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82 F.3d 410 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Guy R. JOHNSON, Plaintiff-Appellant,v.Eddie L. PEARSON; Joseph Garman; Willie Boswell; J.A.Smith, Jr., Defendants-Appellees. No. 95-7848. United States Court of Appeals, Fourth Circuit. Submitted March 21, 1996.Decided April 10, 1996. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, District Judge. (CA-95-1144-AM) Guy R. Johnson, Appellant Pro Se. E.D.Va. AFFIRMED. Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 Appellant appeals from the district court's order denying relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Johnson v. Pearson, No. CA-95-1144-AM (E.D.Va. Oct. 16, 1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

13 N.Y.3d 743 (2009) PEOPLE v. CRAWFORD (FLEXION). Court of Appeals of New York. August 7, 2009. Application in criminal case for leave to appeal denied. (Pigott, J.).

Filed 6/24/16 Cook v. Goncalves CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR KIMBERLY COOK, B259037 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SQ006469) v. PAUL GONCALVES, Defendant and Appellant. APPEAL from order of the Superior Court of Los Angeles County, Richard Montes, Judge. Affirmed. The Law Offices of Frances Prizzia and Frances Prizzia for Defendant and Appellant. Ishimatsu Law Group and Bruce Leslie Ishimatsu for Plaintiff and Respondent. ______________________________  Appellant Paul Goncalves appeals from a five-year restraining order entered against him pursuant to the Domestic Violence Prevention Act (DVPA). (Fam. Code, 1 § 6200 et seq.) The order protected respondent Kimberly Cook, her boyfriend James Cunningham, aunt Susan Hirsch, and father William Cook. Goncalves challenges (1) the court’s finding of “abuse” under section 6203; (2) the inclusion of Cunningham, Hirsch, and William Cook as additional protected persons; and (3) the denial of properly prepared and effective counsel. Finding no abuse of discretion, we affirm. FACTUAL AND PROCEDURAL SUMMARY Goncalves and Cook were in a relationship that Cook ended in October 2013. The two continued to communicate by text message and telephone until December 2013. On December 19, 2013, Cook sent Goncalves a text message, asking him not to text her. Goncalves continued to send her text messages, questioning her about why she ended the relationship. Cook responded to these messages. Approximately 30 minutes later, Goncalves texted her, “[I’]m coming to your house . . . tonight at 6 to tell you how I feel about you.” Cook responded, “[n]o way,” “I won’t be there,” and “Don’t threaten me.” He replied, “I’m not threatening you.” Cook then told him, “Do not come to my house. I swear to God. I will not handle that well. Do not.” She also asked him to leave her alone. He responded: “You won’t handle it well because it will remind you of how poorly you handled this[].” After she reiterated that she wanted to be left alone, Goncalves continued to send her text messages regarding the breakup and attempted to call her. Later that evening, Cook saw Goncalves parked outside her house. He proceeded to call her cell phone 32 times between the hours of 10:00 p.m. and 1:00 a.m. She did not answer the calls. She testified at the hearing that at the time she was really in fear. In late December 2013, Goncalves sent Cook text messages telling her, “[y]ou’re going to regret the day you did this to me, you immature witch,” and “‘I hope your fucking boyfriend cheats on you and no longer makes you feel safe, then starts dating 1 Subsequent section references are to the Family Code. 2 someone a week later, you fucking cunt.’” He also sent her a message calling her a “fucking evil person.” On December 27, 2013, Goncalves sent Cook another series of text messages asking how she could move on so quickly and telling her how hurt he felt. Cook again told Goncalves that she wanted to be left alone. That same day, Goncalves left three threatening voicemails on her phone. In early January 2014, Goncalves followed Cook as she was pulling into her work parking lot, and parked next to her. He lowered his window, yelled accusatory questions at her, exited his vehicle, and approached her vehicle, where he continued to question her about their relationship. Cook testified at the hearing that he was very animated, upset, and angry. She asked him to leave. Later that day, she went to the West Los Angeles Police Department and spoke with a detective about the incident in the parking lot and the prior incidents. On January 21, 2014, Cook received in the mail a six-page letter from Goncalves containing a “record of the terrible things [she] did and how it affected [him].” She testified at the hearing that the letter made her feel threatened. In February 2014, Goncalves posted comments on an Instagram photo of Cook, tagging Cook in the comment. One comment read: “Those zits must be from stress from the shitty, dishonest, stressful life she needs. It’s hard to be acting 100 percent of the time. #sociopath.” In March 2014, Cook observed Goncalves slowly driving past her house and parking around the corner. He exited his vehicle but returned when he saw her and drove away. In May 2014, Cook was driving on Olympic Boulevard, when she saw Goncalves drive past his work and pull up in a lane next to her. He lowered his window, appeared to be very upset, and began yelling, swearing, and calling her names. She testified at the hearing that she was “really fearful,” did not expect it, and that “[i]t came out of nowhere.” She also testified that he gave her “the finger.” In early June 2014, Cook saw Goncalves walking his dog outside her work. When he saw her exit the building, he turned and walked away. Cook filed for a temporary restraining order on June 12, 2014, and the court 3 granted it. The temporary restraining order included as additional protected persons James Cunningham and Susan Hirsch. The hearing for the permanent order began on August 19, 2014 and concluded the next day. The court granted the restraining order for a period of five years, and included James Cunningham, Susan Hirsch, and William Cook as additional protected persons. In its statement of decision, the court explained that “[t]he issue in this case is the credibility of the witnesses. I categorically state that I disbelieve the respondent in all of the critical points that he testified to.” The court also noted that the six-page letter Goncalves sent Cook “is a six-page document which someone might characterize as a rant, but it is the type of communication . . . that caused the legislature to pass this kind of legislation. That is, to prevent people like Mr. Goncalves from harassing and bothering other people.” Finally, the court stated, “[i]n every critical point of disagreement, I disbelieve Mr. Goncalves. There’s no other way to put it. I think he’s lying. I think he lied under oath. And he’s clearly somebody who cannot leave this person alone.” This timely appeal followed. DISCUSSION I An order granting a protective order under the DVPA is reviewed for abuse of 2 discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) In considering the evidence supporting such an order, we apply the substantial evidence standard of review. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) We 2 As a preliminary matter, we note that appellant’s opening brief violates the rule that every factual assertion be supported by a citation to the record. California Rules of Court, rule 8.204(a)(1)(C) requires that a reference in a brief be supported with a citation to the volume and page number of the record where the matter appears. The rule applies to both the factual background and argument sections of a brief. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16.) In the interest of justice, we shall respond to the legal arguments Goncalves makes; however, to the extent we fail to address a point made in the opening brief, the issue is treated as forfeited. (Foster v. Britton (2015) 242 Cal.App.4th 920, 928, fn. 6.) 4 accept as true all evidence tending to establish the correctness of the trial court’s findings and resolve every conflict in favor of the judgment. (Ibid.) Pursuant to the DVPA, a court may issue an order to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or testimony and additional information is provided to the court and shows reasonable proof of a past act or acts of abuse. (§ 6300; see also § 6220.) The DVPA defines domestic violence as “abuse” perpetrated against enumerated individuals, including a “person with whom the respondent is having or has had a dating or engagement relationship.” (§ 6211, subd. (c).) The statutory definition of abuse encompasses any behavior that has been or could be enjoined pursuant to section 6320. (§ 6203.) The behaviors outlined in section 6320 include “stalking, threatening, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.” The court did not abuse its discretion in finding that Goncalves’ behavior between the end of his relationship with Cook in late 2013 and June 2014 amounted to “abuse” within the meaning of section 6320. Instead of accepting that the relationship was over, Goncalves persisted in harassing Cook through telephone calls and text messages, demanding answers as to why she ended the relationship. In December 2013, he threatened to come to her house, after she asked him not to, drove to her house, parked his car outside, and proceeded to call her cell phone 32 times over a four-hour period. In January 2014, he followed her into her work parking lot, parked next to her, and continued to confront her about their relationship. In late January 2014, he mailed her a six-page letter, ranting about the way she had treated him and ended the relationship. In February 2014, he harassed her over social media, writing demeaning comments about her on an Instagram photo. Over the next three months he stalked her at her home and place of work, and he harassed her at a stoplight on Olympic Boulevard, swearing and calling her names. Because this conduct amounted to harassing and stalking behavior, 5 there was substantial evidence to support the trial court’s finding of abuse under section 6320. The same conduct also constitutes a disruption of the peace. (See Burquet v. Brumbaugh, supra, 223 Cal.App.4th at pp. 1142-1143, 1146-1147 [substantial evidence supporting restraining order where no evidence of physical abuse, but restrained party disturbed peace of ex-girlfriend by e-mailing, sending her text messages, and showing up unannounced at her home].) Goncalves relies on S.M. v. E.P. (2010) 184 Cal.App.4th 1249 for his claim that in order for conduct to be considered “abuse” under the DVPA the petitioner must fear for his or her personal safety. This reliance is misplaced. In that case, the Court of Appeal did not analyze the parameters of abusive conduct under the DVPA. Rather, the court considered whether the husband’s conduct as determined by the trier of fact constituted “abuse.” The wife testified that the couple were engaged in a heated conversation about the wife taking their child out of state when the husband ripped the covers off the bed and said he would kill her. (Id. at p. 1258.) But the trial court “specifically declined to find [the husband] had made a threat against [the wife].” (Id. at p. 1265.) According to the evidence credited by the trial court, the husband’s conduct consisted of pulling the covers off the wife and denying her permission to leave the house, which the Court of Appeal held does not constitute “abuse” under the DVPA. (Id. at p. 1266.) In contrast, this case, as we have discussed, involved a pattern of stalking and harassing conduct, spanning a six-month period. These behaviors are enumerated in section 6320 as conduct constituting “abuse.” Goncalves also argues that there was no evidence that he threatened physical harm or property destruction. The definition of “abuse” under the DVPA is expansive and includes a multitude of behaviors that are not limited to physical harm or destruction or a threat of physical harm or destruction. (Burquet v. Brumbaugh, supra, 223 Cal.App.4th at pp. 1146-1147; see also Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [former husband’s conduct in destroying mental or emotional calm of former wife by accessing, reading, and publicly disclosing her confidential emails constituted “abuse” under DVPA].) 6  Finally, Goncalves argues that the trial court’s decision regarding credibility is unsupported by the record. On issues of credibility, we defer to the trier of fact (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968) because such determinations are within its exclusive province. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.) II Section 6320 provides that, upon a showing of good cause, a protective order may include named family or household members. Goncalves argues that the restraining order is overbroad in its inclusion of Cook’s boyfriend Cunningham, aunt Hirsch, and 3 father William Cook but does not cite authority to support his claim. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.’ [Citation.] ‘[C]onclusory claims of error will fail.’ [Citation.]” (Lister v. Bowen (2013) 215 Cal.App.4th 319, 337.) Furthermore, Cunningham lives with Cook and is entitled to protection as a household member, and Hirsch and William Cook are entitled to protection as family members. (§ 6320.) Because Goncalves has demonstrated an inability to accept that his relationship with Cook is over, Cunningham’s status as Cook’s new boyfriend makes him a natural target. Regarding Hirsch, Cook, in her request for a restraining order, wrote that Goncalves had contacted Hirsch in order to find Cook. Goncalves admitted that he had 3 Goncalves cites two cases People v. Delarosarauda (2014) 227 Cal.App.4th 205 (Delarosarauda) and People v. Beckemeyer (2015) 238 Cal.App.4th 461 in his reply brief to support his claim, but as he acknowledges, both cases address postconviction orders governed by the Penal Code. The Penal Code sections addressed in those cases, sections 136.2, subdivision (i)(1), and 273.5, authorize a trial court to issue protective orders to protect either a victim or a witness in a criminal matter. Because Family Code section 6320 at issue in this case is more expansive and allows for protection orders to include family members and household members, we disagree with Goncalves that the principles of Delarosarauda and Beckemeyer guide the instant case. 7 contacted Hirsch and William Cook to talk about Cook. In his six-page letter, he said that he was not sorry for telling her aunt and her mom and dad “all the horrible things [she] did to [him].” In that same letter, Goncalves referenced a conversation he had with Hirsch, where he told her that he wanted answers from Cook. This evidence demonstrates that Goncalves contacted Cook’s family in an attempt to further harass and stalk her. III Lastly, Goncalves argues that the court did not allow him to have properly prepared and effective counsel. This contention is without merit. The trial court allowed Goncalves’ counsel the opportunity to cross examine Cook’s witnesses, and to call Goncalves’ own witnesses, and it continued the hearing an additional day, to allow Goncalves to introduce additional evidence. DISPOSITION The order is affirmed. Cook is entitled to her costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. EPSTEIN, P. J. We concur: MANELLA, J. COLLINS, J. 8 

Order Michigan Supreme Court Lansing, Michigan June 21, 2017 Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack 154857 David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 154857 COA: 332700 Ingham CC: 15-000175-FH BRIAN MICHAEL ALEXANDER, Defendant-Appellant. ________________________________________/ On order of the Court, the application for leave to appeal the October 6, 2016 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the Court of Appeals judgment that reversed the Ingham Circuit Court’s November 20, 2015 order granting the defendant’s motion for a new trial. Although the Court of Appeals correctly concluded that the trial court applied an improper standard in granting a new trial based on newly discovered evidence, it erred in further determining that the new evidence would not justify the grant of a new trial. The evidence – the discovery of the complainant’s cell phone records – was newly discovered, was not cumulative, and could not have been discovered with reasonable diligence and produced at trial. Whether this evidence “makes a different result probable on retrial,” People v Cress, 468 Mich 678, 692 (2003), should first be determined by the trial court. We REMAND this case to the Ingham Circuit Court to determine, applying the Cress standard, whether the newly discovered evidence justifies a new trial. We do not retain jurisdiction. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. June 21, 2017 a0614 Clerk 

214 B.R. 202 (1997) In re VALLEY STEEL PRODUCTS COMPANY, INC., et al., Debtors. THE OFFICIAL PLAN COMMITTEE, on behalf of the ESTATE OF VALLEY STEEL PRODUCTS COMPANY, INC., et al., Appellant, v. UNITED STATES of America, Appellee. No. 4:94CV1310-DJS. United States District Court, E.D. Missouri, Eastern Division. October 14, 1997. *203 Mark H. Zoole, Weier, Hockensmith & Sherby, P.C., St. Louis, MO, for defendant. Robert E. Eggmann, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Official Plan Committee. MEMORANDUM OPINION STOHR, District Judge. This matter is before the Court on an appeal by the Official Plan Committee ("the Committee"), on behalf of the Estate of Valley Steel Products Co., Inc., et al., from a final Order of the United States Bankruptcy Court for the Eastern District of Missouri, Eastern Division, In re Valley Steel Products Company, Inc., et al., Adversary No. 93-4366-293 (Bankr.E.D. Mo. June 2, 1994). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 158(a). After careful consideration, for the reasons set forth below, the Court reverses the decision of the Bankruptcy Court. A. Procedural Background On February 4, 1992, Valley Steel Products Co., Inc. and several affiliated companies ("debtors") filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 101, et seq. On March 8, 1993, the Bankruptcy Court confirmed a plan of reorganization which provided that the Committee would have standing to prosecute, on behalf of the consolidated estate of the affiliated Valley Steel Companies, causes arising under Chapter 5 of the Bankruptcy Code. On June 9, 1993, the Committee filed its complaint to avoid and recover preferential transfers against the United States. The Committee claimed that Valley Industries, Inc. ("debtor") had paid the United States $50,000.00 in violation of § 547(b) of the Bankruptcy Code, which permits the trustee to avoid certain transfers. The preferential nature of the transfers was not in dispute, but rather the issue was whether the transfers were excepted from avoidance under defenses set forth in § 547(c). On June 2, 1994, the Bankruptcy Court denied the Committee's complaint to avoid and recover preferential transfers finding that the two transfers in question were made in the ordinary course of business within the provisions of § 547(c)(2). The Committee filed this appeal. B. Issue on Appeal The issue on appeal, as framed by appellant is: Whether the Bankruptcy Court erred as a matter of law in holding that the preferential transfers to the United States of America were made in the ordinary course of business pursuant to 11 U.S.C. § 547(c)(2). Record and Issues on Appeal, p. 2. C. Standard of Review In reviewing a judgment of a bankruptcy court, a district court reviews the bankruptcy court's legal conclusions de novo and its findings of fact under a clearly erroneous standard. In re Muncrief, 900 F.2d 1220, 1224 (8th Cir.1990). Because a bankruptcy court's interpretation of § 547(c)(2) is a factual analysis, the Court will review the Bankruptcy *204 Court's decision for clear error. In re U.S.A. Inns of Eureka Springs, Arkansas, 9 F.3d 680, 685 (8th Cir.1993) (citation omitted); see also In re Barefoot, 952 F.2d 795, 800-01 (4th Cir.1991) (the applicability of the exception in § 547(c)(2) is a factual determination made by the court, thus the findings on this point may only be set aside for clear error); In re Yurika Foods Corp., 888 F.2d 42, 45 (6th Cir.1989) (whether a payment is made in the ordinary course of business is a factual determination which should not be set aside unless clearly erroneous). A finding is "clearly erroneous" when although there is evidence to support it, the court reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Lovett v. St. Johnsbury Trucking, 931 F.2d 494, 500 (8th Cir.1991). D. Undisputed Facts The undisputed facts, which were adopted by the Bankruptcy Court and which this Court adopts, are as follows: 1. On December 17, 1990, the Internal Revenue Service ("IRS") assessed against Valley Industries, Inc., additional corporate income tax of $671,499.00 for the tax period ending November 30, 1975. 2. Soon after the assessment of the additional corporate income tax for the period ending November 30, 1975, the Service was contacted by counsel for the corporation who tendered a large payment of which $25,623.00 was applied to the income tax liability. With the payment, counsel requested an arrangement to make three quarterly payments towards the corporate income tax liability in return for which the Service would forego the filing of a notice of federal tax lien and the making of levies. The Service agreed to the arrangement, under which the debtor agreed to pay $335,000 in April, June and September, 1991. 3. Valley Industries, Inc. asked to amend the agreement when it came time to make the last payment. Under the amendment, the debtor paid $150,000 on October 1, 1991. Monthly payments of $25,000 were to be paid thereafter until the balance was paid. Again, the Service agreed to forego the filing of a notice of federal tax lien and the making of levies. 4. Valley Industries, Inc. made three monthly payments before filing its petition in bankruptcy on February 4, 1992.[1] 5. It is customary practice for the Internal Revenue Service to enter into an installment payment agreement with a delinquent taxpayer whereby the taxpayer agrees to pay its liability over time. It is also customary practice for the Internal Revenue Service to modify those agreements as necessary. 6. This was the first time Valley Industries, Inc. had entered into or modified an installment payment agreement with the Internal Revenue Service. 7. The two payments at issue were made for an antecedent debt. 8. Under the plan, general unsecured creditors will receive distributions of less than 100 percent of their claims. 9. The debtor was insolvent within 90 days proceeding the filing of the bankruptcy. 10. Also filing Chapter 11 petitions on February 4, 1992, were Valley Steel Products Company, Inc., VSPC Transportation, Inc., V.S.P.C. Redevelopment Corp. and Performance Pipe and Steel, Inc. 11. Joint administration of the cases was ordered on February 27, 1992. 12. On February 5, 1992, the Office of the U.S. Trustee appointed the Official Unsecured Creditors' Committee in the Valley Steel Products Company, Inc. bankruptcy proceedings. *205 13. By order entered March 15, 1993, the debtors' liquidating plan was confirmed, and the cases were substantively consolidated. 14. The Service's second amended proof of claim, filed on March 4, 1993, sets forth a general unsecured claim for $200,581.61. 15. On February 26, 1993, the Plan Committee made a demand on the Service for return of the December 3, 1991 and January 2, 1992 payments, totalling $50,000. That demand was received by the Internal Revenue Service on March 1, 1993 and was rejected by the Service by letter dated March 19, 1993. * * * * * * E. Discussion Bankruptcy Code §§ 547(b) and 547(c)(2) Section 547(b) of the Bankruptcy Code provides that certain transfers made within a period preceding the petition for bankruptcy may be avoided as preferences. Under § 547(b), a bankruptcy trustee may avoid the transfer to a creditor of an interest in property that is made on or before 90 days before the filing of the petition, while the debtor was insolvent, on account of an antecedent debt. 11 U.S.C. § 547(b). Moreover, the transfer must enable the creditor to receive more than it would have received in a bankruptcy liquidation. It is undisputed that the transfer of the $50,000.00 constituted a preference within the meaning of § 547(b). However, 11 U.S.C. § 547(c)(2) is an exception which permits the transferee of a preferential payment to prevent avoidance of the transfer. Section 547(c) (2) provides: (c) The trustee may not avoid under this section a transfer — * * * (2) to the extent such transfer was — (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and transferee; (B) made in the ordinary course of business or financial affairs of the debtor and transferee; and (C) made according to ordinary business terms. For a payment to qualify under the § 547(c)(2) exception, the transferee must prove each of the' three statutory elements by preponderance of the evidence. 11 U.S.C. § 547(g); In re U.S.A. Inns of Eureka Springs, Arkansas, 9 F.3d at 682. The Bankruptcy Court's Decision The Bankruptcy Court found that the government established the three elements necessary to prevail under § 547(c)(2), thus, the Committee could not avoid the challenged transfers. The Bankruptcy Court found that the United States demonstrated that: (1) the debt underlying the challenged payments was made in the ordinary course of business between the government and the debtor; (2) the debtor made the challenged transfers in the ordinary course of business for both itself and the IRS; and (3) the challenged payments were made according to ordinary business terms. In finding that the debtor made the challenged transfers in the ordinary course of business for both itself and the IRS, the Bankruptcy Court stated: The parties have stipulated that the IRS customarily enters into installment payment agreements with delinquent taxpayers and that the Service routinely modifies those agreements. The Plan Committee disputes the fact that the payments made pursuant to the negotiated, and then modified, settlement between Valley and the IRS were made in the ordinary course of Valley's business. The Committee points out that through its sixty-year history, Valley paid its taxes on a quarterly and annual basis and, prior to the agreement of 1990, had never before entered into an installment payment plan to cure a tax arrearage. The Committee concludes that the payments made pursuant to the settlement the Debtor and the Government negotiated, therefore, were not made in the ordinary course of Valley's business. The Court disagrees. * * * *206 In the case at bar, Valley entered into an agreement with the IRS to pay, in a number of installments, the back taxes it owed. After making two payments under the original terms of the agreement, Valley asked the Government to modify the payment schedule; the Government did. Before filing its petition in bankruptcy, Valley made three monthly payments to the IRS in accord with the parties' modified payment plan. Given these facts, the Court concludes that Valley made the challenged payments, the last two monthly payments made pursuant to the modified payment plan, in the ordinary course of its business. These payments were made in the amount and at the times prescribed by the payment plan that Valley originally negotiated with the Government and more than a year before the filing of its petition in bankruptcy. Op., pp. 12-13. Analysis The underlying facts in this case are undisputed and the only question for the Court is whether the two payments in question were made within the ordinary course of business. The Committee argues that the United States failed to provide any cognizable evidence that the payments in question were made in the ordinary course of business of both the debtor and the United States as is required by § 547(c)(2)(B). The Committee also argues that it was not common or ordinary for the debtor to enter in a workout agreement for delinquent taxes and that the United States is unable to show the consistency of transactions between the parties necessary to fall within this exception. Finally, the Committee argues that the arrangement between the parties was merely a settlement for taxes that were past due and that such a settlement agreement is not made within the ordinary course of business. After an examination of the briefs and the precedent, the Court is convinced that the Bankruptcy Court clearly erred in finding that the two transfers in question were made in the ordinary course of business or financial affairs of the debtor as required by § 547(c)(2)(B). The exceptions found in § 547(c) are to be narrowly construed. In re Writing Sales Ltd. Partnership, 96 B.R. 175, 178 (Bankr.E.D.Wis.1989). The legislative history of § 547(c)(2) states that the purpose of the exception is: . . . to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor's slide into bankruptcy. In the tax context, this exception will mean that a payment of taxes when they are due, either originally or under an extension . . . will not constitute a voidable preference. However, if a payment is made later than the last day on which the tax may be paid without penalty, then the payment may constitute a preference, if the other elements of a preference are present. In that case, the tax debt would be antecedent debt and would not fall under this exception. H.R.Rep. No. 595, 95th Cong., 1st Sess. 373 (1977), U.S.C.C.A.N., pp. 5787, 6329 (emphasis added). In the present case, it is undisputed that the payments in question for back taxes included penalties. Op., p. 2, n. 1. The tax payments in question were not simply being paid as they became due or under an extension. In In re Pullman Constr. Indus., Inc. v. United States, 190 B.R. 618 (Bankr.N.D.Ill. 1996), aff'd, 210 B.R. 302 (N.D.Ill.1997), the debtor sought to recover allegedly preferential payments the debtor made to the IRS. In In re Pullman, the debtor was required to deposit certain withholding taxes in a special fund in trust for the United States and to withhold certain other taxes. When the debtor began experiencing cash flow shortages, it fell behind in making certain required deposits. During the 90 days prior to the bankruptcy, the debtor sent checks directly to the IRS. Although the payments at issue were preferences, the IRS argued that the payments were made in the ordinary course of business. The bankruptcy court stated: A late payment is normally outside of the ordinary course of business; however this is not without exception. . . . Neither the Bankruptcy Code nor the legislative history *207 surrounding § 547 indicates that late payments can never be in the ordinary course. . . . However, "[L]ate payment of taxes after a penalty attaches would apparently not be protected under this section. The imposition of a penalty would seem to remove the payment from the ordinary course of at least the creditor's business." Norton Bankruptcy Law and Practice, 2d § 57:16 (1994) (interpreting H.R.Rep. No. 595 95th Cong. 1st Sess. 373 (1977)). In re Pullman, 190 B.R. at 625. The bankruptcy court held that: the deposits in question . . . were late, and penalties were imposed thereon before the payments were made. Therefore, [the debtor's] three direct payments of non-trust taxes to the IRS . . . were not made in the ordinary course of business within the meaning of § 547(c)(2). Id. at 625. In the present case, it is undisputed that the two payments in question were made for back taxes (sixteen years overdue) and included accrued interest and penalties. Such payments, therefore, were not made in the ordinary course of the debtor's business. See Carmel v. Orr, 200 B.R. 853, 856 (Bankr. N.D.Ill.1996) citing In re Pullman Constr. Indus., Inc. v. United States ("Payments of taxes years after they fell due is not in the ordinary course of business."). The United States relies upon First Software Corp. v. Micro Educ. Corp. of America, 103 B.R. 359 (D.Mass.1988) to support its assertion that payments made pursuant to a payment agreement entered into between a debtor and creditor can qualify for the ordinary course of business exception. In First Software Corp., the debtor had previously entered into two agreements which were substantially the same as the agreement in question. Here, the debtor and the United States had never entered into an installment payment plan prior to the agreement in question. Moreover, in the present case, the transfers were not part of a long standing pattern between the parties. It is undisputed that the installment payment agreement in question was modified — the relationship changed as the debtor's financial condition worsened. First Software Corp. is clearly distinguishable. The fact that the payments in question were late and included penalties is not the sole reason the payments fall outside the ordinary course of business exception. It is undisputed that the payments to the United States were made pursuant to a settlement agreement entered into between the debtor and the IRS. Payments made pursuant to a settlement agreement, which appear to be the result of antecedent debt, are not in the ordinary course of business as defined in 11 U.S.C. § 547(c)(2). In re Daikin Miami Overseas, Inc., 65 B.R. 396, 398 (S.D.Fla. 1986). The ordinary course of business exception is intended to protect recurring, customary trade transactions, not payments in settlement of contractual claims. See generally 3A Bankruptcy Service, L Ed § 33:199, pp. 327-329 (1993) (payments made in settlement of litigation are not made within the ordinary course of business as defined in 11 U.S.C. § 547(c)(2)). Although the United States argues that these cases are inapplicable because the IRS took "no forced collection action prior to the installment payment," the United States cites no authority in support of this argument. Brf. of Appellee, p. 13. Thus, because the payments were made pursuant to a settlement agreement, they do not fall within the ordinary course of the debtor's business. For both of the foregoing reasons, the Bankruptcy Court clearly erred in finding that the December 3, 1991 transfer of $25,000 and the January 2, 1992 transfer of $25,000 were made in the ordinary course of the debtor's business. Based upon the undisputed facts, the two payments were made pursuant to a settlement agreement for back taxes and included the assessment of penalties. Thus, the undisputed facts demonstrate that the payments were not made in the ordinary course of the debtor's business. As an alternative theory to affirm *208 the decision of the Bankruptcy Court,[2] the United States argues that the payments are not subject to avoidance because they were made as part of a contemporaneous exchange for value under 11 U.S.C. § 547(c)(4).[3] This argument fails. In finding that the exchange for value exception did not apply, the Bankruptcy Court stated: The Government argues that the Debtor received contemporaneous new value when it made a challenged payment to the IRS because each payment reduced the amount of the statutory lien the Government held against the Debtor. Op., p. 10. The Bankruptcy Court disagreed, stating: Neither the Government's forbearance from perfecting the liens it held against Valley nor the reduction in the amount of the lien that the Government could file against Valley following acceptance of the challenged payments fits within the Code's definition of new value. Section 547(c)(4) does not bar valley from avoiding the challenged transfers. Op., pp. 10-11. The Court agrees. Forbearance from exercising a preexisting right does not constitute new value under 11 U.S.C. § 547(a)(2). In re Air Conditioning, Inc. of Stuart, 845 F.2d 293, 298 (11th Cir.1988). F. Costs and Pre-Judgment Interest The Committee seeks a judgment "in the amount of $50,000.00 plus cost[s] and interest at a rate of 9% from the date of the Complaint." Brf. of Appellant, p. 15; Reply Brief, p. 8. Whether the Committee is entitled to an award of costs or interest against the United States is an issue which was not ruled upon below and thus, should be remanded for an initial determination. G. Conclusion The Bankruptcy Court clearly erred in finding that the payments in question were made in the ordinary course of business or financial affairs of the debtor. The decision of the Bankruptcy Court will be reversed and the Committee's complaint to avoid and recover the December 3, 1991 and January 2, 1992 preferential transfers should be granted. The case will be remanded for further proceedings consistent with this opinion. NOTES [1] The following summarizes all payments received with respect to this liability and applied to the tax and to accrued interest and penalties. The August 15, 1991 payment was the transfer of an overpayment from another tax period. Date Amount 01/28/91 $ 25,623.60 04/01/91 335,000.00 07/01/91 335,000.00 08/15/91 4,127.00 10/01/91 150,000.00 11/01/91 25,000.00 12/03/91 25,000.00 01/02/92 25,000.00 [2] Based upon subsequent amendments to the Bankruptcy Code, the United States has withdrawn its second alternative argument that the decision of the Bankruptcy Court should be affirmed on the basis of sovereign immunity. Sur-Reply Brf., pp. 2-3. [3] Section 547(c)(4) states: (c) The trustee may not avoid under this section a transfer — * * * (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor — (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor;

Filed 3/20/15 Gabel v. Kumho Tire CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO JOSHUA GABEL, Plaintiff and Appellant, E058981 v. (Super.Ct.No. CIVRS1109285) KUMHO TIRE U.S.A., INC. et al., OPINION Defendants and Respondents. APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed. Joshua Gabel, in pro. per., for Plaintiff and Appellant. Lim, Ruger & Kim, Lisa J. Yang and Phillip K. Cha for Defendant and Respondent Kumho Tire U.S.A., Inc. Maranga Morgenstern, Robert A. Morgenstern, Ninos Saroukhanioff and Dennis S. Newitt for Defendant and Respondent Werner Enterprises, Inc. 1  I INTRODUCTION Plaintiff and appellant Joshua Gabel appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrers to the third amended complaint (TAC) brought by defendants and respondents Werner Enterprises, Inc. (Werner) and Kumho Tire U.S.A., Inc. (Kumho). In 2008 and 2009, Gabel was an employee of Werner, providing logistical and transportation services to Werner’s customer, Kumho. After the Kumho project ended, Werner offered Gabel alternative employment in Pennsylvania which he refused. Werner then terminated Gabel’s employment on January 30, 2009. Acting as his own lawyer, Gabel made three unsuccessful attempts to amend his complaint. Based on our independent review, we conclude Gabel cannot state a cause of action against defendants. Although he appears to have been poorly treated, most of his claims are either untimely or subject to an exclusive remedy. His seventh cause of action is uncertain, ambiguous, and unintelligible. We affirm the judgment. II FACTUAL AND PROCEDURAL BACKGROUND A. The Second Amended Complaint The original complaint was filed on October 21, 2011. It was a two-page form complaint against Kumho, making entirely conclusory allegations of general negligence, discrimination, sexual harassment, retaliation, and intentional infliction of emotional 2 distress. An amended pleading was filed on November 1, 2011, adding Werner as a defendant. Before serving defendants, Gabel filed a motion for leave to file a second amended complaint (SAC). The court warned Gabel of the “perils of self-representation,” advised him to contact the bar association, and provided him with an informational handout. Gabel said he was trying to find an attorney on contingency. The court granted the motion for leave to file the SAC and ordered Gabel to serve defendants. Subsequently, after the court granted Werner’s motion to quash service, it again “encourage[d]” Gabel to obtain counsel. Gabel finally served both defendants personally in August 2012. The SAC was a form complaint for breach of contract, fraud, general negligence, intentional tort, discrimination, sexual harassment, and professional negligence, seeking damages of $860,000 and expungement of offenses from his driving record. The complaint is 126 pages and unorthodox in its construction. Because Gabel is representing himself, his SAC “is not in the form to which courts are accustomed.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1406.) The SAC incorporates documents from Gabel’s FEHA1 complaint for discrimination, including a written narrative, in which Gabel recites that he was hired by Werner in October 2006 to work for two years in Grants Pass, Oregon. In March 2008, 1 California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. 3 he was offered another position in Rancho Cucamonga, California, providing logistics and transportation services to Kumho, and he signed a relocation agreement with Werner. On April 19, 2008, Werner hired him as a dedicated transportation manager earning $41,000 annually, plus a $1,000 monthly bonus. On December 28, 2008, Kumho cancelled its contract with Werner. Werner offered Gabel alternative employment in Pennsylvania which he rejected. While working for Werner and Kumho, Gabel was sexually harassed by Kumho employees from April 19, 2008, until January 30, 2009, when he was terminated based on his status as a homosexual man. Gabel was given a FEHA notice of case closure and right-to-sue letter on October 21, 2010, for Kumho and another notice and letter for Werner on January 3, 2011. Fourteen pages of the SAC contain more elaborate descriptions of the incidents Gabel purportedly suffered at Kumho, including being called a monkey; questioned about his marital status and whether he was gay; denied proper work access, salary, and commissions; not recognized on his birthday; and forced to witness third-party harassment. Gabel attached 20 pages of Werner and Kumho’s “Schedule of Contract Rates and Terms for Dedicated Fleet Operations.” He also attached his apartment lease, the relocation agreement, emails, and other miscellaneous documents. He included a statement about his prostate cancer, his homelessness, and his inability to secure employment. 4  Defendants demurred to the SAC. The court sustained the demurrers with leave to amend, warning that “[t]his will be the last leave to amend the Court will grant. [¶] The court encourages Plaintiff to seek legal assistance.” B. The TAC In the TAC, Gabel adopts a more conventional legal style. He asserts seven causes of action, based mainly on the 2008 relocation agreement between Gabel and Werner: 1) misrepresentation in violation of Labor Code sections 970, 971, and 972; 2) third-party breach of contract between Werner and Kumho; 3) fraud; 4) breach of the covenant of good faith and fair dealing; 5) negligence caused when Kumho’s president put his hands on Gabel’s shoulders and around his neck; 6) promissory estoppel; and 7) employment discrimination based on “marital status, sex, national origin/ancestry- English language, and career status/job assignment based on quid pro quo and the creation of a hostile work environment.” Examples of the latter were calling Gabel a monkey; questioning his marital status and whether he was gay; not recognizing his birthday; forcing him to witness third-party harassment; retaliation; and sending vulgar emails. Most of the documents attached as exhibits are the same as for the SAC. Werner’s demurrer to the TAC is not part of the record on appeal. Kumho demurred to the TAC based on the failure to state a claim and because the seven causes of action are uncertain, ambiguous, and unintelligible. The court sustained defendants’ demurrers to the TAC without leave to amend. 5  III DISCUSSION Gabel’s appellate briefs, filed in propria persona, do not comply with appellate protocol and California Rules of Court, rule 8.204(a)(1)(C).) “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellant court need not search through the record in an effort to discover the point purportedly made.” (In re S.C. (2006) 138 Cal.App.4th 396, 406.) It is appellant’s duty “to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. . . . If no citation ‘is furnished on a particular point, the court may treat it as waived.’” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) In spite of these defects, in the interests of justice, we will address Gabel’s contentions based on our independent review of the record. A. Standard of Review The trial court’s judgment or order “is presumed correct and prejudicial error must be affirmatively shown.” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) In reviewing a trial court’s order sustaining a demurrer without leave to amend, we independently review the complaint to determine whether it alleges facts sufficient to state a cause of action under any legal theory and whether the trial court abused its discretion in denying leave to amend. (Code Civ. Proc., § 472c, subd. (a); Connerly v. State of California (2014) 229 Cal.App.4th 457, 460; Cantu v. Resolution 6 Trust Corp. (1992) 4 Cal.App.4th 857, 879.) We treat the demurrer as admitting all material facts—including matters that may be judicially noticed—but not contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) B. Failure to State A Claim Werner argues that Gabel waived some of his claims by not addressing them on appeal. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775.) We disagree. A fair and liberal reading of his briefs discloses an effort to discuss all his causes of action. Nevertheless, Gabel does not offer salient argument or authority to support his contention that the trial court erred in sustaining defendants’ demurrer without leave to amend. 1. Labor Code Violation and Fraud Gabel’s first cause of action, for violations of Labor Code sections 970, 971, and 972, alleges that Werner made false representations to induce him to move from Oregon to Rancho Cucamonga under a relocation agreement. Gabel maintains the employment conditions at Kumho were not as represented and he was wrongfully terminated by Werner on January 30, 2009. Gabel cites Labor Code section 970, which prevents employers from inducing employees to move to, from, or within California by misrepresenting the nature, length, or physical conditions of employment. (Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514, disapproved on other grounds in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389-391.) 7  This cause of action does not apply to Kumho, who was not Gabel’s employer and made no representations to him. Werner does not address Labor Code section 970. However, claims under Labor Code sections 970, 971, and 972 have been held subject to a one-year statute of limitations under Code of Civil Procedure section 340, subdivision (a), for actions upon a statute for a “penalty or forfeiture.” (Aguilera v. Pirelli Armstrong Tire Corp. (9th Cir. 2000) 223 F.3d 1010, 1018, citing Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 980.) Gabel’s employment was terminated in January 2009. His complaint, filed more than two years later in October 2011, was untimely as to this cause of action. The third cause of action for fraud is based on the same allegations that Werner made misrepresentations to induce Gabel to relocate from Oregon to Rancho Cucamonga. Gabel alleges the fraud occurred on April 11, 2008. The applicable statute of limitations is three years. (Code Civ. Proc., § 338, subd. (d); William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1312.) Gabel has not pleaded or proposed any facts that would justify the application of the delayed discovery rule. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 920.) Therefore, the complaint filed in October 2011, more than three years later than April 2008 was untimely as to the cause of action for fraud. Even if not time-barred, the fraud claim has not been alleged with the required specificity and fails for that reason. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519; 8 Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The fact that Werner induced Gabel to accept a promotion and to relocate to California is insufficient to support a fraud claim against Werner and wholly inapplicable to Kumho. 2. Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing In the second cause of action, Gabel attempts to state a claim as the third-party beneficiary of a contract between Werner and Kumho. Gabel cannot prevail on such a theory. For a contract to be enforceable by a third party, a contract with another must be made expressly for the benefit of the third person. (Civ. Code, § 1559.) Even if a third person may receive an incidental benefit from a contract, he cannot enforce the contract. (Sheppard v. Banner Food Products (1947) 78 Cal.App.2d 808, 812; Mottashed v. Central & Pac. Impr.Corp. (1935) 8 Cal.App.2d 256, 260.) Gabel was an employee of Werner and was neither a party to the contract between Werner and Kumho nor an express beneficiary of their contract. His second cause of action fails. Alternatively, the fourth cause of action for breach of the covenant of good faith and fair dealing, arising from the underlying breach of contract claim, is untenable because Gabel failed to establish he was a party to or a beneficiary of any material contract with defendants. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658; InfiNet Marketing Services, Inc. v. American Motorist Ins. Co. (2007) 150 Cal.App.4th 168, 180.) Gabel does not allege the existence of any contract except for the “relocation agreement,” in which Werner agreed to provide financial assistance for 9 Gabel’s move and Gabel agreed to reimburse Werner if he voluntarily resigned within two years. Nowhere does Gabel allege that Werner violated this agreement or that Werner demanded reimbursement from Gabel. Gabel did not allege any bad faith by Werner on connection with the relocation agreement. 3. Tort Claims and Promissory Estoppel Gabel also cannot assert separate tort claims against both defendants (although Kumho was not his employer) in the fourth and fifth cases of action for breach of the implied covenant of good faith and fair dealing and negligence. The tort claims are subject to a two-year statute of limitations for the “wrongful act or neglect of another.” (Code Civ. Proc., § 335.1.) Any act or neglect by defendants occurred before January 30, 2009. His complaint filed in October 2011 is more than two years later than January 2009. No amendment can cure this defect. Furthermore, the California Workers’ Compensation Act (Lab. Code, § 3600 et seq.) provides the exclusive remedy for any injury sustained in the course of employment. (Lab. Code, §§ 3601, 3602; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 811.) Injuries resulting from termination of employment are subject to the exclusive remedy rule because, “both the act of termination and the acts leading up to termination necessarily arise out of and occur during and in the course of the employment.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 20.) Workers’ compensation is also generally the employee’s only remedy for injuries resulting from an employer’s conduct that is a normal part of the employment 10 relationship, “notwithstanding that the injury resulted from the intentional conduct of the employer, and even though the employer’s conduct might be characterized as egregious.” (Id. at p. 15.) The exclusive remedy doctrine also bars Gabel’s sixth cause of action for promissory estoppel. Additionally, he failed to plead sufficient facts to establish such a claim. Gabel asserts, “Wrongfully terminated employees may assert contractual rights based on estoppel principles.” Promissory estoppel is not a cause of action per se, although it can be pleaded as a substitute for consideration to establish a contract. Promissory estoppel is “‘a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.’” (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310.) The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages “‘measured by the extent of the obligation assumed and not performed.’” (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692.) Here the sixth cause of action seems to be based on Werner’s alleged inducements involving relocation. Kumho was not involved because it was not Gabel’s employer. Otherwise, no specific facts support this claim against defendants. 4. Employment Discrimination The seventh cause of action is a mélange of allegations about employment discrimination and wrongful termination directed jointly at both Kumho and Werner. Gabel alleges that Kumho employees called him a monkey, asked about his marital status 11 and whether he was gay, excluded him from birthday celebrations, subjected him to displays of third-party harassment, stole a model truck off his desk, sent him vulgar emails, and engaged in other kinds of harassing behavior. He also alleges that Werner did not respond to his complaints and terminated him in violation of public policy. On appeal, Werner treats the seventh cause of action as waived. Kumho contends the cause of action does not apply to it because it was not Gabel’s employer. A special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Indeed, a pleading must state the essential facts upon which a determination of the controversy depends. Allegations of material facts that are left to surmise are subject to demurrer for uncertainty. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine what it is required to respond to; for example, when a plaintiff joins multiple causes of action as one, fails to properly identify each cause of action, or fails to state against which party each cause of action is asserted if there are multiple defendants. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Applying these principles, we conclude the seventh cause of action is uncertain, ambiguous, and unintelligible. Although Werner was Gabel’s employer and Kumho was not, Gabel seems to allege joint liability by them for Kumho’s employees’ conduct toward him and Werner’s termination of his employment. Based on the present state of 12 the pleadings, however, defendants cannot determine what are the essential, material facts upon which they may be held liable to Gabel or what are the nature of the legal claims against them. On appeal, Gabel cites no intelligible, pertinent legal authority to support the seventh cause of action. The trial court properly sustained the demurrer to this cause of action without leave to amend. C. Amendment Gabel has the burden to show a complaint may be amended. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) It is an abuse of discretion to deny leave to amend only if an amendment is potentially effective. (CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) If the plaintiff cannot show an abuse of discretion, the trial court’s order sustaining the demurrer without leave to amend must be affirmed. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1498.) Whether below or on appeal, Gabel has not shown any reasonable possibility of curing defects by amendment after filing four versions of the complaint. In Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 312-314, a private antitrust action, defendants brought demurrers to each successive complaint over the course of two years. The matter was dismissed on demurrer to the fourth amended complaint after plaintiffs failed to allege an unlawful business practice and injury. In Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, plaintiff was denied leave to amend a fourth time. The trial court here could not have reasonably concluded that there was any possibility of curing the defects of the complaint if Gabel 13 was granted another opportunity. Under these circumstances, after four attempts to state a claim, it was well within the court’s discretion to sustain the demurrer without leave to amend. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371.) IV DISPOSITION Gabel has not shown error, even under an independent standard of review. His claims fail as a matter of law for multiple reasons. We affirm the judgment. In the interests of justice, the parties shall bear their own costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur: McKINSTER Acting P. J. MILLER J. 14 

885 F.2d 436 132 L.R.R.M. (BNA) 2391, 112 Lab.Cas. P 11,431 BELL COLD STORAGE, INC., a Minnesota corporation, Appellant,v.OVER-THE-ROAD TRANSFER, COLD STORAGE, GROCERY & MARKETDRIVERS, HELPERS & INSIDE EMPLOYEES UNION, LOCALNO. 544, Appellee. No. 88-5011. United States Court of Appeals,Eighth Circuit. Submitted Oct. 20, 1988.Decided Sept. 11, 1989. David J. Duddleston, Minneapolis, Minn., for appellant. Martin J. Costello and Carol Baldwin, St. Paul, Minn., for appellee. Before ARNOLD and MAGILL, Circuit Judges, and ROSS, Senior Circuit Judge. ROSS, Senior Circuit Judge. 1 Appellant Bell Cold Storage, Inc. (Bell) appeals from the district court's order1 denying Bell's motion to vacate an arbitration award requiring Bell to complete arbitration on the merits of a grievance filed by appellee Over-the-Road Transfer, Cold Storage, Grocery & Market Drivers, Helpers & Inside Employees Union, Local No. 544 (Union) 673 F.Supp. 987. Based on the following discussion, we affirm.2 I. 2 Bell owns and operates cold storage warehouses in Minnesota. During the summer of 1985, the Union and Bell were engaged in collective bargaining negotiations covering employees at Bell's Minneapolis facility. At that time, in addition to the Minneapolis warehouse, Bell also operated a facility in St. Paul, represented by a different Teamster local. A third warehouse in Brooklyn Park, Minnesota was then under construction. During the negotiations for the Minneapolis facility, the parties discussed, but did not reach agreement on union recognition or transfer rights to the Brooklyn Park facility. The Brooklyn Park facility opened on October 8, 1985 and was staffed by non-union employees. Shortly thereafter, on October 23, 1985, the new Minneapolis collective bargaining agreement was ratified, effective to May 1, 1988, and provided for binding arbitration over any dispute involving the interpretation or application of the agreement. 3 Several months later, in January and February 1986, the Union filed grievances under the Minneapolis contract arbitration provision, demanding that the Minneapolis agreement be extended to the non-union facility at Brooklyn Park. When those grievances were denied by Bell, the Union petitioned for arbitration under the Minneapolis agreement. Bell refused to arbitrate the grievances. On April 16, 1986, the Minneapolis facility was closed. The following month the Union filed suit in Minnesota district court seeking an order to compel Bell to arbitrate. The Union's motion was heard on August 21, 1986, and on September 10, 1986 the state court judge granted the Union's motion to compel arbitration. This decision was not appealed apparently because under Minnesota law it was not a final appealable order. 4 Meanwhile, on August 13, 1986, just prior to the state court hearing, Bell filed an employer's representation petition with the National Labor Relations Board (NLRB or Board). On September 2, 1986 the Union filed an unfair labor practice charge with the NLRB, claiming that Bell had violated sections 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), (3) and (5), by closing its Minneapolis facility and moving its operations to Brooklyn Park, laying off its Minneapolis employees and refusing to transfer them to the Brooklyn Park facility, and for refusing to arbitrate the Union's grievances. 5 On October 16, 1986, Board Regional Director Ronald M. Sharp issued an order dismissing Bell's representation petition. The Regional Director found that the Union's claim that its contract with Bell applied to the Brooklyn Park facility constituted a demand for accretion and not a demand for representation. The Regional Director dismissed the petition, concluding that a demand for accretion does not raise a question concerning representation within the meaning of the Act. Bell did not seek review of this order by the NLRB as it could have done at that time. 6 Prior to this formal dismissal, on October 7, 1986, a Board field examiner sent a letter to Bell in which she requested that the representation petition be withdrawn. The letter also stated that the Regional Director had determined that the Union's unfair labor practice charge lacked merit based on a finding "that the Brooklyn Park facility was not an accretion to the Minneapolis bargaining unit, and therefore the contract did not apply and no bargaining obligation exists." 7 Thereafter on October 20, 1986, Regional Director Sharp issued a formal letter to the Union dismissing its unfair labor practice charge. The only reason stated in the October 20 letter for the Director's refusal to issue a complaint was that "there is insufficient evidence that [Bell] * * * refused to arbitrate grievances concerning its Brooklyn Park facility; or refused to negotiate with the Union in violation of the Act, as alleged." 8 On November 21, 1986, the Union notified the Board's General Counsel that due to the Union's victory in the state and federal litigation which would require Bell to arbitrate grievances which cover the same subject matter as the NLRB proceedings, the Union chose to pursue the matter through arbitration and further NLRB proceedings would be unnecessary. Therefore, the Board was not asked to review the dismissal of the unfair labor practice charge. 9 Following other procedural actions, including a petition to remove into federal district court brought by Bell on October 14, 1986, arbitration was held on April 20, 1987. After some dispute about the timing and format of the arbitration hearing, the parties agreed to a bifurcated hearing, first to resolve challenges to arbitrability and, second, to determine the merits of the grievances. On May 26, 1987, following a hearing on the issue of arbitrability, the arbitrator determined that the grievances were arbitrable and that the matter should proceed to a hearing on the merits. 10 Without awaiting a decision on the merits, Bell filed suit in federal district court to vacate the arbitration award and to enjoin arbitration of the merits of the grievance. The union opposed the motions, seeking dismissal of the claims as well as a declaration that the dispute was arbitrable. 11 On November 16, 1987, the federal district court issued a memorandum opinion and order denying Bell's motion to vacate the arbitration award. The court rejected Bell's argument that the dispute between the parties is a representational matter which is controlled by the Act and should be resolved only by the Board. The court further noted that the Board had already decided the representational issue based on its finding that the Union's demand was more like an accretion than a demand for recognition. The court also denied the Union's motion to confirm the arbitration award as the arbitrability issue is not reviewable until the arbitrator decides the entire matter. Appeal to this court followed. II. 12 Two primary questions are presented on appeal: one, whether the Board has already decided whether the collective bargaining agreement should be extended to cover the Brooklyn Park facility, thereby precluding arbitration of the same issue, and two, assuming this issue has not been decided, whether state court arbitration of the issue is precluded by section 9 of the National Labor Relations Act, 29 U.S.C. Sec. 159. An examination of the existing case law is necessary before addressing the merits of Bell's claims. 13 Under section 9 of the Act, "[t]he Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." 29 U.S.C. Sec. 159(b). This section confers broad discretion on the Board to determine appropriate bargaining units. Such representation decisions by the Board are generally not directly reviewable in federal court but only indirectly under the review procedures provided by sections 10(e) and (f) of the Act, 29 U.S.C. Sec. 160(e) and (f), for review of unfair labor practice orders. Local 204, Intern. Broth. of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 420 (8th Cir.1982) (Iowa Electric); Morello v. Federal Barge Lines, Inc., 746 F.2d 1347, 1349 (8th Cir.1984). 14 Notwithstanding the delegation of authority to the Board in bargaining unit determinations, certain representational issues can be the subject of arbitration where the collective bargaining agreement provides for mandatory arbitration. See Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964); Iowa Electric, supra, 668 F.2d at 419. The Board, however, is not subsequently bound by an arbitrator's findings on a representation issue. Indeed, the Board has consistently refused to defer to a prior representation decision by an arbitrator. See, e.g., Hershey Foods Corp., 208 NLRB 70 (1974); Combustion Engineering, Inc., 195 NLRB 909, 910-11 (1972); Woolwich, Inc., 185 NLRB 783, 784 (1970). 15 While it is true that representation issues may properly be the subject of arbitration, it is equally clear that where the Board has previously resolved a "dispositive representational issue," the courts will not compel parties to subsequently arbitrate the same question. See, e.g., Iowa Electric, supra, 668 F.2d at 419 n. 11; Yellow Freight Systems, Inc. v. Automobile Mechanics Local 701, 684 F.2d 526, 530 (7th Cir.1982). III. 16 Within this legal framework, we now examine the case before us. Bell first argues that in dismissing the representation petition, the Board has resolved a "dispositive representational issue," and this court cannot compel the parties to arbitrate the same question. 17 In the October 16, 1986 order dismissing the representation petition, the Regional Director held that "the Union's claim that its contract applied to the Employer's Brooklyn Park facility constitutes a demand for an accretion rather than a demand for recognition; and that a demand for an accretion does not raise a question concerning representation within the meaning of the Act." The Regional Director made no finding as to whether there actually was or was not an accretion at the Brooklyn Park facility. 18 Bell's position that the Board has decided the "dispositive representational issue" is apparently based on an October 7, 1986 letter to Bell by a Board field examiner. In the letter, the field examiner stated that the Regional Director had found that the Union's unfair labor practice charge lacked merit and would be dismissed absent withdrawal. The letter noted that the basis for the decision as to the unfair labor practice charge was "a finding that the Brooklyn Park facility was not an accretion to the Minneapolis bargaining unit, and therefore the contract did not apply and no bargaining obligation exists." The field examiner stated further that "[i]n the event of dismissal [of the charge], all parties will receive a copy of the dismissal letter setting forth the reasons for dismissal." 19 On October 20, 1986, a subsequent letter from the Regional Director was sent to inform the Union that, in regard to the Union's unfair labor practice charge, the Regional Director was "refusing to issue Complaint in this matter." The letter stated: 20 As a result of the investigation, it appears that there is insufficient evidence that the Employer laid off employees at its Minneapolis, Minnesota facility and refused to rehire them or allow them to transfer to its Brooklyn Park, Minnesota facility because of their Union membership; or closed its Minneapolis facility for the purpose of avoiding its bargaining obligation with the Union; or refused to arbitrate grievances concerning its Brooklyn Park facility; or refused to negotiate with the Union in violation of the Act, as alleged. Accordingly, further proceedings are not warranted at this time, and I am, therefore, refusing to issue Complaint in this matter. 21 Contrary to the field examiner's earlier prediction as to the basis of the Regional Director's decision, there was no finding whatsoever by the Director regarding accretion or application of the collective bargaining agreement. 22 Congress delegated to the General Counsel "final authority, on behalf of the Board" to investigate and issue or refuse to issue complaints under section 10 of the Act, 29 U.S.C. Sec. 160. It has been established, however, that such a discretionary decision of the General Counsel, acting through the Regional Director, is not a final order of the Board as contemplated by the Act. Miller Brewing Co. v. Brewery Workers Local No. 9, 739 F.2d 1159, 1166 (7th Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926 (1985). A regional director's decision refusing to issue a complaint "does not act as res judicata or bar a party from seeking arbitration under the collective bargaining agreement." Edna H. Pagel, Inc. v. Teamsters Local No. 595, 667 F.2d 1275, 1279-80 (9th Cir.1982). 23 Bell cites no authority in support of its position that any binding effect can or should be given to a field examiner's preliminary correspondence regarding matters that were ultimately omitted from the Regional Director's final decision. Indeed, the Board itself, in its amicus curiae brief, stated that the preliminary correspondence of the field examiner was not a final decision of the Board which carried with it any binding or precedential effect. 24 Because we find that the Board has not determined whether the Union is the appropriate collective bargaining representative at the Brooklyn Park facility, we conclude that the instant suit falls within the category of cases which has interpreted Carey as allowing suits to compel contractually authorized arbitration even as to matters that, in whole or in part, implicate representation issues. See Retail Clerks Local 588 v. NLRB, 565 F.2d 769, 778 (D.C.Cir.1977); Iowa Electric, supra, 668 F.2d at 419. 25 In Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), a union filed a section 301 suit to compel arbitration under a collective bargaining agreement. The case arose out of a jurisdictional dispute between two unions as to which union was the appropriate bargaining representative for a certain group of employees. The employer refused to arbitrate what it considered to be a purely representational matter. Id. at 262, 84 S.Ct. at 404. The union's petition for an order compelling arbitration was denied by a state court on the basis of the Board's alleged exclusive jurisdiction over unit disputes. 26 In reversing, the Supreme Court held that although the dispute involved a representational issue, it could be the subject of arbitration, reasoning that arbitration "is proper, even though an alternative remedy before the Board is available, which, if invoked by the employer, will protect him." Id. at 268, 84 S.Ct. at 407. The Court suggested that although the dispute may ultimately come before the Board, prior "resort to arbitration may have a pervasive, curative effect" and will encourage "those conciliatory measures which Congress deemed vital to 'industrial peace' and which may be dispositive of the entire dispute." Id. at 272, 84 S.Ct. at 409. See also International Ass'n of Machinists and Aerospace Workers v. International Air Service of Puerto Rico, Inc., 636 F.2d 848, 849-50 (1st Cir.1980) ("No prejudice will result from allowing an arbitrator to clear up the factual and contractual underbrush and, perhaps, remove any need to consider the statute."). The Supreme Court observed, however, that if the Board subsequently disagreed with the arbitrator's decision, "the Board's ruling would, of course, take precedence" and "[t]he superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area." Carey, supra, 375 U.S. at 272, 84 S.Ct. at 409. 27 In subsequent cases, courts have found that a decisive factor in the Carey decision was the "very strong policy favoring the invocation of arbitration to resolve all kinds of labor disputes under collective bargaining agreements providing for arbitration." Local 3-193, Int'l Woodworkers v. Ketchikan Pulp Co., 611 F.2d 1295, 1298 (9th Cir.1980). Our court has interpreted Carey as supporting "district court jurisdiction under section 301 * * * to compel arbitration of a representational dispute where the parties have agreed under the collective bargaining agreement to arbitrate such matters." Iowa Electric, supra, 668 F.2d at 419 (emphasis in original) (citing International Air Service of Puerto Rico, Inc., supra, 636 F.2d at 849-50; Retail Clerks Local 588 v. NLRB, supra, 565 F.2d at 777-78). In the absence of a collective bargaining agreement providing for arbitration, however, courts have generally refused to apply Carey as a means of compelling arbitration of a representation issue. See Ketchikan Pulp, supra; Iowa Electric, supra, 668 F.2d at 419. 28 In the instant case the parties have agreed to mandatory arbitration of any dispute involving the interpretation or application of the collective bargaining agreement. Based on our interpretation of Carey and its progeny, we conclude that section 9 of the National Labor Relations Act does not preclude a state court from compelling arbitration of the issue of whether the Minneapolis agreement is properly extended to the employees at the Brooklyn Park facility.3 We of course make no determination as to whether or not the contract entitles the Union to its requested relief. This will be determined in the first instance by the arbitrator. 29 Accordingly, the judgment of the district court is affirmed.4 1 The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota 2 Bell alleged district court jurisdiction under Section 301 of the National Labor Relations Act, 29 U.S.C. Sec. 185, on the grounds of an alleged violation of a contract between Bell and the Union, and 28 U.S.C. Sec. 2201 of the Declaratory Judgment Act. Jurisdiction of this court is invoked pursuant to 28 U.S.C. Sec. 1291 and 28 U.S.C. Sec. 1292(a)(1) 3 The cases cited by Bell in support of its position that section 9 precludes compelled arbitration of an accretion issue are inapposite. In each of these cases the Board had either previously ruled dispositively on the representation issue, see NLRB v. Paper Manufacturers Co., 786 F.2d 163, 165-66 (3d Cir.1986); Yellow Freight Systems, Inc. v. Automobile Mechanics Local 701, 684 F.2d 526, 530, or the parties were not bound to a collective bargaining agreement which contained an arbitration clause. See Local 204, Intern. Broth. of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 419; Morello v. Federal Barge Lines, Inc., 746 F.2d 1347, 1350-51 4 This decision, of course, is without prejudice to the assertion by Bell or the Union, after the arbitration is complete, of whatever rights either of them may have before the NLRB or in the courts

443 P.2d 233 (1968) KAISER CEMENT AND GYPSUM CORPORATION, Respondent, v. STATE TAX Commission, Appellant. Supreme Court of Oregon, In Banc. Argued and Submitted January 2, 1968. Decided June 26, 1968. Donald C. Seymour, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Carlisle B. Roberts, Asst. Atty. Gen., Salem. Dean Ellis, Salem, argued the cause for respondent. With him on the brief were William H. Hedlund, Frank H. Spears, and McColloch, Dezendorf & Spears, Portland. Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ. McALLISTER, Justice. This appeal by the State Tax Commission from a decree of the Oregon Tax Court, 2 OTR 480 (1966), involves the *234 right of corporations primarily engaged in manufacturing to a personal property tax offset pursuant to ORS 317.070(2). More specifically, it involves the scope of our decision in Guy F. Atkinson Company v. State Tax Commission, 239 Or. 588, 399 P.2d 166 (1965). The material facts as stated in appellant's brief and accepted by respondent are simple. The plaintiff is a California corporation, primarily engaged in manufacturing and processing materials into finished products for the purposes of sale. It has no manufacturing or processing plants in the state of Oregon. It does have warehouses and a sales staff in Oregon. Plaintiff sells in Oregon only those goods which were manufactured or processed by its own facilities outside of Oregon. Because plaintiff conducts a unitary operation it is required to file a corporation excise tax return in Oregon, apportioning a certain percentage of its total income to Oregon according to a three-factor formula. For the years 1957 through 1963 the plaintiff offset against its corporation excise taxes payable to Oregon an amount equal to its personal property taxes paid (but not exceeding one-third of the excise tax) pursuant to the provisions of ORS 317.070(2), which prior to its amendment in 1965 allowed such offset to "each corporation * * * which is primarily engaged in manufacturing, processing or assembling materials into finished products for purposes of sale * * *." Prior to 1965, plaintiff's returns were audited by the commission and the "manufacturer's offset" was allowed. After this court decided Guy F. Atkinson Company v. State Tax Commission, supra, the defendant reaudited the plaintiff's tax returns for the above years and billed plaintiff for additional taxes in the exact amount of the manufacturer's offset previously allowed by the commission, plus statutory interest. In 1957 ORS 317.070(2)(a) was amended by Oregon Laws 1957, ch. 709, to read as follows: "(2)(a) Each corporation subject to subsection (1) of this section which is primarily engaged in manufacturing, processing or assembling materials into finished products for purposes of sale is entitled to an offset against the tax imposed by subsection (1) of this section." From 1957 until 1965 the commission interpreted the foregoing statute to allow the manufacturer's offset to corporations such as plaintiff, engaged primarily in manufacturing regardless of where such manufacturing was conducted. That administrative interpretation was consonant with the clear language of the statute and, if construction of the statute is necessary, is entitled to great weight. Allen v. Multnomah County, 179 Or. 548, 564, 173 P.2d 475 (1946). In 1965 this court in Guy F. Atkinson Company v. State Tax Commission, supra, decided that the Atkinson company which overall was engaged primarily in construction but in Oregon was engaged primarily in manufacturing, was also entitled to the manufacturer's offset. After Atkinson the commission reversed its administrative construction and ruled that only corporations primarily engaged in Oregon in manufacturing were entitled to the manufacturer's offset. It thereafter billed plaintiff for additional taxes for the years 1957 through 1963 equal to the manufacturer's offset which it had previously allowed. The rationale of the decision in Atkinson is contained in the following paragraph of the opinion: "The offset is a tax preference limited to corporations engaged in particular types of business. The obvious object in such a preference is to stimulate the types of business in which those granted the preference are engaged. It would be unreasonable to assume the Oregon legislature was giving a tax preference for the purpose of stimulating such business activity outside the state. This results in little wealth to the citizens of Oregon or taxes to the state. We believe *235 that, when read in context, the language used shows an intention by the legislature to determine the eligibility to the offset by the corporation's activity in Oregon and not elsewhere." [footnote omitted] 239 Or. at 592, 399 P.2d at 168. It is not necessary to consider now whether Atkinson was correctly decided or whether the phrase "and not elsewhere" contained in the last sentence quoted above was obiter dictum. It is sufficient to point out that the legislature, which was in session when Atkinson was decided, immediately renounced the intention imputed to it by this court by providing explicitly that the benefit of the manufacturer's offset should not be determined "by the corporation's activity in Oregon and not elsewhere." The 1965 legislative session amended ORS 317.070(2)(a), by ch. 544, Oregon Laws 1965, to read as quoted below, with the matter in brackets deleted and the matter in italics added: "(2)(a) Each corporation subject to subsection (1) of this section which is [primarily] engaged in this state or elsewhere in manufacturing, processing or assembling materials into finished products for purposes of sale is entitled to an offset of certain personal property taxes against the tax imposed by subsection (1) of this section." It will be noted that as amended the statute allowed the offset to all manufacturing corporations, including those, like the Atkinson company, engaged in manufacturing in Oregon, and those, like plaintiff, engaged in manufacturing elsewhere. It is a well established rule in Oregon that "an amendment to an act may be resorted to for the discovery of the legislative intent in the enactment amended." Roy L. Houck & Sons v. Tax Com., 229 Or. 21, 31, 366 P.2d 166, 170 (1961). Under some circumstances the amendment may be tantamount to "a legislative declaration of the meaning" of a statute. Layman v. State Unemp. Comp. Com., 167 Or. 379, 400, 117 P.2d 974, 982, 136 A.L.R. 1468 (1941). If the amendment "follows immediately and after controversies have arisen as to the true construction of the prior law it is entitled to great weight" in interpreting the amended statute. Holman Tfr. Co. et al. v. Portland et al., 196 Or. 551, 556, 249 P.2d 175, 250 P.2d 929 (1952). Since the 1965 amendment to ORS 317.070(2)(a) followed immediately after the Atkinson decision in 1965, this would seem a most appropriate occasion to use a subsequent amendment to interpret the amended statute. We are mindful that the legislature made the 1965 amendment retroactive only to January 1, 1965, and that the committee on taxation of the House of Representatives took a neutral attitude with regard to the retrospective application of the 1965 amendment.[1] In spite of these circumstances, the fact remains that by the 1965 amendment the legislature renounced any intention to confine the manufacturer's offset only to corporations engaged in *236 manufacturing in Oregon. We, therefore, hold that under the pre-1965 version of ORS 317.070(2)(a) plaintiff and other corporations "primarily engaged in manufacturing, processing or assembling materials into finished products for purposes of sale" were entitled to the manufacturer's offset even though their activities in Oregon did not include manufacturing. Since we hold that plaintiff was entitled to the manufacturer's offset, we do not reach the other questions raised in the briefs. The decree of the tax court is affirmed. NOTES [1] "It was the unanimous feeling of the committee, and the clerk was instructed to enter in the minutes with respect to House Bills 1704 [dealing with the personal property tax offset] and 1854, that the effective dates provided in the bills as amended are not intended to indicate any interpretation by the committee as to the legislative intent embodied in the 1957 amendments to ORS 317.070 or as to the legislative intent embodied in ORS 314.405 and 314.410 as enacted in 1957 and subsequently amended. "The committee feels that any pending or prospective controversies concerning either the statute of limitations upon additional assessments or the application of the personal property tax offset to certain businesses, particularly as such controversies may arise out of the recent Supreme Court decision in the Guy F. Atkinson case, should be settled upon the ultimate legal interpretation of the statutory language as it existed for the tax years involved in such controversies. Such interpretation may or may not be in accordance with the revised language incorporated in House Bills 1704 and 1854 as amended."

416 S.E.2d 701 (1992) GEORGE W. KANE, INC., et al. v. NUSCOPE, INC. Record No. 910961. Supreme Court of Virginia. April 17, 1992. *702 Diana A. Grossi, Washington, D.C., John C. Hayes, Jr. (Bonner & O'Connell, Richmond, on briefs), for appellants. William B. Cave (Felton & Cave, on brief), Richmond, for appellee. Present CARRICO, C.J., COMPTON, STEPHENSON, WHITING, HASSELL and KEENAN, JJ., and POFF, Senior Justice. POFF, Senior Justice. The issue framed by the parties to this appeal is whether the owner of property encumbered by a subcontractor's mechanic's lien and the trustees and the beneficiary of a deed of trust recorded prior to commencement of the improvements are necessary parties to the subcontractor's suit to enforce its lien when that lien has been "bonded off" and released pursuant to Code § 43-71. Insofar as relevant to that issue, the facts are not in dispute. Buckingham Associates (Buckingham) obtained a loan from First Union National Bank of North Carolina (First Union) to finance construction of an apartment complex on its property in Chesterfield County. In April 1987, Buckingham executed and recorded a deed of trust on the unimproved land securing payment of that loan. In a contract executed in June 1987, Buckingham engaged George W. Kane, Inc. (Kane), as general contractor. Kane acquired a payment bond from Hartford Fire Insurance Company (Hartford Fire) and entered into three separate contracts for carpentry work with NuScope, Inc. (NuScope). As the construction project neared completion in September 1988, Kane discontinued progress payments to its subcontractor, and NuScope filed three memoranda of mechanic's liens for the unpaid balances of the subcontracts. In November 1988, the circuit court entered an order granting Kane's petition to file three bonds securing payment of the debts claimed in the memoranda of mechanic's liens. Hartford Accident and Indemnity Company (Hartford Accident) issued the bonds, Kane filed them in the office of the clerk of the circuit court, and the court ordered NuScope's three liens "released in accordance with the provisions of Virginia Code § 43-71." Naming Kane, Hartford Fire, and Hartford Accident as defendants, NuScope then filed a "Bill of Complaint to Enforce Mechanic's Liens and for Ancillary Relief." NuScope did not ask that its liens be enforced by sale of the property. Rather, NuScope prayed that "[t]he validity of its mechanic's liens be duly ascertained and confirmed ... and the amount for which the liens would have been enforceable against the real estate be determined" and that the chancellor enter judgment against Kane and Hartford Accident on the lien bonds. As ancillary relief, NuScope sought damages for breach of contract against Kane and Hartford Fire on the payment bond. A commissioner in chancery conducted an evidentiary hearing and filed his report. As relevant to this appeal, the commissioner found that all necessary parties were before the court; that NuScope's three liens were valid; and that "Kane and its mechanic's lien bond surety Hartford Accident are obligated for ... the amounts contained in the bonds and the liens." The chancellor rejected all exceptions to the report and entered judgment in favor of NuScope for $97,439.06. We awarded Kane and its sureties (collectively, Kane) an appeal, limited to their challenge to the chancellor's confirmation of the commissioner's finding that all necessary parties were before the court.[1] Quoting from Mendenhall v. Cooper, 239 Va. 71, 74, 387 S.E.2d 468, 470 (1990), Kane argues on brief that "`[a] court is powerless to proceed with a suit *703 unless all necessary parties are properly before the court'"; that the owner of the property encumbered by NuScope's liens and the beneficiary and the trustees of the deed of trust antecedent to those liens were necessary parties whose absence was fatal to the court's jurisdiction over NuScope's enforcement suit; and, hence, that we must reverse the judgment and dismiss NuScope's suit for failure to join Buckingham, First Union, and the trustees of the deed of trust as parties-defendant. Kane relies primarily upon Mendenhall and upon Walt Robbins, Inc. v. Damon Corporation, 232 Va. 43, 348 S.E.2d 223 (1986). In Walt Robbins, the owner of an unimproved tract of land acquired a construction loan and executed a deed of trust securing payment of the note. Two mechanic's lienors filed suits to enforce their liens for labor and materials furnished the project. Applying due process principles, we held that the beneficiary of the deed of trust recorded prior to the commencement of the project was a necessary party because the beneficiary had "a property right which entitle[d] him to notice and an opportunity to challenge the perfection of the mechanic's lien or to invoke the forfeiture provisions of Code § 43-23.1." Id. at 47, 348 S.E.2d at 226. Concerning the trustee, we held that he was a necessary party to the suit seeking enforcement by judicial sale because, absent jurisdiction over his person, the chancellor could not enter a decree divesting him of legal title to the property.[2] In Mendenhall, we concluded that the rule in Walt Robbins applies not only to the beneficiary and the trustee of a deed of trust recorded prior to commencement of the improvements, but also to the "owners of [the property] subjected to the mechanic's liens." 239 Va. at 75, 387 S.E.2d at 470. Because those parties had not been timely added as defendants to enforcement suits filed by a subcontractor and a materialman, we entered final judgment reversing the judgment below and dismissing the bills of complaint. Thus, we concluded that the beneficiary, the trustee, and the owners were members of that class of necessary parties defined in Bonsal v. Camp, 111 Va. 595, 598, 69 S.E. 978, 979 (1911), as those "whose interests in the subject matter of the suit, and in the relief sought, are so bound up with that of the other parties that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed." We reaffirm the rules applied in Mendenhall and in Walt Robbins. However, the issue dispositive of this appeal was never raised in those cases. As a matter of first impression, we consider now whether those rules apply when a mechanic's lien has been released by posting a bond as provided by statute. Code §§ 43-70, -71 are known in the construction and repair industries as the "bonding-off" statutes. In pertinent part, § 43-71 provides as follows where, as here, the bond is posted prior to the filing of the enforcement suit: At any time after the perfecting of any [mechanic's] lien and before a suit be brought for the enforcement thereof, the owner of the property affected thereby, the general contractor or other parties in interest may ... apply to the court ... for permission ... to file such bond as prescribed in the preceding section.... Upon the granting of such permission... and the filing of such bond ... the property affected thereby shall stand released from such lien.... Such ... bond ... shall be held under the control of the court, and shall be subject to the final judgment of the court adjudicating the lien or liens to be valid and determining the amount for which the same would have been enforceable against the real estate in any suit or action thereafter brought for the ascertainment of the rights of the parties in interest, with respect hereto.... The sureties on any such bond, which may be involved in any suit or action *704 brought under the provisions of this section, shall be made parties to such suit or action. Kane argues on brief that "§ 43-71 provides that when a bond releasing a mechanic's lien is posted before an enforcement suit is filed, the requisite proof and parties to the suit will be the same as if no bond had been posted, except that the surety on the bond must also be made a party." As Kane interprets the statute, the requirement that the court hear evidence and adjudicate the validity and the enforceable amount of a mechanic's lien mandates the joinder as parties-defendant of all those who would be necessary parties if the mechanic's lien had never been released. We think Kane's interpretation overlooks the function the General Assembly intended the bonding-off statutes to serve. The legislature was fully aware of the competing interests of those engaged in the construction industry. Typically, a landowner requires a loan to finance a construction project. The lender, the beneficiary of the owner's deed of trust on the property, requires a certificate insuring the title to that property. The general contractor requires the owner to make periodic payments to satisfy periodic claims of subcontractors and material suppliers. The owner must make serial requests of the lender for progress draws. As each new request is received, the lender must ask the title insurance company to issue an endorsement increasing the coverage of the title policy to include the new draw. To comply with that request, the title insurer must up-date its title search. If the search discloses a mechanic's lien lodged against the property since the last draw, the title insurer will decline to issue a new endorsement, the lender will permit no further draw by the owner, and no progress payments will be made to those who furnish the labor and materials. If the project is to be financed and completed and the debts due mechanics and materialmen are to be satisfied, the title defect must be cured. If, as provided in Code § 43-71, the encumbrance of the mechanic's lien is released by the posting of a bond, the title defect is cured, a new title endorsement can be issued, the progress draws and payments can be made, and the project can proceed. Reading § 43-71 in context with related sections of Title 43, Chapter 1, we think the legislative purpose was to facilitate the financing and expedite the completion of construction and repair projects by creating an alternative security device which provides those who supply the labor and materials to those projects protection equivalent to the protection afforded by mechanic's liens. The General Assembly accomplished that purpose by authorizing the courts to permit any party who could be adversely affected by the enforcement of a mechanic's lien, i.e., "the owner of the property affected thereby, the general contractor or other parties in interest", id., to file a bond securing payment of whatever claim otherwise could be enforced by judicial sale of the property. The legislature directed that, upon the filing of such a bond, the mechanic's lien would cease to exist, leaving the bond as the mechanic's sole recourse. Concerning enforcement of that bond, the statute provides that, "with respect hereto", liability "shall be subject to the final judgment of the court adjudicating the lien ... to be valid and determining the amount for which the same would have been enforceable against the real estate in any suit ... for the ascertainment of the rights of the parties in interest". Id. Hence, with respect to a bond enforcement suit, the party-plaintiff has the burden of proving the same elements of his claim that he would have had to prove in a suit to enforce the lien released by that bond. He may do so by calling whatever witnesses might claim interests adverse to his claim. The question we must decide here is whether, as Kane contends, some of such witnesses are necessary parties-defendant to the bond enforcement suit. In Mendenhall, we defined the term "necessary parties" by quoting the following language used in two of our prior opinions: *705 Where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff's claim, in such case he has an immediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit. 239 Va. at 75, 387 S.E.2d at 470; Raney v. Four Thirty Seven Land Company, 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987); Gaddess v. Norris, 102 Va. 625, 630, 46 S.E. 905, 907 (1904). Applying that definition in our resolution of the issue posed in this appeal, we enquire who "has an interest ... which is likely either to be defeated or diminished" by NuScope's claim against the bond. Id. Once Kane posted the bond, NuScope's security for the claim underlying its mechanic's lien became the bond and not the real estate. When NuScope filed its suit demanding payment on the bond, Kane, NuScope's debtor and principal on the bond, acquired "an immediate interest in resisting the demand". Id. The same was true of Hartford Accident, the surety on the bond. Both were necessary parties to that suit. But once the encumbrance on Buckingham's property was released and replaced by a substitute security, the owner no longer had an interest in its property "likely either to be defeated or diminished" by NuScope's suit on the bond. While, as in Mendenhall and Walt Robbins, the beneficiary and the trustee of the construction deed of trust would have acquired such an immediate interest if NuScope had sued to enforce its mechanic's lien by a judicial sale of the property encumbered by that deed of trust, neither had such an interest once the mechanic's lien was released and NuScope sued to enforce its claim against the substitute security. Buckingham and the beneficiary and the trustee of the construction deed of trust were members of "`a class of persons having such relations to the matter in controversy, merely formal or otherwise, that, while they may be called proper parties, the court will take no account of the omission to make them parties'", Bonsal, 111 Va. at 597, 69 S.E. at 978, quoting Barney v. Baltimore City, 73 U.S. (6 Wall.) 280, 284, 18 L.Ed. 825 (1867); accord, Mendenhall, 239 Va. at 74, 387 S.E.2d at 470. Although, in the interest of judicial economy, all three could have been joined as proper parties-defendant to NuScope's suit on the bond, we uphold the chancellor's ruling that all necessary parties were before the court, and we will affirm the decree. Affirmed. NOTES [1] The chancellor's ruling on NuScope's prayer for ancillary relief is not before us, and in light of our resolution of the issue framed on appeal, we need not address other questions discussed on brief. [2] See also James T. Bush Construction Company, Inc. v. Patel, 243 Va. 84, 412 S.E.2d 703 (1992) (applying same rules to beneficiary and trustee of deed of trust recorded subsequent to mechanic's lien).

77 F.Supp.2d 242 (1999) Jon C. REEVES and Michael Cavanagh v. ALLIANT TECHSYSTEMS, INC. No. CA 95-237ML. United States District Court, D. Rhode Island. January 29, 1999. *243 *244 *245 Joseph R. Paulumbo, Jr., Palumbo, Galvin & Boyle, Middletown, R.I., for Plaintiff. William P. Robinson, III, Marc A. Crisafulli, Edwards & Angell, Provdience, R.I., Thomas B. Hatch, Robbins, Kaplan, Miller & Ciresi, Minneapolis, MN, for Defendant. MEMORANDUM AND DECISION LISI, District Judge. In May 1995, plaintiffs Jon Reeves and Michael Cavanagh filed suit against defendant Alliant Techsystems, Inc. (Alliant) pursuant to the civil remedy provisions of the Fair Labor Standards Act (FLSA) to recover unpaid overtime compensation. Plaintiffs allege that while Alliant classified them as salaried employees, exempt from the overtime provisions of the FLSA, they were in fact treated as non-salaried employees entitled to overtime compensation. Alliant denies any such violation contending that plaintiffs were paid on a salary basis and therefore, that they were exempt employees under the FLSA. This matter was tried before the court sitting without a jury.[1] Having reviewed the evidence presented at trial and the post-trial memoranda submitted by the parties, this matter is now in order for a decision. I. The Parties A. Defendant Alliant Techsystems, Inc. Alliant Techsystems Inc. (Alliant), headquartered in Hopkins, Minnesota, is primarily engaged in the marine and military defense industry, its principal customer being the United States government. Alliant was formed in October 1990 as a spin-off company from Honeywell, Inc. During the relevant time period, Alliant was organized into four business groups — Aerospace, Defense Systems, Emerging Business and Marine Systems. The Marine Systems Group (MSG) had its headquarters in Mukilteo, Washington. Employees of the Engineering Services Center (ESC), a division of the MSG, provided engineering and technical support to the United States Naval Undersea Warfare Center (NUWC). The NUWC is involved in research and development activities relative to the Navy's combat systems. During the time frame relevant to these claims, the ESC had employees stationed in several locations throughout the United States: Newport/Middletown,[2] Rhode Island; Maryland; Minnesota; Virginia; San Diego, California; Hawaii; and three sites in Washington (Poulsbo, Keyport, and Mukilteo). The ESC headquarters were located in Poulsbo. Each location had a site manager who reported directly to the Director of the ESC, Lee Moraski (Moraski). Jerry Mortaloni (Mortaloni) supervised ESC employees supporting the NUWC Keyport contract until June 1993 when he was succeeded by Larry Armbruster (Armbruster). From 1992 to about December 1993, Tony Misslin (Misslin) supervised ESC employees supporting the NUWC Newport contract; he was succeeded by Robert Griglak (Griglak). Like his Keyport counterpart, the site manager *246 for Alliant's Newport office, Misslin and then Griglak, reported directly to Moraski. B. Plaintiffs Reeves and Cavanagh In 1992, the Navy, as part of its laboratory reorganization, transferred its lightweight torpedo program from San Diego, California to Newport, Rhode Island. In the hope of obtaining a contract from NUWC's Newport division, Alliant established an office in Newport, Rhode Island. Alliant staffed the Newport office with employees who agreed to transfer there on a temporary basis. In 1992, Reeves and Cavanagh were offered temporary assignments to Newport. Upon acceptance of his temporary assignment to Newport, Reeves was promoted to Chief Engineering Fellow, one of the highest engineering grades within Alliant. In March 1992, Cavanagh also accepted a one year temporary assignment in Newport as Alliant's Senior Principal Customer Service Representative. In this position, Cavanagh was the principal contact with NUWC Newport on contract administration matters. In December 1993, Reeves accepted a regular assignment in Newport. After only one month in this position, however, Reeves returned to Minnesota, and, for personal reasons, remained there until he was laid off effective April 22, 1996. See Reeves I, Order dated January 29, 1999. In March 1993, Cavanagh also accepted a regular assignment in Newport. Although Cavanagh was laid off effective February 22, 1995, he was paid his full salary until March 31, 1995. C. The Opt-in Plaintiffs The FLSA allows one or more employees to pursue an action in a representative capacity for "other employees similarly situated." 29 U.S.C. § 216(b); see Basch v. Ground Round, Inc., 139 F.3d 6, 10 (1st Cir.1998) (The FLSA "provides for an `opt in' procedure for class actions, requiring individuals to affirmatively consent to the action in order to be a member of the class."). A section 216 collective action affords plaintiffs "the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The threshold issue in deciding whether to authorize class notice in a FLSA action is whether plaintiffs have demonstrated that potential class members are "similarly situated." However, neither the FLSA nor its implementing regulations define the term "similarly situated." The First Circuit has not had the opportunity to delineate the appropriate standard for determining whether plaintiffs are "similarly situated," however, several district courts that have considered the question have utilized a two-tiered approach to certification determinations under § 216(b). See, e.g., Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678-79 (D.Colo.1997); Brooks v. Bellsouth Telecom., Inc., 164 F.R.D. 561, 568 (N.D.Ala. 1995), aff'd, 114 F.3d 1202 (11th Cir.1997); Lusardi v. Xerox Corp., 118 F.R.D. 351, 361 (D.N.J.1987); Allen v. Marshall Field & Co., 93 F.R.D. 438, 445 (N.D.Ill.1982). Under this two-tiered analysis, the trial court must first determine whether notice of the action should be given to potential class members. See Thiessen v. General Elec. Capital Corp., 996 F.Supp. 1071, 1080 (D.Kan.1998) (quoting Brooks, 164 F.R.D. at 568). This preliminary pronouncement is "usually based only on the pleadings and any affidavits that have been submitted" during the initial stages of litigation. Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 (5th Cir.1995). Because the court has minimal evidence at the "notice stage," this determination "is made using a fairly lenient standard, and typically results in `conditional certification' of a representative class." Id.; but see, Haynes v. Singer Co., Inc., 696 F.2d *247 884, 887-88 (11th Cir.1983) (district court did not abuse its discretion in refusing to authorize class notice where plaintiff's counsel offered only unsupported assertions of widespread FLSA violations). Courts have held that plaintiffs can meet this burden by simply alleging "that the putative class members were together the victims of a single decision, policy, or plan" that violated the law. Id. at 1214 n. 8 (quoting Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988)); see also Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997). Once discovery is complete and the case is ready for trial, the party opposing joinder may file a motion for "decertification." At the "post discovery" stage, the court generally has much more information on which to base its decision, and can make a factual determination on the "similarly situated" question. See Mooney, 54 F.3d at 1214. When determining the scope of the class, most courts focus on the following three factors: (1) the disparate factual and employment settings — e.g., whether plaintiffs were employed in the same corporate department, division, and location; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. See, e.g., Thiessen, 996 F.Supp. at 1081; Brooks, 164 F.R.D. at 568; Lusardi, 118 F.R.D. at 359. If the record facts reveal that the claimants are not "similarly situated," then the court may decertify the class, and dismiss the opt-in plaintiffs without prejudice. See Mooney, 54 F.3d at 1214; Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir.1989) (overruled on other grounds). If the plaintiffs are "similarly situated," the district court allows the case to proceed to trial as a collective action. See Mooney, 54 F.3d at 1214; see also Hyman v. First Union Corp., 982 F.Supp. 1, 7 (D.D.C.1997) (class members must only be similarly situated, not identically situated). During the early stages of the instant matter, Plaintiffs Reeves and Cavanagh filed a motion to notify potential class members of the pendency of their action. In support of their motion, Reeves and Cavanagh alleged that they and other potential class members were subject to a series of policies and practices promulgated and enforced by Alliant management, the effect of which was to treat Reeves and Cavanagh as non-exempt employees under the FLSA.[3] In February 1996, Magistrate Judge Robert W. Lovegreen granted Plaintiffs' motion and permitted them to notify present and former ESC "exempt" employees who had supported either the NUWC Keyport or NUWC Newport contract during the relevant time period. Seven months later, after fifty-six persons had "opted-in" and extensive discovery had been conducted, Alliant filed a motion to restrict joinder — or in other words, to "decertify" certain members of the putative class. Although the case was clearly beyond the "notice stage," discovery had not yet concluded. See Thiessen, 996 F.Supp. at 1081 (confronting a similar procedural posture, the court adopted an "intermediate" approach in analyzing the "similarly situated" status of certain optins). In its motion, Alliant tried to distinguish Reeves and Cavanagh from opt-in plaintiffs who had suffered an actual deduction in pay, who were paid on an hourly basis, or who had terminated their employment outside of the two-year statute of limitations. In a supplemental memorandum, Alliant stated that "the Armbruster disciplinary procedure was applicable only to Keyport employees," but provided no factual support for this assertion. Def.'s Supp. Mem. Supporting Mtn. Restrict *248 Jndr. at 3. In turn, Plaintiffs argued that the Armbruster memorandum was circulated at the highest levels of ESC so that it should be considered an Alliant policy and practice. Finding a sufficient factual nexus between the named plaintiffs and the opt-in plaintiffs, Magistrate Judge Lovegreen denied Alliant's motion with respect to 55 of the 56 opt-ins.[4] Alliant appealed Magistrate Judge Lovegreen's Memorandum and Order dated April 15, 1997. Without providing additional facts to bolster its argument, Alliant repeated its stance: the Armbruster disciplinary process was applicable only to Keyport employees and not to Newport employees. See Def.'s Obj. to Mem. & Order at 6. Alliant averred that the claims and defenses applicable to Newport and Keyport operations employees were "fundamentally different," yet failed to delineate such distinctions. Id. at 7. In response, Plaintiffs highlighted certain language in the Armbruster memorandum. Under the category of "Applicability," the memorandum listed "All ESC employees who are exempt time reporting (contract or burden)." Def.'s Ex. 29; see Pls.' Obj. to Def.'s Obj. to Mem. & Order at 9. Citing the memorandum's addressees which included "T. Misslin," the then Newport site manager, Plaintiffs stated that this "document was widely disseminated throughout ESC ..." Id. at 9-10. On January 14, 1998, this court affirmed Magistrate Judge Lovegreen's preliminary order and provisionally certified the collective action without prejudice to raising issues of Plaintiffs' "similarly situated" status following the completion of discovery. At the close of discovery, Alliant filed a motion in limine to exclude any evidence pertaining to the Armbruster memorandum and renewed its motion to restrict the joinder of any Keyport opt-in plaintiffs. Citing the deposition testimony of Moraski and Misslin, Alliant stated that the Armbruster memorandum applied to Keyport, not Newport employees. Alliant also argued against the admissibility of the Armbruster memorandum, by stating that Griglak, the Newport site manager, had never issued a similar policy in his department. See Def.'s Mtn. In Lim. at 5. Again, Alliant attempted to undermine the Plaintiff's "similarly situated" status on the bases of their "job requirements" and "pay provisions." Id. at 6-7. In response, Plaintiffs referred to evidence indicating that Alliant had classified Reeves, Cavanagh, and the opt-ins as "exempt" employees; that all plaintiffs worked in the ESC division of Alliant's Marine Systems Group; that all plaintiffs worked in support of the NUWC contracts; and, that all plaintiffs were subject to the same payroll procedures and administrative policies, including the Armbruster memorandum. Plaintiffs characterized the Armbruster memorandum as an ESC division-wide policy developed through the collaborative efforts of Lee Moraski (ESC Director), Roger Hull (ESC Director of Human Resources), Larry Armbruster (Site Manager in Keyport), Tony Misslin (Site Manager in Newport), and Alliant's legal counsel in Minneapolis to enforce an ESC policy which required all ESC exempt employees "Keyport and Newport" to work uncompensated overtime. In light of what then appeared to be a substantial dispute over a material fact, the court denied both Alliant's motion to restrict joinder and motion in limine. Notwithstanding its pretrial ruling, the court noted that "there may have been variations in how [Alliant's] policy was communicated and enforced between Newport and Keyport." Trans. 5/18/98, pages 5-6. The pre-trial record was particularly unclear with respect to the creation and *249 dissemination of the Armbruster memorandum. During trial, the parties presented evidence which the court finds establishes that the ESC employees supporting NUWC Keyport were subject to the Armbruster memorandum, and ESC employees supporting NUWC Newport were not. More particularly, the evidence shows (1) that the Armbruster disciplinary procedure was disseminated and implemented solely by the Keyport site manager; (2) that it had never been formally adopted as a policy applicable to all ESC exempt employees; (3) that neither Newport site manager, Misslin or Griglak, had ever implemented the disciplinary practice set forth in the Armbruster memorandum; (4) that the Armbruster memorandum had never been distributed to employees in the Newport office; and (5) that neither Reeves, Cavanagh, nor any other Newport employee had ever seen the Armbruster memorandum prior to the commencement of this suit. Because the Armbruster memorandum was not a company-wide policy affecting all ESC exempt employees, and because Reeves and Cavanagh were never subject to its provisions, the court concludes that the named plaintiffs Reeves and Cavanagh, are not "similarly situated" to the Keyport opt-in plaintiffs who were subject to the Armbruster memorandum. Because Alliant operated on a decentralized basis with respect to its employee relations, the court finds Reeves and Cavanagh to be "similarly situated" only to employees supporting the NUWC Newport contract who were directly subject to Misslin and Griglak's supervision. See Fed.R.Civ.P. 23, advisory committee's note (an order regarding class scope may be "altered or amended before the decision on the merits if, upon fuller development of the facts," the original determination appears imprecise). The claims of the opt-in Plaintiffs who the court finds are not "similarly situated" to Reeves and Cavanagh, are therefore dismissed without prejudice. The court proceeds to decide the claims of Reeves, Cavanagh, and the opt-in plaintiffs "similarly situated" to them. II. PLAINTIFFS' FLSA CLAIM A. The FLSA's Statute of Limitations The limitation period prescribed by 29 U.S.C. § 255 is two years. Nevertheless, if the affected employee can establish that the employer willfully breached the FLSA, then he can bring a claim up to three years after the alleged violation. See Bankston v. Illinois, 60 F.3d 1249, 1253-54 (7th Cir.1995); Cox v. Brookshire Grocery Co., 919 F.2d 354, 356 (5th Cir. 1990). In civil actions, the term "willful" applies to violations which are "intentional, knowing or voluntary, as distinguished from accidental; it is used to characterize intentional disregard of or plain indifference to statutory requirements." Dunlop v. Rhode Island, 398 F.Supp. 1269, 1285 (D.R.I.1975) (citing United States v. Illinois Cent. R. Co., 303 U.S. 239, 58 S.Ct. 533, 82 L.Ed. 773 (1938)). To establish willfulness in a FLSA suit, a plaintiff must prove that the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988); see Lockaby v. Top Source Oil Analysis, Inc., 998 F.Supp. 1469, 1471 (N.D.Ga.1998). Plaintiffs contend that Alliant's conduct since 1992 has evinced a reckless disregard for its obligations under the FLSA. On this issue, the court must evaluate Alliant's conduct in light of the state of the law at that time. See Lockaby, 998 F.Supp. at 1472 n. 3. Prior to the Supreme Court's decision in Auer v. Robbins, 519 U.S. 452, 458, 117 S.Ct. 905, 910, 137 L.Ed.2d 79 (1997), courts were split as to whether "an employee's pay is `subject to' disciplinary or other deductions whenever there exists a *250 theoretical possibility of such deductions, or rather only when there is something more to suggest that the employee is actually vulnerable to having his pay reduced." To the extent that Alliant's policies may have created the "theoretical possibility" of such deductions, the court does not find them to be inconsistent with the FLSA. Although Alliant admittedly imposed improper deductions against certain exempt employees during the relevant time frame, the court cannot infer from the evidence presented in the instant case that Alliant's alleged FLSA violations were "willful." Plaintiff bears the burden of showing that defendant's conduct was willful for purposes of calculating the statute of limitations. See Bankston, 60 F.3d at 1253. In light of the court's findings as set forth below, Plaintiffs have failed to meet their burden. Accordingly, the court confines its consideration of Reeves and Cavanagh's allegations with respect to the two-year statute of limitations period. B. FLSA Exempt Status — The Auer Standard Section 7(a)(1) of the FLSA, see 29 U.S.C. § 207(a)(1), requires an employer to pay its employees at a rate not less than one and one-half times their regular rate of pay for all hours worked in excess of forty in a week. The FLSA then exempts from the overtime pay requirement those employees working in "bona fide executive, administrative, or professional" positions. See 29 U.S.C. § 213(a)(1). In order to obtain the benefit of such an exemption, an employer must demonstrate that the employee meets both a "duties test," see 29 C.F.R. § 541.1, and a "salary test," see 29 C.F.R. § 541.118. Alliant has the burden of proving that Plaintiffs "plainly" and "unmistakenly" fall within the terms of an exemption. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); see also Cash v. Conn Appliances, Inc., 2 F.Supp.2d 884, 893 (E.D.Tex.1997)("employer escapes liability only by showing by a preponderance of the evidence that the employee falls within an exception or exemption to the overtime requirement."). "Because the FLSA is a remedial act, its exemptions are to be narrowly construed." Cooke v. General Dynamics Corp., 993 F.Supp. 50, 52 (D.Conn. 1997) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960)). In the instant matter, the parties have stipulated that Reeves and Cavanagh performed the duties of exempt employees. An employee will be considered to be paid "on a salary basis" if he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. 29 C.F.R. § 541.118(a) (emphasis added). In order to qualify for exempt status the employee "must receive his full salary for any week in which he performs any work," although he need not be paid for any week in which no work is performed. Id. Plaintiffs were paid biweekly in excess of the minimum amount of compensation for "exempt" employees under the FLSA. Therefore, the central issue before this court is whether the Plaintiffs' salaries were "subject to" an impermissible reduction. An employee who is subject to "disciplinary or other deductions in pay, `as a practical matter,'" is not exempt from FLSA's overtime pay provisions. Auer, 117 S.Ct. at 911. Auer's "as a practical matter" standard is met in either of two circumstances: (1) when the employer has an "actual practice of making such deductions," or (2) when an employer has an "employment policy that creates a `significant likelihood' of such deductions." Id. In the instant matter, Plaintiffs contend that Alliant had both an actual practice of making impermissible deductions and policies *251 which "`effectively communicated a significant likelihood' that ESC time reporting exempt employees would experience pay cuts for not working UCOT[5] hours." See Pls.' Post Trial Mem. at 26 & 30. C. Actual Practice Plaintiffs contend that Alliant had an "actual practice" of docking exempt employees who turned in less than 40 hours on their time sheets. In support of this contention they point to the fact that there were pay reductions on an hour for hour basis for some exempt employees. In addition, they argue that because they were required to show 40 hours on their weekly time sheets, Alliant would have docked them if they wrote in fewer than 40 hours.[6] The evidence presented does not support either theory. Alliant presented Larry Schmitt (Schmitt), the Manager of Payroll Services since 1991. Schmitt explained that time-reporting employees (like Reeves and Cavanagh) filled out the same form (time sheet) whether they were exempt or nonexempt. To simplify the process, payroll clerks were instructed to separate those forms with 40 hours from those that had a number different from 40. The next step was to discard those forms with 40, since all ESC employees were set up as salaried employees. Of the sheets with numbers other than 40, the clerk was supposed to separate exempt from non-exempt. The form had been designed to include a block to be filled out by the employee to designate whether they were exempt or nonexempt. The clerk was then supposed to verify exempt or non-exempt status as well as any noted deduction. If the employee was designated "exempt," the clerk was instructed to bring the sheet to Schmitt for his review. Schmitt further testified that he believed payroll for exempt employees was being processed in accordance with the sorting process he described, that is, no deductions were being made to the salaries of exempt employees. At some point in 1995, however, Schmitt learned that a one hour deduction had been made to the paycheck of an ESC exempt employee. Schmitt immediately contacted Beth Campbell (Campbell), the payroll clerk who had processed the time sheet in question. Campbell told Schmitt she did not know how to determine exempt or non-exempt status and did not know that it made a difference. Schmitt then "spent some time on the phone educating her." Trans. 5/19/98, page 142. Campbell also testified at trial and candidly admitted that she had made the error which Schmitt described. She testified that she had no formal training, but that she did have a copy of Alliant's Time Reporting Guidelines Manual which expressly provides that no deductions are to be made to the paychecks of exempt employees.[7]*252 Campbell stated that she did not follow the procedure described by Schmitt or the procedure set forth in the Time Reporting Guidelines Manual. Schmitt ordered a review of all paychecks where a negative transaction was entered going back to January 1993. His review uncovered errors totaling approximately $30,000 to $35,000. The number of employees who were affected was 54. This figure is significant in that during the years in question between 700-900 employees' time sheets were processed through the Marine Services payroll clerk in Mukilteo. The court also finds that neither Reeves nor Cavanagh had any such deduction even though several of their time sheets reported less than 40 hours to payroll during this time frame. Alliant argues that it properly availed itself of the "window of correction," see 29 C.F.R. § 541.118(a)(6), and therefore the exemption should not be considered lost. The court agrees. The court finds that Alliant had no actual practice of making prohibited deductions. Rather, Alliant had in place a written policy which expressly provided that no deduction would be made to an exempt employee's check unless there was a letter from management approving such deduction attached to the time sheet. See Def.'s Ex. 16 at 2-17; supra, at n. 7. This express policy was reiterated throughout the memoranda introduced at trial.[8] The court further finds that the deductions made on the 54 employees identified in Schmitt's survey were the result of inadvertence and mistake on the part of Alliant's payroll clerk. The court found both Schmitt and Campbell's testimony to be credible and consistent as to how those deductions were made. Neither party disputes the fact that Alliant has fully reimbursed the affected employees, noted its error, and promised to avoid such deductions in the future. (Vol. 2, Schmitt, p. 146, Def.'s Exs. 49 & 50). It is the judgment of this court, that Alliant properly availed itself of the "window of correction" to make whole those employees whose paychecks had been inadvertently short-changed. See Davis v. City of Hollywood, 120 F.3d 1178, 1180-81 (11th Cir.1997), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 963 (1998) (window of correction available to correct multiple deductions); Arrington v. City of Macon, 973 F.Supp. 1467, 1475 (M.D.Ga. 1997) (window of correction available to correct multiple deductions); Simmons v. City of Fort Worth, 805 F.Supp. 419, 425 (N.D.Tex.1992) (window of correction available where 20 percent of City's exempt employees suffered improper deductions over four year period); Keller v. City of Columbus, Indiana, 778 F.Supp. 1480, 1487 (S.D.Ind.1991) (window of correction available to correct multiple deductions over three year period). D. "Clear and Particularized" Policy The other formulation of the salary basis test requires that there be a policy that communicates to exempt employees that there is a "significant likelihood" of pay docking, that is, "a clear and particularized policy — one which `effectively communicates' that deductions will be made in specified circumstances." Auer, 117 S.Ct. at 911. The Court in Auer reviewed a policy which applied to both exempt and nonexempt employees. The Court held that *253 such a broadly worded policy did not defeat the FLSA exemption. The Supreme Court opined that this approach "avoids the imposition of massive and unanticipated overtime liability" where "a vague or broadly worded policy is nominally applicable to a whole range of personnel but is not `significantly likely' to be invoked against salaried employees." Id. at 911. With respect to the "policy" issue in the instant matter, the parties submitted hundreds of documents including internal memoranda, company proposals, and time sheets. From this flurry of paperwork, Plaintiffs identify the following documents as evidence of Alliant's alleged FLSA violations: (1) Human Resource Practice No. 9; (2) Human Resource Practice No. 2.10L1; (3) Human Resource Practice No. 3.0L1; (4) Human Resource Practice No. 8.30; and, (5) Moraski's Reduced Workweek/Reduced Salary Option plan. (1) Human Resource Practice No. 9 In July 1990, just three months before Honeywell spun off its marine business to Alliant, the company implemented Practice No. 9, whereby ESC exempt and nonexempt employees could be sent home for as little as half a day when there was no work available. See Def.'s Ex. 23, pages 7-8. The half day minimum remained in effect until June 1993. Between July 1, 1993 and October 1, 1993, the minimum period of directed leave, for exempt and nonexempt employees, was increased to one full day. See Def.'s Ex. 23, pages 1-6. If the affected employee did not have sufficient accumulated compensation time, vacation time or personal leave time to cover the absence, the leave would be without pay. There is no evidence that any ESC exempt employee actually suffered a partial week reduction in pay due to Alliant's directed leave policy. In the absence of any actual deductions, the court must determine whether the policies in question were "clear and particularized." Because Practice No. 9 nominally covered all employees, it did not "effectively communicate" a "significant likelihood" of partial week suspensions without pay "in specified circumstances" for exempt employees.[9]See Auer, 117 S.Ct. at 911. As in Auer, this general policy does not defeat salary basis. See id.; accord West v. Anne Arundel County, Maryland, 137 F.3d 752, 763 (4th Cir.1998); Ahern v. County of Nassau, 118 F.3d 118, 121-22 (2d Cir.1997); Balgowan v. New Jersey, 115 F.3d 214, 219 (3d Cir. 1997); Stanley, 120 F.3d 179, 184 (9th Cir.1997); Carpenter v. City & County of Denver, 115 F.3d 765, 766-67 (10th Cir. 1997); DiGiore v. Ryan, 987 F.Supp. 1045, 1051 (N.D.Ill.1997). (2) Human Resource Practice No. 2.10L1 On October 1, 1993, Practice No. 9 was replaced by Practice No. 2.10L1 which made the minimum directed leave, for exempt employees, one full week. See Def.'s Ex. 24. Practice No. 2.10L1 stated in pertinent part: "[W]hen ... work is not available for periods encompassing a full workweek or more, regular status exempt employees may be required to use accrued compensatory time or vacation, or be placed on unpaid LOA [leave of absence] until direct charge work is available. In like situations of any length," nonexempt employees would be required to do the same. Id. An employee is exempt from FLSA's overtime requirements only if his pay "is not subject to reduction because of variations in the quality or quantity of the work performed"; an exempt employee "must receive his full salary for any week in *254 which he performs any work without regard to the number of days or hours worked." 29 C.F.R. § 541.118(a). This Section also provides that an exempt employee need not be paid in any week in which the employee performs no work. See id.; Secretary of Labor's Brief As Amicus Curiae at 18 n.5, Auer (No.95-897) ("the Secretary has adopted a general policy, reflected in 29 C.F.R. § 541.118(a), not to question the salaried status of an employee who receives no pay in a week in which the employee performs no work."). Practice No. 2.10L1 which does apply to exempt employees, comports with the FLSA and its implementing regulations in that it sets the minimum period for directed leave at a full workweek. (3) Human Resource Practice 3.0L1 In its proposal to NUWC Newport for the follow-on contract, Alliant told the government that "all exempt employees of Newport Operations will be required to work an average of five hours per week of uncompensated overtime (UCOT)." Def.'s Ex. 37, page 5-11. Alliant expected to enforce its "corporate policy on Competitive Time" by way of Practice 3.0L1. See id., App. G. Although Practice No. 3.0L1 was attached as an addendum to Alliant's "technical proposal" to the government, Alliant never in fact adopted Practice No. 3.0L1 as an official company policy. Trans. 5/19/98, page 5. Plaintiffs contend that Practice No. 3.0L1 is an unlawful "policy" because it required "exempt employees [to] work 5 hours of UCOT or take a salary cut ..." Pls.' Post Trial Mem. at 17. Notwithstanding Plaintiffs' inaccurate characterization of this document, the court need not address the propriety of the provisions in Practice No. 3.0L1 because Practice No. 3.0L1 was never adopted by Alliant and therefore cannot be considered a company "policy." (4) Human Resource Practice 8.30 Plaintiffs also cite Practice No. 8.30 as evidence of an Alliant policy which communicated a significant likelihood that impermissible deductions would be made. According to Plaintiffs, "[t]his practice spelled out a series of disciplinary steps ranging from counseling to suspension to termination." Pls.' Post Trial Mem. at 16. Plaintiffs' assertions are only half right. Practice No. 8.30 is a general disciplinary policy, applicable to "all salaried employees" — exempt and nonexempt alike — which identifies the various forms of discipline that Alliant managers may use as they see fit. See Def.'s Ex. 38; Trans. 5/19/98, page 6. The types of discipline include counseling, warnings, suspensions and termination. The policy does not refer to UCOT requirements, nor does it mandate any particular discipline that will be used if an exempt employee refuses to work an average of 45 hours per week. See Def.'s Ex. 38; Trans. 5/19/98, pages 83-84. This is precisely the type of "vague or broadly worded policy" that the Supreme Court held does not make an employee's pay subject to deduction as a practical matter. Auer, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79. It simply describes a variety of disciplinary procedures which a supervisor may invoke at his or her discretion. In this regard, it is similar to the policy reviewed by the Supreme Court in Auer. In like vein, it does not transform Reeves and Cavanagh into nonexempt employees. (5) Moraski's Reduced Workweek/Reduced Salary Option In June 1994, Alliant was awarded a three year contract as a follow-on to its two-year sole-source contract with NUWC Newport. The follow-on contract was a "cost plus" contract with a fixed fee based upon the number of hours of contract work performed. In order to lower its labor costs on the follow-on contract and to win this contract over its competitors, Alliant *255 proposed hourly rates based upon the assumption that its exempt employees would work, on average, 45 hours per week.[10]See Def.'s Ex. 37. On July 28, 1994, Griglak announced the 45 hour average workweek requirement to his Newport employees. See Def.'s Ex. 39. In order to maintain their salaries, exempt employees assigned to the contract would be required to work on average five mandatory uncompensated overtime (UCOT) hours per week. If they wished to be relieved of the 45 hour requirement, they could choose to work an average of 42.5 hours per week and accept a 5.5 percent reduction in their salary, or work an average of 40 hours per week and accept an 11.1 percent reduction. Id. Neither Reeves nor Cavanagh nor any other Newport employee chose either option. About four months later, Moraski issued another memorandum which eliminated these two options. See Def.'s Ex. 41. Nevertheless, Griglak and Moraski were still willing to accommodate any employee who had a need for a reduced work schedule. With respect to Moraski's Reduced Workweek/Reduced Salary Option plan, Plaintiffs argue that employees who opted not to work the 5 hours of UCOT would ultimately be subject to a unilateral pay cut. See Pls.' Post Trial Mem. at 17. Some of Plaintiffs' witnesses testified that they were threatened with "pay reduction" or with having their pay "docked" if they failed to work on average 45 hours per week, but the evidence established that while there was a communication about the option of working a reduced workweek (less than 45 hours) in exchange for a reduction in pay, Alliant had not expressed an intent to make deductions from an exempt employee's salary on an hour-for-hour basis if the employee failed to work 45 hours in a week. For example, Reeves and Cavanagh worked less than 45 hours in several weeks, yet neither received a deduction in pay. On this issue, Cavanagh testified that he could not recall whether Griglak used the words "dock your pay," "reduce your pay" or "cut your pay," but he could recall that Griglak told him he had an option to take a reduction in salary and work fewer hours. Under the Department of Labor regulations, an employee will be considered to be paid "on a salary basis" if he receives a salary that is "not subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.118(a). "[I]f the employee is ready, willing, and able to work, deductions may not be made for time when work is not available." 29 C.F.R. § 541.118(a)(1). That is, a reduction in work time unilaterally imposed by the employer may not be the basis for a reduction in salary. See, e.g., Dingwall v. Friedman Fisher Assoc., P.C., 3 F.Supp.2d 215, 220 (N.D.N.Y.1998). (Employer reduced the workweek of its staff, including plaintiff, from five days to four and simultaneously reduced their salaries by one-fifth.). The Defendant in Dingwall argued that its unilateral salary adjustment did not constitute a deduction in salary, but was "merely a change in the `regular' salaries to a new `predetermined' salary amount." Id. The court rejected this interpretation of the FLSA's salary basis test, stating that Defendant was not merely altering plaintiff's fixed salary (which it undoubtedly had the right to do), it was altering it on the basis of a reduction in the amount of days worked in response to *256 an insufficient amount of work available. The fact that this was done as an enforced policy of the employer rather than in response to decisions of the employee does not alter the basic fact: plaintiff's pay was reduced as a result of reduction in days worked. Id. at 220. Under Moraski's policy, Alliant's ESC employees could voluntarily choose the number of hours they wanted to work. That is, any employee "ready, willing, and able to work" the average 45 hours per week, could elect to do so. Unlike the Dingwall scenario, the number of hours to be worked was not based on what work was available, but rather on the individual employee's election of a reduced workweek. Accordingly, the court finds Alliant's Reduced Workweek/Reduced Salary Option policy to be consistent with the requirements for exempt status under the FLSA. III. RETALIATION Reeves contends that Alliant terminated his employment because he filed a Fair Labor Standards Act suit against the company. The FLSA's anti-retaliation provision prohibits an employer from penalizing an employee who seeks to enforce rights guaranteed by Federal law. See 29 U.S.C. § 215(a)(3). The elements of a retaliation claim require, "at a minimum, a showing that (1) the plaintiff engaged in statutorily protected activity, and (2) his employer thereafter subjected him to an adverse employment action (3) as a reprisal for having engaged in the protected activity." Blackie v. State of Maine, 75 F.3d 716, 722 (1st Cir.1996). Here, Reeves easily demonstrates the first two elements of his prima facie case; it is uncontested that Reeves engaged in a protected activity by filing suit under the FLSA and that Alliant subsequently imposed an adverse employment action by terminating his position in April 1996. The third element, therefore, is the determinative factor on this issue. Under it, a plaintiff must proffer evidence which enables a trier of fact to reasonably infer that "a causal connection existed between the protected conduct and the adverse action." Id. at 723 (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991)). Reeves's problems with Alliant management began, by his own admission, in early 1994. When Reeves refused to return to Newport to complete his assignment in Newport, Moraski directed Reeves to remain in Minnesota and support the NUWC Newport contract from there. See Reeves I, Order dated January 29, 1999. Although Reeves ultimately complied with this directive, his relationship with the company and his supervisors became progressively more contentious as time proceeded. See Def.'s Ex. 99. During the period from January 1, 1994 through January 1, 1995, Reeves's "leadership value as a role model ha[d] diminished due to his continuing issues with time sheet procedures, work direction clarification and heavy use of burden charges during his workweek that [took] time away from his task direction." Def.'s Ex. 92. For instance, Reeves asked his supervisors to put most of his assignments, even routine requests, in writing. See, e.g, Def.'s Exs. 69 & 70. Reeves also became a prolific and garrulous memorandum writer on any subject which concerned him. Reeves included on his time sheets the many hours he alleges he spent filling out his time sheets (e.g., 1-4 hours/week), writing memos to Alliant executives on the same subject (e.g., 6 hours/week), and corresponding with William Robinson, one of Alliant's attorneys in this suit. See Def.'s Ex. 10. In April 1995, Griglak tried to administer a performance appraisal to Reeves. Although Reeves had requested the appraisal, Griglak had a difficult time getting Reeves to commit to a date for their meeting. Griglak scheduled a meeting, but *257 Reeves did not attend.[11] To ensure Reeves's presence at their next scheduled meeting, Griglak ordered Reeves to attend. Still Reeves did not show. Unable to communicate Reeve's performance appraisal to him, Griglak subsequently mailed it. In the appraisal, Griglak expressed concern regarding Reeves's deteriorating performance and criticized Reeves's direct labor yield.[12] According to Griglak, Reeves's technical work was good, but he was doing less of it than expected. Following the aborted attempt at a performance appraisal meeting, Reeves wrote a five page memorandum to Alliant's CEO titled "Seemingly Nefarious Performance Appraisal Behavior by Alliant Techsystems." See Def.'s Ex. 93. Reeves's time sheet for that particular week indicates that he spent 19 hours writing this particular memorandum. See Def.'s Ex. 10 (period ending 4/9/95). In November 1995, Moraski sent Reeves a memorandum regarding his ineffective work performance and "increasingly confrontational" demeanor. See Def.'s Ex. 99. Again, Moraski reminded Reeves that he was spending too much time on personal matters and not enough time on direct chargeable tasks. According to Moraski, Reeves "excessively question[ed] routine work directions" so as to "avoid compliance with directives" easily followed by other employees. Id. For example, Reeves refused to use the current time reporting forms utilized by other employees in his work assignment area. Even though he had access to clean time sheets, Reeves recycled the same time form each week — scratching out the previous week's data and sloppily writing over it with the current week's information. Moraski also noted the fact that Reeves spent an "unreasonable" and "overly excessive" amount of time pursuing personal matters on company time. See id. For instance, Reeves distributed a personal memorandum related to this lawsuit to Alliant employees on company letterhead and through company mails. Moraski warned Reeves, "you appear to believe [that] performance of your personal interests take precedence over company work; that is not correct." Id. In January 1996, Griglak and Moraski began to plan for Alliant's upcoming fiscal year. At that time, the work that Alliant was doing for NUWC Newport was primarily on the Mark 50 torpedo (Reeves's area of expertise), but the budgets for that program were being slashed. A new program involving the lightweight hybrid torpedo (LHT), took its place and Moraski wanted to position ESC to be available for that business. Moraski wanted to bring Bob Matthews into ESC since he had the necessary experience to support the LHT program. However, with the addition of Matthews and his salary, Moraski did not feel that he could afford to retain Reeves, particularly because he was a very highly paid employee who had not been productive since early 1994, and he did not have the background and experience to lead the LHT program. For these reasons, Alliant decided to lay off Reeves. In the instant matter, Reeves has presented no evidence whatsoever to establish Alliant's retaliatory animus. The court finds that Reeves's termination had nothing to do with the filing of this legal action — except to the extent that Reeves completely disregarded his job tasks and instead, used company time to further his own litigation. The court finds that Alliant *258 had more than sufficient cause to terminate Reeves long before it ever chose to do so. The evidence presented at trial revealed multiple examples of Reeves's insubordinate and surreptitious conduct dating back to early 1994. Although Reeves may have been a qualified employee and expert in his field, his confrontational and evasive behavior created definite performance issues. From 1994 until his final termination in 1996, Reeves's direct labor yield dropped substantially. He obsessively questioned company policy. He improperly used Alliant property for his own devises. And he flagrantly ignored the direct orders of his superiors. Accordingly, the court finds in favor of Alliant on this count. IV. CONCLUSION For the reasons detailed above, this court denies Plaintiffs' Rule 52 motion and grants judgment in favor of Alliant on all counts. SO ORDERED: NOTES [1] For purposes of judicial economy, this case was consolidated at trial with CA 95-063ML (Reeves I) so that evidence could be presented on both matters at once. [2] Although Alliant's Rhode Island office was actually located in Middletown, the parties at trial and in their pleadings refer interchangeably to Middletown and Newport as the same geographic locale. Despite the fact that Middletown and Newport are two separate municipalities on Aquidnick Island, for purposes of this memorandum the court will follow the parties' references to the site location. [3] Among these policies was the "Armbruster Memorandum" written and issued by Larry Armbruster on or about July 20, 1993. Issued to ESC Exempt employees in the Poulsbo office, the Armbruster Memorandum set forth a three stage disciplinary process to enforce the 45 hour workweek. See Def.'s Ex. 29. [4] The FLSA imposes a two year — and in certain circumstances, a three year — statute of limitations. See 29 U.S.C. § 255; see also infra, § II A. Opt-in plaintiff David J. Charest joined this suit on a date beyond the broader statute of limitations; therefore, the court dismissed his claim. [5] The term "UCOT" is used by the Department of Defense in its procurement regulations to describe hours in excess of 40 in one week worked by exempt employees without additional compensation beyond their regular salary. See 48 C.F.R. § 252.237-7019(a)(1). [6] Despite Plaintiffs' contentions to the contrary, the record is devoid of any Alliant written or oral policy which effectively communicates the significant likelihood of such deductions. This theory of recovery is based solely upon the subjective belief such deductions would be made as expressed by Plaintiffs and their witnesses. See McGuire v. City of Portland, 159 F.3d 460, 463 (9th Cir.1998) ("the `controlling factor is not whether the department head or the employees subjectively believed [that] the employees could be subject to' disciplinary deductions, but rather whether there was, objectively, a significant likelihood that penalties inconsistent with salaried status would be made.") (quoting Stanley v. City of Tracy, 120 F.3d 179, 185 (9th Cir.1997)). [7] Alliant issued its Time Reporting Guidelines Manual in October 1993. At page 2-17, the Manual provides as follows: If time is to be taken off without pay by an exempt employee, the time report showing less than 40 hours charged must have a letter attached from management approving the deduction. The time report and the letter must be sent together to Payroll. Otherwise, no deduction will be made. Def.'s Ex. 16 (emphasis added). [8] See, e.g., Def.'s Ex. 18 at 1, Payroll Teleconference Minutes dated 11/10/93 ("[A]s we know here at ESC, an exempt is entitled to his pay — 40 hours worth — if any hours are worked at all."); Def.'s Ex. 47 at 2-3, Memo Re: Exempt Pay Practices dated 8/1/95: Exempt Pay Practices: A. Pay Deductions Current Practice: Exempt employees are not to have pay deductions from their usual full day pay level for any reason, other than for safety infractions.... Supervisors are not to require exempt employees to take vacation for partial days of personal absence. Directed leaves or layoff for lack of work may not be for less than a full workweek. Status: This is current practice. [9] Again, Plaintiffs unsuccessfully attempt to narrow the applicability of an Alliant policy based upon their subjective understanding of it. See Pls.' Post Trial Mem. at 13 ("Consistent with their understanding that like all other ESC exempt employees, they were subject to the `no work no pay' Practice No. 9 policy, Reeves and Cavanagh, like everyone else, worked the extra UCOT hour each and every week to be used in the event of the implementation of Practice No. 9 against them.") (emphasis added); see also supra, at n. 6. [10] Alliant was aware that government contractors in Rhode Island routinely proposed rates based upon the assumption that exempt employees would work in excess of 40 hours per week. Trans. 5/18/98, pages 97-98. This produces a lower cost per hour than rates based upon the assumption that exempt employees would work, on average, 40 hours per week. Id. at 99. Alliant was specifically aware that its primary competitor for the follow-on contract-Westinghouse — had in the past proposed rates based upon a 47 hour workweek for its exempt employees. Id. at 98. Alliant was successful in its bid, but less successful in selling its employees on a 45 hour workweek. [11] At trial Reeves testified that he was out of the office on the date Griglak had scheduled the meeting caring for a terminally ill family member. Griglak testified that Reeves never mentioned this circumstance. If he had, Griglak would not have scheduled Reeves's performance evaluation for that same day. Finding Griglak to be a more credible witness than Reeves, the court adopts Griglak's version of the facts. See Reeves I, Order dated January 29, 1999. [12] Direct labor yield is the percentage of direct charge work relative to the total time charged by the employee.

433 F.Supp. 837 (1977) MEDICAL CENTER OF INDEPENDENCE, Plaintiff, v. Joseph A. CALIFANO, Jr., et al., Defendants. No. 76CV525-W-4. United States District Court, W. D. Missouri, W. D. July 13, 1977. As Amended July 28, 1977. *838 F. Philip Kirwan, Gordon R. Gaebler, Margolin & Kirwan, Kansas City, Mo., J. D. Epstein, Wood, Lucksinger & Epstein, Houston, Tex., for plaintiff. Robert B. Schneider, Asst. U.S. Atty., Kansas City, Mo., for defendants. MEMORANDUM AND ORDER DISMISSING WITHOUT PREJUDICE CLAIMS FOR COST REPORTING YEARS 1970, 1971, AND 1972 ELMO B. HUNTER, District Judge. In this action, commenced August 20, 1976, plaintiff seeks reimbursement for certain expenses claimed to be due under the Medicare program for the Medicare cost reporting periods ending December 31, 1970, 1971, 1972, and 1973. The complaint alleges jurisdiction in this Court under 42 U.S.C. § 1395oo (f), 5 U.S.C. § 702, 28 U.S.C. § 1331, and 28 U.S.C. § 1361. Defendants do not contest jurisdiction over plaintiff's claim concerning the 1973 cost reporting year, but assert that jurisdiction is lacking over the claims which involve cost reporting periods ending on December 31, 1970, 1971 and 1972. Background In 1965, Congress enacted Title XVIII of the Social Security Act, known as the Medicare program, 42 U.S.C. § 1395 et seq., to provide federal reimbursement for medical care to the aged. Part A of the program, which is involved in this action, provides "hospital insurance" benefits by establishing a reimbursement scheme for funding a beneficiary's covered health care costs. Coverage extends to services rendered by "providers" such as hospitals, skilled nursing facilities, and home health agencies. Beneficiaries entitled to such coverage, which is funded out of social security taxes, are required to pay only an annual deductible charge and a coinsurance amount. Part A insurance benefits are paid by the Government through a fiscal intermediary directly to the provider of services rather than to the beneficiary. A provider may participate in the Medicare program by filing an agreement with the Secretary of Health, Education and Welfare. 42 U.S.C. § 1395cc. Reimbursement to providers for services rendered to Medicare beneficiaries is carried out by the Secretary or, more often, by certain private organizations acting as fiscal intermediaries pursuant to agreement with the Secretary. 42 U.S.C. § 1395h. The fiscal intermediary between the Medical Center of Independence and the Secretary is the Blue Cross Association, through its local plan, Blue Cross of Kansas City. *839 In payment of funds to the provider, the fiscal intermediary acts as a conduit of trust funds and has no vested interest in the expenditure of the funds. This payment function necessarily involves ascertaining that the amount of payment is correct and accurately reflects the reasonable costs of services rendered to program beneficiaries. Since lump sum payments are made at least monthly, on the basis of estimates, subsequent adjustments for overpayments or underpayments are required. 42 U.S.C. § 1395g and § 1395x(v)(1)(A)(ii); 20 C.F.R. § 405.402(b)(1) & (2) and 405.454. The final determination as to reimbursable costs is made after the close of the provider's fiscal year, based upon the cost report filed by the provider. 20 C.F.R. § 405.405(b). The specific background of the present case is as follows. In 1970, Hospital Affiliates of Independence (HAI) purchased the assets of the plaintiff hospital from the prior owner, Americare Corporation, which had itself purchased the facility in 1967 pursuant to a Court-approved reorganization plan under Chapter X of the Bankruptcy Act. As owner of the facility, HAI then entered into a 15-year lease with the Medical Center of Independence (MCI) to be effective August 1, 1970, and a management agreement to run concurrently with the lease. HAI further agreed to make necessary working capital loans to the provider up to $200,000. The original bylaws of the provider established that there should be 11 directors; the original directors were appointed by the Court which had approved the Chapter X reorganization in 1967. In August 1970, however, after the sale of the facility to HAI and the execution of the lease and management agreement between HAI and MCI, the bylaws were amended to increase the number of directors to 14, to allow non-local directors to vote by proxy, and to increase the number of officers' positions. In October 1970, six HAI employees were elected as directors of the provider; two of these were elected officers of the provider as well. When the intermediary, Blue Cross of Kansas City, audited the provider's cost reports pursuant to the statutory scheme, it determined that the provider and HAI were related through common control and thus that the regulatory provisions requiring reduction of certain costs claimed by the provider which were acquired from a related organization, were applicable. Accordingly, disallowances were made for interest expenses, management fees, and rental payments claimed by MCI, thereby reducing plaintiff's Medicare reimbursement by approximately $600,000.00. See 20 C.F.R. § 405.427. Plaintiff filed appeals for all fiscal years involved in this action, 1970 through 1973. The appeal for 1973 was made to the Provider Reimbursement Review Board (PRRB), an independent administrative tribunal which has jurisdiction only over cost reporting periods ending June 30, 1973, or after. See 42 U.S.C. § 1395oo. Although the PRRB rendered its decision in plaintiff's favor, the Commissioner of Social Security, allegedly on the recommendation of the Bureau of Health Insurance and pursuant to authority delegated by the Secretary of Health, Education and Welfare, reversed the PRRB decision. The determination concerning cost reporting years 1970, 1971, and 1972, made by Blue Cross of Kansas City, was appealed to the Blue Cross Association. When plaintiff filed this action, that appeal had neither been heard nor decided, and to date, it has not been prosecuted to a determination. Plaintiff's suggestions in opposition to defendant's Motion to Dismiss state that plaintiff "has not vigorously pursued the administrative appeal pending before BCA for fiscal years 1970 through 1972 because Plaintiff does not believe that there is any reasonable possibility of obtaining a favorable decision for those years." (Plaintiff states that all BCA decisions are reviewed by BHI, the same entity which recommended *840 reversal of the PRRB decision, and a BCA decision may be reversed at the direction of the Social Security Administration, the Commissioner of which overruled the PRRB decision in this case.) Defendant does not dispute this Court's jurisdiction over plaintiff's claim covering the cost reporting year 1973. As for the three preceding years, however, defendant contends that the Court lacks jurisdiction due to plaintiff's failure to exhaust administrative remedies with respect to those claims, and further asserts that on the basis of 42 U.S.C. § 405(h) and case authority interpreting those provisions, jurisdiction is lacking to review on the merits the disallowances for fiscal years prior to 1973. Thus, as plaintiff's brief properly has pointed out, the issues presented to this Court by defendant's Motion to Dismiss are: (1) Does 42 U.S.C. § 405(h) preclude the Court from reviewing on the merits the disallowances of cost for fiscal years 1970 through 1972? (2) Is it necessary for plaintiff to exhaust administrative remedies as a precondition to this Court's jurisdiction to review the merits of plaintiff's claims? Exhaustion of Administrative Remedies First, defendants contend that the Court should dismiss plaintiff's claims for the years 1970, 1971, and 1972, for the reason that plaintiff has failed to exhaust its administrative remedies for those years. Plaintiff responds that the Court should entertain jurisdiction and not require exhaustion of remedies because those administrative remedies are inadequate and it would be futile for plaintiff to pursue them. As defendants point out, it is a basic legal precept that available administrative remedies must be exhausted prior to seeking relief in a court of law. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1954); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Aircraft and Diesel Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). The exhaustion requirement affords the agency an opportunity to assemble a record, to correct any error, and "ascertain . . . that the particular claims involved are neither invalid for other reasons nor allowable under other provisions of the Social Security Act." Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975). See Gallo v. Mathews, 534 F.2d 1137 (5th Cir. 1976); Aristocrat South, Inc. v. Mathews, 420 F.Supp. 23 (D.D.C.1976). Plaintiff argues, however, that in reality a final agency decision has been made that plaintiff and HAI are subject to the related party principle for the cost reporting year 1973, and that in effect, because the facts and evidence for the periods 1970-1972 are the same, a decision has been made with respect to those three preceding years. According to plaintiff, "[f]urther prosecution before BCA of the appeal for the cost period ending 1970-1972 would be a needless waste of time and expense when the outcome is entirely predictable." Persuasive though plaintiff's argument may be, the Court does not find it convincing. This Court may not "entertain jurisdiction" where jurisdiction is lacking, and the Court cannot agree that "it is clear beyond doubt that the relevant administrative agency will not grant the relief in question." American Federation of Government Employees v. Acree, 155 U.S. App.D.C. 20, 475 F.2d 1289 (1973); see also McKart v. United States, supra. On the contrary, it appears to the Court that where, as here, the issues involved "are subject to extensive and complicated statutory guidelines and regulations," St. Louis University v. Blue Cross, 537 F.2d 283, 289 (8th Cir. 1976); see, e. g., 42 U.S.C. §§ 1395ff, 1395p, 1395u; 20 C.F.R. § 405 et seq., and where one appeal — to the PRRB — has been at least preliminarily determined in favor of plaintiff, and particularly where *841 a bifurcated appeal approach presents an opportunity to present similar arguments in different manners and to different decision-makers, plaintiff may not deprive the Secretary of his final determination with respect to the cost reporting years 1970 through 1972. Until that final determination has been made, plaintiff has failed to exhaust its adequate and available administrative remedies and may not seek relief from this Court on those claims. Lack of Subject Matter Jurisdiction Even had plaintiff properly exhausted all available administrative remedies with respect to its claims involving the years 1970 through 1972, however, this Court is compelled to conclude that it lacks jurisdiction to review on the merits claims arising from fiscal years prior to 1973. Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); St. Louis University v. Blue Cross, 537 F.2d 283, 289 (8th Cir. 1976). In Weinberger v. Salfi, supra, the United States Supreme Court held that the Social Security Act provides in itself the exclusive means by which an aggrieved party may seek judicial review of its claim. Section 205(h) of the Act, 42 U.S.C. § 405(h), provides: The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under [§ 1331 et seq.] section 41 of Title 28 to recover on any claim arising under this subchapter. [citation to § 1331 supplied by the United States Supreme Court in Weinberger v. Salfi, supra.] In discussing the significance of 42 U.S.C. § 405(h), the Supreme Court stated that "On its face, this provision bars district court federal question jurisdiction over suits, such as this one, which seek to recover Social Security benefits," and explained: That the third sentence of § 405(h) is more than a codified requirement of administrative exhaustion is plain from its own language which states that no action shall be brought under § 1331, not merely that only those actions shall be brought in which administrative remedies have been exhausted. 422 U.S. at 756, 95 S.Ct. at 2463. [emphasis in original] Although the claim in Salfi arose under Title II of the Social Security Act — and involved a challenge to limitations placed on benefit payments to widows and children of deceased individuals covered under the Act — the result reached in Salfi clearly applies to the Medicare provisions found in Title XVIII of the Act. Section 1872 of the Act, 42 U.S.C. § 1395ii, provides that the provisions of subsection (h) of section 205 "shall also apply with respect to this subchapter to the same extent as they are applicable with respect to subchapter II." Therefore, because § 205(h), 42 U.S.C. § 405(h), clearly provides that "no action" shall be brought under 28 U.S.C. § 1331 et seq., plaintiff's claim of jurisdiction under that section in this action is without merit. See St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir. 1976), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (Nov. 29, 1976). Similarly without merit is plaintiff's allegation of jurisdiction under 28 U.S.C. § 1361. See Morris v. Weinberger, 401 F.Supp. 1071 (D.Md.1975); Mansfield v. Weinberger, 398 F.Supp. 965 (D.D.C.1975).[1] The preclusion set forth in § 205(h) of the Social Security Act applies equally to actions brought under 28 U.S.C. § 1361. See *842 the reasoning set forth in Weinberger v. Salfi, supra. Plaintiff also claims jurisdiction under the Administrative Procedure Act (APA), 5 U.S.C. § 702. Even accepting plaintiff's argument, however — which the Eighth Circuit Court of Appeals expressly rejected in Twin Cities Chippewa Tribal C. v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir. 1967) — jurisdiction would appear still to be precluded by the holding of Weinberger v. Salfi, supra, as well as the terms of the APA itself. The Salfi decision indicates that 42 U.S.C. § 405(h) "prevent[s] review of decisions of the Secretary save as provided in the Act," 422 U.S. at 757, 95 S.Ct. at 2463, and recognizes that that section's provision that no action shall be brought against the Secretary under section 41 of Title 28 was the result of Congress' intention to preclude the totality of federal jurisdictional statutes, as discussed above. In addition, Section 10 of the APA, 5 U.S.C. § 701 et seq. states that "This chapter applies, according to the provisions thereof, except to the extent that . . . statutes preclude judicial review." Because judicial review of this sort is precluded by 42 U.S.C. § 405(h), the Administrative Procedure Act clearly provides no jurisdiction over this action. Finally, the Eighth Circuit Court of Appeals found in St. Louis University v. Blue Cross, supra, that because the APA itself precludes jurisdiction if agency action is "committed to the discretion of the [agency]," and because "Congress intended to commit the determination of the proper amount of reimbursement wholly to administrative discretion," jurisdiction is lacking under the APA to review the agency's determination as to the proper amount of reimbursement under the Social Security Act. See also Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Accordingly, the only sufficient basis of jurisdiction in this action is 42 U.S.C. § 1395oo(f). Because that section applies only to plaintiff's claim covering 1973, however, this Court lacks jurisdiction to entertain plaintiff's claims for the cost reporting years 1970, 1971, and 1972. For all the foregoing reasons, therefore, it is hereby ORDERED that plaintiff's claims with respect to cost reporting years 1970, 1971, and 1972 be, and they are hereby, dismissed without prejudice. NOTES [1] Section 205(h) of the Social Security Act, on which the Salfi decision is based, refers to actions brought under "Section 41 of Title 28." As the Supreme Court noted in Salfi, at the time Section 205(h) was enacted, section 41 of Title 28 contained all of that title's grants of jurisdiction to United States District Courts with the exception of special-purpose jurisdiction grants.

453 F.2d 1253 Vernon JOHNSON, Appellant,v.GRIM-SMITH HOSPITAL et al., Appellees. No. 71-1311. United States Court of Appeals,Eighth Circuit. Jan. 25, 1972. James B. Morris, Jr., Morris & Morris, Des Moines, Iowa, for appellant. William Y. Frick, Frick & Mayberry, Kirksville, Mo., for appellees, Grim-Smith Hospital and Robert William Buben. Before VAN OOSTERHOUT and STEPHENSON, Circuit Judges, and REGISTER, District Judge. PER CURIAM. 1 Plaintiff takes this timely appeal from final judgment dismissing his malpractice action on motion for summary judgment on the ground that the action is barred by the two-year statute of limitations governing malpractice actions. (Sec. 516.140 RSMo1959, V.A.M.S.). 2 The facts and basis of decision are fairly set forth in Judge Wangelin's opinion reported at 326 F.Supp. 537. 3 Plaintiff upon appeal strongly urges that summary judgment was improper because disputed fact issues exist. Summary judgment of course is inappropriate where a dispute exists as to a material fact. The record consists of the pleadings, affidavits, interrogatories, answers thereto and depositions. While some factual disputes exist, the trial court assumed for the purpose of his ruling that representations were made as stated by the plaintiff. The court then determined that, under the controlling Missouri law set forth in its opinion, the record when viewed in the light most favorable to the plaintiff afforded no basis for tolling the statute of limitations. The trial court's decision is not based upon the resolution of material factual issues. 4 We agree with the view of the trial court that no dispute exists as to material facts. The facts as urged by the plaintiff and accepted by the trial court for the purpose of ruling on the motion are inadequate upon the basis of controlling Missouri law to support a finding that the statute of limitations was tolled. 5 The judgment of dismissal is affirmed.

571 S.W.2d 460 (1978) STATE of Missouri, Respondent, v. Cliff CROWLEY, Appellant. No. 38617. Missouri Court of Appeals, St. Louis District, Division Four. August 8, 1978. Motion for Rehearing and/or Transfer Denied September 15, 1978. *461 Kenneth R. Singer, Howard, Singer & Meehan, St. Louis, for appellant. *462 John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Jefferson City, Carson W. Elliff, Asst. Attys. Gen., George A. Peach, Circuit Atty., St. Louis, for respondent. DOWD, Presiding Judge. Defendant Cliff Crowley was convicted by a jury of four counts of robbery in the first degree by means of a dangerous and deadly weapon § 560.135 RSMo 1969. He was sentenced to fifteen years imprisonment for each count, to run concurrently. Defendant appeals, and contends that the trial court erred in (1) not allowing defendant to raise the affirmative defense of mental disease or defect at the time of the alleged offense (2) allowing the introduction of a weapon into evidence where the State did not lay a proper foundation for its admission; and (3) overruling defendant's motion for suppression of a confession which was not voluntarily and knowingly made. We affirm. The first contention is that the trial court should have allowed defendant to raise the defense of mental disease or defect at the time of the alleged offense. Defendant was arraigned and pleaded not guilty on September 25, 1975. On October 6 defendant, then represented by a public defender, filed a motion for psychiatric examination. The motion was withdrawn on October 22. Defendant's present counsel then entered his appearance on November 17 and subsequently, on April 27, 1976 the motion for psychiatric examination was reinstated. The motion was sustained, and defendant was examined by a state psychiatrist who reported to the court on July 29 that defendant was competent to proceed with trial. Section 552.020(3) RSMo (1969) details the contents of a psychiatric examination report. Among other things, the report is to include an opinion as to whether at the time of the alleged criminal conduct the accused as a result of mental disease or defect did not know or appreciate the nature, quality, or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law. § 552.020(3), (4) supra. If the accused disputes the finding of the psychiatrist within five days after the filing of the report, he is entitled to be examined by a private physician of his own choosing. § 552.020(4) As neither the accused nor his counsel contested the psychiatrist's findings, the case was removed from the Mental Docket and set for trial. On September 22, 1976, six days before trial, defendant filed notice that he intended to raise at trial the defense of mental disease or defect at the time of the alleged crime. Section 552.030(2) RSMo 1969 provides that the defense of mental disease or defect at the time of the crime should be raised at the time of defendant's plea of not guilty, or by written notice ten days thereafter, or at such time as the court may for good cause permit. To establish good cause where the motion does not support itself, the accused should offer evidence either supporting the merits of the motion or establishing good cause for the late filing of the motion. State v. McIntosh, 492 S.W.2d 843, 844[1] (Mo.1973); State v. Lowe, 442 S.W.2d 525, 528[2] (Mo.1969). If the defense is not raised in accordance with the statutory requirements, the trial court has considerable discretion in determining whether the defendant has shown good cause for the late request. State v. Holmes, 439 S.W.2d 518, 520[3] (Mo.1969). We do not believe the record indicates the trial judge abused his discretion. At the pretrial hearing on the motion appellant advanced four reasons why the motion to use the defense should be sustained. The first was that until the time written notice was given, appellant could not afford a private psychiatrist. However, no evidence was presented to show that appellant was unable to obtain the necessary funds for the psychiatrist before trial. The second reason was that counsel did not learn until September 24, 1976 when appellant's own psychiatrist conducted an examination that defendant could have a defense on the ground of mental defect. However, appellant's assertions *463 that he had given the State ample notice of his reliance on the defense indicates that appellant knew or should have known of the possibility of this defense. The third reason was that present counsel was not retained until almost two months after arraignment and thus was unable to comply with the statute. However, we note that present counsel had been counsel of record for over ten months before trial and had sufficient opportunity to file notice. State v. Vansandts, 540 S.W.2d 192, 205 (Mo.App.1976). Defendant also asserts that putting the state "on notice" that his denial of guilt is based on mental disease or defect is sufficient to comply with the terms of the statute. The purpose of § 552.030(2) is "to prevent the surprise use of such defense precluding adequate rebuttal by the prosecution." State v. Holmes, supra, at 520[3]. In furtherance of this purpose, the statute sets forth specific requirements for raising the defense of mental disease or defect. Merely putting the State "on notice" that denial of guilt is based on this defense does not comply with these requirements. The statute also grants the trial court discretion to permit use of the defense where good cause is shown. For the reasons discussed above, we do not believe the record indicates the trial court abused its discretion in denying defendant's motion to use the defense of mental disease or defect. Defendant's next point is that the State did not establish the requisite legal connection between appellant and a shotgun allegedly used in the commission of the crime and hence the shotgun should not have been admitted into evidence for lack of proper foundation. The relevant facts indicate that on August 17, 1975 at approximately 1:00 a. m. defendant and a companion entered the Boulevard Lounge located on the 7100 block of Manchester Avenue in the City of St. Louis. Defendant was carrying a double-barreled sawed-off shotgun. One of the men announced "this is a holdup" and told everyone to get on the floor. The testimony of three customers in the tavern established the similarity between the holdup weapon and the gun presented as evidence at trial. Richard Brown, who was playing pool, testified at trial there there was an interval of 15-20 seconds from the time he looked up at defendant and the shotgun and then laid down on the floor. He testified that there was enough light so that he could recognize the weapon as a sawed-off double-barreled.12 gauge shotgun. He also testified that the shotgun exhibited at trial appeared to be the same type of weapon used in the robbery. Carrollynn Colbert was sitting at the piano bar when defendant entered the room. She also testified that before she was ordered to lie down on the floor she looked directly into the barrel of the gun. She described the weapon as a double-barreled shotgun and stated that the exhibit was very similar to the one used that night. Christopher Colbert testified that he viewed defendant for approximately 90 seconds before lying down on the floor. He identified the exhibit as "approximately like" the weapon used in the robbery. While these customers were on the floor defendant took their money and Carrollynn Colbert's handbag. Thereafter he and his companion fled through the front door. Two St. Louis Metropolitan Police Officers were called to the scene by a silent burglar alarm. They stopped their cruiser near the corner of Blendon and Manchester, east of the lounge, just as the robbers were leaving the scene of the crime. When defendant saw the cruiser, he ran north across an adjacent parking lot to the rear of the lounge. Officer Deschler testified that he saw defendant carrying a paper bag, but neither officer saw defendant with a shotgun. Later that morning the shotgun allegedly used in the offense was found at the rear of the lounge with Carrollynn Colbert's handbag. This evidence more than adequately substantiates the linkage between defendant and the shotgun necessary to sustain admissibility. It is firmly established that identification by witnesses of articles offered into evidence need not be wholly unqualified so as to make them admissible. *464 State v. Kern, 447 S.W.2d 571, 575 (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791 (Mo.1956); State v. Chambers, 550 S.W.2d 846, 849 (Mo.App.1977); State v. Hollins, 512 S.W.2d 835, 839 (Mo.App.1974). If testimony concerning physical objects found near the scene of a crime which tend to show the way in which the crime is committed but not otherwise connected with the defendant is admissible, the physical objects themselves are also admissible. State v. Henderson, 510 S.W.2d 813, 820 (Mo.App.1974). The shotgun along with a victim's handbag was found in a place to which appellant retreated after being spotted by police. Because that fact corroborates the witnesses' testimony on an issue of the case and has probative value, it may be considered by the jury. State v. Henderson, supra, at 821[8]. The final point that defendant raises is that his confession should not have been admitted into evidence because the State did not prove that the confession was voluntarily and knowingly made. After the appellant was apprehended by the police, he was returned to the lounge for identification purposes. He was positively identified by an employee and patron of the lounge and, consequently, was placed under arrest. Officer James Smith testified that at that time he read defendant the Miranda warnings. A scuffle thereupon ensued between defendant and police in which, according to hospital records, defendant suffered facial contusions. Thereafter, defendant was taken to a city hospital for treatment and then to the police station. Again the Miranda warning was read to him by Officer Smith. Defendant then indicated in the presence of Officers Smith and Gelhard that he understood his rights and confessed to the robbery. Officer Smith testified that he did not believe defendant was drunk at the time of the confession and that he had not been subject to physical force while at the police office. Defendant testified that the day of the offense he had consumed large quantities of liquor and had been under the influence of drugs. He could only vaguely recall the scuffle with police and he did not recall making a confession. The State has the burden of showing that a confession has been voluntarily made by a subject in custody. State v. Williams, 369 S.W.2d 408, 418[4] (Mo. banc 1963). That burden is met when the State makes a prima facie showing of voluntariness. State v. Hunter, 456 S.W.2d 314, 316[5] (Mo.1970). The State need only show that at all stages of interrogation the defendant was informed of his constitutional rights, was capable of understanding these rights, and that no physical force, threats, promises or coercive tactics were used to obtain the confession. State v. Hunter, supra, at 316[7]. The State is not required however, to negative every possible circumstance which could raise a question as to whether the confession was voluntary. If defendant contends there were special circumstances that caused an involuntary confession, it is incumbent on him to present evidence supporting his contention. State v. Nolan, 423 S.W.2d 815, 818[8, 9] (Mo.1968). Failure to do so will result in the admission of the confession. The testimony of the police officers who took defendant's statement is sufficient to establish a prima facie case that the confession was voluntarily and knowingly made. State v. McConnell, 529 S.W.2d 185, 189[3] (Mo.App.1975); State v. Blankenship, 526 S.W.2d 78, 82[5] (Mo.App.1975). The fact the defendant may have been drinking heavily and under the influence of drugs the previous day does not automatically render the confession involuntary. State v. Heather, 498 S.W.2d 300, 305[5] (Mo.App. 1973); State v. Thomas, 522 S.W.2d 74, 76[3] (Mo.App.1975). The basic issue is whether the confession was the product of an intellect capable of understanding the consequences of his actions. State v. Heather, supra, at 304[6]. The testimony is conflicting regarding the voluntariness of the confession here, since the police officers testified that defendant did not appear intoxicated at the time of the confession, while defendant did not recall making the confession at all. In such a situation, admission of the confession *465 into evidence by the trial court is a matter of discretion, and we defer to the trial court's ruling on the credibility of witnesses unless manifest error has been committed. State v. Blankenship, supra, at 82, [6, 7]; State v. Anderson, 384 S.W.2d 591, 604[23] (Mo. banc 1964). We believe there was sufficient evidence for the trial court to conclude the confession was voluntarily made. Judgment is affirmed. SNYDER, J., and ALDEN A. STOCKARD, Special Judge, concur.

427 B.R. 636 (2010) In re Jackie AMSTUTZ, Debtor. No. 09-36068. United States Bankruptcy Court, N.D. Ohio. January 15, 2010. *638 Jackie Amstutz, Harrod, OH, Pro se. William L. Swope, Findlay, OH, Trustee. DECISION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. This cause comes before the Court after a Hearing on the Motion of the United States Trustee to Review Fees, to Impose Fines and to Assess Damages against Bankruptcy Petition Preparer, Charles Proby. At the conclusion of the Hearing, the Court took the matter under advisement so as to afford time to thoroughly consider the matter. The Court has now had this opportunity, and for the reasons now explained, finds that the Motion of the United States Trustee should be Granted as provided herein. FACTS In accordance with Bankruptcy Rules 7052 and 9014, the following constitutes this Court's findings of fact and conclusions of law. On September 2, 2009, the Debtor, Jackie Amstutz, filed in this Court a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. In order to facilitate the filing of his bankruptcy case, the Debtor retained the services of Charles Proby. Mr. Proby is not a licensed attorney, but received training as a paralegal. For the Debtor's bankruptcy filing, Mr. Proby was identified as the preparer of the petition, schedules and the statement of financial affairs. Another party purportedly prepared for the Debtor Form B22A, designated "Statement of Current Monthly Income and Means Test Calculation." In the statement of financial affairs, as well as in the form entitled "Disclosure of Compensation of Bankruptcy Petitioner Preparer," it was disclosed that the Debtor paid to Mr. Proby the sum of $125.00 for *639 his services. This is consistent with General Order 05-3,[1] as entered for the bankruptcy courts in the Northern District of Ohio. In General Order 05-3, a presumptive cap of $125.00 is set for fees paid to a bankruptcy petition preparer, with this Order stating: The presumptive maximum allowable fee chargeable by a bankruptcy petition preparer in any case is $125. Should a bankruptcy petition preparer in any individual case seek a determination that the value of services rendered exceeds $125, the bankruptcy petition preparer shall file a motion with the Court requesting a hearing. The motion shall be filed within 10 days after the date of the filing of a petition. However, according to receipts submitted into evidence, the Debtor paid to Mr. Proby the sum of $225.00 on August 14, 2009. (Doc. No. 44, Ex. 6). Thereafter, on August 25, 2009, the Debtor paid to Mr. Proby the additional sum of $230.00. The receipt evidencing this latter transaction contained the notation, "Legal Documents." Id. No amendment or supplemental disclosure was ever made by Mr. Proby concerning his compensation. In preparing the Debtor's bankruptcy petition, Mr. Proby made determinations concerning the Debtor's exemptions and secured debt, with the Debtor testifying that he did not fully understand the import of these legal matters. For example, in the Debtor's bankruptcy schedules, Mr. Proby independently set forth the statutory authority upon which the Debtor claimed a right to exempt his interest in certain property. Mr. Proby also advised the Debtor that filing for bankruptcy relief under Chapter 7 of the Code, as opposed to Chapter 13, would best serve his needs. During the administration of this case, a Motion for Relief From Stay and Abandonment was filed against the Debtor's residence. (Doc. No. 11). No objection to this Motion was filed, and an order was subsequently entered, granting the movant relief from stay and abandonment. (Doc. No. 18). A short time later, the Debtor filed a document with the Court seeking to set aside this order. (Doc. No. 20). This document, filed with the Court on October 13, 2009, and entitled "Motion to Set Aside Judgment," was drafted and prepared by Mr. Proby. On October 27, 2009, the Debtor retained the services of a licensed attorney to represent him in all further matters related to his bankruptcy case. (Doc. No. 30). DISCUSSION Before this Court is the Motion of the United States Trustee ("UST") to Review Fees, to Impose Fines and to Assess Damages against Bankruptcy Petition Preparer, Charles Proby. The adjudication of this Motion, concerning the conduct of a bankruptcy petition preparer, directly impacts the administration of this bankruptcy case. Gould v. Clippard, 340 B.R. 861, 881 (M.D.Tenn.2006); In re Barcelo, 313 B.R. 135, 151-52 (Bankr.E.D.N.Y.2004). As such, this is a core proceeding over which this Court has jurisdiction to enter final orders and judgments. 28 U.S.C. § 157(b). Section 110 of the Bankruptcy Code regulates the conduct of bankruptcy petition preparers. This provision was initially enacted as part of the Bankruptcy Reform Act of 1994 and was expanded upon by the Bankruptcy Abuse Prevention *640 and Consumer Protection Act of 2005. The intended purpose of § 110 is to prevent abuses by specifying the scope of services which nonattorneys may perform for debtors. In re Adams, 214 B.R. 212, 218 (9th Cir.BAP1997). Under the Bankruptcy Code, Charles Proby qualifies as a "bankruptcy petition preparer." Section 110(a) defines a `bankruptcy petition preparer' as a "person, other than an attorney for the debtor or an employee of such attorney under the direct supervision of such attorney, who prepares for compensation a document for filing" in either "a United States bankruptcy court or a United States district court in connection with a [bankruptcy] case. . . ." Persons who qualify as a `bankruptcy petition preparer' subject themselves to the jurisdiction of the Court, and must comply with the mandates of Bankruptcy Code § 110.' McDow v. We the People Forms & Serv. Ctrs., Inc. (In re Douglas), 304 B.R. 223, 237-38 (Bankr. D.Md.2003). For his Motion, the UST alleged that Mr. Proby's engaged in the following acts proscribed by § 110:(1)he did not properly disclose his fees for preparing the Debtor's bankruptcy petition; (2) he charged a fee in excess of that allowed pursuant to General Order 05-3; and (3) Mr. Proby engaged in the unauthorized practice of law. Under § 110, a bankruptcy petition preparer is required to disclose any fee received and charged to the debtor. 11 U.S.C. § 110(h)(2); FED. R. BANKR.P. 2016(c). For such fees, bankruptcy law proscribes the petition preparer from charging an excessive fee or a fee above that established by the court. 11 U.S.C. § 110(h); see also 11 U.S.C. § 105(a). Both state law and bankruptcy law also proscribe a person not licensed as an attorney from practicing law. 11 U.S.C. § 110(e)(2)/(f)/(k); Ohio State Bar Assn. v. Heath, 123 Ohio St.3d 483, 918 N.E.2d 145 (2009), citing § 2(B)(1)(g), Article IV of the Ohio Constitution. The allegations made by the UST, that Mr. Proby did not comply with these fundamental requirements, is abundantly support by the evidence presented in this case. This evidence starts with the two receipts executed by Mr. Proby. Together, these receipts show that Mr. Proby accepted from the Debtor at least $455.00 for his services, thereby contradicting the two statements he filed with the Court which represented that he charged only $125.00 for his services. These receipts also fly in the face of the judicial limitation imposed by General Order 05-3 which sets $125.00 as the presumptive cap on a petition preparer's fees. It may be presumed in this regard that Mr. Proby was aware of this General Order considering that the amount of the cap set forth in the Order exactly corresponds with Mr. Proby's representation to the Court that he charged only $125.00 for his services. In response, Mr. Proby did not contest the legitimacy of the two receipts, but instead offered a number of justifications for the discrepancy between the receipts and his written representations filed with the Court. Prominently, Mr. Proby explained that, (1) $100.00 of the $455.00 was allocated to pay for the production of 100 copies, and (2) that a portion of the $455.00 was used to pay for the services of the third party who completed the means test calculation as set forth on Form B22A. Mr. Proby also testified that he intended to provide the Debtor with a refund of any overpayment in fees. The justifications put forth by Mr. Proby, whatever their truth, are unavailing. Charging the Debtor $1.00 per copy is facially excessive. See, e.g., In re Fleming Companies, Inc., 304 B.R. 85, 99 (Bankr.D.Del.2003) (for professional expenses, 15¢ per copy is presumptively reasonable). *641 Likewise, Mr. Proby's position, that fees ultimately transferred to third parties do not need to be disclosed, does not pass muster. The Bankruptcy Code and Rules are clear: a bankruptcy petition preparer must disclose "any fee received." 11 U.S.C. § 110(h)(2); FED. R. BANKR.P. 2016(c). The Court is also skeptical that Mr. Proby originally intended to return the overpayment made by the Debtor, with there being no indication that Mr. Proby made such an overture until after the UST brought its Motion against him. The record in this case is also devoid of any basis which would warrant an award of fees in excess of $125.00. In this regard, bankruptcy petition preparers are fundamentally just typists. In re Doser, 412 F.3d 1056, 1062-63 (9th Cir.2005). Thus, only extraordinary circumstances would warrant a deviation from the $125.00 presumptive cap on a bankruptcy petition preparer's fees established by General Order 05-3. Accordingly, of the $455.00 Mr. Proby received as fees for his services, all but $125.00 of his fees are excessive. The excessiveness of Mr. Proby's fees must also be considered within the context that some of those services he provided to the Debtor clearly entailed the unauthorized practice of law. Section 110(e)(2) proscribes a bankruptcy petition preparer from rendering services which constitute the practice of law, providing, in pertinent part: (2)(A) A bankruptcy petition preparer may not offer a potential bankruptcy debtor any legal advice, including any legal advice described in subparagraph (B). (B) The legal advice referred to in subparagraph (A) includes advising the debtor— (i) whether— (II) commencing a case under chapter 7, 11, 12, or 13 is appropriate; (vi) concerning how to characterize the nature of the debtor's interests in property or the debtor's debts; or (vii) concerning bankruptcy procedures and rights. In rendering services for the Debtor, Mr. Proby acted in violation of each of the proscribed activities. First, as it concerns § 110(e)(2)(B)(i)(II), the Debtor testified that he did not know which Chapter of the Code would best suit his needs, with Mr. Proby taking it upon himself to counsel the Debtor that a Chapter 7 bankruptcy would be best. Concerning the next two provisions, § 110(e)(2)(B)(vi)/(vii), Mr. Proby acknowledged that he used his personal knowledge to assess the Debtor's entitlement to claim property as exempt; similarly, since the Debtor was unable to provide any direction, Mr. Proby acknowledged that he took it upon himself to categorize the Debtor's secured and unsecured obligations. In addition, concerning the unauthorized practice of law, Mr. Proby admitted that he drafted and prepared the document filed with the Court entitled "Motion to Set Aside Judgment." Mr. Proby, however, not being a licensed attorney, is not authorized to provide such a service. Under state law, which is traditionally used for guidance on this matter,[2] the unauthorized practice of law occurs when one not admitted to practice law renders legal services for another person. Ohio State Bar Assn. v. Heath, 123 Ohio St.3d 483, 486, 918 N.E.2d 145, 149 (2009), citing GOV. BAR R. VII(2)(A). For this purpose, the rendering of legal services includes, as occurred here, "the drafting and preparation of pleadings filed in the *642 courts . . . and includes the preparation of legal documents and instruments upon which legal rights are secured or advanced." Id. A bankruptcy petition preparer found to be in violation of § 110 is subject to sanctions which may include the disgorgement of fees, the assessment of damages, the entry of injunctive relief, and the imposition of fines. 11 U.S.C. § 110(h)(3)/(i)/(j)/(l).[3] For these types of sanctions, the Motion of the UST named disgorgement and the imposition of fines as the two forms of relief sought. (Doc. No. 26, at pg. 3). Paragraph (3)(A) of § 110(h) governs matters concerning the disgorgement of the fees charged by a bankruptcy petition preparer. In relevant part, § 110(h)(3)(A) provides: (3)(A) The court shall disallow and order the immediate turnover to the bankruptcy trustee any fee referred to in paragraph (2) found to be in excess of the value of any services— (i) rendered by the bankruptcy petition preparer during the 12-month period immediately preceding the date of the filing of the petition; or (ii) found to be in violation of any rule or guideline promulgated or prescribed under paragraph (1). (B) All fees charged by a bankruptcy petition preparer may be forfeited in any case in which the bankruptcy petition preparer fails to comply with this subsection or subsection (b), (c), (d), (e), (f), or (g). The structure of this provision is twofold. Firstly, § 110(h)(3)(A) directs that all fees found to be excessive must be disgorged. Having, therefore, already found all but $125.00 of the $455.00 in fees charged by Mr. Proby to be excessive, § 110(h)(3)(A) mandates that such fees disgorged. In addition, § 110(h)(3)(B) also allows for the forfeiture of all fees, even those not found to be excessive, when a bankruptcy petition preparer fails to follow certain statutory obligations. While such a remedy is permissive under § 110(h)(3)(B), it is appropriate in this case. Under § 110(h)(3)(B), this Court has the discretion to order a forfeiture of fees when, among other things, a bankruptcy petition preparer offers legal advice as proscribed by § 110(e). As explained, Mr. Proby violated § 110(e) by rendering legal advice to the Debtor on matters concerning both exemptions and secured debts, and what Chapter of the Code would best serve the needs of the Debtor. Mr. Proby then went even further by drafting and preparing for the Debtor's benefit a document to be filed with the Court. The Debtor also incurred an additional expense by subsequently having to hire legal counsel. Hence, given the scope of Mr. Proby's unauthorized practice of law, the total forfeiture of fees is the only appropriate remedy. For his violations of § 110, the UST also asks that this Court impose fines against Mr. Proby. The assessment of fines, governed by § 110(1), is intended to deter future misconduct. However, unlike the disgorgement of excessive fees, which is mandatory under § 110, the imposition of fines against a bankruptcy petition preparer is discretionary. In re Evans, 413 B.R. 315, 330, (Bankr.E.D.Va.2009). In exercising this discretion, the Court, at this time, declines to impose fines against Mr. Proby. The reason: the *643 Court found Mr. Proby to be sincere when he testified that, having learned from his mistakes, he would abide by the requirements of this Court and those requirements imposed upon him by § 110. Accordingly, since they are meant to deter future misconduct, the imposition of fines against Mr. Proby seems at this point to be unnecessary. Notwithstanding, if this Court's assessment of Mr. Proby ultimately proves to be wrong, the subject of fines, as well as the imposition of further sanctions, will be revisited. In conclusion, Mr. Proby shall be required to disgorge all his fees. Such fees, totaling $455.00, shall be forfeited to the UST who shall then turn the funds over to the Debtor. In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that, as provided herein, the Motion of the United States Trustee to Review Fees, to Impose Fines and to Assess Damages against Bankruptcy Petition Preparer, Charles Proby, be, and is hereby, GRANTED. IT IS FURTHER ORDERED that on or before Monday, February 8, 2010, Mr. Proby shall turnover to the United States Trustee the sum of $455.00. The United States Trustee shall then remit those funds to the Debtor, Jackie Amstutz. The United States Trustee shall file with the Court a statement concerning whether Mr. Proby complied with this Order. NOTES [1] http://www.ohnb.uscourts.gov/judges/GeneralOrders/GO_05-3_MAXIMUM%20ALLOWABLE%20FEE.pdf. [2] In re Landry, 250 B.R. 441, 444 (Bankr. M.D.Fla.2000). [3] A `bankruptcy petition preparer' may also be subject to criminal penalties. 18 U.S.C. § 156.

773 N.W.2d 724 (2009) Trudy Jo SIMCOX, Plaintiff-Appellee, v. Blair Richard SIMCOX, Jr., Defendant-Appellant. Docket No. 139406. COA No. 284287. Supreme Court of Michigan. October 26, 2009. Order On order of the Court, the application for leave to appeal the June 23, 2009 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

282 B.R. 569 (2002) In re Charles G. MILLER, Debtor. Peregrine Falcons Jet Team, A Nevada Corporation, Plaintiff, v. Charles G. Miller, Defendant. Bankruptcy No. 98-31343. Adversary No. 98-3217. United States Bankruptcy Court, D. Connecticut. September 6, 2002. *570 Marie A. Casper, Zeldes, Needle & Cooper, Bridgeport, CT, for plaintiff-movant. Matthew K. Beatman, Zeisler & Zeisler, Bridgeport, CT, for defendant-respondent. MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ALBERT S. DABROWSKI, Bankruptcy Judge. I. INTRODUCTION In this adversary proceeding the Plaintiff seeks to have declared non-dischargeable a debt allegedly owed to it by the *571 Debtor-Defendant. The Plaintiff has moved for summary judgment based upon, inter alia, the alleged preclusive effect of the prior rulings of a Nevada state trial court. For the reasons which follow, the motion for summary judgment will be DENIED. II. JURISDICTION The United States District Court for the District of Connecticut has jurisdiction over the instant proceeding by virtue of 28 U.S.C. § 1334(b); and this Court derives its authority to hear and determine this matter on reference from the District Court pursuant to 28 U.S.C. §§ 157(a), (b)(1). This is a "core proceeding" pursuant to 28 U.S.C. §§ 157(b)(2)(I). III. SUMMARY JUDGMENT STANDARDS Federal Rule of Civil Procedure 56(c), made applicable to these proceedings by Federal Rule of Bankruptcy Procedure 7056, directs that summary judgment enter when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When ruling on motions for summary judgment "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing that there are no material facts in dispute and all reasonable inferences are to be drawn, and all ambiguities resolved in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Rule 9(c) of the Local District Court Rules for the District of Connecticut (hereafter, the "Local Rules") supplements Fed.R.Civ.P. 56(c) by requiring statements of material fact from each party to a summary judgment motion (hereafter, "Local Rule 9(c) Statement(s)"). The material facts set forth in the movant's statement "will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. . . ." D.Conn.L.Civ.R. 9(c)1 (1998).[1] IV. FACTUAL BACKGROUND A. Sources of Material Facts not in Genuine Issue. In determining whether there are material facts in genuine issue, this Court looks first to the parties' Local Rule 9(c) Statements. *572 A comparison of those Statements has produced, for the purposes of this contested matter, a body of uncontested facts. The Plaintiff also directs the Court's attention to the ruling of the Ninth Judicial District Court of the State of Nevada in and for the County of Douglas (the "Nevada Action") in a prior civil action involving the present parties. Those rulings (hereafter collectively, the "Nevada Ruling"), are claimed by the Plaintiff to include determinations entitled to preclusive effect in the present matter. For purposes of this Memorandum of Decision the Court will assume, without deciding, that those determinations are entitled to collateral estoppel effect in this Court. Additionally, the Plaintiff relies upon certain excerpts of the trial testimony in the Nevada Action of the present Debtor-Defendant. For the purposes of the instant matter, the Court will credit that testimony as true. From the foregoing sources the Court has compiled a body of arguably material facts which are not in genuine issue for the purposes of the present contested matter. These facts (hereafter, the "Record") are as follows: B. The Record. 1. The so-called "Peregrine Falcon" was a two-seat, experimental aerobatic jet aircraft developed by Bede Aircraft Co. (hereafter, "Bede"). Bede produced kits for the construction of Peregrine Falcons, and granted rights to market and sell those kits to Point Nine, Inc. (hereafter, "Point Nine"). Charles G. Miller (hereafter, "Miller"), the Debtor-Defendant here, was the President and a 75% shareholder of Point Nine. 2. Bede granted exclusive rights to Fox Jet Corporation (hereafter, "Fox") to build Peregrine Falcons from Bede's kits. Fox's principal was Michael VanWagenen (hereafter, "VanWagenen"). 3. In 1994 Fox and Point Nine joined their respective rights under the umbrella of an entity known as Peregrine Flight International (hereafter, "PFI"), which was then able to offer consumers both product and service — the Peregrine Falcon kit and production of a completed jet aircraft from the kit. The shareholders of PFI were Fox and Point Nine. VanWagenen and Miller were directors of PFI; VanWagenen was its President and Miller its Vice President. Both men had access to PFI's financial information and were signatories on its bank accounts. 4. In 1993, James C. Ray (hereafter, "Ray") became interested in acquiring a Peregrine Falcon through his acquaintance with Miller. In or about October of 1993 — before PFI had been formed — Ray entered into a letter agreement with Point Nine, and paid $50,000, to be held in escrow by Miller, for an option to buy one Peregrine Falcon. On or about May 12, 1994, Ray exercised his option by entering into a letter agreement whereby he agreed to pay $841,000.00 in scheduled installments to purchase a constructed Peregrine Falcon (hereafter, the "First Sale Contract"). Construction of that aircraft was to commence on June 15, 1994, and the $841,000 was to be paid as work progressed, according to the following schedule: June 15, 1994 $ 200,000.00 July 15, 1994 $ 150,000.00 Aug. 15, 1994 $ 122,750.00 Sept. 15, 1994 $ 122,750.00 Oct. 15, 1994 $ 122,750.00 Nov. 15, 1994 $ 61,375.00 Dec. 15, 1994 $ 35,000.00 Upon delivery $ 26,375.00 _____________ Total $ 841,000.00 5. Sometime later, Ray formed Peregrine Falcons Jet Team (hereafter, the "Jet Team") — the Plaintiff here — and assigned all his rights under the First Sale Contract *573 to the Jet Team. The Jet Team subsequently entered into its own letter agreement with PFI, dated June 6, 1994, for the purchase of four Peregrine Falcons (hereafter, the "Second Sale Contract"). The Second Sale Contract provided, inter alia, that the Jet Team would pay $3,000,000.00 to PFI for the constructed aircraft according to the following schedule as work progressed: July 1, 1994 $1,000,000.00 Aug. 1, 1994 $ 400,000.00 Sept. 1, 1994 $ 400,000.00 Oct. 1, 1994 $ 400,000.00 Nov. 1, 1994 $ 300,000.00 Dec. 1, 1994 $ 300,000.00 Jan. 1, 1995 $ 200,000.00 _____________ Total $3,000,000.00 6. At the time of the First and Second Sale Contracts (hereafter, collectively, the "Contracts"), PFI had not yet completed the construction of any Peregrine Falcon aircraft. However, it, through Fox, was then engaged in the construction of a Peregrine Falcon-type aircraft for Bede, which was being purchased from Bede by a Mr. Harris. Miller referred to this aircraft as the "proof of concept" Peregrine Falcon (hereafter, the "Harris Aircraft"). Miller believed that completion of the Harris Aircraft was crucial to "freeze" the design and technology of the Peregrine Falcon so that PFI would know what parts to purchase for the additional aircraft it was obligated to assemble, e.g., those for the Jet Team. 7. From June through September 14, 1994, the Jet Team made scheduled installment payments totaling $1,995,500 under the Contracts.[2] These payments established a "capital account" with PFI (hereafter, the "Capital Account"). 8. From such installment payments PFI was paid a sales commissions totaling $127,183 in June and July of 1994. Also from such installment payments, PFI was paid "profits" totaling $100,000 in August and September, 1994. 9. On September 15, 1994, Ray asked Miller for an accounting of the status of construction of the five aircraft and the disposition of the Jet Team capital account. Miller admitted to Ray that little progress had been made on the Jet Team aircraft in comparison to the installments paid, and expressly promised that he would provide the requested accounting. Miller failed to provide the promised accounting, although he could have obtained it from PFI records as early as September or October of 1994. 10. Fox was entitled to draw funds from the Capital Account only as its work on the Jet Team's aircraft progressed. Nonetheless, even though it had made little or no progress on the Jet Team's aircraft,[3] from September through December of 1994, Fox withdrew the following amounts from the Capital Account: September 20, 1994 $ 55,000.00 September 30, 1994 $ 45,000.00 October 9, 1994 $100,000.00 November 2, 1994 $ 40,000.00 December 13, 1994 $ 50,000.00 December 29, 1994 $ 75,000.00 11. The monies drawn by Fox from the Capital Account were in fact used to accelerate the work on the Harris Aircraft. *574 12. Bede was responsible for paying Fox/PFI for the labor necessary to assemble the Harris aircraft, but it did not do so. As of September, 1994, Miller knew that Fox, not Bede, was shouldering the substantial labor expenses incident to construction of the Harris Aircraft. 13. As of the first week of December of 1994, Miller knew specifically that Fox was incurring huge cost overruns to construct the Harris Aircraft, and that the Capital Account had been dissipated on expenditures other than the construction of the promised aircraft. During the remainder of December, Miller still did not check on the status of the Capital Account, and allowed Fox to draw an additional $125,000 from the Capital Account as "profits," without informing the Jet Team of the disposition of those funds. 14. On and after September 15, 1994, under Nevada law Ray and Miller were in a "confidential relationship" — similar to a "fiduciary" relationship — under which Miller owed a duty to Ray to "act in good faith and with due regard of . . . [his] interest. . . . "[4] 15. The Jet Team's Peregrine Falcons were never delivered; and the Jet Team eventually commenced the Nevada Action against Miller.[5] Following trial, on June 20, 1997, the Hon. Michael P. Gibbons, the presiding judge in the Nevada Action, placed an oral ruling upon the record of that action, and thereafter, on August 20, 1997, entered written Findings of Fact, Conclusions of Law, and Judgment in favor of the Plaintiff and against Miller on some, but not all, of the Plaintiff's claims (heretofore, the "Nevada Ruling"). 16. On April 7, 1998, Miller filed a Chapter 7 petition with this Court. On July 29, 1998, the Plaintiff commenced the instant adversary proceeding against the Defendant to determine the dischargeability of the debt established by the Nevada Ruling (the "Debt"). Specifically, the Jet Team asserts that the Debt should be deemed non-dischargeable pursuant to the provisions of 11 U.S.C. §§ 523(a). V. DISCUSSION The Plaintiff's Amended Complaint sets forth two alternative grounds for the non-dischargeability of all or part of the Debt-Code Sections 523(a)(2)(A) and 523(a)(4). A. Section 523(a)(2)(A). Section 523(a)(2) provides in pertinent part that — (a) A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt — (2) for money, property, services or an extension . . . of credit, to the extent obtained by — (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition: (B) use of a statement in writing — (i) that is materially false; (ii) respecting the debtor's or an insider's financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive. . . . 11 U.S.C. § 523(a)(2) (1998). Upon a review and consideration of applicable legal principles the Court concludes *575 that the summary judgment record in this matter leaves in genuine issue at least four elements of a cause of action under Section 523(a)(2) — acquisition, conduct, reliance and financial condition. 1. Acquisition. As a preliminary matter, Section 523(a)(2) requires the debtor to obtain money, etc. as a result of some representational conduct. Even if the Record is read to establish that Miller personally[6] obtained money from the Jet Team, it does not reference any offending representational conduct that preceded such acquisition. The offending representational conduct complained of occurred well after Miller might have personally obtained money from the Jet Team. Thus the Record does not support a conduct-acquisition cause-and-effect as required by Section 523(a)(2). Further, even if Miller could be held liable for money he "obtained" for an entity other than himself, e.g., PFI, the requisite cause-and-effect does not appear in the Record. Specifically, the Record establishes only that (i) the Jet Team's last payment to PFI was September 14, 1994, and (ii) Miller did not know until the first week of December, 1994, that Fox was incurring huge cost overruns to construct the Harris Aircraft, and that the Capital Account had been dissipated on expenditures other than construction of the Jet Team's aircraft (hereafter, "Miller's Receipt of Knowledge"). The only Record harm to the Jet Team which occurred after Miller's Receipt of Knowledge was a transfer of funds from PFI to Fox. Indeed, even as determined in the Nevada Ruling, Miller's neglect of a duty of disclosure did not result in a further enrichment of Miller or PFI, or induce the Jet Team to part with any additional money; it simply "damaged" the Jet Team's "ability to protect [its] . . . rights as a creditor of PFI." 2. Conduct. Section 523(a)(2)(A) sets out three alternative modes of conduct justifying a determination of the non-dischargeability of a debt, to wit: (i) false representation, (ii) false pretenses, and (iii) actual fraud. These terms of art were used and intended by Congress to incorporate the general common-law of such torts; i.e. the "dominant consensus" of all jurisdictions, rather than the specific law of any given State. Field v. Mans, 516 U.S. 59, 70 fn. 9, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995). i. Actual fraud "Actual fraud" is any intentional deceit, artifice, trick, or design used to circumvent and cheat another, i.e. something said, done, or omitted with the design of perpetrating what is known by the debtor to be a deception. See, e.g., Am.Jur.2d Bankruptcy § 3065 (1991). The Record does not establish, or even tend to establish, beyond genuine issue that Miller's failure of full disclosure was undertaken with the specific design of perpetrating a known deception. ii. False pretenses "False pretenses" involve a misrepresentation implied from purposeful conduct intended to create a false impression. See, e.g., Am.Jur.2d Bankruptcy § 3064 (1991). At most the Record supports the proposition that Miller neglected to make full disclosure to the Jet Team, not that he engaged in purposeful conduct by which he intended to create a false impression. *576 iii. False representation A "false representation" is established where a debtor makes a false statement, knowing it to be false, with the purpose of inducing the creditor to act to his detriment in reliance. See, e.g., Restatement (Second) of Torts § 525 (1977); In re Roberti, 183 B.R. 991, 1005 (Bankr.D.Conn.1995). A party who conceals material information with the intention of preventing another from acquiring it is subject to the same liability as one who makes a "false representation". See, e.g., Restatement, supra, at § 550. A party to a business transaction who fails to disclose to another party a fact that he knows may justifiably induce that party to refrain from entering into a business transaction is subject to the same liability as one who makes a "false representation". See, e.g., Restatement, supra, at § 551. Again, none of these statements of law align with the conduct of Miller as disclosed by the Record. His failure of full disclosure to Ray was not attended by an intention to induce Ray or the Jet Team to act to their detriment or to prevent them from acquiring material information. The Record reveals no concealment; at best it evidences recklessness. Finally, none of Miller's non-disclosure induced Ray or the Jet Team to enter into a business transaction; they already had. As the Nevada Ruling concluded, the non-disclosure merely "damaged" the Jet Team's "ability to protect [its] . . . rights as a creditor of PFI." 3. Reliance. To establish a cause of action under Section 523(a)(2)(A), a creditor must also establish his justifiable reliance on the subject representation, pretense or fraud. See Field v. Mans, 516 U.S. at 73-75, 116 S.Ct. 437. Although the Nevada Ruling finds simple reliance on the part of the Plaintiff or its principal, Mr. Ray, this Court concludes that the Record fails to suggest, much less establish beyond genuine issue, that such reliance was justifiable. 4. Financial Condition. Given the interplay of subsection (A) and (B) of Section 523(a)(2), the only statements regarding financial condition which are actionable under that Section are statements made in writing. Stated differently, non-written statements — such as oral communications — regarding financial condition are not within the contemplation of Section 523(a)(2). The only communications established by the Record were non-written. B. Section 523(a)(4). Under the terms of Code Section 523(a)(4), a debt is excepted from a debtor's general discharge if such debt is "for fraud or defalcation while acting in a fiduciary capacity. . . . " (emphasis supplied). The concept of "fiduciary capacity" is one ultimately determined by federal law, e.g., Fowler Brothers v. Young (In re Young), 91 F.3d 1367, 1371 (10th Cir.1996), and it must arise from an "express or technical trust". See, e.g., id. at 1371-72 ("[n]either a general fiduciary duty of confidence, trust, loyalty, and good faith, nor an inequality between the parties' knowledge or bargaining power, is sufficient to establish a fiduciary relationship for purposes of dischargeability." (citations omitted)). The Record does not reference an express or technical trust; in fact it does not even establish the existence of a fiduciary relationship. The Nevada Ruling finds a "confidential relationship between Miller and Ray on and after September 15, 1994. Yet even the Nevada Ruling acknowledges that under Nevada law such a *577 relationship is not necessarily a fiduciary relationship, merely `similar' to one". Accord Perry v. Jordan, 111 Nev. 943, 900 P.2d 335, 337-38 (1995). Accordingly, the Record does not support a conclusion that Miller was in a "fiduciary capacity" vis-a-vis Ray and/or the Jet Team. It is therefore unnecessary for this Court to consider whether there was a "fraud or defalcation". V. CONCLUSION For the foregoing reasons, there remain genuine issues as to material facts in this proceeding. Hence, the Plaintiff's motion for summary judgment shall be DENIED by separate order. NOTES [1] Local Rule 9(c), as applicable to this proceeding, provided in full as follows: 1. There shall be annexed to a motion for summary judgment a document entitled "Local Rule 9(c)1 Statement", which sets forth in separately numbered paragraphs a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried. All material facts set forth in said statement will be deemed admitted unless controverted by the statement required to be served by the opposing party in accordance with Rule 9(c)2. 2. The papers opposing a motion for summary judgment shall include a document entitled "Local Rule 9(c)2 Statement," which states in separately numbered paragraphs corresponding to the paragraphs contained in the moving party's Local Rule 9(c)1 Statement whether each of the facts asserted by the moving party is admitted or denied. The Local Rule 9(c)2 Statement must also include in a separate section a list of each issue of material fact as to which it is contended there is a genuine issue to be tried. 3. The statements referred to above shall be in addition to the material required by these Local Rules and the Federal Rules of Civil Procedure. D.Conn.L.Civ.R. 9(c) (1998). [2] It is unclear from the Record to what extent this total includes payments due under the First Sale Contract. [3] A survey performed by PFI in January of 1995 reported the amount of work accomplished at that time on each of the five aircraft as follows: Peregrine aircraft Percentage Serial Numbers Completion 57 14.14% 34 2.88% 35 1.48% 36 0.59% 37 0.00% [4] Perry v. Jordan, 111 Nev. 943, 900 P.2d 335, 338 (1995) [5] VanWagenen would likely have also been a defendant had he not been killed in a Peregrine Falcon test flight accident. [6] The Record suggests that PFI, through Miller as its agent, obtained money from the Jet Team, then paid Point Nine commissions and "profits". Point Nine passed those funds through to Miller.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/23/2018 08:13 AM CDT - 865 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 In re Estate of Glenn G. Forgey, deceased. Dean R. Forgey et al., appellants and cross-appellees, v. Lyle A. Forgey, individually and as Trustee, appellee, cross-appellant, and cross-appellee, and Bessie I. Forgey-McCoy et al., appellees and cross-appellants. ___ N.W.2d ___ Filed February 9, 2018. No. S-16-1027.  1. Trusts: Equity: Appeal and Error. Absent an equity question, an appellate court reviews trust administration matters for error appear- ing on the record; but where an equity question is presented, appellate review of that issue is de novo on the record.  2. Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions concerning the matters at issue.   3. ____: ____. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.  4. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.  5. ____: ____. An appellate court, in reviewing a judgment for errors appearing on the record, will not substitute its factual findings for those of the trial court when competent evidence supports those findings.  6. Judgments. The existence of a fiduciary duty and the scope of that duty are questions of law for a court to decide.  7. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.  8. Wills: Trusts. The interpretation of the words in a will or a trust pre­ sents a question of law.  - 866 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865  9. Attorney Fees: Appeal and Error. A trial court’s decision awarding or denying attorney fees will be upheld on appeal absent an abuse of discretion. 10. Judgments: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly unten- able insofar as they unfairly deprive a litigant of a substantial right and a just result. 11. Trusts. A trustee has the duty to administer the trust in good faith, in accordance with its terms and the purposes and the interests of the ben- eficiaries, and in accordance with the Nebraska Uniform Trust Code. 12. ____. The Nebraska Uniform Trust Code states that trustees owe the beneficiaries of a trust duties that include loyalty, impartiality, prudent administration, protection of trust property, proper recordkeeping, and informing and reporting. 13. Accounting. An accounting is ordinarily an appropriate remedy for a breach of the duty to inform and report. 14. Decedents’ Estates: Jurisdiction. County courts have exclusive juris- diction over all matters relating to decedents’ estates, including the probate of wills and construction thereof. 15. Decedents’ Estates: Jurisdiction: Equity. In exercising exclusive origi- nal jurisdiction over estates, county courts may apply equitable prin- ciples to matters within probate jurisdiction. 16. Decedents’ Estates: Jurisdiction: Wills: Trusts: Minors: Mental Competency. County courts have jurisdiction over all subject matter relating to estates of decedents, including construction of wills and determination of heirs and successors of decedents, estates of protected persons, protection of minors and incapacitated persons, and trusts. 17. Courts: Jurisdiction. County courts have full power to make orders, judgments, and decrees and to take all other actions necessary and proper to administer justice in the matters which come before them. 18. Trusts. If a trust has two or more beneficiaries, a trustee has a duty of impartiality among beneficiaries. 19. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uni- form course of procedure has been to allow recovery of an attorney fee. 20. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. 21. Attorney Fees. To determine the value of legal services rendered by an attorney, it is proper to consider the amount involved, the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the  - 867 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services. 22. Laches. Laches occurs only if a litigant has been guilty of inexcus- able neglect in enforcing a right and his or her adversary has suffered prejudice. 23. Laches: Equity. Laches does not result from the mere passage of time, but because during the lapse of time, circumstances changed such that to enforce the claim would work inequitably to the disadvantage or preju- dice of another. 24. Laches. What constitutes laches depends on the circumstances of the case. Appeal from the County Court for Keya Paha County: James J. Orr, Judge. Affirmed in part, and in part reversed and remanded with directions. David A. Domina, of Domina Law Group, P.C., L.L.O., for appellants. Michael L. Johnson, of Leininger, Smith, Johnson, Baack, Placzek & Allen, for appellee Lyle A. Forgey. Kyle S. Irvin for appellees Bessie I. Forgey-McCoy et al. Miller-Lerman, Stacy, K elch, and Funke, JJ., and A rterburn, Judge. K elch, J. I. INTRODUCTION This appeal arises from a trustee’s failure to distribute the corpus of the trust following the grantor’s death in 1993. Marvel Forgey and her three children, all beneficiaries of the Glenn G. Forgey Revocable Trust (the trust), appeal the order of the county court for Keya Paha County resulting from their suit against Lyle A. Forgey, who was another beneficiary and was the trustee. Marvel and her children sought to remove Lyle as trustee, secure administration of the trust, value the trust assets, divide those assets into separate trusts for the beneficiaries, and determine liabilities for alleged breaches of  - 868 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 fiduciary duties by Lyle. Bessie I. Forgey-McCoy and her two children, all three also beneficiaries, joined as interested par- ties. Primarily accepting Lyle’s version of the facts, the county court valued and distributed the trust assets, assessed damages against Lyle for estate tax interest and penalties, and declined to award attorney fees or costs to any party. Marvel and her children appealed; Lyle cross-appealed, and Bessie and her children filed a separate cross-appeal. While we largely agree with the county court’s findings in this case, we conclude that the county court committed error by not awarding damages for Lyle’s untimely reports and accountings of his failure to collect rents on behalf of the trust. We further determine that the county court abused its discretion in declining to award attorney fees to Marvel, Bessie, and their respective children. Accordingly, we affirm in part, and in part reverse and remand with directions. II. BACKGROUND Glenn G. Forgey died in 1993. He was survived by three children: Lyle and Bessie, mentioned above, and Wayne Forgey, who is now deceased. Wayne was survived by his wife, Marvel, and by their three children. During his lifetime, Glenn transferred property into the trust. Lyle has been the sole trustee at all relevant times. The trust gave the trustee broad discretion to make decisions for the trust in good faith. It required the trustee to provide an annual report to the beneficiaries upon Glenn’s death. The trust further directed the trustee, upon the grantor’s death, to use the princi- pal or net income of the trust to pay the grantor’s legal debts, death expenses, estate administration costs, and inheritance and estate taxes. The trust, as amended, further provided: Upon the death of the Grantor and distribution of the Grantor’s estate from probate, the Trustees shall divide the residue of the assets of this trust . . . into equal shares, so as to provide one share for each then living child of the Grantor and one share for the then living issue, col- lectively, of each deceased child of the Grantor. In so  - 869 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 dividing the assets of [this trust], . . . in funding [Lyle’s] equal share of the trust assets the Trustees shall allocate to his share all common stock which [this trust] may then own in [a bank in Ainsworth, Nebraska]. (Emphasis supplied.) No administrative proceedings were commenced for the trust until 2013, when Marvel initiated this litigation, along with her children (hereinafter collectively Marvel). Bessie and her two children (hereinafter collectively Bessie) joined the action as interested parties. Marvel sued to remove Lyle as trustee, secure administration, value assets, divide and distribute them to separate trusts, determine liabilities for defalcations by Lyle, and recover attorney fees and costs. Bessie filed her own counterpetition, requesting similar relief. Lyle also counterpetitioned, asking the county court to approve his actions as trustee; determine or confirm the alloca- tion of trust assets, income, expenses, and compensation; and award him attorney fees and costs. The sections immediately below summarize evidence rele- vant to the parties’ claims on appeal, and we recount additional relevant facts in the analysis portion of this opinion. 1. Division Pretrial litigation revealed that the corpus of the trust included agricultural real estate, bank stock, cash, and a prom- issory note. The county court, observing that the trust provided that trust assets were to be distributed upon Glenn’s death, applied the principle that equity considers that done which ought to have been done and treated the division of the trust as though it had occurred upon Glenn’s death. The county court further determined that “it was clearly Glenn’s intent that his trust be divided equally and that Lyle’s one-third share be funded using the bank stock and that the remaining assets would be divided between Wayne’s trust and Bessie’s trust.”  - 870 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 In dividing the trust this way, the county court relied on the testimony and report provided by Lyle’s expert, Tyler Bartruff, an attorney working in the field of forensic accounting and federal estate taxes. Bartruff based his report on the hypothetical assumption that the trust was split into three equal shares as of Glenn’s date of death in 1993. The report also assumed that the federal estate tax return was timely filed and that the tax was timely paid on a deferred basis under I.R.C. § 6166 (2012). The report allocated the bank stock to Lyle’s share and added additional liability to Lyle’s share to make the three shares proportionate. Bartruff’s report then proceeded with a cashflow summary for each beneficiary’s share from the split in 1993 until December 31, 2015, using data provided in other exhibits. 2. Valuation (a) Bank Stock At the time of trial, the trust owned 13,276 shares (bank stock), or 66.2 percent, of the holding company for a bank in Ainsworth, Nebraska. Lyle owned the remaining shares in his individual capacity. Two witnesses testified about the bank stock’s value: Janet Labenz and Fred Lockwood, each a certified public accountant (CPA) with experience in bank valuation. Labenz’ testimony and her written report gave a clear and concise explanation of her reasoning, which resulted in her applying a lack of marketability discount and valuing the trust’s bank stock at $7,209,000 as of September 13, 2013. Lockwood did not apply a lack of marketability discount and valued the trust’s bank stock as of September 30, 2013, at $9,804,000. Counsel were unable to elicit a straightforward explanation to support Lockwood’s conclusion; and because Lockwood was not a certified valuation analyst, as was Labenz, he was unable to submit a written report. The county court expressly accepted Labenz’ $7,209,000 valuation of the bank stock.  - 871 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 (b) Land Upon Glenn’s death, the trust owned three substantial par- cels of agricultural real estate located in Brown and Keya Paha Counties in Nebraska and in Tripp County in South Dakota. On January 15, 2016, the Brown County real estate was dis- tributed and sold by stipulation of the parties. The sale price of $9,148,172.70 was equally distributed to the separate trusts for Wayne and Bessie. At trial, Marvel’s counsel presented the reports of Larry Radant, who appraised the three parcels as of 2015. Radant determined values of $1,065,000 for the Keya Paha County real estate, $5,630,000 for the Tripp County real estate, and $9,700,000 for the Brown County real estate. In addition, Marvel’s counsel also presented values for the Keya Paha County and Tripp County real estate prepared by a different appraiser. The county court relied on the real estate values estab- lished by Radant, valuing the trust’s real estate at $16,395,000 total. This valuation included Radant’s appraisal of the Brown County real estate, which had been previously sold below Radant’s appraised value. (c) Cash The county court awarded the parties cash based on Bartruff’s report, which calculated each party’s share of the trust had Lyle divided the trust into three equal shares upon Glenn’s death, timely filed the estate tax return, and paid the associated taxes on a deferred basis. That report allocated the trust’s cash as follows: $1,960,910 to Lyle and $382,169 to Wayne and Bessie ($191,084.50 to Wayne and $191,084.50 to Bessie). The county court apparently considered past distribu- tions to Bessie totaling $167,550 and added these distribu- tions to Bartruff’s total of $382,169. Accordingly, the county court awarded $1,960,910 to Lyle’s trust and divided $549,719 between Wayne’s trust and Bessie’s trust, resulting in $274,860 to Wayne’s trust and $274,860 to Bessie’s trust. The county  - 872 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 court then subtracted $167,550 from Bessie’s share, allocating $107,310 to Bessie’s trust. (d) Bradley Williams Note The parties do not dispute that as of the time of trial, Bradley Williams owed the trust $61,423. As described in more detail below, the county court allocated the note representing that debt to Lyle in its final distribution, deducted its cash value from Lyle’s trust, and divided its cash value equally between Wayne’s and Bessie’s trusts. 3. Breaches of Fiduciary Duty Marvel and Bessie presented evidence attempting to show various breaches of fiduciary duty by Lyle and resulting damages. (a) Estate Taxes The parties do not dispute that Lyle was late in filing the trust’s federal estate tax return and in paying the resulting tax liability. There was evidence that although Lyle’s CPA, Bruce Hocking, timely prepared the federal estate tax return for Lyle’s signature, Lyle neglected to sign and mail it on time. Due to Lyle’s tardiness, the Internal Revenue Service (IRS) assessed penalties and interest against the trust amounting to approximately $2,200,000. To pay the estate tax liability, Lyle obtained loans for the trust, borrowing from himself in his individual capacity and from the bank in which he and the trust held stock. Hocking admitted that this benefited Lyle, as owner of one of the notes representing the trust’s debt and a shareholder at the bank, more than it benefited Wayne and Bessie. However, neither Marvel nor Bessie wanted Lyle to sell the trust’s land to pay the federal estate tax obligation; nor did Bessie want Lyle to sell the bank stock. Hocking negotiated with the IRS and achieved a settlement which allowed the trust to deduct the interest on the loans as an administrative expense, which, in turn, directly reduced  - 873 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 the federal estate tax liability and resulted in a fiduciary income tax benefit. Using the settlement negotiated by Hocking, Bartruff, Lyle’s expert, opined that the trust incurred damages totaling $854,803 as a result of Lyle’s late payment to the IRS. Bartruff explained that this number represented the difference between the amount that the trust actually paid for estate taxes, penal- ties, and interest and what would have been paid had the estate tax return been timely filed and had a proper election under § 6166 been made. Lockwood, Marvel’s expert, testified that the damage to the trust for Lyle’s breach regarding the estate taxes, penalties, and interest was $2,258,141. To obtain this figure, Lockwood added $552,052 in penalties to $1,706,089, which included interest on the principal ($976,432), interest for federal pen- alties ($308,339), interest on the bank note ($380,734), and interest on money borrowed from Lyle ($141,382). However, Lockwood overlooked that the $976,432 in interest on the prin- cipal already included $308,339 in interest for penalties. The county court accepted the testimony of Lyle’s expert, Bartruff, on the matter of damages related to federal estate taxes. Accordingly, the county court determined that Lyle’s breach of his duty to timely handle matters pertaining to estate taxes damaged the trust in the amount of $854,803. (b) Cattle Operation Rents Marvel and Bessie alleged a breach of trust by Lyle for fail- ing to charge rent to himself and to Wayne for use of the trust’s land for their cattle operations. Prior to Glenn’s death, Glenn, Lyle, and Wayne conducted a cattle operation using 12,000 acres of pasture belonging to Glenn, as well as real estate belonging to Lyle and Wayne. Glenn, Lyle, and Wayne shared the profits 20 percent, 45 percent, and 35 percent, respectively. At some point, the land became part of the trust. After Glenn’s death, from 1993 to 2009 or 2010, Lyle and Wayne continued to share the cattle  - 874 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 operation on the same terms, with the trust assuming Glenn’s 20 percent. After Glenn’s death, Lyle paid no rent to the trust, nor did Lyle collect rents from Wayne on behalf of the trust. Lyle testified that the cattle operation handled rents in this manner before Glenn’s death. Lyle testified that the trust’s cattle operation used some of his land and his labor, management, and equipment and that he did not charge the trust, nor did the trust pay Wayne, for his labor, management, and equipment. Lyle also testified that the trust did not pay for using pastureland owned by the family’s limited partnership or for any inputs for crops grown there and used to feed the trust’s cattle. However, there was also evidence that the trust borrowed money for feed, other general operating expenses, and real estate taxes for its portion of the cattle operation. Lyle pointed out that the terms of the cattle operation allowed the trust to pay down its federal estate tax obligation without selling trust property. Marvel did the bookkeeping for Wayne, and she testified that when they settled up each year, they did not have any claim against the trust. Marlin Krohn, an agricultural land manager, testified that based on the industry standard, the value of Lyle’s and Wayne’s labor and management of the cattle operation was $550,000 from 1994 to 2009. Krohn further testified that had the trust’s pastureland been rented out at market rates between 1993 and 2009, those rents would have totaled $2,100,000. He opined that the trust could have received $600,000 more in net income if the cattle had been liquidated in 1993 or 1994 and the real estate leased from that time until 2009, yet that it was reasonable for the cattle operation to have continued. Krohn observed that cattle feeding operations were profitable in 1993 or 1994, despite the subsequent unexpected downturn in the market. The county court found that Lyle and Wayne ran the cattle business with Glenn until his death and that there was never  - 875 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 an agreement that they would be charged rent to continue using the land. The county court also noted that continuing the cattle operation under those terms allowed for the payment of tax liability. Thus, it found that Lyle’s actions regarding this issue were authorized and of benefit to the beneficiaries. Consequently, the county court assessed no damages against Lyle arising from the cattle operation. (c) Cash Distributions Lyle did not make cash distributions from the trust to the other beneficiaries until 2008. It was alleged that this was a breach of Lyle’s fiduciary duty. In 2008, 2009, and 2010, Bessie received distributions total- ing $167,550. Bessie testified that during this period, she told Lyle when she needed money from the trust and he would give her money, sometimes a little more than she requested. Bessie testified that she had the understanding that she chose to forgo her distributions prior to 2008 to facilitate payment of IRS obligations and avoid the trust’s having to sell land or bank stock. After Marvel filed suit in 2013, Lyle began making equal trust income distributions. In 2015, the county court ordered equal distributions to separate trusts for Lyle, Wayne, and Bessie. Joel Wiegand, a CPA, calculated that if all the distributable income had been distributed from the trust to Bessie for her one-third share, total taxes for one-third of the trust tax plus Bessie’s individual tax would have been $124,265 lower for 1993 through 2012. Wiegand pointed out that cash distribu- tions did not become available until 2008 when debts were retired. According to Wiegand, Bessie would have been taxed $37,284 less had a one-third share of cash been distributed to her when available in 2008 and thereafter. Wiegand opined that it was prudent to retain funds to make payments on debts incurred to pay federal estate taxes. Hocking, Lyle’s CPA, testified that until all federal estate tax obligations were paid in full in 2000, he advised Lyle  - 876 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 from time to time that no distributions should be made to the trust beneficiaries. He testified that at that time, an election under § 6166 was still a possibility, and that § 6166 required any distributable trust income to be used to defray federal estate tax liability. Lockwood testified that the lack of distributions allowed more assets to remain in the trust and resulted in $191,381 of excess, avoidable taxes. The county court accepted Wiegand’s testimony that the available cash of the trust did not exceed its liabilities until 2008. Because Lyle’s refusal to make cash distributions allowed the tax liability to be paid without selling trust assets, the county court found that Lyle’s actions allowed the trust to grow from approximately $3 million at Glenn’s death to over $25 million at the time of trial and thus actually benefited the beneficiaries. Additionally, the county court noted that Bessie received $167,550 of cash distributions and that Bessie herself testified that Lyle distributed cash to her whenever she asked and sometimes gave her more than she requested. (d) Williams Note Marvel and Bessie claimed that Lyle breached his fiduciary duty and caused damages by failing to collect on the Williams note. At the time of Glenn’s death in 1993, Williams owed the trust $136,423. The record shows payments of $25,000 in 2004 and $40,000 in 2013. Deducting these payments results in a balance of $71,423, but no one disputes that the balance was $61,423 at the time of trial. Lockwood testified at trial that he learned that Lyle believed he could collect the balance of the note. The county court found that there was no evidence as to how Lyle breached his fiduciary duties in not collecting the debt. It concluded that equity required allocating the note to Lyle’s trust, deducting $61,423 in cash from Lyle’s distribution and distributing $30,711 in cash to Wayne and $30,711 in cash to Bessie.  - 877 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 On appeal, Marvel claims that the county court ought to have allocated the note to Lyle. This is what the county court did in the body of its order, but as described in more detail below, the allocation is not entirely clear on the county court’s balance sheet. (e) Failure to Account Marvel claimed that Lyle had failed to abide by the terms and purposes of the trust by failing to maintain sufficient records and to account for trust income and expenses annually. Bessie made similar claims. Lyle admitted that as trustee, he had not provided a for- mal accounting. Members of Wayne’s family and Bessie’s family confirmed that prior to the litigation, they had not received any report or balance sheet that gave a picture of the trust’s affairs. According to the transcript of a family meeting in 2008, Hocking provided Wayne’s family and Bessie’s family with the trust’s fiduciary income tax returns from 1993 through 2007. At the 2008 meeting, Hocking also provided income tax returns for the trust showing a “general ledger,” rather than a transaction-by-transaction account, for the income and expenses of the trust from 2003 to 2007. In 2013, Lyle provided the other beneficiaries with fiduciary income tax returns from 1993 to 2012. After the proceedings commenced in 2013, Lyle provided a full accounting for 2003 to 2012 to Wayne’s family and Bessie’s family. During the litigation, Lyle provided accountings and fiduciary income tax returns for 2013 to 2015. The county court found no showing that the untimely accounting caused any loss to the beneficiaries and awarded no damages. 4. Attorney Fees and Costs All parties requested attorney fees and costs. The county court conducted a posttrial hearing on the matter and received affidavit evidence.  - 878 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 The county court determined that each party should pay his or her own attorney fees and costs. It noted that while it did not believe Lyle had poor intentions, his own actions and neglect opened the door to accusations of breaches of fiduciary duty. As for the remaining parties, the county court noted that most of their claims against Lyle lacked merit and amounted to “microscopically probing” Lyle’s actions for nearly criminal activity with the goal of “receiving a bigger piece of the pie,” while contingency agreements between the parties and their counsel “fan[ned] the flames.” 5. County Court’s Final Distribution In accordance with its analysis, the county court ordered Lyle to distribute the trust’s assets as follows: Lyle’s Trust Bank Shares $7,209,000 Cash 1,960,910 Estate Tax Penalties and Interest (854,803) Adjustment for Williams Note, Allocated to Lyle    (61,423) TOTAL for Lyle $8,253,684 Wayne’s Trust One-half Land $8,197,500 Cash for one-half Williams Note 30,711 Cash    274,860 TOTAL for Wayne $8,503,071 Bessie’s Trust One-half Land $8,197,500 Cash for one-half Williams Note 30,711 Cash 274,860 Cash Adjustment   (167,550) TOTAL for Bessie $8,335,521 III. ASSIGNMENTS OF ERROR On appeal, Marvel assigns the county court erred when it (1) held that no damages were associated with Lyle’s failure to render accountings; (2) failed to hold Lyle liable for excess interest on estate tax debt caused by failure to pay taxes on  - 879 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 time and for loss of installment payment interest benefits; (3) failed to find that Lyle caused damages for loss of the alternative valuation election of § 6166, requiring payment of avoidable taxes; (4) failed to value assets as of the filing date or the date of trial and to assess damages for delayed administration; (5) awarded Lyle substantially all trust income retroactively to the time of Glenn’s death; (6) failed to award damages against Lyle for nonpayment of rents; (7) failed to award damages against Lyle for failure to collect valid debts owed to the trust; and (8) failed to award attorney fees and costs to Marvel. On cross-appeal, Bessie assigns that the county court erred in (1) retroactively and hypothetically setting the creation of the shares of the trust as of the date of Glenn’s death in 1993 and then awarding Lyle substantially all trust income retroactively to Glenn’s date of death; (2) considering Lyle’s actions as trustee in failing to collect rents from both himself and Wayne; (3) failing to award Bessie damages for Lyle’s failure to distribute income to Bessie, consistent with the tes- timony of Wiegand; (4) failing to award Bessie attorney fees against Lyle for his multiple breaches of trust; and (5) holding that no damages were associated with Lyle’s failure to ren- der accountings. On cross-appeal, Lyle assigns that although the county court properly divided the trust, it erred in (1) failing to hold that the claims for breach of fiduciary duty were barred by laches, because there should be no damages for breach of fiduciary duty if income from the bank stock is not allocated to Lyle’s trust since Glenn’s death; (2) failing to hold that Wayne’s fam- ily and Bessie’s family are barred from claims for breach of fiduciary duty by estoppel, waiver, release, consent, ratifica- tion and acquiescence; and (3) failing to award attorney fees, costs, and expenses to Lyle. IV. STANDARD OF REVIEW [1-3] Absent an equity question, an appellate court reviews trust administration matters for error appearing on the record;  - 880 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 but where an equity question is presented, appellate review of that issue is de novo on the record. In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 (2011). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions concerning the matters at issue. Id. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017). [4,5] When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbi- trary, capricious, nor unreasonable. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007). An appellate court, in reviewing a judgment for errors appearing on the record, will not substitute its factual findings for those of the trial court when competent evidence supports those findings. In re Estate of Dueck, 274 Neb. 89, 736 N.W.2d 720 (2007). [6,7] The existence of a fiduciary duty and the scope of that duty are questions of law for a court to decide. In re Estate of Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014), modified on denial of rehearing 290 Neb. 392, 861 N.W.2d 682 (2015). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Id. [8] The interpretation of the words in a will or a trust pre­ sents a question of law. In re Estate of Shell, 290 Neb. 791, 862 N.W.2d 276 (2015). [9,10] A trial court’s decision awarding or denying attorney fees will be upheld on appeal absent an abuse of discretion. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017). A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.  - 881 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 V. ANALYSIS 1. M arvel’s A ppeal and Bessie’s Cross-A ppeal Glenn died in 1993, and Lyle, the trustee, did not distribute the trust assets upon Glenn’s death as required by the trust. As the county court observed, “Now, more than twenty years later, serious and difficult controversies have arisen . . . .” The county court made factual findings and applied equitable prin- ciples to craft a remedy. Marvel and Bessie now challenge that remedy, along with some of the factual findings upon which it is based. The complications in this case have arisen, in large part, from Lyle’s failure to inform the beneficiaries concerning the state of the trust over the course of many years. Accordingly, Marvel first assigns that the county court erred by finding no damages resulted when Lyle breached his fiduciary duty by failing to render timely accountings. Bessie also seeks damages resulting from Lyle’s failure to render accountings. [11,12] Marvel properly notes that a trustee has the duty to administer the trust in good faith, in accordance with its terms and the purposes and the interests of the beneficiaries, and in accordance with the Nebraska Uniform Trust Code. In re Conservatorship of Abbott, supra. The Nebraska Uniform Trust Code states that trustees owe the beneficiaries of a trust duties that include loyalty, impartiality, prudent administra- tion, protection of trust property, proper recordkeeping, and informing and reporting. Id. Prior to January 1, 2005, a trustee was required to keep the beneficiaries of the trust reasonably informed of the trust and its administration and, on reasonable request, provide a beneficiary with a statement of the accounts of the trust annually. See, Neb. Rev. Stat. § 30-2814 (Reissue 1995); 2003 Neb. Laws, L.B. 130, § 78. Commencing January 1, 2005, the Nebraska Uniform Trust Code required a trustee to send to distributees at least annually a report of the trust prop- erty, liabilities, receipts, and disbursements. See, Neb. Rev. Stat. § 30-3878 (Reissue 2016); L.B. 130, § 78.  - 882 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 Lyle clearly violated the requirement, prior to 2005, to keep the beneficiaries of the trust reasonably informed; and after 2005, he violated his duty to send to distributees a report at least annually. The record reflects that Lyle did not provide any reasonable reports to Marvel and Bessie until 2008. Then, after this action was filed, Lyle provided an accounting from 2003 to 2012. Lyle contends that this was adequate, but we disagree. Failing to provide any information to the benefici­ aries from the date of Glenn’s death in 1993 until 2008 reflects a violation of Lyle’s duties to report. Marvel and Bessie should not be required to initiate legal action to compel Lyle to comply with his statutory obligation. However, the question becomes, other than attorney fees, what damages have been shown by Marvel and Bessie. [13] An accounting is ordinarily an appropriate remedy for a breach of the duty to inform and report. In re Rolf H. Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d 458 (2014). However, here, Marvel and Bessie have fur- ther alleged that Lyle must account for the damages he caused by his breach of duty as trustee and that a judgment should be entered against him. Specifically, Marvel claims that the meas­ure of damages is a different distribution than was ordered by the county court, which difference would account for tax penalties, avoidable taxes, and excess inter- est paid when favorable IRS rates became unavailable, all due to Lyle’s defaults, as well as unpaid rents, extra income taxes that would have been avoided by proper distributions, and attorney fees. Similarly, Bessie groups Lyle’s failure to account with her assigned errors relating to the cattle opera- tion, income distributions, and attorney fees and ultimately requests a different distribution as the remedy. Essentially, Marvel and Bessie incorporate all of their assigned errors in suggesting a measure of damages for Lyle’s failure to render accountings. Therefore, we shall address these intertwined assignments of error together. [14-17] In analyzing these assigned errors, we recognize that under Neb. Rev. Stat. § 24-517(1) (Cum. Supp. 2012),  - 883 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 county courts have exclusive jurisdiction over all matters relating to decedents’ estates, including the probate of wills and construction thereof. In re Estate of Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014), modified on denial of rehearing 290 Neb. 392, 861 N.W.2d 682 (2015). Although this case is not an equity action, in exercising exclusive original jurisdic- tion over estates, county courts may apply equitable principles to matters within probate jurisdiction. Id. We have held that county courts have jurisdiction over all subject matter relat- ing to estates of decedents, including construction of wills and determination of heirs and successors of decedents, estates of protected persons, protection of minors and incapacitated persons, and trusts. Id. Such courts have full power to make orders, judgments, and decrees and to take all other actions necessary and proper to administer justice in the matters which come before them. Id. In regard to distribution and valuation of trust assets, the county court was faced with when to value the assets, because contrary to the terms of the trust, the trust assets were not distributed at Glenn’s date of death into three separate trusts. Lyle suggested that the county court divide Glenn’s trust as of his date of death, according to the calculations of Lyle’s expert, Bartruff. In finding that it could follow such an approach, the county court quoted the following portion of the Restatement (Third) of Trusts § 89, comment g. at 285- 86 (2007): Occasionally the time for trust termination arrives and a directed division into separate trusts or distribution of the property is unduly delayed or disregarded even though the trustee has, in one way or another, performed other aspects of winding up the trust’s affairs. . . . It would seem appropriate to treat the beneficiary . . . as owner [of] (or holder of a power of withdrawal over) the trust prop- erty or appropriate portion thereof—an example of equity treating as done what ought to have been done. Rather than offering an alternative distribution schedule for the trust as of the time of Glenn’s death, Marvel and Bessie  - 884 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 want the distributions and valuations to be deemed made at the time of trial. Marvel argues that the county court ought to have valued the trust assets as of 2016. She contends that we should adopt a rule that where distribution is delayed, as here, the assets should be valued as of the date of distribu- tion. Marvel acknowledges that Nebraska has not addressed the valuation date for distributed assets. She points to King v. Onthank, 152 N.H. 16, 871 A.2d 14 (2005), where the lower court, upon termination of the trust, valued the assets at the time of distribution, which was 3 years after the grantor’s death. The appellate court in King v. Onthank noted that the grantor’s intent would control the date of valuation if such intent could be determined from the trust document. It ulti- mately held that under the particular facts presented, the lower court was not plainly erroneous in finding that the equitable date for valuation was approximately the date the trust assets were distributed. Marvel also cites Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740 (Ala. 1988), where the appellate court determined that trust assets should be valued at the date of distribution. However, in Van Schaack v. AmSouth Bank, N.A., unlike the instant case, the terms of the decedent’s will created and funded the residual trust. We find King v. Onthank, supra, where the date of valuation of trust assets is determined by the particular facts presented to the lower court, to be more in line with our existing juris- prudence. For instance, in domestic relations cases, we have found that generally, the date on which a court values the marital estate should be rationally related to the property com- posing the marital estate. See Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). In other words, we look to the facts of each case. Here, Lyle’s expert, Bartruff, presented a report to opine a hypothetical balance sheet of the trust had Lyle timely filed the estate tax return, used all beneficial tax options, and paid the associated taxes on a deferred basis. Bartruff based the beginning values for the balance sheet on the final  - 885 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 values accepted by the IRS after negotiations. As provided by Glenn’s trust, Bartruff split the beginning values into three equal trusts, with Lyle receiving the bank stock and Wayne’s and Bessie’s trusts receiving the remaining assets. He determined the net change to each trust based upon the cash inflows and outflows for various items, such as dividend income, ranching operations, fiduciary tax payments, and estate tax and interest payments. Additionally, Bartruff based his report on the position that the trust would not have been able to pay the estate tax liability as of the date of filing with- out having to liquidate some of the estate’s assets. The record supports that Bessie did not want land or bank stock sold to pay the trust’s tax obligations and that from 1993 to 2009, Marvel did not want land sold. Therefore, Bartruff determined the prudent course of action would have been to apply for a deferred payment plan with the IRS, which allowed reduced interest rates over several years. Based upon this analysis, he determined, using 2013 values, the ultimate division of the trust between the beneficiaries. Marvel and Bessie assert that this approach is erroneous. They argue that Lyle benefited, since Lyle’s treatment of expenses resulted in positive net income for the bank, whereas the assets assigned to Wayne and Bessie had negative income. Marvel and Bessie claim that Lyle should account for the loss of income to Wayne and Bessie because Lyle paid trust administration expenses using cattle operation income and not bank income. Bessie argues that the bank dividends at their present value should have been part of the residue, with the beneficiaries’ trusts funded therefrom. However, an appellate court, in reviewing a judgment for errors appearing on the record, will not substitute its factual findings for those of the trial court when competent evidence supports those findings. In re Estate of Dueck, 274 Neb. 89, 736 N.W.2d 720 (2007). In its factual findings, the county court accepted the facts posited by Bartruff’s calculations that divided the trust assets as of Glenn’s date of death. In turn, the income and expenses associated with the trust assets followed the respective owners  - 886 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 of those assets. We conclude that the county court was not clearly wrong in adopting this approach. Therefore, with Bartruff’s approach controlling, Marvel and Bessie’s position concerning expenses and income has no merit. The valuation of bank stock was another major difference of opinion between the parties that greatly affected valuation and distribution of trust assets. Marvel and Bessie endorse the testimony of Marvel’s expert, Lockwood, who opined that the value of the bank stock was $9,804,000. On the other hand, Lyle’s expert, Labenz, applied a lack of marketability discount and valued the bank stock at $7,209,000. The county court found Lyle’s experts to be more credible and accepted their opinions concerning these factual issues. In doing so, the county court was not applying an equitable prin- ciple, but simply, as the trier of fact, determining which expert was more credible. As such, we review the county court find- ings of fact for error on the record. See In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 (2011). We find the decision to accept the testimony of Lyle’s experts is supported by competent evidence and is neither arbitrary, capricious, nor unreasonable. See In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007), and In re Estate of Dueck, supra. As previously noted, the county court distributed the trust assets as follows: Lyle’s Trust Bank Shares $7,209,000 Cash 1,960,910 Estate Tax Penalties and Interest (854,803) Adjustment for Williams Note, Allocated to Lyle    (61,423) TOTAL for Lyle $8,253,684 Wayne’s Trust One-half Land $8,197,500 Cash for one-half Williams Note 30,711 Cash    274,860 TOTAL for Wayne $8,503,071  - 887 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 Bessie’s Trust One-half Land $8,197,500 Cash for one-half Williams Note 30,711 Cash 274,860 Cash Adjustment   (167,550) TOTAL for Bessie $8,335,521 The county court accepted the blueprint for distribution as outlined by Lyle’s experts, but the final values used by the county court were similar to the values that Marvel and Bessie requested in their briefs. The difference between the county court’s final distribution of assets and that of Marvel and Bessie mainly stems from Marvel’s and Bessie’s claims that the bank stock should have been valued at $9,804,000, rather than $7,209,000, and that the bank dividend income increased the cash for Lyle. Although we review the equitable question of distribution of the trust de novo, under the facts of this case, the county court could not render an equitable solution without first mak- ing factual findings as to which experts’ opinions to accept. Because the county court accepted the expert opinions pre- sented by Lyle as more credible, this, in turn, controlled the court’s method of distribution. Certainly, other methods of distribution exist, but here, the distribution under this circum- stance was reasonable. The primary difference between Marvel’s and Bessie’s posi- tion and the county court’s distribution is the extent to which the county court offset any alleged damages caused by Lyle. The county court only offset Lyle for any additional taxes and interest due to late filing, but Marvel and Bessie requested offsets for other issues, namely cattle operation rents, estate taxes, and the Williams note. Marvel and Bessie contend that Lyle was not impartial in failing to collect rent for use of trust land for the cattle opera- tion and that he should pay the associated damages. [18] If a trust has two or more beneficiaries, a trustee has a duty of impartiality among beneficiaries. In re Estate of  - 888 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014), modified on denial of rehearing 290 Neb. 392, 861 N.W.2d 682 (2015). This includes a duty to act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests. Id. “It is not only appropriate but required by the duty of impartiality that a trustee’s treatment of beneficiaries, and the balancing of their competing interests, reasonably reflect any preferences and priorities that are discern- ible from the terms . . . , purposes, and circumstances of the trust and from the nature and terms of the beneficial interests.” . . . Id. at 689, 857 N.W.2d at 70 (emphasis omitted), quoting Restatement (Third) of Trusts § 79 (2007). Prior to Glenn’s death, Glenn, Lyle, and Wayne conducted a joint cattle operation using trust land without either Lyle’s or Wayne’s paying rent. Any profits were divided with Glenn receiving 20 percent, Lyle receiving 45 percent, and Wayne receiving 35 percent. This division of any profits continued after Glenn’s death, with the trust receiving Glenn’s 20-percent share. Marvel and Bessie claim that Lyle violated his fidu- ciary duties by continuing the cattle operation without collect- ing rents. The county court concluded that Lyle had not breached his fiduciary duty regarding rents. It relied on the testimony of Krohn, an agricultural land manager. Krohn valued Lyle’s and Wayne’s labor and management of the cattle operation from 1994 to 2009 at $550,000. Krohn admitted that the trust could have received $600,000 more if they had liquidated the operation in 1993 or 1994 and leased the real estate until 2009. However, he also observed that it was reasonable for the cattle operation to continue at that time, despite the subsequent unexpected downturn in the cattle market, because cattle feed- ing operations were profitable in 1993 or 1994. In addition to Krohn’s testimony, the county court acknowledged other evidence that Lyle and Wayne contributed real estate, cattle,  - 889 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 and equipment to the cattle operation. The county court did not expressly assign a value to these contributions, but it appar- ently found them, along with the labor and management valued by Krohn, similar to Lyle’s and Wayne’s rent obligations, had they been assessed. In this case, the county court accepted Lyle’s proposal to treat Glenn’s trust as having been divided at Glenn’s date of death. As a result, the county court effectively found that Lyle’s trust should be entitled to the bank dividends, since the bank stock was his property. We find that a similar approach should have been applied to the land, which was treated by Lyle’s expert as belonging jointly to Wayne and Bessie. If the land had been distributed upon Glenn’s death, then the cattle operation would have been required to pay rent for using it. Any such rents would have been paid as follows: 20 percent by the trust, 45 percent by Lyle, and 35 percent by Wayne. Krohn opined that at market rates, the rent for pastureland would have been $2,100,000 between 1993 and 2009. Marvel claims that the county court should have assessed Lyle $1,433,544 (80 percent of $1,791,930) in uncollected land rent, and Bessie requested $1,716,743 (80 percent of $2,145,929). We agree with Marvel and Bessie that Lyle, acting as an impartial trustee, should have treated the land as belonging to Wayne and Bessie, which, in turn, would have required the cattle operation to pay rent for using the land. Here, the record is clear that Bessie was unaware that rents were even an issue, since Lyle provided her no accounting as to the land. Wayne’s situation is problematic because he was part of the cattle operation and had inside information as to whether rents were being paid. And the record is not clear as to whether Wayne demanded rent during his life, with Marvel testifying that she did the bookkeeping for Wayne’s ranch operation and that when they “settled up” each year, they did not have any claim against the trust. Further, the reality is that Wayne, as co-owner of the cattle operation and of the land, could choose not to collect rent in regard to himself, and he has already  - 890 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 benefited by not being charged rents for his share of the cattle operation. Although this is a breach of fiduciary duty action against Lyle, not Wayne, Lyle was still in a position of control in regard to Bessie’s land, since he failed to provide her with any relevant financial information. Consequently, we conclude that Lyle breached his fiduciary duty as trustee to Bessie by his use of her one-half interest in the land and by personally benefiting from not collecting rents for his share of the cattle operation in the amount of $472,500 (45 percent of $1,050,000, which is one-half of $2,100,000). In addition, we conclude that Lyle further breached his fiduciary duty as to Bessie by failing to collect rents from Wayne for Wayne’s use of Bessie’s land, amounting to uncollected rent of $367,500 (Wayne’s 35 per- cent of $1,050,000). On remand, therefore, the distribution to Lyle’s trust shall be reduced by $840,000 ($472,500 + $367,500) and said prop- erty shall be transferred directly to Bessie’s trust. Concerning federal estate tax obligations, the trust clearly provided that when Glenn, the grantor, died, Lyle’s first obli- gation as trustee was to pay, either from trust principal or income, all of Glenn’s legal obligations and all estate and inheritance taxes. Only after these obligations were paid was the residue of the trust to be divided equally among Glenn’s living children or their surviving children. The evidence shows that Hocking prepared the federal estate tax return for Lyle to sign and that Lyle, without any adequate explanation, failed to timely file it. This resulted in the trust’s incurring penalties and additional interest. Marvel and Bessie claim that the county court erred in not awarding them damages by subtracting from Lyle’s share approximately $2,200,000 representing the gross amount of penalties and interest associated with Lyle’s lapses in filing and paying federal estate taxes. However, as noted by Lyle, Hocking negotiated a settlement with the IRS that allowed the trust to deduct the interest as an administrative expense, which in turn  - 891 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 directly reduced the federal estate tax liability and resulted in a fiduciary income tax benefit. Using this negotiated settlement, Bartruff calculated that the trust incurred damages of $854,803, which represented the difference between the amount that the trust actually paid for estate tax obligations and what would have been paid had the estate tax return been timely filed and the available beneficial election made. The county court again accepted the testimony of Lyle’s experts and offset the amount of $854,803 against Lyle’s share. We find the record contained competent evidence to support this decision. Regarding the Williams note, Marvel claims that the county court erred when it failed to award damages against Lyle for failure to collect this valid debt owed to the trust. Lyle was not able to explain why he failed to collect on the note, but there was some evidence that he believed he could still do so. In the body of its order, the county court stated: The trust is the holder of a promissory note from . . . Williams where $61,423.00 remains uncollected. Although there was no evidence as to how Lyle breached his duties in not collecting this debt, this court believes equity requires allocating this note to Lyle’s trust and therefore $30,711.00 additional cash should be allocated to Wayne’s trust and $30,711.00 additional cash allocated to Bessie’s trust. The conclusion of the order contained a similar provision. However, the balance sheet attached to the court’s order, enti- tled “EXHIBIT ‘A,’” simply reflects that Wayne and Bessie each receive an “[u]ndivided one-half of . . . Williams [n]ote.” This wording has apparently led Marvel to the conclusion that Wayne’s and Bessie’s trusts each received one-half of the note, rather than its cash value. We understand the confusion; and on remand, the county court shall amend the order’s exhibit A to clarify that Wayne’s and Bessie’s trusts each receive an addi- tional $30,711 of cash, as the body and conclusion of its order provide. With this finding and direction to the county court, this assigned error has no merit.  - 892 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 [19,20] Lastly, Marvel and Bessie claim that the county court erred in failing to award attorney fees and costs to them. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of an attorney fee. See In re Trust Created by Martin, 266 Neb. 353, 664 N.W.2d 923 (2003). And in a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy. Neb. Rev. Stat. § 30-3893 (Reissue 2016). When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose rul- ing will not be disturbed on appeal in the absence of an abuse of discretion. In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017); Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998); Rapp v. Rapp, 252 Neb. 341, 562 N.W.2d 359 (1997). A judicial abuse of discre- tion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. In re Conservatorship of Abbott, supra. The county court denied Marvel and Bessie attorney fees and stated in part: As for Lyle’s attorney fees and costs, generally a trustee would be allowed to be reimbursed from the trust those fees incurred in successfully defending against claims for breach of duty. Although in this court’s opin- ion Lyle was largely successful in defending against the claims against him, there is no hiding that the trust lost $854,803.00 due to his neglect involving the estate tax issue. Further, although this court does not believe Lyle had mal intentions, it is true that Lyle’s actions opened the door to being accused of breaches of fiduciary duties. His neglect with the [IRS], not providing annual  - 893 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 accountings, and lending money himself and through the bank, could reasonably create a suspicion of self-­ dealing. Lyle incurred significant attorney fees and costs in defending his actions, most of which this court has found to be acceptable. But, it’s only because Lyle cre- ated the circumstances where it maybe was not unreason- able for others to doubt his conduct as being in their best interests. It is for these reasons this court feels that justice and equity require Lyle to be responsible for his own attorney fees and costs. .... . . . Again, to this court, the majority of those accu- sations were without merit. It is for these reasons this court feels that justice and equity require [Marvel and Bessie] to be responsible for their own attorney fees and costs. We understand the county court’s reluctance to award attorney fees, since the majority of the claims against Lyle were determined to be unfounded. But without an award of attorney fees, there is no penalty for not reporting to the beneficiaries for many years until the litigation occurred. As Marvel points out, in In re Rolf H. Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d 458 (2014), we found attorney fees were warranted where, similarly to this case, the trustees clearly breached their duty to inform and report for decades and the beneficiary had little choice but to file litigation to resolve any doubts about the trust’s administra- tion. And if we do not impose a penalty such as attorney fees in the instant case, then future trustees may believe that the statutory requirement to report has no significance. In addi- tion, we have now found that Lyle breached his duties by the additional amount of $840,000. As a result, we find that the county court abused its discretion by not awarding attorney fees to Marvel and Bessie. [21] We have previously found that to determine the value of legal services rendered by an attorney, it is proper to  - 894 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 consider the amount involved, the nature of the litigation, the time and labor required, the novelty and difficulty of the ques- tions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services. See In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001). And we have approved a contingent fee in trust litigation. See In re Estate of Stull, 261 Neb. 319, 622 N.W.2d 886 (2001). The record reflects that this litigation was extensive, span- ning several years. Trial lasted 4 days, and numerous exhibits and depositions were offered. We have concluded that Marvel and Bessie were successful in showing that Lyle breached his fiduciary duties and caused damages by failing to report and account for his failure to pay rents. Further, Lyle failed to act on several issues until litigation commenced; and the attorneys showed a high level of skill. As set forth in the affidavit received at the hearing on attorney fees, Marvel’s counsel seeks a contingent fee of 10 percent of the recoveries or distributions to Marvel, along with costs of $6,439.52. The actual recovery found by the county court was $854,803. We have now added damages of $840,000, but those are in regard to Bessie. Therefore, in light of the factors enumerated above, Marvel shall be awarded a total of $85,480 (10 percent of $854,803) in attorney fees and costs of $6,439. Bessie requests an award for attorney fees of $81,910.13, costs of $4,510.66, and other expenses of $12,960.43, for a total of $99,381.22. Considering again the factors above, and the fact that Marvel brought this action, we award Bessie attor- ney fees of $40,955 and costs in the amount of $17,470. This judgment against Lyle for attorney fees and costs in the total amount of $150,344 shall be a reduction in the distribution his trust receives, and $150,344 from the prop- erty in Lyle’s trust or to be distributed shall be directly  - 895 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 transferred to the attorneys for Marvel and Bessie, according to this opinion. 2. Lyle’s Cross-A ppeal On cross-appeal, Lyle assigns that the county court erred in failing to find that any claims by Marvel and Bessie were barred by the doctrine of laches. [22-24] Laches occurs only if a litigant has been guilty of inexcusable neglect in enforcing a right and his or her adver- sary has suffered prejudice. Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). Laches does not result from the mere passage of time, but because during the lapse of time, circumstances changed such that to enforce the claim would work inequitably to the disadvantage or prejudice of another. Id. What constitutes laches depends on the circumstances of the case. Id. Lyle contends that it would be inequitable for Marvel and Bessie to bring actions against Lyle for breach of fiduciary duty after Lyle contributed part of his dividends from the bank stock toward payment of federal estate tax obligations. However, for laches to apply, the bank dividends would need to have been Lyle’s property in the first place. This lawsuit was initiated, in part, to resolve whether the bank dividends were Lyle’s. Therefore, the doctrine of laches does not apply. This assigned error is without merit. Lyle also assigns that the county court erred in failing to find that any claims by Marvel and Bessie were barred by estoppel, waiver, release, consent, ratification, and acquies- cence. Specifically, Lyle points out that Wayne and Bessie either participated in or knew about the cattle operation. We have already dealt with this allegation in addressing claims that Lyle failed to account for rents in the cattle operation. As a result, we will not address this issue again. Lastly, Lyle claims that he should have been awarded attor- ney fees. We have already determined that Lyle breached his fiduciary duties; and, accordingly, he is not entitled to attor- ney fees.  - 896 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports IN RE ESTATE OF FORGEY Cite as 298 Neb. 865 VI. CONCLUSION Although we agree with most of the county court’s find- ings, we conclude that the county court was clearly wrong in not awarding damages caused by Lyle’s breaches of fiduciary duty in failing to provide timely reports and accountings that showed his failure to collect rents on behalf of the trust. Further, we conclude that the county court abused its discre- tion in declining to award attorney fees to Marvel and Bessie. Thus, we affirm in part, and in part reverse and remand with directions to apportion damages, attorney fees, and costs in accordance with this opinion. A ffirmed in part, and in part reversed and remanded with directions. Heavican, C.J., and Wright and Cassel, JJ., not participating. 

720 F.Supp. 1158 (1989) PIRG, et al, Plaintiffs, v. POWELL DUFFRYN TERMINALS, INC. (P.D. Oil & Chemical Storage, Inc.), Defendant. Civ. A. No. 84-340. United States District Court, D. New Jersey. September 19, 1989. *1159 Bruce J. Terris, Kathleen L. Millian, Carolyn Smith Pravlik, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., Edward Lloyd, Newark, N.J., for plaintiffs. Nathan M. Edelstein, Ridolfi, Friedman, Frank, Edelstein & Bernstein, P.C., Lawrenceville, N.J., for defendant. POLITAN, District Judge. The case before this Court presents another chapter in the never ending American environmental tragedy. A recalcitrant company in the private sector of the economy combined with the lethargic enforcement of the applicable statutes and regulations by the New Jersey Department of Environmental Protection and the Federal Environmental Protection Agency, has caused a continuing, if not constant, 11 year contribution to the pollution of the Kill Van Kull. It is indeed sad that none of *1160 the participants cared sufficiently about the public trust—the environment—to take meaningful steps to avert the tragedy. This Court will not stand idly by to either, explicitly or tacitly, condone such inaction. For the reasons hereafter set forth, significant monetary penalties are necessary. Before the Court is the question of the amount of civil penalties to be assessed against defendant, Powell Duffryn Terminals, Inc., for polluting the Kill Van Kull in violation of the Clean Water Act, 33 U.S.C. §§ 1251, et seq (the "Act"). Plaintiffs also seek a permanent injunction prohibiting defendant from violating its National Pollutant Discharge Elimination System/New Jersey Pollutant Discharge Elimination System ("NPDES/NJPDES"), Permit No. NJ 0003361. By Orders dated January 13, 1986, March 13, 1987, and May 4, 1989, this Court determined that defendant had violated its Permit for a total of 386 times. Plaintiffs argue that the defendant should be fined the statutory maximum penalty which, in this case, is $4,205,000.00. The defendants counter that the assessment of civil penalties is discretionary with the Court and none are warranted in this case. Section 505(a) of the Act, 33 U.S.C. 1365(a) authorizes this Court to assess "any appropriate civil penalties under Section 309(d) of this Act." Section 309(d), 33 U.S.C. 1319(d), prior to its amendment in 1987 provided: Any person who violates §§ 301, 302, 306, 307, or 308 of this Act, [or] any permit condition or limitation implementing any of such sections in a permit issued under § 402 of this Act by the Administrator ... shall be subject to a civil penalty not to exceed $10,000.00 per day of such violation. Consequently, each violation of the NPDES permit limitation, prior to the 1987 amendments, subjects the defendant to a statutory maximum penalty of $10,000.00 per violation. However, in 1987 Congress increased the statutory maximum to $25,000.00. Therefore, defendant's violations occurring on or after February 4, 1987 are subject to a penalty of up to $25,000.00. Of the 386 violations, 363 of them occurred prior to February 4, 1987; 23 occurred after that date. Defendant is therefore liable for a maximum penalty of $4,205,000.00. Section 309(d) of the Act requires the Court to consider specific factors in determining the appropriate civil penalty to be assessed for violations of the Act. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violations, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. § 309(d), 33 U.S.C. § 1319(d). The Court held a non-jury trial on the issue of what, if any, monetary penalty should be assessed against defendant and what, if any, injunctive or other equitable relief should be granted. Both parties have submitted extensive proposed Findings of Fact and Conclusions of Law. In the interests of clarity, I will first set forth my factual determinations and then proceed to the legal conclusions. Plaintiffs Public Interest Research Group of New Jersey and Friends of the Earth, are non-profit corporations committed to environmental issues. Defendant P.D. Oil & Chemical Storage, Inc., operates a bulk chemical storage and transfer facility in Bayonne, New Jersey. Defendant's facility "receives bulk liquid commodities owned by others and holds them in storage tanks for loading, upon instruction from the commodity owners, to rail cars, tank trucks or ocean going tankers [via the Kill Van Kull]." SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F.Supp. 1074, 1080 (D.N.J.1986). Between September 1977 and November 1988, defendant committed 386 violations of the effluent limitations in its 1974, 1981 and 1986 permits. These violations are summarized in the following table: *1161 Number of Parameter Violations Total Organic Carbon (TOC) 8 pH 63 Total Suspended Solids (TSS) 66 Bioassay 1 Oil and Grease 48 Hexavalent chromium 2 Petroleum Hydrocarbons 27 Methylene Chloride 9 Phenol 1 Biochemical Oxygen Demand (BOD) 80 Chemical Oxygen Demand (COD) 81 ___ Total 386 ___ Of the 386 violations, 368 were violations of effluent limitations which had previously been violated. Two hundred sixty of those violations exceeded the applicable permit limitations by over 100%. One hundred ninety-five of them, exceeded the permit limitations by more than 200%. One hundred twenty-seven of them exceeded the applicable permit limitation by over 400%. Eighty-six of them exceeded the permit limitations by 1,000%. Pursuant to the requirements of the Act, 33 U.S.C. § 1317(a), the EPA has published a list of toxic pollutants which includes phenol and methylene chloride. The EPA recently listed the 100 hazardous substances posing "the most significant potential threat to human health." 52 Fed.Reg. 12866 (April 17, 1987). The EPA's list is divided into four groups of 25 substances each in descending order of priority. Methylene chloride is priority group I and phenol is in priority group II. The defendant has violated the effluent limitations in its permit for methylene chloride 9 times. The defendant has violated its effluent limitation for phenol once, but its permit has only contained that limitation since August 1987. Defendant has committed 10 violations of toxic pollutant limitations in its permit. BOD and COD effluent limitations are designed to limit the amount of oxygen demanding material which is discharged into receiving waters. "BOD is a measure of the oxygen requirement exerted by micro-organisms to stabilize organic matter. Waste water entering [a body of water] exerts an oxygen demand thereby depleting the amount of oxygen available for use by fish and plants. Without adequate oxygen, fish and plants die, eventually choking [the body of water]." United States v. Metropolitan District Commission, 23 ERC 1350, 1353 n. 4 (D.Mass.1985). Defendant's discharge of BOD and COD is particularly harmful because of oxygen deficiencies in the Kill Van Kull and the connected water-ways in the New York Harbor complex. New Jersey's Department of Environmental Protection, Division of Water Resources, has noted these deficiencies in the New Jersey 1980 State Water Quality Inventory, Report to the Congress through the Environmental Protection Agency, April 1980. That Report stated, at page 3, that "as in the past, the waters [of the Interstate Sanitary District] are plagued by ... low levels of dissolved oxygen." The 1982 State Water Quality Inventory reported that "although [the Interstate Sanitation District Waters] show a general overall improvement since the last ... inventory was compiled, District Waters are still plagued by low dissolved oxygen values during the summer months." The 1986 New Jersey Water Quality Inventory reported that "District Waters meet dissolved oxygen requirements during the winter; however, in some locations, dissolved oxygen values in the summer drop below standards for extended periods." Defendant's discharges added to the depletion of oxygen in the Kill Van Kull. "TSS, or Total Suspended Solids, is an indication of the physical quality of the water. Very high levels of suspended solids can effect the ecology of [a body of water] by inhibiting light transmission needed for photosynthesis by which plants survive." United States v. Metropolitan District Commission, 23 ERC at 1353 n. 4. The EPA has stated, and this Court recognizes that suspended solids can have an adverse affect on fish growth and reproduction and reduce the supply of food available to the fish. See EPA, Quality Criteria for Water, pp. 404-408 (1976). Defendant has violated the TSS limits of its permit 66 times. As this Court has already noted, defendant's BOD and TSS effluent limitations *1162 are water based quality standards. See SPIRG v. P.D. Oil, 627 F.Supp. at 1088-1089. Water quality based effluent limitations are those which are designed to insure that water quality standards are met. Water quality standards, in turn, have been established to protect, restore, maintain and enhance a body of water so that it supports its designated uses and attains the fishable and swimmable goals of the Act. See 33 U.S.C. §§ 1311, 1312, and 1313; 40 C.F.R. 122.44(d). Any violations of these water quality based effluent limitations causes some degree of harm to the water quality of the Kill Van Kull. Defendant has violated its permit with respect to oil and grease 48 times. New Jersey's 1980 State Water Quality Inventory stated at page 1 that "the waters [of the Interstate Sanitation District] are ... high in oil and grease...." That Report also stated at page 2 that "the quality of the District's waters is continuously degraded by ... large concentrations of both heavy metals and oil entering the waters from inadequately treated municipal and industrial wastes." The 1982 Water Quality Inventory stated that "District waters are still degraded by oil and grease...." Defendant's discharges of oil and grease have added to the problems relating to these pollutants in the Kill Van Kull. The EPA has determined that "a pH range of 6.5 to 9.0 appears to provide adequate protection for the life of fresh water fish and bottom dwelling invertebrate fish food organisms. Outside of this range, fish suffer adverse psychological effects with an increase in severity as the degree of deviation increases until lethal levels are reached." EPA, Quality Criteria for Water, p. 341. Defendant has violated the pH limits of its permit 63 times. Since the installation of a water treatment system known as "Zimpro" in May 1987, the frequency of defendant's violations has diminished substantially. However, the defendant has acknowledged violations of its permit since Zimpro's installation. Defendant offers no substantial evidence that it will not violate its permit in the future. Defendant's environmental consultant, LeRoy Sullivan, did not testify that defendant will not violate its permit in the future. Rather, he stated that defendant's waste water treatment plant is "adequate to meet the permit limits." Although the plant may be "adequate" to meet the permit limits if properly operated by defendant, Mr. Sullivan offered no testimony that the treatment plant, as actually operated by defendant, will meet the discharge limits contained in the permit in the future. Mr. Sullivan's testimony provides no basis for the Court to conclude that "the wrong will not be repeated". Gwaltney of Smithfield Limited v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 386, 98 L.Ed.2d 306 (1987). Defendant's violations cause harm to the environment. This Court finds that based upon defendant's operations to this point, it is reasonable to conclude that its permit will be violated in the future. Plaintiffs have attempted to convince the Court to penalize defendant for violating their permit from 1977 to 1987. Plaintiffs argue that whereas the technology to build a waste water treatment plant may not have been in existence in 1977, defendant had the option of hauling their waste water to an off-site treatment facility and thereby achieve compliance with their permit. The Court, however, is not convinced that facilities were available to treat defendant's waste water from 1977 until 1982. The Court finds that the defendant could have complied with its NPDES/NJPDES permit by hauling its waste water off-site from 1982 through April 1987, when it installed the Zimpro treatment plant and by hauling a portion of its waste water off-site from May 1987 through March 1988 in order to operate the facility in compliance with its permit. Defendant's environmental consultant, LeRoy Sullivan, testified that the DuPont Chamberworks facility in South Jersey was available to accept large qualities of waste water for treatment and disposal as early as 1982 or 1983. It has been stipulated by the parties by the DuPont facility did not accept waste water for off-site treatment prior to 1982. Mr. Sullivan estimated that the cost of defendant's waste water off-site for treatment and disposal *1163 was approximately $.11 or .12 per gallon in 1985 dollars. Defendant has no records of the amount of its flow to the Kill Van Kull for any period from September 1977 through June 1985. Based upon Mr. Sullivan's estimate, the Court determines that defendant's discharge from September 1977 through March 1988 was approximately 66 million gallons. Therefore, it is clear that the defendant enjoyed a considerable economic advantage by not hauling its waste water off-site for treatment and neglecting its permit limitations. Using the standards contained in the Act, 33 U.S.C. § 1319(d), the Court will now make findings as to each of the factors to be considered in assessing a penalty. As has already been noted by this Court, § 1319(d), as amended, provides that in determining the amount of a civil penalty the Court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good faith efforts to comply with the application requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. SERIOUSNESS OF DEFENDANT'S VIOLATIONS The Court finds that defendant's 386 violations were very serious in nature. A significant number of the violations exceeded the permit limitations by large amounts. Significantly, some of the defendant's effluent was toxic to marine organisms because defendant's violations involved toxic pollutants and pollutants with the potential to cause environmental harm to the waters into which they were discharged. Moreover, the Court attaches significance to the large number of violations at issue. THE ECONOMIC BENEFIT RESULTING FROM THE VIOLATIONS It is patently clear to this Court that defendant benefited a great deal from its lack of compliance with the permit. It is difficult to quantify the precise amount of benefit that the defendant incurred as a result of its noncompliance. Plaintiffs submit various methods by which this Court should compute the benefit. However, all of these methods result in amounts far in excess of the statutory maximum in this case. Therefore, those computations are of little help in guiding the Court as to what penalty should be imposed. Needless to say, those numbers compel this Court to gravitate towards the higher end of the penalty range, if not the maximum. DEFENDANT'S HISTORY OF VIOLATIONS The Court finds that defendant's 386 violations spanned an 11 year period from 1977 to 1988. Defendant has violated its permit in each of those 11 years. DEFENDANT'S "GOOD FAITH" EFFORTS TO COMPLY WITH ITS PERMIT It is perhaps under this section of the statute that the parties most differ. Plaintiffs attempt to portray the defendant as an egregious violator who, throughout the entire period at issue made no attempts whatsoever to comply with its permit and flagrantly violated both Orders of this Court and EPA decrees. On the other hand, the defendant asserts that it has made good faith efforts to comply all along and that it was lulled into complacency by both the New Jersey Department of Environmental Protection and United States Environmental Protection Agency. This case is a tragedy in many respects. It demonstrates that private industry, left to its own initiative, will procrastinate indefinitely, even at the expense of the environment, any efforts to remedy an obviously poor situation. It further demonstrates that the government agencies empowered with protecting the environment are far from diligent in that regard. In July 1985 defendant's corporate secretary, Ronald Sprague, summarized defendant's attitude towards achieving compliance as follows: We have consistently been unable to meet our permit limitations through any means and have been unwilling to commit *1164 to treatment schemes. Improved housekeeping, vast amounts of concrete and asphalt to prevent ground water intrusion, capturing all available rain water to dilute our contaminated run-off— all these schemes have not improved our water quality. As a result of years of non-compliance, and even though environmental enforcement agencies have appeared complacent, we now face a much different climate. We are being sued by PRIG, an environmental bounty hunting group. This action has forced DEP to change its complacing [sic] and impose a consent order upon PD, the bottom line of which is that by May 31, 1986, PD must have completed pilot work and design work to the point of submitting an application for Treatment Works approval. This application must show that our proposed Treatment Works will enable our out-fall to fully comply, on a routine basis, with all limitations of our permit. [Emphasis in original]. Defendant, at times with the tacit approval of the EPA, was content to go on polluting the Kill Van Kull indefinitely. The pace at which the EPA was requiring defendant to proceed with the treatment facility was minimal at best. It was not until PIRG came on to the scene that the EPA started meaningfully enforcing its permits and required defendant to actually build some sort of waste water facility. Looking at this from a realistic perspective, it is hard to penalize defendant the maximum penalty for its lack of good faith in this regard. Companies generally operate with economic benefits as a goal. Clearly it was less expensive to procrastinate and build temporary stop-gap measures to try and comply with the permit than to build a waste water facility sooner than was absolutely necessary. This Court does not condone defendant's behavior. Companies must be mindful of the environment and take measures to bring themselves into full compliance with all outstanding permits. However, fault also lies with the EPA and with the New Jersey DEP. Throughout defendant's term of non-compliance, these environmental agencies were aware of defendant's activities and took no affirmative measures other than an occasional threatening letter to bring defendant into compliance. A brief recitation of defendant's history is in order. Defendant's parent corporation, Powell Duffryn, USA, Ltd., purchased all of the issued and outstanding stock of the El Dorado Terminals Corporation on July 22, 1977. At that stock purchase Powell Duffryn, USA, Ltd. was informed that it was purchasing the stock of a corporation which was subject to an enforcement action by the United States government for its failure to comply with the terms and conditions of its NPDES permit. The sale agreement specifically provided that: Except as specified in Exhibit F hereto, there are no claims, actions, suits, or proceedings pending or, to the knowledge of Sellers, threatened against or affecting the Sellers, the company ... or any of their respective properties and assets, at law or in equity, or before any arbitrator, or before or by any governmental department, agency or other instrumentality of any kind, domestic or foreign, which may result in any materially adverse change in the business, operations, properties or assets of the Company or in the condition, financial or otherwise, of the Company.... Exhibit F lists the enforcement action by the United States against the defendant as follows: Current status of United States of America v. El Dorado Terminals Corporation, Civil Action No. 77-228 in the United States District Court for the District of New Jersey, including, without limitation, status of Order On Consent of Environmental Protection Agency In the Matter of El Dorado Terminals Corporation, NPDES Permit No. New Jersey 0003361.[1] *1165 Throughout the next several years, defendant received mixed reviews from the EPA and the NJDEP. At times defendant was informed that it was acting in "good faith" by attempting to contain its discharges to within the permit perimeters. See Letters of August 16, 1977 and October 25, 1977 from Steven Rubin, Environmental Engineer, Water Facilities Branch of the EPA, to the defendant (permittee (defendant) has demonstrated a good faith attempt to comply with the permit); NPDES Compliance Inspection Report dated March 15, 1983 from Larry Parker, of the EPA ("I conducted an inspection of the above subject facility on March 11, 1983. The inspection revealed that the permittee has complied in good faith regarding contaminated storm run-off discharge, by constructing dikes and paving areas to confine possible contaminated run-off."). At other times, the EPA wrote to defendant stating that defendant's discharging monitoring reports ("DMR") indicate that the discharge may not comply with certain effluent limitations contained in the permits. See, e.g., Letters dated November 7, 1980 and September 1, 1981 from the Water Enforcement Branch of the EPA to the defendant. Additionally, on November 2, 1981 the Water Enforcement Branch of the EPA wrote to the defendant stating: Your DMR for the reporting period ending August 31, 1981 indicates that the discharge again does not comply with certain of the limitations specified in your permit.... A review of past DMRs reveals a serious and persistent pattern of violations. It is necessary that the corrective measures you are taking be sufficient to ensure future compliance. These inconsistent reports continued until roughly 1984 when plaintiffs filed suit in this Court alleging that "the defendant has violated and continues to violate §§ 301 and 402 of the Federal Water Pollution Control Act by failing to comply with the effluent limitations in its ... permit." On April 5, 1984 a joint EPA and NJDEP inspection of defendant's facility was conducted which concluded that the defendant was still in violation of its effluent permit. In September 1984 the NJDEP issued an Administrative Consent Order which alleged that defendant "has violated the conditions of [its permit] ... in that it has ... failed to comply with the final effluent limitations required by ... said permit." The Administrative Consent Order required defendant to submit a plan and schedule for "design and operation" of a waste water treatment facility and to comply with all terms and conditions of [its permit]." In late 1985, only after substantial pressure was brought to bear on the defendant as a result of plaintiffs' actions, defendant submitted to NJDEP a Treatment Works Approval Report seeking approval to move forward with the Zimpro water treatment facility. A Treatment Works Approval Permit is required under New Jersey law pursuant to N.J.S.A. 58:10A-1, et seq., and N.J.A.C. 7:14A-12.1, et seq., before construction and/or operation of a waste water treatment facility can begin. Throughout 1986, although still not in compliance with its permit, defendant made headway in constructing the Zimpro plant. The Zimpro system was installed and began operations on May 1, 1987. Since the installation of Zimpro the amount of defendant's violations has been reduced significantly. In conclusion, this Court cannot say that defendant's actions rose to the level of "good faith". It is clear to this Court that defendant, motivated possibly by greed or apathy, chose to procrastinate. What makes this particularly distressing is that defendant's actions were done, for the most part, with the EPA's approval. That fact alone weighs in favor of not imposing on the defendant the maximum statutory penalty. ECONOMIC IMPACT OF THE PENALTY ON THE VIOLATOR While it is not binding on the Court, the EPA's 1986 penalty policy provides that the *1166 defendant has the principle burden of establishing that the penalty should be reduced because of the economic impact. Defendant has failed to demonstrate that assessing a severe penalty would jeopardize defendant's continued operation. See Chesapeake Bay Foundation v. Gwaltney, 611 F.Supp. 1542, 1562 (E.D.Va.1985) (the Court was "unpersuaded that any penalty warranted by Gwaltney's violations would jeopardize Gwaltney's continued operation"), aff'd, 791 F.2d 304 (4th Cir.1986), vacated and remanded on other grounds, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Defendant claims that it is in a relatively poor economic position. The Court is not persuaded that this is the case. Defendant is a wholly owned subsidiary of Powell Duffryn, U.S.A., Ltd., a holding corporation organized under the laws of the State of Delaware. Powell Duffryn, U.S.A., Ltd. is owned by Powell Duffryn International. Powell Duffryn International is owned by Powell Duffryn p.l.c., a British corporation which is publicly traded on the London Stock Exchange. During the past 11 years, defendant has expanded the size of its facility to more than double its original size by building a westside expansion and an eastside expansion which is a joint venture with the Dow Chemical Company. In 1985, defendant started an anti-freeze packaging division at its Bayonne, New Jersey facility and at its Lemont, Illinois facility. Defendant also operates two wholly-owned subsidiaries providing bulk terminal storage facilities in Savannah, Georgia and Lemont, Illinois. CONCLUSIONS OF LAW In applying the statutory penalty factors set forth in the act, the Court has considered the civil penalty policy developed by EPA. This Court has recently noted that "although the EPA penalty policy does not have the force of law, it is consistent with the Congressional policy behind the Act". SPIRG v. Hercules, Inc., 29 ERC 1417, 1418 (D.N.J.1989). The Court also noted that "the 1987 amendments, while not incorporating the language and detail expressed in the EPA penalty policy, serve as a reasonable summary of that policy." Id. Civil penalties seek to deter pollution by discouraging future violations. SPIRG v. Hercules, 29 ERC at 1423; SPIRG v. A.T. & T. Bell Laboratories, Inc., 617 F.Supp. 1190, 1201 (D.N.J.1985). To serve this function, the amount of the civil penalty must be high enough to insure that polluters cannot simply absorb the penalty as a cost of doing business. Otherwise, a rational profit maximizing company will choose to pay the penalty rather than incur compliance costs. See EPA, Policy on Civil Penalties (February 16, 1984) at p. 3. Additionally, the probability that a penalty will be imposed must be high enough so that polluters will not choose to accept the risk that non-compliance with go unpunished. Id. The Court is satisfied that the defendant enjoyed significant economic benefit from its failure to bring itself into compliance with its permit sooner than 1988. Based upon this Court's factual findings, that economic benefit is in excess of the statutory maximum penalty of $4,205,000.00. Regrettably, were this Court to assess the statutory maximum, defendant would still have benefited from its noncompliance. Defendant's violations are serious in nature. The seriousness of these violations would also lead this Court to impose the statutory maximum on the defendant. Moreover, the defendant has not demonstrated to the satisfaction of this Court that a severe economic penalty would jeopardize its continued operation. Therefore, defendant's economic status has no bearing on the imposition of penalties. Defendant has also had a long history of violations which would also lead this Court to impose the statutory maximum. With regard to defendant's "good faith" attempts to comply with the Act, the Court will adjust the statutory maximum downwards by $1,000,000.00 because of the actions and/or non-actions taken on behalf of the United States Environmental Protection Agency and the New Jersey Department of Environmental Protection. The *1167 Court finds that had they acted more diligently in making defendant comply, the violations in this case would have ceased long ago. Therefore, those two governmental bodies are partially to blame for the defendant's lack of compliance for the years at issue. The Court explicitly rejects defendant's contention that no penalty should be assessed against it because there has been no adverse impact on the Kill Van Kull as a result of the permit violations. Congress has stated that the objective of the Act is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. § 1251(a). The EPA has recognized that "all pollutants introduced into the environment create some harm or risk, of course, and it will be difficult in many cases to precisely quantify the harm or risk caused by the violation in question." EPA, Civil Penalty Policy (July 18, 1980) p. 10. In SPIRG v. Hercules, defendant argued for a low penalty based on the lack of measurable harm from its violations. In responding to that argument the Court stated The Congressional declaration of goals and policy set forth in 33 U.S.C. § 1251 seeks the restoration and maintenance of the chemical, physical and biological integrity of the nation's water. Hercules' violations have produced at least a potentially destructive impact on the waterways in its area. Therefore, the Court does not agree with Hercules that a relatively low penalty factor should be assigned to this aspect of its violations. Similarly, in PIRG v. C.P. Chemicals, 26 ERC. 2017, 2021 (D.N.J.1987), the Court concluded "if the Court were to adopt defendant's view, ... any permittee could ignore the requirements of its permit with impunity so long as it discharged into already heavily polluted waters. Clearly, any argument that toxic discharges fail to make the receiving waters measurably worse frustrates the Act's intent to improve the quality of our nation's waters." The parties have stipulated, and the Court recognizes that the Kill Van Kull is one of the most industrialized water-ways in the Eastern United States. Therefore, even if defendant's discharge did not measurably damage the Kill Van Kull, the fact that defendant violated its permit by discharging more pollutants than authorized means that the restoration and enhancement of the river's water quality was inhibited and therefore, the objective of the Act was frustrated. The Court must determine whether or not a permanent injunction prohibiting defendant from violating its permit should issue. In SPIRG v. Monsanto Company, Judge Van Artsdalen was faced with a similar situation. Plaintiff sought injunctive relief enjoining defendant from violating its permit. Defendant contended that injunctive relief was not warranted because there were no violations since May of 1986. SPIRG v. Monsanto Company, 83-2040, Slip Op. at 35, 1988 WL 156691 (D.N.J. March 24, 1988). The Court enjoined defendant until April 30, 1990, roughly one year from the date of the Order from violating its permit. The Court reasoned that: [S]o long as Monsanto continues in full compliance with the permit, the added compulsion of an injunction will cause no harm to Monsanto. Conversely, if there are any future violations and no injunction is presently issued, before any sanction, penalty or abatement could be ordered, another EPA order enforcement action or citizen suit enforcement action would have to be instituted with its consequent expense and delay. Id. at 36. The Court continued that especially in light of my serious doubt that in a citizen suit any penalty can be imposed for pre-complaint violations, plus the Gwaltney requirement of good faith allegations of on-going violations ... a later legal action, should there be violations, would appear at best to provide inefficient and inadequate remedies, when compared to entering an injunction in this case." Id. at 36-37. This Court fully adopts the rational of the Monsanto court in enjoining defendants. By Order dated October 28, 1988, this Court denied plaintiff's request for a preliminary *1168 injunction. In doing so, I noted that plaintiff had failed to demonstrate the imminence of irreparable harm absent the issuance of an injunction. PIRG v. P.D. Oil, No. 84-340, Slip Op. at 14 (D.N.J. October 28, 1988). The Court relied in part on the fact that defendant had submitted DMRs which demonstrated that it was in compliance with its permit from May through July 1988. Since that time, the defendant has violated its permit at least once. Therefore, the Court can no longer be satisfied that the defendant will comply with its permit absent the issuance of an injunction. It is well established that the grant or denial of a request for a preliminary injunction is not binding on the issue of a permanent injunction following a trial. See E.P.G., University of Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 1833, 68 L.Ed.2d 175 (1981). In response to the application for an injunction, the defendant argues that since the installation of Zimpro any violations of the permit have been "one time mistakes" and were caused without fault on its part. This argument must fail. As the Court noted in SPIRG v. Monsanto, An NPDES permit requires full compliance. It imposes liability without fault. Fault may be a proper consideration in determining what, if any, penalty to impose but lack of fault does not exempt the discharger from complying with its permit. Id. at 35. The standards for issuance of a permanent injunction are: (1) Actual success on the merits; (2) Irreparable harm to the moving party; (3) Harm to other interested persons, including the non-moving party; and (4) The public interest. Amoco Production Company v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 1404 n. 12, 94 L.Ed.2d 542 (1987). Plaintiffs have clearly met this standard. They have demonstrated actual success on the merits; they have demonstrated irreparable harm to themselves and the public by having defendant discharge pollutants into the waters of the Kill Van Kull, absent the issuance of an injunction. The third factor, harm to other interested persons, including the non-moving party, clearly weighs in favor of granting the permanent injunction. If defendant is in compliance of its permit, it will suffer no injury. There is no additional burden placed on defendant. Lastly, the public interest clearly mandates in favor of a permanent injunction. Defendant was given the opportunity during the course of these proceedings to comply with its permit absent the issuance of a preliminary injunction. Defendant has failed to do so. Therefore, this Court will enjoin defendant from violating the terms and conditions set forth in its NPDES permit. Lastly, the question remains as to how the Court should disperse the penalty. Merely having these monies paid to the Federal Treasury does not, in this Court's judgment, satisfy the purposes of the Act, nor completely discharge this Court's duty in environmental cases. This Court has an affirmative obligation to direct those funds to ameliorate environmental pollution. Paid into the public coffers, the penalties lose their identity and indeed, in all likelihood, will be used for other purposes. By retaining jurisdiction over the disbursement of these penalties, this Court can be assured that the actions taken by plaintiff (a public action group) to protect the environment will be vindicated and the fruits of its labor properly reinvested in the environment. Consistent with the remedial purpose of the Act and the above outlined goals, the Court will appoint three Trustees for the fund to investigate and recommend to this Court how these funds should be used to directly impact environmental problems in New Jersey. The foregoing constitutes my findings of fact and conclusions of law. An appropriate Order accompanies this Opinion. ORDER For the reasons outlined in this Court's Opinion, dated September 19, 1989, *1169 IT IS on this 19th day of September, 1989, ORDERED that: 1. The defendant, Powell Duffryn Terminals, Inc. (P.D. Oil & Chemical Storage, Inc.), shall pay as a civil penalty for violations of its National Pollutant Discharge Elimination System (NPDES) Permit the sum of $3,205,000.00. 2. The defendant, Powell Duffryn Terminals, Inc. (P.D. Oil & Chemical Storage, Inc.), is hereby restrained and enjoined from making or causing any discharges into the Kill Van Kull from its waste water treatment plant in Bayonne, New Jersey that exceed any limitation and/or fail in any way to comply with the terms and conditions of the National Pollutant Discharge Elimination System (NPDES) Permit issued to and effecting Powell Duffryn, including its present permit, NJ 003361, any and all additions and/or amendments and any and all permits that may hereafter be issued by any agency, state or federal, that is issued pursuant to the Clean Water Act, 33 U.S.C. § 1251, et seq. 3. MORRIS PASHMAN, DONALD A. ROBINSON, and JOEL A. PISANO, are hereby appointed Trustees to receive the penalties assessed against the defendant pursuant to this Order and accompanying Opinion, to investigate ways in which said monies may be disbursed to implement the intent of the Opinion and Order and to disburse said funds pursuant to further order of this Court. 4. Pursuant to 33 U.S.C. § 1365(d) which provides that the Court "may award costs of litigation (including reasonable attorneys' and expert witness fees) to any party, when the Court determines such an award is appropriate", plaintiff is directed, within thirty (30) days of this Opinion and Order, to submit to the Court affidavits detailing services rendered and costs incurred in connection with this suit. Defendant will be given an additional twenty (20) days to respond to plaintiffs' affidavits. After receipt of the parties' submissions, the Court will render an appropriate award with regard to fees. NOTES [1] Civil Action 77-228 was resolved by the entry of a Consent Judgment as an Order of this Court on April 14, 1977. In the Consent Judgment, defendant admitted that it had violated its NPDES permit and that it had "failed to construct an appropriate treatment facility for its pollutant discharge in violation of the said NPDES permit ...". That Consent Judgment ordered defendant to pay a civil penalty of $10,000.00 for the violations of the Clean Water Act alleged in the Complaint.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4754 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICHARD DUBLIN, Defendant - Appellant. No. 05-4766 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MARION MAYS, a/k/a Mojo, Defendant - Appellant. No. 05-4782 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DARRELL TODD MAYS, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, District Judge. (CR-03-834; CR-03-726) Submitted: July 5, 2006 Decided: July 13, 2006 Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Langdon D. Long, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant Richard Dublin; Mark W. Hardee, Columbia, South Carolina, for Appellant Marion Mays; James P. Rogers, Columbia, South Carolina, for Appellant Darrell Todd Mays. Reginald I. Lloyd, United States Attorney, Mark C. Moore, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 PER CURIAM: Richard Dublin, Marion Mays, and Darrell Mays appeal the life sentences they received after pleading guilty to drug trafficking and conspiracy charges that involved the killing of James Barrow, a confidential informant working with law enforcement officers in Aiken, South Carolina. Finding no reversible error, we affirm. I. After Dublin was arrested on drug charges, police became suspicious that he might have information concerning the disappearance of Barrow. Dublin agreed to plead guilty to possession with intent to distribute 50 grams or more of crack, in violation of 21 U.S.C. § 841(a)(1), and, as part of his plea agreement, agreed to cooperate with the government by providing truthful information about his drug activities and what he knew about Barrow’s disappearance. Dublin understood that if he breached the plea agreement by failing to be truthful, the government could seek the maximum sentence of life in prison and use against him all the information he provided. Following his plea, Dublin gave a series of interviews about the disappearance of Barrow, but, each time, his account changed. A consistent theme, however, was that Marion Mays and Darrell Mays were also involved. Although the government notified Dublin that he was in breach of his plea agreement, prosecutors wanted to call 3 him as a witness at the trial of the Mays brothers, who were charged with a variety of drug and firearms counts, including the drug-related murder of Barrow. However, because the government would make no promises to Dublin about the sentence it would recommend, Dublin refused to testify. Shortly after their trial commenced in January 2005, the Mays brothers decided to plead guilty. The Mays brothers agreed to provide truthful information to the government and to submit to polygraph examinations. In turn, the government agreed not to use against them any incriminating information they provided, unless the information was already in the government’s possession or they breached the plea agreement or committed perjury. The Mays brothers also acknowledged that if they did not pass their polygraphs examinations to the satisfaction of the government, the government’s obligations would become void. The Mays brothers each acknowledged that their sentences would ultimately be determined by the district court. The Mays brothers both admitted that they were not completely truthful in their initial interviews concerning the disappearance of Barrow. In fact, when agents picked up the brothers for their first interviews, they noticed Marion with a letter that he later admitted was intended to tell Darrell what to say. Additionally, Marion’s polygraph examination showed inconclusive results concerning the truthfulness of his account about Barrow’s body and 4 results indicating deception concerning an offer he allegedly made to a co-defendant to kill a government informant and the amount of drugs he gave that co-defendant. Though the defendants’ stories changed from interview to interview, grisly details of the Barrow murder finally emerged. The defendants eventually each admitted their role in Barrow’s murder. According to their accounts, they ambushed Barrow, bound him with duct tape, placed him in the trunk of a car, and took him to the woods where they each shot him. Darrell Mays disposed of Barrow’s truck, and Marion Mays returned to the scene with a chainsaw, where he dismembered Barrow’s body. Marion Mays then removed Barrow’s remains, poured acid on them, and burned them. At sentencing, the district court found that Dublin and Marion Mays had breached their plea agreements by providing untruthful information. When the district court heard evidence concerning the sentencing issues, the government called Darrell Mays to testify. On the stand, Darrell Mays admitted his role in the murder, but, in what the government contends was an effort to avoid inculpating his brother, claimed to have memory problems. He stated that Dublin was behind the murder and that he did not believe his brother was involved. When confronted with his prior, inconsistent statements about the murder, he claimed that he lied when giving them. He 5 then admitted that he breached his agreement to provide truthful information.1 As to each defendant, the district court considered evidence of the drug transactions and the drug-related murder of Barrow. The district court sentenced each defendant to life in prison, and Marion Mays to thirty years each for three additional counts against him. The defendants appeal their sentences. II. We review sentences for unreasonableness, though “reasonableness is not measured simply by whether the sentence falls within the statutory range, but by whether the sentence was guided by the Sentencing Guidelines and by the provisions of § 3553(a).” United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. den., 164 L. Ed. 2d 828 (2006). We review de novo purely legal questions and we review findings of fact for clear error. See id. “An error of law or fact can render a sentence unreasonable.” Id. The defendants claim that the district court should not have sentenced them for murder when they had not been convicted by a jury of murder. We note first that this argument mischaracterizes what occurred in district court. Each defendant pleaded guilty to 1 Darrell Mays had agreed both in his plea agreement and in a later proffer agreement to provide truthful information. 6 and was convicted of at least one drug-related charge that carried a possible sentence of life in prison. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. The defendants, therefore, were not “sentenced for murder,” but were sentenced for violating our nation’s drug laws. Their role in the drug-related killing of a government informant simply provided the district court greater discretion to sentence them to the maximum punishment authorized by law for these drug-related charges, namely, life in prison. Turning to the reasonableness of the sentences, we note that, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound by the range prescribed by the sentencing guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in determining a sentence post-Booker, sentencing courts are still required to calculate and consider the applicable guideline range as well as the factors set forth in 18 U.S.C. § 3553(a), making all factual findings appropriate for that determination. See id. If the sentence imposed is within the properly calculated guideline range, it is presumptively reasonable. See Green, 436 F.3d at 456. Under our now advisory sentencing guidelines, where a defendant is convicted of violating 21 U.S.C. §§ 841(a)(1) or 846 and a “victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States,” the 7 sentencing court should look to the base offense level used for first degree murder, which is 43. See U.S. Sentencing Guidelines Manual §§ 2A1.1, 2D1.1(d)(1) (2004). Regardless of the defendant’s criminal history category, the advisory sentencing guideline range for a base offense level of 43 is life in prison. See id. at Ch. 5, Pt. A. Here, the district court had adequate evidence before it, including the admissions of each defendant, to conclude that the defendants were directly involved in the drug-related killing of Barrow, a confidential government informant. The district court was free to use the defendants’ admissions of their roles in Barrow’s killing, as there was adequate evidence to show that each defendant breached his agreement to provide truthful information. For example, there was sufficient evidence to conclude that Dublin provided a series of differing stories about his role in the murder and was notified by the government that he was in breach of his agreement; that Marion Mays was not forthcoming with all of the details concerning his role in the murder and failed a polygraph test; and that Darrell Mays was not completely truthful in his first interview and lied to investigators about his brother’s role in the murder. As a result, the district court was permitted to use the defendants’ admissions, weigh all the evidence, and apply 8 the murder cross reference to arrive at an advisory guideline range of life in prison for each defendant.2 Darrell Mays further argues that the district court failed to provide an adequate statement of reasons for his sentence under 18 U.S.C. § 3553(a). We note initially that, as described above, Darrell Mays’ sentence fell within the advisory guideline range and was, therefore, presumed to be reasonable. See Green, 436 F.3d at 456. Furthermore, the district court was not required to discuss every § 3553(a) factor on the record. See United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006). Moreover, when the district court conducted its proportionality analysis under United States v. Kratsas, 45 F.3d 63, 66 (4th Cir. 1995), it explained that Darrell Mays’ offense was “extremely grave,” that he was involved in a conspiracy with one of South Carolina’s major cocaine and crack suppliers, and that he played a role in the drug-related murder of a confidential informant. The district court concluded that life in prison was not disproportionate in comparison with other sentences under the guidelines, and that state statutes in our circuit disclose the existence of similarly severe sentencing for narcotics violations of this magnitude. J.A. 587. These findings under the Kratsas proportionality analysis touch on many of the 2 For these reasons, we reject Darrell Mays’ separate argument that the district court erred in concluding that he breached his plea agreement. 9 factors in § 3553(a) and support the reasonableness of Darrell Mays’ sentence. III. For the foregoing reasons, we affirm the defendants’ sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 10 

123 Cal.App.2d 345 (1954) C. DANIELS, Respondent, v. ROY W. PITMAN, Appellant. Civ. No. 19838. California Court of Appeals. Second Dist., Div. Two. Feb. 18, 1954. Samuel A. Rosenthal and Norman Warren Alschuler for Appellant. Jacob Paull for Respondent. McCOMB, J. Defendant appeals from orders denying (1) his motion to set aside a default judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, and (2) his motion to reconsider the previous order. Facts: Plaintiff commenced an action to recover the sum of $4,000 representing a balance of defendant's indebtedness of $7,000 to plaintiff's assignor which was evidenced by a writing executed by defendant. The case was originally set for trial July 27, 1951, but due to the fact that certain depositions had not been returned it was ordered off calendar. *346 April 1, 1952, the commissioner appointed to take the depositions wrote a letter to the attorney of record for defendant enclosing copies of the interrogatories and cross-interrogatories put to the witnesses, and advising him that the original interrogatories had been transmitted to the clerk of the court. Thereupon plaintiff made a motion to have the case restored to the trial calendar and an order was entered setting the trial for July 31, 1952. Notice of motion to restore the case to the calendar was mailed to the attorney of record for defendant enclosed in an envelope containing plaintiff's attorney's return address. The same was never returned to plaintiff's attorney by the post office department. On April 17, 1952, plaintiff's attorney received a telephone call from a woman who represented that she was Mrs. Rollinson, the wife of defendant's attorney. She stated that her husband was due to come out of the hospital in about a week, and that it would take a little time for his recovery, and on that basis requested a continuance of the hearing of the motion to restore the case to the calendar. Plaintiff's attorney advised her that since the case would be set for trial for sometime in the future no purpose would be served in continuing the hearing; that after the trial date had been set, notice of trial would be mailed to the attorney for defendant and if for any reason his health would not permit his trying the case on that date, plaintiff's attorney would be willing to discuss with him a continuance of the trial. On April 10, 1952, in addition to mailing to the attorney for defendant a copy of the notice of motion to restore the case to the calendar, there was mailed under separate cover a copy of a notice to produce. This document was never returned by the post office department to plaintiff's attorney. April 18, 1952, a written notice of trial, indicating the case had been reset for trial on July 31, 1952, was mailed to the attorney for defendant at his office address enclosed in an envelope which bore the return address of plaintiff's attorney. This document was not returned to the attorney for plaintiff by the post office department, nor did plaintiff's attorney hear from defendant or his attorney between April 18, 1952, and the time that a default judgment was rendered against defendant on July 31, 1952. It likewise appears that on or about March 12, 1952, defendant visited the attorney for plaintiff without any prior notice, representing that he was visiting such attorney with the *347 knowledge and acquiescence of his own counsel. Defendant stated that the purpose of his visit was to ascertain the address of plaintiff's assignor, since he was desirous of discussing with the assignor a business deal similar to the one which resulted in his executing the written acknowledgment of indebtedness for $7,000, and that by such meeting he could in all probability work out a solution to the satisfaction of all persons concerned. The attorney for plaintiff referred defendant to the attorney for plaintiff's assignors from whom he might obtain the address he desired and stated to defendant that he doubted that any business transaction could be consummated with plaintiff's assignor in view of the pendency of the present action, and that if defendant desired to enter into any further negotiations he would first have to make a disposition of the pending action. He further advised defendant that in spite of the fact he was contemplating contacting plaintiff's assignor he would proceed with the pending action as soon as the depositions were received, and that, in all probability, based upon a motion which would then have to be made to restore the case to the calendar, the trial would probably take place sometime in June or July of 1952. On August 8, 1952, a copy of the memorandum of costs and disbursements together with a copy of notice of entry of judgment were mailed to the attorney for defendant in an envelope which bore plaintiff's attorney's return address. This envelope was not returned by the post office department. Defendant admitted that he had learned of the judgment on or about August 20, 1952. Defendant's original motion was based upon two grounds: 1. Mistake, inadvertence, surprise and excusable neglect; and 2. Extrinsic fraud of plaintiff and plaintiff's attorney. No facts were shown to establish any fraud. Therefore we need not consider the correctness of the court's ruling as to the second ground. We, of course, must disregard any statements in defendant's affidavits contradictory of those of plaintiff's affidavit, since, when there is substantial conflict in the facts presented by affidavits, the determination of the controverted facts by the trial court will not be disturbed on appeal. (Baratti v. Baratti, 109 Cal.App.2d 917, 922 [12] [242 P.2d 22]; Reeves v. Reeves, 34 Cal.2d 355, 360 et seq. [209 P.2d 937].) We are thus presented with this sole question: Under the foregoing facts did the trial court abuse its *348 discretion in denying defendant's motions to set aside the default judgment entered against him? No. [1] Mr. Justice Traynor, in Coyne v. Krempels, 36 Cal.2d 257, 263 [8] [223 P.2d 244], thus accurately states the rule: "A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal." [2] It is likewise settled that in the exercise of its discretion under section 473 of the Code of Civil Procedure, in setting aside a default judgment, it should appear that something more than mere inadvertence or neglect without reasonable excuse or justification existed, and that the inadvertence or neglect in question is not the result of mere forgetfulness or neglect but is based on other circumstances which would make the neglect excusable. In the instant case the above facts are supported by affidavits in opposition to defendant's motions and such facts do not show any excusable mistake, surprise or neglect. Therefore the trial court did not abuse its discretion in concluding that no proper showing of inadvertence or excusable neglect had been made. The orders are and each is affirmed. Moore, P. J., and Fox, J., concurred.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs July 23, 2014 at Knoxville STATE OF TENNESSEE v. MICHAEL KENT WALKER Appeal from the Criminal Court for Putnam County No. 11-0765 Leon Burns, Judge No. M2012-01134-CCA-R3-CD - Filed August 5, 2014 Pursuant to a plea agreement, the Defendant, Michael Kent Walker, pleaded guilty to selling Schedule I and Schedule II controlled substances in a drug-free zone. The plea agreement provided that the Defendant would receive concurrent Range I sentences for one Class B felony and one Class C felony, with the trial court to determine his sentences. Following a sentencing hearing, the trial court sentenced the Defendant to serve an effective sentence of twelve years of incarceration. The Defendant asserts that the trial court abused its discretion in ordering an effective twelve-year sentence. After a thorough review of the record and applicable law, we affirm the trial court’s judgments. Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT, J R., J. and J OE H. W ALKER, III, S P.J., joined. John Philip Parsons, Cookeville, Tennessee for the Appellant, Michael Kent Walker. Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Randy York, District Attorney General; and Anthony Craighead, Assistant District Attorney General for the Appellee, State of Tennessee. OPINION I. Background and Facts This case arises out of the Defendant’s sale of drugs within one thousand feet of Baxter Branch Library in Putnam County, Tennessee. A Putnam County grand jury indicted the Defendant for two counts of sale and delivery of a Schedule II controlled substance (oxycodone), two counts of the sale and delivery of a Schedule I controlled substance (heroin), and four counts of violation of the Drug-Free School Zone Act. On January 10, 2012, pursuant to a negotiated plea agreement, the Defendant entered guilty pleas, as a Range I offender, to sale of a Schedule II controlled substance in a drug-free zone and sale of a Schedule I controlled substance in a drug-free zone. The remaining charges in the indictment were dismissed. The State offered the following recitation of the facts in support of the trial court’s acceptance of the guilty pleas: [O]n August the 9th of 2010, agents with the state High Addiction Drug Task Force Agency were conducting an investigation into [the Defendant’s] sale of controlled substances from his residence located on 314 Alexander Street in Baxter. The [S]tate would show that an undercover officer, introduced by a confidential informant, encountered the [D]efendant at that location and did purchase on August the 9 th two Schedule II, Oxycodones, for eighty dollars ($80.00). That substance was confirmed by a TBI Laboratory analysis. This falls as a class “C” felony, Your Honor. And September the 1st 2010, this operation continued, b[y] the same undercover officer introduced by the confidential informant, then purchased what the TBI Lab would later confirm to be point 0 nine grams (.09 gm.) of Schedule I, heroine, for sixty dollars ($60.00). And both of these . . . sales, the State would show, occurred within 1,000 feet of the Baxter Branch Library, located at 200 Main Street, in - - Baxter. Finding a factual basis for the guilty pleas, the trial court accepted the Defendant’s guilty pleas. The agreement provided that the sentences for the convictions would run concurrently to each other and consecutively to a revoked probation sentence, with the trial court to determine the length of the sentences. The plea agreement provided that the Defendant would be sentenced as a Range I standard offender, and the plea agreement did not enhance the offense level pursuant to Tennessee Code Annotated section 39-17-432(b)(1). At a sentencing hearing held on March 29, 2012, the parties presented the following proof: Lindsey Houston, a Tennessee Board of Probation and Parole officer, testified that she prepared the Presentence Investigation Report on the Defendant. The trial court admitted the Presentence Report into the record. Ms. Houston agreed that the Defendant’s criminal history spanned over seven pages of the Presentence Report. She acknowledged that many of the offenses were misdemeanors involving “worthless checks.” The Defendant also committed other misdemeanor offenses such as possession of drug paraphernalia, possession -2- of marijuana, public intoxication, theft, DUI, “soliciting to commit some substance abuse,” criminal impersonation, fraudulent use of a credit card, and unlawful possession of a weapon. Ms. Houston testified that the Defendant had five felony forgery convictions. In 2004, the Defendant was convicted of sale or delivery of a Schedule II controlled substance and ordered to serve five years on probation. The Defendant’s probation sentence was revoked on January 9, 2006 and he was ordered to serve the sentence in incarceration. The Defendant received a two year probation sentence for a conviction involving a Schedule IV controlled substance. This probation sentence was also revoked on January 9, 2006. In 2001, the Defendant pled guilty to misdemeanor theft and was sentenced to probation. The Defendant violated this probation sentence as well. Ms. Houston testified that the Defendant had criminal convictions in the State of California for: reckless driving, assault with a deadly weapon, “under the influence of a controlled substance,” and two counts of forgery. He received a probation sentence for one of the forgery convictions. Ms. Houston testified that the Defendant was fifty-five years of age. He had been disabled since 1992 and unemployed for “numerous years.” On cross-examination, Ms. Houston confirmed that the Defendant had seven felony convictions in the State of Tennessee and one felony conviction in the State of California. Ms. Houston agreed that the Defendant had advised her that he received Social Security Disability benefits due to head and back injuries. Ms. Houston confirmed that the Defendant was currently serving a four-year sentence, for which his probation had been revoked on January 10, 2012. She was unaware of when that sentence expired. After hearing the evidence, the trial court made the finding that the Defendant had an extensive history of criminal activity and had failed to comply with previous sentences involving release in the community on probation or parole. Based upon this, the trial court enhanced the Defendant’s sentences to the maximum within the range, imposing a six-year sentence for the sale of a Schedule II controlled substance and a twelve-year sentence for the sale of a Schedule I controlled substance. It is from these judgments that the Defendant now appeals. II. Analysis The Defendant argues that the trial court failed to make a proper record to justify the sentence. He asserts that the trial court “rushed the judgment” at the sentencing hearing. The State responds that the trial court imposed a sentence consistent with the purposes and principles of the Sentencing Act and that the Defendant has failed to show that the sentence is improper. We agree with the State. -3-  In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court announced that “sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” 380 S.W.3d 682, 708 (2012). A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in light of the factual circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial evidence that would support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold the sentence “so long as it is within the appropriate range and the record demonstrates that the sentence is otherwise in compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the appropriate range and properly applies the purposes and principles of the Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707. We are also to recognize that the defendant bears “the burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In determining the proper sentence, the trial court must consider: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on the mitigating and enhancement factors set out in Tennessee Code Annotated sections 40-35-113 and -114; (6) any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A. § 40-35-210 (2012); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of potential for rehabilitation or treatment of the defendant in determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2012). At the sentencing hearing, the trial court sentenced the Defendant, as a Range I, standard offender, to six years, the maximum in the sentencing range, for sale of a Schedule II controlled substance, a Class C felony, and to twelve years, also the maximum in the sentencing range, for the sale of a Schedule I controlled substance, a Class B felony. About its decision to impose maximum sentences, the trial court made the following findings: Probation has been revoked more than once, not only here but in California, but particularly here in Tennessee. -4-  Many, many offenses. Forgeries, thefts, drug charges, DUIs. An extensive history. And so I think that, based upon the extensive history, and the failure to comply, that those factors would be justified to enhance to the maximum within the range. The record supports the trial court’s findings. The trial court found that “the [D]efendant ha[d] a previous history of criminal convictions [or] criminal behavior in addition to those necessary to establish the appropriate range.” See T.C.A. § 40-35-114(1). Our review of the record shows that the Defendant had seven felony convictions in the State of Tennessee, one felony conviction in the State of California and numerous misdemeanor convictions. The trial court also found that the Defendant had “failed to comply with the conditions of a sentence involving release into the community.” See T.C.A. § 40-35-114(8). The record evidences that, in the past, trial courts had ordered sentences involving probation and that the Defendant failed to comply with the conditions of his release on at least three occasions. Moreover, the Defendant’s probation sentence in another case was revoked on the same day he entered a guilty plea as to these offenses. The record shows that the trial court “place[d] on the record [ ] what enhancement or mitigating factors were considered, . . . as well as the reasons for the sentence” in ordering a within-range sentence. Bise, 380 S.W.3d at 706 n. 41 (citing T.C.A. § 40-35-210(e)). The Defendant has not established that the trial court abused its discretion. III. Conclusion After a thorough review of the record and relevant authorities, we conclude that the trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgments. _________________________________ ROBERT W. WEDEMEYER, JUDGE -5- 

792 F.2d 140 Wardv.McNamara 85-6562 United States Court of Appeals,Fourth Circuit. 6/11/86 1 M.D.N.C. VACATED AND REMANDED

878 F.2d 1443 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(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.Robert W. POWERS, Plaintiff-Appellant,v.The UNITED STATES of America and The State of South Dakota,Defendants-Appellees. No. 89-1182. United States Court of Appeals, Federal Circuit. March 21, 1989. Before FRIEDMAN, BISSELL and ARCHER, Circuit Judges. ARCHER, Circuit Judge. ORDER 1 The United States moves to dismiss for lack of jurisdiction. Robert W. Powers has not filed a response. 2 Powers filed a complaint in the United States District Court for the District of Columbia. Upon review of the complaint and the government's clarifying statements, it appears that Powers' suit concerned complaints about an assault and battery verdict against him in South Dakota, complaints about a state civil verdict against him in South Dakota, subsequent seizure of his property to satisfy the judgment, complaints about the alleged failure of government officials to assist him in his "due process" and "equal protection" claims, and $40 million in "exemplary damages." 3 We, sua sponte, consider whether summary affirmance is appropriate."1 Summary affirmance is appropriate when the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case. Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.1969). Here, we have reviewed Powers' complaint, the district court's order, and the papers submitted on motion, and have determined that summary affirmance is proper. Powers' claims against the government are totally without merit and, indeed, are frivolous.2 4 Upon consideration thereof, IT IS ORDERED THAT: 5 (1) The court, sua sponte, summarily affirms the district court's dismissal of Powers' complaint. 6 (2) The United States' motion to dismiss is moot. 1 The government asks us to dismiss on the ground that we lack jurisdiction. However, the circumstances here are similar to those in Galloway Farms, Inc. v. United States, 834 F.2d 998 (Fed.Cir.1987) where this court determined that the best course was to review the district court's dismissal on the merits 2 No party has suggested that we transfer this appeal. We would decline to do so in any event in the "interest of justice." See Galloway Farms, 834 F.2d at 1000-01

535 U.S. 961 PEREZ-MONCADAv.UNITED STATES. No. 01-8417. Supreme Court of the United States. March 25, 2002. 1 C. A. 11th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 198.

843 F.2d 498 Robinsonv.Butler* NO. 87-3776 United States Court of Appeals,Fifth Circuit. MAR 23, 1988 1 Appeal From: M.D.La. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

Filed 3/9/16 Pierce v. Regents of the University of California CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN SAMUEL PIERCE, B262545 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC548635) v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, Robert O’Brien and Stephanie Bowick, Judges. Affirmed. Samuel Pierce, in pro. per., for Plaintiff and Appellant Munger, Tolles and Olson, Bradley S. Phillips and Laura D. Smolowe; Office of the General Counsel, University of California, Charles F. Robinson, Karen J. Petrulakis and Margaret L. Wu, for Defendant and Respondent. ____________________________  Samuel Pierce filed a complaint against the Regents of the University of California alleging he had been denied admission to The David Geffen School of Medicine at UCLA on the basis of his race, in violation of Article 1, Section 31 of the California Constitution. Regents demurred, arguing that the allegations in the complaint demonstrated Pierce was unqualified to attend the medical school, and therefore suffered no injury as the result of any discriminatory conduct. The court sustained the demurrer without leave to amend. On appeal, Pierce argues the trial court erred in sustaining the demurrer because: (1) the complaint adequately alleges he was denied admission to the medical school as the result of a Spanish language proficiency requirement that operates as an unlawful ethnic preference; (2) the pleaded facts do not show he lacked the qualifications to attend the medical school. We affirm, concluding that the school’s alleged Spanish language requirement does not, on its face, qualify as an unlawful racial or ethnic preference. FACTUAL AND PROCEDURAL BACKGROUND A. Summary of the Complaint Samuel Pierce, acting in propria persona, filed a complaint against the Regents of the University of California (Regents) arising from his denial of admission to The David Geffen School of Medicine at UCLA (the medical school). The operative pleading alleged Pierce had graduated from the University of Pennsylvania with a 3.52 grade point average. It further alleged Pierce had received the highest possible score on the science sections of the “Medical College Admission Test” (MCAT), and that his composite MCAT score placed him in the top 99.8 percentile of all test takers. According to Pierce’s pleading, these “objective” factors demonstrated there was no reasonable basis to conclude he was any less qualified than other students who had been accepted into the school. The complaint alleged that in February of 2011, the medical school had sent Pierce an email inviting him to “an interview in support of . . . his application.” When Pierce arrived at the interview, administrators handed him a “form which asked whether [he] 2 was proficient in the Spanish language.” The form also indicated that Spanish proficiency was a “mandatory” requirement for admission. Pierce was then told his interview would be “scored qualitatively,” and that the school would offer admission to the students who received the highest interview scores. Pierce alleged he performed satisfactorily during his interview, asserting that his answers “provided no basis for [the medical school] to reject [him] for admission nor to conclude that [he] was in any way less capable than [other] individuals” who had interviewed that day. Despite his “unsurpassed…objective qualifications” and satisfactory interview performance, Pierce received a letter in August of 2011 informing him he had not been accepted into the medical school. On February 13, 2013, Pierce, then a student at UCLA’s law school, met with the university chancellor, Gene Block, to discuss his medical school application. Pierce informed Block he believed the medical school’s decision to reject his application “was a probable deprivation of his rights under the California Constitution, Article 1, Section 31.” In support of this allegation, Pierce explained to Block that UCLA law professor Richard Sander had conducted research showing that “persons responsible for admission to degree programs offered at [UCLA] [were] using race, ethnicity, sex [and] national origin as pivotal factors in the decision of whether to admit an individual, through a scheme…utilizing stereotypes and prejudices with respect to an individual applicant’s name.” Pierce then “demanded that Chancellor Block . . . allow him to articulate [sic] into the [medical] program. Chancellor Block “manifested agreement,” telling Pierce he “would be a doctor.” During a subsequent meeting with UCLA’s associate vice chancellor, Pierce insisted that the medical school comply with Block’s promise of admission. The medical school’s admissions committee rejected the demand, explaining that Chancellor Block did not have authority to make such decisions. Pierce’s complaint alleged two causes of action related to his denial of admission. The first claim, captioned “Specific Performance,” alleged the medical school was “obligated to” admit Pierce based on the statements Block had made to him during their February meeting. Pierce asserted that Block’s statements constituted an enforceable 3 agreement granting him admission to the medical school and that defendant had “refused to tender the agreed performance.” The second claim, captioned “Deprivation of rights under the California Constitution, Article 1, Section 31,” alleged that the medical school had “operated the admissions process” in a manner that provided “preferential treatment” to persons of “Black” and “Hispanic ethnicity.” Specifically, admissions officers relied on “stereotypes about an individual’s name, address, visual appearance, family names, place of birth and other biographical data…to gauge the national origin of [applicants].” Pierce alleged several factors demonstrated the medical school utilized racial preferences in its admissions process. First, he asserted professor Sander’s statistical analysis of UCLA admissions data showed “persons of Asian or White ethnicities are admitted under a different standard than persons of Hispanic or Black ethnicity,” and that “an individual who is applying to [UCLA] will have a dramatically less probability of obtaining admission if his or her application reflects that he or she is White or Asian than if the otherwise exactly similar application reflects that he or she is Black or Hispanic.” Second, Pierce alleged the medical school’s Spanish language proficiency requirement showed that “persons of Hispanic ethnicity definitionally receive[d] preferential treatment.” According to Pierce, the language requirement was “not necessary for study in the [medical program],” had been adopted without “quantitative study” and served solely to favor Hispanic applicants. Third, Pierce contended “the average [MCAT] score of [students] enrolled [in the medical school] of White or Asian ethnicity [wa]s higher than the average score of [students] of Black or Hispanic ethnicity,” suggesting that Black and Hispanic candidates were evaluated under different testing criteria. Pierce further alleged that the medical school’s reliance on racial preferences was “the proximate cause and the cause in fact of the denial of [his] admission.” Pierce contended there was “no articulable basis to argue that any of the students . . . admitted [into the medical school]” were “more qualified” than he, and that the school had “no reason to conclude based on academic record, volunteer work and other extracurricular activity, and/or personal character that other persons would be more suitable for the 4 [medical school].” As a remedy, Pierce sought an “order prohibiting [the medical school] from denying [him] admission[.]” B. Regents’s Demurrer Regents filed a demurrer arguing that the allegations in the complaint failed to state a valid claim. On the first cause of action, Regents argued that “specific performance” was not “cognizable as a stand-alone claim,” but rather was an “equitable remedy.” It also argued that even if construed as “a claim for breach of oral contract seeking specific performance of a remedy,” the claim failed as a matter of law because: (1) the statements Block had allegedly made to Pierce were “too vague [and indefinite] to constitute a binding agreement”; (2) Pierce had alleged no facts demonstrating Block “had the authority to enter into an admissions contract”; (3) Pierce had failed to “allege adequate legal consideration” for the promise of admission; and (4) “specific performance” (i.e., an order requiring admission) was not a proper remedy. On the second cause of action, Regents argued that Pierce lacked standing to assert his discrimination claim “because he fail[ed] to allege facts showing he was qualified for admission into the [medical school].” More specifically, Regents argued the pleading provided no basis to conclude he was “at least qualified for the program” because: (1) Pierce had not alleged his “GPA was . . . in the competitive range for admission”; (2) he had “admit[ted] he does not know how he was scored on his interview”; and (3) he had failed to allege he spoke sufficient Spanish to meet the school’s purported “Spanish proficiency criterion.” Regents also argued that, to the extent Pierce was attempting to assert a “citizen suit” challenging the medical school’s admission policies on their face, he had pleaded no facts beyond “conclusory allegations” demonstrating that the school utilized any form of racial preference. Regents contended that even if Pierce was able to prove the school required proficiency in Spanish as a condition of admission, such a policy did not qualify as “a racial classification” because it applied to all persons regardless of their race or ethnicity. Regents also argued that the statistical evidence described in the pleading was 5 insufficient to raise an inference that the medical school had a policy of utilizing racial preferences. Pierce’s opposition focused primarily on his contract claim, asserting that whether Chancellor Block had authority to admit him into the medical school and whether Block’s statements constituted an enforceable agreement were questions of fact not suitable for demurrer. Pierce also argued he had standing to challenge his admission decision on the basis of racial discrimination because the complaint specifically alleged his MCAT scores, academic record and extracurricular activities were “vastly superior to typical entering students in UCLA’s medical school.” Following a hearing, the court issued a minute order sustaining the demurrer “without leave to amend on the grounds stated in the demurrer.”1 On January 9, 2015, the court entered a judgment of dismissal. DISCUSSION A. Standard of Review We review de novo the trial court’s judgment sustaining the demurrer without leave to amend. (See McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] . . . [W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Kirwan).) “[S]uch a showing need not be made in the trial court so long as it is made to the reviewing court.” (Careau & Co. v. Security 1 Pierce did not include a transcript of the demurrer hearing in the record. 6 Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386; see also Code Civ. Proc., § 472c, subd. (a).) “[T]he judgment will be affirmed if it is proper on any grounds raised in the motion even if the court did not rely on those grounds.” (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.) B. Pierce Has Abandoned His Claim for Specific Performance Pierce’s opening appellate brief contains no argument regarding his specific performance claim, which alleges that Regents breached Chancellor Block’s oral promise that Pierce would be granted admission to the medical school. In its respondent’s brief, Regents argues that Pierce’s failure to address his specific performance claim constitutes an abandonment of the claim. Pierce, who did not file a reply brief, has elected not to respond to this argument.2 We therefore deem the specific performance claim to be abandoned. (See Ram v. Onewest Bank (2015) 234 Cal.App.4th 1, 9 fn. 2 [on appeal from a judgment sustaining a demurrer, an appellant’s failure to advance arguments in connection with a cause of action set forth in the complaint constitutes an abandonment of that claim]; Bagley v. International Harvester Co. (1949) 91 Cal.App.2d 922, 926; Cf. In re Sade C. (1996) 13 Cal.4th 952, 994 [because an “appealed-from judgment is presumed correct,” issues not raised in an appellant’s brief are deemed waived or abandoned].) C. On its Face, the Medical School’s Alleged Spanish Language Requirement Does Not Violate Article 1, Section 31 of the California Constitution In his opening appellate brief, Pierce articulated two reasons why the trial court erred in sustaining Regents’s demurrer to his claim alleging that the medical school utilized unlawful racial or ethnic preferences in the admissions process. First, he argued that the Spanish language proficiency requirement described in the complaint was, in itself, an unlawful racial preference that favors Hispanics. Second, he contended his complaint adequately alleges that “[a]part from the Spanish requirement for admission,” 2 Pierce also elected not to present any argument on his specific performance claim during oral argument before this court. 7 medical school personnel “effectuat[ed]” additional “racial preferences for Blacks and Hispanics” that resulted in his denial of admission.3 During oral argument before this court, however, Pierce clarified his discrimination claim is now predicated solely on the allegation that the medical school denied him admission because he is not proficient in Spanish. Pierce further clarified he is claiming the Spanish language requirement is “inextricably intertwined with race,” and that “putting it into operation” was, in itself, an unlawful racial preference favoring Hispanics. His complaint contains similar statements, alleging the language requirement “definitionally” provides Hispanic applicants “preferential treatment.” Based on his statements at oral argument and within his complaint, we understand Pierce to be claiming that the school’s alleged Spanish language proficiency requirement is unconstitutional on its face because it constitutes a racial or ethnic preference in violation of Section 31 of Article I of the California Constitution. “A facial challenge to the constitutional validity of a statute[,] . . . ordinance [or policy] considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.]” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) “A facial challenge is ‘“the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [provision] would be valid.”’ [Citation.]” (T.H. v. San Diego Unified School Dist. (2004) 122 Cal.App.4th 1267, 1281.) The moving party “‘“cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute… . Rather, [the moving party] must demonstrate that the challenged [action] inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions.”’ [Citations.]” (Tobe, supra, 9 Cal.4th at p. 1084.) 3 We presume this second argument relates to allegations in the complaint asserting that medical school personnel consider each applicant’s “race, sex, color, ethnicity, and national origin” in the admissions process, which they determine based on “stereotypes about an individual’s name, address, visual appearance, family names, place of birth and other biographical data.” 8  Section 31 of Article I of the California Constitution provides (in relevant part): “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.’” For the purposes of section 31, the term “‘[d]iscriminate’” means “‘to make distinctions in treatment; show partiality (in favor of) or prejudice (against)’”; the word “‘preferential’” means “‘giving preference,’ which is ‘a giving of priority or advantage to one person . . . over others.’ [Citation.]” (Hi–Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 559.) The alleged Spanish language proficiency policy set forth in the complaint does not, on its face, violate section 31 because it does not show “partiality,” “prejudice” or “preference” to any student on the basis of his or her “race, sex, color, ethnicity or national origin.” Rather, the alleged policy distinguishes between candidates based on their ability to speak a certain language. Contrary to Pierce’s assertions, persons of Hispanic ethnicity are not treated any more favorably on the face of the policy than persons of non-Hispanic origin: a Hispanic applicant who lacks proficiency in Spanish is no more eligible for admission than a non-Hispanic applicant who lacks such proficiency; similarly, a Hispanic applicant who is proficient in Spanish gains no advantage over a non-Hispanic applicant who is likewise proficient. (See generally American Civil Rights Foundation v. Berkeley Unified School Dist. (2009) 172 Cal.App.4th 207, 217-218 (Berkeley Unified) [school district policy that considered the racial composition of a student’s neighborhood did not violate section 31 because any preference provided “is on the basis of . . . factors relating to the . . . composition of the student’s neighborhood . . ., not the student’s race. [¶] . . . [¶] White and African-American students from the same neighborhood receive the same diversity rating and the same treatment”].) To the extent Pierce or any other applicant, Hispanic or non-Hispanic, is disfavored by the policy, it has nothing to do with his ethnicity, but rather his inability to speak Spanish. Pierce has cited no authority suggesting that section 31 categorically prohibits preferences based on an individual’s ability to speak a particular language. Although we 9 are aware of no California authority that has addressed the issue, courts in other jurisdictions have consistently concluded that differential treatment predicated on an individual’s ability (or inability) to speak a particular language does not, in itself, violate the Equal Protection Clause’s prohibition against discrimination based upon race and ethnicity. (See Soberal-Perez v. Heckler (2d Cir. 1983) 717 F.2d 36, 41 [“Hispanics as an ethnic group do constitute a suspect class for the purpose of equal protection analysis[. Citations.] Nevertheless, the conduct at issue here, the . . . failure to provide forms and services in the Spanish language, does not on its face make any classification with respect to Hispanics as an ethnic group. A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class”]; Pemberthy v. Beyer (3d Cir. 1994) 19 F.3d 857, 870, 872 (Pemberthy) [“we are not willing to hold as a matter of law that language-based classifications are always a proxy for race or ethnicity and receive strict scrutiny for that reason”; “linguistic ability is not immutable”]; United States v Munoz (5th Cir. 1994) 15 F.3d 395, 399 [although striking juror based on “Spanish-speaking ability” might be “pretext for . . . racial discrimination” under some circumstances, such conduct is not, on its face, categorically prohibited ]; Broomer v Huntington Union Free School Dist. (E.D. N.Y., Aug. 13, 2013) Slip Copy 2013 WL 4094924, *7 [“requiring teachers to have dual- language certification[] does not on its face make any racial or national origin classification as the language one speaks is not contingent upon one’s race or national origin . . . If plaintiffs were dual-language certified or acquired the requisite certifications, for example, they would be eligible to teach in the dual language program regardless of their race or ethnicity. Likewise, Hispanic teachers who lacked the proper certification would not be eligible to teach in the program”]; Cf. Bradford v. State of Hawaii (1994) 846 F.Supp. 1411, 1417 [rejecting claim that “inclusion of Hawaiian terms on the surveyor’s exam violate[d] his constitutional rights” because “each person has the same opportunity to study for and to take the surveyor’s exam, regardless of that person’s national origin or residence”].) 10  Pierce’s claim that a Spanish proficiency requirement violates section 31 appears to be based on the assumption that persons of Hispanic origin necessarily speak Spanish, while persons of non-Hispanic origin do not. However, Pierce has failed to allege any facts that would support such an assertion, which plainly conflicts with common experience. (See, e.g., Pemberthy, supra, 19 F.3d at pp. 869-870 [“no simple equation can be drawn between ethnicity and language . . . According to the 1990 census, approximately 25% of Hispanics do not claim proficiency in Spanish”].) To the extent Pierce is suggesting that admissions officers could potentially apply the Spanish-speaking policy in a racially discriminatory manner, “that hypothetical possibility cannot sustain [a] facial challenge to the constitutional validity of the…policy.”4 (See Berkeley Unified, supra,172 Cal.App.4th at p. 219 [rejecting plaintiff’s assertion that school was using diversity score predicated on racial composition of a student’s neighborhood “as a veiled substitute for a student’s race” because “[o]n a facial challenge, [court] do[es] not consider the policy’s application to the particular circumstances of an individual”]; Tobe, supra, 9 Cal.4th at p. 1084 [when assessing facial challenge, court only considers “the text of the measure itself, not its application to the particular circumstances of an individual”].) In sum, Pierce has not shown that a Spanish language proficiency requirement “inevitably pose[s] a total and fatal conflict with [section 31].” (Tobe, supra, 9 Cal.4th at p. 1084.)5 4 As stated above, Pierce clarified at oral argument that he is only pursuing a facial challenge to the Spanish language requirement. He has not alleged that the school’s language requirement constitutes an unlawful racial preference because it has a disparate impact on certain racial groups, or because it was adopted for the express purpose of favoring Hispanics in the admissions process. Nor has he alleged that the school has applied the policy in a manner that favors Hispanics. Instead, he contends only that the Spanish language requirement is, in itself, an unlawful racial preference, and that he would have been accepted into the school but for that unlawful requirement. 5 Because Pierce has failed to allege a cognizable claim under Article 1, Section 31 of the California Constitution, we need not address UCLA’s contention that his pleadings demonstrate he is not qualified to attend the medical school, and therefore lacks standing to assert a discrimination claim. 11  DISPOSITION The judgment is affirmed. Respondent shall recover its costs on appeal. ZELON, J. We concur: PERLUSS, P. J. BLUMENFELD, J.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 12 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 01-2901 ___________ Alan H. Norman; Sheila K. Norman, * * Appellants, * Appeal from the United States * District Court for the Eastern v. * District of Missouri. * John H. Anderson, * [UNPUBLISHED] * Appellee. * ___________ Submitted: December 3, 2001 Filed: January 4, 2002 ___________ Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges. ___________ PER CURIAM. Missouri citizens Alan and Sheila Norman appeal the district court’s1 dismissal of their diversity jurisdiction-based civil action for lack of subject matter jurisdiction. The court found that, although some circumstances supported a finding that Anderson was a Washington citizen, the Normans had not shown by a preponderance of the evidence that Anderson was a Washington citizen at the time the Normans filed their suit in 2000. In particular, the court found--after careful consideration of the evidence--that Anderson had moved to Missouri in 1998 with the intent to make it his 1 The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri. permanent home; he thereafter sold his home in Washington; when his wife died, he decided that at some point in the future he would return to Washington; but despite this intent, he had not successfully changed his citizenship back to Washington. See Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990) (citizenship requires concurrence of individual’s presence in state in question with intent to make home there indefinitely); Rogers v. Bates, 431 F.2d 16, 18 (8th Cir. 1970) (law requires party’s physical presence in state coupled with intent to make it his present home). We find no clear error in the district court’s factual findings underlying its determination of citizenship. See Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992) (determination of citizenship is mixed question of law and fact, but mainly fact; district court’s findings of fact underlying legal conclusion of citizenship are reviewed for clear error). We also reject, as unsupported by our cases, the Normans’ contention that they were required in these circumstances to make only a prima facie showing of diversity. Accordingly, we affirm the judgment of the district court. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -2- 

23 B.R. 539 (1982) In re Henry L. (Lee) TAYLOR, Eva M. (Mae) Taylor, Debtors. Bankruptcy No. 2-82-00231. United States Bankruptcy Court, S.D. Ohio, E.D. August 9, 1982. *540 Mitchel D. Cohen, Columbus, Ohio, for debtors. Frederick M. Luper, Columbus, Ohio, trustee. FINDINGS, OPINION AND ORDER ON DEBTORS' CLAIM OF EXEMPTION IN PROCEEDS OF INSURANCE SETTLEMENT G.L. PETTIGREW, Bankruptcy Judge. When the debtors had used furniture, underwear and socks, the whole lot was not very important, but a fire, smoke damage and an insurance proceeds check for $30,947.00 are the substance of litigation. This controversy centers on the debtors' and the trustee's claims to the proceeds of an insurance settlement which resulted from a fire loss. The debtors filed a bankruptcy case and listed the various items of personal property and claimed those items as exempt. Shortly after the filing, the debtors' home was struck with fire and substantial smoke and water damage to clothing, furniture, appliances and various items of personal property resulted. At the time of the fire, the items of personal property were insured. The central issue here revolves around the trustee's claim of an interest in the proceeds of the insurance settlement and the debtors' contention that the personal property was exempt and that the payment under the insurance contract is a replacement for the items of personal property. The trustee contends that the debtor is limited to a recovery of only the $3,800 value listed as the fair market value for items of personal property in the claim of exemption. In order to resolve the issue presented here, the Court must determine what interest the debtors have in insurance proceeds received in payment for loss and damage to items of personal property. In order for any party to recover insurance proceeds, that party must have an insurable interest. In this case, under the provisions of § 541, the insurance contract which covered debtors' home and personal property became an asset of the bankruptcy estate under § 541. As an asset, the insurance contract carried with it the contingency that it would be called upon to satisfy claims if there was fire or casualty loss. In this instance, a fire did occur and items of personal property were lost as a result of fire, smoke and water damage. At the time of the loss, the insurance coverage attached to the debtors' insurable interest. That interest in the case of a bankruptcy estate was determined by § 522(b) and § 2329.66 of the Ohio Revised Code. In essence, the interest, while having a total dollar limitation, attached to each item claimed. In this case, we are benefitted by an itemized list or an inventory on which the insurance settlement was paid. We must conclude that the principal reason for exemptions is to preserve the fresh start of the debtor. That preservation assures to the debtor clothing, certain items of furniture, appliances and so forth in order to carry on normal and necessary every day life activities. While there is no provision arising out of the exemptions statutes for the debtor to obtain a head start, it is meaningless for the debtor to be given a fresh start when that start does not include those items which the debtor properly owned, claimed as exempt and is entitled to as exempt items. Therefore, in the matter before us, each item properly claimed as exempt to which the debtors are entitled to have an exemption is further protected by the debtors' insurable interest *541 which is limited only by the maximum dollar amount found in the exemption statute. We must look to the specific provision of exemptions contained in 2329.66 of the Ohio Revised Code. Therefore, while the controversy here centers on the total amount of the insurance proceeds, the maximum amount is set forth by Ohio Revised Code § 2329.66. In fact, the amount available to the debtors as a fresh start has been determined by the legislature. So long as the claim does not violate those provisions set forth by statute, the debtors are entitled to the allowance. Where there has been a limitation by statute, either in terms of the maximum amount allowable or in terms of whether such an item is covered, the statute controls. Finally, where no maximum is set forth, such as with each item of wearing apparel, beds and bedding, the two hundred dollar maximum per item controls. In the provisions of 2329.66(A)(4), the maximum allowable is $1,500.00. Added to the previously described amounts under 2329.66(A)(17) is an additional $400.00 to which the debtors are entitled. Further, these entitlements are as to the debtors' individual and several interest. In this case, where their are items which are subject to a joint ownership interest, the exemptions apply to each debtor. Where the item is owned by only one debtor, the maximum amount allowable is that described as to one debtor. Because the evidence presented at the actual hearing involving this controversy did not provide sufficient facts on which to finally resolve the issues between these parties, the matter is to be set for a further evidentiary hearing to resolve and make a final determination of the issues separating these parties. IT IS SO ORDERED.

97 Cal.Rptr.2d 100 (2000) 81 Cal.App.4th 685 Edward M. TEYSSIER, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent. City of San Diego Plaintiff, Cross-Defendant and Respondent, v. Robert L. McCarty, Defendant, Cross-Complainant and Appellant. Nos. D033171, D033622. Court of Appeal, Fourth District, Division One. June 15, 2000. As Modified June 30, 2000. Rehearing Denied July 14, 2000. Review Granted September 13, 2000. *101 Blumenthal, Ostroff & Markham, Norman B. Blumenthal, David R. Markham, Sheldon A. Ostroff, San Diego, and Kyle R. Nordrehaug, Escondido, for Plaintiff and Appellant in No. D033171 and Defendant, Cross-complainant and Appellant in No. D033622. *102 Casey Gwinn, City Attorney, Anita M. Noone, Assistant City Attorney, James M. Chapin and Grant Richard Telfer, Deputy City Attorneys for Defendant and Respondent in No. D033171 and Plaintiff, Cross-defendant and Respondent in No. D033622. WORK, Acting P.J. The sole issue presented by these consolidated appeals is whether City of San Diego Municipal Code (SDMC) section 31.0305, which levies a rental unit business tax (RUBT) upon property owners who rent their residential real estate, is valid under California Constitution articles XIII, XIII C and XIII D. Edward M. Teyssier and Robert L. McCarty appeal separate judgments in favor of the City of San Diego (City) after trial courts ruled the RUBT is a constitutionally valid excise tax, not a property tax. Teyssier and McCarty contend the court erred because the RUBT is imposed on owners of residential real property as an incident of property ownership and thus violates article XIII D, section 3, subdivision (a) of the California Constitution. As we shall explain, we conclude the RUBT is an excise tax not governed by article XIII D and is constitutionally valid under article XIII C. Accordingly, we affirm the judgments. FACTUAL AND PROCEDURAL BACKGROUND[1] In 1942, City began assessing a business tax on apartments and hotels, levied on "[e]very person conducting, operating or managing an apartment house or hotel, as defined by the State Housing Act." In 1950, the SDMC was amended to provide for assessments on rental housing of six or more units. In February 1987, the housing permit fee was combined with the RUBT creating a single tax. In 1990 and 1992, SDMC section 31.0305 was amended to increase the RUBT and, more dramatically, to eliminate the exemption for realty encompassing less than six rental units and to impose a new tax on rented single-family residences. In 1993, the section was substantially rewritten, defining essential terms within the SDMC, as well as increasing and modifying the rate at which properties would be taxed. The 1993 amendment was the last change to the ordinance that increased the amount of tax. That version of the ordinance remained substantially intact, as the 1996 revisions resulted in non-rate-related changes. Currently, SDMC section 31.0305,[2] subdivision (b) imposes the *103 RUBT annually on every person who conducts, operates, manages or rents any residential real estate, including an apartment house, flat dwelling, single or multiple family dwelling, duplex, or any other dwelling. The tax formula is $50 plus $5 per unit for 1 to 10 units, $57 plus $9 per unit for 11 to 100 units and $150 plus $8 per unit for more than 100 units. According to SDMC sections 31.0101[3] and 31.0310,[4] the RUBT was adopted for revenue purposes only, with all monies collected being deposited in City's General Fund to be expended for general governmental purposes. The RUBT is levied and collected as follows: City regularly receives a computer tape from the San Diego County Tax Assessor's Office containing information regarding real property tax ownership for persons and parcels in the City. The data is correlated to eliminate all nonresidential property and all property for which a homeowner's exemption has been filed. This information is updated throughout the year. At a designated time, the RUBT bills are sent by City to residential owners who have not filed a homeowner's exemption. Owners who are eligible for a different exemption (i.e., Section 8 housing (see United States Housing Act of 1937, 42 U.S.C. § 1437f), non-profit corporation, etc.) may claim the exemption by using a City-provided form. Consequently, the RUBT is levied only upon residential property owners who have not claimed a homeowner's or other exemption and have *104 actually rented their residential property during the year. In other words, if the property is neither rented nor being marketed for rent, it is not taxable. (SDMC, § 31.0305, subd. (h).) In 1996, the California electorate adopted Proposition 218, entitled the "Right to Vote on Taxes Act." The proposition was based on the following findings and declarations: "The people of the State of California hereby find and declare that Proposition 13 was intended to provide effective tax relief and to require voter approval of tax increases. However, local governments have subjected taxpayers to excessive tax, assessment, fee and charge increases that not only frustrate the purposes of voter approval for tax increases, but also threaten the economic security of all Californians and the California economy itself. This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent." (Historical Notes, 2A West's Ann. Const. (2000 pocket supp.) art. XIII C., § 2, p. 25.) Proposition 218 enacted California Constitution articles XIII C and XIII D, further restricting the taxing power of local governments. Article III C requires majority voter approval as a precondition to imposing, extending or increasing any local general tax (Cal. Const., art. XIII C, § 2, subd. (b)), and defines a "general tax" as any tax imposed for general governmental purposes unlike a "special tax" which is one imposed for specific purposes (Cal. Const., art. XIII C, § 1, subds. (a), (c)). It further requires that all local taxes be designated either general or special. (Cal. Const., art. XIII C, § 2, subd. (a).) Article XIII D provides in part: "No tax, assessment, fee, or charge shall be assessed by any agency upon any parcel of property or upon any person as an incident of property ownership except: "(1) The ad valorem property tax imposed pursuant to Article XIII and Article XIII A. "(2) Any special tax receiving a two-thirds vote pursuant to Section 4 of Article XIII A. "(3) Assessments as provided by this article. "(4) Fees or charges for property related services as provided by this article." (Cal. Const., art. XIII D, § 3, subd. (a).) The terms "fee" and "charge" are defined in section 2(e) of article XIII D as "any levy other than an ad valorem tax, a special tax, or an assessment, imposed by an agency upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service." Finally, section 6 of article XIII D requires governmental entities to follow specified procedures before imposing or increasing property-related fees or charges. These include notice to identified property owners who would be subject to the proposed new or increased fee, a public hearing on the proposal, and rejection of it if written protests against the proposal are presented by a majority of the identified owners of the affected parcels.[5] *105 THE RUBT IS AN EXCISE TAX Article XIII, section 1 requires a property be taxed on an ad valorem basis, that is, in proportion to its value. (Cal. Const., art. XIII, § 1, subds.(a), (b).) City acknowledges the RUBT is a flat tax assessed on a residential rental unit with the amount of tax determined by the number of rental units contained in the dwelling. As such, the tax is not based on the value of the property and cannot be characterized as an ad valorem tax. However, City correctly asserts, and the trial courts correctly concluded, the RUBT is an excise tax imposed for general governmental purposes, rather than a property tax, and thus is not covered by article XIII. Resolving whether a particular tax is a property or excise tax is not always an easy matter. (Thomas v. City of East Palo Alto (1997) 53 Cal.App.4th 1084, 1088, 62 Cal.Rptr.2d 185.) Its character is determined not by merely its nomenclature or the title attached to it by the enacting authority, but rather by its incidents, the natural and legal effect of its language, and the real object, purpose and result of its enactment. (Id. at p. 1089, 62 Cal.Rptr.2d 185; Flynn v. San Francisco (1941) 18 Cal.2d 210, 214-215, 115 P.2d 3; City of Oakland v. Digre (1988) 205 Cal. App.3d 99, 105, 252 Cal.Rptr. 99.) "Generally, a property tax taxes ownership per se without conditions ... [while] an excise tax is `a tax on the exercise of one of the incidences of property ownership,' such as the ability to transfer or devise property or the ability to use, store, or consume it. Stated another way, the excise tax is a tax on the privilege of exercising the taxed incident of ownership. [Citation.]" (City of Oakland v. Digre, supra, 205 Cal.App.3d at p. 106, 252 Cal.Rptr. 99.) Because it is imposed upon the right to exercise a privilege, the payment of an excise tax invariably is a condition precedent to the exercise of the privilege involved. (Centex Real Estate Corp. v. City of Vallejo (1993) 19 Cal.App.4th 1358, 1364, 24 Cal.Rptr.2d 48.) Consequently, a property tax is one the imposition of which is triggered merely by property ownership, while an excise tax is one imposed upon a particular use of property or the exercise of a privilege associated with its ownership, such as sale, transfer, rental, etc. (Thomas v. City of East Palo Alto, supra, 53 Cal.App.4th at pp. 1088-1089, 62 Cal. Rptr.2d 185.) The language of SDMC section 31.0305 makes it unmistakably clear the RUBT is an excise tax, not a property tax. Its imposition is not predicated merely on ownership of real property, but on the owner "conducting, operating, managing or renting" residential real estate. (SDMC, § 31.0305, subds.(b), (c).) In other words, only owners who use their property to produce rental income are subject to the tax based on their exercise of an "incident" of ownership—renting the property. The tax does not apply to all property, but only to actually rented residential property. That property owner who has not filed a homeowners exemption may nevertheless be exempted from paying the tax by evidencing the property is not being rented (SDMC, § 31.0305, subd.(h)), clearly establishes it is the business of renting residential property that creates the tax liability. This is consistent with the recognition that "the target of an excise tax can always *106 avoid taxation by not engaging in the privilege taxed." (City of Oakland v. Digre, supra, 205 Cal.App.3d at p. 109, 252 Cal. Rptr. 99.) Finally, mindful it is the practical effect of the tax and the nature of the triggering event that causes the tax to come due which determines its character, the RUBT here is an excise tax the practical effect of which is to tax the use (as a rental) to which the property is put. ARTICLE XIII D DOES NOT APPLY TO THE RUBT Teyssier and McCarty contend that regardless whether the RUBT is governed by article XIII, it is nevertheless invalid under article XIII D, because it falls within the meaning of "fee or charge" as expressed in that constitutional provision and the City has not complied with its enactment requirements. They rely on the express mandate that "[n]o tax, assessment, fee, or charge shall be assessed by any agency upon any parcel of property or upon any person as an incident of property ownership." (Cal. Const., art. XIII D, § 3, subd. (a), italics added.) They assert the phrase "upon a person as an incident of property ownership" echoed in the definition of "fee" or "charge" (Cal. Const., art. XIII D, § 2, subd. (e)) must be liberally and broadly construed so that the term "incident" encompasses both the exercise and non-exercise of a particular incident resulting in the mandate's application to excise taxes. They argue the phrase "as an incident" unambiguously refers to "something connected or related to" property ownership. They assert a contrary interpretation would reduce the language to mere surplusage. City responds that taxpayers' interpretation would rewrite the initiative by construing the words "as an incident" as "on an incident" to obtain an interpretation that a "fee or charge" means a levy imposed upon a person upon the exercise of an incident of property ownership. Our primary task in interpreting a constitutional provision adopted by the electorate is to determine the voters' intent. In doing so, we look first to the words of the proposition. (People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163; Howard Jarvis Taxpayers Assn. v. City of Riverside, supra, 73 Cal.App.4th at p. 685, 86 Cal.Rptr.2d 592; Howard Jarvis Taxpayers Assn. v. City of San Diego (1999) 72 Cal.App.4th 230, 235, 84 Cal.Rptr.2d 804.) "`When [the] language is clear and unambiguous, there is no need for construction and courts should not indulge in it.'" (People v. Benson (1998) 18 Cal.4th 24, 30, 74 Cal.Rptr.2d 294, 954 P.2d 557, quoting People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.) Indeed, under such circumstances, it is not necessary to resort to indicia of the intent of the electorate. (People v. Jones, supra, 5 Cal.4th at p. 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163; Howard Jarvis Taxpayers Assn. v. City of San Diego, supra, 72 Cal.App.4th at p. 235, 84 Cal.Rptr.2d 804.) "`Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.' [Citation.] Of course, in construing the statute, `[t]he words ... must be read in context, considering the nature and purposes of the statutory enactment.'" (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301, 58 Cal.Rptr.2d 855, 926 P.2d 1042; Howard Jarvis Taxpayers Assn. v. City of San Diego, supra, 72 Cal.App.4th at pp. 235-236, 84 Cal.Rptr.2d 804.) Finally, we construe a constitutional provision in accordance with the natural and ordinary meaning of its words. (Howard Jarvis Taxpayers Assn. v. City of Riverside, supra, 73 Cal.App.4th at p. 687, 86 Cal.Rptr.2d 592.) Article XIII D, section 1 expressly applies to all assessments, fees and charges. Consequently, for the RUBT to be subject to the article, it must be an assessment, fee or charge. Article XIII D defines these as "any levy other than an ad valorem *107 tax, a special tax or an assessment, imposed by an agency upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service." (Cal. Const., art. XIII D, § 2, subd. (e).) To interpret the phrase "fee or charge ... imposed ... upon a person as an incident of property ownership" as if it read "upon a person for exercising an incident of property ownership" would alter the express language of the definition while ignoring its plain meaning; that is, fees that a person must pay solely because that person owns property and for no other reason. The plain meaning of "incident" as relevant here is "something that occurs ... in connection with something else" or "something appertaining or attaching to something else." (The Random House Diet. (2d unabridged ed.1987) p. 966, col. 2.) By its plain language, article XIII D applies to fees levied strictly as an incident of property ownership, without any additional condition precedent. Teyssier and McCarty respond that the RUBT, as an "excise tax" on a privilege or use, is expressly subsumed within the cited definition as a "user levy." To the contrary, the concluding appositive phrase to article XIII D, section 2, subdivision (e) identifies the targeted user fees or charges as those which pertain to property-related services, not excise taxes imposed upon a voluntary act of exercising a privilege or use of ownership. This interpretation comports with the language of article XIII D, section 3, subdivision (a)(4)'s exception for "[f]ees or charges for property related services as provided by this article." This interpretation is further amplified in article XIII D, section 6, subdivision (b) that sets forth the requirements for existing, new or increased fees and charges. This provision requires fees and charges to be proportional to the cost of the service which may be imposed only if the services are actually used by or immediately available to the owner of the property. (Cal. Const., art. XIII D, § 6, subd. (b),'(3), (4).) It also prohibits any fee or charge for general governmental services (i.e. police, fire, ambulance or library services) where the service is available to the public at large in substantially the same manner as it is to the property owners. (Cal. Const., art. XIII D, § 6, subd. (b)(5).)[6] Finally, section 6, subdivision (c) excepts fees or charges for sewer, water and refuse collection services in setting forth that no property related fee or charge shall be imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners or by a two-thirds vote of the electorate residing in the affected area.[7] Contrary to Teyssier and McCarty's suggestion, our interpretation does not render section 3, subdivision (a) mere surplusage. Were Proposition 218 intended to include excise taxes imposed for the exercise of a privilege of ownership or a particular use of property, its drafters could have said so, clearly and expressly. They did not. (See, e.g., City of Oakland v. Digre, supra, 205 Cal.App.3d at pp. 105-106, 252 Cal.Rptr. 99; City of Huntington Beach v. Superior Court (1978) 78 Cal. App.3d 333, 340-341, 144 Cal.Rptr. 236.) *108 Nor did the supporting election materials and guides explain or even infer such intent by citing targeted examples of such taxes. (See Ballot Pamp., Gen. Elec. (Nov. 5, 1996), analysis of Proposition 218 by the Legislative Analyst, argument in favor of and rebuttal to argument against Proposition 218, pp. 73-77;[8] Howard Jarvis Taxpayers Assn., Right To Vote On Taxes Act (Proposition 218), Pre-Election Annotations, Sept. 5, 1996; Howard Jarvis Taxpayers Assn., Proposition 218, Right To Vote On Taxes Act, Statement Of Drafters' Intent, Jan. 1997.)[9] We presume the electorate relied on the plain and natural meaning of the language utilized by the drafters, which clearly distinguishes between simply taxing the status of property ownership and taxing the exercise of privileges or uses associated with ownership. That Proposition 218 directs it be liberally interpreted to effectuate its purposes of limiting local government revenue and enhancing taxpayer consent (Historical Notes, 2A West's Ann. Const., supra, art. XIII C, § 1, p. 25) does not permit us to judicially enlarge or restrict an initiative's evident meaning. Indeed, it is unwarranted to do so where a constitutional provision is unambiguous.[10] (Howard *109 Jarvis Taxpayers Assn. v. City of Riverside, supra, 73 Cal.App.4th at p. 687, 86 Cal.Rptr.2d 592.)[11] Moreover, we recognize the rule of interpretation that accords the natural and ordinary meaning to words has an important exception where a word has a well-established legal meaning. Under such circumstances, the word will be given its legal meaning in construing the constitutional provision. (Ibid.; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19, 56 Cal. Rptr.2d 706, 923 P.2d 1.) However, here the surrounding words in the contested phrase "as an incident of property ownership," do not permit us to attach the legal meaning to the term "incident" as it pertains to property ownership. Had the drafters intended to apply the legal meaning of "incident", they could have used language such as "on the exercise of or "for exercising" an incident of property ownership. By doing so, they would have clearly avoided the ordinary meaning and use of "incident" and designated its intended legal connotation. By their failing to do so, we cannot presume oversight and rely on an inferentially undeclared legal connotation—one that was neither expressly nor impliedly advocated by the drafters in pre or post election materials.[12] THE RUBT CONSTITUTES A VALID GENERAL TAX UNDER ARTICLE XIII C As an excise tax not governed by article XIII D, the RUBT is a general tax *110 for the purposes of article XIII C. Section 1, subdivision (a) of article XIII C defines "general tax" as "any tax imposed for general governmental purposes," while subdivision (d) defines "special tax" as "any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund." Section 2, subdivision (a) requires that all taxes imposed by a local government be categorized as either general or special. Article XIII C, section 2, subdivision (b) requires majority voter approval as a precondition to imposing, extending or increasing any local general tax. Further, any general tax imposed, extended or increased without voter approval by any local government on or after January 1, 1995, and before the effective date of article XIII C, required majority voter approval within two years of the effective date of article XIII C. (Cal. Const., art. XIII C, § 2, subd. (c).) In light of the foregoing, the RUBT is a general tax because its proceeds are deposited in the general fund and used for general governmental purposes. (SDMC, § 31.0310.) It is conceded it was not imposed, extended or increased between January 1, 1995 and the effective date of article XIII C. Accordingly, it is a valid, general excise tax. DISPOSITION The judgments are affirmed. The City shall have costs. BENKE, J., and McDONALD, J., concur. NOTES [1] The specific procedural histories underlying these consolidated cases are irrelevant to the legal issue presented here on appeal of the validity of the RUBT under California Constitution articles XIII, XIII C and XIII D. Suffice it to say, both cases resulted in judgments declaring the RUBT a constitutionally valid excise tax. We apply de novo review to this pure question of law, exercising our independent judgment and giving no deference to the trial courts' rulings. [2] SDMC section 31.0305 provides: "(b) Every person conducting, operating, managing or renting any residential real estate, including an apartment house, flat dwelling, single or multiple family dwelling, duplex, or any other dwelling, except a motel or hotel which shall be subject to Section 31.0305(c), shall pay a business tax of fifty dollars ($50) per property plus five dollars ($5) per unit annually on all residential real estate containing at least one dwelling unit but no more than ten dwelling units, fifty-seven dollars ($57) per property plus nine dollars ($9) per unit annually on all residential real estate containing at least eleven dwelling units but no more than one hundred dwelling units, and one hundred fifty dollars ($150) per property plus eight dollars ($8) per unit on all residential real estate containing more than one hundred dwelling units. "(c) Ever)' person conducting, operating, managing or renting a motel or hotel shall pay a business tax of fifty dollars ($50) per property plus five dollars ($5) per unit annually on all motels and hotels containing at least one dwelling unit but no more than two hundred fifty units and fifty-seven dollars ($57) per property plus nine dollars ($9) per unit annually on all motels and hotels containing more than two hundred fifty units. "(d)(1) The business tax for the rental of residential real estate shall be assessed per property and the liability for such tax shall be determined by the owner-lessor's ownership or leasehold interest in each property. (2) Upon submission of documentary proof acceptable to the City Treasurer, the owner-lessor may obtain a single consolidated business tax: (A) if one single family dwelling or one duplex is situated upon two or more contiguous properties comprising two or more tax assessor parcel numbers; or, (B) if one or more apartment houses, flat dwellings, multiple family dwellings, motels or hotels wholly operated under one ownership as a single rental complex is situated on two or more contiguous tax assessor parcel numbers. (3) Upon submission of documentary proof acceptable to the City Treasurer, owners of eight (8) or more separate parcels of property, having separate tax assessor parcel numbers, the same legal owner, and otherwise subject to separate business tax assessments, may obtain a single consolidated business tax assessment for those properties in excess of the first seven (7) properties only. The first seven (7) properties will remain subject to separate business tax assessments. "(e) Residential real estate shall include the rental of a single family dwelling, including a mobile home, by an owner-lessor. "(f) The business tax imposed by Section 31.0305 shall constitute a lien on the real property upon which the business is conducted and shall be collected by the City Treasurer. ".............................................. "(h) It shall be presumptive evidence that a single family dwelling is considered rented if the owner fails to claim the property tax exemption annually applicable according to the San Diego County Tax Assessor's records. Whenever an owner fails to claim such exemption for any calendar year, it shall be presumed that the properties were rented and therefore subject to the business tax, unless the owner establishes to the satisfaction of the City Treasurer that the premises were not rented. Proof may include copies of any state or federal tax returns showing that there was no rental income received by the owner for the calendar year in which the City Treasurer makes the determination, provided that the owner had not advertised or otherwise held out property as being available for lease or rent during that calendar year." [3] SDMC section 31.0101 provides in part: "There is hereby imposed a business tax which, under the provisions of this Article, is enacted solely to raise revenue for municipal purposes and is not intended for the purpose of regulation." [4] SDMC section 31.0310 provides in part: "The taxes imposed under Sections 31.0301 through 31.0308 shall be collected by or remitted to the City Treasurer and deposited to the General Fund of the City (Fund No. 100), to be used for general governmental purposes as the City Council may from time to time provide in accordance with the City Charter of The City of San Diego and its appropriation ordinances and resolutions." [5] "Proposition 218 can best be understood against its historical background, which begins in 1978 with the adoption of Proposition 13. `The purpose of Proposition 13 was to cut local property taxes....' [Citation.] Its principal provisions limited ad valorem property taxes to 1 percent of a property's assessed valuation and limited increases in the assessed valuation to 2 percent per year unless and until the property changed hands. (Cal. Const., art. XIII A, §§ 1, 2.)[¶] To prevent local governments from subverting its limitations, Proposition 13 also prohibited counties, cities, and special districts from enacting any special tax without a two-thirds vote of the electorate. (Cal. Const., art. XIII A, § 4....) ... [¶] In November 1996 ... the electorate adopted Proposition 218, which added articles XIII C and XIII D to the California Constitution. Proposition 218 allows only four types of local property taxes: (1) an ad valorem property tax; (2) a special tax; (3) an assessment; and (4) a fee or charge. (Cal. Const., art. XIII D, § 3, subd. (a)(1)-(4); see also Cal. Const., art. XIII D, § 2, subd. (a).) It buttresses Proposition 13's limitations on ad valorem property taxes and special taxes by placing analogous restrictions on assessments, fees, and charges." (Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73 Cal.App.4th 679, 681-682, 86 Cal.Rptr.2d 592.) For a historical review of the California Tax Initiatives (Propositions 13, 62 and 218), their judicial interpretation, their effects on tax revenues, and the responses of local governments, see Note, What is a Property-Related Fee?: An Interpretation of California's Proposition 218 (1997) 48 Hastings Law Journal 1059, 1060-1076. [6] This section further provides: "Reliance by an agency on any parcel map, including, but not limited to, an assessor's parcel map, may be considered a significant factor in determining whether a fee or charge is imposed as an incident of property ownership for purposes of this article." Given that SDMC section 31.0305, subdivisions (d)(1), (h) and (f) provide that the RUBT shall be assessed per property, liability is based on ownership, the owner's failure to claim the property tax exemption annually according to the San Diego County Tax Assessor's records is presumptive evidence the dwelling is rented, and the RUBT becomes a lien on the real property, Teyssier and McCarty argue the RUBT is imposed as an incident of property ownership. Again, they ignore (1) the property owner can avoid liability for the RUBT by simply claiming an exemption on a form accompanying the tax bill, and (2) the RUBT is only imposed if the property is being rented or held out for rent. [7] Additionally, we note section 3, subdivision (b) of article XIII D provides that "[f]or purposes of this article, fees for the provision of electrical or gas service shall not be deemed charges or fees imposed as an incident of property ownership." [8] "[B]allot arguments accompanying an initiative may be considered in attempting to ascertain the electorate's intent in adopting the measure." (People v. Benson, supra, 18 Cal.4th at p. 33, 74 Cal.Rptr.2d 294, 954 P.2d 557.) [9] In fact, the cited materials without contradiction reveal the intent the targeted fees and charges pertain to property related services. For example, the "Analysis by the Legislative Analyst," printed in the November 1996 voter's pamphlet, explains Proposition 218 "would constrain local governments' ability to impose fees, assessments, and taxes;" local governments charge fees to pay for many property-related services; and the measure would restrict local governments' ability to charge "property-related" fees, including fees for water, sewer and refuse collection, while gas and electric fees and development fees are specifically exempted. The analysis concludes the proposed requirements for property-related fees "would require local governments to reduce or eliminate some existing fees. Unless local governments increased taxes to replace these lost fee revenues, spending for local public services likely would be decreased." (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), Analysis by the Legislative Analyst, p. 73.) The foregoing supports the interpretation the measure contemplates only service-related fees (i.e., water, sewer and refuse collection charges) and does not target excise taxes such as the RUBT. [10] Nevertheless, we note our interpretation relying on the ordinary meaning of the language used is entirely consistent with the underlying purpose of Proposition 218 of limiting local agencies' ability to use fees to avoid rules regarding taxes and assessments. In fact, the Howard Jarvis Taxpayers Association (HJTA) drafted Proposition 218 to address levies imposed against property solely due to property ownership. The HJTA in its pre-election annotations, dated September 5, 1996, to California Constitution article XIII D, section 1, at page 4, expressly declared: "[T]he focus of Proposition 218 is on those levies imposed simply by virtue of property ownership." The annotation continues: "Developer fees, in contrast, are imposed as an incident of the voluntary act of development." By analogy, this distinguishment evinces article XIII D was not intended to apply to taxes such as the RUBT, a fee imposed on those who voluntarily engage in the business activity of renting residential property. In their "Proposition 218, Right To Vote On Taxes Act, Statement of Drafters' Intent (January 1997), the HJTA echoed this prior intent at page 7. Indeed, this latter document is silent regarding any declared intent to include excise taxes like the RUBT within the coverage of article XIII D. Rather, the HJTA declared: "One significant impact of Proposition 218 on developers is that a tax imposed on development would be subject to voter approval just like any other tax. For example, in Centex Real Estate Corp. v. City of Vallejo, [supra ], 19 Cal.App.4th 1358, 24 Cal.Rptr.2d 48, the court upheld the legality of a so-called `excise tax' on development levied by a charter city outside the restrictions that state law places on the imposition of developer fees. Because such levies are conceded to be taxes (levied solely for the purpose of raising revenue), they would fall under the purview of Proposition 218's voter approval requirement." (Prop. 218, Right to Vote on Taxes Act, Statement of Drafters' Intent (Jan. 1997) p. 7.) That is, under article XIII C, section 2. Finally, Teyssier and McCarty's reliance on the maxim expressio unius est exclusio alterius (the expression of some things in a statute necessarily means the exclusion of those things not expressed) (Lake v. Reed (1997) 16 Cal.4th 448, 466, 65 Cal.Rptr.2d 860, 940 P.2d 311) is misplaced regarding the express exception for development levies. The drafters, the HJTA, in the cited documents expressly distinguished such levies from the targeted fees and charges, because imposition is predicated upon the voluntary act of developing, that is, exercising a privilege or use accompanying property ownership. [11] Conversely, we do not consider our reliance on the natural and ordinary meaning of the language utilized by the drafters necessarily constitutes a strict interpretation of the constitutional provision. (Compare Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281, to Los Angeles County Transportation Com. v. Richmond (1982) 31 Cal.3d 197, 203-205, 182 Cal.Rptr. 324, 643 P.2d 941, and City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 52-57, 184 Cal.Rptr. 713, 648 P.2d 935.) Rather, where doing so results in no ambiguity, we need not resort to either a liberal or strict interpretive approach to the constitutional measure. However, we note that under the circumstances here if we were to apply either approach, the result would be the same. For example, application of the more liberal intent-based standard of interpretation set forth in Rider v. County of San Diego (1991) 1 Cal.4th 1, 10-11, 2 Cal.Rptr.2d 490, 820 P.2d 1000 (see also Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 235, 45 Cal. Rptr.2d 207, 902 P.2d 225) compels the conclusion that the RUBT was not enacted to avoid the restrictions of Proposition 13 given its nature and history predating the passage of the constitutional measure. Similarly, under a strict interpretive approach utilizing the plain meaning of "incident," a review of the cited relevant election materials suggests the constitutional measure by design contemplates only service-related fees and not an excise tax imposed upon the exercise of a privilege or use of property ownership. (See ante, fns. 10, 11; see also, Note, supra, 48 Hastings L.J. at pp. 1078-1084.) [12] On December 15, 1999, the California Supreme Court granted review (S059827) of Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (1999) 74 Cal.App.4th 681, 88 Cal.Rptr.2d 255, a decision holding a fee imposed on residential rental properties to fund a program to eradicate substandard housing constituted a charge upon real property within the meaning of Proposition 218.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT J.S., the father, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES and the GUARDIAN AD LITEM PROGRAM, Appellees. No. 4D18-3493 [May 23, 2019] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stacey Schulman, Judge; L.T. Case No. 2013-1320 CJ- DP. Sean Conway of Sean Conway Law Firm, P.A., Fort Lauderdale, for appellant. Laura Lee and Thomasina Moore, Tallahassee, for appellee Guardian ad Litem Program. Ashley B. Moody, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Florida Department of Children and Families. PER CURIAM. Affirmed. DAMOORGIAN, LEVINE and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 

220 P.3d 209 (2009) 167 Wash.2d 1002 FAIRHAVEN LAND & LIVESTOCK CO., L.L.C. v. CHUCKANUT TRAILS WATER ASS'N. No. 83218-8. Supreme Court of Washington, Department II. November 5, 2009. Disposition of Petition for Review Denied.

77 B.R. 561 (1987) In re John G. BUHAY, Debtor. Lyndon WATSON, et al. v. John G. BUHAY and Martin W. Seidler, Interim Trustee. Bankruptcy No. 5-85-00798-E, Adv. No. 5-85-0206E. United States Bankruptcy Court, W.D. Texas, Austin Division. September 18, 1987. *562 Kay Mary Kober Harrell, San Antonio, Tex., for debtor. Don Saunders, San Antonio, Tex., for plaintiffs. MEMORANDUM OPINION LARRY E. KELLY, Bankruptcy Judge. This adversary proceeding was initiated by Lyndon Watson and wife, Michelle Watson, J.W. Smith and Eddie Chew on or about December 13, 1985, complaining of John G. Buhay, ("Debtor" or "Defendant") and seeking to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(4). The Court having considered the evidence presented to it makes the following findings of fact and conclusions of law as required by Bankruptcy Rule 7052. The Court finds that it has jurisdiction over this proceeding as a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). BACKGROUND The plaintiffs are each individual school teachers employed by the San Antonio Independent School District and they reside in San Antonio, Bexar County, Texas. The plaintiffs are joint and several judgment lien Creditors of the Debtor John G. Buhay, Debtor in this Chapter 7 case. Prior to the filing of the Chapter 7 bankruptcy the plaintiffs recovered a default judgment against the Debtor and it is this judgment which they seek to protect. The plaintiffs express an interest in the constructive trust or security interest position they have in a pending law suit filed by the Debtor prior to bankruptcy and in which they have intervened based upon this default judgment. The genesis of this action commenced with funds which the individual plaintiffs entrusted to the care of the Debtor to "invest" for them in the stock market. These funds apparently have been lost in toto. This loss was the basis of the state court action which resulted in the default judgment. This Court, after reviewing all the evidence, finds the following issues. ISSUES PRESENTED 1. Whether the Court should give collateral estoppel effect to all of the findings of the prepetition default judgment. 2. The enforceability of the constructive trust and/or lien position because of pre-petition actions taken by the plaintiffs based upon the default judgment. 3. Whether or not the claims of the plaintiffs are excepted from discharge within the meaning of 11 U.S.C. § 523(a)(4). FINDINGS OF FACT 1. On or about the 25th day of July 1984 plaintiffs obtained a judgment in the 150th Judicial District Court of Bexar County, Texas in cause No. 84-CI-08240 in the total sum of $86,000 plus interest and *563 court costs. Said judgment was in the sum of $51,000 as liquidated, actual damages and $35,000 exemplary damages. 2. The judgment recites that the defendant, John G. Buhay "in a fiduciary capacity, as trustee, for stock investments, comingled and/or converted such monies placed in his trust and possession by plaintiffs" with resulting loss to plaintiffs in the actual sum of $51,000. 3. The judgment further ordered that a constructive trust be imposed on monies placed with John G. Buhay, the proceeds therefrom, assets, tangible or intangible, wherever same may be found. The judgment further recited that plaintiffs should be entitled to such rights and remedies to enforce such constructive trust as may be provided through state or federal proceedings. 4. The evidence shows that the three plaintiffs were school teachers employed by the San Antonio Independent School District. They met the defendant, who was also a school teacher employed by the San Antonio Independent School District with all of them employed at Luther Burbank High School. 5. In or about September 1983 the parties met with defendant Buhay who advised them that he had a plan for investing funds in newly issued stocks. In September and October 1983 plaintiff Smith delivered to defendant Buhay the sum of $25,000, plaintiff Watson and wife delivered to defendant Buhay the sum of $22,000, and plaintiff Chew delivered to defendant Buhay the sum of $4,000. The only written document executed by and between the parties was a receipt. The receipts stated as follows: A. Receipt to plaintiff James Smith, dated September 19, 1983 "To whom it May Concern: This letter will serve as verification that Mr. James Smith gave me the sum of $25,000 for the purpose of stock investment. If after the expiration of 180 days, a suitable investment of said sum is not made, then Mr. Smith will have the sum refunded should he so desire. Sincerely, John G. Buhay" B. Plaintiff Lyndon Watson and wife, dated September 22, 1983. "I, John G. Buhay, of San Antonio, Texas, hereby acknowledge receipt of the sum of $20,000 (twenty thousand dollars) for investment purposes from Mr. Lyndon and Mrs. Michelle Watson. If after the expiration of one hundred eighty (180) days, a suitable investment of said sum is not made, then in that event said sum of $20,000 shall be returned to Mr. Lyndon Watson and Mrs. Michelle Watson. John Buhay" C. Mr. Eddie Chew. No receipt for the funds of Mr. Chew was introduced into evidence. 5. In the state court proceedings discovery was taken and portions of a deposition of defendant Buhay dated February 13, 1985 were introduced into evidence. In pertinent part the deposition recited that the $51,000 described above was received by the Debtor, $39,000 was invested in a stock known as Hirsch-Chemie Limited and $12,000 remitted to a Ms. Multa in New York City for investment in a stock. Of the $39,000 invested in Hirsch-Chemie Limited the sums of $4,881.56, $4,329.37 and $4,155 was returned to the defendant after the stock had plummeted in price and the defendant decided to bail out. The total of the returned funds was $13,365.93. Of the $12,000 sent to Ms. Multa the sum of $7,000 was returned to the defendant. None of the returned funds were ever subsequently accounted for and despite requests, were not returned to the plaintiffs. Of the stocks which were purchased, they were in the name of the defendant Buhay and no stocks were ever in the name of the plaintiffs and no monies were ever returned and no stocks were ever delivered to the plaintiffs. The pre-petition state court judgment was by default, as the defendant did not appear. The judgment itself has been abstracted and efforts have been made to collect on the judgment including the filing of an intervention in a pre-petition lawsuit filed by the Debtor in cause No. 84-CI-18690, styled John G. Buhay v. Aldes Cadwallder, *564 III come individually and d.b.a. Cadwallder Insurance Agency and Jim Taylor and Ralph Dalton, filed in the 224th District Court of Bexar County, Texas. CONCLUSIONS OF LAW 1. The overriding purpose of the bankruptcy laws is to provide the bankrupt with comprehensive, much needed relief from the burden of his indebtedness by releasing him from virtually all of his debts. Angelle v. Reed, 610 F.2d 1335, 1339 (5th Cir.1980) quoting Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 114, 27 L.Ed.2d 124 (1970) (describing the overriding purpose of bankruptcy law as giving the Debtor a "new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debts"). 2. It is clear that cases construing the Bankruptcy Act exceptions to debt dischargeability are "consistent with well established principal that exceptions to dischargeability should be limited to those clearly expressed in the statute". Angelle v. Reed, supra at 1339. 3. These exceptions expressed in the Act are generally to be "narrowly construed . . . against the creditor and in favor of the bankrupt." These same principals should apply to the Bankruptcy Code. Murphy and Robinson Investment Co. v. Cross, 666 F.2d 873, 879-80 (5th Cir.1982). 4. 11 U.S.C. § 523(a)(4), the only section cited by the plaintiffs as supporting their claim against the defendant Buhay provides as follows: "A discharge . . . does not discharge an individual from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." With respect to fiduciary capacity, it is clear that this Court must be guided by Supreme Court holding that the exception applies only to a "technical trust . . . which must exist prior to the act creating the debt and without reference to that act." Angelle v. Reed, supra at 1338, citing and discussing Davis v. Etna, Acceptance Code, 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); and Upshur v. Briscoe, 138 U.S. 365, 11 S.Ct. 313, 34 L.Ed. 931 (1890). 5. A case with facts very similar to the one before the Court is In the Matter of Michel, 74 B.R. 80 (Bkrtcy.N.D.Oh.1985). In that case a creditor who had given a Chapter 7 debtor funds for use in stock market investment scheme also filed a complaint seeking a declaration that the debt was non-dischargeable. One of the grounds asserted for finding an exception to discharge was 11 U.S.C. § 523(a)(4). The Court feels that the discussion in this case is instructive. As in this case, the Court noted that the evidence failed to establish that the Chapter 7 Debtor was in any sort of fiduciary relationship with the Creditor who gave the Debtor money for stock market investment scheme without restriction, beyond an understanding that the Creditor would receive a share of profits. The utter absence of any proof of additional restrictions compelled a conclusion that no trust relationship was created. In this case, other than the oral understanding and the written receipt recognizing that the funds were to be invested in stocks of some kind, there was no prior agreement establishing any form of a trust. In The Matter of Michel, supra at 84-85. Further, it is clear that the burden of proof is on the plaintiff by a clear and convincing margin on this issue. See e.g. In re Vissers, 21 B.R. 638, 639 (Bkrtcy.E.D. Wis.1982) and In Re Toleikis, 19 B.R. 944, 946 (Bkrtcy.E.D.Mich.1982). 6. Added to the objecting Creditors burden is the rule that section 523 is to be "strictly construed against the objecting creditor and liberally in favor of the debtor. Any other construction would be inconsistent with a liberal spirit that has always pervaded the entire bankruptcy system." In the Matter of Michel, supra at 84, citing 3 Collier on Bankruptcy, para. 523.05A (15 Ed.1986). This liberality has been expressed by the Supreme Court as follows: "This Court on numerous occasions has stated that `one of the primary purposes *565 of the Bankruptcy Act' is to give the debtor `a new opportunity in life and clear future effort, unhampered by the pressure and discouragment of pre-existing debt.'" Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed.2d 1230 (1934). It is clear to this Court that there is no pre-existing fiduciary relationship and therefore the plaintiffs' claim must fail for lack of meeting its burden of proof on that issue. 7. The Bankruptcy Code itself, however, effected a significant change in the structure of the language of prior Section 17(a)(4) of the previous Act. That provision formerly spoke of the non-dischargeability of debts created by "fraud, embezzlement, . . . while acting . . . in any fiduciary capacity;". The Bankruptcy Code, however, sets "embezzlement" and "larceny" apart from acts committed in a fiduciary capacity, and compels a consideration of whether either of those acts has been committed by the Debtor. Thus, regardless of the finding that Buhay was not in a fiduciary relationship with the plaintiffs, inquiry must also be made as to whether he has embezzled or been guilty of larceny with respect to their moneys. 8. Larceny does not appear to be a misdoing here. Larceny may defined as the fraudulent and wrongful taking and carrying away of the property of another with the intent to convert it to the takers use without the consent of the owner and with intent permanently to deprive owner of such property. In the Matter of Michel, supra at 86, quoting In Re Shinew, 33 B.R. 588, 592 (Bkrtcy.N.D.Oh.1983). Buhay's acts do not fall within this definition. 9. "Embezzlement" on the other hand, is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into hands it has lawfully come. In Re Shinew, supra; In Re Graziano, 85 B.R. 589, 594 (Bkrtcy.E.D.N. Y.1983). This hurdle must again be surmounted by the plaintiff by a clear and convincing margin and requires a showing of appropriation for the Defendant's own benefit. In Re James, 42 B.R. 265 (Bkrtcy. W.D.Ky.1984). 10. Circumstantial evidence may be used to prove fraudulent intent in the actual taking of the property. United States v. Powell, 413 F.2d 1037 (4th Cir. 1969); and United States v. Walker, 677 F.2d 1014 (4th Cir.1982). The facts here will support, in my opinion, a finding that Buhay has indeed embezzled, as that term is used in 523(a)(4), a substantial portion of the moneys the plaintiffs turned over to him. It is clear that Buhay alone had access to the $51,000 in question. He has indicated that he did receive the sum of $7,000 which was returned from Ms. Multa and that the sum of $13,365.93 was received back from the sale of the Hirsch-Chemie Limited stock. These sums were identified as part of the Plaintiff's $51,000. Although the sums were received by Buhay and although at the time they were received the Debtor Buhay was aware that the plaintiffs wanted their funds to be returned, he did not account to the plaintiffs for those funds, the funds were expended, and they were not accounted for. It is clear to the Court that the sum total of $20,365.93 was clearly in the control of the defendant, and that it has been fraudulently misappropriated or embezzled and the Court believes the evidence is clear and convincing on this point. Therefore the sum of $20,365.93 will be held to be non-dischargeable as being embezzled funds within the meaning of 11 U.S.C. § 523(a)(4). All of the other funds would appear to have been explained by losses in the stock market and the balance of the claim would appear to be dischargeable. 11. With respect to the pre-petition lien position or constructive trust as stated by the existing state court judgment, it is clear to this Court that collateral estoppel may be applied only to the extent that the factual issues determined in the prior proceeding were: (i) identical to the issues in the present proceeding; (ii) actually litigated; and (iii) were necessary to the resulting judgment. See, In Re Church, 69 B.R. 425 (Bkrtcy.N.D.Tex.1987), discussing Matter of Allman, 735 F.2d 863, 866 n. 3 (5th *566 Cir.1984); Matter of Shuler, 722 F.2d 1253 (5th Cir., 1984); and Matter of Poston, 735 F.2d 866 (5th Cir.1984). 12. No transcript of the state court proceedings were provided and because it was the result of a default, the issue of fiduciary capacity was not actually litigated. From the available evidence collateral estoppel with respect to the terms of the default judgment finding a fiduciary position is not proper and this Court will not make that finding. However, it is also clear that the pre-existing judgment is a final judgment and entitled to full faith and credit by this Court. See, e.g., Wilhite v. Adams, 640 S.W.2d 875 (Tex.1982); Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex.1971). To the extent that the judgment has properly been abstracted and appropriate actions under the state law have been taken which would effectuate an enforceable constructive trust on specific property or would effectuate a perfected security interest in specific real or personal property, that judgment will be recognized as an allowed secured claim against the estate of the debtor. Therefore, this adversary proceeding, not raising the issue of whether or not any such pre-petition transfer of a security interest might be a preference, and no specific request being made to determine the extent or validity of any such lien, these issues will not be decided by this opinion. To the extent that such intervention in the above described law suit effectuates a proper security interest, if any, under state law it will continue to be recognized in favor of the plaintiffs. One of the claims asserted by Plaintiffs is that all damages awarded in the state court judgment should be excepted from discharge, including the punitive award for $35,000.00. This Court believes that the issue of punitive damages should fail because no specific authority has been presented to meet Plaintiff's burden of proof to indicate that such a claim is part of the debt excepted from discharge within the meaning of 11 U.S.C. § 523(a)(4). CONCLUSION Based upon the findings and conclusions of law above, this Court finds that the sum of $20,365,93 is non-dischargeable as being embezzled funds, this claim being a joint and several claim in favor of the plaintiffs on a proportional basis as each of their claims bears to the total of the claims of the plaintiffs. All other claims are found to be dischargeable against the Debtor. This order of the Court does not in any way determine the extent or validity of any pre-petition constructive trust or security interest which may exist because of the default judgment. A separate order of even date herewith will be entered to reflect the judgment of the court.

Motion for Rehearing Granted, Memorandum Opinion filed June 1, 2017, Withdrawn, Appeal Reinstated, and Order filed August 1, 2017. In The Fourteenth Court of Appeals ____________ NO. 14-17-00154-CV ____________ LA FLECHA HOLDINGS, INC., Appellant V. FIND A HOME, LLC, Appellee On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2013-50859 ORDER On June 1, 2017, this court issued an opinion dismissing this appeal. On June 19, 2017, appellant filed a motion for rehearing. The motion is GRANTED. This court’s opinion filed June 1, 2017, is WITHDRAWN, and our judgment of that date is VACATED. The appeal is ordered REINSTATED. The reporter’s record is due 30 days from the date of this order.  PER CURIAM Panel consists of Chief Justice Frost and Justices Jamison and Busby. 

71 F.3d 882 Wyattv.City of Pell City, AL* NO. 94-7168 United States Court of Appeals,Eleventh Circuit. Nov 16, 1995 1 Appeal From: N.D.Ala., No. 93-02184-CV-AR-M 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

86 Ariz. 40 (1959) 340 P.2d 193 SANDIA DEVELOPMENT CORPORATION, a corporation, Appellant, v. Carey ALLEN, Appellee. No. 6271. Supreme Court of Arizona. June 3, 1959. *42 Stahl, Murphy & Blakley, and Flynn, Stewart & Allen, Phoenix, for appellant. George M. Sterling and Leslie C. Hardy, Phoenix, for appellee. JOHN F. MOLLOY, Superior Court Judge. Carey Allen, the appellee, recovered a judgment in the sum of $30,400 against M.C. Lundgren, his wife Beulah, and La Mar Homes, Inc. Writ of garnishment after judgment issued against appellant, Sandia Development Corporation. In the interest of the elimination of confusion, the appellee will be designated herein as the plaintiff; the Lundgrens and La Mar Homes, Inc., as defendants or by individual name, and the appellant as garnishee. Garnishee answered it was not indebted to defendants and did not have any effects of defendants in its possession. Plaintiff controverted this answer and filed tender of issue which, after trial amendments allowed by the court, states in effect that garnishee was indebted to defendants under a written agreement of August 6, 1951; that garnishee had in its possession moneys, property and things of value belonging to defendants in pursuance of said agreement; that defendants were the owners of 20 shares of capital stock of garnishee; that during the year 1951 garnishee converted to its own use all of defendants' assets; that on or about June 29, 1950, defendant La Mar Homes, Inc., wrongfully and illegally entered into a joint venture agreement with garnishee and thereby transferred to the joint venture all of the assets of La Mar Homes; that this transfer was illegal and void for the reason that garnishee had not complied with Arizona laws relative to the qualification of foreign corporations to do *43 business in this State and that by reason of the premises garnishee became the trustee of the properties of La Mar Homes for the stockholders and creditors of La Mar Homes. Trial before the court was had and the garnishee requested findings of fact and conclusions of law. No findings of fact were signed and filed, the court merely ordering the clerk to place in the minutes the following (in addition to five conclusions of law): "(1) That the defendant garnishee Sandia Development Corporation, a corporation, was at the time the garnishment herein was served upon it, indebted to the defendants, M.L. Lundgren and Beulah Lundgren, his wife, and La Mar Homes, Inc., a corporation, or had in its possession things of value belonging to said defendants in excess of $30,400.00, together with interest thereon at the rate of 6% per annum from the 30th day of December, 1950; "(2) The Court further finds that at the time of the service of said writ of Garnishment upon said defendant-garnishee that said defendant-garnishee was a corporation, and that the defendant M.L. Lundgren was the owner and holder of shares of stock in said corporation;" and entered judgment against garnishee in the sum of $30,400 with interest and costs. The evidence discloses that the garnishee is a New Mexico corporation which was first qualified to do business in the State of Arizona on August 6, 1951. Prior to this time it had entered into a written agreement with the defendant, La Mar Homes, Inc., dated June 29, 1950, by which the parties agreed to enter into a joint venture or partnership to be known as La Mar-Sandia Company for the purposes of "tract development". The parties agreed to construct a minimum of 130 residential homes and to construct such additional homes as might be mutually agreeable. The contract recited that La Mar Homes, Inc., referred to in the contract and hereinafter as "La Mar", was a qualified builder and was then engaged in construction work in and around Phoenix, Arizona and that Sandia Development Corporation, referred to in the contract and hereinafter as "Sandia", desired to participate in "tract development" with La Mar. The contract provided that La Mar would do all of the construction work, at cost and without any fee or compensation, for the joint venture; that Sandia should immediately pay to the joint venture $100,000 in cash; that La Mar should transfer to the joint venture materials and equipment then used by it in the construction business and would assign to the joint venture net proceeds from certain escrows pertaining to sales of houses previously constructed by La Mar, so that "the credit" to be received by La Mar for materials and equipment so transferred and the net proceeds of escrow *44 so assigned would equal a contribution to the joint venture of $100,000. After these capital contributions of Sandia and La Mar should be "used up", the contract provided that Sandia should advance to the joint venture an additional sum of $100,000 cash. M.L. Lundgren, one of the defendants in the action, was a party to this agreement, though he was to have, as an individual, no share in the profits of the joint venture nor was he to be "a party to such joint venture." At the time of the execution of this agreement, Mr. Lundgren was the president of both La Mar and Sandia, and was financially interested, to a greater or lesser extent, in both corporations. In the contract, M.L. Lundgren agreed to devote his time and best efforts to the interests of the joint venture, without compensation. Funds realized from the joint venture operations were to be first used to repay to Sandia its second $100,000 contribution and thereafter distribution should be made on an equal basis between Sandia and La Mar, each to receive one-half of any profits. Lundgren, according to his own undisputed testimony, was the only investor in the La Mar corporation and, though he spoke of three stockholders in the corporation (the other stockholders presumably being token shareholders), his undisputed testimony was also to the effect that no certificates of stock had ever been issued by La Mar. The interest of Lundgren in Sandia was disputed in the evidence. It was Lundgren's contention that he had transferred into Sandia at its inception assets of the worth of $20,000, for which he was to receive $20,000 in stock. It was undisputed, however, that Lundgren did not receive any stock certificate and that his certificate of stock remained with the corporate records. Lundgren remained the president of Sandia until his written resignation dated August 4, 1951, was accepted by its board of directors on August 6, 1951. The by-laws of Sandia, Art. IX, Sec. 8 thereof, provided that the President was the "chief executive" of the corporation, and "subject to the control of the board of directors", in charge of its business and affairs. Initially, a book transaction was made whereby all or part of the assets of La Mar (the evidence is conflicting as to whether or not all or only part were involved) were "transferred" from La Mar to the joint venture. La Mar, however, continued to hold title to all real property involved and there was, as far as evidence discloses, no formal assignment or bill of sale made of any such property so "transferred". A Mr. Richard Burgess, a certified public accountant, was employed to set up the books for the joint venture and he continued to be in charge of these books until October 31, 1951, at which time the joint venture had been substantially liquidated. *45 Statements of accounts prepared by Mr. Burgess disclose that, while Sandia contributed the capital required of it by the joint venture agreement, La Mar did not. As of December 31, 1950, these accounts show that La Mar had contributed to the joint venture $38,454.58 in excess of La Mar's liabilities transferred to the joint venture and assumed by the joint venture. This was the high water mark of La Mar capital account in the joint venture according to these accounts. From then on, the capital account was continuously drawn upon, and an account receivable was set up on the joint venturers' books, to keep a record of indebtedness incurred by La Mar on the joint venture books. For a time, La Mar's capital account was kept separate from this account receivable but the account receivable increased until it exceeded the capital account of La Mar and, in March of 1951, Mr. Burgess applied the capital account of La Mar against the account receivable of La Mar, liquidating its capital account. The account receivable continued to increase so that by October 31, 1951, the books showed that La Mar owed the joint venture $25,734.77. After this date the joint venture accounts were taken over by another certified public accountant doing business in Beverly Hills, California, by the name of Albert E. Kurz. Mr. Kurz rendered two accounts after he took over the books, which accounts were based upon, and substantially in agreement with, the accounts rendered by Mr. Burgess. Previous to this, on November 1, 1951, La Mar, Sandia, and Lundgren had entered into a "modification agreement" as to the joint venture, which substantially changed the agreed division of profits in favor of Sandia. In this agreement, La Mar and Lundgren personally guaranteed to Sandia that Sandia would receive a net profit of $300 per house on all of the houses listed in Group One of this contract, which houses totaled 497. The agreement further provides that a new and complete account procedure should be set up under the overall control of Mr. Burgess. On or about May 5, 1951, La Mar and Lundgren wrote a letter to Sandia, in which they acknowledged that neither had any capital investment remaining in the joint venture and that they were executing and delivering to Sandia five items, to "guarantee" to Sandia the faithful performance of the joint venture agreement, these five items being as follows: "1. Second mortgage and note on an eleven unit apartment building in Bisbee, Arizona. "2. Quit claim deed on house on Ocotillo Rd known as lot 22 and E 1/2 of lot 23, Milton's Grove, Maricopa County, Arizona. "3. Assignment of all my rights and interest in the Sandia Development *46 Corporation as represented by capital stock and notes. "4. Assignment of Water Contract refund on Creighton Manor Tract, Phoenix, Arizona. "5. Assignment of F.H.A. fee refund of $25.00 per house on all houses built under the joint venture." This letter was accepted in writing by Sandia and written assignments and deeds were executed to transfer the assets listed to Sandia. On or about August 6, 1951, Sandia, La Mar and Lundgren entered into a written contract to terminate and liquidate the joint venture. This agreement was the result of extended bargaining sessions between La Mar, Lundgren and Sandia, all parties being represented by legal counsel. The agreement provides that Sandia shall be the liquidating agent for the corporation and all assets should be forthwith transferred to Sandia. It also changes the formula for dividing the profits between the joint ventures, the formula being rather complicated. It provides that Sandia shall first pay out of the assets of the joint venture, as liquidated, all of the debts and obligations of the joint venture. Paragraph 10 provides for the distribution of the assets of the joint venture after the payment of its obligations. This paragraph first provides that Sandia shall receive its capital investment and then the following payment is to be made: "`B' To Sandia ninety (90%) percent of a sum to be computed by subtracting any profits in excess of Twenty-four Thousand Dollars ($24,000) realized from the sale of properties in Tisdale Unit No. 3, Group 1, from the sum of One Hundred Ten Thousand Seven Hundred Dollars ($110,700). The last Twenty Thousand Dollars ($20,000) of the above amount stated to be paid to Sandia, however, shall not be paid to Sandia, but shall be paid direct to Lundgren." It is clear that this formula guarantees to Sandia considerably less profits than had been guaranteed to it by the November 1, 1950, modification. The agreement further provided that at such time as Sandia should receive back its capital investment and its share of the profits, as stated in the above-quoted portion of the contract, Lundgren should receive back Items 1 and 2 of the five items of collateral described in the May 5, 1951, letter agreement. In pursuance of this agreement, all of the assets of the joint venture were transferred to Sandia and it proceeded to liquidate the affairs of the joint venture. All such transfers to Sandia took place after Sandia had been qualified as a foreign corporation to do business in this state. At this time, August 6, 1951, the joint venture had sold all but approximately 45 of the approximately 350 houses constructed by it. No more *47 construction was commenced after August 6, 1951, and by October 31, 1951, all but ten of these houses had been sold. Mr. Burgess testified that the profits from the "Tisdale Unit No. 3, Group No. 1" was approximately $18,500 and definitely less than the $24,000 figure mentioned in Paragraph "B" of the agreement. This would result in Sandia being entitled to receive, under the August 6, 1951, agreement, the first $79,630 of profit of the joint venture. According to the statement of Mr. Burgess dated October 31, 1951, the joint venture had a profit of $72,768.09, which accounting assumed that all the houses would be disposed of at the agreed price (10 were unsold as of that date), that La Mar would pay to the joint venture an indebtedness of $25,734.77 owing to the joint venture, and that Lundgren would pay to the joint venture an indebtedness of $3,693.16. Mr. Kurz's accounting, dated May 15, 1953, indicates that under the August 6, 1951, agreement there is a deficiency owing to Sandia in the sum of $45,072.41, after taking into account certain worthless account receivables, including the two above. Though the books of the joint venture were in possession of legal counsel for La Mar and Lundgren since May 5, 1955, no accountant was called by the plaintiff to controvert the accounts submitted by the two accountants, Burgess and Kurz, who testified on behalf of the garnishee. M.L. Lundgren testified that in "his opinion" the joint venture was indebted either to him or to La Mar in an amount between $50,000 and $100,000. In other portions of his testimony, Lundgren stated that his estimation in this regard was not a "conclusion" but an "opinion", that he did not understand the computation of profits made by the accountants, and that "those books did need an experienced accountant to go through for days and days to get a complete accounting." With this outline of the facts, the court will proceed to discuss the legal issues raised. The appellant strongly contends there was no evidence to support any judgment against the garnishee and that the rightful order of this court should be to enter judgment for the garnishee. In order to determine the correctness of this contention, the court must examine the several legal theories upon which the plaintiff's tender of issue, as amended, was based. In this consideration, it must be remembered that the plaintiff, being only an unsecured creditor of the defendants, can, at the most, recover no more than the defendants themselves could recover against the garnishee in a direct action. Wilkinson v. Takesuye, 66 Ariz. 205, 185 P.2d 778; Ellery v. Cumming, 40 Ariz. 512, 14 P.2d 709, 83 A.L.R. 1081; Valley Products, Inc. v. Kubelsky, 49 Ariz. 500, 68 P.2d 69, 38 C.J.S. Garnishment § 176. *48 The original tender of issue alleged that the garnishee was "indebted" to the defendants under a certain written agreement of August 6, 1951. The plaintiff now contends that there was sufficient evidence of such an indebtedness to support a judgment against the garnishee upon this theory. The plaintiff also contends that this agreement of August 6, 1951, is illegal in that it was entered into by Sandia before it was qualified to do business in this state in violation of Section 10-482, A.R.S., which reads as follows: "No foreign corporation shall transact business in this state until it has complied with the requirements of § 10-481, and every act done prior thereto is void." We are unable to find any evidence in the record that garnishee was indebted to defendants either at the time of the service of the writ of garnishment or at the time of the answer thereto. To the contrary, the court is of the opinion that all of the competent evidence presented during the trial establishes that, contrariwise, the defendants were indebted to Sandia under this agreement. The only evidence indicating that Sandia might be indebted to the defendants in any amount was the opinion evidence of the defendant, M.L. Lundgren. The court does not deem this evidence to have any probative value. Ordinarily, opinion evidence upon the question of an indebtedness, from one who is not an expert in the field of accounting, is not competent (Albert Steinfeld & Co. v. Wing Wong, 14 Ariz. 336, 128 P. 354; 32 C.J.S. Evidence § 468; 20 Am.Jur., Evidence, section 765). This rule should be particularly applicable when, as in this case, the question of whether one party or the other to a joint venture is indebted to the other must be determined by the net result of literally thousands of separate financial transactions. The plaintiff's original tender of issue also alleged that the garnishee had in its possession moneys, properties, or things of value belonging to the defendants. To substantiate this allegation, the plaintiff relies upon that provision of our code pertaining to unqualified foreign corporations, quoted above. This court is inclined to agree that Sandia was doing business in this state at a time when it was not qualified to do so. We have held: "* * * that, to come within the statute, a corporation must be engaged in an enterprise of some permanence and durability, and must transact within the state some substantial part of its ordinary business, and not merely a single act. * * *" Monaghan & Murphy Bank v. Davis, 27 Ariz. 532, 234 P. 818, 819. *49 In this case, the actions of Sandia, as one of two joint venturers in the constructing of hundreds of houses in the Phoenix area and in the engaging in the many transactions incident to tract development, would certainly meet the test above stated. The court also agrees with the plaintiff's contention that it makes no difference whether the agreement of August 6, 1951, was entered into immediately before or immediately after the qualifying of Sandia to do business in this state on August 6, 1951. This agreement is predicated upon all of the prior operations of the joint venture, and the prior contracts entered into by the parties, and is so much related to the illegal activities of Sandia as an unqualified foreign corporation that this contract must stand or fall to the same extent as the prior contracts between the parties which it superseded and modified. From the predicate laid, that the business conducted by Sandia prior to August 6, 1951, was in violation of the above-quoted Section 10-482 of A.R.S., the plaintiff would have the court find that the garnishee now owes the defendants in excess of $30,400. This court cannot reach such a conclusion. As has already been observed, as the result of the contracts entered into, there is no evidence that the garnishee was indebted to the defendants or either of them. If the defendants were entitled to recover anything from the garnishee, it must be based upon some equitable theory of restitution or rescission. Assuming, without deciding, that garnishment proceedings will reach purely equitable claims of this nature, this court finds it impossible to untie the Gordian knot which has resulted from the multifarious transactions between the defendants and the garnishee, and the court does not believe that an Alexandrian slashing of the knot at this time would do justice to those concerned. It is very evident the contractual relations of the parties had been substantially fully executed by the time the writ of garnishment was served on September 12, 1952. The authority seems to generally be that when contracts entered into by a nonqualifying corporation have been fully executed, that courts will not undo them (Fletcher Cyclopedia Corporations, Perm. Ed., Vol. 17, Section 8527, and Williston on Contracts, Revised Ed., Section 1787). Rights of third persons have intervened in that hundreds of homes have been sold to innocent third persons in pursuance of these contracts. The defendants are in no equitable position to take advantage of the failure of the garnishee to qualify as a foreign corporation in that the defendants themselves were at least partly responsible for garnishee's failure to qualify. The defendant, Lundgren, was the president of the garnishee corporation during *50 substantially all of the time it was doing business in this state in violation of the quoted statute and he, in turn, was the sole owner of the defendant, La Mar Homes. One seeking equitable relief must do equity before being entitled thereto, even when an unqualified corporation is concerned (Windisch v. Mortgage Security Corporation of America, of Norfolk, Va., 254 Mich. 492, 236 N.W. 880). This the defendants are in no position to do, and therefore the court finds no right of recovery against garnishee under equitable theories. Those portions of the tender in issue alleging "conversion" of assets by the garnishee are unsupported by the evidence and, moreover, do not state a cause of action in a garnishment proceeding, 38 C.J.S. Garnishments § 91; Black v. Plumb, 94 Colo. 318, 29 P.2d 708, 91 A.L.R. 1334. There appearing then to be no claim either in law or in equity established by any competent evidence in the record which could have been enforced by the defendants against the garnishee, it follows that the plaintiff cannot prevail in this garnishment proceeding. In view of this ruling of the court, it is deemed unnecessary to rule upon the additional assignments of error raised by the appellant. It is Therefore Ordered that judgment be entered for the garnishee and against the plaintiff and for their costs in this action. The trial court is directed to determine the extent to which the garnishee is entitled to recover attorney's fees under applicable law. Judgment reversed with directions. PHELPS, C.J., and UDALL, JOHNSON and BERNSTEIN, JJ., concurring. NOTE: Justice STRUCKMEYER having disqualified, the Hon. JOHN F. MOLLOY, Judge of Superior Court, Pima County, was called to sit in his stead and participate in the determination of this appeal.

621 F.Supp. 3 (1984) Thelma COLE, Plaintiff, v. STATE OF ALASKA, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, DIVISION OF MARINE HIGHWAY SYSTEMS, Defendant. No. A83-087 CIV. United States District Court, D. Alaska. August 20, 1984. *4 Jeffrey R. Walsh, San Francisco, Cal., William G. Azar, Anchorage, Alaska, for plaintiff. Marilyn J. Kamm, Dept. of Justice, Anchorage, Alaska, for defendant. MEMORANDUM AND ORDER VON DER HEYDT, District Judge. THIS CAUSE comes before the court on defendant State of Alaska's motion to dismiss the complaint for lack of subject matter jurisdiction. Defendant's request for oral argument is denied in order to expedite the business of the court. a. BACKGROUND Plaintiff alleges she was injured while on board the M/V Matanuska and in the employment of the State of Alaska. She seeks money damages against the state, alleging jurisdiction and substantive rights under the Jones Act, 46 U.S.C. § 688 and the general maritime law of unseaworthiness. The state argues that it has immunity to both the Jones Act and unseaworthiness claims under the Eleventh Amendment. The plaintiff argues that Alaska has either expressly or constructively waived its immunity to suit as to both claims. b. CONSTRUCTIVE WAIVER OF IMMUNITY TO JONES ACT A state may waive its immunity by engaging in an activity regulated by Congress when Congress has constitutional authority to enact the regulatory statute and that statute authorizes suits against the state. Department of Educ., State of Hawaii v. Katherine D., 727 F.2d 809 (9th Cir.1983) citing Parden v. Terminal Ry. of Alabama State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (state consents to waive immunity by operating a railroad as a common carrier subject to FELA). In Cocherl v. Alaska, 246 F.Supp. 328 (D.Alaska 1965), this court, applying Parden, held that Alaska had waived its Eleventh Amendment immunity to suit under the Jones Act by operating a ferry as a common carrier in interstate commerce on navigable waters. Id. at 330. In Cocherl, the court noted the express linkage of the Jones Act to the Federal Employers' Liability Act. See also Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 546-47, 80 S.Ct. 926, 930-31, 4 L.Ed.2d 941 cited in In re Holoholo, 512 F.Supp. 889, 902-03 (D.Hawaii 1981). For the purposes of this motion to dismiss, the facts in Cocherl are indistinguishable from those claimed here.[1] Eight years after Cocherl, the Supreme Court was presented with a claim of constructive waiver by the state of Missouri as a result of Congress' inclusion of the state as employer within the coverage of the Fair Labor Standards Act. The Supreme Court declined to find a Congressional abrogation of immunity by the mere amendment of the FLSA to include certain state employers. See Employees of Dept. of Public Health and Welfare v. Missouri, 411 U.S. 279, 284-88, 93 S.Ct. 1614, 1617-19, 36 L.Ed.2d 251 (1973). *5 The question presented is the effect of the subsequent Supreme Court decisions and this circuit's interpretations on the holding in Parden. According to Justice Douglas in Employees, Parden could be put aside because it involved a rather isolated state activity — the operation of a railroad as a common carrier for profit. With respect to state institutions not operated for profit, Congress would not abrogate immunity "without indicating in some way by clear language that the constitutional immunity was swept away." In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) Justice Rehnquist reconciled Parden and Employees as "cases involving a congressional enactment which by its terms authorized suit by designated plaintiffs against a class of defendants which literally includes states.... The question of waiver or consent under the eleventh amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question and whether the state by its participation in the program authorized by Congress had in effect consented to the abrogation of the immunity." Presumably, the difference in final results in the cases is explained by the presence in Parden of a Congressional intent to abrogate and the State's consent by participating as a proprietary common carrier by rail and by the absence of the same in Employees. In any event, nothing presented to the court suggests that Parden is no longer good law on its facts. Cf. Scanlon v. Atascadero State Hosp., 735 F.2d 359, 361, (9th Cir.1984) (following Parden's use of broad statutory definition). Because Cocherl was grounded not on any extension of the facts in Parden but rather rested squarely on (1) the expressed extension of FELA to seamen in the Jones Act and (2) on analogous proprietary activity by the state as a common carrier, the court considers its holding in Cocherl undisturbed. Accord, In re Holoholo, 512 F.Supp. at 889-903; Brody v. North Carolina, 557 F.Supp. 184 (E.D.N.C.1983); but cf. Sullivan v. Georgia, 724 F.2d 1478 at 1481-82 (11th Cir.1984) (finding no clear statement in Jones Act of intent to abrogate immunity for non-profit research activity); Faust v. South Carolina State Highway Department, 721 F.2d 934 (4th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984) (no federal statute created private cause of action for pleasure boaters against state). The court is aware of subsequent circuit court decision which have appended a strict "clear statement" test onto the Parden test for constructive waiver of immunity. See, e.g., Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 365 (5th Cir.1973) (drawbridge); Riggle v. State of Calif., 577 F.2d 579, 584 (9th Cir.1978) (citing Intracoastal with approval) (state operated bridge); see also Sullivan v. Georgia, 724 F.2d 1478, 1480-81 (11th Cir.1984) (reviewing decisions) (non-profit research). The Ninth Circuit has adopted the following test for establishing a waiver of immunity: "Eleventh Amendment immunity will be waived when [1] Congress has authorized suit against a class of defendants that includes states, and [2] the state enters into the activity regulated by federal law." Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1285 (9th Cir.1979); see also Department of Education, State of Hawaii v. Katherine D, 727 F.2d 809 (9th Cir.1983); Scanlon v. Atascadero State Hosp., 735 F.2d 359 (9th Cir.1984) (applying Mills test). In reviewing the precedent for finding Congressional intent to abrogate immunity in broad statutory definitions of defendant classes, this circuit cited the FELA and the Jones Act, as was applied to an interstate compact in Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), as examples of a state's inclusion within broadly defined defendant classes. The court considers these references by example to the FELA and the Jones Act indicative of the continuing validity of the major holding in Cocherl. Express Waiver Because the court considers the doctrine of constructive waiver applicable and satisfied here, it declines to address plaintiff's *6 argument that the state has expressly waived immunity to suits under the Jones Act in its Attorney General Opinion No. 28. Count II — State's Liability for Unseaworthiness In Cocherl, the court dismissed plaintiff's claims for unseaworthiness on the grounds that defendant's consent to suit under the Jones Act did not extend to consent to a claim based on general maritime law for unseaworthiness. See Cocherl v. State of Alaska, 246 F.Supp. at 330. Defendants move to dismiss the unseaworthiness claim on the basis of that authority. Plaintiffs argue that Alaska has by statute waived its Eleventh Amendment immunity from suit in federal court. Alaska Stat. 09.50.250 provides, in pertinent part: "A person or corporation having a contract, quasi-contract or tort claim against the state may bring an action against the state in the superior court." Plaintiff analogizes this statute to Washington's general waiver of sovereign immunity at Wash.Rev.Code § 4.92.090 (Supp. 1982).[2] Plaintiff then argues that the court in Metz v. State of Washington, 558 F.Supp. 17, 19 (W.D.Wash.1982) found that this waiver of sovereign immunity "constituted a specific waiver of Eleventh Amendment immunity from suits under the general maritime law for `unseaworthiness.'" Plaintiff has incorrectly represented the reliance which Metz places upon Wash.Rev. Code § 4.92.090. As Judge Beeks noted, a state may waive immunity from suit in its own courts without thereby waiving its Eleventh Amendment immunity from suits in federal court. Metz, 558 F.Supp. at 19 citing Riggle v. California, 577 F.2d at 585. In finding a waiver of eleventh amendment immunity for unseaworthiness, Judge Beeks relied on Washington's express determination to operate its ferry as a common carrier and to be subject to a common carrier's liability for, inter alia, personal injury. Wash.Rev.Code 47.60.220 (1970); see Metz, 558 F.Supp. at 19. While the significance of Wash.Rev.Code 4.92.090 in Judge Beek's finding of a waiver of eleventh amendment immunity is not fully explained, it is clear that § 4.92.090 alone did not express the state's consent to suit in federal court. See generally Great Northern Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 876, 88 L.Ed. 1121 (1944). Plaintiff has cited Alaska Atty.Gen. Op.No. 28, August 28, 1963 in support of its argument that Alas.Stat. 09.50.250 is a waiver of eleventh amendment immunity. In that opinion, the attorney general concluded that the above cited statute permitted the state to be sued for negligent torts which arise under the Jones Act. Id. at 12. The opinion is silent, however, with respect to a waiver of eleventh amendment immunity to suits for unseaworthiness. While it is apparent that Alaska Stat. 09.50.250 is not, in itself, a waiver of eleventh amendment immunity, this state's department of transportation has promulgated regulations governing the operation of the marine highway system which are in certain particulars comparable to Washington's common carrier statute, Wash. Rev.Code, 47.60.220, relied upon by Judge Beeks as evidencing a waiver of eleventh amendment immunity.[3] Specifically, both ferry systems operate upon navigable waters of the United States and Canada and *7 are subject to Coast Guard's jurisdiction. 17 AAC 70.070.[4] Both ferry systems have subjected themselves to liability. Defendants suggest great significance may be found in the fact the state, by regulation, has attempted to limit its liability for personal injury to acts of gross negligence. See 17 AAC 70.090(a)(7); but see 17 AAC 70.090(b) (ferry system otherwise subject to common law). In so doing, the Alaska ferry system, it is argued, has not assumed the liability of a common carrier and therefore, apparently, not waived immunity. Even assuming (1) that the regulation in question is properly construed to limit the ferry's liability for personal injury to acts of gross negligence and (2) that the regulation is enforceable as an exculpation of ordinary negligence, see Alaska Stat. 09.50.250 (general waiver of immunity), the court finds little evidence therein that the ferry system lacks the status of a common carrier. To the contrary, the Alaska Legislature has defined its ferries as vessels "used in the common carriage of passengers and self-propelled vehicles in intrastate commerce." Alaska Stat. 19.60.070(2) (1983 Supp.). As in Metz, this court concludes that the express entry of Alaska into the common carriage of passengers on navigable United States and international waters, its express submission to Coast Guard regulation and jurisdiction, its consent to suit for personal injury (regardless of how limited) taken together evidence of waiver of eleventh amendment immunity for suits in federal court for recovery for personal injury based on unseaworthiness. In this aspect, the decision in Cocherl v. Alaska is overruled. Accordingly, IT IS ORDERED: THAT defendant's motion to dismiss is denied. NOTES [1] The defendant in reply has offered an affidavit evidencing subsidies and the lack of profitability of the Alaska Marine Highway System in an effort to characterize the ferry system as a governmental rather than proprietary activity. The court declines at this juncture and given the lack of notice to permit the conversion of this motion to dismiss into one for summary judgment by considering factual matters outside the pleadings. [2] Wash.Rev.Code § 4.92.090 provides: The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person. [3] Wash.Rev.Code § 47.60.220 (1970) provides: The authority shall have all the obligations, duties and rights of a common carrier of persons and property in its operation of ferries, terminals or other facilities used in its ferry operations, including the right to participate in joint rates and through routes, agreements, and divisions of through and joint rates with railroads and other common carriers and the right to make any filings with the interstate commerce commission, the United States maritime commission or any other state or federal regulatory or governmental body and to comply with the lawful rules and regulations and requirements of any such body, and shall be subject to laws relating to carrier's liability for loss or damage to property transported, and for personal injury or death of persons transported. [4] Unlike Washington, Alaska has not broadly subjected itself to ICC regulations. 17 AAC 70.010 provides, in part: The ferry system has been classified by the U.S. Court of Appeals, Ninth Circuit, as a marine highway. Regulation of the Interstate Commerce Commission, United States Department of Transportation and/or Alaska Transportation Commission are not applicable.... The reference is apparently to Alaska Steamship Company v. FMC, 399 F.2d 623, 627 (9th Cir. 1968).

Citation Nr: 1761201 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 09-04 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as nervous breakdown. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The case is currently under the jurisdiction of the VA RO in St. Petersburg, Florida. In September 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2011, the Board issued a decision denying the Veteran's claim. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court), which vacated and remanded the Veteran's appeal in November 2011 for actions consistent with a Joint Motion for Remand. Thereafter, the Board remanded the appeal in August 2012, December 2013, July 2014, and January 2015 for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the appeal must unfortunately be remanded once again so that VA may comply with prior Board remand directives. In its January 2015 remand, the Board noted that, in an August 2014 addendum, a January 2014 VA psychologist opined that the theory advanced by another medical professional that the administration of megadoses of medication at the beginning of the Veteran's period of active service led to a psychiatric breakdown was without widely held medical support. However, the examiner, who is a clinical psychologist, strongly recommended that the theory be further addressed by a psychiatrist or other medical doctor. The Board further noted that no effort had been taken to have a psychiatrist or other medical doctor address the theory. Therefore, the Board directed the AOJ to, among other things, afford the Veteran a VA examination by a neuropsychiatrist to ascertain the impact, if any, of the administration of a claimed megadose of medication(s) to the Veteran at the time of his entrance into active service or within the first two months of his period of service. A review of the record reveals that the Veteran was not provided a VA examination with a neuropsychiatrist as directed in the January 2015 Board remand. Compliance with Board remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, because the VA examination by a neuropsychiatrist was not provided as directed, the Board must remand the matter so that the January 2015 remand directives may substantially be completed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by a neuropsychiatrist or other medical doctor qualified to provide the information requested below. The record should be provided to the clinician in its entirety for use in the study of this case. Such examination should include a detailed psychiatric history, mental status evaluation, and any other testing deemed necessary by the examiner. All pertinent diagnoses should be set out in detail. The examining clinician should offer opinions as to each of the following: a) Was any currently diagnosed psychiatric disorder present during service? If so, is it clear and unmistakable that any such acquired psychiatric disorder existed prior to the Veteran's entrance into active service in April 1969 and, if so, is it equally clear and unmistakable that any preexisting disorder was not aggravated during his active service beyond the normal progression of the disorder? The examiner should note that, for VA purposes, a personality disorder is not an acquired psychiatric disorder for which service connection may be granted. b) If any currently existing disorder referenced in (a) above did not either preexist service or if preexisting was not aggravated in service, is it at least as likely as not (50 percent or greater probability) that any such disorder had its onset during the Veteran's active service or is otherwise attributable to his active service or any event therein? As to both of the above-noted questions, the examiner should assess the impact, if any, of the Veteran's reported receipt of various medications at the time of his entrance into active service and in the months following. In addressing this question, the examiner should discuss in detail the theory that the Veteran's acquired psychiatric disorder was caused by a megadose of medication(s) administered at the beginning of his period of active service, which was put forth by Dr. A. B. in November 2013. The examiner is advised that, for legal purposes, aggravation is defined as a worsening of the underlying disability beyond its natural progression, as opposed to a temporary flare-up of symptoms. The examiner is further advised that "clear and unmistakable" evidence is that which is manifest and undebatable. However, the clear and unmistakable evidentiary standard does not require the absence of conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).

247 F.2d 677 Ruth M. NOEL and Wm. H. Frantz, Executors of the Estate of Marshal L. Noel, Deceased, Plaintiffs-Appellants,v.LINEA AEROPOSTAL VENEZOLANA, Defendant-Appellee. No. 368. Docket 24491. United States Court of Appeals Second Circuit. Argued May 8, 1957. Decided August 9, 1957. Harry Norman Ball and Joseph G. Feldman, Philadelphia, Pa., and Lipper, Shinn & Keeley, New York City (Morris L. Weisberg, Philadelphia, Pa., of counsel), for plaintiffs-appellants. William J. Junkerman and Douglas B. Bowring, New York City (Haight, Gardner, Poor & Havens, New York City, of counsel), for defendant-appellee. Before CHASE, HINCKS and LUMBARD, Circuit Judges. LUMBARD, Circuit Judge. 1 The narrow issue in this case is whether plaintiff may bring a civil action based on either the Warsaw Convention, 49 Stat. 3000 (1934), or the Federal Death on the High Seas Act, 46 U.S.C.A. §§ 761-767, for a death which allegedly occurred in the airspace over the high seas. 2 Since this case was disposed of on a dismissal of the complaint, the facts before us are those alleged in the complaint, as amended. 3 Plaintiffs, the executors of Marshal L. Noel's estate and citizens of New Jersey and Pennsylvania, brought an action in the United States District Court for the Southern District of New York on the civil side against the defendant, a corporation or entity owned by the United States of Venezuela. In their complaint, plaintiffs allege that on June 19, 1956, the decedent, Marshal L. Noel, boarded defendant's four-engine Super Constellation enroute from New York to Caracas, Venezuela. At 1:30 A.M. on June 20 when the plane was over the Atlantic Ocean approximately 30 miles from New Jersey, Noel was killed, allegedly because of defendant's "wrongful acts, neglect, default, and wilful misconduct." In their original complaint, plaintiffs alleged that the plane crashed into the sea and that Noel died in the water. The action was based on the Warsaw Convention and the Federal Death on the High Seas Act, and plaintiffs demanded a jury trial. 4 Judge Cashin dismissed the original complaint for lack of jurisdiction over the subject matter on the ground that (1) actions under the Federal Death on the High Seas Act are cognizable only in admiralty; (2) the Warsaw Convention does not create an independent right of action. Judge Cashin noted that "it is not contended that the admiralty forum would deny to the plaintiffs their substantive cause of action for wrongful death." [144 F.Supp. 361.] 5 Plaintiffs then amended their complaint to allege that the death occurred in the airspace over the high seas. They contended that because the death occurred over the water, an action based thereon cannot be brought in an admiralty forum, and if the jurisdiction for actions under the Federal Death on the High Seas Act is exclusively admiralty, then they are without a remedy and that in such circumstances the Warsaw Convention grants them a right of action. Defendants objected to plaintiffs' procedure in amending the complaint and moved again to dismiss on the merits. Judge Cashin, choosing to dispose of the case on the jurisdictional, rather than the procedural grounds, ruled that there should be no material difference between deaths in or above the water, and adhered to his original decision. 154 F.Supp. 162. For a different and narrower reason, we affirm. 6 1. The Warsaw Convention. 7 Plaintiffs allege first that under New York law, Article 17 of the Warsaw Convention creates an independent right of action1 and since this complaint alleges diversity jurisdiction, under Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477, we must follow the law of New York and also hold that the Warsaw Convention provides an independent right of action. We do not agree. 8 Although jurisdiction of the first count under the Warsaw Convention is allegedly based on diversity, the law to be applied in this case is not state law but a federal treaty. It is applied in the state courts not because it expresses a state policy which a federal court must follow, but because it expresses federal policy which a state court must follow. And in interpreting a federal treaty, the federal courts are certainly not bound by state court interpretations.2 9 In any event, we agree with our prior decision in Komlos v. Compagnie Nationale Air France, 2 Cir., 1953, 209 F.2d 436, 438, which impliedly agreed with Judge Leibell's decision. Komlos v. Compagnie Nationale Air France, D.C.S.D.N.Y.1952, 111 F.Supp. 393, that the Convention did not create an independent right of action. As Judge Leibell pointed out, Secretary of State Hull's letter to President Roosevelt, dated March 31, 1934, indicated that the effect of Article 17 on which plaintiffs rely for their argument was only to create a presumption of liability, leaving it for local law to grant the right of action.3 As one authority has stated, the purpose of the Convention was only "to effect a uniformity of procedure and remedies." Orr, The Warsaw Convention, 31 Va.L. Rev. 423 (1945); see also Comment, Air Passenger Deaths, 41 Corn.L.Q. 243, 255-60 (1956); Fixel, The Law of Aviation, § 23 (1948). 10 Plaintiffs, relying on a dictum in Judge Leibell's opinion in Komlos, 111 F.Supp. at page 393, argue that where the law of the place of the injury provides no right of action or where there is no law of the place of injury the Warsaw Convention provides one. They then argue that the Federal Death on the High Seas Act does not grant them a right of action, for that does not apply to deaths in the airspace. 11 We see no justification for such a reading of the Convention. The language of Article 17 does not indicate any difference between situations where the law of the place of injury does grant a right of action and where it does not. See Comment, 41 Corn.L.Q. at 256. Nor does the history of the Convention support this dictum. Thus, regardless of whether the Federal Death on the High Seas Act provides a remedy, Article 17 does not. 12 2. The Federal Death on the High Seas Act. 13 Plaintiffs' second count is under the Federal Death on the High Seas Act. They argue in the alternative that the Federal Death on the High Seas Act does grant them a right of action and that it may be brought on the civil side. See Choy v. Pan American Airways Co., D.C. S.D.N.Y., 1941 A.M.C. 483. We do not find it necessary to pass on the question of whether the Act grants a right of action for deaths in the airspace,4 for we conclude that any rights created by that Act are cognizable only in admiralty and hence the action was correctly dismissed from the civil side. 14 Plaintiffs contend that the phrase in the statute, "may maintain a suit for damages * * * in admiralty," means that a plaintiff may sue either at law or in admiralty. But the language and legislative history make it very clear that the permissive element relates solely to the grant of the right and not to the forum. Whereas before the Act a party could not sue under federal law for death on the high seas at all, now he may. Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780; Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85; Iafrate v. Compagnie Generale Transatlantique, D.C.1952, 106 F.Supp. 619; see Comment, 41 Corn.L.Q. at 248-50. 15 Other sections of the Act support this conclusion. Thus, the survival section refers to "pendency in a court of admiralty," and if suit could be maintained in other forums, there would be no reason to restrict the survival provision in this manner. Moreover, the legislative history also supports this reading. See 59 Cong.Rec. 4482-84 (1920). Whatever the merits and demerits of the admiralty forum, see Comment, 55 Col.L.Rev. 907, 912-16 (1955), the statutory language and the legislative history are clear. 16 To summarize: the first count fails to state a cause of action under New York law; the second count, under the Federal Death on the High Seas Act, cannot be brought on the civil side of the District Court; the third count fails to state a cause of action as the Warsaw Convention created no right of action. Accordingly we affirm the dismissal of the complaint but without prejudice to plaintiff's right to transfer the case to the admiralty side of the court for adjudication of the second count of the amended complaint. We express no opinion as to whether the Death on the High Seas Act grants a right of action in admiralty for death in the airspace. Notes: 1 Article 17 "The carrier shall be liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." 2 As a matter of fact, New York law does not favor the plaintiffs. Although Salamon v. Koninklijke Luchtvaart Maatschappij, Sup.1951, 107 N.Y.S.2d 768, affirmed, 1st Dept.1953, 281 App.Div. 965, 120 N.Y.S.2d 917 does hold that the Warsaw Convention creates a right of action, Wyman v. Pan American Airways, 1943, 181 Misc. 963, 43 N.Y.S.2d 420, affirmed, 1st Dept.1944, 267 App.Div. 947, 48 N.Y.S.2d 459 holds to the contrary and the latter decision was affirmed by the New York Court of Appeals, 293 N.Y. 878, 59 N.E.2d 785, certiorari denied, 1944, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 3 "The effect of article 17 (ch. III) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier. The burden is upon the carrier to show that the injury or death has not been the result of negligence on the part of the carrier or his agents. * * *" 1934 U.S.Av.Rep. 240, 243 4 That problem raises grave constitutional questions as to the permissible scope of admiralty jurisdiction. See Comment, 55 Col.L.Rev. at 917 n. 85, 920 n. 80; Bogert, Problems of Aviation Law, 6 Corn.L.Q. 271, 303-05 (1921); Veeder, Legal Relations between Admiralty and Aviation, 2 Air.L.Rev. 29 (1931); cf. Wilson v. Transocean Airlines, D.C.N.D. Cal.1954, 121 F.Supp. 85

186 F.2d 304 RUBINOv.COMMISSIONER OF INTERNAL REVENUE (two cases). No. 12535. No. 12536. United States Court of Appeals, Ninth Circuit. January 2, 1951. Rehearing Denied February 8, 1951. Wareham C. Seaman, Stockton, Cal., for petitioners. Thereon Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, L. W. Post, Spc. Assts. to Atty. Gen., for respondent. Before STEPHENS and HEALY, Circuit Judges, and MATHES, District Judge. PER CURIAM. 1 These cases are here on petition to review a decision of the Tax Court relating to a deficiency assessment. The Commissioner had determined that the property involved, namely, a number of houses constructed by the petitioners, were held by the latter primarily for sale to customers in the ordinary course of trade or business within the meaning of § 117(j) (1) of the Internal Revenue Code, 26 U.S.C.A. § 117(j) (1), hence the profit from the sale is taxable as ordinary income. Petitioners' argument is that the property was held primarily for rental purposes, and that the gains from the sales should be treated as long-term capital gains. The Tax Court made findings resolving the dispute in favor of the Commissioner's determination. 2 The issue is essentially one of fact. We see no clear error in the Court's finding, and its judgment is accordingly affirmed.

205 F.3d 493 (1st Cir. 2000) MAINEGENERAL MEDICAL CENTER, PLAINTIFF, APPELLANT,v.DONNA E. SHALALA, SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT, APPELLEE. No. 99-1085 U.S. Court of Appeals, First Circuit Heard October 6, 1999Decided March 8, 2000 William H. Stiles, with whom Skelton, Taintor & Abbott were on brief, for appellant. Douglas Hallward-Driemeier, Attorney, U.S. Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Jay P. McCloskey, United States Attorney, and Barbara C. Biddle, Attorney, U.S. Department of Justice, were on brief, for appellee. Before Boudin, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge. Lynch, Circuit Judge. 1 This case concerns what recourse is available to a provider hospital that, although eligible to receive Medicare reimbursement for certain expenses, mistakenly fails to ask for that reimbursement in a timely manner. The Secretary of Health and Human Services reimburses hospitals and other organizations for services they provide to beneficiaries of the Medicare program, 42 U.S.C. § 1395 et seq. After the end of each fiscal year, a hospital must submit a cost report to a "fiscal intermediary," a private firm that processes claims for the Secretary. The intermediary reviews the cost report and issues a Notice of Provider Reimbursement (NPR), which indicates the reimbursement to which the provider is entitled. If a provider is dissatisfied with an NPR, it can appeal to the Provider Reimbursement Review Board (the Board). See 42 U.S.C. § 1395oo(a). 2 In its cost reports for 1993 and 1994, Kennebec Valley Medical Center (Kennebec), a hospital in Augusta, Maine, listed zero as its claim for bad debts reimbursable by Medicare. Reimbursable bad debts are uncollectible debts resulting from the failure of Medicare beneficiaries to pay deductible or coinsurance amounts. See 42 C.F.R. § 413.80(d). Mid-Maine Medical Center (Mid-Maine), a hospital in Waterville, Maine, similarly listed zero for reimbursable bad debts in its 1994 cost report. After the intermediary, Blue Cross and Blue Shield of Maine, issued NPRs for these three cost reports in July and September 1996, both Kennebec and Mid-Maine appealed to the Board. In their appeals, Kennebec and Mid-Maine raised several objections to the NPRs, including claims that they were entitled to reimbursement for Medicare-related bad debts despite having listed zero for them in their cost reports. Kennebec and Mid-Maine asserted that the claims for zero reimbursement were mistakes that they had discovered only after the NPRs had been issued. 3 The Board dismissed the bad debts issue from all three appeals for lack of statutory jurisdiction. The Board noted that Kennebec and Mid-Maine had not included the bad debts in the cost reports they had submitted to the intermediary. Therefore, the Board reasoned, the debts were not "matter[s] covered by [a] cost report as required by 42 U.S.C. § 1395oo(a), and the Board does not have jurisdiction." Because the Secretary declined to review the Board's decision, it became a final decision of the agency. See 42 U.S.C. § 1395oo(f)(1). I. 4 While their appeals were pending before the Board, Kennebec and Mid-Maine merged to form MaineGeneral Medical Center (MaineGeneral). After the Board dismissed the bad debts issue from the appeals, MaineGeneral filed three suits in the United States District Court for the District of Maine. The court consolidated the cases on August 12, 1998. 5 Both MaineGeneral and the Secretary filed motions for summary judgment. On October 15, 1998, the Magistrate Judge issued a Recommended Decision advising that the Secretary's motion be granted. The Magistrate Judge based his recommendation on his interpretation of 42 U.S.C. § 1395oo(a). That section sets out three prerequisites for an appeal to the Board: 1) the Medicare provider must be "dissatisfied with a final determination of . . . its fiscal intermediary . . . as to the amount of total program reimbursement due the provider"; 2) the amount in controversy must be $10,000 or more; and 3) the provider must appeal within 180 days of the intermediary's final determination. 42 U.S.C. § 1395oo(a). There was no dispute that MaineGeneral had satisfied the second and third requirements. The Magistrate Judge determined that MaineGeneral had failed to fulfill the first requirement, dissatisfaction with a final determination of the fiscal intermediary. 6 The Magistrate Judge's decision relied on dictum in Bethesda Hospital Ass'n v. Bowen, 485 U.S. 399 (1988). In Bethesda, the hospitals had deliberately omitted certain costs from their cost reports, knowing that they could not claim them under the existing regulations (and that the intermediary had no authority to change the regulations). See id. at 401. The hospitals later sought to challenge the regulations and claim the costs in a hearing before the Board. See id. The Secretary contended that the Board lacked jurisdiction over the claims because the hospitals could not be "dissatisfied" as required by § 1395oo(a) if the intermediary had simply awarded the amounts the hospitals had requested in their cost reports. See id. at 404. The Supreme Court concluded, however, that the hospitals "could claim dissatisfaction, within the meaning of the statute, without incorporating their challenge in the cost reports filed with their fiscal intermediaries." Id. at 405. 7 In discussing its holding, the Court observed: 8 [P]etitioners stand on different ground than do providers who bypass a clearly prescribed exhaustion requirement or who fail to request from the intermediary reimbursement for all costs to which they are entitled under applicable rules. While such defaults might well establish that a provider was satisfied with the amounts requested in its cost report and awarded by the fiscal intermediary, those circumstances are not presented here. 9 Id. at 404-05. The Magistrate Judge, agreeing with the Seventh Circuit that the above language "strongly suggests that a hospital that does not ask its intermediary to reimburse it for all of the costs for which it is entitled to be reimbursed cannot, on appeal to the Board, first ask for new costs," Little Co. of Mary Hosp. & Health Care Ctrs. v. Shalala, 24 F.3d 984, 993 (7th Cir. 1994), found that MaineGeneral's claim of zero for bad debts on its cost reports meant that it could not be "dissatisfied" with the intermediary's determination of the bad debts issue. Because MaineGeneral was not "dissatisfied," it failed to meet the first requirement of Board jurisdiction under § 1395oo(a).1 The district court issued an order adopting the Magistrate Judge's recommendation and entered judgment in favor of the Secretary on December 9, 1998. This appeal followed. II. 10 Under the Medicare program, fiscal intermediaries make estimated payments to hospitals and other service providers throughout the year based on each institution's projected costs. See 42 U.S.C. § 1395g(a); 42 C.F.R. § 413.60(a), (c). Providers are required to submit a cost report after the end of each fiscal year.2 See 42 U.S.C. § 1395g(a); 42 C.F.R. § 413.20(b). A cost report is a lengthy, complex document, sometimes three-quarters of an inch thick when completed. See Athens Community Hosp., Inc. v. Schweiker, 743 F.2d 1, 3 (D.C. Cir. 1984). 11 The intermediary reviews the cost report and requests further information from the provider as necessary. See 42 C.F.R. § 413.20(d)(2). A provider may file an amended cost report to correct material errors discovered after the filing of the original cost report. See Health Care Fin. Admin., Provider Reimbursement Manual, Part I § 2931.2(A) (1999). A provider may appeal to the Board an intermediary's refusal to accept an amended cost report that was submitted before the NPR was issued. See id. § 2926 app. A, ¶¶ B.3. 12 When the review of the cost report is complete, the intermediary issues an NPR, which indicates the total reimbursement for the year covered by the cost report and explains any adjustments the intermediary has made to costs claimed by the provider. See 42 C.F.R. § 405.1803. If the total reimbursement is higher than the estimated payments already made to the provider, the Secretary pays the deficiency; otherwise, the provider refunds any overpayment to the Secretary. See 42 C.F.R. §§ 405.1803(c), 413.60(c). 13 If a provider mistakenly omits something from its cost report and discovers the mistake after the NPR has been issued, it is not left without recourse. For up to three years after the intermediary has issued an NPR, a provider can request that the intermediary reopen and revise its determination. See 42 C.F.R. § 405.1885(a). Whether to grant this request to reopen is a matter for the intermediary's sole discretion; it is subject to neither administrative nor judicial review. See Your Home Visiting Nurse Servs., Inc. v. Shalala, 119 S. Ct. 930, 933-34 (1999). MaineGeneral did not request that the intermediary reopen its NPRs; instead, it appealed to the Board. III 14 In St. Luke's Hospital v. Secretary of Health and Human Services, 810 F.2d 325 (1st Cir. 1987), this court addressed the question of whether the Board has the power to decide an issue that was not first raised before the intermediary. See id. at 326. We held that it does, and that the power is discretionary. See id. at 330, 332. We are bound by the St. Luke's decision if it is on point, unless it has been subsequently overruled or other exceptional circumstances apply. See Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995). We think that St. Luke's is on point and remains good law. We hold, therefore, in accordance with St. Luke's, that the Board has statutory jurisdiction to hear MaineGeneral's claim, but that it is not required to hear it. 15 St. Luke's involved a dispute between a hospital and an intermediary over whether certain sick leave expenses were reimbursable. See 810 F.2d at 327. After St. Luke's included the expenses in its 1978 cost report and the intermediary denied reimbursement, St. Luke's "self-disallowed" its 1979 sick leave expenses on its 1979 cost report. See id. "Self-disallowed" costs are entered on a worksheet in the cost report, but the provider does not request reimbursement for them, and they are generally not considered by the intermediary. See St. Luke's Hosp. v. Secretary of HHS, 632 F. Supp. 1387, 1391 (D. Mass. 1986). When St. Luke's appealed its 1979 reimbursement to the Board, the Board "evidently took the position . . . that it did not have jurisdiction to consider a self-disallowed cost, there being no 'dispute' between the fiscal intermediary and the provider." Id. The district court, analyzing § 1395oo(d) -- which it termed "[t]he statutory section governing the jurisdiction of the Board" -- held that the Board had jurisdiction to hear the appeal of the self-disallowed costs. Id. at 1392-94. The Secretary appealed this determination, and this court held that the Board had the legal power to decide matters not raised below. See St. Luke's, 810 F.2d at 330. 16 In this circuit, panels "are, for the most part, bound by prior panel decisions closely on point." Williams, 45 F.3d at 592. There are two exceptions to this rule. The first is that "[a]n existing panel decision may be undermined by controlling authority, subsequently announced, such as an opinion of the Supreme Court, an en banc opinion of the circuit court, or a statutory overruling." Id. The second exception covers "those relatively rare instances in which authority that postdates the original decision, although not directly controlling, nevertheless offers a sound reason for believing that the former panel, in light of fresh developments, would change its collective mind." Id. 17 First, we must determine whether St. Luke's is closely on point. The Magistrate Judge's opinion in this case, which was adopted by the district court, distinguished St. Luke's on the ground that in St. Luke's, the hospital's failure to ask for reimbursement of certain expenses in its cost report was intentional rather than inadvertent. Nothing in the St. Luke's opinion suggests that such a distinction played a significant role in the court's interpretation of the Board's statutory jurisdiction. See 810 F.2d at 327-29. Indeed, the only point at which the St. Luke's court attaches any weight to the fact that the hospital self-disallowed the costs at issue is at the very end of the opinion, in its discussion of whether the Board should be required to hear the hospital's claim. See id. at 332 (observing that St. Luke's has "a strong equitable argument" based on self-disallowance, but holding nonetheless that the Board has discretion over whether it will hear an appeal). 18 Furthermore, the St. Luke's opinion does not distinguish cases involving inadvertently omitted costs. The St. Luke's court phrased its holding this way: 19 The question before us is whether this statute grants the Board the power to order reimbursement for costs identified in the cost report, but as to which the hospital did not specifically ask the intermediary for reimbursement. Put more broadly, the question is whether the statute gives the Board the power to decide a new issue raised for the first time before it. We believe that the statute does give the Board this power. We also believe, however, that the Board need not exercise that power. . . . . Because the District of Columbia Circuit has taken a contrary view of the matter, Athens Community Hospital v. Schweiker, 743 F.2d 1 (D.C. Cir. 1984) (Athens II) . . ., we shall explain our reasoning in some detail. 20 Id. at 326 (some citations omitted). In Athens II, the D.C. Circuit held that the Board had no jurisdiction over costs for which a provider inadvertently failed to request reimbursement. See 743 F.2d at 10 & n.17. If the distinction between "self-disallowed" costs and "mistakenly omitted" costs had been significant, the St. Luke's court could have simply distinguished Athens II on that basis. Instead, the court spent two pages explaining why it was unconvinced by the reasoning of Athens II. See St. Luke's, 810 F.2d at 329-30. In light of this, we regard the holding of St. Luke's as applicable to "matters not raised" before the intermediary, id. at 330, whether the failure to raise the matter was deliberate or inadvertent.3 21 A second possible ground for distinguishing St. Luke's here would be that St. Luke's concerned only subsection § 1395oo(d), while this case (like Bethesda) turns on the interpretation of § 1395oo(a).4 We believe that an examination of St. Luke's and Bethesda refutes this argument. First, the holding of St. Luke's is that "the Board has the legal power to decide matters not raised below." See 810 F.2d at 330. This holding is not a narrow one based on a parsing of § 1395oo(d) alone: it relies on legislative history, see id. at 328; the nature of judicial and administrative appellate bodies, see id. at 328-29; other subsections of § 1395oo, see id. at 329 (§ 1395oo(f)); and the special features of Board review, see id. To confine St. Luke's to § 1395oo(d) alone would be to ignore its language and the analytic rationale for its conclusion about the Board's jurisdiction. 22 Furthermore, Bethesda makes nothing of the possible distinction between "subsection (a)" and "subsection (d)" cases. Bethesda, which could be characterized as a subsection (a) case, states that it is "resolv[ing] a conflict among the Courts of Appeals," and lists eight circuit opinions, the majority of which could be classified as subsection (d) cases. See 485 U.S. at 402-03 & n.1; St. Luke's, 810 F.2d at 327 (noting the Secretary's argument that "§ 1395oo(d) denies the Board the power to decide any issues not first raised before the intermediary"); North Broward Hosp. Dist. v. Bowen, 808 F.2d 1405, 1409 (11th Cir. 1987) (defining "the scope of jurisdiction conferred by § 1395oo(d)"); Community Hosp. v. HHS, 770 F.2d 1257, 1262 (4th Cir. 1985) (same); Athens II, 743 F.2d at 3 ("The [Board's] jurisdiction --the crux of the dispute here -- is set out in section 1395oo(d) . . . ."); Saint Mary of Nazareth Hosp. Ctr. v. Department of HHS, 698 F.2d 1337, 1346 (7th Cir. 1983) (rejecting the Secretary's § 1395oo(d) jurisdictional argument); see also Tallahassee Mem'l Reg'l Med. Ctr. v. Bowen, 815 F.2d 1435, 1458-59 (11th Cir. 1987) (finding subsection (f) more relevant, even though the district courts and parties focused on subsection (d)). If the possible distinction between subsection (a) and subsection (d) cases mattered to the Bethesda Court, it would not have announced that it was resolving a circuit split involving subsection (d) cases in an opinion focused on subsection (a). 23 A much more plausible interpretation of Bethesda and the court of appeals cases that it cites (including the St. Luke's opinion) is that they actually deal with the question of the Board's jurisdiction under § 1395oo as a whole. For example, the Bethesda Court found its understanding of the express language of subsection (a) "supported by the language and design of the statute as a whole," 485 U.S. at 405, especially subsection (d), id. at 405-07. Athens II read subsection (d) in light of the overall statutory scheme, particularly subsection (a). See 743 F.2d at 6; see also Adams House Health Care v. Heckler, 817 F.2d 587, 591 (9th Cir. 1987) ("The D.C. Circuit [in Athens II] correctly held that subsections (a) and (d) must be read together."). And St. Luke's confirmed its interpretation of the Board's powers under subsection (d) by referring to subsection (f). See 810 F.2d at 329. 24 The interrelationship between the subsections of § 1395oo can also be seen in the original reasoning the Board offered for its dismissal of the bad debts issues here. In its letters informing Kennebec and Mid-Maine of its dismissal of the bad debts issues from their appeals, the Board stated that it lacked jurisdiction over the debts because they were not "matter[s] covered by [a] cost report as required by 42 U.S.C. § 1395oo(a)." The only reference to "matters covered by [a] cost report" in § 1395oo, however, is in subsection (d), not (a). 42 U.S.C. § 1395oo(a), (d). 25 In Bethesda, the Supreme Court defined a matter "covered by [a] cost report" as "a cost or expense that was incurred within the period for which the cost report was filed, even if such cost or expense was not expressly claimed." 485 U.S. at 406 (internal quotation marks omitted). Under this definition, the bad debts were clearly a matter covered by a cost report, contrary to the Board's assertion. 26 Having concluded that St. Luke's is on point, we still must consider whether the exceptions to stare decisis detailed in Williams apply. The first exception is not applicable here. The Supreme Court's suggestion in Bethesda that a provider's failure to request reimbursement from the intermediary for all costs to which it was entitled "might well establish that a provider was satisfied with the amounts requested in its cost report and awarded by the fiscal intermediary," 485 U.S. at 405, is explicitly dictum -- "those circumstances are not presented here," id. Nor has St. Luke's been subsequently overruled by statute or First Circuit en banc opinion.The second "relatively rare" exception to stare decisis would apply if we believed that subsequent non-controlling authority -- specifically the Bethesda dictum -- would have altered the holding of St. Luke's. We do not think that is the case. As noted above, the St. Luke's holding rested on a number of grounds: the plain language of the statute, its legislative history, the nature of appellate bodies in general, and the specific features of Board review. See 810 F.2d at 327-29. 27 As the St. Luke's court noted, § 1395oo(d) specifically states that the Board has the power "to make . . . other revisions on matters covered by [the] cost report . . . even though such matters were not considered by the intermediary . . . ." Id. at 327 (quoting § 1395oo(d)) (alteration and omissions in original) (internal quotation marks omitted). The St. Luke's court held that § 1395oo(d) is not ambiguous, and therefore no deference is due the Secretary's view of the statute under Chevron. See id. at 331 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). The St. Luke's court also found confirmation of its reading in the statute's legislative history, which, inter alia, describes the provision in question as permitting the Board to make "revisions involving matters not considered by the intermediary." Id. at 328 (quoting H.R. Rep. No. 92-231, reprinted in 1972 U.S.C.C.A.N. 4989, 5309). 28 The practices of both judicial and administrative appellate bodies provide further support. Even courts or agency bodies with purely appellate functions have, as a rule, the power to review matters not raised below, though they may choose to exercise such power sparingly. See id. (citing cases); see also Singleton v. Wulff, 428 U.S. 106, 121 (1976) ("The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals . . . ."); Portela-Gonzalez v. Secretary of the Navy, 109 F.3d 74, 77 (1st Cir. 1997) (discussing the rule of exhaustion of administrative remedies and its exceptions); United States v. Mercedes-Amparo, 980 F.2d 17, 18 (1st Cir. 1992) ("An appellate court . . . has the discretionary power, in an exceptional case, to resolve an issue not passed on below.") The special features of Board review here suggest that its reviewing powers are even broader than those of the typical reviewing body. See St. Luke's, 810 F.2d at 329. "[T]he Board's procedure is a kind of 'hybrid,' exhibiting some features of initial factfinding (witnesses, cross-examination, new evidence) and some features of review." Id. at 328. 29 Finally, we do not believe that the Bethesda opinion, taken as a whole, undermines the holding of St. Luke's. The Secretary's position that § 1395oo(a) incorporates an unwaivable and unyielding exhaustion requirement is essentially the same reading that the Court rejected in Bethesda as a "strained interpretation . . . inconsistent with the express language of the statute." 485 U.S. at 404. The Bethesda court also described the requirement in § 1395oo(d) that a matter have been "covered by such cost report" as the "only limitation" on the Board's power to review matters not contested before the intermediary, and defined a matter "covered by such cost report" as "a cost or expense that was incurred within the period for which the cost report was filed, even if such cost or expense was not expressly claimed." Id. at 406. 30 Although the dictum cited in the Magistrate Judge's opinion suggests that providers who mistakenly omit claims from their cost reports may not be able to claim dissatisfaction under § 1395oo(a)(1)(A)(i), we cannot say that the Bethesda opinion in its entirety would have altered the holding of St. Luke's. Notably, the Bethesda dictum that we have quoted above (to the effect that a failure to request reimbursement "might well establish that a provider was satisfied with the amounts . . . awarded by the fiscal intermediary," 485 U.S. at 405) could easily be taken to mean that this would be a reasonable factual inference in many cases; the opinion does not say expressly that this inference would be a binding rule of law. We therefore reiterate the holding of St. Luke's: the Board has statutory jurisdiction to hear claims not first raised before the intermediary, but it may decline to do so as a matter of discretion. IV. 31 The dissent by our respected colleague makes reasoned and reasonable arguments, but we view the issues differently and respond briefly. The dissent says that this case is different than St. Luke's because here the hospital did not list the items in its cost report and that is the key fact. A cost report includes both reimburseable and non-reimburseable costs. See St. Luke's, 810 F.2d at 326. That a cost is listed in a cost report says nothing about whether the provider is "dissatisfied" with the later decision by the intermediary to reimburse or not reimburse costs. That is established by Bethesda, 485 U.S. at 1258-59. In fact, the intermediary does not usually even consider matters on the cost report for which no reimbursement is sought. See St. Luke's, 632 F. Supp. at 1391. The key question is whether the hospital sought reimbursement for the cost. In St. Luke's, the hospital did not, and this court held that fact did not mean the Board lacked statutory jurisdiction. See St. Luke's, 810 F.2d at 327, 331-32. Contrary to the implications of the dissent's position, nothing in St. Luke's suggests that the hospital would not have been "dissatisfied" if it omitted to list the cost on a worksheet in the cost report (whether through inadvertence, or in reliance on the agency's earlier determination that the costs were not recoverable). In fact, St. Luke's expressly disagreed with Athens II, a case in which the provider had apparently inadvertently failed to list certain stock option costs in its cost report, and the D.C. Circuit had concluded there was no Board jurisdiction. See id. at 329-30; Athens II, 743 F.2d at 10 & n.17. Under St. Luke's, the statutory word "dissatisfied" is not limited to situations in which reimbursement was sought by the hospital from the intermediary. 32 St. Luke's also found Chevron abdication to the views of the agency inappropriate on the matter, and we are so bound. See St. Luke's, 810 F.2d at 331-32. We also note that the Board itself in this case did not clearly distinguish between its powers under § 1395oo(a) and (d), as the dissent attempts to do, either in its handling of this matter, or in its briefs. As we have said, the very decision of the Board under review conflates the two sections, and so is at best an inconsistent statement of agency position, entitled to less deference. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48 & n.30 (1987); Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir. 1998). 33 Finally, we agree with the dissent that it would be entirely permissible for the Board to conclude, as a matter of policy, not to hear this claim. On remand, the Board may well reach this outcome. All we hold is that Congress did not, in the statute, require the Board to reach this result by stripping it of jurisdiction. This outcome preserves some flexibility for the agency, which may be exactly what Congress intended. It is not our job to exercise that flexibility for the agency. V. 34 Courts are generally not permitted to affirm agency action on grounds implicating the agency's policy judgments or discretion other than those advanced by the agency whose actions are under review. See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). There is an exception to this rule where it is clear what an agency's decision must be, see Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 756 n.7 (1986), but that exception does not apply here. 35 The Board decided that it would not hear MaineGeneral's bad debts claims because it believed it lacked statutory jurisdiction over them. In essence the Board held it could not hear the claims even if it wanted to because § 1395oo precluded jurisdiction. This reasoning was incorrect. The Board must now decide again whether it will hear these claims mistakenly omitted from MaineGeneral's cost reports, but as a matter of discretion, not statutory jurisdiction. Congress specifically granted the Board "full power and authority" to make rules "necessary or appropriate" to carry out its statutory tasks. 42 U.S.C. § 1395oo(e). As the St. Luke's court noted, this gives the Board "the power to limit by rule the extent to which it will hear an issue not raised [before the intermediary]; it can also do so on a case-by-case basis." 810 F.2d at 332. 36 The choice is up to the Board. It can adopt a policy of hearing such claims or of refusing to hear them, or it can opt to decide on a case-by-case basis. In light of the statutory scheme here, a rule of consistently refusing to hear inadvertently omitted claims would be rational, given the ability of providers to request the intermediary to reopen an NPR up to three years after it has been issued.5 37 "All we ask of the Board is to give clear indication that it has exercised the discretion with which Congress has empowered it." St. Luke's, 810 F.2d at 333 (quoting Chenery, 318 U.S. at 94-95) (internal quotation marks omitted). The decision of the district court is vacated and the case remanded to the Provider Reimbursement Review Board for further proceedings consistent with this opinion. Notes: 1 The Magistrate Judge held alternatively that even if one agreed with MaineGeneral's contention that the Board had jurisdiction over the bad debts claims, the Board's decision to review the claims is clearly discretionary under § 1395oo(d), and it was well within its authority to refuse to hear the claims. 2 When Kennebec and Mid-Maine filed their cost reports, Medicare regulations required hospitals to submit their reports within three months of the end of the fiscal year. See Redesignation of Reasonable Cost Regulations, 51 Fed. Reg. 34,790, 34,800 (1986). An intermediary could grant a one-month extension for good cause, providing the Health Care Financing Administration approved. See id. In 1995, the three-month period was extended to five months, and the granting of extensions was sharply curtailed. See Date for Filing Medicare Cost Reports, 60 Fed. Reg. 33,137, 33,138 (1995). 3 We note that the Ninth Circuit has interpreted the holding of St. Luke's the same way. See Adams House Health Care v. Bowen, 862 F.2d 1371, 1375 n.3 (9th Cir. 1988). 4 Neither the Magistrate Judge's opinion nor the Secretary's brief in this case attempted to distinguish St. Luke's on this ground. 5 At oral argument, counsel for MaineGeneral stated that MaineGeneral had not requested that the intermediary reopen the three cost reports in question because such requests seeking additional reimbursement are seldom, if ever, granted in Maine. The Secretary has recently reported, however, that intermediaries nationwide grant 30 to 40 percent of requests to reopen. See Your Home Visiting Nurse Servs., 119 S. Ct. at 935. 38 CYR, Senior Circuit Judge (dissenting). 39 The three rationales for the panel opinion are (i) St. Luke's constitutes controlling First Circuit precedent, (ii) Bethesda is mere dicta, and (iii) no Chevron deference is due the Secretary's interpretation of the term "dissatisfied," see 42 U.S.C. § 1395oo(a). As each rationale is seriously flawed, I respectfully dissent. 40 First, the panel opinion interprets St. Luke's too expansively, as asserting that the Board may review any cost item, whether or not mentioned in the cost report submitted by the healthcare provider. Moreover, its interpretation undermines the important maxim that judicial precedents must not be extrapolated beyond their respective factual contexts. See Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995) (noting that new panels are only "bound by prior panel decisions closely on point") (emphasis added). 41 The healthcare provider in St. Luke's plainly understood that HHS regulations precluded any reimbursement for its 1979 sick leave benefits. Consequently, it listed the sick leave benefits in its cost report as "self-disallowed." At that point, the Board declined to exercise jurisdiction over the claim, and the healthcare provider appealed to the district court. See St. Luke's Hosp. v. Secretary of Health and Human Servs., 632 F. Supp. 1387, 1389-91 (D. Mass. 1986). 42 Reversing the Board decision, the district court identified subsection 1395oo(d) as the sole provision "governing" the Board's jurisdiction. Id. at 1392. Subsection (d) explicitly states that the Board "shall have the power to affirm, modify or reverse a final determination of the fiscal intermediary with respect to a cost report, and to make any other revisions on matters covered by such cost report . . . even though such matters were not considered by the intermediary in making such final determination." See id. (emphasis added). 43 The district court then identified two reasons for ruling that the Board possessed jurisdiction over "self-disallowed" costs. First, it noted that subsection (d) plainly contemplates that some "matters covered by [a] cost report" are not "considered by the fiscal intermediary," and that self-disallowed costs fit into that category because they are mentioned in the cost report but not "considered" when the intermediary calculates the healthcare provider's total reimbursement. Id. at 1393. Second, the district court pointed to the special administrative problem associated with self-disallowed costs, in that the only way a healthcare provider can preserve its objection to a current HHS regulation barring reimbursement for particular costs is to list those costs as non-reimbursable in its cost report until such time as the HHS regulation may be amended. Id. 44 After the Secretary appealed the district court decision, this court pointedly framed the question before it no less narrowly than the district court: "The question before us is whether this statute grants the Board the power to order reimbursement for costs identified in the cost report, but as to which the hospital did not specifically ask the intermediary for reimbursement." St. Luke's Hosp. v. Secretary of Health and Human Servs., 810 F.2d 325, 326 (1st Cir. 1987) (Breyer, J.) (emphasis added). As a further precaution, this court noted once again: 45 The precise question before us is whether the Secretary's legal view of the relevant statute is correct. Does the Board lack the legal power to consider the hospital's 1979 sick leave claim, a claim (1) in respect to a cost item mentioned in the cost report, (2) which cost report was properly before the Board on review, but (3) which claim was not specifically raised before the intermediary? Id. at 327 (emphasis added). 46 Like the district court, in St. Luke's we focused exclusively upon subsection 1395oo(d). See id. ("The Secretary of HHS now appeals only this last determination, arguing that 42 U.S.C. § 1395oo(d) denies the Board the power to decide any issues not first raised before the intermediary.") (emphasis added). Thus, we addressed neither subsection 1395oo(a) nor its "dissatisfaction" criterion, which is a threshold jurisdictional provision. See Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 405 (1988) ("Section 1395oo(d) . . . sets forth the powers and duties of the Board once its jurisdiction has been invoked . . . pursuant to subsection (a) . . . .") (emphasis added). 47 The Secretary never asserted the alternative argument -- that the healthcare provider in St. Luke's had failed to meet the "dissatisfaction" requirement -- since the healthcare provider's cost report, unlike MaineGeneral's in the present case, plausibly could not have supported such an argument. See infra note 2. In listing the disputed claim for sick-leave-benefits reimbursement on Worksheet A-8 of its 1979 cost report, St. Luke's in no sense indicated its satisfaction with the Notice of Provider Reimbursement (NPR), but simply acknowledged that then-current HHS regulations granted neither the intermediary nor the Board the power to reimburse for such costs. 48 Moreover, normally one would expect that healthcare providers indeed would be dissatisfied with HHS regulations which require them to list their costs as non-reimbursable. In stark contrast, however, where the healthcare provider itself omits a reimbursable cost item from its report it is not unreasonable for the Secretary to presume that the healthcare provider is not "dissatisfied," especially since the healthcare provider has already been reimbursed by the intermediary for all amounts requested.1 49 For these reasons, I am unable to agree that St. Luke's either controls our decision or precludes Chevron deference to the Secretary's reasonable interpretation that the term "dissatisfied" does not apply to a healthcare provider which omits a cost claim from its report through its own inadvertence.2 Surely, it is not unreasonable for the Secretary to regard a healthcare provider which has omitted an item from its cost report as somewhat less deserving of agency sympathy than one which, in good faith, challenges Medicare regulations (viz., a provider which "self-disallows"), and otherwise would be deprived of a forum in which to air its dispute should the Board disclaim jurisdiction to review "self-disallowed" costs. 50 Furthermore, and no less significantly, at the very least the interpretation proposed by the Secretary in the instant case arguably fosters important administrative policies: (i) affording healthcare providers an incentive to prepare their cost reports with care and (ii) maximizing their use of the intermediary's expertise in cost assessment, as well as their utilization of the intermediary's investigatory resources. See St. Luke's Hosp., 810 F.2d at 331 (noting that Chevron deference normally is appropriate where "the question [of statutory construction] is interstitial, involves the everyday administration of the statute, implicates no special judicial expertise, and is unlikely to affect broad areas of the law") (emphasis added). Thus, the Secretary's interpretation plainly falls well within the broad universe of plausible interpretations which may be given the term "dissatisfied," especially since Congress has afforded hospitals an alternative mechanism for addressing these errors (i.e., reopening the NPR), see 42 C.F.R. § 405.1885(a), a mechanism MaineGeneral has yet to utilize. 51 Finally, further support for the reasonableness of the Secretary's interpretation in this case may be found in Bethesda, where Mr. Justice Kennedy specifically distinguished healthcare providers who "self-disallow" from those "who fail to request from the intermediary reimbursement for all costs to which they are entitled under the rules." See Bethesda Hosp. Ass'n, 485 U.S. at 404. Ironically, the quoted observation is dictum simply because, like St. Luke's, Bethesda did not involve a healthcare provider which inadvertently omitted costs. The quoted obiter dictum by the Supreme Court thus serves the Secretary well in the instant case, since it would seem -- at the very least -- to make it inarguable that reasonable minds might determine to treat these two categories of healthcare providers differently for jurisdictional purposes. 52 For the foregoing reasons, Chevron plainly dictates deference to the Secretary's reasonable interpretation of the ambiguous statutory term "dissatisfied." Accordingly, I respectfully dissent. Notes: 1 The panel opinion suggests that St. Luke's specifically declined to acknowledge a jurisdictional distinction between self-disallowed and omitted costs when it expressly disagreed with the holding in Athens Community Hospital, Inc. v. Schweiker, 743 F.2d 1 (D.C. Cir. 1984). The Athens citation does not bear out the majority's point, however. In St. Luke's, we found it necessary to reject Athens simply because it ruled, arguendo, that the Board would have no jurisdiction over both omitted and self-disallowed costs. See id. at 4-6 (holding that Board has jurisdiction to consider only costs specifically claimed as reimburseable in cost report); id. at 10 ("At best, HCA's claim with respect to the [omitted] income tax costs can be characterized as a `self-disallowance.'"). Thus, St. Luke's took no position on the discrete jurisdictional issue presently before us. 2 In the case at bar, the panel majority mistakenly concludes that the contention -- that St. Luke's is not binding precedent because it construed subsection 1395oo(d) only, and not subsection 1395oo(a) -- has been waived by the Secretary. The Secretary distinguished St. Luke's in the very same section of the appellate brief in which she repeatedly focused on MaineGeneral's failure to meet the § 1395oo(a) "dissatisfaction" criterion. Then, in a footnote, the Secretary carefully distinguished the facts in Bethesda and St. Luke's from those in the case at bar. Later, the Secretary stated: "[s]section 1395oo(d) cannot be used to `bootstrap' an appeal that is otherwise deficient under § 1395(a)," then reiterated her interpretation of the holding in St. Luke's: "Because the intermediary had, by an earlier determination, prevented the provider from requesting reimbursement in its cost report, St. Luke's, 810 F.2d at 327, the provider satisfied the `dissatisfaction' requirement of paragraph (a)." See also Magistrate's Opinion, at p. 7 n.5 ("In essence, like Bethesda, the provider in St. Luke's omitted the costs on the report not through mere neglect, but because it intended to challenge an administrative decision."). Finally, even if it were possible to find a waiver in these circumstances, the panel majority overlooks the fact that the Secretary is an appellee, not an appellant. Normally, of course, we affirm trial courts on any ground apparent from the record in these circumstances. See Plymouth Svgs. Bank v. United States Internal Revenue Serv., 187 F.3d 203, 209 (1st Cir. 1999).

451 F.Supp. 50 (1978) UNITED STATES of America v. James Dale BREWER. Cr. No. 3-77-97. United States District Court, E. D. Tennessee, N. D. March 9, 1978. *51 John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., for plaintiff. Rufus W. Beamer, Jr., Knoxville, Tenn., for defendant. MEMORANDUM ROBERT L. TAYLOR, District Judge. Background This criminal action wherein defendant stands charged by the Grand Jury with one count of kidnapping (18 U.S.C. § 1201) and one count of transporting a stolen motor vehicle (from Jellico to Valdosta, Georgia) is set for trial on Wednesday, March 15, 1978. The indictment was returned by a Grand Jury sitting in the Middle District of Georgia, Valdosta Division, on September 23, 1977. On October 10, 1977, Chief Judge Robert Elliott granted the motion of the defendant and his co-defendant (not before the Court in this action) to transfer the case, under Rule 21, Fed.R.Crim.P., to the Eastern District of Tennessee. Judge Elliott reasoned that since it was only the fortuitous circumstance that the victim escaped his abductors in Valdosta that gave that District any connection with the case, it was better tried where the alleged abduction occurred — the Eastern District of Tennessee which includes Jellico, Tennessee. Motion The defendant has moved to suppress the Government's proposed introduction of certain past convictions as impeachment evidence if the defendant takes the stand. While the defendant filed the motion, Rule 609 places upon the Government the burden of persuading the Court that the convictions are admissible. See United States v. Smith, 179 U.S.App.D.C. 162, 173-74, 551 F.2d 348, 359-60 (1976). Rule 609(a), Fed.R.Evid., provides, in pertinent part: Impeachment by Evidence of Conviction of Crime (a) General Rule. For the purpose[s] of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment." (emphasis added). The four convictions which the Government wants to introduce to impeach the defendant's testimony, should he take the stand, all fall in category 1 above. All four convictions meet the first requirement under category 1, i. e., they were punishable by death or imprisonment in excess of one year. Thus, the only requirement to be met before these convictions are admissible for impeachment, is the requirement that the Court determine that the probative value of admitting the evidence of these convictions outweighs the prejudicial effect to the defendant. *52 Before discussing the standards used by the courts in determining whether the probative value outweighs the prejudicial effect, it must be noted that defendant's attorney argues that the special provisions of 609(b), dealing with convictions over ten years old (computed under the standard provided by 609(b)) should apply to all four convictions. For the reasons stated below, the special provisions of subpart (b) of Rule 609 do not appear to apply to any of the convictions. Time Limit in 609(b) Under subpart (b) of Rule 609, when a conviction is offered as impeachment evidence and it is over ten years old, it is not admissible unless: The Court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. 609(b) also requires the Government to give advance notice of its intention to use such evidence.[1] The Government argues that the more stringent test of 609(b) does not apply to these convictions because, under the formula provided in the Rule for determining how old a conviction is, none of these convictions is over ten years old. Rule 609(b) states that it shall apply when "more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date . . .." The convictions in question are as follows: Date of Conviction 10-20-60 Kidnapping E. D. Kentucky 10 years 1-6-68 Rape Greene County, Ohio (State Court) 3-20 years 1-6-68 Aggravated " 1-5 years Assault 1-6-68 Assault with a " 1-15 years deadly weapon (the three Ohio convictions were consecutive) The relevant date obviously is the date the defendant was released from the confinement imposed for each conviction. While the three 1968 Ohio state convictions were rendered slightly over 10 years ago, the minimum sentence of one year on each conviction means that whichever he served first, the one year minimum set his release date for that conviction within the last ten years. Defendant was not actually sentenced until March 22, 1968, less than ten years ago. Therefore, March 22, 1969 would have been the earliest release date on either the 1-3 years or 1-15 years sentences, and that release date is unquestionably within the last ten years. As to the federal kidnapping charge, although the conviction occurred over seventeen years ago, the release date is the determinative date. Defendant was first released from federal custody on June 27, 1967, and placed on parole. If this were the only release date, it would have occurred over ten years ago, and the special provisions of 609(b) would apply. However, while on federal parole, defendant was convicted of the above mentioned state crimes on January 6, 1968. After serving time on the state convictions, defendant was recommitted to federal confinement for violation of parole on the kidnapping conviction. He was released on February 9, 1976, and again placed on parole. This second release date is well within the last ten years, and thus 609(b) does not apply. Defendant argues that release from "confinement imposed for that conviction" means the initial release and not subsequent releases following reconfinement for parole violations. While no case addressing this issue has been cited by either side, and *53 the Court has found none, the Court is of the opinion that reconfinement pursuant to parole violation is "confinement imposed for [the original] conviction," and therefore the release date from that second confinement is the one used in computing time under Rule 609(b). It should be noted that, even without the intervening 5½ years state incarceration, i. e., had defendant immediately been returned to federal confinement upon conviction of the state crimes, his release date (assuming an identical period of federal incarceration of over two years) would have been in April 1970, also well within the last ten years. Having ruled that none of these convictions requires the application of the stringent standards of 609(b), the Court must now determine if the Government has met the standard applicable under 609(a). Balancing Tests Under 609(a) Application by the Courts of the 609(a) requirement that a determination be made that the probative value of admitting the evidence outweighs its prejudicial effect has generally followed the formula developed in the D.C. Circuit in a string of cases starting with Judge McGowan's opinion in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), and including an often quoted opinion by then Judge Burger in Gordon v. United States, 127 U.S.App. D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). The Luck-Gordon standards were delineated prior to the adoption of the Federal Rules of Evidence in 1975, but the factors used in those cases are still relevant under Rule 609. See 3 Weinstein's Evidence ¶ 609[03]; United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976). However, some parts of the Luck-Gordon rule are no longer applicable under 609. See United States v. Smith, 179 U.S. App.D.C. 162, 551 F.2d 348 (1976). The five factors discussed by Judge Burger in Gordon are: (1) the nature of the crime; (2) the time of conviction and the witness' subsequent history; (3) similarity between the past crime and the charged crime; (4) importance of defendant's testimony; and (5) the centrality of the credibility issue. (1) The Nature of the Crimes The nature of these crimes is that of violent action against individuals. In Gordon, Judge Burger noted, "Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity." Id., 127 U.S.App.D.C. at 347, 383 F.2d at 940. Thus, the nature of these four convictions is a factor against admitting them for impeachment purposes. (2) The Time of Conviction and the Witness' Subsequent History While the time elapsed since the actual convictions at issue here range from ten to seventeen years, the defendant's conduct following release from custody has been less than would be expected of a rehabilitated individual. Not only did the defendant commit the three, previously mentioned, serious state crimes while on federal parole in 1968, after his release on parole from federal custody in February 1976, he was convicted of another crime in Ohio and was reconfined again for violation of his federal parole. The Court is of the opinion that the defendant's continued conflict with the law, even while on parole, is a factor supporting admission of the convictions for impeachment purposes. (3) The Similarity Between the Past Crime and the Charged Crime The principle involved here was explained by Judge Burger in Gordon: A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct *54 for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that `if he did it before he probably did so this time.' As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. 127 U.S.App.D.C. at 347, 383 F.2d at 940. This principle would apply only to the prior kidnapping conviction. If the Court should admit any of the four convictions, a limiting instruction would be given to the jury emphasizing that they are admitted only to impeach the credibility of the defendant as a witness. The question is whether, even with a limiting instruction, the evidence of a prior conviction for the same crime might, nevertheless, allow the jury to engage in the impermissible assumption that "if he did it before he probably did so this time." A recent case, United States v. Cohen, 544 F.2d 781 (5th Cir. 1977), is relied on by the Government as demonstrating that similarity of the crimes is a factor favoring admission. The Court does not agree with the Government's interpretation of Cohen. In Cohen, the Fifth Circuit determined that because the prior conviction was one involving dishonesty (mail fraud), a type of crime "far more likely to have probative value" on the issue of truthfulness than most violent crimes, and because the charged crime also related to dishonesty, the prior conviction was highly probative of the truthfulness of the defendant. Based on the principle stated in Gordon, the Court is of the opinion that there is a strong argument to keep the prior kidnapping conviction from the jury's knowledge. (4) & (5) Final Factors Factors four and five seem to counterbalance each other in this case. While defendant's testimony may be of some importance, a factor favoring nonadmission, at the same time his credibility may be a central issue in the case, a factor favoring admission. Conclusion Although the Court, at the hearing on this motion, initially ruled that all four convictions were admissible, further consideration has convinced the Court that the probative value of the prior kidnapping conviction on the issue of defendant's truthfulness, should he take the stand, does not outweigh the prejudicial effect knowledge of such conviction could have on the jury. Admission of the other three convictions, all involving serious crimes, should sufficiently serve the purpose of impeaching the defendant's credibility. The addition of one more conviction would seem to add little to the Government's attempt to impeach the defendant's credibility. However, the fact that the additional conviction was for the same crime as one of those for which the defendant is presently charged, would substantially increase the possible prejudicial effect such testimony might have on the jury, in spite of any limiting instruction the Court would give contemporaneously with the admission. Rather than allow this "overkill" at the risk of prejudicial error, the Court is of the opinion, and holds, that the prior kidnapping conviction is inadmissible under Rule 609(a). As for the three other convictions, the Court holds that the Government has established that the probative value of these three convictions for impeachment purposes outweighs the prejudicial effect that admission of such evidence would have on the jury. Order Accordingly. NOTES [1] The Government, realizing that there might be some debate as to whether 609(b) applied, wisely filed advance notice as required under that subsection.

30 B.R. 267 (1983) In the Matter of Joseph W. MALASPINA, Lynn L. Malaspina, Cleano Kenneth Malaspina and Theresa Francis Malaspina, Debtors. Bankruptcy Nos. 81-3537, 81-3538. United States Bankruptcy Court, W.D. Pennsylvania. May 18, 1983. *268 Bart Tyson, Pittsburgh, Pa., for petitioners. Gary Nelson, Pittsburgh, for objectors. Donald R. Calaiaro, Pittsburgh, Pa., trustee. MEMORANDUM OPINION GERALD K. GIBSON, Bankruptcy Judge. The matter presently before the Court is Petition for Interim Attorney's Fees filed by attorney for debtors under Chapter 13 of the Bankruptcy Code. Debtors' attorney seeks payment of his fees from the sale proceeds of certain of debtors' real property which was subject to two mortgages. Upon satisfaction of the first mortgage, there remained a fund from which debtors' attorney now seeks payment of interim fees for services rendered during the Chapter 13 proceedings to date. The second mortgagee, who is also first mortgagee on certain other parcels in the debtors' estates, has filed objections to the Petition for Interim Attorney's fees. After careful consideration of the arguments advanced by counsel, the Court concludes that there is no authority for payment of interim attorney's fees in the factual setting at bar. Accordingly, the Petition for Interim Attorney's Fees is denied. The facts are as follows. On December 24, 1981, Joseph Malaspina, et ux., and Cleano Kenneth Malaspina, et ux. filed petitions under Chapter 13 of the Bankruptcy Code at numbers 81-3537 and 81-3538 respectively. Both petitions were filed by the attorney who is presently seeking interim compensation. On the Schedules of Cleano Kenneth Malaspina, et ux., the following creditors holding security were listed: First Seneca Bank, holder of a mortgage in the amount of $48,434.; and Security Pacific Consumer Discount Company holder of a mortgage upon four properties in the amount of $130,000. On the Schedules of Joseph Malaspina et ux., Security Pacific Consumer Discount Company was also listed as mortgagee on four properties in the amount of $130,000. In February, 1982, Security Pacific Finance Corporation filed Complaints for Termination of the Automatic Stay in both of the aforementioned estates. In the complaint filed against Cleano Kenneth Malaspina et ux., Security Pacific alleges the following. In October, 1980 Cleano Kenneth Malaspina et ux. and Joseph Malaspina et ux. executed a mortgage in favor of Security Pacific upon four separate properties in the amount of $130,000.; bearing *269 interest at an annual rate of 18% and payable in 210 consecutive payments of $2414.83. The mortgage is in default, and the amount due is $161,731.54 plus interest and costs. Security Pacific alleges that the value of the assets subject to the mortgage is less than the total amount owing on the mortgage, and requests relief from the automatic stay. The complaint further alleges that Cleano Kenneth Malaspina et ux. entered into a mortgage in favor of Keystone Bank, (now First Seneca Bank and Trust Company) in the amount of $60,000 upon property known as 1306 Greensburg Road, "Mal's Center". The mortgage is currently in default, and the amount owed is $50,988.41 plus interest and costs. First Seneca joins in Security Pacific's request for relief from stay. The Complaint for Termination of the Automatic Stay brought by Security Pacific against Joseph Malaspina et ux. also alleges debtors' default upon the aforementioned mortgage with Security Pacific. Joseph Malaspina et ux. were not parties to the mortgage in favor of First Seneca. By Order of Court dated April 29, 1982, the separate adversary proceedings were consolidated. Debtors were authorized to obtain credit on a secured basis to be used in payment of the existing obligation to Security Pacific. The debt was secured by a second mortgage on 1306 Greensburg Road, ("Mal's Center"); and by a first mortgage lien on the remaining properties of debtors' estates. With respect to the property known as "Mal's Center", the Order allowed debtors a certain period of time to secure a written agreement of sale. The Order further provided that if upon expiration of time, debtors' had failed to secure a buyer, the property would be sold at public sale in this Court. Mal's Center was subsequently sold for $135,000. After satisfaction of the first mortgage held by First Seneca Bank, there were proceeds in the amount of $73,000. It is from this fund that attorney for the debtors seeks payment of interim fees. In his brief in support of payment of interim fees, counsel for the debtors argues that interim fees of the attorney for debtor are administrative expenses pursuant to 11 U.S.C. § 503, and are entitled to the highest priority. Counsel for the debtors further argues that Security Pacific has shown no actual deficiency with respect to collateral on which it was given a second mortgage, and is therefore not entitled to a superpriority. Counsel cites Matter of Georgia Steel, Inc. 19 B.R. 834 (Bkrtcy.M.D.Ga.1982) in support of his contentions. In response thereto, counsel for Security Pacific argues that payment of interim compensation out of the cash collateral is impermissible, for the administrative expense claimed does not fall within the narrow exception set forth in 11 U.S.C. § 506(c). Security Pacific further argues that there is no statutory authority allowing legal fees to be charged against the sale proceeds of property securing an allowed secured claim. The Court now examines the relevant provisions of the Bankruptcy Code cited by the parties in support of their arguments. Section 503(b) provides in pertinent part as follows: § 503 Allowance of Administrative Expenses (b) After notice and a hearing, there shall be allowed, administrative expenses, other than claims allowed under section 502(f) of this title, including— (2) compensation and reimbursement awarded under section 330 of this title. Further, § 507 sets forth the priority of attorney's fees as an administrative expense as follows: (a) the following expenses and claims have priority in the following order: (1) First, administrative expenses allowed under section 503(b) of this title . . . Thus, attorney's fees are an allowable administrative expense under § 503(b)(2); and are afforded a priority under § 507(a)(1). Further, § 330 permits the Court to award reasonable compensation *270 for actual, necessary services rendered by attorney for the debtor; and § 331 authorizes attorney for the debtor's application to the Court for interim compensation. However, in considering counsel's petition for payment of interim attorney's fees out of a fund derived from the sale of property subject to a second mortgage, it is further necessary to examine the nature of the second mortgage in the case at bar, and the issue of adequate protection presented herein. It is clear that the remedies of a creditor holding a secured claim can be suspended or abrogated. However, "the value of its secured position as it existed at the commencement of the case is to be protected throughout the case when adequate protection is required." (Collier on Bankruptcy, § 361.01 at 361-6, 15th ed. 1982). Section 361 of the Bankruptcy Code provides in pertinent part as follows: When adequate protection is required under section 362, 363, or 364 of this title of an interest of an entity in property, such adequate protection may be provided by . . . (2) providing to such entity an additional or replacement lien to the extent that such stay, use, sale, lease, or grant results in a decrease in the value of such entity's interest in such property. As further stated in Collier on Bankruptcy, "adequate protection both as a matter of policy and of constitutional law will extend only to a creditor's `allowed secured claim', and the unsecured part of a claim which is only partially secured will not be entitled to adequate protection." Collier on Bankruptcy 361.01 at 361-6, 15th ed. 1982.) In the case at bar, Security Pacific was given a second mortgage upon the "Mal's Center" property as adequate protection for its original mortgage upon four other properties. Therefore, Security Pacific has an additional lien only to the extent that there is a decrease in the value of the original collateral as a result of the stay. Herein, attorney for the debtors seeks payment of interim fees out of the fund derived from sale of the property subject to Security Pacific's second mortgage. However, it is not until the sale of properties subject to Security Pacific's original mortgage that any diminution in the value of the original collateral can be determined. Nor can the extent of Security Pacific's second mortgage upon "Mal's Center" be determined until that time. Therefore, payment of interim attorney's fees out of the fund resulting from the sale of "Mal's Center" cannot be considered at this juncture. Additionally, § 507(b) grants a super-priority to post-petition creditors in the event that the adequate protection requirements of § 361 prove to have been inadequate. Moreover, such administrative claim is given priority over every other allowable administrative claim. (Collier on Bankruptcy, 507.05 at 507-47, 15th ed. 1982). Therefore, the existence of a possible super-priority must be ascertained prior to allowance of interim attorney's fees in the case at bar. Based upon the foregoing, the Court concludes that allowance of the petition for interim attorney's fees is premature at the present time. Accordingly, the petition is denied.

519 F.2d 1356 UNITED STATES of America ex rel. James A. GREENEv.STATE OF NEW JERSEY et al., Appellants. No. 74-2287. United States Court of Appeals,Third Circuit. Argued June 5, 1975.(Initial opinion filed June 16, 1975.)Decided July 17, 1975. Joseph D. J. Gourley, Passaic County Prosecutor, John P. Goceljak, Asst. Prosecutor, Paterson, N. J., for appellants. Stanley C. Van Ness, Public Defender, William E. Norris, Asst. Deputy Public Defender, App. Section, East Orange, N. J., for appellee. Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges. OPINION OF THE COURT PER CURIAM. 1 The question for decision is whether the district court erred in granting a writ of habeas corpus to a state prisoner who alleged a denial of his Sixth Amendment right to an impartial jury under circumstances in which the trial judge ruled, as a matter of law, that newspaper articles describing an abortive, mid-trial attempt to plead non vult to a New Jersey murder indictment "would not affect (the jury's) deliberations . . . ." 2 The Passaic County Grand Jury indicted appellee for the murder of his paramour, allegedly committed in the presence of four witnesses. His trial began on October 13, 1970. Appellee's defense was temporary insanity. On the afternoon of the fifth day of a nine-day trial, appellee attempted to enter a plea of non vult. The trial court rejected his plea offer because, during the plea hearing, appellee contended that his action was not willful, deliberate or premeditated. Accounts of appellee's plea attempt and the trial court's rejection thereof were carried in two Passaic County newspapers the Herald News and the Paterson Morning News. Appellee promptly moved for a mistrial, reading into the record the text of the articles. In support of its denial of appellee's motion, the state court said, in part: 3 (T)he Court will rule that in its judgment, assuming that some of or all of (the) jurors did in fact read the articles and I can only assume at this point because there has been no voir dire of the jurors as to whether or not they have read the articles, the Court will rule that its opinion, even if they did in fact read the articles, it would not affect their deliberations and I will deny your motion for a mistrial at this point. 4 In basing its grant of the writ on this ruling, the district court approved the recommendation of the magistrate, who had found: 5 (T)here is no doubt that the dissemination (was widespread), inasmuch as the articles mentioned appeared in the two major, if not the only daily newspapers in Passaic County. Furthermore, having in mind that (appellee's) defense, as announced in his counsel's opening, was temporary insanity, there can be little doubt that the publication of his offer to plead no contest to the indictment and thus expose himself to a sentence of life imprisonment as both articles pointed out, was undoubtedly prejudicial. 6 In United States ex rel. Doggett v. Yeager, 472 F.2d 229, 239 (3d Cir. 1973), we extensively reviewed the Supreme Court's accommodation of the defendant's Sixth Amendment right to an impartial jury with the news media's First Amendment right to freedom of the press. See also United States v. D'Andrea, 495 F.2d 1170, 1172 (3d Cir.) (per curiam), cert. denied, 419 U.S. 855, 95 S.Ct. 101, 42 L.Ed.2d 88 (1974). 7 On the same date that our initial opinion in this case was filed, the Supreme Court handed down its decision in Murphy v. Florida, --- U.S. ---, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). There, the Court held that (1) its rule in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) that persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced was imposed through the supervisory power of the Court and not mandated by the Constitution; therefore, the rule was inapplicable to federal habeas corpus review of state criminal proceedings; and (2) in the totality of circumstances presented, notwithstanding widespread pretrial publicity, and considering the voir dire conducted, the defendant had received a fair trial. Nothing in Murphy commands a reversal of the district court. What Murphy did change was so much of Doggett as stood "for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." Murphy v. Florida, supra, --- U.S. at ---, 95 S.Ct. 2031, at 2036, 44 L.Ed.2d 589. (emphasis added). 8 In the wake of Murphy, we have reconsidered our earlier decision and adhere to it. Upon an independent review of the record, we cannot say that the district court erred in finding the disseminated material "undoubtedly prejudicial" for the stated reason. In light of the widespread dissemination of prejudicial information, at the very least, the state court should have conducted an immediate voir dire inquiry to determine if the jurors had read the offensive articles and, if they had, whether they could nonetheless render a fair and true verdict. We have recently emphasized "that voir dire is a preliminary examination to ascertain the qualifications of potential jurors as well as any disqualifying bias or prejudice." United States v. Wooton, 518 F.2d 943, 945 (3d Cir. 1975). 9 Because the trial court did not conduct a voir dire, and because we cannot speculate what the jurors' responses would have been to an appropriate inquiry, we conclude that the appellee must be afforded a new trial. 10 The judgment of the district court will be affirmed with the direction that a writ of habeas corpus shall issue unless, within a reasonable time to be fixed by the district court, the State of New Jersey shall afford appellee a new trial.

United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1972 ___________________________ United States of America, lllllllllllllllllllll Plaintiff - Appellee, v. Travis Joe Davis, lllllllllllllllllllll Defendant - Appellant. ____________ Appeal from United States District Court for the Western District of Missouri - St. Joseph ____________ Submitted: November 26, 2015 Filed: December 21, 2015 [Unpublished] ____________ Before LOKEN, BOWMAN, and COLLOTON, Circuit Judges. ____________ PER CURIAM. Travis Davis directly appeals after he pled guilty to aiding and abetting bank robbery and the district court1 imposed an above-Guidelines-range sentence. His 1 The Honorable Greg Kays, Chief Judge, United States District Court for the Western District of Missouri. counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging Davis’s sentence on substantive and procedural grounds. Davis has filed a pro se supplemental brief, asserting prosecutorial misconduct. More specifically, Davis claims that the prosecutor coached his victims and submitted victim impact statements to the district court without first giving him an opportunity to review the statements or to object to their content. We note that Davis pled guilty pursuant to a plea agreement containing an appeal waiver, and upon careful de novo review, we conclude that the appeal waiver is enforceable as to counsel’s arguments challenging Davis’s sentence. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010); United States v. Andis, 333 F.3d 886, 889-90 (2003) (en banc). We further conclude that Davis’s pro se claim of prosecutorial misconduct is not within the scope of the appeal waiver, but that it lacks merit, as there is no evidence the victim impact statements were false, and Davis did not object to them in the district court. Cf. United States v. White, 724 F.2d 714, 716- 17 (8th Cir. 1984) (per curiam). Finally, having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues outside the scope of the appeal waiver. Accordingly, counsel’s motion to withdraw is granted, and the judgment is affirmed. ______________________________ -2- 

586 F.2d 837 Adkinsv.Cooper No. 78-6013 United States Court of Appeals, Fourth Circuit 10/26/78 1 W.D.Va. AFFIRMED

348 F.Supp. 958 (1972) CALIFORNIA CAR WASH SYSTEMS, INC., and Bowe, Bohler & Weber KG, Plaintiffs, v. DANCO, INC., d/b/a Colorado Mfg. Co., et al., Defendants. Civ. A. No. C-2299. United States District Court, D. Colorado. August 4, 1972. *959 H. B. VanValkenburgh, Denver, Colo., and Francis A. Utecht, Long Beach, Cal., for plaintiffs. Ralph F. Crandell, Denver, Colo., and Samuel J. Sutton, Jr., Phoenix, Ariz., for defendants. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CHILSON, District Judge. This matter is before the Court after trial to the Court. The parties have submitted briefs which supplement their closing arguments. Plaintiffs seek to enjoin defendants from infringing Claims, 1, 2, 4, and 6 of Fuhring U. S. Patent No. 3,304,565. (See Exhibits 1 and QQ). The Fuhring Patent for a roll-over car wash device was issued on February 21, 1967, to Heinrich Fuhring, and assigned to Bowe, Bohler, & Weber (Bowe). On January 1, 1970, Bowe granted a license under the patent to California Car Wash. On December 1, 1970, Bowe assigned the patent to California Car Wash. Defendants built and sold a single car wash machine in October 1969, which plaintiff contends infringes the Fuhring Patent. Defendants assert that the patent is invalid, not infringed and unenforceable. Plaintiffs have waived damages and seek only a permanent injunction against defendants and costs in this action including the expense of bringing witness Fuhring from Germany to Denver for his deposition and the expense incurred in the preparation of Exhibits 33-40 relating to infringement. Defendants request an award of attorney's fees. The question presented to the Court is the validity of the Fuhring Patent. If the patent is valid, then the plaintiffs are entitled to the requested relief since the evidence shows infringement by the defendants. However, if the patent is invalid, the Court must find for the defendants since an invalid *960 patent cannot be infringed. Griswold v. Oil Capital Valve Co., 375 F.2d 532 (10th Cir. 1966). Defendants' claim of invalidity of the Fuhring Patent is based on three primary grounds: (1) The patent is anticipated by the prior art and is invalid under 35 U.S.C. § 102(b). (2) The patent, because of the obviousness of the claimed subject matter, is invalid under 35 U.S.C. § 103. (3) The claims of the patent "overclaim" to the extent that it is invalid under 35 U.S.C. § 112. JEPSON-TYPE CLAIMS A portion of Claim 1 of the Fuhring Patent reads as follows: 1. In vehicle-washing apparatus having a runway extending longitudinally of a vehicle to be washed and a carriage shiftable along said runway relatively to the vehicle, the improvement which comprises: Washing means . . . and a parallelogrammatic linkage . . . By using the Jepson form of claiming, the patentee is relying on the material after the colon for the subject matter to be patented. Application of Simmons, 312 F.2d 821, 50 C.C.P.A. 990 (1963). The introductory portion up to the colon is only a recitation of elements known in the prior art. Ex parte Jepson, 1917 CD 62, 248 OG 526. Plaintiffs do not expressly controvert defendants' contention that the introductory language is only a recitation of the prior art and not part of the patented subject matter. ANTICIPATION This being so, it is necessary to examine the subject matter claimed after the introductory phrase to determine whether the patent in suit has been anticipated by the prior art. As plaintiff's counsel stated at trial, the mounting of the side brush connections through the use of a parallelogrammatic linkage swingably mounted forms the basis for this suit. The doctrine of anticipation by patents is a narrow and technical one. To come within it, all the elements of the invention, or comparable ones, must do substantially the same work in substantially the same way and be within one structure. [citation] (Emphasis supplied). Griswold v. Oil Capital Valve Co., supra, 375 F.2d at 537, quoted in A. E. Staley Manufacturing Co. v. Harvest Brand, Inc., 452 F.2d 735 (10th Cir. 1971). In order for defendants to prove anticipation, they must ". . . sustain [anticipation] by clear and convincing evidence and a patent is to be measured as anticipatory, not by what might be made out of it, but by what it clearly and definitely discloses." McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381, 398 (10th Cir. 1965). The following are the claims of the Fuhring Patent (Exhibit QQ) allegedly infringed by defendants: "1. In a vehicle-washing apparatus having a runway extending longitudinally of a vehicle to be washed and a carriage shiftable along said runway relatively to the vehicle, the improvement which comprises: "Washing means rotatable about an axis and engageable with a surface of the vehicle for following contours thereof and subjecting said surface to a washing treatment; and "a parallelogrammatic linkage swingable mounted on said carriage and carrying said washing means with at least limited freedom of movement thereof in a direction transverse to said axis while maintaining said axis substantially parallel to itself during said movement of said washing means." *961 "2. The improvement defined in claim 1, further comprising: "A generally U-shaped yoke mounted upon said parallelogrammatic linkage and open in the direction of said vehicle while rotatably supporting said washing means between the arms of said yoke; and "means acting upon said parallelogrammatic linkage biasing said yoke in the direction of said surface to hold said washing means thereagainst." "4. The improvement defined in claim 2 wherein the last mentioned means includes: "pusher means acting upon said parallelogrammatic linkage and actuable to urge said washing means against said surface." "6. The improvement defined in claim 1 wherein said parallelogrammatic linkage has at least one pivoting axis about which said washing means is swingable further comprising: "bearing means supporting said parallelogrammatic linkage for swinging movement relative to said carriage about a further axis generally transverse to said pivoting axis of said parallelogrammatic linkage." Claim 7 defines the parallelogrammatic linkage in Claim 1 as being formed by "lazy tongs". Defendants' expert, Burton, testified that every element in the litigated claims are contained in Figure 6 of the Tytler Patents, U. S. Patent 2,983,937. (Exhibit F.) Burton specifically testified that every essential element in claim 1 of the Fuhring Patent is contained in the Tytler Patent. Each element in claim 2 of the Fuhring Patent is shown in Figure 6 of the Tytler Patent and is functionally the same; the only difference between claim 3 of Fuhring and Figure 6 of Tytler is that Tytler discloses no counterweight; defendants' machine uses no counterweight; claim 4 of Fuhring and Figure 6 of Tytler are identical; there is no difference between claim 6 of Fuhring and the Tytler Patent, and each element in claim 6 of Fuhring is found in the Tytler Patent. The Tytler Patent identically shows all that the Fuhring Patent claims. (Tr. 74). Plaintiffs did not rebut the evidence that the structural elements of the Fuhring claims are found in the Tytler Patent. Burton, on cross-examination, did admit that the Fuhring device can accomplish results that Tytler cannot, but that these results were not a part of the patent claimed by Fuhring. The evidence is clear and convincing that the Tytler Patent anticipates the Fuhring Patent. Consequently, the Fuhring Patent is invalid and cannot be infringed. OBVIOUSNESS Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Graham v. John Deere Company, 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1963). Defendant has a heavy burden in establishing that the patent in suit would have been obvious to a person having ordinary skill in the car wash business. Sperti Products, Inc. v. CocaCola Co., 272 F.Supp. 441 (D.Del.1967), aff'd, 399 F.2d 607 (3d Cir. 1967). Defendants presented almost no evidence on this question and failed to meet their burden of proof. OVERCLAIMING Defendants contend that the Fuhring Patent is invalid under 35 U.S. C. § 112 for being overly broad. The reasons the claims are allegedly over broad is that they read on the prior art. However, in determining overbreadth, *962 ". . . the claims of a patent are to be construed in the light of the specification and the understanding thereof by those skilled in that art to whom they are addressed".[1] This contention fails because of defendants' failure to sustain their burden of proof in this respect. PRIOR ART REFERENCES The failure of the patent examiner to cite prior art references, Tytler in particular, causes the parties to cite a plethora of cases to the Court with regard to the presumption of validity. Plaintiffs argue it is presumed that the examiner discarded the uncited prior art as not pertinent. Defendants argue that where the examiner fails to cite prior art which is pertinent, the presumption of validity is weakened. Admiral Corporation v. Zenith Radio Corporation, 296 F.2d 708, 715 (10th Cir. 1961). Burton testified that the Tytler was more relevant than the prior art cited by the examiner. Neither party introduced evidence that the examiner did or did not consider the Tytler Patent. However, since Tytler anticipates Fuhring, it is likely that the examiner overlooked Tytler even though it was in the same class and sub-class as Fuhring. Oglebay Norton Company v. Universal Refractories Corporation, 300 F.Supp. 1106 (D.C.Wis.1969); Straussler v. United States, 339 F.2d 670, 168 Ct.Cl. 852 (1964). AWARD OF ATTORNEY'S FEES Defendants contend that plaintiffs' failure to call the attention of the examiner to the Tytler Patent should result in judgment for an award of attorney's fees to defendants. Plaintiffs were issued a presumably valid patent. When they discovered an infringing device, even though they had knowledge of the Tytler Patent, a suit to enjoin infringement is not so exceptional as to justify the award of attorney's fees. TRAVEL EXPENSES OF FUHRING COST OF EXHIBITS Even though defendants should prevail, the cost of bringing Fuhring to Denver from Germany should be assessed to defendants. Defendants did not use Fuhring's deposition at trial. Interrogatories would have served as well and would have saved the expense of requiring plaintiff to produce Fuhring in Denver. Plaintiffs' cost for the preparation of the infringement exhibits should be borne by plaintiffs since they had to prove infringement in any case. It is ordered that judgment of dismissal of the complaint be entered forthwith and that the defendants have judgment for their costs to be taxed by the Clerk of the Court upon the filing of a bill of costs. It is further ordered that the plaintiffs have judgment against the defendants for the costs incurred by the plaintiffs in the payment of travel expenses of the witness, Fuhring, from Germany to Denver, for the purpose of giving his deposition. The plaintiffs shall submit to the Clerk of the Court, an itemized statement of these expenses within five days from this date, and thereupon, the Clerk shall enter judgment accordingly. It is further ordered that the defendants' claim for attorney's fees and the plaintiffs' claim for the costs of the preparation of the infringement exhibits are hereby denied. NOTES [1] Application of Myers, 410 F.2d 420, 425 (CCPA 1969).

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2007-3122 JAMES W. HUNT, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. James W. Hunt, of Bethesda, Maryland, pro se. Calvin M. Morrow, Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad Bungard, General Counsel and Rosa M. Koppel, Deputy General Counsel. Appealed from: United States Merit Systems Protection Board  NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2007-3122 JAMES W. HUNT, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. ___________________________ DECIDED: October 4, 2007 ___________________________ Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and KEELEY, Chief District Judge. * PER CURIAM. DECISION James W. Hunt petitions for review of a final decision of the Merit System Protection Board dismissing Mr. Hunt’s appeal from an alleged reduction in pay. We affirm the decision of the Board. * Honorable Irene M. Keeley, Chief Judge, United States District Court for the Northern District of West Virginia, sitting by designation.  BACKGROUND In 1989, Mr. Hunt was hired for the position of Administrative Law Judge with the U.S. Department of Agriculture (“USDA”) at pay level AL-3. In 1999, the USDA announced an opening for the position of Chief Administrative Law Judge, also to be paid at pay level AL-3. According to Mr. Hunt, the Office of Personnel Management (“OPM”) had classified that position at the higher AL-2 pay level, and the previous Chief Administrative Law Judge was paid at that level. During the interview process, the USDA told applicants that the position might be restored to the higher AL-2 pay level at some unspecified future date. The USDA selected Mr. Hunt as Chief Administrative Law Judge, and he served in that position for three years at the AL-3 pay level. He then retired from the position and filed an appeal with the Board alleging that he had been constructively removed and that he had suffered a reduction in pay, in violation of 5 U.S.C. § 7521. Section 7521 applies to administrative law judges. It provides that an agency ordinarily may not remove or reduce the pay of an administrative law judge without a Board hearing and determination that the action is for good cause. 5 U.S.C. § 7521. The Board assigned Mr. Hunt’s case to its Chief Administrative Law Judge (“CALJ”) for adjudication. Addressing the question whether Mr. Hunt’s appeal was covered by section 7521, the CALJ held that Mr. Hunt had not alleged facts sufficient to establish that the USDA had constructively removed him from his position. The CALJ also rejected Mr. Hunt’s allegations that he suffered a reduction in pay when the agency filled the Chief Administrative Law Judge position at pay level AL-3. The CALJ reasoned that Mr. Hunt suffered no reduction in pay because, although Mr. Hunt took on 2007-3122 2 new responsibilities in his new position, his pay was never reduced. Because the CALJ found that the actions alleged by Mr. Hunt were not covered by section 7521, the CALJ dismissed Mr. Hunt’s appeal. The full Board denied Mr. Hunt’s petition for review. Mr. Hunt appealed the Board’s decision to this court. He argued that the USDA’s reduction of the salary of a position that he would later occupy was a “reduction in pay” covered by section 7521. The government argued that Mr. Hunt did not suffer a “reduction in pay” because his compensation was never reduced. We affirmed without opinion. Mr. Hunt then filed another appeal with the Board, again alleging that the USDA had reduced his pay by filling the Chief Administrative Law Judge position at pay level AL-3. In that appeal, Mr. Hunt argued that he had a right to appeal under 5 U.S.C. §§ 7512 and 7513. Section 7513 creates a right to appeal from actions covered by section 7512. Section 7512 covers reductions in pay, but it expressly excludes from its coverage “an action initiated under . . . section 7521 of this title.” Mr. Hunt sought to avoid that exclusion by arguing that because the alleged reduction in pay was not initiated under the procedures of section 7521, the exclusion did not apply and his appeal under sections 7512 and 7513 was proper. The Board assigned Mr. Hunt’s appeal to an administrative judge who held that the Board lacked jurisdiction over Mr. Hunt’s appeal for two reasons. First, the administrative judge held that the exclusion for an “action initiated under . . . section 7521” refers to any action covered by section 7521, whether or not the agency followed the procedures of that section in taking the action. See In re Doyle, 29 M.S.P.R. 170, 173 (1985) (“The Board holds that when an administrative law judge’s allegation 2007-3122 3 concerns an agency action covered under section 7521 and he alleges the action was taken without the required hearing and decision by the Board, the Board must consider the complaint under section 7521 regardless of the form of the complaint.”). Second, the administrative judge ruled that an appealable “reduction in pay” within the meaning of section 7512 requires an actual reduction in the employee’s salary. The full Board denied Mr. Hunt’s petition for review. Mr. Hunt now appeals. DISCUSSION We agree that the Board lacked jurisdiction over Mr. Hunt’s appeal because his allegations do not establish an appealable “reduction in pay” within the meaning of section 7512. In Chaney v. Veterans Administration, 906 F.2d 697, 698 & n.1 (Fed. Cir. 1990), this court held that the denial of a pay increase is not an appealable reduction in pay, even if the employee is legally entitled to the pay increase. Rather, the court held that an appealable reduction in pay requires “an ascertainable lowering, at the time of the personnel action, of an employee’s present or future pay.” Just as the Board in Chaney lacked jurisdiction over Ms. Chaney’s complaint that she was improperly denied a pay raise, the Board lacked jurisdiction over Mr. Hunt’s complaint that the USDA denied him a salary as Chief Administrative Law Judge that was higher than the salary he received in his previous position. Because the USDA’s conduct, as alleged by Mr. Hunt, does not constitute a “reduction in pay” within the meaning of section 7512, we affirm the Board’s decision dismissing Mr. Hunt’s appeal. We need not reach Mr. Hunt’s arguments that the Board’s alternative ground for dismissal was erroneous. To the extent that Mr. Hunt’s argument amounts to a contention that he was entitled to the pay of a higher-graded position, his argument runs afoul of the well- 2007-3122 4 recognized principle that there is no right “to a governmental position to which one has not been appointed” and, correspondingly, that “the salary of a Government job is payable only to the person appointed to that position.” United States v. Testan, 424 U.S. 392, 396 (1976). To the extent that his argument is that the agency’s classification of his position was incorrect, his remedy is not by way of an appeal from a purported “reduction in pay” under 5 U.S.C. § 7513. The statutory remedy for a person who believes his position has been classified improperly for pay purposes is to request that the Office of Personnel Management audit the position and direct the agency to change the grade of the position. See 5 U.S.C. § 5112(b). 2007-3122 5 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) UNITED STATES, ) ) Plaintiff, ) ) v. ) No. 99-cr-0286 (KBJ) ) GAVÁTA FIELDS, ) ) Defendant. ) ) MEMORANDUM OPINION AND ORDER On September 30, 1999, Defendant Gaváta Fields pled guilty to making counterfeit securities in violation of section 513 of Title 18 of the United States Code. Judge Ricardo M. Urbina sentenced her to prison time and restitution in the amount of $32,572.51. (See Min. Order of Dec. 9, 1999.) Fields was released on July 9, 2001 (see Def. s Mot. for Remission of Restitution ( Def. s Mot. ), ECF No. 25, at 1), and according to the government, she began making intermittent payments in September of 2001 (Mem. in , ECF No. 27, at 4 n.1.) To date, a grand total of $13,924.74 has been credited toward her restitution obligation. (See id.) Before this Court is Fields pro se Motion for Remission of Restitution, which she filed on April 17, 2019. The government opposes Fields This Court will construe Fields pursuant to 18 U.S.C. § 3664(k), or a motion for waiver of her restitution interest under 18 U.S.C. § 3612(f)(3). Because Fields fails to satisfy the burden of proof under either construction of her request, this Court will DENY her motion.  I. In her Motion for Remission of Restitution, Fields cites no authority that authorizes this Court to grant the relief she is now seeking. In her motion, Fields explains that, because of accruing interest, the restitution debt Def. s Mot. at 1.) Fields function as a single adult and be able to healthily pay my bi lls and continue to live a Id.) Therefore, Fields [.] (Id.) In ascertaining the scope of its jurisdicti on, this document filed pro se Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). Therefore, the Court construes Fields motion as either (A) a motion for adjustment of her restitution sentence pursuant to 18 U.S.C. § 3664(k), or (B) a motion for waiver of the restitution interest under 18 U.S.C. § 3612(f)(3). A. In evaluating Fields requested relief, the Court first looks at the Mandatory See 18 U.S.C. United States v. Monzel, 641 F.3d 528, 543 (D.C. Cir. 2011). restitution, the statute expressly authorizes discretion in fashioning how a defendant is United States v. Armstrong, No. 09-cr-135, 2018 WL 5923913, at *5 (D.D.C. Nov. 13, 2018) (internal quotation marks and citation omitted). 2 To that end, a - - nts at specified intervals and in- 18 U.S.C. § 3664(f)(3)(A)-(B). defendants required to pay restitution under this act will be indigent at the time of sentencing . . . . [and that] many of these defendants may also be sentenced to prison terms as well, making it unlikely that they will be able to make significant payments on -179, at 21 (1996), reprinted in 1996 U.S.C.C.A.N. 924. However, Congress also expressly asserted that not obviate and it made restitution mandatory nevertheless. Id. Indeed, the only concession that Congress made to ease the financial burden was to [] the court to order full restitution under a schedule of nominal payments in those instances where the defendant cannot pay restitution . . . . of material changes in economic circumstances. Id. The MVRA further corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title; (B) appealed and modified under section 3742; (C) amended under subsection 18 U.S.C. § 3664(o)(1). And courts have generally interpreted section 3664(o)(1) as an exclusive list. See, e.g., United States v. Wyss, 744 F.3d 1214, 1217 (10th Cir. 2014) (reversing dist the amount of restitution owed by a defendant on 3 the grounds that restitution may not be altered absent a showing of one of the § 3664(o)(1) factors). Fields does not purport to contest her original sentence, nor does she argue that the sentencing court erred in any way, thus neither section 3742 nor Rule 35 provides a basis for correction or modification of her restitution order. Similarly, section 3664(d)(5) does not apply, because that provision pertains only to amendments to restitution orders that result from a [some] losses in the initial claim for restitutionary relief[.] Thus, section 3664(k) is the only potentially applicable grounds for ing Field restitution sentence. Under this section, Court is authorized full, Id. § 3664(k). direct[s] that the doors of the district court should remain open to the defendant, and and its purpose is to United States v. Dolan, 571 F.3d 1022, 1032 (10th Cir. 2009) (Gorsuch, J.), , 560 U.S. 605 (2010). When seeking an adjustment under section 3664(k), [t]he petitioner bears the burden of proving that [her] circumstances have changed enough to warrant such a Hinton v. United States, No. 99-cv-211, 2003 WL 21854935, at *4 (D.D.C. Aug. 5, 2003). The D.C. Circuit has not addressed the precise contours of what . 4 objective comparison of a defend United States v. Grant, 235 F.3d 95, 100 (2d Cir. 2000) (finding the material was unfrozen after sentencing). The Eleventh Circuit describes Cani v. United States, 331 F.3d 1210, 1215 (11th Cir. 2003) (finding a defedant ion inadequate because supported only by documentation of restitution payments made). Fields has not established a basis for modifying her restitution order under either It is clear that this section is triggered only by . . economic id. § 3664(k), and Fields motion does not allege any change in her financial conditions whatsoever. Rather, Fields makes conclusory allegations that it is hard for her to pay off the debt. See, e.g., Def. s Mot. and single adult and be able to healthily pay [her] bills and continue to live a legitimate . That is not enough. What is more, even if Fields had demonstrated a material change in her ability to pay restitution, this Court is only economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution id. § 5 3664(f)(3)(B). That is, the statute does not grant this Court the authority to order full remission of the restitution sentence, as Fields requests. B. Another possible statutory basis of authority for this Court to consider Fields request is 18 U.S.C. § 3612(f)(3), which provides that , on a fine or restitution, it may specific dollar amount; or (C) limit the length of the period during which interest Liberally construed, Fields request might be deemed a motion to waive or limit the total interest due on her restitution under section 3612(f)(3), There has been some disagreement among federal courts as to whether section 3612(f)(3) authorizes a district court to modify interest payments after sent encing. Compare United States v. Coleman (per curiam) -judgment, to waive or limit the payment of interest upon a finding that the defendant is unable to pa y with United States v. Brumfield, 125 F. Supp. 3d 648, 651 (W.D. Mich. 2015) However, even assuming, in contrast with the government , that subsection 3612(f)(3) permits post-judgement relief, 1 Fields request must be denied, because this statutory 1 As a purely textual matter, subsection 3612(f)(3) contains no temporal limitation on when a court may all pertain to post-judgment collection matters. See, e.g., 18 U.S.C. § 3612(a) (notification of payments); id. at § 3612(d) (e) (delinquency and default). Moreover, s provisions on probation administration and release from incarceration. 18 U.S.C. Ch. 229. 6 provision does not provide the Court with unlimited discretion to determine whether interest should be waived or limited. Congress only authorized reconsideration where 18 U.S.C. § 3612(f)(3). And Fields has made no claim that she does not have the ability to pay interest, much less provided any evidence to that effect. Therefore, the Court is unable to make any determination concerning ability to pay. II. Because Fields has failed to meet her burden to show that her economic circumstances have changed or that she is unable to make payments on her restitution , it is hereby ORDERED that Fields Motion for Remission of Restitution is DENIED. DATE: December 23, 2019 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge 7 

171 F.Supp.2d 241 (2001) John and Joyce SILIVANCH, Plaintiffs, v. CELEBRITY CRUISES, INC., Fantasia Cruising Inc., Essef Corp., PAC-FAB, Inc., and Structural Europe, N.V. (f/n/a SFC), Defendants. Celebrity Cruises, Inc. and Fantasia Cruising Inc., Third-Party Plaintiffs, v. Structural Europe, Essef Corp., and PAC-FAB, Inc., Third-Party Defendants. Nos. 95 Civ. 0374BSJJCF, 94 Civ. 5270BSJJCF. United States District Court, S.D. New York. September 28, 2001. *242 *243 *244 *245 *246 *247 *248 *249 *250 Steven M. Hayes, Robert A. Jacobs, Parcher, Hayes & Snyder, PC, New York City, for plaintiffs. Gregory O'Neill, James Hazen, Hill, Betts & Nash LLP, Newark, NJ, for defendants. Robin G. Weaver, Squire, Sanders & Dempsey, Cleveland, OH, for third-party defendants. MEMORANDUM AND ORDER FRANCIS, United States Magistrate Judge. In July 1994, there was an outbreak of Legionnaires' Disease, a form of pneumonia, among passengers who had disembarked from the cruise ship Horizon after a voyage to Bermuda. An investigation by the United States Centers for Disease Control and Prevention revealed the presence of Legionella bacteria in the filters of the ship's whirlpool spa. Many of the victims (collectively, the "Passenger Plaintiffs") brought suit against Celebrity Cruises Inc. and Fantasia Cruising Inc. (collectively, "Celebrity"), the owners and operators of the Horizon. They also sued Essef Corporation, Pac-Fab, Inc., and Structural Europe, N.V. (collectively, the "Essef Defendants"), affiliated companies that had designed, manufactured, and distributed the filters. In addition, Celebrity filed a complaint and cross-claims against the Essef Defendants seeking indemnification and contribution and also seeking damages for products liability, breach of warranty, fraud, and negligent misrepresentation. The cases were consolidated for discovery, and the parties consented to refer each action to me for all purposes including trial pursuant to 28 U.S.C. § 636(c). The parties also stipulated that the Silivanch action would be tried as a bellwether case and would result in a determination of the liability of Celebrity and the Essef Defendants to the Passenger Plaintiffs, an allocation of responsibility among the defendants, a determination of the Essef Defendants' liability on Celebrity's claims, and an assessment of any punitive damages. The parties also agreed that the jury in the bellwether case would award compensatory damages to the Silivanch plaintiffs, but that separate compensatory damage trials would be held with respect to the remaining plaintiffs and with respect to Celebrity's claims against the Essef Defendants. After receiving evidence over a period of six weeks in the Silivanch case, the jury rendered its verdict. It found Celebrity liable to the Passenger Plaintiffs for negligence and the Essef Defendants liable to these plaintiffs for negligence and strict products liability, as well as breach of express and implied warranties. Further, the jury held the Essef Defendants liable to Celebrity for fraud, negligence, strict products liability, breach of express and implied warranties, and negligent misrepresentation. The jury allocated thirty percent of the responsibility for the Passenger Plaintiffs' injuries to Celebrity and seventy percent to the Essef Defendants. It also held the Essef Defendants liable both to the Passenger Plaintiffs and to Celebrity for punitive damages. Thereafter, the jury calculated the amount of damages to be awarded. It *251 found the Essef Defendants liable for $7 million in punitive damages, of which it awarded sixty percent to the Passenger Plaintiffs and forty percent to Celebrity. The jury then awarded John Silivanch $110,000 for medical expenses, $1,350,000 for lost earnings, and $900,000 for pain and suffering, and it awarded $300,000 to his wife Joyce for loss of society. Following the jury determination, I granted the plaintiffs' application for an award of pre-judgment interest. The defendants now move pursuant to Rules 50(b) and 59(a) of the Federal Rules of Civil Procedure for judgment as a matter of law or for a new trial. The Essef Defendants seek judgment or a new trial with respect to all claims of strict liability and negligence, and in particular with respect to proof of causation.[1] They also move for judgment as a matter of law striking the awards for punitive damages and loss of society, and they seek a new trial on compensatory damages as well as judgment as to certain elements of that award. In addition, these defendants request a new trial based on purported errors in the admission of evidence, the jury instructions, and the conduct of the proceedings. They also renew their motion for judgment as a matter of law or seek a new trial with respect to Celebrity's claims of fraud. Finally, Essef Corporation and Pac-Fab, Inc. seek judgment or a new trial, arguing that there is no evidence of direct liability as to them and no basis for finding them vicariously liable for the acts of Structural Europe, N.V.[2] Celebrity, in turn, has filed posttrial motions on two narrower points. It seeks judgment as a matter of law striking the award for loss of society and it challenges the award of prejudgment interest. With respect to all of the defendants' applications, the relevant facts will be discussed in the context of each legal argument. Discussion A. Legal Standards Judgment as a matter of law may be granted under Rule 50 only if "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]." Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 289 (2d Cir.1998) (citations omitted) (alterations in original). The court must view the evidence in the light most favorable to the party opposing the motion and must defer to all of the jury's credibility determinations and reasonable inferences. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Raniola v. Bratton, 243 F.3d 610, 616 (2d Cir.2001); Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir.2000); Galdieri-Ambrosini, 136 F.3d at 289. On a Rule 50 motion, the court "may not weigh the credibility of witnesses or otherwise consider the weight of the evidence." Caruolo, 226 F.3d at 51 (citing Galdieri-Ambrosini, 136 F.3d at 289). Indeed, "although the court should review the record *252 as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151, 120 S.Ct. 2097 (citation omitted). The standard for granting a new trial under Rule 59 is less stringent. "[U]nlike a motion for judgment as a matter of law, a trial judge considering a motion for a new trial is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." United States v. Landau, 155 F.3d 93, 104 (2d Cir.1998) (internal quotations and citation omitted). Accordingly, "`a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict.'" Caruolo, 226 F.3d at 54 (quoting Landau, 155 F.3d at 104). A new trial is warranted if the court "is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Caruolo, 226 F.3d at 54 (internal quotations and citation omitted). Each of the defendants' motions may now be judged against these standards. B. Negligence I previously determined that this litigation falls within the admiralty jurisdiction of the court. In re Horizon Cruises Litigation, 101 F.Supp.2d 204, 207-09 (S.D.N.Y.2000). "With admiralty jurisdiction comes the application of substantive admiralty law." East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). And, in admiralty law, common law principles of negligence apply. See Smith v. Mitlof, 130 F.Supp.2d 578, 582 (S.D.N.Y.2001); Jurgens v. Poling Transportation Corp., 113 F.Supp.2d 388, 396-97 (E.D.N.Y.2000); Diesel Tanker Ira S. Bushey, Inc. v. Tug Bruce A. McAllister, No. 92 Civ. 5559, 1994 WL 320328, at *6 (S.D.N.Y. June 29, 1994); see also East River Steamship, 476 U.S. at 863-66, 106 S.Ct. 2295 (incorporating principles of product liability into maritime law). The elements of negligence are: (1) a duty owed by the defendant to the plaintiff; (2) breach of that duty; (3) proximate causation of the plaintiff's injuries; and (4) damages. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 79 (2d Cir.1997); see also Alfaro v. Wal-Mart Stores, Inc. 210 F.3d 111, 114 (2d Cir.2000) (conflating the elements of causation and damages). This formula is routinely applied in maritime cases. See Petitt v. Celebrity Cruises, Inc., 153 F.Supp.2d 240, 252-53 (S.D.N.Y.2001); Jurgens, 113 F.Supp.2d at 397; In re Queen of Hearts Cruises, Inc., Nos. 96 Civ. 6712, 98 Civ. 0111, 1999 WL 195298, at *6 (S.D.N.Y. April 7, 1999). The evidence at trial amply supported the jury's finding of negligence against the Essef Defendants. 1. Facts Relevant to Negligence The Essef Defendants designed and manufactured the model TR-140 high rate sand filter used aboard the Horizon. The main body of the filter is a hollow cylinder. Water from the whirlpool spa is introduced into the filter by a diffuser that operates like a shower head and disperses the water when the filter is operating in filtration mode. The water then seeps through the filter medium, consisting of silica sand, which captures particulate matter such as hair, dirt, and oils. Below the sand is a gravel bed that contains a hub from which laterals radiate like the spokes of a wheel. While the filter is in filtration mode, the water passes through holes in the laterals and returns to the whirlpool spa. (Tr. *253 1344-46).[3] Periodically, the filter must be backwashed to remove particulate matter that has built up during the filtration phase. Essentially, the flow is reversed. Clean water is forced through the laterals and up through the sand, dislodging the dirt and debris that has accumulated. It is forced out of the filter and is ultimately released overboard. (Tr. 1346-47). There is substantial evidence in the record that the TR-140 filter did not backwash properly. Because the laterals did not extend all the way to the walls of the cylinder, the filter was subject to "coring," also known as "channeling." This means that during backwash the water flowed up primarily through the center of the sand, leaving the outer edges of the medium uncleansed. (Tr. 1355-58). Moreover, testing demonstrated that the sand did not completely fluidize during backwashing. In order for the filter medium to be properly cleaned, it is necessary for the entire sand bed to be lifted so that the water can circulate around each silica grain. (Tr. 1346-47). The TR-140 did not accomplish this. Because of the small size of Legionella bacteria, it is highly unlikely that individual microbes would be trapped by a sand filter, since they would pass through the interstices between the grains of silica. However, according to the evidence in this case, organic matter in the form of biofilms developed in the filters. These biofilms provided a medium for Legionella bacteria to proliferate and also protected them from halogens such as chlorine and bromine which are added to the spa water as disinfectants. (Tr. 1173-75, 1684-85, 1704-06, 1755, 2306). As the water containing the bacteria was released into the whirlpool, it became aerosolized and was inhaled by bathers, causing Legionnaires' Disease among those most susceptible. (Tr. 1164-65; Pl. Exh. 36 at 5, 7). 2. Existence of a Duty The Essef Defendants maintain that they owed no duty to the plaintiffs both because the filter was not designed to interdict Legionella or other bacteria and because no one could have foreseen that a sand filter would be a source of Legionnaires' Disease. Neither argument is persuasive. First, a manufacturer owes a duty to consumers broader than merely the duty to produce products that will achieve their intended purpose; it is obligated to market only those products that are reasonably safe when used for the intended purpose. See Cacciola v. Selco Balers, Inc., 127 F.Supp.2d 175, 185 (E.D.N.Y. 2001); Hamilton v. Accu-Tek, 62 F.Supp.2d 802, 822 (E.D.N.Y.1999); Liriano v. Hobart Corp., 92 N.Y.2d 232, 237, 677 N.Y.S.2d 764, 766, 700 N.E.2d 303 (1998). Thus, for example, an automobile manufacturer may be liable for producing a car with a gas tank which, although it adequately supplies the engine with fuel, is susceptible to explosion in the event of a rear-end collision. More to the point, the manufacturer of a device that creates conditions conducive to the proliferation of bacteria may be liable to persons who become ill as a result, even if the device otherwise performs as required. For example, the maker of functionally effective tampons has a duty to design them to minimize the incidence of toxic shock syndrome, see, e.g., Graham v. Playtex Products, Inc., 993 F.Supp. 127, 128-29, 134 (W.D.N.Y.1998), and the manufacturer of an intra-uterine device must minimize the danger of pelvic inflammatory disease regardless *254 of how well the product works as a contraceptive. See, e.g., Worsham v. A.H. Robins Co., 734 F.2d 676, 681-82 (11th Cir.1984). In this case, the Essef Defendants had a duty not to distribute a filter that facilitated the growth of harmful bacteria. Second, the Essef Defendants construe the foreseeability requirement too narrowly. A manufacturer may be liable for marketing a product that causes injuries that were generally foreseeable; a plaintiff need not demonstrate that the defendant should have foreseen the precise type of injury that actually occurred. The Restatement (Second) of Torts states: (1) If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. (2) the actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. Restatement (Second) of Torts § 435. Thus, if a defendant's conduct could predictably contribute to the transmission of disease, that defendant is liable even if the particular disease contracted by a plaintiff is rare. For example, because it is well-known that mishandling of blood supplies may result in the infection of persons who receive transfusions, blood services may be liable to a victim who contracted Acquired Immune Deficiency Syndrome ("AIDS"), even if the defendant's conduct occurred before AIDS was identified. See Wadleigh v. Rhone-Poulenc Rorer, Inc., 157 F.R.D. 410, 420 (N.D.Ill.1994); Doe v. United States, 737 F.Supp. 155, 162 (D.R.I.1990); Gaffney v. United States, No. 88-1457-Z, 1990 WL 57625, at *7 (D. Mass. April 26, 1990). In this case, the jury heard evidence that by the 1980's the spa industry, including officials of the Essef Defendants, had become aware that certain illnesses, including Legionnaires' Disease, were associated with the operation of whirlpool spa systems. (Tr. 1664-67, 1669-71, 1680-81, 1757; Deposition of Stanley H. Frederick dated May 17, 1999 ("Frederick May 17, 1999 Dep."), at 129, 161-66, attached as Exh. 2 to Declaration of Robert A. Jacobs dated Feb. 16, 2001 ("Jacobs Decl."); Deposition of Stanley H. Frederick dated May 18, 1999 ("Frederick May 18, 1999 Dep."), at 278-80, 382-83, attached as Exh. 3 to Jacobs Decl.; Deposition of Ronald Robol dated May 20, 1999 ("Robol May 20, 1999 Dep."), at 1116-17, attached as Exh. 5 to Jacobs Decl.; Exhs. C-116, C-324, attached as Exhs. 7 and 8, respectively, to Jacobs Decl.).[4] Significantly, it was known that the build-up of organic materials reduced the effectiveness of chemical disinfectants. (Tr. 1683-84, 1704-06). Accordingly, in 1984, the National Sanitation Foundation ("NSF") modified its standards for sand filters to require them to demonstrate that backwashing would thoroughly remove organics. (Tr. 1703-06). Thus, there is evidence that the connection between the operation of sand filters and the transmission of disease was sufficiently well-known to satisfy the foreseeability requirement. 3. Breach of the Duty The Essef Defendants' argument that they breached no duty conflates with their contention that they had no duty to begin *255 with. They maintain that since they were not required to produce a filter that screened out pathogens, they did not breach any legal obligation. But, as discussed above, the duty was to produce a filter that did not create an environment conducive to the proliferation of bacteria, and there was sufficient evidence that the Essef Defendants breached this duty. The TR-140 filter had been designed for use in swimming pools. (Tr. 342-44). Nevertheless, the Essef Defendants marketed it for use in spas as well, and included a sticker that falsely stated that the National Sanitation Foundation had approved it for such purposes. (Frederick May 17, 1999 Dep. at 170-71; Pl. Exh. 54 ¶¶ 33, 34). Prior to doing so, they never conducted tests to determine whether it was suited for use in spas. (Tr. 239, 403; Frederick May 17, 1999 Dep. at 191; Pl. Exh. 54 ¶¶ 11-14). Indeed, the TR-140 failed the NSF's sand bed flatness test (Tr. 615-16), a result that indicated that the filter might have problems with coring or channeling. (Tr. 341, 641). One of Essef Corporation's own employees, Steven Suchanek, had warned the president of that company that the TR-140 was defectively designed and that its inability to backwash properly was preventing disinfectants from circulating throughout the filter medium. (Tr. 1344, 1355-62, 1373-79). Similarly, Stanley Frederick, PacFab's former vice president for engineering, testified that the TR-140 was not well suited for spas because it could not be completely cleansed of accumulated organic materials. (Frederick May 17, 1999 Dep. at 88-89, 184-85; Exh. C-152). Indeed, Pac-Fab's chief engineer stated that he would not recommend using the filter in spas. (Robol May 20, 1999 Dep. at 1133-34). Nevertheless, the TR-140 continued to be marketed for just such purposes. 4. Proximate Cause There is no dispute that John Silivanch, along with other passengers, acquired Legionnaires' Disease from the whirlpool spa aboard the Horizon. The Essef Defendants do, however, contest two aspects of causation. First, they argue that the most severe of Mr. Silivanch's injuries are not attributable to the disease. This issue will be considered below in connection with the analysis of compensatory damages. Second, these defendants contend that there was insufficient proof that the TR-140 filters contributed to the presence of Legionella bacteria in the spa. That argument is not persuasive. In the investigation of the outbreak aboard the Horizon, the Centers for Disease Control and Prevention (the "CDC") recovered Legionella bacteria from the sand filters of the spa system. (Pl. Exh. 37 at 6, 11). These bacteria were indistinguishable from organisms found in the respiratory system of one of the victims of the outbreak. (Pl. Exh. 37 at 6). Furthermore, the CDC found that "[v]isual examination of the filter material showed extremely heavy organic loading. This loading remained in the filter despite reports that a routine (daily) filter backwash cycle was implemented." (Pl. Exh. 37 at 11). These objective observations provided the basis for the inferences drawn by the plaintiffs' expert witnesses. Linden Witherell, an expert in public health engineering and epidemiology, testified that the failure of the TR-140 filter to backwash properly had allowed the accumulation of organic matter in the filters, which in turn trapped Legionella bacteria and provided an environment for them to proliferate. (Tr. 1690-93, 1705-09, 1753-56, 1783-85, 2274-76, 2306-08, 2317-20). Similarly, Dr. Joseph Plouffe, an epidemiologist, also identified the filters as the point of amplification for Legionella within the *256 spa system on the Horizon. (Tr. 1174-75, 1177, 1196, 1203-04). The jury thus had sufficient evidence from which it could find causation. None of the Essef Defendants' efforts to undermine that evidence warrant either judgment as a matter of law or a new trial. a. Halogenation The Essef Defendants maintain that the outbreak was attributable not to the filters but to the failure of the crew to utilize chemical disinfectants properly. The Essef Defendants' expert, Dr. William Rowley, testified that with adequate halogenation, no Legionella should have been able to survive and infect the passengers. (Tr. 2196). The plaintiffs' experts, however, had testified as to the mechanisms by which the build-up of organic material in the filters would protect the bacteria and render the halogens less effective. The jury was entitled to credit this evidence. To the extent that the Essef Defendants now argue that Celebrity's negligence was a superceding cause that relieves them of liability, this contention, too, must be rejected. The party seeking to establish a superceding cause has the burden of demonstrating that the act in question was the sole proximate cause of the injuries incurred. See Exxon Co. v. Sofec, Inc., 54 F.3d 570, 574-75 (9th Cir. 1995), aff'd, 517 U.S. 830, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996). And, whether a party has met that burden is generally an issue for the jury. See Parsons v. Honeywell, Inc., 929 F.2d 901, 905 (2d Cir.1991). Here, it was rational for the jury to determine that Celebrity's negligence was a concurrent, not superceding, cause of the outbreak. See Hirsch v. Polymark Corp., 889 F.Supp. 714, 715-16 (S.D.N.Y.1995) (employee's removal of safety guard concurrent cause of plaintiff's injury along with defective design of machine). The jury could reasonably have concluded that the accumulation of organics in a negligently designed TR-140 filter was the principal cause of the outbreak and, at the same time, determine that Celebrity was also negligent for failing to take precautions against filter failure such as periodically superchlorinating the spa system.[5] With respect to the issue of Celebrity's negligence, the Essef Defendants also complain that their expert, Dr. Rowley, was precluded from testifying that the spa was operated with one pump at a time rather than two. (Tr. 2104-08). This witness did, however, offer his opinion that operation in this manner was "unbelievable." (Tr. 2104). He was prevented only from offering calculations of flow based on a single pump because these calculations had not been disclosed during expert discovery prior to trial. (Tr. 2107). This preclusion order was appropriate under Rule 37(c)(1) of the Federal Rules of Civil Procedure since this failure to disclose would have prejudiced the plaintiffs and Celebrity by preventing them from effectively challenging at trial the somewhat arcane analysis. See Lamarca v. United States, 31 F.Supp.2d 110, 122 (E.D.N.Y. 1999). Moreover, Dr. Rowley's failure to include these calculations in his expert report cannot be excused on the basis that the factual predicate for them was only revealed at trial: the fact that the spa was operated with a single pump was disclosed in a deposition in 1997 (Deposition of Ioannis Ladakis dated March 3, 1997, at 89, attached as Exh. 19 to Jacobs Decl.), as well as in the spa system operations manual *257 produced in pretrial discovery. (Pl. Exh. 19 attached as Exh. 20 to Jacob Decl.). b. Post Hoc, Ergo Propter Hoc The Essef Defendants next argue that the mere fact that the passengers became ill after the spa water had passed through the TR-140 filters does not prove that the filters caused the disease. This proposition is unassailable. "[A] temporal relationship by itself provides no evidence of causation." In re Breast Implant Litigation, 11 F.Supp.2d 1217, 1238 (D.Colo. 1998) (citation omitted). But such a temporal relationship can corroborate other proof of a causal nexus, see Zuchowicz v. United States, 140 F.3d 381, 385 (2d Cir. 1998), and, as discussed above, there is much evidence here beyond the mere fact that the spa water passed through the filters at a point in time before the passengers were infected. c. The Zenith Next, the Essef Defendants reason that any inference of causation is negated by the fact that there was never an outbreak of Legionnaires' Disease on the Zenith, a sister ship to the Horizon that was also operated by Celebrity and which had an identical spa system including TR-140 filters. There is no merit to this rationale. In the real world causation is rarely so uncomplicated that seemingly similar conditions will always lead to the same outcome. While it could certainly be argued to the jury that the experience of the Zenith indicated that the filters were not at fault for the outbreak on the Horizon, the jury was not obligated to credit that argument. d. Post-Sale Alterations The Essef Defendants also contend that the TR-140 filters were substantially altered after sale in that the laterals were deformed, apparently by heat, and thus rendered less effective. "[I]f a consumer alters a product in a way that creates a defect, the consumer's conduct rather than the manufacturer's is the proximate cause of any ensuing accident." Hood v. Ryobi America Corp., 181 F.3d 608, 612 (4th Cir.1999) (citation omitted). Put another way, [t]he injuries suffered by [the plaintiff] must be the proximate result of a defect which existed in the product at the time it was sold, and if the product has been materially altered or modified by a third party after the sale, those injuries cannot be traced to be the proximate result of [the defendant's] original design. Lamb v. Sears, Roebuck & Co., 1 F.3d 1184, 1188 (11th Cir.1993) (citations omitted). See also Valentin v. C.G. Bretting Manufacturing Co., 278 A.D.2d 230, 231, 717 N.Y.S.2d 281, 282 (2d Dep't 2000) (issue of fact regarding material modification precludes summary judgment); Rios v. Rockwell International Corp., 268 A.D.2d 279, 280, 701 N.Y.S.2d 386, 386-87 (1st Dep't 2000) (same). To immunize a manufacturer from liability, then, any alteration must have been material. In this case, the jury heard conflicting evidence on this issue. While the Essef Defendants' expert testified that the post-sale changes in the filters were significant (Tr.2099-2103), there was also substantial evidence, based on testing of unaltered models, that the filter never backwashed properly. It was therefore within the province of the jury to determine that whatever changes occurred were immaterial to the functioning of the filters and to the manufacturer's liability. C. Strict Liability: Design Defect In addition to finding the Essef Defendants negligent, the jury concluded *258 that they were strictly liable for injuries caused by the TR-140 filters. Admiralty law incorporates principles of strict products liability. East River Steamship, 476 U.S. at 865, 106 S.Ct. 2295. Those principles are summarized in the Restatement (Second) of Torts: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Restatement (Second) of Torts § 402A(1). See also In re M/V Danielle Bouchard, 164 F.Supp.2d 794, 797-98 (E.D.La.2001); Cigna Property & Casualty Insurance Co. v. Bayliner Marine Corp., No. 92 Civ. 7891, 1995 WL 125386, at *11-*12 (S.D.N.Y. March 22, 1995); In re American Export Lines, Inc., 620 F.Supp. 490, 517 (S.D.N.Y.1985). The Essef Defendants argue that, in two respects, the evidence of defect was insufficient.[6] First, they maintain that the testimony of the experts proffered by the plaintiffs and by Celebrity was not scientifically sound and should have been excluded. That argument will be addressed below in connection with the Essef Defendants' motion for a new trial. Second, they contend that there was no adequate evidence of a viable alternative to the TR-140 filter. Although there is substantial overlap between negligence and strict liability, "[s]trict products liability ... differs from a cause of action for a negligently designed product in that the plaintiff is not required to prove that the manufacturer acted unreasonably in designing the product. The focus shifts from the conduct of the manufacturer to whether the product, as designed, was not reasonably safe." Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 401, 450 N.E.2d 204 (1983). Accordingly, A product is unreasonably dangerous if a reasonable person would conclude that the product's utility did not outweigh the risk inherent in marketing a product designed in that manner. The decision whether a product is unreasonably dangerous is one for the jury, which it may determine after taking into account alternative designs, their costs, and the product's usefulness. Urena v. Biro Manufacturing Co., 114 F.3d 359, 364 (2d Cir.1997) (citing Voss, 59 N.Y.2d at 107, 463 N.Y.S.2d at 402, 450 N.E.2d 204). As discussed in the analysis of the negligence claim, there was ample evidence presented that the design of the TR-140 filter created a danger of infectious disease. There was also evidence that at least three alternative designs existed. The first was created by Steven Suchanek, an employee of Essef Corporation. Known as the "Pentazone" design, this hub and lateral configuration was patented by Mr. Suchanek and was actually marketed by the Essef Defendants. (Tr. 2014-15, 1362-69). The Essef Defendants contend that they discontinued sale of the Pentazone because the design was not robust: that is, it required extreme precision in the component parts and their assembly. (Tr.2016-17). However, there was also evidence that the problems related *259 simply to a supply of inferior plastic (Tr. 1382-83), and the jury was entitled to conclude that the Pentazone design was viable. Moreover, the Essef Defendants also marketed a TR-140C filter that achieved better results by using four diffuser heads rather than one. (Tr. 242-44). Finally, they located still a third design in Europe. (Tr. 1311, 2020, 2027, 2031). Thus, there is sufficient evidence that commercially acceptable design alternatives were available. D. Breach of Warranties 1. Implied Warranty The Essef Defendants next argue that they may not be held liable for breach of implied warranty because that cause of action is duplicative of the plaintiffs' design defect claim. However, "in a products liability case a cause of action for strict liability is not identical to a claim for breach of warranty." Castro v. QVC Network, Inc., 139 F.3d 114, 117 (2d Cir.1998) (citing Denny v. Ford Motor Co., 87 N.Y.2d 248, 251, 639 N.Y.S.2d 250, 251, 662 N.E.2d 730 (1995)). First, "the core element `defect' is subtly different in the two causes of action." Denny, 87 N.Y.2d at 256, 639 N.Y.S.2d at 255, 662 N.E.2d 730. While the strict products concept of a product that is "not reasonably safe" requires a weighing of the product's dangers against its over-all advantages, the ... concept of a "defective" product [for warranty purposes] requires an inquiry only into whether the product in question was "fit for the ordinary purposes for which such goods are used." Id. at 258, 639 N.Y.S.2d at 256, 662 N.E.2d 730 (citation and footnote omitted). Second, as a result of this conceptual distinction, the elements that must be proven for each cause of action differ. In order to establish a breach of implied warranty, the plaintiff must show: "(1) that the product was defectively designed or manufactured; (2) that the defect existed when the manufacturer delivered it to the purchaser or user; [and] (3) that the defect is the proximate cause of the accident." Cigna, 1995 WL 125386, at *12 (quoting American Export Lines, 620 F.Supp. at 518). Thus, on an implied warranty claim, the injured party need not demonstrate that safer designs were available. See Groome v. Matsushita Electric Corp., No. 92 CV 3073, 2000 WL 341134, at *6 (E.D.N.Y. March 30, 2000); Denny, 87 N.Y.2d at 259, 639 N.Y.S.2d at 256, 662 N.E.2d 730. The jury's verdicts on design defect and implied warranty are therefore not redundant. 2. Express Warranty The Essef Defendants' argument with respect to the Passenger Plaintiffs' claims of breach of express warranty is more persuasive. They contend that this cause of action must fail because no express warranties were ever made directly to the plaintiffs. Rather, the warranty at issue — the representation that the TR-140 filter was certified by the National Sanitation Foundation for use in spas — was contained in a sticker on the filters themselves that would never be seen by a passenger on the vessel. The plaintiffs respond that an express warranty extends not only to the direct purchaser of the product but also to all persons who might reasonably be expected to use it or be affected by it. In some jurisdictions, it appears that the law of products liability has indeed evolved that far. See Sullivan v. Young Brothers & Co., 91 F.3d 242, 249-50 (1st Cir.1996) (applying Maine law). In others, however, it is still the law that the injured party must be in privity with the defendant in order to maintain an express warranty claim. See Marshall v. Wellcraft Marine, Inc., 103 F.Supp.2d 1099, 1113-14 *260 (S.D.Ind.2000) (construing Florida law). In New York, the courts appear to have taken a middle ground. While there need be no contractual privity between the manufacturer and the consumer, the representations at issue must have been publicly disseminated and relied on by the injured party. See Oak Point Associates v. Southern States Screening, Inc., No. 89 Civ. 7362, 1992 WL 197419, at *3 (S.D.N.Y. Aug. 4, 1992); Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 10-13, 226 N.Y.S.2d 363, 365-68, 181 N.E.2d 399 (1962); County of Chenango Industrial Development Agency v. Lockwood Greene Engineers, Inc., 114 A.D.2d 728, 730, 494 N.Y.S.2d 832, 834 (3d Dep't 1985). I do not believe that the general common law as is applicable in this admiralty case has developed beyond the stage reflected in the law of New York. Since there is no evidence that the Essef Defendants displayed their warranty to the general public or that the plaintiffs relied on or were even aware of it, the express warranty claim must be dismissed. E. Essef Defendants' Individual Liability The Essef Defendants next argue that there was insufficient evidence to find Pac-Fab and Essef Corporation — as opposed to Structural Europe — individually liable.[7] They contend that the high standards for piercing the corporate veil were not met in this case. This argument fails for two reasons. First, the plaintiffs have never advanced a claim based on vicarious liability. Rather, they contend that each of the Essef Defendants played a direct role in the design, manufacture, and distribution of the TR-140 filter such that they may all be held jointly and severally liable. More importantly, the Essef Defendants have forfeited the opportunity to assert that Pac-Fab and Essef Corporation may not be held individually liable by failing to raise this claim in their motion for judgment as a matter of law ("JMOL") at the close of the plaintiffs' case. It is well established that: when a preverdict motion for JMOL has been made, the movant may not add new grounds after trial. The posttrial motion is limited to those grounds that were "specifically raised in the prior motion for [JMOL]." In sum, a posttrial motion for JMOL can properly be made only if, and to the extent that, such a motion specifying the same grounds was made prior to the submission of the case to the jury. McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir.1997) (quoting Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993)) (other citations omitted); see also Tolbert v. Queens College, 242 F.3d 58, 76-77 (2d Cir.2001); Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 129 (2d Cir. 1999); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir.1998); Galdieri-Ambrosini, 136 F.3d at 286; Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1155 (2d Cir.1994). [T]he purpose of requiring the moving party to articulate the ground on which JMOL is sought is to give the other party an opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury. The articulation is necessary so that the responding party may seek to correct any overlooked deficiencies in the proof. Accordingly, the JMOL motion must at least identify the specific element that *261 the defendant contends is insufficiently supported. Galdieri-Ambrosini, 136 F.3d at 286 (citations and internal quotations omitted). Thus, "[a] motion that identifies one element of a claim is insufficient to permit the district court to grant JMOL for lack of proof of some other, unspecified, element." Tolbert, 242 F.3d at 77 (citations omitted).[8] In their pre-verdict motion in this case, the Essef Defendants devoted each of their arguments to issues common to all of them. In no instance did counsel suggest that evidence was wanting as to Pac-Fab or Essef Corporation in particular. (Tr. 1824-58). The only time these defendants were even separately identified during argument on the motion was when counsel for the Essef Defendants contended that none of them had guaranteed the safety of the filter: It's very clear that no one at Essef or Pac-Fab or Structural Europe ever represented that this sand filter had any role to play whatsoever in the prevention of disease. (Tr. 1825). This hardly constitutes articulation of a claim that any specific element of negligence or strict liability was uniquely lacking with respect to a particular defendant. A party that fails to advance a ground for judgment as a matter of law prior to verdict forfeits that argument on any renewed motion unless the consequence would be "manifest injustice." See, e.g., Tolbert, 242 F.3d at 77; Pahuta, 170 F.3d at 129; Galdieri-Ambrosini, 136 F.3d at 287; Cruz, 34 F.3d at 1155. For example, noncompliance with Rule 50(a) may be overlooked "where a jury's verdict is wholly without legal support." Pahuta, 170 F.3d at 129 (citations and quotations omitted). In the case of defendants held jointly liable, then, the failure to move for JMOL on behalf of one of them individually might be ignored if that defendant played no part in the tortious conduct. That is not the case here. For example, the TR-140 filter was designed by Edward LeBreton while he was an engineer working at Pac-Fab but on the payroll of Structural Fibers, Inc., now known as Essef Corporation. (Tr. 312, 314, 323). Structural Europe relied on Pac-Fab for testing of the TR-140 filter and for information concerning complaints that Structural Europe received about it. (Tr. 297, 299). The proprietary technology as well as the machinery and key personnel used by Structural Europe to manufacture the TR-140 filter came from Essef Corporation. (Tr. 355-58, 361-62). Thus, there is no manifest injustice in holding that Essef Corporation and Pac-Fab, having failed to raise specific grounds for judgment as a matter of law prior to the verdict, are now precluded from doing so.[9] *262 F. Punitive Damages The Essef Defendants challenge the jury's award of punitive damages on the grounds that such damages are not available in admiralty and, even if they are, they are not warranted by the facts of this case. I previously determined in the course of this litigation that punitive damages may indeed be granted in maritime cases, Horizon Cruises Litigation, 101 F.Supp.2d at 210-14, and I will not reiterate that reasoning here. Punitive damages may be awarded where a defendant's conduct is intentional, wanton and reckless, or constitutes gross negligence. See CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 699 (1st Cir. 1995); Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1254 (8th Cir.1994); Gravatt v. City of New York, 53 F.Supp.2d 388, 425-26 (S.D.N.Y.1999), rev'd on other grounds, 226 F.3d 108 (2d Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1485, 149 L.Ed.2d 373 (2001). In this case there was evidence from which the jury could conclude (1) that the Essef Defendants were aware that whirlpool spas presented increased risk of illness, including Legionnaires' Disease, (2) that they also knew that the TR-140 filter had problems with channeling and did not backwash properly, thus allowing a build-up of organic materials and preventing disinfectant chemicals from reaching all bacteria, and (3) that, despite this knowledge, they nevertheless marketed this filter for use in whirlpool spas, even affixing a sticker that falsely represented that the filter met the standards of the National Sanitation Foundation. Such conduct is sufficiently wanton to merit an award of punitive damages. Finally, the Essef Defendants argue that the jury's award of $7 million in punitive damages — $4.2 million of which is allocated to the Passenger Plaintiffs — is excessive. In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the Supreme Court identified three sets of factors relevant to a determination of whether a punitive damage award is so grossly excessive as to violate the Due Process Clause of the Fourteenth Amendment: (1) the degree of reprehensibility of the tortfeasor's conduct, (2) the ratio of the punitive damages award to the actual harm inflicted, and (3) the relation between the exemplary damages and civil or criminal penalties that could be imposed for comparable misconduct. Id. at 575-85, 116 S.Ct. 1589. In this case, the conduct of the Essef Defendants was sufficiently blameworthy to justify an award of punitive damages. In Gore, the Court found none of the aggravating factors associated with reprehensible conduct to be present. The harm inflicted was purely economic and the tortfeasor's conduct "evinced no indifference to or reckless disregard for the health and safety of others." Id. at 576, 116 S.Ct. 1589. Further, the Court found that the defendant there had not engaged in repeated tortious acts and had made no deliberate false statements. Id. at 576-80, 116 S.Ct. 1589. Here, by contrast, the Essef Defendants put the health of persons who used the spa in jeopardy, actually caused some to contract a serious illness, falsely represented that the filter was approved by the National Sanitation Foundation, and continued to market it in that fashion until well after the outbreak on the Horizon. (Deposition of Ronald Robol dated May 19, 1999, at 995-98, attached as Exh. 4 to Jacobs Decl.). The ratio of punitive to compensatory damages also supports the award in this case. The punitive award that was overturned in Gore was 500 times the actual economic damages. Id. at 582, 116 S.Ct. *263 1589. Here, the Silivanch plaintiffs alone were awarded $2.6 million in compensatory damages. Thus, the entire punitive damage award of $7 million is less than three times that amount. Moreover, only $4.2 million of that will go to the Passenger Plaintiffs, and it will be shared among them. Accordingly, the ratio of punitive to compensatory damages for any single plaintiff will be even less. None of the parties have suggested what civil or criminal penalties might be available for conduct similar to that engaged in by the Essef Defendants, and so this factor is neutral. Based on the first two Gore factors, however, it is clear that the punitive damage award here is not excessive. G. Loss of Society The Essef Defendants as well as Celebrity also attack the jury's award of $300,000 to Joyce Silivanch for loss of society. As with punitive damages, they argue that such damages are not available in admiralty. That contention is foreclosed by decisions of the Second Circuit. See Zicherman v. Korean Air Lines Co., 43 F.3d 18, 21-22 (2d Cir.1994), aff'd in part and rev'd in part on other grounds, 516 U.S. 217, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996); In re Air Disaster at Lockerbie Scotland on December 21, 1988, 37 F.3d 804, 829 (2d Cir.1994). The Essef Defendants further argue that no award is appropriate since Mrs. Silivanch did not suffer pecuniary harm because she did not hire anyone to perform the household services that Mr. Silivanch was no longer capable of undertaking. But loss of society damages compensate for the loss of "a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection." Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) (footnote omitted). Thus, the failure to prove monetary loss does not preclude a plaintiff from receiving an award for loss of services. See Wartman v. Commodore Cruise Line, Ltd., No. 94 Civ. 4155, slip op. at 9-10 (S.D.N.Y. Aug. 3, 1995), aff'd mem., 100 F.3d 943 (2d Cir.1996); see also Mono v. Peter Pan Bus Lines, Inc., 13 F.Supp.2d 471, 480 (S.D.N.Y.1998) ("No court has held that recovery for lost services in a wrongful death action requires that the plaintiff actually hire someone to perform the decedent's services."). Here, there was ample evidence that because of his brain injury John Silivanch can no longer provide either the love and companionship or the physical assistance to his wife that he did before he contracted Legionnaires' Disease. (Tr. 2815-17, 2870-71, 2905-08, 3203-04). Thus, there is no basis for overturning the jury's award for loss of society. H. Compensatory Damages 1. Proximate Cause The Essef Defendants mount a series of attacks on the damage award to Mr. Silivanch, the first being that the plaintiffs failed to demonstrate a causal relationship between Legionnaires' Disease and his brain injury. There is substantial evidence that Mr. Silivanch exhibited neurological deficits after the cruise aboard the Horizon. His treating psychiatrist and a neuropsychologist, who both performed cognitive function tests on him, as well as his treating physician and a clinical social worker, all testified to the plaintiff's diminished mental capacity. (Tr. 2798-2801, 2825-28, 2997-3023, 3053-57, 3227-28, 3243-44). More important for present purposes, Dr. David J. Dickoff, a *264 clinical neurologist, testified about the relationship between Legionnaires' Disease and such symptoms. He stated that studies indicate that about one-third of the patients who survive Legionnaires' Disease suffer from acute or chronic encephalopathy, that is, disease of the brain. (Tr. 3384-86, 3402, 3404). Dr. Dickoff acknowledged that the etiology of this relationship is a matter of uncertainty. Some physicians believe that the injury is caused directly by toxins released by the Legionella bacteria, while others surmise that it results from an autoimmune reaction to these microorganisms. (Tr. 3391, 3401). In addition, a pneumonia like Legionnaires' Disease can cause hypoxia — reduced blood oxygen — and consequent brain damage, though hypoxia was not documented in Mr. Silivanch's case. (Tr. 3391-92). However, debate concerning the precise biological mechanism at play does not undercut the general agreement in the scientific community concerning the causal connection between Legionnaires' Disease and encephalopathy. And, based on his examination of Mr. Silivanch, his review of the plaintiff's medical records, and his familiarity with the scientific literature, Dr. Dickoff concluded that Mr. Silivanch's brain injury and cognitive deficits were caused by Legionnaires' Disease. (Tr. 3387-90). Nevertheless, the Essef Defendants argue that this evidence was insufficient to prove causation. First, they contend that the plaintiffs' experts were obligated to follow a protocol of differential diagnosis, that is, ruling out other possible causes of Mr. Silivanch's brain injury and ruling in Legionnaires' Disease. While a useful analytical tool, differential diagnosis is not a legal prerequisite for proving causation. In this case, there was nothing in Mr. Silivanch's medical history or records that suggested a potential alternative cause for his injury, nor have the defendants suggested such a factor. Next, the Essef Defendants contend that causation is not proven unless Mr. Silivanch can demonstrate that contracting Legionnaires' Disease doubled the likelihood that he would exhibit cognitive deficits. But the Second Circuit has specifically rejected such a mechanical approach to causation. See In re Joint Eastern & Southern District Asbestos Litigation, 52 F.3d 1124, 1128, 1134 (2d Cir.1995). The Essef Defendants also argue that the plaintiffs improperly relied on case reports to prove causation. But such data are plainly relevant to an expert's opinion as to whether a given risk factor is generally associated with an injury. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir.1998); Jennings v. Baxter Healthcare Corp., 331 Or. 285, 303-09, 14 P.3d 596, 606-09 (2000); State v. Smith, 262 N.J.Super. 487, 521, 621 A.2d 493, 511 (App.Div.1993). Finally, the Essef Defendants again complain that the plaintiffs rely on the false principle of post hoc, ergo propter hoc. Again, however, there was evidence of causation beyond merely a temporal proximity between Mr. Silivanch's contracting Legionnaire's Disease and his exhibiting symptoms of cognitive disfunction. 2. Medical Expenses The Essef Defendants challenge the awards of past and future medical expenses to Mr. Silivanch. As to past expenses, they argue that the plaintiffs failed to establish that the charges of the service providers were customary and reasonable and that the plaintiffs improperly relied on hearsay testimony. Neither argument is persuasive. Dr. Eric London, a psychiatrist, testified to the reasonableness of the medical expenses incurred by Mr. *265 Silivanch as a result of his brain injury.[10] (Tr. 3232-33). Although this evidence was limited, the defendants offered nothing to contradict it, and the jury was entitled to give it credence. Dr. London also testified to the charges imposed for services performed by others. (Tr. 3232-33). However, the Essef Defendants did not raise a hearsay objection at trial, nor did they dispute the accuracy of Dr. London's testimony. Accordingly, they have waived any objection to this evidence. The Essef Defendants further argue that there was no adequate evidentiary basis for the jury's award of future medical expenses. However, there was testimony regarding the psychiatric and rehabilitative services that Mr. Silivanch received up to the date of trial. There was also substantial evidence that he was unlikely to improve over time. (Tr. 3028, 3233). Nevertheless, the Essef Defendants argue that because this testimony came, at least in part, from Dr. Beth Caton, a neuropsychologist who did not treat the plaintiff, it is insufficient. However, there is no requirement that evidence supporting future medical expenses must come only from a treating physician. See Moulton v. Rival Co., 116 F.3d 22, 27 (1st Cir.1997) (jury entitled to credit testimony of rehabilitation expert regarding future expenses over that of treating physician). Accordingly, the jury's verdict was fully supported by the evidence. 3. Future Earnings Next, the Essef Defendants attack the jury's award for loss of future earnings. They argue that there was insufficient proof that Mr. Silivanch is unemployable, and they assert that the pension and social security payments that he will receive should be deducted from the award. There was ample evidence, however, of Mr. Silivanch's inability to work. Daniel Zietchick, a clinical social worker who treated the plaintiff, testified that not only was Mr. Silivanch terminated from his prior job, but, because of his loss of mental function, he was unable to pursue other work. (Tr. 2820-22). Similarly, Marie Barry, the plaintiff's rehabilitation counselor, testified that although the goal of the therapy she provided had initially been to prepare the plaintiff to return to work, she ultimately concluded that he could not maintain competitive employment and that his status in that respect was unlikely to improve. (Tr. 3087-90). Finally, Dr. Caton, the neuropsychologist, also testified that Mr. Silivanch was incapable of working. (Tr. 3024). The jury could fairly credit this evidence over that offered by the defendants. Whether the jury should have deducted pension and social security benefits turns on the collateral source rule. The collateral source doctrine generally precludes benefits received from third-parties from being considered in determining the amount of damages. See Turnbull v. USAir, Inc., 133 F.3d 184, 186 (2d Cir. 1998). It is fully applicable in admiralty cases such as this. See A/H Battery Associates v. Gulf Craft, Inc., No. 93 CIV 1915, 1998 WL 252105, at *1 (S.D.N.Y. May 18, 1998); Stanley v. Bertram-Trojan, Inc., 868 F.Supp. 541, 543 (S.D.N.Y.1994). Furthermore, both pension and social security benefits are considered collateral source payments. See Clausen v. Sea-3, Inc., 21 F.3d 1181, 1192-93 (1st Cir.1994) (disability benefits and social security); In re Adventure Bound Sports, Inc., 858 F.Supp. *266 1192, 1208-09 (S.D.Ga.1994) (social security); Olsen v. City of New York, No. 83 CIV. 0462, 1984 WL 1033, at *2 (S.D.N.Y. Oct. 18, 1984) (pension). Therefore, the jury in this case properly declined to deduct such payments from its award for the loss of future earnings. 4. Pain and Suffering Finally, the Essef Defendants argue that the jury's award of $900,000 to Mr. Silivanch for pain and suffering was excessive and merits an order of remittitur. A court can order remittitur requiring a plaintiff to choose between a reduced damage award and a new trial in two circumstances: (1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, ... and (2) more generally, where the award is "intrinsically excessive" in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error. Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.1984) (citations omitted). The Essef Defendants have not identified any specific quantifiable error in the jury's award of damages for pain and suffering, and I find none. Thus, the verdict can be set aside only if it is "so high as to shock the judicial conscience and constitute a denial of justice." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (citations and quotations omitted). In support of their claim of excessiveness, the Essef Defendants point to two segments of the plaintiff's testimony: where he stated that, for the most part, he had no memory of his hospitalization, and where, according to the defendants, he acknowledged finding pleasure in daily activities. This evidence, however, hardly minimizes Mr. Silivanch's suffering. First, he had no memory of pain or discomfort at the hospital precisely because his brain injury disrupted his mental processes. He does recall having vivid hallucinations while he was hospitalized, and in his state of delirium he pulled intravenous tubes from his arm and left the hospital against medical advice. (Tr. 3186-89). Even though a plaintiff does not have a specific memory of pain, he may be compensated for his suffering based on objective evidence. See Stratis v. Eastern Air Lines, Inc., 682 F.2d 406, 414-15 (2d Cir.1982). Moreover, "a more flexible definition of pain and suffering must be used" where a plaintiff has suffered brain damage. Hoskie v. United States, 666 F.2d 1353, 1358 (10th Cir.1981). "[T]he compensable pain and suffering from injuries to the brain extends far beyond that suffered at the time the initial injury occurs." Id. It includes the loss of capacity for mental development and the daily frustrations of loss of mental function. Id. Nevertheless, the Essef Defendants contend that the impact on Mr. Silivanch's life has been minimal as evinced by his statement that "I can sit and watch the grass grow and it wouldn't bother me." (Tr. 3190). However, the defendants have seriously mischaracterized the plaintiff's testimony by plucking a single sentence from his description of his current state of mind. When his attorney asked him if events are still confused in his mind as they were when he was in the hospital, Mr. Silivanch replied: Some of it, and some of it is not. It's just — it's that my time span is completely gone, time is gone. It's weird, the whole thing is weird. My time is — it's like — I can explain it, but I can't. Joyce *267 can't understand, she can't understand the time, and a minute to me is an — an hour is like a minute. I can sit and watch the grass grow and it wouldn't bother me. It wouldn't bother me at all. I say that, I don't even know where I'm going now. (Tr. 3189-90). As is clear from this passage, the plaintiff was struggling to describe his disorientation with respect to time, not stating that he enjoyed day-to-day activities. John Silivanch suffered brain damage that has rendered him unemployable, impairs his social relationships, disrupts his orientation as to time and place, and inhibits his ability to learn. His condition is permanent and is unlikely to improve. In light of this evidence, the jury's award was not excessive. I. Prejudgment Interest Next, the Essef Defendants and Celebrity challenge the Court's award of prejudgment interest. I previously rejected their arguments on this issue in my Memorandum and Order dated August 25, 2000, Silivanch v. Celebrity Cruises, Inc., No. 95 Civ. 0374, 2000 WL 1211578, at **1-3 (S.D.N.Y. Aug. 25, 2000), and there is no need to reiterate that reasoning here. J. Evidentiary and Procedural Issues 1. Expert Testimony The Essef Defendants raise a series of evidentiary and procedural claims that they contend should entitle them to a new trial. The first is that I should have precluded as unreliable the expert testimony of Steven Suchanek and Dr. Gregory Zachrich. The threshold question on this issue is whether the Essef Defendants have waived any objections to the admissibility of that testimony. Celebrity, relying on Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1286 (11th Cir.), cert. denied, 531 U.S. 813, 121 S.Ct. 46, 148 L.Ed.2d 16 (2000), Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir.1997), and Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980), argues that although the Essef Defendants presented their arguments in motions in limine, they forfeited their objections by failing to renew them at trial. It appears, however, that the Second Circuit takes a more lenient view of waiver. [A] motion in limine may preserve an objection when the issue (1) is fairly presented to the district court, (2) is the type of issue that can be finally decided in a pre-trial hearing, and (3) is ruled upon without equivocation by the trial judge. United States v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir.1995) (quoting United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir.1993)); see also United States v. McDermott, 245 F.3d 133, 140 n. 3 (2d Cir.2001). In this case, the Essef Defendants made pretrial motions to exclude the testimony of Mr. Suchanek and Dr. Zachrich on the ground that it was scientifically unsound; these motions were susceptible to a determination prior to trial since the experts had submitted reports and been deposed; and in fact I denied the motions on the record. (Tr. 652-53). Accordingly, the Essef Defendants did not need to raise these issues again at trial in order to preserve their objections. Turning to the merits, Rule 702 of the Federal Rules of Evidence provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may *268 testify thereto in the form of an opinion or otherwise. Fed.R.Evid. 702. Under this rule, "[t]horny problems of admissibility arise when an expert seeks to base his opinion on novel or unorthodox techniques that have yet to stand the tests of time to prove their validity." McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir.1995). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court reaffirmed the role of the trial courts in dealing with these problems, holding that the judge should make a "preliminary assessment of whether the reasoning or methodology underlying the [proffered expert] testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786. The Court went on to identify four factors relevant to this analysis: whether the expert's theory or technique has been tested, whether it has been subjected to peer review and publication, whether the potential rate of error is significant, and whether it has received general acceptance in the scientific community. Id. at 593-94. Subsequently, in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court confirmed that a trial judge should play this "gatekeeper" function not only with respect to scientific evidence, but with respect to the testimony of any expert, including those whose expertise derives from personal knowledge and experience. Id. at 149-50, 119 S.Ct. 1167. However, the Court also emphasized that the factors identified in Daubert were merely illustrative, and other considerations might be more pertinent in assessing the reliability of expert evidence in any particular case. Id. at 150-51, 119 S.Ct. 1167. In construing Daubert, the Second Circuit has emphasized the discretion of the trial court: First, ... Daubert reinforces the idea that there should be a presumption of admissibility of evidence. Second, it emphasizes the need for flexibility in assessing whether evidence is admissible. Rather than using rigid "safeguards" for determining whether testimony should be admitted, the Court's approach is to permit the trial judge to weigh the various considerations pertinent to the issue in question. Third, Daubert allows for the admissibility of scientific evidence, even if not generally accepted in the relevant scientific community, provided its reliability has independent support. Finally, the Court expressed its faith in the power of the adversary system to test "shaky but admissible" evidence, and advanced a bias in favor of admitting evidence short of that solidly and indisputably proven to be reliable. Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.1995) (citation omitted). In this case, both challenged witnesses survive the Daubert test. Mr. Suchanek received a Bachelor of Science degree in industrial technology from the University of Wisconsin. (Tr. 1337). As director of operations for Essef Corporation (then known as Structural Fibers, Inc.), he designed and tested hub and lateral systems for high-rate sand filters. (Tr. 1358-64). Thus, he had the training and experience to testify about filter design and performance generally. The Essef Defendants object to his testimony concerning a test he conducted on the TR-140 filter using diatomaceous earth ("DE"), a powdery substance. In preparing the filter for this test, he first removed all of the filter sand down to the gravel bed. He then installed three inches of sand, followed by a layer of DE threeeighths *269 of an inch thick. He repeated this process until he had a series of alternating layers of sand and DE. (Tr. 1395). Mr. Suchanek then filled the tank with water and ran the system in filtration mode for several hours to simulate normal use. (Tr. 1395-96). Thereafter, the test consisted of running a backwash cycle and observing the results. (Tr. 1396-97). After backwash, Mr. Suchanek saw through a window in the side of the tank that the layers of DE at the edge were undisturbed. (Tr. 1396). However, a layer of DE had now been deposited on top of the filter medium. (Tr. 1396). From this, Mr. Suchanek deduced that coring was occurring: during backwash, the water flow was being funneled through the center of the filter and was not washing the sand toward the outside of the tank. (Tr. 1397). He also took core samples to confirm his initial observations. (Tr. 1397-99). Mr. Suchanek then repeated the experiment, but instead of taking core samples, he physically removed each layer in sequence. (Tr. 1402). Again, he found coring. (Tr. 1402). The Essef Defendants object that this test is entirely novel and has never been validated. Certainly, there is no evidence that Mr. Suchanek's specific methodology has been tested, subjected to peer review, or widely accepted in the scientific community. But the critical question is whether it is sufficiently reliable to be admissible. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. In essence, Mr. Suchanek's protocol consisted primarily of observing the operation of the very device at issue. He introduced one additional element — the DE — so that the functioning of the filter could be visualized. The Essef Defendants have presented no evidence that this alteration in any way affects the normal operation of the filter or provides a misleading view of its performance. Daubert does not hold that every time an expert witness adopts some variation of a well-established method, his evidence will be excluded unless that variation itself has been scientifically validated. Indeed, with respect to one of the Daubert factors, the Supreme Court observed that "[s]ome propositions, moreover, are too particular, too new, or of too limited interest to be published." Daubert, 509 U.S. at 593, 113 S.Ct. 2786. That is the case here; the aspect of Mr. Suchanek's testing that is challenged by the Essef Defendants is too narrow for it to have been subjected to the scrutiny of the scientific community. Finally, even if Mr. Suchanek's tests were not adequately validated, their admission caused no substantial prejudice, since the results were consistent with other evidence that the TR-140 filter had a coring problem. For example, while Mr. Suchanek was employed by Essef Corporation, he performed dye tests that showed that the flow of water in the TR-140 during backwash was concentrated in the center of the tank. (Tr. 1361-62). He testified without contradiction that such dye tests are common in the industry. (Tr. 1362). The Essef Defendants also attack a computer model designed by Dr. Gregory Zachrich. According to Dr. Zachrich, his model showed that the flow of water in a TR-140 filter operating in back-wash mode was not uniform; rather, there was greater flow in the center core than at the periphery. (Tr. 1223-24). The Essef Defendants complain that this model incorporated inappropriate assumptions, the most significant being that the flow of water in the filter was laminar rather than turbulent. In other words, the model generated calculations based on the smooth flow of water, as if no sand or other filter medium were present. If this aspect of Dr. Zachrich's testimony had been intended to present a complete picture of the filter in actual operation, then the Essef Defendants' argument might have some *270 merit. However, counsel made it clear that his questioning dealt only with the general flow characteristics of water alone within the filter. (Tr. 1223). As such, the model was scientifically valid, even if the point that it was designed to illustrate was limited. Generally, arguments that the assumptions relied on by an expert are unfounded go to the weight rather than the admissibility of the evidence. See Boucher v. United States Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996). Here, it is telling that counsel for the Essef Defendants asked Dr. Zachrich only two questions about his computer model, neither of which related to the underlying assumptions. (Tr. 1258-59). In sum, the challenges raised by the Essef Defendants to the expert testimony are arguments that were or could have been developed on cross-examination and otherwise presented to the jury. They did not warrant exclusion of the evidence under Daubert and its progeny. 2. Destruction of Evidence The Essef Defendants next argue that they are entitled to a new trial because I denied their application for an instruction allowing the jury to draw an adverse inference against Celebrity based on its destruction of the TR-140 filters at issue. Celebrity was clearly under an obligation to preserve the filters, since it had constructive notice that litigation would likely be commenced concerning the outbreak of an illness that had been traced to them. See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998) (obligation to preserve arises "when a party should have known that the evidence may be relevant to future litigation"); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y.1991) (same). Whether its failure to do so warranted an adverse inference charge depends upon the severity of the wrongdoing and the prejudice to the adversary. See Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 107-08 (2d Cir.2001); Kronisch, 150 F.3d at 127-28; Shaffer v. RWP Group, Inc., 169 F.R.D. 19, 25-27 (E.D.N.Y.1996). In this case, Celebrity removed the filters from the machinery room where they were located on the Horizon after they had been identified as a source of Legionella bacteria and while the vessel was en route to a shipyard to undergo remedial sanitation procedures. To accomplish this, the ship's crew first removed the sand from the filters and stored it. (Deposition of Spiros Mendrinos dated March 6, 1997 ("Mendrinos Dep."), at 100-01, attached as Exh. D to Celebrity's Memorandum in Opposition to Essef's Motion In Limine Tailored to Celebrity's Alleged Spoliation of Evidence ("Celebrity Spoliation Memo")). They then removed the internal components and cut the filters into pieces to facilitate fitting them through the door of the machinery room. (Tr. 905-06, 1944-45, 2329-30). The sections of the filters, the components, and the sand were then made available for inspection and were photographed by the Essef Defendants in October 1996 in New York City. (Affidavit of John F. Keating dated April 26, 2000, ¶¶ 4, 5, attached as Exh. A to Celebrity Spoliation Memo.). Approximately two years later, Celebrity attempted to locate the filters and discovered that they had been lost, probably in the course of transferring them to a warehouse in Miami. (Celebrity Spoliation Memo. at 4). In light of these facts, an adverse inference charge would not have been appropriate. The loss of the evidence was not intentional: the initial cutting of the filters was done in the course of removing them from the ship and their subsequent disappearance was the result of what, at worst, *271 could be characterized as negligence. The Essef Defendants make much of the fact that the chief engineer ordered the crew to "destroy" the filters. (Tr. 904). But this officer, whose first language was apparently not English, clearly did not mean that the filters should be rendered unavailable since, in fact, they were preserved. Nor have the Essef Defendants demonstrated substantial prejudice. To be sure, their expert would like to have been able to manipulate the internal components of the filters. However, he was able to provide support for the Essef Defendants' theory based on his review of photographs of the filters and their parts. (Tr.2095-101). Moreover, nothing prevented the Essef Defendants from including an expert in their inspection team at the time that the filters were made available. The refusal to give an adverse inference charge is therefore no basis for a new trial in this case. 3. Order of Summation Finally, the Essef Defendants complain that during summations they were not provided an opportunity for rebuttal. The local civil rules of this court give discretion to the trial judge to determine the order of summation. Rule 39.2 of the Local Civil Rules for the Southern and Eastern Districts of New York. In practice, this most often means that the defendant goes first and the plaintiff, as the party with the burden of proof, goes last. That was the procedure followed here, with the Essef Defendants closing first, followed by Celebrity and then the plaintiffs. It is conceivable that a trial judge might commit an abuse of discretion by refusing to deviate from this pattern in a case where the party with the final word raises an argument that could not have been anticipated. But that was not the case here. At the close of the summations the Essef Defendants did not identify any novel legal argument or misstatement of the record that they should have been allowed to address. (Tr. 2473). Now, even with the benefit of having reviewed the written transcript, they have not articulated any prejudice. Accordingly, a new trial is not warranted. K. Celebrity's Claims The Essef Defendants raise two posttrial arguments unique to the claims asserted against them by Celebrity. First, they maintain that Celebrity's products liability claims are barred by the economic loss doctrine, and, second, they contend that they are entitled to judgment as a matter of law or a new trial on Celebrity's fraud claim. 1. Economic Loss Doctrine In East River Steamship, the Supreme Court incorporated the economic loss doctrine into admiralty law, holding that "a manufacturer in a commercial relationship has no duty under either a negligence or a strict products-liability theory to prevent a product from injuring itself." East River Steamship, 476 U.S. at 871, 106 S.Ct. 2295. In that case, the Court determined that a vessel owner could not assert tort claims against the manufacturer of turbines that malfunctioned after they had been installed in the plaintiff's ships. Here, the Essef Defendants claim that Celebrity is likewise precluded from asserting products liability claims against it in connection with the TR-140 filters. This argument must be rejected for two reasons. First, it has been waived. It was not raised prior to trial; it was not asserted at the close of Celebrity's case; and it was not advanced in the Essef Defendants' pre-verdict motion for judgment as a matter of law. *272 Second, it fails on the merits. The economic loss doctrine as articulated in East River Steamship only barred tort recovery for damage to the allegedly defective product itself. It does not preclude recovery in tort for damage caused by the defective product to "other property." Id. at 867, 106 S.Ct. 2295; see also Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 876-77, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997); Transco Syndicate # 1, Ltd. v. Bollinger Shipyards, Inc., 1 F.Supp.2d 608, 610-11 (E.D.La.1998). Nor does it prevent a tort action where the product itself causes or threatens harm to persons, even if the plaintiff is a purchaser of the product and not one of the injured individuals. See Tioga Public School District # 15 v. United States Gypsum Co., 984 F.2d 915, 918 (8th Cir.1993); City of Greenville v. W.R. Grace & Co., 827 F.2d 975, 977-78 (4th Cir.1987). Here, the TR-140 filters caused harm to "other property" in that they contaminated the water throughout the whirlpool spa system on the Horizon. See Tioga Public School District, 984 F.2d at 918 (injury caused by asbestos was contamination of building and health risk to building's occupants); City of Greenville, 827 F.2d at 977-78 (same). And, of course, they caused harm to the passengers who contracted Legionnaires' Disease. Thus, Celebrity's tort claims are not barred by the economic loss doctrine. 2. Fraud The Essef Defendants concede that they falsely represented that the TR-140 filter had been certified by the NSF. However, they argue that Celebrity's fraud claim fails for lack of proof with respect to three necessary elements: materiality, intent, and causation. The Essef Defendants contend that their claim of NSF certification was not material because no filter, including the TR-140, is intended to screen out pathogens such as Legionella bacteria. This argument confuses materiality with causation. "In general, a false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it is addressed." Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (citations, internal quotations, and alterations omitted); see also Moore v. PaineWebber, Inc., 189 F.3d 165, 170 (2d Cir.1999) ("A misrepresentation is material to a fraud claim only if it is the type of misrepresentation likely to be deemed significant to a reasonable person considering whether to enter into the transaction."). The question here is whether there is evidence that a vessel owner like Celebrity would be influenced in its choice of spa components by a representation that they are NSF certified. There is, indeed, such proof in the record. Celebrity's contract with Meyer Werft, the shipyard that built the Horizon, specifically required that the vessel comply with the regulations or recommendations of the United States Public Health Service ("the USPHS"). (Pl.Exh. 96). The USPHS, in turn, recommended that public spas be equipped with filters that met NSF standards. (Pl.Exh. 100). Moreover, the trial witness for Meyer Werft confirmed that his company utilized only NSF-approved components in order to comply with USPHS recommendations. (Tr. 668-69).[11] There was thus adequate evidence of materiality. *273 The Essef Defendants next argue that there was no proof of deceptive intent because they never communicated directly with Celebrity regarding certification of the filters. But, as discussed more fully in my Memorandum and Order dated June 24, 1999, which granted Celebrity's motion to assert fraud claims, where a defendant makes a false statement to a third party acting as a proxy for the plaintiff, the plaintiff may assert a fraud claim directly against that defendant. See Union Carbide Corp. v. Montell N.V., 9 F.Supp.2d 405, 412-13 (S.D.N.Y.1998). The element of fraudulent intent is satisfied if there is proof that the defendant intended or had reason to expect that the substance of the false statement would be communicated to the plaintiff. See Turtur v. Rothschild Registry International, Inc., 26 F.3d 304, 311 (2d Cir.1994). That was the case here. The Essef Defendants labeled the TR-140 filter as being NSF-approved precisely because of the marketing advantages such certification provides. (Tr. 685-88). And, of course, the party that would ultimately base a purchasing decision on NSF approval would be the vessel owner, Celebrity. Indeed, Celebrity's vice president of engineering testified that the shipyard selected components for the spa system and submitted its choices to Celebrity for approval. (Tr. 1434). It could therefore have been reasonably anticipated that representations made to Meyer Werft concerning the TR-140 filter would be conveyed to Celebrity. This nexus is sufficiently close for purposes of establishing intent to deceive. The Essef Defendants' causation argument also fails. They contend that there is neither proof that Celebrity would have rejected the TR-140 filter had it known it was not NSF-certified, nor evidence that Celebrity considered the filter relevant to preventing Legionnaires' Disease. The first point goes to transaction causation, the second to loss causation. There is ample proof of transaction causation. As noted above, Celebrity's contact with Meyer Werft required the use of USPHS-recommended (and, by implication, NSF-certified) components. There is also sufficient evidence of loss causation. Certainly it is necessary that there be a link between the nature of the misrepresentation and the injuries suffered. For example, if NSF certification had been denied only because the filter was prone to explode, then the false statement that it was NSF-approved would not be causally connected to damages flowing from the outbreak of disease. But here the failure of the TR-140 filter to meet NSF standards reflected in part its inability to clean the filter medium thoroughly during backwashing. (Tr. 1703-07). As discussed above, there was evidence that this deficiency allowed the proliferation of bacteria and ultimately the outbreak of Legionnaires' Disease. Conclusion For the reasons set forth above, the Essef Defendants' motion for judgment as a matter of law is granted to the extent that the Passenger Plaintiffs' claim for breach of express warranty is dismissed. In all other respects, the motions of the Essef Defendants and of Celebrity for judgment as a matter of law or for a new trial are denied. SO ORDERED. NOTES [1] Curiously, the Essef Defendants have also moved for judgment on the plaintiffs' failure to warn claim, and the plaintiffs have responded. However, the jury returned a verdict in favor of the Essef Defendants on this claim. [2] Notwithstanding the fact that the Essef Defendants filed seven separate motions, their arguments frequently overlap. Therefore, in discussing any single issue, I may be drawing on contentions contained in more than one Essef brief. [3] "Tr." refers to the trial transcript. [4] All referenced deposition testimony was presented to the jury by videotape. [5] Superchlorination is a "shock treatment" in which high doses of chlorine are temporarily introduced into the system to eradicate bacteria that may have survived routine disinfection. (Tr. 987-90). [6] The Essef Defendants' additional argument that the filters were substantially altered after sale has already been addressed above. [7] Pac-Fab and Structural Europe are subsidiaries of Essef Corporation. (Tr. 194-95). [8] The Essef Defendants rely on Ebker v. Tan Jay International, Ltd., 739 F.2d 812 (2d Cir. 1984), for the proposition that a court has substantial discretion to relieve a party of the consequences of its failure to raise a claim in its initial motion for judgment as a matter of law. (Essef Defendants' Reply Memorandum in Further Support of Their Post-Trial Motions at 5). That reliance is misplaced. Ebker dealt with the situation where a defendant moves for a directed verdict at the close of the plaintiff's case but fails to renew the motion at the close of all the evidence. Id. at 823. In the instant case, the Essef Defendants failed to include an argument regarding the separate liability of Essef Corporation and Pac-Fab in any pre-verdict motion. [9] The plaintiffs also argue that the Essef Defendants have waived a number of their other arguments by failing to raise them in their pre-verdict motion. In these other instances it is a closer question whether the pre-verdict motion fairly encompassed the arguments now raised, and I will therefore address them on the merits. [10] In an excess of modesty, Dr. London testified that he "hoped" his own fees were customary and reasonable. (Tr. 3233). It is clear in context that he was affirming the reasonableness of these charges. [11] The Essef Defendants presented proof that some other components of the spa system on the Horizon were not NSF certified. (Tr. 2083, 2093-94). It was for the jury to decide, however, whether that wholly undermined the evidence that NSF approval was material.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00199-CR Jody Lynn Dowler, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT NO. 9327, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING After his motion to suppress evidence was overruled, appellant Jody Lynn Dowler pleaded no contest to an indictment accusing him of felony driving while intoxicated (DWI). See Tex. Penal Code Ann. §§ 49.04(a), .09(b) (West Supp. 2001). In accord with a plea bargain agreement, the district court assessed punishment at imprisonment for six years and a $2500 fine, suspended imposition of sentence, and placed appellant on community supervision. Appellant brings forward three points of error complaining of the overruling of the suppression motion. We will overrule these points and affirm. At the suppression hearing, Smithville Police Officer Joe Meiron testified that on the afternoon of July 4, 1999, he and his partner received a dispatch regarding a possible DWI on Highway 71. The dispatch described the suspect vehicle as a black Ford pickup, Texas license number TK2500. The officers drove to the indicated location, found the pickup, and began to follow it. The truck was traveling 50 miles-per-hour in a 70 miles-per-hour zone. The officers saw the vehicle drift from side-to-side within its lane of traffic. On at least two occasions, the truck's outside wheels touched the solid white line defining the outer edge of the highway. The truck also crossed the broken line separating its lane from an onramp. The pickup did not respond when the officers turned on their patrol vehicle's emergency lights, stopping only after the officers used their siren. The pickup was driven by appellant. We need not detail Meiron's testimony regarding appellant's intoxication. Appellant contends the stop of his vehicle violated the constitutions and statutes of the United States and Texas. See U.S. Const. amends. IV, XIV; Tex. Const. art. I, §§ 9, 19; Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (West 1977 & Supp. 2001); Tex. Transp. Code Ann. §§ 542.301, 543.001 (West 1999). Because the district court's ruling does not turn on the credibility of a witness, we will review the order overruling the motion to suppress on a de novo basis. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellant argues at length that he did not commit any moving traffic violation in the officers' presence. The State concedes this. Thus, we confine ourselves to the question of whether appellant was lawfully detained to investigate the possibility that he was driving while intoxicated. In his second and third points of error, appellant asserts that the Texas constitutional and statutory provisions cited above prohibit a police officer from stopping an automobile without probable cause to believe a crime has been or is being committed. The cited statutes state the unarguable proposition that an officer must have probable cause to make an arrest. But a vehicle stop does not always constitute an arrest. Often, such a stop is merely a temporary investigative detention for which only reasonable suspicion is required. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Appellant cites no authority holding that the Texas Constitution does not permit an officer to stop a motor vehicle under circumstances giving him reasonable suspicion to believe that the driver is engaged in criminal activity. Points of error two and three are overruled. A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. A reasonable suspicion means more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. Id. In this case, the officers were dispatched to investigate a report of a possibly intoxicated driver. There is no further evidence regarding the nature of the report, and we will assume that it came from an anonymous source. While an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. Alabama v. White, 496 U.S. 325, 329 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex. App.-Austin 1999, pet. ref'd). Normally, a police officer must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified. Davis, 989 S.W.2d at 863. An officer's prior knowledge and experience, and his corroboration of the details of the tip, may be considered in giving the anonymous tip the weight it deserves. Id. at 864. The corroboration of details that are easily obtainable at the time the information is provided, and which do not indicate criminal activity, will not lend support to the tip. Id. An accurate description of a subject's readily observable location and appearance will help the police correctly identify the person whom the tipster means to accuse, but does not show that the tipster has knowledge of concealed criminal activity. Florida v. J. L., 529 U.S. 266, 272 (2000). In this case, the officers' discovery of the suspect pickup on Highway 71 did not give them any basis for crediting the tipster's suspicion that the driver of the pickup was intoxicated. Meiron testified to other observations, however, that did lend support to the tip. Meiron saw appellant weave or drift within his lane of traffic, touching the outside white line more than once and once crossing into an onramp. Meiron stated that appellant had no reason to enter the onramp, and that in his experience it is uncommon for sober drivers to drive in that fashion. Meiron also testified that appellant was driving twenty miles-per-hour below the posted limit, and that appellant failed to respond when the officer turned on the patrol car's emergency lights. While none of the observed conduct was criminal, even innocent acts can give rise to reasonable suspicion under the proper circumstances. Woods, 956 S.W.2d at 38. The opinions on which appellant relies are distinguishable. In State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.-San Antonio 1999, pet. ref'd), and State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.-Waco 1998, pet. ref'd), the drivers were stopped solely on the basis of observed drifting or weaving within a single lane of traffic, which the officers erroneously believed to be a moving violation. The officers did not testify that they suspected the drivers of being intoxicated, nor did they point to any other facts to justify the stops. In Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.-Austin 1998, pet. ref'd), this Court held that a vehicle crossing a lane marker a single time did not support a reasonable suspicion that the driver was intoxicated. We also noted that the officer did not claim to suspect the driver of intoxication. In Rheinlander v. State, 888 S.W.2d 917, 918 (Tex. App.-Austin 1994), pet. dism'd, 918 S.W.2d 527 (Tex. Crim. App. 1996), the issue presented was whether the defendant had been lawfully stopped pursuant to a "community caretaker" exception to the Fourth Amendment warrant requirement. It was not contended that the stop was based on reasonable suspicion of intoxication, and we expressed no opinion on that subject. In Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.-Austin 2000, pet. ref'd), an officer stopped a vehicle solely on the basis of an anonymous tip that the driver might be intoxicated. In Davis, 989 S.W.2d at 864-65, an officer stopped a vehicle solely on the basis of an anonymous tip that the driver might be smoking marihuana. In neither case was there any meaningful corroboration of the tip. Officer Meiron and his partner received a report of a possibly intoxicated driver. The officers did not stop appellant solely on the basis of that tip, but instead observed appellant's driving. While the officers did not see appellant commit a moving violation, appellant's conduct and the inferences an experienced officer could draw from that conduct gave the officers reason to credit the tip. While the question is a close one, the totality of the circumstances gave the officers a reasonable, articulable basis for suspecting that appellant was driving while intoxicated and for detaining appellant to investigate their suspicion. Point of error one is overruled. The judgment of conviction is affirmed. __________________________________________ Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Yeakel and Patterson Affirmed Filed: April 12, 2001 Publish us tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. Alabama v. White, 496 U.S. 325, 329 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex. App.-Austin 1999, pet. ref'd). Normally, a police officer must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified. Davis, 989 S.W.2d at 863. An officer's prior knowledge and experience, and his corroboration of the details of the tip, may be considered in giving the anonymous tip the weight it deserves. Id. at 864. The corroboration of details that are easily obtainable at the time the information is provided, and which do not indicate criminal activity, will not lend support to the tip. Id. An accurate description of a subject's readily observable location and appearance will help the police correctly identify the person whom the tipster means to accuse, but does not show that the tipster has knowledge of concealed criminal activity. Florida v. J. L., 529 U.S. 266, 272 (2000). In this case, the officers' discovery of the suspect pickup on Highway 71 did not give them any basis for crediting the tipster's suspicion that the driver of the pickup was intoxicated. Meiron testified to other observations, however, that did lend support to the tip. Meiron saw appellant weave or drift within his lane of traffic, touching the outside white line more than once and once crossing into an onramp. Meiron stated that appellant had no reason to enter the onramp, and that in his experience it is uncommon for sober drivers to drive in that fashion. Meiron also testified that appellant was driving twenty miles-per-hour below the posted limit, and that appellant failed to respond when the officer turned on the patrol car's emergency lights. While none of the observed conduct was criminal, even innocent acts can give rise to reasonable suspicion under the proper circumstances. Woods, 956 S.W.2d at 38. The opinions on which appellant relies are distinguishable. In State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.-San Antonio 1999, pet. ref'd), and State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.-Waco 1998, pet. ref'd), the drivers were stopped solely on the basis of observed drifting or weaving within a single lane of traffic, which the officers erroneously believed to be a moving violation. The officers did not testify that they suspected the drivers of being intoxicated, nor did they point to any other facts to justify the stops. In Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.-Austin 1998, pet. ref'd), this Court held that a vehicle crossing a lane marker a single time did not support a reasonable suspicion that the driver was intoxicated. We also noted that the officer did not claim to suspect the driver of intoxication. In Rheinlander v. State, 888 S.W.2d 917, 918 (Tex. App.-Austin 1994), pet. dism'd, 918 S.W.2d 527 (Tex. Crim. App. 1996), the issue presented was whether the defendant had been lawfully stopped pursuant to a "community caretaker" exception to the Fourth Amendment warrant requirement. It was not contended that the stop was based on reasonable suspicion of intoxication, and we expressed no opinion on that subject. In Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.-Austin 2000, pet. ref'd), an officer stopped a vehicle solely on the basis of an anonymous tip that the driver might be intoxicated. In Davis, 989 S.W.2d at 864-65, an officer stopped a vehicle solely on the basis of an anonymous tip that the driver might be smoking marihuana. In neither case was there any meaningful corroboration of the tip. Officer Meiron and his partner received a re

541 S.E.2d 468 (1999) 351 N.C. 119 STATE of North Carolina v. Jesse Lee THOMAS. No. 445P99. Supreme Court of North Carolina. November 4, 1999. Glenn A. Barfield, Goldsboro, for Jesse Lee Thomas. *469 John H. Maddrey, Assistant Attorney General, Howard S. Boney, Jr., District Attorney, for State of North Carolina. Prior report: 134 N.C.App. 560, 518 S.E.2d 222. ORDER Upon consideration of the petition filed by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 4th day of November 1999." Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the Attorney General, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is "Allowed by order of the Court in conference, this the 4th day of November 1999." Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the Attorney General, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is "Allowed by order of the Court in conference, this 4th day of November 1999."

916 S.W.2d 219 (1995) Lindell McCORMACK, Employee-Respondent, v. STEWART ENTERPRISES, INC., Employer-Appellant, and St. Paul Fire and Marine Insurance Company, Insurer. WD 50933. Missouri Court of Appeals, Western District. November 28, 1995. Motion for Rehearing and/or Transfer Denied January 30, 1996. Application to Transfer Denied March 26, 1996. *221 William F. Ringer, Kansas City, for appellant. William H. McDonald, William H. Mc-Donald & Associates, Raymond E. Whiteaker, John E. Price, Whiteaker & Wilson, P.C., Springfield, for respondent. Before BRECKENRIDGE, P.J., and ULRICH and LAURA DENVIR STITH, JJ. Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 1996. ULRICH, Judge. Stewart Enterprises, Inc. (Stewart Enterprises) and St. Paul Fire and Marine Insurance Company (St. Paul), collectively "employer," appeal the Missouri Labor and Industrial Relations Commissions' award in favor of Lindell G. McCormack. The Commission's final award allowed compensation and affirmed the award of the Administrative Law Judge. The Administrative Law Judge found Lindell McCormack permanently *222 totally disabled (section 287.200, RSMo 1986) and entitled to receive workers' compensation benefits as prescribed by the Worker's Compensation Act; found employer responsible and "liable for past and future medical bills, including nursing expenses," and ordered employer to reimburse Lindell McCormack medical expenses accrued as of the date of the hearing in the amount of $359,443.68; found employer liable for past temporary total disability benefits; found total disability at $102.56 per week from and including August 30, 1991; found employer is "entitled to subrogate $579,198.56, its share of the third-party recovery to its liability for future disability"; and found that employer "is not entitled to subrogate its liability for past or future medical expenses." Employer contests the Commission's findings that 1) Lindell McCormack's injury was sustained in an accident arising out of and in the course of employment, and 2) the employer was not entitled to a credit or a right of subrogation to a third party recovery under Section 287.150 RSMo. The Commission's award is affirmed in part and reversed in part. On August 29, 1991, Lindell McCormack, working with his father, Marion McCormack, a brother, and owner of Stewart Enterprises, Ray Stewart, began making asphalt repairs to Stewart Enterprises' premises. The day was hot and humid with temperatures in the 80's, and the humidity was 93%. The workmen began the day by preparing the parking lot for incoming asphalt. The 225 degree asphalt arrived by the truckload. Marion McCormack and Ray Stewart operated a compactor and backhoe while Lindell McCormack and his brother worked on the ground with hand tools. The backhoe made smaller piles of the asphalt dumped by the truckload, and Lindell and his brother then placed the hot asphalt from the piles into potholes with shovels and rakes. The compactor was driven over the filled in potholes to compress the asphalt. Ray Stewart left at noon, and the others stayed to complete the job. The work was fast paced, and Lindell McCormack did not take a lunch break. At approximately 2:00 p.m., Lindell stopped working on the ground and began to operate the compactor. After operating the compactor for less than an hour, Lindell fell from the moving compactor. Lindell testified that he was sitting on the seat of the compactor with one hand on the steering wheel while he turned to look over his shoulder to see if the area he had just compressed needed another pass with the compactor. He became dizzy or disoriented and turned to place both hands on the steering wheel. That was the last thing he remembered until he heard someone state, "here comes the ambulance." Marion McCormack and other people at the scene moved Lindell to a shaded area and used wet towels and ice in an attempt to cool him. He was transported by ambulance to Community Hospital in Fulton and was then transferred to UMC—Columbia Medical Center. Lindell McCormack had experienced a spinal cord injury rendering him a permanent quadriplegic. The parties stipulate that Lindell was working for Stewart Enterprises, the employer was operating under the provisions of the Missouri Workers' Compensation Law, and the employer was fully insured. A hearing was conducted before an Administrative Law Judge (ALJ) on July 7, 1994. The Labor and Industrial Relations Commission affirmed and adopted the award on March 9, 1995. The award found that the injury arose from an accident occurring in the course of employment; the employer was responsible and liable for past and future medical bills, past temporary total disability benefits, nursing care, both past and future; and that the employer is entitled to subrogate $579,198.56, its share of the third party recovery to its liability, for future disability payments but not for past and future medical expenses. I. INJURY AROSE OUT OF THE COURSE AND SCOPE OF EMPLOYMENT Employer's first point on appeal claims error in the administrative law judge's finding, adopted by the Commission, that the injury incurred by Lindell arose out of and in *223 the course of his employment with Stewart Enterprises. The Commission's decision will be upheld unless it is unsupported by competent and substantial evidence on the record as a whole or erroneously applies the law. Sommer v. Sommer & Hartstein, 888 S.W.2d 398, 399 (Mo.App.1994). In reviewing the record, the evidence is considered in the light most favorable to the Commission's award. Pullum v. Hudson Foods, Inc., 871 S.W.2d 94, 96 (Mo.App.1994). This court will not substitute its judgment for the Commission's simply because this court would have made a different initial conclusion. Hunsperger v. Poole Truck Lines, Inc., 886 S.W.2d 656, 658 (Mo.App.1994). The focus of appellant's argument is that Lindell McCormack suffered an idiopathic seizure that resulted in his injury and that heat related trauma did not precipitate his injury. Evidence was presented by the employer in the form of Dr. Daniel Phillips and Dr. Patrick Hogan's depositions. The physicians opined that Lindell McCormack experienced an idiopathic seizure resulting in unconsciousness and his fall. Their testimony, thus, refutes the theory that Lindell experienced a heat related disorder that rendered him unconscious. However, evidence also indicated that Lindell's unconsciousness was a result of heat distress. Dr. Colapinto, Lindell's treating physician, testified that his patient's injuries were precipitated by heat exhaustion causing him to fall and sustain injury. The commission's responsibilities include determining the credibility of witnesses, and it may disbelieve testimony of a witness even if uncontradicted. Pullum, 871 S.W.2d at 96. Thus, when conflicting medical theories are presented by competent evidence to the Commission, its determination that one theory is correct is binding on this court. Sommer, 888 S.W.2d at 399. The cause of Lindell McCormack's unconsciousness is not critical to determining whether the incident that caused his injuries arose out of and in the course of his employment. The findings of the Commission, although determining that Lindell fainted due to the existing heat conditions while employed, more importantly concluded that the injury he sustained was due to his falling from the compactor. For the employer to be liable, injuries must occur by an accident arising out of and in the course of employment. § 287.120.1, RSMo (1993). An accident arises out of the course of employment when there is a causal connection between the condition under which the work is performed and the resulting injury.[1]Cherry v. Powdered Coatings, Insurance Co. of North America, 897 S.W.2d 664 (Mo.App.1995). The proper test of causal connection is whether the conditions of employment caused or contributed to cause the accident. Clancy v. Armor Elevator Company, 899 S.W.2d 123 (Mo.App.1995); Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 528 (Mo. banc 1993). The court in Alexander held that a causal connection was established if the conditions of the work place contributed to the accident even if the precipitating cause was idiopathic. Id. In Alexander, an employee fell from a platform approximately 4½ feet high after becoming dizzy. Although the dizzy spell was idiopathic the subsequent fall arose out of the employment and was compensable since the condition of employment, being on the platform, contributed to the injuries. Id. Similarly in Clancy, the employee was repairing an elevator when he experienced pain. He began to descend a flight of metal stairs when he slipped and injured his hip and leg. The injury was compensable because the use of the stairs was due to a condition of employment of the elevator repairman. Clancy, 899 S.W.2d 123. A situation similar to Alexander and Clancy exists in this case. Both Alexander and Clancy are instructive. The precipitating cause of Lindell McCormack's fall, whether an idiopathic seizure or heat exhaustion, is not determinative of the legal issue. The significance of Lindell's unconsciousness is that it caused him to fall from the compactor. *224 Evidence was admitted by employer's two expert witnesses that the main factor resulting in employee's injury was his failure to employ protective mechanisms to avoid serious injury because he was unconscious. The evidence showed that the compactor roller was at least 4 feet from the ground. The injuries sustained by Lindell McCormack resulted from his fall from the compactor. Mr. McCormack was on the compactor as part of his employment. What precipitated his fall is immaterial. The fall from the compactor contributed to his spinal injury. Therefore, the accident arose out of the course of McCormack's employment and is compensable. Point I is denied. II. SUBROGATION CLAIM Employer claims as its second point on appeal that the Commission erred in finding the employer was not entitled to receive a credit under its right of subrogation pursuant to section 287.150, RSMo.1990, for sums paid or payable under the Worker's Compensation Act against the net third party recovery effected by employee.[2] The point is resolved by interpretation of section 287.150 of the Worker's Compensation Act. The relevant portion of Section 287.150 that existed when the accident occurred is as follows: 1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation. * * * * * * 3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered, or the balance of the recovery may be divided between the employer and the employee or his dependents as they may agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation. The purpose of this section is to protect and benefit the employer liable for compensation, and it is designed to afford indemnity for compensation payable by it. Daniels v. Kroeger, 294 S.W.2d 562, 566 (Mo. App.1956). The statute insures that there is not a double recovery by the employee, which has been called an "evil to be avoided". Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 919 (banc 1950). The employee or employer who recovers the funds holds so much of the recovery that belongs to the other in trust. Id. Employer argues that this section allows it full credit toward past compensation payments owed but unpaid. The Supreme Court in Ruediger v. Kallmeyer Brothers Service, 501 S.W.2d 56 (Mo. banc 1973), provided the method by which section 287.150.3 is to be applied. Ruediger provided the following method of calculation: "(1) the expenses of the third party litigation should be deducted from the third party *225 recovery; (2) the balance should be apportioned in the same ratio that the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party; (3) the amount due each should be paid forthwith; (4) the amount paid the employee should be treated as an advance payment on account of any future installments of compensation; and (5) ... the employee should be entitled to future compensation benefits in the event the amount paid him as an advance is exhausted under the provisions of the statute." (emphasis added) Payment of compensation due an employee is not a condition precedent to the employer's exercise of its subrogation rights. State ex rel. Missouri P.R. Co. v. Haid, 332 Mo. 616, 59 S.W.2d 690, 692 (banc 1933). However, when no payments have been made at the time of the third party recovery, the manner in which the subrogation right is exercised is affected. The court in determining whether the employer could bring action against the third party prior to paying benefits to the employee held that the employer may recover any amount the employee would be able to recover and the excess above the compensation paid by the employer shall be delivered to the employee and treated as an advance payment on future installments of compensation. Id. Ruediger provides that the employer is allowed a recovery in accordance with the amount paid to the employee. The language chosen is "amount paid," not "payable." In the present situation the employer/insurer has made no payments to Lindell McCormack to date. Therefore, since no payments have been paid by the employer to employee, the sums received by the employee are considered an advance on future compensation payments. This application of the Ruediger formula is consistent with the holding in Haid. This application does not deny the employer its right of subrogation but defines which payments are allowed to be credited. Employer argues that several cases hold this application of the Ruediger formula is contrary to Missouri case law. Employer cites the case of Eagle v. City of St. James, 669 S.W.2d 36 (Mo.App.1984), as support for its position. Eagle, like the other cases cited by employer, is distinguishable from the present situation. In Eagle, the court deducted the third party recovery from the total compensation liability the employer owed, including past installments not yet paid. The critical difference in Eagle is that the total amount of liability was known. The two other cases relied on by employer, Everard v. Woman's Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51 (1938) and Zasslow v. Service Blue Print Co., 288 S.W.2d 377 (Mo.App.1956), also involved compensation amounts that were fixed. Lindell McCormack is totally and permanently disabled. He will receive payments indefinitely. A net amount due from the employer cannot be calculated. Ruediger briefly referred to this distinction when clarifying the method in which the statute was to be applied. Ruediger, 501 S.W.2d at 59. Prior to the Ruediger formula, many cases had used the amount of the award, not the amount actually paid, in determining how distribution of the recovery was to be achieved. Id. at 58. That approach did not provide a way to treat an employee who had been totally and permanently disabled and for whom the amount of compensation was not a sum certain. Id. at 59. In cases involving total and permanent disability, the proper treatment is to allow recovery for the amounts already paid by the employer under the Ruediger formula and then to treat the remaining amount paid to the employee as an advance of future compensation benefits. When the advance is exhausted, the employer must once again begin paying compensation benefits. The provisions of a legislative act are construed together and read in harmony whenever reasonably possible. Blaine v. J.E. Jones Const. Co., 841 S.W.2d 703, 711 (Mo.App.1992). Thus, a section of an act should not be considered in isolation but as part of the entire act. The primary rule of statutory construction is to ascertain the intent of the General Assembly. Sheldon v. Board of Trustees of the Police Retirement System, 779 S.W.2d 553, 554 (Mo. banc. 1989). The primary purpose behind the Worker's Compensation Act was to mitigate *226 losses sustained from accidental injuries received in the workplace. State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503, 505 (Mo.App. 1994). The system was enacted to provide quick recovery to those who were injured without their incurring the cost and delay associated with litigation. The act served to place upon industry losses experienced by employees arising out of injuries sustained in the course of employment. Rooks v. Trans World Airlines, 887 S.W.2d 671, 673 (Mo. App.1994); McFarland v. Bollinger, 792 S.W.2d 903, 907 (Mo.App.1990). Exercising the employers' subrogation rights as employer proposes would allow employers to withhold payment until the employee makes a third party recovery, leaving the incapacitated employee without means of support while causing the employee to bear the burden of pursuing redress. This result is contrary to the goals of the Worker's Compensation Act of providing employees quick compensation for injuries arising out of and in the course of employment. This conclusion is also consistent with employer's characterization of its right as being one of indemnity and not true subrogation. A cause of action accrues when the indemnitee sustains actual loss. Burns & McDonnell Engineering v. Torson Construction Co., 834 S.W.2d 755, 758 (Mo.App.1992). This contemplates actual payment by the indemnitee for the obligation. Id. Although, employer should not be allowed the benefit of a credit for payments not yet made, the Commission erred in excluding medical expenses from being treated as part of the advance of future compensation payments under the employer's right of subrogation. Lindell McCormack focuses on the term "installment" within section 287.150.3 as support for the Commission's finding that employer was not entitled to subrogate its liability for future medical expenses. The relevant phrase of the statute is "advance payment by the employer on account of any future installments of compensation." (emphasis added) The dispute arises because medical expenses are not payable in installments. Yardley v. Montgomery, 580 S.W.2d 263, 270 (Mo. banc 1979). An employer's furnishing medical treatment to an injured employee constitutes a payment on account of injury. Bryant v. Montgomery Ward & Co., 416 S.W.2d 195, 197 (Mo.App.1967). The right to such medical treatment is a part of the employee's compensation awarded under the language of section 287.140, "in addition to all other compensation." Id. at 199. Since the compensation act requires an employer and its insurer to furnish medical aid, the expenditures relating thereto constitute payments of compensation. Sommers v. Hartford Accident & Indemnity Co., 277 S.W.2d 645, 649 (Mo.App. 1955). When calculating the amount of recovery under section 287.150.3, medical expenses are included. In Sommers the court held that appellant was entitled to be repaid out of the money recovered to the extent of the compensation payments, including medical, made by it to plaintiff. Sommers, 277 S.W.2d at 650. Construction of a statute that avoids an unreasonable result is favored. Sheldon v. Board of Trustees of the Police Retirement System, 779 S.W.2d 553, 554 (Mo. banc 1989). Since medical expenses are subject to the subrogation right if paid prior to a third party recovery, to deny the same right for future payments would be an unreasonable construction of the statute. An unreasonable construction will not be created by disregarding prior interpretation and the intent of the statute to emphasize the term "installment" within section 287.150.3 as Lindell McCormack proposes. Therefore, medical expenses are included as future payments of compensation, and employer is allowed subrogation against such payments. The Commission's finding that Lindell McCormack's injuries arose out of and in the course of his employment by Stewart Enterprises, Inc., is specifically affirmed. The portion of the Commission's award finding that employer was not entitled to receive credit under its right of subrogation pursuant to section 287.150, RSMo 1990 against the net third party recovery effected by employee for advance compensation payments, including future medical expenses, is reversed, and the Commission's award is remanded for modification consistent with this *227 opinion. The Commission's award is affirmed in all other respects. All concur. NOTES [1] An injury occurs "in the course of employment" when the employee is at a place where the person may reasonably be, while the person is fulfilling the duties of employment or engaged in something incidental thereto. Pullum, 871 S.W.2d at 97. This is not an issue here. [2] The actual conclusions of the Administrative Law Judge, adopted by the Commission, found that the employer was entitled to subrogate the third party recovery for future disability payments but not for past liability payments due or for past and future medical expenses.

331 So.2d 606 (1976) William David SMITH v. LOUISIANA WELDING SUPPLY CO., INC., et al. No. 10658. Court of Appeal of Louisiana, First Circuit. April 12, 1976. Rehearing Denied May 24, 1976. Writ Refused September 8, 1976. Robert L. Raborn, Zachary, for appellant. William C. Kaufman, III, Baton Rouge, for appellees. Before LANDRY, SARTAIN and EDWARDS, JJ. EDWARDS, Judge. The plaintiff Smith sues for workmen's compensation benefits for total and permanent disability and for penalties and attorney's fees. He appeals from judgment dismissing his suit against his employer and its insurer. The trial court in written reasons held that Smith had failed to prove the occurrence of an accident in the course of his employment. This is the principal issue on appeal. Plaintiff had injured his shoulder previously in an automobile accident on September 13, 1972. Because of continuing problems with his shoulder following the accident, plaintiff underwent surgery, performed by Dr. Alvin Stander in September, 1973. Dr. Stander left, as intended, certain non-absorbable sutures in plaintiff's shoulder tissues. Following the operation, plaintiff worked at various jobs, but quit at least one of these because of yet persisting difficulties with his shoulder. Dr. Stander, whom plaintiff continued to see, testified that his records showed visits *607 by the plaintiff on May 7, 1974 and again on August 14, 1974. On September 9, 1974 plaintiff started working for Louisiana Welding Supply Company, Inc. He alleges that, on that day, he twice strained his shoulder while unloading gas cylinders. Plaintiff was working alone at these times; there were no other witnesses to the alleged accidents. Plaintiff continued working that day at various jobs around the warehouse, making no mention to anyone of the accidents. Dennis Sanders, a co-employee, testified that he and plaintiff worked together late that afternoon moving some welding rods, without complaint from plaintiff. Plaintiff's brother, also employed by Louisiana Welding, took him home from work that evening. He testified that the plaintiff told him then that he had hurt his shoulder lifting cylinders that day. Plaintiff's other witnesses—his girlfriend, his roommate, his roommate's girlfriend, and his mother—all testified that plaintiff complained to them at home that evening of having hurt his arm at work. Because of the pain in his arm, plaintiff testified that he did not return to work the next day. He stated that he notified his uncle, who had helped him secure the job, but did not otherwise report the accident. Plaintiff did not thereafter return to work, although he did return to pick up his paycheck a few days later. He was paid by Gene Hansen, a supervisor at Louisiana Welding. Hansen testified that he asked the plaintiff why he quit and that plaintiff had told him that he was unable to do the work because of a previous injury to his shoulder, but did not mention having been hurt on the job. On September 18, nine days after the alleged accident, plaintiff went to see Dr. Stander. (Plaintiff maintained the visit took place some three days after the accident, but the doctor's records indicate otherwise.) Plaintiff was hospitalized, treated, and discharged on September 30. He was readmitted on October 20, at which time Dr. Stander performed a second operation on his shoulder. Both Dr. Stander and Dr. Bolton, who reviewed Dr. Stander's treatment, agreed that the plaintiff's problems with his shoulder were caused by a "host" reaction to the silk sutures employed in the first operation of September, 1973. While a trauma, such as a blow or strain, could have caused an aggravation of a preexisting condition, both doctors stated that it was just as likely the reaction could have occurred spontaneously. In short, the doctors' opinions were inconclusive as to the probable cause of plaintiff's present condition. Dr. Stander did testify that plaintiff told him on October 24, 1974 that he had strained his shoulder while working at Louisiana Welding. However, Dr. Stander found no objective evidence of the occurrence of a strain either in his earlier examination of September 18 or when he performed the operation a month later. The applicable rule of law is well established that the testimony of a plaintiff alone, in a workmen's compensation case, is sufficient to establish the occurrence of an accident, if there is nothing to discredit his account thereof and where his statements are supported by the surrounding circumstances. Dolhonde v. Gullett Gin Co., 25 So.2d 104 (La.App. 1st Cir. 1946); Cavender v. Flenniken Construction Co., Inc., 247 So.2d 652 (La.App. 2nd Cir. 1971). Nevertheless, as in all civil cases, the employee must establish an accident by a preponderance of the evidence; that is, by evidence which as a whole shows it to be more probable than not that an accident occurred. Landry v. Employers' Liability Assurance Corporation, Ltd., 233 So.2d 624 (La.App. 3rd Cir. 1970). The surrounding circumstances tend to negate, rather than support, plaintiff's allegation that an accident occurred on the day in question. They include: (1) *608 plaintiff's past history of persistent shoulder problems, (2) plaintiff's most recent visit therefor prior to employment with Louisiana Welding coming less than a month before the alleged accident, (3) the lack of objective manifestation of injury on examination by Dr. Stander, (4) the delay in reporting the accident, (5) the failure to mention the accident on plaintiff's first visit to Dr. Stander nine days after the alleged accident, (6) the lack of any corroboration by Dennis Sanders who worked with plaintiff after the alleged accidents, (7) the testimony of Gene Hansen that plaintiff said he had quit because of an injury prior to his employment. Considering the above apparent inconsistencies, we cannot say that the trial court committed manifest error in rejecting plaintiff's and his friends' testimony, especially in view of the great weight afforded the trial court's evaluation of the credibility of witnesses. We therefore affirm the ruling of the trial court dismissing plaintiff's suit. Costs of the appeal are to be paid by the plaintiff-appellant. AFFIRMED.

595 F.2d 1176 UNITED STATES of America, Appellee,v.Sandra Elaine SMITH, Appellant. No. 78-2623. United States Court of Appeals,Ninth Circuit. May 1, 1979. 1 Alan R. Freedman, Asst. U. S. Atty., Las Vegas, Nev., for appellee. 2 Robert Archie, Las Vegas, Nev., for appellant. 3 Appeal from the United States District Court for the District of Nevada. 4 Before TRASK and ANDERSON, Circuit Judges, and WYATT,* District judge. WYATT, District Judge: 5 Sandra Smith appeals from a judgment of conviction for possession of a controlled substance (heroin) with intent to distribute (21 U.S.C. § 841(a) (1)). The judgment was entered on a jury verdict in the United States District Court for the District of Nevada. The sentence was a fine of $10,000; imposition of sentence as to imprisonment only was suspended and appellant was placed on probation for three years. We affirm the judgment of conviction. 1. 6 Acting on a tip from a confidential informer that appellant was in possession of heroin, Las Vegas police, at about three o'clock in the morning of March 17, 1977, at D and Harrison Streets in Las Vegas, stopped and searched without a warrant an automobile. The automobile was being driven by Lawrence Booker. Appellant Smith was in the front passenger seat. 7 The officers first stopped the car and took the two occupants to its rear. They then began a search. On the front seat they found a loaded pistol. Under the passenger side of the front seat they found tissue paper packets which contained what appeared to be narcotic drugs. They then told the two occupants that they were under arrest. The search was continued and after opening the glove compartment (which had been locked) they found hidden near the top of the compartment a brown paper sack with more small tissue packets. It was later ascertained that the several found packages contained, among other things, 363 grams of heroin. It was also later determined that the pistol was registered to appellant Smith; the automobile had been rented for Smith a few weeks earlier by her ex-husband. 2. 8 In the latter part of March, 1977, Smith and Booker were indicted by a grand jury of the State of Nevada for drug and gun offenses. There was a pre-trial motion by one or both defendants in the state court to suppress as evidence the gun and the drugs. The State attempted to show probable cause for the search solely by the testimony before the Nevada grand jury, specifically that of the officer who ordered the car stopped. Naturally, in this testimony before the grand jury, the officer had not addressed a search and seizure problem but had concerned himself solely with whether an offense had been committed. The state court judge, by order filed August 11, 1977, granted the motion to suppress. 9 Thereafter, the prosecution of the state court indictment was dropped, apparently by an oral motion by the prosecution at a calendar call to dismiss the state court indictment (Record ("R"), vol. VI, p. 284). We are told in appellant's brief (p. 3) that this was on August 19, 1977. 3. 10 On October 27, 1977, an indictment against Smith (but not Booker) was returned and filed by a federal grand jury in the District of Nevada. There were two counts, but one of these counts was later dismissed at trial on motion of the government (R VI, p. 206) and for present purposes may be disregarded. 11 The count on which the present judgment of conviction was entered charged possession of heroin and cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). All reference to cocaine was later deleted from the indictment on motion of the government (R VI, p. 206) and may be disregarded here. (The government gave as its reason that the amount of cocaine was too small to permit an inference of an intent to distribute (R VI, p. 216)). 12 Appellant moved to suppress as evidence the drugs and the statements made by her when arrested. It was claimed that the arrest was unlawful and also the search, the statements being thereby made inadmissible. The District Court had a hearing. The government called the officer who ordered the car stopped. His testimony at the hearing was much more detailed in the area of probable cause than his testimony before the Nevada grand jury. Appellant offered no evidence at the hearing. The District Judge denied the motion (R V, pp. 41-43), without prejudice to its renewal at trial. 13 The trial commenced on June 29, 1978, and continued for three and a half days. Booker testified for the government that he had met appellant early on March 17 and got from her the keys of the car he was driving when they were stopped. Appellant offered no evidence at trial. The jury returned a guilty verdict, sentence was imposed, and this appeal followed. 4. 14 Appellant contends that search of the car without a warrant was a violation of the Fourth Amendment prohibition against "unreasonable searches and seizures." Admission of the seized drugs in evidence is therefore claimed to be reversible error. 15 Wisely, there is no claim for appellant that the state court ruling that the evidence be suppressed has significance for the case at bar. The District Judge "was correct in making an independent inquiry on the constitutional validity of the state search, irrespective of whether there had been such an inquiry by the state court, or how such an inquiry had turned out." United States v. Garrett, 565 F.2d 1065, 1068 (9th Cir. 1977), Cert. denied, Morgan v. U. S., 435 U.S. 974, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). It may be noted that the evidence in the state court was scanty whereas in the federal court it was overwhelming. 16 The rule is that "all that is required to stop and search an automobile on the highway is probable cause to believe that it contains any type of contraband." United States v. Abascal, 564 F.2d 821, 828 (9th Cir. 1977), Cert. denied, Frakes v. U. S., 435 U.S. 953, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978). 17 The issue here, then, is whether there was probable cause to believe that drugs were in the automobile. The showing for the government was so strong as to make the argument for appellant almost, if not entirely, frivolous. 18 The Las Vegas officers were relying on an informer with whom the Sergeant had dealt in the past on three occasions; each time his information was true, each time heroin had been seized, and on one occasion a homicide had been revealed. 19 This informer, on March 13, 1977, advised the Sergeant that appellant would be returning in a few days from Los Angeles to a hotel in Las Vegas and bringing with her some twenty-five to thirty thousand dollars worth of heroin, and that she was bringing it in her 1977 rose-colored Lincoln Continental. The Sergeant secured a search warrant for the Lincoln. 20 The informer advised the Sergeant at about 10 o'clock in the evening of March 16 that Smith was back in Las Vegas but had changed cars and was now driving a blue Ford. Thereafter, the informer telephoned several times, advising the Sergeant that Smith had heroin at several locations, that she was going to pick him (the informer) up, and that they were going to one of the locations and would cut the heroin there. Finally, at about 2:45 a.m. on March 17, the informer said that Smith was leaving her residence in the blue Ford and that she had heroin with her in the car. 21 Meanwhile, since 10 o'clock in the evening of March 16, several Las Vegas police officers had kept the blue Ford under observation. When the 2:45 a.m. message was received from the informer, the Sergeant told the officers on surveillance to stop the blue Ford and to do whatever was necessary. The stopping, search, and arrest followed. 22 There was abundant probable cause and a search warrant had already been secured for the Lincoln; the switch to the blue Ford made this warrant useless, and there was no time to secure a warrant for the blue Ford.5. 23 Counsel for appellant assigns as error that the trial court did not require the government to supply the name of the informer. 24 It appears that during the suppression hearing (R V) in the court below, there was reference to a motion for Smith (made as part of an omnibus motion) to require the government to disclose the name of any informer on whom the government relied. During this discussion the government stated (R V, p. 12) that it intended to call the informer as a witness but was having trouble in finding "him". The government agreed that if it located the informer, his identity would be revealed to defense counsel. The government did not locate him, his identity was not revealed, and he did not testify. 25 Counsel for Smith asserts in his Brief (p. 22) that he relied on a statement by the government that the informer would be identified ten days before trial. This assertion is somewhat disingenuous and cannot be accepted. The transcript containing the government's statement (R V, pp. 11, 12), fairly read, is clear that the government undertook to identify the informer only if the government could locate him so that he could testify. 26 The record shows, moreover, that from the trial testimony of Booker taken with that of Sergeant Park at the earlier suppression hearing as well as at trial, the informer had to be Rocky West who was with Booker and appellant Smith just before they drove off in the blue Ford and were stopped and arrested. Defense counsel thus knew at trial the identity of the informer, as seems to be conceded (Brief, p. 23). 27 It is settled law in this Circuit that the burden of proof is on the defendant to show a need for disclosure of an informer's identity. United States v. Marshall, 526 F.2d 1349, 1359 (9th Cir. 1975) Cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976). It is not seriously claimed here that the defendant met this burden; instead, the argument is entirely speculative. It is said (Brief, p. 22) to have been "very possible", had his identity been revealed, that the defense could have found the informer and "had the possibility" of securing his testimony for the defense. But the defense knew that Smith and Booker had been at the Moulin Rouge Hotel with Rocky West and had left Rocky for the drive during which they were stopped and arrested. Nothing prevented the defense from calling Rocky as a witness, if he were found, and this seems to be conceded (Brief, p. 23). The argument (Brief, p. 23) is that "possibly some other informant may have been involved . . .". This argument is without merit. "Mere speculation that the informer might possibly be of some assistance is not sufficient to overcome the public interest in the protection of the informer." Lannom v. United States, 381 F.2d 858, 861 (9th Cir. 1967), Cert. denied, 389 U.S. 1041, 88 S.Ct. 784, 19 L.Ed.2d 833 (1968). 6. 28 It is argued for appellant (Brief, pp. 20-22) that there was not sufficient evidence to show that she possessed the heroin or that she intended to distribute it. 29 As to her possession, the evidence was that the heroin was found in a car which had been rented for her and which she had been using; that the heroin was hidden under the seat where she had been riding and in the locked glove compartment of the car in front of that seat; that Booker, although he was driving the car at the time of the arrest, testified to securing the keys from Smith and knew nothing about the heroin; and that after her arrest, Smith made a statement to Officer Park which showed an awareness on her part that the heroin was in the car. From this evidence, the jury was entitled to conclude that Smith was in control of the car and in at least constructive possession of the heroin. 30 As to an intent to distribute, this can be inferred from the quantity of drugs involved. In United States v. Ramirez-Rodriquez, 552 F.2d 883, 884-885 (9th Cir. 1977), there were 13.74 grams of a mixture containing 30% Pure cocaine. This Court approved the principle that intent to distribute could be inferred from the quantity involved. In that case, however, because the quantity involved was not large, the Court relied, in affirming a conviction, on the presence of other circumstances. 31 In the case at bar, there were at least seven separate packets of mixtures containing various percentages of pure heroin, from unknown to 1.5% To 3.5% To 12%. The total weight of the mixtures was slightly over 360 grams (R VI, pp. 60-70). This certainly justifies an inference that the packets of heroin were not simply for the personal use of appellant. Moreover, there were other circumstances, including the carrying by appellant of a loaded pistol and her possession in her purse when arrested of $3,200 in currency. 32 We have no difficulty in finding the evidence sufficient to support the conviction. 7. 33 Appellant makes several arguments related in one way or another to the prior proceedings in the courts of Nevada. They are each so lacking in merit as to deserve no more than brief discussion. 34 a. 35 It is argued (Brief, pp. 23-25) that the indictment in the case at bar should have been dismissed as in violation of the "Petite policy". The reference is to Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), where there were two separate convictions in different federal district courts for separate offenses arising out of the same transaction. The defendant had unsuccessfully invoked double jeopardy to prevent the second conviction. After the Supreme Court granted certiorari to review the second conviction on double jeopardy grounds, the government moved that the second judgment of conviction be vacated and the cause remanded for dismissal of the indictment, not on the merits as to double jeopardy but because it was not the policy of the Department of Justice that several offenses in a single transaction should be the basis of multiple prosecutions. The Supreme Court granted the motion and did not reach the merits. In submitting its motion, the government referred to its policy as to multiple federal prosecutions as "closely related to that against duplicating federal-state prosecutions" (361 U.S. at 531, 80 S.Ct. at 451). 36 The policy referred to in the Petite case had to do with a prosecution in a state court completed to final judgment. In the case at bar, there was no completed state prosecution; for reasons best known to themselves, the Nevada authorities elected to drop the state prosecution before any trial. Moreover, even were there a violation of some policy of the Attorney General, this would be no defense to the present indictment. See United States v. Chavez, 566 F.2d 81 (9th Cir. 1977). 37 b. 38 It is argued (Brief, pp. 25-27) that the indictment should have been dismissed because the grand jury was not informed of the proceedings in the Nevada courts. 39 It is impossible to determine from this record what the grand jury was informed, since there was no grand jury transcript; the argument here has no basis except the speculation of counsel for appellant. Moreover, the Magistrate below found that the grand jury had been informed of the Nevada proceedings (R VI, p. 131). The government's brief on this appeal (p. 16) tells us that the grand jury was so informed. 40 But if it be assumed that the grand jury was not so informed, this would in no way affect the validity of the indictment. Some states, for example California (Johnson v. Superior Court, 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792 (1975)), impose a duty on the prosecution to disclose to the grand jury evidence which would negate guilt. This is not, however, the rule in the federal system, United States v. Y. Hata & Co., Ltd., 535 F.2d 508, 512 (9th Cir.), Cert. denied, 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92 (1976). 41 The basic principle is firmly stated in Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956):"An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." 42 c. 43 Appellant argues (Brief, pp. 27-30) that her constitutional rights were violated when the government was permitted to relitigate in the court below the search and seizure issue, after suffering an adverse decision in the Nevada court. Appellant urges an analogy to Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). This same argument was made to this Court and rejected in United States v. Garrett, 565 F.2d 1065 (9th Cir. 1977), Cert. denied, Morgan v. U. S., 435 U.S. 974, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). We can do no better than to refer to that opinion (at pages 1068-69) for the reasons for the rejection. 44 The judgment of conviction is affirmed. * Honorable Inzer B. Wyatt, United States District Judge, Southern District of New York, sitting by designation

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS David W. Hill and Suellen H. Hill, FILED Plaintiffs Below, Petitioners November 18, 2016 RORY L. PERRY II, CLERK vs) No. 16-0219 (Harrison County 11-C-94) SUPREME COURT OF APPEALS OF WEST VIRGINIA Lone Pine Operating Company, Defendant Below, Respondent MEMORANDUM DECISION Petitioners David W. Hill and Suellen H. Hill, by counsel Stephen A. Wickland, appeal the April 21, 2015, order setting aside the tax deed, determining oil and gas interests, and distributing funds and the January 29, 2016, order denying their motion to alter or amend the April 21, 2015, order, both entered by the Circuit Court of Harrison County. Respondent Lone Pine Operating Company, by counsel Gregory A. Morgan, filed its response to which petitioners submitted a reply. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. Petitioners are the owners of the surface of a tract or parcel of land of 364.60 acres in Harrison County, West Virginia. The land was conveyed to them by deed dated February 25, 1976, though the deed reserved and did not convey “all of the oil and gas and all other minerals.” The acreage at issue was part of a tract of 1,300 acres that Luther Haymond leased to South Penn Oil Company, its successors and assigns, for the purpose of mining and operating for oil and gas for a primary term of five years and so long thereafter as oil or gas was produced from the leasehold premises beginning in 1899. The interest in both the minerals and the surface changed hands numerous times through deeds and wills. According to the circuit court, in 1988, the Harrison County Assessor erroneously created duplicate assessments for the “Interest in 1300 as Lease Oil & Gas (Bruce Haymond)” to William L. Mitchell Jr. (“Mitchell”), Suzan Sigmond (“Sigmond”), and Genevieve Rapp (“Rapp”) (who it appears died several years earlier) because the assessor was not able to match the 1,300 acre lease with the actual 376 ½ acre mineral assessments. The duplicate assessments describe the property as “Leased” to designate that they were created from the production reports rather than from a deed, will, or court order. The circuit court later found that both the West Virginia State Tax Department and the real estate division of the West Virginia Auditors Office advised local authorities that any assessments carrying the “Leased” designation should be suspended from sale because they were not created by a deed, 1 will, or court order and selling them would violate the provisions of West Virginia Code § 11-4­ 9. For tax year 1989, all of the assessments were paid except for the duplicate assessments in the names of Mitchell and Rapp, which were not paid and were “sold to the State.” By tax deed dated June 27, 1994, the Deputy Commissioner of Forfeit and Delinquent Lands for Harrison County conveyed the real estate in the names Mitchell and Rapp, being the 1989 assessments, to petitioners. Petitioners filed suit on March 8, 2011, seeking to quiet title and distribute oil and gas royalties. Petitioners asserted that the 1,300 acre tract of land was subject to an April 1, 1980, pooling agreement that divided the royalties as follows: a) 25% to Pennzoil, now East Resources; b) 25% to Eleanor B. Watson, now J.E. Watson Trust B.; c) 25% to Emma Finley Aderholt, now Norma Jean Coleman; d) 17.96% to Rapp, now petitioners; e) 3.351% to Mitchell now petitioners; and f) 3.351% to Sigmond, now respondent. Respondent filed a counterclaim disputing the validity of the tax deed under which petitioners claimed title to certain undivided interests in oil and gas underlying the 376 ½ acres within the 1,300 acres, asserting that the assessments that were the basis for the tax deed were erroneous duplicate assessments. Following preliminary hearings, a dispute arose between petitioner and respondent as to the ownership of the 17.96% interest owned by Rapp and a 3.351% interest owned by Mitchell. All other parties were dismissed from the litigation. According to petitioners, the dispute centered on alleged double taxation. Mitchell had received a per acre tax from the Harrison County Sheriff on 376 ½ acres of oil and gas, which he paid. He also received a royalty based tax on the 1,300 acre leased oil and gas. He failed to pay the leased entry for himself and Rapp, his aunt. Therefore, petitioners assert that they purchased those entries at a tax sale in 1994. On February 15, 2012, both respondent and petitioners filed motions for summary judgment, and both parties submitted responses. The circuit court heard argument on those motions on March 9, 2015, and on April 21, 2015, the circuit court entered its “Order Setting Aside Tax Deed, Determining Oil and Gas Interests, and Distributing Funds.” In its order, the circuit court found that the Haymond lease was still in force and a number of oil and gas wells had been drilled on the property, including petitioners’ 364.60 acre surface tract. The court also found that the 1976 deed was specifically made subject to the Haymond lease. By mineral deed dated July 16, 2010, respondent acquired “all rights, interest, and royalties” of Mitchell in and to the oil, gas, and other minerals in and under and that may be produced from the 1,300 acres. By mineral deed dated July 23, 2010, and corrective mineral deed dated September 22, 2010, respondent acquired from Suzan and her husband all rights, interests, and royalties in and to the oil, gas, and other minerals in and under and that may be produced from the 1,300 acre tract. According to the circuit court’s order, the tax deed from the Deputy Commissioner of Forfeit and Delinquent Lands in 1994 is petitioners’ only source of title supporting their claim to the oil and gas at issue in this case. The circuit court specifically found [t]hat the duplicative ‘Leased’ assessments, purchased by [p]etitioners do not, and have never, represented the ownership of any interest in property, minerals or oil and gas. Because the duplicative ‘Leased’ assessments did not represent any interest in oil and gas or other minerals, and because Mitchell, paid the tax in full on the actual 376 ½ [acre] mineral assessments, the sale by [the Deputy 2  Commissioner of Forfeit and Delinquent Lands] to [p]etitioners did not convey any ownership interest to [p]etitioners and did not divest William Mitchell, Jr. from his rightful ownership interest in the oil and gas. As a result, the circuit court concluded that the assessor’s attempt to assess Rapp, Mitchell, and Sigmond both for the interest they owned in the 376 ½ acres of oil and gas and again for the royalties therefrom was a duplicative assessment of the same property, so it was void. It stated that there was no dispute that all taxes had been paid on the two Mitchell assessments as to the 376 ½ acres of oil and gas for all periods through 2010 when they were sold to respondent. The circuit court also concluded that neither Mitchell nor respondent had any responsibility to correct any error made by the sheriff or the Deputy Director Commissioner of Forfeited and Delinquent Assessments to petitioners in selling the duplicate assessments. It specifically found that West Virginia Code § 11-3-27 was not applicable to bar respondent’s rights to its oil and gas because its stated purpose is to correct simple clerical errors or mistakes rather than to challenge a duplicate tax assessment. The circuit court further held that West Virginia Code § 55-2-1 was inapplicable to bar respondent’s rights to its oil and gas because its predecessors in title, Sigmond and Mitchell, always paid tax on their assessments as to the 376 ½ acres of oil and gas until the sale of those interests to respondent. It went on to find that Mr. Mitchell had no reason to seek to set aside the tax deed because he correctly believed that he had properly paid his taxes on the oil and gas interests that he inherited from his mother and aunt. Finally, it found that petitioners had no claim to the oil and gas interests at issue by way of adverse possession because they had not demonstrated actual possession of the property. Thus, the circuit court ordered that the 1994 tax deed be set aside and declared void; that the oil and gas interests at issue are the sole property of respondent; and that all funds paid to the Clerk of Harrison County that were held in escrow be paid to respondent.1 Petitioners filed a motion to alter or amend that April 21, 2015, order, and the circuit court heard argument on that motion on August 25, 2015. The circuit court found that the motion raised no issues of fact or law that were not fully and completely addressed and ruled upon in the prior order. Therefore, by order entered on January 29, 2016, the circuit court denied that motion. Petitioners appeal from those orders. “In reviewing an order denying a motion under Rule 60(b), W.Va.R.C.P., the function of the appellate court is limited to deciding whether the trial court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown in a timely manner.” Syl. Pt. 4, Toler v. Shelton. 157 W.Va. 778, 204 S.E. 85 (1974). However, “‘[t]he standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W.Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.’ Syl. Pt. 1, Wickland v. American Travellers Life Ins., 204 W.Va. 430, 513 S.E.2d 657 (1998).” Syl. 1 Without citing to the record, petitioners state that respondent has received all royalties it purchased from Sigmond but that the royalties from Mitchell and Rapp have been escrowed since the lawsuit was filed. 3 Pt. 2, W.Va. Dep’t of Transp., Div. of Highways v. Dodson Mobile Homes Sales and Services, Inc., 218 W.Va. 121, 624 S.E.2d 468 (2005). This Court has indicated that “[a] circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Davis v. Foley, 193 W.Va. 595, 457 S.E.2d 532 (1995) (citing Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)). Due to the overlap between the issues, we address petitioners’ first and second assignments of error together, which are as follows: 1) the circuit court erred when it voided the royalty based tax, and 2) the circuit court erred when it upheld the acreage tax or tax on oil and gas in place. Mitchell, Sigmond, and Rapp were assessed with seven entries for oil and gas in Harrison County in 1988. While Sigmond paid all of her assessed real property taxes from 1998 until 2010, when she sold her interest to respondent, petitioners assert that Mitchell and Rapp paid only the taxes on the oil and gas in place, ignoring the royalty tax assessments. Petitioners point to a 1988 letter from the State Tax Department they contend directed assessors to assess royalty-based taxes, as there was no tax on the oil and gas in place unless there was no production. They further assert that the circuit court’s April 21, 2015, order voids the presumption that the assessor properly assessed the property. They fault respondent’s predecessor in interest for failing to appear before the Harrison County Commission, sitting as the Board of Equalization and Review, to contest the double assessment. Petitioners claim that the royalty-based tax is mandated by law, while the acreage tax is duplicative and should be eliminated. Because petitioners have consistently paid the royalty-based tax, they claim that their title to the mineral rights at issue is superior to that of respondent. In the 1988 letter from Robert A. Hoffman, Director of the Property Tax Division of the State Tax Department of West Virginia, he informed the Assessor of Wetzel County that if a sheriff conducted a tax sale where there were duplicate assessments and one of the duplicate assessments was delinquent, “such sale would in all likelihood be considered invalid as the real property entry may be improper.” That letter does not place any obligation on a taxpayer to contest the duplicate assessment. Petitioner’s expert testified that since the “Leased” assessment did not arise from a deed, will, or court order, no sale of that assessment should occur, as it would violate West Virginia Code § 11-4-9. This Court previously held that “[a] tax sale under a void assessment . . . and a deed made pursuant to such sale are void.” Syl. Pt. 4, in part, Bailey v. Baker, 137 W.Va. 85, 68 S.E.2d 74 (1951); see also Syl. Pt. 4, Blair v. Freeburn Coal Corp., 163 W.Va. 23, 253 S.E.2d 547 (1979) (“A deed made pursuant to a tax sale under a void assessment is void.”). In relevant part, West Virginia Code § 11-4-9 provides that [i]n any tax sale by a sheriff, school commissioner or commissioner of forfeited lands, only the tract, lot, estate, interest or undivided interest proceeded against in that particular instance shall pass to the purchaser, so far as the State is concerned, so that any other estate, interest or undivided interest in the same tract not embraced in such sale shall not be affected by such sale, nor shall the title, or rights of the owners or claimants of such other estate, interest, or undivided interest in land be affected thereby. There is no dispute that Mitchell consistently paid the original tax he had been paying for years. 4 That is also the interest that he sold to respondent. Therefore, his interest could not be affected by the duplicate assessment pursuant to West Virginia Code § 11-4-9. While this statute does not directly address the types of assessments at issue in the present matter, it is clear that Mitchell never allowed the original taxes to become delinquent, so his interest was protected and the Deputy Commissioner of Forfeit and Delinquent Lands for Harrison County did not have the authority to sell Mitchell’s interest. Petitioners next argue that the circuit court erred when it allowed recovery of real estate after ten years. They contend that West Virginia Code § 55-2-1 places a ten-year statute of limitations on the recovery of real property, so Mitchell’s failure to attempt to set aside the deed between 1995 and 2010 left respondent without a valid claim for recovery. Petitioners are correct that West Virginia Code § 55-2-1 provides that “[n]o person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.” The circuit court found that the ten-year statute of limitations was inapplicable because Sigmond and Mitchell always paid taxes on their assessments to the 376 ½ acres of oil and gas until the sale of those interests to respondent. It went on to find that Mitchell had no reason to seek to set aside the tax deed because he correctly believed he had properly paid his taxes on the oil and gas interests that he inherited from his mother and his aunt. The application of the ten- year statute of limitations under West Virginia Code § 55-2-1 requires the demonstration of actual possession of the property thereunder, which petitioners have failed to demonstrate. Further, as set forth above, petitioners never had a legal right to the mineral rights at issue because they purchased the same pursuant to a void assessment. This Court has held that “[t]o work . . . ouster, it is not enough to set up a mere claim by obtaining a deed or patent or otherwise. It requires an adverse holding, actual occupation of the land, and such as is calculated to give notice.” Camden v. West Branch Lumber Co., 59 W.Va. 148, 160, 53 S.E. 409, 414 (1906). For these reasons, we find that the circuit court did not err in concluding that West Virginia Code § 55-2-1 was inapplicable to this matter. Finally, petitioners argue that the circuit court erred when it permitted respondent the benefits of a bona fide purchaser when it was not a bona fide purchaser for value of the Mitchell and Rapp oil and gas. Petitioners state that respondent purchased Mitchell’s interest for less than $100, while in January of 2016 there was almost $800,000 in escrow related to that account due to Marcellus production from the lease at issue. They also state that there was over $4,000 in the shallow well escrow account. Therefore, respondent did not purchase Mitchell’s interest for its fair market value, and it is not a bona fide purchaser. While petitioners make assertions as to the amounts contained in the escrow accounts, they do not point to the record to support these contentions. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides, in relevant part, that the argument section of a brief before this Court “must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may disregard errors that are not adequately supported by specific references to the record on appeal.” Because petitioners failed to point this Court to the necessary documents in the record to allow it to make a determination on the merits, we decline to address the merits of this assignment of error. 5  For the foregoing reasons, we affirm. Affirmed. ISSUED: November 18, 2016 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Margaret L. Workman Justice Allen H. Loughry II DISSENTING: Justice Robin Jean Davis Justice Brent D. Benjamin 6 

83 P.3d 905 (2003) 2004 OK CIV APP 8 Jeffrey T. SCHEETS, Petitioner, v. ADA FIRE DEPARTMENT and The Workers' Compensation Court, Respondents. No. 99,271. Court of Civil Appeals of Oklahoma, Division No. 3. December 18, 2003. Roger B. Hale, Wyatt, Austin, Kingery & Hale, Ada, OK, for Petitioner. Margaret E. Dunn, Tulsa, OK, for Ada Fire Department. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. OPINION ADAMS, Presiding Judge. ¶ 1 Claimant Jeffrey Scheets asks us to vacate an order of a three-judge panel of the Workers' Compensation Court affirming a trial judge's denial of compensation based on a finding that Claimant's cancer was not causally related to the conditions of his employment with the Ada Fire Department (Employer). We conclude the order is supported by competent evidence and sustain it. ¶ 2 Claimant, a firefighter for Employer for almost 2 years, was off-duty on March 8, 2001, when he had a grand mal seizure while burning brush. He was treated at a local hospital's emergency room and released. Subsequent seizures led to further testing, and Claimant was eventually diagnosed as having brain cancer known as a glial tumor or glioblastoma. After surgery and radiation therapy, he was unable to return to work. ¶ 3 Six months later, Claimant filed a Form 3 for "cumulative trauma injuries," i.e., alleging he had cancer of the brain resulting *906 from "exposure to Cancer causing agents" with last exposure date of May 30, 2001. Employer filed an answer, denying Claimant's injuries arose out of and in the course of his employment. After the trial judge found that the evidence presented by Employer was "insufficient to overcome the presumption of compensability found at 11 O.S. § 49-110,"[1] Employer filed an en banc appeal. A three-judge panel vacated that order and remanded the case for a new trial.[2] ¶ 4 After the second trial, the trial judge filed an ORDER DENYING COMPENSABILITY, finding, in pertinent part: -1- THAT following a review of the entirety of the lay and expert testimony offered to the Court on DECEMBER 4, 2002, the Court herein finds that competent evidence was offered to support a finding that [Claimant's] diagnosed condition of cancer (glial tumor) is not causally related to the conditions of [Claimant's] employment with [Employer]. -2- THAT [Claimant's] demand for benefits is DENIED. -3- THAT the Court has hereby determined [Employer] has overcome the statutory burden in favor of [Claimant's] demand for a finding of compensability. Claimant filed an en banc appeal, and the three-judge panel affirmed the trial judge's order. This review proceeding followed. ¶ 5 In Johnson v. City of Woodward, 2001 OK 85, 38 P.3d 218, the Court held § 49-110 was applicable to proceedings on a firefighter's workers' compensation claim for one of the diseases covered by that statute. All of Claimant's arguments are premised upon the application of this statute. ¶ 6 Claimant first argues that the trial court's order was insufficient because it did not explain how Employer had overcome the presumption. However, Claimant did not raise this error in his Notice of Appeal in the en banc appeal, and he has waived any argument based on that alleged error. Red Rock Mental Health v. Roberts, 1997 OK 133, 940 P.2d 486. ¶ 7 Claimant's remaining arguments rely on the assertion that Employer's evidence was not sufficient to overcome the presumption of compensability provided by § 49-110. He argues our review of this question is de novo and not governed by the "any competent evidence" standard normally *907 applicable where we are called upon to determine the sufficiency of the evidence presented to the trial court. We disagree. ¶ 8 There is no question that the presumption applied here, and the trial court specifically recognized its application. The issue left for resolution was whether Employer's evidence rebutted the presumption that Claimant's cancer is job-related. That inquiry relates to the "arising out of" component of a compensable injury which contemplates a causal relationship between the act engaged in at the time of injury and the requirements of employment. Hughes v. Cole Grain Co., 1998 OK 76, 964 P.2d 206. ¶ 9 Whether an employee's injury "arises out of" employment presents a non-jurisdictional issue of fact which is to be determined by the trial judge. Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, 958 P.2d 795. Therefore, the trial judge's decision that Employer's evidence overcame the statutory presumption is a fact question. On non-jurisdictional issues, we must accept as binding the workers' compensation tribunal's findings of fact which are supported by competent evidence. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527. Therefore, the any-competent evidence standard is the proper standard of review in this proceeding, under which our task is to review the evidence in the record, without weighing the evidence, to determine whether the record contains any competent evidence which reasonably supports the order. If the record contains such evidence and the order is otherwise free of legal error, we must sustain the order. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. ¶ 10 Employer's Exhibit No. 1, Dr. John's September 29, 2002 medical report, provides competent evidence to overcome the statutory presumption that Claimant's glioblastoma is job-related. That report states, in pertinent part: ... the conclusion of Dr. Ishmael was that there is simply no scientific data or epidemiologic data that has in any way connected any of the exposures of [Claimant] as a firefighter with the occurrence of his brain tumor, which is a glioblastoma. It was also my opinion after researching the general literature, that there was no indication of a causative relationship between the employment of a firefighter or any of the employment exposures related to me by [Claimant] and the occurrence of his glioblastoma. * * * It is my opinion that the occurrence of glioblastomas, such as the one experienced by [Claimant], are not rare and unusual and that in my own clinical experience, such tumors occur in the general population with no particular predilection for any occupational exposure. * * * For the above reasons, it is my opinion within a reasonable degree of medical certainty, that there is no causation relationship between [Claimant] developing a glioblastoma and his employment with the City of Ada. ¶ 11 Based upon this record, we cannot conclude that the trial court's order is contrary to law or unsupported by any competent evidence. The order is sustained. SUSTAINED. JOPLIN, C.J., and BUETTNER, J., concur. NOTES [1] 11 O.S.Supp.2002 § 49-110, entitled "Certificates of disability—Presumptions—Medical evidence and records," provides, in pertinent part: A. No firefighter shall be retired, as provided in Section 49-109 of this title, or receive any pension from the System, unless here shall be filed with the State Board certificates of the firefighter's disability. Any member of the fire department of any municipality who is disabled as a result of heart disease, injury to the respiratory system, infectious disease, or the existence of any cancer which heart disease, injury to the respiratory system, infectious disease, or cancer was not revealed by the physical examination passed by the member upon entry into the department, shall be presumed to have incurred the heart disease, injury to the respiratory system, infectious disease, or cancer while performing the firefighter's duties as a member of such department unless the contrary is shown by competent evidence. As used in this section, "infectious disease" means hepatitis, human immunodeficiency virus, meningitis and tuberculosis. Effective November 10, 1999, the provisions of this subsection relating to infectious disease shall apply. B. Medical treatment based on the presumptions prescribed by subsection A of this section shall be provided by the municipality as a job-related illness until a court of competent jurisdiction determines that the presumption does not apply. If it is subsequently determined that the illness is not job-related, the workers' compensation provider shall be reimbursed for expenditures made for health care services by the medical plan or benefit provided by the municipality for the employee. (Emphasis added.) [2] Employer's Notice of Appeal asserted only that the trial judge's order was against the clear weight of the evidence and identified no legal error which would have necessitated a new trial. The panel's order, which determined the trial judge's order finding Employer had not overcome the presumption was contrary to law and against the clear weight of the evidence, offered no explanation concerning the reasons for ordering a new trial rather than denying the claim.

457 N.W.2d 394 (1990) Scott Russell OLSON, et al., Respondents, v. Albert C. MAGNUSON, personally and as agent for The Redeemer Covenant Church of Brooklyn Park, et al., Defendants, The Evangelical Covenant Church of America, Appellant. Nos. C8-90-281, CX-90-282, C1-90-283, C3-90-284, C5-90-285 and C7-90-286. Court of Appeals of Minnesota. June 12, 1990. *395 Charles W. Faulkner, Faulkner & Faulkner, Minneapolis, Jeffrey R. Anderson, Susan Bedor, Reinhardt and Anderson, St. Paul, James W. Kerr, McDonald & Kerr, Minneapolis, for respondents. Gerald H. Hanratty, Minneapolis, for appellant. Considered and decided by LANSING, P.J., and FOLEY and SHORT, JJ. OPINION LANSING, Judge. These cases, consolidated for purposes of appeal, are grounded on complaints by six individuals alleging that Albert Magnuson committed sexual abuse while serving as minister at Redeemer Covenant Church in Brooklyn Park, Minnesota. Appellant Evangelical Covenant Church of America (ECC), an Illinois corporation, is named as a defendant in the complaints for its alleged failure to adequately supervise Magnuson. ECC unsuccessfully moved to dismiss for lack of personal jurisdiction, and this appeal followed. We affirm. FACTS ECC is a body of evangelical churches, administratively organized into regional conferences. Rights and duties at the national, regional and local levels of this body are dictated by ECC's constitution, its bylaws, and other rules and regulations. ECC bylaws specifically provide for the formation of a Board of Ministry which is to exercise "general supervision over Covenant ministers, including ordination, license, discipline, and the maintenance of high ministerial standards." ECC is responsible for investigating claims of impropriety lodged against its local church ministers[1] and administering discipline if deemed necessary. Such discipline may include counseling, training, temporary removal from ministerial functions, or permanent dismissal from the Covenant ministry. It appears from ECC's rules and regulations that a person who is dismissed from the Covenant ministry is prohibited from serving in the clergy of a Covenant local church. Redeemer Covenant Church is a member of the Northwest Conference of the ECC. From 1964 to 1989, Magnuson served as Redeemer's minister. In November, 1987, the Superintendent of the Northwest Conference was informed that Magnuson had sexually abused one of the respondents three years earlier. This information was relayed to ECC, which promptly "evaluated" Magnuson. Upon discovering new evidence of sexual abuse, ECC arranged a meeting with Magnuson at which Magnuson was asked to take an early retirement. Sometime thereafter, ECC suspended Magnuson from all pastoral duties and counseling activities pending completion of its investigation. On January 18, 1989, Magnuson tendered his resignation. Following the tender of Magnuson's resignation, each of the six respondents commenced a lawsuit against ECC and other parties. The complaints alleged that the respondents were sexually abused by Magnuson and that this abuse was caused by ECC's negligent supervision of the minister. ECC moved to dismiss for lack of personal jurisdiction, but its motions were denied. On appeal, ECC contends that under the due process clause of the United States Constitution, it is not subject to the jurisdiction of Minnesota courts. ISSUE Did the trial courts' exercise of personal jurisdiction over the Evangelical Church of *396 America violate the due process clause of the United States Constitution? ANALYSIS Before a Minnesota court may exercise personal jurisdiction over a non-resident defendant, it must determine first whether our long-arm statute, Minn.Stat. § 543.19, is satisfied, and second, whether the exercise of jurisdiction is consistent with due process. Sherburne County Social Services v. Kennedy, 426 N.W.2d 866, 867 (Minn.1988). ECC does not dispute that the claims at issue are within the scope of Minnesota's long-arm statute and we confine our analysis to whether the trial courts' exercise of jurisdiction offends due process. The due process standard for determining whether a non-resident defendant is subject to the jurisdiction of a state's courts was established in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The court ruled that jurisdiction may not be exercised unless the defendant has minimum contacts with the forum state, "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Id. This traditional minimum contacts test is applicable to lawsuits against religious organizations, notwithstanding the freedom of religion guarantees under the first amendment of the United States Constitution. General Council on Finance and Administration of the United Methodist Church v. Superior Court of California, 439 U.S. 1355, 1373, 99 S.Ct. 35, 38, 58 L.Ed.2d 77 (1978). To have minimum contacts, the defendant must have performed some act by which it "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). The defendant's connection with the forum state must be such that it "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). These requirements ensure that a defendant will not be subjected to a state court's jurisdiction "solely as a result of `random,' `fortuitous,' or `attenuated' contacts, or of the `unilateral activity of another party or a third person.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (citations omitted). The Supreme Court has recently distinguished between "specific jurisdiction", which may exist when the cause of action arises out of or is related to the defendant's contact with the forum state, and "general jurisdiction", which may exist even though there is no connection between the cause of action and the jurisdictional facts. Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15. The threshold of contacts required for the exercise of specific jurisdiction is lower than that required for general jurisdiction. Under this lower threshold, parties who "reach out beyond one state and create continuing relationships and obligations with citizens of another state" may be haled into the other state's courts for consequences arising from such contacts. Id., 471 U.S. at 473, 105 S.Ct. at 2182; Compare Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In Minnesota, a five-factor test is used to determine whether there are adequate minimum contacts to support the exercise of personal jurisdiction. The court must consider: (1) The quantity of the contacts with the forum state, (2) The nature and quality of the contacts, (3) The source and connection of the cause of action with these contacts, (4) The interest of the state providing a forum, (5) The convenience of the parties. Rostad v. On-Deck, Inc., 372 N.W.2d 717, 719-720 (Minn.1985) cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). Our analysis of these factors and of the general principles underlying the minimum *397 contacts test leads us to conclude that the courts of this state may constitutionally exercise specific jurisdiction over ECC with respect to these complaints. In reaching this conclusion, we have relied on the analytical framework found in Burger King. In Burger King, a franchisor incorporated in Florida brought suit in Florida against a Michigan resident with whom it had entered into a 20-year franchise contract. The Court adopted a "contract-plus" framework to determine whether the Michigan resident's contacts with Florida satisfied the requirements of due process. Under this framework, a contract between parties of different states does not, by itself, establish sufficient minimum contacts such that jurisdiction may be exercised in either party's home state. Id., 471 U.S. at 479, 105 S.Ct. at 2185. Rather, one must look beyond the mere existence of the contract and consider the following factors: prior negotiations between the parties; contemplated future consequences of the parties' contractual relationship; the terms of the contract; and the parties' actual course of dealing. Id. The Court concluded, after weighing these factors, that Florida's exercise of jurisdiction did not violate due process. It emphasized that (1) the Michigan resident had "entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts" with the franchisor in Florida, and (2) the Michigan resident's failure to comply with the franchise agreement caused foreseeable injuries in Florida. Id., 471 U.S. at 480, 105 S.Ct. at 2186. In applying this analysis to ECC, instead of addressing the constitutional ramifications of a contract between parties of different states, we must examine the effect of a legal relationship between a national religious organization and one of its constituent members. Notwithstanding this shift in focus, Burger King still provides an appropriate framework by which ECC's contacts with Minnesota may be measured. We conclude, initially, that a local church's membership in a national religious organization does not, by itself, automatically establish sufficient minimum contacts by the national organization to support jurisdiction in the local church's home forum. In addition to membership, the relationship is defined by prior negotiations, contemplated future consequences, the terms of the membership, and the parties' actual course of dealing. All of these factors are highly pertinent to a determination of whether the national organization has "`purposefully directed' [its] activities at residents of the forum * * *." Burger King, 471 U.S. at 472, 105 S.Ct. at 2182. Rules and regulations governing the legal relationship between ECC and Redeemer establish that ECC assumed responsibility for the discipline of Redeemer's ministers. ECC contemplated that in the event a minister at Redeemer was charged with sexual abuse, it would become involved in the subsequent investigation and would regulate the minister's privilege to carry out pastoral duties at Redeemer. The actual course of dealing between ECC and Redeemer illustrates ECC's authority over Redeemer's ministers. After learning of Magnuson's alleged misconduct, ECC was in complete charge of the ensuing investigation and disciplinary action. ECC "reinforced [its] deliberate affiliation with the forum State", Id., 471 U.S. at 482, 105 S.Ct. at 2187, by administering discipline against Magnuson and by arranging a meeting with him at which further disciplinary steps were discussed. ECC's continuing obligations to Redeemer Covenant Church persuade us that its contacts with Minnesota were by no means "random," "fortuitous," or "attenuated." In our view, its contacts with Minnesota were sufficiently significant so that ECC had "fair warning" that it would be made subject to Minnesota's jurisdiction for litigation arising out of its alleged failure to adequately investigate and discipline a minister at Redeemer Covenant Church. ECC has failed to point to any factors which might outweigh the considerations we have addressed. ECC does not challenge the respondents' assertion that Minnesota has a legitimate interest in providing a forum for these claims. Nor does ECC contend that jurisdiction would be inconvenient. *398 The constitutionality of haling ECC into a Minnesota court is bolstered by this absence of countervailing factors. Finally, we note that an Illinois appellate court, in a case with similar facts, adopted essentially the same reasoning. Although the court appears to have relied on concepts of general jurisdiction, it analyzed similar factors in holding that the United Presbyterian Church, by advising, instructing and directing one of its local churches, had sufficient minimum contacts with the local church's home state to establish jurisdiction for a case involving the local church's dismissal of its minister. See Johnston v. United Presbyterian Church, Inc., 103 Ill.App.3d 869, 59 Ill.Dec. 518, 431 N.E.2d 1275 (1981). We believe that our analysis, like the analysis in Johnston, gives due regard to the jurisdictional limitations imposed by the due process clause of the United States Constitution.[2] DECISION The trial courts did not err in ruling that ECC may be made subject to jurisdiction in this state's forum for purposes of determining its liability for sexual abuse injuries arising out of its alleged negligent supervision of a minister at a Minnesota Covenant church. Affirmed. NOTES [1] The regional conferences also share responsibility in investigating charges against Covenant ministers. [2] For other cases on this subject, see 26 ALR4th 1168; McLean v. Church of Scientology of California, 538 F.Supp. 545 (M.D.Fla.1982); Does 1-9 v. Compcare, Inc., 52 Wash.App. 688, 763 P.2d 1237 (1988).

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT H. BABAALI M.D. MEDICAL INC., No. 18-55745 Plaintiff-Appellant, D.C. No. 2:18-cv-00198-GW-PLA v. ALEX M. AZAR II, Secretary of the MEMORANDUM* United States Department of Health and Human Services, and SEEMA VERMA, Administrator of the Centers for Medicare and Medicaid Services, Defendants-Appellees. Appeal from the United States District Court for the Central District of California George Wu, District Judge, Presiding Argued and Submitted November 4, 2019 Pasadena, California Before: FARRIS, McKEOWN, and PARKER,** Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the Second Circuit, sitting by designation. 1  H. Babaali M.D. Medical Inc. (“Babaali”) is a Medicare provider that provides treatment for venous reflux disease.1 A Medicare independent contractor determined that Babaali had been overpaid for this service. Babaali disputed this determination. After initiating but not completing administrative review of this dispute, Babaali sought a writ of mandamus directing the Secretary of Health and Human Services and the Administrator of the Centers for Medicare and Medicaid Services to provide a hearing before an Administrative Law Judge and to stay recoupment of the alleged overpayment until an ALJ issued a decision. See 28 U.S.C. § 1361. Babaali also brought a claim under the Due Process Clause, invoking jurisdiction pursuant to 42 U.S.C. § 405(g).2 The district court granted Defendants- Appellants’ motion to dismiss, holding that the requirements for mandamus jurisdiction had not been met and that Babaali had failed to exhaust its administrative remedies. The court further denied Babaali’s motion for leave to amend. This appeal followed. 1 We are mindful that H. Babaali M.D. is the name of both a physician and his medical corporation. Because only the corporation is a party here, we use the name “Babaali” to denote the corporation and employ the pronoun “it.” 2 The complaint set forth claims invoking several other bases for jurisdiction, but Babaali does not appeal the district court’s dismissal of those claims. 2  In general, a party is not entitled to relief under § 405(g) or to a writ of mandamus unless that party has exhausted its administrative remedies. See, e.g., Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 15 (2000); Heckler v. Ringer, 466 U.S. 602, 616-17 (1984); Agua Caliente Tribe of Cupeño Indians of Pala Reservation v. Sweeney, 932 F.3d 1207, 1216 (9th Cir. 2019); Uhm v. Humana, Inc., 620 F.3d 1134, 1140 (9th Cir. 2010). The district court, therefore, correctly concluded that it lacked jurisdiction because Babaali failed to proceed through the five-level Medicare appeal process set forth in 42 U.S.C. § 1395ff. See Ill. Council, 529 U.S. at 13. After progressing through two stages of review by independent contractors, Babaali sought a hearing before an ALJ, pursuant to 42 C.F.R. § 405.1000(a).3 The relevant statute provides that an ALJ “shall conduct and conclude a hearing . . . and render a decision on such hearing by not later than the end of the 90-day period beginning on the date a request for hearing has been timely filed.” 42 U.S.C. § 1395ff(d)(1)(A). If an ALJ does not render a decision within the 90-day period, a Medicare provider may move directly to step four and escalate its claim to the Departmental Appeals Board (“DAB”), which provides de novo review. Id. § 3 With two levels of review completed, the agency was entitled to begin recoupment as the appeal continued. See 42 U.S.C. § 1395ddd(f)(2)(A); 42 C.F.R. § 405.379(f)(1). 3 1395ff(d)(2)(B), (3)(A). Subsequently, if the DAB does not process the appeal within 180 days, the provider may seek review in federal district court. Id. § 1395ff(d)(2)(A), (3)(B); 42 C.F.R. §§ 405.1100, 405.1132(a). Babaali did not receive and still has not received an ALJ hearing because the agency is severely backlogged. Presently, it is unable to provide such a hearing within 3.5 years of a provider’s request. However, rather than proceed to a step-four appeal to the DAB, Babaali filed this suit. Consequently, it failed to exhaust its administrative remedies and is not entitled to judicial review. See, e.g., Ill. Council, 529 U.S. at 13; Ringer, 466 U.S. at 617; Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1115 (9th Cir. 2003). Recognizing this failure, Babaali argues that the exhaustion requirement should be waived. It contends that it would be denied due process if the agency were able to recoup significant sums while it endured the multi-year wait for an ALJ hearing. Although waivers are available under § 405(g), that provision also includes an unwaivable requirement that a plaintiff first present its claim to the agency. Kaiser, 347 F.3d at 1115. While Babaali did challenge the overpayment determination before the agency, it never presented to the agency a request for a stay of recoupment, nor did it seek an extended repayment plan. See 42 U.S.C. § 1395ddd(f)(1). As a result, it fails to meet the unwaivable presentment 4 requirement, and the Court may not entertain Babaali’s due process claim. Cf. Haro v. Sebelius, 747 F.3d 1099, 1112-13 (9th Cir. 2014). Babaali further challenges the district court’s denial of its motion for leave to amend. It had sought leave to add a claim for mandamus relief on behalf of all Medicare providers who had experienced similar significant delays receiving ALJ hearings. The district court denied the motion, inter alia, on the ground of comity. It noted ongoing parallel litigation in the U.S. District Court for the District of Columbia, Am. Hosp. Ass’n v. Azar, No. 14-cv-851 (JEB), 2018 WL 5723141 (D.D.C. Nov. 1, 2018). Because that litigation had been protracted, Babaali was within the class of providers covered by that litigation, and the case presented an identical issue, the district court did not abuse its discretion by denying leave to amend. See Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1240 (9th Cir. 2015). AFFIRMED. 5 

138 S.E.2d 232 (1964) 262 N.C. 582 Nommie J. GOODWIN v. Anna B. WHITENER and husband, Claude R. Whitener, Jr. No. 451. Supreme Court of North Carolina. October 14, 1964. *233 Davis & Brown, by Lemuel H. Davis, Raleigh, for plaintiff appellant. No counsel contra. HIGGINS, Justice. The complaint is the foundation document in this civil action. Hence, it is before the Court as a part of the record proper, of which we take notice. Skinner v. Empresa Transformadora, 252 N.C. 320, 113 S.E.2d 717, citing many cases. The complaint alleges that two directors of the corporation were guilty of such mismanagement of the corporate affairs as caused the company to become insolvent and unable to pay the plaintiff's judgment. A claim of mismanagement exists in favor of the corporation. The duties which have been breached by this mismanagement are duties primarily to the corporation. Before a creditor or stockholder may sue those guilty of mismanagement, he must allege a demand on the corporation, or its receiver if insolvent, to bring the suit and a refusal to do so. Even then the corporation must be made a party defendant; and any recovery must be held for the benefit of the corporation. Coble v. Beall, 130 N.C. 533, 41 S.E. 793, 794; McIver v. Young Hardware Co., 144 N.C. 478, 57 S.E. 169; Douglass v. Dawson, 190 N.C. 458, 130 S.E. 195; Corporation Commission v. Merchants' Bank, 193 N.C. 113, 136 S.E. 362. "Where, however, an officer *234 of a corporation so utilizes his authority as to benefit himself to the detriment of the corporation, a right of action accrues to the corporation." Fulton v. Talbert, 255 N.C. 183, 120 S.E.2d 410. Under the authority of the cases cited, we hold the plaintiff's complaint fails to state a cause of action. For the reasons assigned in Transformadora, supra, and the many cases therein cited, we remand the case to the Superior Court for the entry of judgment dismissing the action. This disposition makes unnecessary any discussion of the questions discussed in the appellant's brief. Remanded.

983 F.2d 286 299 U.S.App.D.C. 261, 61 USLW 2478, 8IER Cases 396 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al.v.Paul GREENBERG, Major General, Commander, Headquarters,Army, Armament, Munitions & Chemical Command, etal., Appellants. No. 92-5216. United States Court of Appeals,District of Columbia Circuit. Argued Oct. 26, 1992.Decided Jan. 29, 1993. [299 U.S.App.D.C. 262] Appeal from the United States District Court for the District of Columbia. Freddi Lipstein, Dept. of Justice, Washington, DC, argued the cause for the appellants. With her on the briefs were Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Edith Marshall, Asst. U.S. Atty., Barbara L. Herwig, Leonard Schaitman and Margaret S. Hewing, Attorneys, Dept. of Justice, and Sally M. Rider, Asst. U.S. Atty., Washington, DC. Joshua F. Bowers, National Federation of Federal Employees, Washington, DC, argued the cause for appellees. With him on the brief was H. Stephan Gordon, Gen. Counsel, Nat. Federation of Federal Employees, Washington, DC. Kate Martin, Washington, DC, argued the cause for amici curiae American Civil Liberties Union Foundation and American Civil Liberties Union Foundation of the Nat. Capital Area. With her on the brief were Arthur B. Spitzer, D. Michael Fitzhugh and Jonathan L. Diesenhaus, Washington, DC. Before: EDWARDS, SENTELLE, and RANDOLPH, Circuit Judges. Opinion for the court filed by Circuit Judge RANDOLPH. Concurring opinion filed by Circuit Judge HARRY T. EDWARDS. Concurring opinion filed by Circuit Judge SENTELLE. RANDOLPH, Circuit Judge: 1 In the wake of several highly publicized spy scandals, the Department of Defense began reinvestigating its civilian employees holding security clearances at the "secret" level. The Department requested these employees, on a voluntary basis, "[t]o [p]rovide background information for personnel security investigative and evaluative purposes" by completing the "National Agency Questionnaire," formally designated DD Form 398-2. The Questionnaire informed each employee that "failure to furnish the requested information may result in our being unable to complete your investigation, which could result in your not being considered for clearance, access, entry into a uniformed service, or assignment to sensitive duties." 2 Four civilian Defense Department employees, a national union representing federal workers and three of its local unions brought suit challenging four of DD Form 398-2's questions--Questions 18, 19, 20 and 21. The parties have reached a settlement on Question 21, which had been designed to elicit information about employees' organizational affiliations. The remaining questions are as follows. 3 Question 18 requests employees to reveal their criminal arrest history, without regard to whether charges were dropped or dismissed, resulted in an acquittal, or whether the employee was a juvenile at the time of arrest. 4 Question 19 asks employees about their credit history, and seeks detailed explanations of any petitions for bankruptcy, garnishment of wages, tax liens, outstanding judgments or delinquent debts. 5 Question 20 solicits a complete mental health and drug and alcohol use history. Employees are asked to disclose their use of any controlled substances; their involvement with the illegal manufacture, production, purchase or sale of such drugs; their abuse of prescription drugs, or use of alcohol resulting in loss of their job or their discipline, arrest, or treatment; and any treatment they received for a mental, emotional or psychological condition, and any counselling of them by a mental health professional. 6 Employees are instructed: "Answers to questions in items 18 through 22 are NOT limited to the last 5, 10, or 15 years, but pertain to your entire life." The Questionnaire also requests each employee to sign a release authorizing the Department to obtain complete background records relating [299 U.S.App.D.C. 263] to any of the activities disclosed on the form. 7 The district court granted plaintiffs' motion for a preliminary injunction forbidding the Defense Department from "compelling answers" to Questions 18, 19 or 20, and from using information provided in response to these questions. National Fed'n of Fed. Employees v. Greenberg, 789 F.Supp. 430, 440 (D.D.C.1992). 8 * Differences between what plaintiffs argue on appeal and what they alleged in the district court; the grounds on which the district court placed its decision; and a concession in plaintiffs' appellate brief require a more extensive explanation than usual of what legal issues may properly be considered in this appeal. 9 In their original and amended complaints plaintiffs attacked the drug use portion of Question 20 on the ground that it violated the Fifth Amendment privilege against self-incrimination. The district court decided in plaintiffs' favor and the Fifth Amendment issues raised by this ruling are thus before us. We put them to one side for the moment. 10 Question 19 (finances) is another matter. The original complaint alleged only that this question violated the Privacy Act, 5 U.S.C. § 552a. As we read the district court's opinion, the ruling in plaintiffs' favor rested solely on the Privacy Act. See 789 F.Supp. at 433-34. Plaintiffs' amended complaint and their second amended complaint, both filed after the preliminary injunction issued, also alleged only a Privacy Act violation. In this court, plaintiffs "withdraw the Privacy Act challenge to the [Questionnaire]." Brief for Appellees at 2 n. 1. One might wonder what is left? Plaintiffs spend several pages in their brief explaining why the government has no compelling need for the financial information sought by Question 19. This is included as part of their overall argument--the only argument they now press other than their Fifth Amendment contention--that each of the questions deprives them of a constitutional right to privacy. Yet as a matter of prudence if not jurisdiction, claims neither raised nor addressed below usually may not be heard on appeal. See Yee v. City of Escondido, --- U.S. ----, ---- - ----, 112 S.Ct. 1522, 1531-34, 118 L.Ed.2d 153 (1992). We include the hedge "usually" because the ban may be overcome. See EEOC v. FLRA, 476 U.S. 19, 23-24, 106 S.Ct. 1678, 1681, 90 L.Ed.2d 19 (1986) (per curiam); Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992). One reason for doing so here is that both parties have fully briefed and argued the constitutionality of Question 19. Contrast Rollins Environmental Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991). Another is that the government failed to object to plaintiffs' new claim. One might say that although plaintiffs had waived their right to mount a constitutional argument against Question 19, the government thereby waived its right to complain. Carlson v. Green, 446 U.S. 14, 17 n. 2, 100 S.Ct. 1468, 1470 n. 2, 64 L.Ed.2d 15 (1980), suggests this approach. Cf. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697, 104 S.Ct. 2694, 2699, 81 L.Ed.2d 580 (1984). Parties too often frame appellate cases through their combined neglect. Still, we will take this case as it has been briefed. The legal issues regarding the constitutionality of Question 19 are fundamentally the same as the issues regarding the rest of the Questionnaire. If we refused to consider them, it would still be open to plaintiffs to amend their complaint once again. The issue might then return to us in the same form if the district court allowed the amendment and issued an order granting or denying a preliminary or permanent injunction against Question 19's use. 11 With respect to Question 18 (arrests), plaintiffs' original and amended complaints also raised only a Privacy Act claim, which is all the district court decided. See 789 F.Supp. at 433-34. The second amended complaint added a constitutional right of privacy claim and this, as we have indicated, is the only issue regarding Question 18 plaintiffs argue on appeal. Although the second amended complaint was [299 U.S.App.D.C. 264] filed only after the court issued its opinion, we will treat the constitutional claim as one raised in the court below. The case is here on appeal from a preliminary injunction. In theory, at least, proceedings leading to a decision on a permanent injunction are ongoing. Plaintiffs therefore have the advantage of the familiar rule that on appeal, the prevailing party may support a judgment in its favor on any grounds urged or decided below. See, e.g., United States v. Williams, --- U.S. ----, ---- - ----, 112 S.Ct. 1735, 1738-41, 118 L.Ed.2d 352 (1992); Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156 n. 6, 25 L.Ed.2d 491 (1970); United States v. Williams, 951 F.2d 1287, 1290 (D.C.Cir.1991). 12 The same rule entitles plaintiffs to argue the constitutionality of the mental health portion of Question 20. While their original and their amended complaints contested this question only on Privacy Act grounds, which they have now relinquished, the district court enjoined the Department from asking for mental health information partly on the ground that this would invade plaintiffs' constitutionally protected privacy. See 789 F.Supp. at 434-35.1 II 13 We therefore have before us the constitutionality of each of the three questions described above. However, on the authority of Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the government maintains that the district court should not have passed on them and neither should we. Egan held that the charter of the Merit Systems Protection Board did not empower the Board to consider the validity of the Navy's denial of a security clearance to one of its employees. Describing the granting of a security clearance as "a sensitive and inherently discretionary judgment call" ultimately resting on a prediction about future behavior, the Court determined that the Board, as an "outside, nonexpert body," was not in a position to second-guess the Navy's judgment or to determine "what constitutes an acceptable margin of error in assessing the potential risk." 484 U.S. at 527, 528, 529, 108 S.Ct. at 823, 824, 825. The government takes Egan two steps further: since the Board may not review the merits of security-clearance denials, federal courts may not consider constitutional challenges to such denials; and since the government's security-clearance judgments are thus judicially unreviewable, so are the government's judgments about what information employees must disclose during security clearance investigations. 14 A case decided shortly after Egan undercuts the government's first proposition. It is simply not the case that all security-clearance decisions are immune from judicial review. In Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), an action brought under the Administrative Procedure Act, the Court ordered the district court to adjudicate a terminated employee's colorable constitutional challenge to the CIA's denial of his security clearance. 486 U.S. at 601-05, 108 S.Ct. at 2052-54. The government dismisses Webster v. Doe on the basis that the CIA Director there was exercising statutory power in firing the employee for security reasons, see § 102(c) of the National Security Act, 50 U.S.C. § 403(c), whereas the Defense Department's use of the Questionnaire rests on a delegation of the President's constitutional power as Commander-in-Chief under article II, section 2. See Dorfmont v. Brown, 913 F.2d 1399, 1404[299 U.S.App.D.C. 265] 05 (9th Cir.1990) (Kozinski, J., concurring), cert. denied, --- U.S. ----, 111 S.Ct. 1104, 113 L.Ed.2d 214 (1991). The Court in Webster v. Doe did not mention any such distinction and its significance is far from evident. The power conferred on the President by the Constitution, we may assume, is more extensive than § 102(c)'s generous grant of authority to the CIA Director to terminate employees in the "interests of the United States." Even if this mattered in cases challenging, on constitutional grounds, discretionary judgments regarding a particular employee's security clearance, such cases are not our concern here. The substantive issues before us relate to the constitutionality of the methods used to gather information on which such judgments presumably will be based. To stretch Egan to cover this case would be to endorse untenable, and far-reaching, restrictions on judicial review of governmental actions. 15 All questions of government are ultimately questions of ends and means. The end may be legitimate, its accomplishment may be entrusted solely to the President, yet the judiciary still may properly scrutinize the manner in which the objective is to be achieved. Suppose the President has unlimited and judicially unreviewable constitutional power to determine which Executive Branch employees will be given access to the nation's secrets. No one would suggest the government therefore could, despite the Fourth Amendment, conduct random searches without warrants in the hope of uncovering information about employees seeking security clearances. Still less would anyone consider such unconstitutional searches and seizures to be immune from judicial review. The government may have considerable leeway to determine what information it needs from employees holding security clearances and how to go about getting it. But a large measure of discretion gives rise to judicial deference, not immunity from judicial review of constitutional claims. Harmon v. Thornburgh, 878 F.2d 484, 491-92 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990), illustrates the point: we there considered but upheld, against a Fourth Amendment challenge, random drug testing of Justice Department employees holding top secret security clearances. United States Info. Agency v. Krc, 905 F.2d 389, 398-99 (D.C.Cir.1990), is similar; we reviewed but rejected Krc's claim that the United States Information Agency deprived him of due process by firing him for security reasons without following proper procedures. See also Dorfmont v. Brown, 913 F.2d at 1402-04; Jamil v. Secretary, Dep't of Defense, 910 F.2d 1203, 1209 (4th Cir.1990); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 570-81 (9th Cir.1990); Hill v. Department of Air Force, 844 F.2d 1407, 1411-12 (10th Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 73, 102 L.Ed.2d 49 (1988); cf. Doe v. Cheney, 885 F.2d 898, 909-10 (D.C.Cir.1989). In none of the cases just cited did the courts refuse to render a decision on the ground that the government's actions were exempt from judicial review. 16 The government further confuses the merits with judicial authority to pass upon them when it argues that most of plaintiffs' contentions are not subject to review because they rest on "generalized privacy claims." Reply Brief for Appellants at 6. That plaintiffs lack any specific constitutional foundation for their claims may be a sufficient reason for rejecting them on the merits. But it is not a reason for refusing to consider them altogether. To hold otherwise would be to approve a system in which courts pass on the legal sufficiency of constitutional arguments in order to determine whether they may pass on their validity, a system in which courts would adjudicate in the guise of not adjudicating. Apart from a wholly frivolous constitutional claim or an immaterial one advanced solely for the purpose of obtaining jurisdiction, the court must decide the merits of the claim (see Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)), unless other considerations unrelated to the merits show the claim to be unsuitable for adjudication. 17 We therefore proceed to consider the two constitutional theories urged in support of the preliminary injunction.[299 U.S.App.D.C. 266] III 18 The narrower of plaintiffs' claims is based on the Fifth Amendment privilege against self-incrimination and is directed at the portion of Question 20 asking employees to disclose illegal drug use or dealing. The district court ruled that plaintiffs had a substantial probability of succeeding on their Fifth Amendment challenge, a prerequisite to the granting of a preliminary injunction. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). The court's opinion on this question of law, an opinion to which we owe no deference (City of Las Vegas v. Lujan, 891 F.2d 927, 931-32 (D.C.Cir.1989)), rested on the possibly incriminating nature of responses to Question 20 and the Questionnaire's general warning that information employees provided may be turned over to "federal, state, local, or foreign law enforcement authorities if the record indicates, on its face or in conjunction with other records, a violation of law...." 19 Why this should have led the court to enjoin the Defense Department from propounding Question 20 is uncertain. There are four individual plaintiffs, each of whom is a longtime civilian employee at an Army facility, but the record contains the declarations of only two of these individuals. Neither reports having invoked his Fifth Amendment privilege in response to Question 20. The other plaintiffs are the National Federation of Federal Employees, a union representing nearly 150,000 federal employees, some of whom presumably work for the Defense Department and hold security clearances, and three of the union's local chapters. There is no indication in the record that any union member refused to answer Question 20 on the basis of the Fifth Amendment privilege. The Chief of the Adjudications Division of the Army's Central Personnel Security Clearance Facility reported in an affidavit that she is unaware of any employee who has asserted the privilege in response to the National Agency Questionnaire. 20 Ordinarily, a person must invoke the privilege in order to gain its advantage. Minnesota v. Murphy, 465 U.S. 420, 427-29, 104 S.Ct. 1136, 1142-43, 79 L.Ed.2d 409 (1984); United States v. Kordel, 397 U.S. 1, 7-10, 90 S.Ct. 763, 766-68, 25 L.Ed.2d 1 (1970). See also United States v. Haldeman, 559 F.2d 31, 94-96 (D.C.Cir.1976) (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). If a witness called to testify "makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself." Minnesota v. Murphy, 465 U.S. at 427, 104 S.Ct. at 1142 ( quoting Garner v. United States, 424 U.S. 648, 654, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370 (1976)); Selective Serv. Sys. v. Minnesota PIRG, 468 U.S. 841, 858, 104 S.Ct. 3348, 3358, 82 L.Ed.2d 632 (1984). The reason is apparent: the Fifth Amendment does not forbid the government from asking questions and it does not forbid the government from taking the answers. What is forbidden is compelling an individual to testify against himself. Even so, "[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying." Gardner v. Broderick, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082 (1968). 21 Like other individuals, government employees enjoy the protection of the privilege against self-incrimination. Yet the government, like private employers, needs to ensure that its employees are faithfully performing their duties. The government therefore may fire employees who refuse, on the basis of their Fifth Amendment privilege, to answer questions concerning the performance of their duties, so long as the employees' answers could not be used against them in a criminal prosecution. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick, 392 U.S. at 278-79, 88 S.Ct. at 1916; Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 284-85, 88 S.Ct. 1917, 1919-20, 20 L.Ed.2d 1089 (1968). For purposes of the Fifth Amendment, the threat of firing or other economic sanctions [299 U.S.App.D.C. 267] may constitute compulsion. But the protection of the privilege extends only to criminal prosecutions. A government employee would not be incriminating himself within the meaning of the Fifth Amendment if his answers could not be used against him in a criminal case. See generally Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 426 F.2d 619 (2d Cir.1970) (Friendly, J.), cert. denied, 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972). 22 Plaintiffs' challenge to Question 20 thus encounters a severe obstacle. Admitting the use of illegal drugs, at least use so recent that the statutes of limitation have not run, would doubtless be incriminating. But are answers to Question 20 compelled? That depends on the consequence of refusing to answer. In Gardner, the police officer invoked the privilege, refused to waive use immunity and, as a result, lost his job. The contractor in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), followed the same course and, by statute, thereby became ineligible for public contracting work. See also Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). Here no one has declined to answer Question 20. Compulsion therefore turns on what the government would do in such a case, rather than on what in fact it has done. One thing more. The constitutional attack on Question 20 is facial. The burden plaintiffs must shoulder is heavy. They must show that Question 20 in all, rather than just some, of its possible applications violates the Fifth Amendment privilege. See Rust v. Sullivan, --- U.S. ----, ----, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991); New York State Club Ass'n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988); United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). 23 As to the consequences of an employee's invoking of the privilege in response to Question 20, the Questionnaire indicates only that an employee's failure to answer any question "may result" in the Department being unable to complete the security reclearance investigation, which "could result" in a denial of reclearance. The extensive regulations governing the Defense Department's security clearance operation reveal nothing further about how the Department would respond to a claim of Fifth Amendment privilege. See 32 C.F.R. pt. 154. The Executive Order requiring agencies to establish personnel security programs is silent on the subject. See Exec. Order No. 10,450, 3 C.F.R. 936 (1949-1953 Comp.). According to an affidavit submitted by the government, civilian Army employees invoking the Fifth Amendment privilege would be evaluated on a case-by-case basis. 24 The most that can be said, therefore, is that some employees invoking the Fifth Amendment might wind up losing their security clearances while others might not. An employee's failure to answer Question 20 may detract from the thoroughness of the security clearance investigation, but this is only one among many factors. "[T]his case is very different from the circumstances before the Court in the Garrity- Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State." Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976). In light of the record before us, it cannot be said that employees confronted with Question 20 are invariably compelled to provide an answer. This in itself is sufficient to defeat the facial attack plaintiffs mount against the question. In at least some of its applications, Question 20 does not violate the Fifth Amendment privilege. 25 Other considerations point in the same direction. Take, for example, an employee who wishes only to avoid disclosing drug use in the distant past. If the state and federal statutes of limitation would bar prosecution, the employee's answer would not be incriminatory and the privilege could not be successfully invoked. See, e.g., In re Folding Carton Antitrust Litigation, 609 F.2d 867, 872 (7th Cir.1979). Question 20, in such instances, obviously would not [299 U.S.App.D.C. 268] run afoul of the Fifth Amendment. Nor would Question 20 implicate the Fifth Amendment when the risk of self-incrimination is not "real and appreciable" but is instead "so improbable that no reasonable man would suffer it to influence his conduct." Brown v. Walker, 161 U.S. 591, 599-600, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1896) (citation omitted). See, e.g., Devine v. Goodstein, 680 F.2d 243, 247 (D.C.Cir.1982) (per curiam). Question 20, in other words, could not possibly be considered unconstitutional as applied to employees who do not reasonably believe their answers would subject them to criminal liability. Question 20 would also survive a Fifth Amendment challenge if the Defense Department responded to an employee's assertion of the privilege by offering use immunity and directing the employee to answer upon pain of losing his security clearance. That the Defense Department does not have regulations spelling out this possible response is not determinative. When incriminating answers are compelled, the Fifth Amendment, of its own force, prevents their use against the individual in criminal proceedings. As Judge Friendly said in Uniformed Sanitation Men, 426 F.2d at 626, on remand from the Supreme Court, "[i]f 'use immunity' thus suffices to permit the discharge of a public employee who refuses to answer questions about his conduct on the ground of self-incrimination, we see no reason why there must be a statute conferring it." 26 We therefore conclude that the district court erred in thinking that plaintiffs had shown a probability of succeeding in their facial attack on the drug use portion of Question 20. For the reasons mentioned it appears highly unlikely that plaintiffs could prevail on their Fifth Amendment theory. IV 27 Plaintiffs' remaining argument is that Questions 18, 19 and 20 of the National Agency Questionnaire violate a constitutional right to privacy. The Supreme Court has described Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), as decisions protecting the "individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). See also Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 455-58, 97 S.Ct. 2777, 2796-98, 53 L.Ed.2d 867 (1977). In Tavoulareas v. Washington Post Co., 724 F.2d 1010, 1019 (D.C.Cir.1984), a panel of this court took Whalen and Nixon to mean that "a litigant's interest in avoiding public disclosure of private information is grounded in the Constitution itself...." Whether the panel's focus on "public disclosure" would advance plaintiffs' argument about disclosure only to government investigators is not worth pondering. The court, sitting en banc, vacated the panel's decision in Tavoulareas, and it therefore has no precedential value. See 737 F.2d 1170 (D.C.Cir.1984). When we return to Whalen and look behind the Supreme Court's general remark, quoted above, we find ambiguity. What "individual interests" receive protection from disclosure? Plaintiffs suggest the interest in avoiding humiliation or embarrassment entailed in the disclosure of personal information. What "personal information" and disclosure to whom? To the government as employer or to the world? However one defines the scope of the protection, what are the provisions in the Constitution that are said to confer it? Cf. Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984). We cannot tell from plaintiffs' brief. It refers to nothing more specific than "[t]he Constitution" as the foundation for this constitutional right. And what of the government's interests in carrying out its constitutional responsibilities? 28 Much to our relief, this case does not require any extended survey of this uncharted terrain. Plaintiffs' second amended complaint presented only a facial challenge to the National Agency Questionnaire.2 As mentioned in the previous section [299 U.S.App.D.C. 269] and as American Library Association v. Barr, 956 F.2d 1178, 1188-89 (D.C.Cir.1992), explains in greater detail, "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). See also Rust v. Sullivan, --- U.S. ----, ----, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991); New York State Club Ass'n v. City of New York, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988). If "some quite straightforward applications" of the law are constitutional, plaintiffs therefore lose. Webster v. Reproductive Health Servs., 492 U.S. 490, 524, 109 S.Ct. 3040, 3059, 106 L.Ed.2d 410 (1989) (O'Connor, J., concurring in part and in the judgment). 29 As the case has progressed thus far, plaintiffs appear to have little chance of prevailing on their privacy theory. For one thing, the record casts doubt on whether they are being forced to reveal the information, and therefore doubt about whether their privacy is being invaded. Even on plaintiffs' theory, questions do not invade privacy, answers do. But the Questionnaire itself informs employees that their compliance is "voluntary." The consequences of an employee's refusing to respond are unclear and, on this record, unknowable. Much will depend on the individual's circumstances and the particular question or questions that remain unanswered. Question 18, for example, calls for arrest records. Despite an employee's recalcitrance, the Defense Department might be able to obtain the same information from other sources. The same is true for some financial data sought in Question 19. On the face of it, the Questionnaire suggests that if the investigation can be completed, nothing detrimental will follow the employee's refusal to cooperate. 30 It is also plain to us that none of the three questions could possibly be considered unconstitutional on their face, even if employees were forced to respond as a condition of retaining their security clearances. Plaintiffs' complaint about Question 18, which seeks information about arrests, is that nonrelevant information may be elicited. Unaccountably, the government does not even cite Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976), holding in the clearest possible terms that no constitutional right of privacy is violated by the disclosure "of an official act such as an arrest." Paul aside, it is clear that answers to Question 18, may reveal highly pertinent information. Consider, for example, a person holding a security clearance who had been arrested but not yet tried. Or take a person with a history of recent arrests for driving while intoxicated who avoided conviction by attending a rehabilitation program. To paraphrase Jefferson, if a man cannot govern himself he cannot be trusted with the government of others. There are, in other words, possible valid applications of Question 18, applications not even plaintiffs contest. The same is true for Questions 19 and 20. Substantial debts, with the attendant financial pressure exerted on employees holding security clearances, or on-going mental health problems are, by anyone's light, important elements of the "[p]redictive judgment," Egan, 484 U.S. at 529, 108 S.Ct. at 825, involved in determining whether a person can be trusted to maintain the nation's secrets. Plaintiffs' quarrel with Questions 19 and 20, like their objection to Question 18, is that the questions sweep too broadly, that they ask for information from the distant past, information with no discernible bearing on present [299 U.S.App.D.C. 270] performance. But in a facial challenge, the fact that there may arguably be some invalid applications is beside the point; what matters is whether there are any valid ones. Here the district court acknowledged the existence of legitimate applications, noting that "the Department may be entitled to some information with respect to some employees." National Fed'n of Fed. Employees, 789 F.Supp. at 434. The court's error was in not recognizing that its conclusion compelled rejection of plaintiffs' claim. 31 One further point deserves mention. Plaintiffs' brief contains several references to "overbreadth." In First Amendment cases, and in First Amendment cases only, the Supreme Court has struck down laws having some valid applications (even to the plaintiffs before the court) on their face because the laws, if allowed to stand, could "inhibit the constitutionally protected speech of third parties." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984). See generally New York v. Ferber, 458 U.S. 747, 766-73, 102 S.Ct. 3348, 3359-63, 73 L.Ed.2d 1113 (1982). The concern underlying the overbreadth doctrine--chilling protected speech--is absent here. See Salerno, 481 U.S. at 745, 107 S.Ct. at 2100; Schall v. Martin, 467 U.S. 253, 268 n. 18, 104 S.Ct. 2403, 2412, n. 18, 81 L.Ed.2d 207 (1984). See also Lutz v. City of York, Pa., 899 F.2d 255, 271 (3d Cir.1990). The Questionnaire asks about arrests, finances, mental health difficulties, and drug and alcohol use. These are not activities within the freedom of speech and, in any event, disclosing information about these subjects could not conceivably deter plaintiffs or their members from engaging in any protected speech. See American Library Ass'n, 956 F.2d at 1190. 32 * * * * * * 33 Because neither of plaintiffs' theories support the preliminary injunction, we vacate the district court's order and remand for further proceedings. HARRY T. EDWARDS, Circuit Judge, concurring: 34 I concur in the judgment of the court and in much of Judge Randolph's opinion. I write separately to stress several points and to explain where I differ with the majority. 35 First, in addressing the claims based on the Fifth Amendment privilege against self-incrimination, we do not reach the question whether the Government may lawfully fire an employee who refuses to answer a question relating to, say, drug or alcohol use. The majority cites Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), for the proposition that an employee may be fired if he refuses, "on the basis of [his] Fifth Amendment privilege," to answer questions "concerning the performance of [his] duties...." In this case, it is far from clear that inquiries about an employee's drug or alcohol use over the course of his "entire life" always will pertain to "the performance of his duties," especially if the alleged conduct was off-duty and the employee has a long history of exemplary service with the Government. We do not, and need not, address whether such information is job-related and, if not, whether an employee has constitutional or statutory protections against discharge for refusing to answer questions relating thereto. 36 Second, as the majority opinion makes clear, compliance with the questionnaire is "voluntary." Furthermore, at least on the record now before us, it is impossible to know whether or how the Government might seek to compel the release of information that an employee may be reluctant to give, because it is highly personal and unrelated in any meaningful way to security clearance. It is hardly insignificant that employees are advised that their compliance is "voluntary," and this surely will have some bearing on Government actions (and judicial assessments thereof) in the future. 37 Third, I find no "ambiguity" in the core principle undergirding the Supreme Court's decision in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), which describes the constitutional right to privacy as protecting the "individual interest in [299 U.S.App.D.C. 271] avoiding disclosure of personal matters...." Id. at 599, 97 S.Ct. at 876 (footnote omitted). The majority is correct in concluding that this case does not warrant a "survey" of the law covering an individual's right to privacy, but this cannot be taken to mean that the right itself is in doubt. I therefore do not join in the questions posed by the majority following what I view as a dubious suggestion that the essential point underlying Whalen is ambiguous. 38 Fourth, I do not read Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), as the majority seemingly does, to say that the Government does not violate an employee's right to privacy if it "forces" the employee (on threat of job loss) to reveal personal information that arguably has no relevance to job performance. Rather, in Paul, the Supreme Court merely held that the right of privacy did not prohibit the State from "publiciz[ing] a [known] record of an official act such as an arrest." Id. at 713, 96 S.Ct. at 1166 (emphasis added). The Court did not say that the State could compel disclosure of personal matters--whether or not job-related--as a condition of continued employment. 39 In a similar vein, I do not accept the majority's example that "driving while intoxicated" is clearly related to a security clearance. The majority supports this example by citing the proposition that "if a man cannot govern himself he cannot be trusted with the government of others." The case law requires more than an epigram to justify revocation of a security clearance; it is common understanding, I think, that many people engage in questionable activity off of the job that in no way impairs their job performance. See, e.g., Hoska v. United States Dep't of the Army, 677 F.2d 131, 138 (D.C.Cir.1982) ("In most security clearance cases, courts have specifically insisted upon a rational nexus between the denial or withdrawal of an individual's security clearance and the individual's ability to protect classified information.") In any event, I do agree that the relevance of these matters must be left for another day. 40 Apart from the foregoing concerns, I concur. SENTELLE, Circuit Judge, concurring: 41 I concur in the opinion of the Court, and write separately (and briefly) only to point out what I understand the Court not to be doing. I do not understand us to be doing any more than passing on the constitutionality of a particular method of information-gathering in the pursuit of national security interests by the Department of Defense. That is to say, I understand us to recognize that we are not positioned to displace the Executive as the decisionmaker in the area of defense. 42 Jurisdiction over an issue does not automatically imbue a judge with the expertise needed to address all its intricacies. Particularly in matters relating to national security, a judge's inclination to substitute his judgment for that of qualified experts in the Executive branch can be pernicious. "If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully." New York Times Co. v. United States, 403 U.S. 713, 728-29, 91 S.Ct. 2140, 2149, 29 L.Ed.2d 822 (1971) (Powell, J., concurring). 43 That is to say, while our constitutional scheme provides judges with the clear responsibility to adjudicate narrowly-drawn constitutional questions, it does not offer us license independently to assess the wisdom or the necessity of internal Department of Defense policies and to pass judgment thereon. Without clear congressional authorization, courts traditionally have demonstrated a reluctance to encroach on Executive prerogative in the area of military and national security affairs. See, e.g., Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Schlesinger v. Councilman, 420 U.S. 738, 757-58, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975); [299 U.S.App.D.C. 272] Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973); Burns v. Wilson, 346 U.S. 137, 142, 144, 73 S.Ct. 1045, 1048, 1049, 97 L.Ed. 1508 (1953); Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). It is not for us, as it was not for the District Court, to justify our conclusions by inferences drawn either from world events--such as the breakup of the Soviet Union weighed by the District Court in determining the public interest component of the preliminary injunction--or from prior agency policy, that is, the Defense Department's earlier failure to conduct periodic reinvestigations for secret clearances. Such bases for judicial decisions run perilously close to political judgments about foreign policy, which, under Article II of the Constitution, are committed to the Executive alone. 44 I do not understand our decision today to abandon our tradition of deference to the Executive on matters regarding national security and note that the determination of trustworthiness is an "inexact science at best," Adams v. Laird, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970). 45 As I do not understand the Court's opinion today to be inconsistent with these considerations, I concur. 1 Plaintiffs also press on appeal a constitutional privacy challenge to the drug use portion of Question 20. Although this claim was not raised below until the filing of plaintiffs' second amended complaint, and was not decided by the district court, we will treat it as properly before us for the reasons just stated in the text The remainder of Question 20 asks for information regarding the employee's abuse of alcohol leading to the loss of a job, disciplinary action, arrest or treatment for alcoholism. In the district court plaintiffs raised no constitutional claim regarding this part of Question 20; their allegations rested entirely on the Privacy Act. The district court's discussion of this subject consists merely of a footnote describing the alcohol question. 789 F.Supp. at 434 n. 8. Nevertheless, for the reasons given in regard to Question 19, we will treat the constitutional challenge to this portion of Question 20 as if it were properly before us. 2 The introduction to plaintiffs' second amended complaint states: "The NAQ includes questions which go beyond the scope of inquiry allowed by the Constitution of the United States and applicable regulations." The complaint's factual allegations are not directed to the particular circumstances of any individual plaintiff. The complaint uses impersonal terminology such as "an employee" or "employees" (e.g., "Question 19 requires an employee ...") rather than the term "plaintiffs." Count VI, which recites plaintiffs' constitutional privacy claim, consists entirely of general allegations; nothing is mentioned about any of the individual plaintiffs. The gravamen of the complaint is not "the manner in which [the statute] had been administered in practice." Bowen v. Kendrick, 487 U.S. 589, 601, 108 S.Ct. 2562, 2570, 101 L.Ed.2d 520 (1988)

Filed 3/25/14 P. v. White CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B248505 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA116183) v. BOBBY JAMES WHITE, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Dismissed in part; affirmed in part. California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.  Bobby James White appeals from the judgment entered following his conviction pursuant to a no contest plea to two counts of robbery. (Pen. Code, § 211.)1 Appellant also admitted to a gang allegation (§ 186.22, subd. (b)(1)(C)) and an allegation of personal use of a firearm (§ 12022.5, subd. (a)). Appellant challenges his 20-year sentence, arguing that the 10-year enhancement that was imposed pursuant to the gang allegation was not supported by the evidence. However, appellant did not obtain a certificate of probable cause and therefore cannot challenge his sentence, which was part of the negotiated plea agreement. (See § 1237.5;2 People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson) [“Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement. [Citations.]”]; People v. Panizzon (1996) 13 Cal.4th 68, 78 [holding that the certificate requirement applies where the sentence was “part and parcel of the plea agreement he negotiated with the People”].) We therefore dismiss the appeal as to his challenge to his sentence and affirm in all other respects. 1 All further statutory references are to the Penal Code unless otherwise specified. 2 Section 1237.5 provides as follows: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” 2  FACTUAL AND PROCEDURAL BACKGROUND3 On July 23, 2010, around 2:00 p.m., Hema Vijaykumar was working at the Highglow jewelry store in the City of Artesia. As she was exiting the store for a lunch break, appellant and three other men got out of a car, pointed a gun at her, motioned her back into the store, entered the store, and began taking jewelry. A passing driver saw the men get out of the car with guns before they entered the jewelry store. She called the police and later identified the men to the police. After appellant and the other men left the jewelry store, law enforcement officers pursued their car and placed them under arrest after their car crashed. The officers recovered jewelry from the car, and the victim identified the jewelry. Detective Anthony Valenzuela testified that the video from the jewelry store showed one of the suspects wearing a black hat with an emblem on it. A black Toronto Bluejays hat was recovered at the car. Detective Valenzuela testified that a hat like that is “specific to the gang known as the PJ Watts Crips.” Detective Francis Coughlin of the gang suppression unit testified that the PJ Watts Crips affiliated themselves with the Toronto Bluejays. Detective Coughlin opined that appellant was a member of the gang based on field identification cards indicating that White had a gang moniker and was associated with gang members in 2007 and 2008. Detective Coughlin further opined that the crime was committed for the benefit of a gang. Appellant and three codefendants were charged in an amended information with five counts of second degree robbery. The information further alleged that a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)) and was armed 3 The facts are taken from the preliminary hearing transcript. 3 with a firearm (§ 12022, subd. (a)(1)), that the offense was committed for the benefit of a gang (§ 186.22, subd. (b)(1)(C)), and that appellant personally used a firearm (§ 12022.5, subd. (a)). Appellant pled not guilty to all the charges and denied the allegations. Appellant made a Marsden motion, seeking to replace his counsel, complaining that his attorney did not visit him or answer his telephone calls. (People v. Marsden (1970) 2 Cal.3d 118.) The court explained to appellant that defense counsel was very experienced, but that the evidence against him was very strong, and the plea offer from the People was good in light of the 50-year exposure he faced. The court thus denied the Marsden motion. Appellant entered into a plea agreement pursuant to which he pled no contest to two of the robbery counts and admitted to the gang allegation (§ 186.22, subd. (b)(1)(C)) and the allegation that he personally used a firearm (§ 12022.5, subd. (a)). The agreement provided for a term of 20 years in state prison. The court warned appellant of the consequences of the plea and advised him of his rights to a jury trial, to confrontation, and against self-incrimination. Appellant waived his rights, withdrew his not guilty pleas, entered no contest pleas to two counts of second degree robbery, and admitted the firearm and gang allegations. The court found that appellant “expressly, knowingly, understandingly and intelligently” waived his constitutional rights and that the plea was free and voluntary, and therefore accepted the no contest plea and the admission to the allegations. The court sentenced appellant to the upper term of 5 years as to count 2, plus 10 years for the gang allegation and four years for the firearm allegation, and one- third the midterm of three years as to count 3, for a total of 20 years. The 4 remaining counts and allegations were dismissed pursuant to the plea agreement. Appellant’s request for a certificate of probable cause was denied. After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. On October 17, 2013, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. On December 4, 2013, appellant filed a supplemental brief, raising several contentions: the gang allegation was not proven; his attorney failed to “fight” the allegation; the trial court denied his request for new counsel; and his 20-year sentence constitutes cruel and unusual punishment because he had no prior felony convictions and one misdemeanor conviction. DISCUSSION As stated above, a certificate of probable cause is required for an appeal challenging the validity of a plea. (People v. Brown (2010) 181 Cal.App.4th 356, 359.) “When the issue on appeal challenges the defendant’s sentence following a guilty plea or plea of nolo contendre, the determining factor in deciding whether the issue arose before entry of the plea such that a certificate of probable cause is required is whether the plea agreement specifies a particular sentence or whether it specifies a sentence range.” (People v. Vargas (2007) 148 Cal.App.4th 644, 651 (Vargas).) Appellant’s challenge to the length of his sentence is based on his argument that the gang enhancement was not proven. “The same restrictions on appellate issues apply after a no contest plea [citations] and the admission of an 5 enhancement [citation].” (People v. Voit (2011) 200 Cal.App.4th 1353, 1364 (Voit).)4 The plea agreement here specified a particular sentence of 20 years. (Vargas, supra, 148 Cal.App.4th at p. 651.) “[A]n agreed-upon aspect of the sentence cannot be challenged without undermining the plea agreement itself.” (Johnson, supra, 47 Cal.4th at p. 678.) Appellant therefore may not challenge his sentence. The appropriate remedy accordingly is to dismiss the appeal as to his challenge to his sentence. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1099 [explaining that the appellate court “generally may not proceed to the merits of the appeal, but must order dismissal thereof” where the defendant has not obtained a certificate of probable cause].) Appellant argues that his attorney was ineffective for failing to adequately “fight” the gang allegation. Appellant’s argument does not relate to “‘proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed,’” but instead pertains to the validity of his plea. (People v. Richardson (2007) 156 Cal.App.4th 574, 596.) His ineffective assistance claim accordingly cannot be raised on appeal. (See id. at pp. 596-597 4 Voit relied on People v. Lobaugh (1987) 188 Cal.App.3d 780 (Lobaugh) to hold that the admission of an enhancement was not cognizable on appeal after a no contest plea. (Voit, supra, 200 Cal.App.4th at p. 1364.) Lobaugh’s analysis was criticized by the California Supreme Court in People v. Maultsby (2012) 53 Cal.4th 296, 302-303 (Maultsby). However, Maultsby also distinguished Lobaugh on the basis that the defendant in Lobaugh pled guilty to the substantive charge, whereas the Maultsby defendant was convicted by jury of the substantive offense and admitted only to an enhancement allegation. (Id. at pp. 298, 302.) Thus, Lobaugh’s holding that a certificate of probable cause is required to challenge an enhancement allegation where a defendant enters a guilty or no contest plea to the substantive charge remains good law because the guilty or no contest plea “alone triggers section 1237.5’s requirement that a defendant obtain a certificate of probable cause.” (Id. at p. 302.) 6 [pre-plea ineffective assistance of counsel claim cannot be raised without certificate of probable cause].) “Under some circumstances, ineffective assistance of counsel can be a constitutional question going to the legality of the proceedings. [Citation.]” (People v. Marlin (2004) 124 Cal.App.4th 559, 567.) However, even if appellant’s claim is cognizable on appeal, our courts have “‘repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.’ [Citations.]” (People v. Jones (2003) 30 Cal.4th 1084, 1105.) Thus, “‘“[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citation.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) The record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In fact, the record indicates that defense counsel vigorously challenged the gang allegation. Defense counsel objected to Detective Coughlin’s reliance on statements ascribed to appellant in field identification cards, objected to the People’s hypothetical, and cross-examined Detective Coughlin in detail about the circumstances alleged in the field identification cards. We therefore reject appellant’s claim of ineffective assistance. Appellant also challenges the trial court’s denial of his Marsden motion. In Lobaugh, supra, the court concluded that the defendant, who did not obtain a certificate of probable cause, was precluded from raising a pre-plea Marsden issue on appeal. (Lobaugh, supra, 188 Cal.App.3d at p. 786; People v. Lovings (2004) 118 Cal.App.4th 1305, 1312 [finding that the appellant’s guilty plea precluded him 7 from raising a pre-plea Marsden claim, despite having obtained a certificate of probable cause].) Even if appellant’s challenge to the denial of his Marsden motion is cognizable on appeal, the trial court did not abuse its discretion in denying his motion. “‘[W]hen the defendant in some manner moves to discharge his current counsel’ [citation], . . . ‘the trial court must afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel.’ [Citation.] After hearing from the defendant, a trial court is within its discretion in denying the motion unless the defendant establishes substantial impairment of his right to counsel. [Citation.] On appeal we review the denial for an abuse of discretion. [Citation.]” (People v. Vera (2004) 122 Cal.App.4th 970, 979.) The trial court here afforded appellant the opportunity to express the specific reasons he believed he was not being adequately represented. Appellant did not establish substantial impairment of his right to counsel. The court did not abuse its discretion in denying the Marsden motion. The minute order and abstract of judgment differ slightly from the court’s oral pronouncement as to the fines and fees only. The court ordered appellant “to pay $280 to the victim restitution fund, a $40 court operations assessment fee, a $30 criminal conviction fee, and a $10 crime prevention fee.” The court imposed and stayed a $280 parole revocation fine. In addition to the $280 victim restitution fine and the $280 parole revocation fine, the minute order and abstract of judgment indicate the imposition of a $38 fine pursuant to section 1202.5, an $80 court operations assessment, and a $60 conviction assessment. The court operations assessment and criminal conviction assessment are to be imposed per conviction. (§ 1465.8, subd. (a)(1)); Gov. Code, 8 § 70373, subd. (a)(1)). Appellant suffered two convictions. These fees are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.) The minute order and abstract of judgment therefore correctly indicate a court operations assessment fee of $80 and a criminal conviction assessment of $60. Section 1202.5 provides, in pertinent part, that a defendant convicted under section 211 shall pay “a fine of ten dollars ($10) in addition to any other penalty or fine imposed.” The $10 fine is subject to additional assessments, penalties, and a surcharge. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528 (Castellanos).) The minute order and abstract of judgment correctly note that the additional charges result in a total assessment of $38.5 (See id. at pp. 1528-1530 [discussing the additional charges].) “We realize the general rule is that the oral pronouncements of the court are presumed correct. [Citation.] Nonetheless, under these circumstances, we will deem the minute order and the abstract of judgment to prevail over the reporter’s transcript. [Citations.] When the record is in conflict and cannot be harmonized, ‘“. . . that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence . . . .”’ [Citation.]” (People v. Thompson (2009) 180 Cal.App.4th 974, 978.) To the extent that the reporter’s transcript differs from the minute order and abstract of judgment, it is “of no effect.” (Ibid.) We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate 5 One of the penalties discussed in Castellanos is a $1 deoxyribonucleic acid state- only penalty required by Government Code section 76104.7, subdivision (a). (Castellanos, supra, 175 Cal.App.4th at pp. 1529-1530.) Pertinent to this appeal, this penalty was increased to $3, effective June 10, 2010. (Stats. 2009-2010, 8th Ex.Sess., ch. 3, § 1.) The total assessment therefore is $38. 9 review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.) DISPOSITION Appellant’s challenge to his sentence, which was part of his negotiated plea, is dismissed. In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS WILLHITE, J. We concur: EPSTEIN, P. J. EDMON, J.* *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10 

839 F.2d 669 Diane C. SHIFLETT, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent. No. 87-3391. United States Court of Appeals,Federal Circuit. Feb. 8, 1988. Edward L. Hogshire, Buck, Hogshire & Gouldman, Ltd., Charlottesville, Va., argued, for petitioner. Robert A. Reutershan, Dept. of Justice, Washington, D.C., argued, for respondent. Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan, Asst. Director and Hillary A. Stern, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., were on the brief, for respondent. Also on the brief were Stephen E. Alpern, Associate Gen. Counsel and Alice L. Covington, Office of Labor Law, U.S. Postal Service, Washington, D.C., of counsel. Before FRIEDMAN and MAYER, Circuit Judges, and SKELTON, Senior Circuit Judge. SKELTON, Senior Circuit Judge. The final decision of the Merit Systems Protection Board (MSPB or Board), 33 M.S.P.R. 189, reversing the initial decision of the administrative judge, and holding that Diane C. Shiflett (petitioner) did not show good cause for waiver of time limit for filing a petition for appeal, and dismissing the appeal as untimely filed, is reversed and remanded. 1 Petitioner was a temporary trainee distribution clerk in the Charlottesville, Virginia, post office, when on July 14, 1978, she was removed from her position due to her inability to meet the physical demands of the position. She filed a claim for compensation benefits in June 1978, with the Office of Workers' Compensation Programs of the Department of Labor (OWCP). On June 6, 1985, the OWCP awarded her a lump sum payment covering the period from July 14, 1978, the date of her removal, to January 14, 1981, the date her physician stated she would be able to work. She orally contacted Mr. Tommy Thompson, personnel officer of the Charlottesville postal service, on May 19, 1985, and requested reinstatement. Mr. Thompson denied her request, but did not mention her appeal rights to the MSPB. On the same day she wrote a letter to Ms. Shirley McDonald, MSC/MGR Postmaster at Charlottesville asking to be reinstated. Ms. McDonald denied the request on May 19, 1985, in a letter of that date to petitioner. In her denial letter, Ms. McDonald did not mention any appeal rights available to petitioner from the decision denying her reinstatement. In particular, the decision letter did not advise petitioner of her right to appeal to the MSPB from the agency's denial of reinstatement under 5 C.F.R. Sec. 353.308(a), nor did it give petitioner notice of her appeal rights to the Board as required by 5 C.F.R. Sec. 1201.21. In fact, the denial letter did not in any way mention a possible appeal by petitioner nor advise her how to go about it. As discussed in detail below, this omission of duty by the United States Postal Service (respondent) was a violation of the regulations. Furthermore, the denial letter misled petitioner by telling her that she could not be reinstated more than three years after her separation on July 14, 1978. 2 After the respondent denied reinstatement of petitioner on May 29, 1985, petitioner, having no knowledge how to appeal the denial decision, sought help from Mr. Fred Goetz, who was the local shop steward of the American Postal Workers Union (APWU) to which petitioner belonged. Mr. Goetz, acting as the union representative of petitioner, filed a grievance for her under the applicable negotiated grievance procedure. This grievance was processed through steps one, two and three of the arbitration procedure and was denied at each step. The decision of respondent at step three of the grievance proceeding contained the following statement: 3 Specifically, 5 C.F.R. Sec. 353 via the MSPB remains the appropriate means of appeal regarding reinstatement rights of an individual who has incurred an occupational illness but who is now employable. This grievance is therefore denied. 4 Notice of this decision in the grievance proceeding was sent to the National Business Agent of the national office of the union in another state (Parkersburg, West Virginia) on August 19, 1985, and he forwarded a copy of the decision to the Charlottesville Local APWU on September 5, 1985. The union attempted to appeal the grievance to step four, but the arbitration committee ruled that it did not have jurisdiction under the negotiated grievance procedure and dismissed the appeal. Thereafter, on April 21, 1986, petitioner filed an appeal with the MSPB from the respondent's May 29, 1985, denial of her reinstatement request. In her appeal, petitioner alleged that she had good cause for her late filing and asked the Board to waive the time limit for filing the appeal. 5 The case was referred to an administrative judge who found after a hearing that petitioner had shown good cause [under 5 C.F.R. Sec. 1201.12] for waiving the time limit [of 5 C.F.R. Sec. 1201.22(b) ] for filing the petition because the agency failed to provide petitioner with any notice of her appeal rights as required by 5 C.F.R. Sec. 353.308(a). The administrative judge reversed the decision of the agency and ordered it to make reasonable efforts to restore petitioner to a position for which she was qualified, taking into consideration her limitations as a partially recovered employee, together with back pay and benefits, if appropriate, in accordance with 5 C.F.R. Sec. 550.805. 6 The respondent petitioned the full Board for review of the initial decision. The Board reversed the decision of the administrative judge, with one member dissenting. The Board held that petitioner had failed to show good cause for a waiver of the time limit for filing a petition for appeal with the Board even though the Board admitted that the agency failed to provide petitioner with any notice of her right to appeal to the Board as required by 5 C.F.R. Sec. 353.308(a) and 5 C.F.R. Sec. 1201.21. The main thrust of the Board's decision was that petitioner was not diligent in filing her appeal until eight months after her union representative was given a copy of the above statement in the decision in the different grievance proceeding. 7 There can be no question that the regulations required the respondent to give petitioner a notice in writing of her right to appeal to the Board at the time the denial decision was issued, as provided in 5 C.F.R. Sec. 353.308(a), and further required it to comply with 5 C.F.R. Sec. 1201.21, and to send a copy of the notice to the Board. None of these requirements were complied with by the agency. 5 C.F.R. Sec. 353.308(a) provides: 8 Sec. 353.308 Notice of right to appeal. 9 (a) When an agency refuses to restore, or determines that it is not feasible to restore an employee under the provisions of law and this part, it shall notify the employee in writing of the reasons for its decision and of his or her right to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations. The agency shall comply with the provisions of Sec. 1201.21 of this title and shall forward a copy of the notice to the Board. 10 5 C.F.R. Sec. 1201.21 sets forth the contents of the notice that must be given to an employee under 5 C.F.R. Sec. 353.308(a) as to his or her appeal rights as follows: 11 Sec. 1201.21 Notice of appeal rights. 12 When an agency issues a decision notice to an employee on a matter appealable to the Board the agency shall provide: 13 (a) Notice of the time limits for appealing to the Board, the requirements of Sec. 1201.22(c), and the address of the appropriate Board office for filing the appeal; 14 (b) A copy or access to a copy of the Board's regulations; 15 (c) A copy of the appeal form set forth in appendix I of this part; 16 (d) Notice of any applicable rights to a grievance procedure; and 17 (e) Notice of the opportunity to request the voluntary expedited appeals procedure set forth at Secs. 1201.200 through 1201.222, including a description of the procedure, as set forth in the Attachment to the appeal form. 18 None of this information or material was given to petitioner by the agency. 19 The place and time for filing an appeal with the Board are set forth in 5 C.F.R. Sec. 1201.22 as follows: 20 Sec. 1201.22 Filing of petitions for appeal and response. 21 (a) Place of filing. Petitions and responses shall be filed at the appropriate Board regional office. (See Sec. 1201.4(e).) 22 (b) Time of filing. A petition for appeal must be filed during the period beginning with the day after the effective date of the action being appealed until not later than 20 days after the effective date. A petition for appeal from a final or reconsideration decision which does not set an effective date must be filed within 25 days of the date of the issuance of the decision. (See Sec. 1201.3(a), (5), (6), (7), (12), (13), (14), (15), (16), (17), and (18) of this Part for matters covered.) A response to a petition for appeal must be filed within 20 days of the date of the Board's acknowledgment order. The date of a filing by mail shall be determined by the postmark date; if no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt. If the filing is by personal delivery, it shall be considered filed on the date it is received in the regional office. 23 It will be noted that the above regulation provides, among other things, that an appeal from a final decision of an agency which does not set an effective date must be filed within 25 days of the issuance of the decision. If an effective date is contained in the decision, the appeal must be filed within 20 days of the issuance of the decision. The 25-day provision applies to the instant case, because no effective date was set forth in the agency's denial decision. Therefore, petitioner was required by the regulations to file her appeal to the Board within 25 days of the issuance of the agency's final decision on May 29, 1985. The method of computing the number of days for filing an appeal with the Board is prescribed in 5 C.F.R. Sec. 1201.23 as follows: 24 Sec. 1201.23 Computation of time. 25 To compute the number of days for filing, the first day counted shall be the day after the event from which the time period begins to run, and the last day of filing shall be included in the computation. If the last day for filing falls on a Saturday, Sunday, or Federal holiday, the first working day thereafter shall be the last day for timely filing. 26 Example: If an employee receives a decision notice which is effective on June 1, the 20 days for filing starts to run on June 2. The filing must be made by June 21. If June 21 is a Saturday, the last day for filing would be Monday, June 23. 27 The petitioner did not file her appeal within the 25-day limitation period after May 29, 1985, and instead filed it on April 21, 1986. Consequently, her filing was late. She contended before the Board that she had good cause for the untimely filing, and moved the Board for a waiver of the time limit in accordance with 5 C.F.R. Sec. 1201.22(c). The Board denied the motion and dismissed the appeal as untimely. Petitioner filed a timely appeal to this court. The only issue before us is whether the petitioner had good cause for her late filing and by reason thereof the Board abused its discretion in refusing to waive the time limit for the late filing. Both the administrative judge and the Board mistakenly considered the issue in the case to be whether or not petitioner showed good cause for "waiver of the time limit for filing her appeal;" whereas, the applicable regulation (5 C.F.R. Sec. 1201.22(C)(1) and (2) makes it very clear that the issue is "good cause for the untimely filing." The regulation provides: 28 (c) Timeliness of petitions for appeal. 29 (1) Any party who files a petition for appeal outside a time limit set by statute, regulation, or order of a presiding official, must file with the petition a motion for waiver of the time limit. The motion must contain evidence and argument showing good cause for the untimely filing. Such motions may be granted or denied without providing other parties the opportunity of response, in the presiding official's discretion. 30 (2) If a party fails to file a motion for waiver as provided in paragraph (c)(1), the presiding official or the Board may decide on the basis of the existing record whether there was good cause for the untimely filing or provide the party an opportunity to show cause why the appeal should not be dismissed as untimely. 31 (Emphasis supplied). 32 While the result may be the same, there is a difference between the two issues. Good cause for an untimely filing is a question of fact which must be proven by the petitioner; whereas, a waiver of the time limit for an appeal is a matter of grace which the Board grants or denies, in the interest of justice, and in the exercise of its discretion, considering all the facts and circumstances of the case. 33 The critical and controlling fact in this case is not the alleged lack of diligence on the part of the petitioner, but the flagrant violation of the regulations by the respondent in failing to give petitioner notice of her appeal rights in the form and manner prescribed by the regulations at the time the denial decision was issued on May 29, 1985, or any time thereafter. 34 It is well established that valid regulations have the force and effect of laws. The respondent does not contest the validity of the regulations in this case. There is no question but what respondent was required by law to comply with the regulations. This it wholly failed to do. In fact, the respondent never furnished petitioner information about her appeal rights in the form and manner required by the regulations at any time during the period from the date of the denial decision on May 29, 1985, up to the time the appeal was filed on April 21, 1986. 35 On page 9 of respondent's brief there appears the following statement: 36 As noted above, the record establishes that on May 29, 1985, the Postal Service denied petitioner's request for reinstatement. In accordance with 5 C.F.R. Sec. 1201.22(b), Ms. Shiflett's petition for appeal should have been filed within twenty-five days of the date of that decision. 37 It appears by this statement that the respondent requires strict compliance with the regulations by the petitioner, while at the same time it violates the regulations with impunity. We cannot approve such a one-sided application of the law to the facts of this case. 38 If the respondent had complied with the regulations at the time of the denial decision by giving petitioner notice of her appeal rights as it was required to do, petitioner would have had in her possession the following information, instructions and materials: 39 (a) Notice that she had the right to appeal to the Board, a copy of which would have been forwarded to the Board. 40 (b) Notice of the time limit for appealing to the Board. 41 (c) The address of the appropriate Board office where the appeal could be filed, which is shown by Appendix II to 5 C.F.R. Sec. 1201 to be Regional Director, Merit Systems Protection Board, Philadelphia Regional Office, U.S. Customhouse, Room 501, Second and Chestnut Streets, Philadelphia, Pa., 59106-2904. 42 (d) A copy of the Board's regulations. 43 (e) A copy of a printed appeal form with blanks to be filled in for an appeal to the Board, which form is shown in Appendix I, Part 1201 of 5 C.F.R. Sec. 1201.22(c). This form contains full instructions on how to appeal to the Board. 44 (f) Notice that an appeal must be filed within 25 days of the date of the decision appealed from, since it does not set an effective date. 45 (g) Instructions how to compute the 25-day limitation period. 46 In our opinion, if the respondent had furnished petitioner with this information and these instructions and materials, the petitioner would have, in all likelihood, filed a timely appeal with the Board. By wrongfully failing to give petitioner a notice of her appeal rights, the respondent effectively contributed to petitioner's failure to file a timely appeal, or, perhaps, even caused such untimely filing altogether. This is so, because neither the petitioner nor her union representative had any knowledge during the 25-day limitation period, when the appeal was supposed to have been filed, that the proper procedure was to file an appeal with the Board, much less how to do it. 47 The respondent contends that the copy of the statement in the decision in the grievance proceeding that was furnished to the union was notice by the respondent to the petitioner of her appeal rights. We do not agree. We quote the statement again to show in detail that it was not in any way the notice respondent was required to give to petitioner as to her appeal rights. The statement says: 48 Specifically, 5 C.F.R. 353 via the MSPB remains the appropriate means of appeal regarding reinstatement rights of an individual who has incurred an occupational illness but who is now employable. This grievance is therefore denied. 49 (Emphasis supplied). 50 This statement was not a notice from respondent to the petitioner of her appeal rights for many reasons. In the first place, it was not issued by the respondent in the instant case, but was issued as a part of its decision in the grievance proceeding, which was a different proceeding from that in the case before us. In the next place, the statement did not mention petitioner's reinstatement case. It was a general statement that was limited to the decision in the grievance case to show lack of jurisdiction of the grievance complaint. Also, the statement nowhere states that the petitioner had the right to appeal to the Board from the denial decision. Furthermore, the statement does not comply with a single provision of 5 C.F.R. Sec. 353.308(a) and 5 C.F.R. Sec. 1201.21 that is required to be included in a notice of appeal rights. For instance, it does not give notice to petitioner of the time limits for appealing to the Board, nor the address of the appropriate Board office for filing her appeal, nor how to compute the time within which an appeal must be filed. Furthermore, it did not attach nor enclose a copy of the Board's regulations nor a copy of the printed appeal form with instructions how to use it for an appeal. We conclude that the statement does not meet the requirements of the notice of appeal rights the respondent was required to give petitioner, and, therefore, it is insufficient as such notice. 51 It appears from all of these facts that the respondent wholly failed to give the required notice to petitioner of her appeal rights, either at the time of the denial decision (which it admits), or at any time thereafter up to the time she filed her appeal with the Board. This failure was not harmless error. 52 We hold that the failure of the respondent to give notice to petitioner of her appeal rights constituted good cause for the late filing by petitioner of her appeal. An agency must follow all applicable procedures. See McCormack v. United States, 204 Ct.Cl. 371 (Ct.Cl.1974); Yuni v. MSPB, 784 F.2d 381 (Fed.Cir.1986); Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); and Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). The holding of the Board that the petitioner failed to show good cause for her late filing was arbitrary and capricious and therefore constituted an abuse of discretion. 53 The respondent has spent a great deal of time in arguing that the petitioner is responsible and accountable for omissions of duty by her union representative. This argument misses the point and is unpersuasive. This is so, because the critical and controlling omission in this case was not that of the union representative, but the omission of the respondent in failing to give petitioner notice of her appeal rights as required by law. 54 We are mindful of the wide discretion the Board has in granting or denying a waiver of the time limit for filing an appeal. Nevertheless, in view of the violation of the regulations by the respondent in failing to give petitioner notice of her appeal rights, we conclude that the Board abused its discretion in denying petitioner a waiver of the time limit for filing her appeal. 55 We conclude further that under all the facts and circumstances in this case, in the interest of justice, petitioner is entitled to a hearing before the Board on the merits of her case. Accordingly, we reverse and remand the case for such hearing. 56 REVERSED AND REMANDED. 57 MAYER, Circuit Judge, dissenting. 58 There is no question the United States Postal Service (Service) violated 5 C.F.R. Secs. 353.308 and 1201.21 when, in a May 29, 1985, letter denying Shiflett's request to be reinstated, it failed to inform her of her appeal rights to the Merit Systems Protection Board (Board). But the Board did not hold that against her; it treated the appeal period, 5 C.F.R. Sec. 1201.22(b), as not beginning until August 19, 1985. That was the day the national union, her authorized representative, received notice in a grievance decision that the proper appeal avenue was through the Board. 59 This court has set out the rule that "waiver of the time limit for appealing is a matter committed to the Board's discretion and this court will not substitute its own judgment for that of the Board.... Our review of Board cases in which timeliness is at issue is limited to whether the Board's decision not to waive the regulatory time limit was arbitrary, an abuse of discretion or otherwise not in accordance with law." Rowe v. Merit Systems Protection Board, 802 F.2d 434, 437 (Fed.Cir.1986). 60 In this type of case, the "critical element ... is that the employee acted promptly and within the allowable time limits once he was aware of the basis of his claim." Gordy v. Merit Systems Protection Board, 736 F.2d 1505, 1508 (Fed.Cir.1984); Casey v. Merit Systems Protection Board, 748 F.2d 685, 686 and note (Fed.Cir.1984). Notwithstanding the failure to tell Shiflett of her appeal rights, she has not met this requirement because her union representative did have notice on August 19, 1985, but she did not file an appeal with the Board until eight months later. In Gordy, the petitioner was apprised of his right to appeal a reclassification decision to the Office of Personnel Management or to his department. He was not told that if he considered the reclassification to be a reduction in force, the appeal should go to the Board. Thereafter, he became aware that his appeal should properly go to the Board, but did not file it for more than three months. This court confirmed that his appeal was untimely. 736 F.2d at 1508. 61 Because the August 19, 1985, decision sent to the national union was not sent to her local union representative, Shiflett says it did not constitute notice to her. But the record shows the national union, not just her local shop steward, was her authorized representative. Notice to the national union is sufficient to put her on notice and commence the appeal period. Gragg v. United States, 717 F.2d 1343, 1346 (Fed.Cir.1983) (notice received by union official, although not petitioner's designated union representative, is equivalent to receipt by petitioner); Johnson v. Department of Treasury, 721 F.2d 361, 365 n. 10 (Fed.Cir.1983); see Link v. Wabash Railroad Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962). In any event, the local union representative was aware of petitioner's appeal rights to the Board all along. On June 18, 1985, he filed a step two grievance which stated, "Appeal rights are also provided for under 5 C.F.R. 353." Not only that, but a copy of the August 19 notice was forwarded to him on September 5, 1985. So Shiflett's argument that she and her local representative were unaware of her appeal rights to the Board from "the inception of the grievance and through its progression through Step Three" is inaccurate. 62 "It is well settled that a person is bound by the consequences of his representative's conduct, which includes both his acts and omissions." Rowe, 802 F.2d at 437; see Link, 370 U.S. at 633, 82 S.Ct. at 1390. In Whitaker v. Merit Systems Protection Board, 784 F.2d 1109, 1110 (Fed.Cir.1986), the petitioner's designated union representative elected to pursue arbitration instead of appealing to the Board and this court held the petitioner bound by the decision in spite of his contention that he had not personally chosen arbitration. "Having selected the union as his representative, the petitioner is bound by its actions." Massingale v. Merit Systems Protection Board, 736 F.2d 1521, 1523 (Fed.Cir.1984). In Duncan v. Merit Systems Protection Board, 795 F.2d 1000 (Fed.Cir.1986), a non-lawyer union representative gave the petitioner poor advice which prevented him from having a hearing on the merits of his case. But there was no relief from this result because "federal personnel are bound by the actions of their freely selected representatives or agents." Id. at 1003. So, too, should Shiflett be bound by her union's failure to inform her of her right to appeal. The initial failure of the Service to advise her of her rights was cured by the August 19 notice to her representatives who need only have referred to the specific regulation cited in it for all the information needed to file the appeal. 63 In Rowe, the petitioner was told of his right to either appeal his removal to the Board within 20 days or file a grievance within 30 days. His attorney filed an appeal to the Board four days late but within the 30-day limit which applied to the grievance. The court said the petitioner was bound by the actions of his attorney in filing too late even though he had relied on him in good faith. 802 F.2d at 437. The court observed that " 'it was his head that was on the chopping block,' and not his attorney's. He had a personal duty to monitor the progress of his appeal at all times and not leave it entirely to his attorney." Id. at 438. The same is true here. It is unfair and encourages litigation to make exceptions to the rules that bind everyone else when for one reason or another a case strikes the court as particularly sympathetic.

FILED NOT FOR PUBLICATION JUN 22 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT AZUCENA PEREZ MARTINEZ, No. 07-70458 Petitioner, Agency No. A095-451-427 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 9, 2010 Pasadena, California Before: TROTT and W. FLETCHER, Circuit Judges, and BREYER,** District Judge. Azucena Perez Martinez (“Perez”), a native and citizen of Mexico, entered the United States without inspection in 1989, at the age of thirteen. She petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Charles R. Breyer, United States District Judge for the Northern District of California, sitting by designation. reconsider the denial of her motion to reopen a final order of removal. The BIA denied the motion to reconsider as untimely. We have jurisdiction to review that denial under 8 U.S.C. § 1252(a), and we deny the petition in part and dismiss it in part. In 1992, Perez’s mother, a Legal Permanent Resident, filed for and was granted an I-130 Petition for Alien Relative for Perez. However, because no visa was immediately available, Perez could not adjust status at that time. In 2002, Perez filed an application for asylum, and was placed in removal proceedings. She attended an initial hearing with counsel and applied for cancellation of removal. She then failed to appear at her merits hearing scheduled for March 27, 2003, and the Immigration Judge (“IJ”) entered an order of removal in absentia. She filed a pro se motion to reopen on May 6, 2004, which the IJ denied as untimely filed. See 8 U.S.C. § 1229a(b)(5)(C) (providing 180-day time limit for filing a motion to reopen an in absentia removal order except where alien did not receive notice). She appealed to the BIA, which dismissed the appeal. She did not petition for review of that decision, but instead filed a series of motions to reconsider and reopen. The BIA denied each motion—seven in all—as untimely or number- barred. Perez now petitions for review of the denial of her most-recently filed motion to reconsider. 2  In her Petition, Perez raises several constitutional and statutory challenges to her removal proceedings. Perez did not, however, file a timely petition for review of the BIA’s decision dismissing her appeal of the IJ’s decision not to reopen the in absentia removal order. The time period for filing a petition for review is not tolled by the filing of a motion to reopen or motion to reconsider. See Martinez- Serrano v. INS, 94 F.3d 1256, 1257-58 (9th Cir. 1996). Therefore, regardless of the equities in this case, we lack jurisdiction to reach the merits of her challenges to her removal proceedings. The only decision that this court has jurisdiction to review is the BIA’s most recent decision denying Perez’s final motion to reconsider as untimely. A motion to reconsider must be filed within 30 days after the final administrative decision. 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). The final motion to reconsider was filed over six months after the decision for which reconsideration was sought. Accordingly, the BIA did not abuse its discretion in denying it as untimely. PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN PART. 3 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 09-4519 UNITED STATES OF AMERICA v. JOHN KING, also known as “Poor John” JOHN RUSSELL KING, SR., Appellant On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 1-07-cr-00479-013) District Judge: Hon. John E. Jones, III Submitted Under Third Circuit LAR 34.1(a) September 13, 2010 Before: SLOVITER, BARRY and SMITH, Circuit Judges (Filed: September 16, 2010) OPINION SLOVITER, Circuit Judge. John King pled guilty to one count of use of a communication facility (a telephone) to facilitate a felony drug trafficking offense in violation of 21 U.S.C. § 843(b). He appeals his sentence. I. In his sentencing memorandum, King challenged the Presentence Investigation Report’s (“PSR”) recommendation that he be considered a career offender under U.S.S.G. § 4B1.1. He argued that one of the two predicate offenses the Government identified, his 1995 Pennsylvania conviction for simple assault, should not be classified as a crime of violence under U.S.S.G. § 4B1.2(a) because individuals can be convicted under that statute for reckless acts. A “crime of violence” is defined in § 4B1.2 in two ways: “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The District Court held that King’s conviction under the Pennsylvania simple assault statute qualified as a crime of violence under § 4B1.2(a)(1). The District Court therefore deemed King a career offender and calculated his sentencing range under the 2 Federal Sentencing Guidelines (“Guidelines”) as 140 to 175 months. King was subsequently sentenced to forty-eight months of imprisonment, which was the statutory maximum. He timely appealed.1 Our review of whether a crime constitutes a crime of violence is plenary. See United States v. Stinson, 592 F.3d 460, 462 n.1 (3d Cir. 2010). After King’s sentencing, we held that “a conviction for mere recklessness cannot constitute a crime of violence” for purposes of determining a defendant’s career offender status under the Guidelines. See United States v. Lee, --- F.3d ----, 2010 WL 2757340, at *17 (3d Cir. July 14, 2010). That holding applies to both definitions of crime of violence, i.e., whether the predicate offense is analyzed under § 4B1.2(a)(1) or § 4B1.2(a)(2). See id.; see also United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (“Use of physical force is an intentional act, and therefore the first prong of [§ 4B1.2(a)] requires specific intent to use force.”).2 In a recent decision considering the Pennsylvania simple assault statute, we stated that although “an intentional or knowing violation of [that statute] is a crime of violence 1 The District Court had jurisdiction under 18 U.S.C. § 3231. This court has jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 2 Notably, we have held that 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2, both of which employ language identical to that in § 4B1.2(a)(1) in defining a crime of violence, also require “‘intent to use force.’” United States v. Otero, 502 F.3d 331, 335 (3d Cir. 2007) (assessing § 2L1.2 and quoting Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005) (assessing §16(a))); see also U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). 3 under U.S.S.G. § 4B1.2(a)(2)[,]” that Pennsylvania statute also makes illegal reckless acts. See United States v. Johnson, 587 F.3d 203, 212 (3d Cir. 2009).3 This presents difficulty for federal courts faced with sentencing a defendant with a Pennsylvania simple assault conviction because when deciding whether an offense is a crime of violence under § 4B1.2(a), courts are generally prohibited from “determin[ing] whether the actual conduct of the individual defendant constituted a purposeful, violent and aggressive act.” Id. at 208 (internal quotation marks and citations omitted). We explained in Johnson that “[w]here a statute criminalizes different kinds of conduct, some of which would constitute crimes of violence while others would not, a court may look beyond the statutory elements to determine the particular part of the statute of which the defendant was actually convicted.” Id. When the Government seeks to prove that a predicate offense that has been tried by a jury qualifies as a crime of violence, “a court is ‘generally limited to examining the statutory definition, [the] charging document,’” id. (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)), and the “jury instructions [to see whether the jury was] actually required . . . to find all the elements of [a crime of 3 We are disturbed that, in its brief, the Government neither (1) acknowledged to this panel its former position in Johnson that reckless acts cannot constitute crimes of violence under § 4B1.2(a)(2), nor (2) cited to the Johnson opinion, even though King’s brief discussed that case at length. Additionally, we note that after the opinions in Johnson and Lee our decision in United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999), upon which the District Court relied, is no longer good law. 4 violence] in order to convict the defendant[,]” Taylor v. United States, 495 U.S. 575, 602 (1990). “The government bears the burden of establishing, by a preponderance of the evidence, prior convictions and career offender status.” United States v. Howard, 599 F.3d 269, 271-72 (3d Cir. 2010) (citing Mitchell v. United States, 526 U.S. 314, 330 (1999)). Following the Johnson decision, it is imperative to ascertain whether King’s Pennsylvania conviction was based on intentional or reckless conduct.4 However, the Government made no effort to produce appropriate documents from which the District Court might discern the part of the Pennsylvania simple assault statute under which King was convicted. As we stated in Johnson, “where the government has the burden of production and persuasion as it does on issues like enhancement of the offense level . . . , its case should ordinarily have to stand or fall on the record it makes the first time around 4 The PSR states that the victim of King’s assault “stated that [King] dragged [her] up the stairs of a residence, jumped on her, grabbed her by the neck, and struck her several times[,]” and that the “police report indicates that [King] then dragged the victim to a bedroom, where he again struck her.” PSR ¶ 33. In United States v. Siegel, 477 F.3d 87, 93-94 (3d Cir. 2007), we held that a defendant who pled guilty to a predicate offense is deemed to have admitted factual allegations in a PSR by failing to object to them, and that such admissions can be used to determine whether that offense qualifies as a crime of violence. Although it appears that King did not object to the factual allegations above, because King was convicted after a jury trial and the record does not show whether the “facts” discussed in the PSR were in evidence, they cannot be used against him in this context. Indeed, the jury acquitted King of aggravated assault. 5 [and i]t should not normally be afforded a second bite at the apple.” 587 F.3d at 213 (quoting United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) (internal quotation marks and citations omitted)). Accordingly, we hold the District Court erred in treating King’s conviction for simple assault as a crime of violence. Because we will remand for resentencing, it is unnecessary to address King’s arguments regarding the substantive fairness of his sentence. II. For the above stated reasons, we will vacate King’s sentence and remand to the District Court for resentencing. 6 

50 So.3d 1152 (2010) WASHINGTON v. STATE. No. 5D10-1883. District Court of Appeal of Florida, Fifth District. December 21, 2010. DECISION WITHOUT PUBLISHED OPINION Affirmed.

736 So.2d 840 (1999) Bonnie M. RAMBO v. Steven W. WALKER, Herman J. Walker, Ruth P. Walker, et al. No. 98-C-3030. Supreme Court of Louisiana. January 29, 1999. Denied. MARCUS, J. not on panel.

107 F.3d 874 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Erin B. HARRIS, Defendant-Appellant. No. 96-3007. United States Court of Appeals, Seventh Circuit. Argued Jan. 28, 1997.Decided Feb. 14, 1997. Before BAUER, KANNE and EVANS, Circuit Judges. ORDER 1 Erin Harris pleaded guilty to one count of trafficking in an automobile with an altered identification number. 18 U.S.C. § 2321. Harris appeals the enhancement of his offense level under § 2B6.1(b)(3) of the sentencing guidelines for participation in an organized scheme to steal vehicles. Because the district court properly determined Harris's offense level, we affirm Harris's sentence. 2 The FBI arrested Harris following an investigation into a large-scale auto theft and burglary ring in Indiana. Although the full extent of Harris's participation in the scheme is not clear from the record, it is clear that on one occasion Harris helped another member of the ring, Russell Petty, sell a stolen 1991 Chevrolet Blazer. Moreover, on a second occasion, Harris helped four other members of the ring steal a Cadillac; after the five men disassembled the Cadillac Harris stored various parts of the car at his home, from which members of the ring sold the parts. 3 Harris's conviction in this case stems from the sale of the stolen Blazer. In June 1991 Petty stole the Blazer from a Crawfordsville, Indiana, automobile dealership. Petty changed the vehicle identification number (VIN) on the Blazer to that of a 1987 Blazer and then transferred the title of the retagged vehicle to Harris. In December 1991 Petty offered to sell the Blazer to William Wagoner--an undercover FBI agent. 4 At an initial meeting between Petty, Wagoner, and Harris, Wagoner inspected the Blazer and agreed to buy it. Wagoner and Harris then agreed to meet at a shopping mall several days later, at which time Harris gave Wagoner the keys to the Blazer in exchange for $1,000. Harris then reported the Blazer stolen and collected an $8,000 insurance claim on it. 5 Harris ultimately was arrested along with 23 other individuals associated with the auto theft and burglary ring. He was charged with trafficking in an automobile with an altered identification number, 18 U.S.C. § 2321, and mail fraud, 18 U.S.C. § 1341, for his part in the sale of the stolen Blazer and his fraudulent insurance claim. Harris pleaded guilty to the trafficking count in exchange for the dismissal of the mail fraud charge. 6 At his sentencing hearing everyone agreed that Harris had a criminal history category of III and that § 2B6.1(a) of the sentencing guidelines established Harris's base offense level at 8; the sole issue was the appropriate enhancement under subsection (b) of § 2B6.1.1 The Probation Office believed that under § 2B6.1(b)(1) Harris's offense level should be increased 4 levels--to 12--because the total value of the stolen Cadillac, the stolen Blazer, and Harris's bogus insurance claim for the Blazer was between $20,000 and $40,000.2 With a 2-level reduction for acceptance of responsibility, Harris's presentence investigation report (PSR) recommended a total offense level of 10. 7 The prosecution objected to the PSR, however. The prosecution believed that § 2B6.1(b)(3), rather than § 2B6.1(b)(1), controlled the enhancement of Harris's sentence. Subsection (b)(3) establishes a minimum offense level of 14, regardless of the dollar value of the defendant's relevant conduct, "[i]f the offense involved an organized scheme to steal vehicles or vehicle parts...." U.S.S.G. § 2B6.1(b)(3). 8 In support of its position, the prosecution sought to introduce the affidavit of Special Agent Wagoner, which detailed the activities of the theft ring and listed 65 separate thefts and sales of stolen goods. The defense objected to the admission of Wagoner's affidavit on relevance grounds, arguing that the majority of the incidents and facts included in the affidavit did not involve Harris. 9 In response to the defense's objection, the prosecution explained that it sought the admission of Wagoner's affidavit only with respect to two incidents--the theft and sale of the Blazer and a second incident involving the theft and sale of an Astro van. In this second incident, Petty stole two Astro vans from an automobile dealership and then transferred title to one of the vans to Neil Kegerreis.3 Petty subsequently sold this van to an FBI informant, and Kegerreis reported the van stolen and collected an insurance claim on it. There is no indication in the record that Harris had anything to do with--or was even aware of--the theft or sale of the Astro vans. 10 The district court ultimately admitted only those parts of Wagoner's affidavit that dealt with the thefts and sales of the Blazer and the Astro vans. Based on this evidence, the prosecution argued that § 2B6.1(b)(3) controlled Harris's case. The prosecution contended that 11 at least in these two occasions ... individuals received stolen vehicles [from Russell Petty], ... and in the case of both Kegerreis and also Defendant Harris these vehicles were transferred to those individuals, who used them for a time and then subsequently gave them up in an insurance fraud kind of situation where they falsely reported that they had been stolen when actually they were selling these stolen vehicles to yet other individuals. 12 Based on the similarity between the theft and sale of the Blazer and the theft and sale of the Astro van, the prosecution contended that Harris's offense "involved an organized scheme to steal vehicles." Accordingly, the prosecution argued that Harris should be sentenced under § 2B6.1(b)(3). 13 The district court ruled in favor of the prosecution, noting that 14 the focus [in § 2B6.1(b)(3) ] is on the offense and ... whether it involved an organized scheme to steal vehicles.... And the evidence, limited as it is by the Court's ruling, still does reflect an organized scheme to steal vehicles ... revolving in the instance of these two matters, subject to the Government's offer, revolving around Russell Petty, the Kegerreis matter, and this matter.... 15 The court therefore established Harris's adjusted offense level at 14. With a 2-level reduction for acceptance of responsibility and a criminal history category of III, Harris faced a range of 15 to 21 months imprisonment. The court sentenced Harris to 16 months imprisonment, and this appeal followed. 16 Harris offers two reasons why the district court erred by applying subsection (b)(3) to him. Harris argues that a district court may enhance a sentence under § 2B6.1(b)(3) only when the value of the loss is difficult to ascertain. In cases--such as his--where the court can ascertain value of the loss with certainty, Harris contends that the court must apply subsection (b)(1) rather than (b)(3). 17 This argument is meritless. Section 2B6.1(b)(3) states, "[i]f the offense involved an organized scheme to steal vehicles ..., and the offense level as determined above [in § 2B6.1(b)(1) ] is less than level 14, increase to level 14." The focus of subsection (b)(3) is clearly on the organized scheme and on establishing a minimum offense level for being part of such an organized scheme, regardless of the value of the loss. Moreover, the reference in subsection (b)(3) to cases in which "the offense level as determined [in § 2B6.1(b)(1) ] is less than level 14" clearly anticipates cases in which the value of the loss can be determined with certainty for the purpose of subsection (b)(1); even in such cases, subsection (b)(3) directs the district court to increase the defendant's offense level to 14. Thus, we reject Harris's argument. 18 Harris's other argument is somewhat stronger, though he ultimately loses on the facts of this case. Harris contends that in order to be sentenced under subsection (b)(3), there must be some evidence that he knew he was a part of an "organized scheme," as opposed to being merely an unwitting pawn in a larger game. That is, Harris contends that there is a scienter requirement with respect to his participation in the "organized scheme," and that the prosecution put forth no evidence on this point. The government, in contrast, contends that in order to enhance Harris's offense level under subsection (b)(3), it need only prove that Harris's offense "furthered" an organized scheme to steal vehicles. Thus, in both the district court and here, the government relied solely on evidence relating to Kegerreis's disposal of the stolen Astro van to prove that an organized scheme existed, without pointing to any evidence that Harris was aware of the existence of the organized scheme or his role in it.4 19 We need not reach this question of whether subsection (b)(3) includes a knowledge or scienter element, however. Harris's PSR included as relevant conduct both the stolen Blazer and the stolen Cadillac. After Harris, Petty, and several others stole the Cadillac, they dismantled it and stored various pieces of it in Harris's home. Mark Petty (Russell's brother) sold pieces of the Cadillac to Agent Wagoner directly from Harris's home. Thus, Harris's claim that he was "simply one of [Russell Petty's] many customers taking advantage of a deal too good to be true" has no merit. Regardless of whether subsection (b)(3) contains a scienter requirement, Harris's involvement in the theft, dismantling, storage, and sale of the Cadillac provide sufficient support for the district court's conclusion that Harris was aware that he was a part of an "organized scheme" including numerous other participants that went well-beyond Russell Petty's mere theft and sale of the Blazer. 20 Accordingly, we hold that the district court correctly sentenced Harris, and the judgment below is AFFIRMED. 1 Harris was sentenced under the 1995 version of the sentencing guidelines. All references in this order are to that version 2 The stolen Cadillac was worth $9,700.00, the stolen Blazer was worth $19,830.00, and Harris collected $8,025.10 from his insurance claim, for a total of $37,555.10. Section 2B6.1(b)(1) cross-references the table in § 2F1.1; under § 2F1.1(b)(1)(E), offenses involving more than $20,000 but less than $40,000 are increased 4 levels 3 The record contains no explanation of what became of the other Astro van 4 The government cites United States v. Walker, 931 F.2d 631 (10th Cir.1991), in support of its argument. Walker is inapposite, however. The defendant there was convicted of two counts of altering vehicle identification numbers and one count of conspiracy to receive, possess, and dispose of a stolen motor vehicle. Id. at 633. The vehicles with the altered VIN's were not stolen, however. Id. at 635. Nonetheless, the district court enhanced the defendant's sentence on the two altered VIN counts under § 2B6.1(b)(3). The Tenth Circuit reversed this enhancement because the cars with the altered VIN's were not stolen, and hence, "[the defendant's] removal of the vehicle identification numbers did not further or conceal the receipt or sale of stolen motor vehicles...." Id. at 635-36. Nothing in Walker addresses Harris's argument in this appeal--that the prosecution must present some evidence proving that the defendant knew that his offense was part of an organized scheme We have found only one other published case, United States v. Uder, 98 F.3d 1039 (8th Cir.1996), that discusses § 2B6.1(b)(3), and there is no discussion there of any scienter requirement in that section of the Sentencing Guidelines.

107 F.3d 863 Joyce Schofieldv.Trustees of University of Pennsylvania; Joyce Schofield v.Trustees of University of Pennsylvania NOS. 96-1226, 96-1260 United States Court of Appeals,Third Circuit. Feb 05, 1997 Appeal From: E.DPa. ,No.94cv06887 , Joyner, J. 1 Affirmed.

Fourth Court of Appeals San Antonio, Texas June 27, 2016 No. 04-16-00038-CV CITY OF FLORESVILLE, TEXAS, City of Floresville City Council, City of Floresville City Planning and Zoning Committee, and the Wilson County Appraisal District, Appellants v. STARNES INVESTMENT GROUP, LLC, Appellee From the 81st Judicial District Court, Wilson County, Texas Trial Court No. 15-06-0367-CVW Honorable Donna S. Rayes, Judge Presiding ORDER Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Jason Pulliam, Justice The court has determined that oral argument may be of benefit to the court. Therefore, the above cause has been set for formal submission and oral argument before this court on August 11, 2016 at 9:00 a.m., before a panel consisting of Chief Justice Marion, Justice Barnard, and Justice Pulliam. In addition to the arguments raised by the parties in their briefs, the parties should be prepared to argue the merits of whether a plea to the jurisdiction should have be granted or denied based on “Plaintiff’s First Amended Petition,” and, assuming the trial court erred in denying the plea to the jurisdiction based on the amended petition and this court must reverse, whether the reversal should be with a remand and an opportunity to replead or a render of a dismissal of appellee’s claims with prejudice. Argument is limited to twenty (20) minutes each side and ten (10) minutes for appellants’ rebuttal. If you do not wish to present argument, you must notify this court in writing within seven (7) days of receiving this notice. It is so ORDERED on June 27, 2016. PER CURIAM ATTESTED TO: _______________________________ Keith E. Hottle Clerk of Court 

27 So.3d 757 (2010) Wallace Anthony WOODS, Appellant, v. The STATE of Florida, Appellee. No. 3D09-2911. District Court of Appeal of Florida, Third District. February 10, 2010. Wallace Anthony Woods, in proper person. Bill McCollum, Attorney General, for appellee. Before COPE, GERSTEN, and LAGOA, JJ. Prior report: 941 So.2d 495. PER CURIAM. We treat the defendant's petition for writ of certiorari as an appeal of an order denying relief under Florida Rule of Criminal Procedure 3.800(a) and affirm. Affirmed.

537 U.S. 1199 CARSONv.CROSBY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL. No. 02-7842. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied.

334 U.S. 343 68 S.Ct. 1097 92 L.Ed. 1429 SHERRERv.SHERRER. COE v. COE. Nos. 36, 37. Supreme Court of the United States Argued Oct. 13, 14, 1947. June 7, 1948 Mr. Frederick M. Myers, of Pittsfield, Mass., for petitioner. Messrs. Lincoln S. Cain and Robert T. Capeless, both of Pittsfield, Mass., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. 1 We granted certiorari in this case and in Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, to consider the contention of petitioners that Massachusetts has failed to accord full faith and credit to decrees of divorce rendered by courts of sister States.1 2 Petitioner Margaret E. Sherrer and the respondent, Edward C. Sherrer, were married in New Jersey in 1930, and from 1932 until April 3, 1944, lived together in Monterey, Massachusetts. Following a long period of marital discord, petitioner, accompanied by the two children of the marriage, left Massachusetts on the latter date, ostensibly for the purpose of spending a vacation in the State of Florida. Shortly after her arrival in Florida, however, petitioner informed her husband that she did not intend to return to him. Petitioner obtained housing accommodations in Florida, placed her older child in school, and secured employment for herself. 3 On July 6, 1944, a bill of complaint for divorce was filed at petitioner's direction in the Circuit Court of the Sixth Judicial Circuit of the State of Florida.2 The bill alleged extreme cruelty as grounds for divorce and also alleged that petitioner was a 'bona fide resident of the State of Florida.'3 The respondentr eceived notice by mail of the pendency of the divorce proceedings. He retained Florida counsel who entered a general appearance and filed an answer denying the allegations of petitioner's complaint, including the allegation as to petitioner's Florida residence.4 4 On November 14, 1944, hearings were held in the divorce proceedings. Respondent appeared personally to testify with respect to a stipulation entered into by the parties relating to the custody of the children.5 Throughout the entire proceedings respondent was represented by counsel.6 Petitioner introduced evidence to establish her Florida residence and testified generally to the allegations of her complaint. Counsel for respondent failed to cross-examine or to introduce evidence in rebuttal. 5 The Florida court on November 29, 1944, entered a decree of divorce after specifically finding 'that petitioner is a bona fide resident of the State of Florida, and that this court has jurisdiction of the parties and the subject matter in said cause; * * *' Respondent failed to challenge the decree by appeal to the Florida Supreme Court.7 6 On December 1, 1944, petitioner was married in Florida to one Henry A. Phelps, whom petitioner had known while both were residing in Massachusetts and wno had come to Florida shortly after petitioner's arrival in that State. Phelps and petitioner lived together as husband and wife in Florida, where they were both employed, until February 5, 1945, when they returned to Massachusetts. 7 In June, 1945, respondent instituted an action in the Probate Court of Berkshire County, Massachusetts, which has given rise to the issues of this case. Respondent alleged that he is the lawful husband of petitioner, that the Florida decree of divorce is invalid, and that petitioner's subsequent marriage is void. Respondet prayed that he might be permitted to convey his real estate as if he were sole and that the court declare that he was living apart from his wife for justifiable cause.8 Petitioner joined issue on respondent's allegations. 8 In the proceedings which followed, petitioner gave testimony in defense of the validity of the Florida divorce decree.9 The Probate Court, however, resolved the issues of fact adversely to petitioner's contentions, found that she was never domiciled in Florida, and granted respondent the relief he had requested. The Supreme Judicial Court of Massachusetts affirmed the decree on the grounds that it was supported by the evidence and that the requirements of full faith and credit did not preclude the Massachusetts courts from reexamining the finding of domicile made by the Florida court.10 9 At the outset, it should be observed that the proceedings in the Florida court prior to the entry of the decree of divorce were in no way inconsistent with the requirements of procedural due process. We do not understand respondent to urge the contrary. The respondent personally appeared in the Florida proceedings. Though his attorney he filed pleadings denying the substantial allegations of petitioner's complaint. It is not suggested that his rights to introduce evidence and otherwise to conduct his defense were in any degree impaired; nor is it suggested that there was not available to him the right to seek review of the decree by appeal to the Florida Supreme Court. It is clear that respondent was afforded his day in court with respect to every issue involved in the litigation, including the jurisdictional issue of petitioner's domicile. Under such circumstances, there is nothing in the concept of due process which demands that a defendant be afforded a second opportunity to litigate the existence of jurisdictional facts. Chicago Life Insurance Co. v. Cherry, 1917, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966; Baldwin v. Iowa State Traveling Men's Association, 1931, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244. 10 It should also be observed that there has been no suggestion that under the law of Florida, the decree of divorce in question is in any respect invalid or could successfully be subjected to the type of attack permitted by the Massachusetts court. The implicit assumption underlying the position taken by respondent and the Massachusetts court is that this case involves a decree of divorce valid and final in the State which rendered it; and we so assume.11 11 That the jurisdiction of the Florida court to enter a valid decree of divorce was dependent upon petitioner's domicile in that State is not disputed.12 This requirement was recognized by the Florida court which rendered the divorce decree, and the principle has been given frequent application in decisions of the State Supreme Court.13 But whether or not petitioner was domiciled in Florida at the time the divorce was granted was a matter to be resolved by judicial determination. Here, unlike the situation presented in Williams v. North Carolina, 1945, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, the finding of the requisite jurisdictional facts was made in proceedings in which the defendant appeared and participated. The question with which we are confronted, therefore, is whether such a finding made under the circumstances presented by this case may, consistent with the requirements of full faith and credit, be subjected to collateral attack in the courts of a sister State in a suit brought by the defendant in the original proceedings. 12 The question of what effect is to be given to an adjudication by a court that it possesses requisite jurisdiction in a case, where the judgment of that court is subsequently subjected to collateral attack on jurisdictional grounds, has been given frequent consideration by this Court over a period of many years. Insofar as cases originating in the federal courts are concerned, the rule has evolved that the doctrine of res judicata applies to adjudications relating either to jurisdiction of the person or of the subject matter where such adjudications have been made in proceedings in which those questions were in issue and in which the parties were given full opportunity to litigate.14 The reasons for this doctrine have frequently been stated. Thus in Stoll v. Gottlieb, 1938, 305 U.S. 165, 172, 59 S.Ct. 134, 138, it was said: 'Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first.' 13 This Court has also held that the doctrine of res judicata must be applied to questions of jurisdiction in cases arising in state courts involving the application of the full faith and credit clause where, under the law of the state in which the original judgment was rendered, such adjudications are not susceptible to collateral attack.15 14 In Davis v. Davis, 1938, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518, the courts of the District of Columbia had refused to give effect to a decree of absolute divorce rendered in Virginia, on the ground that the Virginia court had lacked jurisdiction despite the fact that the defendant had appeared in the Virginia proceedings and had fully litigated the issue of the plaintiff's domicile. This Court held that in failing to give recognition to the Virginia decree, the courts of the District had failed to accord the full faith and credit required by the Constitution. During the course of the opinion, this Court stated: 'As to petitioner's domicil for divorce and his standing to invoke jurisdiction of the Virginia court, its finding that he was a bona fide resident of that State for the required time is binding upon respondent in the courts of the District. She may not say that he was not entitled to sue for divorce in the state court, for she appeared there and by plea put in issue his allegation as to domicil, introduced evidence to show it false, took exceptions to the commissioner's report, and sought to have the court sustain them and uphold her plea. Plainly, the determination of the decree upon that point is effective for all purposes in this litigation.'16 15 We believe that the decision of this Court in the Davis case and those in related situations17 are clearly indicative of the result to be reached here. Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.18 16 Applying these principles to this case, we hold that the Massachusetts courts erred in permitting the Florida divorce decree to be subjected to attack on the ground that petitioner was not domiciled in Florida at the time the decree was entered. Respondent participated in the Florida proceedings by entering a general appearance, filing pleadings placing in issue the very matters he sought subsequently to contest in the Massachusetts courts, personally appearing before the Florida court and giving testimony in the case, and by retaining attorneys who represented him throughout the entire proceedings. It has not been contended that respondent was given less than a full opportunity to contest the issue of petitioner's domicile or any other issue relevant to the litigation. There is nothing to indicate that the Florida court would not have evaluated fairly and in good faith all relevant evidence submitted to it. Respondent does not even contend that on the basis of the evidence introduced in the Florida proceedings, that court reached an erroneous result on the issue of petitioner's domicile. If respondent failed to take advantage of the opportunities afforded him, the responsibility is his own. We do not believe that the dereliction of a defendant under such circumstances should be permitted to provide a basis for subsequent attack in the courts of a sister State on a decree valid in the State in which it was rendered. 17 It is suggested, however, that Andrews v. Andrews, 1903, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366, militates against the result we have reached. In that case a husband, who had been domiciled in Ms sachusetts, instituted divorce proceedings in a South Dakota court after having satisfied the residence requirements of that State. The wife appeared by counsel and filed pleadings challenging the husband's South Dakota domicile. Before the decree of divorce was granted, however, the wife, pursuant to a consent agreement between the parties, withdrew her appearance from the proceedings. Following the entry of the decree, the husband returned to Massachusetts and subsequently remarried. After his death a contest developed between his first and second wives as to the administration of the husband's estate. The Massachusetts court concluded that the South Dakota decree of divorce was void on the ground that the husband had not been domiciled in that State and that under the applicable statutes of Massachusetts, the Massachusetts courts were not required to give recognition to such a decree. This Court affirmed on writ of error by a divided vote.19 18 On its facts, the Andrews case presents variations from the present situation.20 But insofar as the rule of that case may be said to be inconsistent with judgment herein announced, it must be regarded as having been superseded by subsequent decisions of this Court. The Andrews case was decided prior to the considerable modern development of the law with respect to finality of jurisdictional findings.21 One of the decisions upon which the majority of the Court in that case placed primary reliance, Wisconsin v. Pelican Insurance Co., 1888, 127 U.S. 265, 8 S.Ct. 1370, 32 L.Ed. 239, was, insofar as pertinent, overruled in Milwaukee County v. M. E. White Co., 1935, 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220. The Andrews case, therefore, may not be regarded as determinative of the issues before us. 19 It is urged further, however, that because we are dealing with litigation involving the dissolution of the marital relation, a different result is demanded from that which might properly be reached if this case were concerned with other types of litigation. It is pointed out that under the Constitution, the regulation and control of marital and family relationships are reserved to the States. It is urged, and properly so, that the regulation of the incidents of the marital relation involves the exercise by the States of powers of the most vital importance. Finally, it is contended that a recognition of the importance to the States of such powers demands that the requirements of full faith and credit be viewed in such a light as to permit an attack upon a divorce decree granted by a court of a sister State under the circumstances of this case even where the attack is initiated in a suit brought by the defendant in the original proceedings.22 20 But the recognition of the importance of a State's power to determine the incidents of basic social relationships into which its domiciliaries enter does not resolve the issues of this case. This is not a situation in which a State has merely sought to exert such power over a domiciliary. This is, rather, a case involving inconsistent assertions of power by courts of two States of the Federal Union and thus presents considerations which go beyond the interests of local policy, however vital. In resolving the issues here presented, we do not conceive it to be a part of our function to weigh the relative merits of the policies of Florida and Massachusetts with respect to divorce and related matters. Nor do we understand the decisions of this Court to support the proposition that the obligation imposed by Article IV, § 1 of the Constitution and the Act of Congress passed thereunde, amounts to something less than the duty to accord full faith and credit to decrees of divorce entered by courts of sister States.23 The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation.24 If in its application local policy must at times be required to give way, such 'is part of the price of our federal system.' Williams v. North Carolina, 1942, 317 U.S. 287, 302, 63 S.Ct. 207, 215.25 21 This is not to say that in no case may an area be recognized in which reasonable accommodations of interest may properly be made. But as this Court has heretofore made clear, that area is of limited extent.26 We believe that in permitting an attack on the Florida divorce decree which again put in issue petitioner's Florida domicile and in refusing to recognize the validity of that decree, the Massachusetts courts have asserted a power which cannot be reconciled with the requirements of due faith and credit. We believe that assurances that such a power will be exercised sparingly and wisely render it no less repugnant to the constitutional commands. 22 It is one thing to recognize as permissible the judicial reesamination of findings of jurisdictional fact where such findings have been made by a court of a sister State which has entered a divorce decree in ex parte proceedings.27 It is quite another thing to hold that the vital rights and interests involved in divorce litigation may be held in suspense pending the scrutiny by courts of sister States of findings of jurisdictional fact made by a competent court in proceedings conducted in a manner consistent with the highest requirements of due process and in which the defendant has participated. We do not conceive it to be in accord with the purposes of the full faith and credit requirement to hold that a judgment rendered under the circumstances of this case may be required to run the gantlet of such collateral attack in the courts of sister States before its validity outside of the State which rendered it is established or rejected. That vital interests are involved in divorce litigation indicates to us that it is a matter of greater rather than lesser importance that there should be a place to end such litigation.28 And where a decree of divorce is rendered by a competent court under the circumstances of this case, the obligation of full faith and credit requires that such litigation should end in the courts of the State in which the judgment was rendered. 23 Reversed. 24 Mr. Justice FRANKFURTER and Mr. Justice MURPHY dissenting. For dissenting opinion, see 334 U.S.3 43, 68 S.Ct. 1097. 25 What Mr. Justice Holmes said of the illstarred Haddock v. Haddock may equally be said here: 'I do not suppose that civilization will come to an end whichever way this case is decided.' 201 U.S. 562, 628, 26 S.Ct. 525, 551, 50 L.Ed. 867, 5 Ann.Cas. 1. But, believing as I do that the decision just announced is calculated, however unwittingly, to promote perjury without otherwise appreciably affecting the existing disharmonies among the forty-eight States in relation to divorce, I deem it appropriate to state my views. 26 Not only is today's decision fraught with the likelihood of untoward consequences. It disregards a law that for a century has expressed the social policy of Massachusetts, and latterly of other States, in a domain which under our Constitution is peculiarly the concern of the States and not of the Nation. 27 If all that were necessary in order to decide the validity in one State of a divorce granted in another was to read the Full Faith and Credit Clause of the Constitution, art. 4, § 1, generations of judges would not have found the problem so troublesome as they have, nor would a divided Court have successively pronounced a series of discordant decisions. 'Full faith and credit' must be given to a judgment of a sister State. But a 'judgment' implies the power of the State to deal with the subject-matter in controversy. A State court which has entered what professes to be a judgment must have had something on which to act. That something is what is conveyed by the word 'jurisdiction,' and, when it comes to dissolving a marriage status, throughout the English-speaking world the basis of power to act is domicile. Whether or not in a particular situation a person is domiciled in a given State depends on circumstances, and circumstances have myriad diversities. But there is a consensus of opinion among English-speaking courts the world over that domicile requires some sense of permanence of connection between the individual who claims it and the State which he asks to recognize it. 28 It would certainly have been easier if from the beginning the Full Faith and Credit Clause had been construed to mean that the assumption of jurisdiction by the courts of a State would be conclusive, so that every other State would have to respect it. But such certainly has not been the law since 1873. Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897. Nor was it the law when this Court last considered the divorce problem, in 1945. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366. A State that is asked to enforce the action of another State may appropriately ascertain whether that other State had power to do what it purported to do. And if the enforcing State has an interest under our Constitution in regard to the subject-matter that is vital and intimate, it should not be within the power of private parties to foreclose that interest by their private arrangement. Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366; cf. Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, 17 Ann.Cas. 853; Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044. 29 If the marriage contract were no different from a contract to sell an automobile, the parties thereto might well be permitted to bargain away all interests involved, in or out of court. But the State has an interest in the family relations of its citizens vastly different from the interest it has in an ordinary commercial transaction. That interest cannot be bartered or bargained away by the immediate parties to the controversy by a default or an arranged contest n a proceeding for divorce in a State to which the parties are strangers. Therefore, the constitutional power of a State to determine the marriage status of two of its citizens should not be deemed foreclosed by a proceeding between the parties in another State, even though in other types of controversy considerations making it desirable to put an end to litigation might foreclose the parties themselves from reopening the dispute.1 I cannot agree that the Constitution forbids a state from insisting that it is not bound by any such proceedings in a distant State wanting in the power that domicile alone gives, and that its courts need not honor such an intrinsically sham proceeding, no matter who brings the issue to their attention. 30 That society has a vital interest in the domestic relations of its members will be almost impatiently conceded.2 But it is not enough to pay lip-service to the commonplace as an abstraction. Its implications must be respected. They define our problems. Nowhere in the United States, not even in the States which grant divorces most freely, may a husband and wife rescind ther marriage at will as they might a commercial contract. Even if one thought that such a view of the institution of marriage was socially desirable, it could scarcely be held that such a personal view was incorporated into the Constitution or into the law for the enforcement of the Full Faith and Credit Clause enacted by the First Congress. 1 Stat. 122, 28 U.S.C. § 687, 28 U.S.C.A. § 687. That when the Constitution was ordained divorce was a matter of the deepest public concern, rather than deemed a personal dispute between private parties, is shown by the fact that it could be secured almost exclusively only by special enactments of the several legislatures and not through litigation in court. See Ireland and Galindez, Divorce in the Americas (1947) p. 1. 31 As a contract, the marriage contract is unique in the law. To assimilate it to an ordinary private contract can only mislead. See Maynard v. Hill, 125 U.S. 190, 210—214, 8 S.Ct. 723, 729—731, 31 L.Ed. 654; Restatement of the Law, Contracts, §§ 584, 586; cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 627—629, 4 L.Ed. 629. The parties to a marriage do not comprehend between them all the interests that the relation contains. Society sanctions the institution and creates and enforces its benefits and duties. As a matter of law, society is represented by the permanent home State of the parties, in other words, that of their domicile. In these cases that State was Massachusetts. 32 Massachusetts has seen fit to subject its citizens to the following law: 33 'A divorce decreed in another jurisdiction according to the laws thero f by a court having jurisdiction of the cause and of both the parties shall be valid and effectual in this commonwealth; but if an inhabitant of this commonwealth goes into another jurisdiction to obtain a divorce for a cause occurring here while the parties resided here, or for a cause which would not authorize a divorce by the laws of this commonwealth, a divorce so obtained shall be of no force or effect in this commonwealth.' Mass.Gen.Laws, c. 208, § 39 (1932). 34 This statute, in substance,3 was first enacted in 1935, and even then merely formalized a prior rule of judicial origin. Cf. Hanover v. Turner, 14 Mass. 227, 7 Am.Dec. 203; Report of the Commissioners Appointed to Revise the General Statutes of the Commonwealth, pt. II, p. 123; 2 Kent, Commentaries, Lect. 27, *108 *109. The Uniform Annulment of Marriages and Divorce Act,4 passed by Delaware,5 New Jersey,6 and Wisconsin,7 is almost identical, as is a Maine statute8 on the same subject. 35 Massachusetts says through this statute that a peron who enjoys its other institutions but is irked by its laws concerning the severance of the marriage tie, must either move his home to some other State with more congenial laws, or remain and abide by the laws of Massachusetts. He cannot play ducks and drakes with the State, by leaving it just long enough to take advantage of a proceeding elsewhere, devised in the interests of a quick divorce, intending all the time to retain Massachusetts as his home, and then return there, resume taking advantage of such of its institutions as he finds congenial but assert his freedom from the restraints of its policies concerning severance of the marriage tie. Massachusetts has a right to define the terms on which it will grant divorces, and to refuse to recognize divorces granted by other States to parties who at the time are still Massachusetts domiciliaries. Has it not also the right to frustrate evasion of its policies by those of its permanent residents who leave the State to change their spouses rather than to change their homes, merely because they go through a lukewarm or feigned contest over jurisdiction? 36 The nub of the Williams decision was that the State of domicile has an independent interest in the martial status of its citizens that neither they nor any other State with which they may have a transitory connection may abrogate against its will. Its interest is not less because both parties to the marital relationship instead of one sought to evade its laws. In the Williams case, it was not the interest of Mrs. Williams, or that of Mr. Hendryx, that North Carolina asserted. It was the interest of the people of North Carolina. The same is true here of the interest of Massachusetts.9 While the State's interest may be expressed in criminal prosecutions, with itself formally a party as in the Williams case, the State also expresses its sovereign power when it speaks through its courts in a civil litigation between private parties. Cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836. 37 Surely there is involved here an exercise by Massachusetts of its policy concerning the termination of marriage by its own citizens. The Framers left that power over domestic relations in the several States, and every effort to withdraw it from the States within the past sixty years has failed.10 An American citizen may change his domicile from one State to another. And so, a State must respect another State's valid divorce decree even though it concerns its former citizens. But the real question here is whether the Full Faith and Credit Clause can be used as a limitation on the power of a State over its citizens who do not change their domicile, who do not remove to another State, but who leave the State only long enough to escape the rigors of its laws, obtain a divorce, and then scurry back. To hold that this Massachusetts statute contravenes the Full Faith and Credit Clause is to say that that State has so slight a concern in the continuance or termination of the marital relationships of its domiciliaries that its interest may be foreclosed by an arranged litigation between the parties in which it was not represented.11 38 Today's decision may stir hope of contributing toward greater certainty of status of those divorced. But when people choose to avail themselves of laws laxer than those of the State in which they permanently abide, and where, barring only the interlude necessary to get a divorce, they choose to continue to abide, doubts and conflicts are inevitable, so long as the divorce laws of the forty-eight States remain diverse, and so long as we respect the law that a judgment without jurisdictional foundation is not constitutionally entitled to recognition everywhere. These are difficulties, as this Court has often reminded, inherent in our federal system, in which governmental power over domestic relations is not given to the central government. Uniformity regarding divorce is not within the power of this Court to achieve so long as 'the domestic relations of husband and wife * * * were matters reserved to the States.' State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384, 50 S.Ct. 154, 155, 74 L.Ed. 489; In re Burrus, 136 U.S. 586, 593, 594, 10 S.Ct. 850, 852, 853, 34 L.Ed. 500.12 And so long as the Congress has not exercised its powers under the Full Faith and Credit Clause to meet the special problems raised by divorce decrees, this Court cannot through its adjudications achieve the result sought to be accomplished by a long train of abortive efforts at legislative and constitutional reform.13 To attempt to shape policy so as to avoid disharmonies in our divorce laws was not a power entrusted to us, nor is the judiciary competent to x ercise it. Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution. The answer to so tangled a problem as that of our conflicting divorce laws is not to be achieved by the simple judicial resources of either/or—this decree is good and must be respected, that one is bad and may be disregarded. We cannot draw on the available power for social invention afforded by the Constitution for dealing adequately with the problem, because the power belongs to the Congress and not to the Court. The only way in which this Court can achieve uniformity, in the absence of Congressional action or constitutional amendment, is by permitting the States with the laxest divorce laws to impose their policies upon all other States. We cannot as judges be ignorant of that which is common knowledge to all men. We cannot close our eyes to the fact that certain States make an industry of their easy divorce laws, and encourage inhabitants of other States to obtain 'quickie' divorces which their home States deny them.14 To permit such States to bind all others to their decrees would endow with constitutional sanctity a Gresham's Law of domestic relations. 39 Fortunately, today's decision does not go that far. But its practical result will be to offer new inducements for conduct by parties and counsel, which, in any other type of litigation, would be regarded as perjury, but which is not so regarded where divorce is involved because ladies and gentlemen indulge in it. But if the doctrine of res judicata as to jurisdictional facts in controversies involving exclusively private interests as infused into the Full Faith and Credit Clause is applied to divorce decrees so as to foreclose subsequent inquiry into jurisdiction, there is neither logic nor reason nor practical desirability in not taking the entire doctrine over. Res judicata forecloses relitigation if there has been an opportunity to litigate once, whether or not it has been availed of, or carried as far as possible. Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.15 And it applies to questions of jurisdiction of subject matter as well as to that of persons. Stol v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85. Why should it not apply where there has been a wasted opportunity to litigate, but should apply where the form of a contest has been gone through?16 Or if more than form is required, how much of a contest must it be? Must the contest be bellicose or may it be pacific? Must it be fierce or may it be tepid? Must there be a cloud of witnesses to negative the testimony of the plaintiff, or may a single doubter be enough? Certainly if the considerations that establish res judicata as between private litigants in the ordinary situations apply to the validity of a divorce against the public policy of the State of domicile, it cannot make a rational difference that the question of domicile is contested with bad feeling rather than amicably adjusted. The essence of the matter is that through the device of a consent decree a policy of vital concern to States should not be allowed to be defied with the sanction of this Court. If perchance the Court leaves open the right of a State to prove fraud in the ordinary sense—namely, that a mock contest was won by prearrangement—the claim falls that today's decision will substantially restrict the area of uncertainty as to the validity of divorces. If the Court seeks to avoid this result by holding that a party to a feigned legal contest cannot question in his home State the good faith behind an adjudication of domicile in another State, such holding is bound to encourage fraud and collusion still further. 40 In considering whether the importance of the asserted uncertainties of marital status under existing law is sufficient to justify this result, it is important to think quantitatively, not dramatically. One would suppose that the diversity in the divorce laws of the forty-eight States, and the unwillingness of most of them to allow the few which make an industry out of granting divorce to impose their policies upon the others, undermines the structure of the family and renders insecure all marriages of previously divorced persons in the United States. The proportion of divorced people who have cause to worry is small n deed. Those who were divorced at home have no problem. Those whose desire to be rid of a spouse coincided with an unrelated shift of domicile will hardly be suspect where, as is usually true, the State to which they moved did not afford easy divorces or required a long residence period. Actually, there are but five States, Arkansas, Florida, Idaho, Nevada, and Wyoming, in which divorces may be easily obtained on less than one year's residence.17 Indovina and Dalton, Statutes of All States and Territories with Annotations on Marriage-Annulment-Divorce (Santa Monica, 1945). These five States accounted for only 24,370 divorces in 1940, but 9% of the national total. Dept. of Commerce, Statistical Abstract of the United States (1946) p. 94. The number of divorces granted in Arkansas, Idaho, and Wyoming is small enough to indicate the normal incidence of divorce among their permanent population, with only few transients taking advantage of their divorce laws. Nevada and Florida thus attract virtually all the non-resident divorce business. Yet, between them, only 16,375 divorces were granted in 1940, 6% of the total. Ibid. Some of these people were undoubtedly permanently settled in those States, and have nothing to fear. Others may have moved to those States, intending to make their permanent homes there, and have since remained. They were amply protected by the Full Faith and Credit Clause even before today's decision. The only persons at all insecure are that small minority who temporarily left their home States for a State—one of the few—offering quick and easy divorce, obtained one, and departed. Is their security so important to the Nation that we must safeguard it even at the price of depriving the great majority of States which do not offer bargain-counter divorces of the right to determine the laws of domestic relations applicable to their citizens? 41 Even to a believer in the desirability of easier divorce—an issue that is not our concern—this decision should bring little solace. It offers a way out only to that small portion of those unhappily married who are sufficiently wealthy to be able to afford a trip to Nevada or Florida, and a six-week or three-month stay there.18 42 Of course, Massachusetts may not determine the question of domicile in disregard of what her sister States have found. A trial de novo of this issue would not satisfy the requirements which we laid down in the second Williams case, 325 U.S. at page 236, 65 S.Ct. at page 1098. Nor can Massachusetts make findings on this issue which preclude reexamination by this Court, nor may it, through prejudice in favor of its own policies, strain the facts to find continuance of the tie between the parties and itself. But the records in these cases do not justify the conclusion that Massachusetts has been remiss in its duty of respect. It is true that its courts did not employ a formal legal jargon and say that there was a presumption in favor of the findings of Florida or Nevada and that this presumption had been overcome by the evidence. But the Constitution demands compliance, not a form of words. To ascertain whether in fact there is a real basis for saying that Massachusetts did not accord proper recognitin to Nevada's and Florida's findings, we must turn to the records and discover for ourselves just how much warrant there was for their findings of domicile. 43 The petitioner and respondent in Sherrer v. Sherrer were married in New Jersey in 1930, and moved to Nonterey, Massachusetts, in 1932, where they lived together until 1944. They had two children. There was evidence that their relationship became less than harmonious towards the end of this period, that Mrs. Sherrer was troubled by a sinus infection and had been advised by a physician to go to Florida, and that she consulted a Massachusetts attorney about divorce before leaving. In March, 1944, she told Sherrer that she wished to take a trip to Florida for a month's rest and wanted to take the children along. She later testified that she had intended even then to go to Florida to stay, but had lied in order to obtain her husband's consent. His consent and the necessary funds were forthcoming. On April 3, 1944, Mrs. Sherrer and the children left for Florida, taking along a suitcase and a small bag, but leaving behind a trunk, some housedresses, and much of the children's clothing. They arrived the following day. She rented an apartment in St. Petersburg, which they occupied for about three weeks, then moved into a furnished cottage and later into another furnished cottage. 44 About a week after Mrs. Sherrer's departure, one Phelps, who had previously been at least an acquaintance of hers, knowing that she had gone to St. Petersburg, went there, met her soon after, and saw her frequently. On April 20, she wrote to her husband that she did not care to go back to him, and returned the money for train fare which he had sent. She sent her older daughter to school and took a job as a waitress. Phelps found employment in a lumber yard. 45 Florida law permits institution of proceedings for divorce after ninety days' bona fide residence in the State. On July 6, ninety-three days after her arrival in the State, Mrs. Sherrer consulted a Florida attorney, had the necessary papers drawn up, and filed a libel for divorce the same day. Sherrer, receiving notice by mail, retained Florida counsel, who entered a general appearance and filed an answer, which denied Mrs. Sherrer's allegations as to residence. The case was set for hearing on November 14. On November 9, Sherrer arrived on the scene. He and his wife entered into a stipulation, subject to the approval of the court, providing for custody of the children in him during the school year and in her during summer vacations. At the hearing, Sherrer's attorney was present, and Sherrer remained in a side room. The attorney did not cross-examine Mrs. Sherrer or offer evidence as to either jurisdiction or the merits, other than the stipulation regarding custody of the children. Sherrer was called into the court-room and questioned as to his ability to look after the children during the school year. The hearing was closed, the decree being held up pending filing of a deposition by Mrs. Sherrer. On November 19, Sherrer returned to Massachusetts with the children. On November 29, the deposition was filed and the decree entered. On December 1, the petitioner married Phelps and the couple took up residence in the cottage which she and the children had previously occupied. 46 There they remained until early in February, 1945, when they returned to Massachusetts, staying for a few days at Westfield and then returning to Monterey. Phelps' father lived in Westfield, and Phelps testified that his father's critical illness occasioned their return. A few days later, Phelps was served with papers in a $15,000 alienation of affections action brought by Sherrer. He testified that the pendency of this action was the reason for his remaining in Massachusetts even after his father's health had become less critical. The trial was set many months ahead, but Phelps and the petitioner did not return to Florida. Rent on the Florida cottage for a month following their departure was paid,b ut this may have been required, as it was paid on a monthly basis. Some personal belongings were left behind there. Later, the landlord was informed that Phelps and the petitioner would not continue renting the cottage, and still later they asked that their belongings be sent to Monterey. 47 Sherrer had meanwhile moved out of the house which he and the petitioner had formerly lived in, which they owned together. Phelps and the petitioner moved in, and did not return to Florida. On June 28, 1945, a petition was filed by Sherrer in the Berkshire County Probate Court for a decree setting forth that his wife had deserted him and that he was living apart from her for justifiable cause. A statute provided that such a decree would empower a husband to convey realty free of dower rights. Mass. Gen. Laws c. 209, § 36 (1932). The Probate Court found that Mrs. Sherrer had not gone to Florida to make it her permanent home but with the intention of meeting Phelps, divorcing Sherrer, marrying Phelps, and returning to Massachusetts. These findings were upheld by the Supreme Judicial Court of the State. 48 The parties in Coe v. Coe were married in 1934 in New York City. Until 1939, they spent a large part of each year in travel, but had only one home, owned by Coe, in Worcester, Massachusetts. Coe also owned other land, maintained bank accounts, paid taxes, registered his automobile, etc., all in Worcester. 49 Beginning in 1940, Coe also maintained an apartment in New York City, where much of his business was conducted. He usually lived there during the week, returning to Worcester on week ends. In New York City there also lived one Dawn Allen, his secretary and friend. His relations with Mrs. Coe deteriorated. It appears that during this period as well, his principal domicile was in Worcester. His own testimony as to where he intended to make his home at this time was contradictory. He kept bank accounts and most of his funds in New York and did jury duty there. He used his Worcester address in correspondence and when incorporating a personal corporation.19 The trial judge found that his domicile remained in Worcester. 50 In January, 1942, Mrs. Coe filed a petition for separate support in the Worcester County Probate Court. Coe cross-petitioned for divorce. On March 25, Coe's petition was dismissed, and Mrs. Coe's granted; she was awarded $35 per week. She appealed, complaining of the amount. While the appeal was pending, Coe left Worcester for New York, and accompanied by Dawn Allen and her mother, left New York on May 31, for Reno, Nevada, arriving there on June 10. He lived at the Del Monte Ranch. He testified that he went there to relieve his asthma and because of Nevada's liberal tax laws. He also gave conflicting testimony as to whether he went there in order to get a divorce. On June 11, he consulted a lawyer for whom his Worcester attorney had prepared a divorce memorandum. He opened a bank account and rented a safe deposit box, registered his automobile and took out a driver's license, all in Nevada. He did not sever his other ties with New York or Massachusetts. 51 Nevada law permits institution of proceedings for divorce after six weeks' residence. Forty-seven days after his arrival in the State, Coe filed a complaint for divorce, alleging six weeks' bona fide residence. Notice was mailed to Mrs. Coe, who followed to Reno, engaged an attorney, and demurred to the complaint. Subsequently, however, she and Coe entered into a written agreement, providing for a lump sum payment to Mrs. Coe of $7,500, and $35 per week. On September 19, she filed an answer in which she admitted Coe's residence as alleged in his complaint, and a cross-complaint. On the same day, a divorce was granted to Mrs. Coe, and the court adopted the agreement. Also on the same day, Coe married Dawn Allen. Two days later they left Reno, returned to New York, where Coe gave up his apartment, and returned to Worcester on October 1, residing at a house owned by him there. 52 On February 25, 1943, the Supreme Judicial Court of Massachusetts affirmed the separate maintenance decree of the Worcester County Probate Court. Coe made no payments to the respondent under either that decree or that of the Nevada court, other than the $7,500 lump sum. On May 22, 1943, respondent filed a petition in the Probate Court to have him cited for contempt. Coe petitioned to have the decree revoked because of the supervening Nevada divorce decree. 53 While this was pending, Coe and Dawn spent a part of the summer of 1943 at the Del Monte Ranch, near Reno, to confer with Coe's Nevada divorce lawyer and to negotiate for the purchase of the Ranch. Apparently, the purchase was not made. With the exception of this period, he and Dawn have resided at Worcester continuously since their marriage. Coe kept his bank accounts and post office box there, and paid his poll tax and other local taxes. In February, 1944, he purchased a more expensive house, into which they moved. In various formal papers, he noted Worcester as his residence. 54 On October 21, 1943, the Probate Court, on the basis of the Nevada divorce, revoked its separate maintenance decree. The respondent's proffer of evidence to show lack of jurisdiction in the Nevada court was rejected. This ruling was reversed by the Supreme Judicial Court, which sent the case back to allow evidence contradicting the Nevada finding of domicile. On remand, such evidence was taken, the gist of which has been summarized. The Probate Court found that the parties had been domiciled in Massachusetts throughout, and that Coe's trip to Nevada was made in order to obtain a divorce and not to change his domicile. These findings were upheld by the Supreme Judicial Court. 55 Conceding that matters of credibility were for the triers of fact, the evidence appears to me to have been ample to justify the findings that were made, even giving every weight to the contrary Nevada and Florida determinations and treating the burden on the party contradicting those determinations as most heavy. Judges, as well as jurors, naturally enough may differ as to the meaning of testimony and the weight to be given evidence. I would not deem it profitable to dissent on such an issue touching the unique circumstances of a particular case. My disagreement with the decision of the Court is not as to the weight of the evidence, but concerns what I take to be its holding, that the opportunity of the parties of litigate the question of jurisdiction in Nevada and Florida foreclosed Massachusetts from raising the question later. If the Court had merely held that the evidence was not sufficient to justify Massachusetts' findings contrary to what was recited in the decrees of Nevada and Florida, or as an added assurance that obligations of recognition be honored, had required of the Massachusetts court explicit avowal of the presumption in favor of the Florida and Nevada decrees, I should have remained silent. But the crux of today's decision is that regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain-counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy has been gone through. To such a proposition I cannot assent. Decisions of this Court that have not stood the test of time have been due not to want of foresight by the prescient Framers of the Constitution, but to misconceptions regarding its requirements. I cannot bring myself to believe that the Full Faith and Credit Clause gave to the few States which offer bargain-counter divorces constitutional power to control the social policy governing domestic relations of the many States which do not. 1 U.S.Const. Art. IV, § 1, provides: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' The Act of May 26, 1790, 1 Stat. 122, as amended, R.S. § 905, 28 U.S.C. § 687, 28 U.S.CA. § 687, provides in part: '* * * And the said records and judicial proceedings * * * shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.' 2 By statute, the Circuit Courts, as courts of equity, have jurisdiction of divorce causes. Florida Stat.Ann. § 65.01. Meloche v. Meloche, 1931, 101 Fla. 659, 662, 133 So. 339, 340, 140 So. 319. 3 Section 65.02 of Florida Stat.Ann. provides: 'In order to obtain a divorce the complainant must have resided ninety days in the State of Florida before the filing of the bill of complaint.' The Florida courts have construed the statutory requirement of residence to be that of domicile. Respondent does not contend nor do we find any evidence that the requirements of 'domicile' as defined by the Florida cases are other than those generally applied or differ from the tests employed by the Massachusetts courts. Wade v. Wade, 1927, 93 Fla. 1004, 113 So. 374; Evans v. Evans, 1940, 141 Fla. 860, 194 So. 215; Fowler v. Fowler, 1945, 156 Fla. 316, 22 So.2d 817. 4 The first allegation of respondent's answer stated: 'That the Plaintiff is not a bona-fide legal resident of the State of Florida and has not been such continuously for more than the ninety days immediately preceding the filing of the bill of complaint. That on or about April 3, 1944, while the parties were living together as residents of Monterey, Massachusetts, the Plaintiff came to Florida with the children of the parties for a visit and without any expressed intention of establishing a separate residence from the Defendant and has remained in Florida ever since, but without any intention of becoming a bona-fide resident of Florida.' 5 The agreement provided that respondent should have custody of the children during the school term of each year and that petitioner should be given custody throughout the rest of the year, subject to the right of both parents to visit at reasonable times. Before the final decree of divorce was entered, respondent returned to Massachusetts accompanied by the two children. 6 It is said that throughout most of the proceedings respondent did not appear in the courtroom but remained 'in a side room.' 7 Appeals lie to the Florida Supreme Court from final decrees of divorce. Fla.Const. Art. V, § 5. And see e.g., Homan v. Homan, 1940, 144 Fla. 371, 198 So. 20. 8 The action was brought pursuant to the provisions of Mass.Gen.Laws (Ter. Ed.) c. 209, § 36. 9 Petitioner testified that for many years prior to her departure for Florida, respondent had made frequent allusions to the fact that petitioner's mother had been committed to a mental institution and had suggested that petitioner was revealing the same traits of mental instability. Petitioner testified that as a result of these remarks and other acts of cruelty, her health had been undermined and that it had therefore become necessary for her to leave respondent. In order to insure her departure, she had represented that her stay in Florida was to be only temporary, but from the outset she had in fact intended not to return. Petitioner testified further that both before and after the Florida decree of divorce had been entered, she had intended to reside permanently in Florida and that she and Phelps had returned to Massachusetts only after receiving a letter stating that Phelps' father was in poor health. 10 1946, 320 Mass. 351, 69 N.E.2d 801. 11 See Williams v. North Carolina, 1945, 325 U.S. 226, 233, 234, 65 S.Ct. 1092, 1096, 1097, 89 L.Ed. 1577, 157 A.L.R. 1366; cf. Treinies v. Sunshine Mining Co., 1939, 308 U.S. 66, 78, note 26, 60 S.Ct. 44, 50, 84 L.Ed. 85. No Florida case has been called to our attention involving a collateral attack on a divorce decree questioning the domicile of the parties, and hence the jurisdiction of the court which entered the decree, where both parties appeae d in the divorce proceedings. See generally Everette v. Petteway, 1938, 131 Fla. 516, 528, 529, 179 So. 666, 671, 672; State ex rel. Goodrich Co. v. Trammell, 1939, 140 Fla. 500, 505, 192 So. 175, 177. But cf. Chisholm v. Chisholm, 1929, 98 Fla. 1196, 125 So. 694; Dye v. Dolbeck, 1934, 114 Fla. 866, 154 So. 847, involving attacks on jurisdictional findings made in ex parte divorce proceedings. 12 Bell v. Bell, 1901, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804. 13 See note 3 supra. 14 Baldwin v. Iowa State Traveling Men's Association, 1931, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; Stoll v. Gottlieb, 1938, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329; Sunshine Anthracite Coal Co. v. Adkins, 1940, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; Jackson v. Irving Trust Co., 1941, 311 U.S. 494, 61 S.Ct. 326, 85 L.Ed. 297. And see Forsyth v. Hammond, 1897, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095; Heiser v. Woodruff, 1946, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970. 15 American Surety Co. v. Baldwin, 1932, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A.L.R. 298; Treinies v. Sunshine Mining Co., 1939, 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 8. And see Chicago Life Insurance Co. v. Cherry, 1917, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966. 16 Davis v. Davis, 1938, 305 U.S. 32, 40, 59 S.Ct. 3, 6. And see Stoll v. Gottlieb, 1938, 305 U.S. 165, 172, note 13, 59 S.Ct. 134, 137. 17 See cases discussed supra. 18 We, of course, intimate no opinion as to the scope of Congressional power to legislate under Article IV, § 1 of the Constitution. See note 1 supra. 19 Justices Brewer, Shiras, and Peckham dissented. Mr. Justice Holmes took no part in the case. 20 Thus, in the Andrews case, before the divorce decree was entered by the South Dakota court, the defendant withdrew her appearance in accordance with a consent agreement. 21 See note 14 supra. 22 But cf. Williams v. North Carolina, 1945, 325 U.S. 226, 230, 65 S.Ct. 1092, 1095. 23 Davis v. Davis, 1938, 305 U.S. 32, 40, 59 S.Ct. 3, 6; Williams v. North Carolina, 1942, 317 U.S. 287, 294, 63 S.Ct. 207, 210, 211, 87 L.Ed. 279, 143 A.L.R. 1273. 24 Milwaukee County v. M. E. White Co., 1935, 296 U.S. 268, 276, 277, 56 S.Ct. 229, 233, 234; Magnolia Petroleum Co. v. Hunt, 1943, 320 U.S. 430, 439, 64 S.Ct. 208, 213, 88 L.Ed. 149, 150 A.L.R. 413. 25 But we may well doubt that the judgment which we herein announce will amount to substantial interference with state policy with respect to divorce. Many States which have had occasion to consider the matter have already recognized the impropriety of permitting a collateral attack on an out-of-state divorce decree where the defendant appeared and participated in the divorce proceedings. See, e.g., Norris v. Norris, 1937, 200 Minn. 246, 273 N.W. 708; Miller v. Miller, Sup., 1946, 65 N.Y.S.2d 696, affirmed, 1947, 271 App.Div. 974, 67 N.Y.S.2d 379; Cole v. Cole, 1924, 96 N.J.Eq. 206, 124 A. 359. 26 Broderick v. Rosner, 1935, 294 U.S. 629, 642, 55 S.Ct. 589, 592, 79 L.Ed. 1100, 100 A.L.R. 1133; Williams v. North Carolina, 1942, 317 U.S. 287, 294, 295, 63 S.Ct. 207, 210, 211. 27 Williams v. North Carolina, 1945, 325 U.S. 226, 65 S.Ct. 1092. 28 Cf. Stoll v. Gottlieb, 1938, 305 U.S. 165, 172, 59 S.Ct. 134, 137. 1 Nor do I regard Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518, as contrary authority. That case did not depend for its result on the fact that there had been an adjudication of the jurisdiction of the court rendering the divorce enforced, inasmuch as this Court found that the State granting the divorce was in fact that of the domicile. 305 U.S. at page 41, 59 S.Ct. at pages 6, 7. Moreover this Court's citation therein of Andrews v. Andrews, supra, indicates an absence of intention to overrule the holding of that case that opportunity to litigate the issue of domicile does not foreclose inquiry as to the true facts. Andrews v. Andrews has since been cited with respect, as recently as Williams v. North Carolina, 317 U.S. 287, 309, 320, n. 7, 63 S.Ct. 207, 218, 223, 87 L.Ed. 279, 143 A.L.R. 1273, and Id., 325 U.S. 226, 229, 240, 242, 65 S.Ct. 1092, 1094, 1095, 1100. 2 Compare the English laws providing for a King's Proctor to represent the interests of the Crown in divorce proceedings. Sections 5—7, Matrimonial Causes Act, 1860, 23 & 24 Vict., c. 44; § 1, Matrimonial Causes Act, 1873, 36 & 37 Vict., c. 31; § 181, The Supreme Court of Judicature (Consolidation) Act, 1925, 15 § 16 Geo. 5, c. 49, 9 Halsbury's Statutes of England 393, 394. 3 Rev.L. 1835, c. 76: § 39. When any inhabitant of this state shall go into any other state or country, in order to obtain a divorce for any cause which had occurred here, and whilst the parties resided here, or for any cause which would not authorize a divorce by the laws of this state, a divorce so obtained shall be of no force or effect in this state. § 40. In all other cases, a divorce decreed in any other state or country, according to the law of the place, by a court having jurisdiction of the cause and of both of the parties, shall be valid and effectual in this state.' 4 See note 13, infra. 5 Del.Rev.Code c. 86, § 29 (1935). 6 N.J.S.A. § 2:50—35 (1939). 7 Wis.Stat. § 247.21 (1945). 8 Me.Rev.Stat. c. 73, § 12 (1930). 9 The result of the assertion of the State's interest may be a windfall to a party who has sought to bargain his or her rights away and now seeks to renege on the agreement. This fact, however, should scarcely be allowed to stand in the way of the assertion by the State of its paramount concern in the matter. Such an unexpected windfall to a party, who by ethical standards may be regarded as undeserving, is a frequent consequence of findings of lack of jurisdiction. See Holmes, C.J., in Andrews v. Andrews, 176 Mass. 92, 96, 57 N.E. 333. 10 See note 13, infra. 11 Today's decision would also seem to render invalid, under the Full Faith and Credit Clause, a large proportion of the commonly encountered injunctions against a domiciliary prosecuting an out-of-State divorce action. Cf. Kempson v. Kempson, 58 N.J.Eq. 94, 43 A. 97, Id., 61 N.J.Eq. 303, 48 A. 244 Id., 63 N.J.Eq. 783, 52 A. 360, 625, 58 L.R.A. 484, 92 Am.St.Rep. 682; Pound, The Progress of the Law-Equity, 33 Harv.L.Rev. 420, 425—28; Jacobs, The Utility of Injunctions and Declaratory Judgments in Migratory Divorce, 2 Law & Contemp.Prob. 370; Note, 13 Bklyn.L.Rev. 148. Since no State may enjoin its inhabitants from changing their domiciles in order to procure divorces, it would seem that henceforth a recital of domicile in the out-of-State divorce decree will render the injunction retroactively invalid if there has been any semblance of a contest in the divorce proceeding. 12 The Massachusetts law is surely legislation within the field regulating the domestic relations of husband and wife, and, as such, within the scope of 'matters reserved to the States.' It can scarcely be doubted that if a constitutional amendment withdrew this field from the States and gave it to the Federal Government, an Act of Congress, making the same provision substantively as did Massachusetts, regarding divorces granted in countries other than the United States to citizens of this country, would be held constitutional. Such a law is not less a law concerning 'the domestic relations of husband and wife,' even though incidentally it may affect the force to be given to what appears to be a judgment of a sister State. 13 Three modes of achieving uniformity have been attempted adoption of a constitutional amendment authorizing Federal domestic relations legislation; Congressional action implementing the Full Faith and Credit Clause; and uniform State legislation. Such attempts were originally fostered by those who sought legislation rendering divorce uniformly difficult to obtain. See Lichtenberger, Divorce (1931) pp. 187 et seq.; Cavers, Foreword, 2 Law & Contemp. Prob. 289. The first effort to amend he Constitution to empower Congress to enact domestic relations legislation uniform throughout the Nation was made in 1884. Since then at least seventy similar amendments have been proposed. Ames, The Proposed Amendments to the Constitution of the United States during the First Century of its History, (1896) Ann.Rep. American Historical Ass'n, reprinted as H.R.Doc. No. 353, 54th Cong., 2d Sess., pt. 2, p. 190; Sen.Dec. No. 93, 69th Cong., 1st Sess.; 'Proposed Amendments to the Constitution of the United States Introduced in Congress from the 69th Congress, 2d Session through the 78th Congress, December 6, 1926, to December 19, 1944' (U.S. Govt. Printing Office, 1946). None has been favorably acted upon. Sess, e.g., H.R.Rep. No. 1290, 52nd Cong., 1st Sess., p. 2, in which the majority of the House Judiciary Committee, reporting adversely on such a proposed amendment, pointed out that Congress might achieve a measure of uniformity, through exercise of its existing powers to implement the Full Faith and Credit Clause. Suggestions that such a statute be enacted by Congress, have not been lacking. See, e.g., 52 Rep. A.B.A. 292, 319; Corwin, The 'Full Faith and Credit' Clause, 81 U. of Pa.L.Rev. 371, 388; cf. Mr. Justice Stone, dissenting, in Yarborough v. Yarborough, 290 U.S. 202, 215, n. 2,5 4 S.Ct. 181, 186, 78 L.Ed. 269, 90 A.L.R. 924; Jackson, Full Faith and Credit—The Lawyers' Clause of the Constitution, 45 Col.L.Rev. 1, 21. And Senator McCarron of Nevada is currently seeking to have such legislation adopted. See S. 1960, 80th Cong., 2d Sess. The most vigorous efforts, however, have been made in the direction of securing uniform State legislation. President Theodore Roosevelt, in calling on Congress to provide for compilation of marriage and divorce statistics, included a suggestion of cooperation among the States in enacting uniform laws. 15 Richardson, Messages and Papers of the Presidents 6942. On the initiative of the Governor of Pennsylvania, a National Congress on Uniform Divorce Laws, in which forty-two States were represented, was called in 1906. This Congress resolved that a constitutional amendment was not feasible and drafted resolutions concerning uniform State legislation. Lichtenberger, supra, 191 96. See also Proceedings, National Congress on Uniform Divorce Laws (1906) passim; Proceedings 2d Meeting of the Governors of the States of the Union (1910) pp. 185—98. It is interesting to note that even these proponents of uniformity advocated that each State 'adopt a statute embodying the principle contained in' the very Massachusetts statute now held unconstitutional by the Court perhaps in the interests of uniformity. Lichtenberger, supra, at 194. The bill prepared by the Congress was also approved by the Commissioners on Uniform State Laws (Proceedings, 17th Ann.Conf., Commissioners on Uniform State Laws (1907) pp. 120 et seq.) but was adopted by only three States. See pp. 5—6, supra. The Commissioners eventually decided that no uniform law establishing substantive grounds for divorce could succeed, and replaced this proposal with the Uniform Divorce Jurisdiction Act, which would have accorded recognition to a wider range of decrees than were protected by Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, then in force. (1930) Handbook of the National Conference of Commissioners on Uniform State Laws, pp. 498—502. This act has been adopted only by Vermont, L.1931, No. 45, and was repealed two years later. L.1933, No. 38. Meanwhile, other organizations have not given up the attempt to have enacted uniform divorce laws, although in recent years the objective has usually been uniformly liberal rather than uniformly repressive legislation. See, e.g., Woman's Home Companion, Dec. 1947, p. 32. Even in the international field, attempts to avoid conflicts as to the extraterritorial validity of divorces have been made. See, e.g., Convention to Regulate Conflicts of Laws and of Jurisdiction in Matters of Divorce and Separation, The Hague, June 12, 1902. 14 See the interesting account of Nevada's divorce mill, written by two members of the Nevada Bar, Ingram and Ballard, The Business of Migratory Divorce in Nevada, 2 Law & Contemp.Prob. 302; cf. Bergeson, The Divorce Mill Advertises, id. at 348. 15 Quaere, whether today's decision applies to ex parte Nevada decrees by default, where the defendant later files a general appearance and the record is made to show jurisdiction nunc pro tunc. Nev.Comp.Laws § 9488. 16 It is by no means clear that the issue before the Massachusetts courts in either of these cases was or could have been litigated in Florida or Nevada. All that the Florida or Nevada courts could have determined was whether the jurisdictional requisites of State law and of the due process clause of the Constitution, Amend. 14, were met. And if a direct attack on these decrees had been made in this Court, all that we could have decided would have been the due process point. A divorce may satisfy due process requirements, and be valid where rendered, and still lack the jurisdictional requisites for full faith and credit to be mandatory. Compare Williams v. North Carolina, 317 U.S. 287, 307, 63 S.Ct. 207, 217 (concurring opinion), with Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092. This is true even though the Florida and Nevada courts appear to characterize the jurisdictional prerequisites under their respective laws as domicile, Wade v. Wade, 93 Fla. 1004, 1007, 113 So. 374; Latterner v. Latterner, 51 Nev. 285, 274 P. 194; since we may be unwilling to apply as loose a test of 'domicile,' in determining whether extrastate enforcement is mandatory, as those States might properly choose to use in determining what divorces might be granted and effective within their own borders. Thus, at no point in the proceedings in Florida or Nevada in the instant cases was there an opportunity to litigate whether Mrs. Sherrer or Mr. Coe had acquired Florida or Nevada domicile, respectively, sufficient to entitle their divorces to extraterritorial recognition. 17 North Carolina appears to be the only other State allowing divorce on less than a year's residence, but it does not allow divorce for many of the usual causes. The Williams cases attest that its laws are not lax. 18 The easier it is made for those who through affluence are able to exercise disproportionately large influence on legislation, to obtain migratory divorces, the less likely it is that the divorce laws of their home States will be liberalized, insofar as that is deemed desirable, so as to affect all. See Groves, Migratory Divorces, 2 Law & Contemp.Prob. 293, 298. For comparable instances, in the past, of discrimination against the poor in the actual application of divorce laws, cf. Dickens, Hard Times, c. 11; Haskins, Divorce, 5 Encyc.Soc.Sci. 177, 179. 19 For purposes of State taxation, he might well have been regarded as domiciled in either State. Cf. Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268; Texas v. Florida, 306 U.S. 398, 59 S.Ct. 830, 83 L.Ed. 817.

FILED NOT FOR PUBLICATION DEC 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 UNITED STATES OF AMERICA, No. 10-10585 Plaintiff - Appellee, D.C. No. 2:07-cr-00080-CRW- PAL-3 v. GARY COLOMBO, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Charles R. Wolle, Senior District Judge, Presiding Submitted December 9, 2011 ** San Francisco, California Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District Judge.*** * 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). ** The Honorable William H. Stafford, Jr., Senior District Judge for the U.S. District Court for Northern Florida, sitting by designation.  Gary Colombo pleaded guilty to participating in a massive wire fraud in exchange for considerable favorable concessions by the government. Notwithstanding his plea agreement’s waiver of appeal clause, he appeals on two related grounds, neither of which we conclude is valid. 1) Colombo attacks the validity of his plea including his appeal waiver on the ground that the agreement lacked a valid factual basis. We disagree. In his signed and counseled agreement, he unmistakably admitted participating in the alleged conspiracy with the requisite state of mind. When asked by the district court if he was pleading guilty because he was guilty, he said “I’d guess I’d have to say yes.” Not only is this record devoid of plain error, but his plea agreement and his plea allocution taken together demonstrate a clear factual basis for the plea to which he admitted. 2) Thus, his attempt to vitiate his waiver of the right to appeal fails. See United States v. Michlin, 34 F.3d 896 (9th Cir. 1994); United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) (valid appeal waivers serve an “important function in the judicial administrative process”). APPEAL DISMISSED. 2 

11th Court of Appeals Eastland, Texas Opinion   James D. Harlow             Appellant Vs.            No. 11-03-00080-CV – Appeal from Brown County John Matthew Giles, Sam Treldon Cutbirth, Robert Beadel, and Bradley W. Brookshire              Appellees               James D. Harlow filed this adverse possession suit against John Matthew Giles, Sam Treldon Cutbirth, Robert Beadel, and Bradley W. Brookshire. Harlow alleged that he owned 28.64 acres in Brown County under the terms of a deed and, alternatively, that he had acquired title to the 28.64 acres by adverse possession. After a nonjury trial, the trial court found against Harlow on his ownership-by-deed and adverse possession claims. Harlow limits his challenge on appeal to the trial court’s finding on his adverse possession claims. In his sole appellate issue, Harlow argues that the trial court erred because the evidence was legally and factually insufficient to support the finding that he had not been in peaceable and adverse possession of any of appellees’ property in the manner or for the period of time required to establish title by adverse possession. We affirm. The Property in Dispute              In 1961, Harlow and his wife, Dorothy Henry Harlow, purchased a 2,215-acre ranch. In 1972, the Harlows sold the property to Claude R. McClennahan, Jr. R. L. Barnett performed a survey in connection with the Harlows’ sale to McClennahan. The general warranty deed from the Harlows to McClennahan described the property as being a 2,213.1-acre tract, “being the same land as that certain tract of land said to contain 2215 acres, conveyed to [Harlow] et ux by [Henry] et ux.” Harlow claims that he discovered a mistake in the property line description in Barnett’s survey after the sale to McClennahan. Harlow asserts that Barnett performed a second survey showing that the Harlows owned 28.64 acres that were not included in the sale to McClennahan. These 28.64 acres are the subject of this suit.             The 28.64 acres consists of two adjacent tracts of land: one of 18.9 acres and the other of 9.74 acres. Appellees own ranches adjoining the 2,215-acre ranch that the Harlows sold to McClennahan. Appellees claim that they collectively own the 28.64 acres. Beadel, Cutbirth, and Giles claim that they each own part of the 18.9-acre tract; Brookshire claims that he owns the 9.74-acre tract. Harlow argues that he obtained title to the 18.9-acre tract by virtue of the 10-year and the 25-year adverse possession statutes and to the 9.74-acre tract by virtue of the 10-year adverse possession statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.026 & 16.027 (Vernon 2002). Harlow’s Ownership-By-Deed Claim             A substantial portion of the evidence at trial related to Harlow’s ownership-by-deed claim. Larry Hada, a surveyor, testified in support of Harlow’s claim that the Harlows owned 28.64 acres that were not included in the sale to McClennahan. Harlow also presented other testimony and introduced deeds and other documents in support of his ownership-by-deed claim. Don King, a surveyor, testified as an expert witness in support of appellees’ claims that the Harlows sold all of the property that they owned to McClennahan and that the 28.64 acres were located within the boundaries of appellees’ properties. Appellees also presented other testimony and introduced deeds and other documents in support of their ownership claims.             Appellees also presented Dale Stobaugh, a forensic document examiner employed by the Department of Public Safety, as an expert witness. Stobaugh testified that, in his opinion, some of the documents relied on by Harlow were not authentic. He said that, in his opinion, the documents could not have been created until years after they were purported to have been prepared. Appellees presented other testimony that some of the documents relied on by Harlow had been altered. The trial court found against Harlow on his ownership-by-deed claim and, therefore, determined that the 28.64 acres fell within the appellees’ property boundaries.              Harlow’s Adverse Possession Claims             Harlow’s adverse possession claims to the two tracts are based on independent facts. Harlow argues that the following evidence regarding the fencing of the 18.9-acre tract satisfied the requirements of the 10-year and 25-year adverse possession statutes: (1) that Weldon Mahan rebuilt the fence separating the 2,215-acre ranch from appellees’ property in 1948; (2) that the 18.9-acre tract was under Harlow’s fence when the Harlows purchased the 2,215-acre ranch in 1961; and (3) that Harlow completely enclosed the 18.9-acre tract in 1973 after McClennahan declined to purchase the tract. Harlow also argues that the following evidence demonstrated his adverse possession of the 18.9-acre tract after completely enclosing it in 1973: (1) that Harlow grazed sheep and horses on the property in the 1970s and one horse on the property until a year before trial; (2) that Harlow leased the 18.9-acre tract to Mahan from about 1978 to 1982 and to Robert Lorah from about 1990 to 1995 for hunting purposes; (3) that Lorah and his guests hunted on the 18.9-acre tract; (4) that Harlow and his brother drilled a water well on the 18.9-acre tract in 1981 or 1982; (5) that Harlow and his son paid taxes on the 18.9-acre tract; and (6) that Cutbirth, Beadel, and Giles knew that Harlow claimed ownership of the 18.9-acre tract.             Harlow argues that the following evidence established his adverse possession of the 9.74-acre tract: (1) that Harlow, with the agreement of Brookshire’s predecessor-in-interest, H. R. Stasney, fenced the 9.74-acre tract with a one wire electric fence in 1973; (2) that, until 1990 or 1991, Harlow and his hunters went through the 9.74-acre tract to get to the 18.9-acre tract; and (3) that Harlow and his son paid taxes on the 9.74-acre tract.             Standard of Review             The standards that apply to a review of jury findings also apply to findings made by the trial court after a bench trial. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Roach v. Dickenson, 50 S.W.3d 709, 711 (Tex.App. – Eastland 2001, no pet’n). Harlow had the burden of pleading and proving the elements of his adverse possession claims. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). When a party attacks the legal sufficiency of an adverse finding on an issue on which it has the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Company v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Escalante v. Luckie, 77 S.W.3d 410, 414 (Tex.App. – Eastland 2002, pet’n den’d). When a party attacks the factual sufficiency of an adverse ruling on an issue on which it has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chemical Company v. Francis, supra; Escalante v. Luckie, supra. Thus, Harlow must demonstrate on appeal either: (1) that he established each element of his adverse possession claims as a matter of law or (2) that the trial court’s finding as to the failure of proof of the elements of his claims was against the great weight and preponderance of the evidence. Williford Energy Company v. Submergible Cable Services, Inc., 895 S.W.2d 379, 383-84 (Tex.App. – Amarillo 1994, no writ).             In a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Munters Corporation v. Swissco-Young Industries, Inc., 100 S.W.3d 292, 296 (Tex.App. – Houston [1st Dist.] 2002, pet’n dism’d). The trial court may take into account all the surrounding facts and circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Munters Corporation v. Swissco-Young Industries, Inc., supra at 297. These rules are particularly appropriate in this case. A substantial portion of the testimony involved witnesses testifying about and pointing to various places on different plats. This testimony was difficult to follow in the record. Thus, the trial court was in a much better position to evaluate the evidence. Adverse Possession             Section 16.026(a) provides:             A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.               Section 16.027 provides:             A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.   A party seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, supra at 645. The party claiming adverse possession must prove an actual and visible appropriation of the land for 10 or more consecutive years under the 10-year statute and for 25 or more consecutive years under the 25-year statute. Rhodes v. Cahill, supra. The use of the land “must constitute an actual and visible appropriation of the land such that the true owner is given notice of a hostile claim.” Rhodes v. Cahill, supra (citing Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 785-87 (Tex.1954)). The possession must be “actual, visible, continuous, notorious, distinct, hostile, and of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Terrill v. Tuckness, 985 S.W.2d 97, 107 (Tex.App. – San Antonio 1998, no pet’n)(citing Rhodes v. Cahill, supra). Sporadic, irregular, and occasional use of land does not satisfy the adverse possession statutes. Vaughan v. Anderson, 495 S.W.2d 327, 332 (Tex.Civ.App. – Texarkana 1973, writ ref’d n.r.e.). Exclusive possession of the land is required to support an adverse possession claim; the adverse possession claimant must wholly exclude the owner from the property. Terrill v. Tuckness, supra; Kleckner v. McClure, 524 S.W.2d 608, 613 (Tex.Civ.App. – Fort Worth 1975, no writ). The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).             Harlow argues that the fencing of the 18.9-acre tract satisfied the requirements of the adverse possession statutes. The case law distinguishes “casual fences” from those that “designedly enclose” an area. The law is well settled that the mere grazing of land incidentally enclosed by a fence created by others cannot support a claim of adverse possession. McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex.1971); West Production Co. v. Kahanek, 121 S.W.2d 328, 331 (Tex.1938); Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex.App. – Houston [14th Dist.] 1996, no writ). Where the fence existed prior to the claimant’s possession of the land and the claimant fails to demonstrate the purpose for which the fence was erected, the fence is a “casual fence.” Rhodes v. Cahill, supra. Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant’s animals within the enclosed area, generally does not change a casual fence into a designed enclosure. Rhodes v. Cahill, supra.             In Mohnke, the evidence was undisputed that a barbed wire fence existed at the time the adverse possession claimants purchased the property. The claimants presented testimony that the fence had always been used to keep cattle in the property and to delineate the border with the adjacent property. However, the claimants’ witnesses also testified that they did not remember when the original fence was erected and that they did not know who had originally constructed the fence. The court of appeals upheld the trial court’s finding that there was no evidence as to the purpose of construction of the original fence. The court of appeals explained that, “[a]lthough these witnesses testified as to how the fence had been used, no one testified that this was in fact the original purpose of construction.” Mohnke v. Greenwood, supra at 593-94. (Emphasis in original) Thus, the claimants’ evidence regarding the use of the property failed to establish that the barbed wire fence was a designed enclosure.              In this case, Mahan provided testimony about the history of the fence. He said that he rebuilt the fence in 1948 or 1949. He stated that the government had used the property during World War II and that, at that time, the wire had been removed from the old fence. He also said that the government had left the old fence posts in place. He believed that the fence posts were at least 100 years old. He said that he rebuilt the wire fence along the old fence line, replacing the old fence posts with new wood fence posts. Mahan did not testify about the purpose of construction of the original fence. There was no evidence regarding the purpose for which the fence was originally erected. Harlow failed to establish that the fence was a “designed enclosure.” The fence was a “casual fence” and did not support Harlow’s adverse possession claim. Rhodes v. Cahill, supra at 646; McDonnold v. Weinacht, supra; Mohnke v. Greenwood, supra at 593-94.             The evidence would also support a finding that the 18.9-acre tract was not under fence for the time period required by the adverse possession statutes. While Harlow claims that he completely enclosed the 18.9-acre tract in 1973, Cutbirth and Beadel testified that there were gaps in the fence in 1974. Cutbirth said that he had been grazing sheep and cattle and hunting on his part of the 18.9-acre tract since 1974. Beadel testified that he and his predecessor-in-interest, H. H. Hargrove, had continually used his part of the 18.9-acre tract since 1974. Beadel said that he had grazed cattle and hunted on the property. The testimony of Cutbirth and Beadel supports a finding that the 18.9-acre tract was not under fence in 1974 and the following years.               Harlow’s grazing of a few sheep and two horses on the 18.9 acres during the 1970s and one horse on the property until about a year before trial is insufficient to establish adverse possession. Where an adverse possession claimant relies on mere grazing to show adverse use, the claimant must demonstrate that he “designedly enclosed” the tract at issue. Terrill v. Tuckness, supra at 108. As stated above, Harlow failed to establish that the 18.9-acre tract was fenced as a “designed enclosure.”              Additionally, Harlow’s testimony that he had one horse on the property for more than 10 years is insufficient to establish adverse possession for other reasons. First, the grazing of one horse on the land, standing alone, would not constitute actual and visible use of the property for adverse possession purposes. Second, there was no evidence that anyone else had ever seen the horse on the property.             The leasing of the 18.9-acre tract to Mahan for about four years and to Lorah for about five years, standing alone, did not constitute an actual and visible appropriation of the property. There was no evidence that appellees were aware of the leases. Mahan testified that he leased the property in an effort to keep hunters off of the property. There was no evidence that Mahan ever hunted on the property. Lorah said that he and his guests hunted on the property two times a month and on holidays. Lorah’s occasional use of the property for hunting purposes, including the construction of deer blinds and deer feeders, on its own, was insufficient to establish adverse possession. See Bramlett v. Harris & Eliza Kempner Fund, 462 S.W.2d 104, 105 (Tex.Civ.App. – Houston [1st Dist.] 1970, writ ref’d n.r.e.). The evidence also failed to establish that Harlow’s hunters had used the property for 10 or more consecutive years.             Harlow’s testimony that he and his brother built a water well on the 18.9-acre tract in 1981 or 1982 is not evidence of adverse possession. Such an isolated instance of use will not support adverse possession. See Vaughan v. Anderson, supra at 332.             Harlow testified that he and his son paid the taxes on the 18.9-acre tract. He also introduced copies of checks and receipts showing payment of taxes for some years. The payment of taxes is some evidence of adverse possession, but it is insufficient to establish adverse possession as a matter of law. Rhodes v. Cahill, supra at 645-46; Templeton v. Dreiss, 961 S.W.2d 645, 670 (Tex.App. – San Antonio 1998, pet’n den’d); Dellana v. Walker, 866 S.W.2d 355, 361 (Tex.App. – Austin 1993, pet’n den’d). Additionally, the evidence also supports a finding that appellees also paid taxes on the 18.9-acre tract. Cutbirth and Beadel both testified that they had paid the taxes on their respective parts of the 18.9-acre tract. Beadel said that he was unaware that Harlow had paid any taxes on the property. There was no evidence that any of the appellees knew that Harlow was paying taxes on the property. Based on the conflicting evidence, the trial court could have determined that Harlow, Cutbirth, and Beadel all paid taxes on the disputed acreage. Harlow’s payment of taxes, particularly under the circumstances of this case, was not a visible appropriation of the property as required by the adverse possession statutes.             Harlow also asserts that Cutbirth, Beadel, and Giles all had notice of his ownership claim. Harlow filed a lawsuit in 1977 against Beadel’s predecessor-in-interest, Hargrove, in which Harlow claimed to own the 18.9 acres. Cutbirth and Beadel both testified that they had knowledge of the suit. Their knowledge of the suit does not support Harlow’s adverse possession claim. The filing of the suit was not an actual and visible use of the property. Additionally, the suit was dismissed in 1981 without a resolution of Harlow’s ownership claim. Also, the evidence described above supports a finding that Cutbirth and Beadel were both using their parts of the 18.9-acre tract during the period of time that Harlow’s suit was on file.             The evidence showed that Mardell Bishop, an employee of Giles’s father, had assisted Hargrove in repairing part of the fence on Giles’s property sometime during the 1990s. Bishop testified that Gerald Giles told him to put the fence where Harlow said to put it. Harlow asserts that this evidence demonstrates Giles’s notice of his ownership claim. Bishop’s help in repairing the fence on Giles’s property in the 1990s, on its own, is insufficient to establish adverse possession. Repairing or maintaining a casual fence does not change it into a designed enclosure. Rhodes v. Cahill, supra at 645. Additionally, the repairing of part of the fence on Giles’s property was not a use of the 18.9-acre tract.              The matters relied on by Harlow, standing alone or collectively, were insufficient to establish adverse possession of the 18.9-acre tract. The evidence did not establish an actual and visible appropriation of the land for 10 or more consecutive years. Harlow’s adverse possession claim to the 18.9-acre tract fails for another reason. The evidence did not demonstrate that he had exclusive possession of the tract for 10 or more consecutive years. As set forth above, Cutbirth and Beadel testified that they had both used their part of the 18.9-acre tract since 1974. Thus, the evidence did not demonstrate that Harlow had exclusive possession of the 18.9-acre tract. Therefore, his adverse possession claim fails for this additional reason. Terrill v. Tuckness, supra at 107.             Harlow testified that he built the one-wire electric fence in 1973 after Brookshire’s predecessor-in-interest, Stasney, agreed that the 9.74-acre tract belonged to him. Harlow’s evidence about the fence, standing alone, does not support his adverse possession claim because a one-wire electric fence does not constitute possession that is “actual, visible, continuous, notorious, distinct, hostile, and of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” See Terrill v. Tuckness, supra at 107.               Additionally, appellees presented evidence disputing (1) Stasney’s alleged agreement and (2) Harlow’s claim that he had built the one-wire electric fence. Appellees introduced three typewritten letters into evidence: (1) a letter from Harlow’s attorney, J. V. Hammett, to Stasney, dated October 12, 1973; (2) a letter from Stasney to Harlow, dated September 30, 1973; and (3) a letter from Stasney to Harlow, dated October 20, 1973. Hammett’s letter indicated his understanding that Stasney had agreed that the 9.74 acres belonged to Harlow. Hammett also stated that:             I advised Mr. Harlow to build a one wire electric fence along the new survey line while the survey stakes are still in place. The one wire electric fence will be adequate to satisfy the requirements of the 16.026 code.   Stasney’s letters to Harlow evidenced Stasney’s agreement that Harlow owned the 9.74-acre tract. Stasney also acknowledged that Harlow had built a one-wire electric fence.             Appellees assert that these three typewritten letters were created years after they were purported to have been written and that Harlow created the letters in an effort to bolster his claims. The margins of the letters were fully justified. Appellees’ expert, Stobaugh, testified that typewriters did not have “full justification” technology in 1973 and that “full justification” technology was not commercially available until 1982. Additionally, Hammett’s letter referenced the “16.026 code.” Section 16.026 of the Civil Practice and Remedies Code – the 10-year adverse possession statute involved in this case – was not enacted until 1985. Appellees also offered the testimony of Eddie Boone, a neighbor, and King that they had not seen a one-wire electric fence in the area.             The evidence that Harlow and Lorah went through the 9.74-acre tract to get to the 18.9-acre tract does not support an adverse possession claim. At most, this use of the 9.74-acre tract was sporadic or occasional and, therefore, did not satisfy the adverse possession statutes. Vaughan v. Anderson, supra at 332.             Harlow’s payment of the taxes on the 9.74-acre tract, standing alone, was insufficient to establish adverse possession for the reasons set forth above. See Templeton v. Dreiss, supra at 670.             The matters relied on by Harlow, standing alone or collectively, were insufficient to establish adverse possession of the 9.74-acre tract. The evidence did not establish an actual and visible appropriation of the land for 10 or more consecutive years.             Harlow did not establish adverse possession as a matter of law with respect to either tract. Appellees presented evidence contradicting many of the factual matters relied on by Harlow in urging his adverse possession claims. As such: The evidence on adverse possession presented nothing more than an opportunity for the trial court, as fact finder, to weigh the credibility of the witnesses, draw inferences and make reasonable deductions from the evidence and to believe or disbelieve all or part of it.   Templeton v. Dreiss, supra at 670. We find that the evidence was legally and factually sufficient to support the trial court’s finding that Harlow had not been in peaceable and adverse possession of any of the appellees’ property in the manner or for the period of time required to establish title by adverse possession. Harlow’s sole issue is overruled. This Court’s Ruling             The judgment of the trial court is affirmed.                                                                                                   TERRY McCALL                                                                                                  JUSTICE   April 1, 2004 Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-11206 Conference Calendar RODNEY WAYNE FERRELL, Plaintiff-Appellant, versus WILLIAM R. BARR, Public Defender; COUNTY OF DALLAS; MOLLY MEREDITH FRANCIS, Judge 283rd District Court Dallas County, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-1676 -------------------- April 12, 2001 Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges. PER CURIAM:* Rodney Wayne Ferrell, Texas inmate #809975, appeals from the dismissal of his civil rights action as frivolous and moves this court to appoint counsel. He contends that the presiding judge at his probation-revocation hearing and his court-appointed attorney conspired to deprive him of his right to counsel when appellate counsel was not appointed until after the deadline for filing a motion for new trial, requiring him to file a pro se * 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. 00-11206 -2- notice of appeal, and resulting in a dismissal of the appeal for lack of jurisdiction. Ferrell's action is barred by Heck v. Humphrey, 512 U.S. 477 (1994) because it implicates the validity of his probation revocation, and he has not shown that his probation revocation, conviction, or sentence has been overturned or otherwise invalidated by an authorized tribunal or executive body. Heck notwithstanding, the district court did not abuse its discretion in dismissing Ferrell’s complaint on the merits. Ferrell’s claim against Judge Francis fails because judges are absolutely immune from damages for acts performed in the exercise of their judicial functions. Mays v. Sudderth, 97 F.3d 107, 110- 11 (5th Cir. 1996). Ferrell has also failed to state a cognizable constitutional claim against Attorney Barr. A defense attorney does not act "under color of state law" for 42 U.S.C. § 1983 purposes when he performs a lawyer's traditional functions as counsel to a defendant in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Ferrell’s claim against Dallas County was properly dismissed because he failed to allege sufficient facts establishing that Dallas County had a custom, policy, or practice which caused him to be subjected to a constitutional deprivation. See Collins v. City of Harker Heights, Tex., 916 F.2d 284, 286 (5th Cir. 1990), aff’d, 503 U.S. 115 (1992). Ferrell's Motion to Appoint Counsel is denied. AFFIRMED; MOTION TO APPOINT COUNSEL DENIED. 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-30323 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LESTER J. MILLET, JR., Defendant-Appellant. -------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 95-CR-187-ALL-T -------------------- October 21, 1999 Before JOLLY, JONES and BENAVIDES, Circuit Judges. PER CURIAM:* Lester Millet appeals from the district court’s denial of his motion for new trial, evidentiary hearing, and in camera inspection of evidence. Millet’s motion stems from his 1996 conviction by jury for violations of 18 U.S.C. §§ 2, 1951 (Hobbs Act); § 1952 (Travel Act), and §§ 2, 1956 (money laundering). The convictions were based on Millet’s misuse of his official position as Parish President of St. John the Baptist Parish, Louisiana, in persuading officials of Formosa Chemical Corporation (Formosa) to purchase land in the parish. Millet’s * 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. 99-30323 -2- convictions were affirmed on appeal. United States v. Millet, 123 F.3d 268 (5th Cir. 1997). Millet argues that he is entitled to a new trial under Fed. R. Crim. P. 33 because of newly discovered evidence. Millet contends that an official of Formosa would now testify that Millet’s activities were not a factor in Formosa’s decision to abandon plans to build a rayon plant in the parish, and thus Millet’s activities did not have the requisite effect on interstate commerce necessary to support a conviction under the Hobbs Act. Millet also contends that the Government suppressed this testimony in violation of Brady v. Maryland, 373 U.S. 83 (1963). This court will reverse the denial of a motion for a new trial only when there has been an abuse of discretion. United States v. Pena, 949 F.2d 751, 758 (5th Cir. 1991). The district court did not abuse its discretion in denying Millet’s motion because Millet has not shown that the evidence is in fact newly discovered since the official in question testified at trial, nor has Millet shown that the evidence probably would produce a different result in a new trial. United States v. MMR Corp., 954 F.2d 1040, 1046-47 (5th Cir. 1992). Evidence is material under Brady when there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682 (1985). Millet has not shown that the Government suppressed the testimony in question or that the testimony is material Brady evidence.  No. 99-30323 -3- AFFIRMED. 

690 N.E.2d 119 (1997) 293 Ill. App.3d 620 228 Ill.Dec. 810 Don NORTON, Gerald Marlatt, William Knack, Ruth Knack, Jane Reames and all others Similarly situated, Plaintiffs-Appellants, v. The CITY OF CHICAGO, Datacom System Corporation and Cook County, Defendants-Appellees. No. 1-96-2684. Appellate Court of Illinois, First District, Third Division. December 10, 1997. *121 Rick Schoenfield, Schoenfield, Swartzman & Massin, Chicago, for Plaintiffs-Appellants. Richard A. Devine, State's Attorney of Cook County, Chicago (Patricia M. Shymanski, Deputy State's Attorney, and Patricia M. Moser, Paul A. Castiglione and Donna M. Lach, Assistant State's Attorneys, of counsel), for Defendant-Appellee Cook County. Justice CAHILL delivered the opinion of the court: We review once again a long running dispute between plaintiffs and the lone remaining defendant, Cook County, about the legality of a $3 charge added to delinquent parking tickets in the City of Chicago between 1985 and 1986. *122 In an earlier appeal, we reviewed the trial court's grant of defendant's motion to dismiss against all defendants: the city, the county, and Datacom System Corporation. See Norton v. City of Chicago, 267 Ill.App.3d 507, 204 Ill.Dec. 938, 642 N.E.2d 839 (1994) (Norton I). We first upheld the dismissal of the city and Datacom. We then reversed the trial court's ruling that plaintiffs' suit was an impermissible collateral attack, finding that the record was "unclear whether final judgments were ever entered by the traffic court." Norton, 267 Ill.App.3d at 510, 204 Ill.Dec. 938, 642 N.E.2d 839. We held that the county's motion to dismiss under section 2-615 (735 ILCS 5/2-615 (West 1996)) of the Code of Civil Procedure rather than section 2-619 (735 ILCS 5/2-619 (West 1996)) should not have been granted. The trial court could not conclude, based on pleadings alone, that final judgments had been entered in traffic court. We held that the trial court erred in finding that the traffic court entered final judgments where the allegations of the county's motion to dismiss failed to establish final judgments. Norton, 267 Ill.App.3d at 511, 204 Ill.Dec. 938, 642 N.E.2d 839. On remand, the parties filed cross-motions for summary judgment. The trial court granted summary judgment for the county. The parties raise the following issues on appeal: (1) whether the suit is barred by the collateral attack doctrine; (2) whether the suit is barred by the voluntary payment doctrine; (3) whether the county retained money wrongfully obtained from plaintiffs; and (4) whether plaintiffs are entitled to prejudgment interest. We reverse and remand. The affidavits and depositions attached to the motions for summary judgment show that, through 1986, if a city parking ticket defendant did not pay the fine or appear in court after two notices, the ticket was listed by the clerk of the court as delinquent, but no default judgment was entered. If the ticket was later paid, the county received $3 of the money collected from each delinquent ticket. Before May, 1985, the $3 was taken from each fine paid to the city. In 1985, the city hired Datacom System Corporation to send demand notices and collect delinquent fines. A $3 surcharge was added to the total fine due. The surcharge was described on the notice as "court costs." The clerk of the circuit court passed on the money collected from this surcharge to the county. The notices sent by Datacom read: "You can obtain additional information about this notice ONLY by writing to the address listed above or by calling (312) 580-3400. Our records indicate that the parking tickets listed below have not been paid. IF YOU DO NOT PAY THE TOTAL AMOUNT SHOWN BELOW IMMEDIATELY, THE CITY OF CHICAGO WILL TAKE FURTHER LEGAL ACTION AGAINST YOU. This may include preparing a verified petition in the Circuit Court of Cook County requesting that a DEFAULT JUDGMENT in the amount of $35 plus court costs be entered against you for each unpaid ticket. You can avoid this action by mailing a check or money order in the total amount shown below. * * * No information will be given or payment accepted at Traffic Court." (Emphasis added.) The demand notices were revised during a law suit (Horn v. City of Chicago, 85 C 6838, 1986 WL 15036 (N.D.Ill.1986)) in which the plaintiffs alleged that the demand notices violated their right to due process by failing to give sufficient notice that a hearing was available to contest their liability. See Horn v. City of Chicago, 860 F.2d 700 (7th Cir. 1988). The $3 surcharge was relabeled a "statutory mailing fee." The revised demand notices read: "You can obtain additional information about this notice ONLY by writing to the address listed, by calling (312) 580-3400, or by visiting the parking ticket information windows in City Hall * * *. * * * * * * IF YOU DO NOT PAY THE TOTAL AMOUNT DUE WITHIN 15 DAYS, THE CITY WILL TAKE ACTION TO RECOVER PAYMENT IN A LARGER AMOUNT, AND MAY DEMAND THE MAXIMUM FINE ALLOWED BY LAW." *123 Plaintiffs here are among those who paid the surcharge in response to the notices. Plaintiffs allege that Cook County was unjustly enriched by collecting the surcharge. We review a trial court's grant of summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 607 N.E.2d 1204, 180 Ill.Dec. 691 (1992). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Plaintiffs first argue that the trial court's ruling that their suit is an impermissible collateral attack on a preexisting judgment is barred by the law of the case. Plaintiffs argue that in Norton I, we decided, as a matter of law, that judgments were not entered in traffic court. We disagree. The rule of the law of the case provides that where an issue has been litigated and decided, a court's unreversed decision on a question of law or fact settles that question for all subsequent stages of the suit. McDonald's Corp. v. Vittorio Ricci Chicago, Inc., 125 Ill.App.3d 1083, 1086-87, 81 Ill.Dec. 314, 466 N.E.2d 1116 (1984). A question of law decided on appeal is binding on the trial court on remand, and the appellate court if the case is appealed again. Martin v. Federal Life Insurance Co., 268 Ill.App.3d 698, 701, 205 Ill.Dec. 826, 644 N.E.2d 42 (1994). In Norton I, we held that the trial court could not conclude from the pleadings on the section 2-615 motion to dismiss that final judgments had been entered in traffic court. The ruling did not resolve the issue or preclude the trial court from reconsidering the question if the county presented evidence of final judgments on a motion for summary judgment. On remand, the county offered evidence not presented in Norton I. The county offered deposition testimony explaining how the cases against plaintiffs were disposed of by the clerk of the court. The county's offer of evidence to show that the traffic court's method of disposing of these cases was "tantamount" to final judgment complied with the directions of this court on remand. We next address the trial court's finding that final judgments were entered in the underlying cases, precluding collateral attack in this case. A final judgment can only be attacked by direct appeal or in traditional collateral proceedings defined by statute. Malone v. Cosentino, 99 Ill.2d 29, 32-33, 75 Ill.Dec. 401, 457 N.E.2d 395 (1983). Once a judgment is final, issues that could have been raised are barred in subsequent proceedings. Malone, 99 Ill.2d at 33, 75 Ill.Dec. 401, 457 N.E.2d 395. The county offered proof that after plaintiffs paid fines, their cases were no longer active before the traffic court. Although no judicial action was taken, the clerk recorded the dispositions of paid tickets in the same way he recorded those disposed of judicially—by removing them from the clerk's "violator file." The county claims that the clerk's removal of cases from the violator file amounts to a "final judgment for purposes of closing the case." In support, the county argues that section 27-387(b) of the Municipal Code of Chicago (Code) authorized the clerk to "enter final dispositions on cases where payments were mailed to the [c]lerk." Section 27-387(b) (1984) provides: "Upon the filing of such traffic violation complaint in the Municipal Court of Chicago as aforesaid, said complaint may be disposed of only by trial in said court or other official action by a judge of said court, including forfeiture of bail or by payment of a fine to the traffic violations bureau of said court." Chicago Municipal Code § 27-387(b) (repealed July 12, 1990). We first note that the language of section 27-387(b) does not support the county's reading. The Code does not authorize the clerk to enter "final dispositions," but says that complaints for traffic violations may only be disposed of by trial or "other official action by a judge." Second, even if the clerk's administrative action was authorized, the question of whether that action amounts to a final judgment remains unanswered. The county cites no case, except Stelzik v. City of Chicago, 85-CH-7631 *124 (Cir.Ct. Cook Co. January 21, 1986), to support the view that disposing of a case without judicial action amounts to a final judgment. An unpublished order of a trial court is without precedential value. Harvard State Bank v. County of McHenry, 251 Ill.App.3d 84, 92, 190 Ill.Dec. 99, 620 N.E.2d 1360 (1993). Plaintiffs do not contest the conclusion that payment of the tickets and the surcharge disposed of the cases before the traffic court. But plaintiffs argue that only a judge can enter a final judgment. See Towns v. Yellow Cab Co., 73 Ill.2d 113, 119, 382 N.E.2d 1217, 22 Ill.Dec. 519 (1978) (defining "judgment" as "a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit") (emphasis added). The only judicial action suggested by the county is an "approval" of the clerk's system by the then chief judge of the circuit court. The county contends that "the [r]ecord * * * establishes that [the chief judge] was aware that the clerk entered final dispositions in parking ticket cases where fines were mailed to the clerk and that the [c]hief [j]udge agreed to this arrangement." The county's apparent argument is that the court delegated the function of entering final judgments in traffic court to the clerk. The county contends that the Illinois Constitution, supreme court rules, and the rules of the circuit court of Cook County empower the chief judge to do this. Article VI, section 7(c), of the Illinois Constitution grants the chief judge general administrative authority over his court. Ill. Const. 1970, art. VI, § 7(c). Supreme Court Rule 272 provides that "[i]f no * * * written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly." 137 Ill.2d R. 272. Rule 0.3 of the rules of the circuit court of Cook County provides: "(a) Forms of entries. The Chief Judge shall superintend the keeping of the records of the Circuit Court of Cook County and prescribe abbreviated forms of entries therein of the proceedings, orders and judgments of said court, which abbreviated forms so prescribed shall have the same force and effect as if said proceedings, orders and judgments were entered in full on the records of said court in the forms heretofore customary in courts of record of this state." Cook Co. Cir.Ct.R. 0.3(a) (eff. October 2, 1995). As plaintiffs note, section 7(c) of the constitution and Rule 0.3 do not address whether the chief judge may empower the clerk of the court to enter judgments without participation of a judge. A system that disposes of parking violations by an administrator may be proper if delegated by an appropriate statute or ordinance. See Gardner v. City of Columbus, 841 F.2d 1272 (6th Cir.1988) (upholding an administrative procedure established pursuant to a statute to dispose of parking violations). But the part of the record the county relies on to support that such a delegation took place here shows that a deputy clerk of the Municipal Court of Chicago believed that the clerk of the circuit court, the chief judge of the court, and the mayor of the City of Chicago entered into an oral agreement in 1964 to add a $3 charge to delinquent parking tickets to cover costs incurred by the clerk for collection of payments. Even if we consider this hearsay statement, it fails to support the county's assertion that final judgments were somehow created by the "agreement" or that the clerk's administrative disposal of plaintiffs' cases was "tantamount" to final judgments for purposes of the collateral attack doctrine. Even if we entertain a broad reading of section 27-387(b) of the Municipal Code—that "payment of a fine to the traffic violations bureau of said court" complies with Supreme Court Rule 272 and circuit court Rule 0.3(a), to create a judgment—that is not what happened here. No payments were made to the "traffic violations bureau" of the court and no authority existed to deviate from the procedures set out in section 27-387(b). The county next argues that the trial court's judgment may be affirmed on several other grounds. We may affirm a trial court's ruling on any grounds supported by the record. *125 Gonzalez v. Kennedy Mobil Service, Inc., 274 Ill.App.3d 1077, 1083, 211 Ill.Dec. 162, 654 N.E.2d 624 (1995). The county argues that summary judgment should be affirmed because the plaintiffs voluntarily paid the $3 charge. The voluntary payment doctrine provides that a payor may not recover fees voluntarily paid, without protest, even if the fees were illegal. Getto v. City of Chicago, 86 Ill.2d 39, 48-49, 55 Ill.Dec. 519, 426 N.E.2d 844 (1981); Terra-Nova Investments v. Rosewell, 235 Ill.App.3d 330, 337, 176 Ill.Dec. 411, 601 N.E.2d 1109 (1992). But a payment is not voluntary if (1) the payor lacked knowledge of facts upon which to protest payment, or (2) the payment was made under duress. Terra-Nova, 235 Ill.App.3d at 337, 176 Ill.Dec. 411, 601 N.E.2d 1109. The voluntary payment doctrine does not apply when payment is "made under duress or compulsion." See Getto, 86 Ill.2d at 51, 55 Ill.Dec. 519, 426 N.E.2d 844; Geary v. Dominick's Finer Foods, Inc., 129 Ill.2d 389, 395, 135 Ill.Dec. 848, 544 N.E.2d 344 (1989). Under the doctrine, a payment is made "under duress" when the payee "exert[s] some actual or threatened power over the payor from which the payor has no immediate relief except by paying." Terra-Nova Investments, 235 Ill.App.3d at 337, 176 Ill.Dec. 411, 601 N.E.2d 1109. The demand notices sent to plaintiffs here threatened "further legal action," a "default judgment in the amount of $35 plus court costs," to "take action to recover payment in a larger amount," or to "demand the maximum fine allowed by law." The Datacom mailing directed the delinquent not to contact the traffic court, where the delinquent parking tickets remained pending. While threatening to obtain a default judgment, the authors of the original demand notice state flatly, "No information will be given or payment accepted at Traffic Court." The county offers no legal foundation or statutory authority for this unique restriction on a defendant in a pending case. The county does not suggest what authority existed to allow the authors of the demand notice to imply that the traffic court shut itself off from communication with a traffic court defendant, refuse to accept payments, or refuse to allow a defendant or his attorney to file an appearance in a pending case. The demand notice, in effect, suggests that the defendant's access to the court system has been blocked by an intervening administrative procedure established after suit was filed. We have found nothing in Illinois law that would allow a government to issue such notice and deny a defendant access to the courts. The wording of these demand notices urged recipients to pay the fines in lieu of steeper penalties or court action. But the wording misrepresented the rights then available to delinquents in their pending cases. No authority existed to announce that "no information will be given or accepted at Traffic Court." We are aware that in Horn v. City of Chicago, 860 F.2d 700 (7th Cir.1988), the Seventh Circuit Court of Appeals ruled on the constitutionality of the revised notices in the context of a Section 1983 (42 U.S.C. § 1983 (1988)) action in which the plaintiffs claimed that the wording of the unrevised notice deprived them of due process without adequate notice of a hearing. The plaintiffs argued that the demand notices misleadingly implied that judgments had already been entered against them in traffic court. Horn, 860 F.2d at 702. Reversing the trial court, the seventh circuit found that the notices did not "[imply] that judgment had already been entered against plaintiffs" and were "reasonably certain to inform those affected" that they could contest the amounts demanded. Horn, 860 F.2d at 705. We agree with the seventh circuit that the notices did not imply that judgments had been entered. But the seventh circuit's analysis is not applicable here. The issue before the seventh circuit did not require the court to address whether the notices discouraged use of the judicial process or coerced payment. We analyze the demand notices to decide a different issue: whether the notices were coercive enough to render plaintiffs' payment involuntary. We believe they were. *126 The county next argues that it is entitled to judgment as a matter of law because plaintiffs, in their unjust enrichment claim, presented no evidence that the county engaged in wrongful conduct. The county notes that unjust enrichment is "a condition that may be brought about by unlawful or improper conduct * * * and may be redressed by a cause of action based upon that improper conduct." McKay v. Kusper, 252 Ill.App.3d 450, 463, 191 Ill.Dec. 762, 624 N.E.2d 1140 (1993). The county argues that they did not collect the $3 charge and cannot be vicariously liable for the alleged wrongful conduct of the clerk of the circuit court. The wrongful conduct rule is not absolute. Plaintiffs do not argue that the county is vicariously liable for the clerk's actions, but rely on a "constructive trust" theory. Whether the clerk of the circuit court is the county's agent is not relevant. Nor is wrongful conduct on the part of the county necessary to impose a constructive trust. See Frederickson v. Blumenthal, 271 Ill.App.3d 738, 740, 208 Ill.Dec. 138, 648 N.E.2d 1060 (1995) (recognizing that courts have broadened application of constructive trusts beyond those where defendant's conduct was wrongful). Where a defendant has obtained money to which he is not entitled, under such circumstances that "in equity and good conscience he ought not retain it," the rightful owners of the money can claim it through a constructive trust to avoid unjust enrichment. Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. 111, 96 Ill.App.3d 1062, 1066, 52 Ill.Dec. 224, 421 N.E.2d 1087 (1981). That the person receiving the money acted in good faith does not prevent recovery of the sum paid. Selmaville, 96 Ill.App.3d at 1066, 52 Ill.Dec. 224, 421 N.E.2d 1087; Board of Education v. Holt, 41 Ill.App.3d 625, 626, 354 N.E.2d 534 (1976). The county next argues that it did not retain the $3 charge. Although the county concedes that the money was deposited with the county treasurer, the county maintains that the money was held in trust for the purpose of the operation, maintenance and benefit of the circuit court. Where money is placed in the hands of a person to be delivered to another, a resulting trust arises in favor of the latter. In re Estate of Habel, 88 Ill.App.2d 194, 202, 231 N.E.2d 616 (1967). The county argues that such a resulting trust arose when the money from the surcharges was deposited with the county treasurer because the funds were earmarked for the benefit of the circuit court. Article I, section 12, of the Illinois Constitution requires that litigants' circuit court fees only be used to support the operation and maintenance of the circuit court. See Crocker v. Finley, 99 Ill.2d 444, 454, 77 Ill.Dec. 97, 459 N.E.2d 1346 (1984). The county points out that plaintiffs offered no evidence to rebut the presumption that the county used the money for anything other than its constitutionally mandated purposes. See CBS, Inc. v. Partee, 198 Ill.App.3d 936, 948, 556 N.E.2d 648, 145 Ill.Dec. 30 (1990) (public officials are presumed to act in accordance with the law). So, the county argues, the county did not retain the $3 charge, but used it to partially discharge the county's funding responsibility to the circuit court. While making this argument, the county does not dispute that the surcharges were falsely labeled "court costs" and "statutory mailing fees." Court costs could not be recovered without a conviction. Ill.Rev.Stat.1985, ch. 25, par. 27.2(16) ("The Circuit Court Clerk shall be entitled to costs in all criminal and quasi-criminal cases from each person convicted therein"). Plaintiffs here were not convicted. Since the evidence shows that the fees charged were never authorized court costs, we cannot conclude the money received was lawfully held in trust for the circuit court. The money may have been used to partially pay the county's obligation to financially support the circuit court, but that use does not negate the fact that the county benefitted to the extent that the illegal fees freed up other monies the county would have used to fund the court. Plaintiffs claim that if summary judgment for the county is set aside, they are entitled to judgment as a matter of law on *127 their motion for summary judgment. If there is no dispute as to any material fact, and the undisputed facts support only one inference, the only question is the legal effect of the facts, and summary judgment should be granted. Cnota v. Palatine Area Football Ass'n., 227 Ill.App.3d 640, 647, 169 Ill.Dec. 709, 592 N.E.2d 196 (1992). Plaintiffs assert that the evidence presented at summary judgment showed that the surcharge was unauthorized and that the county retained the benefit of these unauthorized fees. We agree. The evidence establishes that the surcharges were not legally imposed "court costs" or "mailing fees." The record shows that named plaintiffs Don Norton and Jane Reames paid these surcharges based on a mistake of fact induced by misrepresentation of the $3 surcharge. The parties do not dispute that the money collected from this surcharge was given to the county. We remand with directions to enter summary judgment for plaintiffs Norton and Reames. The record reveals that the trial court deferred ruling on plaintiffs' motion for class certification. We express no opinion on the issue. The trial court is directed to conduct a hearing on class certification under sections 2-801 and 2-802 of the Code of Civil Procedure (735 ILCS 5/2-801, 2-802 (West 1996)). We next address plaintiffs' argument that they are entitled to prejudgment interest. Generally, prejudgment interest "is not recoverable absent a statute or agreement providing for it." City of Springfield v. Allphin, 82 Ill.2d 571, 413 N.E.2d 394, 45 Ill.Dec. 916 (1980). But plaintiffs argue that prejudgment interest is recoverable without statutory authorization "where a municipal corporation wrongfully exacts money and holds that money without just right or claim." City of Chicago v. Northwestern Mutual Life Insurance Co., 218 Ill. 40, 44, 75 N.E. 803 (1905). See also City of Springfield, 82 Ill.2d at 577-78, 45 Ill.Dec. 916, 413 N.E.2d 394. Plaintiffs argue that this exception should apply to the county as well. In City of Chicago, our supreme court did not elaborate on the standard for deciding when prejudgment interest, not authorized by statute or agreement, is appropriate. But in City of Springfield, the court found that, even absent statutory authority, a court may award interest "where warranted by equitable considerations," but not where "such an award would not comport with justice and equity." City of Springfield, 82 Ill.2d at 579, 45 Ill.Dec. 916, 413 N.E.2d 394. In reliance on City of Springfield and other Illinois cases, we have held that prejudgment interest not statutorily or contractually authorized may only be awarded against a defendant who wrongfully obtained and illegally withheld funds from a plaintiff. Calumet Construction Corp. v. Metropolitan Sanitary District of Greater Chicago, 178 Ill.App.3d 415, 423, 127 Ill.Dec. 581, 533 N.E.2d 453 (1988). At issue here is the $3 penalty exacted for each ticket. In Norton I we held that the city and its agent were properly dismissed from the suit—the city because plaintiffs did not allege the city received or retained money from the $3 penalty, Datacom because the allegations of the complaint were insufficient to establish that Datacom received or retained any part of the $3 penalty. Yet because of the city's wrongful action, the county now holds the money. The issue is whether the party who innocently receives money wrongfully obtained by another should pay prejudgment interest. We believe prejudgment interest in this case would not meet the justice and equity standard expressed in City of Springfield. Reversed and remanded. LEAVITT, P.J., and GORDON, J., concur.

73 B.R. 275 (1987) In re DECKO PRODUCTS, INC., Debtor. Bankruptcy No. 83-01993. United States Bankruptcy Court, N.D. Ohio, W.D. February 23, 1987. David Bryan, Toledo, Ohio, for debtor. Fritz Neil, Toledo, Ohio, for claimant. ORDER SUSTAINING DEBTOR'S OBJECTION TO PROOF OF CLAIM WALTER J. KRASNIEWSKI, Bankruptcy Judge. This matter is before the court upon Debtor's objection to late filed proof of claim of Allied Industrial Workers of America (hereinafter referred to as "claimant"). Upon consideration thereof, the court finds that Debtor's objection is well taken and should be sustained, dismissing claimant's claim. FACTS Debtor filed its chapter 11 petition on November 10, 1983. Subsequently, this court entered an order, on May 8, 1985, fixing July 1, 1985 as the last day to file proofs of claim. Debtor filed its disclosure statement and plan of reorganization on June 28, 1985. This court then entered an order on July 10, 1985, setting the hearing on the disclosure statement and fixing August 13, 1985 as the last date for objections *276 to the disclosure statement. The disclosure statement was approved by court order on August 27, 1985. The order also fixed October 1, 1985, as the last day to file acceptances or rejections to the plan and claims. The plan was confirmed on November 22, 1985. Claimant filed its proof of claim on October 3, 1985, alleging priority for its claim for wages, salary or commissions pursuant to 11 U.S.C. § 507(a)(3). Debtor objected to this claim on October 30, 1985, alleging that its claim was defectively filed that its claim was incorrectly stated and that it was not entitled to priority. A pretrial on Debtor's objection was held on February 20, 1986. At that time, the parties were ordered to submit briefs in support of their positions. Claimant's brief in opposition to Debtor's objection to claim was to be filed by May 12, 1986. To date, no brief has been received. On December 16, 1986, Debtor filed a motion to dismiss claimant's late filed proof of claim. A pretrial on this motion was held on February 5, 1987. Claimant offered, at that pretrial, no explanation for its failure to timely file its proof of claim, for its failure to file its brief in opposition to Debtor's objection by February 20, 1986, or for its failure to respond to Debtor's motion to dismiss. Furthermore, claimant has failed to set forth any case law supporting any theory which would allow their late filed claim. DISCUSSION Bankruptcy Rule 3003(c)(3) authorizes the court to fix the time within which proofs of claim may be filed. This court's July 10, 1985 order fixed October 1, 1985, as the last day for filing claims. Claimant failed to meet this deadline. Claimant had, then, from the date of the petition until the claims bar date, 23 months in which to file its proof of claim. Claimant offers no explanation for its delay in filing. A creditor's claim may be denied where it waited more than two years after receiving notice of a bankruptcy to file its proof of claim and where its priority claim could be allowed only at the prejudice of other creditors. In Re Cmehil, 43 B.R. 404 (Bkrtcy.N.D.Ohio 1984). The court stated that it would be inequitable to allow creditor's claim. Id. at 408. Additionally, the court found that the creditor's claim was barred by laches. Id. Here, claimant waited 23 months after receiving notice of the pending bankruptcy. Its claim is, then, barred by laches. Additionally, it alleges its claim is entitled to priority pursuant to 11 U.S.C. § 507. To allow its priority claim would prejudice all other creditors as Debtor's plan has been confirmed. Allowing claimant's tardily filed claim would require the filing of a new plan and a reduction in the amount available for unsecured creditors. Such a result would be inequitable. In In Re Waterman S.S. Corp., 59 B.R. 724, 14 B.C.D. 392 (Bkrtcy.S.D.N.Y.1986), the court disallowed claimant's claim even though claimant alleged she had not received notice of the bar date until after it had expired. The court indicated that notice was not unreasonable and then stated that: While this is an unfortunate result, after a reasonable time, a debtor must be able to start its process of reorganization and its creditors must be able to learn what they will receive under a plan. A first step in that endeavor is identification by a debtor of its creditor body and ascertainment of the dollar amount of claims outstanding. Failure to so proceed prejudices the entire community of interests especially where the debtor has filed its plan of reorganization after having successfully identified the universe of claims and having come to terms with many of its claimants. 59 B.R. at 728 (citations omitted). As previously stated, Debtor filed its plan which was subsequently confirmed. Claimant failed to file its claim within the time period fixed by the court. Claimant also failed to object to Debtor's disclosure statement or to reject Debtor's plan. Claimant provides no explanation for its failure to respond. *277 Bankruptcy Rule 9006(b)(1) permits an enlargement of time for an act to be done where the failure to act was the result of excusable neglect. However, claimant offers no explanation for its failure to file its proof of claim. Nor, does claimant demonstrate any facts which justify its delay in filing. Claimant had ample opportunity in which to file its proof of claim, or to subsequently reject the plan. It failed to act. It is therefore ORDERED that Debtor's objection to Allied Industrial Workers of America's proof of claim be, and it hereby is, sustained. It is further ORDERED that Allied Industrial Workers of America's proof of claim be, and it hereby is, disallowed.

Dismissed and Memorandum Opinion filed June 21, 2011.   In The   Fourteenth Court of Appeals ___________________   NO. 14-11-00240-CR ___________________   DALTON LOYD WILLIAMS, Appellant   V.   THE STATE OF TEXAS, Appellee     On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 977683       MEMORANDUM  OPINION This is an attempted appeal from an order signed by the trial court on February 15, 2011, denying appellant’s out-of-time motion for new trial.  The record reflects appellant entered a guilty plea to possession of a controlled substance.  In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant on February 18, 2004, to confinement for 180 days in the State Jail Division of the Texas Department of Criminal Justice.  On January 20, 2011, appellant filed an out-of-time motion for new trial, along with several other motions.  On February 15, 2011, the trial court denied all of appellant’s motions.  Appellant then filed a notice of appeal “from the final Order denying an out-of-time motion for a new trial.”  This appeal followed. Generally, an appellate court only has jurisdiction to consider an appeal by a criminal defendant from a final judgment of conviction. McKown v. State, 915 S.W.2d 160, 161 (Tex.App.-Fort Worth 1996, no pet.).  In filing an appeal from the denial of an out-of-time motion for new trial, appellant attempts to file a post-conviction collateral attack over which this court has no jurisdiction. See Kim v. State, 181 S.W.3d 448, 449 (Tex.App.-Waco 2005, no pet.). Accordingly, the appeal is ordered dismissed.   PER CURIAM   Panel consists of Chief Justice Hedges and Justices Seymore and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b).

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 25, 2008 No. 07-10446 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 06-00079-CR-WS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus THOMAS EDWARD LONGMIRE, a.k.a. Tommy Longmire, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Alabama _________________________ (March 25, 2008) Before CARNES, BARKETT and PRYOR,Circuit Judges PER CURIAM:  Dennis J. Knizley, appointed counsel for Thomas Edward Longmire in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Longmire’s convictions and sentences are AFFIRMED. 2 

1 F.3d 441 26 Fed.R.Serv.3d 387 Joann AAMOT, et al., Plaintiffs-Appellants,v.Robert L. KASSEL, Defendant-Appellee. No. 91-6113. United States Court of Appeals,Sixth Circuit. Argued June 15, 1993.Decided Aug. 6, 1993. Erich W. Merrill (argued and briefed), Schaeffer & McCrary, Memphis, TN, for plaintiffs-appellants. Lewie R. Polk, III (argued and briefed) and Hal Gerber (briefed), Gerber Law Offices, Memphis, TN, for defendant-appellee. Before: GUY and BATCHELDER, Circuit Judges; and MILES, Senior District Judge.* BATCHELDER, Circuit Judge. I. 1 Defendant Robert Kassel was ostensibly the legal counsel to a company known as National Coal Exchange (NCE). From April 1980 until December 1981, the principals of NCE sold coal futures to investors across the country. The investment scheme, as it turns out, was a scam, and the Commodity Futures Trading Commission (CFTC) brought an action against the principals of NCE for violations of the Commodity Exchange Act in 1981.1 At the time, the CFTC thought that Kassel was merely NCE's counsel, and not actively involved in the scheme, so he was not a target of the government action; in fact, he defended NCE at trial. The District Court found that NCE had violated the CEA. 2 Erich Merrill, counsel for the plaintiffs/appellants here, was originally appointed receiver for NCE in the CFTC litigation. Some five hundred aggrieved investors responded to a questionnaire Merrill sent out regarding NCE's activities. Since NCE's assets were by that time insufficient to pay back the investors, Merrill got permission from the District Court to file suit on their behalf. In November 1983, Merrill as receiver and two other named plaintiffs, individually and on behalf of all purchasers of futures contracts from NCE, brought an action against the officers of NCE, alleging fraud, and claiming that defendants had to indemnify Merrill, as receiver, against NCE liability resulting from the principals' wrongful conduct.2 Merrill moved for class certification in October, 1984, but hearings on this motion were continued. In July, 1985, Kassel was joined as a defendant in Jarrett, and he moved for summary judgment. 3 The District Court eventually denied the motion for class certification in Jarrett, but ordered that any motions to intervene by potential plaintiffs in the action must be filed by December 12, 1988. A substantial number of such motions were timely filed, and on March 1, 1990 were granted. However a number of motions to intervene were not filed by the December 12, 1988 deadline, and those motions were denied. 4 After the deadline for filing of motions to intervene but before the District Court ruled on those motions, Merrill filed the case now on appeal on behalf of all of those potential plaintiffs who sought to intervene in Jarrett. Kassel responded to the complaint with a motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6). Merrill then filed in this case a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1) on behalf of all of those plaintiffs whose motions to intervene in Jarrett had been denied, and a few days later, after the District Court had granted Kassel's motion for summary judgment in Jarrett on the basis of the statute of limitations, Merrill filed a notice of dismissal in this case on behalf of the remaining plaintiffs. 5 Kassel next filed a motion to strike the notices of dismissal filed in this case, maintaining that since his Rule 12(b)(6) motion had been supported by documentation and thus functioned as a motion for summary judgment, the plaintiffs were precluded from dismissing without prejudice as of right under Fed.R.Civ.P. 41(a)(1). The District Court agreed with Kassel; treating his Rule 12(b)(6) motion as one for summary judgment, the court granted his motion to strike, and, on the basis of its order dismissing Jarrett, granted Kassel summary judgment in an order filed August 1, 1991.3 The Aamot plaintiffs filed their notice of appeal on August 20; however, we ordered the appeal held in abeyance pending appeal of Jarrett. In August 1992, we decided Jarrett, affirming in part, but reversing the grant of summary judgment with regard to the fraud claims, holding, among other things, that the due diligence Merrill undertook as counsel on behalf of the original plaintiffs could properly be attributed to subsequently intervening plaintiffs for the purposes of tolling the statute of limitations due to Kassel's fraudulent concealment of his wrongs. 972 F.2d at 1427. This appeal was then briefed and scheduled for argument. II. 6 Appellants first question the District Court's granting of Kassel's motion to strike their notices of voluntary dismissal. In concluding that they could not dismiss voluntarily as of right, plaintiffs contend, the District Court improperly considered defendant's Fed.R.Civ.P. 12(b)(6) motion to dismiss as a summary judgment motion. Since the documents attached to it were "unauthenticated," they argue, the motion could not properly be considered by the court as one for summary judgment under Fed.R.Civ.P. 56. 7 Fed.R.Civ.P. 41(a)(1) limits the plaintiff's authority to dismiss his complaint without prejudice and without the permission of either the adverse party or the court to the period of time before the defendant files an answer or a motion for summary judgment. During that period, the court has no discretion to deny such a dismissal. However, once the defendant files an answer or a motion for summary judgment, plaintiff loses this right. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-95, 110 S.Ct. 2447, 2455, 110 L.Ed.2d 359 (1990). Some disagreement persists, however, about how a court should treat a notice of dismissal which is filed after defendant files a motion to dismiss under Fed.R.Civ.P. 12(b)(6), which, because the defendant has appended to it "matters outside the pleading," Fed.R.Civ.P. 12(b), the court may convert, at the court's own behest, to a Rule 56(b) motion for summary judgment. 8 Here, the District Court granted the defendant's motion to strike plaintiffs' notices of dismissal on the grounds that "a motion for summary judgment was pending at the time plaintiffs filed their notices of dismissal." District Court Opinion at 5. Kassel had attached certain affidavits and exhibits to his motion to dismiss, all of which had been used in the Jarrett litigation. The court reasoned that the plaintiffs had not objected to the documents or moved to strike them; therefore Fed.R.Civ.P. 12(b) required that the court treat the motion as one for summary judgment, thus precluding plaintiff from dismissing as of right. Id. at 4. 9 Some courts have viewed the situation similarly, labelling a Rule 12(b)(6) motion to dismiss as a "pending" motion for summary judgment solely because of the defendant's having attached supporting affidavits or other documents "outside the pleadings" not excluded by the court. See Wilson-Cook Medical, Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir.1991) (In determining propriety of motion for voluntary dismissal, "[h]ad the district court accepted and considered the affidavits relevant to the 12(b)(6) motion, the motion to dismiss for failure to state a claim would have been converted to a motion for summary judgment.") (citations omitted); Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066 (3rd Cir.1987) (disagreeing with Tele-views News, cited below, but stating that where defendant "intend[s] a Rule 56 motion by its motion to dismiss," or where court "treats it as such," voluntary dismissal right barred); Kolman v. Milwaukee Area Technical College, 548 F.Supp. 684 (E.D.Wis.1982) (attachment of affidavits converts motion to dismiss to motion for summary judgment); Bangor Baptist Church v. State of Maine, etc., 92 F.R.D. 123, 124 (D.Maine 1981) (same); Tele-views News Co. v. S.R.B. TV Publishing Co., 28 F.R.D. 303, 308 (E.D.Pa.1961) ("We see no logical reason for differentiating a motion for summary judgment, a motion to dismiss for failure to state a claim accompanied by extraneous matter, and a motion to dismiss for failure to state a claim not accompanied by extraneous matter--at least for the purposes of Rule 41(a)."). 10 Many of these cases seem to view the interplay between Rule 41 and Rules 12 and 56 as barring voluntary dismissal where the parties, particularly the defendant, have spent considerable time and effort in litigation; presumably, it takes more lawyer-hours to prepare an answer or a motion for summary judgment than it does a motion to dismiss. See, for example, Marex Titanic v. Wrecked and Abandoned Vessel, RMS Titanic, 805 F.Supp. 375, 377-79 (E.D.Va.1992) (at time plaintiff filed notice of dismissal, court was "way beyond the early stages of the case") (following Harvey Aluminum, Inc., v. American Cyanamid Co., 203 F.2d 105 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953), but recognizing that denying notice of dismissal where "the defendant had expended much time and effort in the preparation of his case and the case was in the midst of hearings" had "very limited application" and "has been virtually confined to [Harvey Aluminum's] facts"); Tele-views News Co., 28 F.R.D. at 308 ("[B]oth the motion for summary judgment and the motion to dismiss for failure to state a claim involve considerable preparation by counsel and study by the Court.") But see, contra, 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 2363 n. 30 (commenting on the reasoning of Tele-views News Co.) ("This is a powerful argument--but it seems better addressed to the Advisory Committee on Civil Rules."). 11 This Circuit has never directly spoken to this issue. Rule 41, as presently constituted, states: 12 [A]n action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.... 13 Fed.R.Civ.P. 41(a)(1). This being a rule of procedure on which parties navigating the shoals of litigation must rely without needless doubt or question, we are inclined to take the Rule at face value, and assume that it "means what it says." Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977). We agree with the straightforward analysis of the Fifth Circuit: 14 Rule 41 ... sanctions no such case-by-case analysis of the amount of effort expended by the defendants. Nor does the fact that defendants had "joined issue" on the merits affect plaintiff's ability to dismiss his suit. Unless a defendant has filed an answer or summary judgment motion, the governing provision is rule 41(a)(1). Defendants who desire to prevent plaintiffs from invoking their unfettered right to dismiss actions under rule 41(a)(1) may do so by taking the simple step of filing an answer. 15 Id. Similarly, we decline to agree with the District Court's action and follow those cases which "treat" motions to dismiss filed pursuant to Rule 12(b)(6) as summary judgment motions for the purpose of barring voluntary dismissal.4 Rule 41(a)(1) explicitly leaves the option to dismiss in the plaintiff's hands; once plaintiff gives his notice, the lawsuit is no more. 16 The Rule permits plaintiff to take such action "at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs." Again, this language unambiguously requires a defendant, in order to make plaintiff put his money where his mouth is, to serve plaintiff with a summary judgment motion or an answer. Permitting a defendant, merely by appending to his Rule 12(b)(6) motion materials "outside the pleadings," regardless of their scope, content or form, to abridge a plaintiff's right to voluntarily dismiss his action without prejudice, not only circumvents the plain language of the rule, but flies in the face of the "time and effort in litigation" rationale. Furthermore, the clear language of Rule 12(b) which permits a 12(b)(6) motion accompanied by extraneous materials to be treated as a motion for summary judgment is directed, not at the parties, but at the court; conversion takes place at the discretion of the court, and at the time the court affirmatively decides not to exclude the extraneous matters. 17 The consequences to the plaintiff differ hugely; for this reason, once the court opts to convert a 12(b)(6) motion into a summary judgment motion, it must give "all parties ... reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b)(6). Obviously, at least to us, Rule 41 deals with an entirely different phase of the case, one in which the plaintiff is left free to change his mind about prosecuting his action, and the defendant has the simple option, as the Carter court noted, of filing an answer or motion for summary judgment, should he wish to avoid wasting time and money or preclude future prejudice to his interests.5 18 Plaintiffs here filed their notices of dismissal prior to defendant's filing an answer or motion for summary judgment. Since a Rule 41(a)(1) notice of dismissal is self-effectuating, leaving no basis upon which a District Court can prevent such a dismissal, we therefore conclude that plaintiffs' cases were necessarily dismissed without prejudice, effective immediately upon their filing of the notices. The District Court erred in granting defendant's motion to strike these notices. III. 19 The case at bar having been dismissed in its entirety as of October 24, 1990, the other issues in this appeal, including the dispute over the propriety of the District Court's grant of summary judgment, are rendered moot. IV. 20 For the reasons stated, the judgment of the District Court is VACATED and the case DISMISSED without prejudice. * The Honorable Wendell A. Miles, Senior United States District Judge for the Western District of Michigan, sitting by designation 1 See Commodity Futures Trading Comm'n v. National Coal Exchange, Inc., et al., No. 81-2250 (W.D.Tenn., Apr. 2, 1982) 2 The judgment from this initial suit was eventually reviewed by this court in Jarrett v. Kassel, 972 F.2d 1415 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1272, 122 L.Ed.2d 667 (1993); we shall refer to it for convenience's sake as Jarrett to distinguish it from the present, related litigation 3 As the District Court noted in its order granting summary judgment, Kassel was the only defendant remaining in the Jarrett case, all other defendants having settled with plaintiffs 4 These courts' reasoning, particularly in considering the defendant's having spent time and money responding to the suit, may derive from the advisory committee's note to Fed.R.Civ.P. 41(a), which explains the addition to the Rule in 1946 of motions for summary judgment, where previously only an answer filed by defendant could bar plaintiff's voluntary dismissal. "Since such a motion [for summary judgment] may require even more research and preparation than the answer itself, there is good reason why the service of the motion, like that of the answer, should prevent a voluntary dismissal by the adversary without court approval." However, since the Committee was presumably well aware of the existence and effect of Rule 12(b)(6) motions to dismiss, as well as that Rule's provision for the court to convert such a motion to a motion for summary judgment, we must assume the drafters of the Rules chose not to include such motions in Rule 41(a) 5 We believe the Rules reflect the otherwise common sense notion that the parties, not the court, are in the best position to weigh their interests and risks, particularly in the early phases of litigation

65 F.3d 181 Jonesv.U.S.* NO. 94-2239 United States Court of Appeals,Eleventh Circuit. Aug 17, 1995 Appeal From: N.D.Fla., No. 92-30485-RV 1 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 11, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-70015 MILTON WUZAEL MATHIS, Petitioner-Appellant, versus DOUGLAS DRETKE, Director, Correctional Institutions Division, Texas Department of Criminal Justice, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Texas (03-CV-1138) Before SMITH, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Petitioner-Appellant Milton Mathis (“Mathis”) was convicted of capital murder and sentenced to death for the 1998 murder of Travis Brown and Daniel Hibbard. He now seeks a certificate of appealability (“COA”) from the district court’s denial of his petition for a writ of habeas corpus * 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. pursuant to 28 U.S.C. § 2254. We deny Mathis’ request for a COA on each issue. FACTUAL AND PROCEDURAL HISTORY A grand jury indicted Mathis for the capital murder of more than one person during the same criminal transaction under Texas Penal Code § 19.03(a)(7). Mathis was represented at trial by Steven Rosen and Pheobe Smith (hereinafter “trial counsel”). The Texas jury found Mathis guilty of capital murder as charged in the indictment and further answered Texas’ special issues in a manner that required imposition of a death sentence. As summarized by the Texas Court of Criminal Appeals on direct review, the facts are as follows: On December 15, 1998, at approximately 8:00 or 8:30 a.m., Esmerelda Lester and her 15-year old daughter Melanie Almaguer went to Chris Lentsch's home [a known drug house]. Lentsch rented rooms to Travis Brown and Daniel Hibbard. Brown and appellant were in Brown's room. While Lester, Almaguer and Hibbard sat in Lentsch's room, Lentsch went into the kitchen. Shortly thereafter, Lentsch heard gunshots from Brown's room and turned to see appellant exiting the room with a gun in his hand. Appellant claimed that Brown had just shot himself. Lentsch told appellant to put the gun down, but appellant ordered Lentsch and the other three back into Lentsch's room where he calmly walked up to Almaguer and shot her in the head, leaving her alive, but paralyzed from the neck down. Appellant then shot Hibbard in the head, causing his death. Appellant finally pointed the gun at Lester, whereupon he discovered that he was out of bullets. Appellant thereafter rummaged through the house, set fire to Brown's room, threatened Lester and Lentsch, and finally left in Brown's car. The police identified appellant as the killer and went to arrest him. Upon being arrested, appellant became violent. Officers discovered that appellant had told his father to lie for him and had persuaded his girlfriend to give him an alibi, which she maintained until confronted by the police. A fellow inmate testified that appellant showed no remorse for the shootings and stated that he wished he had killed them all. Appellant took the stand and at first testified that although he had been to the house earlier, he was not there on the morning of the shootings. After defense counsel requested a recess, appellant took the stand and stated that he had lied in his previous testimony. He then testified that he was at the house at the time of shootings, and admitted that he had shot all three people and taken Brown's car. Appellant claimed he shot Brown in self-defense after Brown had threatened to shoot him. He claimed that he shot the others because he panicked after shooting Brown. 2 Mathis v. State, 67 S.W.3d 918, 921 (Tex. Crim. App. 2002) (footnote omitted). On February 13, 2002, Mathis’ conviction and sentence were affirmed on automatic direct appeal to the Texas Court of Criminal Appeals. Id. at 928. Mathis did not seek certiorari review in the Supreme Court. Mathis’ state habeas proceedings were held concurrent to his direct appeal. The trial-level state habeas court issued findings of fact and conclusions of law reco mmending that Mathis’ state habeas application be denied. On April 3, 2002, the Court of Criminal Appeals adopted the lower court’s findings and conclusions and denied habeas review. Ex parte Milton Wuzael Mathis, No. 50,722-01 (Tex. Crim. App. April 3, 2002) (unpublished). On the same day, Mathis filed his application for a federal writ of habeas corpus in the Southern District of Texas, raising six points of error. Concomitantly, Mathis filed a successive state habeas petition asserting a claim under Atkins v. Virginia, 536 U.S. 304 (2002). His successive state habeas petition was dismissed by the Court of Criminal Appeals because a federal proceeding was pending. See Ex parte Soffar, 120 S.W.3d 344 (Tex. Crim. App. 2003) (noting Texas’ long standing practice, based on abstention doctrine, of dismissing a second state habeas application if there is a pending federal proceeding). On February 2, 2004, the federal district court denied relief and denied COA sua sponte. Mathis v. Dretke, Civil No. H-03-CV-1138 (S.D. Tex. Feb. 6, 2004) (unpublished). Mathis submitted a motion for new trial and for abatement in the federal district court, requesting reconsideration and that the district court suspend federal proceedings pending completion of state proceedings. See Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004) (holding that a successive state habeas petition may be considered if any concurrent federal proceedings are stayed pending completion of state proceedings). The district court denied his motion. Mathis now seeks a COA from this court. STANDARD OF REVIEW 3  Mathis filed a notice of appeal in the instant case after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEPDA”) therefore, his right to appeal is subject to the AEDPA’s amended version of 28 U.S.C. § 2253. Lindh v. Murphy, 521 U.S. 320, 336 (1997) (stating that AEDPA applies to all habeas petitions pending after April 24, 1996). Before an appeal may be entertained, a prisoner who was denied habeas relief must first obtain a COA from a circuit judge. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Id. at 336. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 537 U.S. at 336. A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 337. At the COA stage, we do not apply the deferential AEDPA standard of review, found in 28 U.S.C. § 2254, for the merits 4 of the habeas petition. Id. at 342 (“Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner’s constitutional claims.”). Thus, our immediate task is to determine, not the ultimate merits of Mathis’ claims, but only whether Mathis has demonstrated that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). DISCUSSION We turn first to Mathis’ claim that the district court erred in denying his motion to stay proceedings. A COA is not a prerequisite to review the denial of a motion to stay proceedings. See 28 U.S.C. § 2254(a) (permitting federal courts to entertain applications for writ of habeas corpus for relief from a"judgment of a State court"); see also Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002) (stating that a COA is not required when an appeal does not implicate the merits of a district court's denial of a habeas petition). Accordingly, we may consider the merits of Mathis’ claim. A district court’s refusal to grant a stay in a habeas proceedings is reviewed for abuse of discretion. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998) (citation omitted). Because Mathis submitted his motion to stay proceedings after the final judgment dismissing his habeas petition, the district court concluded that the only matter left for it to stay was the time to file a notice of appeal. The district court held that it did not have the power to extend the time to file a notice of appeal indefinitely. We agree. Notwithstanding Mathis’ status as a prisoner, a federal habeas proceeding is a civil proceeding, Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir. 2001), therefore, it is subject to Rule 4(a) of the Federal Rules of Appellate Procedure. Rule 4(a)(5) constrains the district court’s ability to extend the time to file a notice of appeal to either “30 days 5 after the prescribed time or 10 days after the date when the order granting the motion is entered.” FED. R. APP. P. 4(a)(5). To allow the district court to extend the time to file a notice of appeal for an indeterminate period, which is essentially what the district court would do if it granted a stay in this situation, would be wholly inconsistent with the language of the rules requiring an expeditious filing of a notice of appeal. Accordingly, it was not an abuse of discretion for the district court to deny Mathis’ motion to stay proceedings. We now turn to the other issues Mathis raises in his application for a COA, specifically, he raises five errors: that (1) the refusal to conduct a live evidentiary hearing in the state habeas proceeding violated his due process rights and interfered with the district court’s ability to perform its function under § 2254; (2) the trial court violated his constitutional rights by refusing to give an instruction of manslaughter with respect to the killing of Daniel Hibbard; (3) the trial court erred in failing to conduct a competency hearing sua sponte at trial; (4) the prosecution violated his due process rights by withholding impeachment evidence relating to the State’s witness Gregory Jackson; and (5) his trial counsel’s representation at trial was ineffective and resulted in actual prejudice at his trial and sentencing. For the following reasons, we deny Mathis’ request for a COA. I. Live Evidentiary Hearing Mathis’ raises two claims, which we have consolidated here, concerning the state habeas court’s failure to hold a live evidentiary hearing before recommending that he be denied relief. Mathis argues that the failure to hold a live evidentiary hearing was a violation of his due process rights. Moreover, he contends that the inadequacies in the record interfered with the district court’s ability to apply the proper review under § 2254. This latter argument seems to be relat ed to the district court’s duty, under § 2254, to afford a presumption of correctness to a State court’s determination 6 of a factual issue. See 28 U.S.C. § 2254(e)(1). Stated another way, Mathis seems to argue that without a full hearing in the state court, the district court could not assume the state court’s findings were correct and thereby, must conduct plenary review of the factual issues. Mathis argues that important factual issues still needed to be developed and absent a live hearing, the state court did not provide a sufficient record on which the district court could evaluate Mathis’ arguments. The district court concluded that Mathis did not exhaust his constitutional claim, that the denial of an evidentiary hearing violated his due process rights, in state court. Despite finding that Mathis’ claim was procedurally barred, the district court nonetheless went on to consider the merits. The district court held that complaints about state habeas proceedings are not a basis for federal habeas relief and notwithstanding, the federal courts do not have the power to grant the relief Mathis sought, namely, ordering that state evidentiary proceedings be conducted. In addition, the district court rejected Mathis’ argument that ADEPA’s deferential review is applied only after state courts have conducted a full and fair hearing. Mathis argues that in his “motion for hearing on issues raised in writ of habeas corpus,” presented to the state habeas court, he stated that a denial of a hearing on the issue of ineffective assistance of counsel would be a due process violation. In addition, he asserts that he clearly indicated in the motion that his arguments were based on the Eighth and Fourteenth Amendments. Even assuming arguendo that Mathis’ claim was exhausted in state court, we are not persuaded that a COA should be issued. It is well established that “infirmities in state habeas proceedings do not constitute grounds for federal habeas relief. We look only to the trial and direct appeal.”1 Duff- 1 Mathis unsuccessfully tries to distinguish Duff-Smith, supra, and Henderson v. Cockrell, 333 F.3d 592 (5th Cir. 2003), by noting that, as opposed to the present case, federal court hearings were conducted in those cases. However, we find that distinction inconsequential. Furthermore, 7 Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992). Moreover, Mathis’ argument that any deficiencies in the record impeded the district court’s ability to apply deferential review pursuant to § 2254, fails to recognize that ADEPA “jettisoned all references to a ‘full and fair hearing’ from the presumption of correctness accorded state court findings of fact.” Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir. 2001). There is no requirement that a full and fair hearing be conducted before the district court may afford deference to the state court’s factual findings. II. Lesser Included Offense Instruction Next, Mathis argues that the trial court violated his constitutional rights by refusing to give an instruction to the jury on the lesser included offense of manslaughter with respect to the death of Daniel Hibbard, in accordance with Beck v. Alabama, 447 U.S. 625 (1980). The Supreme Court in Beck held that a death sentence imposed after a co nviction of a capital offense is unconstitutional where the jury was prohibited fro m considering a verdict of guilty of a lesser included offense. “Subsequent decisions by this court have consistently held that a state trial court may not, under Beck, refuse a lesser-included-offense instruction if the jury could rationally acquit on the capital crime and convict for the noncapital crime.” East v. Scott, 55 F.3d 996, 1005 (5th Cir. 1995) (internal quotation marks and citations omitted). During the trial, Mathis testified that he shot Brown in self-defense because Brown was threatening to shoot him. He alleged that after he shot Brown, everyone else present in the house began “hollering and screaming.” Mathis stated at trial that “I never aimed the gun. I just walked in there and heard them all screaming, and I was just pointing the gun and pulled the trigger. So I while we may agree with the premise of Mathis’ statement that a fair hearing should not be trivialized as an “infirmity,” we feel his argument overlooks the core of the holding in Duff-Smith and Henderson, namely, that on habeas review we look to only the trial and direct appeal. 8 never aimed. I am not a target–or nothing like that sir. I don’t know how to shoot a gun like that ... I didn’t–I didn’t mean to hurt nobody, sir. I’m not a killer, sir.’” Mathis’ trial counsel argued that Mathis’ testimony demonstrated a mental state of recklessness in the killing of Hibbard and therefore, a manslaughter instruction should be given. Mathis’ testimony went against the great weight of the evidence and the surviving eyewitnesses’ testimony that he was calm and calculated when he shot Hibbard. The trial court denied trial counsel’s request; instead the trial court instructed the jury it could return a conviction of capital murder or murder. In Beck, the Supreme Court invalidated an Alabama statute that prohibited the trial court from giving a lesser included offense instruction in a trial for a capital crime. As the Supreme Court later explained in Schad v. Arizona, Beck sought to prevent a scenario where a jury, convinced that a defendant was guilty of a serious, violent crime but not sure that he was guilty of a capital crime, was faced with a situation where they had to vote for a capital conviction or let the defendant go free. 501 U.S. 624, 646 (1991) (quotation marks omitted). ‘[O]n the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason--its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty [in Alabama] may encourage it to acquit for an equally impermissible reason--that, whatever his crime, the defendant does not deserve death.... [T]hese two extraneous factors ... introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.’ We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented. . . . As we later explained in Spaziano v. Florida, 468 U.S. 447, 455 (1984), ‘[t]he absence of a lesser included offense instruction increases the risk that the jury will convict ... simply to avoid setting the defendant free.... The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.’ This central concern of Beck simply is not implicated in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence. 9 Id. at 646-47 (internal citations omitted). In Schad, the trial court gave a jury instruction for the non-capital offense of second-degree murder. The petitioner argued that the jury should have been given an instruction for simple robbery. The Schad Court rejected the petitioner’s argument, concluding that as long as the jury had an option other than capital conviction or acquittal, even if that third option was second-degree murder and not robbery, the jury’s capital murder verdict did not implicate a Beck violation. Id. at 647. Here, the jury found Mathis guilty of capital murder under Texas Penal Code § 19.03(a)(7) for the murder of more than one person during the same criminal transaction. Mathis argues that a capital murder charge under§ 19.03(a)(7) is really two murder convictions plus an affirmative finding of the same transaction. He argues that Beck must be applied to each homicide in his capital murder charge. He contends that the jury was faced with the all or nothing dilemma of either convicting Mathis under a higher mental state for Hibbard’s murder or letting him go free for that killing, and thereby, under Beck, the trial court violated his constitutional rights when it did not allow the jury to consider the lesser included offense of manslaughter as to Hibbard. A finding of recklessness as to the killing of Hibbard would necessarily negate one of the elements required to convict him of capital murder.2 The Court of Criminal Appeals rejected Mathis’ argument because it held that his trial testimony alone did not present enough evidence for the jury to rationally find that his shooting of 2 Mathis also argues that the jury charge presented a problem akin to the one in Penry v. Johnson, 532 U.S. 782 (2001), in that, without a manslaughter instruction, jurors who did not believe that one murder conviction fully addressed the fact of two killings would have to nullify a truthful finding that the petitioner killed Hibbard in order to compromise on a verdict which only held him accountable for the murder of Brown. However, the jury instruct ion here was not internally contradictory nor did it present the ethical dilemma faced by jurors instructed under the unconstitutional charge in Penry. We therefore reject this argument. 10 Hibbard was simply reckless. The Court of Criminal Appeals held that a lesser included offense instruction should only be given by a trial court where a valid rational alternative to a capital conviction can be found in light of all the evidence. The district court affirmed, holding that the state court ruling was no t contrary to, or an unreasonable application of, federal law. In addition, the district court read Beck as prohibiting a situation where the jury was faced with only two choices, either convict the defendant of a capital offense or acquit. Under that interpretation, no constitutional violation occurs if the trial court provided the jury with the option of convicting the defendant of a non-capit al offense. Because, the jury was given the option of convicting Mathis of a non-capital offense, the district court concluded no constitutional violation occurred, even if the trial court denied a specific lesser-included offense instruction. We agree with the district court’s latter conclusion. The crux of Mathis’ argument is parallel to that presented by the petitioner in Schad. Id. at 646-48. The petitioner there was charged with murder committed during the course of a robbery, a capital offense, but he maintained that he was guilty of only simple robbery. The jury was instructed on capital murder and second-degree murder. Schad argued that if the jury believed his defense theory, and thought him guilty of only robbery, there was no verdict through which they could express that view; the jury was therefore faced with either convicting him of murder or letting him go free. The Supreme Court rejected the pet itioner’s argument that “the jurors should have been given the opportunity to return a verdict in conformity with their reasonable view of the evidence.” Id. at 647 (internal quotation marks and citation omitted). The assertion that a petitioner is entitled to instruct the jury on every lesser included offense supported by the evidence, the Schad Court said, is a misapprehension of the constitutional principles in Beck. Id. at 646. Instead, the Schad Court reiterated that the goal of Beck was to eliminate an all or nothing choice between capital conviction 11 or innocence. Id. Here, the trial court gave instructions as to capital murder, murder, and self-defense. Thus, the jury was not faced with a situation where they might be “convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime [and] might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” Id. Here, if the jury believed that Mathis was guilty of a serious, violent crime but did not want to impose the death penalty, they had the choice of imposing a sentence of murder. Because this conclusion is not one about which reasonable jurist could differ, we decline to issue a COA. IV. Competency hearing Mathis’s fourth claim concerns his contention that the trial court violated his due process rights in failing to conduct a competency hearing sua sponte during trial. Mathis bases his procedural competency argument on one central incident at trial. Mathis’ defense theory depended on his explanation of the shootings. When Mathis was called to testify he initially stated that he was not present at the house when the murders occurred, to the surprise of his attorney and against the great weight of the evidence. Trial counsel immediately requested a recess so that he could consult with Mathis. Counsel also suggested to the trial court that this “breakdown in communications” may be attributable to Mathis’ well-documented history of “some mental problems, some episodes, some trauma to him.” After a brief break, Mathis returned to the witness stand. He admitted he had lied about not being at the house at the time of the shootings. He stated that “the reason why I lied is because I was already on probation and everything and I knew–I knew exactly what I would face if I told the truth about me being there. I was lying because, because I was scared.” Mathis argues that 12 his illogical lie, especially considering that his defense strategy hinged on his testimony, suggested that he did not grasp the gravity of his situation and he did not appreciate the need to cooperate with trial counsel, which he asserts indicated his incompetency. On habeas review before this court, Mathis makes only a claim for a procedural error for failure to ensure competency not a substantive claim that he was actually incompetent. Constitutional due process requires that the trial of an accused may be conducted only when they are legally competent. See Pate v. Robinson, 383 U.S. 375 (1966). A court must sua sponte conduct an inquiry into a defendant's mental capacity if the evidence raises a bona fide doubt as to the defendant's competency. See Drope v. Missouri, 420 U.S. 162 (1975); see also Lokos v. Capps, 625 F.2d 1258 (5th Cir. 1980). In considering whether a hearing should have been conducted into the defendant’s mental status, “[t]he question is: Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant's competency and alerted him to the po ssibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.” Id. at 1261. The test to determine whether a Pate procedural violation has occurred is an objective one based on what was known to the trial court at the time of the trial. Id. (citation omitted). The Supreme Court has not articulated a precise standard for what should indicate a bona fide doubt, but generally the Court focuses on three factors that should be considered: (1) the existence of a history of irrational behavior, (2) defendant's demeanor at trial, and (3) a prior medical opinion. See e.g., Drope, 420 U.S. at 180. Even one of these factors, standing alone, may be sufficient to signal a constitutional violation. Id. The state habeas court held that there was insufficient evidence to raise a bona fide doubt as 13 to Mathis’ competency to stand trial. The state court noted there was strong indicia of Mathis’ competency, namely his demeanor at trial and the examinations by two mental health experts who did not challenge his competency. The district court further noted that two ex parte hearings were held apparently for the purpose of determining Mathis’ competency. Although the record does not indicate what rulings resulted from those hearings, Mathis was apparently found competent. The district court concluded that Mathis failed to demonstrate obj ective facts known to the trial court during trial which would have signaled any doubt as to his competency. Our review of the trial record also indicates that Mathis understood the nature of the proceedings, and otherwise acted competently; accordingly, we can not issue a COA. The only evidence Mathis points to that he argues should have raised a “red flag” concerning his competency is the statement made by trial counsel concerning Mathis history of mental problems and the “illogical lie” Mathis told at trial that he was not present at the house at the time of the shootings. First, vague statements made by defense counsel of mental problems, without additional evidence, are not sufficient to raise a bona fide doubt of competency. See Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir. 1979) (quoting Jordan v. Wainwright, 457 F.2d 338, 339 (5th Cir. 1972) (finding defense counsel’s “naked suggestion that the defendant may be incompetent” insufficient to warrant a competency hearing)). Moreover, Mathis’ lie, although illogical and probably detrimental to his case, was not sufficient to raise a bona fide doubt as to his competency. Accord Davis v. Woodford, 384 F.3d 628, 645-46 (9th Cir. 2004) (holding that although defendant’s behavior was recalcitrant and detrimental to his case, the trial judge did not err in not conducting a competency hearing where the defendant otherwise demonstrated he understood the proceedings and what was at stake). Mathis rat ionally explained why he lied, he was scared. Furthermore, in his 14 explanation he explicitly stated he “knew exactly what [he] would face” if he told the truth, thus demonstrating that he had a “‘rational as well factual understanding of the proceedings against him.’” Godinez v. Moran, 509 U.S. 389, 396 (1983) (citation omitted). We therefore cannot justify the issuance of a COA. V. Withholding of Impeachment Evidence Mathis claims the prosecution violated his constitutional rights by failing to reveal evidence that could have been used to impeach Gregory Jackson, a prosecution witness. Jackson testified that he and Mathis were incarcerated together while Mathis was awaiting trial. He alleged that Mathis confessed to the killings and expressed no remorse. Even more damaging, Jackson alleged that Mathis stated “the only thing he [Mathis] resented is that he didn’t kill everybody that was in the house.” Mathis asserts several pieces of evidence were improperly withheld, specifically (1) the full extent of Jackson’s criminal record; (2) that Jackson had repeatedly contacted the district attorney’s office, seeking an opportunity to testify for the prosecution against other defendants; (3) any offers that might have been made to Jackson in return for his testimony; and (4) that there might be some questions as to Jackson’s mental capacity and the prosecution in another context had earlier questioned Jackson’s credibility; and (5) the testimony of other cellmates who could refute Jackson’s testimony. The district court concluded that Mathis failed to show that the State did not turn over all materials in its possession to him or that Mathis could not have obtained such evidence with reasonable and diligent effort. Furthermore, even assuming the prosecution had withheld evidence, the district court concluded that Mathis did not show that the evidence was material to his conviction or sentence because Jackson’s testimony was only a small portion of the significant evidence 15 presented by the State. The Supreme Court in Brady v. Maryland held that the suppression by the prosecution of evidence favorable to the accused “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). Three factors must be present to constitute a Brady violation: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281- 82 (1999)). Unless the “evidence is ‘material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to overcome [a] procedural default.’” Id. at 698 (quoting Strickler, 527 U.S. at 282). In order to prove materiality, the defendant must show that with the suppressed evidence there is “a reasonable probability of a different result.” Id. (quoting Kyles v. Whitley, 514 U.S. 419 (1995)). “[W]hen information is fully available to a defendant at the time of trial and his only reason for not obtaining and present ing the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim." United States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980). Brady does not place any burden upon the Government to conduct a defendant's investigation or assist in the presentation of the defense's case. United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990) (citations omitted). The State argues that no evidence was suppressed because all of the evidence challenged by Mathis was either in the prosecution’s open file, part of the public record, or inadmissible. Mathis counters that while “in theory [trial counsel] could have combed through sealed records” looking for 16 the evidence they say was suppressed, they would not have known where to look “without some guidance by the prosecution.” Mathis’ argument is unavailing. It is well established that the prosecution has no duty under Brady to give defense counsel guidance as to where in the prosecution’s open file to find exculpatory evidence. United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997) (“‘There is no authority for the proposition that the government’s Brady obligations require it to point the defense to specific documents with a larger mass of material that it has already turned over.’”); see also Marrero, 904 F.2d at 260-61. The evidence in the prosecution’s open file was not suppressed because Mathis’ counsel had equal access to it. However, we find unpersuasive the State’s argument that they had no duty to disclose exculpatory evidence that was available in the public record. Specifically, the State contends that Jackson’s competency evaluation and evidence that he tried to claim he was incompetent in a previous trial, were available in his file in the district clerk’s office. In addition, Jackson’s file also contained evidence that he previously tried to act as a confidential informant in other cases but he was repeatedly rebuffed by the State because they questioned his credibility. As the Supreme Court has previous noted, when a prosecutor asserts they have complied with Brady through their open file policy, defense counsel may reasonably rely on that file to contain all the relevant exculpatory materials the state is obligated to disclose pursuant to Brady. Strickler v. Greene, 527 U.S. 263, 283 n.23 (1999) (quotation marks omitted); accord Banks, 540 U.S. at 694-96. “If the State failed under a duty to disclose the evidence, then its location in the public record, in another defendant’s file, is immaterial.” Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004) (citation omitted). In Johnson, a murder accomplice, who was also a witness at the accused’s trial, stipulated under oath that he shot 17 the victim; the accused did not know at trial about the accomplice’s stipulation. The district court relied on the fact that the stipulation was available in the public record to hold that a counsel exercising due diligence could have discovered it. The Fifth Circuit reversed the district court’s denial of COA because we found that reasonable jurists could debate whether it was prosecutorial misconduct to not disclose the stipulation to the accused. Id. Even though the evidence pointed to by the defense may have been improperly withheld by the State, no Brady violation can be found if the evidence is not material, i.e., unless there is a reasonable probability there would have been a different result at trial. At the guilt/innocent phase of the trial, Jackson testified that Mathis confessed to shooting Brown and Hibbard. Additionally, there was significant evidence at trial that Mathis shot Brown and Hibbard, including Mathis’ own testimony and the testimony of the surviving eyewitnesses. Thus, even if Mathis could have further impeached Jackson’s testimony at the guilt/innocence phase, it would not have“‘put the whole case in such a different light.’” Banks, 540 U.S. at 698 (citation omitted). Jackson also testified Mathis said he regretted that he did not kill everybody in the house. The prosecution repeated Jackson’s statement at the sentencing phase twice, during opening and closing statements. The jury was required to answer t wo special questions at the sentencing phase: (1) whether they found from the evidence, beyond a reasonable doubt, that there is a probability the Defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) whether they found there was sufficient mitigating circumstances to warrant the imposition of a sentence other than death. The jury answered yes to the first question and no to the latter. Mathis argues that Jackson’s testimony was critical evidence that painted Mathis as a remorseless and cold-blooded killer who posed a continuing threat to society. However, the 18 prosecution also put forth witnesses who testified as to Mathis’ prior criminal history –including a girlfriend he assaulted, police officers who he assaulted, and teachers who kicked him out of high school for disciplinary problems. In addition, a corrections officer testified to Mathis’ ongoing disciplinary problems in jail during the course of the trial and the nurse of Mathis’ paralyzed victim, Almaguer, testified to the measures necessary to keep her alive on a day-to-day basis. Although Jackson’s averment–that Mathis was remorseless–was damning, we agree with the district court that there was sufficient evidence independent of Jackson’s testimony for the jury to find that Mathis posed a continuing threat of violence. We find that reasonable jurists could not debate this conclusion, and decline to issue a COA. VI. Ineffective Assistance of Counsel Mathis’ other claims relate to his assertion that his trial counsel’s performance was ineffective. Mathis argues that his trial counsel failed to (1) discover impeachment evidence against Gregory Jackson; (2) object to testimony by Esmerelda Lester, a surviving eyewitness from the shootings, when she stated that she heard that “there was a hit on [her] head;” (3) object when the prosecution called Mathis “a despicable piece of human trash;” (4) investigate and develop mitigating evidence that he had a low IQ; and (5) present expert testimony that he suffered from frontal lobe damage. We address each one in turn. To make a substantial showing of the denial of his Sixth Amendment right to reasonably effective assistance of counsel, Mathis must demonstrate "that counsel's performance was deficient," and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. Judicial scrutiny 19 of counsel's performance must be "highly deferential" and we must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. To establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A. Failure to investigate impeachment evidence The district court affirmed the state habeas court’s conclusion that Mathis’ trial counsel’s pre- trial investigation of impeachment evidence was not ineffective. Furthermore, the district court averred that even if trial counsel should have investigated Jackson’s background more thoroughly, there was no indication that the deficiency prejudiced the defense. The jury was well-aware t hat Jackson had a criminal record because it was mentioned in both direct and cross examination. The district court observed that trial counsel vigorously cross-examined Jackson, calling him a thief, a burglar, a robber, a cheater, and a liar. Accordingly, the district court held that there was not a reaso nable probability that there would have been a different outcome had trial counsel more thoroughly tried to impeach Jackson’s testimony. Our review of the record likewise indicates that trial counsel thoroughly challenged Jackson about his credibility during cross-examination. Mathis argues that counsel should have been aware of the impeachment evidence concerning Jackson that was available in the public record. However, as previously noted, the Supreme Court has stated that defense counsel may reasonably rely on a prosecutor’s open-file to contain all relevant exculpatory materials the state is obligated to disclose when a prosecutor asserts they have complied with Brady through their open-file policy. Strickler, 20 527 U.S. at 282 n.23. Mathis’ counsel was not ineffective in failing to find the information about Jackson that was not contained in the prosecutor’s open-file, even if that information was available in the public record. However, even if trial counsel was obligated to discover the impeachment evidence against Jackson, reasonable jurists could not disagree that there is no probability that there would have been a different result at trial. See Section V, supra. We therefore decline to issue a COA. B. Failure to object to Lester’s testimony Mathis argues that his trial counsel was ineffective for failing to object to certain comments made during the guilt-innocence phase of the trial by Emeralda Lester, a surviving eyewitness and mother of paralyzed victim Melanie Almaguer. On direct examination, the prosecutor asked Lester where she had been living since the shooting. Lester responded that she had been living “[f]rom motel to motel” because she was in hiding. The prosecutor replied, “Why?” to which Lester stated, “Because it was on the streets that there was a hit on my head.” Mathis asserts that Lester’s comment implied that he may be responsible for a serious extraneous offense–namely, solicitation of the murder of a witness, in order to preclude Lester from testifying against him. Mathis contends that Lester’s testimony, in tandem with Jackson’s testimony, implied that he was remorseless and violent. Furthermore, Mathis argues that had his trial counsel objected to Lester’s testimony, it would have warranted a mistrial. The district court concluded that Mathis failed to show that an objection to Lester’s testimony would have created a reasonable probability of a different result, especially in light of the significant independent evidence establishing that Mathis had a violent criminal history and displayed no remorse. Although the gravamen of Mathis’ argument is that Lester’s testimony affected the jury’s decision 21 in sentencing, the testimony itself occurred during the guilt-innocence phase of the trial. Even assuming that the jury retained this information as part of their sentencing deliberations, the district court noted that Lester did not state that Mathis was responsible for the “hit on [her] head,” nor that the “hit” was a direct result of the shootings or the trial. We agree, and find that reasonable jurists could not disagree with the district court’s conclusion. In addition, we note that Mathis himself admits that there was evidence, independent of Lester’s vague comment, that could have established that Mathis was remorseless and violent. Mathis’ brief states that Lester’s testimony “dovetailed with Jackson’s testimony about the petitioner’s supposed ‘regret’” and “Lester’s testimony, like Jackson’s, provided strong evidence of an ongoing ‘remorseless’ attitude and tendency towards violence.” We thereby can not issue a COA. C. Failure to object to prosecutor’s statement Mathis objects to the prosecutor calling him “a despicable piece of human trash” during closing st atements and asserts that his trial counsel was ineffective for failing to object to the prosecutor’s use of language. He contends that the jury is likely to be influenced by an experienced prosecutor’s personal opinion. He also argues a characterization that he is trash implies that he deserves to be discarded, i.e., that he deserves to die. The district court concluded that Mathis failed to show that the failure to object resulted in prejudice or made the proceedings fundamentally unfair. Trial counsel had also used trenchant language in closing arguments in reference to the victims, which the state habeas court concluded could have justified an equally vitriolic response from the prosecution; the district court held that the state habeas court’s conclusion was not contrary to or an unreasonable application of federal law. The prosecutor’s comment was very likely an impermissible interjection of his personal beliefs 22 into the closing arguments, however, we are unconvinced that a COA should be issued. Even if trial counsel had objected, the statement would not have constituted reversible error. See e.g., United States v. Hayes, 444 F.2d 472, 474 (5th Cir. 1971) (“Because of the overwhelming evidence of guilt, it can hardly be said that appellant s were prejudiced in the minds of the jury by the prosecutor's comment. Even taking the view most favorable to appellants, such remarks do not constitute the type of 'obvious and substantial' error which would be grounds for reversal.”); see also United States v. Shaw, 701 F.3d 367 (5th Cir. 1983) (prosecutor’s comment [he had never seen a "colder, more cold blooded, remorseless defendant"] did not prejudicially affect defendant's substantial rights considering overall strength of evidence against him and failure of prosecutor to convey impression that he possessed private or extrinsic information supporting belief.). In light of the overwhelming evidence presented of his guilt, there is no probability that an objection from trial counsel would have resulted in a different outcome at trial. D. Failure to investigate low intelligence/mental retardation. The evidence presented to the state trial court showed Mathis to have a low range of intelligence but all above the threshold for mental retardation. Specifically, the expert’s report indicated that Mathis’ full scale I.Q. was 79, his verbal I.Q. was 77 and his performance I.Q. was 85. Testing performed by a psychologist for the Texas Department of Criminal Justice after his conviction reflect different results. Those results show Mathis to have a full scale I.Q. of 62, verbal I.Q. of 65 and a performance I.Q. of 60. The dist rict court held that Mathis failed to present evidence that reasonable counsel, at the time of trial, would have investigated his possible mental retardation further. Nonetheless, the district court concluded that even without the evidence of mental retardation, trial counsel “covered the same ground” in presenting evidence that Mathis’ drug use 23 impaired his ability to reason and function normally; thus there is no reasonable probability that evidence of mental retardation would have changed the result. We decline to issue a COA on this issue because trial counsel did not fall below objective standards of reasonableness in their investigation of Mathis’ intelligence. It is not asserted that trial counsel failed to investigate mental capacity. Cf. Wiggins v. Smith, 539 U.S. 510 (2003) (finding Strickland claim meritorious where counsel failed to conduct an adequate investigation into defendant’s background). To the contrary, Mathis took an I.Q. test prior to trial and scored low, but above the threshold for mental retardation. Mathis makes no argument that a reasonable counsel at the time of trial would have investigated further. It is a mystery how Mathis could have scored 10-20 points higher on his I.Q. test before trial as compared to after his conviction. However, trial counsel was not deficient in their performance to trust the results of the initial I.Q. tests. E. Mitigating evidence of frontal-lobe damage Mathis presented an affidavit from Pheobe Smith, who along with lead counsel, Steven Rosen, was Mathis’ counsel at trial. Smith averred that in her investigation of mitigation evidence, she interviewed Dr. Stephen Martin, Ph.D., a neurological expert. Based on neurological tests performed by Dr. Martin’s associate, Dr. Martin was prepared to testify that Mathis had frontal lobe brain damage and that the brain damage impaired Mathis’ ability to think and function normally, particularly when under stress. Smith stated in her affidavit that she did not known why Steven Rosen chose not to present this potentially mitigating evidence and she felt that it was ineffective assistance of counsel to not present the testimony of Dr. Martin. “[C]ounsel's failure to develop or present mitigating background evidence is not per se deficient performance. . . . Strickland requires that we defer t o counsel's decision not to present 24 mitigating evidence or not to present a certain line of mitigating evidence when that decision is both fully informed and strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense.” Moore v. Johnson, 194 F.3d 586, 615 (5th Cir. 1999) (internal citations omitted). The state habeas court held that trial counsel’s decision not to put Dr. Martin’s evidence before the jury was part of sound trial strategy and did not fall below an objective standard of reasonableness. The district court determined that the state habeas court did not fully adjudicate the claim on its merits because it did not consider the prejudice prong of the Strickland analysis, and consequently the prejudice prong may be reviewed de novo. See Henderson, 333 F.3d at 600-01(finding that the ADEPA’s standard of review does not apply to the deficient performance prong of Strickland claim because the state court did not address that part of petitioner’s claim). Without addressing the question of whether trial counsel was deficient for not presenting Dr. Martin’s evidence, on de novo review the district court concluded that Mathis did not satisfy the prejudice prong of the Strickland analysis. After noting that Mathis stated that his frontal lobe damage was not caused by a physical injury but was instead attributable to his drug use, the district court concluded that trial counsel presented other mitigating evidence with the same “mitigating thrust.” Specifically, the district court stated that the testimony of Dr. Jesse A. Reed, a psychologist who testified about the effect drug abuse had on Mathis, was similar in kind to Dr. Martin’s averments because they both would have presented to the jury facts stating that drugs impaired Mathis’ judgment and contributed to his criminal history. Accordingly, the district court held that there was no reasonable probability of a different result because the jury was able to consider evidence with the same mitigating effect. We agree, and further find that reasonable jurists could not 25 debate this point; therefore, we deny a COA. Conclusion For the reasons outlined above, Mathis’ request for a COA is DENIED. Additionally, Mathis’ motion for stay of execution is DENIED and Mathis’ motion for stay of proceedings is DENIED. 26 

185 B.R. 89 (1995) In re Penny H. FLYNN, Debtor. UNITED STATES of America, Appellant, v. Penny H. FLYNN, Appellee. Bankruptcy No. 92-40789-LWD. Adv. No. 93-04013A-LWD. No. CV 494-152. United States District Court, S.D. Georgia, Savannah Division. March 31, 1995. *90 Sean O'Connor, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, DC, for U.S. and I.R.S. R. Wade Gastin, Savannah, GA, for Penny H. Flynn. ORDER AND MEMORANDUM NANGLE, District Judge. Appellant United States of America appeals the May 13, 1994, order of the Bankruptcy Court[1] awarding appellee out-ofpocket *91 expenses, emotional distress damages, punitive damages and attorney's fees for violation of an automatic stay. The Court has considered the parties' pleadings and the record on appeal. For the reasons set out below, the order of the Bankruptcy Court is affirmed in part, reversed in part and remanded with instructions. BACKGROUND Appellee Penny Flynn filed a Chapter 13 petition for relief with the Bankruptcy Court on April 17, 1992. At that time, appellee was divorced from her husband and providing support to their two minor sons. During the marriage, appellee and her husband were filing joint tax returns. According to appellee, her husband was under-reporting his income which led to the assessment of additional taxes and to a significant portion of the debt owed to the Internal Revenue Service ("IRS") set out in her bankruptcy petition. The IRS received timely notice of plaintiff's bankruptcy case and filed two proof of claims on August 26, 1992. These claims were provided for in the Debtor's Plan confirmed on November 19, 1992. On January 14, 1993, appellee received a letter from NationsBank of Georgia, N.A., dated January 12, 1994, informing her that the IRS had served the bank with a levy on her checking account. NationsBank advised appellee that, unless a release was received within twenty-one days, the sums in the account up to the amount of the levy would be turned over to the IRS. In the meantime, appellee's checking account was frozen. On January 15, 1993, appellee called the Jacksonville office of the IRS and spoke with one or more persons in the collection department. One of these persons admitted that the levy should not have been filed and stated that a release of the levy would be filed by the end of the day. The release was prepared that day and the original was mailed to NationsBank but a copy was not actually faxed until the next week. The mailed original was received by NationsBank on January 19, 1993. The appellee called the IRS office about the situation again on January 19, 1993. By January 21, 1993, NationsBank had been advised by fax and mail that the levy was released. The adversary proceeding that is the subject of this appeal was instituted by appellee on January 26, 1993. Appellee experienced several adverse consequences due to the notice of levy and the subsequent freeze on her account. According to the appellee, she suffered extreme emotional distress after receiving the letter from NationsBank. She was forced to cancel her eleven year old son's birthday party. She suffered embarrassment and humiliation when she was stopped in a check-out line at Kroger because a previous check had bounced. She incurred a total of $120.00 of charges for checks returned for nonsufficient funds. In addition, she lost three days of wages and incurred travel expenses in order to attend the hearing in Bankruptcy Court. The Bankruptcy Court held a hearing in this adversary proceeding on February 2, 1994, and issued its written order on May 13, 1994. Flynn v. Internal Revenue Service and United States, 169 B.R. 1007 (Bankr. S.D.Ga.1994). In its order, the Bankruptcy Court held that the IRS willfully violated the automatic stay provision of 11 U.S.C. § 362(h) and waived sovereign immunity under 11 U.S.C. § 106(a). The Court awarded appellee $588.55 in out-of-pocket expenses, consisting of $120.00 in returned check charges, $360.00 in lost wage charges and $108.55 in travel expenses. The Court awarded appellee $5,000.00 in damages for emotional distress, due to the embarrassment, humiliation and shame she suffered as a result of the levy. Attorney's fees of $2,709.00 were awarded based on appellee's counsel's expenditure of 27.09 hours at the rate of $100.00 per hour. Punitive damages of $10,000.00 were awarded based on "[t]he IRS's recalcitrance and indifference to the fact that its current system guarantees that it will repeatedly violate the automatic stay". Id. at 1024. The damages were to be offset against any remaining claims that the IRS had against appellee in the Chapter 13 proceeding. On May 20, 1994, the United States filed a Notice of Appeal challenging the Bankruptcy Court's order. After briefing was completed, the Bankruptcy Reform Act of 1994 ("Act") *92 was passed on October 22, 1994. Appellant submitted a supplemental brief on December 1, 1994, addressing the effect of the Act on the present case. The matter is now before the Court. DISCUSSION After passage of the Act, the issues raised in appellant's opening brief have been amended. Accordingly, the Court will address the amended issues. 1. Whether the IRS willfully violated the automatic stay thereby entitling appellee to compensatory damages, costs and attorney's fees under 11 U.S.C. § 362(h). In its supplemental brief, appellant argues that the debtor was not entitled to compensatory damages, costs and attorney's fees under 11 U.S.C. § 362(h) because the IRS did not willfully violate the automatic stay. Appellant asserts that this argument was raised in its opening brief as Argument III-A. Argument III in the appellant's opening brief concerned whether punitive damages were justified given that the IRS had inadvertently violated the automatic stay. It did not concern whether the violation was willful for purposes of compensatory damages, costs and attorney's fees. In fact, appellant does not address the willfulness of the violation in relation to these damages anywhere in the opening brief. "Arguments raised for the first time in a reply brief are not properly before a reviewing court". United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir.1984). The Court notes that this is a supplemental brief, rather than a reply brief, filed due to the passage of the Act after the parties had submitted their briefs. There is no reason, however, that appellant could not have raised the issue of a willful violation in its opening brief since the Bankruptcy Court addressed the issue in its order. Flynn, 169 B.R. at 1013-1014. Accordingly, that issue is not properly before this Court. Even if the issue of whether a willful violation occurred under § 362(h) were properly before this Court, the Court would find that such a willful violation occurred in this case. A violation of an automatic stay under § 362(h) is willful if the defendant knew of the automatic stay and the defendant's actions violating the stay were intentional. Specific intent to violate the automatic stay is not required. In re Clarkson, 168 B.R. 93, 94 (Bankr.D.S.C.1994). In this case, the IRS received notice of plaintiff's bankruptcy case and filed two proof of claims in the case. Its action in sending the notice of levy to appellee's bank was certainly intentional. Therefore, the violation was willful. Appellant asserted below that the violation was not willful because the IRS's Jacksonville office, the office that issued the levy, did not have actual notice of the bankruptcy. The office did not have actual notice because the IRS collection service is not notified by computer when a "secondary taxpayer" on a joint return files for bankruptcy because the information is only put into the system as it relates to the "primary taxpayer" on the return. In its order, the Bankruptcy Court not only found that the IRS internal computer system's shortcomings did not justify a finding that the violation was not willful but that it constituted conduct that justified a significant award of punitive damages due to the IRS's cavalier attitude. Flynn, 169 B.R. at 1024. Other courts have recognized that the IRS must establish appropriate internal procedures to avoid violations of automatic stays. See, e.g., In re Santa Rosa Truck Stop, Inc., 74 B.R. 641, 643 (Bankr.N.D.Fla. 1987) ("The burden has to be on the I.R.S. to develop sufficient procedures to avoid the continuation of its collection efforts once a petition has been filed."); In re Price, 103 B.R. 989, 993 (Bankr.N.D.Ill.1989) ("The size and complexity of the IRS does not excuse its disregard for the automatic stay."), aff'd, 130 B.R. 259 (N.D.Ill.1991). Therefore, the Court holds that the violation in this case was willful despite the IRS's internal procedure problems. 2. Whether damages for emotional distress were justified given that appellee presented no medical evidence. Appellant argues that appellee is not entitled to damages for emotional distress because she presented no medical testimony *93 justifying such an award. Appellant further urges that the Bankruptcy Court's finding that appellee suffered distress over the freezing of her account overlooks the fact that the account would not have been debited for over twenty-one days after the notice of levy was sent out, the fact that appellee suffered anxiety over her husband's failure to pay child support and her filing for bankruptcy, and the IRS's prompt remedial actions. Medical testimony was not necessary in this case to show that appellee was entitled to an award of damages for emotional distress. The Bankruptcy Court recognized that some courts have denied such damages due to lack of medical evidence. Flynn, 169 B.R. at 1021-1022 and n. 20. The court also recognized that other courts have used a less stringent standard in cases where it was clear that emotional harm had been suffered due to a violation of the stay. Id. at 1022 and n. 21. In this case, it is clear that appellee suffered emotional harm as a direct result of the violation of the automatic stay and the resulting freeze on her checking account. She was forced to cancel her son's birthday party, embarrassed in a check-out line at the supermarket and justifiably worried that her checks would bounce due to the freeze on her account. All of these events justify an award of damages for emotional distress regardless of whether medical testimony is provided. Appellant argues that the Bankruptcy Court overlooked other factors when making its award of damages for emotional distress. None of these factors negate the court's award of damages. The Bankruptcy Court awarded damages for events that occurred as a direct consequence of the IRS violation. The fact that the account would not be debited for twenty-one days after the notice of levy was issued did not prevent appellee's account from being frozen. The fact that appellee may have been suffering anxiety from other sources does not diminish the anxiety she suffered because of the violation. Furthermore, even if the IRS' remedial actions were prompt, the damage was done despite any such action. Accordingly, the Court finds that the award of emotional damages was justified given the circumstances of this case. 3. Whether appellee is entitled to punitive damages after the passage of the Bankruptcy Reform Act of 1994. In its supplemental brief, appellant argues that the Act passed on October 22, 1994, bars the recovery of punitive damages against the United States for the willful violation of an automatic stay. The relevant portions of Section 113 of the Act provide that: (a) Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following: (1) Sections . . . 362 . . . (3) The court may issue against a governmental unit an order, process, or judgment under such sections or the Federal Rules of Bankruptcy Procedure, including an order or judgment awarding a money recovery, but not including an award of punitive damages. Such order or judgment for costs or fees under this title or the Federal Rules of Bankruptcy Procedure against any governmental unit shall be consistent with the provisions and limitations of section 2412(d)(2)(A) of title 28. Pub.L. 103-394, 108 Stat. 4117-18, § 113 (codified as amended at 11 U.S.C. § 106) (emphasis added). This section clearly provides that punitive damages are not available against the United States for violations of § 362(h). The Act also makes this provision retroactive. 108 Stat. at 4150, § 702(a)(2)(B) ("The amendments made by sections 113 and 117 shall apply with respect to cases commenced under Title 11 of the United States Code before, on, and after the date of the enactment of this Act."). Accordingly, the Bankruptcy Court's award of punitive damages must be reversed. 4. Whether remand of the attorney's fees award is required after the passage of the Act. Section 113 of the Act, made retroactive by Section 702, provides that awards for attorney's fees against a governmental *94 unit be consistent with 28 U.S.C. § 2412(d)(2)(A). The relevant portion of that section provides that "attorney's fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee". The Bankruptcy Court awarded attorney's fees at the rate of $100 per hour. Accordingly, these fees should be reconsidered in light of the passage of the Act. The Court finds that it would be more appropriate for the Bankruptcy Court to determine if attorney's fees in excess of $75 an hour should be awarded in this case. Accordingly, the attorney's fee award of $2,709.00 is vacated and this issue is remanded to the Bankruptcy Court to determine an appropriate fee award in light of the Bankruptcy Reform Act of 1994. CONCLUSION The Court affirms the Bankruptcy Court's holding that appellant committed a willful violation of the automatic stay and that appellee is entitled to an award of damages under 11 U.S.C. § 362(h). The Court affirms the award to appellee of out-of-pocket expenses in the amount of $588.55 and damages for emotional distress in the amount of $5,000.00. The Bankruptcy Court's award of punitive damages is reversed and vacated due to the passage of the Bankruptcy Reform Act of 1994. The Bankruptcy Court's award of attorney's fees of $2,709.00 is vacated due to passage of the Act and the issue is remanded to the Bankruptcy Court for award of an appropriate fee in light of the new legislation. Accordingly, IT IS HEREBY ORDERED that the decision of the Bankruptcy Court be and is affirmed in part, reversed in part and remanded with instructions in accordance with the above memorandum. NOTES [1] The Honorable Lamar W. Davis, Jr., Chief Judge, United States Bankruptcy Court for the Southern District of Georgia.

881 So.2d 1286 (2004) Barbara B. GILLIAM and George R. Gilliam v. Lori L. PALAZZO, M.D. No. 04-CA-241. Court of Appeal of Louisiana, Fifth Circuit. August 31, 2004. Joel A. Levy, Marrero, LA, for Plaintiffs/Appellants. Rodi W. Culotta, Angelle Schmidt Stuart, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, LA, for Defendant/Appellee. *1287 Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and JAMES C. GULOTTA, Pro Tempore. JAMES C. GULOTTA, Judge, Pro Tempore. Barbara B. Gilliam and George R. Gilliam, plaintiffs-appellants, appeal from the trial court's judgment in this medical malpractice case, dismissing their suit against defendant-appellee, Lori L. Palazzo, M.D. We affirm. On Wednesday, October 1, 1997, 56-year-old Barbara Gilliam telephoned the office of her primary care physician, Dr. Lori Palazzo, to obtain an appointment. According to the telephone consultation memo, Mrs. Gilliam related that she had neck pain and "now" had a rash on the right side of her neck that did not itch, but hurt. The memo further indicated Mrs. Gilliam said that someone had told her she might have "shingles." Mrs. Gilliam was given an appointment for the following morning. When Dr. Palazzo examined Mrs. Gilliam, she diagnosed Mrs. Gilliam with poison ivy, not shingles. Dr. Palazzo testified at trial that her progress notes indicated Mrs. Gilliam reported working in the garden for approximately four days. The progress notes also indicated that Mrs. Gilliam's neck pain was intermittent. Dr. Palazzo testified that a physical examination revealed scattered vesicles, or small blisters, in patches on Mrs. Gilliam's neck, upper chest, abdomen and arm. Dr. Palazzo gave Mrs. Gilliam a steroid injection, placed Mrs. Gilliam on oral steroids, topical steroid cream, and Zyrtec, an antihistamine to help with itching. On Monday, October 6, 1997, Mrs. Gilliam telephoned Dr. Palazzo's office complaining of burning all over and spasms in her neck and right arm. She also related that she could not sleep. In response, Dr. Palazzo prescribed a sleeping pill and a muscle relaxant. On Thursday, October 9, 1997, Mrs. Gilliam again telephoned Dr. Palazzo's office. According to the telephone consultation memo, Mrs. Gilliam related that she still had poison ivy and that she still oozed and itched. Dr. Palazzo recommended that Mrs. Gilliam consult a dermatologist and made arrangements for her to see Dr. Daniel Marshall, a board certified dermatologist. When Dr. Marshall examined Mrs. Gilliam the following day, October 10, 1997, he diagnosed her with herpes zoster, also known as shingles. Dr. Marshall explained that the disease is caused by the varicella virus, which is the same virus that causes chicken pox. After a person has chicken pox, the virus remains dormant in the nerve root. When activated, the virus travels from the nerve root along the nerves. It appears in patches of blisters on the skin along the distribution of the nerves. Dr. Marshall further explained that the manifestation of the blisters is preceded by tingling or pain in the area where the blisters are about to appear. According to Dr. Marshall, the blisters are typically seen in the chest or abdominal area, but Mrs. Gilliam's blisters were on her neck. Mrs. Gilliam also had a bacterial skin infection that was secondary to shingles. Mrs. Gilliam was treated by Dr. Marshall over the next several months. In November, Dr. Marshall prescribed medication for neuralgia, which is the pain resulting from shingles. By the last visit on January 26, 1998, Dr. Marshall noted that Mrs. Gilliam had sustained discoloration of the skin and had some scarring secondary to the infection. Mrs. Gilliam also was treated by Dr. Steven Atkins, a neurologist, for the post-herpetic neuralgia. *1288 A medical review panel was convened and an opinion was rendered on November 18, 1999. Two of the panelists, Doctors Samuels and Alper, found that Dr. Palazzo breached the standard of care, but that there were no damages. One panel member, Dr. McCord, found the evidence did not show Dr. Palazzo failed to comply with the appropriate standard of care. On January 10, 2000, the Gilliams filed a petition for damages against Dr. Palazzo alleging that she negligently failed to diagnose Mrs. Gilliam's skin condition as shingles instead of poison ivy. The petition alleged that Dr. Palazzo's negligence caused Mrs. Gilliam's pain and permanent injuries, and both plaintiffs sought damages for loss of consortium and other damages. The matter proceeded to a bench trial on August 13, 2003. After holding the matter open for the taking of depositions of experts, the trial judge rendered judgment, in extensive and well-written reasons, in favor of Dr. Palazzo on November 6, 2003, dismissing plaintiffs' suit. The trial judge concluded that Dr. Palazzo did not breach the standard of care for an internist and that the misdiagnosis did not cause any damages. He also properly concluded that the window of opportunity had closed for administering antiviral medication and that plaintiffs' argument in this respect was "mere conjecture." We agree. The plaintiffs assign two errors for our review: 1. The trial court erred in finding that there was no malpractice. 2. The trial court erred in finding that the plaintiffs sustained no damages. In Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La.1991), the Louisiana Supreme Court outlined the burden of proof and appellate standard of review as follows: In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor's treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 723 (La.1986). Resolution of each of these inquires are determinations of fact which should not be reversed on appeal absent manifest error. Housley v. Cerise, 579 So.2d 973 (La.1991); Smith, 523 So.2d at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989); Hastings, 498 So.2d at 720. The law does not require perfection in medical diagnosis and treatment. On the contrary, a doctor's professional judgment and conduct must be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events. Fraser v. Ochsner Foundation Hosp., 94-380, p. 7 (La.App. 5 Cir. 12/28/94), 648 So.2d 1081, 1084, writ denied, 95-101 (La.3/17/95), 651 So.2d 270. In the present case, the expert testimony conflicted as to whether Dr. Palazzo breached the standard of care by failing to diagnose Mrs. Gilliam with shingles. At trial, Dr. Palazzo was accepted as an expert in internal medicine. Dr. Palazzo explained that she diagnosed Mrs. Gilliam with poison ivy instead of shingles based on several factors. First, Mrs. Gilliam presented with a history of working in the yard. Second, she had a rash and pain at the same time, while the pain precedes the rash by days or even weeks in a patient with shingles. Further, Dr. Palazzo explained *1289 that patients with shingles are usually so incapacitated by the pain that they come into the office right away, while Mrs. Gilliam's pain was intermittent. Also, Dr. Palazzo saw only a few scattered blisters in different areas of Mrs. Gilliam's body, which was not the typical presentation of shingles. Dr. Marshall testified that, when he saw Mrs. Gilliam on October 9, 1997, eight days after she first saw Dr. Palazzo, the disease was in a "classic" presentation in that the blisters were unilateral on the right side and followed the dermatome distribution. Dr. Marshall acknowledged that shingles is usually seen on the chest or abdominal area, while the disease was on Mrs. Gilliam's neck. While Dr. Marshall testified he had no difficulty in making the diagnosis, he did not believe Dr. Palazzo had breached the standard of care based on "what she saw and what she thought she was treating." The deposition testimony of the medical review panelists and of Dr. Marshall was submitted to the trial court after the trial. Both Doctors Samuels and Alper testified that Dr. Palazzo should have diagnosed Mrs. Gilliam's condition to be shingles. However, Dr. Alper did not believe that the misdiagnosis had done any "harm" to Mrs. Gilliam. Dr. Alper explained that antiviral medication to treat shingles should be given within 72 hours. Dr. Samuels believed that the best time to give the antiviral medication is before the rash appears or when the patient has one or two blisters. Both doctors agreed that the effectiveness of the medication is speculative when administered beyond the 72-hour window. Dr. Samuels opined the medication would have had "little effect" on Mrs. Gilliam's condition, because of the amount of time that had passed when Mrs. Gilliam saw Dr. Palazzo. The third panelist, Dr. McCord, testified that the evidence did not support a finding that Dr. Palazzo breached the standard of care. According to Dr. McCord, it is not uncommon to miss the diagnosis of shingles because the disease manifests itself in a variety of ways. Dr. McCord agreed that a diagnosis of poison ivy was reasonable in a patient who presented with Mrs. Gilliam's history and whose blisters were on both sides. Moreover, Dr. McCord believed that the outcome of Mrs. Gilliam's condition would have been the same even if the antiviral medication had been administered. Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. Theriot v. Lasseigne, 93-2661, p. 9 (La.7/5/94), 640 So.2d 1305, 1313. Further, where the trial court's findings are reasonable in light of the record, the court of appeal may not reverse. From our consideration of this record, we conclude that the trial judge properly dismissed plaintiffs' suit. Accordingly, we affirm the trial court's judgment. Costs for this appeal are to be paid by plaintiffs-appellants. AFFIRMED.

818 So.2d 383 (2002) George Earl SMITH, Appellant v. STATE of Mississippi, Appellee. No. 2001-KA-00422-COA. Court of Appeals of Mississippi. June 4, 2002. *384 Armstrong Walters, Columbus, for appellant. Office of the Attorney General by Scott Stuart, for appellee. Before McMILLIN, C.J., LEE, and BRANTLEY, JJ. *385 McMILLIN, C.J., for the Court: ¶ 1. George Earl Smith was convicted by a Lowndes County Circuit Court jury of aggravated assault and attempted sexual battery involving an incident with a thirteen-year-old female. He has appealed claiming that the evidence was insufficient as a matter of law to sustain his conviction or, alternatively, that the guilty verdict was against the weight of the evidence. Smith raises a third issue in which he claims that, under the State's theory of the case, the aggravated assault was a necessary element of the attempted sexual battery so that the two offenses merged, thereby making it improper for him to be convicted of two separate crimes. Finding none of these issues to have merit, we affirm the convictions and resulting judgment of sentence. I. Facts ¶ 2. The competing versions of the incident itself were provided by the victim and by Smith, the defendant. The female victim testified that she was walking home along a railroad track when she was chased down by Smith. According to her, Smith wrestled her to the ground and began to forcibly remove her clothing. The victim put up a fierce resistance that included scratching her assailant in the face. In an effort to overcome the resistance, Smith struck his victim in the head with a stick, inflicting substantial pain. Smith then demanded that she remove her clothing and she began to comply, being fearful that he would inflict further physical injury. However, she was ultimately able to escape by striking Smith in the head with a rock and fleeing the scene. A police officer investigating the case confirmed at trial that, when he first saw Smith, his face did show evidence of scratch marks. ¶ 3. Smith testified in his own defense and said that the victim had approached him and offered to have sexual relations with him for a sum of money which he gave her, but she then attempted to run away. He said she fell while running, striking her face, and that he caught up with her in an attempt to have his money returned. It was at that point that she wrestled free and ran away once again, scratching his face in the process. At that point, Smith said he determined that further pursuit to retrieve his money was not warranted. ¶ 4. A physician who testified to having examined the victim the morning after the incident said that the victim's complaints of tenderness about her face were consistent with being struck by an object such as a stick but admitted on cross-examination that they were also consistent with an injury received in a fall. II. The Sufficiency of the Evidence ¶ 5. If, as to one or more of the essential elements of the crime, the State's proof was either nonexistent or so lacking in probative value that a fair-minded juror could only find the defendant not guilty, the defendant is entitled, on proper motion, to have the trial court enter a judgment of not guilty notwithstanding the action of the jury in finding him guilty. Steele v. State, 544 So.2d 802, 808 (Miss. 1989). In assessing the merits of the motion, the court must view all of the evidence in the light most favorable to upholding the jury's verdict and must assume that, as to critical issues on which the evidence conflicted, the jury sitting as triers of fact resolved those issues in favor of the State. Sheffield v. State, 749 So.2d 123, 125 (Miss.1999). When the trial court refuses to grant a JNOV motion and that *386 is raised as error on appeal, this Court must undertake an independent review of the same evidence to determine whether we are convinced that the trial court erred in denying the motion. McClain v. State, 625 So.2d 774, 778 (Miss.1993). ¶ 6. In this case, the witnesses gave conflicting versions of events. The State's version, offered primarily through the testimony of the victim, was not shown to be implausible, nor was it contradicted by any evidence other than the defendant's uncorroborated testimony. The victim's credibility was not impeached by any of the traditionally-recognized methods for calling into question a witness's willingness or ability to accurately relate events critical to the case. In that situation, when the jury carries out its obligation as fact-finder to resolve disputed facts and does so by accepting as more credible the version advanced by the prosecution, this Court has no basis to intercede. This issue is without merit. III. New Trial ¶ 7. Even when the evidence is sufficient to convict, a defendant may nevertheless be entitled to a new trial when the trial court determines that the guilty verdict returned by the jury was against the weight of the more credible evidence presented at trial. Fleming v. State, 732 So.2d 172, 183 (¶ 37-38) (Miss.1999). This alternative to a total exoneration of the defendant based on a successful challenge to the legal sufficiency of the evidence exists to prevent a substantial miscarriage of justice. Wetz v. State, 503 So.2d 803, 812 (Miss.1987). The trial court has a measure of discretion in determining whether a new trial on this ground is in order and appellate review of a decision to deny a new trial motion is limited to a search for an abuse of that discretion. Id. ¶ 8. Our review of all the evidence in the record leaves us unpersuaded that the State's case was so weak or the defendant's proof was so persuasive that the jury's decision to convict has worked a manifest injustice. For that reason, we decline to overturn the trial court's decision to deny Smith's new trial motion. IV. Merger of the Two Crimes ¶ 9. Two independent crimes merge into one when the greater crime necessarily includes all the elements of the lesser crime as a lesser included offense. Newburn v. State, 205 So.2d 260, 264 (Miss. 1967). The Mississippi Supreme Court has illustrated this principle by pointing out that, if a person violently strikes another with a deadly weapon, causing the victim's death, the culprit cannot be charged separately with homicide and with assault. Faraga v. State, 514 So.2d 295, 311 (Miss.1987). ¶ 10. In this case, the State proved that, in an effort to force or coerce the victim into submitting to his sexual advances, Smith struck the victim in the head with a stick. An assault of this nature, though perhaps helpful in pursuing the defendant's ultimate aim of engaging in unwanted sexual contact with his victim, is not necessarily an element of the sexual crime. Especially on the facts of this case, where the victim was chased and wrestled to the ground in an attempt to engage in sexual relations, the crime of attempted sexual battery was, in fact, completed before the act of striking her even occurred. "A criminal defendant may be prosecuted for more than one statutory offense arising out of a basic set of facts." Harden v. State, 460 So.2d 1194, 1199 (Miss.1984). *387 In Davis v. State, this Court held that an act of assault did not merge into the crime of robbery though the assault was clearly in furtherance of the purpose of accomplishing the robbery. Davis v. State, 750 So.2d 552, 563 (¶ 43) (Miss.Ct.App.1999). We find the same principles announced in Davis to control our decision in this case. These two crimes did not merge and this issue is without merit. ¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS AND CONVICTION OF ATTEMPTED SEXUAL BATTERY AND SENTENCE OF TEN YEARS, SAID SENTENCES TO RUN CONSECUTIVELY AND TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO LOWNDES COUNTY. KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

UNPUBLISHED ORDER Not to be cited per Circuit Rule 53 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 17, 2006* Decided February 21, 2006 Before Hon. WILLIAM J. BAUER, Circuit Judge Hon. FRANK H. EASTERBROOK, Circuit Judge Hon. TERENCE T. EVANS, Circuit Judge No. 05-3118 CLARENCE M. EASTERLING, Appeal from the United States Plaintiff-Appellant, District Court for the Eastern District of Wisconsin v. No. 04-C-615 NICOLE KOPP and ALBERT GONZALES, William C. Griesbach, Defendants-Appellees. Judge. ORDER Clarence Easterling sued under 42 U.S.C. § 1983 claiming that Nicole Kopp and Albert Gonzales, police officers in Kenosha, Wisconsin, violated his Fourth Amendment rights by searching his apartment without a warrant. Kopp and Gonzales suspected Easterling of stealing frozen pizzas from a convenience store and had tracked him to his apartment a short time after the April 2001 theft. The officers admit that they entered the apartment that Easterling and several other After an examination of the briefs and the record, we have concluded that * oral argument is unnecessary. Thus the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2). 05-3118 Page 2 men shared, and that they searched the living room and kitchen and confiscated several frozen pizzas from the freezer (theft charges were brought but later dropped when Easterling pleaded guilty to other, unrelated crimes). In moving for summary judgment, however, the officers submitted an affidavit from Kopp stating that one of Easterling's roommates, David Scheuer, gave permission to enter and look around the apartment. The officers also submitted an affidavit by Scheuer stating that he let the police into the apartment and gave permission to look around. The district court granted summary judgment in favor of Kopp and Gonzales. On appeal Easterling argues that the district court erroneously failed to enlist counsel to assist him, and that this error resulted in his suit being dismissed at summary judgment. Easterling explains that his presentation was hampered by the purported complexity of the consent issue and his lack of experience in civil litigation. He also says that, because a "no-contact" order prevented him from communicating with Scheuer, he needed counsel to interview Scheuer and ascertain whether Scheuer in fact had given the officers permission to enter and search the apartment. The officers reply that the latter contention—whether offered as a reason why counsel was necessary or as an independent argument—is forfeited because Easterling failed to raise it in the district court. We agree. Contentions made for the first time on appeal are forfeited. Harper v. Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005); Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir. 2004). Although Easterling included in his complaint a one-sentence request for appointment of counsel, he never mentioned the no-contact order (which as far as we can tell, was imposed as a condition of post-imprisonment supervision that he has not yet commenced) or informed the district court that he was unable to contact Scheuer directly. In fact, he did not give the court any explanation at all for requesting counsel. Nor did he alert the court by way of Fed. R. Civ. P. 56(f) that he would be unable to oppose the officers' motion for summary judgment unless he was given an opportunity to interview Scheuer. See Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005); Serpico v. Laborers' Int'l Union of N. Am., 97 F.3d 995, 998 (7th Cir. 1996). In any case, the district court did not abuse its discretion in deciding not to seek counsel for Easterling. Litigants requesting that counsel be recruited must show as a threshold matter that they made a reasonable attempt to secure private counsel. Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995); Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992); see also 28 U.S.C. § 1915(e)(1). Easterling did not even suggest to the district court that he attempted to secure private counsel, nor did he explain why he failed to do so. Moreover the difficulty and complexity of a case is an important factor in determining whether counsel is necessary. See Gil, 381 F.3d at 656. The 05-3118 Page 3 district court considered this factor and correctly concluded that Easterling's case was not complex; either Scheur gave the officers permission to enter and search the apartment or he did not. Easterling also argues that the district court erred in awarding costs to the City of Kenosha, which was never a party to the litigation. We cannot review this argument because Easterling did not appeal the order of costs. A notice of appeal from a judgment on the merits is not effective with respect to a later-issued award of costs. See Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 468–69 (7th Cir. 1999); United States v. Dennis, 902 F.2d 591, 592–93 (7th Cir. 1990); Wieglos v. Commonwealth Edison Co., 892 F.2d 509, 511 (7th Cir. 1989). In this case costs were awarded after Easterling filed his notice of appeal from the final judgment on the merits. He never filed a second notice of appeal or amended the original to include the order of costs. As a result, the propriety of awarding costs to Kenosha is beyond the scope of this appeal. AFFIRMED. 

870 F.Supp. 21 (1994) CHEMICAL TRADING, INC. v. MANUFACTURE de PRODUITS CHIMIQUES de TOURNAN, et al. No. 3:93CV144(PCD). United States District Court, D. Connecticut. November 9, 1994. *22 Eric D. Grayson, Greenwich, CT, for plaintiff. Richard P. Weber, Weber, Neville & Shaver, Stamford, CT, for defendants. RULING ON MOTION TO DISMISS DORSEY, Chief Judge. Plaintiff seeks a declaratory judgment that it is not liable for an allegedly defective delivery to defendant Manufacture de Produits Chimiques de Tournan ("MPCT"). MPCT moves to dismiss pursuant to Fed. R.Civ.P. 12(b)(2), 12(b)(5), 12(b)(6) or under the doctrine of forum non conveniens. I. BACKGROUND Plaintiff is a Connecticut corporation with its principal place of business in Stamford, Connecticut. MPCT is a French corporation with its sole place of business in Paris, France. (Dkt. # 21). MPCT is not licensed to do business in Connecticut. It neither maintains an office nor has employees or agents within the state. (Dkt. # 21). At a trade show in Texas, MPCT orally agreed to purchase one hundred and fifty metric tons of maleic anhydride from plaintiff, shipped "CFR Antwerp." (Dkt. # 1, ¶ 7). On April 6, 1992, plaintiff confirmed the order, via telex to MPCT in Paris, France from its Stamford, Connecticut office. (Dkt. # 1, Exh. A). On May 12, 1992, plaintiff contracted with a supplier for the purchase of the maleic anhydride shipped "CFR Antwerp" from Bombay, India. The maleic anhydride was shipped from Bombay to Antwerp on May 19, 1992. (Dkt. # 1, Exh. E). In Antwerp, MPCT discovered that it was nonconforming, rejected it and notified plaintiff. (Dkt. # 21, ¶ 8). II. DISCUSSION A. Rule 12(b)(2) MPCT moves to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). The law of the forum state governs the exercise of in personam jurisdiction in a diversity suit. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). Personal jurisdiction in diversity requires a two step inquiry. First, it must be determined whether defendant's conduct satisfies the requirements of the long-arm statute of *23 the forum state. Second, if it does, it must be determined whether the exercise of jurisdiction comports with the due process clause of the fourteenth amendment. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Greene v. Sha-Na-Na, 637 F.Supp. 591, 595 (D.Conn. 1986). Plaintiff must establish personal jurisdiction by a preponderance of the evidence. Hoffritz, 763 F.2d at 57. Until an evidentiary hearing, plaintiff merely must make a prima facie showing of jurisdiction. Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F.Supp. 753, 756 (D.Conn.1987). All ambiguities in the pleadings and affidavits are construed in favor of the plaintiff. Hoffritz, 763 F.2d at 57. B. Connecticut Long-Arm Statute 1. § 33-411(b) Conn.Gen.Stat. § 33-411(b) provides that "[e]very foreign corporation which transacts business in this state in violation of section 33-395 or 33-396[1] shall be subject to suit in this state upon any cause of action arising out of such business." The term "transacting business" is not broadly interpreted in Connecticut. Hagar v. Zaidman, 797 F.Supp. 132, 135-36 (D.Conn.1992); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 554 (D.Conn.1968). Defendant maintains no offices and has no employees in Connecticut. It has no bank accounts here nor does it advertise its products within the state. Defendant did nothing to transact business in Connecticut within the purview of section 33-411(b).[2] 2. § 33-411(c) Conn.Gen.Stat. § 33-411(c) states: [e]very foreign corporation shall be subject to suit in this state ... whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state.... Plaintiff contends the contract was made in this state when it sent the confirmation to MPCT in France. (Dkt. # 26). In Connecticut, "a contract is considered made when and where the last thing is done which is necessary to create an effective agreement." Electric Regulator Corp., 280 F.Supp. at 555. Plaintiff's confirmation, telexed after the parties agreed in Texas, states "we are pleased to confirm having sold to you as you have bought from us." (Dkt. # 1, Exh. A). This language plainly affirms the existence of a previously effective agreement between the parties. The confirmation did not effectuate an agreement, but rather verified one's existence. Plaintiff, relying on Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 731 (D.Conn.1979), further argues that the contract was "performed" in the state because it located the product, entered into supply contracts, arranged loading and delivery and monitored payment from its Stamford office. (Dkt. # 27, ¶ 4). Plaintiff neglects, however, to distinguish this contract from the one in Bowman which "clearly contemplated and required performance in this state by plaintiff...." Id. at 732.[3] To establish *24 in personam jurisdiction under section 33-411(c)(1), plaintiff must establish prima facie that a contract existed and that it was meant to be performed in the state within the meaning of the statute. Bowman, 474 F.Supp. at 729. Although section 33411(c)(1) does not expressly require that the party over whom jurisdiction is sought perform in the state, in this case, performance was neither articulated, contemplated, required, nor possible in Connecticut. Coan v. Bell Atlantic Sys. Leasing Int'l, Inc., 813 F.Supp. 929, 943 (D.Conn.1990); Clemco Corp., Inc. v. Frantz Mfg. Co., 609 F.Supp. 56, 57 (D.Conn.1985). The contract provided for the maleic anhydride, supplied in India, to be shipped directly to Belgium. Plaintiff has not made a prima facie showing that the contract was either "made" or "performed" in Connecticut. Finally, plaintiff argues that § 33-411(c)(2) applies because defendant repeatedly solicited business by mail or otherwise in Connecticut. A defendant is subject to suit under this section if the repeated solicitation has "led to orders or offers which form the basis for the cause of action." Hagar v. Zaidman, 797 F.Supp. 132, 136 (D.Conn. 1992) (emphasis added). Plaintiff must allege that the business which gave rise to this lawsuit was solicited in this state. Bross Utilities Serv. Corp. v. Aboubshait, 489 F.Supp. 1366, 1373 (D.Conn.1980). Plaintiff does not dispute defendant's affidavit statement that the "contract which is the subject of the litigation was agreed to in San Antonio, Texas...." (Altman Affidavit, (Dkt. # 30), at ¶ 4). Without evidence that the order which gave rise to this lawsuit was solicited in Connecticut, personal jurisdiction over MPCT cannot be exercised under § 33-411(c)(2). C. Constitutional Limitations Because § 33-411 is not available to plaintiff to warrant personal jurisdiction over MPCT, there is no occasion to consider whether such jurisdiction would meet the "minimum contacts" test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Likewise, it is unnecessary to determine whether MPCT was properly served. III. CONCLUSION Plaintiff has failed to make a prima facie showing that sustains personal jurisdiction. Therefore, defendant's motion to dismiss (Dkt. # 21) is granted. SO ORDERED. NOTES [1] Section 33-396 provides in relevant part that "(a) No foreign corporation except an insurance or surety or indemnity company shall transact business in this state until it has procured a certificate of authority so to do from the secretary of the state...." Section 33-395 is not applicable to the defendant in this case. [2] This Court has declined to assert personal jurisdiction under § 33-411(b) in two factually similar cases. See Atlantic Maritime Enterprises Corp. v. Hong Kong Borneo Services Co., 1990 WL 484929 (D.Conn. Feb. 2, 1990); Bross Utilities Serv. Corp. v. Aboubshait, 489 F.Supp. 1366 (D.Conn.1980). [3] In Bowman, the parties agreed that plaintiff would market defendant's beer in Connecticut. The court found that plaintiff clearly "was to perform the alleged agreement in Connecticut, as the agreement contemplated that Connecticut would be the initial test market" for defendant's beer. Bowman, 474 F.Supp. at 730-31. The Court did not determine whether § 33-411(c)(1) would apply if the contract terms did not require performance in Connecticut. Id. at 732, n. 7.

668 F.3d 576 (2012) UNITED STATES of America, Plaintiff-Appellee, v. Harlan M. DAVIS, Defendant-Appellant. No. 10-3637. United States Court of Appeals, Eighth Circuit. Submitted: October 17, 2011. Filed: February 10, 2012. Robert G. Kuchar, Asst. Fed. Public Defender, Kansas City, MO (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant. Bruce E. Clark, Asst. U.S. Atty., Kansas City, MO (Beth Phillips, U.S. Atty., on the brief), for appellee. Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges. LOKEN, Circuit Judge. Approached by Kansas City police officers investigating a disturbance, Harlan M. Davis threw an extended-length magazine to the ground, fled to a nearby residence, threw a handgun to the ground, and escaped out a back door. The pursuing officers arrested Davis and recovered the magazine and firearm. When thrown down, the magazine was loaded with twenty-one rounds of 9-millimeter ammunition. The 9-millimeter pistol was inoperable because it had no trigger. Davis was indicted and pleaded guilty to being a felon in unlawful possession of a semi-automatic firearm in violation of 18 U.S.C. § 922(g)(1). Davis's Presentence Investigation Report (PSR) recommended a base offense level of 22 because the offense involved a "semiautomatic firearm that is capable of accepting a large capacity magazine." U.S.S.G. § 2K2.1(a)(3)(A)(i). Davis objected on the ground that the inoperable firearm "was incapable of firing a single round let alone a magazine containing a large capacity of ammunition." At the sentencing hearing, Detective Christopher Gilio testified that the handgun was designed to expel bullets but was inoperable at the *577 time of the offense, the gun was in "fairly good condition" and "could be fixed to fire," the magazine's capacity was thirty rounds of 9-millimeter ammunition, and "this weapon will accept that magazine." Acknowledging the issue was one of first impression, the district court[1] overruled Davis's objection and applied § 2K2.1(a)(3). The court imposed a 57-month sentence, the bottom of the advisory guidelines range. Davis appeals the § 2K2.1(a)(3) ruling. Based on the district court's comments at sentencing, we cannot conclude that a misapplication of § 2K2.1(a)(3) would be harmless error, so we must address the issue. "We employ basic rules of statutory construction when interpreting the Guidelines." United States v. Hackman, 630 F.3d 1078, 1083 (8th Cir. 2011). Reviewing the court's interpretation of this guidelines provision de novo and its underlying factual findings for clear error, we affirm. United States v. Dace, 660 F.3d 1011, 1013 (8th Cir.2011) (standard of review). Section 2K2.1 is a lengthy guideline establishing base offense levels and specific offense enhancements for a wide variety of firearm offenses. Application Note 1 to § 2K2.1 provides, "`Firearm' has the meaning given that term in 18 U.S.C. § 921(a)(3)." That statute defines the term firearm used in the many sections of Chapter 44 of Title 18: (3) The term `firearm' means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. Numerous cases have addressed whether the government's evidence was insufficient to prove a violation of, for example, 18 U.S.C. § 922(g), because the firearm in question was inoperable. Like our sister circuits, we have consistently held that proof the firearm was operable is not required because the plain language of § 921(a)(3) requires only "that the `weapon. . . is designed to . . . expel a projectile by the action of an explosive.'" United States v. York, 830 F.2d 885, 891 (8th Cir.1987) (no firing pin), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). We have applied the same reasoning to Guidelines provisions that incorporate the § 921(a)(3) definition. See United States v. Christmann, 193 F.3d 1023, 1024 (8th Cir.1999) ("The definition turns on what the weapon is designed to do, not on whether it is capable of doing its job at the particular moment that the crime was committed," applying U.S.S.G. § 2B3.1), cert. denied, 529 U.S. 1044, 120 S.Ct. 1545, 146 L.Ed.2d 358 (2000). A different question might arise if a gun was damaged in a way that fundamentally altered its original design, "[f]or example, a gun with a barrel filled with lead, maybe for use as a theatrical prop." United States v. Rivera, 415 F.3d 284, 287 (2d Cir.2005). That would be a question of fact. Cf. United States v. Mullins, 446 F.3d 750, 755-56 (8th Cir.), cert. denied, 549 U.S. 923, 127 S.Ct. 284, 166 L.Ed.2d 217 (2006). On appeal, Davis concedes that his inoperable pistol was a "firearm"—indeed, his guilty plea commanded that concession. However, he argues, the higher base offense level in § 2K2.1(a)(3) should only apply if the "semiautomatic firearm that is *578 capable of accepting a large capacity magazine" was operable at the time of the offense. He bases this contention on Application Note 2 to § 2K2.1: For purposes of subsections (a)(1), (a)(3), and (a)(4), a `semiautomatic firearm that is capable of accepting a large capacity magazine' means a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. Davis argues that § 2K2.1(a)(3)(A)(i) does not apply because Note 2, by its plain language, requires that a firearm have "the ability to fire many rounds without reloading . . . at the time of the offense," whereas his pistol was inoperable at the time of his felon-in-possession offense. The current version of Application Note 2 was adopted as part of a recent amendment to § 2K2.1. U.S.S.G.App. C, Amend. 691 (Nov. 2006). To put Davis's textual argument in perspective, a brief review of the complex history preceding this amendment is needed. From its inception, § 2K2.1 has imposed a greater offense level if the defendant unlawfully possessed a machine gun or another of the weapons used primarily to commit violent crimes enumerated in the federal firearm registration statutes at 26 U.S.C. § 5845(a). See U.S.S.G.App. C, Amend. 189 (Nov. 1989). In the Violent Crime Control Law Enforcement Act of 1994, Congress enacted new statutes punishing firearm offenses involving "semiautomatic assault weapons" as severely as machine gun offenses. Pub.L. No. 103-322, tit. XI, 108 Stat. 1996 (1994), codified as relevant here at 18 U.S.C. § 921(a)(30)-(31) (defining "semiautomatic assault weapon" and "large capacity ammunition feeding device"), and 18 U.S.C. § 922(v)-(w) (defining when possession of those weapons was unlawful). After the passage of these statutes, the Sentencing Commission, as directed by Congress, adopted conforming amendments to § 2K2.1(a)(1), (a)(3), and (a)(4), assigning the same base offense levels to offenses involving unlawful possession of machine guns and semiautomatic assault weapons. See U.S.S.G.App. C, Amend. 522 (Nov. 1995). The new statutes expressly exempted "any firearm that . . . has been rendered permanently inoperable." 18 U.S.C. § 922(v)(3). A revised Application Note 3 to § 2K2.1 incorporated this exemption: "A `firearm described in 18 U.S.C. § 921(a)(30)' (pertaining to semiautomatic assault weapon) does not include a weapon exempted under the provisions of 18 U.S.C. § 922(v)(3)." U.S.S.G.App. C, Amend. 522 (Nov. 1995). Following the Commission's lead, we construed the revised § 2K2.1(a)(3) as applying to the possession of an inoperable semiautomatic assault weapon unless the weapon was "permanently inoperable." United States v. Piggie, 316 F.3d 789, 792-93 (8th Cir.), cert. denied, 540 U.S. 857, 124 S.Ct. 157, 157 L.Ed.2d 104 (2003). The issue in this appeal arose because the ten-year statutory ban on semiautomatic assault weapons reflected in 18 U.S.C. §§ 921(a)(30) and 922(v) expired on September 13, 2004. See United States v. Barron, 557 F.3d 866, 870 (8th Cir.2009) (concluding former § 2K2.1(a)(4) survived repeal of § 921(a)(30) because "enhanced punishment [under the Guidelines] for prohibited persons who possess [semiautomatic assault weapons] does not conflict with any statute"). The Commission concluded that it needed to amend § 2K2.1(a) and the Application Notes because Congress had repealed the cross-referenced statutes. *579 Accordingly, the Commission replaced the cross-reference to 18 U.S.C. § 921(a)(30) in § 2K2.1(a)(1), (a)(3), and (a)(4) with the term, "semiautomatic firearm that is capable of accepting a large capacity magazine," and defined that term in the above-quoted Application Note 2, omitting the prior cross-reference to the "permanently inoperable" provision in now-repealed 18 U.S.C. § 922(v)(3). In stating its reason for this amendment to Note 2, the Commission gave no hint that it intended any substantive change regarding inoperable firearms and no explanation of the language adopted: The amendment deletes the reference to 18 U.S.C. § 921(a)(30) at § 2K2.1(a)(1), (a)(3), and (a)(4) and replaces the reference with the term, `a semiautomatic firearm capable of accepting a large capacity magazine,' which is defined in Application Note 2. U.S.S.G.App. C, Amend. 691 (Nov. 2006). Putting aside Davis's textual argument for the moment, we see no basis in the history of the amended § 2K2.1(a)(3)(A)(i) for concluding that this base offense level, unlike all other firearm statutes and guideline provisions, does not apply unless the "semiautomatic firearm that is capable of accepting a large capacity magazine" was operable at the time of the offense. If the Commission had not defined this term in Application Note 2, it would clearly be construed, in light of the above-referenced statutes and judicial decisions, to mean a semiautomatic weapon designed to be capable of accepting a large capacity magazine. Turning to Davis's textual argument, like the district court we decline to read the plain language of Application Note 2 as requiring a different interpretation of § 2K2.1(a)(3)(A)(i). The term "firearm" in Application Notes 1 and 2 must be given the same meaning, that is, the definition in 18 U.S.C. § 921(a)(3) which includes the many judicial decisions that have applied the definition to less-than-permanently-inoperable weapons. See United States v. Kowal, 527 F.3d 741, 746-47 (8th Cir.), cert. denied, 555 U.S. 1038, 129 S.Ct. 612, 172 L.Ed.2d 468 (2008) ("When two statutory provisions employ the same word in close proximity, the `normal rule . . . that identical words used in different parts of the same act are intended to have the same meaning carries' even greater weight."). Moreover, the phrase, "because at the time of the offense," comes immediately before the condition that the large capacity magazine must be either (A) attached, or (B) in close proximity to, the semiautomatic firearm. This strongly suggests that the phrase was not intended to modify an earlier condition—that the firearm "has the ability to fire many rounds without reloading." Read consistently with the history of § 2K2.1, as well as its text, Application Note 2 clarifies that § 2K2.1(a)(3)(A)(i) required proof of "physical proximity between the high-capacity magazine and the firearm" that police found in Davis's unlawful possession. United States v. Curruth, 439 Fed.Appx. 560, 562 (8th Cir.2011) (unpublished). But it does not affect the applicability of § 2K2.1(a) to inoperable firearms, except perhaps in the unusual case where attaching the large capacity magazine rendered or would render the semiautomatic firearm inoperable. Here, by contrast, the government proved both that the semiautomatic firearm "could be fixed to fire," and that "this weapon will accept that magazine." The judgment of district court is affirmed. NOTES [1] The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA ROBERT LEE PARKER, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED v. CASE NO. 1D15-5551 STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed December 21, 2016. An appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge. Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Heather Ross, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. MAKAR, KELSEY, and WINSOR, JJ., CONCUR. 

169 P.3d 409 (2007) 2007-NMCERT-009 PRIMETIME v. CITY OF ALBUQUERQUE. No. 30,543 (COA 25,616). Supreme Court of New Mexico. September 25, 2007. Writ Granted.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0120n.06 No. 11-2542 FILED UNITED STATES COURT OF APPEALS Feb 11, 2014 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN CALVIN RAYMOND JONES, ) ) Defendant-Appellant. ) ) BEFORE: ROGERS, WHITE, and ALARCÓN, Circuit Judges.* ROGERS, Circuit Judge. Calvin Jones was convicted under 18 U.S.C. § 844(i) for participating in an arson with Samson Wright. The issue at trial was whether Wright coerced Jones into participating. The district court gave a jury instruction regarding duress, but the court limited Jones’s ability to introduce evidence supporting his fear of Wright. Because one of the issues for the jury was whether Jones reasonably believed there was a present, imminent, and immediate threat by Wright of death or serious bodily injury, the district court should have permitted Jones to testify regarding his knowledge of Wright’s prior assaults and reputation for violence to inform the jury about why Jones may have been in fear of Wright. Because we cannot say with fair assurance that the judgment was not substantially swayed by the error, the district court’s decision not to allow Jones to explain his alleged fear requires reversal. * The Honorable Arthur L. Alarcón, United States Senior Circuit Judge for the United States Court of Appeals for the Ninth Circuit, sitting by designation. No. 11-2542 United States v. Jones I. On Friday, August 13, 2010, a store at 13147 East Jefferson Avenue, Detroit, Michigan burned down, engulfing three neighboring businesses. Seven firefighters were injured fighting the fire. The events that led to the fire began the day before, when the owner of the store hired Samson Wright to burn down the store for insurance money. Calvin Jones lived down the block from the store and was known to work on cars in his yard. Jones’s first involvement in the arson was when he lent Frederick McKinney a chisel and a hammer that were eventually used to loosen bricks from the wall of the store to facilitate the arson. According to Jones, he did not know what the tools were being used for, but he knew that the tools would be used by Wright. Later that day, Wright borrowed a ladder from someone else and bought a five-gallon gas can. Wright left the ladder and the gas can on Jones’s porch. Around dusk, Wright and four friends made their first attempt at the arson. They carried the ladder and gas can to the store, and McKinney climbed the ladder and removed the loose bricks from the wall. Their plan was to use a funnel and a water hose to pour gasoline into the store; however the group abandoned the plan once they became concerned that a security guard from a nearby condominium complex could have seen them. They then carried the ladder and the gas can back to Jones’s house. The central dispute at the trial was what occurred next. According to Wright, Jones volunteered to help with the arson. Wright testified that after he returned to Jones’s house with the group, Jones came out of his house and asked what happened. After learning what happened, Jones said that Wright should have sought his help with the arson in the first place. According to Wright, -2- No. 11-2542 United States v. Jones he had not asked Jones to be involved, but Jones had overheard Wright talking about the arson with the other four participants. Wright testified that he agreed to work with Jones on the arson and that Jones suggested that they use plastic water bottles to put the gasoline behind the store’s brick wall, rather than following Wright’s earlier plan of using a funnel and a water hose. Wright testified that he never threatened Jones or forced Jones to do anything related to the arson. Jones gave a different account of the events. According to Jones, after the failed attempt to light the fire, Wright came back to Jones’s house where Jones was sleeping on the couch with his girlfriend. Wright knocked on the door and Jones answered it, stepping out of the house to talk to Wright. According to Jones, Wright offered to forgive a $200 debt that Jones owed to Wright if Jones would assist him with the arson. Jones rejected this offer. Wright then laid out three options: Jones had to immediately pay Wright back the $200 that he owed him, assist Wright with the arson, or be shot. According to Jones, Wright then pulled a pistol out of his pocket. Jones testified that he said, “I ain’t worried about you shooting me because [my girlfriend is] in the house and she know I’m outside with you, so I ain’t worried about you shooting me.” Trial Tr. vol. 5, July 6, 2011, 485–89. According to Jones, Wright then threatened to burn down Jones’s house with Jones’s girlfriend and brother inside and then burn down Jones’s girlfriend’s house. Jones appears not to have taken this threat seriously because Jones replied, “go with that, ‘cause I’m not fixin’ to do nothing.” Id. at 489. Jones then watched from his porch as Wright crossed the street and went into an area with overgrown plants. Wright returned with a gas can and began pouring gasoline around the base of the house and on the back porch, threatening “you don’t believe me[?]” and flicking a -3- No. 11-2542 United States v. Jones lighter. Jones testified that at that point he said “hold on” and agreed to help Wright, who had the idea to use the water bottles filled with gasoline. Id. at 492–93. Wright and Jones filled the water bottles with gasoline and carried the bottles and the ladder back to the store. Jones held the ladder while Wright threw the bottles through the hole that McKinney had created earlier. Wright then started the fire, and they walked back to Jones’s house as fire was shooting from the hole. After returning to his house, Wright asked Jones to drive him to the gas station. Jones drove Wright to the gas station where they purchased food. On the way back to Jones’s house, as they were driving by the fire, Jones says that Wright told him that he would give him $200 in the morning and another $5000 once the insurance proceeds arrived. Jones claims he told Wright that he did not want any money. The fire destroyed three other businesses, and seven firefighters were injured while fighting the fire. Based on a tip, officers arrested Wright on August 17, 2010 and charged him with arson. Although he initially denied participating in the arson, he admitted to it on August 20, 2010 and implicated Jones. Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) interviewed Jones on August 18 and 19. Jones denied any involvement. Officers arrested Jones on October 8, 2010. At that point, Jones admitted going with Wright to the store, but denied participating in the arson and did not mention that Wright forced him to participate in the arson. On November 30, 2010, during Jones’s fourth interview with the ATF agents, Jones first told the agents about Wright’s alleged threats. -4- No. 11-2542 United States v. Jones Jones says he did not tell the agents earlier because he still feared that Wright would kill Jones or his girlfriend, or burn down his girlfriend’s house. Even after Wright was arrested, Jones said he stayed silent because he thought that Wright may have told the owner of the store or someone else to hurt Jones or his family if Jones went to the police. However, once Jones’s girlfriend decided to move, Jones decided to write a letter to his attorney telling about his participation in the arson and asking for his attorney to contact the ATF and the U.S. Attorney’s office. Jones’s trial strategy was to focus on an affirmative defense of duress. Jones sought to introduce pieces of evidence explaining why Jones would fear Wright. The present appeal centers around evidentiary decisions by the district court. Before the trial, the Government filed a motion in limine to preclude Jones from making a duress defense. The Government argued that Jones had not established a prima facie case of duress, so the district court should bar the defense or at least hold an evidentiary hearing to determine whether the prima facie case was met. The district court ruled that Jones could “attempt[] to make a showing at trial that there was duress at the specific time and place the alleged crime was committed.” Order Granting in Part the Gov’t’s Mot. in Limine to Preclude Duress Defense, 2. The district court also issued an evidentiary ruling, however: To the extent Defendant intends to call witnesses to testify about Wright’s bad acts that are removed from the time and place of the fire on August 13, 2010, particularly where such witnesses do not have personal knowledge of Jones being threatened, . . . Defendant’s proposed duress evidence is not admissible pursuant to Fed. R. Evid. 404(b). -5- No. 11-2542 United States v. Jones Id. Jones filed a motion for reconsideration, describing evidence he sought to introduce. Jones wanted to establish prior assaults by Wright, Wright’s reputation for violence, and Wright’s tendency to carry a gun to inform the jury about why Jones has a well-founded fear of Wright the night of the arson. Jones proffered that he would testify that in 2010, Wright pulled a gun on him and demanded payment of a $30 debt, which Jones then paid, and that on another occasion Wright put Jones in a headlock and touched a bullet that is lodged in Jones’s neck against his spine and then laughed about it after releasing Jones. Jones would also testify that he knew the following: “Wright shot Clifford Ellis in the rear end, and on another occasion Samson Wright hit Clifford Ellis over the head with a baseball bat to collect a claimed debt”; “Wright made a man strip naked, put a dog leash around his neck, made him bark, and paraded him down to E. Jefferson”; “Wright regularly carried a gun and a switchblade”; “Wright hit Meredith Hubbard . . . in the face with a hammer” and on another occasion “threatened to shoot Meredith Hubbard’s dog and burn down Hubbard’s house on Coplin, and Samson Wright came back with a gun”; and “Wright burned down his own house on 4610 Ashland, Detroit.” Br. in Supp. of Mot. for Recons. or Hr’g as to the June 14, 2011 Order, 9. Jones sought to introduce this evidence via his own testimony, cross-examination of Wright, and the testimony of seven witnesses who said they had witnessed one or more of these events and would corroborate Jones’s testimony. These witnesses would also testify to Wright’s reputation for violence and other specific violent acts that Wright carried out. -6- No. 11-2542 United States v. Jones At trial, the district court reaffirmed its previous ruling, saying “no testimony will be allowed that is not directly related to the crime.” Trial Tr. vol. 5, July 6, 2011, 376. The district court looked at the elements of duress from United States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005),1 and focused upon the requirement that the threat of death or serious injury be “present, imminent, and impending.” Trial Tr. vol. 5, July 6, 2011, 377. The district court said: “The intent of the law is that you don’t get exculpation for committing a crime based upon something you know about a person standing next to you . . . that frightens you about him. . . . [T]hat doesn’t get you out of it. You’ve got to find a way out if you can.” Id. Jones’s counsel sought to clarify how some of the specific threats that Jones had knowledge of would be relevant, but the court rejected these arguments saying, “I can’t think of what it’s relevant to. You’d, I’m sure, would like to make it relevant to his state of mind when he acquiesced, allegedly, and got involved in criminal activity, 1 As repeated in United States v. Johnson, the five elements of duress are: (1) that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that the defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; (3) that the defendant had no reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm; (4) that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm; (5) that defendant did not maintain the illegal conduct any longer than absolutely necessary. 416 F.3d at 468 (emphasis removed) (quoting United States v. Riffe, 28 F.3d 565, 569 (6th Cir. 1994)). -7- No. 11-2542 United States v. Jones but . . . I don’t think it meets [the duress] test.” Id. at 379. After testimony that Wright and Jones got along, Jones’s counsel renewed his argument: [JONES’S COUNSEL]: [I]n light of what the Government has brought out, that I’m requesting that my client be permitted to testify as to acts of violence, pulling a gun on my client on one earlier occasion, to acts of violence by Samson Wright, and grabbing him and pushing on a bullet that was in his neck. THE COURT: I don’t understand—conceivably, it could be connected somehow, if Mr. Jones testified, it could be connected somehow to something else that would increase my understanding, but I don’t understand how that goes to duress. I don’t know what else you think it goes to. But duress, as it’s defined in the law, and as it’s described in the instructions from the Sixth Circuit, simply isn’t met. The standard on duress is not met by something that happened three months ago or two years ago. And I suppose you can make a good argument that in some cases maybe it should, but you can make a good argument that it shouldn’t too, that if you’re going to talk about duress exculpating somebody, you better have almost up to the standard of self-defense, that you thought you were going to get hit right then and you couldn’t get out and you couldn’t get to the phone and you couldn’t do anything else. I understand that’s pretty much what the standard is, and so I don’t think, if you’re talking about duress, I don’t think it makes any difference. I know it makes a difference in terms of the relationship between parties, if you believe that stuff, but I don’t think it makes any difference in terms of what you’d like to argue about duress, and I’ve ruled on that. Id. at 451–52. The district court also rejected the admissibility of a witness’s testimony that Wright regularly carried a gun and had reputation for violence and another witness’s testimony that Wright had a reputation for violence. Presumably based on these rulings, Jones did not seek to cross- examine Wright regarding the prior assaults. -8- No. 11-2542 United States v. Jones The district court never explicitly explained how Jones satisfied the prima facie case for duress. The district court gave the Sixth Circuit’s pattern jury instruction regarding duress, suggesting that the district court at least assumed that Jones had provided sufficient evidence for his defense to reach the jury. The jury convicted Jones of arson. Jones appeals from his conviction. II. To the degree that Jones knew about Wright’s prior assaults and reputation for violence, testimony regarding this knowledge should have been admissible for the purpose of proving Jones’s fear of Wright. The district court’s determination that this evidence was irrelevant was legal error. This error affected Jones’s substantial rights because it deprived him of the ability to inform the jury about why he reasonably believed there was an immediate threat of death or serious bodily injury, an element of his defense of duress. As to the evidence regarding Wright’s tendency to carry guns and the testimony of Jones’s corroborating witnesses, the district court properly limited this evidence. The district court gave a jury instruction relating to duress. Although the district court did not explicitly analyze the way in which Jones satisfied the prima facie case for duress, the district court appears to have at least assumed that Jones had done so. This court assumes for purposes of this opinion that Jones put forth a prima facie case of duress.2 2 The Government argues on appeal that there was not in the first place a sufficient basis for the district court to permit evidence of duress and instruct the jury on duress. We do not address the force of this argument, however, because an error of a different sort would be presented by affirming on that ground. It would be unfair to permit a defendant to put on a defense that “I did it, but under duress,” and then to hobble such a defense and deny a duress instruction. If Jones knew that duress -9- No. 11-2542 United States v. Jones The district court’s rulings appear to conclude that the evidence of Wright’s prior assaults, reputation, and routine activity of carrying a gun was of no consequence in determining the defense of duress and was therefore irrelevant under Federal Rule of Evidence 401(b). The district court’s view of relevance was legally erroneous. In United States v. Callahan, 551 F.2d 733, 736–37 (6th Cir. 1977), we held that allegations of prior acts in which a business would pay off unions as a matter of sound business judgment were relevant to the issue of whether a business leader was motivated by fear in paying off a union leader. Although the alleged prior acts were not directly related to the union leader’s charged extortion, prior payments were relevant to the state of mind of the business supervisor. Although the factual context in this case is different, an analogous relevancy analysis applies. It is well-recognized that a defendant’s knowledge of prior violent acts by an alleged aggressor-turned-victim is relevant to a defendant’s alleged fear in a self-defense case. See, e.g., United States v. Burks, 470 F.2d 432, 434–35 (D.C. Cir. 1972). Similarly, a defendant’s knowledge of prior violent acts, violent reputation, and routine carrying of a deadly weapon by an alleged coercer is relevant to a defendant’s alleged apprehension in a duress case. If a defendant puts forth a prima facie case of duress, evidence related to the defendant’s knowledge of prior violent acts is was not on the table, he might have used a different litigating strategy. For instance, he might have declined to testify and put the Government to its burden of proof. In other words, our holding today is that if a duress defense is permitted, a defendant must be able to introduce evidence relevant to that defense, subject to the rules of evidence. - 10 - No. 11-2542 United States v. Jones relevant to explaining to the jury why his apprehension was well-grounded and why he considered the threat to be present, imminent, and impending. The Government argues that duress is not analogous to self-defense (1) because the rationale of self-defense is different from the rationale supporting duress, and (2) because Rule 404(a)(2)(B) provides special rules relating to victims in cases involving self-defense that do not apply to coercers in cases involving duress. Neither of the Government’s arguments affects the Rule 401 relevancy analysis. While the rationales behind the defenses of self-defense and duress may be different, both defenses require the defendant to prove his fear of death or serious bodily injury. Even if the Government is correct that Rule 404 draws a distinction, this does not affect the relevancy analysis under Rule 401. The relevancy test in Rule 401 is typically the first step in determining admissibility. To argue that evidence is not relevant because another rule would bar it puts the cart before the horse. Even improper propensity evidence is relevant, even if it is not ultimately admissible due to Rule 404’s limits on propensity evidence. See Old Chief v. United States, 519 U.S. 172, 181 (1997); Michelson v. United States, 335 U.S. 469, 475–76 (1948). The district court’s disallowance of the evidence is not supportable on Rule 401 irrelevance grounds. The district court’s pretrial ruling barring Jones and others from testifying concerning acts by Wright prior to the night of the arson is also not supported by the limits on propensity evidence found in Rule 404. Rule 404(a) makes evidence of a person’s character trait “not admissible to prove that on a particular occasion the person acted in accordance with the character or trait,” and the exceptions in Rule 404(a)(2) regarding the traits of defendants and victims do not apply because - 11 - No. 11-2542 United States v. Jones Wright was neither a defendant nor a victim. Rule 404(b) independently renders inadmissible “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” But neither rule applies here because Wright’s prior actions were not being introduced to show that Wright acted similarly in connection with the alleged coercion of Jones, but to show Jones’s perception of the situation for duress purposes. While evidence of Wright’s character is not admissible to prove Wright’s propensity to act in a certain way, this does not limit the admissibility of evidence of Wright’s prior acts and Wright’s reputation for violence to prove Jones’s fear of Wright, a purpose distinct from proving that Wright acted in accordance with the character on the night of the arson. The admissibility of such evidence is reinforced by Rule 404(b)(2)’s examples of permissible purposes: proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident. The list is not exhaustive. See, e.g., United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1980). In Mendez- Ortiz we held for instance that admitting spoliation evidence for purpose of showing a defendant’s consciousness of guilt was not plain error. Evidence of Wright’s assaults and reputation that Jones was aware of is admissible to prove Jones’s “well-grounded apprehension of death or serious bodily injury” (the element of duress as stated in Johnson, 416 F.3d at 468). Although this purpose is not enumerated by Rule 404(b)(2),2 it is a proper purpose for evidence to be admitted. In a case cited 2 The purpose of proving fear is different from the enumerated purpose of “knowledge” in Rule 404(b)(2). The “knowledge” category in Rule 404(b)(2) is a limited exception that often goes to whether a defendant knows the risk of behaving in a certain way to show recklessness, knows a - 12 - No. 11-2542 United States v. Jones with apparent approval by the advisory committee notes to the 1991 amendments to Rule 404, the Fifth Circuit held that evidence of a systematic campaign of threats and intimidation is admissible under Rule 404(b) when offered by a defendant to prove coercion. See United States v. McClure, 546 F.2d 670, 672–73 (5th Cir. 1977). Whether Jones did in fact apprehend death or serious bodily injury on the night of the arson is a factual matter. Cf. Burks, 470 F.2d at 435 n.5. Once the district court decided to allow Jones to argue duress, it also needed to allow him to present facts that would explain his fear of Wright, even if the facts did not directly bear on the threat in the same way as facts such as Wright’s use of the gun, gas can, and lighter, or the specific words that Wright used. On the night of the crime, after Wright threatened to shoot Jones, Jones expressed doubt that Wright would shoot him and Wright did not carry out his threat of shooting Jones. This suggests that the jury might have difficulty believing that Jones was in fear of Wright’s threat of burning down Jones’s house. From the direct evidence bearing on Wright’s threat, it is impossible to know whether Wright was a bluffer that did not need to be taken seriously, or whether Jones had some basis to believe the threat with the gun was a bluff but the threat of burning down Jones’s house was serious. Evidence of Wright’s prior assaults and reputation for violence would inform the jury’s assessment about whether to believe Jones’s testimony that he feared Wright would follow through on his threat to burn down Jones’s house. statement is false to show scienter, or knows how to do something requiring specialized knowledge. See, e.g., Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:34 (2012). - 13 - No. 11-2542 United States v. Jones Admitting evidence relating to the defendant’s fear is in accord with decisions by the First, Third, Seventh, Eighth, Ninth, and D.C. Circuits, which have each stated that in self-defense cases, evidence of prior acts by the alleged aggressor-turned-victim is admissible when the defendant was aware of the acts and the acts are being introduced to show why the defendant was afraid. See United States v. Bordeaux, 570 F.3d 1041, 1050 (8th Cir. 2009) (dictum); United States v. Smith, 230 F.3d 300, 307–08 (7th Cir. 2000); United States v. Saenz, 179 F.3d 686, 688–89 (9th Cir. 1999); Lagasse v. Vestal, 671 F.2d 668, 669 (1st Cir. 1982) (dictum); Gov’t of V.I. v. Carino, 631 F.2d 226, 229–30 (3d Cir. 1980), Burks, 470 F.3d at 434–35; see also Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:25 (2012). The Government cites a Ninth Circuit case, United States v. Lynch, 437 F.3d 902, 914–15 (9th Cir. 2006) (en banc), to argue that duress cases are handled differently than self-defense cases and thus prior acts by a coercer are not admissible. Lynch does not apply as broadly as the Government suggests. The holding in Lynch was limited to the coercer’s prior acts of which the defendant was unaware. While Lynch supports the inadmissibility of prior acts by Wright that Jones was not aware of, the Ninth Circuit’s concern with which of the events the defendant had knowledge of suggests that, if Jones had knowledge of Wright’s prior assaults, reputation, or tendency to carry a gun, such testimony could be admissible. We recognize that admitting evidence regarding Wright’s prior assaults risks devolving into a series of minitrials about whether each prior assault by Wright actually happened, but this concern does not justify excluding all testimony about Wright’s prior assaults. Rule 403 allows trial judges - 14 - No. 11-2542 United States v. Jones to limit evidence whose “probative value is substantially outweighed by a danger of . . . confusing the issues, . . . wasting time, or needlessly presenting cumulative evidence.” While it may have been needlessly cumulative and a waste of time to have seven witnesses testify as to Wright’s prior acts, allowing some testimony about Jones’s knowledge of Wright’s reputation and prior assaults would inform the jury as to Jones’s fear without wasting time or confusing the issues. Thus, the district court should not have barred Jones from testifying regarding the facts warranting his apprehension. Jones argues that the court also abused its discretion by disallowing testimony that would have impeached Wright’s claim that he only carried a gun at work. Under the circumstances that Jones’s claim of duress was based on the threatened arson of his house, rather than fear of Wright shooting him, there was no abuse of discretion. The district court’s decision not to allow Wright to testify regarding prior assaults by Wright that Jones knew of and Wright’s reputation for violence was not harmless error. From our assessment of the record as a whole, we cannot say with fair assurance that the judgment was not substantially swayed by the error, and accordingly, this error affected Jones’s substantial rights. See Kotteakos v. United States, 328 U.S. 750, 765 (1946) (stating standard). The question of whether Jones was coerced raised two factual issues for the jury to decide: (1) whether Wright threatened Jones, and (2) whether Jones was put in fear by Wright’s threat. The evidence of Jones’s knowledge of Wright’s prior assaults and reputation for violence was highly probative of the second issue. Admittedly, this same evidence raises risks of propensity for the first issue, but a defendant has a right to introduce evidence to inform the jury about his state of mind, subject to other evidentiary - 15 - No. 11-2542 United States v. Jones limitations such as Rule 403. Without the evidence of Wright’s prior assaults (including assaults against Jones, a threat of arson against a third party, and the commission of arson against Wright’s own home) the jury was not provided with context that could explain why Jones would take the threat of burning down his house seriously even though he said he was not worried about being shot by Wright. In addition, the Government selectively presented evidence of an amicable relationship while the district court kept out evidence of prior assaults by Wright against Jones. The Government elicited testimony which painted a friendly picture of the relationship between Jones and Wright. Government witness Harold Salley said that Wright and Jones knew each other and Wright would barbecue at Jones’s house while Jones worked on Wright’s car. Similarly, Government witness Fred Huff said he had seen Jones and Wright together and they got along as far as he knew. In its closing argument, the Government referred to Salley’s testimony and reminded the jury that Wright would occasionally spend time at Jones’s house barbecuing there. This testimony and argument made it appear less likely that Jones would take Wright’s threats seriously. If the jury had been presented with testimony about Wright’s prior threats, it might have understood Wright to be less of a friend and more of a bully. The strongest counterargument is that the jury did not believe Jones’s duress defense because he lied to the investigators about his participation in the arson even after Wright was arrested, and thus was not a credible witness. However, even if Jones was not forthcoming with the police, the jury may have acquitted Jones if it had been presented with a stronger factual basis to support - 16 - No. 11-2542 United States v. Jones Jones’s duress argument. There is a risk that the evidence of Wright’s prior assaults and reputation for violence would primarily have served to bolster Jones’s credibility merely due to propensity—it would be an impermissible propensity inference to argue that because Wright assaulted Jones in the past, Jones’s account of Wright’s actions is more credible. But this is the type of risk that often arises with Rule 404(b) evidence and, under Rule 403, the probative value of the evidence going to Jones’s state of mind was not substantially outweighed by the risks of confusing the issue. From our review of the record as a whole, the district court’s error was not harmless. In conclusion, the district court’s error in limiting Jones from testifying about his knowledge of prior assaults by Wright and Wright’s reputation for violence warrants reversal. Should Jones be retried, the district court does not have to exercise its discretion in the same way and may revisit whether Jones made a prima facie case of duress. This discretion includes determining whether it is worthwhile to admit testimony by other witnesses corroborating prior assaults that Jones was aware of. If a factual dispute arises regarding the occurrence of the prior assaults, such testimony’s probative value could weigh in favor of admissibility. See Burks, 470 F.2d at 435 n.5. III. We now address those evidentiary issues raised on appeal to the extent they present legal issues and are likely to arise on retrial. See In re Gen. Motors Corp., 3 F.3d 980, 985 (6th Cir. 1993). - 17 - No. 11-2542 United States v. Jones A. Wright’s Prior Convictions Before trial, Jones notified the Government that he intended to cross-examine Wright regarding five of his prior convictions, to attack Wright’s credibility. At trial, the district court granted the Government’s motion in limine and held that Wright’s criminal history was not relevant and, to the degree that it was relevant, was more prejudicial than probative. On appeal, Jones challenges the exclusion of four of Wright’s convictions. Jones challenges the district court’s refusal to admit Wright’s 2003 felony conviction for attempted receiving and concealing a stolen motor vehicle under Michigan Compiled Laws § 750.535(7). He argues that the court could “readily determine” that the crime involves a “dishonest act or false statement,” rendering it admissible under Rule 609(a)(2). But establishing the elements of receiving and concealing a stolen motor vehicle under Michigan law does not “require[] proving—or the witness admitting—a dishonest act or false statement.” Fed. R. Evid. 609(a)(2). Michigan Compiled Laws § 750.535(7) says “A person shall not buy, receive, possess, conceal, or aid in the concealment of a stolen motor vehicle knowing, or having reason to know or reason to believe, that the motor vehicle is stolen, embezzled, or converted.” The district court could not readily determine that a conviction under § 750.535(7) entails a dishonest act or false statement. As we explained in United States v. Washington, 702 F.3d 886, 892–94 (6th Cir. 2012), the phrase “a dishonest act or false statement” in Rule 609(a)(2) refers to some element of active misrepresentation rather than crimes such as robbery or theft that are better thought of as crimes of violence or stealth and “have little bearing on a witness’s character for truthfulness.” Id. at 893. - 18 - No. 11-2542 United States v. Jones Receiving and concealing a stolen motor vehicle is more like a crime of stealth such as theft than a crime of active misrepresentation such as forgery. The evidence of Wright’s conviction under Michigan Compiled Laws § 750.535(7) was not admissible under Rule 609(a)(2) and the district court did not err in declining to admit the evidence under that rule. We recognize, however, that as a crime punishable by a year or more imprisonment, Wright’s 2003 conviction for attempted receiving and concealing a stolen motor vehicle could be admissible under Rule 609(a)(1)(A), but such admission would be subject to Rule 403 —and the similar balancing test at Rule 609(b) if more than ten years passes between Wright’s release for the 2003 conviction and Jones’s retrial. Jones’s challenge to the disallowance of Wright’s 2001 misdemeanor conviction under Grosse Pointe Park Ordinance § 16-126 for false personation, in contrast to the motor vehicle conviction, involves “a dishonest act or false statement” for purposes of Rule 609(a)(2). The Grosse Pointe Park Ordinance reads: No person shall in any manner disguise himself or falsely assume or pretend to be another, with intent to obstruct the due execution of the law, or with intent to intimidate, hinder or interrupt any public safety officer or any other person in the legal performance of his duty, or in the exercise of his rights under the constitution and laws of this state or the Charter and ordinance of this City, whether such intent be effected or not. The most natural understanding of the ordinance is that a violation involves active misrepresentation. False personation is generally considered a type of fraud, see Jeffery C. Barnum, Comment, False Valor: Amending the Stolen Valor Act to Conform with the First Amendment’s Fraudulent Speech Exception, 86 Wash. L. Rev. 841, 865 (2011) (“Most jurisdictions, as well as the - 19 - No. 11-2542 United States v. Jones U.S. Department of Justice categorize the crime of false personation as a subset of fraud.”), and the purpose of false personation is generally to deceive someone. While the crime qualifies under Rule 609(a)(2), it is still subject to the time restrictions of Rule 609(b), which the district court should consider if this evidence is put forth on remand. The district court did not abuse its discretion in concluding that the probative value of Wright’s 1999 felony conviction for attempted possession with intent to deliver cocaine under fifty grams did not substantially outweigh its prejudice. A twelve-year-old conviction for attempted delivery of cocaine provides little probative value as to the witness’s credibility. This crime did not involve dishonesty or a false statement. Introducing evidence of the crime could prejudice the Government’s case by tempting the jury to focus on Wright’s prior involvement with drugs rather than the substance of Wright’s testimony. While prior felonies are relevant to a witness’s credibility, see Davis v. Alaska, 415 U.S. 308, 316 (1974), Jones has not shown that, based on the specific facts and circumstances of Wright’s crime, the probative value substantially outweighed the prejudicial effect. Our determination that the court below did not abuse its discretion, however, does not preclude the district court from reconsidering its exercise of discretion on remand. The district court correctly concluded that Wright’s 2003 misdemeanor conviction for retail fraud in the third degree was inadmissible under Rule 609 because the conviction was neither punishable by a year or more in jail nor did it involve dishonesty or a false statement. Wright was convicted of Michigan Compiled Laws § 750.356d(4), which provides: - 20 - No. 11-2542 United States v. Jones A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the third degree, a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine: (a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale, if the resulting difference in price is less than $200.00. (b) While a store is open to the public, steals property of the store that is offered for sale at a price of less than $200.00. (c) With intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store, if the amount of money, or the value of the property, obtained or attempted to be obtained is less than $200.00. While subsections (a) and (c) suggest active misrepresentation, subsection (b) also includes shoplifting, which this court has previously said is not a conviction involving dishonesty or false statement. See Washington, 702 F.3d at 893 (citing United States v. Scisney, 855 F.2d 325, 326 (6th Cir. 1989)). Because a court can not readily determine that a conviction under Michigan Compiled Laws § 750.356d(4) required proving or admitting a dishonest act or false statement, the district court did not err in limiting Jones’s cross-examination of Wright as to Wright’s conviction for retail fraud. B. Written Statement by Owner of the Store The district court properly excluded a statement that the owner of the store made to the ATF agents. In the statement, the store owner said Wright brandished a gun, told the store owner that he started the fire, and said “you better not say anything.” Trial Tr. vol. 4 July 5, 2011, 231. Subsequent to making this statement, the owner of the store invoked his Fifth Amendment right - 21 - No. 11-2542 United States v. Jones against self-incrimination, did not make further statements, and informed the prosecution that he was not interested in testifying in Jones’s trial. At trial, Jones sought to introduce the store owner’s statement to the ATF agents, arguing that despite its status as hearsay, it was a deprivation of Jones’s due process rights for this statement to be excluded. The district court sustained the Government’s objection on hearsay grounds, saying “you don’t get in on due process when you’ve got a hearsay statement.” Id. at 232. The district court’s statement was overbroad, but on the current facts, the district court properly ruled against admissibility. Jones argues that Chambers v. Mississippi, 410 U.S. 284, 302 (1973)—which says that in some circumstances “the hearsay rule may not be applied mechanistically”—supports the admissibility of this statement. The circumstances in Chambers are miles apart from the present circumstances. Chambers was a murder trial in which the defendant sought to present evidence that another man, McDonald, had sworn that he committed the crime and confessed to three friends shortly after the murder. McDonald later repudiated his confession. Under Mississippi’s rules of evidence at the time, Chambers could not cross-examine McDonald or introduce testimony by the three people to whom Chambers had confessed. See id. at 285–94. Under Mississippi’s hearsay rules, declarations against pecuniary interest were admissible while declarations against penal interest were not. See id. at 299. The Supreme Court determined that under the circumstances, Chambers’s due process rights had been violated. See id. at 302–03. The keys to the Supreme Court’s reasoning were the importance of the testimony to Chambers’s defense and the trustworthiness of McDonald’s statements to his friends. The Supreme Court identified four - 22 - No. 11-2542 United States v. Jones aspects of the testimony that made it reliable: (1) each was made spontaneously to a friend shortly after the murder, (2) each was corroborated by physical evidence, (3) each statement was unquestionably self-incriminatory, and (4) McDonald was present in the courtroom and under oath. See id. at 300–01. In this case on the other hand, the owner of the store made a statement to ATF agents that was not self-incriminatory, but rather can be understood as seeking to excuse his own role in the arson by alleging that he too had been coerced by Wright. In addition, this statement was not as critical to Jones’s defense as McDonald’s statements were to Chambers’s defense. While there are times that due process requires that hearsay rules give way, this is not one of those times and the district court’s ruling was not in error. For the foregoing reasons, Jones’s conviction is reversed. We vacate Jones’s conviction and sentence, and remand to the district court for further proceedings consistent with this opinion. - 23 - No. 11-2542 United States v. Jones HELENE N. WHITE, Circuit Judge, concurring. I concur, but write separately to clarify some points. Because the district court correctly determined that Jones made a prima facie case of duress, I would not open the door to relitigation of that issue on remand. Additionally, although I agree that evidence of Wright’s gun-carrying practices was not directly relevant to the duress defense because Jones was fearful of Wright’s threat to set a fire, not his threat to use the gun, on remand the court should consider whether the credibility contest between Wright and Jones is such that the collateral nature of the issue does not substantially outweigh the value of witness testimony that Wright carries a gun even when not at work, notwithstanding his testimony to the contrary. In all other respects, I concur in section II of the majority opinion. Regarding section III of the majority opinion, I think it important to note because Wright is a witness and not a defendant, Federal Rule of Evidence 609(a)(1)(A) makes certain criminal convictions presumptively admissible, subject only to Rule 403: (1) for a crime that . . . was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant[.] Fed. R. Evid. 609(a)(1)(A). Rule 403 favors admissibility: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. - 24 - No. 11-2542 United States v. Jones Fed. R. Evid. 403 (emphasis added). In contrast, Rule 609(a)(1)(B) sets forth a different rule when the witness is the defendant in a criminal trial: (1) for a crime that . . . was punishable by death or by imprisonment for more than one year, the evidence: ... (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to the t h a t defendant[.] Fed. R. Evid. 609(a)(1)(B). Lastly, to the extent that the ten-year period of Rule 609(b) is triggered by the passage of time since the first trial, thus triggering a different standard of admissibility,1 it is appropriate that the district court consider that Wright’s credibility is a crucial issue in the case. 1 Rule 609(b) states: (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances substantially outweighs its prejudicial effect[.] Fed. R. Evid. 609(b)(1). - 25 - 

654 F.2d 725 Cameronv.International Harvester Co. 80-1918 UNITED STATES COURT OF APPEALS Seventh Circuit 4/6/81 1 N.D.Ind. DISMISSED

258 Pa. Superior Ct. 478 (1978) 393 A.2d 459 COMMONWEALTH of Pennsylvania, Appellant, v. Rovanna BEST-BEY, Nathaniel Best-Bey, Tyrone Elwood Scott and Vernon Mayes. Superior Court of Pennsylvania. Argued March 23, 1977. Decided October 20, 1978. *479 P. Stephen Lerario, Assistant District Attorney, with him William T. Nicholas, District Attorney, Norristown, for Com., appellant. E. William Heuser, Norristown, for appellee, Rovanna Best-Bey. Richard C. Sheehan, Norristown, submitted a brief for appellees, Nathaniel Best-Bey, Tyrone Elwood Scott and Vernon Mayes. Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ. VAN der VOORT, Judge: The Commonwealth has charged the defendants, appellees, with numerous counts of theft of movable property, theft by receiving stolen property, criminal mischief, criminal conspiracy and possession of motor vehicles with defaced *480 serial numbers. Defendants made an application to suppress certain evidence, which they alleged was acquired by the Commonwealth as a result of an illegal search and seizure. After hearing upon the application the court below suppressed the evidence, which ruling for all practical purposes effectively terminated or substantially handicapped the prosecution of the charges. The Commonwealth has appealed. On or about December 22, 1975, Trooper John T. Hennessey was told by a citizen who is a respected member of the community that surreptitious activities were taking place at a location known as the Old Mill in Upper Salford Township, Montgomery County, near the intersection of Quarray Road and Salford Station Road. Having been alerted to this activity, Trooper Hennessey on January 1, 1976, went to the premises at the location described by the informing citizen. There he noted that there was a large rectangular 2-story building located adjacent to Old Reading Railroad tracks, from which the rails had been dismounted. The lower half of the building was constructed of green cinder block with a wooden frame upper half and with a roof partly of metal and partly of roofing shingles. The property was owned by one Geoffrey Loughrey. The railroad tracks used to be a siding for the building. It was now used as a roadway up to and alongside the building. The premises were not fenced; there was no gate or other deterrent to entry. On the said January 1st, 1976, Trooper Hennessey visited the grounds; he saw a G.M.C. truck having a blue cab and a silver colored body parked on the old railroad bed. The Officer took the vehicle identification number (V.I.N. number, the same as the Manufacturer's number) from that truck. Further investigation disclosed that the truck was registered to Rovanna Best (who is the same person as Rovanna Best-Bey, one of the appellees) of Philadelphia. On January 9, 1976, Trooper Hennessey along with Corporal DiStefano returned to the property and obtained from some vehicles parked outside of the building additional V.I.N. numbers. One was from a 1972 Ford pick-up truck *481 parked outside of the overhead doors, which was the main working entrance to the Old Mill. The Ford truck registration had been issued to a person named PETRELLIS, of 719 Crestview Street, Philadelphia, and the truck had been reported stolen on September 8, 1975. On January 16, 1976, three officers revisited the premises and noted that at the rear of the G.M.C. truck were five (5) motor vehicle engines, (4 truck and 1 automobile), covered by a canvas cover. An examination of these engines disclosed that one had a V.I.N. number — 6L47S4Q423194 — belonging to a 1974 Cadillac El Dorado, stolen from the King of Prussia shopping center in Upper Merion Township, Montgomery County, on December 24, 1975. The investigations by the officers were carried on in the night time. None of them entered the Old Mill building until a search warrant had been obtained, as will be described infra. On January 10, 1976, Trooper Hennessey had again contacted the informing citizen who said that a Cadillac automobile arrived at the Old Mill on a flat bed truck. It was parked outside for a few days and then taken inside and was never seen again. On February 2, 1976, Rovanna Best-Bey was seen leaving the Old Mill premises in a dump truck. The vehicle was loaded with automotive parts and assorted body parts. On February 6, 1976, he was observed leaving the area operating a red dump truck, again loaded with automobile body parts. On February 9, 1976, Rovanna Best-Bey and another black male were observed leaving the Old Mill with automotive parts loaded on the back of a 1967 Ford truck. Registration for this vehicle had been issued to Rovanna Best. A title search from a 1974 Chevy Truck revealed that it was bought by Best from the Underwriters Salvage Co., in Runnemede, New Jersey, which the salvage company had bought for junk on May 10, 1974. The V.I.N. number had been removed from the salvage vehicle and placed on another vehicle which was in good condition. Armed with this information, Trooper Hennessey applied for and received a search warrant for the premises which was executed on February 10, 1976, at five minutes to four *482 p.m. The El Dorado engine, the Petrellis truck and the Ford IV wheel drive frame with the V.I.N. number welded over were still on the premises. The Petrellis truck had a V.I.N. number when the officer first saw it, but on February 10th it had no such number. Subsequent search warrants were issued also, as the investigation developed further unlawful activity, on six (6) additional occasions, i.e., February 11th, February 12th, February 18th, February 26th, March 16th, and March 19th, 1976. Rovanna Best-Bey was present on February 26, 1976. By February 9, 1976, Trooper Hennessey believed he had enough knowledge and information about this operation at the Old Mill to justify making an application for a search warrant. On February 10, 1976, he applied for and secured a search warrant. He recited as probable cause the following: "On or about 22 Dec 75, reporting officer was contacted by a confidential informant who related that criminal activity was taken place at a large warehouse located in Salford Station, Montgomery County Penna. The informant stated that several new trucks and motor vehicles were seen being taken into the building and bright lights and smoke being emitted from the shop as though the vehicles were being dismantled. The informant stated that the building was located parallel to the Reading Railroad tracks approximately 500 feet from the intersection of Quarry Rd., and Salford Station Rd., in Salford Station, Upper Salford Twp., Montgomery County Penna. On 1 Jan 76, reporting officer accompanied by Sgt. Daniel MONKIEWICZ., proceeded to Salford Station, Penna., and observed a building, green in color at the above mentioned location. The building is a two story rectangular building. The bottom half is cinder block with a wood frame upper half. The building has a part metal roof and part roofing shingles. The property is owned by one Geoffery LAUGHERY, Salford Station Rd., Salford Station Penna. A registration number was obtained from the G.M.C. truck, sivler (sic) enclosed box, parked on the old *483 railroad bed. The number was Penna. CK90933. The vehicle was registered to Rovanna BEST 3125 Natrona St., Philadelphia Penna. A criminal records check was made with the Philadelphia Police Department. The subject BEST has a criminal record involving a large number of arrests for theft of motor vehicles, receiving stolen property and related offences. His last arrest is listed as 12/28/74, 13 counts of theft of motor vehicles etc. The subjects correct name is Rovanna Best BEY. A check with the Motor Vehicles Bureau revealed that the subject has 12 vehicles registered to him in the name of Rovanna BEST. The subject aslo (sic) is in possession of a Pennsylvania Operators License in the name of Rovanna BEST. On 9 Jan 76, reporting officer and Tpr. Albert DeSTEFANO, P.S.P. conducted a surveillance of the building known sa (sic) the old mill. VIN number F10YEP85341 was obtained from a green Ford Truck, 1972 model, issued to Petrellis 719 Crestview St., Philadelphia Penna, reported stolen on 9/8/75., from the city of Philadelphia, Penna. On 16 Jan 76, a surveillance of the old mill was conducted by Tprs. Richard PREBULA, and David MOTKO. a VIN number was obtained from a motor and transmission which was located behind the G.M.C. Truck on the old railroad bed under a canvas cover. The number was 6L47S4Q423194. The vehicle, a 1974 Cadillac was reported stolen from the King of Prussia Shopping Center, Upper Merion Twp., Montgomery County Penna., on 12/24/75. The owner of the vehciel (sic) is one Joseph R. PEARL of CURTI Dr., Southampton, Penna. On 10 Jan 76, reporting officer contacted informant who stated that a Cadillac vehicle arrive (sic) at the old mill on a flat bed truck. The vehicle was parked outside of the building for several days and then taken inside. The vehicle was not seen again. The informant stated that smoke was emitted from the vent system of the building indicating that cutting or burning was being done inside of the building. *484 On 2 Feb 76, the subject BEST was observed leaving the `Old Mill' with a red dump truck. The vehicle was loaded with automobile parts, mostly fenders and assorted body parts. On 6 Feb 76, the subject BEST was again observed leaving the area operating a red dump truck again loaded with automobile body parts. On 9 Feb 76, the subject BEST and another black male were observed leaving the warehouse with automotive parts loaded on the back of a 1967 Ford Tk., bearing Penna. registration CL47520. the vehicle is issued to Rovanna.BEST. On the night of 9 Feb 76, a surveillance was conducted of the location and it was determined that the engines to the rear of the silver box truck bearing Pennsylvania registration CK90933, located on the old railroad bed adjacent to the `OLD MILL'., are still in that location. A title search of the 1974 Chevy Tk. VIN CCY244 B154292, bearing registration CT51486 was bought by BEST from the Underwriters Salvage Company, Black Horse Pk., Runnemede, New Jersey. New Jersey Motor Vehicle Division records revealed that the vehicle was previously owned by Wayne C. INGMAR 517 Franklin Ave., Cherry Hill, New Jersey. The local police agency verified (sic) that the vehicle was sold to the salvage company for junk on 5/10/74. This information indicates that the VIN number of the salvage vehicle was removed and placed on another vehicle in good condition, possibley (sic) a stolen vehicle. The informant is a concerned citizen who is a respected member of the community." The defendants-appellees claim that the visits which the State police made to the Old Mill premises were an unreasonable search and violated their Fourth Amendment rights under the U.S. Constitution, that they had a reasonable expectation of privacy of such magnitude as to preclude the elementary kind of investigation which the state troopers made upon the premises which they, the defendants, occupied. *485 With this claim we disagree. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) the court said among other things: "We have recently held that `the Fourth Amendment protects people, not places,' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 . . . (1967) and where ever an individual may harbor a reasonable `expectation of privacy,' id., at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 588 (Mr. Justice Harlan concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For `what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures'" [citation omitted] at 9, 88 S.Ct. at 1873. In determining whether the search made here was or was not reasonable the case of United States v. Vilhotti, D.C., 323 F.Supp. 425, affd. in part, rev'd in part 452 F.2d 1186 cert. denied 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1971) is instructive: ". . . Thus to ascertain what constitutes an unreasonable search the court must evaluate a person's efforts to insure the privacy of an area or activity in view of both contemporary norms of social conduct and the imperatives of a viable democratic society. Katz v. United States, supra, see Greenawalt, `Consent Problem in Wiretapping and Eavesdropping', 68 Col.L.Rev. 168 (1968)." ". . . Here, given that an unattached garage was the object of search, neither social nor physical barriers were sufficient to protect its interior from intrusion by a casual observer. Kelly's flashlight search, therefore, did not encroach upon defendants' reasonable expectations of privacy. Indeed, it is not unlikely that police officers would routinely make such inspections as part of their peace-keeping functions." Instantly on the one hand the expectation and need of society and the government to discover and destroy an activity engaged in the disposition of stolen vehicles is high. On the other hand, a possessor of an open yard, not part of *486 the curtilage of a dwelling who leaves parked upon it, unattended and unoccupied motor vehicles and parts of motor vehicles, exhibits a very slight expectation or even no expectation of privacy of the vehicle identification numbers. In making their search the officers entered no building, they made no intrusion upon the person of any of the defendants and in no way disturbed or molested the defendants or their property. The investigation and search made by the officers disclosed no unjustified aggression and was not unreasonable. There was adequate probable cause for the issuance of the search warrants. Order reversed and case remanded for trial. SPAETH, J., files a concurring opinion, in which JACOBS, President Judge, joins. HOFFMAN, J., files a dissenting opinion. WATKINS, former President Judge, did not participate in the consideration or decision of this case. The decision in this case was made prior to the retirement of HOFFMAN, J. SPAETH, Judge, concurring: It is beyond dispute that "the Fourth Amendment [of the United States Constitution] protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). However, the scope of this protection is uncertain. See Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (seizure of papers from labor union office unreasonable although office shared by several officials); United States v. Romano, 388 F.Supp. 101, 105 (E.D.Pa. 1975) (seizure of newspapers from drainpipe on rear wall of townhouse reasonable); Commonwealth v. Cooper, 240 Pa.Super. 477, 489-490, 362 A.2d 1041, 1049-50 (1976) (conversation overheard by police lawfully in adjacent hotel room admissible); Commonwealth v. Cubler, 236 Pa. Super. 614, 346 A.2d 814 (1976) (Opinion by WATKINS, former P.J., joined by PRICE and VAN der VOORT, *487 JJ. — proper to seize black bag placed in dog house in back yard; but see dissenting opinion by HOFFMAN, J., id., 236 Pa.Super. at 621, 346 A.2d at 817); Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970) (seizure of evidence through uncurtained window reasonable). Here, I think it unnecessary to determine whether the scope of protection afforded by the Fourth Amendment extended to defendants' premises, because the police obtained sufficient evidence from their initial surveillance from the railroad right of way and their later examination of items left on the railroad right of way to establish probable cause for the issuance of the search warrants. Defendants had no reasonable expectation of privacy as to this right of way because it was located parallel to defendants' warehouse but was not part of the premises. Therefore, the police were lawfully on the right of way and the information gained from this vantage point or from items left on it could properly be considered in determining whether there was probable cause for issuance of the warrants. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). During the initial surveillance the police learned by checking the license plate number that a truck parked on the right of way was registered in the name of defendant Rovanna Best-Bey. A criminal record check made with the Philadelphia Police Department revealed that defendant Rovanna Best-Bey had an extensive number of arrests for vehicle thefts, receiving stolen property, and related offenses. Furthermore, during one of their nighttime surveillances the police obtained a vehicle identification number from a motor and transmission that had been left on the right of way and were covered only by a tarpaulin. This vehicle identification number belonged to a stolen car. Thus, in addition to the unidentified informant's tip, the magistrate could properly have considered these facts: that defendant Rovanna Best-Bey was the registered owner of a truck parked near the premises; that he had an extensive criminal record involving vehicle theft; and that the parts *488 found on the railroad right of way belonged to a stolen car. These facts were sufficient to give the magistrate probable cause to believe that illegal activity was going on in the premises. Accordingly, I agree with the majority that the lower court's order suppressing the evidence obtained as a result of the searches should be reversed and the case remanded for further proceedings. JACOBS, President Judge, joins in this opinion. HOFFMAN, Judge, dissenting: Appellant, the Commonwealth,[1] contends that the lower court erred in granting appellees' motion to suppress evidence. According to the Commonwealth, the search warrant of February 10, 1976 contained sufficient probable cause to justify its issuance.[2] I disagree and, therefore, would affirm the lower court. *489 Appellees were charged with three counts each of theft of movable property,[3] theft by receiving stolen property,[4] criminal mischief,[5] criminal conspiracy,[6] and possession of motor vehicles with defaced serial numbers.[7] On May 14, 1976, the Montgomery County Court of Common Pleas granted appellees' motion to quash the informations charging theft of movable property and theft by receiving stolen property, but denied the motion to quash the remaining charges. On May 13, and July 12, 1976, appellees filed motions[8] to suppress evidence obtained as a result of all searches of the Old Mill property. At a suppression hearing on July 21, 22, and 23, 1976, the Commonwealth presented the following facts. *490 In December of 1975, Trooper John T. Hennessey of the Pennsylvania State Police received information from a confidential informant described only as "a concerned citizen who is a respected member of the community." The informant stated that "criminal activity was [taking place] at a large warehouse located in Salford Station, Montgomery County, Penna. . . . Several new trucks and motor vehicles were seen being taken into the building and bright lights and smoke being emitted from the shop as though the vehicles were being dismantled." The property, known locally as the Old Mill, was located near the intersection of Quarry Road and Salford Station Road in Upper Salford Township, Montgomery County. Pursuant to this information, the police began a surveillance of the property which continued until they obtained a search warrant on February 10, 1976. The building under surveillance was a two story green cinder block and wood frame structure located parallel to an unused railroad right of way on which the rails and ties had been removed sometime before the initial surveillance began. Appellee Rovanna Best-Bey leased the premises from its owner. The building had bathrooms on the first and second floors, and an office area in the front of the building. Although one room was panelled, there was no furniture in any of the rooms. The initial police surveillance was conducted from the railroad right of way which could be used as a road. From that vantage point, Trooper Hennessey observed and noted the license plate number of a GMC truck which was parked on the railroad right of way. A subsequent check of records through the use of a computer print-out indicated that the truck was registered in the name of appellee Rovanna Best-Bey. On January 5, 9, and 16, 1976, Trooper Hennessey, accompanied by other troopers, returned to the Old Mill property at night without a search warrant. On these occasions, the police obtained vehicle identification numbers (VINs) from parts of motor vehicles located outside, but close to the *491 building. They obtained the VINs by opening a door to a truck cab and lifting a canvas covering a pile of engines. The police used flashlights to observe and record the VINs; they then seized several of the engines. They did not observe vehicles being taken into the building, smoke being emitted from the building, or any bright lights. Trooper Hennessey testified that the officers came onto the property at night primarily in order to avoid detection. Although the property was not surrounded by a fence, it was not open to the public. On February 10, 1976, a police officer recited the following information in the probable cause section of an application for a search warrant of the Old Mill: "On or about 22 Dec 75, reporting officer was contacted by a confidential informant who related that criminal activity was taking place at a large warehouse located in Salford Station, Montgomery County Penna. The informant stated that several new trucks and motor vehicles were seen being taken into the building and bright lights and smoke being emitted from the shop as though the vehicles were being dismantled. The informant stated that the building was located parallel to the Reading Railroad tracks approximately 500 feet from the intersection of Quarry Rd., and Salford Station Rd., in Salford Station, Upper Salford Twp., Montgomery County Penna. "On 1 Jan 76, reporting officer accompanied by Sgt. Daniel MONKIEWICZ., proceeded to Salford Station, Penna., and observed a building, green in color at the above mentioned location. The building is a two story rectangular building. The bottom half is cinder block with a wood frame upper half. The building has a part metal roof and part roofing shingles. The property is owned by one Geoffery LAUGHERY. "Salford Station R., Salford Station Penna. A registration number was obtained from the G.M.C. truck, silver enclosed box, parked on the old railroad bed. The number was Penna. CK90933. The vehicle was registered to Rovanna BEST 3125 Natrona St., Philadelphia Penna. A criminal *492 records check was made with the philadelphia Police Department. The subject BEST has a criminal record involving a large number of arrests for theft of motor vehicles, receiving stolen property and related offences. His last arrest is listed as 12&128/74, 13 counts of theft of motor vehicles etc. The subject's correct name is Rovanna Best BEY. A check with the Motor Vehicles Bureau revealed that the subject has 12 vehicles registered to him in the name of Rovanna BEST. The subject also is in possession of a Pennsylvania Operators License in the name of Rovanna BEST. "On 9 Jan 76, reporting officer and Tpr. Albert DeSTEFANO, P.S.P. conducted a surveillance of the building known as the Old Mill. VIN number F10YEP85341 was obtained from a green Ford Truck, 1972 model, issued to Petrellis 719 Crestview St., Philadelphia, Penna., reported stolen on 9/8/75., from the city of Philadelphia, Penna. "On 16 Jan 76, a surveillance of the Old Mill was conducted by Tprs. Richard PREBULA, and David MOTKO, a VIN number was obtained from a motor and transmission which was located behind the G.M.C. Truck on the old railroad bed under a canvas cover.[8a] The number was 6L47S4Q423194. The vehicle, a 1974 Cadillac was reported stolen from the King of Prussia Shopping Center, Upper Merion Twp., Montgomery County Penna., on 12/24/75. The owner of the vehicle is one Joseph R. PEARL of CURTI Dr., Southampton, Penna. "On 10 Jan 76, reporting officer contacted informant who stated that a Cadillac vehicle arrive at the Old Mill on a flat bed truck. The vehicle was parked outside of the building for several days and then taken inside. The vehicle was not seen again. The informant stated that smoke was emitted from the vent system of the building indicating that cutting or burning was being done inside of the building. *493 "On 2 Feb 76, the subject BEST was observed leaving the `Old Mill' with a red dump truck. The vehicle was loaded with automobile parts, mostly fenders and assorted body parts. "On 6 Feb 76, the subject BEST was again observed leaving the area operating a red dump truck again loaded with automobile body parts. "On 9 Feb 76, the subject BEST and another black male were observed leaving the warehouse with automotive parts loaded on the back of a 1967 Ford Tk., bearing Penna. registration CL47520. the vehicle is issued to Rovanna BEST. . . . "The informant is a concerned citizen who is a respected member of the community." Based upon this information, the magistrate issued a search warrant for the Old Mill on February 10, 1976. The magistrate issued six subsequent search warrants for the Old Mill premises which the police executed on the following dates: February 11, 12, 18, 26, March 16, and 19, 1976. All subsequent warrants specifically incorporated the probable cause recited in the initial warrant. Upon execution of the initial search warrant on February 10, 1976, appellees Vernon Mayes, Tyrone Elwood Scott, and Nathaniel Best-Bey were found on the Old Mill premises and arrested. Appellee Rovanna Best-Bey was arrested at a later date. At the conclusion of the hearing on July 23, 1976, the lower court granted the motion to suppress and the Commonwealth's appeal followed. The Commonwealth contends that the lower court erred in suppressing evidence obtained pursuant to the February 10, 1976 search warrant and all subsequent warrants. According to the Commonwealth, the February 10, 1976 warrant alleged sufficient probable cause to justify its issuance. Appellees, however, respond, and the lower court so found, that the February 10, 1976 warrant did not allege sufficient probable cause because: (1) much of the information alleged in the warrant stemmed from illegal police surveillance of *494 appellees' leased premises and this could not be considered in determining probable cause, and (2) the remainder of the information in the warrant did not sufficiently establish probable cause under the standards of Aguilar-Spinelli. I will first analyze whether the lower court erred in refusing to consider all the information obtained as a result of the allegedly illegal pre-February 10, 1976 surveillance. After I make this determination, I will evaluate whether the remaining information in the February 10, 1976 warrant sufficiently established probable cause. The Commonwealth first contends that the pre-February 10, 1976 surveillance was not illegal because the appellees did not have a reasonable expectation of privacy on the Old Mill premises. In Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the United States Supreme Court stated that ". . . the Fourth Amendment protects people not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (Citations omitted). See also U.S. v. Rubin, 343 F.Supp. 625 (E.D.Pa. 1972), vacated, 474 F.2d 262 (3d Cir. 1973), cert. denied Agran v. United States, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); Commonwealth v. Strickland, 457 Pa. 631, 326 A.2d 379 (1974); Commonwealth v. Cooper, 362 Pa.Super. 1041, 362 A.2d 1041 (1976). Consequently, ". . . once it is established that an individual is where he has a reasonable expectation of privacy, he is entitled to be free from unreasonable intrusions by the government." Commonwealth v. Swanger, 453 Pa. 107, 110, 307 A.2d 875, 877 (1973) (Citations omitted). "The test of any search, anywhere, any time, is the Fourth Amendment. This Constitutional mandate is premised, not upon the general character of the place searched, but whether or not the individuals had a reasonable expectation of privacy." (Emphasis in the original). United States v. Rubin, supra, at 628. Thus, the Fourth Amendment's safeguards extend to premises occupied for *495 business or commercial purposes as well as to those occupied for residential or dwelling purposes. Kroehler v. Scott, 391 F.Supp. 1114 (E.D.Pa. 1975); United States v. Wolfe, 375 F.Supp. 949 (E.D.Pa. 1974); United States v. Zarra, 258 F.Supp. 713 (M.D.Pa. 1966). Moreover, "absence of a physical intrusion does not per se demonstrate that a police search was reasonable . . . ." Commonwealth v. Soychak, 221 Pa.Super. 458, at 462, 289 A.2d 119, 122 (1972). If an individual's reasonable expectation of privacy is violated, the intrusion is unreasonable and violative of the Fourth Amendment's safeguards, notwithstanding the absence of a physical intrusion. "The Fourth Amendment does not prohibit warrantless searches, but rather unreasonable searches." United States v. Samuels, 374 F.Supp. 684, 685 (E.D.Pa. 1974). What constitutes a reasonable search cannot be determined by a fixed formula, but rather must be based on the facts and circumstances of each particular case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Soychak, supra. Although an evaluation of the entire context surrounding a search may reveal exigent circumstances which render a warrantless search reasonable, "`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.' The exceptions are `jealously and carefully drawn,' there must be `a showing by those who seek the exemption * * * that the exigencies of the situation made that course imperative.' `[T]he burden is on those seeking the exemption to show the need for it.'" Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (Citations and footnotes omitted). Applying these principles to the facts of the instant case, I conclude that the police surveillance of appellee's leased property constituted a warrantless, unreasonable search which violated appellees' reasonable expectation of privacy. After receiving the "tip" from the anonymous informant, *496 the police officers made no attempt to enter the building on the Old Mill premises until obtaining a search warrant on February 10, 1976. However, they conducted a nocturnal surveillance of the premises on at least six separate occasions during a six week period by coming onto the Old Mill property, observing the activities of appellees as they entered and exited the building, and looking into windows. Moreover, the officers obtained VINs by shining flashlights under a canvas which covered engine parts. Although the property was not surrounded by a fence, there was no indication that appellees knowingly exposed the property to the public such as to avoid the Fourth Amendment's protections. Commonwealth v. Cooper, supra. Finally, Trooper Hennessey conceded that the police conducted their surveillance at night in order to avoid detection. Thus, had the police though the premises were open to the public, they would not have found clandestine entry to be necessary.[9] In sum, I conclude that appellees' reasonable expectation of privacy was violated by the warrantless, nighttime entry on the Old Mill premises. Consequently, the information obtained as a result of the illegal surveillance cannot constitute a basis for probable cause. The Commonwealth's next contention is that even if we refuse to consider the information obtained as a result of the surveillance, the information which the police received from the informant provided sufficient probable cause to justify the issuance of the search warrant. I conclude that the information fails to satisfy either prong of the Aguilar-Spinelli test. "`. . . [A] magistrate's determination of probable cause justifying the issuance of a warrant must be supported by an affidavit [and, if necessary, sworn testimony] that discloses the underlying circumstances from which the *497 affiant has concluded that his information is reliable and that it must contain a statement of the underlying circumstances "to enable the magistrate independently to judge of the validity" of the affiant's conclusion that the things to be seized are where he says they are.' United States v. Bailey, 458 F.2d 408, 411 (9th Cir. 1972) (quoting from Spinelli, supra [393 U.S. 410] at 413, 89 S.Ct. [584] at 587, [21 L.Ed.2d 637]) (emphasis added). "Although the information supplied the magistrate `. . . must be tested with a commonsense, nontechnical, ungrudging, and positive attitude, . . .', Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966); United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the information must be sufficient `. . . to enable the magistrate independently to judge of the validity of the informant's conclusion that the narcotics were where he said they were.' Spinelli, supra at 413, 89 S.Ct. at 587 (emphasis added)." Commonwealth v. Simmons, 450 Pa. 624, 629, 301 A.2d 819, 822 (1973). Although hearsay information supplied by an anonymous informer may provide probable cause, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), there must be two additional types of information before probable cause can be established. First, in order to assure that the informer's information is not merely an unsupported rumor, the affiant must know the underlying circumstances from which the informer concluded that the suspect participated in the crime. Second, in order to reduce the possibility that a tip meeting the first standard is not merely a well-constructed fabrication, the affiant must have some reasonable basis for concluding that the informant was credible and reliable. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Commonwealth v. Simmons, supra. Thus, "a search warrant may not constitutionally issue upon an affidavit which fails to set forth substantiating facts and *498 circumstances from which the magistrate might make an independent and detached appraisal of the probability that a crime had been or was being committed." Commonwealth v. Swierczewski, 215 Pa.Super. 130, 257 A.2d 336 (1969). Applying this two-part test to the facts of the instant case, it becomes apparent that there was no probable cause to support the issuance of the February 10, 1976 search warrant. First, the required underlying circumstances to support the informant's conclusion that criminal activity was occurring are absent. The tip came from an unidentified informant who did not demonstrate personal knowledge of any criminal activity. Rather, the informant's tip was a mere conclusion that "criminal activity was [taking place] at a large warehouse in Salford Station, Montgomery County," and that "several new trucks and motor vehicles were seen being taken into the building and bright lights and smoke being emitted from the shop as though the vehicles were being dismantled." This statement is nothing more than a mere suspicion of criminal activity which is, in itself, insufficient to sustain the issuance of a warrant. Com. v. Simmons, supra. Further, the affiant failed to either recount the manner in which the informant obtained his information or to describe the alleged criminal activity in detail based on personal observation, in order to provide supporting factual circumstances for the informer's tip. Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975). The police officer did not observe bright lights or smoke or any evidence of criminal activity on the premises to corroborate the informant's conclusion. Finally, even if the warrant recited any details corroborating a conclusion of criminal activity, any information obtained as a result of police surveillance prior to the issuance of the warrant could not provide substantiation for the informant's tip because such information was the result of an illegal search. Because the warrant lacks the requirement of underlying circumstances to support the informant's conclusion, the warrant fails to satisfy the first part of the Aguilar-Spinelli test. *499 Second, the warrant failed to present a reasonable basis from which the affiant could conclude that the source of the information was reliable. The warrant stated only that "the informant is a concerned citizen who is a respected member of the community." Neither the warrant nor a supporting affidavit demonstrated any indicia of reliability, such as personal knowledge of the informant, past reliability, or corroborating sources, to support the informant's tip. Commonwealth v. Samuels, supra. Thus, the record is devoid of any underlying circumstances providing a reasonable basis to believe that the informant himself was a credible person and not merely an individual fabricating a story. Consequently, the second part of the Aguilar-Spinelli test is also lacking. Because the February 10, 1976 warrant fails to satisfy the two-pronged Aguilar-Spinelli test, and because we refuse to consider the information obtained as a result of the illegal surveillance, I conclude that the warrant lacks the requisite probable cause to justify its issuance. All the subsequent warrants specifically depended upon the probable cause recited in the initial warrant. Although inclusion of illegally obtained evidence will not invalidate a search warrant if the warrant is also based upon other valid sources sufficient to constitute probable cause, United States v. Sterling, 369 F.2d 799 (3d Cir. 1966), Commonwealth v. Soychak, supra, the subsequent warrants in the instant case do not present any additional sources constituting probable cause. Therefore, the lower court correctly suppressed all evidence obtained during searches of the Old Mill on or after February 10, 1976. In conclusion, I would hold that the Commonwealth violated appellees' Fourth Amendment rights by intruding upon appellees' reasonable expectation of privacy and by failing to provide sufficient probable cause to justify the issuance of a valid search warrant. Accordingly, I would affirm the lower court's suppression order. I dissent. NOTES [1] I note that "[t]he Commonwealth may only appeal from a pre-trial order if it involves a pure question of law and if it effectively terminates or substantially handicaps a prosecution." Com. v. DeFelice, 248 Pa.Super. 516, 522, 375 A.2d 360, 363 (1977). See also Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). In the instant case, the Commonwealth meets the requirements necessary to appeal from a suppression order. First, the Commonwealth appeals from a pure question of law: the lower court's finding that the Commonwealth violated appellees' Fourth Amendment rights by intruding upon appellees' reasonable expectation of privacy and by failing to provide sufficient valid probable cause to justify the issuance of a search warrant. Second, the suppression order effectively terminated or substantially handicapped the Commonwealth's prosecution. The lower court suppressed the evidence obtained pursuant to the February 10, 1976 warrant because the warrant did not contain sufficient probable cause. The lower court further suppressed evidence obtained as a result of all subsequent warrants because they were based on the initial illegal warrant. Moreover, the lower court suppressed all evidence obtained as a result of the illegal surveillance of the property. As the record demonstrates, the Commonwealth lacks any additional evidence on which to base its prosecution. Thus, the prosecution is effectively terminated or substantially handicapped as a result of the suppression order. [2] In its brief the Commonwealth also alleges that the lower court erred in granting the suppression order because; (1) if a portion of the probable cause section of a search warrant is based on illegally obtained evidence, the lower court must look to other paragraphs of the probable cause section to determine whether there are other valid sources independently sufficient to constitute probable cause, (2) the items observed by the police which are not named in the search warrant were obtained lawfully as the fruits or evidence of a crime, (3) any minor defect in the warrant or affidavit does not justify the remedy of suppression absent a showing of prejudice to the appellees, and (4) the warrants subsequent to February 10, 1976, contained sufficient probable cause without reference to the initial warrant of February 10, 1976, to justify their issuance. The Commonwealth did not raise any of these issues in its answer to appellees' motion to suppress or in New Matter and the lower court never had the opportunity to consider these arguments. Accordingly, these contentions are waived. Pa.R.App.P. 302(a); see also Commonwealth v. Curtis, 253 Pa.Super. 163, 384 A.2d 1280, n. 6 (1977); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). [3] The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 3921. [4] The Crimes Code, supra; 18 Pa.C.S. § 3925. [5] The Crimes Code, supra; 18 Pa.C.S. § 3304. [6] The Crimes Code, supra; 18 Pa.C.S. § 903. [7] The Vehicle Code, Act of April 29, 1959, P.L. 58, § 301; 75 P.S. § 301. Since the date of the alleged offense, the Vehicle Code has been thoroughly revised. For the present analogue to 75 P.S. § 301, see The Vehicle Code, Act of June 17, 1976, P.L. 162, Act No. 81, eff. July 1, 1977; 75 Pa.C.S. § 7102. [8] The lower court granted appellees' motion to consolidate filed on July 13, 1976. [8a] The concurring opinion construes this ambiguous sentence to mean that the vehicle parts were located on the railroad right of way. At the suppression hearing, the affiant testified to the contrary that the vehicle parts were located outside, but near the house. Moreover, a defendant may attack an affidavit on the basis of misstatement of material facts. Commonwealth v. Wiggins, 239 Pa.Super. 256, 361 A.2d 750 (1976). [9] The Commonwealth does not allege the existence of any exigent circumstances to justify the warrantless search. Although in part of its brief the Commonwealth attempts to argue that the evidence was legally seized because it was in plain view, the Commonwealth waived this argument by failing to raise it in its answer to appellees' motion to suppress. See footnote 2, supra.

[Cite as State v. Ruppen, 2012-Ohio-4234.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA22 : vs. : Released: August 28, 2012 : MELINDA A. RUPPEN, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES: Mark W. Evans, The Law Office of Mark W. Evans, Ltd., Cincinnati, Ohio, for Appellant. James E. Schneider, Washington County Prosecuting Attorney, and Raymond E. Dugger, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. _____________________________________________________________ McFarland, J.: {¶1} This is an appeal from a Washington County Common Pleas Court judgment of conviction and sentence, which resulted from a jury verdict finding Appellant, Melinda Ruppen, guilty of possession of drugs, a fifth degree felony in violation of R.C. 2925.11(A) & (C)(4)(a). On appeal, Appellant contends that 1) the trial court committed reversible error when it admitted irrelevant and highly prejudicial testimonial and videotape evidence of other acts, crimes or wrongs in violation of the Ohio Rules of Washington App. No. 11CA22 2 Evidence; 2) Appellant’s conviction for possession of drugs is against the manifest weight of the evidence as the greater weight of the evidence indicates that Ms. Ruppen did not knowingly possess trace amounts of cocaine residue; and 3) Appellant was denied her rights under the United States and Ohio Constitutions to the effective assistance of counsel when her trial counsel failed to timely file a motion to suppress, failed to object with sufficient specificity to inadmissible evidence, and failed to timely object to inadmissible testimony. {¶2} With respect to Appellant’s first assignment of error, we find no abuse of discretion or plain error in the admission of evidence of Appellant’s false statements regarding her identity, or the admission of evidence indicating her possession of other drugs and paraphernalia, in addition to those related to the crime charged. Further, we find that any error by the trial court related to the admission of statements made by Appellant indicating she had prior incarcerations was harmless error. As such, Appellant’s first assignment of error is overruled. {¶3} With respect to Appellant’s second assignment of error, because the evidence presented at trial would permit a rational trier of fact to find beyond a reasonable doubt that Appellant knowingly possessed the cocaine found in the vehicle, we cannot conclude that Appellant’s conviction was Washington App. No. 11CA22 3 against the manifest weight of the evidence. As such, Appellant’s second assignment of error is overruled. With respect to Appellant’s third assignment of error, because Appellant has failed to demonstrate that the outcome of the trial would have been different but for the alleged errors or deficiencies of trial counsel, she has suffered no prejudice. Thus, we cannot conclude that she received ineffective assistance of counsel and we therefore overrule Appellant’s third and final assignment of error. {¶4} Having found no merit to any of Appellant’s assignments of error, the decision of the trial court is affirmed. FACTS {¶5} On December 16, 2010, Appellant, Melinda Ruppen, was indicted for possession of drugs (cocaine), a fifth degree felony in violation of R.C. 2925.11(A) & (C)(4)(a), stemming from a traffic stop in Washington County. The State agrees with the facts, as set forth in Appellant’s brief, which are essentially as follows: {¶6} On July 31, 2010, Trooper Lehman stopped Appellant’s vehicle for a safety restraint violation1 as it was traveling southbound on I-77 in Washington County. Trooper Lehman asked Appellant for identification and she responded that she did not have any, but then provided the trooper 1 We note that a review of the dashcam video indicates Appellant was initially stopped for an equipment violation, specifically, failure to display a front license plate. Washington App. No. 11CA22 4 with the name of Kristen Ruppen, and birth date in the year 1983. Appellant’s male passenger also provided the trooper his name and birth date. {¶7} Trooper Lehman claimed Appellant was nervous, and that when he went back to his patrol vehicle to look up the information provided to him, he discovered Kristin Ruppen had a birth date of 1982. As a result, he asked Appellant to come back to his vehicle and he placed her in the backseat. When asked about her birth date again, Appellant stated it was 1982. Trooper Lehman then requested the assistance of a K-9 officer. After obtaining a photo of Kristen Ruppen, Trooper Lehman confronted Appellant, who then admitted that she lied about her identity, claiming to have an outstanding seat belt ticket. {¶8} After the K-9 officer, Trooper Hickey, arrived at the scene, the troopers removed the male passenger from the vehicle, placed him in the backseat of the patrol vehicle with Appellant, and then the K-9 dog sniffed the exterior of Appellant’s vehicle. Trooper Hickey testified that the dog indicated the presence of narcotics on the passenger and driver side of the vehicle. Trooper Lehman then began a search of the vehicle, which yielded a bag of marijuana, muscle relaxers that were not a controlled substance, a cigarette pack with some filters in it, and a small, purple plastic container Washington App. No. 11CA22 5 that contained cocaine residue, all of which were located in Appellant’s purse. Trooper Lehman testified that when he took the container to Appellant and asked her what it contained, she acknowledged it was hers and admitted that it contained “crumbs of coke.” At trial, criminalist Heather Sheskey testified that she tested the residue recovered from the plastic container and that it tested positive for cocaine, which weighed less than 0.1 gram. {¶9} After hearing the evidence and viewing the dashcam video of the entire stop and search,2 the jury found Appellant guilty of possession of drugs, specifically, cocaine. Appellant was sentenced by journal entry dated August 5, 2011, and it is from this entry that Appellant now brings her timely appeal, assigning the following errors for our review. ASSIGNMENTS OF ERROR “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ADMITTED IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONIAL AND VIDEOTAPE EVIDENCE OF OTHER ACTS, CRIMES, OR WRONGS IN VIOLATION OF THE OHIO RULES OF EVIDENCE. 2 As will be discussed more fully infra under Appellant’s first assignment of error, Appellant filed a motion in limine on the morning of trial, requesting the court to exclude evidence that Appellant was in possession of marijuana, paraphernalia, muscle relaxers, and lied to the officer about her identity, claiming that such information had little probative value, was outweighed by its prejudicial effect, and was not relevant to whether Appellant knowingly possessed cocaine. Appellant further moved to exclude the end of the video, due to Appellant’s statements about a prior incarceration. The trial court denied the motion, but agreed to give a limiting instruction instructing the jury only to consider those parts of the tape relevant to the possession charge. Washington App. No. 11CA22 6 II. MS. RUPPEN’S CONVICTION FOR POSSESSION OF DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE GREATER WEIGHT OF THE EVIDENCE INDICATES THAT MS. RUPPEN DID NOT KNOWINGLY POSSESS TRACE AMOUNTS OF COCAINE RESIDUE. III. MS. RUPPEN WAS DENIED HER RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS TO THE EFFECTIVE ASSISTANCE OF COUNSELWHEN HER TRIAL COUNSEL FAILED TO TIMELY FILE A MOTION TO SUPRESS, FAILED TO OBJECT WITH SUFFICIENT SPECIFICITY TO INADMISSIBLE EVIDENCE, AND FAILED TO TIMLY [SIC] OBJECT TO INADMISSIBLE TESTIMONY.” ASSIGNMENT OF ERROR I {¶10} In her first assignment of error, Appellant contends that the trial court committed reversible error when it admitted irrelevant and highly prejudicial testimonial and videotape evidence of other acts, crimes, or wrongs in violation of the Ohio Rules of Evidence. Specifically, Appellant contends that portions of the dashcam video shown to the jury, as well as testimony by the arresting officer, contained highly prejudicial evidence that was irrelevant to the charged crime, possession of drugs. {¶11} The record reveals that this issue was the subject of a motion in limine filed the morning of trial, which was denied by the trial court, partly based upon reasons of judicial economy due to the untimeliness of the filing, and also based upon the trial court’s decision that the evidence at issue was relevant and admissible. The State’s brief on appeal does not address the Washington App. No. 11CA22 7 merits of Appellant’s assignment of error, other than to state that a ruling on a motion in limine is not appealable. “A motion in limine is a prospective order and makes no determination as to the ultimate admissibility of the evidence.” Rowan v. City of Tallmadge, 9th Dist. No. 16876, 1995 WL 569114 (Sept. 27, 1995); citing Krosky v. Ohio Edison Co., 20 Ohio App.3d 10, 14, 484 N.E.2d 704 (1984). “ ‘An order in limine, therefore is a preliminary ruling and is not a basis for error on appeal. This court’s review, therefore, will not encompass an alleged violation of an in limini order, but the ultimate ruling made during trial when the matter presented itself for evidentiary ruling.’ ” Rowan; citing Regec v. Johnson, 9th Dist. No. CA15838, 1993 WL 89700 (Mar. 31, 1993). {¶12} Thus, we turn our attention to whether the trial court properly admitted the evidence at issue during the trial of the matter, not whether it properly ruled on the motion in limine. “A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14; citing State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33. Abuse of Washington App. No. 11CA22 8 discretion is more than an error of law or judgment; rather, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 762 N.E.2d 940; State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When an appellate court applies this standard, it must not substitute its judgment for that of the trial court. State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672, ¶ 12; In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991); citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). {¶13} Further, Evid. R. 403(A) provides that relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. “The trial court has broad discretion in balancing the probative value against the danger of unfair prejudice, and its determination will not be disturbed on appeal absent a clear abuse of discretion.” State v. Reeves, 2nd Dist. No. 16987, 1999 WL 129469, * 7 (Mar. 12, 1999). {¶14} Here, Appellant primarily challenges the admission of evidence that 1) she lied to Trooper Lehman concerning her identity during the traffic stop; 2) she admitted possession of unrelated drugs and drug paraphernalia; and 3) she had twice been to jail before. Appellant argues that this evidence 1) was not relevant; 2) was inadmissible under the general prohibition of Washington App. No. 11CA22 9 character evidence; and 3) that even if the evidence was relevant, the danger of its prejudicial effect on the jury substantially outweighed its probative value. Appellant further argues that the error in the admission of this evidence cannot be considered harmless error, citing the “lack of other substantial incriminating evidence,” and references the argument raised under her second assignment of error, which contends her conviction was against the manifest weight of the evidence. EVIDENCE OF APPELLANT’S LIE TO TROOPER LEHMAN CONCERNING HER IDENTITY {¶15} Appellant claims that evidence she lied to Trooper Lehman concerning her identity was not relevant to the commission of the crime for which she was convicted, and that even if relevant, it should not have been admitted because the danger of unfair prejudice outweighed its probative value. This evidence was admitted in two ways, 1) trooper testimony, which was not objected to during trial, and 2) the videotape evidence, which was objected to by counsel. Because Appellant’s counsel failed to object to its admission at trial via the testimony of the trooper, we review the admission of this evidence under a plain error standard. {¶16} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the Washington App. No. 11CA22 10 attention of the court .” For a reviewing court to find plain error, the following three conditions must exist: 1) an error in the proceedings; 2) the error must be plain, i.e., the error must be an “obvious” defect in the trial proceedings; and 3) the error must have affected “substantial rights,” i.e., the trial court's error must have affected the outcome of the trial. See, e.g., State v. Noling, 98 Ohio St.3d 44, 56, 2002-Ohio-7044, 781 N.E.2d 88; State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; State v. Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001); State v. Hill, 92 Ohio St.3d 191, 200, 749 N.E.2d 274 (2001). {¶17} Furthermore, the Supreme Court of Ohio has stated that Crim.R. 52(B) is to be invoked “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990); see, also, State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus (1978). A reviewing court should consider noticing plain error only if the error “ ‘ “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” ’ ” Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240; quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770 (1993); quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391 (1936). Washington App. No. 11CA22 11 {¶18} Initially, we note that we agree with the trial court’s determination that the admission of this evidence was relevant, as it indicated to the jury that Appellant had something to hide, and it also established the basis for the drug dog to be called and for the investigation to continue. Thus, we reject Appellant’s argument that this evidence was not relevant to the crime for which she was ultimately convicted. {¶19} Further, in light of Appellant's identification of the recovered drugs as “crumbs of coke,” coupled with her admission that they belonged to her, we believe that the evidence indicating she lied to the trooper, while likely prejudicial to Appellant, did not seriously affect the fairness of the judicial proceedings. State v. Moon, 4th Dist. No. 08CA875, 2009-Ohio- 4830, ¶ 43. As we will discuss further under Appellant’s second assignment of error, substantial evidence supports her conviction. As such, any error associated with the admission of this evidence did not affect the outcome of the proceedings and does not, therefore, rise to the level of plain error. Id. EVIDENCE OF APPELLANT’S PRIOR INCARCERATION AND OTHER CONTRABAND FOUND IN HER VEHICLE. {¶20} Appellant contends that the admission of her statements caught on video regarding the fact that she had had prior incarcerations, as well as the admission of evidence that other drugs and paraphernalia were recovered Washington App. No. 11CA22 12 from her vehicle, constituted inadmissible character evidence. She further contends that this evidence was not relevant, and that the only purpose of the evidence was “to demonstrate that [she] acted in conformity with the underlying charged crime.” {¶21} As Appellant objected to the admission of this evidence at trial, we revert to the abuse of discretion standard. As we set forth above, while we are mindful that relevant evidence is only admissible under Evid.R. 403(A) if its probative value is not outweighed by the danger of unfair prejudice, “[t]he trial court has broad discretion in balancing the probative value against the danger of unfair prejudice, and its determination will not be disturbed on appeal absent a clear abuse of discretion.” State v. Reeves, supra. {¶22} We again reject Appellant’s assertion that the evidence at issue is not relevant. Evid.R. 404 provides in section (B) that while “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added). The fact that Appellant, at the time of her traffic stop, was also in possession of other drugs and paraphernalia certainly is relevant Washington App. No. 11CA22 13 to whether she also knowingly possessed cocaine. As such, we conclude that this evidence was admissible under Evid.R. 404(B), and that the trial court did not abuse its discretion in allowing it to be admitted. {¶23} However, we agree with Appellant that admission of her statements regarding her prior incarcerations were not admissible. We note, however, that upon reviewing the entire dashcam video, we were unable to discern any statements by Appellant indicating prior incarcerations. The trial transcript indicates that these statements occurred 47 minutes into the video, but we were unable to hear anything on the audio indicating such a statement. Further, although the trial court denied the motion in limine, during the playing of the video during the trial, the prosecution agreed to stop the tape after Appellant’s confession. Thus, the portion of the video after the confession which contains statements regarding prior incarcerations was not played for the jury. {¶24} Nonetheless, even assuming that these statements were audible on the video, and that the jury heard them, as explained above, because Appellant’s conviction was otherwise supported by substantial evidence, which included Appellant’s own admission to owning the cocaine recovered from her vehicle, Appellant cannot show that she was materially prejudiced by the admission of this evidence. Thus, even assuming that the trial court Washington App. No. 11CA22 14 erred and abused its discretion, particularly in the admission of the statements regarding Appellant’s prior convictions, such admission was harmless error. Accordingly, Appellant’s first assignment of error is overruled. ASSIGNMENT OF ERROR II {¶25} In her second assignment of error, Appellant contends that her conviction for possession of drugs is against the manifest weight of the evidence, arguing that the greater weight of the evidence indicates that she did not knowingly possess trace amounts of cocaine residue. The State counters by arguing that the drugs were found pursuant to a legal search conducted after a valid traffic stop, and that once the drugs were found, Appellant admitted they belonged to her. {¶26} “When an appellate court considers a claim that a conviction is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the evidence, and consider the credibility of witnesses. The reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve.” State v. Puckett, 191Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 32; citing State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus Washington App. No. 11CA22 15 (1967). “If the prosecution presented substantial evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established, the judgment of conviction is not against the manifest weight of the evidence.” State v. Puckett at ¶ 33; citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132, syllabus (1978), (superseded on other grounds). We will reverse a conviction only in the “exceptional” case where the evidence weighs heavily against the conviction and it appears that the fact-finder, when resolving conflicts in the evidence, “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 54 (1997); quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). {¶27} R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance.” The jury found Appellant guilty of the (C)(4)(a) subsection, which defines possession of “cocaine or a compound, mixture, or preparation, or substance containing cocaine” as a felony of the fifth degree. “Possession of a drug may be either actual physical possession or constructive possession.” State v. Pullen, 2nd Dist. No. 24620, 2012-Ohio-1858, ¶ 36; citing State v. Butler, 42 Ohio St.3d 174, 538 N.E.2d 98 (1989). “A person has constructive possession of an item Washington App. No. 11CA22 16 when he is conscious of the presence of the object and able to exercise dominion and control over that item, even if it is not within his immediate physical possession.” Pullen at ¶ 36; citing State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982). {¶28} “In determining whether a defendant knowingly possessed a controlled substance, it is necessary to examine the totality of the facts and circumstances surrounding its discovery.” Pullen at ¶ 37; citing State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998); State v. Pounds, 2nd Dist. No. 21257, 2006-Ohio-3040. Here, Appellant does not challenge the validity of the traffic stop, or the subsequent search that was conducted. Rather, she limits her argument on appeal to the contention that she “did not knowingly possess cocaine at the time at which she had either actual or constructive possession of it.” She premises her contention on an argument that because the amount of the cocaine was so small that it could not be weighed, that she could not have “knowingly” possessed it. Thus, Appellant essentially challenges the trial court’s finding that she “knowingly” possessed cocaine, as required by R.C. 2925.11(A). {¶29} In State v. Teamer, supra at 491, the Supreme Court of Ohio considered the certified issue of “whether the amount [of the controlled Washington App. No. 11CA22 17 substance] is a factor in determining the crime of drug abuse.”3 The Court ultimately held that “[t]he quantity of a controlled substance is not a factor in determining whether a defendant may lawfully be convicted of drug abuse, in violation of R.C. 2925.11(A)” Id. at syllabus. In reaching this decision, the Court reasoned that “the unambiguous language of R.C. 2925.11 punishes conduct for the possession of any amount of a controlled substance.” Id. at 491. The Court further found that “[a]s long as there is scientifically accepted testimony from which a factfinder could conclude beyond a reasonable doubt that a controlled substance was present, a conviction for drug abuse pursuant to R.C. 2925.11(A) will not be reversed based upon the amount of contraband involved.” Id. at 492. {¶30} The relevant and probative evidence introduced by the State included: 1) Appellant’s inculpatory statements made on video, and to the troopers after the drugs were found, in which she identified the drugs as cocaine and admitted they belonged to her; and 2) the testimony of the trooper who found the cocaine in Appellant’s purse, which was located in the vehicle from which Appellant was removed; and 3) the testimony of the criminologist, who confirmed that the substance at issue was cocaine. 3 Although Teamer focused on “drug abuse” rather than “possession of drugs,” we find the reasoning and holding to be applicable to “possession of drugs,” which is at issue sub judice. Washington App. No. 11CA22 18 {¶31} After reviewing the record before us, we cannot conclude that this is one of the exceptional cases where the evidence weighs heavily against the jury verdict. When viewed in light most favorable to the prosecution, and in light of the reasoning of Teamer, this combination of direct and circumstantial evidence clearly permits a rational trier of fact to find beyond a reasonable doubt that Appellant knowingly possessed the cocaine found in the vehicle. Further, we simply reject Appellant’s assertion that because she denied having possession of any illegal substances throughout the duration of the search, and only admitted to owning them after they were found, that she did not “knowingly” possess cocaine. Accordingly, Appellant’s second assignment of error is overruled. ASSIGNMENT OF ERROR III {¶32} In her third assignment of error, Appellant contends that she was denied her right to the effective assistance of counsel when her trial counsel failed to timely file a motion to suppress, failed to object with sufficient specificity to inadmissible evidence, and failed to timely object to inadmissible testimony. The State responds by arguing that there is nothing to indicate that a successful motion to suppress would have changed the outcome of the jury’s guilty finding, and that the properly admitted Washington App. No. 11CA22 19 testimony of the trooper and criminologist alone was more than sufficient for the jury to have found Appellant guilty beyond a reasonable doubt. {¶33} In order to prove a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient, i.e., not reasonably competent, and that counsel's deficiencies prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus (1989). When considering whether trial counsel's representation amounts to deficient performance, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. {¶34} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel's errors, the result of the trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus (1989). Furthermore, courts should not simply assume the existence of prejudice, but require that it be affirmatively shown. See State v. Hairston, 4th Dist. No. 06CA3089, 2007-Ohio-3707, ¶ Washington App. No. 11CA22 20 16; citing State v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592, 2002 Ohio-1597; State v. Kuntz, 4th Dist. No. 1691, 1992 WL 42774 (Feb. 26, 1992). If one prong of the Strickland test disposes of a claim of ineffective assistance of counsel, we need not address both aspects. State v. Martin, 4th Dist. No. 06CA3110, 2007-Ohio-4258, ¶ 21. {¶35} As we stated earlier, the admission or exclusion of evidence rests within the sound discretion of the trial court. As such, absent an abuse of discretion, we will not disturb a trial court's ruling regarding the admissibility of evidence. Having overruled Appellant’s challenges raised herein, we cannot conclude that trial counsel’s failure to object to the complained of portions of the trooper testimony and video tape changed the outcome of the trial. Further, considering that Appellant identified the drugs found and admitted to ownership of them, we cannot conclude that a successful motion to suppress on other grounds would have changed the outcome of the trial. Thus, Appellant cannot establish prejudice. State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 73; See also State v. Parker, 4th Dist. No. 03CA43, 2004-Ohio-1739, 2004 WL 728249, ¶ 13 (concluding that in light of overwhelming evidence of guilt, defendant could not establish prejudice resulting from counsel's alleged Washington App. No. 11CA22 21 ineffectiveness); State v. Hester, 10th Dist. No. 02AP-401, 2002-Ohio-6966, ¶ 16 (finding that overwhelming evidence of guilt prevented defendant from proving that result would have been different). {¶36} As such, even assuming arguendo that trial counsel’s representation constituted deficient performance, because we find no prejudice occurred as a result, we cannot conclude that Appellant received ineffective assistance of counsel. Accordingly, Appellant’s third and final assignment of error is overruled. JUDGMENT AFFIRMED. Washington App. No. 11CA22 22 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, P.J. and Kline, J.: Concur in Judgment and Opinion. For the Court, BY: _________________________ Matthew W. McFarland, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 

BLD-374 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 14-1711 ___________ JOHNSON OBIEGBU, Appellant v. WARDEN LORETTO FCI; DR. J. TRIMBATH, Medical Director; S. BURKE, Physician Assistant; DR. SHEDLOCK, Optometrist; DR. MICHAEL CASH, Medical Director; DR. HOWARD, Opthamologist; RODGRIGUEZ MIRALLES, HSS, IOP/IDC; CRAIG WIRFEL, Counselor ____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 3-10-cv-00277) District Judge: Honorable Kim R. Gibson ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 September 5, 2014 Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges (Opinion filed: September 16, 2014 ) _________ OPINION _________ 1 PER CURIAM Pro se litigant Johnson Obiegbu, proceeding in forma pauperis, appeals the District Court’s order granting summary judgment to Defendant Craig Wirfel. For the reasons set forth below, we will summarily affirm the District Court’s judgment. On July 13, 2010, an inmate named Solomon was transferred into the 8-man cell in which Obiegbu was housed at the Federal Correctional Institute in Loretto, Pennsylvania. The following month, Solomon complained to prison medical staff about itchiness and was diagnosed with scabies on August 17.1 He was quarantined and prescribed medication for the condition. On August 31, he was evaluated as in remission and released from isolation. In the meantime, Obiegbu filed a grievance complaining about the “psychological and emotional injury” he sustained as a result of being housed alongside someone later diagnosed with scabies. In May of 2011, approximately nine months after Solomon’s brief time in his cell, Obiegbu was transferred to the United States Penitentiary, Canaan, and was diagnosed with scabies. Obiegbu initiated this action in the Western District of Pennsylvania in November 2010, asserting a number of constitutional violations against eight defendants, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The District Court granted the Defendants’ motion to dismiss the complaint as to 1 According to an exhibit submitted by Obiegbu and attributed to the Mayo Clinic, scabies is an itchy skin condition caused by a mite. Solomon had been treated for scabies at his previous facility, but the condition was considered resolved. Solomon did in fact complain about itchiness at Loretto prior to the August diagnosis of scabies, but his itchiness had been attributed to other maladies, including “dermatitis/eczema due to unspecified cause” and “possible psoriasis.” 2 all defendants and claims with one exception: Obiegbu’s claim that Wirfel deliberately exposed him to scabies in retaliation for the grievances he had filed against Wirfel. Discovery was conducted on this one remaining claim, after which Wirfel moved for summary judgment. The Magistrate Judge recommended granting that motion.2 Obiegbu filed objections to the Magistrate Judge’s report, but the District Court was unpersuaded by them. It granted Wirfel’s motion for summary judgment, and Obiegbu filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the District Court’s order granting summary judgment to Wirfel. See State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). To prove that prison officials retaliated against a prisoner for exercising his constitutional rights, the prisoner must show: (1) he had engaged in constitutionally- protected conduct; (2) he suffered adverse action by prison officials that is sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a causal link between the exercise of the constitutional right and the adverse action taken against him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); see also Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002). Assuming, arguendo, that Obiegbu has presented evidence with respect to the first and second criteria, it is the third criterion on which this claim collapses. 2 The Magistrate Judge opined that a First Amendment claim for retaliation, such as the one at bar, may not be cognizable under Bivens. He therefore chose to construe the complaint as an Eighth Amendment claim for deliberate indifference to serious medical needs. Obiegbu protests that approach. Because his complaint fails even under the First Amendment retaliation rubric (described infra), we need not, and do not, decide that question here. 3  Obiegbu claims that Wirfel knowingly exposed him to scabies in order to punish him for filing grievances. But Obiegbu has not presented any evidence that Wirfel actually knew Solomon had scabies at the time of the transfer. Obiegbu points to a “copout” from Robert Kutzer (who was housed with Obiegbu and Solomon) to a case manager named Mr. Perehinec, which noted that Solomon seemed itchy and asked whether he had been diagnosed with anything contagious. The copout is dated August 11, 2010. This August document between Kutzer and Perehinec says nothing about the issue in question, namely whether Wirfel knew Solomon had scabies at the time Solomon entered Obiegbu’s cell. Wirfel, for his part, has presented considerable evidence that he did not know. His sworn declaration indicates that he does not have access to inmates’ medical records. Indeed, Solomon’s medical records are offered to this Court only for in camera review. Furthermore, declarations from the prison health systems administrator and Solomon himself demonstrate that even if Wirfel did have access to Solomon’s medical records, there would have been nothing to read in this regard; Solomon was not diagnosed with or even suspected of having scabies until a month after he was transferred to Obiegbu’s cell. Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A dispute is “genuine” only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. See Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014). Because Obiegbu has presented no evidence to suggest that Wirfel knew Solomon had scabies at the time of the transfer, he 4 has failed to provide a sufficient evidentiary basis on which a reasonable jury could find the necessary causal link between his grievance-filing and his subsequent exposure to scabies. Without this critical element, a reasonable jury could not find retaliation. See Hill v. Lappin, 630 F.3d 468, 475 (6th Cir. 2010) (stating that to survive summary judgment on First Amendment retaliation claim, some evidence of retaliatory motive is required, and conclusory allegations unsupported by material facts will not suffice); see also Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir. 2003) (concluding that First Amendment retaliation claim fails at summary judgment because there was no evidence suggesting an intent to retaliate caused or contributed to the adverse action). Accordingly, we will affirm the District Court’s grant of summary judgment to Wirfel. 5 

703 F.2d 568 U. S.v.Lynch 81-5702 UNITED STATES COURT OF APPEALS Sixth Circuit 6/3/82 1 E.D.Ky. AFFIRMED

64 Cal.2d 489 (1966) In re EDGAR G. LANGFORD on Suspension of License. L. A. No. 28598. Supreme Court of California. In Bank. Apr. 26, 1966. Thomas Whelan, J. Robert O'Connor, James M. Lane and J. Perry Langford for Petitioner. F. LaMar Forshee and Herbert M. Rosenthal for Respondent. THE COURT. Petitioner, a member in good standing of the State Bar since his admission in 1927, pleaded guilty to and was convicted of selling securities without a permit in violation of subdivision (a) of section 26104 of the code. He was sentenced to imprisonment in the county jail for one year, probation was granted, the terms of probation have been fulfilled and the probationary period has expired. The questions whether the crime of which petitioner was convicted, or the circumstances of its commission, involved moral turpitude were referred by this court to the State Bar. (Bus. & Prof. Code, 6102.) Following a hearing before a *491 local administrative committee, which recommended suspension for three years, the Board of Governors of the State Bar found that petitioner had made fraudulent representations in connection with the commission of the crime and that such conduct involved moral turpitude. It recommends that we suspend petitioner from the practice of law for the period of one year. Petitioner, who at the times here involved was 59 years of age, has practiced law continuously in the City of San Diego for a period of 30 years. He specializes in defending persons charged with crimes, and during the course of his professional career has defended in criminal cases involving fraud by trick or device, in "pigeon drop" and in bunco cases including fixed horse races, card and dice games.petitioner has also defended a client against charges of violations of the Corporate Securities Act by the selling of undivided interests in patents. As will be seen the crime of which petitioner was convicted involved similar charges. Roy L. Snavely, petitioner's codefendant in the criminal proceedings, had been a client of petitioner since 1950.petitioner defended him against charges of issuing bad checks and failure to provide support, and had represented him as a judgment debtor in civil proceedings in 1960. As a result of this latter representation petitioner became familiar with an interest which Snavely claimed as an inventor in a baby crib-playpen device known as the "Karry Krib." The crib was then being manufactured by a corporation which experienced financial difficulties, and shortly thereafter ceased production. As an officer of the company Snavely had guaranteed certain of its obligations and became personally liable therefor. The firm evidently had no exclusive right to the crib and petitioner informally agreed to represent Snavely in further attempts to exploit the device. After an unsuccessful attempt to refinance the existing operation for production of the crib, Snavely, on December 6, 1960, with petitioner's assistance, executed an assignment of all of his interest in the crib to one Jack Kaufman. This assignment was made only as a convenience to the parties concerned in forestalling Snavely's creditors, and Kaufman was to obtain only legal title without the full equitable interest. Thereafter on December 9, 1960, Kaufman and the American Marketing Associates, Inc., entered into an agreement for the manufacture and sale of the crib.petitioner was present at discussions leading up to the agreement. He did not consider the Snavely- Kaufman assignment to be a transfer in fraud of *492 creditors because "it had no value per se ... the patent hadn't been issued." The American Marketing Associates, Inc., was required under the agreement to manufacture, market and sell in good faith, but was not required to actually manufacture or sell any specific number of cribs. The agreement provided for a $1.00 royalty to be paid to Kaufman on each of the first 50,000 cribs sold. The understanding between Kaufman, Snavely and petitioner was that 10 of each $1.00 royalty was to go to each of them, 40 to Snavely's creditors, and the remaining 30 to other persons. On December 12, 1960, petitioner prepared and Kaufman executed two 5 royalty assignments to Snavely. The first royalty payment under the contract was due April 20, 1961. On or about December 12, 1960, petitioner and Snavely first visited Jane V. Scarpitti at her home in connection with the sale of a royalty interest in the contract with the American Marketing Associates, Inc. After discussions that evening and, according to Mrs. Scarpitti the following evening, petitioner drew an instrument by which Snavely assigned one of his 5 royalties to Mr. and Mrs. Scarpitti.petitioner's conviction is predicated upon his participation in the issuance of the instrument representing this 5 royalty. [1a] There is some conflict in the record as to the time and nature of discussions which were had between petitioner and Snavely, on the one hand, and Mrs. Scarpitti on the other. It substantially appears, however, that the American Marketing Associates, Inc., contract was exhibited and read to her; that petitioner attempted to sell her a 5 royalty for $1,500, which he represented to be worth from $1,500 to $2,500; that he told her "the royalties were worth one thousand dollars a penny but because his client was pressed for money he was offering it to ... [her] very reasonably at five hundred dollars a penny"; that he represented "there would be on the market many cribs by the following month, the middle of the month, which would have been January, 1961," and she "should start to receive her first royalty check the end of March or the first week of April"; that there were then in a factory some 2,400 cribs in the process of manufacture.petitioner did not explain to Mrs. Scarpitti that the American Marketing Associates, Inc., was not firmly committed to produce the crib "Because it never occurred to [him] that any such thing was at all likely to occur." Between the dates of December 15, 1960, and January 3, *493 1961, Mrs. Scarpitti paid Snavely approximately $6,100, transferred to him her title to a used truck, and delivered to him a chinchilla fur stole and 78 chinchilla fur pelts, in payment for assignments of royalty interest which brought her total royalty holdings under the American Marketing Associates, Inc., contract to 50 of each royalty dollar. While petitioner did not directly participate in these transactions Mrs. Scarpitti testified that he nevertheless assured her at a later date that "you will get your fifty cents royalties just as soon as we find someone to manufacture and market these cribs." The American Marketing Associates, Inc., contract was abandoned without the payment of any royalties or the manufacture of any cribs. In April, when it became apparent that Mrs. Scarpitti's investments were not wisely made, petitioner and Snavely came to her home to discuss the matter.petitioner told her about an opportunity to recoup her losses in a Mexican gold importing venture, and advised her that he had investigated the law and procedures relating to the importation of gold, and had arranged for the testing of samples. The plan was to purchase gold from Indians in Mexico for $20 an ounce and sell it to the United States Government for $35 an ounce.petitioner represented to Mrs. Scarpitti that $1,500 was initially required as "front money" to finance a trip to Chicago by Snavely, so that he could make arrangements with the major investors. She advanced the $1,500 and received a written, personal guarantee from petitioner. Later in April Mrs. Scarpitti withdrew $8,000 from an account and she, Snavely and others went to Calexico for the purpose of purchasing a gold brick. During some transactions at the border Mrs. Scarpitti's funds disappeared after changing hands several times but never reaching those of the prospective seller. On still a later occasion petitioner again contacted Mrs. Scarpitti and advised her that sellers in Mexico were ready to proceed, thus affording her an opportunity to recoup her first gold transaction loss. On this occasion she, petitioner and Snavely went to Tijuana and she purchased for $3,000 what was represented by a Mexican to be a gold ingot. The ingot turned out to be of some other metal. The foregoing accounts of the crib and gold transactions are disputed by petitioner in material respects. While it is true that some of Mrs. Scarpitti's testimony before the local administrative committee is conflicting, it nevertheless is of sufficient substantial character that findings based thereon *494 must be deemed to be properly grounded. Significantly, the board found, in connection with the crib transaction: "At that time [petitioner] told Mrs. Scarpitti that there would be many cribs on the market 'by the following month' and that Mrs. Scarpitti would receive her first royalty check at the end of March or the first week in April 1961; he represented to Mrs. Scarpitti that such royalty interest was worth one thousand dollars a penny or five thousand dollars, and that it was being offered to Mrs. Scarpitti below its actual value because his client, Snavely, was pressed for money. Each of said statements was unwarranted by the facts, was false and misleading, was known to [petitioner] to be such, and was made by [petitioner] with intent to induce Mrs. Scarpitti to purchase the royalty interest from Snavely. ... Mrs. Scarpitti's said purchase was induced by the statements of [petitioner] above set forth and by her confidence in [petitioner] as a long established attorney at law in San Diego." In view of the record we can only conclude that petitioner has failed in his burden to show that the findings of the Board of Governors are not supported by the evidence. (In re Hallinan, 48 Cal.2d 52 [307 P.2d 1].) It should be noted, however, that there are no specific findings of fraudulent practices on the part of petitioner in connection with the gold transaction. [2] Petitioner seeks to escape responsibility by the fact that the nature of the contract with the American Marketing Associates, Inc., was not concealed from, and in fact was made available to Mrs. Scarpitti, and that the clear meaning of the contract negated any implication that the company was irrevocably committed to manufacture cribs and produce royalties. Thus, it is claimed, it cannot reasonably be concluded that Mrs. Scarpitti knowingly purchased something other than what she got, that is, an opportunity to share in royalties of a speculative nature. Petitioner's contention is not supported by the record. There is nothing therein from which we may conclude that Mrs. Scarpitti understood the nature of the commitment of the American Marketing Associates, Inc. The agreement does not expressly provide that the company is committed to produce and sell no cribs, and such fact is ascertainable only by what is omitted from rather than what is included in the provisions of the agreement. While it is thus indicated that a legal construction of the agreement is required in order to fully understand it, the only professional views made available to Mrs. Scarpitti were those of petitioner. He assigned a firm *495 value to the royalties, indicated that the cribs were in actual production and would be on the market within a month, and that a royalty payment would be made on a fixed date. Moreover, it was found that she relied upon such representations in view of petitioner's standing as an attorney. Accordingly, it cannot be realistically concluded, as petitioner would have us conclude, that Mrs. Scarpitti knew or reasonably should have known that the royalties had only speculative value. Petitioner also contends that his conduct did not involve moral turpitude, within the legal meaning of that concept. Accepting the factual findings of the Board of Governors, as we are persuaded we should, it follows that at the very least petitioner concealed or suppressed material facts which would have influenced Mrs. Scarpitti's decision, and made misrepresentations, termed as errors in judgment, which he knew or should have known were inaccurate. "Petitioner contends that moral turpitude cannot be predicated upon errors of judgment made in good faith by an attorney. In view of his superior knowledge of the condition of the [company] at the time he suggested to Mrs. Schmidt that it would be a better investment for her than paying off her mortgage, it was his duty to disclose such facts to her even in the absence of the attorney-client relationship. [Citations.] The evidence would support an implied finding that he acted in bad faith in recommending the investment." (Krieger v. State Bar, 43 Cal.2d 604, 610 [275 P.2d 459]; see also Grove v. State Bar, 63 Cal.2d 312, 315 [46 Cal.Rptr. 513, 405 P.2d 553]; Scofield v. State Bar, 62 Cal.2d 624, 629 [43 Cal.Rptr. 825, 401 P.2d 217].) But, petitioner further contends, because he did not participate in or contemplate any personal gain or profit from the transaction, he cannot be guilty of an act involving moral turpitude, citing In re Clark, 52 Cal.2d 322 [340 P.2d 613]. It is said in that case at page 324: "Although violations of the Corporate Securities Act are essentially malum prohibitum rather than malum in se, it does not follow that they may not involve moral turpitude. If they are not merely technical, but are accompanied by an intent to evade the act with the object of gain or profit, they involve moral turpitude." [3] We do not read the Clark case to hold that in those instances of a violation of the Corporate Securities Act moral turpitude is involved only where the objective is personal gain or profit. While such conduct most assuredly involves moral turpitude, it does not encompass the full range of fraudulent intent which may accompany a violation of that act or the *496 commission of any other crime. Moreover, while it appears that none of Mrs. Scarpitti's funds were transferred directly to petitioner, he nevertheless was personally involved in the crib venture to an extent beyond that of an attorney rendering counseling or other professional services. He was, for all practical purposes, engaged in a joint venture with Snavely from whom he had acquired, through Kaufman, a royalty interest in his own behalf. Snavely profited considerably from petitioner's activities and petitioner must be deemed to have personally gained therefrom by virture of the interests which he acquired in consideration, at least in part, for inducing Mrs. Scarpitti to transfer her funds to Snavely. [4] Finally, we fail to distinguish the impropriety of fraudulent conduct on the part of an attorney for reasons of personal gain from that for reasons of the gain of his client. It is further contended by petitioner that the findings involving the importation of gold from Mexico are improper and irrelevant to the issues. We must agree with petitioner that standing alone these matters as found by the Board of Governors do not constitute grounds for disciplinary action. [5] However, there is no impropriety in considering these matters as a part of the circumstances of the commission of the crime of which petitioner was convicted. The gold transactions occurred within a short time after the criminal offense in question, and were proposed by petitioner to Mrs. Scarpitti as a means of recouping her losses resulting from the fraudulent sale of securities. Certainly, on the record an investigation of the gold transactions is justified under the direction of subdivision (b) of section 6102 of the Business and Professions Code which requires that we discipline an attorney if we find moral turpitude not only in the crime itself, but also the "circumstances of its commission." In conviction cases we have heretofore considered dismissed and pending criminal charges, in addition to the charge of which the attorney was convicted, in resolving the question of moral turpitude. (In re Freiburghouse, 52 Cal.2d 514 [342 P.2d 1]; In re Clark, 52 Cal.2d 322 [340 P.2d 613]; In re Rothrock, 25 Cal.2d 588 [154 P.2d 392].) In the instant case the gold transactions were the basis of additional counts in the criminal proceedings which were dismissed upon petitioner's plea of guilty of the violation of the Corporate Securities Act. While the Board of Governors were entitled to consider the gold transactions it appears that they attached no particular significance thereto and made no findings of specific impropriety in that connection. We are of the view that the findings *497 which were made in this connection demonstrate extreme gullibility on the part of both petitioner and Mrs. Scarpitti, but on the record presented such findings have little bearing on the issues presented, and we have given them little if any weight in our resolution of the issues. [1b] Petitioner has failed to sustain his burden of demonstrating lack of support for or lack of justice in the recommendation of the Board of Governors (Haley v. State Bar, 60 Cal.2d 404, 405 [33 Cal.Rptr. 609, 385 P.2d 1]), and that recommendation appears to be fair, just and appropriate. (See Johnstone v. State Bar, ante, pp. 153, 158 [49 Cal.Rptr. 97, 410 P.2d 617]; In re Clark, supra, 52 Cal.2d 322, 329; Krieger v. State Bar, supra, 43 Cal.2d 604, 611.) We are persuaded for the foregoing reasons that petitioner's conduct in inducing Mrs. Scarpitti to purchase a royalty interest which he should have known to have only a speculative value was fraudulent, and involved moral turpitude as well as a violation of the Corporate Securities Act. It is ordered that petitioner be suspended from the practice of law for a period of one year, the order to become effective 30 days after the filing of this opinion.

145 F.3d 1337 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.Lawrence DESHAW and Betty Deshaw, Plaintiffs-Appellees,v.BELLETTE HOFMANN FINE ART, INC., Bellette Hofmann, Defendants,andDorianne HUTTON, Defendant-Appellant. No. 96-36248.D.C. No. CV-94-116-BLG-JDS. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 1998.Decided May 18, 1998. Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding. Before HUG, REINHARDT, and SILVERMAN, Circuit Judges. 1 MEMORANDUM* 2 Dorianne Hutton appeals from the district court's denial of her motion to set aside a $813,582.00 default judgment. The motion to set aside the default judgment raised the alternative grounds of lack of personal jurisdiction and excusable neglect. Although we agree with the district court that it has personal jurisdiction over Hutton, we hold that the district court erred in denying the motion to set aside judgment for excusable neglect pursuant to Fed.R.Civ.P. 60(b)(1). Accordingly, we affirm in part, reverse in part, and remand to the district court for proceedings consistent with this decision. I. Personal Jurisdiction 3 The district court's determination that it had personal jurisdiction over Hutton is a question of law reviewed de novo. Electrical Specialty Co. v. Road and Ranch Supply, Inc., 967 F.2d 309, 311 (9th Cir.1992). However, we accept the district court's factual findings on jurisdictional issues unless clearly erroneous. Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir.1993). 4 Jurisdiction must comport with the state long-arm statute and with the constitutional requirements of due process. Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1404-05 (9th Cir.1994); State of North Dakota v. Newberger, 188 Mont. 323, 613 P.2d 1002, 1004 (Mont.1980). The requirement of the Montana long-arm statute that is applicable here is Mont. R. Civ. P. 4(B)(1)(b). Hutton's alleged acts resulted in the accrual of a tort in Montana. See Bi-Lo Foods, Inc. v. Alpine Bank, No. 97-090, 1998 WL 88454 (Mont. Feb.24, 1998), at * 5 (citing Scanlan v. Norma Projektil Fabrik, 345 F.Supp. 292, 293 (D.Mont.1972)). 5 Federal due process requirements are satisfied if: (1) Hutton conducted activities that purposefully availed herself of the jurisdiction; (2) the Deshaws' claims arise out of Hutton's forum-related activities; and (3) the exercise of jurisdiction is reasonable. Fireman's Fund Ins. Co. v. National Bank of Cooperatives, 103 F.3d 888, 894 (9th Cir.1996). 6 Here, Hutton never set foot in Montana, nor were her activities in Montana so substantial and continuous that they subjected her generally to personal jurisdiction there. However, the district court properly concluded that in relation to the specific causes of action in question, Hutton purposefully availed herself of the jurisdiction through acts she directed at the forum. 7 It is undisputed that Hutton knew that the paintings and their owner were physically located in Montana when she opined on their authenticity. It was not a fortuity that Hutton's certificates of authenticity wound up in Montana; she mailed them to Montana. The district court found that Hutton telephoned Deshaw in Montana 10 to 12 times annually to offer advice about purchases of art in general. As for the specific paintings in question, Hutton phoned Deshaw in Montana to assure him that the Dalis were genuine. The district court correctly concluded that taken together, Hutton's allegedly tortious acts, although not committed in Montana, resulted in the accrual of a tort in Montana. See Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392, 1397 (9th Cir.1986). Moreover, Hutton has presented no compelling reason why jurisdiction would be unreasonable. See Haisten, 784 F.2d at 1397. II. Default Judgment 8 Hutton next argues that the district court erred in refusing to set aside the default judgment entered against her. We agree. The default judgment was entered on October 19, 1995. Hutton learned about her default for the first time on October 28, 1995 when she received a copy of the judgment in the mail. Thirteen days later, Hutton brought her motion to set aside the judgment. 9 No one suggests that Hutton intentionally defaulted. To the contrary, it is undisputed that Hutton's mother, a named but unserved co-defendant, told Hutton that she would arrange to have the lawsuit answered for both of them. It also is uncontroverted that sometime after the summons and complaint were served, Hutton's housekeeper swept the legal papers out of sight and out of mind. 10 Under these circumstances, Hutton's neglect is excusable. She acted timely in moving to set aside the judgment. In her affidavit, Hutton made a prima facie showing of various meritorious defenses. Finally, the plaintiffs failed to demonstrate to the district court that they would suffer prejudice as a result of setting aside the default judgment. See Hammer v. Drago, 940 F.2d 524, 525 (9th Cir.1991). In light of the foregoing and the policy of resolving cases on their merits, see O'Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir.1994); Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945-46 (9th Cir.1986), the district court's denial of the motion to set aside the judgment was erroneous. III. Conclusion 11 We affirm the district court's conclusion that it has personal jurisdiction over Hutton. However, we reverse the district court's denial of Hutton's motion to set aside the judgment, and we remand the matter to the district court for proceedings consistent with this decision. * 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

125 Ariz. 48 (1980) 607 P.2d 31 Moran MENENDEZ and Concepcion Menendez, his wife, Plaintiffs-Appellants, v. Nancy Sophia BARTLETT, Defendant-Appellee. No. 1 CA-CIV 4320. Court of Appeals of Arizona, Division 1, Department A. January 3, 1980. Rehearing Denied February 7, 1980. Review Denied February 26, 1980. Monbleau, Vermeire & Turley, P.C., by Albert R. Vermeire, Phoenix, for plaintiffs-appellants. *49 William T. Keane and O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Killingsworth, Benjamin C. Thomas, Phoenix, for defendant-appellee. OPINION WREN, Presiding Judge. This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a personal injury action and the denial of motion for a new trial and judgment N.O.V. Briefly, the facts are as follows. Plaintiff (appellant) Moran Menendez was injured in a single car accident while riding as a passenger in an automobile driven by the defendant (appellee) Nancy Bartlett. Plaintiff filed suit alleging that his injuries were caused by defendant's gross negligence in operating her vehicle while under the influence of intoxicating liquor. The defendant responded, denying liability and interposing the defenses of contributory negligence and assumption of the risk. The matter was tried to a jury, and after both sides had rested plaintiffs moved for a directed verdict on the issues of negligence, gross negligence, contributory negligence and assumption of the risk. The trial court responded by granting the motion as to all issues except assumption of the risk. Thereafter, plaintiffs requested that the following instruction be given to the jury: if you find that the defendant was grossly negligent in the operation of her motor vehicle, you should not consider the defenses of contributory negligence or assumption of the risk. The request was denied and the remaining issues, including assumption of the risk, were submitted to the jury which returned a verdict in favor of the defendant. Appellants urge on appeal that the granting of plaintiffs' motion for a directed verdict on the issue of defendant's gross negligence also required a directed verdict on the issue of assumption of the risk and that the trial court therefore erred in refusing to give the quoted instruction. They further urge that reversible error was committed by the use of the word "should" in the court's instruction on assumption of the risk.[1] Appellants point out that it has long been the law in Arizona that a finding of gross negligence automatically precludes consideration of the defense of contributory negligence, Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325 (1947), with the exception that a plaintiff's gross or wanton contributory negligence may be balanced against the gross or wanton negligence of the defendant, so as to bar plaintiff's recovery. Southern Pacific Transportation Company v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975), See Restatement (Second) of Torts § 503 (1965). Their argument then continues that since the defenses of contributory negligence and assumption of the risk arise under the identical section of the Arizona Constitution[2] and spring from a common origin, there is no legitimate reason for limiting the above doctrine to the defense of contributory negligence. Consequently, appellants not only seek recognition of a defense of gross assumption of the risk, but also argue that a finding of gross negligence precludes consideration of both simple contributory negligence and simple assumption of the risk. We first note that not only is this a question of first impression in our jurisdiction, we have been unable to find authority elsewhere which has even considered the proposition. Our task is made less complex, though, by the rule that "where there are no Arizona decisions clearly on point we will follow the Restatement of Law, Torts." Southern Pacific Transportation Company v. Lueck, 111 Ariz. at 574, 535 P.2d at 613. Section 496A, Restatement (Second) of Torts, provides: *50 A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm. (emphasis supplied.) While the comments to this section of the Restatement recognize that the defenses of contributory negligence and assumption of the risk frequently overlap, they point out that there are significant conceptual differences. Comment d of section 496A states: There may be, however, differences between the two defenses. A subjective standard is applied to assumption of the risk, in determining whether the plaintiff knows, understands, and appreciates the risk. (See § 496(d)). An objective standard is applied to contributory negligence, and the plaintiff is required to have the knowledge, understanding, and judgment of the standard reasonable man. (See §§ 464, 289, 290). Assumption of the risk operates as a defense against liability not only for negligent conduct, but also for reckless conduct, and conduct for which the defendant is subject to strict liability. Contributory negligence, on the other hand, is not a defense where the defendant's quoted conduct is reckless. (See §§ 482, 503). (emphasis supplied.) We believe that the above language needs no further clarification. Not only has the Restatement failed to expressly recognize a doctrine of gross assumption of the risk, as in the case of gross contributory negligence, see Restatement (Second) of Torts §§ 482, 503, but comment d of section 496A clearly indicates that assumption of the risk is a defense to both negligent and reckless conduct. It is also clear that the distinction embodied in the Restatement between the doctrines of contributory negligence and assumption of the risk has been accepted by our courts. Chavez v. Pima County, 107 Ariz. 358, 488 P.2d 978 (1971), Hildebrand v. Minyard, 16 Ariz. App. 583, 494 P.2d 1328 (1972); McGriff v. McGriff, 114 Ariz. 323, 560 P.2d 1230 (1977). Appellants' final contention is that the trial court erred in giving the following instruction on assumption of the risk: The defendant claims that the plaintiff assumed the risk, and that his assumption of the risk was a cause of the plaintiff's injury. Whether assumption of the risk is a defense is left to you. If ... the plaintiff assumed the risk, and if this conduct of each was a cause of the injury, the plaintiff should not recover. This means you must decide two things: (1) whether the plaintiff did assume the risk, and, (2) if the plaintiff did assume the risk, whether his assumption of the risk should prevent a verdict in his favor.[3] (emphasis supplied.) Appellants maintain that the use of the word "should" constitutes reversible error because it negates the constitutional requirement that the jury must be completely free to determine the effect of a finding of assumption of the risk.[4] Appellants' argument is primarily based upon the Supreme Court's decision in Manhatten-Dickman Construction Company v. Shawler, 113 Ariz. 549, 558 P.2d 894 (1976) (a pre-RAJI case). There the appellants had contended that the trial court erroneously instructed the jury on the effect of a finding of contributory negligence. If you find that either or both of the plaintiffs were negligent and that such negligence was a proximate cause of the Plaintiff's injuries, then your verdict should but need not be in favor of the Defendants and against the contributorily negligent Plaintiff or Plaintiffs as the case may be. (emphasis supplied.) 113 Ariz. at 555, 558 P.2d at 900. *51 The Supreme Court recognized that the real problem concerned the different meanings attributable to the word "should", but ultimately ruled that "`Should' as used in an instruction on contributory negligence is not to be taken as a word of imperative character so that the province of the jury is invaded as to the weight to be given to the plaintiffs' contributory negligence." (citation omitted.) 113 Ariz. at 555, 558 P.2d at 900. While the Supreme Court suggested that the use of the word "may" would be preferable in future instructions, they concluded that the trial court's instruction "was correct in that the jury was advised that the word `should' was not used in the obligatory or mandatory sense." 113 Ariz. at 555, 558 P.2d at 900. In the later case of Hurvitz v. Coburn, 117 Ariz. 300, 572 P.2d 128 (App. 1977), which is apparently the only appellate decision interpreting the RAJI contributory negligence instruction and its use of the word "should", the Court of Appeals, Division 2, held that in light of Manhatten-Dickman, it was not error to give the "should" instruction.[5] Consequently, our courts have consistently held that an instruction on contributory negligence, and by analogy an instruction on assumption of the risk, is not error if the instruction is given in such a manner as to sufficiently inform the jury that if they find that the plaintiff was negligent they must then determine whether such negligence should preclude recovery. In the present case, the jury was clearly informed that the effect of a finding of assumption of the risk was left to its sole discretion. Judgment affirmed. FROEB, J., and STEVENS, J., Retired, concur. NOTES [1] RAJI Instruction, Negligence 5A. [2] Arizona Const. art. 18 § 5: "The defense of contributory negligence or of assumption of the risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." [3] RAJI Negligence 5A, note the trial court modified the standard instruction by deleting the phrase "If the defendant was negligent" which normally precedes the phrase "and the plaintiff assumed the risk" because the court believed that it was inappropriate in light of the directed verdict on the issue of gross negligence. [4] Ariz.Const. art. 18 § 5, See footnote two. [5] RAJI, Negligence 5, In pertinent part: Whether contributory negligence is a defense is left to you. If both plaintiff(s) and defendant(s) were negligent, and if the negligence of each was the cause of the injury, the plaintiff(s) should not recover. This means that you must decide two things: 1) Whether the plaintiff was contributorily negligent; and 2) If the plaintiff was negligent, whether this negligence should prevent a verdict in his favor. (emphasis supplied.)