX.CODE CRIM. PROC. art. 26.13(a)(1) (Vernon Supp. 2007).[3] In Robinson v. State, 739 S.W.2d 795, 801 (Tex.Crim.App.1987), the court held that when the trial court delivers an incorrect admonishment as to the range of punishment, but the actual sentence falls within both the actual and misstated range, the trial court's admonishment substantially complies with article 26.13. Id. A trial court's substantial compliance with article 26.13 in admonishing a defendant constitutes a prima facie showing that the defendant's guilty plea was entered freely and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim. App.1998); Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.). The burden then shifts to the defendant to show that he was unaware of the consequences of his plea such that he suffered harm. Martinez, 981 S.W.2d at 197; Grays, 888 S.W.2d at 878. Such a showing requires more than "a bare, subjective assertion" in his appellate brief that the defendant did not know the correct range of punishment. Grays, 888 S.W.2d at 879. Instead, the record must demonstrate the defendant's lack of comprehension of the proper punishment range and the manner in which he was misled or harmed. Id. In many cases, the record on direct appeal will be insufficient to meet this burden. See Martinez, 981 S.W.2d at 197 ("The only support in the record for appellant's contention that his plea was involuntary is the incorrect admonishment form. The record contains no evidence which tends to indicate that appellant was actually harmed or misled in making his determination to enter a guilty plea."); Grays, 888 S.W.2d at 879 ("[T]here is nothing in the record before us indicating appellant did not know the true range of punishment for the offense charged.") ("Nothing in the record before us indicates appellant was misled by the trial court's admonishment into making a guilty plea and foregoing another choice that potentially could have resulted in a more favorable sentence.") In this case, the trial court's admonishment to appellant that he faced 40 years' punishment, though incorrect, substantially complied with section 54.03(b)(2) because the punishment assessed — 6 years — fell within the actual range of punishment and the misstated range of punishment. See Robinson, 739 S.W.2d at 801. Thus, the burden shifts to appellant to show that his plea was involuntary. See Martinez, 981 S.W.2d at 197. *223 In this case, there is more than "a bare, subjective assertion" in appellant's brief regarding the involuntariness of his plea. Appellant filed a pro se motion for new trial alleging that he was innocent and that his attorney told him that if he did not plead guilty he would get "15 years and at the most 40 years." The trial court held a hearing on appellant's motion for new trial. At the hearing, appellant testified that his attorney[4] told him that he faced 40 years' punishment and that he would not have pleaded guilty if he had known that he actually faced a lesser penalty. Appellant testified that he pleaded guilty because he was afraid that, if he did not, his attorney would quit and appellant would then get up to 40 years from the judge. Thus, unlike the defendant in Grays, there is affirmative evidence in this record that appellant did not know the true range of punishment for the charged offense. See 888 S.W.2d at 879. This evidence is not contradicted. In fact, at the motion for new trial hearing, appellant's trial counsel testified, "I don't remember telling him a maximum. The only number I ever told him was the 15 years [that the State had indicated it would seek if appellant went to trial]. As a matter of fact, the first time I ever heard of the maximum is when I was conferring with his newly-appointed attorney." Thus, the only evidence in the record shows that appellant believed that he faced 40 years' punishment, and that he was never told, either by the court or his own attorney, that he actually faced only 20 years' punishment. Further, unlike the defendant in Grays, there is affirmative evidence in this record that appellant's misunderstanding of the range of punishment caused him to forego "another choice that potentially could have resulted in a more favorable sentence." See Grays, 888 S.W.2d at 879. Specifically, appellant testified that he would not have pleaded guilty had he known that he faced a lesser penalty. This case is like Ex parte Smith, 678 S.W.2d 78 (Tex.Crim.App.1984). In Smith, the defendant was admonished that he faced between two and 20 years' punishment and a fine not to exceed $10,000, when he actually faced between two and 10 years' punishment and a fine not to exceed $5000. 678 S.W.2d at 79. At a habeas corpus hearing, appellant presented uncontroverted evidence that he would not have entered the plea bargain if he had known that the maximum penalty he faced was one half of what he was told. Id. Based on this evidence, the court found that Smith had met his burden of proving that his guilty plea was not knowingly and voluntarily entered. Id. at 79-80. Based on the record before us, we hold that, like the defendant in Smith, appellant has met his burden of showing that he was misled by the trial court's admonishment that he faced 40 years' punishment and that, but for his misunderstanding as to the true range of punishment, he would not have entered a guilty plea. Accordingly, we sustain appellant's second issue on appeal. In light of our disposition, we need not decide whether appellant also received ineffective assistance of counsel, and we decline to do so. Conclusion We reverse the judgment of the trial court and remand the cause for further proceedings. NOTES [1] See Tex. Pen.Code Ann. § 22.02 (Vernon Supp.2007). [2] We note that in adult criminal cases, no objection is required to preserve error based on a trial court's failure to properly admonish a defendant. See Bessey v. State, 239 S.W.3d 809, 812-13 (Tex.Crim.App.2007). The reasoning for this is that only a person who knows about an admonishment requirement, and thus does not need the admonition, would be in a position to object to the absence of the admonition. See id. at 815 (Johnson, concurring). [3] We note that Code of Criminal Procedure article 26.13(a)(1) specifically requires an admonishment as to the range of punishment, whereas Family Code section 54.03(b)(2) requires more generally that the court admonish the child on "the nature and possible consequences of the proceeding." We do not decide whether 54.03(b)(2) always requires a specific admonishment as to the range of punishment. Instead, we consider only the effect, if any, of an erroneous admonishment as to the range of punishment. [4] The motion for new trial alleged ineffective assistance based upon appellant's assertion that trial counsel also misinformed him as to the appropriate range of punishment.