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Cite as 2015 Ark. App. 195 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-14-1062 KAYLA HERRON Opinion Delivered MARCH 18, 2015 APPELLANT APPEAL FROM THE WHITE V. COUNTY CIRCUIT COURT [NO. JV-13-84] ARKANSAS DEPARTMENT OF HONORABLE ROBERT EDWARDS, HUMAN SERVICES AND MINOR JUDGE CHILDREN APPELLEES AFFIRMED; MOTION TO WITHDRAW GRANTED DAVID M. GLOVER, Judge The parental rights of Kayla Herron to her two sons, D.S., born March 7, 2011, and E.S., born May 4, 2012, were terminated by the White County Circuit Court in an order filed on September 17, 2014.1 Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Kayla’s attorney has filed a no-merit brief asserting that there are no issues that would support a meritorious appeal and a motion requesting to be relieved as counsel. The clerk of this court attempted to send a copy of counsel’s brief and motion to withdraw, along with a letter 1 The parental rights of Herron’s husband, Joshua Herron, the legal father of D.S. and E.S.; Harold Steffey, an alleged putative father of D.S. and possibly E.S., who had not established paternity of either child at the time of the termination hearing; and Nathaniel Stipes, another alleged putative father of E.S. who had also not established paternity at the time of the termination hearing, were also terminated in this order, but none of them are parties to this appeal.  Cite as 2015 Ark. App. 195 notifying Kayla that she had the right to file pro se points for reversal. The first attempt, sent to the Garland County Jail, was returned to sender marked “not here;” a second attempt was made to the updated contact address obtained from Kayla’s attorney, but it was refused and returned to sender. We affirm the termination and grant the motion to withdraw. This case began in March 2013 with a hotline report alleging that Kayla was using methamphetamine in the presence of D.S. and E.S.; that the boys were inadequately supervised; and that Kayla did not have a stable residence. The Arkansas Department of Human Services (DHS) placed a seventy-two hour hold on the children due to the substance abuse, the lack of a stable residence, and the fact that DHS had been unable to find the children for an extended period of time. The children were adjudicated dependent-neglected in an order entered in May 2013. Kayla briefly regained custody of the boys in October 2013, but DHS filed a second motion for ex parte emergency change of custody in December 2013 because: Kayla left the boys with a relative and did not return; the kitchen counters in her residence had moldy food and dirty dishes on them; Tylenol III pills were on the counter and an open bottle of wine was on the ironing board, both within reach of the children; there was no food in the house; Kayla had been arrested on a disorderly-conduct charge that had occurred in the presence of the children; the children were unkempt; Kayla had not been attending Narcotics Anonymous meetings; and Kayla had not been compliant with her mental-health counselor. DHS filed a petition for termination of parental rights on June 4, 2014, alleging that it was in the children’s best interest that Kayla’s parental rights be terminated and setting forth 2  Cite as 2015 Ark. App. 195 three grounds for termination pertinent to Kayla: (1) the children had been adjudicated dependent-neglected and had continued out of Kayla’s custody for twelve months and, despite a meaningful effort by DHS to correct the conditions that caused removal, the conditions had not ben remedied (Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a)); (2) the children had lived outside of Kayla’s home for a period of twelve months, and Kayla had willfully failed to provide significant material support (Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a)); and (3) other factors arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that return of the children to Kayla was contrary to their health, safety, and welfare and that despite the offer of appropriate family services, Kayla had manifested the incapacity or indifference to remedy the subsequent issues or factors that prevented return of the children to her custody (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)). A hearing on the petition to terminate Kayla’s parental rights was held on August 28, 2014; an order filed on September 17, 2014, found that it was in the children’s best interest to terminate Kayla’s parental rights and that DHS had proved all three statutory grounds pertinent to Kayla alleged in its termination petition. The sole adverse ruling at the termination hearing was the termination of Kayla’s parental rights. In compliance with Linker-Flores, and Rule 6-9(i), Kayla’s counsel has adequately discussed why there is no arguable merit to an appeal of the decision to terminate Kayla’s parental rights. After carefully examining the record and the brief presented to us, we hold that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases and conclude that the appeal is wholly 3  Cite as 2015 Ark. App. 195 without merit. Because the only issue in this case is sufficiency of the evidence, we affirm by memorandum opinion, In re Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985), and grant the motion to withdraw. Affirmed; motion to withdraw granted. GLADWIN, C.J., and HOOFMAN, J., agree. Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant. No response. 4 

8 B.R. 200 (1981) In re Josephine OSBORNE, Debtor. ILLINOIS DEPARTMENT OF PUBLIC AID, Plaintiff, v. Josephine OSBORNE, Defendant. Bankruptcy Nos. 80 B 200, 80 A 314. United States Bankruptcy Court, N.D. Illinois, E.D. January 15, 1981. *201 Bruce Katz, Groupe, Katz & Popjoy, Chicago, Ill., for Osborne. Tyrone C. Fahner, Atty. Gen., State of Ill., Springfield, Ill., Carol Mosolygo and Richard D. Grossman, Sp. Asst. Attys. Gen., Chicago, Ill., for Ill. Dept. of Public Aid. MEMORANDUM AND ORDER ROBERT L. EISEN, Bankruptcy Judge. This matter came to be heard on defendant's motion to dismiss plaintiff's complaint to determine dischargeability of a debt. Having considered the briefs, pleadings and memoranda filed by the parties; the oral argument of the parties; and the court being fully advised in the premises, the Court makes the following findings of fact and conclusions of law. Defendant filed her petition and plan under Chapter 13 of the Bankruptcy Reform Act of 1978 on January 7, 1980 scheduling plaintiff as an unsecured creditor. Defendant proposes to pay all creditors 100% of their allowed claims. Plaintiff filed a complaint seeking to have its debt determined nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (7). The contested debt arose when plaintiff recovered a $1000 judgment against defendant in state court for overpayment of public assistance monies. Defendant filed a motion to dismiss for failure to state a claim upon which relief may be granted. The issue before the Court is whether a debt nondischargeable under 11 U.S.C. § 523(a)(2) or 11 U.S.C. § 523(a)(7) may nonetheless be held dischargeable under 11 U.S.C. § 1328(a). Plaintiff's answer to defendant's application to dismiss states that the bankruptcy laws are intended to benefit `honest debtors' and not intended to be `a haven for criminal offenders.' Plaintiff has threatened to pursue defendant in a criminal proceeding thereby effectively destroying the viability of defendant's plan if the contested debt is determined dischargeable. Defendant contends that the clear and unambiguous language of 11 U.S.C. § 1328(a) discharges all debts except debts for child support, alimony and certain long term debts where the last payment is due after the completion of the plan. 11 U.S.C. § 523 provides in pertinent part that: a) A discharge under section 727, 1141 or 1328(b) of this title does not discharge an individual debtor from any debt — * * * * * * 2) for obtaining money, property, services . . . by — A) false pretenses, a false representation or actual fraud . . . * * * * * * (7) to the extent such debt is for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit . . . The Court will assume for the sake of argument that the disputed debt would be nondischargeable under the above-quoted language. However, 11 U.S.C. § 1328 provides that: a) As soon as practicable after completion by the debtor of all payments under the plan . . . the court shall grant the debtor a discharge of all debts . . ., except any debt — (1) provided for under section 1322(b)(5) of this title; or (2) of the kind specified in section 523(a)(5) of this title. The legislative history to 11 U.S.C. § 1328(a) clarifies that the "discharge is of all debts except alimony, maintenance or support, and certain long-term obligations. . . ." (Emphasis added). House Report No. 95-595, 95th Cong., 1st Sess. (1977) *202 430, U.S.Code Cong. & Admin.News 1978, pp. 5787, 5963, 6386. The Court agrees with the defendant and holds that the clear language of The Bankruptcy Reform Act of 1978, as well as its legislative history, requires a conclusion that the debt herein is dischargeable in a Chapter 13 case under Title 11. In re Lewis, 2 C.B.C.2d 1138, 5 B.R. 575 (1980); In re Seely, 6 B.R. 309 (Bkrtcy.1980); In re Keckler, 3 B.R. 155 (Bkrtcy.1980). A bankruptcy court has the power to deny confirmation of a debtor's Chapter 13 plan if that plan is not proposed in good faith. 11 U.S.C. § 1325(a)(3). The Court believes that Congress intended the liberal discharge provisions of Chapter 13 to provide debtors with an incentive to seek Chapter 13 rehabilitation. Based on this presumed Congressional intention "it is not bad faith to utilize the liberal discharge provisions of Chapter 13." Seely, supra. As a matter of policy, however, the Court believes debtors must make substantial or meaningful efforts to pay their obligations, especially where the obligations are dischargeable under Chapter 13 yet nondischargeable under Chapters 7 or 11. The Court recognizes that `good faith' "is broad, indefinite and of necessity tied to the facts of a specific case," (emphasis added); Seely, supra. However, this Court agrees with the decision of In re Burrell, 6 B.R. 360 (1980) where the district court stated that: "The correct approach in this court's view, is to treat the issues of substantiality and best effort as elements of good faith." Since good faith is a subjective term, this Court will not adopt a hard and fast rule that all unsecured debts must be paid at least a certain percentage amount. The Court will in Chapter 13 cases, however, require debtors to make substantial and meaningful payments aggregating a sizeable or major part of the balance of debts that, although dischargeable in Chapter 13, would be nondischargeable in Chapters 7 and 11. The Court will liberally grant leave and sometimes may require debtors to file five (5) year composition plans so that the greater portion, if not all, of the debts which would be nondischargeable in Chapters 7 and 11 may be satisfied under the Chapter 13 plan. In the instant case, plaintiff cannot claim the plan was not filed in good faith because defendant proposes to pay 100% of allowed claims regardless of the creditors' status. WHEREFORE, IT IS HEREBY ORDERED that the complaint of the Illinois Department of Public Aid be and hereby is dismissed for failure to state a claim upon which relief may be granted.

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED In re: L.H., A.L., & T.A. February 16, 2016 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS No. 15-0741 (Kanawha County 15-JA-25, 15-JA-26 & 15-JA-27) OF WEST VIRGINIA MEMORANDUM DECISION Petitioner Mother T.S., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha County’s June 19, 2015, order terminating her parental rights to L.H., A.L., and T.A. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jennifer R. Victor, filed a response on behalf of the children supporting the circuit court’s order. On appeal, petitioner alleges that the circuit court erred in terminating her parental rights instead of imposing a less restrictive dispositional alternative, in finding that she abused and neglected her children, and in denying her post-termination visitation. 1 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 and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. In February of 2015, the DHHR filed an abuse and neglect petition alleging that petitioner failed to protect her children from sexual abuse once she had knowledge of the allegations. According to the petition, six year-old L.H. disclosed at school that S.S., petitioner’s boyfriend, had sexually abused her. Petitioner is the mother of L.H., A.L., and T.A. Additionally, L.H. disclosed that she was “scared to tell her mom in case her mom didn’t believe her.” L.H. also disclosed that S.S. had left bruises on her, bloodied her nose and mouth from smacking her, and that she had seen him “grab her mother by the shirt before when he was mad.” L.H. made the same disclosures at her Child Advocacy Center interview. L.H. further disclosed that S.S. “made her touch his penis.” According to the petition, when petitioner was advised of L.H.’s disclosures, she responded that the DHHR worker “was a retard for believing a retard and that CPS was going to be the reason that [L.H.’s] father was going to die.” Petitioner did not believe L.H. and stood by S.S. The circuit court granted the DHHR legal and physical custody of the 1 We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and recodified during the 2015 Regular Session of the West Virginia Legislature. The new enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and became effective ninety days after the February 19, 2015, approval date. In this memorandum decision, we apply the statutes as they existed during the pendency of the proceedings below. 1 children pending the preliminary hearing. The circuit court appointed counsel to represent petitioner. In March 2015, the circuit court held an adjudicatory hearing. Ultimately, the circuit court found by clear and convincing evidence that petitioner both failed to protect L.H. after learning of the sexual abuse and that L.H., A.L., and T.A. were neglected and abused children. The circuit court also ordered the DHHR to provide petitioner with a psychological evaluation, including an evaluation of factors related to parental fitness. Petitioner’s motion for an improvement period was denied. The children remained in the temporary legal and physical custody of the DHHR. In May of 2015, the circuit court held a dispositional hearing. At the hearing, petitioner sought to voluntarily relinquish her parental rights. The DHHR and the guardian objected and the circuit court denied petitioner’s request, finding that voluntary relinquishment would be contrary to the best interests of the children. The DHHR and the guardian moved the circuit court to terminate petitioner’s parental rights and recommended denying post-termination visitation. The circuit court terminated petitioner’s parental rights by order entered on June 19, 2015. The circuit court also denied petitioner post-termination visitation, finding it to be contrary to the children’s bests interests. The Court has previously established the following standard of review: “Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon review of the record, we find no error in the circuit court’s termination of petitioner’s parental rights instead of imposing a less restrictive dispositional alternative, no error in finding that petitioner abused and neglected her children, and no error in denying petitioner post-termination visitation. An abused child is one whose “health or welfare is harmed or threatened by [a] parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly 2 allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home.” W.Va. Code § 49-1-201(A) (2012). We have also explained that “W.Va. Code, 49-6-2(c) [1980], requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and convincing proof.’ The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981). Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted). While petitioner claims the DHHR failed to prove abuse or neglect by clear and convincing evidence, the record demonstrates that the circuit court was presented with ample evidence of petitioner’s abuse. The DHHR workers testified that L.H. disclosed that petitioner’s boyfriend sexually abused her, struck her and struck petitioner, and that she did not disclose the abuse to petitioner because she was afraid petitioner would not believe her. Indeed, petitioner did not believe that her boyfriend abused L.H. and testified to the same at the adjudication hearing. Petitioner also denied that her boyfriend sexually or physically abused L.H. and she denied that L.H. told her about the abuse. Petitioner also testified that she believed that L.H. did not come up with abuse allegations on her own. Based upon the record, the evidence of abuse and neglect is sufficient to support the circuit court’s findings that petitioner was an abusing parent and that her children were abused and neglected. Further, this Court finds that the circuit court properly terminated petitioner’s parental rights upon a finding that she could not substantially correct the conditions of abuse and neglect in the home. Pursuant to West Virginia Code § 49-4-604(6), circuit courts are directed to terminate parental rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected and when necessary for the child’s welfare. We have held as follows: “[p]arental rights may be terminated where there is clear and convincing evidence that the infant child has suffered extensive physical abuse while in the custody of his or her parents, and there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parents, even in the face of knowledge of the abuse, have taken no action to identify the abuser.” Syl. Pt. 3 In re: Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). The circuit court was presented with evidence that petitioner failed to protect L.H. from S.S. after learning of the sexual abuse and that petitioner maintained a relationship with S.S. and continued to deny that he sexually abused any of the children. Further, pursuant to West Virginia Code § 49-4-604(6), circuit courts are directed to terminate parental rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected and when necessary for the child’s welfare. West Virginia Code § 49-4-604(c)(3) also provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing . . . parents . . . have not responded to or followed through with a reasonable 3 family case plan or other rehabilitative efforts[.]” In the case at hand, petitioner did not believe that her boyfriend abused L.H. and testified to the same at the adjudication hearing. Petitioner also denied that her boyfriend sexually or physically abused L.H. and she denied that L.H. told her about the abuse. Petitioner also testified that she believed that L.H. did not come up with abuse allegations on her own. For these reasons, termination of petitioner’s parental rights was not error. As to petitioner’s argument that the circuit court erred in terminating her parental rights instead of imposing a less restrictive alternative, the Court finds no error. Petitioner contends that the circuit court should have disposed of this matter by granting physical and legal custody with the respective fathers of each minor child. Here, the circuit court had no option but to terminate petitioner’s parental rights. Further, we have held as follows: “Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va. Code [§ ] 49–6–5 . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va.Code [§ ] 49–6–5(b) . . . that conditions of neglect or abuse can be substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Here, the circuit court found that there was no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future and that the children’s welfare required termination. As such, we find that the circuit court did not err in terminating petitioner’s parental rights. Finally, we find no error in the circuit court’s denial of post-termination visitation between petitioner and the children. While petitioner argues that her bond with her children necessitates that she be granted post-termination visitation with her three children, we disagree. Post-termination visitation is a discretionary action and not compulsory upon the circuit court. We have previously held that a circuit court must consider three factors when ordering post- termination visitation: whether there is a close emotional bond between parent and child; the child’s wishes; and whether the visitation would be detrimental to the child’s best interests. In re Alyssa W., 217 W.Va. 707, 619 S.E.2d 220 (2005). Here, petitioner chose her relationship with S.S. over the safety and well-being of her children. She failed to protect them from abuse. She chose to call her daughter, L.H., a liar and a “retard” for disclosing the abuse. The circuit court reasonably concluded that post-termination visits with petitioner would not be in the children’s best interests. Therefore, we find no error in the circuit court’s denial of post-termination visitation between petitioner and the children. For the foregoing reasons, the circuit court’s June 19, 2015, termination order is hereby affirmed. Affirmed. 4 ISSUED: February 16, 2016 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II 5 

455 S.W.2d 880 (1970) H. E. McCONNELL & SON et al., Appellants, v. Frances SADLE, Appellee. No. 5-5339. Supreme Court of Arkansas. June 29, 1970. *881 Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellants. HARRIS, Chief Justice. This is a workmen's compensation case, being an appeal from a judgment of the Pulaski County Circuit Court, in which that court affirmed an order rendered by the commission in favor of claimant, Mrs. Frances Sadle. However, only one issue was passed upon, and the order is not reviewable because it does not constitute a final order. Mrs. Sadle filed a claim for dependency benefits alleging that she was the widow of Lou M. Sadle, who allegedly died as a result of an accidental injury in the course of his employment with H. E. McConnell & Son on February 5, 1967. The claim is controverted in its entirety by the McConnell company and its insurance carrier. However, the only question passed upon by the referee and the full commission was whether Mrs. Sadle was the legal widow and dependent of Lou Sadle. The commission found for claimant, but held in abeyance the question of whether decedent's death arose out of and during the course of his employment. Thus, an adjudication of the one issue presented would not determine whether the claim should be allowed. While no objections to the determination of this one phase of the litigation are raised by the parties, as pointed out in Worth Insurance Company v. Patching, 241 Ark. 620, 410 S.W.2d 125, the want of a final order is a matter that we raise ourselves, and under Ark.Stat.Ann. § 27-2101 (Repl.1962), we are limited to a review of final judgments and decrees. As pointed out in Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110, a judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject-matter in controversy. In the case before us, only one facet of the litigation has been determined. There is left for further determination the question of whether Sadle's death arose out of and during the course of his employment, and accordingly whether Mrs. Sadle is entitled to benefits, and if so, the amount of benefits. In McPherson v. Consolidated Casualty Company, 105 Ark. 324, 151 S.W. 283 (1912), we said: "Cases can not be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may be taken, but not before * * *." It follows, from what has been said, that the case should be, and is, remanded to the Pulaski County Circuit Court (Third Division) with directions to remand same to the Workmen's Compensation Commission for further development. It is so ordered. For good cause, we direct the issuance of an immediate mandate.

Opinion Issued May 12, 2005         In The Court of Appeals For The First District of Texas NO. 01-04-00195-CR DAVID CHARLES HOLFORD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 973817 O P I N I O N           A jury convicted appellant David Charles Holford of capital murder and assessed punishment at life imprisonment. On appeal, Holford contends that the trial court erred in (1) charging the jury with ambiguous application paragraphs; (2) using a disjunctive jury instruction with a general verdict; and (3) admitting autopsy photographs into evidence. We hold that the trial court did not err in charging the jury and did not abuse its discretion in admitting the photographs into evidence. We therefore affirm. Facts           David Holford and his co-defendant, Harold Vaughn, were charged with the robbery and murder of eighteen-year-old Trevor Cook. Cook dated Gina Powell, who often visited his apartment. She sometimes would be accompanied by her friend Sheila Bricht.           Cook sold drugs out of his apartment. He kept the bathroom closet, containing his main supply of drugs, locked. Cook allowed clients to view his secondary stash of drugs, which he kept in the kitchen. It was well-known that Cook often kept $1,000 or more worth of cocaine and large sums of cash in the apartment. Cook’s upstairs neighbor, Ryan Wick, advised him to be more careful about showing people his money and drugs.           Holford regularly visited Cook’s apartment to buy cocaine and play video games. Vaughn sometimes accompanied Holford when visiting Cook’s apartment. Vaughn was known for his aggressiveness, and he always carried a knife with him. He also sometimes carried a one-and-one-half foot long, rusty red wrench with a spike on it. Holford knew of Vaughn’s temper. Although Holford had received a monetary settlement from a motorcycle accident in the summer of 2000, the money was under his parents’ control, and he complained about limits on his spending.           In August 2001, Holford confided in one of his friends, Dan Dickerson, that he was thinking about “jacking” Cook or taking Cook’s drugs and money. In early January 2002, Vaughn complained of his financial problems to Holford. Holford stated that he knew someone whom they could jack, but they would have to kill him.           On January 13, 2002, at approximately 3:00 p.m., Vaughn and Holford were present when Cook transacted a drug deal with one of his friends, Ronald Hornburg. Both Vaughn and Holford remained inside Cook’s apartment while the transaction took place. Sometime between 3:30 and 4:00 p.m., Cook’s neighbor heard the sound of Cook’s gate opening and closing and saw Vaughn emerge from inside the apartment. A short time later, the neighbor heard more noises and saw both Holford and Vaughn outside Cook’s apartment. Ten to fifteen minutes later, Wick heard some loud knocking on Cook’s door, which continued for approximately twenty minutes.           Having unsuccessfully attempted to reach Cook since around noon that day, Powell and Bricht arrived at Cook’s apartment at approximately 4:00 p.m. to return Cook’s truck to his possession, which Powell earlier had borrowed. Cook did not answer his door or his cell phone. Powell noticed that Cook’s bedroom window was unlatched, which she found unusual. The screen over the window was loose and fell to the floor with a mere touch. The women climbed through the window into the apartment.  Upon entering Cook’s apartment, the women noticed that his belongings were in disarray and that his dog was acting in a disturbed manner. The women discovered Cook lying on the living room floor in a pool of blood, and they called the police. They then ran upstairs to inform Wick of Cook’s death and to obtain the correct address for the apartment.           While Bricht waited outside for the police, Vaughn walked up with two fresh scratches on his face, wearing one of Cook’s shirts. Vaughn entered the apartment and viewed Cook’s body, but appeared unaffected by what he saw. After saying, “I’ve got to get out of here,” Vaughn left.           Officers James Ramsey and Janet Nederland of the Houston Police Department Homicide Division and Crime Scene Investigation unit, respectively, arrived and inspected the apartment. The investigation revealed blood on a washcloth, which DNA testing later matched to Vaughn. The investigation also revealed a broken bathroom closet door. The contents of the closet had been removed.           When Holford’s friend, Dickerson, learned of Cook’s death, he conveyed the information to Holford. Dickerson was shocked that Holford was unsympathetic; he heard Holford say to Vaughn, in a hushed voice, “He heard about the move,” a phrase denoting some illegal activity. The next day, Dickerson called the police and told them that Vaughn and Holford were possible suspects.           Approximately a week after the murder, Christopher Vasquez, a friend of Holford’s, went to Vaughn’s apartment, where he saw Cook’s Gucci hat and approximately fifteen lines of cocaine on the coffee table. In mid-January 2002, Holford tried to sell Cook’s Gucci hat for $100 to Frederick Morris, one of his friends.           Officer Ramsey secured arrest warrants for Holford and Vaughn, and executed both of them at Vaughn’s apartment. A search of the apartment revealed a loaded .380-caliber semi-automatic handgun, a Louis Vuitton wallet containing $843 in cash and Vaughn’s identification, 22 butcher knives, two pocket knives, and Vaughn’s tennis shoes with dried blood on both soles.           After arresting Vaughn and Holford, Officer Ramsey and his partner took the men to the Stafford Police Station for questioning. There, Vaughn revealed that he “got the best of Cook,” knocked him out, and then went into the kitchen to take Cook’s drugs and money. Vaughn saw Holford cutting Cook’s throat and tying a phone cord around Cook’s throat, but stated that he asked Holford to stop. Vaughn conceded that he took $200 cash, drugs, clothing, and a .380 pistol from Cook. He also admitted that he drove Holford home and returned to Cook’s apartment to retrieve his cell phone.           Holford told the police that while he and Vaughn were inside Cook’s apartment, he was looking out of a window and heard Vaughn strike Cook with a large wrench. Holford claimed that he watched as Vaughn threw Cook around the apartment and stabbed him with a knife. Holford claims that he then followed Vaughn into the bedroom, telling Vaughn that they should get out of the apartment. Holford stated that he watched Vaughn ransack the bedroom and take clothes and drugs from it.           Holford confessed to a fellow inmate that he and Vaughn went to Cook’s apartment to rob him. He told the inmate that Vaughn hit Cook, grabbed him and used a knife to cut his neck. While Vaughn used his knife, Holford hit Cook, causing Cook to fall. Vaughn ran out the door while Holford continued to hit and kick Cook. Holford told the inmate that he and Vaughn agreed that they would have to kill Cook because Cook knew them and that they could not use a gun to do it because it would be too loud.           An examination of Cook’s body revealed that he had dozens of blunt-force-trauma injuries on his face and body and a recently knocked-out tooth, and that he had nearly been decapitated. Abrasions on Cook’s skin, including one above his left eyebrow, were consistent with his having being struck by a wrench. A hole in Cook’s right shoulder was consistent with the pointed end of the wrench’s having been driven into the skin.           Holford wore shoes to his trial with soles that matched a bloody mark in Cook’s kitchen. The footprint of these shoes also was consistent with stomp marks on Cook’s body, made while Cook was still alive. Jury Instructions           Holford’s first four points of error concern the trial court’s instructions to the jury. In his first two issues, Holford contends that the trial judge gave ambiguous application instructions regarding the law of parties. In his third and forth issues, Holford contends that the disjunctive jury instruction denied him a unanimous verdict. Standard of review           When reviewing a trial court’s jury instructions, we first determine whether the jury charge was erroneous. Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d). Error occurs when a jury charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex. Crim. App. 1975). An erroneous jury charge does not result in an automatic reversal of a conviction. Tex. Code Crim. Proc. Ann. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Not only must there be error, but a resulting harm that requires reversal must exist. Id. In the present case, Holford did not object to the court’s charge. Reversal thus requires an error that is so egregious and created such harm that Holford was denied a fair and impartial trial. See id. Application Paragraphs with the Law of Parties             The application paragraph of a jury charge tells the jury under what circumstances it can find the defendant guilty. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996) (overruled on other grounds by Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). Here, Holford’s application paragraphs included the possibility of finding guilt under the law of parties. Under the law of parties, a person may be criminally responsible for the murder committed by another person if “acting with intent to promote or assist” the murder, he solicits, encourages, directs, aids, or attempts to aid the other person” to commit the murder. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003).           Holford contends that the trial court instructed the jury with ambiguous application paragraphs concerning the law of parties. Holford contends that wording within these paragraphs permitted the jury to convict him as a party to capital murder if he intended to aid only in the robbery, as opposed to the required intent to aid in the murder of Cook. The two application paragraphs at issue are as follows: If you find from the evidence beyond a reasonable doubt that on or about the 13th day of January, 2002, in Harris County, Texas, Harold Louis Vaughn, did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Trevor Cook, intentionally cause the death of Trevor Cook by cutting Trevor Cook with a deadly weapon, namely, a knife, and that the defendant, David Charles Holford, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense, if he did; or             . . . .   If you find from the evidence beyond a reasonable doubt that on or about the 13th day of January, 2002, in Harris County, Texas, Harold Louis Vaughn, did then and there unlawfully while in the course of committing or attempting to commit the robbery of Trevor Cook, intentionally cause the death of Trevor Cook by striking Trevor Cook with a deadly weapon unknown to the Grand Jury, and that the defendant, David Charles Holford, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense, if he did;   . . . then you will find the defendant guilty of capital murder, as charged in the indictment.   Holford mis-quotes these paragraphs in his brief. He erroneously substitutes the phrase “the offense of robbery” in place of “the robbery.”            Both parties cite to Barnes v. State, 56 S.W.3d 221 (Tex. App.—Fort Worth 2001, pet. ref’d) as persuasive authority. The application paragraph in Barnes instructed the jury that the defendant was guilty of the offense of capital murder if it found “from the evidence beyond a reasonable doubt that on or about the 11th day of October, 1997, in Tarrant County, Texas, Carlis Russell, did intentionally cause the death of an individual, [C.H.], by shooting her with a deadly weapon, to-wit: a firearm, and the said Carlis Russell was then and there in the course of committing or attempting to commit the offense of robbery of [C.H.], and [appellant], acting with the intent to promote or assist the commission of the offense of capital murder, if any, solicited, encouraged, directed, aided or attempted to aid Carlis Russell in the commission of the offense.” Id. at 235 (emphasis in original).           The Barnes court found that the trial court properly instructed the jury, by requiring it to find that defendant assisted in the murder and not just in the robbery. The court noted that the prepositional phrase “in the commission of the offense” referred to the previous phrase “the offense of capital murder.” Id.           Here, as in Barnes, the charge describes the capital murder as necessarily occurring “while in the course of committing or attempting to commit the robbery.” Unlike Barnes, the charge does not refer to the robbery as “the offense.” Rather, the charge requires the jury to find that Holford promoted or assisted Vaughn in intentionally causing the death of Cook, while in the course of committing or attempting to commit robbery. Read logically, the prepositional phrase “with the intent to promote or assist the commission of the offense” refers to Cook’s murder, that occurred “while in the course of committing or attempting to commit the robbery.” Likewise, the clause “solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense” refers to Cook’s murder.           Furthermore, any error in the application paragraphs could not have caused Holford “egregious harm,” a requirement because Holford did not object to the instruction. To determine whether a defendant has sustained egregious harm from an un-objected to instruction, we consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).            In the present case, the jury charge read in its entirety clearly instructed the jury that, before it could find Holford guilty under the theory of the law of parties, it had to find that he participated and intended both the robbery and the murder. For instance, the paragraph immediately preceding the application paragraphs cautioned the jury that these elements were necessary: Before you would be warranted in finding the defendant guilty of capital murder,. . . you must find from the evidence beyond a reasonable doubt that the defendant, David Charles Holford, with the intent to promote or assist in the commission of the offense of robbery, if any, solicited, encouraged, directed, aided, or attempted to aid Harold Louis Vaughn in cutting or striking Trevor Cook, if he did, with the intention of thereby killing Trevor Cook . . . .   (Emphasis added).           Second, counsel for both the State and Holford argued to the jury that in order to convict Holford, it must find that Holford intended Cook’s murder. Finally, the State presented ample evidence to convict Holford and Holford has not challenged the sufficiency of that evidence. We hold that, even if the trial court erred in the wording of the application paragraphs, the error is not egregious. Disjunctive Jury Charge           In his third and forth issues, Holford contends that a disjunctive jury charge with a general verdict form deprived him of a unanimous finding, because it is possible that some of the jurors did not unanimously agree on the underlying theories of the State’s case.           In reviewing a disjunctive jury charge, we first determine whether the separate application paragraphs contain different criminal acts or whether they merely instruct as to different means of committing a single offense. If the disjunctive paragraphs contain different criminal acts, then the jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Ngo v. State, No. PD-0504-04, 2005 WL 600353, *3 (Tex. Crim. App., March 16, 2005) (designated for publication) (holding that because defendant was charged with three different criminal acts of credit card abuse, jury had to unanimously agree that defendant did at least one of three different things: steal the credit card, knowingly receive the stolen credit card, or fraudulently present stolen credit card with intent to obtain benefit). If the disjunctive paragraphs merely inform of different means of committing a single offense, then the jury does not have to unanimously agree on which alternative means the defendant used to commit the offense. Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). In determining whether the paragraphs are separate criminal acts or separate means of committing one act, “[a] handy, though not definitive, rule of thumb is to look to the statutory verb defining the criminal act.” Ngo, 2005 WL at *4 n. 24.           The facts here are similar to those in Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991). In Kitchens, the jury charge presented two alternative theories of capital murder – one in the course of aggravated assault and the other in the course of robbery. The Court of Criminal Appeals held that if alternative theories of the same offense are submitted to the jury in the disjunctive, then the jury may return a general verdict as long as the evidence is sufficient to support a finding under any of the theories submitted. Id. at 258. No general requirement exists that the jury reach agreement on the preliminary factual issues that underlie the verdict. Id. at 259.           Likewise, in Schad v. Arizona, 501 U.S. 624, 642–44, 111 S. Ct. 2491, 2502–03 (1991), the United States Supreme Court concluded that it is not unconstitutional to instruct a federal jury that it could find a defendant guilty of felony murder or premeditated murder within a single guilty verdict form. No general requirement exists as part of the due process clause that a jury agree on the preliminary facts underlying a verdict. Id.           Here, Holford is charged with committing capital murder. The application paragraphs permitted the jury to find Holford guilty upon finding that: (1) he committed the capital murder; or (2) Vaughn committed the murder, and Holford was criminally responsible for it under either the law of parties or as a conspirator. See Tex. Pen. Code Ann. §§ 7.02(a)(2), 7.02(b). Only one statutory verb defines the criminal act–causing the death of Cook during a robbery. Each of the disjunctive paragraphs thus describes a different means of committing the same act. The paragraphs instructing on conspiracy and law of parties include a transferred intent as a potential means of committing the offense, but the transferred intent ultimately relates to the same actus reus. Here, as in Schad and Kitchens, the actus reus of Holford’s offense was murder. We hold that the trial court’s instructions require the jurors to agree that Holford committed that single act (either directly or via transferred intent), and thus the trial court did not err in failing to instruct the jury that it must agree unanimously on the manner of Cook’s murder.           Holford attempts to distinguish Kitchens by contending that it did not involve erroneous application paragraphs. We have held that the trial court did not err in its submission of the application paragraphs, thus this distinction is without merit. Moreover, Holford’s complaint about the application paragraphs does not attack the use of the alternative theories of the means of the murder. Instead, he complains that “offense” was ambiguous as to its antecedent.           The trial court instructed the jury to find Holford guilty if he committed one act and one offense – the capital murder of Cook. The State’s case presented alternative theories of the method Holford used to commit the offense, and the State offered evidence to convict Holford based on each alternative. On appeal, Holford has not challenged the sufficiency of that evidence in any respect. We hold that the trial court did not err in submitting a disjunctive jury charge with a general verdict for the single offense of capital murder. Admissibility of Autopsy Photographs           In his last issue, Holford contends that the trial court abused its discretion in admitting three colored autopsy photographs: State’s Exhibit 305 (a photograph of the decedent’s brain after the skull had been cut open) and State’s Exhibits 318 and 319 (photographs of the decedent’s lung). Holford contends that the photographs were not helpful to the jury in resolving any contested issues of fact. Moreover, he contends that any probative value of the photographs substantially is outweighed by their prejudicial impact on the jury. Standard of Review           The trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Standard to Admit Photographs           As a general rule, a photograph is admissible if it is relevant to a material issue and is an accurate representation of its subject as of a given time. DeLuna v. State, 711 S.W.2d 44, 46 (Tex. Crim. App. 1986). Generally, relevant evidence may be excluded if its probative value substantially is outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. We apply Rule 403 to these photographs and determine whether they assist the jury with its decision of guilt and are relevant, legitimate and logical to the testimony that they accompany. If helpful, photographs are admissible unless “the emotional and prejudicial aspects substantially outweigh the helpful aspects.” Erazo v. State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004).  State’s Exhibit 305, 318 and 319           Holford contends that State’s Exhibits 305, 318, and 319 could not have been helpful to the jury because he did not dispute the severity of the injuries or the cause of Cook’s death. Holford did not need to dispute these facts to make the photographs probative. First, the autopsy photographs are material to the trial because they show Cook’s injuries. See id. 144 S.W.3d at 494 (finding photographs could be helpful to juries, in part, because they show wounds suffered by victim for whose death defendants were on trial). Second, with Holford’s consent, the State presented the direct examination of most of its witnesses simultaneously before both Holford’s and Vaughn’s juries. The medical examiner testified, and introduced his autopsy photographs, before both juries. Therefore, in determining the relevancy of these photographs, we look to the issues raised in both Holford’s and Vaughn’s trials.           The medical examiner used the photographs of the decedent’s lung (State’s Exhibits 318 and 319) to illustrate that the stab wounds in Cook’s back were deep enough to puncture his lung. He also used these photographs to illustrate the discoloration caused by the blood inhaled into the lung, a sign that Cook was alive when his throat was cut.           The medical examiner used the photograph of Cook’s brain inside the skull (State’s Exhibit 305) to illustrate multiple areas of bleeding, bruising and hemorrhaging on the undersurface of the decedent’s scalp, matching the injuries on Cook’s head. He also used this photograph to illustrate that the brain was surrounded by collections of blood, supporting his opinion that the trauma to Cook’s head could have been the cause of his death. Evidence that trauma to Cook’s head was severe enough to kill him was relevant because Vaughn told the police that although he “knocked” Cook out, Holford cut Cook’s throat.           We conclude that the autopsy photographs were probative of the nature of the injuries to Cook and that they were helpful to the jury in determining Holford’s and Vaughn’s participation in Cook’s death. We next determine whether the prejudicial effect of the three photographs substantially outweighs their relevance. Tex. R. Evid. 403. We consider the probative value of the evidence, the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way, the time that the proponent needs to develop the evidence, and the proponent’s need for the evidence. Erazo, 144 S.W.3d at 489. In the context of photographs, we also consider the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots or of the whole body, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Id. at 489 (citing Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992)).           Autopsy photographs generally are admissible unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). When photographs depict internal organs that have been removed to portray the extent of the injury to the organs themselves, the photographs are not considered to be depictions of mutilation of the victim by autopsy. Salazar v. State, 38 S.W.3d 141, 151–52 (Tex. Crim. App. 2001).           Here, the three photographs were admitted during the medical examiner’s testimony. Such testimony constituted less than two out of the fifty-four pages of the medical examiner’s direct testimony, and out of the six volumes of testimony in the record–not an unreasonable amount of time.             The photographs are not particularly gruesome or emotionally charged, when compared with photographs, admitted into evidence without objection, of the crime scene, showing a nearly decapitated and badly beaten body in a pool of blood. The autopsy photographs are not large: they are approximately three and one-half by five inches in size. None of the photographs at issue show Cook’s entire body. The photographs show only minimal damage caused from the autopsy. See Prible v. State, No. AP-74487, 2005 WL 156555, at *10 (Tex. Crim. App. Jan. 26, 2005) (designated for publication) (disembodied organs are not highly emotional, they are clinical).           The photographs are three in number. Although Cook’s death was one of the more traumatic ones that the medical examiner had seen, the State introduced only twenty-five photographs. The medical examiner testified that out of the numerous photographs taken, he chose those which best show the injuries to Cook. He further stated that they were necessary to show to the jury the nature of the decedent’s injuries. We conclude that the probative nature of State’s Exhibits 305, 318, and 319 is not substantially outweighed by any prejudicial effect. The trial court thus did not abuse its discretion in admitting the autopsy photographs into evidence.   Conclusion           We conclude (1) the application paragraphs of the charging instructions are not ambiguous and, even if they are, the instructions did not result in egregious harm to the defendant; (2) the disjunctive charging instructions did not deny Holford a unanimous verdict; and (3) the trial court did not error in admitting autopsy photographs into evidence. We therefore affirm the judgment of the trial court.                                                                           Jane Bland                                                              Justice   Panel consists of Chief Justice Radack and Justices Higley and Bland. Publish. Tex. R. App. P. 47.2(b).                

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATURAL RESOURCES DEFENSE ) COUNCIL, INC., et aI., ) ) Plaintiffs, ) ) v. ) Civil Case No. 08-1363 (RJL) ) UNITED STATES DEPARTMENT OF ) STATE, et al.,l ) ) Defendants, ) ) and ) ) TRANS CANADA KEYSTONE PIPELINE, ) LP, ) ) Defendant-Intervenor. ) rt- MEMORANDUM OPINION (September~, 2009) [#25 and 26] The Natural Resources Defense Council and certain local affiliates (collectively, "NRDC") bring this action seeking declaratory and injunctive relief against the United States Department of State and various officers acting in their official capacity I Among the original named defendants in this suit were Condoleezza Rice, then Secretary of State, and Reuben Jeffrey, III, Under Secretary of State for Economic, Energy, and Agricultural Affairs. Pursuant to Federal Rule of Civil Procedure 2S( d), if a public officer named as a party to an action in her official capacity ceases to hold office, the court will automatically substitute that officer's successor. Accordingly, the Court substitutes Hillary Clinton for Condoleezza Rice and Robert Hormats for Reuben Jeffrey. (collectively, "State Department") on the ground that the State Department violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, by issuing a presidential "permit" to defendant-intervenor TransCanada Keystone Pipeline, LP ("Keystone") for a cross-border oil pipeline between the United States and Canada based on an inadequate assessment of the environmental impacts? The State Department and Keystone (collectively, "defendants") move to dismiss the action for lack of jurisdiction under Rule 12(b)( 1), or for failure to state a claim under Rule 12(b)(6), because no cause of action exists under NEP A or any other federal statute to challenge the State Department's actions in this case. For the following reasons, the Court agrees with the defendants and therefore GRANTS their respective Motions to Dismiss. BACKGROUND Executive Order 13,337 delegates to the State Department the President's authority to issue permits for the construction of an oil pipeline across the border of the United States if it finds that issuance of the permit to the applicant "would serve the national interest." Exec. Order No. 13,337, § l(g), 69 Fed. Reg. 25,299 (Apr. 30, 2004). Before issuing the permit, the State Department must consult with various departments and agencies specified in the Order. Id. §1(b)(ii). If any of those departments or agencies disagrees with the State Department's proposed decision, then the State Department must 2 "Permit" as used here is not a standardized form issued pursuant to a formalized regulatory process. Rather, it is the written imprimatur of the President issued through the State Department authorizing the applicant to proceed with the cross-border project. 2 refer the permit application to the President "for consideration and a final decision." Id. § 1(i). Otherwise, the State Department makes the final decision. Over three years ago, Keystone filed an application with the State Department for a presidential permit to build an oil pipeline across the United States-Canadian border. (Amend. Compo [#21] at ,-r 41). As part of its review process, the State Department released a draft Environmental Impact Statement ("EIS") and then a final EIS. (Id. at,-r,-r 48, 51). Not long after issuing the final EIS, the State Department released a Record of Decision ("ROD") announcing its intent to issue a presidential permit for the pipeline project based on its determination that the permit would serve the national interest. (Id. at ,-r 58). The permit issued shortly thereafter. (Id. at,-r 59). The NRDC brought this action against the State Department, which Keystone joined as an intervenor-defendant, on the ground that the State Department violated NEPA by issuing the presidential permit to Keystone based on a deficient EIS. (Id. at,-r 71). NEPA directs that "all agencies of the Federal Government shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement" on environmental impacts. 42 U.S.C. § 4332(2)(C). The NRDC claims that the State Department's final EIS did not comply with NEP A and its implementing regulations for numerous reasons, the details of which are not relevant now. (Amend. Compo [#21] at,-r,-r 65-71). As a result, the NRDC seeks a declaration that the State Department's failure to 3 prepare an adequate EIS violated NEPA and that the State Department's decision to issue the presidential permit based on that EIS violated the Administrative Procedure Act ("APA"). (Jd. at 19). The NRDC also seeks an injunction directing the State Department to revoke the permit and to require that Keystone remove the portion of the pipeline subject to the permit and that it cease any further construction or activity until the State Department complies with NEP A and the AP A. (Jd.). ANALYSIS Defendants move to dismiss the NRDC's Amended Complaint on the ground that no legal basis exists to challenge State Department decisions on behalf of the President to issue presidential permits under Executive Order 13,337. Defendants assert that the NRDC cannot point to any statutory authority that creates a cause of action by which this Court may review the State Department's conduct in this case. Defendants further argue that a private right of action is expressly foreclosed by the Executive Order itself. See Exec. Order No. 13,337, §6, 69 Fed. Reg. at 25,299. Although defendants couch their motion primarily as a jurisdictional challenge under Rule 12(b)( 1), the more appropriate procedural vehicle is Rule 12(b)(6). The NRDC claims a violation ofNEPA and the APA, both of which raise a federal question covered by 28 U.S.C. § 1331.3 The crux of defendants' various arguments is not whether 3 This statute confers on federal district courts original subject matter jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." 4 the NRDC has presented federal claims, but whether those claims are enforceable against the State Department when it is acting on behalf of the President pursuant to Executive Order 13,337. 4 Whether there is a cause of action is not a jurisdictional question; rather, "the court must assume jurisdiction before deciding whether a cause of action exists." John Doe v. Metro. Police Dep 't ofD.C., 445 F.3d 460,466 (D.C. Cir. 2006); see also Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm 'n, 324 F 3d 726, 731 (D.C. Cir. 2003) (stating that, where there is no cause of action under the APA, dismissal is properly invoked under Rule 12(b)(6), not under Rule 12(b)(1)). 4 The State Department raises only one truly jurisdictional issue. It contends that the NRDC lacks Article III standing because its claims are not redressable. This argument, however, is unavailing. The redressability requirement is satisfied if the plaintiff can show that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks omitted). The alleged injury in this case is a procedural one-the State Department's failure to comply with NEP A before issuing a presidential permit. A party that has been accorded a procedural right to protect a concrete interest "can assert that right without meeting all the normal standards for redressability and immediacy." Id. at 573 n.7. Courts have routinely upheld standing in NEPA lawsuits, knowing that a favorable decision may not ultimately change the outcome. Lemon v. Geren, 514 F.3d 1312,1315 (D.C. Cir. 2008). "The idea behind NEPA is that if the agency's eyes are open to the environmental consequences of its actions and if it considers options that entail less environmental damage, it may be persuaded to alter what it proposed." Id. The State Department argues that this case is different because the President, not the agency, is the ultimate decision-maker and can revoke the Executive Order and issue a permit regardless of what this Court decides. The State Department's argument goes too far. Such an argument would defeat standing in virtually any administrative case because agencies always act pursuant to delegated authority, whether from Congress or from the President, that can be subsequently withdrawn. That an agency's delegated authority can be revoked is too speculative to defeat standing on redressability grounds. 5 Accordingly, the Court will treat defendant's motion as one for dismissal under Rule 12(b)(6) for failure to state a claim. In doing so, the Court accepts the NRDC's factual allegations as true and draws all reasonable inferences in the NRDC's favor. Browning v. Clinton, 292 F.3d 235,242 (D.C. Cir. 2002). Dismissal is proper if the NRDC is unable to prove any set of facts in support of a claim that would entitle it to relief. Id. The NRDC argues, as it must, that it is entitled to relief under the APA. It is well- established that NEPA does not create a private right of action. Pub. Citizen v. us. Trade Representative, 5 F.3d 549, 551 (D.C. Cir. 1993). Nor does Executive Order 13,337 affirmatively create a cause of action to enforce its terms. Indeed, it does the opposite by expressly foreswearing that it creates any "right, benefit, or trust responsibility, substantive or procedural, enforceable at law or in equity." Exec. Order No. 13,337, §6, 69 Fed. Reg. at 25,299. As a result, to enforce NEPA in this case, the NRDC must rely on the general provisions of the AP A, which provide for judicial review in cases where a party suffers "legal wrong because of agency action" or is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Agency action is not reviewable, however, unless it is final, id. § 704, and agency action is not final unless it satisfies two conditions: "First, the action must mark the 'consummation' of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow. '" 6 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citation omitted). Given these provisions, the NRDC's argument is rather straightforward. The NRDC and its members contend that they are aggrieved by the State Department's decision to issue a presidential permit to Keystone based on an EIS that does not comply with NEP A. This agency action is final because it took effect in accordance with the Executive Order without further review by the President. No party alleges that the State Department referred, or was required to refer, Keystone's application to the President for a final decision under subsection l(i) of the Executive Order. The NRDC' s argument thus rises or falls on the existence of an AP A cause of action in this particular case. Defendants argue that agency action pursuant to a delegation of the President's inherent constitutional authority over foreign affairs is tantamount to an action by the President himself. I agree. The State Department, here, is not acting pursuant to any congressional delegation of power, nor is it even acting pursuant to an Executive Order that was promulgated to carry out a particular congressional mandate. 5 To the contrary, the State Department is acting solely on behalf of the President, and in doing so, it is exercising purely presidential prerogatives. 5According to the plain terms of Executive Order 13,337, the President issued the Order by "the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code." Exec. Order No. 13,337,69 Fed. Reg. 25,299. The only statute that the Order references is 3 U.S.C. § 301, which merely authorizes the President to delegate to agencies or executive branch officials the performance of "any function which is vested in the President by law." Such delegations are "revocable at any time by the President in whole or in part." Id. 7 Defendants have amply documented the long history of Presidents exercising their inherent foreign affairs power to issue cross-border permits, even in the absence of any congressional authorization. (See State Dept. Mot. to Dismiss [#26-2] at 11-13; Keystone Mot. to Dismiss [#25] at 2-4). Because the President is not an "agency" for purposes of the AP A, presidential action is not subject to judicial review under that statute. Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992); Dalton v. Specter, 511 U.S. 462, 470 (1994). By the same token, because the State Department is acting for the President in issuing presidential permits pursuant to Executive Order 13,337, it too cannot be subject to judicial review under the AP A. The NRDC contends, not surprisingly, that agency action is not presidential action unless there is some requirement that the President review the agency action before it takes legal effect. The NRDC argues that this result follows from Bennett v. Spear, which held an agency action to be final by distinguishing Franklin and Dalton on the ground that the challenged agency actions in those cases "were purely advisory and in no way affected the legal rights of the relevant actors" without final action by the President. 520 U.S. at 178. Thus, in this case, because the President made the unwitting choice of delegating his inherent authority to issue cross-border permits, which would otherwise be unreviewable, to the State Department without reserving in all cases the right to make the final decision, State Department decisions to grant or deny presidential permits that are not reviewed by the President are now reviewable under the AP A. I disagree. 8  The NRDC errs by conflating the question of whether a particular action is final with the question of whether a particular action is presidential. To the extent that it has immediate legal effect, issuance of a presidential permit, to be sure, is a final action, but that does not end the inquiry. The question that remains, and the question that this Court must now answer, is whether issuance of a presidential permit by the State Department pursuant to an executive order, which is derived from the President's inherent constitutional power and not from any congressional command, is a presidential action immune from judicial review under the APA. Bennett sheds no light on this question, and Franklin and Dalton do so only indirectly. Franklin involved a statute, 13 U.S.c. § 141 (b), that directed the Secretary of Commerce to issue a report to the President tabulating the apportionment results from the decennial census. 505 U.S. at 792. Another statute, 2 U.S.c. § 2a(a), required the President to transmit the apportionment results to Congress. Id. The Supreme Court held that the Secretary's report to the President was not a final agency action because it carried "no direct consequences" and served "more like a tentative recommendation than a final and binding determination." Id. at 798. Central to this conclusion was the Supreme Court's determination that the President performed more than a ministerial task in transmitting the final apportionment results to Congress. The Court noted that nothing in the statutory scheme "curtail [ed] the President's authority to direct the Secretary in making policy judgments" or required the President "to adhere to the policy decisions reflected in the Secretary's report." Id. at 799. Given the President's central role in the 9 process, the Supreme Court concluded that it could review the AP A claims at issue only "if the President, not the Secretary of Commerce, is an 'agency' within the meaning of the [APA]." Id. at 800. "Out of respect for the separation of powers and the unique constitutional position of the President," the Court held that the President's actions are not subject to the APA's requirements. Id. 800-01. The Court instead "would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion." Id. at 801. The Supreme Court similarly held in Dalton that the report of the Defense Base Closure and Realignment Commission was not a final agency action under the AP A because the President retained final authority to reject or approve the report. 511 U.S. at 469-70. The Court emphasized "the importance of [the President's] role in the base closure process." Id. at 470. Specifically, the Court noted that "[w]ithout the President's approval, no bases are closed" and that the relevant statute "does not by its terms circumscribe the President's discretion to approve or disapprove the Commission's report." Id. Even though the President's discretion was curtailed in the sense that he could only reject or accept the Commission's recommendations, the Court concluded nonetheless that the determinative fact was that "the President, not the Commission, takes the final action." Id. (internal quotation marks and alterations omitted). Franklin and Dalton, of course, are not directly analogous to this case. No agency action had any legal effect in either case until the President affirmatively acted. Nevertheless, the reasoning of both cases is instructive. The Supreme Court distinguished 10 reviewable agency action from unreviewable presidential action by the nature of the President's authority over agency decisions, not by whether or how the President exercised that authority. Unlike ministerial or ceremonial authority, the President's exercise of significant discretionary authority over agency decisions constitutes presidential action, which is shielded from judicial review under the AP A out of concern for the separation of powers. Whether the President carries out the final action himself and the manner in which he does so are considerations that certainly bear on whether the President's duties are ministerial or discretionary, but there is no reason to think that these considerations alone are determinative. See Franklin, 505 U.S. at 800 (''That the final act is that of the President is important to the integrity of the process and bolsters our conclusion that his duties are not merely ceremonial or ministerial."). Neither Franklin nor Dalton require, as the NRDC suggests, that the President actually make the final decision before an action is deemed to be presidential and thus unreviewable. The determinative consideration is whether "the President's authority to direct the [agency] in making policy judgments" is curtailed in any way or whether the President is "required to adhere to the policy decisions" of the agency. See id. at 799. In this case, the President has complete, unfettered discretion over the permitting process. No statute curtails the President's authority to direct whether the State Department, or any other department for that matter, issues a presidential permit. Nor does any statute bin? the President to any State Department decision granting or denying a permit. The State Department acts solely at the behest of the President and in 11 accordance with the President's guidance as set forth in Executive Order 13,337. The NRDC makes much of the fact that the Executive Order "does not contemplate the President's involvement in the permitting process," except in those cases when a permit application is referred directly to the President for a final decision because of interagency disagreement. (NRDC Op. [#36] at 10). That the President chose to retain ultimate authority to settle any interagency dispute signals his belief that the issuance of presidential permits is ultimately a presidential action. The Executive Order's division of responsibilities is merely a device for managing the President's decision-making process. Simply stated, the State Department stands in the President's shoes by exercising the President's inherent discretionary power under the Constitution to issue cross-border permits. No permit can issue without, at the very least, the President's acquiescence, and the President's acquiescence is itself an exercise of discretion that constitutes unreviewable presidential action. Therefore, to challenge the issuance of a presidential permit, whether by the President himself or by the State Department as the President's delegee, is to challenge a presidential act, which is not reviewable under the AP A. See Tulare County v. Bush, 185 F. Supp. 2d 18,29 (D.D.C. 2001), aff'd, 306 F.3d 1138 (D.C. Cir. 2002) (dismissing a NEPA claim "because NEPA requires agency action, and the action in question is an extension of the President's action"); see also Jensen v. Nat'l Marine Fisheries Serv., 512 F.2d 1189, 1191 (9th Cir. 1975) ("For the purposes of this appeal the Secretary's actions are those of the President, and therefore by the terms of the AP A the approval of the regulation at issue here is not reviewable. "). 12  To expose pennitting decisions, which are unreviewable if exercised by the President himself, to judicial review under the AP A just because the President assigned this power to a subordinate agency would run afoul of the separation of powers concerns that underlie the Supreme Court's decisions in Franklin and Dalton. Indeed, the separation of powers interests at stake in this case are even greater because the President and his delegee here are acting pursuant to the President's inherent foreign affairs power, not pursuant to any enabling statute. See Mountain States Legal Found. v. Bush, 306 F .3d 1l32, 1136 (D.C. Cir. 2002) (noting that judicial review over presidential decisions that are subject to discernible statutory limitations "does not implicate separation of powers concerns to the same degree" as judicial review where the President's discretion is not limited). Unlike Franklin and Dalton, as well as other cases cited by the NRDC, there is no statutory framework in which Congress delimited certain roles for the President and the agency. CI, e.g., Pub. Citizen, 5 F.3d at 551 (noting how the Trade Acts involve the President at the final stage of the process for submitting a trade agreement to Congress). Nor is this case like those in which courts have allowed AP A review of actions pursuant to an executive order that was itself governed by statute and did not preclude judicial review. CI, e.g., City of Carmel-By-The-Sea v. u.s. Dep'f of Transp. , 123 F.3d 1142, 1166 (9th Cir. 1997) (stating that the Ninth Circuit has recognized "that under certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency action and reviewed under the Administrative Procedure Act" if they "do not preclude judicial review" and "there is 'law to apply"'). 13  Here, there is no statute that curtails or otherwise governs the President's discretion to issue presidential permits. 6 Not even the EIS requirement ofNEPA applies to the President. See Tulare County, 185 F. Supp. 2d at 28 (stating that the President is not subject to NEPA's impact statement requirement because "the President is not a federal agency for the purposes ofNEPA"). The President acts solely by his own constitutional authority. Judicial review of permitting decisions that the President has delegated to the State Department would impose an unconstitutional burden on his power to delegate that the APA does not require, let alone contemplate. To treat those decisions as agency action "would suggest the absurd notion that all presidential actions must be carried out by the President him or herself in order to receive the deference Congress has chosen to give to presidential action." Id. at 28-29. Worse yet, the NRDC's position, if the Court were to accept it, would create an asymmetry between presidential permits that are reviewed by the President because of interagency disagreement and those that are issued solely by the State Department. This outcome would surely frustrate the President's discretion to enact his preferred decision-making process. Thus, "[0 Jut of respect for the separation of powers and the unique constitutional position of the President," it is proper in this case to forego AP A review of permitting decisions under Executive Order 13,337, whether by the President or by the State Department acting on 6 In this respect, this case is unlike Corus Group PLC v. Int'l Trade Comm 'n, a case the NRDC cited, which applied Bennett instead of Franklin and Dalton because the President did "not have complete discretion under the [relevant enabling] statute." 352 F.3d 1351,1359 (Fed. Cir. 2003). 14 his behalf, absent "an express statement by Congress" that such review is intended. 7 Franklin, 505 U.S. at 800-01. Simply stated, an act need not be carried out by the President personally to constitute presidential action exempt from judicial review under the AP A. Where, as here, the President (as opposed to Congress) delegates his inherent constitutional authority to a subordinate agency and that authority is not limited or otherwise governed 7 Generally, judicial review of agency action is presumed and cannot be withheld "absent some clear and convincing evidence of legislative intention to preclude review." Japan Whaling Ass 'n v. Am. Cetacean Soc y, 478 U.S. 221, 230 n.4 (1986). This presumption is reversed, however, when interests arising from the separation of powers are at stake. See Franklin, 505 U.S. at 801 ("As the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements."). In any event, there is good reason to think that Congress intended to exempt from judicial review presidential discretion of the kind at issue here, whether exercised by the President himself or by his delegee, because the APA is inapplicable where "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2); see Jensen, 512 F .2d at 1191 ("Since presidential action in the field of foreign affairs is committed to presidential discretion by law, it follows that the APA does not apply to the action of the Secretary in approving the regulation here challenged." (internal citations omitted)). Given that the authority to issue presidential permits flows from the President's inherent power over foreign affairs and is not governed or limited by any statute, there is little doubt that permitting decisions are committed to the President's (and hence his delegee's) discretion. The Court is mindful, of course, that presidential action is not beyond the reach of all judicial oversight. Actions of the President and his agents are still subject to non-statutory judicial review to determine the constitutionality of those actions, see Franklin, 505 U.S. at 801, or to determine whether those actions are ultra vires, see Chamber a/Commerce a/the u.s. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996). In this case, however, the crux of the NRDC's claim is that the State Department, acting on the President's behalf, abused its discretion by issuing a presidential permit based on a deficient EIS. (See Amend. Compo [#21] at ~ 64, 71). This type of challenge to presidential action does not warrant non-statutory judicial review. Where, as here, a specific decision is entrusted to the President and there are no discernible statutory limitations on the President's exercise of that authority, "judicial review of an abuse of discretion claim is not available." Chamber a/Commerce, 74 F.3d at 1331. 15 by statute, the agency's exercise of that discretionary authority on behalf of the President is tantamount to presidential action and cannot be reviewed for abuse of discretion under the AP A. The President's authority to issue permits for cross-border pipelines is completely discretionary and is not subject to any statutory limitation, including NEPA's impact statement requirement. Accordingly, the decision to issue a permit, whether made by the President himself or the State Department as the President's delegee, is a presidential action not reviewable for abuse of discretion. Absent a right to judicial review, the NRDC cannot state a claim. Accordingly, defendants' respective Motions to Dismiss are GRANTED, and an Order consistent therewith is hereby attached. , United States District Judge 16 

284 U.S. 136 (1931) HANDY & HARMAN v. BURNET, COMMISSIONER OF INTERNAL REVENUE. No. 14. Supreme Court of United States. Argued October 19, 1931. Decided November 23, 1931. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Mr. William C. Breed for petitioner. Assistant Attorney General Youngquist, with whom Solicitor General Thacher and Messrs. Whitney North Seymour, Sewall Key, and John H. McEvers were on the brief, for respondent. *137 MR. JUSTICE BUTLER delivered the opinion of the Court. Petitioner claims that it and Hamilton & DeLoss, Inc., were affiliated corporations as defined by § 240 of the Revenue Act of 1918 and that it is entitled to have its net income and invested capital for 1918 and the first month of 1919 determined on the basis of consolidated returns. The Commissioner of Internal Revenue held *138 them not affiliated, rejected petitioner's claim for abatement for 1918 and asserted a deficiency for 1919. The Board of Tax Appeals approved the Commissioner's determination (17 B.T.A. 980) and upon petition for review the Circuit Court of Appeals affirmed. 47 F. (2d) 184. That decision being in conflict with decisions of other Circuit Courts of Appeals,[1] this Court granted certiorari. 283 U.S. 813. The pertinent provisions of the section follow (40 Stat. 1081): "§ 240 (a). That corporations which are affiliated within the meaning of this section shall, under regulations to be prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income and invested capital for the purposes of this title [Title II] and Title III, and the taxes thereunder shall be computed and determined upon the basis of such return: . . . "(b). For the purpose of this section two or more domestic corporations shall be deemed to be affiliated . . . (2) if substantially all the stock of two or more corporations is owned or controlled by the same interests." Petitioner carried on the business of dealing in gold and silver bullion and specie and furnishing to silversmiths silver rolled into sheets or coils. In 1916 its officers caused Hamilton & DeLoss, Inc., to be organized, to erect a factory and to take over the work of its stamping department. *139 During the taxable periods six men owned 93.71 per cent. of the stock of petitioner. The same men owned over 75 per cent. of the stock of Hamilton & DeLoss, Inc. Hamilton did not own or control any of the stock of petitioner. Twenty per cent. of the stock of the new company was issued to him and he became its president. He gave to a bank his notes endorsed by DeLoss to obtain money to pay for the stock. Before the beginning of 1918 he executed an irrevocable stock power to one Higgins, and the latter, by like instrument, assigned the stock to DeLoss, who deposited it with the bank as collateral security for the payment of Hamilton's notes. Hamilton failed to pay and, February 1, 1919, after the expiration of the tax periods, DeLoss paid the notes and took over the stock. Prior to that time Hamilton attended all the stockholders' meetings but never voted in opposition to the owners of the majority stock of both corporations. Hamilton & DeLoss, Inc., paid him a salary at the rate of $10,000 per year, but the other officers of that corporation, being officers, directors or employees of the petitioner, received their compensation from the latter, although a large part of their time was devoted to the business of the former. During the taxable periods the corporations were operated as a business unit, and Hamilton & DeLoss, Inc., sustained a net loss. It may be assumed that the pledge as collateral was also to protect DeLoss as endorser. But it does not appear that, as between him and Hamilton, he was entitled to control voting power, or to have the stock transferred to him of record, or to have any use or benefit therefrom unless and until required to pay the notes. It was not held by or for him. The losses sustained by Hamilton & DeLoss, Inc., did not, in respect of that stock, directly or indirectly result to his disadvantage. The section requires control of substantially all of the stock; control of *140 the corporations is not enough.[2] The carrying on of a business unit by two or more corporations does not in itself constitute affiliation. The shares of Hamilton & DeLoss, Inc., owned by the six shareholders did not constitute substantially all of its stock.[3] We assume in favor of petitioner that they, through their power over Hamilton's official position and salary, their ability to dominate both corporations or by other means, were in position effectually to influence him in respect of the voting, use or disposition of the stock issued to him, and thus as a practical matter to exert a kind of control called by counsel "actual" to distinguish it from a legally enforceable control. The purpose of § 240 was, by means of consolidated returns, to require taxes to be levied according to the true net income and invested capital resulting from and employed in a single business enterprise, even though it was conducted by means of more than one corporation. Subsection (b) clearly reflects the intention, by means of such returns, to secure substantial equality as between shareholders who ultimately bear the burden. That intention is shown by the legislative history and was given effect by the regulations contemporaneously promulgated.[4] It requires *141 no discussion to show that such returns will not make against inequality or evasion unless the same interests are the beneficial owners in like proportions of substantially all of the stock of each of such corporations. Alameda Investment Co. v. McLaughlin, 28 F. (2d) 81. Montana Mercantile Co. v. Rasmusson, 28 F. (2d) 916. Commissioner v. Adolph Hirsch & Co., 30 F. (2d) 645, 646. Commissioner of Internal Revenue v. City Button Works, 49 F. (2d) 705. Affiliation on any other basis would not make against inequality or evasion. It would require very plain language to show that Congress intended to permit consolidated returns to depend on a basis so indefinite and uncertain as control of stock without title, beneficial ownership or legal means to enforce it. Control resting solely on acquiescence, the exigencies of business or other considerations having no binding force is not sufficient to satisfy the statute. Judgment affirmed. NOTES [1] Ice Service Co. v. Commissioner, 30 F. (2d) 230, and Commissioner v. Adolph Hirsch & Co. 30 F. (2d) 645. (C.C.A.-2.) United States v. Cleveland, P. & E.R. Co., 42 F. (2d) 413. (C.C.A.-6.) American Auto Trimming Co. v. Lucas, 37 F. (2d) 801. (App. D.C.) J. Rogers Flannery & Co. v. Commissioner, 42 F. (2d) 11. (C.C.A.-3.) Pelican Ice Co. v. Commissioner, 37 F. (2d) 285. (C.C.A.-5.) Great Lakes Hotel Co. v. Commissioner, 30 F. (2d) 1. (C.C.A.-7.) Burnet v. Wilshire Oil Co., 46 F. (2d) 975. (C.C.A.-9.) [2] It was so held in Ice Service Co. v. Commissioner, 30 F. (2d) 230, 231; Commissioner v. Adolph Hirsch & Co., 30 F. (2d) 645, 646; American Auto Trimming Co. v. Lucas, 37 F. (2d) 801, 803; United States v. Cleveland, P. & E.R. Co., 42 F. (2d) 413, 419; Commissioner v. Gong Bell Mfg. Co., 48 F. (2d) 205, 206; Onondaga Co. v. Commissioner, 50 F. (2d) 397, 399. [3] United States v. Cleveland, P. & E.R. Co., 42 F. (2d) 413, 419. Burnet v. Bank of Italy, 46 F. (2d) 629, 630. Jos. Denunzio Fruit Co. v. Commissioner, 49 F. (2d) 41. Wadhams & Co. v. United States, 67 Ct. Cl. 235. [4] Treasury Regulations 41, Art. 77; § 1331 (a), Revenue Act of 1921, 42 Stat. 319. § 336, House Bill 12863; § 240 (b), same Bill; Senate Report No. 617 (Senate Documents, Vol. 4, Document 310, 65th Congress, 3d Session); H.R. Conference Report No. 1037, p. 15, same session. Regulations 45 (1920 ed.) Arts. 631, 633.

349 F.Supp. 1258 (1972) UNITED STATES of America, v. Robert Charles FOX, a/k/a Bob, a/k/a R. Martin, et al., Defendants. Crim. No. 7088. United States District Court, S. D. Illinois, S. D. September 27, 1972. Edward G. Coleman, Springfield, Ill., for Robert Charles Fox and Victor Seppi. Heckenkamp & Fuiten, Springfield, Ill., for Ernest B. Dinora and Richard Mattera. J. H. Weiner, Springfield, Ill., for Dominic Greco. Robert E. Gillespie, Springfield, Ill., for Kenneth Dunlap. Thomas M. Vockrodt, Special Atty., Department of Justice, St. Louis, Mo., Donald B. Mackay, U. S. Atty., Springfield, Ill., for the United States. *1259 OPINION OF THE COURT POOS, District Judge. This case involves the procedure utilized by the Department of Justice in initiating an application for the interception of wire and oral communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C., Sec. 2510 et seq. Various affidavits were filed by the Government setting out the general procedure utilized in initiating an application for the interception of wire and oral communications. Whenever a formal request for authorization for an interception was received, the accompanying file which included copies of the proposed affidavit, application and order were examined by a special unit of the Organized Crime and Racketeering Section of the Criminal Division. The file was then forwarded to the Deputy Chief or Chief of the Organized Crime and Racketeering Section and then on to the office of the Assistant Attorney General of the Criminal Division where it was again reviewed by a Deputy Assistant Attorney General. The file, with the recommendation of the Criminal Division, was then forwarded to the office of the Attorney General. Sol Lindenbaum, the Executive Assistant to the Attorney General, then reviewed the file. In most instances the file, with Sol Lindenbaum's recommendation added, was then sent in to the Attorney General for his personal authorization. In some instances Sol Lindenbaum exercised the authority of the Attorney General in authorizing the application as he had been authorized by the Attorney General's policy on such requests. An affidavit has been filed by the former Attorney General of the United States, John W. Mitchell, stating that he has verbally authorized Sol Lindenbaum, his Executive Assistant, to act on his behalf on requests for authorizations for interceptions of wire and oral communications. There were two authorizations for the interception of wire and oral communications in this case. On October 21, 1970 the Criminal Division of the Department of Justice addressed to the Attorney General a request for approval of authorization to apply for interception orders. On November 10, 1970 the Criminal Division sought authorization for an extension of the interception obtained under the first request. On October 21, 1970, the Attorney General of the United States approved the request that authorization be given to make application for an interception order by initialing a memorandum to Will Wilson, Assistant Attorney General, Criminal Division. The file was then sent back to the Criminal Division with this memorandum authorizing him to authorize Thomas Vockrodt to submit the authorized application to this Court. A letter of authorization dated October 22, 1970 was then dispatched to the applicant, Thomas Vockrodt, over Will Wilson's signature. Mr. Wilson's signature was placed on this particular letter by Mr. Henry Petersen, Deputy Assistant Attorney General, Criminal Division. An affidavit has been filed by the former Assistant Attorney General for the Criminal Division, Will Wilson, stating that he has authorized Deputy Assistant Attorney General, Henry E. Petersen, and Deputy Assistant Attorney General, Harold Shapiro, to sign his name to letters of authorization for application of interception of wire and oral communications. The procedure utilized for the November 10, 1972 extension authorization was substantially the same as that utilized for the original authorization of October 21, 1972. The procedures differed when the file was sent to the Office of the Attorney General. The Attorney General did not personally authorize the extension of October 11, 1972 Order. Instead Sol Lindenbaum, the Executive Assistant to the Attorney General, placed the Attorney General's initials on the request for authorization, and sent the file back to the Criminal Division with a memorandum addressed to the Assistant Attorney General, Will Wilson, authorizing *1260 him to authorize the particular trial attorney, Thomas Vockrodt to submit the authorized application to this Court. Will Wilson's signature was affixed to the authorization for an extension by Harold Shapiro, one of his Deputy Assistants. The question now before this Court is whether or not the procedure utilized by the Department of Justice in initiating the application of October 21, 1970 for the interception of wire and oral communications, and the extension application of November 10, 1972 under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C., Section 2510 et seq., is within the meaning of Title 18, U.S.C., Section 2516(1). Title 18, U.S.C., Section 2516(1) provides in pertinent part: "The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made . . ." In United States v. Robinson, 468 F. 2d 189 (C.A. 5), January 12, 1972, the Court read Section 2516(1) literally. In that case the Executive Assistant to the Attorney General of the United States, acting under authority delegated by the Attorney General, approved actions specially designating an Assistant Attorney General to authorize the application to a federal judge for the wiretaps in question. This proxy commission was then routinely executed by a Deputy Assistant Attorney General who subscribed the Assistant Attorney General's name on letters to the United States Attorney empowering him to file an application. The Government argued that direct action of the Attorney General or Assistant Attorney General personally was not needed in order to properly commence the authorization even though Section 2516(1) specially mentions the Attorney General or Assistant Attorney General. The Government cited 28 U.S.C., Section 510, which provides: "The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee or agency of the Department of Justice of any function of the Attorney General", and argued that this Section permits the Deputy Assistant Attorney General involved to authorize a request for authorization for the interception of wire and oral communications. The Court rejected this argument and stated that since Section 510 had existed when Section 2516(1) was enacted, the inclusion in the later statute of language specifying who the Attorney General could specially designate to perform the instigating function would have been surplusage if Congress meant that the Attorney General could authorize the performance of his duty by any officer, employee or agency of his Department. Section 2516(1), the Court concluded, was intended to operate as a limit upon Section 510 rather than that Section 510 broadened the circumscribed authority set out in Section 2516(1). The Court in Robinson went on to discuss the legislative history of Section 2516(1). The intention of Congress was to have a publicly responsible official subject to the political process initiate a wiretap application. Congress wanted to make certain that every such matter would have the personal attention of an individual appointed by the President and confirmed by the Senate. Its reasoning, the Court stated, was that this narrow limitation to top department officials would (1) establish a unitary policy in the use of the awesome power conferred, and (2) require that power to be exercised with a circumspection reenforced by ready identifiability of whoever *1261 was responsible for its use, thus maximizing the guarantee that abuses would not occur. The Court stated that the action of the Attorney General's Executive Assistant in designating an Assistant Attorney General to authorize the application severely undercut the congressional scheme of Section 2516(1) and took from rather than added to the protections intended by Congress. The Court ultimately concluded that the interceptions of the wire and oral communications were improperly authorized and suppressed all evidence which emanated from these improperly authorized wiretaps. The Court, in United States v. Aquino, 338 F.Supp. 1080 (E.D.Mich.1972) adopted the rationale of the Robinson case. The same procedure utilized in the Robinson case was also utilized in the Aquino case. However, the authorization in Aquino dealt with an extension of a properly authorized wiretap. The Court extended the Robinson rationale to the extension authorization and suppressed all evidence obtained from the wiretap after its extension date. In United States v. Pisacano, 459 F.2d 259, C.A. 2, 1972, the Court upheld the procedure utilized by the Justice Department in authorizing an application to a federal judge for a wiretap. In the Pisacano case Sol Lindenbaum, Executive Assistant to the Attorney General of the United States, approved actions designating Will Wilson, then Assistant Attorney General in charge of the Criminal Division, to authorize a designated field official to apply to a federal judge for interception orders under 18 U.S.C., Section 2518. Henry Petersen signed Will Wilson's name which was in conformity with the standard procedure of dispatching such a letter in every case in which Will Wilson had been specially designated on an ad hoc basis to authorize the application. The Court held that this procedure was within the meaning of 18 U.S.C., § § 2516(1), i. e., the "narrow limitation" on authorizations by "top department officials" prescribed in Section 2516(1) did result in the establishment of "a unitary policy in the use of the awesome power conferred" in Title III. The Court further stated that the procedures used clearly conformed with the letter of Section 2516(1), particularly when this is read in light of the evidence, furnished by Section 101(a) of the Civil Rights Act of 1968, 18 U.S.C., Sec. 245(a)(1) that when Congress wished to prohibit delegation of any sort, it knew how to do it. In United States v. Ceraso, 467 F.2d 647, C.A. 3, 1972, the Attorney General of the United States personally approved the authorization for a wiretap by initialing a memorandum to Will Wilson authorizing him to authorize a designated field official to apply to a federal judge for a wiretap. Because the Assistant Attorney General's office regarded this authorization as a ministerial act in light of the Attorney General's approval of the application, Wilson's Deputy Assistant Attorney General, Harold Shapiro, signed Wilson's name to the letter. The Court held this procedure proper in that it complied with the intent of Congress to centralize in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. 1968 U. S.Code Cong. and Admin.News, pp. 2112, 2185. The Court stated that once the Attorney General or his designated Assistant Attorney General approves, the purposes of centralization are achieved. The procedure utilized herein for the October 21, 1970 application for an interception of wire communications is identical to the procedure utilized in Ceraso case. Even though the Attorney General merely initialed the memorandum to Will Wilson authorizing him to authorize a field official and even though Mr. Henry Petersen placed Mr. Will Wilson's signature on this memorandum, this Court finds that this procedure is within the intent of Congress. *1262 Once the Attorney General approved a wiretap application, the intent of centralizing in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of wiretaps was achieved. The fact that Will Wilson did not sign the memorandum is not of such a significant infirmity to find this procedure improper. The important fact is that the Attorney General of the United States, as specified in Section 2516(1), did personally approve an authorization. Admittedly, he merely authorized Will Wilson to authorize a field official to apply for a wiretap to a federal judge, but to hold this procedure improper would be to place form over substance and would negate the intent of Congress. Accordingly, this Court holds that the procedure utilized in the October 21, 1970 authorization for the interception of wire and oral communications is within the meaning of Title 18, U.S.C., Section 2516(1). The situation in the November 10, 1970 authorization differs from that of October 21, 1970. In this instance neither the Attorney General nor an Assistant Attorney General personally authorized an application. The facts in Pisacano and Robinson are similar to those of the extension authorization of November 10, 1970. However, the court in each of these cases took a different position. This Court has carefully considered the ruling in the Pisacano case and must reject the rationale therein. The Government argues that the Attorney General assumed full responsibility for what was done even if he did not act himself in every case. This may be true, but Section 2516(1) specifically states that the Attorney General or a specially designated Assistant Attorney General may authorize. The action of the Attorney General's Executive Assistant in designating an Assistant Attorney General to authorize the application, took from rather than added to the protections intended by Congress. The Attorney General's authority from Congress was to initiate wire tap applications, not to seek to have those terminated that he might find should never have been requested in the first instance. The Government also argues that Congress did not intend to prohibit delegation in Section 2516(1). In Title 18 U.S.C., § 245(a)(1), Section 101, Pub. Law 90-284, Civil Rights Act of 1968, Congress specifically precluded delegation. The Government attempts to infer from this no delegation statute that if Congress had intended to prohibit delegation in Section 2516(1) it would have so stated. This Court cannot accept this rationale. Section 2516(1) specially mentions the Attorney General or an Assistant Attorney General specially designated by the Attorney General. Nothing is mentioned concerning delegation. If Congress wished to allow delegation, the wording of the statute definitely would have been otherwise. The Attorney General or Assistant Attorney General would not have been specifically mentioned in the statute. The words employed in Section 2516(1) meant what they said, and said what they meant. In this Court's opinion, when Congress stated in Section 2516(1) that the power to authorize applications to a federal judge was given to "the Attorney General, or any Assistant Attorney General specially designated by the Attorney General", it excluded designation of or delegation to all other persons. When matters of a person's privacy are involved, the Government should be required to adhere to the dictates of Congress. The citizen's right to be left alone demands strict compliance with the letter of this legislative proviso. Here Congress specified that the Attorney General or Assistant Attorney General specially designated by the Attorney General may authorize. The fact that this procedure was not followed in extension order of November 10, 1970 renders all information obtained from this extension order inadmissible. Accordingly, all evidence obtained from this November 10, 1972 extension order must be suppressed. *1263 Indeed this decision will burden the Attorney General who is required to give his individual attention to many affairs of great importance. Nonetheless the procedure enunciated in Section 2516(1) must be strictly followed.

NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit 2007-1095, -1166 F & G RESEARCH, INC., Plaintiff-Appellant, v. PATEN WIRELESS TECHNOLOGY, INC., Defendant-Cross Appellant. ----------------------------------------------------------------------------------------------- 2007-1206 F & G RESEARCH, INC., Plaintiff-Appellant, v. PATEN WIRELESS TECHNOLOGY, INC., Defendant-Appellee. ON MOTION Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge. PROST, Circuit Judge. ORDER F & G Research, Inc. and Paten Wireless Technology, Inc. each respond to the court’s orders concerning whether appeal nos. 2007-1095 and 2007-1166 should be dismissed as premature. Paten moves to dismiss 2007-1095 and 2007-1166. F & G responds. Paten replies. F & G filed a patent infringement suit against Paten. F & G Research, Inc. v. Paten Wireless Tech., Inc., No. 06-CV-60292 (S.D. Fla.). Paten did not file an answer and the district court entered a default judgment. Paten filed a notice of appeal directed to the United States Court of Appeals for the Eleventh Circuit, which was later transferred to this court and docketed as 2007-1166. The district court subsequently reinstated the case. F & G filed a petition to reinstate the default judgment. The district court denied the petition on October 27, 2006, and F & G appealed. That appeal was docketed as 2007-1095. On February 14, 2007, the district court determined that it lacked personal jurisdiction over Paten and dismissed the case. F & G appealed, and that appeal was docketed as 2007-1206. Paten states that it does not wish to pursue its appeal, 2007-1166. F & G opposes but does not sufficiently explain the basis for its opposition. Therefore, we dismiss Paten’s appeal, 2007-1166. F & G’s first appeal, 2007-1095, seeks review of the district court’s order denying F & G’s petition to reinstate the default judgment. Because proceedings were ongoing in the district court at the time F & G filed this appeal, it was filed prematurely and thus is dismissed. See 28 U.S.C. § 1295 (a)(1); Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision under 28 U.S.C. § 1295 (a)(1) and therefore no jurisdiction”). Accordingly, IT IS ORDERED THAT: (1) Paten’s motion to dismiss 2007-1095 and 2007-1166 is granted. 2007-1095, -1166, 2007-1206 2  (2) Each side shall bear its own costs for 2007-1095 and 2007-1166. (3) The revised official caption for 2007-1206 is reflected above. (4) F & G’s brief in 2007-1206 is due within 30 days of the date of filing of this order. FOR THE COURT April 4, 2007 /s/ Sharon Prost Date Sharon Prost Circuit Judge cc: Allen D. Brufsky, Esq. Alexander Y. Thomas, Esq. s17 ISSUED AS A MANDATE (for 2007-1095 and 2007-1166 only): April 4, 2007 2007-1095, -1166, 2007-1206 3 

67 F.3d 294 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.Willie Lee GRAHAM, Plaintiff-Appellant,v.Charles G. ASCHAMNN, Jr., Defendant-Appellee. No. 95-6059. United States Court of Appeals, Fourth Circuit. Submitted May 31, 1995.Decided Sept. 13, 1995. Willie Lee Graham, Appellant pro se. Before WIDENER, WILKINS, and MOTZ, Circuit Judges. OPINION PER CURIAM: 1 Willie Lee Graham was convicted of escaping from a federal prison. Graham was represented by Charles G. Aschamnn, Jr., a court-appointed attorney. After his conviction, Graham filed this action, alleging that Aschamnn was negligent in his representation; Graham sought over one million dollars in damages. The district court interpreted the suit as a 42 U.S.C. Sec. 1983 (1988) action and dismissed the case pursuant to 28 U.S.C. Sec. 1915(d) (1988), reasoning that court-appointed attorneys are not state actors and, therefore, are not subject to suit under Sec. 1983. Graham, however, did not file this suit under Sec. 1983; rather, he invoked the court's diversity jurisdiction. Even if the court had construed Graham's complaint as a diversity action, dismissal under Sec. 1915(d) would have been proper. Therefore, we affirm. 2 A dismissal under Sec. 1915(d) is proper when the underlying claim lacks an arguable basis in law or fact. Adams v. Rice, 40 F.3d 72, 74 (4th Cir.1994), cert. denied, 115 S.Ct. 1371 (1995). Graham's claim, that his attorney committed malpractice, was clearly baseless in fact. His complaint "failed to contain any factual allegations tending to support his bare assertion." White v. White, 886 F.2d 721, 723 (4th Cir.1989). It merely contained several conclusory assertions of ineffective representation, none of which would have had any effect on the outcome of Graham's criminal proceeding. 3 Additionally, Graham's complaint had no basis in law. Under Virginia law, in order to succeed on a claim of legal malpractice, the plaintiff must plead and prove that the result of the underlying action would have been different if the attorney had not been negligent. See Stewart v. Hall, 770 F.2d 1267, 1269-70 (4th Cir.1985) (setting forth Virginia standard for attorney malpractice). Graham failed to plead any facts which show that there would have been a different outcome at his criminal trial if his attorney were not negligent. Therefore, his claim of malpractice lacks a basis in law. 4 Because Graham's complaint lacked "an arguable basis either in law or in fact," Neitzke v. Williams, 490 U.S. 319, 325 (1989), the district court properly dismissed the action under Sec. 1915(d). Accordingly, we affirm the district court's order. 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 in the decisional process. AFFIRMED

386 F.Supp. 915 (1974) UNITED STATES of America, Plaintiff, v. AIRCO, INC., Defendant. No. 72 Civ. 265. United States District Court, S. D. New York. December 30, 1974. *916 Irene A. Bowman, Lewis Bernstein, Dept. of Justice, Antitrust Div., Washington, D. C., for plaintiff. Shearman & Sterling, New York City, for defendant; W. Foster Wollen, Clarence W. Olmstead, Jr., New York City, of counsel. OPINION BONSAL, District Judge. The United States commenced this action against defendant Airco, Inc. ("Airco") on January 20, 1972 to prevent and restrain alleged continuing violations by Airco of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Jurisdiction is predicated on section 4 of the Sherman Act, 15 U.S.C. § 4. Airco, formerly known as the Air Reduction Company, Inc. is a diversified manufacturing company incorporated under the laws of New York. In 1972, the products which Airco produced and sold were within two major groups: (i) metallurgical and (ii) gases and related equipment. Products of the metallurgical group include ferroalloys, carbon, graphite, electrodes, and metal. The major products of the gases and related equipment group are industrial gases, cryogenic equipment, welding and cutting equipment, and medical gases and equipment. Of Airco's sales of approximately $518 million in 1972, products of the metallurgical group accounted for 42.6% and products of the gases and related equipment group accounted for 57.4%. In 1972 Airco ranked 255th in *917 sales on Fortune's Directory of the 500 largest United States industrial corporations and had assets of some $607 million. The complaint charges that since at least as early as 1959, and continuing to the date on which the complaint was filed, Airco violated section 1 of the Sherman Act "by entering into combinations involving reciprocal purchasing arrangements with respect to a substantial amount of interstate commerce whereby the defendant purchased products and services sold by various suppliers upon the understanding that those suppliers would purchase the products and services of the defendant, in unreasonable restraint of the aforesaid trade and commerce." In addition, the complaint charges that during this same period of time Airco, "through the use of its purchasing power," violated section 2 of the Sherman Act "by attempting to monopolize that part of the aforementioned interstate trade and commerce consisting of the requirements of actual and potential suppliers of the defendant for ferroalloys, industrial gases and other products sold by the defendant." The action was tried by the Court without a jury on July 11 and 12, 1974. After completion of the government's case, Airco moved pursuant to F.R.Civ.P. 41(b) for a dismissal on the ground that upon the facts and the law the government has shown no right to relief. Under F.R.Civ.P. 41(b) this Court has the power to decide the case on the merits and, unlike in a jury case, need not consider the government's evidence in a light most favorable to the government. 5 J. Moore, Federal Practice ¶ 41.13[3], at 1155 (2d ed. 1974). See also Huber v. American President Lines, 240 F.2d 778, 779 (2d Cir. 1957). However, in reaching the decision hereinafter set forth, the Court has interpreted the evidence in a light most favorable to the government. Section 1 of the Sherman Act The government contends that Airco violated section 1 of the Sherman Act by entering into combinations with its suppliers involving reciprocal buying. Simply defined, reciprocal buying is the practice of if you buy from me, I will buy from you, or conversely, if you don't buy from me, I won't buy from you. See United States v. General Dynamics Corp., 258 F.Supp. 36, 57 (S.D.N.Y. 1966). Whether accomplished by coercion or by more subtle arrangements, reciprocal buying has been recognized by the Supreme Court as "one of the congeries of anticompetitive practices at which the antitrust laws are aimed. The practice results in `an irrelevant and alien factor,' . . . intruding into the choice among competing products, creating at the least `a priority on the business at equal prices.'" Federal Trade Commission v. Consolidated Foods Corp., 380 U.S. 592, 594, 85 S.Ct. 1220, 1221, 14 L.Ed.2d 95 (1965). Among the consequences of reciprocal buying is the foreclosure of markets to competitors through use of purchasing power. Courts have most frequently confronted reciprocal buying as an anticompetitive practice in the context of conglomerate mergers challenged under section 7 of the Clayton Act, 15 U.S.C. § 18. See Federal Trade Commission v. Consolidated Foods Corp., supra; Allis-Chalmers Manufacturing Co. v. White Consolidated Industries, Inc., 414 F.2d 506 (3d Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 567, 24 L.Ed.2d 501 (1970); United States v. Ingersoll-Rand Co., 320 F.2d 509 (3d Cir. 1963), affirming 218 F.Supp. 530 (W.D.Pa. 1963). The leading case on reciprocal buying as a violation of section 1 of the Sherman Act is United States v. General Dynamics Corp., supra. The General Dynamics case arose out of a merger between General Dynamics Corporation and Liquid Carbonic Corporation, which resulted in Liquid Carbonic's becoming a division of General Dynamics. Finding that the merger created a potential for reciprocal buying which had been actively exploited to benefit the sales of the Liquid Carbonic *918 division and that at the time of the merger both General Dynamics and Liquid Carbonic had the intent to employ reciprocity to generate sales, the Court held that the merger violated section 7 of the Clayton Act and section 1 of the Sherman Act. However, although the Court found the presence of contracts for the sale of Liquid Carbonic's products to suppliers of General Dynamics, which were predicated on reciprocal buying, it held that a violation of section 1 of the Sherman Act by reason of the actual practice of reciprocal buying had not been established because the government had failed to prove that a not insubstantial amount of commerce was affected. In analyzing reciprocal buying as a violation of section 1 of the Sherman Act, the Court in General Dynamics drew an analogy with tying arrangements and focused on "specific contracts or combinations between the defendant's Liquid Carbonic Division and vendors of General Dynamics which were consummated as a result of" reciprocity. 258 F.Supp. at 51. The government had argued that if reciprocity was systematically interjected into the sales of the Liquid Carbonic division, and statistics and statements of the defendant indicated that the program was effective, then the Court could infer the existence of contracts in restraint of trade. The Court's answer is quoted at length: "Such a conclusion is not warranted. The Section's reference to contracts, combinations and conspiracies, is necessarily directed at bilateral arrangements. The statistics which the government mentions have been found by the court to be credible. Nonetheless, the business secured could be the result of the mere presence of the reciprocity power. United States v. Ingersoll-Rand Co., 320 F.2d 509, 524 (3d Cir. 1963). Vendors of General Dynamics to curry favor or protect present sales to the defendant, might unilaterally decide to purchase the products of Liquid Carbonic. In such instances, no actual contacts would occur and thus no agreements would be present to serve as a predicate for a Sherman § 1 violation. This is true even though if a sufficient volume of trade was diverted in this fashion, a Clayton § 7 violation would be established. "To prove the presence of vendor contracts on condition, particular contracts with identifiable parties must be introduced into evidence, or legitimately inferred from the conduct of such identifiable parties." 258 F.Supp. at 66. With these guidelines in mind, the Court turns to an examination of the evidence to determine whether the government has shown that Airco entered into any contracts, combinations, or conspiracies, or otherwise engaged in any course of dealing with any of its suppliers involving reciprocal buying, and whether if it did, a not insubstantial amount of interstate commerce was affected. The evidence consists of the trial testimony of five witnesses, some 250 exhibits, and selected portions of depositions taken from 15 officers and employees of Airco. The central figure in Airco's alleged reciprocal buying practices was Herman Van Fleet, Jr., the son of one of Airco's founders. From 1958 to 1962, Van Fleet held the position of Divisional Manager of National Accounts and Trade Relations for Airco's Industrial Gases Division. During the period 1962 to 1972, Van Fleet was Manager of Commercial Relations. Airco's Commercial Relations Department was composed of Van Fleet, his assistant, Fred Downs, and a secretary. In his capacity as Manager of Commercial Relations, Van Fleet was concerned primarily with trade relations, which involved (1) assisting Airco sales personnel seeking to present sales proposals to other companies in meeting the personnel in such companies who were responsible for making purchasing decisions, and (2) assisting sales representatives *919 from other companies seeking to present sales proposals to Airco in meeting Airco personnel who were responsible for making purchasing decisions. In a job description which he prepared in 1967, Van Fleet described his responsibility as Manager of Commercial Relations as "providing necessary intelligence and guidance for proper coordination of divisional selling effort." (Plaintiff's Exhibit ("PX") 187.) Among his functions, as he understood them, were to: "1. Create with companies with which we do business a favorable atmosphere which will assist the direct selling efforts of the Division Marketing organizations, and develop, maintain and improve relations with present and potential customers. 2. Maintain for use of company personnel information records about the company's business contacts in respect to: a. Purchases b. Sales c. Products d. Financial Position e. Organization, facilities and connections 3. Make commercial recommendations to assist Airco Purchasing Department. 4. Arrange introductions between customers' and suppliers' personnel and the proper people in our Company to accomplish best possible relationships. 5. Develop and maintain relationship with Commercial or Trade Relations Managers of key customers and suppliers. 6. Prepare and distribute to Management reports of major purchases and sales by Divisions on regular basis. 7. Keep abreast of important sales and purchase activities and act as the liaison agent between our Central Purchasing Department and the various Divisional Marketing or Sales Departments. 8. Engage personally in direct sales activity with Head Office or field personnel when requested. 9. Obtain up-to-date intelligence to aid in sales work in connection with customers and suppliers concerning mergers, acquisitions, expansions, personnel changes etc. and advise proper division or department." In performing his job, Van Fleet came into frequent contact with trade relations personnel of other companies, including customers and suppliers of Airco. Airco's Commercial Relations Department was discontinued in April or May 1972. With the approval of Airco, Van Fleet was a member of the Trade Relations Association, Inc. from its inception in 1962 until it became inactive in late 1971 or early 1972. The Trade Relations Association was made up of personnel from various companies who, like Van Fleet, were involved in trade relations. According to Van Fleet, the Trade Relations Association was concerned with the proper development of the trade relations function and gave him an opportunity to meet people who were interested in the same function as he was. Van Fleet attended the meetings of the Trade Relations Association regularly, became a director in 1968 and was president from 1970 until the Trade Relations Association became inactive. Airco paid Van Fleet's membership fee in the Trade Relations Association and his expenses when he attended as a member representing Airco. During the period of approximately 1965 through 1971, Airco made computer printouts listing the purchase and sales transactions between the Airco divisions and Airco's major customers and suppliers. Copies of these printouts were kept in Van Fleet's office and at least until 1967 were distributed to certain Airco personnel, including the division presidents and the director of purchasing. The computer printouts were discontinued in 1971 or 1972. *920 Van Fleet would on request or on his own initiative provide purchase and sales information to Airco personnel with purchasing and selling responsibilities. On his own business trips Van Fleet generally took with him purchase and sales information relating to companies which he planned to visit. One Airco officer testified at his deposition that he found purchase and sales information useful in evaluating potential antitrust problems in merger or acquisition discussions. (Reich deposition at 18.) Such information was also a means for Airco officers, who had frequent contact with officers of Airco's customers and suppliers, to acquire knowledge about the general scope of activities between Airco and its customers and suppliers. Airco's stated purchasing policy was to purchase on the basis of price, quality, and service. In 1967, Airco's purchasing personnel were told by the then Vice-President — Administration that "in proper circumstances" Airco's purchases could be used as part of the effort "to obtain a chance to present our sales pitch when necessary to assist marketing activities," and that where price, quality, and service were equal "consideration may be given to Airco's actual and potential sales to an otherwise equal supplier." (PX 160, at 14.) In the late 1960s Airco's purchasing activities were transferred from a centralized purchasing department to the divisional units of the corporation. Van Fleet was on occasion asked by purchasing personnel for recommendations as to suppliers. He recommended that where price, quality, and service were equal, customers should be preferred. To show that Airco entered into contracts, combinations or conspiracies with its suppliers involving reciprocal buying and that a not insubstantial amount of trade was affected, the government introduced evidence on Airco's relationships with four steel companies, and with FMC Corporation, Cosmodyne Corporation, National Distillers and Chemical Corporation, and Allied Chemical Corporation. As a group, steel companies are Airco's largest customers. In 1968 Airco's ten largest steel mill customers accounted for 16.5% of Airco's total sales revenue, and in 1969 this figure rose to over 18%. (PX 184.) Among the products which Airco sells to steel companies are oxygen, graphite, ferroalloys, and welding and cutting equipment. In addition, the steel companies are among Airco's largest suppliers. From them, Airco purchases its steel requirements for welding electrodes and arcrods plants. The evidence indicates that Van Fleet and other Airco personnel had frequent contacts with representatives of various steel companies. During the years 1965 through 1971, Van Fleet was responsible for organizing and hosting an entertainment suite of rooms to receive and to talk to Airco's steel company customers and suppliers when the American Iron and Steel Institute held its annual convention in New York. Information as to Airco's purchases from and sales to steel companies was made available to certain Airco officers prior to their contacts with executives of Airco's steel company suppliers. In addition, Van Fleet assisted some of Airco's steel company customers in attempting to meet Airco's steel wire specifications. On February 27, 1968 John Keeney, then Airco's Corporate Director of National Accounts, announced that Airco "has embarked on an additional selling effort" with regard to steel mills and foundries. Keeney's primary objective was "to try to convince the Steel Industry that Airco should be their principal source of supply for Industrial Gases, Ferro Alloys and Metals, Carbon and Graphite Electrodes and Welding Products." Keeney stated that his own activities "will be more directed to helping them accomplish their goals by image building — opening doors — paving the way, etc. Call it what you will. To accomplish this will involve, among other things, the establishment and nurturing of the proper relationships with *921 the steel company management personnel concerned." (PX 183.) At his deposition, Van Fleet testified that although he did not participate in the additional selling effort, he did provide Keeney with information as to Airco's purchases from and sales to the steel industry. (Van Fleet Deposition, at 252-253.) Van Fleet also provided this information to certain division personnel. On April 30, 1968 Van Fleet and Keeney called on Dick Thompson, Vice President — Purchases for National Steel in Pittsburgh, and Herbert Hock, Manager — Trade Relations. (PX 29.) During 1968 and subsequent to Keeney's announcement of the additional selling effort, Van Fleet had five business contacts with his trade relations counterpart at Interlake Steel Corporation, six business contacts with his counterparts at Republic Steel Corporation, two business contacts with his counterpart at United States Steel Corporation, and at least one contact each with his counterparts at Armco Steel Corporation, National Steel Corporation, and Allegheny Ludlum Steel Corporation. In a memorandum dated November 7, 1968, Van Fleet sent T. H. Tabb, purchasing agent for the Airco Welding Products Division, suggested "guidelines" for purchases of steel products. (PX 189.) At his deposition, Tabb testified that to the best of his recollection he did nothing with Van Fleet's memorandum and did not know the reason for Van Fleet's suggested percentages. (Tabb Deposition, at 220-222.) He also stated that business was not awarded on the basis of the percentages suggested in Van Fleet's memorandum. (Tabb Deposition, at 229.) By memorandum of March 20, 1970 (PX 184), Keeney announced that "[m]aterial improvement over 1968 was made in [Airco's] sales to: a. National Steel Corp. — +80% b. Allegheny Ludlum Steel — +74.0% c. Jessop Steel — +40.0% d. U. S. Steel — +33.0%" In 1968 Airco had the following purchases from and sales to these four steel companies (PX 186): Purchases Sales National $ 61,000 $ 2,300,000 Allegheny Ludlum 138,000 5,300,000 Jessop 250,000 1,700,000 U. S. Steel 3,612,000 15,300,000 The government has not introduced into evidence any specific purchase or sale contracts between Airco and any steel companies. In view of the 1968 trade balances between Airco and the four above-mentioned steel companies, it would not appear that Airco was in a position to force reciprocal buying on any of them. Therefore, if reciprocal buying did occur, it would probably have had to have been by mutual agreement. The government has not introduced any testimony of any personnel from the steel companies, other than that of Edward Backes, who retired from United States Steel Company in June 1967 and who testified generally about his former trade relations functions at United States Steel and about the Trade Relations Association. Having considered that evidence which has been presented, the Court finds no reasonable basis on which to conclude that all or any part of the increase in Airco's sales to the four steel companies mentioned in Keeney's memorandum of March 20, 1970 resulted from reciprocal buying. The Court finds that the government has not shown that Airco entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing with any steel company involving reciprocal buying. During the period 1964 through 1969, Airco's purchases from and sales to FMC Corporation were as follows (PX 23, 242): Purchases Sales 1964 $311,000 $153,000 1965 239,000 310,000 1966 195,000 520,000 1967 519,000 372,000 1968 277,000 497,000 1969 434,000 515,000 On March 1, 1968 Van Fleet met with Don Oskin, Executive Vice President, *922 and Raymond C. Tower, Executive Vice President — Chemical Corporation of FMC Corporation. On or about May 9, 1968 Van Fleet furnished George Dillon, then Airco's President, a list showing a breakdown of Airco's purchases from and sales to FMC for the year 1967 and totals for the years 1964 to 1966. (PX 23.) In a covering memorandum, Van Fleet pointed out to Dillon that "the potentials for Industrial Gases, Welding Products and Graphite Products are very large indeed. We have never enjoyed our share." (PX 23.) During the week of July 22, 1968, Van Fleet made a trip to the West Coast to work with both the Industrial Gases and the Welding Products Division. (PX 106.) In his monthly activity report dated August 20, 1968, Van Fleet reported that "[o]ur trip to the West Coast during the week of July 22, was successful. The accounts handled were . . . FMC Corporation . . . ." (PX 105.) The government contends that in 1968 FMC Corporation increased its purchases of industrial gases and other products from Airco to retain its sales to Airco. To substantiate this contention, the government points out that in 1967 Airco's total purchases from FMC were greater than FMC's total purchases from Airco; that in 1968 Airco decreased its purchases from FMC Corporation by $242,000 as compared to 1967; and that in 1968 FMC increased its purchases from Airco by $125,000 over 1967 purchases. No testimony of any FMC personnel was introduced to explain the reason for FMC's increased purchases in 1968. Aside from the fact that fluctuations in annual purchase and sales figures are by themselves of little probative value on the issue of reciprocal buying, there is evidence which vitiates the government's contention. In his memorandum to Dillon of May 9, 1968, Van Fleet pointed out that $252,000 of Airco's purchases from FMC in 1967 was accounted for by "a one-shot purchase" of conveying equipment. (PX 23.) If this extraordinary item is excluded from Airco's 1967 purchases from FMC, then Airco's 1968 purchases from FMC could be interpreted as representing a slight increase in purchases rather than a decrease. The Court finds that the government has failed to show that Airco entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing with FMC Corporation involving reciprocal buying. During the period 1966 through 1969, Airco's purchases from and sales to Cosmodyne Corporation were as follows (PX 242): Purchases Sales 1966 $1,270,000 $61,000 1967 912,000 27,000 1968 1,046,000 53,000 1969 755,000 79,000 On June 27, 1967 Lorrin C. Tarlton, Jr., who was a sales manager for Cosmodyne, sent a telex to the Louisville, Kentucky Manufacturing Division of Cosmodyne which stated: "Need answer in one hour — How much business placed with Airco this year. General ballpark numbers. National Reciprocity Manager due here in one hour. Please advise." (PX 239.) In reply, Tarlton was told: "Airco business this year $5,464 January L [sic] to present." (PX 239.) Tarlton testified at trial that his reference to a "National Reciprocity Manager" was a "facetious, somewhat sarcastic reference to a non-function, used in the context of a daily friend-to-friend business relationship with Mr. Heath," (Transcript, at 46) who at that time was division manager of Cosmodyne's Louisville, Kentucky Manufacturing Division. He also testified that the phrase "National Reciprocity Manager" was used in the context of the concern of trade relations managers from Airco and other companies "about getting a reasonable opportunity to bid for our purchases of liquid nitrogen, welding gases, welding rods and other welding equipment." (Transcript, at 49.) According to Tarlton, Cosmodyne's purchases from the customer group in which Airco was classified *923 were in the range of $100,000 to $200,000 a year while sales to this customer group were in the range of $6,000,000 to $12,000,000 a year. (Transcript, at 48.) On or about March 5, 1968 Van Fleet furnished to Dillon information with respect to Airco's sales to and purchases from Cosmodyne Corporation. (PX 182.) Van Fleet testified at his deposition that he recalled furnishing the information to Dillon in preparation for a west coast business trip by Dillon in which Dillon expected to contact Cosmodyne. Van Fleet's purpose in preparing this information was "to completely brief Mr. Dillon on Airco's affairs with the companies involved." (Van Fleet Deposition, at 263.) At his deposition, Dillon testified that he had no recollection of having asked Van Fleet for any information prior to his west coast trip in 1968 or of having received information with respect to Airco's purchases from and sales to Cosmodyne. (Dillon Transcript, at 72.) During Dillon's trip to the west coast in 1968, he and Charles Simpson, then Airco's West Coast Industrial Gas Manager, talked with both Cosmodyne's Chairman and its President. Dillon expressed to the Cosmodyne officers Airco's interest in selling Cosmodyne oxygen and nitrogen. Dillon testified at his deposition that to the best of his recollection the subject of Airco's purchases from and sales to Cosmodyne did not come up in the conversation. Dillon further testified that he did not recall any sale being made to Cosmodyne at this time, but that he did recall that Cosmodyne had a contract which prevented Airco from making an immediate sale. (Dillon Deposition, at 73-75.) Although Tarlton's telex of June 27, 1967 indicates that Tarlton believed it necessary to know Cosmodyne's purchases from Airco in preparation for a meeting with an Airco trade relations representative, the telex alone is insufficient to support a finding by this Court that Airco and Cosmodyne entered into any course of dealing involving reciprocal buying. The government has not introduced into evidence any specific contracts between Airco and Cosmodyne which may be said to manifest such a course of dealing. Tarlton testified that he had only cursory information about Cosmodyne's purchases from customers (Transcript, at 51), and no other officers or employees of Cosmodyne were called to testify about the fluctuations in Cosmodyne's annual purchases from Airco. Moreover, even if the Court could infer from the scant evidence presented that Airco and Cosmodyne did enter into a course of dealing involving reciprocal buying, there is no basis on which the Court could find that a not insubstantial amount of interstate commerce was affected. It would be unreasonable to assume that a not insubstantial amount of commerce was affected simply because Airco's sales to Cosmodyne increased substantially in 1968. As the Court held in United States v. General Dynamics Corp., supra, more definite proof is required. The Court finds that the government has failed to show that Airco entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing with Cosmodyne involving reciprocal buying and that a not insubstantial amount of interstate commerce was affected. In 1970 and 1971, Airco's purchases from and sales to National Distillers and Chemical Corporation were as follows (PX 242): Purchases Sales 1970 $855,000 $288,000 1971 537,000 178,000 On January 15, 1970, Van Fleet was notified by R. J. Ehlers, AIG-Pacific, that Almaden Vineyards, a division of National Distillers, was cancelling its carbon dioxide contract with Liquid Carbonic Corporation and that Airco had been invited to quote on it. Ehlers indicated that the sales representative, R. D. Switzer, would appreciate Van Fleet advising him whether Airco was purchasing any product from National *924 Distillers. By letter of January 26, 1970, Van Fleet replied: "It is true that we have substantial relationships with National Distillers through the Bridgeport Brass Division and the U. S. Industrial Chemicals Division. However, any attempt to make this fact known at Almaden, I think, would be wrong and could only lead to misunderstandings. I hasten to reiterate that our Company policy is not to use any leverage in such a way. "If you will give me more information, it would be appropriate for me at the right time to talk to my counterpart at the headquarters of National Distillers. We are good friends of theirs and if you are competitive we could use these relationships in the right way." (PX 26.) R. W. Gibson, AIG-Pacific, replied to Van Fleet's letter of January 26. Gibson informed Van Fleet of his desire to obtain the bulk carbon dioxide business at Almaden Vineyards, which amounted to approximately 600,000 pounds a year. However, Gibson noted that Almaden would not realize any substantial savings by switching to Airco because Airco would have to quote the same scheduled price as Liquid Carbonic. Gibson stated that "the only way in which we will be able to secure the business would be through creating a desire on the customer's part to want to do business with AIG." Gibson further wrote to Van Fleet, "Anything that you can do to assist us in creating this desire will be sincerely appreciated." (PX 27.) Van Fleet contacted Robert E. Hennessy, National Distillers' Vice President of Purchases, on February 17, 1970. Van Fleet had known Hennessy for some time through the Trade Relations Association. On February 19, 1970 Van Fleet met with Hennessy and discussed Airco's desire to gain the San Jose bulk carbon dioxide business at Almaden Vineyards. By memorandum of February 20, 1970, Van Fleet reported to Gibson that the purchasing decision would be made by Mr. Morrison, the local purchasing agent, but that Van Fleet had a "distinct feeling that Mr. Hennessy will put in a good word for us with Mr. Morrison." In addition, Van Fleet reported that he expected that if there were any difficulties with Airco's sales proposal, Hennessy would advise Van Fleet in time for Airco to correct them. (PX 28.) Almaden Vineyards entered into a Sales and/or Rental Agreement with Airco dated March 18, 1970 to purchase 600,000 pounds of carbon dioxide and issued a purchase order to Airco dated March 24, 1970. The purchase order indicated that Airco would provide Almaden with a 12 ton receiver and would supervise its installation. In 1971 the purchase order was renewed by Almaden Vineyards with a slight increase in price for the carbon dioxide. Airco's sales of bulk carbon dioxide to Almaden Vineyards in 1970 and 1971 amounted to $15,475.10 and $18,439.65, respectively. (PX 230, 245; Transcript, at 166-167.) The government apparently asks the Court to draw from the evidence the inference that Van Fleet went to Hennessy and obtained the Almaden Vineyards account by use of reciprocal buying pressures. However, there is no evidence that Van Fleet interjected reciprocity considerations into his contact with Hennessy on February 17, 1970, or at their meeting on February 19, 1970. No one from National Distillers or Almaden Vineyards was called to testify as to the reasons why Almaden Vineyards decided to purchase carbon dioxide from Airco in 1970 and 1971. One factor may have been Airco's willingness to supply Almaden Vineyards with a 12 ton receiver and supervise its installation, which Liquid Carbonic was apparently unwilling or unable to do. On the basis of the evidence presented, the Court finds that the government has not shown that Airco entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing with National Distillers involving reciprocal buying. *925 For the years 1967 through 1971 Airco had the following purchases from and sales to Allied Chemical Corporation (PX 242): Purchases Sales 1967 $1,220,000 $ 519,000 1968 1,153,000 855,000 1969 995,000 1,051,000 1970 1,277,000 1,018,000 1971 1,253,000 1,056,000 On October 15, 1968, Van Fleet had a contact with Dillon on the subject of Allied Chemical Corporation. (PX 81.) In a "Memorandum to File" dated November 1, 1968, Van Fleet noted that Allied Chemical was "a target account with George Dillon because of his relationship with John Conner, President." Van Fleet pointed out that there was additional sales potential for Airco in vinyl acetate monomer and annodes, and that Airco's major purchases from Allied were pitch, raw carbon dioxide, coke, acetone, and other chemicals. Van Fleet closed the memorandum by noting that "Mr. Dillon feels that his relationship with Conner is such that unless the potential are very large and very active, he would not like to use that avenue of support." (PX 17.) On November 17, 1969, Van Fleet had lunch with F. Emmerick, who is listed on Van Fleet's Expense Report as Manager of Trade Relations for Allied Chemical. (PX 242.) As pointed out earlier, fluctuations in annual purchases and sales figures are by themselves of little probative value on the issue of reciprocal buying. The additional evidence introduced by the government is insufficient to support a finding by the Court that Airco entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing with Allied Chemical involving reciprocal buying. In addition to the evidence reviewed above, the government introduced the testimony of Leland S. Triplett, who in 1969 was a traffic agent for the Union Pacific Railroad, working in Cleveland, Ohio, and the testimony of William B. May, who in 1961 was a freight traffic agent for the Union Pacific, working in New York City. Triplett testified that his duties included selling or soliciting freight transportation for the Union Pacific and that among the prospective customers which he visited was Airco's Arcrods Plant in Cleveland. Triplett further testified that sometime between April 9, 1969 and June 2, 1969 he visited the Arcrods Plant and spoke to Miss Golden, traffic manager of the Arcrods Plant, who told him what he reported in a letter dated June 2, 1969 to D. H. Glowen, a Union Pacific traffic agent in New York. The letter stated that Miss Golden "hinted very firmly that Union Pacific is always at least 2nd to the Southern Pacific, because of SP purchases." (PX 224.) William B. May testified that in 1961 his job as freight traffic agent was to sell transportation and that he regularly called on J. W. Peterson, traffic manager of Air Reduction Company, seeking business. May further testified that prior to dictating a letter dated August 14, 1961 to H. J. DeLacy, a representative of the traffic department of the Union Pacific in Los Angeles, he had a conversation with Peterson, in which Peterson told him what he reported in the letter. The letter stated: "Your letter August 3 . . . concerning movements from the Air Reduction Co., Inc., Division Keokuk, Iowa to the Air Reduction Pacific Company at Huntington Park, California, served by the Union Pacific. "General Traffic Manager Peterson of the Air Reduction Company, here, advises they are routing these cars via CB — SP which will give the SP their longest haul in reciprocation of purchases made by them which triple ours. "However, he has promised to route a fair share of futures via UP to Ogden — SP." (PX 231.) The testimony of Triplett and May and the related exhibits suggest *926 that the purchases of Southern Pacific Railroad from Airco may have been a factor in Airco's selection of the Southern Pacific over the Union Pacific in certain instances. However, this evidence is insufficient to support a finding that Airco and Southern Pacific entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing involving reciprocal buying and that a not insubstantial amount of interstate commerce was affected. Finally, the government introduced various documents obtained from Airco and other companies, some of which suggest that reciprocity may have been discussed in connection with prospective purchase and sales transactions between Airco and its customers and suppliers. (See, e. g., PX 233, 234, 235.) However, even in those instances where the documents have been amplified by testimony, there remains insufficient evidence on which to base a finding that Airco entered into any contract, combination, or conspiracy, or otherwise engaged in any course of dealing with any of its suppliers involving reciprocal buying and that a not insubstantial amount of interstate commerce was affected. Having considered all the evidence introduced as part of the government's direct case, the Court holds that the government has failed to show that Airco violated section 1 of the Sherman Act as charged in the complaint. Section 2 of the Sherman Act The complaint charges that Airco, "through the use of its purchasing power," violated section 2 of the Sherman Act "by attempting to monopolize that part of . . . interstate trade and commerce consisting of the requirements of actual and potential suppliers of the defendant for ferroalloys, industrial gases and other products sold by the defendant." However, the government has not introduced any evidence defining the relevant market, see Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965); Kreager v. General Electric Co., 497 F.2d 468 (2d Cir. 1974), and has not shown that Airco had intent to monopolize. See Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 97 L.Ed. 1277 (1953); Lorain Journal Co. v. United States, 342 U.S. 143, 72 S. Ct. 181, 196 L.Ed. 162 (1951); Kreager v. General Electric Co., supra. Accordingly, the Court holds that the government has failed to show that Airco violated section 2 of the Sherman Act as charged in the complaint. Airco's motion for a dismissal is granted. The foregoing constitutes the Court's findings of fact and conclusions of law. F.R.Civ.P. 41(b), 52(a). Settle judgment on notice.

485 F.2d 680 Moxeyv.Seely 72-1729 UNITED STATES COURT OF APPEALS Third Circuit 10/11/73 1 E.D.Pa. AFFIRMED

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 13-3566 ___________ FENG YING LI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-234-282) Immigration Judge: Honorable Paul Grussendorf ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 2, 2014 Before: CHAGARES, GARTH and SCIRICA, Circuit Judges (Opinion filed: April 4, 2014) ___________ OPINION ___________ PER CURIAM  Feng Ying Li (“Li”) petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision denying her fifth motion to reopen removal proceedings. For the following reasons, we will grant her petition. I. Li is a citizen of China who entered the United States in 1998. She was ordered removed in 2002, when the BIA affirmed the Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture. Li’s first motion to reopen, filed in 2005, was based on the birth of her second child. The BIA denied her motion, and we denied Li’s petition for review. See Li v. Att’y Gen., 321 F. App’x 143 (3d Cir. 2009). Meanwhile, Li filed her second and third motions to reopen, in which she alleged changed conditions in China with respect to the Chinese government’s enforcement of its population control policies. She supported those motions with voluminous documents, including academic and news articles, Chinese government policy materials, State Department reports, and Congressional testimony. The BIA denied both motions, and Li filed a petition for review. Because “[t]he Board provided only general explanations for its conclusion that the evidence Li submitted was insufficient to support reopening,” we granted Li’s petition and directed the BIA to “provide a more thorough analysis of the evidence submitted.”1 Li v. Att’y Gen., 373 F. App’x 280, 282, 284 (3d Cir. 2010). 1 However, we did conclude that the purported translation errors in the State 2  Upon remand, Li submitted numerous additional documents, totaling several hundred pages. The BIA declined to consider these documents. With respect to the evidence Li had submitted with her second and third motions to reopen, the Board again held that Li had failed to establish changed country conditions to create an exception to the time limitation on filing motions to reopen. Accordingly, the BIA denied Li’s motions. Li filed a timely petition for review, which we denied. See Li v. Att’y Gen., 446 F. App’x 501 (3d Cir. 2011). In April 2013, Li filed a fifth2 motion to reopen, again seeking relief based upon changed country conditions in China. In her motion, she claimed that she had joined the Party for Freedom and Democracy in China (“PFDC”) in the United States in October 2012 and that the Chinese government has become aware of her political activities. The Board denied her motion for three reasons: (1) Li’s decision to join the PFDC was a change in personal circumstances and not a change in country conditions; (2) Li’s evidence did not establish a change in conditions since her hearing before the IJ in 1999; and (3) Li failed to submit sufficiently reliable evidence to support her claim that her personal situation had changed because officials had become aware of her political activities. This petition for review followed. Department’s 2007 Profile of Asylum Claims and Country Conditions in China, even if proven, were minor and would not change the outcome if Li’s removal proceedings were reopened. Accordingly, we denied Li’s petition with regard to these alleged errors. 2 The BIA denied Li’s fourth motion to reopen in 2012; however, Li did not file a petition for review of that decision. 3  II. We have jurisdiction under 8 U.S.C. § 1252. We review denials of motions to reopen under a deferential abuse of discretion standard and will not disturb the decision “unless [it is] found to be arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (citation omitted). Generally, an alien may file only one motion to reopen and must file it with the BIA “no later than 90 days after the date on which the final administrative decision was rendered[.]” 8 C.F.R. § 1003.2(c)(2). The time and number requirements are waived for motions to reopen that are “based upon changed country conditions proved by evidence that is material and was not available and could not have been discovered or presented at the previous proceeding.” Pllumi v. Att’y Gen., 642 F.3d 155, 161 (3d Cir. 2011). Li does not dispute that her motion to reopen, her fifth, was filed more than 90 days after the BIA’s final decision. Rather, she asserts that the BIA abused its discretion by selectively considering the evidence to find that she failed to establish changed country conditions. The BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (citations and internal quotation marks omitted). However, the BIA is required to consider a party’s evidence of changed country conditions, and it “should provide us with more than cursory, summary or conclusory statements, so that 4 we are able to discern its reasons for declining to afford relief to a petitioner.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang, 437 F.3d at 275). The Board reviewed, among the evidence that Li submitted, a membership card for the PFDC, news articles from late 2012 and early 2013, a letter from Li’s mother, and the State Department’s 2007 Profile of Asylum Claims and Country Conditions in China (“2007 Profile”). It then discussed the news articles and the 2007 Profile to support its finding that Li’s evidence was inadequate to demonstrate the existence of changed country conditions.3 However, the BIA did not consider any more recent Country Reports for Human Rights Practices in China (“Country Reports”) issued by the Department of State. In particular, the BIA could have considered, but did not consider, available Country Reports from 2008 through 2012. See 8 C.F.R. § 1003.1(d)(3)(iv); see also Sheriff v. Att’y Gen., 587 F.3d 584, 591-92 (3d Cir. 2009) (noting that “[t]he commentary to [8 U.S.C. § 1003.1(d)(3)(iv)] explicitly envisions that the BIA will consider Country Reports”) (alteration in original). Li argues the Board erred by failing to find the existence of changed country conditions, but we cannot assess that claim on the current record. As noted by the agency, the 2007 Profile and the 1998 Profile, both of which are included in the record, 3 We agree with the BIA that Li’s decision to join the PFDC constitutes a change in personal circumstances rather than country conditions, as Li’s “choice to engage in such political activities after being ordered deported does not support application of the changed country conditions exception.” Khan v. Att’y Gen., 691 F.3d 488, 497 (3d Cir. 2012); see also Liu v. Att’y Gen., 555 F.3d 145, 150-51 (3d Cir. 2009). 5 discuss the treatment of political activists in China. The information contained in these Profiles indicates that treatment of political activists in 2007 was substantially similar to how political activists were treated in 1999. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004) (country reports described as the “most appropriate” and “perhaps best resource” on country conditions). However, we must remand because BIA has not adequately considered whether more recent Country Reports provide evidence that the treatment of political activists in China has worsened. Under the circumstances of this case, relying on an outdated report to rule on Li’s motion was unreasonable. On remand, to evaluate the conditions that Li would face on her return, the BIA should consider the more recent reports,4 alone and in conjunction with Li’s other evidence, including the letter Li submitted from her mother detailing how the Chinese police told her that Li would face punishment in China for her political activities.5 III. 4 The BIA may wish to consider the most recent report available at the time when it rules again on Li’s motion. 5 On remand, the BIA may also again consider, also in light of all the evidence, whether Li established a prima facie case for asylum relief. See Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir. 2002) (citing INS v. Abudu, 485 U.S. 94, 105 (1988) (stating that the Board may deny a motion to reopen in asylum cases where it determines that “the movant would not be entitled to the discretionary grant of relief”)). 6  For these reasons, we grant the petition for review and vacate the BIA’s decision. We remand this matter to the BIA for further proceedings consistent with our opinion.6 6 In directing a fuller analysis of all the evidence, we express no opinion regarding the ultimate outcome of the administrative proceedings. 7 

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 328 MAL 2014 : Petitioner : : Petition for Allowance of Appeal from the : Order of the Superior Court v. : : : GABRIEL J. MARTINEZ, : : Respondent : COMMONWEALTH OF PENNSYLVANIA, : No. 329 MAL 2014 : Petitioner : : Petition for Allowance of Appeal from the : Order of the Superior Court v. : : : SHAWN PATRICK MCGINNIS JR., : : Respondent : COMMONWEALTH OF PENNSYLVANIA, : No. 330 MAL 2014 : Petitioner : : Petition for Allowance of Appeal from the : Order of the Superior Court v. : : : ADAM MACKENZIE GRACE, : : Respondent : COMMONWEALTH OF PENNSYLVANIA, : No. 331 MAL 2014 : Petitioner :  : Petition for Allowance of Appeal from the : Order of the Superior Court v. : : : CHRISTINA J. LASATER, : : Respondent : ORDER PER CURIAM AND NOW, this 8th day of April, 2015, the Petition for Allowance of Appeal is GRANTED. The issue, as stated by petitioner, is: (1) Whether the Superior Court’s application of its decision Commonwealth v. Hainesworth to the instant cases impermissibly expanded the contract clause to bind the Commonwealth to collateral consequences over which the Commonwealth has no control? [328 MAL 2014, 329 MAL 2014, 330 MAL 2014 and 331 MAL 2014] - 2 

673 F.2d 1306 Bricev.Sutton 81-6679 UNITED STATES COURT OF APPEALS Fourth Circuit 12/10/81 1 E.D.N.C. IFP GRANTED--VACATED AND REMANDED

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS TOMAS GALINDO, ' No. 08-10-00351-CV Appellant, ' Appeal from the v. ' 205th Judicial District Court YSLETA INDEPENDENT SCHOOL ' DISTRICT, of El Paso County, Texas ' Appellee. ' (TC#2007-5601) OPINION Tomas Galindo appeals the summary judgment granted in favor of his employer, Ysleta Independent School District (YISD). In two issues on appeal, Appellant contends that the trial court erred in affirming the Texas Department of Insurance – Workers’ Compensation Division’s (TDI-DWC) ruling that he was not entitled to receive temporary income benefits (TIB) because the donated sick leave and catastrophic leave payments he received constituted post-injury earnings (PIE) under Title 28, § 129.2 of the Texas Administrative Code (Rule 129.2).1 28 TEX. ADMIN. CODE § 129.2 (West 1999). We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2002, Appellant sustained an injury at work and despite his injury continued to work until March 2004. In March 2004, and again in August 2005, Appellant missed work due to his 2002 injury and in both years he filed for TIB from YISD, a self-insured workers’ compensation 1 TIB compensate an injured employee for lost wages during the time of the compensable disability. 28 TEX. ADMIN. CODE § 129.2(a). An employee’s lost wages are calculated by taking the difference between his gross average weekly wage (AWW) and his PIE. 28 TEX. ADMIN. CODE § 129.2(b). If the employee’s PIE equals or is greater than the employees AWW, he has no lost wages. Id. carrier. YISD denied both his 2004 and 2005 TIB claims. In order to receive income during his absences from work, Appellant applied to receive benefits from YISD’s donated sick leave program in 2004 and its catastrophic leave bank in 2005. Appellant received donated sick leave benefits in 2004 and catastrophic leave benefits in 2005. In 2006, the TDI-DWC determined that Appellant was injured while in the course and scope of his employment in 2002. A workers’ compensation contested case hearing was held in 2007 to determine whether Appellant suffered a disability in 2004 and 2005 as a result of his 2002 work-related injury and to determine whether the donated sick and catastrophic leave payments received by Appellant constituted PIE under Rule 129.2. The hearing officer found that: (1) Appellant suffered from a disability in 2004 and 2005 due to his 2002 compensable injury; (2) Appellant voluntarily elected to use his donated sick leave and catastrophic leave benefits and received his full wages during the periods of his disability; and (3) the donated sick leave and catastrophic leave benefit payments received by Appellant constituted PIE under Rule 129.2 and as such Appellant was not entitled to TIB, but remained entitled to medical benefits for his compensable injury. After exhausting his administrative remedies, Appellant filed suit for judicial review. YISD moved for a traditional summary judgment on the grounds that there was no genuine issue of material fact as to whether the TDI-DWC erred in its determination that sick leave and catastrophic leave are PIE. Appellant appeals from the trial court’s grant of YISD’s motion for summary judgment. DISCUSSION In two issues on appeal, Appellant contends that the trial court erred in granting summary 2 judgment in favor of YISD because he produced at least a scintilla of evidence showing that: (1) he did not voluntarily elect to use the donated sick leave and catastrophic leave benefits during the periods of his disability; and (2) the donated sick leave and catastrophic leave benefits he received were not PIE pursuant to Rule 129.2. 28 TEX. ADMIN. CODE § 129.2. Standard of Review The standard of review for a traditional motion for summary judgment is well established. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). A traditional motion for summary judgment is reviewed de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To succeed on a traditional summary judgment motion, YISD must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). If YISD establishes that there is no genuine issue of material fact, the burden shifts to Appellant to show a genuine issue of material fact. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). On review, we will accept as true all competent evidence favorable to Appellant, indulge every reasonable inference, and resolve any doubts in Appellant’s favor. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). On review, we must give great deference to TDI-DWC’s interpretation of its own rules and we narrow our review to determine whether the TDI-DWC’s interpretation of Rule 129.2 is plainly erroneous or inconsistent with the rule. Pub. Util. Comm’n of Tex. v. Gulf States Util., 809 S.W.2d 201, 207 (Tex. 1991); Continental Cas. Co. v. Rivera, 124 S.W.3d 705, 710 (Tex. App. – Austin 2003, pet. denied). 3  Analysis Voluntariness of Appellant’s Election to Use Leave Benefits In Issue One, Appellant contends that the trial court erred in granting summary judgment to YISD because at least a scintilla of evidence established that his use of donated sick leave and catastrophic leave benefits was not voluntary use as required by Rule 129.2. Rule 129.2 defines PIE in relevant part as “the value of any full days of accrued sick leave or accrued annual leave that the employee has voluntarily elected to use after the date of injury.” 28 TEX. ADMIN. CODE § 129.2(c)(4). Conversely, Rule 129.2(d)(2) states that PIE shall not include “any accrued sick leave or accrued annual leave that the employee did not voluntarily elect to use.” 28 TEX. ADMIN. CODE § 129.2(d)(2). Citing Rules 129.2(c)(4) and (d)(2) of the Texas Administrative Code, Appellant argues that he did not voluntarily elect to use donated sick leave or catastrophic leave because during the periods of his disability, YISD denied him TIB, and as such, he had no other option but to use those leave benefits; otherwise, he would have no source of income. In his affidavit in response to YISD’s summary judgment motion, Appellant stated that, “Economically, I had no choice but to accept leave benefits.” In response, YISD argued that Appellant’s election to use donated sick leave and catastrophic leave benefits was voluntary because the election was Appellant’s decision alone although motivated by his financial situation. At his deposition, Appellant testified that his supervisor informed him of YISD’s sick leave donation program and told him that he would have to go to YISD’s central office and apply to see if he qualified for the program. Appellant further testified that he was not threatened by physical force or a show of police authority when he signed 4 up for the sick leave donation program. Similarly, when questioned about his decision to apply to receive benefits from the catastrophic leave bank, Appellant testified that the decision to apply was left up to the individual, and that no one forced him to sign up for the catastrophic leave benefits. Appellant further explained that the catastrophic leave benefits were something he had to secure himself because YISD had disputed his compensable injury and he needed money to maintain a living. None of Appellant’s arguments demonstrates the existence of a genuine issue of material fact on the issue of whether Appellant voluntarily chose to use his donated sick leave and catastrophic leave benefits. Clear Creek Basin Auth., 589 S.W.2d at 678-79. In fact, Appellant admits that no one forced him to sign up for either benefit leave program and explains that it was his financial situation that made him decide to use the donated sick leave and catastrophic leave benefits available to him. The record shows that Appellant’s decision was an economic one based on the fact that he no longer had any leave available to use at the time and because YISD denied his 2004 and 2005 TIB claims. Because Appellant failed to raise a genuine issue of material fact as to the voluntariness of his election to use his donated sick leave and catastrophic leave benefits, we hold that the trial court did not err in granting summary judgment in favor of YISD. Clear Creek Basin Auth., 589 S.W.2d at 678-79. Issue One is overruled. Meaning of the Term “Accrued” Under § 129.2(c)(4) In Issue Two, Appellant asserts that the trial court erred in granting summary judgment to YISD because at least a scintilla of evidence established that the donated sick leave and catastrophic leave benefits received by him were not properly characterized as PIE because the leave benefits were not “earned” or “accrued” sick or annual leave as set forth in Rule 129.2. 5  Rule 129.2 concerns an injured employee’s entitlement to TIB. Id. In relevant part, Rule 129.2(c)(4) provides that PIE shall include, but not be limited to “the value of any full days of accrued sick leave or accrued annual leave that the employee has voluntarily elected to use after the date of injury.” 28 TEX. ADMIN. CODE § 129.2(c)(4). The statute does not define the terms “accrued sick leave” or “accrued annual leave” nor does it mention how the leave has to be accrued or require that the leave be accrued by the employee personally. It merely provides that PIE be accrued sick or annual leave that is used voluntarily. Id. Appellant contends that his donated sick leave and catastrophic leave benefits were not “earned” or “accrued” sick or annual leave as required by Rule 129.2(c)(4) because the benefits included: (1) donated sick leave from other employees; and (2) catastrophic leave he purchased. In essence, Appellant argues that the benefits he received were not “accrued” leave because they were not earned by him personally and they were not connected to his employment. YISD argues that the donated sick leave and catastrophic leave benefits it paid to Appellant constitute PIE because the donated sick leave benefits are “accrued” sick leave as required by Rule 129.2. YISD’s leave policy states that the purpose of its Special “Life Threatening Illness” Plan is to “establish procedures and requirements under which the unused accrued local leave of a full-time employee may be contributed to a designated full-time employee who needs such leave because of a life threatening illness.” “Local leave” is a leave program for YISD employees through which they can elect to use leave for personal illness, the death or illness of an immediate family member, and other defined situations. The policy further clarifies that the only way YISD employees can make a contribution to other employees through this plan is by donating their unused, accumulated sick leave. 6  YISD’s leave policy also states that the purpose of its catastrophic leave bank is “to provide sick leave to contributors to the bank after their accumulated sick leave has been exhausted and more specifically, to provide such leave from the bank in the case of a catastrophic illness . . . of the employee . . . .” The catastrophic leave bank is a voluntary program available to full-time YISD employees who have at least one day of accumulated sick leave. An employee wishing to participate in the catastrophic leave bank must contribute one day of accumulated local leave to the bank. At his deposition, Appellant agreed that he contributed one day of accumulated local leave to the catastrophic leave bank in January 2005 just in case of an emergency. He also testified that signing up for the catastrophic leave bank was left up to the individual and was an option program available to employees. Based on the record presented, it is undisputed that Appellant could only have received donated sick leave benefits in 2004 from YISD’s Special Life Threatening Illness Plan if the donated leave was unused and accrued. Similarly, the evidence shows that Appellant could only have used and received catastrophic sick leave benefits in 2005 by contributing one day of his accumulated sick leave to the catastrophic leave bank. Therefore, Appellant’s argument that the benefits are not accrued leave because they are not tied to his employment is meritless because Appellant’s eligibility to participate in and benefit from YISD’s donated sick leave and catastrophic leave plans arise only because of his status as a YISD employee. Accordingly, the donated sick leave and catastrophic leave payments made to Appellant were properly found to constitute accrued sick leave under Rule 129.2. See 28 TEX. ADMIN. CODE § 129.2(c)(4). Appellant only could have participated and received donated sick leave under YISD’s leave policy by virtue of the donated sick leave benefits being unused and accrued 7 sick leave of another YISD employee. Likewise, Appellant was only eligible to receive catastrophic leave benefits because he chose to donate one day of his unused, accrued sick leave to the catastrophic leave bank. Giving deference to TDI-DWC’s interpretation of its own rule, we conclude that its determination that donated sick leave and catastrophic leave benefits are PIE was not plainly erroneous or inconsistent with rules of the Texas Administrative Code. See 28 TEX. ADMIN. CODE § 129.2; Gulf States Util., 809 S.W.2d at 207; Rivera, 124 S.W.3d at 710. Consequently, the trial court did not err in granting summary judgment for YISD on the ground that the donated sick leave benefits and catastrophic leave benefits constitute PIE under Rule 129.2. 28 TEX. ADMIN. CODE § 129.2(c)(4). Issue Two is overruled. CONCLUSION We affirm the trial court’s judgment. GUADALUPE RIVERA, Justice August 22, 2012 Before McClure, C.J., Rivera, J., and Antcliff, J. 8 

373 S.W.2d 583 (1963) Harry L. HASTINGS et al., Appellants, v. ROSE COURTS, INC., Appellee. No. 5-3074. Supreme Court of Arkansas. December 23, 1963. Rehearing Denied January 20, 1964. *584 House, Holmes, Butler & Jewell, by Philip E. Dixon, Little Rock, for appellants. Moses, McClellan, Arnold, Owen & McDermott, by Wayne Owen, and Spitzberg, Bonner, Mitchell & Hays, by H. Maurice Mitchell, Little Rock, for appellee. McFADDIN, Justice. This is a boundary line dispute involving property in Lots 1 and 2 of Rapley Estate in Pulaski County. Rose Courts, Inc., an Arkansas corporation, owns the east portion of Lot 2; and Harry L. Hastings and wife[1] own the west portion of Lot 1. Running north and south between Lots 1 and 2 there was and is an unopened avenue 40 feet wide, east to west, and the lots of the litigants herein abut on said unopened avenue. Rose Courts brought this suit against Hastings to have the Chancery Court establish the true location of the unopened 40-foot avenue, and also to enjoin Hastings from alleged trespass on Rose Courts' property west of the unopened avenue. Rose Courts claimed that the unopened avenue was about 84 feet east of where Hastings claimed it to be. Hastings claimed: (a) that previous litigation was res judicata against Rose Courts; and (b) if res judicata were not sustained, the unopened avenue was 84 feet west of where Rose Courts claimed it to be. Neither side claimed title in any way to the unopened avenue. The litigation has a considerable historic background. In 1872 the Pulaski Probate Court directed the administrator of the Estate of Charles Rapley to file a plat of portions of Sections 10, 11, and 14. This plat was filed and showed said Lots numbered 1 to 8 of Rapley Estate, each lot[2] containing approximately 9 acres; and the plat showed an unopened (and unnamed) avenue 40 feet wide east to west, running north and south, and separating Lots 1, 4, 5, and 8 on the east side of the avenue from Lots 2, 3, 6, and 7 on the west side of the avenue. The plat did not show definitely whether the property line immediately west of the Rapley Estate was the Quapaw Line or the *585 line of Cox's Quapaw Addition, which addition is 170 feet east to west and several hundred feet north and south. This failure of the plat to establish the said west line of Rapley Estate was probably the origin of the litigation herein to be mentioned. Except for the matter of res judicata, subsequently to be discussed in detail, the issue could be simply stated: if the west line of the Rapley Estate bordered the Quapaw Line, then the 40-foot avenue here involved should be as contended by Hastings; but if the west line of the Rapley Estate bordered Cox's Quapaw Addition, then the 40-foot avenue should be as contended by Rose. In other words, a strip of about 84 feet is involved in the present litigation, depending on who is right about the location of the unopened avenue. A voluminous record was made in the Trial Court with scores of exhibits consisting of plats, surveys, court orders, deeds, and other instruments. A number of engineers and surveyors testified, and some even repudiated their own previously made plats as to location of the 40-foot avenue. Such repudiation tended to place the issue in grave doubt as to the actual location of the 40-foot strip.[3] The Trial Court denied Hastings' plea of res judicata and fixed the 40-foot avenue at the place urged by Rose Courts; and from that decree Hastings has appealed, urging two points: "1. The Trial Court erred in not holding the present action barred by reason of Pulaski Chancery Cases No. 82474, No. 90142, and No. 101718, based on the law of res judicata. "2. The Court erred in not locating the forty foot avenue as shown on the C. T. Brandt Survey of December 11, 1947." We do not reach appellants' second point because we are convinced that Hastings' plea of res judicata should have been sustained; and we now give the situations which show the applicability of such plea. First, we give the line of title of each litigant from the various deeds, all duly recorded: (a) Rose Courts, the present appellee, received its deed from Arkansas Courts, dated June 27, 1950; Arkansas Courts received its deed from Arkansas Real Estate Company, Inc., dated December 9, 1949; and Arkansas Real Estate Company, Inc. received its deed from Little Rock Investment Company dated April 4, 1947. (b) Harry L. Hastings and wife received their deed from C. C. McCord, dated May 10, 1955; and C. C. McCord received his deed from the State of Arkansas, dated December 27, 1935. Certain cases in the Pulaski Chancery Court need to be identified: (a) Case No. 82474 was by C. C. McCord, as plaintiff, against Arkansas Real Estate Company, Inc., as defendant. The decree rendered in February 1949 recited that McCord's title to the west 156.3 feet of Lot 1 Rapley Estate (that would be along the unopened avenue) was quieted, and that the boundary line between Lot 1 and Lot 4 (to the south of Lot 1) Rapley Estate "is shown by Exhibit 8 herein, same being a plat of the survey made by C. T. Brandt December 11, 1947." It will be observed that McCord owned his portion of Lot 1 until May 1955, and that Arkansas Real Estate Company, Inc. owned its portion of Lot 2 until December 1949, and that the parties to the present litigation claim through the respective parties in said Case No. 82474. (b) Case No. 90142 in the Pulaski Chancery Court was dismissed by voluntary non-suit and is unimportant. (c) Case No. 101718 in the Pulaski Chancery Court was styled, Arkansas Real Estate Company, Inc., as plaintiff, v. C. C. McCord and wife, defendants, and filed January 18, 1955. In that case the Arkansas Real Estate *586 Company, Inc. claimed ownership of the west 84 feet of Block 1, Rapley Estate (same being a portion of the Hastings property). It will be observed that Arkansas Real Estate Company, Inc. conveyed its title to Lot 2 in 1949 to Arkansas Courts, yet in 1955 Arkansas Real Estate Company, Inc. was claiming against McCord 84 feet from Lot 1, Rapley Estate. Against such claim in Case No. 101718, McCord pleaded that the decree in Case No. 82474 was res judicata against Arkansas Real Estate Company, Inc.; and by decree of July 28, 1955, McCord's plea of res judicata was sustained. (d) Case No. 107579 in the Pulaski Chancery Court is the present case; and Hastings has pleaded the earlier cases as res judicata. Mr. R. M. Traylor, President of Rose Courts, and also President of both of the predecessor corporations, Arkansas Courts, and Arkansas Real Estate Company, Inc., was called as a witness by Rose Courts in this case; and Mr. Traylor admitted on cross examination that the 84 feet involved in the present suit was the same 84 feet that was involved[4] in Case No. 101718. It is true that on re-direct examination Mr. Traylor claimed he did not know what his attorneys had alleged in the previous cases; but Mr. Traylor's admission must stand against Rose Courts, of which he is President. Such admission by Mr. Traylor is sufficient extrinsic evidence to identify the land in the previous litigation with the land in the present litigation and to establish Hastings' plea of res judicata. It is true that Arkansas Real Estate Company, Inc. had conveyed by deed to Arkansas Courts before the decree in Case No. 101718, but nevertheless the plea of res judicata was successfully used in Case No. 101718, with Case No. 82474 as the support for such plea; and Traylor's admission that the land in Case No. 101718 was the same as that claimed by Rose Courts in the present case establishes that the land in the present suit is the same as the land involved in Case No. 82474. Such extrinsic evidence supports the plea of res judicata. The Latin words, "res judicata," literally translated into English mean "a thing adjudged"; and freely translated into English mean "the matter has been decided." In Missouri Pac. R. Co. v. McGuire, 205 Ark. 658, 169 S.W.2d 872, we quoted the language from American Jurisprudence to explain res judicata: "`Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of *587 competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.'" In Robertson v. Evans, 180 Ark. 420, 21 S.W.2d 610, Mr. Justice Humphreys, speaking for the Court, said: "The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 681, 290 S.W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S.W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S.W.2d 735." We have given the line of title of Hastings and Rose Court to show that Hastings is in privity with McCord, and Rose Court is in privity with Arkansas Real Estate Company. In Missouri Pac. R. Co. v. McGuire, supra, we said: "And in 30 Am.Jur. 957, in discussing who are privies within the rule of res judicata, it is stated: `In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject-matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title.' See Meyer v. Eichenbaum, 202 Ark. 438, 150 S.W.2d 958, and cases and authorities there cited." In Cook v. American Cyanamid Co., 227 Ark. 268, 297 S.W.2d 933, we said: "The contention that the parties are not identical under the doctrine of res judicata is without merit. See Collum v. Hervey, 176 Ark. 714, 3 S.W.2d 993, to the effect that a grantee, under the doctrine of res judicata, stands in the relation of privy to the grantor." In Carrigan v. Carrigan, 218 Ark. 398, 236 S.W.2d 579, we quoted the language of the United States Supreme Court in Russell v. Place, 94 U.S. 606, 24 L.Ed. 214, which language had been approved by Mr. Justice Battle in McCombs v. Wall, 66 Ark. 336, 50 S.W. 876, which language is: "`It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to give this operation to the judgment it must appear either upon the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,—the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.'" Here, as we have previously shown, Mr. Traylor's testimony was the extrinsic evidence which clearly showed that the 84-foot strip here in issue was the same strip in issue in Case No. 82474, and that in Case No. 101718 the plea of res judicata was successfully urged in favor of McCord (predecessor in title to Hastings) as to the said 84-foot strip. In Morrow v. Raper, *588 222 Ark. 414, 259 S.W.2d 499, Mr. Justice Millwee said: "There is no contention by plaintiff that the 1946 judgment was obtained by fraud or collusion. The only contention is that the surveyors made a mistake in establishing the boundary line in that suit. The fact, if true, that the question of the boundary line may have been erroneously determined in the former suit does not impair the conclusiveness of a valid judgment rendered by a court of competent jurisdiction, which has not been set aside or corrected on appeal. Tri-County Highway Improvement Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S.W. 627; Strauss v. Missouri State Life Ins. Co., 188 Ark. 286, 66 S.W.2d 299; 30 Am.Jur., Judgments, Sec. 156; 50 C.J.S. Judgments, § 704." In Timmons v. Brannan, 225 Ark. 220, 280 S.W.2d 393, there had been a previous case to establish the boundary line between the parties; then later Timmons attempted to show that there was a street (called Ridge Street) between the properties of Brannan and Timmons, but we held the first case to be res judicata, saying: "`The test in determining a plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.' The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit." Appellee cites and strongly relies on Fawcett v. Rhyne, 187 Ark. 940, 63 S.W. 2d 349, and McCombs v. Wall, 66 Ark. 336, 50 S.W. 876; but neither of these cases is ruling in the case at bar. In Fawcett v. Rhyne we held that the adjudication concerning one parcel in a larger tract was not res judicata in regard to another parcel, in the larger tract, not included in the previous case. In McCombs v. Wall we held that there was nothing, either in the record or in extrinsic evidence, to identify the land involved in the second case as having been in the original case, and thus res judicata was not established. The two cases relied on by the appellee are correct, but the law enunciated in those cases is not applicable to the case at bar because, here, there is extrinsic evidence that the tract now involved was also involved in the previous litigation. Finally,[5] we mention Rose v. Jacobs, 231 Ark. 286, 329 S.W.2d 170, wherein we quoted with approval from 50 C.J.S. Judgments § 763, p. 293: "`Since the identity of parties is not a mere matter of form, but of substance, the rule of res judicata should not be defeated by minor differences of parties. Thus, where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal to the conclusive effect of the prior judgment, and a substantial identity is sufficient. * * * This rule, that there must be a substantial identity of parties as well as of the subject matter, is based on the fundamental principle that no man can *589 be deprived of his property except by due process of law, a principle which in the United States has been embodied in the federal Constitution and in the constitutions of the several states. It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.'" So we conclude that Hastings' plea of res judicata should be sustained; and it follows that the Chancery decree is reversed and the cause remanded, with directions to sustain Hastings' plea of res judicata and to dismiss the complaint of Rose Courts. GEORGE ROSE SMITH, Justice (dissenting). Today's decision is demonstrably unjust, in that the Hastings Realty Company is acquiring a strip of land to which it has no title whatever. On the merits only five witnesses with engineering or surveying experience testified. All five of them fixed the disputed boundary line in accordance with the contentions of the appellee and the findings of the chancellor. Not one syllable of testimony to the contrary was offered by Hastings. That the strip actually lies within the tract described in the appellee's deed is, on the record before us, an undisputed fact. Yet Hastings emerges as the owner of the land. This result comes about through an application of the doctrine of res judicata. Despite the majority's protracted discussion of elementary principles of law, as far as I can see the rule of res judicata actually has nothing at all to do with this case. Two earlier chancery cases are involved. The first, No. 82474, cannot possibly be conclusive of the present litigation and is not found to be so by the majority. That case did not concern the point now in controversy. There the only issue was the true location of the southern boundary of Lot 1. That issue had nothing to do with the true location of the western boundary of Lot 1, now in dispute. It happened that in Case No. 82474 there was filed a surveyor's plat, prepared with reference to the southern boundary, that erroneously located the western boundary in accordance with Hastings' present contention. But that error was wholly extraneous to the controversy then before the chancery court, did not lead to a binding decision fixing the western boundary line, and is not so interpreted by the majority in the case at bar. After the decision in the first chancery case Arkansas Real Estate Company conveyed its interest in Lot 2 to this appellee, Rose Courts. Thereafter the second chancery case, No. 101718, was decided. That litigation did involve the boundary now in dispute; but the point is that the appellee, Rose Courts, was not a party to the case nor was it represented by a party. The plaintiff was Arkansas Real Estate Company, which had already conveyed Lot 2 to Rose Courts. Yet that is the decision that the majority hold to be res judicata. Even after having studied the majority opinion I do not understand how it is that a grantee is bound by litigation brought by its grantor after the property has been conveyed to the grantee. This bewildering result seems to be reached solely because Traylor, the president of Rose Courts, happened to testify (inadvertently, as the majority *590 seem to realize) that the land now in controversy is the same tract as that involved in the second chancery case. Although this single statement in a record of several hundred pages is seized upon as the main support for today's decision, as far as I can see not even this statement justifies the result that is being declared. If this scrap of Traylor's testimony is treated as a statement of fact—an assertion of the true location of the western boundary —then it is not only clearly inadvertent but also flatly contrary to, and overcome by, the wealth of engineering testimony that establishes the location of the boundary beyond question. On the other hand, if Traylor's statement is somehow looked upon as creating an estoppel against the corporation of which he is merely an officer, the short answer is that there can be no estoppel because there has been no reliance, no change of position, on the part of Hastings in consequence of this isolated bit of testimony. I think the majority decision to be a serious miscarriage of justice. WARD and JOHNSON, JJ., join in this dissent. NOTES [1] The original defendants were Harry L. Hastings and wife, and in the course of the litigation they transferred their title to the Hastings Realty Company, an Arkansas corporation. We continue to refer to all of the defendants as "Hastings." [2] In some instances, they are referred to as "lots" and in others as "blocks"; but the interchange of these words is not a material matter in this litigation. [3] On this see Morrow v. Raper, 222 Ark. 414, 259 S.W.2d 499, subsequently discussed. [4] Here is Mr. Traylor's testimony: "Q. Mr. Traylor, you have testified in regard to a conversation had between you and Mr. Hastings subsequent or shortly after Mr. Hastings' purchase of the west part of Lot 1 or Block 1 of Rapley Estate? "A. I did, sir. "Q. And you testified that shortly thereafter you filed a lawsuit against Mr. Hastings? "A. Well, I think it was after that. It was along about that same time. I don't remember how many days or weeks or months it was, but it was leading up to it after Hastings bought the property and it came to a head about this 84 feet of ours that he is claiming. (Emphasis supplied.) "Q. Was not that 84 feet that you are talking about exactly the same 84 feet that is involved in this law suit here now? "A. That 84 feet that is involved in this lawsuit? "Q. Yes. "A. What is the number of this lawsuit? Do you mean the present lawsuit? "Q. Yes, sir. "A. What is the number of that lawsuit, not that 82474 that you had awhile ago, is it? "Q. No, No. 107579. "A. Of course, it would be. (Emphasis supplied.) "MR. MITCHELL: Wait a minute. "A. There is a suit about where this street goes and if you prevail you would come 84 feet over into our property, or 85, whatever it is." [5] In addition to the cases heretofore cited, we have a number of other cases on res judicata which are germane to the points here discussed. Some such cases are: Watson v. Suddoth, 218 Ark. 960, 239 S.W.2d 602, certiorari denied U. S. Supreme Court, 342 U.S. 885, 72 S.Ct. 174, 96 L.Ed. 664; Langford v. Griffin, 179 Ark. 574, 17 S.W.2d 296; Jones Lmbr. Co. v. Wisarkana Lmbr. Co., 125 Ark. 65, 187 S.W. 1068; Cleveland-McLeod Lumber Co. v. McLeod, 96 Ark. 405, 131 S.W. 878; Sauls v. Sherrick, 121 Ark. 594, 182 S.W. 269; Gordon v. Clark, 149 Ark. 173, 232 S.W. 19; Lillie v. Nunnally, 211 Ark. 202, 199 S.W.2d 751; and Barton v. Meeks, 209 Ark. 903, 193 S.W.2d 138.

SUPERIOR COURT oFTHE STATE OF DEI_AWAR E RlCHARD R. COOCH NEW cAsTl_E couNTY couRTHousE REs/oENTJuDGE 500 NORTH KING STREET, SU|TE IO4OO W\LM|NGToN, DELAwARE 19801-3733 TE\_EPHoNE (302) 255-0664 Jarnes J. Kriner, Esquire Deputy Attorney General Departrnent of Justice 820 North French Street Wilmington, Delaware 19801 Attorney for State of Delaware Lamare A. Bradley J ames T. Vaughn Correctional Center 1181 Paddock Road Smyrna, Delaware 19977 Defendant, pro se Re: State of Delaware v. Lamare Bradlev ID# 0712028521 Submitted: November 27, 2018 Decided: December 4, 2018 On Defendant’s Motion for Correction of Illegal Sentence. DENIED. Dear Mr. Kriner and Mr. Bradley: I have received Defendant’s motion to for correction of illegal sentence, and the State’s response. Upon review of the contentions’ of the parties, the Court denies Defendant’s Motion. Defendant pled guilty to inter alia Unlawful Sexual Contact First Degree, and Was sentenced on January 23, 2009. At the time of sentencing, ll Del. C. §4121(e)(1) required that Defendant register as a Tier III sex offender in addition to any incarceration or probation. The Court, however, erroneously ordered Defendant to register as a Tier II sex offender. On June 24, 2011, the Court notified the parties of the error and proposed to correct the sentence to properly reflect the Tier III designation. Defense counsel did not object, and the sentence Was so corrected. In his motion, Defendant contends it has only now come to his attention that his sentence was amended in 2011 to reflect the statutory mandate. lt appears to the Court however, that Defendant has repeatedly registered as a Tier III sex offender since his sentence was corrected in 2011. Defendant further alleges that his plea agreement included a provision that he would be required to register as a Tier II sex offender, not Tier III. At the time of the plea agreement, Defendant acknowledged that he had to register as a sex offender, and that Defendant discussed the requirements with his lawyer, as noted on the Truth-In-Sentencing Guilty Plea Form.l There is no indication that there was an agreed upon tier. At the time of sentencing, 11 Del. C. §4121(e)(1) required Defendant register as Tier III. Accordingly, Defendant Motion for Correction of Illegal Sentence is DENIED. IT IS SO ORDERED. Very truly yours, MJJ\/bv~/L’r` RRC cc: Prothonotary Investigative Services l Truth-In-Sentencing Guilty Plea Form, D.I. 26 (Nov. 12, 2008). Defendant and defense counsel signed the Truth-In-Sentencing form.

894 F.Supp. 777 (1995) WASHINGTON ELECTRIC COOPERATIVE, INC., Plaintiff, v. MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC CO., Defendant/Third-Plaintiff, v. PATERSON, WALKE & PRATT, P.C., et al., Third-Party Defendants. NORTH ATTLEBORO ELECTRIC DEPARTMENT, et al., Plaintiffs, v. VILLAGE OF LUDLOW, et al., Defendants. MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC CO., Plaintiff, v. VILLAGE OF LUDLOW, et al., Defendants. Civ. Nos. 89-94, 5:91-270 and 5:91-271. United States District Court, D. Vermont. August 3, 1995. *778 *779 *780 *781 Stephen Skill Ankuda, Parker & Ankuda, P.C., Springfield, VT, Gerald J. Caruso, Ferriter, Scobbo, Sikora, Caruso & Rodophele, P.C., Boston, MA, for plaintiffs North Attleborough Elec. Dept., Mansfield Mun. Elec. Dept., Georgetown Mun. Light Dept., Ashburnham Mun. Light Plant, Boylston Mun. Light Dept., Danvers Elec. Div., Groton Elec. Light Dept., Hingham Mun. Light Plant, Middleborough Gas and Elec. Dept., Paxton Mun. Light Dept., Shrewsbury's Elec. Light Plant, Sterling Mun. Light Dept., Templeton Mun. Light Plant, Wakefield Mun. Light Dept., West Boylston Lighting Plant, Hudson Light and Power Dept., Peabody Mun. Light Plant, Massachusetts Mun. Wholesale Elec. Co. Robert B. Hemley, Gravel & Shea, Burlington, VT, Bert J. Capone, David A. Grossbaum, Peabody & Arnold, Boston, MA, for defendants Paterson, Walke & Pratt, P.C., Stephen Walke, Ralph W. Howe, III. Joseph E. Frank, Paul Frank & Collins, P.C., Burlington, VT, for defendants Paterson, Gibson, Noble & Goodrich, Charles E. Gibson, Jr., Austin B. Noble, Julian R. Goodrich. Leonard F. Wing, Jr., Ryan, Smith & Carbine Ltd., Rutland, VT, for defendant Martin Nitka. Douglas Clark Pierson, Pierson, Wadhams, Quinn & Yates, Burlington, VT, for defendants Downs, Rachlin & Martin, William B. Piper. Edward Vanderveer Schwiebert, Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, VT, for defendant Kenneth Mason. Robert A. Mello, The Law Office of Robert A. Mello, South Burlington, VT, for defendants Robert B. Page, James A. Fox. OPINION AND ORDER BILLINGS, Senior District Judge. The following matters bring these actions to the Court's attention: 1. Magistrate Judge Jerome J. Niedermeier's Report and Recommendation, filed March 31, 1995. Magistrate Niedermeier recommended that the Court grant the various motions for summary judgment submitted by the law firm Defendants in all three of the pending actions. Numerous objections and responses have been filed. 2. Magistrate Niedermeier's Order, filed March 31, 1995, denying a Motion by Plaintiff Washington Electric Cooperative *782 ("WEC") to amend its crossclaim in action 89-CV-94. Two of the law firm Defendants have filed Objections and Statements of Appeal to that Order. WEC has filed a reply and statement in support of the Order. 3. Motions for Entry of Final Judgment filed in action 5:91-CV-270 by Village of Morrisville, et al.; Village of Ludlow, et. al.; Village of Stowe, et al.; and WEC, et al. After a brief discussion of the facts of this case, we will discuss the Magistrate's Report and Recommendation, the Magistrate's Order and the Motions for Entry of Final Judgment seriatim. FACTUAL BACKGROUND[1] In 1979, certain Vermont utilities ("Vermont Participants") entered into power sales agreements ("PSAs") with the Massachusetts Municipal Wholesale Electric Company ("MMWEC")[2] for shares of the power generating potential of New Hampshire's Seabrook nuclear facility. The PSAs were formulated as "take-or-pay" contracts. In other words, they required regular monthly payments by the Participants to MMWEC regardless of whether the utility actually received any power. Prior to entering into the PSAs, the Vermont Participants had to qualify for participation in the venture. The Vermont Participants provided MMWEC's general and bond counsel with legal opinions to comply with this condition. In 1981 and 1985 MMWEC issued revenue bonds to finance the project. Again, the Vermont Participants were required to submit legal opinions demonstrating their authority to enter into the PSAs.[3] These legal opinions were provided by the law firm of Paterson, Gibson, Noble & Goodrich, ("PGNG")[4] the law firm of Downs, Rachlin & Martin and attorney William Piper, (collectively "DRM/Piper")[5] the law firm of Paterson, Walke & Pratt and attorneys Ralph W. Howe[6] and Stephen Walke (collectively "PWP"),[7] and attorney Martin Nitka ("Nitka").[8] In 1988, the Vermont Supreme Court found the PSAs ultra vires and void ab initio. See Vermont Dep't of Public Serv. v. Massachusetts Mun. Wholesale Elec. Co. ("MMWEC I"), 151 Vt. 73, 558 A.2d 215 (1988), cert. denied, 493 U.S. 872, 110 S.Ct. *783 202, 107 L.Ed.2d 155 (1989). The Vermont Supreme Court provided two grounds to justify its holding. First, the court determined that 30 V.S.A. § 4002,[9] which authorizes Vermont utilities to participate together in the purchase of "supplies of capacity and energy from other utilities," did not empower the Vermont Participants to enter into the PSAs by which they obtained shares of "project capability." Id. at 80, 558 A.2d 215. As a second ground for its holding, the Vermont Supreme Court relied on the principle of nondelegation. Id. at 81, 558 A.2d 215. Quoting Thompson v. Smith, the court observed that it "has long adhered to the `deeprooted principle of law that the delegate of power from the sovereign cannot without permission recommit to another agent or agency the trust imposed upon its judgment and discretion.'" Id. (quoting 119 Vt. 488, 501, 129 A.2d 638 (1957)). The court ruled that the PSAs violated the nondelegation doctrine by redelegating the Vermont Participants' spending powers and by limiting the future exercise of discretion and judgment by their legislative bodies.[10]Id. at 82, 558 A.2d 215. Adhering to the Vermont Supreme Court's opinion in MMWEC I, the Vermont Participants ceased making payments to MMWEC under the PSAs. As a result of step-up provisions in the contracts, MMWEC and the individual Massachusetts utilities who were also participating in the project ("Massachusetts Participants") were obligated to assume the Vermont Participants' share of the payments. WEC has filed an action in contract against MMWEC for return of the funds paid pursuant to the PSAs. (89-CV-94). Within that action, WEC has filed a cross-claim against the law firms who issued the legal opinions. MMWEC and the Massachusetts Participants brought separate actions seeking compensatory damages against the Vermont Participants, their directors, and the various attorneys and law firms that issued the opinions. (91-CV-270 and 91-CV-271). In this Opinion and Order, we focus on the actions brought by WEC, MMWEC and the Massachusetts Participants against the lawyers who represented the Vermont Participants. These actions sought damages on claims of negligence, negligent misrepresentation, breach of warranty, and indemnity and contribution. In his Report and Recommendation, the Magistrate granted summary judgment to the law firm Defendants, concluding that neither the negligence nor the indemnity and contribution claims could be sustained. DISCUSSION 1. The Magistrate's Report and Recommendation A. Standard of Review Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court referred this matter to the Magistrate to conduct hearings and to submit to the Court recommendations for the disposition of the law firm Defendants' Motions for Summary Judgment. Section 636(b)(1) provides that the Court: shall make a de novo determination of those portions of the [Magistrate's] report ... [and] recommendation to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. See also Fed.R.Civ.P. 72. Based on this standard, we review the Magistrate's Report and Recommendation de novo. *784 The lawyer Defendants have advanced a number of different arguments in support of their various Motions for Summary Judgment. Summary judgment is appropriate when the Court finds that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The initial burden of demonstrating that no genuine issue of material fact exists rests on the party seeking summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The burden then shifts to the opposing party, who may not rest on its pleading but must present "significant probative evidence" demonstrating that a factual dispute exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The Court must view these materials and draw all inferences in the light most favorable to the non-movant. Id. at 255, 106 S.Ct. at 2513-14. B. Plaintiffs' Negligence Claims In their Motions for Summary Judgment, the attorneys contended that because no attorney-client relationship existed between the lawyer Defendants and either MMWEC or the Massachusetts Participants, the law firms cannot be considered liable in this action.[11] The Magistrate agreed, examining the question under both Vermont and Massachusetts law.[12] As the Magistrate indicated, in order to succeed on a claim of attorney negligence or "malpractice" in Vermont, a party must demonstrate the existence of an attorney-client relationship. Brown v. Kelly, 140 Vt. 336, 338, 437 A.2d 1103 (1981). See also Bresette v. Knapp, 121 Vt. 376, 380, 159 A.2d 329 (1960) ("not only must the relationship of attorney and client have existed between the parties, but this relationship must also have been professional in character"); Howard Bank, N.A. v. Estate of Pope, 156 Vt. 537, 539, 593 A.2d 471 (1991) (declining to reach the issue of whether a nonclient may sue an attorney). No dispute surrounds the fact that MMWEC and the Massachusetts Participants were not the clients of the lawyer Defendants. Accordingly, the Magistrate recommended that the law firms were entitled to summary judgment on Plaintiffs' negligence claim. In their Consolidated Objections, MMWEC and the Massachusetts Participants urge the Court to reject the Magistrate's conclusions with respect to Vermont law by relying on the 1993 opinion of a Vermont trial court which expanded Vermont's *785 privity requirement. See Van Vlandren v. Paul, Frank & Collins, Inc., No. S1071-92 CnC, slip. op. at 4-5 (Chittenden Sup.Ct. Nov. 9, 1993). In Vlandren, the court determined that an attorney who prepared a Certificate of Title for a mortgagor was liable to the mortgagee bank where the attorney knew that the bank would rely on the Certificate of Title in extending the mortgage. Id. MMWEC and the Massachusetts Participants assert that the situation currently before the Court is comparable to that in Vlandren. They argue that the lawyer Defendants were not simply advising the Vermont Participants on a particular course of conduct. Rather, the Plaintiffs argue, the Defendants had direct interaction with MMWEC and the Massachusetts Participants and, hence, privity. Moreover, they argue, the attorney Defendants knew that MMWEC and the Massachusetts Participants would be relying on their opinion letters in determining whether to enter into PSAs with the Vermont Participants. MMWEC and the Massachusetts Participants further observe that a number of states have expanded privity beyond the attorney-client relationship. See, e.g., Goerlich v. Courtney Indus., Inc., 84 Md.App. 660, 581 A.2d 825, 827 (1990) ("[w]here the third party can allege and prove that the client intended him to be a third party beneficiary of the attorney's services, and where his interests are identical to those of the client, a suit for legal malpractice may be maintained by that third party.") (citing Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985)), cert. denied, 322 Md. 130, 586 A.2d 13 (1991); Vanguard Prod., Inc. v. Martin, 894 F.2d 375, 376 (10th Cir.1990) (under Oklahoma law, attorneys owe common law duty of ordinary care and workmanlike performance to those nonclients whom attorney can reasonably foresee will rely on attorney's advice); 1 Ronald E. Mallen and Jeffrey Smith, Legal Malpractice, § 7.10 (3d ed. 1989) (hereinafter "Mallen & Smith") (discussing expansion of privity under beneficiary and foreseeability tests). Thus, MMWEC and the Massachusetts Participants assert that if this issue were presented to the Vermont Supreme Court, the court would expand the privity concept. In diversity actions, the Court is bound to follow the law as set forth by Vermont's highest court unless "there are very persuasive grounds for believing that the state's highest court would no longer adhere" to its own precedent. Bower v. Weisman, 650 F.Supp. 1415, 1423 (S.D.N.Y. 1986) (quoting 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4507, at 92 (1982)). See also Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 10-11, 88 L.Ed. 9 (1943). Compare Roy v. Bolens Corp., 629 F.Supp. 1070, 1072 (D.Mass.1986) (where neither state supreme nor appellate court have directly addressed issue, it is appropriate to look to trial court decisions). Assuming, without deciding, that the holding in Vlandren is applicable to the situation in the case at bar,[13] we nevertheless conclude that Plaintiffs have failed to provide the Court with "persuasive grounds" to determine that the Vermont Supreme Court would reject its requirement of an attorney-client relationship in a cause of action for attorney negligence. Although we agree that a number of states have abandoned the privity requirement in some instances, there remains "an abundance of authority for the proposition that, generally, only the client can sue the attorney for a negligent act or omission." 1 Mallen & Smith, § 7.10 at 376. Absent a clear determination by the Vermont Supreme Court that it intends to abandon its privity requirement, we adhere to the law as it currently stands in the state. There is no dispute over the fact that Plaintiffs were not the clients of the lawyer Defendants in the transaction at issue in this case. Accordingly, as a matter of law, we agree with the Magistrate that Plaintiffs have no standing to bring an action against *786 the lawyer Defendants for negligence. Thus, we ADOPT the Magistrate's Report and Recommendation with respect to its conclusions on the attorney negligence claim. C. Plaintiffs' Contribution and Indemnity Claims In their various Complaints, MMWEC and the Massachusetts Participants asserted that in the event they were required to return funds to the Vermont Participants, they have an implied right of indemnity and contribution against the law firms. The law firms and the Magistrate disagreed. In his Report and Recommendation, the Magistrate concluded that the law of indemnity and contribution in both Vermont and Massachusetts requires joint tortfeasors. Because the claims of the Vermont Participants against the Massachusetts Participants are based on contract and quasi-contract, the Magistrate concluded that MMWEC and the Massachusetts Participants could not be considered joint tortfeasors with the law firms. In their Consolidated Objections, MMWEC and the Massachusetts Participants argue that the Magistrate erred in recommending the dismissal of the contribution and indemnity claims. They assert that the Magistrate's factual findings do not withstand scrutiny because they ignore the counterclaims in tort by MMWEC against the Vermont Participants in addition to their lawyers. According to the Plaintiffs, both lawyers and the Vermont Participants misrepresented their authority. Thus, Plaintiffs argue, they are joint tortfeasors. See also § 886B(2)(c) of Restatement (Second) of Torts (1977).[14] Absent statutory authorization, Vermont law precludes contribution among joint tortfeasors. Swett v. Haig's, Inc., ___ Vt. ___, 663 A.2d 930 (Vt.1995); Peters v. Mindell, 159 Vt. 424, 427, 620 A.2d 1268 (1992). As for the issue of indemnity, we agree with the Plaintiffs that the Magistrate oversimplified Vermont's law by merely indicating that because the Vermont Participants' original action was brought in contract, the parties at issue here could not be "joint tortfeasors." See Digregorio v. Champlain Valley Fruit Co., Inc., 127 Vt. 562, 565, 255 A.2d 183 (1969) (in applying the law of indemnity, "[w]hether the original action was brought in contract or tort is of no consequence"). Nevertheless, for the reasons set forth below, we agree with the Magistrate's end result. "[I]ndemnity is a right accruing to a party who, without active fault, has been compelled by some legal obligation, such as a finding of vicarious liability, to pay damages occasioned by the negligence of another." Morris v. American Motors Corp., 142 Vt. 566, 576, 459 A.2d 968 (1983). Indemnity shifts the entire loss onto the real wrongdoer. Id. at 577, 459 A.2d 968; Viens v. Anthony Co., 282 F.Supp. 983, 985 n. 2 (D.Vt. 1968). Vermont recognizes a right of indemnity if: "(1) there is an express agreement by one party to indemnify the other, or (2) the circumstances are such that the law will imply such an undertaking." Peters, 159 Vt. at 427, 620 A.2d 1268 (citing Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571, 572, 381 A.2d 1061 (1977)). In the instant case, there is no express agreement for indemnification between MMWEC/Massachusetts Participants and the lawyer Defendants. Accordingly, we examine whether a legal relationship exists between the parties such that the lawyer Defendants may be required to indemnify the Plaintiffs. Peters, 159 Vt. at 428, 620 A.2d 1268; Hiltz v. John Deere Indus. Equip. Co., 146 Vt. 12, 14, 497 A.2d 748 (1985). In the past, the Vermont Supreme Court has required a direct legal relationship between the indemnitor and indemnitee like that of manufacturer-seller or contractorowner *787 when recognizing an implied right of indemnity. See Morris, 142 Vt. at 575-76, 459 A.2d 968 (strictly liable automobile manufacturer entitled to indemnification from manufacturer of defective part); Bardwell, 135 Vt. at 574, 381 A.2d 1061 (hotel owner entitled to indemnity from contractor who created hazard in conducting repairs); Digregorio, 127 Vt. at 565, 255 A.2d 183 (retailer of defective fruit entitled to indemnity from wholesaler). In Hiltz, however, the Vermont Supreme Court signalled that there were limits on the scope of indemnity. The Hiltz court declined to require the purchaser of a product to indemnify the manufacturer. 146 Vt. at 15, 497 A.2d 748. The Court reasoned that "under Vermont law, one is not entitled to indemnity from a joint tortfeasor merely because one may be free from negligence, or another is more at fault." Id. Applying these principles to the instant action, we note that there is simply no direct legal relationship between the Plaintiffs and the lawyer Defendants such that a right to indemnity exists. As we have previously observed, no privity existed between the Plaintiffs and Defendants. The legal opinions submitted by the lawyer Defendants to MMWEC's counsel were presented on behalf of the Vermont Participants. The lawyer Defendants never represented the Plaintiffs. Under these circumstances, we do not believe that Vermont law implies an obligation to indemnify.[15] Accordingly, we agree with the Magistrate's conclusion that summary judgment should be granted to the lawyer Defendants on Plaintiffs' claims of indemnity and contribution. D. Defendants' Additional Ground for Summary Judgment — Judicial Discretion Because the Magistrate found the issues of legal malpractice and indemnity and contribution to be dispositive of Plaintiffs' action, he did not reach any other arguments made by the lawyer Defendants. We believe that this conclusion was erroneous. Plaintiffs' claims of negligent misrepresentation and breach of warranty survive the Magistrate's ruling, and are discussed at section III, herein. Nevertheless, we find that the lawyer Defendants' judicial discretion argument is dispositive of all claims raised by the Plaintiffs against all lawyer Defendants except PGNG. Except for the two letters issued by PGNG in 1979, each of the relevant opinion letters issued by the lawyer Defendants contained the following language, indicating that their opinions were subject to judicial discretion: It is to be understood that the obligations of the Participant[s] under the Agreements and the enforceability thereof may be subject to judicial discretion, the valid exercise of the sovereign police powers of the Commonwealth of Massachusetts or the State of Vermont and of the constitutional powers of the United States of America, and valid bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors rights. The lawyer Defendants assert that their use of this language absolves them of any liability in this action. In Vermont, an exculpatory clause is traditionally disfavored. Colgan v. Agway, Inc., 150 Vt. 373, 375, 553 A.2d 143 (1988). Accordingly, the language of the clause is construed strictly against its drafter. Douglass v. Skiing Standards, Inc., 142 Vt. 634, 636, 459 A.2d 97 (1983). Nevertheless, where the language of the contract is clear, the parties are bound by the common *788 meaning of their words and the Court need not engage in fanciful alternative constructions. Id. at 636, 459 A.2d 97. Plaintiffs assert that use of a clause like the one at issue here is not a qualification of the validity of the contract, but rather speaks to enforceability. To support this argument, Plaintiffs point the Court to the National Association of Bond Lawyers' Model Bond Opinion, printed in 15 Urb.Law. 985, 998 (1983), and to two law review articles. See Scott FitzGibbon & Donald W. Glazer, Legal Opinions in Corporate Transactions: The Opinion on Agreements and Instruments, 12 J.Corp.L. 657, 686 (1987); Frank E. Rabb et al., Legal Opinions to Third Parties in Corporate Transactions, 32 Bus.Law. 553, 564 (1977). Although the Court agrees with the Plaintiffs that the clauses contained in the cited sources were intended to speak to equitable enforcement of the contracts that were the subject of the opinion letters, the language used by the lawyer Defendants in the opinion letters at issue here speaks beyond mere enforceability. The lawyer Defendants specifically stated that: "the obligations of the Participant[s] under the Agreements and the enforceability thereof may be subject to judicial discretion." (emphasis added). This language is clear and unambiguous. There is no doubt that the drafters referred to the "obligations" under the PSAs in addition to their enforcement. In other words, the clause indicates that the validity of the PSAs is subject to judicial discretion. We reject Plaintiffs' efforts to recharacterize the plain meaning of this language by referring the Court to interpretations of language which refers only to enforceability.[16] Plaintiffs assert that our interpretation "results in an absurdity — the opinion would in effect be stating the agreements are valid unless a court deems them invalid." See Consolidated Mem.Opp. to PWP's Mot. for Summ.J., filed Mar. 17, 1993, at 23. We conclude, however, that although the opinion letters attested to the status of the law at the time they were rendered, the lawyer Defendants disclaimed liability for future changes in the law. This disclaimer is consistent with accepted legal principles. See 1 Mallen & Smith, § 14.1 at 811-12 ("[t]he law is not an exact science. What an attorney thinks the law is today may not be what a court decides tomorrow.... Because of those concerns, the rule that an attorney is not liable for an error of judgment on an unsettled proposition of law is universally recognized.") An attorney cannot be expected to predict the actions that a court will take in the future. Hence, a clause disclaiming liability for future judicial discretion is valid. The judicial discretion qualification protects the opinion-giver from blame for the uncertain future of the law. In light of our conclusions herein, the lawyer Defendants, other than PGNG, may not *789 be held liable to MMWEC and the Massachusetts Participants for the opinions contained in the disputed letters. The judicial discretion clause contained in these letters absolves the lawyer Defendants of any potential liability on the Plaintiffs' remaining claims. However, because the letters issued by PGNG in 1979 did not contain the judicial discretion clause, PGNG remains potentially liable to the Plaintiffs for the relevant opinion letters rendered in 1979.[17] E. The Remaining Claims Against PGNG As aforementioned, the Magistrate found the issues of legal malpractice and indemnity and contribution to be dispositive of Plaintiffs' claims against the lawyer Defendants. Accordingly, he did not reach any other causes of action. We have determined that PGNG is the sole law firm Defendant that remains liable in this action, on the basis of the opinion letters it issued in 1979. In their Consolidated Objections, MMWEC and the Massachusetts Participants assert that their claims of negligent misrepresentation and breach of warranty[18] survive the Magistrate's recommendations. We agree and address these claims herein. 1. Negligent Misrepresentation Although the Magistrate believed that his ruling with respect to Plaintiffs' negligence claim also disposed of Plaintiffs' claim for negligent misrepresentation, we disagree. Negligent misrepresentation claims must be treated separately from straight negligence claims. See Vermont Plastics, Inc. v. Brine, Inc., 824 F.Supp. 444, 451 (D.Vt.1993) (Parker, J.) (under Vermont law, negligence and negligent misrepresentation are separate theories of recovery). The tort of negligent misrepresentation has the following elements: One who, in the course of business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement (Second) of Torts § 552(1) (1977). See also Silva v. Stevens, 156 Vt. 94, 108, 589 A.2d 852 (1991) (adopting Restatement). Unlike a claim for attorney malpractice, the cause of action for negligent misrepresentation does not require an attorney-client relationship. See Williams & Sons Erectors, Inc. v. South Carolina Steel Corp., 983 F.2d 1176, 1181 (2d Cir.1993) (noting that Restatement has "lower threshold for a plaintiff to meet when attempting to hold a defendant liable for information negligently supplied for the guidance of others"); Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230, 236 (Colo. 1995) (en banc) (although Colorado law requires attorney-client relationship for legal malpractice actions, "privity is not a necessary element of a claim for negligent misrepresentation"). Accordingly, despite the absence of an attorney-client relationship, the Plaintiffs' claim for negligent misrepresentation survives our dismissal of their straight negligence claim. Because the parties have not properly briefed the issues surrounding Plaintiffs' negligent misrepresentation claim, however, we now remand this claim to the Magistrate for further Motions and consideration to determine if PGNG may be held liable on the negligent misrepresentation claim. 2. Breach of Warranty As indicated above, Plaintiffs' Complaints also make claims for breach of warranty. *790 We agree with the Plaintiffs that the dismissal of their claim for negligence and contribution and indemnity does not affect their breach of warranty claim. Nevertheless, in their response, PGNG asserts that the claim is frivolous. We consider their arguments here. A warranty is defined as "[a] promise that a proposition of fact is true." Black's Law Dictionary 1423 (5th ed. 1979). Plaintiffs assert that statements contained within each of the opinion letters by the Defendants are factual representations of the authority of their respective clients to enter into the PSAs and the research undertaken to support the opinion. Thus, MMWEC and the Massachusetts Participants assert, the lawyers' "warranties" are actionable for breach. We have searched in vain for a case in which an attorney has been sued successfully on a breach of warranty theory for representations made in an "opinion letter." Based on their very title, these documents defy Plaintiffs' efforts to characterize them as factual guarantees. As the American Bar Association has stated: A third-party legal opinion is an expression of professional judgment on the legal issues explicitly addressed. By rendering a professional opinion, the opinion giver does not become an insurer or guarantor of the expression of professional judgment, of the transaction or of the future performance of the client. Nor does the rendering of an opinion guarantee the outcome of any legal dispute that may arise out of the transaction. American Bar Association, Third-party Legal Opinion Report, 47 Bus.Law. 167, 171 (1991). In asserting that their cause of action for breach of warranty is viable, Plaintiffs point us to a Vermont Supreme Court case in which the court, referring to causes of action for fraudulent misrepresentation and consumer fraud, has noted that the line that separates fact from legal opinion is somewhat blurred: "Where a representation as to a matter of law is essentially a matter of fact, the recipient may rely on it in a business transaction to the same extent as the recipient would other facts." See Winton v. Johnson & Dix Fuel Corp., 147 Vt. 236, 241, 515 A.2d 371 (1986).[19] Plaintiffs assert that the representations made by the attorney Defendants were essentially representations of fact. Even if an action for breach of warranty could be brought against an attorney on the basis of a third-party opinion letter, and further assuming that case law referring to fraud could be applied to a cause of action for breach of warranty, we find that such a cause of action cannot be asserted by Plaintiffs here. As we have already determined, it is undisputed that Plaintiffs were not the clients of the lawyer Defendants. Vermont law precludes an action in negligence by a nonclient against an attorney. We believe that this principle extends to breach of warranty claims. Indeed, even the Maryland Supreme Court, which has expanded its privity requirement to include an attorney's intended beneficiaries, has declined to extend an action for breach of warranty in the absence of either a warranty established by law or a contractual relationship. Flaherty, 492 A.2d at 627. Plaintiffs do not assert that they are statutorily entitled to bring this cause of action against PGNG. Nor can they point to any evidence of a contractual relationship with the lawyer Defendants. Accordingly, as a matter of law, we conclude that Plaintiffs' cause of action for breach of *791 warranty against PGNG is not viable in the State of Vermont. In light of the foregoing, we DISMISS Count XI in case number 5:91-CV-270; and Count IX in case number 5:91-CV-271.[20] 3. The Judgmental Immunity Defense PGNG asserts that it is immune from liability for its actions in this matter pursuant to the judgmental immunity doctrine. Under the judgmental immunity doctrine, "[a]n attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his state and on which reasonable doubt may be entertained by well-informed lawyers." Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144, 146 (1954) (cited approvingly in Russo v. Griffin, 147 Vt. 20, 25, 510 A.2d 436 (1986)). See also Halvorsen v. Ferguson, 46 Wash.App. 708, 735 P.2d 675, 681 (1986) (attorney not liable for errors in judgment or trial tactics where attorney's error involves uncertain, unsettled, or debatable proposition of law); 1 Mallen & Smith, § 14.8, at 829 (in the absence of precedent, authoritative analysis and meaningful debate, attorney not liable for relying on judgment as the only reliable tool to resolve issue); Davis v. Damrell, 119 Cal.App.3d 883, 174 Cal.Rptr. 257, 259 (1981). The determination of whether the law was unsettled at the time the attorney rendered his or her opinion is a question of law. Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 627, 530 P.2d 589, 595 (1975). PGNG asserts that the Court should adopt the Magistrate's Report and Recommendation on the basis of the judicial immunity doctrine. They argue that the case law in existence in Vermont regarding the validity of take-or-pay contracts in the utility area was unsettled at the time they rendered their opinions. Even though an attorney will be absolved of liability in cases where the law is unsettled, the lawyer must nevertheless show "that he performed reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem." Smith v. Lewis, 118 Cal.Rptr. at 627, 530 P.2d at 595. See also Copeland Lumber Yards v. Kincaid, 69 Or.App. 35, 684 P.2d 13, 14, rev. denied, 298 Or. 37, 688 P.2d 845 (1984); Halvorsen, 735 P.2d at 681. Although the determination of whether the law was unsettled is a question of law, the latter determination, as to whether the extent of the attorney's research was appropriate, is a question of fact. See Halvorsen, 735 P.2d at 681; Davis, 119 Cal. App.3d at 888, 174 Cal.Rptr. 257. Based on the foregoing, we remand this issue to the Magistrate for determination of whether the judicial immunity defense applies to the Plaintiffs' surviving claim of negligent misrepresentation against PGNG on the basis of the 1979 opinion letters. II. The Magistrate's Order of March 31, 1995 In its Motion to Amend, WEC sought to "clarify" its crossclaim to indicate that WEC's claims against the law firms are independent claims, not indemnification claims dependent on the outcome of MMWEC's counterclaim against WEC.[21] The Magistrate denied WEC's motion, determining that WEC had stated independent claims against the law firms in the original pleading and thus no amendment was necessary. PGNG and PWP object and appeal to the Order pursuant to 28 U.S.C. § 636(b)(1)(a), Fed.R.Civ.P. 72(a) and Local Rule 1(D)(1)(a). PGNG objects to the Magistrate's conclusion that WEC has stated an independent crossclaim against the PGNG Defendants and other lawyer defendants. Instead, PGNG argues, WEC's crossclaim against the lawyers was one of indemnity, in the event WEC was held liable to MMWEC under the *792 MMWEC counterclaim. See Answer to Counterclaim of MMWEC and Crossclaim of WEC. PGNG contends that it is clearly erroneous to read the original crossclaim otherwise, and it is contrary to law to equate a claim for indemnity with an independent crossclaim. PGNG asks that the Court provide this clarification, and further requests that the Court deny the Motion to Amend, arguing that it is tardy, unnecessary and would require further delay to the case as additional discovery would be necessary. See 6 Wright, Miller & Kane, Federal Practice and Procedure § 1488 at 682-92 nn. 28-30. WEC responds that its crossclaim against the lawyer Defendants was set forth in six counts. Although the first two counts sought indemnification, the latter four counts made claims of negligence and negligent misrepresentation against the Defendant lawyers. In its request for damages, WEC asserted that as a result of the lawyer Defendants' negligence, "WEC has suffered great harm and injury and money damages in amounts yet to be determined but not less than the amounts of any claims which MMWEC recovers from WEC on any of its counterclaim it has asserted against WEC." Crossclaim ¶ 45. Upon review of WEC's Crossclaim, the Court concludes that the Magistrate's ruling was correct. No clarification is necessary. Accordingly, we AFFIRM the Magistrate and DENY WEC's Motion to Amend. III. The Vermont Participants' Motions for Entry of Final Judgment On September 13, 1993 the Court issued an Opinion and Order granting the respective motions to dismiss of the Vermont Participants against whom suit was brought by the Massachusetts Participants (91-CV-270). The following parties have filed Motions for Entry of Final Judgment, which are now pending: A. Village of Morrisville, Robert B. Page and James C. Fox, filed March 28, 1995; B. Village of Ludlow and its Electric Department, Village of Lyndonville and its Electric Department, and Village of Northfield and its Electric Department, and Dean Brown, Donald Ellison, George Dunnett, John Collins, Jr., Kenneth C. Mason and Edgar C. Gadbois, filed March 30, 1995; C. Village of Stowe, filed May 3, 1995; and D. WEC, Gordon J. Booth, Robert O. Toombs and Frederick Ladue, filed May 5, 1995. On June 19, 1995, Plaintiffs filed a Motion to Extend Time to respond to the Vermont Participants' respective Motions for Entry of Final Judgment. The Court granted Plaintiffs' Motion and they were ordered to file their response by July 30, 1995. Plaintiffs did not file timely opposition. Accordingly, we proceed to consider the Vermont Participants' Motions. When there are multiple parties involved in a case, Fed.R.Civ.P. 54(b) grants the Court authority to direct the entry of final judgment as to fewer than all of the parties upon an express determination that there is no just reason for delay.[22] Although courts have the discretion to decide whether or not to grant a Rule 54(b) motion, the Second Circuit has made clear that "(t)he district court's discretion is to be exercised sparingly in light of the `historic federal policy against piecemeal appeals.'" Hogan v. Consolidated Rail Corp., 961 F.2d 1021, 1025 (2d Cir.1992) (citing Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1464-65, 64 L.Ed.2d 1 (1980)). The party seeking entry of final judgment must make "some showing" as to why they ought to overcome the general rule that no appeal should be heard until the entire case has been completed. Arlinghaus v. Ritenour, *793 543 F.2d 461, 464 (2d Cir.1976) ("required determination `that there is no just reason for delay' ought not to be made as a matter of rote ... [as] the determination involves `weighing the overall policy against piecemeal appeals against whatever exigencies the case at hand may present.... [and thus] 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel.'") (quoting Panichella v. Pennsylvania R.R. Co., 252 F.2d 452, 455 (3d Cir.1958)), aff'd 622 F.2d 629 (2d Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980). Thus, there must be a showing of "special circumstances indicating that adherence to the normal and federally preferred practice of postponing appeal until after a final judgment has been entered, disposing of all the claims of all the parties, will cause unusual hardship or work an injustice." Hogan, 961 F.2d at 1026. The Defendants have not presented any evidence of the unusual hardship or injustice that would justify entering final judgment now rather than at the completion of the entire litigation. We find that this case presents no special circumstances such that entry of final judgment at this juncture is either necessary or appropriate. Accordingly, the above-referenced Motions for Entry of Final Judgment are hereby DENIED. CONCLUSION In light of the foregoing, we hereby 1. ADOPT the Magistrate's Report and Recommendation IN PART. We further rule that the lawyer Defendants' judicial discretion argument is dispositive of the remaining claims against all lawyer Defendants except PGNG. PGNG remains potentially liable with respect to the 1979 opinion letters only. We remand this matter to the Magistrate for further consideration of arguments with respect to Plaintiffs' claim of negligent misrepresentation as well as PGNG's assertion of the judgmental immunity defense. Accordingly, we GRANT the following motions for summary judgment submitted by Defendants PWP, DRM/Piper and Nitka: No. 89-CV-94: Papers 168, 169, 177, and 219. No. 5:91-CV-270: Papers 118, 132, 142, 151, 166, 169, 177, 183, and 184. No. 5:91-CV-271: Papers 103, 115, 125, 138, 151, 154, 159, 164, and 165. With respect to the remaining claims pending against Defendant PGNG, we rule as follows: Plaintiffs claims for breach of warranty, Counts XI in case number 5:91-CV-270 and IX in case number 5:91-CV-271, are DISMISSED. We further REMAND this matter to the Magistrate for further consideration of the judgmental immunity argument raised by PGNG in the following Motions for Summary Judgment: No. 89-CV-94: 198 and 202; No. 5:91-CV-270: 122, 176 and 180; No. 5:91-CV-271: 162. The Magistrate shall also accept additional motions with respect to Plaintiffs' claims of negligent misrepresentation against Defendant PGNG on the basis of the 1979 opinion letters. 2. AFFIRM the Magistrate's Order of March 31, 1995. WEC's Motion to Amend (paper # 188, 89-CV-94) is DENIED; and 3. DENY the Motions for Entry of Final Judgment filed by Village of Morrisville, et al. (paper # 218, 91-CV-270); Village of Ludlow, et. al. (paper # 220, 91-CV-270); Village of Stowe, et al. (paper # 228, 91-CV-270); and WEC, et al. (paper # 265, consolidated docket). SO ORDERED. NOTES [1] Familiarity with the facts of these three cases is assumed. Only those facts relevant to the matters currently at issue are reiterated here. [2] MMWEC is a public corporation and political subdivision of the Commonwealth of Massachusetts. It is a joint action agency through which municipalities and other electric utilities may act to plan, construct, acquire and/or finance supplies of electric capacity and energy. [3] Although MMWEC also issued bonds in 1982 and 1984, legal opinions were not obtained prior to these bond issues. MMWEC contends that it relied upon the opinions issued by the law firm defendants in 1981 in issuing these bonds. [4] John Paterson represented the Villages of Ludlow, Lyndonville, Morrisville, Northfield, Stowe and Swanton and the Washington Electric Cooperative. He issued five opinion letters: two in September 1979, addressed to MMWEC's general counsel (Begley, Ferriter, Brady & Lavelle); and three in June 1981, addressed to MMWEC's general counsel and bond counsel (Wood & Dawson). Paterson is now deceased. [5] Downs Rachlin represented the Vermont Electric Cooperative, Inc. On June 18, 1981, the firm issued one opinion letter, addressed to MMWEC's general and bond counsel. [6] Ralph W. Howe, III is a former employee of PWP. He is individually named in this action in connection with PWP's issuance of an opinion letter in February 1995. Howe has individually moved for summary judgment, contending that he did not participate in PWP's preparation of the 1985 opinion letter. At a hearing before the Magistrate on November 22, 1994, counsel for the Plaintiffs admitted that Plaintiffs have no evidence that Mr. Howe participated in the preparation of the opinion letter and agreed that a judgment could be entered in Howe's favor. See Excerpts from Transcript of Nov. 22, 1994 Hearing on Def.'s Mot. for Summ. J. Before U.S. Magistrate Niedermeier at 16. Accordingly, we GRANT Mr. Howe's Motion for Summary Judgment and remove him as a Defendant from this action. [7] Paterson, Walke & Pratt, P.C. represented the Washington Electric Cooperative and the villages of Lyndonville, Morrisville and Northfield. On February 14, 1985, the firm issued an opinion letter addressed to MMWEC's general and bond counsel. [8] Martin Nitka represented the Village of Ludlow Electric Light Department. On February 14, 1985, he issued an opinion letter addressed to MMWEC's general and bond counsel. [9] 30 V.S.A. § 4002 provides, in pertinent part: Any cooperative or municipal electric utility shall have: . . . . . (2) authority to act in participation with other such utilities in arranging for the purchase of supplies of capacity and energy from other utilities, either within or without the state of Vermont, including purchases from private electric utilities, municipal electric utilities, cooperatives, associations of utilities, or public authorities. [10] The Vermont Supreme Court was concerned that the PSAs gave MMWEC "exclusive control over the magnitude of the [Vermont] participants' monthly payments and over the duration of these payments." MMWEC I, 151 Vt. at 83, 558 A.2d 215. [11] In their Consolidated Objections, MMWEC and the Massachusetts Participants assert that the Court has already decided the attorney-client relationship issue by denying the motion for summary judgment of Martin Nitka in our Order of September 13, 1993. According to Plaintiffs, the law of the case doctrine prevents the Court from considering this issue again. We reject this argument. The September 13, 1993, Order rejected the Magistrate's recommendation that Nitka's Motion for Summary Judgment should be granted because MMWEC's claim was barred by the six year statute of limitations. This Court determined that genuine issues of material fact existed as to when the statute of limitations period began to run. The Court never considered Nitka's argument that Plaintiffs had no standing to bring this action. [12] Because this action invokes the Court's diversity jurisdiction, we consult Vermont's choice of law rules to determine which state's substantive law applies to this action. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 871 (2d Cir.1994). In analyzing the Plaintiffs' claims, the Magistrate observed that he need not engage in a choice of law inquiry where the result would be the same no matter which law applied. For purposes of clarity, we now rule that Vermont law applies to the tort claims in this action. In tort actions, Vermont employs the lex loci delicti rule. Accordingly, we must apply the law of the jurisdiction where the tort occurred. Goldman v. Beaudry, 122 Vt. 299, 301, 170 A.2d 636 (1961). Under this rule, the situs of the tort is "the state where the last event necessary to make an actor liable for an alleged tort takes place." Marra v. Bushee, 317 F.Supp. 972, 973 (D.Vt.1970) (citing Restatement of Conflict of Laws § 377 (1934)), rev'd on other grounds, 447 F.2d 1282 (2d Cir.1971). The legal opinions at issue in the instant case were drafted and issued by lawyers practicing in the State of Vermont. Any negligent acts that took place in the preparation of these documents clearly took place in Vermont. Thus, only Vermont law applies. [13] Defendant PGNG asserts that Vlandren is inapplicable to the case at bar. In Vlandren, the attorney sent his Certificate of Title directly to the bank. In the instant case, however, the lawyer Defendants' opinions were not sent directly to either MMWEC or the Massachusetts Participants. Rather, the letters were addressed to MMWEC's general and bond counsel. Thus, according to PGNG, under the doctrine set forth in Vlandren, only MMWEC's counsel could rely on the opinions and could have legal rights under them. [14] Section 886B provides, in pertinent part: (1) If two persons are liable in tort to a third person for the same harm and one of them discharges the liability of both, he is entitled to indemnity from the other if the other would be unjustly enriched at his expense by the discharge of the liability. (2) Instances in which indemnity is granted under this principle include the following: . . . . . (c) The indemnitee was induced to act by a misrepresentation on the part of the indemnitor, upon which he justifiably relied. [15] Even assuming that the Vermont Supreme Court would consider the relationship between the parties sufficient to impose indemnity, we still believe that no such indemnity would be imposed here because the alleged harms committed by MMWEC and the lawyer Defendants are not the same. Although WEC has filed claims against both MMWEC and the lawyer Defendants, the claims against them are entirely separate and distinct. In the claims against MMWEC, WEC alleged that because the Vermont Supreme Court declared the PSAs to be void ab initio, WEC is entitled to recoup the payments it made to MMWEC under the contracts. WEC's crossclaims against the lawyer Defendants, however, allege claims of negligence, negligent misrepresentation, and contribution and indemnity. These harms are separate and distinct and cannot be considered the "same harm" for purposes of indemnity. Restatement (Second) of Torts § 886B(2)(C) (1977). [16] The judicial discretion clause offered in the Model Bond Opinion is as follows: It is to be understood that the rights of the holders of the Bonds and the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted to the extend constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. 15 Urb.Law. at 988. This language speaks to "rights" and "enforceability" only. The clause to which Plaintiffs refer us in Legal Opinions to Third Parties does not contain a judicial discretion reference. Rather, the authors observe that the phrase "[t]he agreement is a valid, enforceable and binding obligation of the Company ... cover[s] the non-availability of certain defenses of the Company to an action on the Agreement, e.g. lack of corporate power to contract, non-compliance with any statute of frauds and non-contravention of a statute or common law rule declaring an essential term in the Agreement void on its face." 32 Bus.Law at 564. Indeed, the opinion letters issued by the lawyer Defendants each contained a paragraph indicating that the agreements were valid, enforceable, and binding. These paragraphs were separate from the judicial discretion clause at issue here. Finally, in Legal Opinions in Corporate Transactions, the language which the authors observe is limited to enforceability of the agreement provides: Our opinion that the Agreement and the Notes are enforceable each in accordance with their respective terms is subject to the qualifications that ... the availability of the remedy of specific enforcement, of injunctive relief or of other equitable relief is subject to the discretion of the court before which any proceeding therefor may be brought. 12 J.Corp.L. at 686. Again, we note that this language speaks solely to enforceability. [17] PGNG asserts that because the judicial discretion clause was included in its 1981 opinion letters those letters serve to supersede the 1979 letters. We reject this contention. Although the 1979 letters were issued with respect to the initial negotiation of the PSAs, the 1981 letters concerned MMWEC's 1981 bond issue. Under these circumstances, we cannot say, as a matter of fact, that the 1981 letters issued by PGNG served to displace the 1979 letters. Accordingly, the 1979 letters issued by PGNG are not subject to the immunity created by the use of the judicial discretion clause. [18] Counts IV and VI in 89-94 (negligent misrepresentation); Counts X and XI in 91-270 (negligent misrepresentation and breach of warranty); and Counts VIII and IX in 91-271 (negligent misrepresentation and breach of warranty). [19] In making this distinction, the Winton court observed: An important distinction must be made between representations of legal opinions and representations of fact relating to the law as it exists.... The first involves the legal meaning and effect of a statute, court ruling, document, instrument or other source of law, while the latter involves statements that imply the existence of accurate and readily ascertainable facts that either concern the law or have legal significance, but which are not part of the law themselves.... These fact-representation[s] ... have as their common thread that the representor generally states or implies that the matter asserted is readily ascertainable, is not subject to specialized or expert interpretation, and does not depend on judgment or speculation about future events as fundamental to the accuracy of the assertion. 147 Vt. at 240, 515 A.2d 371. [20] No breach of warranty claim was made against PGNG in case number 89-CV-94. [21] MMWEC's claims against WEC were dismissed by Order of the Court dated September 13, 1993. [22] Rule 54(b) provides in pertinent part: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

537 U.S. 852 CRAWFORDv.HARRISON ET AL. No. 01-10609. Supreme Court of United States. October 7, 2002. 1 CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 2 C. A. D. C. Cir. Certiorari denied.

544 U.S. 1015 LONGBINEv.UNITED STATES No. 04-9349. Supreme Court of United States. May 2, 2005. 1 C. A. 5th Cir. Reported below: 115 Fed. Appx. 221. 2 Motion of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, 543 U.S. 220 (2005).

[Cite as State v. Johnson, 2018-Ohio-4347.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27809 : v. : Trial Court Case No. 2017-CRB-3550 : ERIC M. JOHNSON : (Criminal Appeal from : Municipal Court) Defendant-Appellant : : ........... OPINION Rendered on the 26th day of October, 2018. ........... GARRETT P. BAKER, Atty. Reg. No. 0084416, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 N. Main Street, Suite 200, Dayton, Ohio, 45415 Attorney for Defendant-Appellant .............  -2- HALL, J. {¶ 1} Eric M. Johnson appeals from his conviction and sentence following a no- contest plea to one count of menacing, a fourth-degree misdemeanor. {¶ 2} In his sole assignment of error, Johnson contends the trial court violated his Sixth Amendment right to compulsory process by prohibiting him from subpoenaing witnesses. {¶ 3} The record reflects that Johnson was charged with menacing following a June 4, 2017 dispute with a neighbor over a driveway. Johnson pled not guilty and requested a jury trial. Prior to trial, he subpoenaed several witnesses. The State responded with a motion to quash the subpoenas. It also filed a motion in limine to preclude testimony about one or more allegedly irrelevant prior incidents. After hearing arguments on the two motions, the trial court overruled the motion to quash, finding it “too restrictive.” (Tr. at 104). The trial court sustained the motion in limine, however, to the extent that it sought to preclude Johnson from introducing evidence of prior incidents in his case-in-chief. But the trial court noted that it could change its mind and make a different ruling at trial. (Id. at 103-104). Shortly after the trial court’s disposition of these motions, Johnson elected to plead no contest. The trial court found him guilty and sentenced him accordingly.1 1 Johnson’s sentence included a suspended ten-day jail term and six months of supervised probation followed by six months of unsupervised probation. Johnson did not seek a stay and now has completed his term of supervised probation. The record does not reflect whether he remains on unsupervised probation. In any event, we note that the trial court’s judgment ordered Johnson to pay court costs. The trial court’s online docket reflects that those costs remain unpaid. Therefore, his appeal is not moot regardless of whether he has completed the other aspects of his sentence. See State v. Ruley, 2d Dist. Miami No. 2017-CA-10, 2018-Ohio-3201, ¶ 10 (“Nevertheless, the trial court did impose court costs, and nothing in the record suggests that Ruley has paid those costs. Unpaid  -3- {¶ 4} On appeal, Johnson contends the trial court erred in prohibiting him from subpoenaing witnesses. But the record belies this claim. As set forth above, the record reflects that multiple witnesses were subpoenaed on Johnson’s behalf. The State filed a motion to quash the subpoenas, and the trial court overruled the motion. Having reviewed the record, we see no evidence that the trial court prohibited Johnson from subpoenaing any witnesses. {¶ 5} Despite the wording of his assignment of error, Johnson’s real argument appears to be that the trial court erred in sustaining the State’s motion in limine to preclude certain testimony from his witnesses. (See Appellant’s brief at 9-10). The trial court made clear, however, that its liminal ruling was tentative. It cautioned defense counsel not to introduce the challenged evidence in Johnson’s case-in-chief “unless we have discussed it and the court makes a ruling.” (Tr. at 104). {¶ 6} This court has recognized that “a no-contest plea generally does not preserve for appeal a trial court’s ruling on a motion in limine.” State v. Monticue, 2d Dist. Miami No. 06-CA-33, 2007-Ohio-4615, ¶ 16. Given the preliminary and anticipatory nature of a liminal ruling, the evidentiary issue must be raised again at trial to preserve it for appeal.2 Here there was no trial because Johnson pled no contest. Therefore, his challenge to the court costs alone suffice to prevent a judgment from being moot, even if an appellant has completed his jail sentence.”). 2 An exception to this rule exists when a motion in limine is the functional equivalent of a motion to suppress. This exception applies when the subject of the motion can be resolved with finality after an evidentiary hearing and without the need for a full trial to consider the evidence in the context of other evidence. See, e.g., State v. Reed, 2016- Ohio-7416, 72 N.E.2d 1196, ¶ 27 (2d Dist.). Here the State’s motion in limine was not the functional equivalent of a motion to suppress because the trial court did not hold an evidentiary hearing and, more importantly, the trial court needed to consider the subject of the motion in the context of other evidence at trial.  -4- trial court’s ruling on the State’s motion in limine was not preserved for appeal. {¶ 7} The issue is further complicated, however, by the fact that Johnson appears to have believed when he entered his no-contest plea that he could appeal the trial court’s ruling, and neither the trial court nor defense counsel disabused him of that notion. Following its ruling, the trial court took a brief recess. When the proceedings resumed, Johnson and his attorney informed the trial court that, in light of the ruling on the motion in limine, Johnson wanted to proffer the excluded testimony and plead no contest. (Tr. at 108-109). Defense counsel then told the trial court that Johnson “understands that this is the way to proceed for purposes of appeal.” (Id. at 117). The trial court also told Johnson “this is a way so that the case can be appealed, where the court of appeals will look at the facts but you aren’t admitting you’re guilty.” (Id. at 118). {¶ 8} Under similar circumstances, a defendant’s no-contest plea has been found not knowingly, intelligently, and voluntarily entered. In State v. Engle, 5th Dist. Fairfield No. 38-CA-OCT-92, 1994 WL 476390 (Aug. 11, 1994), the defendant argued that her no- contest plea was invalid because it had been based on a representation that she could appeal certain rulings, including a ruling on a motion in limine. Id. at *3. The Fifth District rejected her argument, finding no “promise” by the prosecutor that she could appeal certain issues and finding nothing in the record to support a conclusion that she had entered the plea solely for purposes of appealing those issues. Id. at *4. On further review, the Ohio Supreme Court reversed in State v. Engle, 74 Ohio St.3d 525, 660 N.E.2d 450 (1996). It noted that the defendant and her attorney believed she could appeal the adverse rulings after a no-contest plea and that “[t]he trial court listened without uttering a word of correction.” Id. at 527. The Ohio Supreme Court then concluded:  -5- * * * There can be no doubt that the defendant’s plea was predicated on a belief that she could appeal the trial court’s rulings that her counsel believed had stripped her of any meaningful defense. Therefore, her plea was not made knowingly or intelligently. Consequently, we remand this cause to the trial court with instructions that Mrs. Engle be given the opportunity to withdraw her plea and proceed to trial. * * * Id. at 528. {¶ 9} One distinguishing feature between Engle and the present case is that the defendant in Engle raised as an assignment of error the invalidity of her plea due to her misunderstanding of the effect of pleading no contest. Here, Johnson’s actual assignment of error only alleges a violation of his right to compulsory process due to a denial of his right to subpoena witnesses. Construing his appellate brief more broadly, it also challenges the trial court’s ruling on the motion in limine. The brief says nothing, however, about the invalidity of Johnson’s plea or about him misunderstanding the effect of a no- contest plea. In similar circumstances, however, this court on occasion still has found a no-contest plea to be invalid. In State v. Kendall, 2d Dist. Champaign No. 2008 CA 7, 2008-Ohio-5647, for example, the defendant argued on appeal that the trial court had erred in making a ruling on a motion in limine that permitted the State to introduce other- acts evidence at trial. On review, this court noted that the defendant had pled no contest after the trial court’s adverse liminal ruling and that the plea had been entered “with the trial court’s assurance that its ruling was appealable.” Id. at ¶ 7. This court concluded that the liminal ruling was not appealable in light of the no contest plea. Therefore, this court held that the trial court’s acceptance of the no-contest plea constituted plain error. Id. at  -6- ¶ 7. Importantly, however, the Kendall court also predicated its decision on the conclusion that the trial court’s liminal decision was wrong. Id. at ¶ 6. {¶ 10} Unlike Kendall, we decline to find plain error here despite the mistaken belief by Johnson and his attorney that a no-contest plea would preserve the ability to appeal the trial court’s liminal ruling. As a threshold matter, “[a]lthough we may notice plain error that was not raised below, any non-jurisdictional error still must be raised by a party on appeal before we properly may correct it.” State v. Lewis, 2017-Ohio-9311, 102 N.E.3d 1169, ¶ 17, fn. 7 (2d Dist.). Johnson has not asserted on appeal that the trial court committed plain error in allowing him to plead no contest without ensuring that he understood such a plea would waive his challenge to the ruling on the motion in limine. {¶ 11} Even setting aside Johnson’s failure to raise any plain-error argument, we note that “[a]n appellate court has the discretion to notice plain error under Crim.R. 52(B) ‘with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.’ ” State v. Zimpfer, 2d Dist. Montgomery No. 26062, 2014-Ohio- 4401, ¶ 29, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. We are not able to exercise that discretion here because the record demonstrates that the trial court’s ruling on the motion in limine was correct, and there is nothing in the record to suggest that the liminal ruling would have changed during the trial. Therefore, we see no plain error and no manifest miscarriage of justice in Johnson’s plea of no contest based on a mistaken belief that he could challenge the trial court’s ruling. {¶ 12} In connection with Johnson’s no-contest plea, the prosecutor provided a statement of facts. According to the prosecutor, on June 4, 2017, several of the victim’s  -7- family members were returning to his home, and they moved over from the victim’s portion of the driveway to a portion of the Johnson’s driveway so that the victim could pull in and park his car. (Tr. at 113). Johnson opened the front door of his house and yelled at the people to get off of his driveway. The people moved after the victim parked. When the victim exited his car, Johnson yelled and threatened the victim, saying “I’ll f**k you up and the police know it!” (Id.). The victim believed that Johnson would assault him. (Id.). As a result, a menacing charge was filed. (Id.). {¶ 13} As part of the no-contest plea, the trial court permitted Johnson to proffer the testimony that he would have presented if the State’s motion in limine had been denied. Defense counsel proffered that Johnson would have presented evidence concerning a confrontation that had occurred four days before the incident in question. Counsel proffered that the evidence would have shown that Johnson had been shot at or otherwise assaulted by the victim on that prior occasion. (Id. at 108-109, 115). On appeal, Johnson contends his excluded evidence would have supported an affirmative defense of “justification” under R.C. 2901.05. (See Appellant’s brief at 10). This argument fails for two reasons. {¶ 14} In the trial court, counsel did not argue or contend that the evidence the court preliminarily prohibited would support an affirmative defense of justification. Rather, counsel’s only contention at that time was that the evidence of what happened four days earlier would provide context to the threat made on the date of the offense. “We were looking to show the ongoing course of tension between the two neighbors and this incident.” (Tr. at 103). “The statement that Mr. Johnson, at least would have testified that he made, would have not made sense to the jury without the benefit of any testimony  -8- regarding the [events of May] thirty first.” (Id. at 109). Legal issues not brought to the attention of the trial court generally may not be raised for the first time on appeal. State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. {¶ 15} Even if the argument had been made that the liminal evidence could have been relevant to prove a defense of justification, the evidence manifestly would not have supported such an affirmative defense. Johnson’s appellate brief quotes R.C. 2901.05(D)(1)(b), which provides that an affirmative defense is “[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.” We are unconvinced, however, on the facts of this case, that the victim’s alleged assault on Johnson conceivably could have justified Johnson engaging in menacing by threatening to harm the victim. No rational trier of fact could have found that Johnson was entitled by law to threaten to “f**k up” the victim even if the victim four days earlier had assaulted Johnson. Therefore, the trial court did not err in precluding testimony from Johnson or his witnesses about the prior incident. Had the admissibility of the prior incident been properly preserved and raised on appeal, we would have determined the ruling was correct and the trial court did not err in that regard. {¶ 16} For the foregoing reasons, we are unable to exercise our discretion to notice plain error regarding the trial court’s failure to correct the mistaken belief by Johnson, his attorney or the court as to whether a no-contest plea preserved an appeal of the ruling on the motion in limine, because there was no error or plain error as to the admission of the evidence and the result would have been the same had an appeal proceeded. {¶ 17} Johnson’s assignment of error is overruled, and the trial court’s judgment is  -9- affirmed. ............. WELBAUM, P.J., concurs. DONOVAN, J. dissents: {¶ 18} On the authority of Kendall, 2d Dist. Champaign No. 2008 CA 7, 2008-Ohio- 5647, I would reverse. It is apparent that Johnson’s plea was entered under an erroneous assurance that his liminal motion could be appealed. The prosecuting attorney, defense attorney and judge did nothing to correct this false impression. Although the majority suggests defense counsel only made the proffer to provide “context,” in my view his argument was sufficient to suggest that the proffered evidence was relevant to Johnson’s state of mind when he reacted verbally in the manner that he did to the complaining witness (and his family members). Specifically, counsel argued that Johnson’s “statements * * * that [were] alleged on the fourth [of June] would be IMPACTED by what happened previously on the thirty first [of May].” (Emphasis added.) That is, Johnson, having reported to police that he was shot at by the complainant on May 31, 2017, may have perceived a threat by complainant and his family members due to their presence in his driveway on June 4, 2017. {¶ 19} Hence, I would reverse. Copies sent to: Garrett P. Baker Joyce M. Deitering Hon. Francis McGee, c/o Dayton Municipal Court -10- 

United States Court of Appeals For the Eighth Circuit ___________________________ No. 11-3055 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Mariano Valencia Mendoza lllllllllllllllllllllDefendant - Appellant ___________________________ No. 11-3062 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Jose Francisco Garza Tovar lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines ____________  Submitted: March 15, 2012 Filed: September 10, 2012 Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District Judge. ____________ COLLOTON, Circuit Judge. Mariano Valencia Mendoza and Jose Francisco Garza Tovar entered conditional guilty pleas to possession with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On appeal, they challenge the district court’s2 denial of their motions to suppress evidence. We affirm. I. On December 21, 2010, Officer Stephanie Swartz of the Des Moines Police Department was on routine patrol when she overheard a radio request from agents of the Drug Enforcement Administration. The agents wanted a marked unit of the police department to stop a black Volvo sedan that was under surveillance. Swartz saw the vehicle, pulled behind it, and made a traffic stop. In explaining the basis for the stop, Swartz testified: There was what appeared to be a paper tag up in the left-hand corner of the rear window, I was pretty confident that it wasn’t an Iowa tag, I couldn’t read the state of origin, and I had had two recent cases that I 1 The Honorable Susan O. Hickey, United States District Judge for the Western District of Arkansas, sitting by designation. 2 The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa. -2-  had dealt with within the past six months where people had either forged tags for themselves or bought fraudulent tags from other people to be displayed in the vehicle. Swartz was approximately fifteen to twenty feet behind the vehicle when she observed the tag and decided to stop the car. She was unfamiliar with temporary tags from States other than Iowa and Illinois, and she was unable to read the name of a State of origin on the tag. Swartz thought the tag looked improper and looked like something a person could make with a printer. She also noticed that the tag’s expiration date was written in large, handwritten block numbers. She thought this was suspicious, because block numbering could be used to alter an expiration date. Swartz approached the car and asked the driver, Tovar, for his driver’s license. Tovar said he did not have a license, and Swartz asked Tovar and his passenger, Mendoza, to step out of the vehicle. Swartz asked Tovar if there was anything in the car that she “needed to be concerned about,” to which Tovar replied, “no, go ahead and look.” While Swartz issued Tovar a citation for driving without a license, another officer searched the vehicle and found controlled substances. A grand jury charged Tovar and Mendoza with possession with intent to distribute 500 grams or more of methamphetamine. Both defendants moved to suppress the evidence obtained from the search of the vehicle. Noting that the vehicle displayed a valid temporary tag from another State, they argued that Swartz’s decision to stop the car was not supported by reasonable suspicion or probable cause. Because the stop was unlawful, they argued, Tovar’s consent to search the vehicle and his subsequent statements to law enforcement were the fruits of an illegal seizure. The district court, relying on our decision in United States v. Sanchez, 572 F.3d 475 (8th Cir. 2009), denied the motions to suppress. The court found that Swartz “credibly testified that she could not read the state of origin of the temporary tag and -3- that she genuinely believed based on her experience that the tag’s simple color scheme made it appear like something that could be forged.” The court deemed Sanchez indistinguishable and concluded that Swartz had reasonable suspicion to make the traffic stop. Tovar and Mendoza entered conditional guilty pleas, reserving the right to appeal the denial of their motions to suppress. On appeal, Tovar argues that the district court made clearly erroneous factual findings regarding Swartz’s credibility, and both defendants argue that Swartz’s seizure of the car violated the Fourth Amendment. II. The Fourth Amendment prohibits “unreasonable searches and seizures.” A traffic stop constitutes a seizure of the vehicle’s occupants. Brendlin v. California, 551 U.S. 249, 255-57 (2007). To be reasonable, the stop must be supported by at least “reasonable suspicion to believe that criminal activity may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted). We review the district court’s factual findings for clear error and its legal conclusions de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). A. We see no clear error in the district court’s factual findings. Tovar argues that Swartz’s testimony was inconsistent with her report, in which Swartz stated that she “could not read” the paper in the vehicle’s rear window. Tovar maintains that Swartz “modified her story” when she testified that she “couldn’t really read any part of the tag well.” He also argues that Swartz’s testimony regarding the tag’s coloring and block numbers is inconsistent with her report, which did not mention these facts. Swartz’s testimony is not internally inconsistent or facially implausible. While -4- documents or objective evidence may contradict a witness’s story and render her testimony incredible, Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985), there is no such contradiction here. Swartz’s testimony provided additional details regarding her observations, but elaboration is not a contradiction that compels a finding that the witness was incredible. Tovar also argues that the court clearly erred in finding that Swartz believed that the tag’s “simple color scheme” made it look like something that could be forged. This finding, however, was a reasonable inference from Swartz’s testimony. Swartz testified that Iowa’s temporary tags include a “red kind of swirly symbol,” and that the tag in this case did not feature the colors of an Iowa temporary tag. She testified that she saw “blue bars of some kind” on the tag, but she did not recognize the colors, and she observ ed that she “couldn’t verify that it was a legitimate tag and not something that someone had made on their printer.” In light of this testimony, we cannot say that the district court’s finding is clearly erroneous. Tovar next contends that Swartz was “less than forthcoming” about her experience with forged tags. He points to cross-examination in which Swartz acknowledged telling an investigator that she “often” encountered fraudulent temporary tags during traffic stops, even though the government produced reports of only two such incidents at the hearing. Swartz also testified, however, that she has stopped a number of cars with altered tags, but that not all of those incidents resulted in citations or arrests. The district court thus reasonably inferred that Swartz had recent experience with fraudulent tags, and that she “genuinely believed based on her experience” that the tag could have been forged. There is no clear error on this point. Finally, Tovar argues that Swartz’s testimony that she did not look at the tag while approaching the vehicle is “so implausible on its face” that the district court clearly erred in crediting any of Swartz’s testimony. Swartz explained that she did not look at the tag because her “attention [was] on the driver and any other occupants -5- of the vehicle for safety reasons.” She elaborated that she was “[t]rying to make sure that nobody has a weapon, nobody is fleeing the vehicle, nobody is making any furtive movements in the front seat or the back seat, ascertain how many passengers there are, et cetera.” Especially in view of the fact that Swartz knew the occupants were under investigation by the Drug Enforcement Administration, this testimony is not inherently implausible. B. The district court determined that this case is controlled by our decision in Sanchez. In that case, a Nebraska state trooper observed a minivan without a front or rear license plate, but with a piece of paper affixed where a rear license plate would have been displayed. Sanchez, 572 F.3d at 476. As the trooper pursued the minivan and approached it from the rear, he could read three lines of text on the paper. Id. at 476-77. At the bottom of the paper, in much smaller type, were the words “Arizona Temporary Registration Plate.” Id. The law enforcement officer, however, could not read these words from his vantage point, and he could not discern the name of any issuing State. Id. at 477. “Suspecting that the paper was not an official document, he decided to stop the minivan to investigate.” Id. The trooper eventually obtained consent to search the minivan and found controlled substances. Id. The defendants moved to suppress the evidence obtained from the search. Id. They argued that the piece of paper was a valid Arizona temporary plate, and because it was clearly visible from the outside of the vehicle, the officer should have recognized that it was an official document. Id. The district court denied the motions to suppress, and the defendant was convicted. On appeal, we noted that Nebraska law generally requires vehicles to display front and rear license plates, but makes an exception for recently purchased vehicles, which may display two temporary “In Transit” stickers. Id. at 478. Nebraska law also provides an exception for out-of-state vehicles, which must comply with the -6- requirements of the jurisdiction in which they are registered. Id. Even assuming that the vehicle in Sanchez properly displayed registration from another jurisdiction, we held that the traffic stop was lawful. Id. We thought it was “objectively reasonable for [the trooper] to expect that the name of the issuing jurisdiction would appear conspicuously on the face of an official document, and to investigate further if a name was not visible.” Id. at 479. “[B]ecause the printing on the paper affixed to the rear was too small to read in its entirety, and no issuing jurisdiction was identifiable, he reasonably suspected that the paper was not an official document that complied with the licensing requirements of another State.” Id. Iowa law generally requires vehicles to display front and rear license plates. Iowa Code § 321.37(1). Owners of recently purchased vehicles, however, may display a “registration applied for” card on the rear of the vehicle for forty-five days. Id. § 321.25. Iowa also makes exception for nonresidents’ vehicles, which need only display the registration required by the nonresident’s jurisdiction. Id. § 321.53. The determination of whether reasonable suspicion existed “is not to be made with the vision of hindsight, but instead by looking at what the officer reasonably knew at the time.” Sanchez, 572 F.3d at 478 (internal quotation omitted). At the time of the traffic stop, Swartz observed what appeared to be a paper tag in the vehicle’s rear window. She was confident that it was not an Iowa temporary tag. Despite observing it from a distance of fifteen to twenty feet, she was unable to identify an issuing State. Her suspicions also were aroused by the large, handwritten block numbers. In her experience, dealers write expiration dates with a single stroke, and block numbers could be used to alter a date written in this manner. Given the tag’s overall appearance, Swartz thought it looked like something a person could have created on a printer. Considered in light of Swartz’s experience with falsified or fraudulent tags, these observations provided her with a particularized and objective basis to suspect that the tag was not a valid registration document. We therefore -7- conclude that Swartz had reasonable suspicion to believe that the vehicle did not display valid proof of vehicle registration, as required by Iowa law. Mendoza and Tovar argue that this case is distinguishable from Sanchez because, unlike Swartz, the trooper in Sanchez attempted to read the tag as he approached the vehicle on foot, but he still did not see the name of any issuing State. See 572 F.3d at 477. We disagree. The issue in Sanchez was whether the trooper’s “decision to stop the minivan” was lawful. Id. at 478 (emphasis added). Although we noted the trooper’s post-stop effort to inspect the tag in Sanchez, Swartz’s failure to do so has no bearing on whether she had reasonable suspicion to make the traffic stop in the first place. Mendoza and Tovar do not argue that Swartz unreasonably prolonged or exceeded the scope of the stop by failing immediately to inspect the tag. Cf. United States v. Hollins, 685 F.3d 703, 706-07 (8th Cir. 2012). Mendoza and Tovar also emphasize our observation in Sanchez that it was “objectively reasonable for [the officer] to expect that the name of the issuing jurisdiction would appear conspicuously on the face of an official document, and to investigate further if a name was not visible.” 572 F.3d at 479. They argue that Swartz could not reasonably have the same expectation in this case, because even Iowa’s temporary tags do not “conspicuously” display the name of the issuing State. In essence, the appellants suggest that if it is generally impossible for officers to verify the validity of temporary tags without stopping a vehicle, then the presence of that ordinary fact cannot amount to reasonable suspicion. The record here, however, includes more than an assertion by Swartz that she could not verify the validity of a tag that appeared on its face to be legitimate. She gave particularized reasons why she suspected that this particular tag may have been fraudulently created on a printer rather than issued by an official authority. The showing of reasonable suspicion in this case does not depend on the sort of expectation mentioned in Sanchez. -8-  Mendoza suggests that the officer in Sanchez had greater grounds for suspicion because he saw only a “piece of paper” attached to the vehicle, while Swartz, according to Mendoza, “knew the document taped to the rear window was a temporary registration tag.” As the district court found, however, Swartz saw only “what appeared to be a paper tag” posted in the rear window. When asked whether she could see that the vehicle had “some type of temporary tag,” Swartz stated only that she “could see that it had a piece of paper.” The record does not establish that Swartz knew the document was a legitimate temporary registration tag. This case is therefore distinguishable from United States v. Wilson, 205 F.3d 720 (4th Cir. 2000) (en banc), where an officer attempted to justify his stop of a vehicle based simply on his inability to read the expiration date on a temporary tag due to darkness and small print. In Wilson, the officer “admitted that he never saw anything illegal about the tag or the operation of the car,” testified that “nothing appeared illegal about the temporary tag,” and acknowledged that he had “no suspicion at all” that the driver was operating an unregistered vehicle or otherwise violating the law. Id. at 723. “Simply put, he saw nothing wrong, and he suspected nothing,” so there was no reasonable suspicion. Id. at 724. The more analogous authority is United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006), where an officer lawfully stopped a vehicle not merely because he could not read a temporary tag, but because “he could not determine whether the document posted in the rear window was, in fact, a temporary tag.” Id. at 1047. * * * Because the traffic stop did not violate the Fourth Amendment, the evidence obtained from the search of the vehicle and Tovar’s subsequent statements to law enforcement were not the fruits of a constitutional violation. The judgments of the district court are affirmed. ______________________________ -9- 

946 F.2d 891 Duncanv.Lynn* NO. 91-3287 United States Court of Appeals,Fifth Circuit. SEP 30, 1991 1 Appeal From: E.D.La. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

73 F.Supp. 979 (1947) UNITED STATES v. HARTFORD-EMPIRE CO. Civ. A. No. 554. District Court, D. Delaware. October 9, 1947. *980 John F. Sonnett, Asst. Atty. Gen., Roy C. Hackley, Jr. and Alfred C. Aurich, Sp. Assts. to Atty. Gen., and John J. Morris, Jr., U. S. Atty., of Wilmington, Del., for plaintiff. Aaron Finger (of Richards, Layton & Finger), of Wilmington, Del., and Walter J. Blenko, Albert C. Hirsch and Morton Burden, Jr., all of Pittsburgh, Pa., for defendant. LEAHY, District Judge. The United States sues to cancel expired patent No. 1,655,391 and three subsisting patents Nos. 2,073,571, 2,073,572 and 2,073,573, on the ground of fraud in their procurement. The matter is here on defendant's two motions for summary judgment — one, that as to '391 the case is moot; and, two, that as to '571-3 defendant's right to hold and own such patents is beyond dispute because of res judicata and other defenses. For purposes of determining the motions, the allegations of fact in the complaint must be considered as true. Hence, at this point there are presented only questions of law for decision. The fraudulent misrepresentations practiced on the Patent Tribunals are set out in detail in the complaint but will not be quoted at length. The facts there alleged are detailed in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250. See also, Hartford-Empire Co. v. Shawkee Manufacturing Co., 3 Cir., 147 F.2d 532, and Hartford-Empire Co. v. Shawkee Manufacturing Co., 3 Cir., 163 F.2d 474; and for proceedings against the attorneys who precipitated and engaged in the fraudulent practices, see Hatch v. Ooms, D.C., 69 F.Supp. 788. 1. The point raised by motion for summary judgment directed at '391 is this: Does United States have a right to maintain an action to cancel a patent which was procured by fraud practiced on the Patent Tribunals when the patent's legal life has expired and the party charged with the fraud is unable to assert any future rights under the patent? The right of the United States to sue to cancel a patent procured by fraud may not be challenged;[1] but this admittedly is a case of first impression because the patent expired prior to the institution of suit by the government. Many if not all of defendant's citations of authority are patently irrelevant. That is why defendant places much reliance on Bourne v. Goodyear, 1869, 76 U.S. 811, 19 L.Ed. 786, to support its argument that where the patent has expired the question as to whether a suit can be maintained to cancel the patent has become moot. In the Bourne case, suit was in the name of the United States ex rel. Bourne against the executor of the defendant Goodyear and sought to have the Court vacate an extension of a patent on the charge it had been procured by fraud. The extension of the patent had expired the day before suit was filed. The Supreme Court sustained a demurrer to the bill. Plaintiff argues against the applicability of the Bourne case because there is nothing to show the United States there had permitted or consented to the institution of the litigation and consequently the case is no authority against plaintiff's legal position here. *981 Much of the internal evidence—besides the Court's opinion—certified by the National Archives, consisting of the Transcript of Record and certain correspondence between the then-Attorney General and counsel for plaintiff-Bourne, shows not only that the United States was not a party to the proceedings but that the government also specifically refused to become such or give its consent to the litigation. The rule of the Bourne case is manifestly not pertinent. The question for decision, then, is an open one. Its answer, I believe, is as ineluctable as death and taxes. A patent is a contract between an inventor and the government. The consideration which supports the contract is the inventor's disclosure of his invention and the government's grant of an exclusive monopoly for a stated period of time. Fried Krupp Aktien Gesellschaft v. Midvale Steel Co., 3 Cir., 191 F. 588, 594. But like any other contract it may be set aside for fraud. For purposes of defendant's motion for summary judgment the fact of fraud must be admitted. Such fraud, I think, must vitiate plaintiff-defendant's entire transactions; cancellation of the patent ab initio must follow. Those who have paid defendant money for royalties or damages as infringers should be in a position to demand the status quo; otherwise defendant will be unjustly enriched. While provision has been made by certain settlement agreements between defendant and former licensees and infringers, this fact can have no legal relevance. If the government's case be said to be a vindication of a right in vacuo, under such circumstances, nevertheless I am of the view that a court must hold illegitimate even a paper semblance of a patent right where its grant is caused by the utilization of techniques of fraud. At bottom, the right of government here is based on its obligation to protect the public from the apparent monopoly of the patent which was fraudulently obtained, whether for current or historical reasons. The count with respect to '391 must be maintained and defendant's motion for summary judgment as to this phase of the case is denied. 2. Defendant's motion for partial summary judgment aimed at the second count of the complaint is directed at patents Nos. 2,073,571, 2,073,572 and 2,073,573. This count details the same fraudulent practices. It recites that proceedings were commenced before the Examiners and ended after the Commissioner authorized the issuance of the patents in compliance with a mandate of the Circuit Court of Appeals for the District of Columbia in § 4915, R.S., 35 U.S.C.A. § 63, actions. See Hartford-Empire Co. v. Coe, 66 App.D.C. 344, 87 F.2d 741. Supporting its position, defendant argues its right to '571-3 was decreed by a court of competent jurisdiction against the Commissioner of Patents (authorized by the government to act for it in such matters); as a result of the § 4915 proceedings defendant's right to hold these patents has become res judicata; and, in all events, United States, as any other plaintiff in a lawsuit, may not collaterally attack the judgments of the Circuit Court of Appeals of the District of Columbia and its District Court. Defendant's argument in support of the res judicata point ignores one fundamental fact. To support a plea of res judicata the issues determined must, or could, have been principally the same as those in the action in which the plea is raised. Clearly none of the courts in the District of Columbia were asked to pass or passed on the question of fraud practiced by defendant on the various Patent Tribunals. In truth, it may be argued the courts in the District of Columbia were themselves defrauded parties for the issues of fraud were not discovered until long after the judgments of those courts congealed in the § 4915 proceedings—as the after-investigation facts show. Fraud is the issue in the case at bar; that issue with respect to the government vis-a-vis defendant has never been adjudicated before. The case at bar, then, is in no sense an attack, collaterally or otherwise, upon the judgments rendered in the District of Columbia § 4915 proceedings. I am concerned here with a direct action to cancel *982 patents for fraud in the procurement. Moreover, a § 4915 proceeding is administrative in nature. The statute does not purport to grant rights; in fact, there is no adjudication of rights whatever on the part of an applicant for a patent as the resultant decree in such proceeding merely authorizes the Commissioner of Patents to issue a patent. It is strange doctrine that defendant should be permitted to own and hold the patents in suit, despite the averred fraud committed by defendant on the postulate that since the fraud was undetected and not known in the administrative proceedings such fraud may not be examined now, although judicially commented on by the Supreme Court of the United States, the Circuit Court for this District and other federal courts. The crux of plaintiff's case is the § 4915 decrees were procured by fraud and deceit and the government attacks here not the judgments of those courts authorizing the issuance of the patents but defendant in personam for fraud in obtaining the patents in suit. An independent action to set aside a judgment or decree for fraud may be brought in any court of competent jurisdiction. Sayers v. Burkhardt, 4 Cir., 85 F. 246, certiorari denied 172 U.S. 649, 19 S.Ct. 886, 43 L.Ed. 1183. A court of equity in granting relief against fraud does not act as a court of review. The suit at bar—even if it be said to involve rights arising under § 4915 proceedings in another jurisdiction—is an original and independent action for equitable relief between the parties. In such cases a court of equity has jurisdiction wherever it may "lay hold of the parties."[2] While the Chancellor's foot may vary in size, his arm is ever reaching to restrain a party from enjoying a capital gain from his fruadulent conduct. This has been the dominant theme of legislation for the past fifty years; it has been judicial pronouncement since Logan v. Patrick, 5 Cranch 288, 3 L.Ed. 103. As stated in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 259, 64 S.Ct. 997, 1008, 88 L.Ed. 1250: "Equity also, on original bills, exercises a like jurisdiction to prevent unconscionable retention or enforcement of a judgment at law procured by fraud, or mistake unmixed with negligence attributable to the losing party, or rendered because he was precluded from making a defense which he had. Such a bill may be filed in the federal court which rendered the judgment or in a federal court other than the court, federal or state, which rendered it." Defendant's defenses of estoppel to attack collaterally the § 4915 decrees, its plea of res judicata and all of the variations based on these defenses, are without merit. Accordingly, its motion for summary judgment with respect to '571-3 will be denied. An order may be submitted with respect to both of defendant's motions. NOTES [1] United States v. American Bell Tel. Co., 128 U.S. 315, 9 S.Ct. 90, 32 L.Ed. 450: American Bell Telephone Co. v. United States, 159 U.S. 548, 16 S.Ct. 69, 40 L.Ed. 255; United States v. Cold Metal Process Co., D.C., 57 F.Supp. 317. [2] Arrowsmith v. Gleason, 129 U.S. 86, 9 S.Ct. 237, 242, 32 L.Ed. 630; Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Simon v. Southern Railway Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492.

C- L,L D F t3Uf t OF APPEALS DIVISION 11 42013 rAPR 23 fMF 12: (' I S IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONS DIVISION II STATE OF WASHINGTON, No.42227 1 II - - Respondent, consolidated with No. 42237 9 II - - V. and No.. 42247 6 II) - - KIMLIS TEK, UNPUBLISHED OPINION Appellant. WIGGINS J. . T. P — Defendant Kimlis Tek appealed his conviction following a jury trial for offenses arising out of two assaults on his wife and numerous in- person, mail, and telephone communications prior to trial. Tek was sentenced for assault in the second degree, assault in the first degree, two counts of witness tampering, and 36 counts of violation of a no- contact order, all with domestic violence enhancements. We hold that the evidence was sufficient to prove the requisite intent for assault in the first degree; that the judge did not impermissibly comment on the evidence; that the witnesses did not offer impermissible lay opinion testimony on an ultimate issue; that Tek engaged in two separate courses of witness tampering; that the legislature intended to make each act in contravention of a no- contact order a separate violation under the statute; and that Tek did not receive ineffective assistance of counsel. Justice Charlie Wiggins is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21( ). c No. 42227 1 II Cons. With - - ( No.42237 9 II and No. 42247 6 II) - - - - FACTS Incident One, May 28, 2010 On May 28, 2010, Tek and his wife Andrea had an argument and decided that they did not want to be together any longer. When Andrea began to move Tek's clothes out of the closet and onto the sofa, Tek became upset and retrieved a gun from the bedroom. Mentioning suicide, Tek left the house, and Andrea called the police. Unsure what Tek was planning to do with the gun, Andrea locked the door. Tek then waved the gun at the window where Andrea was standing. In a 911 call, Andrea told operators that Tek "just pointed the gun at [her]."Report of Proceedings (RP)at 515. Olympia police 3 arrived and took Tek into custody. When Tek was taken into custody, the magazine of his gun was fully loaded, but there was no round in the chamber. On May 30, Andrea visited Tek in the Thurston County Jail. There, Tek asked Andrea to tell the court that he had not threatened her and to tell the police that "it wasn't a domestic dispute." 3 RP at 472. Tek asked Andrea to go to court, tell the court that he had no prior offenses, and "convince the judge"that they had never gotten into a fight and that he had never threatened her. 3 RP at 473. Upon his release from jail, Tek moved back in with Andrea, because she still wanted to be with him. Incident Two, December 24, 2010 On December 24, 2010, Andrea attempted to repair the family computer, but rendered it inoperable instead. Tek became upset because he had been using the computer to talk online with his family in Cambodia. Andrea then had some drinks.and spoke with her ex- boyfriend on 2 Ms.Tek is hereinafter referred to by her first name to distinguish her from the defendant Tek. No disrespect is intended. K No. 42227 1 II Cons. With - - ( No. 42237 9 II and No. 42247 6 II) - - - - the .phone. Following her conversation, Tek confronted Andrea, believing that she intended to get back together with her ex- boyfriend: Andrea then asked Tek to leave. Tek said he would show"her, then retrieved a knife from the closet, removed it from a sheath, and cut Andrea on the arm. 3 RP at 533 34. - The knife was later found to be a military style knife, measuring seven and one half - - inches in length. The cut was approximately six inches long, passing down her forearm from elbow to wrist. Dr. Lisa Skinner, an emergency room physician, found that the cut had gone through an entire muscle and a portion of another muscle. When Olympia police arrived, Tek had wrapped Andrea's arm in a towel and appeared to be applying pressure to the wound. He admitted to slashing Andrea on the arm and asked officers to shoot him in the head. During medical observation, Tek stated that: I can't believe I just snapped. I didn't mean to hurt her. I• never meant to hurt my wife. Sometimes that bitch makes me crazy. I tried to stop the bleeding with the blue towel. I don't deserve to live for this shit. 1 RP at 159. By the time paramedics transported Andrea to the hospital, she was beginning to pass out. Andrea was treated in the emergency room for a total of eight hours and received 2 sets of stitches and_ 8__ hand therapy. At the time of trial, she by- staples,_ five to followed- six weeks of 2 testified that she was "completely healed," albeit with some lingering numbness and a permanent scar. 3 RP at 540. Andrea returned to work as a dental technician within several days of the incident. On December 27, 2010,the Thurston County Superior Court entered a pretrial no- contact order pursuant to chapter 10. 9 RCW Between then and the beginning of trial, Tek placed at 9 least 40 calls from the Thurston County Jail to Andrea. Some of the calls were phone continuations of the same conversation, because the jail's telephone system automatically 3 No. 42227 1 II Cons. With - - ( No. 42237 9 II and No.42247 6 II) - - - - disconnected all calls after 1'5 minutes. During these calls, Tek and Andrea discussed a variety of subjects, including an incident where Tek's cellmate had his case dismissed because his wife did not attend his trial. Tek asked Andrea to take a vacation and "disappear"during March. 2 RP at 326. He told Andrea that as his wife, she did not have to testify against him. He told Andrea she should have kept [her] mouth shut...."at 335. He then asked Andrea specifically not to 2 RP show up if he went to trial. Tek also sent Andrea more than five letters. In these letters, he asked her to " ignore all those lying ass prosecutors," to give the prosecutors anything to work with, and not to testify not against him. 2 RP at 357. Tek's trial began on May 16, 2011. The Trial In connection with the May 28, 2010 incident, Tek was charged with assault in the second degree with firearm and domestic violence enhancements, in contravention of RCW 021( 9A. 6.9. 9. ), 99. In connection with the December 24, c 825, 3 ),4A. 533( 4A.and 10. 9 3 9 020. 2010 incident, Tek was booked on assault in the second degree, but the charge was upgraded to assault in the first degree later that night. Prosecutors charged Tek with assault in the first degree with deadly__ weapon and domestic violence enhancements, in contravention of RCW a),94A. 9. ). 1)( 9. 011( 9A. 6. 3 10. 9.825, 020, 9 533( 4A. Prosecutors also charged Tek with two 4 9 5 counts of witness tampering with a domestic violence enhancement, in contravention of RCW a) 9 120( 9A. 2. 10. 9.one charge arose out of the May 30, 2010 visit, and the other 1 and 020; 7 )( from the phone calls and letters between February 9, 2011, and March 28, 2011. Finally, prosecutors charged Tek with 36 counts of violation of a pretrial no- contact order with a domestic violence enhancement, in contravention of RCW 26. 0. 10. 9. 1 040( 5 ), 9 ), 110( 2 040( 10. 9. 10. 9. 4 and 020. 9 ), 9 0 No.42227 1 II Cons. With - - ( No.42237 9 II and No. 42247 6 II) - - - - At trial, the State introduced a number of photographs, including a photograph of Dr. Skinner examining Andrea's wound (State's exh. 25) and a photograph of the wound itself State's exh. 27).State's exhibit 25 did not indicate the injury. Before allowing the photographs to be published to the jury, the trial judge admonished the jury that State's exhibit 27 was somewhat graphic"and that the jurors " may want to look at it quickly or not at all." RP at 57. 1 Counsel did not object. Olympia police officer Cory Johnson testified that he initially booked Tek for assault in the second degree before changing the charge to assault in the first degree. Similarly, detective Russell Gies testified that he "upgraded"the charge based on "the severity'of the injury that [he] had become aware of during the investigation."2 RP at 247 48. Counsel did not object to either - testimony. The State introduced Tek's letters and the recordings of his phone conversations through detective Gies. Detective Gies testified that Tek was "attempting to both have her change her testimony and or not show up for a trial and be out of town or not be available during trial."2 / RP at 322. Gies also testified that it was " vident"that Tek's letters were an attempt to influence e Andrea's testimony, or deter her from_ trial. attending_ Counsel did not object to either statement. 2RPat356. The State introduced recordings of Andrea's custodial visits to Tek through detective Brenda Anderson. Anderson testified that she "believe[d] there was evidence" before counsel objected, and the trial judge sustained the objection. 3 RP at 474. The prosecutor then rephrased her question to ask what Anderson was looking for when she listened to the recordings; Anderson responded "[ e] without objection. Id. The prosecutor also asked Anderson vidence," 5 No.42227 1 II Cons. With - - ( No. 42237 9 II and No. 42247 6 II) - - - - why she booked Tek for witness tampering, to which she testified that there was "evidence to suggest that he was trying to change [Andrea's] story."3 RP at 481. When the prosecutor asked if there was anything in the recordings "that led [Anderson] to believe that those charges were warranted," counsel objected, but was overruled by the court. Id. Anderson then began, To me, " it indicated that there was — ", before counsel objected, which was sustained by the trial judge. there was clear evidence to [ her] there Anderson then testified that " was tampering "; counsel objected, and the trial judge sustained the objection and struck the testimony. 3 RP at 482. The jury convicted Tek of all charges, answering yes to each special verdict question whether Tek and Andrea were members of the same family or household). On the assault in the second degree conviction, Tek was sentenced to 15 to 20 months plus an enhancement of 36 months, based on an offender score of 4 and a seriousness level of IV. On the witness tampering charges, Tek was sentenced to 9 to 12 months, based on an offender score of 3 and a seriousness level of III. On the assault in the first degree, Tek was sentenced to 129 to 171 months with an enhancement of 24 months, based on an offender score of 4 and a seriousness level of XII. On the 36 charges of violation of a no-contact order, Tek was sentenced to 0 365 days. Tek timely - appealed his convictions. -___ _ -_ -_ -- - - -_ -_ -- ANALYSIS I. Sufficient Evidence To determine whether sufficient evidence exists to sustain a conviction, we determine whether, viewing all evidence in the light most favorable to the prosecution, any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. State u Engel, 166 Wn. d 572, 576, 210 P. d 1007 (2009)citing State a Wentz, 149 Wn. d 342, 347, 68 2 3 ( 2 3 Violation of a no- contact order is a gross misdemeanor and is not considered under the Sentencing Reform Act of 1981, chapter 9. RCW. 94A L No. 42227 1 II Cons. With - - ( No. 42237 9 II and No. 42247 6 II) - - - - P. d 282 (2003)). 3 Although Tek asserts that insufficient evidence violates his due process rights and should be reviewed de novo, sufficiency of the evidence is nonetheless reviewed by the deferential rational- offact standard. In re Pers. Restraint ofMartinez, 171 Wn. d 354, 364, trier - - 2 256 P. d 277 (2011).To do so, the court will first examine the contested elements of the crime, 3 followed by an examination of the evidence used to sustain that crime taken in a light most favorable to the prosecution. Assault in the first degree requires that the defendant assault another person with a deadly weapon or with any force or means likely to produce great bodily harm and that the defendant intends to inflict great bodily harm. RCW 9A. 6. Tek contests whether sufficient evidence 011. 3 exists to suggest that he "intend[ed]to inflict great bodily harm:"See id. Intent may be inferred from the defendant's conduct. See State a Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980). 2 2 For example, in an assault case, evidence of intent includes the manner and act of inflicting the wound, the nature of the prior relationship, and any previous threats. See State a Mitchell, 65 Wn. d 373, 374, 397 P. d 417 ( 1964). 2 2 Similarly, applying a predecessor statute of RCW 11, 9A. 6. Division One of the Court of Appeals held that testimony of a prior altercation, 3 testimony of the defendant shooting through an open window without provocation, and physical evidence that the shot would have hit the victim's head if he had not ducked constituted sufficient evidence to find intent to kill. State a Woo Won Choi, 55 Wn.App. 895, 906, 781 P. d 2 505 (1989), superseded on other grounds as recognized in State a Anderson, 72 Wn. App. 453, 458 59,864 P. d 1001 (1994). - 2 In the present case, evidence demonstrates Tek's intent in four ways. First, there was 4 Since the events of Woo Won Choi, 55 Wn. App. 895, the legislature has changed the intent requirement for assault in the first degree from intent to kill to intent to cause great bodily harm. LAWS of 1986, ch. 257, §9. 7 No. 42227-141 (Cons. With No. 422379 II and No.42247 6 II) - - - - evidence of a prior altercation where Tek pointed a gun at Andrea. Second, there was no evidence to suggest that Andrea did anything to provoke Tek into attacking. Third, intent is demonstrated by Tek's affirmative conduct when ( a) he said he would "show" Andrea, suggesting an impending violent act and (b)because Tek had to walk to the closet, retrieve the knife from beneath some clothes, walk back to Andrea, and unsheathe the knife before he could. attack Andrea, suggesting that his actions were not done on impulse. 3 RP at 533 34. And - fourth,testimony from Officer Jordan suggested that Andrea's injury was a defensive wound. Taking these facts in a light most favorable to the prosecution, a rational finder of fact would be justified in finding beyond a reasonable doubt that Tek intended to cause Andrea great bodily harm. II. Judicial Comment Washington Constitution article IV, section 16, forbids the trial judge from conveying to the jury any personal opinion regarding the credibility, weight, or sufficiency of evidence. A judge's opinion may be conveyed directly or by implication, based on the particular facts and circumstances of the case. State v Jacobsen, 78 Wn. d 491, 495, 477 P. d 1 ( 1970). Any 2 2 remark by the court that has the potential effect of suggesting that the jury need not consider an element of an offense could qualify as a judicial comment on the evidence. State v Hartzell, 156 Wn.App. 918, 936 37,237 P. d 928 (2010).Here, the judge did not improperly comment on the - 3 evidence, and any statement did not prejudice the defendant. The judge's statements were not improper because they did. not go to the credibility, weight, sufficiency, or materiality of a piece of evidence. Gruesome photographs, like other evidence, are admissible if their probative value outweighs their prejudicial effect. State V. Hoffman, 116 Wn.2d 51, 88, 804 P. d 577 (1991); 2 State v Harris, 106 Wn.2d 784, 791, 725 P. d 2 975 (1986).The trial judge's statement to the jury that photographs of the victim's injury were N. No.42227 1 II Cons. With - - ( No. 42237 9 II and No.42247 6 II) - - = - somewhat graphic"and that the jurors " ay want to look at it quickly or not at all"did not rise m to the level of an impermissible comment. This did not indicate that the photo was more or less important or probative, rather only that it was potentially disturbing to observe. Whether the injury was disturbing when looking at photos was not an issue at trial. It is tenuous to suggest that from the judge's statement the jury could.infer that Tek acted with intent to cause great bodily harm. It is more likely that the judge like most peoplewas cautious of others' — — sensitivity to blood and exposed tissue. Furthermore, the judge's statements did not prejudice the defendant. When the court determines that the trial judge commented on the evidence, then prejudice is presumed. Levy, 156 Wn. d at 723. However, that presumption is defeated if overwhelming untainted evidence" 2 " supports the conviction. State a Lane, 125 Wn. d 825, 840, 889 P. d .929 (1995). Here, the 2 2 untainted evidence supporting a finding of intent to cause great bodily harm is enough to preclude the possibility that the trial judge's statement influenced the jury. Andrea testified about the treatment and therapy that she needed after the attack, the permanent scarring she suffered, and commented that the "whole top portion [of her arm] was just kind of open...." at 538. 3 RP Emergency_ ersonnel corroborated her testimony: Firefighter and emergency medical technician p EMT) Brandon Sivonen, Dr. Skinner, and Tiffany Grauman, an emergency room nurse, all testified to the nature of the wound. Without ever seeing State's exhibit 27, the jury could have determined that Andrea's injury was too severe to have been inflicted without intent to cause great bodily harm. Even if the judge improperly commented on the State's exhibit 27, Tek was not prejudiced. III. Opinion Testimony According to ER 701, a nonexpert witness may only testify to opinions that are rationally based on that witness's factual perceptions. Although Tek admits that counsel failed to object to 9 No. 42227 1 II Cons. With - - ( No.42237 9 II and No.42247 6 II) - - - - the statements at trial, he asserts a right to raise them for the first time on appeal if he can demonstrate that these questions are manifest" constitutional of " magnitude. RAP 2. ( a)( 3). 5 RAP 2. ( a " narrow" exception that requires a showing of "actual prejudice" or a)( is 3) 5 ac'ractical p and identifiable consequences. State v Kirkman, 159 Wn. d 918, 934 35, 155 P. d 2 - 3 125 (2007) quoting State a WWJ Corp.,138 Wn. d 595, 603, 980 P. d 1257 (1999) internal ( 2 2 ( quotation marks omitted)). that reason, we require that the challenged statement be "explicit For or almost explicit"on an ultimate issue of fact. Id. at 936. A. Opinion Testimony on Assault in the First Degree Detective Gies testified that Tek's original charge of assault in the second degree was upgraded to assault in the first degree based on the severity of the injury, which the detective became aware of during the investigation. He did so in rebuttal to defense counsel's questioning about the arresting officer's choice of booking charge. It was not improper opinion testimony for detective Gies to explain why he charged Tek with the crime being tried. See State v. Sutherby, 138 Wn.App. 609, 617, 158 P. d 91 (2007), d in part and reversed in part, 165 Wn. d 870, 3 aff' 2 204 P. d 916 (2009) ( " some instances, a witness who testifies to his belief that the defendant 3 In is guilty.is merely_ _ stating the obvious, such as when a police officer testifies that he arrested the defendant because he had probable cause to believe he committed the offense. "). Detective Gies's testimony demonstrated that he had probable cause sufficient to book Tek for assault in the first degree. This is a fact necessarily implied by the fact that Tek is being tried for that crime. As such, Detective Gies's testimony told the jury nothing they did not already know from 5 Tek argues, relying on King,that an explicit or nearly explicit opinion on an ultimate issue mandates reversal. State v. King, 167 Wn. d 324,219 P. d 642 (2009).This is not the holding 2 3 of King,which held that such an opinion " an"constitute manifest error. Id. at 329 30. That is, c - just because the challenged testimony is explicit does not relieve the defendant of the burden to prove prejudice. 10 No.42227 1 II Cons. With - - ( No.42237 9 II and No. 42247 6 II) - - - - their mere presence in the courtroom. Detective Gies did not improperly testify and his statements do not show prejudice or explicitly raise an issue of fact. B. Opinion Testimony on Witness Tampering Detective Gies also testified that it was "evident" that Tek called Andrea to have her change her testimony or discourage her from attending trial and that the letters contained an attempt to influence Andrea's testimony or discourage her from showing up. 2 RP at 322, 356. Detective Anderson then went on to explain to the court that in recordings of Tek's custodial visits, she looked for "evidence to suggest tampering with the witness" and that "there was evidence to suggest that [Tek] was trying to change her story."3 RP at 474, 481. However, her testimony that "here was clear evidence to [her] there was tampering"was struck upon objection t by counsel. 3 RP at 482. Opinion testimony does not invade the province of the jury if the jurors are in a position to independently assess the foundational evidence backing that opinion. City of Seattle v Heatley, 70 Wn. App. 573, 581, 854 P. d 658 (1993). For 2 example, in Heatley, an officer's testimony that "[ he]determined that Mr. Heatley was obviously intoxicated" was not improper because it was "` directly and logically "' supported by his observations that the defendant's eyes were bloodshot and watery, his face was flushed, his balance was unsteady, he had a strong odor of alcohol, and he swayed significantly during the administration of field sobriety tests. Id. at 576 79 ( uoting State v Allen, 50 Wn.App. 412, 417 n. ,749 P. d 702 (1988)). - q 1 2 As in Heatley, the detectives' statements are directly and logically supported by their observations as well as by Tek's recorded statements presented to the jury. The jurors heard the same recordings and read the same letters that Gies and Anderson relied on and were in a position to independently assess the foundational evidence backing the detectives' opinions. In letters, Tek asked Andrea to "ignore all those lying ass prosecutors,"and wrote "[ lease don't p] 11 No.42227 1 II Cons. With - - ( No. 42237 9 II and No.42247 6 II) - - - - testify against me like the DA wants you to." RP at 35. , 359. 2 7 In phone calls, Tek asked Andrea to "[ ust disappear" and not to show up in March. 2 RP at 326. He told her that she j] didn't have to testify against him. He said she "should have kept [her] mouth shut"and wished she "would just stop saying anything, man."2 RP at 335, 339. He asked her not to work with that other person, the devil, you know who, ... trying to screw me over."2 RP at 337. He told her not to show up at his trial, reminding her, n] face, no "[ o case." 2 RP at 352. During a custodial visit, he asked her to say that "the whole thing [referring to Tek brandishing the gun during the May 28 incident] was being depressed" and that he had not threatened her. 3 RP at 472. He asked her to tell the police there had been no domestic dispute and to "convince the judge" that the couple never got in a fight. 3 RP at 472 73. Tek's recorded communications - speak for themselves; in several instances, he explicitly told Andrea not to come to trial or explicitly coached her on what to testify. The detectives said nothing that the jury could not have deduced for itself upon hearing Tek's own words. Therefore, the testimony was not improper. IV. Double Jeopardy Tek alleges that being charged with 2 counts of witness tampering and 36 counts of a no- contact order violation, impinged on his right to be free from double jeopardy. WASH. CONST. art. I, § UNITED STATES CONST. amends. 5, 14. A double jeopardy analysis necessarily 9; depends on unit of what "` prosecution "' the legislature intended as the punishable act under the statute. State v Westling, 145 Wn. d 607, 610, 40 P. d 669 (2002)quoting In re Pers. Restraint 2 3 ( of Davis, 142 Wn.2d 165, 12 P. d 603 (2000)). 3 First, witness tampering. at the time of Tek's conduct was controlled by State v Hall, which treats a unit of prosecution more broadly than the statute's current definition. State v Hall, 168 Wn. d 726, 230 R. d 1048 (2010)the court held 2 ( that Hall committed one crime of witness tampering);see RCW 9A. 2.9A. 2.a " nit 110, 7 120 (u 7 of prosecution" for witness tampering is "each instance" of tampering). Second, an individual 12 No.42227 1 II Cons.With - - ( No. 42237 9 II and No. 42247 6 II) - - - - violation of a no- contact order, statutorily and under case law, constitutes as a single "unit of prosecution." See RCW 26. 0.State a Brown, 159 Wn. App. 1, 10, 248 P. d 518 (2010) 110; 5 3 the trial court held that multiple violations of a no- contact order resulted in five violations because they were separate contacts occurring on separate days). A. Witness Tampering In Hall, the defendant was jailed pending trial for a first degree burglary and second degree assault conviction. 168 Wn. d at 729. In jail, he attempted to call his girlfriend over 2 1, times, and attempted 200 to persuade her not to testify or to testify falsely. Id. Hall was charged with four counts of witness tampering, based on calls placed on March 22, March 30, and April 4. Id. He was convicted of three counts and appealed to the Supreme Court, which held that the unit of prosecution was an entire "course of conduct."Id. at 731. In other words, the statute was meant to criminalize the attempt to "induce a witness,"and the number of specific acts undertaken to further that criminal goal was irrelevant. Id. However, Hall by its own terms did not reach those situations where " additional attempts to induce are interrupted by a substantial period of time, employ new and different methods of communications, involve intermediaries, or other facts that may demonstrate a different course of conduct. Id. at 737 38. This is just such a case. Nearly a year passed between the custodial visit that gave - rise to the first tampering charge and the "course of conduct"of letters and phone calls that gave rise to the second tampering charge. 1 RP at 26. Furthermore, Tek committed a new crime.the ( first degree assault) between the first and the second tampering. Tek had ample time and reason to form a new criminal intent for the second witness tampering. For that reason, two counts of witness tampering were proper. 13  No.42227 1 II Cons. With - - ( No. 42237 9 II and No. 42247 6 II) - - - - B. Violation ofNo- Contact Order Unlike witness tampering, the statute governing no- contact orders is not governed by Hall. The court in Hall stated that the result might be different if the statute specified "an attempt" or " any attempt." 168 Wn. d at.33. This is exactly the case here, where the statute 2 7 criminalizes "a violation" of contact a no- order. RCW 26. 0. Here, the 110. 5 State elected to charge 36 counts of violation of a no- contact order. Tek argues that he should have been charged with only 12, because many of the calls were merely continuations of the same conversation after being automatically cut off by the jail phone system. Division One of the Court of Appeals has held that the unit of prosecution for violation of a no- contact order, RCW 26. 0.is " violation," 110, a 5 meaning one. State a Brown, 159 Wn.App. 1, 10, 248 P. d 518 (2010). Division One correctly rioted, the Supreme Court held in State v 3 As Ose, 156 Wn. d 140, 147, 124 P. d 635 (2005), the use of the word "a" criminal statutes 2 3 that in usually indicates authorization of punishment for each individual instance of criminal conduct. RCW 26. 0.10 criminalizes " violation"of a no- 5 1 a contact order, meaning an act in contravention of that order. An offense is consummated when the defendant does something to contact the subject of the or4er,_ when a conversation is actually initiated_ not State v. Allen, 150 Wn. App. 300, 313 14, 207 P. d 483 (2009) holding that RCW 26. 0.was violated twice - 3 ( 110 5 when the defendant sent two e mails to the subject of a no- - contact order, even if she read both e- mails at the same time). In other words, the victim's state of mind is irrelevant; the statute is 6 State v. Brown also conducts a separate, further analysis of whether evidence of multiple offenses constitutes a " ontinuous course of conduct"for the purposes of addressing a jury c unanimity requirement. Brown, 159 Wn.App. at 13 15 ( olding that the defendant's actions - h constituted a continuous course of conduct and thus the trial court did not err in failing to require a jury unanimity instruction when the prosecution charged five violations of a no- contact order and there was evidence of,at a minimum, 37 acts).Tek does not argue that his actions constitute a continuous course of conduct,but only challenges them under a unit of prosecution analysis. 14 No. 42227 1 II Cons. With - - ( No. 42237 9 II and No. 42247 6 II) - - - - keyed purely to an action undertaken by the defendant. Where Tek and Andrea understood one conversation to stop and another to begin is no more relevant than when the victim in Allen read the e- mails. A faithful application of Allen requires us to hold that a lengthy message broken up into several messages by the carrier constitutes separate violations of RCW 26. 0. Tek had to 110. 5 make the affirmative act of picking up the phone and dialing anew each time he was dropped by the jail carrier. In each of the 36 instances in which he was charged with violating the no- contact order, he made an affirmative act to get in contact with Andrea —precisely the conduct targeted by RCW 26. 0. The 36 counts of violation of a no- 110. 5 contact order did not violate double jeopardy protections. V. Ineffective Assistance of Counsel We employ a two part test for determining whether a defendant has received ineffective - assistance of counsel. Strickland a Washington, 466 U. . 668, 689, 104 S. Ct. 2052, 80 L. Ed. S 2d 674 (1984); State a McFarland, 127 Wn. d 322, 334 35,899 P. d 1251 (1995). 2 - 2 First, counsel's performance must have been deficient, meaning that, after examining the entire record below, counsel's competency must have fallen below an objective standard of reasonableness based on all the circumstances. State a White, 81 Wn. d 223,225, 500 P. d 1242 2 2 1972). We presume counsel was effective, and require the defendant to show there was no legitimate strategic or tactical reason for the challenged conduct. McFarland, 127 Wn. d at 336. 2 7 In addition, as misdemeanors, the counts of violation of a no- contact order were not counted into Tek's offender score under the Sentencing Reform Act. Whether he was charged with 36 counts, 12 counts, or 0 counts of violation of a no- contact order would have made no difference to his sentence. 15 No. 42227 1 II Cons. With - - ( No. 42237 9 II and No. 42247 6 II) - - - - Second, counsel's deficient performance must have prejudiced the defendant. Strickland, 466 U. .at 687. S Tek's counsel was not deficient in not objecting to the putative opinion testimony of detectives Grier and Anderson because there are legitimate tactical reasons not to object too frequently, such as the risk of antagonizing the jury or drawing too much attention to the content of the letters, recordings, and calls themselves. Viewing the record as a whole, counsel was alert and objected where appropriate, such as his timely objection to Detective Anderson's testimony that "there was clear evidence to [her] there was tampering," counsel's successful exclusion and in voir dire) of Officer Jordan's testimony that Andrea's wound probably resulted from a purposeful attack aimed at the neck area. There is no indication that counsel was anything less than diligent and competent in managing Tek's trial as a whole. Even if counsel was deficient in not excluding the putative opinion testimony of Grier and Anderson, this testimony was not outcome -determinative. As discussed supra, because Tek's recorded communications spoke for themselves, whether their testimony was admitted or not would have made no difference in the outcome of the case. Tek did not demonstrate prejudice and is not entitled to relief based on ineffective assistance of counsel. CONCLUSION We affirm Tek's conviction. Sufficient evidence exists to affirm Tek's conviction of assault in the first degree; the judge's statement . on the evidence, does not constitute an impermissible comment on the evidence; the nonexpert's statements are not impermissible opinion; Tek's convictions of several counts of witness tampering and violations of a no- contact order do not constitute double jeopardy; and Tek did not receive ineffective assistance of 16 No. 42227- 11- 1 Cons. With No. 42237 9 II and No. 42247 6 II) - - - - counsel. Affirmed. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 040, 2.6.it is so ordered. 0 rN WIGGIN , J. . T. P We concur: I JJ HANSON,A. . J J. C J 1 4 JP r BRIDGEWAT R,J. . T. P 17 

288 U.S. 406 (1933) BURNET, COMMISSIONER OF INTERNAL REVENUE, v. S. & L. BUILDING CORP. No. 475. Supreme Court of United States. Argued February 10, 1933. Decided March 13, 1933. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. *407 Mr. Whitney North Seymour, with whom Solicitor General Thacher, Assistant Attorney General Youngquist, and Messrs. Sewall Key and John MacC. Hudson were on the brief, for petitioner. Mr. Leo H. Hoffman, with whom Mr. George W. Perper was on the brief, for respondent. *408 MR. JUSTICE McREYNOLDS delivered the opinion of the Court. The respondent, Building Corporation, sought redetermination of deficiency income taxes for 1924 and 1925. The Board of Tax Appeals sustained the Commissioner's final action of June 17, 1930; the court below reversed its judgment. The point now in controversy has relation to the distribution for taxation of income derived from sales on the installment plan of two pieces of real estate on 82nd and 83rd Streets, New York City. Each was covered by one or more mortgages which the purchaser assumed. *409 The Revenue Act 1926, c. 27, 44 Stat. 9, 23, 39, 41, § 230, lays a tax upon the net income of corporations. Section 232 provides — "In the case of a corporation subject to the tax imposed by section 230 the term `net income' means the gross income as defined in section 233 less the deductions allowed by sections 234 and 206, and the net income shall be computed on the same basis as is provided in subdivisions (b) and (d) of section 212 or in section 226." "Sec. 212 (b) The net income shall be computed . . . in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but . . . if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. . . . "(d) Under regulations prescribed by the Commissioner with the approval of the Secretary, a person who regularly sells or otherwise disposes of personal property on the installment plan may return as income therefrom in any taxable year that proportion of the installment payments actually received in that year which the total profit realized or to be realized when the payment is completed, bears to the total contract price. In the case (1) of a casual sale or other casual disposition of personal property for a price exceeding $1,000, or (2) of a sale or other disposition of real property, if in either case the initial payments do not exceed one-fourth of the purchase price, the income may, under regulations prescribed by the Commissioner with the approval of the Secretary, be returned on the basis and in the manner above prescribed in this subdivision. As used in this subdivision the term `initial payments' means the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable period in which the sale or other disposition is made." *410 "Sec. 1208. The provisions of subdivision (d) of section 212 shall be retroactively applied in computing income under the provisions of . . . the Revenue Act of 1924, . . ." Treasury Regulations 69, Article 44, promulgated August 28, 1926 — as amended in 1929: — "Art. 44. Sale of real property involving deferred payments. — Under section 212 (d) deferred-payment sales of real property fall into two classes when considered with respect to the terms of sale, as follows: "(1) Sales of property on the installment plan, that is, sales in which the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable year in which the sale is made do not exceed one-fourth of the purchase price. "(2) Deferred-payment sales not on the installment plan, that is, sales in which the payments received in cash or property other than evidences of indebtedness of the purchaser during the taxable year in which the sale is made exceed one-fourth of the purchase price. "Sales falling within class (1) and class (2) alike include (a) agreements of purchase and sale which contemplate that a conveyance is not to be made at the outset, but only after all or a substantial portion of the purchase price has been paid, and (b) sales where there is an immediate transfer of title, the vendor being protected by a mortgage or other lien as to deferred payments. "In the sale of mortgaged property the amount of the mortgage, whether the property is merely taken subject to the mortgage or whether the mortgage is assumed by the purchaser, shall be included as a part of the `purchase price,' but the amount of the mortgage, to the extent it does not exceed the basis to the vendor of the property sold, shall not be considered as a part of the `initial payments' or of the `total contract price,' as those terms are used in section 212 (d), in articles 42 and *411 45, and in this article. Commissions and other selling expenses paid or incurred by the vendor are not to be deducted or taken into account in determining the amount of the `initial payments,' the `total contract price,' or the `purchase price.' "Art. 45. Sale of real property on installment plan. — In transactions included in class (1) in article 44, the vendor may return as income from such transactions in any taxable year that proportion of the installment payments actually received in that year which the total profit realized or to be realized when the property is paid for bears to the total contract price." In 1924 respondent sold the 82nd Street property, then under mortgage which it had executed to secure a loan of $1,100,000, payable in semi-annual installments of $22,000 until 1933, when the balance would become due. The purchaser assumed the mortgage; paid $300,000 in cash; agreed to pay $700,000, and secured this by a purchase-money mortgage. Upon the latter mortgage $30,000 was paid in 1924 and $36,250 in 1925. In 1924 and 1925, respectively, the purchaser paid upon the assumed mortgage $22,000 and $24,000. The Commissioner estimated the depreciated cost of the property at $1,541,323.48. Subtracting this from the total sale price, $2,100,000, he ascertained realized profit — $558,676.52. He ruled that for 1924 the taxable sum was the same proportion of the amount actually received during the year ($330,000) as the entire profit ($558,676.52) was of the total ($1,000,000) payable directly to the taxpayer — 55% plus. He excluded the assumed mortgage from the total used for determining the applicable percentage, and held "total contract price" was what the purchaser agreed to pay directly to the vendor — the whole amount which the taxpayer expected to receive in money. Payments received by respondent during 1925 were likewise assessed. *412 In 1925 respondent sold the 83rd Street property, then subject to two mortgages which it had executed to secure loans of $1,100,000 and $500,000 respectively, payable in installments — six and three months — until 1933 and 1934, when the balance would become due. The purchaser assumed both mortgages; paid $300,000 in cash; and agreed to pay $265,000, and secured this by a purchase-money mortgage. On the latter obligation $2,000 was paid in 1925. During 1925 the purchaser paid on the assumed second mortgage $22,500. The Commissioner fixed the depreciated cost of the property at $1,522,035. Subtracting this from the total sale price, $2,165,000, he found the realized profit — $642,967. He ruled that the difference ($77,967) between the base, or depreciated cost ($1,522,033) and the total of the assumed mortgages ($1,600,000) should be treated as if received in money by the taxpayer during 1925; also, that the sum subject to taxation in 1925 was the same proportion of what the taxpayer received, actually and constructively, during the year ($302,000 plus $77,967) as the realized profit ($642,967) was of the total amount ($565,000) which the purchaser agreed to pay directly to the taxpayer — 100% plus. He excluded the amount of the assumed mortgages from the totals used to determine the applicable percentage, and payments on them were not regarded as received by the vendor. He also treated as if cash received by the vendor in 1925, the difference between the depreciated cost and the total of the assumed mortgages. "Total contract price" was held to be the total amount payable directly to the vendor. The respondent maintains that the assumed mortgages should be regarded as part of the contract price, and payments upon them by the purchaser should be treated as money received by the vendor. In this way, it is said, *413 the tax would be spread over the entire life of the assumed mortgage. And it further insists that the excess of the assumed mortgages over the depreciated value of the 83rd Street property should not be regarded as if money actually received by the vendor during 1925. Respondent's books were kept upon the accrual basis; but all agree that in the circumstances the Revenue Act of 1926 permitted assessments upon the installment basis. The Commissioner undertook to act according to his prescribed regulations. Prior to the Act of 1926, the Revenue Acts definitely recognized only two bases for tax returns — cash and accrual. Where sales were upon the installment plan, application of either of these bases led to hardship; payment of the total tax on ascertained profit was often required in a single year. By regulations the Commissioner offered some alleviation; the vendor was allowed to distribute the profit through the years during which purchase-money was actually received. The general principle underlying these regulations was to make division of partial payments and apply part as return of capital and part to profit. In 1926 the Board of Tax Appeals disapproved of the earlier regulations and pointed out that the statutes permitted returns only upon the cash or accrual basis. Thereupon, Congress enacted § 212 (d), above quoted. The end in view was to permit the Commissioner to make assessments according to the general principle theretofore followed under regulations deemed appropriate to the varying situations. The new plan was optional; taxpayers were allowed to elect whether to make returns under the regulations upon the new basis or upon one of the old bases. The Conference Report to the House, on Revenue Act of 1926, p. 32, H.R., Vol. I, 69th Cong., 1st Sess., 1925-1926, declares concerning § 212 (d): "This amendment *414 writes into the bill the basic principles of the installment method authorized by prior regulations." See Report Senate Committee on Finance, No. 52, 69th Congress. Installment sales of real estate encumbered by liens give rise to many complications which Congress could not readily foresee. Accordingly, it entrusted to the Commissioner wide discretion in respect of details. And considering the practical requirements of the taxing system, we think the regulations now challenged constitute a fair attempt to effectuate the legislative intent. They are within the broad discretion granted to the Commissioner and violate no definite provision of the statute. The amounts which respondent realized as profits are not in question. These were subject to taxation either upon the accrual basis or, at the taxpayer's option, on the installment basis. Generally, the Commissioner's regulations permitted the tax payments to be spread over the period during which the taxpayer would receive funds, and divided these partly into return of capital and partly into profits actually collected. The method suggested by the respondent would inevitably lead to many practical difficulties; might postpone collection far beyond the time when the vendor would receive any direct payments; and probably would render impossible determination from the taxpayer's books of what he should account for. The Commissioner's treatment of the excess of the mortgages on the 83rd Street property over the base cost followed the general purpose to place reasonable limitation upon the spread of the tax. It was appropriate in the unusual circumstances presented — certainly not prohibited. It was a practical way to accomplish the end. Some possible departure from the method prescribed for ordinary circumstances is not enough to destroy what he deemed necessary to meet unusual conditions. The excess of $37,967 under the sale agreement would never actually come into the vendor's hands, but it represented *415 part of the admitted profits and was subject to taxation. No positive provision in the statute required that it be spread over subsequent years, and we think there was nothing illegal or oppressive in treating this as if an actual payment. The taxpayer has been treated more leniently than if required to report upon the accrual basis. The Regulations were not contrary to any positive provisions of the statute and, as said by the Board of Tax Appeals, were "both equitably and legally sound." Since 1926, the Board has consistently upheld the Commissioner's regulations as to profits on installment sales. Frank J. Bosshardt, 4 B.T.A. 1262; Dalriada Realty Co., Inc., 5 B.T.A. 905; Pacheco Creek Orchard Co., 12 B.T.A. 1358; Katherine H. Watson, 20 B.T.A. 270; Fifty-three West Seventy-second Street, Inc., 23 B.T.A. 164; Metropolitan Properties Corp., 24 B.T.A. 220. And the Revenue Acts of 1928 and 1932 substantially reenacted the pertinent provision of the Act of 1926. The Commissioner and Board of Tax Appeals have practical knowledge of the intricate details incident to tax problems, and their determination in circumstances like those under consideration here should be given effect when not clearly contrary to the will of Congress. Reversed.

209 B.R. 419 (1997) CASH AMERICA PAWN, L.P. D/B/A Cash America Pawn of Marshall # 1, v. David MURPH, et al. Civil Action No. 6:96 CV 766. United States District Court, E.D. Texas, Tyler Division. May 29, 1997. John Frederick Bufe, Potter, Minton, Roberts, Davis & Jones, Tyler, TX, for plaintiff. Rodney Stuart Scott, Longview, TX, for defendant. MEMORANDUM AND ORDER ON APPEAL HANNAH, District Judge. This case is before the Court on appeal from a Judgment on Turnover Action entered by the Bankruptcy Court, Eastern Division of Texas, Tyler Division, on July 17, 1996, in an adversary proceeding in a Chapter 13 Bankruptcy, Case Number 95-60749 (6:96 cv 766 on appeal). Appellant is Cash American Pawn, L.P. d/b/a/ Cash American Pawn of Marshall # 1 ("Cash America") and there is a cross appeal of the debtors, David and Phyllis Murph ("Debtors"). *420 I. BACKGROUND The parties have stipulated to the following facts: David and Phyllis Murph filed a petition for relief under Chapter 13 of the Bankruptcy Code on June 19, 1995 ("Petition Date"). Cash America loaned the Debtors money, and the Debtors provided security as follows: on ticket # 124158, a ladies diamond ring and wedding band; (the amount advanced was $150.00), on ticket # 124263, a man's gold ring; (the amount advanced was $300.00), on ticket # 124263, a VCR, an Uniden base scanner, and a Nintendo with 5 games; (the amount advanced was $160.00). All of these loans had a maturity date of thirty days from the date of the original pawn with a sixty day grace period after that. The items pawned were the collateral. The Debtors did not redeem any of the collateral before the expiration of the applicable maturity dates or the applicable state law grace periods. Neither did the Debtors redeem any of the collateral within sixty days of the Petition Date and did not redeem the collateral as late as January 16, 1996. On June 19, 1995, David and Phyllis Murph filed a petition for relief under Chapter 13 of the Bankruptcy Code. On September 28, 1995, the Debtors filed an Amended Schedule C — "Property Claimed as Exempt" in which they listed the collateral as exempt. They valued the collateral at a total worth of $925.00. No one objected to exemption of the collateral. Cash America filed three proofs of claim: Proof of Claim 13 for $180.00 relating to pawn ticket # 124688; Proof of Claim 14 for $216.00, relating to pawn ticket # 124158; and Proof of Claim 15 for $390.50, relating to pawn ticket # 124263. The loans are not cross-collateralized. The collateral remains in Cash America's possession. Cash America asserts that the United States Bankruptcy Court erred as a matter of law when it ruled as follows: 1. The pawned property was property of the Debtors' estate. 2. A debtor's contractual right to redeem pawned property from a Texas pawn shop can be modified in a Chapter 13 proceeding where the debtor fails to timely redeem the pawned property within sixty (60) days after the filing of a Chapter 13 petition. 3. The automatic stay provided for in 11 U.S.C. § 362(a) of the Bankruptcy Code, is applicable to "pawn transactions" as defined in the Texas Civil Statutes, Article 5069-51.02(h). On cross appeal, the Debtors assert that the bankruptcy court erred when it denied actual damages to the Debtors as a matter of law. II. STANDARD OF REVIEW On appeal, a bankruptcy court's findings of fact are not to be set aside "unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses." Fed. R.Bank.P. 8013; In re Matter of Webb (Webb v. Reserve Life Ins. Co.), 954 F.2d 1102 (5th Cir.1992). Questions of law are subject to de novo review. In re T.B. Westex Foods, Inc. (T.B. Westex Foods, Inc. v. FDIC), 950 F.2d 1187, 1190 (5th Cir.1992). III. ANALYSIS ISSUE ONE: Did the bankruptcy court err as a matter of law in ruling that the pawned property was property of the Debtors' bankruptcy estate? It is undisputed that Debtors had failed to redeem the pawned property within the initial thirty day redemption period and that the additional statutory sixty day redemption period was still in effect on the Petition Date. Neither did the Debtors, or the trustee, redeem the property at any time during the sixty day period, which expired during the pendency of the bankruptcy action. Under this set of facts, the Court must determine whether the pawned goods were part of the bankruptcy estate. Only property in which debtor has a legal or equitable interest can become "property of the estate." 11 U.S.C. § 541(a)(1). Appellant, Cash America, argues that when the goods were "pawned," the Debtors gave their property in exchange for a contractual right to redeem the property by *421 paying a fixed amount within a specified time. It asserts that it is this contractual right, rather than the property itself, that became property of the estate, and that since Debtors never exercised that right, the title to the property passed to the pawnbroker at the end of the statutory sixty day redemption period, regardless of the filing of the bankruptcy petition. Debtors argue that since Cash America, in its pleadings and stipulation, has asserted the status as a secured claimant, it is estopped from arguing that the pawned property was not part of the bankruptcy estate. It is not disputed that the three transactions of Debtors with Cash America are governed by the Texas Pawnshop Act. Tex.Rev. Civ. Stat. art. 5069-51.16(a)(7) (Vernon Supp. 1996). It is also agreed that the initial maturity date, which occurred one month after each loan was made, had expired and that the sixty day grace period was in effect on the Petition Date. The effect of the grace period is disputed. The parties disagree as to the effect of the Texas Pawnshop Act's following language: "[p]ledged goods not redeemed within sixty days following the originally fixed maturity date may thereafter, at the option of the pawnbroker, be forfeited and become property of the pawnbroker." Tex.Rev.Civ. Stat. art. 5069-51.13. The bankruptcy court cited a regulation promulgated by the Consumer Credit Commissioner who was given authority by the Texas Legislature to "make regulations necessary for the enforcement of this [Texas Pawnbroker] Act and consistent with all its provisions." Tex.Rev.Civ. Stat. art. 5069-51.09(b) (Vernon 1987). The Consumer Credit Commissioner promulgated regulations dealing with the specific actions that must be taken by the pawnbroker when he exercises his option to take pledged goods as his property. He must make a notation of the action and the date of the action on the fourth part of the pawn ticket or in the electronic records of the loan. The regulation goes on to state that if the notation has not been made, the loan is considered open even if the grace period has expired. Tex. Admin. Code Ann. § 85.21(E). The bankruptcy court found that this regulation definitively establishes the time of ownership transfer. It further held that since the grace period for each transaction expired after the Petition Date[1], Cash America, having received notice of the bankruptcy filing, was foreclosed from taking the final action to gain ownership of the property because such action would be considered action to enforce a lien. 11 U.S.C. § 362(a)(5). The bankruptcy court distinguished the holdings in Dunlap v. Cash America Pawn, 158 B.R. 724 (M.D.Tenn.1993) and In re Jackson, 133 B.R. 541 (Bankr.W.D.Okla.1991). It applied the reasoning from United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) as well as the regulations issued by the Consumer Credit Commissioner, in reaching its ruling that the Debtors had shown by clear and convincing evidence that the collateral was part of the bankruptcy estate. The Court agrees. Under the agreed facts, it is clear that Debtors still had a legal or equitable interest in the pawned property because the statutory redemption period had not expired on the Petition Date. Property in which the Debtors had a legal or equitable interest on the Petition Date become part of the estate. 11 U.S.C. § 541(a)(1). ISSUE TWO: Did the bankruptcy court err, as a matter of law, in holding that a debtor's contractual right to redeem pawned property from a Texas pawn shop can be modified in a Chapter 13 proceeding where the debtor fails to timely redeem the pawned property within sixty (60) days after the filing of a Chapter 13 petition? Appellant further argues that a Debtor's contractual right to redeem pawned property from a Texas pawn shop can not be modified in a Chapter 13 proceeding. Appellant cites In re Dunlap, 158 B.R. 724 (M.D.Tenn.1993) and In re Jackson, 133 B.R. 541 (Bankr. W.D.Okla.) to support this proposition. Cash America was likewise appellant in both cases. The Court notes that in Dunlap the statutory *422 redemption periods for the various pawn transactions had expired prior to the filing of the bankruptcy petition. Tennessee law required the pawnbroker to mail a notice to the debtor that he had ten days within which to redeem his property, or it was forfeited. The pawnbroker fulfilled that statutory requirement. This was all done prior to the Petition Date. The court held the property was not in the bankruptcy estate because Debtors no longer had any legal or equitable interest in the pawned property under Tennessee law. In In re Jackson, 133 B.R. 541 (Bankr. W.D.Okla.), the collateral of two pawn transactions were still subject to redemption on the Petition Date, as in the instant case. The collateral was held to be part of the bankruptcy estate. Cash America did not dispute this fact. The issue in Jackson was whether the plan submitted by Debtor sufficiently protected Cash America's rights as a creditor. The Court finds that to answer the question of whether the bankruptcy court erred, as a matter of law, in holding that a debtor's contractual right to redeem pawned property from a Texas pawn shop can be modified in a Chapter 13 proceeding it must consider the next issue raised by Appellants, that is, the propriety of the application of automatic stay provision. ISSUE THREE: Did the bankruptcy court err in applying the automatic stay provided for in 11 U.S.C. § 362(a) of the Bankruptcy Code to these "pawn transactions" as defined in Texas Civil Statutes, Article 5069-51.02(h)? Appellant argues that the bankruptcy court erred when it found that Cash America was stayed by § 362(a) from taking the final act to gain ownership of the pawned property, namely, making the notation on the fourth section of the pawn record as required by the Texas Administrative Code.[2] Appellant asserts that in applying the stay provisions of § 362(a) the bankruptcy court indefinitely extended the statutory redemption period provided to the Debtors under the Texas Pawnshop Act. Appellants argue that there is no persuasive authority for this position and that § 108(b) governs this situation.[3] Courts have divided as to whether a statutory redemption period is stayed by § 362(a). It has been held that if the automatic stay of § 362 were found to prevail over § 108(b), the effect would be to enlarge property rights granted and circumscribed by state law, thus rendering the pertinent time allotments of § 108 unnecessary. Johnson v. First Nat'l Bank, 719 F.2d 270 (8th Cir. 1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Counties Contracting & Constr. Co. v. Constitution Life Ins. Co., 855 F.2d 1054 (3d Cir.1988). In addition, specific statutory references, such as those specifically referring to redemptions in § 108, are held to control over those which are general, such as the general provisions of § 362(a). In re Farmer, 81 B.R. 857, 861 (Bankr.E.D.Pa.1988). Accordingly, a number of courts have found that § 362(a) does not toll the running of the time period for redemption and that the only available extension of time for such periods is the 60 days provided for in § 108(b). Counties Contracting, 855 F.2d at 1059; In re Whispering Bay Campground, 850 F.2d 443, 446 (8th Cir. 1988); In re Carver, 828 F.2d 463, 464 (8th Cir.1987); In re Glenn, 760 F.2d 1428, 1440 (6th Cir.) cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); In re Tynan, 773 F.2d 177 (7th Cir.1985); In Johnson v. First Nat. Bank of Montevideo, Minn., 719 F.2d 270 (8th Cir.1983); In re Martinson, 731 F.2d 543 (8th Cir.1984); In re Tabor, 65 B.R. *423 42 (N.D.Ohio 1986); In re Lally, 51 B.R. 204 (N.D.Iowa 1985); Bank of Commonwealth v. Bevan, 13 B.R. 989 (E.D.Mich.1981), In re Trust Nos. 101B, 102, 77 B.R. 973 (Bankr. S.D.Fla.1987); In re Liddle, 75 B.R. 41 (Bankr.D.Mont.1987); In re Brown, 73 B.R. 306 (Bankr.D.N.J.1987); First National Bank of Vermont v. L.H. & A. Realty Co., 57 B.R. 265 (Bankr.D.Vt.1986); In re Roberson, 53 B.R. 37 (Bankr.M.D.Fla.1985); In re Hand, 52 B.R. 65 (Bankr.M.D.Fla.1985); In re Kangas, 46 B.R. 102 (Bankr.D.Minn.1985); In re Sarasota Land Co., 36 B.R. 563 (Bankr. M.D.Fla.1983); In re Markee, 31 B.R. 429 (Bankr.D.Idaho 1983); In re Owens, 27 B.R. 946 (Bankr.E.D.Mich.1983). A second line of cases, the minority position, suggests that the all encompassing nature of § 362(a) overrides the specific extension of time granted in § 108(b), thus preventing the parties from taking any action with respect to estate property. These cases suggest that the property will remain property of the estate even after the expiration of the sixty day add-on redemption period. See In re Jenkins, 19 B.R. 105 (D.Col.1982), In re Sapphire Investments, 19 B.R. 492 (Bankr.D.Ariz.1982); In re Shea Realty Inc., 21 B.R. 790 (Bankr.D.Vt. 1982); In re Dohm, 14 B.R. 701 (Bankr. N.D.Ill.1981); In re Johnson, 8 B.R. 371 (Bankr.D.Minn.1981). The parties have not supplied the Court with any Fifth Circuit authority as to whether the specific provisions of § 108(b) prevail over the general stay provision of § 362(a) and the Court could find none. We adopt the majority position that § 362 of the Bankruptcy Code, the automatic stay provision, does not toll the running of the redemption period. Thus, when, as here, the bankruptcy is filed before the expiration of the applicable state redemption period, § 108(b) extends the redemption period for 60 days from the commencement of the bankruptcy proceedings. A further extension of the redemption period would constitute an impermissible creation of a property right. It is well settled that absent Congressional action to the contrary[4], "[P]roperty rights are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both State and federal courts within a state serve to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving `a windfall merely by reason of the happenstance of bankruptcy.'" [citations omitted.] Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Thus upon the filing of the bankruptcy petition, Debtors, or the trustee, had 60 days to redeem the property. Having failed to exercise this right of redemption, full title would vest in Cash America Pawn once it made the applicable notation on its fourth record or electronically recorded the final forfeiture according to the regulations of the Texas Administrative Code. However when the Debtors failed to exercise the right of redemption within the 60 days extension provided by § 108(b), they no longer had any legal or equitable interest in the collateral and it ceased to be part of the bankruptcy estate. Appellants, at that point were not subject to the automatic stay provisions of 11 U.S.C. § 362(a) of the Bankruptcy Code as concerns the collateral. Appellant Cash America was then free to make its notation pursuant to the regulations of the Texas Administrative Code. ISSUE FOUR (ON CROSS APPEAL): Did the bankruptcy court err in denying actual damages to the Debtors? Debtors' argument is based upon the receipt by Debtor's attorney of a letter from Cash America International, Inc. regarding Debtors' pawned property. This letter was received on or about October 31, *424 1995 and stated that Cash America was not subject to the terms of the automatic stay and gave Debtors until November 15, 1995 to contact Cash America to redeem the pawn tickets. Debtors' counsel responded by filing an adversary and seeking injunctive relief. Debtors argue that this letter was a willful violation of the automatic stay provisions of the Bankruptcy Code. 11 U.S.C. § 362(h). The bankruptcy court found that the evidence did not support a finding that Cash America's letter to Debtors was an act which intentionally violated the automatic stay. In re Bloom, 875 F.2d 224 (9th Cir.1989). The bankruptcy court discussed the letter which cited prior Cash America published cases and stated that Cash America would take the position that the property was forfeited after a certain date.[5] Citing United States v. Nelson, 969 F.2d 626 (8th Cir.1992), it was held that it was not a violation because Debtors' counsel "presumably would be in a position to know or learn of his clients' rights under the bankruptcy law and would not be intimidated by a letter such as this. . . . It is not a violation of the automatic stay for a creditor to advise debtor's counsel that he will take any action that he may legally take under the Bankruptcy Code." Nelson, 969 F.2d at 630. This factual finding as to the intent of Cash America in sending this letter should not be set aside unless clearly erroneous. FED. R.BANKR.P. 8013. The Court finds that the bankruptcy court's ruling on this matter was not clearly erroneous. IV. CONCLUSION It is concluded that the bankruptcy court did not err in holding that the pawned property was property of the bankruptcy estate. However the Debtors' contractual right to redeem pawned property from a Texas pawn shop can be modified in a Chapter 13 proceeding only to the extent that the 60 day redemption period provided by § 108(b) applies. The Court finds that the automatic stay provisions of 11 U.S.C. § 362(a) do not apply to the pledged goods in this case, and that Debtors were not entitled to actual damages. Accordingly, the Judgment on Turnover Action entered by the Bankruptcy Court on July 17, 1996 shall be, and is hereby AFFIRMED in part and REVERSED in part. NOTES [1] This fact distinguishes Debtors position, herein, from the position of the debtors in Dunlap v. Cash America Pawn, 158 B.R. 724 (M.D.Tenn. 1993) and In re Jackson, 133 B.R. 541 (Bankr. W.D.Okla.1991). [2] Alternatively, Appellants argue that this action is not required and that the title passes automatically at the conclusion of the redemption period. [3] § 108(b): "Except as provided in subsection (a) of this section, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor or an individual protected under section 1201 or 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 60 days after the order for relief." [4] The Bankruptcy Act does include provisions invalidating certain security interests as fraudulent or as improper preferences over general creditors. 1 U.S.C. § 96(a) and (b). Otherwise, Congress has generally left the determination of property rights in the assets of a bankrupt's estate to state law. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 917, 59 L.Ed.2d 136 (1979). [5] It is apparent that the legal assistant to the General Counsel of Cash America, who wrote the letter, was unaware of the factual distinctions as well as the fact that Texas law and regulations would distinguish this case from the cases which were the basis of Cash America's position given in the letter.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7921 WILLIAM SPENCER PASS, Petitioner – Appellant, v. WHITENER, Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. L. Patrick Auld, Magistrate Judge. (1:11-cv-00399-LPA-LPA) Submitted: January 17, 2013 Decided: January 23, 2013 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion William Spencer Pass, Appellant Pro Se. Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Spencer Pass seeks to appeal the district court’s * order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Pass has not made the requisite showing. Accordingly, we deny Pass’s motion for a certificate of appealability, deny * The parties consented to disposition by a magistrate judge. See 28 U.S.C. § 636 (2006). 2 leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3 

213 So.2d 267 (1968) Diane HOFFMAN, Appellant, v. Leo ROBINSON, Individually, Ted Bodin, Individually, Universal Knitting Mills, Inc., Universal Fabrics, Inc., and B.B.B. Knitting Mills, Inc., Appellees. No. 68-70. District Court of Appeal of Florida. Third District. August 13, 1968. Irwin Gars and Robert Dixon, Miami, for appellant. Feibelman, Friedman, Hyman & Britton, Miami, for appellees. Before PEARSON and HENDRY, JJ., and PIERCE, WILLIAM C., Associate Judge. PER CURIAM. This is an appeal by the plaintiff from a summary final judgment for the defendants in an action seeking damages for *268 the breach of an employment contract. It is clear under the theory sued upon that the plaintiff could recover only if the written contract provided a definite period of employment. See Sher v. Shower Door Company of America, Ltd., Fla.App. 1967, 197 So.2d 333, and cases cited therein. The appellant contends that since paragraph four, subsection (c), of the contract provides that "this agreement shall remain in force for a period of twenty-five (25) years from the date hereof," the contract either provides that she be employed for twenty-five years, or it is ambiguous as to the duration of her employment; if the contract is ambiguous then it must be construed in favor of the appellant, the non-drafter of the contract. The trial court found this contention untenable because only paragraph one of the contract deals with employment. * * * * * * "1. HOFFMAN agrees to immediately accept employment with KNITTING at a salary of $25,000.00 per annum, payable weekly." Paragraph four deals with the exercising of a stock option and the rights of the parties if the option is exercised. The legal effect of a contract must be determined from the words of the entire contract. Union Cent. Life Ins. Co. v. Neuhoff, 157 Fla. 98, 24 So.2d 906 (1946). A court may not violate the clear meaning of a contract in order to create an ambiguity. Voelker v. Combined Ins. Co. of America, Fla. 1954, 73 So.2d 403, 408. We hold that from a reading of the contract as a whole, it is clear that the quoted portion of paragraph four, subsection (c), of the contract does not refer to the length of employment. Therefore, the trial court was correct in granting summary final judgment for the appellees. Affirmed.

436 B.R. 44 (2010) In re Thomas and Theresa ALEXO, Debtor(s) Fifth Third Bank, Plaintiff(s) v. Thomas J. Alexo, Defendant(s). Nos. 10-3066, 09-38108. United States Bankruptcy Court, N.D. Ohio. August 11, 2010. *47 Alison Anne Gill, Fusco Mackey Mathews & Gill, LLP, Westerville, OH, for Plaintiff. Ty S. Mahaffey, Mahaffey & Associates, LLC, Sylvania, OH, for Defendant. DECISION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. This cause comes before the Court after a Trial on the Plaintiffs Complaint to Determine Dischargeability. The Plaintiffs Complaint is brought pursuant to the statutory exceptions to dischargeability set forth in 11 U.S.C. § 523(a)(2)(A) and § 523(a)(2)(C). At the Trial, the Parties were each given the opportunity to present evidence and make arguments that they wished the Court to consider in reaching its decision. At the conclusion of the Trial, this Court deferred ruling on the matter so as to afford the opportunity to thoroughly review the evidence presented, the arguments of the Parties, as well as the entire record in this case. The Court has now had this opportunity and, for the reasons set forth herein, finds that the Plaintiff has not sustained its evidentiary burden. Accordingly, the Plaintiffs Complaint will be Dismissed. FACTS On November 2, 2009, the Debtor/Defendant, Thomas Alexo (hereinafter the "Debtor"), sought legal advice concerning difficulties he was experiencing with his personal finances. Not long thereafter, on November 20, 2009, the Debtor filed, together with his wife, a joint petition in this Court for relief under Chapter 7 of the United States Bankruptcy Code. At the time he filed his petition for relief, the Plaintiff/Creditor, Fifth Third Bank (hereinafter the "Creditor"), held a claim against the Debtor. The Creditor's claim was based upon a prepetition extension of credit in the amount of $2,908.87. The claim arose on September 21, 2009, when the Debtor utilized a "convenience check" provided by the Creditor. The check was used by the Debtor to pay a preexisting debt owed to *48 another creditor with whom he maintained a credit-card account. This transaction, although later revealed to the Trustee at the meeting of creditors, was not initially disclosed by the Debtor at the time he filed his petition for relief. On the same date he wrote the convenience check, a letter was sent to the Debtor's wife informing her that her application for Social Security Disability had been approved and that she would be receiving a payment for approximately $12,000.00. Both the letter and the money were received a short time later. The Debtors disclosed this asset in their bankruptcy filing, claiming it as exempt, a position against which no party filed an objection. At the time he filed for bankruptcy relief, the Debtor represented that he and his wife had a net monthly income of $2,763.00. This income was derived from two sources: the Debtor's employer; and Social Security Disability benefits received by the Debtor's wife. Against their income, the Debtor represented that he and his wife had necessary, monthly expenses of $3,174.00, leaving their household budget with a monthly shortfall of ($411.00). This budget did not include any expense for servicing his unsecured debts which totaled just over $23,000.00. This state of financial affairs substantially reflects the Debtor's financial condition two months prior, when he wrote the convenience check provided by the Creditor. DISCUSSION Before this Court is the Plaintiffs Complaint to Determine Dischargeability of Debt. Proceedings brought to determine the dischargeability of particular debts are deemed to be core proceedings pursuant to 28 U.S.C. § 157(b)(2)(I). Accordingly, this Court has the jurisdictional authority to enter final orders and judgments in this matter. 28 U.S.C. § 157(b)(1); § 1334. The Plaintiffs Complaint to determine dischargeability is brought pursuant to § 523(a)(2)(A) and § 523(a)(2)(C) of the Bankruptcy Code. This first provision, § 523(a)(2)(A), operates so as to except from discharge any debt which arises from a debtor's dishonest conduct, thereby implementing a fundamental bankruptcy policy that only those debts which are honestly incurred may be discharged. EDM Machine Sales, Inc. v. Kay Harrison (In re Harrison), 301 B.R. 849, 853 (Bankr.N.D.Ohio 2003). Normally, the party seeking to have a debt held nondischargeable bears the burden to establish, by at least a preponderance of the evidence, the non-dischargeable character of the debt. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). Section 523(a)(2)(A) is no exception. Id. However, § 523(a)(2)(C), as also cited by the Creditor in support of its Complaint to determine dischargeability, reverses this allocation of the burden of proof under certain conditions, by providing, in relevant part: (C)(i) for purposes of subparagraph (A)— (I) consumer debts owed to a single creditor and aggregating more than $600 for luxury goods or services incurred by an individual debtor on or within 90 days before the order for relief under this title are presumed to be non-dischargeable[.] Consequently, if applicable, § 523(a)(2)(C) has the effect of requiring a debtor to bear the burden of showing that the debt does not qualify as one excepted from discharge under § 523(a)(2)(A). The provision is premised on the assumption that debtors, when incurring debts, do so with the intention of repaying them, and is designed to prevent debtors from "loading up" up on *49 debt in contemplation of bankruptcy. Milavetz, Gallop & Milavetz, P.A. v. United States, ___ U.S. ___, 130 S.Ct. 1324, 1336, 176 L.Ed.2d 79 (2010). It is still, however, the plaintiffs burden to show that § 523(a)(2)(C) is applicable in the first instance. Nissan Motor Acceptance Corp. v. Ferrell (In re Ferrell), 213 B.R. 680, 688 (Bankr.N.D.Ohio 1996). This is accomplished by the plaintiff showing the existence of six elements: (1) a consumer debt, (2) owed to a single creditor, (3) aggregating more than Six Hundred Dollars, (4) for luxury goods or services, (5) incurred by an individual debtor, (6) on or within 90 days before the filing of the petition. Id. For these elements, the only point of contention between the Parties centered on the fourth: whether the Debtor wrote the convenience check provided by the Creditor for "luxury goods or services." The Bankruptcy Code does not define what constitutes luxury goods and services, but does deem that certain types of goods and services are not luxury purchases. Under § 523(a)(2)(C)(ii)(II), it is set forth that "the term `luxury goods or services' does not include goods or services reasonably necessary for the support or maintenance of the debtor or a dependent of the debtor." In this matter, the Debtor utilized the convenience check provided by the Creditor for just one transaction: to pay a preexisting credit-card obligation owed to another creditor. This type of transaction can hardly be viewed as one absolutely excluded from the definition of a luxury good or service. Particularly, nothing suggests that such a transaction is an absolute necessity; nor, is it indicative of the type of transaction that is reasonably necessary for support and maintenance. However, the mere fact that the purchase of a good or service is not a necessity does not automatically mean that the purchase will be deemed a luxury. Shah v. Shaw (In re Shaw), 294 B.R. 652, 655 (Bankr.W.D.Pa.2003). Rather, decisions addressing the issue of luxury goods and services for purposes of § 523(a)(2)(C) have generally ascribed to such purchases a few characteristics. These include whether the purchase was extravagant, indulgent, and nonessential under the circumstances. Compass Bank v. Meyer (In re Meyer), 296 B.R. 849, 865 (Bankr. N.D.Ala.2003). Whether the purchase evidences some fiscal responsibility has also been considered as pertinent to a determination of whether the debt was incurred to obtain luxury goods and services. John Deere Community Credit Union v. Feddersen (In re Feddersen), 270 B.R. 733, 736 (Bankr.N.D.Iowa 2001). Overall, then, a purchase may not qualify as one automatically excluded from the definitional scope of a luxury good or service. At the same time, the purchase may not arise to the level to constitute a luxury good or service. A medium between the two parameters exists, where a transaction is neither fish nor fowl. When a party uses a convenience check, they are, in essence, taking a draw on a line of credit. On its face, there is nothing particularly ostentatious about such a transaction. The use of a convenience check, thus, on its own cannot be said to be a luxury purchase. To the contrary, the use of a convenience check will often exhibit a degree of financial responsibility, tending to place the transaction outside the orbit of a 523(a)(2)(C) luxury good or service, especially if it is done to pay a preexisting debt for the purpose of obtaining more favorable repayment terms—e.g., a lower interest rate. This would appear *50 to be the situation which is before the Court. At the Trial, the Debtor testified that his purpose in using the Creditor's convenience check was to close a credit-card account which carried a higher rate of interest on outstanding balances. While no evidence was offered to corroborate this statement, the Court has no reason to doubt the Debtor's testimony. It is common knowledge that convenience checks are often used by debtors to effectuate balance transfers to other accounts which offer more favorable repayment terms, a use often advertised and suggested by the party offering the convenience check. See MBNA America Bank v. Meoli (In re Wells), 561 F.3d 633, 634 (6th Cir.2009). This, however, does not mean that the use of a convenience check to pay a preexisting debt will always place the transaction outside the scope of a § 523(a)(2)(C) luxury good or service. Instead, a further dynamic may come into play, one which was touched upon at the Trial with the positing of this question: What effect, if any, does the nature of the purchases made by the Debtor on the original creditcard obligation, as later satisfied through the convenience check provided by the Creditor, have on a § 523(a)(2)(C) determination? That is, if luxury goods and services were purchased by a debtor with a credit card, and the debtor later uses a convenience check provided by another creditor to satisfy the prior obligation, does the underlying nature of the original debt follow to the subsequent debt or is the causal relationship broken? In this type of situation, there is authority to suggest that the causal relationship is not broken. See Archer v. Warner, 538 U.S. 314, 123 S.Ct. 1462, 155 L.Ed.2d 454 (2003) (agreement, which settled and released creditors' prior state-law claim for fraud, could still constitute a non-dischargeable debt under § 523(a)(2)(A)). In any event, in the instant case no evidence was offered regarding the nature of the purchases made by the Debtor on the original credit-card obligation. Consequently, such an issue is not before the Court. On whole, therefore, the Court is left with just this one fact: The Debtor used the convenience check provided by the Creditor to pay a preexisting debt. Standing alone, however, the Court, for those reasons stated, cannot find that such evidence satisfies the Creditor's burden of showing that, in accordance with § 523(a)(2)(C), the Debtor purchased luxury goods and services within 90 days before filing for bankruptcy relief As such, no presumption of fraud arises in this case. The matter before the Court, thus, now becomes whether, as averred in its Complaint, the Creditor can sustain its burden of showing that the Debtor, in using the provided convenience check, acted in a fraudulent matter for purposes of § 523(a)(2)(A). Section 523(a)(2)(A) provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing 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[.] In order for a plaintiff to sustain their burden under § 523(a)(2)(A), the common law elements for fraud must be shown to exist. Field v. Mans, 516 U.S. 59, 70 fn. 9, 116 S.Ct. 437, 443, 133 L.Ed.2d 351 (1995) ("We construe the terms in § 523(a)(2)(A) to incorporate the general common law of *51 torts, the dominant consensus of common-law jurisdictions, rather than the law of any particular State."). These elements, five in number, are: (1) the debtor made a false representation; (2) the debtor knew such representation to be false at the time they were made; (3) the representation was made with intent to deceive the creditor; (4) the creditor justifiably relied on the representation; and (5) the creditor's loss was the proximate result of the misrepresentation having been made. Bernard Lumber Co. v. Patrick (In re Patrick), 265 B.R. 913, 916 (Bankr.N.D.Ohio 2001). In this case, the Debtor, sub silentio, acknowledged the existence of the first, fourth and fifth elements. Hence, the only issue before the Court is whether, consistent with the second and third elements, the Debtor, knowing his representations to be false, acted with the requisite intent to defraud the Creditor. For purposes of § 523(a)(2)(A), the mere breach of a promise to pay does not establish the existence of an intent to defraud. Instead, an intent to defraud will not exist unless the maker of the promise knows his statement to be false at the time the statement is made. Clauss v. Church (In re Church), 328 B.R. 544, 547 (8th Cir.BAP2005). This determination is made using a subjective standard, requiring the court to consider the debtor, individually, as opposed to an objective, reasonable person standard Rembert v. AT & T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277, 281 (6th Cir.1998). See also Palmacci v. Umpierrez, 121 F.3d 781, 788 (1st Cir.1997) ("A dumb but honest defendant does not satisfy the test of scienter."). Whether a debtor subjectively intended to perform as promised is a factually intensive inquiry and, since a debtor will rarely admit to acting in a fraudulent manner, circumstantial evidence will often be needed to determine if the debtor acted with the requisite intent. Weeber v. Boyd (In Re Boyd), 322 B.R. 318, 324 (Bankr. N.D.Ohio 2004). As circumstantial evidence of the Debtor's fraudulent intent, the Creditor's primary point in support of a finding of non-dischargeability concerns the close proximity between these two events: the Debtor's utilization of the convenience check it provided; and (2) a short time later, the Debtor and his wife seeking Chapter 7 relief in this Court. For this purpose, neither Party disputes that the relevant dates are September 21, 2009, when the Debtor used the Creditor's convenience check to pay a preexisting debt, and November 20, 2009, when the Debtor and his wife filed their bankruptcy petition. The Creditor's concern over the timing of the events just mentioned is well justified. Debtors commonly seek bankruptcy relief after a protracted financial decline. Many debtors are, therefore, aware of the precariousness of their financial situation, and attendant inability to service more debt, in the time period leading up to their bankruptcy filing. It is also a basic facet of bankruptcy law that a debtor seeking relief under Chapter 7 of the Code seeks to escape their legal liabilities. Consequently, even where no presumption of abuse arises under § 523(a)(2)(C), a short time interval between when a debt is incurred and when a debtor files for bankruptcy relief is a strong, and possibly dispositive indicator of an intent to defraud. Rust v. Tellam (In re Tellam), 323 B.R. 661, 665 (Bankr. N.D.Ohio 2005). Furthermore, the shorter the time period between these two events, the stronger the indicator of fraud, with the time frames established by § 523(a)(2)(C) merely constituting an *52 event horizon[1] beyond which the debtor is no longer afforded a presumption in favor of dischargeability. In the instant case, given that less than two months elapsed between the salient dates, a strong inference of fraud exists. This inference is made even stronger by the fact that the Debtor first sought out the advice of legal counsel on November 2, 2009, thereby showing that the Debtor was prepared to seek a discharge of his obligation to the Creditor just six weeks after incurring the debt. Chase Bank v. Brumbaugh (In re Brumbaugh), 383 B.R. 907, 913-14 (Bankr.N.D.Ohio 2007). Moreover, the inference of fraud becomes particularly defined when the financial situation of the Debtor, particularly his cash flow, at the time he utilized the convenience check from the Creditor is considered. On September 21, 2009, when the convenience check was used, the Debtor did not have the means by which to pay the debt, with his household budget showing a monthly shortfall of over $400.00. See Palmacci v. Umpierrez, 121 F.3d at 789 (circumstances from which fraud may be inferred include debtor's insolvency or some other reason to know that he cannot pay.). The Debtor, in fact, fully acknowledged this point, testifying that he no ability to repay the Creditor at the time he utilized the convenience check. Under these conditions, where a debtor does not have the means to pay a debt incurred shortly before filing for bankruptcy relief, a prima facie case for fraud necessarily arises. As a peripheral matter, an additional aspect of this case further supports the Creditor's case. Specifically, and although ameliorated by its later disclosure, the Debtor, despite being required to do so, did not disclose in his bankruptcy filing his use of the convenience check. To rebut the case for fraud made by the Creditor, the Debtor focused on one aspect of his financial situation: the lump-sum social security payment his wife received on account of her disability. According to the Debtor, he and his wife intended to use the funds received from social security to pay their obligation to the Creditor. However, the Debtor explained that he did not follow through with this plan because, although his wife received a lump-sum payment of $12,000.00, the settlement was not as large as anticipated, thus constraining their ability to pay the Creditor. As an initial matter, it would be difficult not to notice a weakness with the Debtor's position. The lump-sum payment received from social security was $12,000.00, while the obligation owed to the Creditor was just under $3,000.00. The Debtor, thus, had the means by which to fully satisfy his obligation to the Creditor four times over. Notwithstanding, the Debtor's explanation is not devoid of credibility. First, insofar as it concerns the timeline of events in this case, the Debtor's explanation is not contradicted. In particular, the Debtor utilized the convenience check provided by the Creditor on September 21, 2009, with the letter sent by the social security administration concerning the $12,000.00 payment being sent the same day. It stands to reason, therefore, that the Debtor did not gain knowledge as to the size of the lump-sum payment until just after he utilized the convenience check provided by the Creditor. Yet, there is one underlying fact which lends the upmost credibility to the Debtor's *53 position. The Debtor did not personally enrich himself when he utilized the Creditor's convenience check. Instead, he merely replaced one debt with another, leaving the Debtor with the same amount of liabilities, just with different creditors. As this Court has previously observed: "it goes without saying that, in the absence of an immediate pecuniary gain, a debtor's motive to fraudulently engage in a transaction involving a balance transfer is dampened." In re Brumbaugh, 383 B.R. at 916. Importantly, for this purpose, nothing indicates that the credit card paid by the Creditor's convenience check was an insider to whom the Debtor could have felt a strong moral obligation to repay. The Debtor's lack of any intent to defraud was also evident from his testimony at the Trial. In short, the Court, having had the opportunity to observe the demeanor of the Debtor at the Trial, found him to be sincere. The Debtor's lack of financial sophistication also stood out to the Court. In this regard, the Debtor's handling of his financial obligation to the Creditor, while hardly laudable, seems to be the result of trying to juggle to many financial balls which came falling down when the Debtor and his wife did not receive as much as they had anticipated from the social security administration. For these reasons, the Court, while it does find a number of aspects of this case troubling, has lingering doubts that the Debtor subjectively intended to defraud the Creditor. Under this condition, the law requires that any doubt be resolved in favor of the Debtor. XL/Datacomp v. Wilson (In re Omegas Group), 16 F.3d 1443, 1452 (6th Cir.1994). As such, the Court declines to enter a finding that the obligation incurred by the Debtor through his use of the convenience check provided by the Creditor is a non-dischargeable debt. 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 the obligation incurred by the Defendant/Debtor, Thomas J. Alexo, to the Plaintiff/Creditor, Fifth Third Bank, be, and is hereby, determined to be a DISCHARGEABLE DEBT. IT IS FURTHER ORDERED that the Plaintiffs Complaint to Determine Dischargeability of Debt, be, and is hereby, DISMISSED. NOTES [1] In general relativity, an event horizon is a boundary in spacetime, most often an area surrounding a black hole, beyond which events cannot affect an outside observer. http://en.wikipedia.org/wiki/Event_horizon.

578 F.2d 1366 Chessav.Fenton No. 78-2022 United States Court of Appeals, Second Circuit 6/20/78 1 E.D.N.Y. AFFIRMED

137 Ariz. 10 (1983) 667 P.2d 1336 The STATE of Arizona, Appellee, v. Francisco Daniel GRIJALVA, Appellant. No. 2 CA-CR 2804. Court of Appeals of Arizona, Division 2. April 18, 1983. Rehearing Denied May 23, 1983. Review Denied July 8, 1983. *12 Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee. Frederick J. Dardis, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant. OPINION BIRDSALL, Judge. This is an appeal from a conviction in Pima County of attempted second degree burglary and theft under $100. During the night of February 11, 1982, Rebecca Gorrell heard noises outside her apartment, looked out and saw nothing. Upon answering a knock on her back door, where no one ever knocked, she discovered the appellant who told her some children had let the air out of her tires. She did not go out or let the appellant in and told him she would inform her husband about the tires although she was actually unmarried. Later, she heard a noise by her window and called the police who, upon arrival, saw a man come from the vicinity of her apartment and ride off on a bicycle. The police chased and caught the man, the appellant, with a bike stolen two days before, a jar of vaseline, gloves, a wig and marijuana. Ironically, the appellant was caught in front of the house from which the bike had been stolen. Further investigation revealed two flat tires on Ms. Gorrell's car, chipped paint on her windows, pry marks on her door, a bag of her old underwear which she had placed in the trash scattered about her backyard, a tire valve-stem remover on the bike, footprints matching the appellant's shoes near the windows and car, and a knife near her apartment. At trial, the court directed a verdict of acquittal on the charge of attempted first degree burglary with an allegation of dangerous nature since there was no showing that the knife had ever been used or exhibited. The jury found the appellant guilty of attempted second degree burglary, theft under $100 (the bicycle), with four prior convictions which were admitted by the appellant. The appellant first argues that following the directed verdict the trial court amended the information to a charge of attempted second degree burglary without his consent. It is improper to amend an information which changes the legal basis of the charges unless the defendant consents. See e.g., State v. Kelly, 123 Ariz. 24, 597 P.2d 177 (1979). The appellant asserts he was prejudiced by the admission of the knife prior to the directed verdict since that evidence would not pertain to attempted second degree burglary. He also contends that prejudice resulted from the discussions in opening statements concerning attempted first degree burglary. We disagree for several reasons. First, no amendment of the information occurred as in Kelly, supra. Here, the trial court dismissed the charge of attempted first degree burglary, thus automatically leaving in existence the necessarily lesser-included charge of attempted second degree burglary. Rule 13.2(c), Rules of Criminal Procedure, 17 A.R.S. states that the "[s]pecification of an offense in an indictment or information shall constitute a charge of that offense and of all offenses necessarily included therein." The appellant could not commit attempted first degree burglary without necessarily committing the included offense of attempted second degree burglary. Since the information already contained notice of the charge of the necessarily included offense of attempted second degree burglary, no amendment was necessary. The admission of the knife into evidence was not error even if the original charge had been attempted second degree burglary since it constituted circumstantial evidence of both the appellant's attempted entry into the house and intent to commit a felony. The jury could have believed that the appellant intended to use the knife to persuade the intended victim. In State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (1981), police at a roadblock were fired upon from a passing van. Weapons later admitted into evidence were discovered near where the appellants were hiding in the *13 desert when arrested. The supreme court found it more probable than not that those weapons were the ones fired from the van and, therefore, "a sufficient connection was established between the weapons and the crimes charged." Id. at 395, 626 P.2d at 125. Likewise, in the present case a sufficient connection exists since there was evidence of pry marks on the victim's door and windows, which could have been made with the knife, and the knife was found near the place where the police first spotted the appellant. The discussions in opening statements concerning attempted first degree burglary were not prejudicial. The trial court properly denied the motions for mistrial and a request that the jury be informed, prior to the appellant's testimony, that the charge was now attempted second degree burglary. This ruling was well within the trial court's discretion. The jury was instructed to make its determination based on the evidence and that the opening statements were not evidence. They were instructed that the charge against the appellant was attempted second degree burglary, informed of the proof required to sustain that charge and given a verdict form specifying attempted burglary in the second degree. There was no error. The appellant next contends that the prosecutor improperly argued during closing that the appellant was a "four time felon Good Samaritan" and referred to the felony which the appellant intended to commit in the house as a "rape that never happened". Several comments by the prosecutor developed this theme. We find no error justifying reversal. The appellant's counsel also described him as a Good Samaritan who only sought to notify Ms. Gorrell that her tires were flat. The prior convictions were in evidence. Likewise, the state, as an element of attempted second degree burglary, had to show that the appellant intended to commit a felony in the house. The appellant also complains of comments regarding the psychological trauma of rape and the difficulty rape victims may have identifying rapists. The state's theory of the case was that the intended felony was rape. Circumstantial evidence was admitted which supported that theory. The prosecutor's remarks were supported by the evidence, State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972), and were not error. State v. Kelley, 110 Ariz. 196, 516 P.2d 569 (1973). The trial court was in the best position to judge the effect of the prosecutor's closing arguments. The appellant also maintains that the following statement by the prosecutor during closing argument was improper and intended to inflame the passions and fears of the jury: "I just raised this question, (sic) do we have to wait until this man finds a victim who will open his door, open that door to him. Do we have to wait until someone is raped to deal with this man." Standing alone this argument appears to be a classic illustration of an attempt to improperly influence the jury by calling on their emotions. State v. Makal, 104 Ariz. 476, 455 P.2d 450 (1969), cert. denied, 404 U.S. 838, 92 S.Ct. 128, 30 L.Ed.2d 71 (1971). However, when considered with the facts of this case, the deflated tires, the conversation at the door, the scattering of the victim's underclothes and the vaseline, there is an arguable inference that this was a burglar who planned his crime and therefore might do so again. See State v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978). Even more important is the fact that this was a charge of attempt and the fact that nothing really happened had been brought home to the jury from the beginning. This argument is proper to counteract that impression. Assuming arguendo that the argument was improper, the trial judge implicitly found that under the circumstances of the case the jury was probably not influenced by the remarks. See State v. Smith, 114 Ariz. 415, 561 P.2d 739 (1977); State v. Gonzales, 105 Ariz. 434, 466 P.2d 388 (1970). Again, the trial judge was in the best position to decide this question, and we will adhere to his judgment since no clear abuse of discretion has been shown. *14 The appellant next argues that reversible error occurred when the trial court denied his motion for a mistrial after the following statement by a Tucson police officer on direct examination by the state: "Q. [by prosecutor] After you had your brief discussion about the use of this vaseline, do you recall if the suspect made any other statements? A. Yes, he became a little more lighthearted and we continued talking. I don't recall exactly how it was, statements were made, of previous instances where he was involved in criminal justice system [sic]." The appellant contends that the statement indicated serious unrelated prior bad acts and was thus inadmissible, and that, since the prosecution had "let the cat out of the bag", the appellant was compelled to take the stand and admit four prior felony convictions. We disagree. The general rule is that evidence which indicates serious unrelated prior bad acts of the defendant that would otherwise be inadmissible merits a mistrial. See State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979). However, any resulting prejudice, to be reversible error, must make it reasonably probable that the verdict would have been different if the testimony had not been admitted. State v. Sianez, 103 Ariz. 616, 447 P.2d 874 (1968). The officer's testimony alluded to involvement in the criminal justice system, but not necessarily as a criminal. The testimony did not mention arrests, convictions or the degree of any prior criminal activity. In addition, the appellant rendered any possible prejudice harmless by later specifically admitting four prior felony convictions. State v. Ybarra, 97 Ariz. 200, 398 P.2d 905 (1965). Compare State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980). The appellant next contends that the trial court committed reversible error by refusing to admit the testimony of the appellant's sister. She would have testified that a third person, Mario Corrales, admitted to her that he, Corrales, had actually stolen the bicycle and lent it to the appellant without informing him of the theft. The issue is whether the testimony falls under the "statement against penal interest" exception to the hearsay rule under Rule 804(b)(3), Rules of Evidence, 17A A.R.S. That rule provides that, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." The trial court, citing State v. Macumber, 119 Ariz. 516, 582 P.2d 162 (1978), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978), found that the requirement of corroboration had not been met. We agree. Admission of evidence is within the discretion of the trial court and its rulings will not be disturbed on appeal absent an abuse of discretion. State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976), cert. denied, 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d 234 (1977). The appellant's argument that the trial court denied admission based on the sister's credibility rather than an examination of the trustworthiness of Corrales' statement is unpersuasive. The trial judge specifically noted that Corrales' hearsay statement required corroboration that he made the statement or that he actually stole the bicycle. No such corroboration was presented. Any possibly corroborative statements by the appellant would not meet the standard required by Rule 804(b)(3) that such corroboration "clearly indicate the trustworthiness ...", since the appellant's own credibility is at issue. In 4 Weinstein on Evidence at 804-12 (1981) we find the following quote from the Report of the Committee on the Judiciary, House of Representatives, 93rd Congress, 1st Session, Proposed Federal Rules of Evidence, No. 93-650, pp. 15-16 (1973): "[S]tatements against penal interest ... tending to exculpate the accused are more suspect and so should have their admissibility conditioned upon some further provision insuring trustworthiness. The proposal in the Court Rule to add a requirement of simple corroboration was, however, deemed ineffective to accomplish this purpose since the accused's *15 own testimony might suffice while not necessarily increasing the reliability of the hearsay statement." We find this logic of the drafters of the Federal Rules of Evidence persuasive. Finally, the fact that the sister did not inform defense counsel of her conversation with Corrales until shortly before trial, although possibly consistent with her testimony that she originally did not think the conversation was important, does nothing to corroborate whether Corrales made the statement or stole the bicycle. The appellant next argues that the following flight instruction constituted an impermissible comment on the evidence prohibited under Art. VI, § 27 of the Arizona Constitution: "Running away or hiding after the alleged commission of a crime does not, in itself, prove guilt. You may consider any evidence of the defendant's running away or hiding together with all the other evidence." He contends that the instruction suggests he ran because of the attempted robbery and stolen bicycle rather than, according to his theory, because of fear of being caught with marijuana. We disagree. This instruction is the recommended Arizona Jury Instruction approved by the supreme court. See also State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). The giving of a flight instruction is proper if supported by the evidence. See State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977). The fact that the appellant may have fled from the vicinity of the alleged crime out of fear of punishment for possession of marijuana does not remove the possibility that his flight was because of fear of being punished for the crimes charged. The instruction is not rendered improper just because the running is from two crimes rather than one. In State v. Sorrell, 109 Ariz. 171, 506 P.2d 1065 (1973), the defendant was caught while fleeing from the vicinity of a robbery in a stolen car. He claimed a flight instruction in the robbery prosecution was error since he was fleeing because of the stolen car. The Sorrell court held that, "[s]ince defendant, at 2:00 A.M. was fleeing from the vicinity of the robbery in that car, it is only reasonable to treat the flight as from the robbery, as well as from the car theft." The jury in the present case could properly "consider any evidence of the defendant's running away or hiding together with all the other evidence" as an indication of consciousness of guilt of the crimes charged. Finally, the appellant maintains that error occurred due to violations by the state of A.R.S. § 13-604(K)[1] and § 13-604(H).[2] The state filed with the information an allegation of four prior convictions which had been entered in Pima County on May 24, 1974. Later, it developed that the person who would testify that the appellant was the person convicted of those prior felonies would not be present at trial. The state needed to identify the appellant as the person previously convicted and to show that at least two of the prior felonies occurred on more than one occasion for enhanced *16 sentencing purposes under A.R.S. § 13-604(H). Therefore, during trial, the state obtained the criminal complaint and the minute entry for the return of the jury verdicts on the prior convictions (the sentencing minute entry already disclosed with the filing of the information did not prove that any of the prior felonies occurred on more than one occasion). The state then disclosed the additional documents and they were admitted the following day, over objection. The appellant claims it was error to admit these previously undisclosed documents and that they do not show that the prior crimes occurred on more than one occasion. We disagree. It was not error to admit these documents. Under A.R.S. § 13-604(K), the trial court may allow an allegation of prior conviction "at any time prior to trial" if at the time the allegation is filed, the state makes "available to the defendant a copy of any material or information obtained concerning the prior conviction. We interpreted this statutory language in State v. Hooker, 128 Ariz. 251, 624 P.2d 1299 (App. 1981). In that case, the state, at the time it filed an allegation of prior Massachusetts convictions, "was unable to produce formal proof of the alleged prior convictions because of a delay in the processing of the documents in Massachusetts." 128 Ariz. at 252, 624 P.2d at 1300. Thus, unavailability of the undisclosed proof was the reason for the failure to obtain it at the time the allegations were filed. The state did not withhold information it both knew it needed and could readily obtain. Likewise, in the present case the state disclosed with the allegation all the available information it felt it needed to prove the prior convictions. The state had intended to call a deputy county attorney to testify that the appellant had committed the priors and that they were committed on different occasions, but it later developed that the attorney could not be present at trial. At that point the state immediately procured and disclosed the disputed documents which were in the office of the Clerk of the Superior Court in Pima County. These documents were always available to either party. Even if we treat this as late disclosure, the appellant was not prejudiced because of the timing. He was prejudiced only because this proof enabled the court to enhance his punishment. The evidence presented was sufficient to allow the jury to conclude beyond a reasonable doubt that the prior convictions occurred on more than one occasion. The trial court's sentencing minute entry for the priors contained the following: "IT IS THE JUDGMENT OF THE COURT that Defendant is guilty of the crimes of BURGLARY, FIRST DEGREE (ARMED), Count One; RAPE, 1ST DEGREE, Count Two; BURGLARY, FIRST DEGREE (ARMED), Count Three, and ASSAULT WITH INTENT TO COMMIT RAPE, Count Four." The complaint, which was also introduced into evidence charged the appellant with the commission of counts one and two "[o]n or about the 17th day of December 1973" and counts three and four "[o]n or about the 28th day of December 1973." (emphasis supplied). Thus, having both exhibits enabled the jury to find that the prior convictions involved at least two different occasions. Affirmed. HOWARD, C.J., and HATHAWAY, J., concur. NOTES [1] A.R.S. § 13-604(K), in pertinent part, states: "K. The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous conviction, the dangerous nature of the felony or the allegation that the defendant committed a felony while released on bond or on his own recognizance as provided in subsection M of this section is charged in the indictment or information and admitted or found by the trier of fact. The court in its discretion may allow the allegation of a prior conviction, the dangerous nature of the felony or the allegation that the defendant committed a felony while released on bond or on his own recognizance at any time prior to trial, provided that when the allegation of a prior conviction is filed, the state must make available to the defendant a copy of any material or information obtained concerning the prior conviction...." [2] A.R.S. § 13-604(H) states: "H. Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes, may, at the discretion of the state, be counted as prior convictions for purposes of this section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section."

292 P.2d 469 (1956) Gladys E. DEVLIN, for and on behalf of Karin Jean Devlin, a minor, Claimant-Appellant, v. Paul B. ENNIS, Administrator of the Estate of William G. Searles, Employer, and State Insurance Fund, Surety, Defendants-Respondents. Mrs. Ray Bozek, Intervenor-Appellant. No. 8270. Supreme Court of Idaho. January 13, 1956. Rehearing Denied February 6, 1956. *470 Martin & Martin, Boise, for claimant-appellant. Walter M. Oros, Boise, for intervenor-appellant. Paul B. Ennis, Boise, for respondent Estate. Graydon W. Smith, Atty. Gen., Glenn A. Coughlan, Asst. Atty. Gen., for respondent State Ins. Fund. ANDERSON, Justice. This is a workmen's compensation case in which the main question is: Did the accident and resultant death of the employee arise out of his employment under I.C. sec. 72-201? It is conceded that it occurred in the course of his employment. May 11, 1953, between 8:30 and 8:45 a.m., William G. Searles, age 52, went to the house of Mrs. Elizabeth Kenney, a widow, at 1118 Lemp Street, Boise, Idaho, where he had boarded for four years. He told her he had just shot a man, and to come and see what he was going to do. She invited him to come in and have a cup of coffee, but instead he went out to his car and shot himself with a .22 revolver, from the effects of which he died. The revolver, when examined, was found to contain two empty cartridges. The police were notified, and an acquaintance and former employee of Searles, Robert G. Harlan, was also notified. When Harlan arrived at the scene and ascertained what Searles had said immediately prior to shooting himself, he suggested to the officers that they go to Searles' place of business, located at 1600 Main Street and known as Boise Auto Upholstery, to see if there was another man involved. They arrived there about 9 a.m. or shortly thereafter, and found the place of business locked, but observed through a window that the lights were on, and saw Eugene Devlin lying on the floor. Upon gaining entrance, they found Devlin lying on his back with his hands in his side pockets, and there was a wound in the back of his head that appeared to have been caused from a small-caliber gun. Harlan was an automobile trimmer, as was Devlin, and he had worked for Searles off and on between 1947 and 1952, and thereafter had business transactions with him. Harlan had known Devlin about a year. He knew Searles' tools and Devlin's tools, and observed that Devlin's tools were out on his workbench, an arm rest for a car was partly finished, and Devlin was dressed in his work clothes. A customer came in and asked about getting the arm rest while Harlan and the others were at the place of business. The evidence discloses that during the afternoon of May 10, 1953, Mr. Devlin and Mrs. Kenney were together at the auto races at Nyssa, Oregon; that about 7:15 a.m. May 11, 1953, Searles was at his customary cafe for breakfast; that he left as usual about 7:45. He went to a service station across the street from the Boise Auto Upholstery just before eight o'clock, and wanted to pay his account there. The service station operator told him he had just paid his bill the first of the month, and Searles replied that "I might take out of here pretty fast," and complained that "the kid" had broken up his home life. Another customer then came in, and Searles left. The evidence in many respects is indefinite and uncertain, and there are statements in the briefs which are not supported by the evidence except from inference. It does not appear that a thorough investigation was made by any official, or anyone else, at the time of the deaths of the two men. There is conflicting evidence as to difficulty between Searles and Devlin over Devlin's having gone out socially with Mrs. Kenney, the evidence being uncontradicted that she had at times gone out with each of them, that Searles had boarded with her for about four years, and she had known Devlin about one year. She had quarreled with Searles just prior to May 11, 1953, and asked him to obtain a place elsewhere to board, but testified the quarrel was not about Devlin. *471 Devlin, at the time of his death, was 26 years of age and divorced, and lived in an apartment on Sixteenth Street with his daughter, Karin Jean Devlin, then five and a half years of age and wholly dependent on him for care and support. A claim for wrongful death of Devlin was filed by the special administrator of his estate in the estate of Searles, but at the time of the hearing it had neither been approved nor rejected; and a claim for workmen's compensation benefits, upon which this action is based, was filed with the Industrial Accident Board. The Board found that Searles shot Devlin in the back of the head, which instantly caused his death, that the shooting was premeditated and the result of personal jealousy of Devlin, in nowise involving or arising out of the employer-employee relationship of the men or out of the employment itself, although the assault was in the course of the employment. Compensation was denied. An application for a rehearing was made by the intervenor and appellant, Mrs. Ray Bozek, a daughter of Searles and his sole and only heir. The ground upon which the application was based was that Searles was insane and suffering, at the time of the assault, from the disease known as alcoholic paranoia. The application was denied. The minor claimant, through her grandmother, Gladys E. Devlin, and Mrs. Bozek, the intervenor, have appealed. The intervenor has urged throughout that workmen's compensation should be awarded the claimant. If such is done, it would not only sanction indirectly conduct of the employer in committing an assault upon the employee, but it would also permit the employer to use the workmen's compensation act to shield himself — in this case, his estate — from his civil liability in an action at law. Conway v. Globin, 105 Cal.App.2d 495, 233 P.2d 612. Appellants in their reply brief contend that the Conway case is completely discredited, if not expressly overruled, by State Compensation Insurance Fund v. Industrial Accident Commission, 38 Cal.2d 659, 242 P.2d 311. We are of the opinion that neither contention is borne out. The factual situations in the two cases are entirely different. In the latter case there was a dispute between an employee and his superior (not his employer) in regard to the latter's treatment of the former in their relations as boss and worker. This was incidental to the employment, and arose out of it, while in the Conway case the injuries were the result of an unprovoked, wilful attack by the employer. The later California case relied on by appellants, 242 P.2d at page 318, states that the weight of authority supports the proposition that assaults arising from personal animosity are not compensable under the workmen's compensation act. While there is some evidence tending to show that Searles may have been an alcoholic paranoiac or insane, nevertheless it does not appear that such was the cause of his killing Devlin, as it appears to have been done as the result of premeditation, and not in a sudden fit of insanity or an unmotivated frenzied attack as in the Pawnee cases, Pawnee Ice Cream Co. v. Cates, 164 Okl. 48, 22 P.2d 347 and Pawnee Ice Cream Co. v. Price, 164 Okl. 120, 23 P.2d 168; but it was the result of imaginary or real personal grievances in no way connected with the employment. There was not sufficient evidence to warrant a finding that Searles was insane under the insanity tests used in Idaho. Even if Searles was insane, his shooting Devlin was the result of a personal matter having no connection with Devlin's employment. The claimant had the burden to show by a preponderance of the evidence that Devlin's death resulted from an accident arising out of and in the course of his employment. Parkison v. Anaconda Copper Mining Co., 56 Idaho 610, 57 P.2d 1216; Walker v. Hyde, 43 Idaho 625, 253 P. 1104. This claimant failed to do. Claimant contends that there is no competent evidence to show that Searles shot his employee Devlin, although the special administrator of Devlin's estate filed a claim in Searles' estate stating Devlin "was shot in the back of the head by a revolver held in the hand of the said William G. Searles, his employer." Even without considering *472 this claim as evidence, there are other facts and circumstances sufficient to warrant the board's finding that Searles shot Devlin. Claimant contends that there is no competent evidence to prove that the motive for the killing was personal jealousy, as the evidence of the service station operator should not have been admitted. The record discloses that these statements were made by Searles about "the kid breaking up his home life" either a few minutes before or a few minutes after he killed Devlin, and were properly admitted, as was the statement to Mrs. Kenney to the effect that he had just shot a man. They were admissible to show motivation: i.e., that the cause of Devlin's death arose outside of his employment, and not out of it. Much latitude is permitted the board in the admission of evidence, and we are of the opinion that there was substantial competent evidence to support the board's findings in this case. Findings of the board, when so supported, are conclusive on appeal. Swan v. Williamson, 74 Idaho 32, 257 P.2d 552. The credit and weight to be given the testimony in a compensation case is for the Industrial Accident Board. Benson v. Jarvis, 64 Idaho 107, 127 P.2d 784. All reasonable inferences drawn by the triers of the facts will be sustained on review. Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404. In the case of Hudson v. Roberts, 75 Idaho 224, 229, 270 P.2d 837, 839, this court stated: "It may be stated as a general rule that where an employee is assaulted and injury is inflicted upon him through animosity and ill will arising from some cause wholly disconnected with the employer's business or the employment, the employee cannot recover compensation simply because he is assaulted when he is in the discharge of his duties. Under such circumstances the injury does not arise out of the course of employment, and the employment is not the cause of the injury although it may be the occasion of the wilful act, and may furnish the opportunity for its execution." (Cases cited.) Larson, in his "The Law of Workmen's Compensation" (1952) vol. 1, sec. 11.20 and sec. 11.21, pp. 136-137, which discusses privately motivated assaults, states: "When the animosity or dispute which culminates in an assault is imported into the employment from claimant's domestic or private life, the assault does not arise out of the employment under any test. Even the broadest of all, the but-for or positional test, rules out compensability on the reasoning that the assault would have been made in any case, since the assailant was evidently determined to have his vengeance wherever he might find his victim." In the present case, the shooting was not an incident of Devlin's employment, and did not have its origin connected with the employment, but was a personal matter, and therefore it did not arise out of the employment. 58 Am.Jur., Workmen's Compensation, sec. 265, p. 766, states: "* * * when the assault is unconnected with the employment, or is for reasons personal to the assailant and the one assaulted, or is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, it is ordinarily held that the injury does not arise out of the employment." The case of Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712, is distinguishable from the present case, in that the evidence there did not disclose personal trouble between the claimant and the assailant, and also the assailant was not the employer, as in the present case. The rational mind must be able to trace the result of the injury to the proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. Hawkins v. Portland Gas Light Co., 141 Me. 288, 43 A.2d 718. *473 Idaho Code, sec. 72-201, provides that there must be a causal connection between the injury and the industry in which it occurs. This court, in Wells v. Robinson Const. Co., 52 Idaho 562, 16 P.2d 1059, held that while the facts differ in each case, the general principle runs through them all that in order for the injury to be compensable there must be a causal connection between the employment and the injury. Here, the shooting of Devlin by his employer because of animosity was foreign to the employment, and Devlin's death therefore did not arise out of his employment by Searles, who was evidently determined to have his vengeance wherever he might find his victim. The order of the Board denying compensation is affirmed. KEETON and PORTER, JJ., concur. SMITH, Justice (dissenting). November 29, 1954, the Industrial Accident Board made its order denying compensation to appellant, surviving minor of Devlin, Searles' deceased employee. During the 30-day appeal period immediately following, appellant made application to the Board for reopening and rehearing of the minor's compensation claim, which application December 29, 1954, the Board denied. Such procedure was designed to elicit the Board's finding upon the evidence indicating Searles' insanity May 11, 1953, when he shot and thereby killed Devlin, his employee, and killed himself a short time afterwards. The Board failed to make any finding thereon. Appellant in said application also offered to show medically, that at the time of such unfortunate incidents, Searles was suffering from the mental disease and derangement of alcoholic paranoia. Appellant also pointed out in said application, that the Board failed to find whether the employee Devlin was exposed to personal injury by an insane employer by reason, and as a hazard, of said employment. The record contains undisputed evidence to the following effect: That Searles drank intoxicating liquor in increasing quantity from 1947 to the time his death occurred May 11, 1953. He became a heavy, constant drinker for some time prior to his death. During the last year of his life his complexion became yellow and he lost weight. At times he would sit at a bench and stare into space. His ability to handle his business became worse. He became irritable with customers and employees. He constantly talked to the effect that people were trying to take advantage of him. He became suspicious of everyone. His eyes were bloodshot and dilated. During the last year of his life he acted irrational at times. He didn't recognize a friend on the street a week or so before his death. The Industrial Accident Board took no cognizance of such undisputed evidence and made no findings whatever with reference thereto. Appellant properly assigned error of the Board in failing to find both on the issue of Searles' sanity, and in denying appellant's application to reopen the matter for further proceedings. Nevertheless, this Court in its majority opinion has failed and refused to take cognizance of such specifications of error. Inasmuch as the evidence hereinbefore set out is undisputed, and the Board failed to find thereon, this Court incorrectly attempts invocation of the rule that the findings of the Board, when supported by substantial competent evidence, are conclusive on appeal. That rule applies where the Board has given credit and weight to the evidence, as shown by its findings, and has drawn reasonable inferences therefrom, as shown by its rulings of law, i.e., performed its mandatory duty in those regards, I.C., sec. 72-604 (although herein it failed so to do), and when the evidence supports the Board's findings and rulings so made. The rule perhaps would have application herein, provided, either that the record *474 was devoid of evidence pointing to Searles' insanity; or that an adverse board finding on the undisputed evidence pointing to Searles' insanity, could be said to be supported as a matter of law, by competent evidence. The majority opinion admits that the record contains evidence tending to show Searles was paranoiac. Paranoia is a very serious mental disorder. It is a progressive type of insanity usually stemming from schizophrenia or dementia praecox. It is characterized by persecution complexes and, as in Searles' case, may progress to the acute and dangerous stage of destructive retaliation, which may lead to terrible crime. Such mentally afflicted individuals are indeed most dangerous. Toxic poisons, such as alcohol, may lead to the paranoia; on the other hand, the paranoiac by use of alcohol may show his mental derangement to a markedly exaggerated degree. Kraines, Therapy of the Neuroses and Psychoses, pp. 421-435; Gray, Attorneys' Handbook of Medicine, Vol. 2, Paranoia, c. 104, pp. 1159-1167. The fact that the Court, in its majority opinion, points to the evidence indicative of Searles' insanity, sufficiently illustrates the necessity of a finding on the issue of sanity. Further, a finding thereon ought to clear the confusion indicated by the majority opinion, to which attention is hereinafter directed. The Court in its majority opinion finds and concludes inter alia as follows: "While there is some evidence tending to show that Searles may have been an alcoholic paranoiac or insane, nevertheless it does not appear that such was the cause of his killing Devlin, as it appears to have been done as the result of premeditation, and not in a sudden fit of insanity or an unmotivated, frenzied attack, * * * but it was the result of imaginary or real personal grievances in no way connected with the employment. * * * Even if Searles was insane, his shooting Devlin was the result of a personal matter having no connection with Devlin's employment. * * * Here, the shooting of Devlin by his employer because of animosity was foreign to the employment, and Devlin's death therefore did not arise out of his employment by Searles, who was evidently determined to have his vengeance wherever he might find his victim." While the Court recognizes the evidence as pointing to Searles' insane paranoia, what follows is most strikingly incongruous, because of the contradictions therein contained; for the opinion then sets out, (1) that the insanity was not the cause of the killing but that the killing was done as the result of premeditation, which presupposes sanity, i.e., capability of committing a willful act; (2) that the killing was the result of imaginary or real personal grievances, which presupposes in the one case mental derangement, and in the other, sanity, i.e., both incapability and capability of committing a willful act; (3) that even if Searles was insane (incapable of committing a willful act) the shooting was the result of a personal matter, which presupposes sanity; (4) that the killing was because of animosity and a determination to have vengeance, which presupposes sanity, i.e., capability of committing a willful act. It is simply impossible to conceive of a person being insane and at the same time sane. Unfortunately the portions of the majority opinion hereinbefore referred to present just that impossible situation. Moreover, the majority opinion attempts the impossible when it attempts correlation of the two hypotheses into non-compensability, i.e., the infliction of the personal injury which caused Devlin's death by either, (1) the employer's sane mind, or (2) his insane mind; for the wealth of legal authority, hereinafter referred to, simply will not bear out the second hypothesis. Further, the majority opinion disregards a concept of insanity which has always existed medically and legally, so well expressed in concise language in Chadwick v. White Provision Co., 82 Ga.App. 249, 60 S.E.2d 551, at page 552, as follows: "An insane person is incapable of committing a willful act, and acts of *475 such persons are in terms of Workman's Compensation Law accidental to the person against whom they are directed." and recognized by this Court in Louie v. Bamboo Gardens, 67 Idaho 469, 474, 185 P.2d 712; for therein this Court held that regardless of Hong's imaginary grievance, — the insane mind, — Louie received a compensation covered accidental injury. The majority opinion quotes from Hudson v. Roberts, 75 Idaho 224, 229, 270 P.2d 837; Larson, Workmen's Compensation Law, Vol. 1, secs. 11.20 and 11.21, pp. 136-137, and 58 Am.Jur., Workmen's Compensation, sec. 265, p. 766, on the proposition that where the workman receives personal injury through the animosity of another, wholly disconnected with the employment, the injury does not arise out of the employment. None of those authorities involve the insane mind as causative of the injury. Moreover, Hudson v. Roberts, supra, recognizes the rule, that where the conditions of the employment have the effect of exposing the workman to an assault it is generally held, in the absence of extenuating factors, that a resulting injury is compensable. The majority opinion points to Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712, 714, as distinguishable from the present case because the evidence in the Louie case did not disclose personal trouble between the injured workman and the assailant, and further showed that the assailant was not the employer. The Louie case is not so distinguishable from the present case. This Court in the Louie case adopted the view that compensation must be awarded where the orbit of the employment brings the workman to the place of danger, although only in retrospect can it be seen to have been a place of danger due to a human agency. This Court in the Louie case carried that view a step further by extending the causative factor of injury to the human agency of delusion of the insane mind seeking out the particular victim, rather than killing indiscriminately. In the Louie case, Hong entertained the delusion that Louie belonged to a tong which sought to kill Hong for certain reasons, which was an insane obsession. Hong entered the restaurant where Louie worked and fired three shots, one striking Louie. While the Court remarked that there was no evidence indicating that Hong was looking for Louie, the Court added: "It may, however, be of no significance as to whether or not said Hong was looking for Tom Louie at the time he shot him and had either a real or imaginary grievance against him. The fact remains that it was an accidental injury and under the Workmen's Compensation Law, claimant and appellant is entitled to receive compensation as a result of said injury." (Emphasis supplied.) This Court relied heavily upon the lunatic assault cases from the District of Columbia and Colorado, Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417, and London Guarantee & Accident Co. v. McCoy, 97 Colo. 13, 45 P.2d 900, and concluded: "* * * the injury was the result of a risk to which appellant was subjected in the course of his employment, and to which he would not have been subjected had he not been so employed. * * * It was his employment that placed him in the position and environment wherein he was assaulted and sustained the accidental injury." Hudson v. Roberts, supra, also recognizes that rule. The majority opinion cites Hawkins v. Portland Gas Light Co., 141 Me. 288, 43 A.2d 718; Wells v. Robinson Construction Co., 52 Idaho 562, 16 P.2d 1059; I.C., sec. 72-201, on the proposition that there must be a causal connection between the employment and the injury, which is true. There is a wealth of authority, however, as will be hereinafter shown, to the effect that the insane mind, by whomsoever possessed, whether by the stranger, the co-employee, or the employer, if causative of personal injury to a workman, compels compensation. *476 Where a workman receives personal injury during working hours upon the employer's premises, growing out of an assault by a drunken, crazy or insane person, the injury is compensable. Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712; Hudson v. Roberts, 75 Idaho 224, 230, 270 P.2d 837; Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417; Christiansen v. Hill Production Co., 262 App.Div. 379, 29 N.Y.S.2d 24; Katz v. A. Kadans & Co., 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401; Gargano v. Essex County News Co., 129 N.J.L. 369, 29 A.2d 879; Giracelli v. Franklin Cleaners & Dyers, 132 N.J.L. 590, 42 A.2d 3; Associated Employers Lloyds v. Wiggins, Tex.Civ. App., 208 S.W.2d 705; McLean's Case, 323 Mass. 35, 80 N.E.2d 40. Where the workman receives such injury inflicted by a drunken, crazy or insane co-employee, the injury is compensable. Perez v. Fred Harvey, Inc., 54 N.M. 339, 224 P.2d 524; Anderson v. Security Bldg. Co., 100 Conn. 373, 123 A. 843, 40 A.L.R. 1119; Chadwick v. White Provision Co., 82 Ga.App. 249, 60 S.E.2d 551. Where the workman receives such injury inflicted by a drunken, crazy or insane person, who was the employer while sane, the injury is compensable. Davis v. Bennett, D.C.Mo., 114 F.Supp. 790; Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28; Aetna Life Ins. Co. v. Windham, 5 Cir., 53 F.2d 984. Both the workmen's compensation law and the decisions of this Court admonish the Industrial Accident Board to make inquiries and investigations as shall be deemed necessary. I.C., sec. 72-604. In Nistad v. Winton Lumber Co., 59 Idaho 533, 537, 85 P.2d 236, 237, it is stated: "`It becomes the duty of the board to make full and exhaustive inquiry (citation), and to that end the board may not only examine any competent witness at the conclusion of his direct and cross examination upon all matters material and relevant to any issue, but it may also subpoena and examine other competent witnesses.'" Feuling v. Farmers' Co-operative Ditch Co., 54 Idaho 326, 334, 31 P.2d 683; Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 450, 74 P.2d 171; McGarrigle v. Grangeville Elec. L. & P. Co., 60 Idaho 690; 97 P.2d 402; Watkins v. Cavanagh, 61 Idaho 720, 107 P.2d 155; Dehlin v. Shuck, 63 Idaho 620, 124 P.2d 244; Lay v. Idaho State School, 64 Idaho 455, 133 P.2d 923; Hagadone v. Kirkpatrick, 66 Idaho 55, 58, 154 P.2d 181; Zipse v. Schmidt Bros., 66 Idaho 30, 37, 154 P.2d 171. The order of the Industrial Accident Board denying compensation should be reversed and the cause remanded to the Board with directions to reopen the proceeding and receive further evidence relating to the question of Searles' sanity at the time he shot and killed Devlin, and thereupon to make a finding thereon, and enter its order or award accordingly. TAYLOR, C.J., concurs in this dissent.

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671 F.Supp. 884 (1987) CIA. PETROLERA CARIBE, INC., Plaintiff, v. Victor De JESUS, Defendant, v. ISLA PETROLEUM CORPORATION, Third Party Defendants. Civil No. 87-0792 (JP). United States District Court, D. Puerto Rico. September 30, 1987. *885 Celso E. López, San Sebastián, P.R., for plaintiff. Victor M. Rivera Torres, Santurce, P.R., for defendant. OPINION AND ORDER PIERAS, District Judge. This is an action concerning a franchise agreement between an oil distributor, plaintiff, and a gasoline station operator, defendant. Plaintiff asks the Court to declare the parties' franchise agreement terminated; to recover possessions of a storage tank and canopy formerly leased to the defendant; and to award damages. Plaintiff alleges federal-question jurisdiction arising out of the PMPA, 15 U.S.C. § 2801, et seq. In his answer filed on September 4, 1986, defendant asked, inter alia, that the complaint be dismissed for lack of subject matter jurisdiction, because the claim does not arise under the PMPA. Plaintiff does not allege diversity of citizenship. This Court has federal-question jurisdiction only of civil cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. For plaintiff's claim to arise under the PMPA, it must meet one of three requirements: (1) the remedy plaintiff seeks must be expressly granted by the statute; (2) the issue plaintiff presents must require construction of the statute; or (3) the statute must embody a distinct policy that requires federal legal principles to control disposition. Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F.Supp. 800, 813 (D.P.R.1975). The federal question must appear on the face of a well-pleaded complaint; not through anticipation of a defense. Louisville and Nashville Railroad Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). If we find no basis for a federal question in the complaint, accepting plaintiff's averments at face value, we are obligated to dismiss the complaint under Rule 12(h)(3), Fed.R.Civ.P. We first address the question of the PMPA's granting of a remedy to the plaintiff, a "franchisor" under the Act. 15 U.S.C. § 2801(3). The PMPA's purpose is clear: it protects franchisees from the excessive power of gasoline distributors. Kostantas v. Exxon Co., U.S.A., 663 F.2d 605 (5th Cir.1981) cert. denied, 456 U.S. 1009, 102 S.Ct. 2302, 73 L.Ed.2d 1305 (1982). Section 2802(a) establishes the general rule that franchisors are precluded from terminating or failing to renew franchise agreements. Section 2802(b) defines the exceptions to that rule. In other words, when a franchisee sues to enforce § 2802(a), the franchisor can turn to § 2802(b) for defense to such an action. There is no indication, however, that these "defenses" create any entitlement or rights in the franchisor that can be vindicated in federal court. *886 Section 2805 contains the enforcement provisions of the PMPA, and it reinforces the conclusion that the Act confers federal jurisdiction only when the franchisee sues to prevent termination of an agreement: If a franchisor fails to comply with the requirements of § 2802 or 2803 of this title, the franchisee may maintain a civil action against the franchisor. Such action may be brought, without regard to the amount in controversy, in the district court of the United States ... 18 U.S.C. § 2805(a). There is no analogous provision allowing the franchisor to bring suit in a federal court. Neither did the Secretary of Energy interpret the Act to allow remedies to franchisors when he issued the summary of the Act pursuant to § 2804(d)(1). See Summary of Title I of the Petroleum Marketing Practices Act, 43 Fed.Reg. 38743, 45 (August 30, 1978). We likewise conclude that there is no express grant of remedy to the plaintiff in the PMPA. The other two tests of Comtronics fail to be satisfied in this case, as well. First, the PMPA is clearly not material to the plaintiff's demand to return possession of the storage tank and canopy. The claim is in the nature of an action for conversion, which is governed by local law, not federal. Second, plaintiff has offered no policy concerns, and we find none ourselves, that require us to assume jurisdiction. Because the remedy plaintiff seeks is not expressly granted by the PMPA and because the issue presented does not require construction of the PMPA, we conclude that the claim does not arise under 15 U.S.C. § 2801, et seq. There is therefore, no jurisdiction under 28 U.S.C. § 1331. Comtronics, 409 F.Supp. at 813. Under Rule 12(h)(3), we hereby DISMISS the present action. The Clerk shall enter Judgment accordingly. IT IS SO ORDERED.

965 A.2d 621 (2009) 113 Conn.App. 177 Catherine LEDERLE v. Stevan SPIVEY. No. 28838. Appellate Court of Connecticut. Argued January 6, 2009. Decided March 17, 2009. *623 Richard G. Kent, for the appellant (defendant). Gary I. Cohen, Greenwich, for the appellee (plaintiff). Mark H. Henderson, Stamford, guardian ad litem for the minor child. McLACHLAN, LAVINE and WEST, Js. McLACHLAN, J. In this dissolution of marriage action, the defendant, Stevan Spivey, appeals from the judgment of the trial court. On appeal, the defendant claims that the court improperly (1) permitted the plaintiff, Catherine Lederle, to relocate with their minor child to Virginia, (2) ordered him to pay a penalty for missed visitations, (3) awarded sole legal and physical custody to the plaintiff and (4) ordered him to maintain life insurance beyond the child's attainment of the age of majority. We affirm the judgment of the trial court. The court reasonably found the following relevant facts. The parties were married in Darien on December 31, 1998. The parties had one minor child, born April 29, 2000. The parties' marriage had broken down irretrievably, and there was no reasonable prospect of reconciliation.[1] The plaintiff was employed in marketing and sales, and her income was $210,000 in 2006.[2] Approximately six months after beginning work with her current employer, Lexmark, in 2004, the plaintiff's sales territory was changed from Danbury to Washington, D.C., Virginia, West Virginia and North Carolina. The plaintiff needed to be on-site during the sales process to facilitate the sale, to consult with customers and to observe the customer's work flow. The plaintiff also needed to be available to her customers after the installation of hardware to ensure that their systems functioned and to monitor for upgrades and the integration of new products. The plaintiff believed that if she was not permitted to relocate to Richmond, Virginia, she would be unable to compete for advancement in leadership and management roles within the company. If and when the plaintiff achieved a management position, she would be able to earn commissions on the basis of the sales of her subordinates. The defendant held jobs with at least eight different companies since the parties *624 married. At the time of judgment, the defendant worked as a sales representative and operated out of a home office. The defendant had two children, ages fifteen and nineteen, from his first marriage. The defendant's first divorce was acrimonious and led to disputes over the payment of child support and alimony during his second marriage. The defendant discussed with several people different ways of hiding income from his first wife as a method of reducing his financial obligations to her. Prior to trial, the defendant had been depositing his paycheck into his mother's bank account because, according to him, his bank account was seized by the Internal Revenue Service for tax liabilities.[3] The parties' child suffered from a number of medical problems, one of which caused seizures and could require prompt medical attention. Since the child's diagnosis in 2004, the plaintiff had observed seventeen to twenty seizures. She had developed, for school officials, babysitters, day care and other care providers, a package of information regarding symptoms, when emergency help must be sought, the names of the child's medical providers and emergency contact numbers. The defendant had never witnessed one of his son's seizures. The parties had disputes about their child's medications, with the defendant claiming that the plaintiff gave the defendant insufficient medicine, the plaintiff claiming that the defendant was not available for the exchange of medication,[4] one parent throwing the medication at the other and other similar claims. Their child witnessed some of the altercations between the parties regarding his medication. The parties also required court orders to determine when each could be present during a medical procedure that required the child to stay in the hospital for twenty-four hours. The parties also had disputes over the child's sports activities, his religious training, parenting time during the summer vacation prior to trial, a party scheduled during the defendant's parenting time and the subject of the child's "show and tell" at school. It is clear that the parties have different parenting styles, with the plaintiff being more protective and cautious than the defendant.[5] Attorney Mark H. Henderson was appointed the child's guardian ad litem by the court in 2005. Henderson met with both parties on several occasions, met with their child, made home visits and attended an appointment with the child's physician. Henderson considered the plaintiff to be the primary caregiver and the maker of decisions regarding religion, medical care and education. Henderson noted that the plaintiff was very well informed regarding her son's health, but the defendant "downplayed" the significance of his son's health issues. Henderson also observed that parental collaboration was very limited and that the defendant was *625 primarily responsible for the lack of timely resolution of parenting issues. Henderson recommended sole custody be awarded to the plaintiff.[6] Henderson also recommended that her request to relocate to Richmond, Virginia, be granted because (1) the employment opportunity was genuine, (2) the defendant did not financially support the child during the pendente lite period, (3) the plaintiff was legitimately anxious about the cost of living in Fairfield County, (4) the plaintiff had sufficient flexibility to make a long distance visitation schedule work, (5) the plaintiff was committed to continuing the father-son relationship despite the relocation and (6) the child was young enough to make the move and still enjoy a close relationship with the defendant. Phyllis Cummings-Texeira, a family relations counselor, completed a custody study recommending that if sole custody was awarded to one parent, the plaintiff should have sole custody. Cummings-Texeira concluded that the plaintiff was the primary caregiver, meeting the day-to-day and extraordinary needs of the child. Cummings-Texeira stated that relocation to Richmond, Virginia, was in the child's best interest because (1) the plaintiff was his primary caretaker, (2) the plaintiff had valid reasons to relocate, (3) the relocation was not an attempt to remove the child from the defendant to harm their relationship, (4) the plaintiff had concerns about providing a good, stable life for her son and concerns about the cost of living in Fairfield County, (5) the plaintiff wanted to move to advance her career and to have job stability, (6) the plaintiff had concerns about being able to pay her child's medical expenses and (7) although the defendant was not ordered to, he did not pay child support or pay any of the child's medical expenses of approximately $18,000. The court found that it was in the child's best interest to have the plaintiff serve as the sole custodial parent. The court stated that the defendant loved his son, but "as evidenced by his communication and inability to co-parent with the plaintiff, he is angry and self-absorbed and has also deprived [his son] of financial resources." The court also found that the defendant "[was] not always attuned to the child's emotional needs." The court found that the plaintiff "has always had a loving and affectionate relationship with the child and, since [he] was born, has fully met all of his day to day needs. Moreover, compared with the defendant, she is more nurturing and supportive in her parenting style, more aware of the child's medical, emotional and psychological needs and more responsive to his overall needs. Finally, the plaintiff will not hinder the relationship between father and son, whereas the defendant's refusal to compromise on parenting issues will end in a stalemate with [his son] being left in limbo until a court makes a decision." The court also found that "the defendant's conduct during the entire course of litigation shows him to be untrustworthy and unreliable in his financial dealings with the plaintiff. The defendant was not candid in his financial disclosures to the court or the plaintiff, he was not candid in his financial disclosures to his first wife, and the court has no evidence that his behavior will not continue unabated until the child reaches adulthood.... [The defendant] has been vindictive toward [the plaintiff] in making parenting decisions, exchanging medicine and the like, without regard of the effect his behavior would ultimately have on his son." *626 The court also found that "the defendant has both the means and opportunity to maintain frequent contact with [his son].... The defendant has changed jobs nearly every year during the course of the marriage and currently works from his home. Nothing about the nature of his business limits its geographical reach. He has sufficient financial resources to go to Virginia frequently to see his child and sufficient control over his work schedule to do so. The court's orders regarding his parenting time will thus offer him significant access to his son and will not marginalize his role as a father." The court also found testimony persuasive that "the plaintiff will do a good job of helping [her son] integrate into his new environment. The plaintiff's nurturing and supportive style will help the child through the transition. Although close to his father's relatives [in Connecticut, the child] will be close to his extended maternal family in Virginia.... [The child] has been cared for by his maternal grandparents, on whom the plaintiff will sometimes rely for child care in Virginia." The court found that it was in the best interest of the child to relocate to Richmond, Virginia, with the plaintiff. "The child's own interests in sustained growth, development, and well-being require that the custodial parent be able to offer him a secure and stable home life, unfettered by the financial instability and constant acrimony and disputes regarding parenting decisions she would likely endure by remaining [in Connecticut]." The court ordered the dissolution of the parties' marriage, awarded sole legal and physical custody of the child to the plaintiff with liberal and reasonable visitation for the defendant and permitted the plaintiff to move to Richmond, Virginia. I The defendant first claims that the court abused its discretion by ordering that the plaintiff could relocate to Richmond, Virginia, with the minor child.[7] Specifically, the defendant claims that the record did not support a finding that the move was in the child's best interest.[8] We disagree. *627 "Our standard of review of a trial court's decision regarding custody, visitation and relocation orders is one of abuse of discretion.... [I]n a dissolution proceeding the trial court's decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear.... The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child.... In determining what is in the best interests of the child, the court is vested with a broad discretion.... [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court.... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.... "The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.... [E]very reasonable presumption should be given in favor of the correctness of [the trial court's] action.... We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence." (Citations omitted; internal quotation marks omitted.) Ford v. Ford, 68 Conn. App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). Prior to Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), "the courts utilized the best interest of the child standard, as set forth in § 46b-56 (b), in deciding relocation issues. Section 46b-56 (b) provides in relevant part: In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the *628 child...."[9] (Internal quotation marks omitted.) Ford v. Ford, supra, 68 Conn. App. at 177, 789 A.2d 1104. In Ford, we recognized that the interests present in a postjudgment proceeding to modify custody are not the same as those present during a trial for the dissolution of a marriage. Id., at 179-81, 789 A.2d 1104. We therefore concluded that the "scheme in Ireland, and the additional [factors under Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996)][did] not pertain to relocation issues that arise at the initial judgment for the dissolution of marriage. Rather ... Ireland is limited to postjudgment relocation cases.... [B]ecause the Ireland court did not expand its holding to affect all relocation matters, relocation issues that arise at the initial judgment for the dissolution of marriage continue to be governed by the standard of the best interest of the child as set forth in § 46b-56. While the Ireland factors[10] may be considered as `best interest factors' and give guidance to the trial court, they are not mandatory or exclusive in the judgment context."[11]Ford v. Ford, supra, 68 Conn.App. at 184, 789 A.2d 1104. Section 46b-56 (c) directs the court, when making any order regarding the custody, care, education, visitation and support of children, to "consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors.... The court is not required to assign any weight to any of the factors that it considers."[12] *629 The defendant claims that the court improperly permitted the plaintiff to relocate to Virginia with the parties' minor son. The defendant argues that "there was a pronounced lack of evidence that the best interests of the child would be served or advanced by having to move to Virginia." We disagree. In support of his argument, the defendant refers, inter alia, to (1) the court's finding that the child has close ties with both parents, (2) the deposition testimony of the plaintiff's direct supervisor that she would not lose salary if she did not relocate,[13] (3) evidence that the plaintiff had a successful career while living in Connecticut, (4) the court's statement that the defendant did not pay child support pendent lite or contribute to medical expenses,[14] (5) the court's finding that the defendant had never witnessed one of the child's seizures, (6) the court's finding that if the minor child continued to live in Connecticut, he would be a pawn in the defendant's power struggle with the plaintiff for a considerable period of time, (7) the court's finding that the defendant was untrustworthy and unreliable in his financial dealings with the plaintiff and the court's statement that it had no evidence that the defendant's behavior would change before the child reached adulthood, (8) the court's finding that the defendant had the means and opportunity to conduct visitation in Virginia and (9) the court's failure to do an in-depth analysis of each of *630 the defendant's reasons for opposing the relocation.[15] The defendant essentially requests that we reassess and reweigh the evidence in his favor. We decline to do so. "Once again, this court is compelled to state, what has become a tired refrain, we do not retry the facts or evaluate the credibility of witnesses. Bowman v. Williams, 5 Conn.App. 235, 238, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986), and cases cited therein." (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn.App. 541, 555, 920 A.2d 316 (2007). There is ample evidence in the record[16] to support the court's findings of fact, and we cannot say that the weight given to those facts amounted to an abuse of the court's discretion. II Second, the defendant claims that the court improperly ordered him to pay a penalty for missed visitation.[17] We decline *631 to review this claim because the defendant has failed to present his claim adequately for our review. The court entered the following order with regard to child support: "If [the defendant] exercises his visitation as ordered by the court ... the court is not ordering the [defendant] to pay weekly child support. The court notes that under the Connecticut child support guidelines, his child support would be $161 per week, and he would contribute 31 [percent] toward the child's medical expenses and work-related day care expenses. The court is not making a weekly child support award at this time due to the extraordinary expenses the [defendant] will incur in exercising his visitation rights long distance. If, however, the [defendant] fails to exercise his visitation... he shall pay child support in the amount of $346 for each missed visit (in essence, two weeks of child support)." "The duty to provide this court with a record adequate for review rests with the appellant.... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061 [now § 60-5].... It is not the function of this court to find facts.... Our role is ... to review claims based on a complete factual record developed by a trial court." (Internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 821, 960 A.2d 1113 (2008). The defendant again relies on his argument that the court excused him from his support obligation of approximately $8000 each year only to cause him to pay $25,000 for visitation and $346 for each missed visit. The defendant has not provided any citations to the record that would support his factual claims. Without the necessary factual findings of the court, our analysis of the defendant's claim would be mere speculation. Additionally, the problems presented by the inadequate record are exacerbated by the fact that the defendant's brief was so scant. The defendant has provided no legal authority for his claims, save for references to cases that he argues state that (1) child support payments may not be eliminated as punishment for interference with visitations, (2) alimony may not be contingent on sobriety, (3) support payments may not be conditioned on the right of visitation and (4) visitation may not be conditioned on the payment of child support. The defendant then simply declares that the court's order imposes a penalty and is improper. "[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.... Where the parties cite no law and provide no analysis of their claims, we do not review such claims." (Internal quotation marks omitted.) Rozbicki v. Statewide Grievance Committee, 111 Conn.App. 239, 240 n. 2, 958 A.2d 812 (2008), cert. denied, 290 Conn. 908, 964 A.2d 544 (2009). Accordingly, we decline to review this claim. III The defendant's third claim is that the court improperly awarded sole legal and physical custody to the plaintiff. The defendant argues that the court awarded sole custody to the plaintiff because it believed *632 neither party had requested joint custody. The defendant, however, has provided no factual basis for his claim.[18] Accordingly, we cannot conclude that the court's award of sole legal and physical custody to the plaintiff was improper.[19] IV Finally, the defendant claims that the court improperly ordered him to maintain life insurance after the child attains the age of majority. The defendant argues that the court exceeded its jurisdiction by ordering the maintenance of life insurance "to protect the future financial support of the minor child if either parent dies prior to their son reaching the age of majority or completing his postsecondary education." (Emphasis in original.) The defendant argues that the court's order is improper because it "simply suggested that the life insurance should be continued until the child complete[s] college, regardless of whether any educational support order [is] ever entered...." The defendant's claim implicates General Statutes §§ 46b-56c, 46b-82 and 46b-84. "Construction of a statute calls for the plenary standard of review.... In fashioning its financial orders [however] the court has broad discretion, and [j]udicial review of a trial court's exercise of [this] broad discretion ... is limited to the questions of whether the ... court correctly applied the law and could reasonably have concluded as it did.... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court's] action.... That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties." (Citation omitted; internal quotation marks omitted.) Crews v. Crews, 107 Conn.App. 279, 300, 945 A.2d 502, cert. granted on other grounds, 288 Conn. 901, 952 A.2d 809 (2008). The defendant's claim is governed by our holding in Crews. In that case, we concluded that when the court retains jurisdiction over educational support orders, the court may provide for assurance of that support with life insurance. "Because the statutory scheme anticipates that a dissolution may occur in advance of the time postsecondary educational decisions appropriately can be made, it provides a mechanism for the court to retain jurisdiction for the purpose of ordering educational support for adult children." Id., at 302, 945 A.2d 502. "[D]ecisions about postsecondary education usually occur at about the time a person becomes eighteen years of age. The defendant does not argue that the court abused its discretion by requiring him to maintain life insurance for the benefit of his children while they are minors. The court did not abuse its discretion, *633 therefore, by issuing a financial order that would secure any educational support order that might be entered in the future, at about the time the children become eighteen and are making decisions about their educational futures. It is often said that common sense is not left at the courthouse door.... As a matter of judicial economy, it would not be practical to require the defendant to maintain life insurance for the benefit of a minor child, terminate it when the child becomes eighteen and reinstitute it some months later when the adult child matriculates at a postsecondary educational institution as the beneficiary of an educational support order. See General Statutes § 46b-56c (g)(3)." (Citation omitted.) Crews v. Crews, supra, 107 Conn.App. at 304, 945 A.2d 502. In Crews, we noted that the court's life insurance order was ambiguous because it might improperly have required the defendant "to provide insurance for the benefit of one of his children who reaches the age of majority and is not the beneficiary of an educational support order." Id., at 307-308, 945 A.2d 502. In the present case, however, we find that the court's order of postmajority life insurance is clearly tied to a future educational support order. Although we agree that it would be better if the court explicitly had stated that the life insurance must be permitted to lapse if such an educational support order is not entered, we can find no other intent on the part of the court. Accordingly, we conclude that the court's life insurance order was proper. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] Practice Book § 67-4(c) requires an appellant to include in its brief: "A statement of the nature of the proceedings and of the facts of the case bearing on the issues raised. The statement of facts shall be in narrative form, shall be supported by appropriate references to the page or pages of the transcript or to the document upon which the party relies, and shall not be unnecessarily detailed or voluminous." The defendant included a statement of facts of less than one page that did little more than provide an extremely cursory recitation of some procedural history. It is important to note that "[b]y complying substantially with Practice Book § 67-4, appellants better enable this court to consider their claims with efficiency and judiciousness." Cichocki v. Quesnel, 74 Conn.App. 299, 301 n. 2, 812 A.2d 100 (2002). "While a failure to comply fully with [Practice Book § 67-4(c)] may preclude appellate review ... such review, while more difficult, may nevertheless be appropriate." (Internal quotation marks omitted.) Cable v. Bic Corp., 79 Conn.App. 178, 179 n. 1, 830 A.2d 279 (2003), aff'd, 270 Conn. 433, 854 A.2d 1057 (2004). The plaintiff provided no statement of the nature of proceedings or of the facts in her brief. [2] In 2004 and 2005, the plaintiff earned $57,969 and $81,023, respectively. [3] In 2003, the parties did not have taxes withheld from the plaintiff's income for cash flow reasons. The plaintiff believed that the defendant had filed appropriate extensions and payment plan applications until her 2005 tax refund was seized by the Internal Revenue Service and she was billed $17,000. [4] The child's school did not allow prescription medications to be exchanged via a child. [5] The plaintiff objected to the defendant's decision to allow the child to swim without adult supervision, go out on a lobster boat, help load a wood stove and ride a razor scooter. The plaintiff was also concerned about the child's access to power tools in the defendant's house. The court stated that "[w]hile her complaints might be minor with most children, the fact that [the child] suffers from epilepsy is often minimized or ignored by [the defendant]." [6] Henderson's recommendation was based, in part, on the parties' pretrial requests for sole custody, which would prevent the court from awarding joint custody. [7] The defendant argues that "[t]he record, viewed as a whole, does not furnish the compelling evidence necessary to determine that the proposed move was for a legitimate purpose and in the best interests of the child." (Emphasis added.) We have never required such a finding by the court to be supported by "compelling evidence," and the defendant has provided no argument for adopting that standard. Instead, we review the court's decision to determine whether it abused its discretion. See Ford v. Ford, 68 Conn.App. 173, 187, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). Additionally, the defendant claims that the record did not support a finding that the move had any legitimate purpose. As set forth below, this inquiry, part of the burden shifting scheme announced in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), has no place in a relocation issue that is part of an initial dissolution proceeding. See Ford v. Ford, supra, 68 Conn.App. at 184, 789 A.2d 1104. [8] We note that the defendant devotes nearly thirty pages of his brief to this claim and includes multitudinous claims and arguments with little factual reference or legal analysis. Those which are not discussed were not sufficiently presented for our review, and we decline to address them. See, e.g., State v. DeJesus, 288 Conn. 418, 470 n. 33, 953 A.2d 45 (2008). In his statement of issues, the defendant's first three issues are: "(1) Did the trial court err in allowing the plaintiff to relocate with the parties' minor child from New Canaan, Connecticut to Richmond, Virginia? (2) Did the trial court err in requiring the defendant, a resident of Connecticut, to exercise all of his semi-monthly visitation rights with the minor child in the [Commonwealth] of Virginia as opposed to Connecticut? (3) Did the trial court err in granting the plaintiff's request for permission to relocate from Connecticut to Virginia against the defendant's wishes and yet imposing upon the defendant the entire cost of the defendant's visitations with the minor child in Virginia as well as round-trip travel expenses of the minor child to and from Connecticut?" The defendant folded all three inquiries into his first argument section, stating that the court erred in permitting the plaintiff to relocate and in ordering him to visit his child only in Virginia and to pay all costs of visitation. In this argument section, the defendant advances a complicated calculation of the costs of round trip airfare, hotel rooms, car rentals, meals, entertainment, etc., that he would incur as a result of the visitation orders. His calculations, however, contain no citations to the record and are couched in terms such as "[i]f one assumes that the average round-trip flight would be $250...." We are not at liberty to make such assumptions. As an appellate court, we are not permitted to find new facts. Blatt v. Board of Assessment Appeals, 63 Conn.App. 512, 515, 776 A.2d 1187 (2001). The defendant had the opportunity to present evidence of those costs at trial. He may not raise them for the first time on appeal. See, e.g., Griswold Airport, Inc. v. Madison, 289 Conn. 723, 726 n. 4, 961 A.2d 338 (2008). Furthermore, we can discern no legal analysis contained within the discussion of the supposed expenses. Accordingly, we decline to review his claim. See Knapp v. Knapp, 270 Conn. 815, 823 n. 8, 856 A.2d 358 (2004). In addition, the defendant argues that the court gave no consideration to whether the plaintiff's goals could be achieved by relocation to a town such as Newark, Delaware. The defendant, however, provides no reference to any time when he raised such an argument before the court. Accordingly, we must presume that no such argument was raised at trial. The defendant may not raise such an argument for the first time on appeal. See, e.g., Griswold Airport, Inc. v. Madison, supra, 289 Conn. at 726 n. 4, 961 A.2d 338. [9] General Statutes § 46b-56d was enacted in Public Acts 2006, No. 06-168, after our decision in Ford. Section 46b-56d (a) provides: "In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child." (Emphasis added.) By its terms, § 46b-56d is limited to proceedings following a judgment awarding custody of a child and does not apply to the present case. [10] Although General Statutes § 46b-56d (a) removed the burden shifting scheme set out in Ireland, the Ireland factors were essentially codified by § 46b-56d (b). [11] The enactment of General Statutes § 46b-56d clearly changed the analysis and the burden allocation in postjudgment relocation cases, but there is no indication that the legislature intended it to apply to relocation matters resolved at the time of the initial judgment for the dissolution of a marriage. [12] The factors set forth in General Statutes § 46b-56 (c) are: "(1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b." [13] The deposition testimony of the plaintiff's supervisor made clear that the plaintiff received a base salary and commissions. Her employer also testified that the plaintiff received a raise to her salary on the basis of the high cost of living in Connecticut. The defendant argues that "[t]he court had no basis for determining that the cost of living would be less in Virginia other than the unsupported impressions held by [the] plaintiff. In fact, the testimony of the plaintiff's supervisor ... suggests the opposite, namely, that from a cost-of-living standpoint, the move to Virginia would adversely affect the plaintiff economically." The defendant misconstrues the import of the testimony on which he relies; the supervisor's testimony indicated that Lexmark believed that the cost of living in Connecticut to be so high as to warrant an increase in salary. Although it is clear that the plaintiff's forfeiture of that increase, by moving to Virginia, would cause a decrease in her base salary, the defendant has not provided us with sufficient references to the evidence from which we could evaluate the court's determination of how the plaintiff's overall compensation related to the plaintiff's overall cost of living. In addition, the court may reasonably have determined that the plaintiff's increased access to her customers would result in increased compensation from commissions and offset any loss of base salary. [14] The defendant argues that the court "apparently condemned" him for not making support payments that were never requested or ordered. The defendant's references to the court's decision, however, lead only to its finding that Cummings-Texeira "noted that [the defendant] did not pay child support pendent lite" and that Cummings-Texeira recommended relocation in part because "although [the defendant was] not in violation of any court order for child support ... [he] did not voluntarily pay any child support, and the [plaintiff] was solely responsible for [the child's] medical expenses which were approximately $18,000." We fail to see how this recitation of testimony constitutes the apparent condemnation that the defendant perceives. [15] The defendant argues in his brief: "The court's bias against [the] defendant, or in favor of [the] plaintiff, is evident throughout the court's memorandum and was similarly apparent in the manner in which the proceedings were conducted.... The court clearly was not focused on the best interests of the child, but rather on criticizing the defendant." It is clear from the defendant's argument that his claim stems primarily from his conclusion that the court's findings of fact and orders were adverse to him. The defendant did not file a motion for a recusal, disqualification or mistrial on the ground of bias. It is well settled that "[a]dverse rulings do not themselves constitute evidence of bias. State v. Fullwood, 194 Conn. 573, 582, 484 A.2d 435 (1984). Obviously, if a ruling against a party could be used as an indicia of bias, at least half of the time, every court would be guilty of being biased against one of two parties. Moreover, the fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias. Bieluch v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8 (1986)." (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn.App. 8, 26, 961 A.2d 1016 (2009). We again remind attorneys that "[a] charge of ... bias against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge's personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased. Attorneys should be free to challenge, in appropriate legal proceedings, a court's perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record." (Internal quotation marks omitted.) Id., at 26-27 n. 10, 961 A.2d 1016. After a review of the record, we can find nothing to substantiate the defendant's claim or lead us to question the court's impartiality in this case. [16] We note that in her brief, the plaintiff referenced deposition testimony that was not in evidence. In his reply brief, the defendant contested the plaintiff's discussion of that testimony and included additional analysis of the testimony. Because it was never made part of the record, we have not included that testimony in our review of the evidence. [17] Neither party has provided any authority that permits or prohibits the court's prospective reduction, pro rata, of child support payments tied to actual attendance at visitation. We do not today endorse such orders but find the current record and argument insufficient to require the reversal of the court's judgment. Additionally, we note that General Statutes § 46b-86 (a) may provide a more appropriate vehicle in such cases, by allowing a motion for modification of child support "upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate." A decision based upon such a motion has the benefit of a record of the parties' actions and the reasons for those actions, a record which is necessarily lacking in a prospective order. See, e.g., Gaffey v. Gaffey, 91 Conn.App. 801, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005). [18] The defendant cites to a page of the court's memorandum of decision as support for his claim, but we can observe only that it contains the following statement: "[The guardian ad litem] recommended that the court award sole custody to the plaintiff wife. He made this recommendation because prior to trial neither party had requested joint custody." (Emphasis added.) We note that it is clear from the record that neither party requested joint custody until the defendant amended his cross complaint during trial. We cannot construe the court's statement as anything other than a recitation of the facts on which the guardian ad litem based his recommendation. [19] The defendant has provided no other argument in support of his claim that the court's custody order was improper.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0731n.06 No. 13-4433 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 18, 2014 DEBORAH S. HUNT, Clerk MATIAS SOLOMON TADESSE, ) ) Petitioner, ) ON PETITION FOR REVIEW ) OF A FINAL ORDER OF THE v. ) BOARD OF IMMIGRATION ) APPEALS ERIC H. HOLDER, JR., United States ) Attorney General, ) ) OPINION Respondent. ) ) BEFORE: MOORE and COOK, Circuit Judges; STEEH, District Judge. KAREN NELSON MOORE, Circuit Judge. Matias Solomon Tadesse, a native and citizen of Ethiopia, petitions for review of a Board of Immigration Appeals (“BIA”) decision denying his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied Tadesse’s application because it found Tadesse not credible, and the BIA affirmed this decision by adopting the IJ’s order and providing additional support for the IJ’s adverse credibility determination. On appeal, Tadesse argues that the IJ and BIA failed to consider Tadesse’s explanations for inconsistencies in his testimony and seeks a remand so the IJ can determine  The Honorable George C. Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation. No. 13-4433 Tadesse v. Holder whether, after consideration of the totality of the circumstances, Tadesse is credible. Because the BIA’s adverse credibility determination is supported by substantial evidence, we DENY Tadesse’s petition for review. I. BACKGROUND A. Factual Background Matias Tadesse was never active in Ethiopian politics. Administrative Record (“A.R.”) at 170 (Hr’g Tr. at 58). His father, however, was an active member of a political party called the Coalition for Unity and Democracy—a party that opposed the ruling government in Ethiopia. Id. at 130‒31 (Hr’g Tr. at 18‒19); A.R. 246‒51 (Hr’g Exhibit C). Tadesse’s father unsuccessfully ran as a candidate for political office in 2005, and following the election, was imprisoned by the government for almost two years because of his membership in the opposition party. A.R. 132 (Hr’g Tr. at 20). According to Tadesse, the government released his father from prison only because he became very sick. Id. Tadesse’s father died on December 20, 2007, just weeks after his release from prison. Id. at 132, 136 (Hr’g Tr. at 20, 24); A.R. 243 (Hr’g Exhibit B). Despite not being involved in politics himself, Tadesse testified that after his father’s death the government began to harass Tadesse because it believed he was “following [his] father’s path.” A.R. 132‒33 (Hr’g Tr. at 20‒21). According to Tadesse, police regularly followed him home from school, shoved and threw him to the ground, blocked his path with police vehicles, and threatened to kill him. Id. 2 No. 13-4433 Tadesse v. Holder In addition to the government, Tadesse testified that an opposition group made up of guerrilla fighters known as the Patriotic Front began harassing him in early 2006. Id. at 134 (Hr’g Tr. at 22). This group wanted Tadesse to join their opposition movement to fight the government and avenge his father’s death. Id. Tadesse testified that he refused to join. Id. at 135 (Hr’g Tr. at 23). As a result, Tadesse was abducted by the group and taken at gunpoint to a training camp in the jungle where he was forced to participate in training activities. Id. at 135‒ 39 (Hr’g Tr. at 23‒27). When he refused to train, Tadesse testified that he was severely beaten with a stick. Id. at 139 (Hr’g Tr. at 27). After about one week at the training facility, Tadesse and a man named Yusef, an individual Tadesse had known prior to his abduction, escaped from the camp. Id. at 140‒41 (Hr’g Tr. at 28‒29). Following their escape, Tadesse hid in his house for days out of fear that his abductors were looking for him. Id. at 142 (Hr’g Tr. at 30). Although the guerrilla fighters never came for him, Tadesse claims that Yusef was shot dead while on his front porch just a week after their escape by the same guerrilla fighters who abducted them. Id. at 142‒43 (Hr’g Tr. at 30‒31). Tadesse did not tell the police about the abduction because he feared the government would think that he joined an opposition party. Id. at 143 (Hr’g Tr. at 31). After discussing the details of his abduction with his mother, Tadesse left his home to live with his aunt in the Ethiopian city of Addis Ababa to hide from the government. Id. at 142‒ 44 (Hr’g Tr. at 30‒32). During that time, Tadesse helped serve as an interpreter for an aid worker from Boston, Massachusetts. Id. at 144 (Hr’g Tr. at 32). Through sponsorship from the 3 No. 13-4433 Tadesse v. Holder aid worker, Tadesse was able to come to the United States as a visitor on August 18, 2008. Id. at 144‒45 (Hr’g Tr. at 32‒33). Tadesse testified that he stayed at his sponsor’s home in Boston for about a month before moving to Columbus, Ohio. Id. at 145 (Hr’g Tr. at 33). In Columbus, Tadesse attended high school and lived with a man named Seifu Begashaw, who promised to help Tadesse apply for asylum in the United States. Id. at 145‒46 (Hr’g Tr. at 33‒34). But, despite Tadesse’s requests for help, Begashaw would not assist Tadesse with his asylum application. Id. at 147‒48 (Hr’g Tr. at 36‒37). B. Procedural History In February 2010, Tadesse filed an Application for Asylum and for Withholding of Removal. A.R. 394 (I-589 Form at 1). In his application, Tadesse stated that he sought asylum and withholding of removal based on political opinion and the Convention Against Torture. Id. at 398 (I-589 Form at 5). Two months later, Tadesse was served a Notice of Hearing in Removal Proceedings. A.R. 453 (Notice of Hearing). At his removal hearing, Tadesse did not contest that he remained in the United States without authorization and was thus subject to removal. A.R. 119 (Hr’g Tr. at 7); A.R. 454 (Notice to Appear). Tadesse testified, however, that he was seeking asylum in the United States because he believed that his father’s political opinion had been imputed to him, and he was afraid to return to Ethiopia because the Ethiopian government would make him suffer, torture him, or “even kill [him.]” A.R. 125, 152, 156 (Hr’g Tr. at 13, 40, 44). He testified that his family in Ethiopia is not safe, noting that his mother was recently arrested and his brother has been threatened by the police. Id. at 153‒54 (Hr’g Tr. at 41‒42). 4 No. 13-4433 Tadesse v. Holder The Immigration Judge (“IJ”) did not find Tadesse to be a credible witness. A.R. 95 (Oral Decision of the IJ at 16). The IJ determined that Tadesse’s testimony “was internally inconsistent” and “conflicted with his supporting documentation,” and his answers on cross- examination “ were evasive and were non-responsive.” Id. at 95‒96 (Oral Decision of the IJ at 16‒17). In support, the IJ presented “a representative, but not necessarily exhaustive list of inconsistencies in [Tadesse’s] testimony.” Id. at 96 (Oral Decision of the IJ at 17). These included the following: (1) Tadesse testified that the Patriotic Front abducted him in September 2007 to “avenge his father’s death,” but then “changed his testimony” on cross-examination to state that he was abducted in late 2007 when it was noted that his father died in December 2007, id. at 96 (Oral Decision of the IJ at 17); (2) Tadesse testified that he was beaten at the training camp, but this was not in his personal statement or asylum application, id. at 97 (Oral Decision of the IJ at 18); (3) Tadesse testified that when he arrived in the United States he stayed in Boston for one month, but then later testified that he went directly to Columbus, and his personal statement said he traveled to Atlanta, Georgia before moving to Columbus, id.; (4) Tadesse testified that when he lived in Columbus, Begashaw “didn’t want me to have contact with other people or even leave the house,” but Begashaw enrolled Tadesse in a public high school, id. at 97–98 (Oral Decision of the IJ at 17–19); (5) Tadesse was “evasive and non-responsive” when asked about the physical harm he received from government agents or police, id. at 98 (Oral Decision of the IJ at 19); (6) Tadesse testified that Yusef was killed by guerrilla fighters one week after they escaped from the training camp in 2007, but his mother wrote a letter stating that Yusef was shot for selling t-shirts during a peaceful demonstration in 2005, id.; and (7) Tadesse gave conflicting testimony about the contents of his visa application—first, he stated that he knew the contents of his visa application, but then during cross- 5 No. 13-4433 Tadesse v. Holder examination testified that he did not understand what a visa application even is, id. at 98‒99 (Oral Decision of the IJ at 19‒20). Based on these findings, the IJ denied Tadesse’s application. The IJ also found Tadesse’s application untimely, and it determined that Tadesse had offered insufficient evidence to support his claim that he experienced past persecution or had a well-founded fear of future persecution based on political opinion, or that he would be tortured if returned to Ethiopia. Id. at 100‒08 (Oral Decision of the IJ at 21‒29). The BIA affirmed the IJ’s adverse credibility determination and dismissed Tadesse’s appeal. The BIA held that the IJ based its credibility determination on “specific, cogent reasons” and cited as examples a number of the above “inconsistencies” to support this holding. A.R. 3‒4 (BIA Decision at 1‒2). In addition to these inconsistencies, the BIA found that Tadesse’s testimony that he lived with his aunt in Addis Ababa for one year before coming to the United States conflicted with his asylum application, which stated that he lived in Addis Ababa from March 2008 to August 2008. Id. at 4 (BIA Decision at 2). The BIA also found that Tadesse had not provided sufficient evidence to show that he would be tortured if he returned to Ethiopia. Id. at 4‒5 (BIA Decision at 2‒3). Because it upheld the IJ’s credibility determination, the BIA did not address whether Tadesse’s application was timely. Id. at 5 (BIA Decision at 3). This appeal followed. 6 No. 13-4433 Tadesse v. Holder II. STANDARD OF REVIEW On appeal, Tadesse challenges the IJ’s and BIA’s credibility determinations.1 “Where the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). “To the extent the BIA adopted the immigration judge’s reasoning, however, this Court also reviews the immigration judge’s decision.” Id. All legal determinations made by the IJ or BIA are reviewed de novo. Id. “[C]redibility determinations are considered findings of fact and are reviewed under the substantial evidence standard.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011) (citing Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004)). Under this deferential standard, “[w]e will reverse a credibility determination only if any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (citing Pergega v. Gonzales, 417 F.3d 623, 627 (6th Cir. 2005)). Thus, we cannot reverse the IJ’s or BIA’s credibility findings simply because we would have decided the issue differently. Abdramane v. Holder, --- F. App’x ----, No. 12-3199, 2014 WL 2766543, at *3 (6th Cir. June 18, 2014). 1 Tadesse does not appeal the BIA’s holding that he provided insufficient evidence that he would be tortured if returned to Ethiopia. And while Tadesse initially contested the IJ’s ruling that his application was untimely, he dropped that challenge in his reply brief because the BIA had not rested its decision on timeliness. Petitioner Reply at 11‒12. Thus, these issues are not before us on appeal. 7 No. 13-4433 Tadesse v. Holder III. ANALYSIS The issue on appeal is whether the IJ’s and BIA’s adverse credibility determinations are supported by substantial evidence. Because Tadesse filed his asylum application in 2009, the “stricter review” of credibility determinations provided by the REAL ID Act of 2005, Pub.L. No. 109–13, 119 Stat. 302, applies. El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir. 2009). “Under the REAL ID Act, credibility determinations are based on the ‘totality of the circumstances’ and take into account ‘all relevant factors.’” Id. (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The statute includes as relevant factors: the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. 8 U.S.C. § 1158(b)(1)(B)(iii). “The same credibility standard applies to claims for asylum, withholding of removal, and for relief under the torture convention.” El-Moussa, 569 F.3d at 256 (citing 8 U.S.C. § 1229a(c)(4)(C)). Tadesse argues that the IJ’s and BIA’s adverse credibility determinations were improper because they ignored Tadesse’s explanations for the “perceived inconsistencies” in his testimony, which is contrary to the “totality of circumstances” test set forth in § 1158(b)(1)(B)(iii). Petitioner Br. 9‒10. In particular, Tadesse claims that the IJ and BIA failed 8 No. 13-4433 Tadesse v. Holder to consider “the difficulty Tadesse had in converting dates from the Ethiopian to American calendar or its role in the creation of inconsistencies in his testimony, though the explanation was raised by Tadesse, [witness Tsegaye] Negera, and counsel.” Id. at 19‒20. Instead, Tadesse argues that the IJ simply found his testimony not credible by “cherry-picking” facts that supported an adverse credibility finding. Id. at 16, 22‒23. Tadesse argues that because the process by which the IJ arrived at his credibility determination was flawed, remand is necessary to determine Tadesse’s credibility after proper consideration of the “totality of the circumstances.” Petitioner Reply at 2. Tadesse’s arguments fail because they overlook the relevant standard—we must affirm an adverse credibility determination that is based on substantial evidence. Hachem, 656 F.3d at 434. Contrary to Tadesse’s position, this is true regardless of whether all of the bases for an adverse credibility determination have merit or were properly considered by the IJ or BIA. See, e.g., Ndrecaj v. Mukasey, 522 F.3d 667, 675 (6th Cir. 2008) (“[W]e cannot say that the evidence compels a conclusion at odds with the IJ’s [credibility] decision” even though “[m]ost of the inconsistencies that the IJ mentioned were irrelevant or not even inconsistencies at all.”); see also Al Ameri v. Holder, 361 F. App’x 641, 645 (6th Cir. 2010) (“[S]o long as one of the identified grounds [for the adverse credibility finding] is supported by substantial evidence, we must accept the IJ’s determination”) (internal quotation marks omitted) (alteration in original) (quoting Yang Lin v. Holder, 320 F. App’x 428, 432 (6th Cir. 2009)). Indeed, here the IJ and BIA specifically listed a number of inconsistencies in their credibility findings that have nothing 9 No. 13-4433 Tadesse v. Holder to do with Tadesse’s difficulty remembering relevant dates. Yet, Tadesse largely ignores these inconsistencies in his appeal. For example, the differences between the Ethiopian calendar and the Gregorian calendar used in the United States do not explain the inconsistency between Tadesse’s claim that Yusef was shot by guerrilla fighters in front of his home in 2007 just a week after their escape from a training camp, A.R. 142‒43 (Hr’g Tr. at 30‒31), and his mother’s letter, which stated that Yusef was shot in 2005 for selling t-shirts during a peaceful protest, A.R. 262 (Hr’g Exhibit D). Tadesse did not testify that this inconsistency was based on the differences between calendars. A.R. 177 (Hr’g Tr. at 65). Moreover, there is little doubt that Tadesse and his mother were talking about the same person—Tadesse testified that he had one friend named Yusef, id. at 165 (Hr’g Tr. at 53), and he consulted with his mother following his abduction and told her “all the things that happened” leading up to his move to Addis Ababa, id. at 142, 176 (Hr’g Tr. at 30, 64). Given the significance of a friend being gunned down on his front doorstep just days after escaping the abductors’ camp, by the same guerrilla fighters who abducted Tadesse, we would expect that Tadesse’s testimony would be corroborated by—or at least not conflict with—his mother’s letter. In addition, Tadesse fails to contest the IJ’s finding that Tadesse was “evasive and non- responsive” when asked about physical harm he suffered from the government. See Preldakaj v. Keisler, 252 F. App’x 79, 84 (6th Cir. 2007) (“Immigration judges are better positioned to discern credibility and assess the facts with the witnesses before them”) (internal quotation 10 No. 13-4433 Tadesse v. Holder marks omitted). Nor does Tadesse explain why we should not credit the IJ’s credibility assessment regarding: the seemingly minor inconsistencies surrounding Tadesse’s testimony about Begashaw restricting his access to others; Tadesse’s testimony about the length of time he lived with his aunt in Addis Ababa; or Tadesse’s conflicting testimony about the contents of his visa application. See 8 U.S.C. § 1158(b)(1)(B)(iii) (“relevant factors” include the “responsiveness of the applicant[,] . . . the internal consistency of each such statement[,] . . . and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”) (emphasis added). Based on these inconsistencies alone, the IJ’s and BIA’s adverse credibility determinations are supported by substantial evidence. See El-Moussa, 569 F.3d at 256 (credibility findings that “are supported by the record[] entitle the IJ’s overall adverse credibility determination to deference, regardless of whether the inconsistencies bear on the heart of [petitioner’s] claim.”). In particular, the inconsistencies regarding Yusef’s death and the IJ’s citation to specific instances in which Tadesse was “evasive and non-responsive” support this finding. Given the above inconsistencies, which remain largely uncontested by Tadesse, no reasonable adjudicator would feel “compelled” to find Tadesse’s claims credible. Hachem, 656 F.3d at 434. Thus, contrary to Tadesse’s claim, even if the IJ and BIA failed to consider reasonable explanations for the other “inconsistencies” in Tadesse’s testimony, we must affirm the adverse credibility determination. See Ndrecaj, 522 F.3d at 675 (affirming the IJ’s credibility 11 No. 13-4433 Tadesse v. Holder determination despite the fact that “[m]ost of the inconsistencies that the IJ mentioned were irrelevant or not even inconsistencies at all.”); Lulonga v. Holder, 410 F. App’x 897, 901‒02 (6th Cir. 2010) (holding that the IJ’s credibility finding was based on substantial evidence even though “other inconsistencies identified by the IJ do not provide such support”); Singh v. Ashcroft, 398 F.3d 396, 403‒04 (6th Cir. 2005) (affirming IJ’s credibility determination despite the IJ “rely[ing] on a number of questionable assumptions and conclusions”). IV. CONCLUSION Because the BIA’s adverse credibility determination is supported by substantial evidence, we DENY Tadesse’s petition for review. 12 

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0005-18T3 STATE OF NEW JERSEY, Plaintiff-Respondent, v. IRONE WATFORD, a/k/a TYRONE WATFORD, and IRONE WETFORD, Defendant-Appellant. _______________________________ Submitted September 9, 2019 – Decided September 16, 2019 Before Judges Geiger and Natali. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-06- 0904. Irone Watford, appellant pro se. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief). PER CURIAM  Defendant Irone Watford appeals from a Criminal Part order denying his motion to correct an illegal sentence. We affirm. We briefly recount the lengthy procedural history of this case. Arising out of a November 4, 1993 incident in Jersey City, defendant was charged in a ten-count indictment with armed robbery, N.J.S.A. 2C:15-1; robbery, N.J.S.A. 2C:15-1; carjacking, N.J.S.A. 2C:15-2; kidnapping, 2C:13-1(b); aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4); sexual assault, N.J.S.A. 2C:14-2(c)(1); criminal sexual contact, N.J.S.A. 2C:14-3(b); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was convicted of all ten counts following a jury trial in 1997. Defendant was over the age of twenty-one when he committed the crimes in 1993. He had previously been convicted of second-degree robbery in 1988 and third-degree distribution of a controlled dangerous substance (CDS) within 1000 feet of school property in 1991. He was over the age of eighteen when he committed the prior crimes. The State moved to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a). The trial court granted the motion. The court found defendant met A-0005-18T3 2 the statutory definition of a persistent offender and was eligible for discretionary extended sentencing. On September 22, 1997, after appropriate mergers of several counts, defendant was sentenced to an aggregate term of life plus eighty years imprisonment with a sixty-year parole disqualifier. 1 He was also sentenced to community supervision for life. We affirmed defendant's conviction and sentence on direct appeal. State v. Watford, No. A-1544-97 (App. Div. Mar. 31, 2000). The Supreme Court denied certification. State v. Watford, 165 N.J. 487 (2000). In 2000, defendant filed his first petition for post-conviction relief (PCR), which was denied in January 2002. We affirmed the denial. State v. Watford, No. A-3753-01 (App. Div. June 16, 2003). The Supreme Court denied certification. State v. Watford, 178 N.J. 34 (2003). 1 For the first-degree aggravated sexual assault, defendant was sentenced to life imprisonment subject to parole ineligibility for twenty-five years. For the first-degree kidnapping, defendant was sentenced to a term of thirty years subject to parole ineligibility for fifteen years. For the first-degree carjacking, defendant was sentenced to a term of thirty years subject to parole ineligibility for ten years. For first-degree armed robbery, defendant was sentenced to a term of twenty years subject to parole ineligibility for ten years. The sentences ran consecutively. Each of the extended sentences were within the ranges set by N.J.S.A. 2C:43-7. A-0005-18T3 3  In April 2009, defendant filed his second PCR petition, also styled as a motion to correct an illegal sentence, which was denied in May 2009, and again in July 2009, without an evidentiary hearing. We affirmed the denial. State v. Watford, No. A-5737-08 (App. Div. May 5, 2010). The Supreme Court denied certification. State v. Watford, 205 N.J. 15 (2010). In June 2012, defendant filed his third PCR petition. The trial court found no "good cause" to justify appointment of counsel "because this matter is procedurally barred under [Rule] 3:22-4" and alleged no "substantial issue of fact or law," and dismissed the petition. We affirmed the dismissal. State v. Watford, No. A-2219-12 (App. Div. Feb. 19, 2014). The Supreme Court denied certification. State v. Watford, 219 N.J. 629 (2014). Defendant filed a motion to correct an illegal sentence in September 2015. We affirmed the denial of the motion on a sentencing calendar pursuant to Rule 2:9-11, substantially for the reasons set forth in the trial court's January 29, 2016 oral decision. State v. Watford, No. A-3561-15 (App. Div. Aug. 2, 2016). The Supreme Court denied certification. State v. Watford, 229 N.J. 8 (2017). Defendant did not confine his attempts to overturn his conviction and sentence to proceedings in State court. He also filed two habeas corpus petitions in the United States District Court for the District of New Jersey. Both habeas A-0005-18T3 4 petitions were denied. Watford v. Bartkowski, Civ. Action No. 11-0319 (SDW) (D.N.J. July 14, 2011), certificate of appealability denied, C.A. No. 11–3082 (3d Cir. Oct. 3, 2011); Watford v. Hendricks, Civ. Action No. 04-1388 (SDW) (D.N.J. Apr. 27, 2007), certificate of appealability denied, C.A. No. 07–3203 (3d Cir. Mar. 10, 2008). The United States Supreme Court denied certiorari. Watford v. Warren, 566 U.S. 909 (2012); Watford v. Ricci, 556 U.S. 1171 (2009). On April 6, 2017, defendant filed a second motion to correct an illegal sentence based on a challenge to the constitutionality of the persistent offender sentencing statute, N.J.S.A. 2C:44-3, which was denied on June 15, 2018. Defendant claimed the statute was unconstitutionally vague and deprived him of his right to due process and equal protection of the laws. This appeal followed. Defendant argues: THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION CHALLENGING THE CONSTITUTIONALITY OF SUBSECTION (a) OF N.J.S.A. 2C:44-3 SINCE BOTH (N.J.S.A. 2C:43-7 AND 2C:44-3(a)) ARE CLEARLY UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED THE STATUTES VIOLATES THE CONSTITUTIONAL DUE PROCESS AND EQUAL PROTECTION RIGHTS OF A DEFENDANT. A-0005-18T3 5  Whether defendant's sentence is illegal or unconstitutional is "an issue of law subject to de novo review." State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016) (citing State v. Pomianek, 221 N.J. 66, 80 (2015)). Although defendant's motion was filed more than nineteen years after he was sentenced, it is not time barred. The law imposes no time limit on a challenge to an illegal or unconstitutional sentence. State v. Acevedo, 205 N.J. 40, 47 n.4 (2011); R. 3:21-10(b)(5); R. 3:22-12. "A motion may be filed and an order may be entered at any time" to correct an illegal sentence. R. 3:21- 10(b)(5); see State v. Schubert, 212 N.J. 295, 309 (2012). We first consider whether N.J.S.A. 2C:44-3(a) is facially vague. Criminal statutes that are impermissibly vague are unconstitutional. Clear and comprehensible legislation is a fundamental prerequisite of due process of law, especially where criminal responsibility is involved. Vague laws are unconstitutional . . . because unclear or incomprehensible legislation places both citizens and law enforcement officials in an untenable position. Vague laws deprive citizens of adequate notice of proscribed conduct, and fail to provide officials with guidelines sufficient to prevent arbitrary and erratic enforcement. [State v. Afanador, 134 N.J. 162, 170 (1993) (emphasis added) (quoting Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983)).] A-0005-18T3 6  "A law is void as a matter of due process if it is so vague that persons 'of common intelligence must necessarily guess at it meaning and differ as to its application.'" Town Tobacconist, 94 N.J. at 118 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). Thus, a criminal statute is unconstitutionally vague and violates due process if it fails "to provide notice and warning to an individual that his or her conduct could subject that individual to criminal or quasi-criminal prosecution." State v. Hoffman, 149 N.J. 564, 581 (1997) (citing Screws v. United States, 325 U.S. 91, 101-02 (1945)). Pursuant to N.J.S.A. 2C:44-3, "[t]he court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term" if the person is found to be a persistent offender as defined by N.J.S.A. 2C:44-3(a). The statute provides the following definition of a persistent offender: A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [N.J.S.A. 2C:44-3(a).] A-0005-18T3 7 The trial court correctly concluded defendant satisfied those criteria and was eligible for sentencing to extended terms. The sentencing ranges fo r extended terms are set forth in N.J.S.A. 2C:43-7. We find no merit in defendant's argument that N.J.S.A. 2C:44-3(a) is facially vague. The statute is neither unclear nor incomprehensible. The statute clearly and unambiguously defines the term "persistent offender." It provides citizens with adequate notice and warning that his or her conduct could subject them to the extended sentencing implications for persistent offenders. Persons of common intelligence would not guess at its meaning or differ as to its application. The statute also provides officials with guidelines to prevent arbitrary and erratic enforcement. Put simply, the statute is not unconstitutionally vague. We next address defendant's claim that only violent crimes should be considered by a sentencing court when evaluating a defendant's persistent offender status. We disagree. Nothing in the plain language of the statute or its legislative history supports that claim. On the contrary, persistent offender status can be based on convictions of any crimes of the first, second, or third degree if they occurred within the statute's time and age limitations. Had the A-0005-18T3 8 Legislature intended to limit sentencing as a persistent offender to only violent criminals it would have so stated. It did not. 2 Indeed, the original proposed version of the Criminal Code required the court to find "an extended term is necessary for the protection of the public," "[t]he reference to 'protection of the public' was not included in the final version of the statute." State v. Pierce, 188 N.J. 155, 164 (2006). The Court overturned the requirement that the sentencing court find the defendant's commitment for a discretionary extended term is necessary for the protection of the public imposed by State v. Dunbar, 108 N.J. 80, 90-91 (1987) and reaffirmed by State v. Pennington, 154 N.J. 344 (1998). Pierce, 188 N.J. at 158, 169-70. Defendant misconstrues the two-step process undertaken by a sentencing court when considering an application for an extended sentence. The sentencing court must first undertake an objective examination of the defendant's prior record of conviction and age at the time of those convictions, to determine whether it renders him or her statutorily eligible for extended-term sentencing. 2 In contrast, the so-called Three Strikes Law, N.J.S.A. 2C:43-7.1(a), requires two predicate convictions for any of the following violent offenses: murder, aggravated manslaughter, first-degree kidnapping, armed or violent sexual assault, robbery, or carjacking. A-0005-18T3 9 Id. at 162, 168-69.3 Analysis of the nature of a defendant's prior convictions, including whether they were for violent offenses, "must be regarded as, separate and distinct from the court's determination" of statutory eligibility for an extended sentence, and is undertaken after eligibility is determined. Id. at 168. Determination of eligibility for extended term sentencing does not involve assessing whether the defendant presents a risk to the public because his prior crimes were for violent offenses. "Consideration of the protection of the public takes place during [the second] phase of the sentencing process," when the court assesses "the aggravating and mitigating factors, including the deterrent need to protect the public," and determines the appropriate term within the extended term range. Ibid. In sum, N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a) are not impermissibly vague or unconstitutional as applied. Defendant was not deprived of his right to due process or equal protection of the laws under either the United States Constitution or the New Jersey Constitution. 3 Similarly, determination of whether a defendant meets the requirements for a mandatory enhanced-term sentence is also "based on an objective determination—the existence of prior convictions." State v. Thomas, 188 N.J. 137, 151 (2006). A-0005-18T3 10  To the extent we have not addressed defendant's remaining arguments they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Affirmed. A-0005-18T3 11 

230 P.3d 1061 (2010) STATE v. PICCOLO. No. 84070-9. Supreme Court of Washington, Department II. April 28, 2010. Disposition of Petition for Review Denied.

866 F.2d 1419 U.S.v.Jaffe* NO. 88-1465 United States Court of Appeals,Fifth Circuit. JAN 24, 1989 1 Appeal From: N.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

795 F.2d 1011 Hinsonv.DOT, FAA 85-980 United States Court of Appeals,Federal Circuit. 4/10/86 MSPB, 16 M.S.P.R. 714 Affirmed

919 F.Supp. 205 (1996) James TYSON, Plaintiff, v. The PITT COUNTY GOVERNMENT; Pitt County Department of Social Services; Edward Garrison, Director; George Perry, Administrator; Ruth Hines, Supervisor, in their official and individual capacity, Defendants. No. 4:95-CV-133-H-3. United States District Court, E.D. North Carolina, Eastern Division. March 28, 1996. James Tyson, pro se. Pamela Weaver Best, Pitt Co. Legal Dept., Greenville, NC, Cheryl A. Marteney, Ward & Smith, P.A., New Bern, NC, for defendants. ORDER MALCOLM J. HOWARD, District Judge. This matter is before the court on plaintiff's letter to the court which will be treated as a motion to appoint counsel and a motion to stay further action in this matter until the court appoints an attorney. There is also defendants' motion to dismiss which is ripe in this action.[1] The court will render a *206 decision on this motion to dismiss in a later order. STATEMENT OF CASE This case was filed by the plaintiff on December 21, 1995, alleging discrimination in employment practices under 42 U.S.C. §§ 1981, 1983, and 1985, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e — 2000e-17), and the Age Discrimination in Employment Act (29 U.S.C. §§ 621-34). Plaintiff also claims violations of his constitutional right under the U.S. Constitution and intentional infliction of emotional distress. Plaintiff is attempting to bring this action pursuant to Equal Employment Opportunity Commission ("EEOC") Notice of Right to Sue issued to plaintiff on September 29, 1995. STATEMENT OF FACTS In 1993, plaintiff submitted his application for a position as a Medicaid Income Maintenance Caseworker with the Pitt County Department of Social Services. Because plaintiff was unable to relocate to Pitt County at that time, plaintiff declined to be interviewed. In March 1994 the Pitt County Department of Social Services advertised a position as AFDC Income Maintenance Caseworker, and plaintiff was interviewed for the position on March 23, 1994. Following the interview, plaintiff was requested to sign an employment reference request form and was told he would be notified when a decision had been made with regard to that position. Plaintiff alleges that he resigned from his job in New York City in preparation for employment with the defendant, Pitt County Social Services Department. Plaintiff subsequently was notified that he was not selected for the position. In November 1994, the Pitt County Department of Social Services again advertised a position as AFDC Income Maintenance Caseworker, and plaintiff again was interviewed for the position on November 7, 1994. Following the interview, plaintiff, who had relocated to Greenville, North Carolina, again was requested to sign an employment reference request form and was told that he would be notified when a decision had been made with regard to that position. Plaintiff subsequently was notified that he was not selected for the position. Plaintiff alleges that there was a plot by defendants William Perry and Ruth Hines to hire two young females with less experience than the plaintiff. He contends that the two females were given preferential treatment and he was rejected for employment because of his gender (male) and age (53). Additionally, plaintiff alleges that there is a great disparity between the number of male and female employees. On or about May 16, 1995, plaintiff filed a charge of discrimination with the EEOC, alleging race, sex, and age discrimination against the Pitt County Department of Social Services, to which the department responded on June 22, 1995. On September 29, 1995, the EEOC dismissed the plaintiffs charge of discrimination and issued its notice of right to sue. Plaintiff now has brought this action claiming sex and age discrimination. COURT'S DISCUSSION The plaintiff directs the court to Title 42 U.S.C. § 2000e-5(f) as support for his motions. Plaintiff requests the court to appoint counsel to assist him in this action, and desires that the court stay all further action until such time as counsel is appointed. The letter, which the court will treat as a motion, does not give any further grounds for either the appointment of counsel or staying of the action. Title 42 U.S.C. § 2000e-5(f) states that the court may appoint counsel "in such circumstances as the court may deem just." The statute grants the right to request a court appointed attorney, but does not create a statutory right to such counsel. How a district court should exercise its discretion to appoint counsel under Title 42 U.S.C. § 2000e-5(f) has not been considered by the *207 U.S. Supreme Court or the U.S. Fourth Circuit of Appeals. Other circuits have addressed this discretionary issue and have agreed on three relevant factors for a district court to consider: (1) the plaintiff's financial ability to retain an attorney; (2) the efforts of the plaintiff to retain counsel; and (3) the merits of the case. See, e.g., Miles v. Department of Army, 881 F.2d 777, 784 n. 6 (9th Cir.1989); Poindexter v. Federal Bureau of Investigation, 737 F.2d 1173, 1185 (D.C.Cir.1984); Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308-10 (5th Cir.1977). An additional factor used in helping a district court decide whether to appoint counsel is whether the plaintiff is capable of representing himself. Hunter v. Department of Air Force Agency, 846 F.2d 1314, 1317 (11th Cir.1988). As did a United States District Court for the Eastern District of Virginia in Young v. K-Mart Corporation, 911 F.Supp. 210 (EDVA 1996), this court will use all four factors to determine whether granting the plaintiff's motion for appointment of counsel is proper. The first factor is the plaintiff's financial ability to retain counsel. In this case, the plaintiff has already been granted permission to proceed in forma pauperis. Accordingly, the court follows the earlier ruling and finds that the plaintiff lacks the financial ability to retain private counsel. The court weighs this factor in favor of appointing counsel. The second factor is the efforts of the plaintiff to retain counsel. The court has not been provided information to make a determination as to whether plaintiff has made an effort to retain counsel. Inasmuch as the plaintiff has been permitted to proceed in forma pauperis, the court understands the difficulties in the plaintiff attempting to retain counsel without the ability to pay even a small retainer fee. However, the court finds that demonstrated efforts by the plaintiff to retain counsel on a contingency basis should have occurred. This court will not weigh this factor heavily against appointment of counsel. The third factor is the merits of the case. In this case, the plaintiff claims that he was not hired because of his sex and age. If proved, the plaintiff would be entitled to relief under the statutes. Though the complaint could not be construed as frivolous, it is certainly not a strong discrimination case. The accusations by the plaintiff are not strongly supported by a showing of any discriminatory intent. Additionally, the defendants have a strong motion to dismiss presently before the court. The court finds that this third factor does weigh heavily against the appointment of counsel for the plaintiff. The last factor the court will consider is whether the plaintiff is able to represent himself in the litigation. The court has read the pleadings of the plaintiff and it appears that he writes well and is capable with legal issues. But, the court understands the difficulty involved in Title VII litigation and gives little weight to the plaintiff's possible ability to effectively proceed in this legal matter. After a careful review of the record and weighing of the above four factors, the court finds that the plaintiff is not entitled to appointed counsel. The court finds that the merits of the case are weak and can see no concrete proof of discriminatory intent. This court has chosen to give this third factor (weighing the merits of the case) significant weight. Title 42 U.S.C. § 2000e-5(f) states that the court, "in its discretion," may stay further proceedings. Inasmuch as the court has rejected the plaintiff's request for counsel and that the plaintiff has presented no further grounds for his motion to stay, the court finds that staying this action is unnecessary. CONCLUSION Accordingly, the plaintiff's motion to appoint counsel is hereby DENIED; and, inasmuch as the court has denied appointment of counsel, the plaintiff's motion to stay further action in this matter until the court appoints an attorney is hereby DENIED as moot. In view of the court having denied plaintiff's motions for counsel and staying the action, the court will allow the plaintiff an additional 20 days from the filing of this order to retain private counsel and/or supplement his response *208 to the motion to dismiss. This court will not rule on the motion to dismiss until this time allowance has passed. NOTES [1] Where there is a motion for appointment of counsel and a motion to dismiss before the court, the better practice is to rule on the motion for appointment of counsel prior to ruling on the motions to dismiss. Miles v. Department of the Army, 881 F.2d 777, 784 (9th Cir.1989); See Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir.1983).

960 F.2d 705 Charles B. SPLUNGE, Petitioner-Appellee,v.Dick CLARK and Indiana Attorney General, Respondents-Appellants. No. 91-1499. United States Court of Appeals, Seventh Circuit. Argued Dec. 3, 1991.Decided April 6, 1992.Rehearing and Rehearing En Banc Denied May 5, 1992. Michael B. Nash, Chicago, Ill. (argued), for petitioner-appellee. David A. Nowak, Dist. Atty. Gen. (argued), Thomas D. Quigley, Office of Atty. Gen., Indianapolis, Ind., for respondents-appellants Dick Clark and Atty. Gen. of Indiana. Before CUMMINGS and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. CUMMINGS, Circuit Judge. 1 During jury selection in Vanderburgh County, Indiana, Superior Court, in petitioner Charles Splunge's trial for murder and robbery, the prosecutor used two of his peremptory challenges to exclude the only two black venire members from the petit jury. Splunge, who is also black, moved to discharge the jury before it was sworn on the basis that the prosecutor had purposefully excluded black potential jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial judge gave the prosecutor an opportunity to respond. Then he denied the defendant's motion and proceeded with the trial. 2 A divided Indiana Supreme Court affirmed Splunge's conviction. Chief Judge Sharp of the Northern District of Indiana concluded, however, that the prosecutor had exercised one peremptory challenge on the basis of race in violation of the Fourteenth Amendment (Memorandum Opinion and Order of Chief Judge Sharp, February 14, 1991). He therefore granted the writ of habeas corpus under 28 U.S.C. § 2254 unless the defendant is retried within specified time limits. For the reasons set forth below, the judgment of the district court will be affirmed. I. A. Facts 3 Kenneth Wallace picked up two hitchhikers, Charles Splunge and Tara Fox, outside an Evansville, Indiana, liquor store. Wallace continued driving, Fox sat in the front passenger seat, and Splunge sat in the back seat of the car. When Wallace halted at a stop sign, Fox fired two shots at him. Fox and Splunge pushed Wallace out of the car and left him bleeding in the street. They then drove off in Wallace's car. Wallace survived long enough to tell the police what had happened, but died in surgery a short time later of massive internal hemorrhaging.1 B. Procedure 4 On August 14, 1986, a Superior Court jury convicted Charles Splunge of murder and robbery. He was later sentenced to sixty years' imprisonment. His conviction and sentence followed the trial judge's denial of defense counsel's motion to dismiss the jury on the basis that the prosecutor had exercised his peremptory challenges in an unconstitutional manner. On direct appeal to the Indiana Supreme Court, Splunge raised five alleged errors in support of his contention that his conviction be overturned. By a sharply divided vote, that court held that Splunge had not shown reversible error. Splunge v. State, 526 N.E.2d 977 (Ind.1988) (Justice Pivarnik wrote the opinion of that court concurred in by Justice Given; Chief Justice Shepard concurred in the result but authored a separate opinion; and Justices DeBruler and Dickson dissented). The Supreme Court of the United States denied Splunge's petition for writ of certiorari, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1028 (1989). 5 Splunge then petitioned for collateral relief in federal district court under 28 U.S.C. § 2254. As noted, Chief Judge Sharp granted defendant the writ of habeas corpus absent retrial within 120 days from the issuance of a final mandate. That judgment was appealed to this Court, which assumed jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. II. A. Batson Challenge 6 Analysis of this case appropriately begins with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Batson held that when a state puts a black defendant on trial before a jury from which members of his race have been purposefully excluded, it denies him equal protection of the laws. See also Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). "Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure." Batson, 476 U.S. at 85, 106 S.Ct. at 1716. Accordingly, a prosecutor cannot constitutionally challenge potential jurors "solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. at 89, 106 S.Ct. at 1719. 7 In Batson the Supreme Court set forth three requirements that the defendant must meet in order to establish a prima facie case of purposeful race-based discrimination. The defendant must show that 1) he or she is a member of a cognizable racial group, 2) the prosecutor exercised peremptory challenges to remove persons of the defendant's race from the venire, and 3) facts and relevant circumstances raise an inference that the prosecution used those challenges to exclude members of the venire from the petit jury on the basis of race. Id. at 96-97, 106 S.Ct. at 1722-1723. In addition, the defendant can rely on the fact that peremptory challenges permit "those to discriminate who are of the mind to discriminate." Id. at 96, 106 S.Ct. at 1722 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). 8 In this case, respondents "concede that Splunge could have made a prima facie showing" (Br. 7), and rightly so, for he has established a prima facie case. First, Splunge is a black individual, and blacks are clearly a cognizable racial group under the Fourteenth Amendment. Second, the prosecution used its peremptory challenges to exclude all of the black members of the venire. And finally, the prosecutor's questions and statements during voir dire examination raise an inference that he used at least one challenge to exclude a black woman from the venire solely because she, like the defendant, was black and the victim was white. 9 During voir dire, the prosecutor asked only the black members of the venire, Mr. Clark and Ms. Brodie, whether their race would influence their decision in the case. Specifically, he asked them if they would be partial to the defendant because he is black. The examination of Connie Brodie by prosecutor Richard D'Amour was as follows: 10 Mr. D'Amour: The fact that Mr. Splunge is a black man, as you are a black woman, is that going to enter into your mind in determining whether he is guilty or innocent. 11 Connie Brodie: No. 12 Mr. D'Amour: You're not going to give his testimony any more credence just because you're of the same race, is that correct? Connie Brodie: Right. (R.96.) 13 Similarly, the examination of Charles Clark was as follows: 14 Mr. D'Amour: Okay. Now, Mr. Clark, as is very obvious, you are a Negro man, and Mr. Splunge is a Negro man. The fact that you are both of the same race, what effect, if any, will that have on your ability to be fair and impartial as a juror? 15 Charles Clark: None. 16 Mr. D'Amour: You can put that aside? You're not going to give Charles Splunge's testimony, if he testifies, more credit just because he's a black man?Charles Clark: I think no citizen deserves that regardless of his race as far as I'm concerned. 17 Mr. D'Amour: So you're not going to look on him more favorably just because of race? Charles Clark: No. (R.76.) 18 The prosecutor's preconception that a black citizen would be more sympathetic to a black defendant was also seemingly evidenced by another question he asked Mr. Clark. The prosecutor asked Clark whether anyone he knew had been charged with robbery or murder, R.76, although he asked the next three white potential jurors whether they or their friends had ever been victims of a robbery, R.80, R.82, R.84. 19 Once the defendant has established a prima facie case of race-based discrimination, as the defendant has done in this case, "the burden shifts to the state to come forward with a neutral explanation for challenging black jurors." Batson, 476 U.S. at 97, 106 S.Ct. at 1723. At trial, the prosecutor justified his peremptory strike against Mr. Clark on the basis that he had previous contact with the defendant and had given the defendant a ride in his vehicle. As for his challenge against Connie Brodie, the prosecutor said "there were just feelings on the part of the State that she would not be a good juror in this case, and I can assure you that they were not racial motivations at all." R.187. Splunge's counsel asserted that the prosecutor's reasons were insufficiently articulated with respect to his challenge to Connie Brodie. Thus the prosecutor further stated: "in Miss Brodie's case, I feel that she just did not exhibit to me a good understanding of what beyond a reasonable doubt was such to the point where I felt that she would not make a suitable juror, and I think that's all it needs." R. 187-188. 20 After the prosecutor advances a race-neutral reason for his challenge, the trial court must evaluate whether the defendant has sustained his burden of proving purposeful discrimination. Here the trial court denied Splunge's motion without comment. Ordinarily the trial court is given wide latitude in determining whether the prosecutor has exercised peremptory challenges in a racially discriminatory fashion. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Section 2254(d) of Title 28 of the United States Code requires that any state court determination after a hearing on the merits of a factual issue evidenced by reliable and adequate written indicia, "shall be presumed to be correct" unless, among other things, the habeas court concludes that such factual determination is not fairly supported by the record. However, in this case discussion concerning the adequacy of the state trial court's determination under Section 2254(d) or the presence of support in the record for that determination is unnecessary because at oral argument the State expressly conceded that it was not invoking the protection of Section 2254(d). Absent such a presumption, this court no longer defers to the state court's decision. Instead, our task on appeal is to determine whether Chief Judge Sharp's decision, not the state trial court's decision, was clearly erroneous. 21 Given the nature of venireman Clark's prior contact with Splunge, the court could permissibly conclude that the prosecutor did not exercise that peremptory challenge in an unconstitutional manner. "The prosecutor's explanation need not rise to the level of justifying exercise of a challenge for cause." Batson, 476 U.S. at 97, 106 S.Ct. at 1723. 22 However, we agree with the district court's judgment that the prosecutor's challenge of Ms. Brodie did violate constitutional requirements. The prosecutor's explanation was insufficient to rebut Splunge's prima facie case regarding the challenge exercised against Ms. Brodie. The record reveals no evidence whatsoever that she did not understand the standard of proof to be applied in a criminal case--the reason now advanced for upholding her exclusion. Indeed, the only voir dire questions the prosecutor asked her regarding the level of scrutiny she would apply in the case were the previously mentioned race-based questions and the question: "If the State proves its case to you beyond a reasonable doubt, would you find the defendant guilty?" To which question, Brodie answered "Yes." R.95-96. The State asked the identical question to at least one other potential juror who also answered "Yes." Despite her identical answer, this latter member of the venire was not challenged. R.81. In fact, the venire members' answers to this question were almost uniform. R.80 (Michels), R.81 (Cobb), R.85 (Toone), R.88-89 (Hankins), R.145 (Smith), R.147 (Wells), R.150 (Joharm), R.151 (Sluder), R.174 (Huffman). Yet, non-black potential jurors who answered the question identically were deemed fit for jury service. Even though the prosecutor only asked Brodie her understanding of proof beyond a reasonable doubt through this cursory question, the prosecutor struck her because she allegedly did not understand that standard! As Chief Justice Shepard of the Indiana Supreme Court noted, "[Brodie's] answers during voir dire * * * do not seem to demonstrate a basis for such an assertion." 526 N.E.2d at 984 (Shepard, C.J., concurring). Moreover, as Justice DeBruler noted "[t]here is nothing in this record upon which one could reasonably question her understanding of this concept, and the prosecutor does not identify any factors to support his feelings which might not be reflected in the cold record of voir dire examination, such as hostility, grimacing or other body language." 526 N.E.2d at 984 (DeBruler, J., dissenting). 23 Although this case may be a "close call," id., it is not so because some evidence supports the prosecutor's explanation for exercising his peremptory challenge of Ms. Brodie on the basis given and some evidence suggests that the explanation is pretextual. Instead, this case is a close call because all of the evidence suggests that the prosecutor's explanation as to the exclusion of Ms. Brodie was a pretext for race-based discrimination and yet we are meant to be deferential to the trial court's contrary findings. Because Indiana waived the presumption of correctness under § 2254(d), we agree with the district court's finding of intentional discrimination vis-a-vis Ms. Brodie and need not opine on the outcome of the case if Indiana had not made such a concession. 24 A prosecutor's explanation may not be sustained where discriminatory intent is inherent in the explanation. Respondents assert that the prosecutor's explanation, "as opposed to his motives or intent," must be race neutral (Br. 7). But they entirely miss the point of the Batson analysis. A race-neutral explanation is required precisely because race-neutral intent in striking potential jurors is required. Where the prosecutor's neutral explanation is an obvious mask for a race-based challenge, the prosecutor has not met his burden under Batson. Indiana has not carried that burden with respect to its challenge against Ms. Brodie. 25 Under the Fourteenth Amendment, a prosecutor may not exercise even a single peremptory challenge if through that challenge he intentionally discriminates on the basis of race. See United States v. Chalan, 812 F.2d 1302, 1312-1314 (10th Cir.1987) (prima facie case of discrimination made when prosecutor struck only remaining venire member of defendant's race), certiorari denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988). In Splunge's case, upon analysis it is plain that the prosecutor excluded one black citizen from jury service solely on account of her race. The district court is correct that "this circuit has taken a deadly serious approach to Batson." That is because exclusion of potential jurors on the basis of race causes deadly serious harm to the excluded citizen, the defendant, and our system of justice as a whole. Batson, 476 U.S. at 87, 106 S.Ct. at 1718; id. at 103-104, 106 S.Ct. at 1726-1727 (Marshall, J., concurring). The State might have adopted a like commitment to observing this constitutional safeguard if it so adamantly desired to avoid relitigation. B. Prosecutorial Misconduct 26 Because the district court's judgment is being upheld, the magnitude of the prosecutor's trial misconduct need not be addressed. In his opening statement the prosecutor summarized the coming testimony of Tara Fox, a participant in Splunge's offenses, incriminating Splunge. Moreover he tendered into evidence a written signed statement Fox had given to the police. The trial judge admitted this document into evidence over the strong objections of Splunge's counsel based on the prosecutor's express assurances that he would put Fox on the witness stand. Yet he did not call her as a witness. We are confident that the prosecutor and the trial court will ensure that this troubling trial error will not reoccur at Splunge's retrial. III. 27 The district court observed that "[t]his petitioner deserves the writ, but he also deserves to be retried" (Memorandum Opinion and Order (quoting Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988))). We agree. Thus we affirm its decision to grant the writ of habeas corpus unless Indiana retries Splunge within 120 days of issuance of this Court's final mandate, or of the Supreme Court's final mandate. 1 A more detailed account of the facts is contained in Splunge v. State, 526 N.E.2d 977 (Ind.1988)

567 So.2d 560 (1990) Derek L. WIMBLEY, Appellant, v. STATE of Florida, Appellee. No. 89-1652. District Court of Appeal of Florida, Fourth District. October 10, 1990. *561 Richard L. Jorandby, Public Defender, and B. Sue Foreman, Asst. Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Miles E. Ferris, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. The appellant was convicted of resisting arrest without violence and escape. The trial court instructed the jury that the police were in lawful execution of a legal duty at the time the alleged offenses took place. We agree with appellant that the trial court erred in not submitting the issue of the legality of defendant's arrest to the jury. See Williams v. State, 511 So.2d 740 (Fla. 5th DCA 1987); Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981). This error requires reversal for a new trial. We do not agree with appellant that the evidence was insufficient to sustain the verdicts of the jury. In addition, and to avoid problems on retrial, we note that under the evidence submitted an instruction on the defense of necessity was warranted; that evidence of the circumstances of appellant's later arrest should not have been admitted; and that the trial court should have used the standard jury instructions to define the elements of the offense of escape. ANSTEAD, GUNTHER and WARNER, JJ., concur.

81 N.W.2d 662 (1957) Nancy SCHMITT, Appellant, v. Stanley CUTKOMP, Appellee. No. 49125. Supreme Court of Iowa. March 5, 1957. A. J. Wassom, Burlington, for appellant. Hirsch, Riepe & Wright, Burlington, for appellee. PETERSON, Justice. Both parties are residents of Burlington. In December 1953 defendant asked plaintiff for a New Year's evening date. She accepted. He did not get through with his day's work until about 9:30, when he stopped at plaintiff's home to advise her he would have to go home and get dressed for the date. He did not return until 11:45. He took her in his automobile to the C.I.O. Club. They stayed about an hour. Each had one bottle of beer. When defendant suggested they leave, he wanted to go to another place across the river, but plaintiff insisted on going home. There was no cordiality between them. She was provoked because he was late for the date, and he was provoked because she would not go with him to another club. In taking her home he drove up Third Street. The street was paved and was 40 feet in width between curbs. They passed High Street, which intersects *663 Third Street, and were proceeding north, and up a hill. Defendant was driving somewhat close to the right curb. Plaintiff noticed a car parked along the curb about 150 feet ahead and she told him "there is a car ahead of us; * * * look out." He answered "Oh, so what." The testimony of plaintiff is he was driving from 30 to 40 miles an hour, and on cross-examination she said he was driving "not too fast" and "not too slow." As he approached the parked car he turned left to drive around it, but failed to turn quickly enough and hit the left rear corner of the car with the right front corner of his car. In the collision the two cars became entangled. Defendant was not injured although somewhat dazed. The impact was so sudden, and of such force, that plaintiff's head struck the windshield and broke it, seriously cutting and permanently injuring her face. At the close of plaintiff's evidence defendant filed motion for directed verdict which was sustained. She then filed motion for new trial which was overruled. Plaintiff appeals. While appellant lists ten errors relied on for reversal she really only alleges 2 propositions. 1. When a verdict is directed the testimony must be considered by the trial court in the light most favorable to plaintiff. 2. Defendant was guilty of recklessness, and came under the exception in Section 321.494, 1954 Code, I.C.A., as to liability. I. This case again involves the above Section. Since it was enacted by the 42nd General Assembly in 1927, we have decided over forty cases involving the statute. The cases have been especially numerous in the last five years. This is not surprising in view of the astronomical increase in automobile travel miles during these years. The Section eliminates liability of automobile drivers to their guests as to negligence. It excepts only intoxication and reckless driving. II. The first proposition of appellant, that the facts must be construed in the light most favorable to plaintiff, needs no discussion. Appellee approves the principle, and the trial court specifically announced it as a part of its ruling on the motion for directed verdict. Baker v. Langan, 165 Iowa 346, 145 N.W. 513; Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559; Comfort v. Continental Casualty Co., 239 Iowa 206, 34 N.W.2d 588; Goodman v. Gonse, Iowa, 76 N.W.2d 873. III. In considering whether or not reckless driving is present, we are confronted with the situation that each case has a different state of facts. There are similarities which assist us in arriving at decisions, but never identical facts. It is not necessary to again analyze a large number of our decisions as to reckless driving. We find an exhaustive consideration of the subject in some of our late cases, and in Russell v. Turner, D.C., 56 F.Supp. 455. The following are recent guest cases in which we have held defendant was not guilty of reckless driving: Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Roberts v. Koons, 230 Iowa 92, 296 N.W. 811; Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141; Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3; Long v. Pearce, 233 Iowa 1025, 10 N.W.2d 50; Schneider v. Parish, 242 Iowa 1147, 49 N.W.2d 535; Christensen v. Sheldon, 245 Iowa 674, 63 N.W.2d 892, 48 A.L.R.2d 522; Nesci v. Willey, Iowa, 75 N.W.2d 257; Goodman v. Gonse, supra; Fritz v. Wohlers, Iowa, 78 N.W.2d 27. The Eighth Circuit Court of Appeals stated a fundamental rule in affirming Judge Graven in Russell v. Turner, 148 F.2d 562, 566, as follows: "Nonliability of a host driver to a guest passenger injured in an automobile accident is the rule in Iowa, and liability is the exception". In Shenkle v. Mains, supra [216 Iowa 1324, 247 N.W. 637], we said: "The two grounds upon which recovery may be predicated [recklessness and intoxication] are exceptional *664 and not general. The general rule is that a guest cannot recover." We have consistently adhered to definitions of recklessness established in many cases, starting with our pioneer and foundation case of Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46. In Fritz v. Wohlers, supra, we outlined the three rules and definitions as to reckless driving announced in various decisions, with the thought of including all of them in one decision for ready reference. They are: "No care, coupled with disregard for consequences." "There must be evidence that defendant had' actual knowledge of an existing danger, or there was a danger so obvious that he should be cognizant of it, and proceeded without any heed of or concern for the consequences." "The consequences of the actions of the driver are such that the occurrence of the catastrophe is a probability rather than a possibility." [78 N.W. 2d 28] We cannot liberalize our often repeated definitions of recklessness farther than as above stated. If we do the result will be nullification of the clear intention of the legislature as enacted in Section 321.494. We will consider a few cases somewhat similar in facts, in that in each case the driver struck another motor vehicle, or a moving train. Shenkle v. Mains, supra; Roberts v. Koons, supra; Harvey v. Clark, supra; Long v. Pearce, supra. In Shenkle v. Mains, supra, defendant was driving west on what is known as Lincoln Highway about 4 miles west of Marshalltown. He had passed over a hill when he met a car travelling east and just starting the ascent of the hill. The Mains car "side-swiped" the passing car and threw all three men, including plaintiff's decedent, out of the car. Injuries were inflicted upon Shenkle resulting in his death. As in the case at bar defendant struck another car. We held a case of negligence was presented, but not recklessness. In Roberts v. Koons, supra, plaintiff's decedent was riding as a guest of defendant Koons. They were driving north on primary highway No. 11. It was a dark night, the visibility was poor, and a northwest wind whipped sleet and snow into flurries. A Chevrolet truck was stopped partly on the east shoulder. Headlights and taillights were on, but no flares had been placed. The driver of the truck had just entered his cab to drive away when defendant's car struck the truck, and as a result of the collision plaintiff's decedent was killed. After careful consideration of previous decisions we held defendant was not guilty of reckless driving. In Harvey v. Clark, supra, defendant was driving his automobile at about 1:15 A.M. through the town of Jesup. He drove into the side of a moving passenger train. Plaintiff's decedent and another guest were killed. In view of the rules established in previous decisions as to reckless driving this court affirmed the order of the trial court directing a verdict for defendant. In Long v. Pearce, supra, defendant drove his automobile into the side of a moving train in town of Eldora. Defendant testified he did not remember seeing the train or lights, nor hearing any whistle or bell. The case was submitted to the jury and a verdict rendered for plaintiff. We reversed the case holding that under our long established rules defendant was not guilty of reckless driving. IV. Appellant emphasizes the remarks made by plaintiff to defendant, and his answer, as shown in statement of facts. It is possible a situation may arise in reckless driving cases where remarks, or caution, by the guest may have a bearing on the final decision, but to date we have not considered such remarks very important in deciding the ultimate question of recklessness. We have primarily based our decisions on "actions", rather than "words". Russell v. Turner, supra; Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645; Goodman v. Gonse, supra. The only condition under which remarks might become pertinent would be if the remarks, coupled with *665 actions of the driver, exhibited evidence of a frame of mind showing no care, and a complete disregard for consequences. Hahn v. Strubel, 243 Iowa 438, 52 N.W.2d 28. In Russell v. Turner, supra [56 F.Supp. 457], plaintiff and other occupants of the car asked the defendant to drive slowly. His response was: "I don't care. I'm mad." In connection with these statements the decision states: "It seems that in Iowa the disregard of admonitions and suggestions made to a driver by those riding with him does not ipso facto change him into a reckless driver under the Guest Statute." In Mescher v. Brogan, supra [223 Iowa 573, 272 N.W. 648], the guests begged the driver to slow down, to which defendant replied: "You have got to die sometime, you might as well [die] here as any place". This was a case where we held the question of recklessness should be submitted to the jury. Concerning the remark we stated the driver did show a mental attitude of indifference to consequences, but stated the position of the court as follows: "We [the court would] not wish to be understood as laying any great stress upon the remark made by the defendant." In Goodman v. Gonse, supra [76 N.W.2d 876], we approved a directed verdict for defendant. Some of the passengers protested to defendant as to his speed. He said: "Shut your mouth, I don't like back seat drivers, you can get up here and drive." We held the statement, and his actions, were not sufficient to carry the case into the area of reckless driving. In the instant case the statement of plaintiff about the car ahead has little significance as to the cause of the collision, and is not of sufficient importance to "ipso facto change [defendant] into a reckless driver under the Guest Statute." Russell v. Turner, supra. Hahn v. Strubel, supra, has some similarities to the instant case and should be distinguished. Strubel invited Virginia Hahn to go with him to a dance. About 10 o'clock they had a quarrel and she told him to take her home. They were both angry. Defendant drove over a bridge at a speed of from 40 to 50 miles per hour and after leaving the bridge increased his speed. Plaintiff asked him to slow down, which he failed to do. As he proceeded west he crashed into a car which was parked 365 feet from the end of the bridge. He pushed the parked car ahead into another car. He then proceeded up the street with his wheels sliding or skidding. After going about 150 feet he turned around throwing plaintiff out of the car, and finally stopped on the curb, after striking and breaking a street intersection sign. After the accident defendant told witnesses he was mad, was going too fast, his lights were poor, and he was in a hurry. We held there was evidence in these actions that defendant used no care and that he acted in a manner of total disregard for the safety of his guest. While there are similarities, the facts are much stronger as to evidence of recklessness than in the case at bar. V. On the state of facts as set out, and considering our many previous decisions, was defendant guilty of reckless driving? Mrs. Mark Dewey the wife of the owner of the parked car was a witness. A neighbor called her after the crash, and she ran out immediately. Plaintiff and defendant were still in the front seat of the car. She testified: "It looked like he had tried to avoid our car on the left-hand side and swung around. It was the left rear corner of our car that was damaged." It is probable that if this was a negligence case, and submitted to a jury, the jury would find negligence. However, the occurrence is far short of establishing reckless driving as we have defined it in many decisions. Construing the evidence, as we must, in the light most favorable to plaintiff, we cannot find "an absence of all care, coupled with a disregard of consequences." Peter v. Thomas, 231 Iowa 985, 2 N.W.2d 643, 644. Defendant did not *666 wantonly and willfully run into the rear of the parked car. The testimony shows he was in the act of driving around the car, when the collision occurred. He apparently was guilty of error in judgment in failing to properly gauge his distance in order to pass the rear of the car. He may have had a moment of thoughtlessness. Judge Graven said in Russell v. Turner, supra [148 F.2d 566]: "An error in judgment, thoughtlessness or mere inadvertence do not constitute recklessness within the meaning of the statute." While this case presents a regrettable situation, because of plaintiff's serious injuries, the fact remains she was defendant's guest. Following rules clearly established in many previous decisions, we conclude defendant was not guilty of reckless driving. The orders of the trial court directing a verdict for defendant and overruling motion for new trial are affirmed. Affirmed. BLISS, C. J., and WENNERSTRUM, GARFIELD, SMITH, HAYS, THOMPSON and LARSON, JJ., concur.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re ) ULLICO INC. LITIGATION ) ) ) CONSOLIDATED DOCKET AND ) CASE NO. 03cv1556 (RJL) RELATED TO: ALL CASES ) ) ) ~+ MEMORANDUM OPINION (March 31 ,2009) [#334,335, 336] Counterclaim plaintiffs! (or the "ULLICO parties") alleged that counterclaim defendants Joseph Carabillo, John K. Grelle, and James W. Luce breached their fiduciary duties to ULLICO Inc. ("ULLICO") and its various benefit plans, and that Carabillo engaged in legal malpractice. Counterclaim defendants (or "Committee Member defendants") filed for summary judgment, arguing that no genuine issue of material fact existed as to any of the six counts in the ULLICO parties' Consolidated Counterclaim. Counterclaim plaintiffs filed motions for partial summary judgment on two counts of the Consolidated Counterclaim: (l) breach of fiduciary duty to the Qualified Plan, and (2) I Counterclaim plaintiffs are ULLICO Inc.; ULLICO Inc. Pension Plan and Trust; Administrator of the ULLICO Inc. Pension Plan and Trust; Plan Administration Committee of the ULLICO Inc. Pension Plan and Trust; Union Labor Life Insurance Company; Union Labor Life Auxiliary Retirement Benefits Plan; Administrator of the Union Labor Life Auxiliary Retirement Benefits Plan; ULLICO Inc. Employees' Life and Health Welfare Plan; Administrator of the ULLICO Inc. Employees' Life and Health Welfare Plan; ULLICO Inc. Non-Qualified Deferred Compensation Plan; and Damon Gasque, Joseph Linehan, Peter Haley, Marcellus Duckett, James Paul, and Jeffrey Bryan in their capacity as plan administrators. professional negligence against counterclaim defendant Carabillo. 2 For the following reasons, counterclaim defendants' motion is GRANTED in part and DENIED in part, and counterclaim plaintiffs' motions are DENIED. BACKGROUND ULLICO is a holding company created to raise capital for its various subsidiaries, which provide services to unions, union members, and their families. Consolidated Counterclaim ("Countercl.") ~ 3. ULLICO sponsors several benefit plans, including the ULLICO Inc. Pension Plan and Trust (the "Qualified Plan"), ULLICO Inc. Employees' Life and Health Welfare Plan (the "Welfare Plan"), and Union Labor Life Auxiliary Retirement Benefits Plan (the "Auxiliary Plan"). Countercl. ~~ 5-7. ULLICO also established the ULLICO Inc. Non-Qualified Deferred Compensation Plan (the "Deferred Compensation Plan"). Countercl. ~ 8. Counterclaim defendants Carabillo, Grelle, and Luce 3 served as members of the Benefits Committee, which acted as plan administrator for the Qualified Plan, Welfare Plan, Auxiliary Plan, and Deferred Compensation Plan. Countercl. ~~ 11- 13. In addition to their service on the Benefits Committee, Carabillo, Grelle, and Luce were officers ofULLICO. Carabillo served as the company's Chief Legal Officer from March 2, 1987 until he was terminated on May 30, 2003. 2 While not filed as cross-motions for summary judgment, the briefs addressed related questions of law and fact, and the Court resolves all three motions with this opinion. 3 The former Chairman and CEO ofULLICO, Robert Georgine, also served as a member of the Benefits Committee and was a counterclaim defendant. Countercl. ~ 10. ULLICO moved to dismiss all its claims against Georgine, which the Court granted on May 23,2006. Order, May 23,2006 [Dkt. #185]. 2 Countercl. ~ 11. ULLICO employed Grelle as its Senior Vice President and Chief Financial Officer from January 2, 1996 until his resignation on February 25, 2003. Countercl. ~ 12. Luce was ULLICO's Executive Vice President from 1990 until his retirement on June 1,2003. Countercl. ~ 13; Countercl. Defs' Statement of Mat. Facts ("Countercl. Def. Facts") ~ 3. In early 2002, press reports began to appear concerning allegations of self- dealing by ULLICO corporate insiders. Countercl. ~ 85. The Board of Directors appointed former Illinois Governor James Thompson to investigate ULLICO's stock repurchase programs, stock purchase offers to directors and officers, and investment in the company Global Crossing, which produced a significant, but temporary, rise in ULLICO stock prices. Countercl. ~~ 38,85. ULLICO spent $6 million on the internal investigation of the stock transactions, including funds spent defending officers and directors in the investigation. Countercl. ~ 89. In the months and years following the issuance of the Thompson Report on November 26, 2002, Countercl. ~ 85, ULLICO became the target of multiple state and federal investigations, Countercl. ~ 90, and Carabillo, Grelle, and Luce left the company, Countercl. ~ 92. Counterclaim defendants filed several suits in this Court for, among other things, recovery of their benefits under the various plans offered by ULLICO. The Court consolidated the cases for discovery purposes. Consolidation and Scheduling Order, June 1, 2005 [Dkt. # 115]. In its Consolidated Counterclaim, the ULLICO parties argued that Carabillo, Grelle, and Luce breached their 3 fiduciary duties to the company and its benefit plans, and that Carabillo engaged in legal malpractice. Countercl.,-r,-r 94-159. The plans at issue - and the largely undisputed facis surrounding the counterclaim defendants' conduct as to each of the plans - are as follows: A. Qualified Plan Adopted in 1994, the Qualified Plan is a defined benefits plan; participants are entitled to a set amount of benefits each month, determined by a benefits formula set forth in the plan documents. Countercl. Def. Facts,-r 13. The benefits are paid out of a trust established by ULLICO. Countercl. Def. Facts ,-r 14. 1. Stock Repurchase Program As plan administrator, the Benefits Committee was responsible for the management and investment of the Qualified Plan's assets, which included ULLICO stock. Countercl. Def. Facts,-r 93. On November 3,2000, ULLICO's Board of Directors adopted a stock repurchase program under which the company could repurchase up to $30 million ofULLICO stock at a "book value" price of $146.04. Countercl. Def. Facts,-r 105. This price was a substantial increase over recent years; in 1998, for example, the "book value" of the stock was $28.70. Countercl. Def. Facts,-r 106. This increase in the value ofULLICO stock was largely attributable to the company's investment in Global Crossing, Countercl. Def. Facts,-r 107, which had skyrocketed in value throughout 1998 and 1999, Countercl. ,-r 17. 4  Under the terms of the stock repurchase program, ULLICO had to receive tenders of all shares owned by shareholders holding more than 2% of the outstanding Class A and Class B shares ofULLICO stock. Counterci. Def. Facts ~ 108. This rule could be waived by Chairman Robert Georgine if the waiver would not result in a "significant redistribution of equity." Countercl. Def. F acts ~ 110. The Qualified Plan was one of fifteen shareholders that held more than 2% of the outstanding shares ofULLICO stock, Countercl. Def. Facts ~ 111, and all fifteen shareholders tendered their stock as part of the repurchase plan, Countercl. Def. Facts ~ 127. The stock repurchase program was fully subscribed, and ULLICO repurchased certain tendered shares on a prorated basis. Counterci. Def. Facts ~ 129. The company repurchased all the tendered stock from those shareholders who held less than 10,000 shares. Countercl. Def. Facts ~ 104. Those shareholders with more than 10,000 shares were subject to proration. Id. The Qualified Plan held more than 10,000 shares and was able to redeem only 5,794 of the 263,233 shares it tendered. ULLICO's Response to Committee Member Defendants' Statement of Material Facts ("Countercl. PI. Facts") ~ 129. Counterclaim defendants also participated in the stock repurchase program, but each of them had less than 10,000 in ULLICO stock. Carabillo, Grelle, and Luce were therefore able to redeem their shares in full. CountercL PI. Facts ~~ 126, 129. Before the 2000 stock repurchase, the Qualified Plan owned 263,233 of ULLICO stock out of the 7,866,333 shares outstanding, or 3.3% of the stock. 5 Counterci. PI. Facts,-r 146. According to counterclaim plaintiffs' calculations, the Qualified Plan should have received 3.3% of the $30 million expended under the 2000 stock repurchase program, or $1,001,349. Id. The Qualified Plan only received $846,155.76. Id. The Board of Directors again authorized a stock repurchase in 2001, this time with a book value of $74.87 per share. Counterci. Def. Facts ,-r 131. The Benefits Committee tendered the Qualified Plan's stock during this repurchase program. Counterci. Def. Facts,-r 134. The Qualified Plan's stock was again prorated, and it sold only 6,841 shares ofULLICO stock out of the 257,439 it tendered. Counterci. Def. Facts,-r,-r 142-44. 2. Amendments to the Qualified Plan Counterclaim defendants also twice amended the Qualified Plan in ways that inured to their personal benefit. The first amendment, adopted at the Benefits Committee's October 20, 1999 meeting, changed the definition of "Sponsoring Employee ULLICO Group Compensation" in the Qualified Plan to include "regularly established annual incentive compensation with no maximum, effective January 1,2000." Counterci. Def. Facts,-r 73. This amendment effectively increased retirement benefits available to employees who were significantly compensated through incentive payments. Counterci. Def. Facts ,-r,-r 73-74. Carabillo, Luce, and Grelle fell into this category; the amendment, therefore, significantly increased their retirement benefits. Statement of Material Facts in 6 Support ofULLICO's Mot. for Partial Summ. J. on Plan Amendments ("CountercI. PI. Plan Amendment Facts") ~ 20. On July 24, 2001, the Benefits Committee again amended the Qualified Plan. CountercI. Def. Facts ~ 77. With this amendment to the accrual formula, the committee increased the percentage of an employee's average salary used to determine his normal retirement benefit. Id. Again, this change, which increased the percentage from 2% to 2.5%, directly benefited Carabillo, Luce, and Grelle. Countercl. PI. Plan Amendment Facts ~ 20. Between the two amendments, the counterclaim defendants allegedly increased their benefit levels by nearly 100%. Id. Despite the passage of these amendments, counterclaim defendants may not have possessed the authority to amend the Qualified Plan at all. Section 11.1 of the plan provides that any amendment to the plan "shall be made pursuant to a resolution adopted by the Board of Directors[.]" CountercI. Def. Facts ~ 25. On May 5, 1997, the Executive Committee, which possessed many of the powers of the Board of Directors, adopted a resolution creating the Benefits Committee. Countercl. Def. Facts ~~ 38-40. This resolution stated that the Benefits Committee would "meet regularly to administer, plan and effect changes in the benefit plans." Countercl. Def. Facts ~ 38 (emphasis added). The counterclaim defendants believed the resolution creating the Benefits Committee gave the committee the power to amend the plan. Countercl. Def. Facts ~~ 43,48-50. This belief was held by Carabillo, Chief Legal Officer of the 7 company and a member of the committee, who advised his fellow members that they possessed amendment authority. Countercl. PI. Statement of Mat. Facts in Support of Its Mot. for Partial Summ. J. Against Joseph Carabillo for Legal Malpractice ~ 14. Counterclaim plaintiffs argue that the terms of the Qualified Plan unambiguously did not give counterclaim defendants such authority, and that counterclaim defendants' belief that it did is irrelevant. Countercl. PI. Facts ~~ 43, 48-50. B. Auxiliary and Welfare Plans In addition to the Qualified Plan, ULLICO sponsors two other benefit plans for many of its employees. The Welfare Plan maintains insurance policies that provide medical and life insurance coverage to participants. Countercl. Def. Facts ~ 11. The Auxiliary Plan is a top hat plan; its purpose is to provide benefits that would be due under the Qualified Plan, but for Internal Revenue Code limits on the benefits that can be paid to an individual. Countercl. Def. Facts ~ 20. Both the Welfare and Auxiliary plans are unfunded plans supported exclusively by the general assets ofULLICO. Countercl. PI. Facts ~ 20. C. Deferred Compensation Plan The Compensation Committee of the Board of Directors established the Deferred Compensation Plan, a top hat plan that covers only a select group of management or highly compensated employees, in August 1998. Countercl. Def. Facts ~~ 148-49. Counterclaim defendants participated in the plan. Countercl. Def. Facts ~ 150. Under the terms of the plan, participants could defer up to 25% 8 of their base salary and 100% of their bonuses and incentive awards. Counterci. Def. Facts ~ 151. Participants could place their deferred compensation in "deemed investments," including ULLICO stock. Counterci. Def. Facts ~ 152. The counterclaim defendants chose to move their entire account balances into "deemed investments" in ULLICO stock. Counterci. PI. Facts ~ 153. Carabillo, with the approval of Grelle, retrieved the entirety of his plan account under a financial hardship clause, which allows a participant to prematurely withdraw funds from the plan. Counterci. PI. Facts ~ 155. Carabillo's reason for withdrawal- to help his mother with her medical expenses - is not one of the enumerated financial hardships that allows a participant to take advantage of this provision. Id. Counterclaim plaintiffs seek to disgorge or deny benefits otherwise owed to counterclaim defendants under each of these four plans. For the following reasons, counterclaim plaintiffs cannot, as a matter of law, succeed on all of their counterclaims, and counterclaim defendants' motion for summary judgment is therefore GRANTED in part. LEGAL STANDARD Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion 9 for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). In deciding whether there is a genuine issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). ANALYSIS The majority of the Consolidated Counterclaim addresses breaches of fiduciary duty under the Employee Retirement Income Security Act of 1974 ("ERISA"). 29 U.S.C. §§ 1001 et seq. ERISA requires a fiduciary to "discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries." 29 U.S.C. § l104(a)(1). To establish a breach of fiduciary duty to an ERISA benefit plan, a plaintiff must show, at a minimum, that (1) ERISA's fiduciary obligations apply to the plan, see 29 U.S.C. § 1101(a), and (2) the defendant acted as a fiduciary of the plan, see 29 U.S.C. § 1002(21). The allegations of breaches of fiduciary duty to the Auxiliary Plan, Welfare Plan, and Deferred Compensation Plan do not, for one reason or another, meet these basic requirements, and the Court therefore grants the motion for summary judgment, at least in part, on each of those claims. Disputed issues of fact as to other claims, such as the allegation of breach of fiduciary duty to the Qualified Plan, prevent the Court from entering judgment on those counts at this early stage. 10  I. Breach of Fiduciary Duty to the Qualified Plan Counterclaim plaintiffs and counterclaim defendants both moved for summary judgment on the question of breach of fiduciary duty to the Qualified Plan (Count I). Counterclaim plaintiffs moved for partial summary judgment in their favor only on the claim of breach of fiduciary duty as it relates to the allegedly unauthorized amendments. Counterclaim defendants argue that neither the amendments nor the stock repurchase program qualify as a breach of fiduciary duty to the Qualified Plan, and Count I should be dismissed in its entirety. Because both the amendment and the stock repurchase allegations rest on disputed issues of material fact, the motions for summary judgment are DENIED. A. Plan Amendments In every case charging a breach of ERISA fiduciary duty, the threshold question is "whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint." Pegram v. Herdrich, 530 U.S. 211, 226 (2000). A person acts as a fiduciary to the extent he "exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or he has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U.S.C. §§ 1002(21)(A)(i), (iii). Not all actions taken by an ERISA fiduciary implicate these responsibilities because "the trustee under ERISA may wear different hats." Pegram, 530 U.S. at 11 225. For example, an employer or plan sponsor does not act as an ERISA fiduciary when taking steps to modify or amend an employee benefit plan. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999) ("an employer's decision to amend a pension plan ... does not implicate the employer's fiduciary duties"); Lockheed Corp. v. Spink, 517 U.S. 882, 891 (1996) ("the act of amending a pension plan does not trigger ERISA's fiduciary provisions"); Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995) ("[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans"); Hartline v. Sheet Metal Workers' Nat'l Pension Fund, 286 F.3d 598,599 (D.C. Cir. 2002) ("employers and plan sponsors do not act in a fiduciary capacity when they modify, adopt or amend plans"). Rather than acting as fiduciaries, employers or plan sponsors amending a plan are "analogous to the settlors of a trust[.]" Lockheed Corp., 517 U.S. at 890. The counterclaim defendants - plan administrators rather than employers or plan sponsors - argue that they, too, acted as settlors when they amended the Qualified Plan, and therefore they did not breach their fiduciary duty to the plan. The question here is whether plan administrators possibly without authority to amend the plan, such as the Committee Member defendants, can also act as settlors. The few cases cited by counterclaim defendants in support of their theory that any act of amendment by plan administrators - authorized or not - falls outside the scope of ERISA's fiduciary provisions all involved administrators who had been given authority to amend the plan. See Campbell v. BankBoston, NA., 12 327 F.3d 1,3 (Ist Cir. 2003) ("the administrator had the power to amend, modify, or discontinue the plan for any reason at any time"); Siskind v. Sperry Ret. Program, 47 F.3d 498,501 (2d Cir. 1995) ("[t]he plan documents also identified the Committee [the plan administrator] as the entity with power to amend the plan"). There is little authority for the proposition that a plan administrator without power to amend the plan acts as a settlor if he modifies the plan. The analysis undergirding the legal distinction between settlor acts and fiduciary acts supports the conclusion that plan administrators cannot take refuge in the Curtiss-Wright/Lockheed line of cases unless they have amendment authority. See Lockheed Corp., 517 U.S. at 890; Curtiss-Wright Corp., 514 U.S. at 78. ERISA does not impose a fiduciary responsibility on employers or plan sponsors when they amend a plan because "the trustee under ERISA may wear different hats." Pegram, 530 U.S. at 225. An employer can wear at least two hats: fiduciary when managing a plan and settlor when amending a plan. See id. But amending or terminating a plan is typically beyond the power of a plan administrator. Varity Corp. v. Howe, 516 U.S. 489,505 (1996). To call a plan administrator who usurps this authority a settlor, and thus beyond the reach of ERISA's fiduciary obligations, would allow any administrator to amend a plan in unauthorized, harmful ways without consequence. Such a holding would make a mockery of ERISA's command that a fiduciary "discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries." 29 U.S.C. § 11D4(a)(I). 13  Thus, to determine whether the Committee Member defendants breached their fiduciary duty, the Court first must determine whether a valid delegation of amendment authority occurred. This is a factual issue in dispute. The ULLICO parties argue that, under the terms of the Qualified Plan, only the company's Board of Directors, by resolution, can amend the plan. CountercI. PI. Plan Amendments Reply at 4. The Committee Member defendants point to the resolution instituting the Benefits Committee, and the circumstances surrounding the creation of the committee, as support for their position that the Board delegated its amendment authority. CountercI. Def. Plan Amendments Opp. at 10- 14. Because this issue of fact must be resolved before the Court can determine whether the Committee Member defendants breached their fiduciary duties to the plan, both counterclaim plaintiffs' motion for partial summary judgment and the Committee Member defendants' motion for summary judgment on this aspect of Count I must be DENIED.4 4 Counterclaim plaintiffs further argue that Maryland corporate law, Md. Code Ann., Corps. & Ass'ns § 2- 411(a), prohibits the delegation of "any of the powers of the board of directors" to any committee that includes non-directors, such as the Benefits Committee. Under this interpretation of the statute, any delegation of board power - such as amendment authority - to the Benefits Committee is legally invalid. Countercl. PI. Plan Amendments Reply at 18-22. Counterclaim plaintiffs cite no Maryland court that agrees with their reading of the statute, and the only court to have apparently considered this aspect of the statute squarely rejected the interpretation counterclaim plaintiffs ask of this Court. See Krishan v. McDonnell Douglas Corp., 873 F. Supp. 345, 353 (C.D. Cal. 1994). Moreover, the plain language of the statute is ambiguous as to whether a director must be a member of any committee exercising board power, or whether such a committee must be comprised exclusively of directors. To hold that a committee exercising board authority must be comprised exclusively of directors would conflict with another provision of Maryland corporate law, Md. Code Ann., Corps. & Ass'ns § 2-414(a), which permits an officer to act on authority granted by board resolution. This Court therefore will not grant partial summary judgment to counterclaim plaintiffs under this line of reasoning. 14  B. Statute of Limitations Counterclaim defendants also argue that the claim relating to the October 20, 1999 amendment to the Qualified Plan is time-barred. The applicable statute of limitations for a breach of fiduciary duty claim under ERISA is six years from the date of the last action constituting a part of the breach, or three years from the date a plaintiff first had actual knowledge of the breach. 29 U.S.C. §§ 1113(1)- (2).5 Counterclaim defendants contend that the three-year statute of limitations should apply because knowledge of the 1999 amendment was widespread throughout the company, and that Louis Hejl, Jr., ULLICO's director of corporate benefits, was present at the Benefits Committee meeting when the amendment was adopted. Countercl. Def. Mot. at 25-27. These facts do indicate that ULLICO had knowledge that the Benefits Committee had amended the Qualified Plan. But what the facts fail to establish is whether knowledge of the amendment also communicated the existence of a breach of fiduciary duty. See Fink v. Nat 'I Sav. and Trust Co., 772 F.2d 951,957 (D.C. Cir. 1985); Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir. 1992). Actual knowledge of a breach or violation requires that a plaintiff have actual knowledge of all material facts necessary to understand that some claim exists. See Gluck, 960 F.2d at 1177. Hejl did not have that knowledge; he was unaware that the Benefits Committee may have lacked amendment authority until 5In cases of fraud or concealment, an action may be commenced up to six years after the date of discovery of the breach. 29 U.S.C. § 1113. 15 2003. Counterci. PI. Facts ~ 75. Counterclaim defendants provide no basis for this Court to conclude that the other ULLICO employees aware of the amendment knew of its alleged illegality. Therefore, because counterclaim plaintiffs brought their actions well before the six-year statute of limitations on these claims, the breach of fiduciary duty cause of action based on the 1999 amendment is not time- barred. C. Stock Repurchases Disputed issues of fact also preclude summary judgment on the breach of fiduciary duty claim rooted in the stock repurchases. Counterclaim defendants rest their argument on three foundations: (1) the decision to tender the Qualified Plan's stock was "in the best interests of the Plan," Counterci. Def. Mot. at 29-37; (2) a decision not to tender the Qualified Plan's stock would not have prevented the stock repurchase plan from going forward, Counterci. Def. Mot. at 39-41; and (3) ULLICO repurchased the Qualified Plan's stock for well above its actual value, which constituted adequate consideration, Counterci. Def. Mot. at 37-38. All of these facts are disputed by the counterclaim plaintiffs. The ULLICO parties argue that (1) counterclaim defendants redeemed the Qualified Plan's shares, not because they were acting "in the best interests of the Plan," but in order to ensure they could redeem their own shares, Counterci. PI. Opp. at 17-20; (2) it is "more likely than not" that had the Qualified Plan not tendered its shares, the repurchase program would not have gone forward, Counterci. PI. Opp. at 21-22; and (3) the Qualified Plan's shares were subject to proration and, therefore, the plan did not 16 receive adequate consideration, CountercI. PI. Opp. at 22. These are factual disputes that cannot be resolved on summary judgment. Therefore, counterclaim defendants' motion for summary judgment on Count I as to the stock repurchase claim is DENIED. II. Breach of Fiduciary Duty to the Welfare and Auxiliary Plans Counterclaim plaintiffs argue that counterclaim defendants' alleged self- dealing, which resulted in internal and government investigations costing millions of dollars, harmed the Welfare and Auxiliary plans because ULLICO funded those plans out of its general treasury. However, despite whatever harm counterclaim defendants may have done to ULLICO, they cannot, as a matter of law, be liable under ERISA's fiduciary provisions for decisions they made as corporate officers. As with the allegations of breach of fiduciary duty to the Qualified Plan, the threshold question with these claims is "whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint." Pegram, 530 U.S. at 225. An employee assumes fiduciary status "when and to the extent that they function in their capacity as plan administrators, not when they conduct business that is not regulated by ERISA." Sys. Council EM-3 v. AT&T Corp., 972 F. Supp. 21, 30 (D.D.C. 1997) (internal quotations omitted); see also Barry v. Trustees o/the Int'l Ass 'n Full-Time Salaried Officers and Employees o/Outside Local Unions, 404 F. Supp. 2d 145, 151 (D.D.C. 2005) ("the ERISA statute recognizes that individuals may be both ERISA plan fiduciaries and officers or other employees in a corporation"). The 17 allegations with respect to the Welfare and Auxiliary plans clearly implicate the counterclaim defendants' roles as corporate officers rather than plan fiduciaries. Counterclaim plaintiffs do not allege that the counterclaim defendants' actions harmed the Welfare and Auxiliary plans directly. Instead, they argue that counterclaim defendants harmed ULLICO, and, because the Welfare and Auxiliary plans were funded from the ULLICO general treasury, those plans were also harmed. CountercI. PI. Opp. at 23-25. Yet the investigations targeting the company, the alleged source ofULLICO's inability to fund the plans, focused on "business that is not regulated by ERISA," Sys. Council EM-3, 972 F. Supp. at 30, such as the implementation of a stock repurchase program. An indirect link between these business decisions and the ability of the company to fund the plans does not constitute an exercise of management or authority over the plans. See Barry, 404 F. Supp. 2d at 153 (finding defendant's "fiduciary obligations did not apply to his involvement in ULLICO's purchase and repurchase programs because he did not exercise management or authority over either the Plan or Plan assets when he took that action"). The Committee Member defendants were therefore not acting in their ERISA fiduciary capacity and cannot be held liable for a breach of fiduciary duty to these plans. Counterclaim plaintiffs' reliance on the Second Circuit's analysis of a similar case is unavailing. In United States v. Carson, 52 F.3d 1173, 1189-90 (2d Cir. 1995), the court found that a fiduciary could be held liable under ERISA based on damage to the plan sponsor. But the Second Circuit did not analyze 18 whether the defendant was acting in a fiduciary or corporate capacity at the time he harmed the plan sponsor. Id. And, to the extent that Carson stands for the proposition that an ERISA fiduciary can be held liable for his corporate acts when those acts harm the benefits plan, the Supreme Court overruled that holding in its later decision in Pegram. 530 U.S. at 225-56. Since Pegram, courts have consistently rejected attempts to hold corporate officers liable under ERISA for corporate activities that have an indirect effect on a company plan. See, e.g., Holdeman v. Devine, 474 F.3d 770, 780 (lOth Cir. 2007). Thus, for all of the above reasons, summary jUdgment is GRANTED for counterclaim defendants as to Counts II and III of the Consolidated Counterclaim. III. Breach of Fiduciary Duty to the Auxiliary and Deferred Compensation Plans The claim of breach of fiduciary duty to the Auxiliary Plan fails for a second reason: the Auxiliary Plan is a top hat plan that is exempt from ERISA's fiduciary requirements. The Deferred Compensation Plan also falls into this category. Countercl. Def. Facts ~ 149. Because neither of these plans is governed by ERISA's fiduciary provisions, the Committee Member defendants could not have breached their fiduciary duties to the plans. Top hat plans are unfunded plans "maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees." 29 U.S.C. § 1051(2). These plans are wholly exempt from ERISA's fiduciary requirements. See Carabillo v. ULLICO, Inc., 19 357 F. Supp. 2d 249, 258 (D.D.C. 2004) (ERISA "expressly exempts [top hat] plans from its fiduciary duty, vesting, and funding provisions."). There is "no cause of action for breach of fiduciary duty involving a top hat plan[,]" Goldstein v. Johnson & Johnson, 251 F.3d 433, 443 (3d Cir. 2001), and counterclaim defendants owed no fiduciary duty to either the Auxiliary Plan or the Deferred Compensation Plan. Counterclaim defendants' motion for summary judgment as to the breach of fiduciary duty to these plans is therefore GRANTED. 6 Yet counterclaim plaintiffs do not restrict their breach of fiduciary duty claims solely to the Deferred Compensation Plan. They additionally argue that the counterclaim defendants breached their fiduciary duty to ULLICO, and that breach should serve as a basis to deny them benefits under the Deferred Compensation Plan. CountercI. PI. Opp. at 26 ("[T]he duties breached by Counterclaim Defendants under Count VI stem not only from their positions as fiduciaries to the Deferred Compensation Plan, but also from their duties owed to ULLICO Inc. under state corporate law[.]") (emphasis added). Committee Member defendants 6 Counterclaim plaintiffs also argue that Counts II, III, and VI properly arise under ERISA § 502(a)(3), Countercl. PI. Opp. at 25 n.2, 28-29, which allows courts to fashion equitable relief to redress violations of either ERISA or the terms of the plans. 29 U.S.C. § 1132(a)(3). To the extent that counterclaim plaintiffs claim equitable relief under ERISA § 502(a)(3) for the alleged breaches of fiduciary duty, their argument must fail. With 29 U.S.C. § 1104(a)(1), Congress provided adequate relieffor the breaches of fiduciary duty counterclaim plaintiffs complain of; simply because counterclaim plaintiffs have failed to prevail under that section does not entitle them to avail themselves of ERISA's catch-all provision. See Varity Corp., 516 U.S. at 515 (in construing ERISA § 502(a)(3), courts should respect "policy choices reflected in the inclusion of certain remedies and the exclusion of others") (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987)). To the extent counterclaim plaintiffs argue that counterclaim defendants violated plan terms, this claim, too, must fail. The ULLICO parties specifically alleged in the counterclaim that Grelle, Luce, and Carabillo breached their fiduciary duties, but they did not allege any violation of plan terms until they filed their opposition to counterclaim defendants' motion for summary judgment. Counterclaim defendants did not have fair notice of the claim, and to raise it at this late stage is insufficient to withstand summary judgment. See Ali v. Dist. a/Columbia, 278 F.3d 1,8 (D.C. Cir. 2002); Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983) (holding that complaint must give "defendant fair notice of plaintiff's claim and the grounds on which it rests"). 20 counter that this fiduciary duty - which is rooted in state law - is preempted by ERISA. Countercl. Def. Mot. at 46-47. This Court has squarely rejected counterclaim defendants' argument in the past, Carabillo, 357 F. Supp. 2d at 259 n.7, and they have provided no valid reason for the Court to change its position. While ERISA preempts state law claims that "relate to any [ERISA] employee benefit plan," 29 U.S.C. § 1144(a), '''run-of-the-mill' state law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan" are not subject to ERISA preemption. Carabillo, 357 F. Supp. 2d at 259 n.7 (quoting Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825,833 (1988». This Court held that the allegations of breach of fiduciary duty to ULLICO were not preempted because they "derive from the counterclaim defendants' obligations and responsibilities as officers of the corporation under state corporate law, rather than their relationship to the [Auxiliary and Deferred Compensation] plans as beneficiaries." Id.; see also Mem. Op. and Order, March 29,2005 [Dkt. #101], at 6 n.1I. The claims here are no different, and they are not preempted by ERISA. Counterclaim defendants further assert that this state law claim is outside the scope of the Court's supplemental jurisdiction. Once again, I disagree. Pursuant to 28 U.S.C. § 1367(a), courts may exercise supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." The "case or controversy" analysis 21 is significantly broader, and can conceivably capture more claims, than the preemption question. Indeed, I previously decided that a claim that the former corporate officers were not entitled to benefits under the Deferred Compensation Plan because the plan "was administered in violation of the fiduciary duties owed to ULLICO" fell within this Court's supplemental jurisdiction and was not preempted by ERISA. Carabillo, 357 F. Supp. 2d at 256,259. In short, I found that there was a "factual nexus" between counterclaim defendants' ERISA claims and the counterclaim plaintiffs' argument that benefits cannot be paid out under the Deferred Compensation Plan. Carabillo, 357 F. Supp. 2d at 259. The same holds true here, and therefore Count VI falls within the Court's supplemental jurisdiction. Thus, while the breach of fiduciary duty claims as to the Deferred Compensation and Auxiliary plans are dismissed, the claim that counterclaim defendants breached their fiduciary duty to ULLICO, and therefore their benefits from the Deferred Compensation Plan may be disgorged or denied, survives the counterclaim defendants' summary judgment motion. 7 IV. Professional Negligence In Count IV of its Consolidated Counterclaim, the sole claim unrelated to a breach of fiduciary duty, counterclaim plaintiffs allege that Carabillo committed 7 Counterclaim defendants further argue that the Auxiliary and Deferred Compensation plans prohibit forfeiture or setoff, and therefore Counts III, V, and VI - all requesting forfeiture or setoff as relief for the alleged breaches of fiduciary duty - should be dismissed. Countercl. Def. Mot. at 49-53. To succeed, counterclaim defendants must show that the contractual language was "specific and precise" in explaining the intent of the parties to preclude setoff. In re Carlyle, 242 B.R. 881, 892 (Bankr. E.D. Va. 1999). The terms ofthe Auxiliary and Deferred Compensation plans are, at best, ambiguous as to whether they prohibit forfeiture or setoff, and the Court therefore will not grant summary judgment on the basis of this argument. 22 professional negligence by providing erroneous legal advice to the Benefits Committee regarding its ability to amend the Qualified Plan. The ULLICO parties moved for partial summary judgment on this issue, as did the Committee Member defendants. Committee Member defendants argue, among other things, that this count should be dismissed as outside the Court's supplemental jurisdiction. The Court previously dismissed a nearly identical claim because it did not relate to Carabillo's affirmative claims for plan benefits, Carabillo, 357 F. Supp. 2d at 255- 56, and counterclaim plaintiffs have pointed to no change in the claim that would bring it within the Court's supplemental jurisdiction. Under this Court's prior ruling, the only counterclaims that fall within the scope of the litigation "are those that relate to whether Carabillo and other former ULLICO officers are entitled to the retirement benefits they claim they are eligible to receive." Carabillo, 357 F. Supp. 2d at 255. Count IV falls well short of that criteria. The claim seeks no offset from Carabillo' s retirement benefits; the only relief sought is a money judgment from Carabillo's general assets. Counterclaim ~ 131 & Prayer for Relief. The Court dismissed this allegation in its previous iteration, Count II ofULLICO's Amended Answer and Counterclaim, because it was "essentially a state law claim with little, or no, factual nexus to Carabillo' s ERISA claim." Mem. Op. and Order, March 29,2005 [Dkt. #101], at 5. The same holds true for Count IV of the Consolidated Counterclaim. Summary judgment on this claim is therefore GRANTED. 23  CONCLUSION A genuine issue of material fact exists as to Count I - breach of fiduciary duty to the Qualified Plan - and both parties' motions for summary judgment on that claim are therefore DENIED. Counterclaim defendants are entitled to judgment as a matter of law on three claims: (1) breach of fiduciary duty to the Welfare Plan (Count II), (2) breach of fiduciary duty to the Auxiliary Plan (Count III), and (3) professional negligence against Carabillo (Count IV). The motion for summary judgment as to these claims is therefore GRANTED. Counterclaim defendants are also entitled to judgment as a matter of law on the allegation that they breached their fiduciary duty to the Deferred Compensation Plan, but not on the allegation that they breached their fiduciary duty to ULLICO, and therefore summary judgment on Count VI is GRANTED in part and DENIED in part. The final count - requesting setoff of Auxiliary Plan benefits as relief for the alleged breach of fiduciary duty to ULLICO (Count V) - cannot be decided on summary judgment, and the motion as to that count is DENIED. United States District Judge 24 

09-3512-ag Shao v. Holder BIA A073 568 657 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 31 st day of March, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 GERARD E. LYNCH, 11 Circuit Judges. 12 ______________________________________ 13 14 LIANG WEI SHAO, 15 Petitioner, 16 09-3512-ag 17 v. NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONER: Galab B. Dhungana, New York, New 25 York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Anthony C. Payne, Senior 29 Litigation Counsel, Office of 30 Immigration Litigation; Lance L. 31 Jolley, Trial Attorney, Office of 32 Immigration Litigation, Civil 33 Division, United States Department 34 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner, Liang Wei Shao, a native and citizen of the 6 People’s Republic of China, seeks review of a July 20, 2009, 7 order of the BIA denying his motion to reopen his removal 8 proceedings. In re Liang Wei Shao, No. A 073 568 657 9 (B.I.A. July 20, 2009). We assume the parties’ familiarity 10 with the underlying facts and procedural history of the 11 case. 12 We review the BIA’s denial of a motion to reopen for 13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 14 Cir. 2006). When the BIA considers relevant evidence of 15 country conditions in evaluating a motion to reopen, we 16 review the BIA’s factual findings under the substantial 17 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 18 138, 169 (2d Cir. 2008). 19 An alien may only file one motion to reopen and must do 20 so within 90 days of the final administrative decision. 21 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). It is 22 indisputable that Shao’s motion to reopen was untimely. 23 However, the time limitation does not apply if the alien 24 establishes materially changed circumstances arising in the 2 1 country of nationality. 8 U.S.C. § 1229a(c)(7)(C)(ii); 2 8 C.F.R. § 1003.2(c)(3)(ii). 3 In denying Shao’s motion to reopen, the BIA found that 4 he failed to demonstrate a change in China’s enforcement of 5 the family planning policy. Shao does not address this 6 finding, and even concedes that the evidence he submitted 7 demonstrated only an ongoing policy of persecution. Because 8 Shao failed to explain how his evidence demonstrated a 9 change in circumstances arising in China, the BIA did not 10 abuse its discretion in denying Shao’s untimely motion to 11 reopen. See 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R. 12 § 1003.2(c)(3)(ii). For these same reasons, Shao’s due 13 process claim is entirely without merit. See Li Hua Lin v. 14 U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006) 15 (noting that due process “requires that an applicant receive 16 a full and fair hearing which provides a meaningful 17 opportunity to be heard.”). 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of 20 removal that the Court previously granted in this petition 21 is VACATED, and any pending motion for a stay of removal in 22 this petition is DISMISSED as moot. 23 FOR THE COURT: 24 Catherine O’Hagan Wolfe, Clerk 25 26 3 

264 S.W.3d 832 (2008) STRATA RESOURCES, a Texas Partnership; Steven Bland Epps; and Charles W. Brandes, Individually, Appellants, v. The STATE of Texas, Appellee. No. 03-06-00393-CV. Court of Appeals of Texas, Austin. July 11, 2008. Opinion Overruling Rehearing September 17, 2008. *835 Rex H. White Jr., Austin, for Appellants. David Randell, Asst. Atty. Gen., Bankruptcy and Collections Div., Austin, for Appellee. Before Justices PATTERSON, PEMBERTON and WALDROP. OPINION BOB PEMBERTON, Justice. Strata Resources and its one-time general partners, Stephen Bland Epps and Charles W. Brandes, appeal a judgment imposing administrative and civil penalties and requiring reimbursement for funds expended to plug certain wells formerly operated by Strata. They bring five issues contending that the well-plugging expenses imposed on Epps were pre-petition debts discharged in Epps's bankruptcy, that they are not liable for plugging expenses on two of the wells because the Railroad Commission acted improperly in converting these wells into water wells for the landowner's benefit, that the Commission failed to properly offset well-plugging expenses with the well equipment's salvage value, that the civil penalties imposed are not supported by the evidence, and that the attorney's fees award is not supported by the evidence. We will affirm the judgment in part, reverse and render in part, and reverse and remand in part. BACKGROUND The State's claims for well-plugging reimbursement and penalties were tried to the bench, and the following summarizes the pertinent evidence presented. Epps and Brandes were Strata's sole partners. Strata was the operator on four sets of oil wells at issue in these proceedings: (1) the Salinas Lease, Well Nos. 1, 2, and 4; (2) the Oliveira Lease, Well Nos. 1, 2A, 3, and 4; (3) the Q.K. Barber Lease, Well No. 1; *836 and (4) four wells on the Guzman or Ramirez leases. On November 24, 1997, after Strata had become the operator on the Salinas and Oliveira wells, Brandes withdrew from the partnership. However, no new form P-4 was filed after Brandes withdrew from the partnership.[1]See 16 Tex. Admin. Code § 3.58(a) (2007).[2] The district court concluded that Brandes had remained personally liable for maintaining the Salinas and Oliveira wells and for those leases, and appellants do not challenge those holdings. The Commission issued an administrative order with respect to each of the four sets of wells. The first of the four orders (docket number XX-XXXXXXX) was issued September 12, 2000, and required Strata and Epps, individually, to plug the Q.K. Barber Lease, Well No. 1, and assessed Strata and Epps, individually, an administrative penalty of $4,000. The remaining three orders were issued November 9, 2000. One of the November 9 orders (docket number XX-XXXXXXX) involved the Guzman Lease, Well No. 12; the Ramirez Lease, Well No. 14; the Ramirez-Guzman Unit Lease, Well No. 7; and the Guzman-Ramirez Lease, Well No. 8, and assessed Strata and Epps, individually, an administrative penalty of $8,000. Another November 9 order (docket number XX-XXXXXXX) required Strata, Epps, and Brandes, individually, to plug the Salinas Lease, Well Nos. 1, 2, and 4. The order also assessed an administrative penalty against all three appellants, individually, in the amount of $6,000. In its final November 9 order (docket number XX-XXXXXXX), the Commission required Strata, Epps, and Brandes, individually, to plug the Oliveira Lease, Well Nos. 1, 2A, 3, and 4, and assessed an administrative penalty in the amount of $8,000. Each of the orders gave appellants thirty days to comply with its terms. Appellants neither filed motions for rehearing nor complied with any of the four orders. After issuing these orders, the Commission approached the owner of the land on which the Salinas No. 4 and Oliveira No. 4 were located. At the request of the landowner, the Commission took over and reconditioned these wells and converted them into water wells. Epps testified that he was not notified of the Commission's action with respect to these wells. On October 18, 2001, the State brought suit against Strata, Epps, and Brandes under the natural resources code to enforce its orders. See Tex. Nat. Res.Code Ann. § 89.043(a) (West Supp.2007). The State sought administrative and civil penalties for failure to comply with the orders to plug abandoned wells. The State also sought reimbursement for well-plugging costs, prejudgment interest, attorney's fees, and court costs. In addition, the State asked the trial court for an injunction requiring appellants to plug their remaining wells or otherwise bring those wells into compliance with Commission rules. *837 On August 3, 2003, while the suit was pending, Epps filed for Chapter 13 bankruptcy. According to Epps, the Commission was given notice of the bankruptcy, appeared at the hearing, and filed a claim for administrative penalties. On September 10, 2004, Epps's case was converted from a Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. Epps was discharged from Chapter 7 bankruptcy on December 27, 2004. On December 15, 2005, following Epps's discharge from bankruptcy, the district court heard evidence and arguments in the case. Following trial, the court rendered judgment imposing $14,000 in administrative penalties, $10,000 in civil penalties, and $36,863.20 in reasonable plugging expenses jointly and severally from Strata, Epps, and Brandes. This portion of the judgment reflected penalties and reimbursement expenses imposed regarding the Salinas and Oliveira wells.[3] Strata, Epps, and Brandes were also ordered, jointly and severally, to plug the Oliveira No. 3. The district court also imposed $12,000 in administrative penalties and $10,000 in civil penalties jointly and severally from Strata and Epps in connection with the remaining two sets of wells and enjoined Strata and Epps, jointly and severally, to plug the Q.K. Barber Well No. 1, according to Commission rules. In addition, the court ordered that the State recover attorney's fees in the amount of $7,500 and court costs in the amount of $343 jointly and severally from all appellants. The district court subsequently made findings of fact and conclusions of law. Strata, Epps, and Brandes appealed. DISCUSSION Plugging cost reimbursement In their first issue, appellants argue that the cost of plugging the wells was a pre-petition debt that was discharged by Epps's discharge from Chapter 7 bankruptcy. The State disagrees. Additionally, the State brings a cross-point in which it urges that the plugging cost reimbursement debt was not discharged in bankruptcy because the Commission had no notice of the bankruptcy. While Strata, Epps, and Brandes argue this issue collectively, only Epps filed for bankruptcy and raised the affirmative defense of discharge. We also note that Epps's argument regarding discharge is limited to his liability for plugging costs, not the administrative or civil penalties. Consequently, this issue concerns only Epps's liability for plugging-cost reimbursement. Discharge of pre-petition debt Under the bankruptcy code, whether a claim for payment of the type at issue in this case is discharged depends on when that claim arose. The bankruptcy code defines a "claim" as a: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, *838 unmatured, disputed, undisputed, secured, or unsecured. 11 U.S.C.A. § 101(5) (West Supp.2008). As the statute explicitly states, whether a claim is unliquidated, contingent, unmatured, or unsecured is immaterial. The bankruptcy code requires only that the elements giving rise to liability occurred before the bankruptcy petition was filed. Congress intended a broad construction of the term "claim" to permit the broadest possible relief in bankruptcy court. Johnson v. Home State Bank, 501 U.S. 78, 83-86, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991); In re National Gypsum, 139 B.R. 397, 405 (N.D.Tex.1992). As the National Gypsum court observed: The legislative history of the Code reflects Congress' intent that the term "claim" be given broad interpretation so that all legal obligations of the debtor, no matter how remote or contingent will be able to be dealt with in the bankruptcy case. The courts accordingly have given a broad and expansive reading to the term "claim." National Gypsum, 139 B.R. at 405 (internal citations omitted). Thus, courts must look to the earliest possible date upon which a claim may arise, so as to maximize the scope of a discharge. Id. at 404-09. Whether a claim is a pre-petition claim requires an examination of the underlying substantive law. Id. at 405. At issue here are provisions of the natural resources code governing the plugging and replugging of oil and gas wells. The legislature authorized the Commission to plug or replug oil and gas wells in certain circumstances: (a) If the commission determines at a hearing under Section 89.041 of this code that a well has not been properly plugged or needs replugging, the commission, through its employees or through a person acting as agent for the commission, may plug or replug the well if: (1) the well was properly plugged according to rules in effect at the time the well was abandoned or ceased to be operated; or (2) neither the operator nor nonoperator properly plugged the well, and (A) neither the operator nor nonoperator can be found; or (B) neither the operator nor nonoperator has assets with which to properly plug the well. Tex. Nat. Res.Code Ann. § 89.043(a). After the Commission plugs or replugs a well under section 89.043(a), the Commission may order the operator to reimburse plugging costs and may enforce its order by filing suit, and: (3) if the commission plugs the well, the commission: (A) by order may require the operator to reimburse the commission for the plugging costs; or (B) may request the attorney general to file suit against the operator to recover those costs; Id. § 89.043(c)(3). Thus, it is only after the Commission plugs a well that the Commission may order reimbursement for plugging costs from the well operator. In other words, the cause of action is not ripe until the Commission actually plugs the well. See id. § 89.083(f) (West Supp.2007) ("If the commission plugs a well under Sections 89.043 through 89.044 of this code, the state has a cause of action for all reasonable expenses incurred in plugging or replugging the well and not recovered under Section 89.085 of this code or through reimbursement to the commission.") (emphasis added). Epps argues that, under the natural resources code, even if the State's reimbursement claim was not ripe before Epps *839 filed his bankruptcy petition, the State's contingent claim arose for bankruptcy purposes when Strata failed to comply with the Commission's plugging orders, thirty days after the orders were issued. To support its argument, Epps relies chiefly on National Gypsum, 139 B.R. 397. The issue in National Gypsum was whether future environmental response and resource damage costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[4] were "claims" within the meaning of the bankruptcy code. Id. at 403. According to the court, "[a] claim exists only if before filing of the bankruptcy petition, the relationship between the debtor and the creditor contained all the elements necessary to give rise to a legal obligation — `a right to payment' — under the relevant non-bankruptcy law." Id. at 405. Even if the claims under the applicable statutory provisions are not yet ripe for adjudication at the time the bankruptcy petition is filed, as long as "all the elements that can give rise to liability" have occurred pre-petition, the claim is a pre-petition claim that is discharged in bankruptcy. Id. Similar to the claims at issue here, the CERCLA claims in National Gypsum were not ripe until after the cleanup. "Liability is not assessed until after the EPA has investigated a site, decided what remedial measures are necessary, and determined which potentially responsible persons will bear the costs." Id. (quoting In re Combustion Equip. Assoc., Inc., 838 F.2d 35, 37 (2d Cir.1988)). Although the amount of the claim may be unknown prepetition, in light of an underlying statutory scheme in which speedy remediation is promoted by requiring cleanup before suit can be brought for reimbursement and in light of Congress's intent that the term "claim" be given a broad interpretation, the court ultimately held that "all future response and natural resource damages costs based on pre-petition conduct that can be fairly contemplated by the parties at the time of Debtors' bankruptcy are claims under the Code." Id. at 409. Other cases interpreting the interplay between environmental cleanup statutes and the bankruptcy code also support Epps's position. For example, addressing the interplay between the bankruptcy code and CERCLA, some courts have applied a foreseeability analysis to determine at what point CERCLA claims arose or were contingent. See, e.g., In re Chicago, Milwaukee, St. Paul & Pac. R.R., Co., 974 F.2d 775 (7th Cir.1992); Mesiti v. Microdot, Inc., 156 B.R. 113 (D.N.H.1993). A claim was foreseeable under CERCLA, for example, where parties knew that the hazardous substance had been released, that response costs would be incurred, that such a hazardous release likely fell within the purview of CERCLA, and that derailment of the debtor's train had caused the hazardous release. Chicago, 974 F.2d at 787. Though still a contingent claim, the bankruptcy debtor could be tied to a known release of hazardous substances; therefore, the claim had arisen under CERCLA at the time of bankruptcy. Id. at 786. The Fifth Circuit has employed a similar analysis in its interpretation of the interplay between the bankruptcy code and environmental statutes. For example, addressing an environmental liability claim against the debtor, the Fifth Circuit affirmed the bankruptcy court's determination that, because the claimant became aware of the hazardous release before the close of the bankruptcy case and because *840 the claimant had information that would allow a connection to be made between the debtor and the hazardous release, the claim arose pre-petition. In re Crystal Oil Co., 158 F.3d 291, 296-97 (5th Cir.1998). The Fifth Circuit has also adopted a similar test for non-environmental claims, interpreting the term "claim" broadly in favor of discharge. Attempting to define the scope of "claim" in considering whether a claim for tort liability arose pre-petition, the court explained that "a claim arises at the time of the debtor's negligent conduct forming the basis for liability only if the claimant had some type of specific relationship with the debtor at that time." Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1276 (5th Cir.1994). Applying this test, the court held that the tort-liability claim did not arise pre-petition because the injury occurred three years after the bankruptcy petition was filed and no pre-petition relationship had existed between the parties. Id. at 1277. In another case, the Fifth Circuit reviewed certain state court claims against the claimant's ex-husband to determine whether those claims arose pre- or post-petition. In re Egleston, 448 F.3d 803, 812-14 (5th Cir.2006). The state court settlement order between the parties had ordered the ex-husband to pay alimony to the ex-wife. Id. at 805. Six months later, the ex-husband filed for bankruptcy. Id. He then failed to make some of the alimony payments and was held in contempt of court. Id. at 806-07. Unable to pay her bills without the alimony payments, the ex-wife lost both her home and her car. Id. at 807. A state court again found the ex-husband in contempt and, among other things, ordered him to pay certain sums to compensate his ex-wife for her lost house and car. Id. Affirming the judgment of the lower courts, the Fifth Circuit held that the portions of the state court judgment at issue arose pre-petition and, therefore, represented the ex-husband's liability for discharged debt. Id. at 812-14. The court reasoned that the state court awards had been made to compensate the ex-wife for her loss of the house and the vehicle and that she had been unable to continue making payments as a direct result of her ex-husband's failure to make alimony payments. Id. at 813. The ex-husband had breached his obligation to make payments pre-petition. Id. In addition, foreclosure proceedings on the house had begun pre-petition, and the car was "up for repossession" pre-petition. Id. Although the debts had not matured pre-petition, they arose pre-petition and were, therefore, discharged under the bankruptcy code's "broad definition of `claim.'" Id. at 814. The cases cited by the State to support its position that the claim did not exist at the time the bankruptcy petition was filed are unpersuasive. In one case, the issue was whether an action of the Department of Environmental Resources (DER) was an action to enforce a money judgment under section 362(b)(5) of the bankruptcy code and, therefore, an action subject to the automatic stay. Penn Terra, Ltd. v. Department of Envtl. Res., 733 F.2d 267, 272 (3d Cir.1984). Contrary to the State's interpretation, the court in Penn Terra determined whether the actions of the DER were an attempt to enforce a money judgment; the court did not determine whether a pre-petition order to take environmental correction actions constituted a "claim" under section 101(5). Id. The court concluded that the suit brought by DER was brought as an equitable action to prevent future harm, not as an action to enforce a "money judgment" because a money judgment must result in the "adjudication of liability for a sum certain." Id. at 275-78. Thus, according to the court, the "police powers" exception to the automatic stay provision found in section *841 362(b)(5) was applicable.[5]Id. at 278-79. The court did not address what constitutes a "claim" under section 101(5). See id. at 274-79. In another case cited by the State, the issue was, similarly, whether the EPA's enforcement action against Commonwealth qualified as the enforcement of a money judgment under section 362(b)(5) of the bankruptcy code. Commonwealth Oil Ref. Co. v. EPA, 805 F.2d 1175 (5th Cir.1986). The State correctly states the court's holding that the EPA's order was an exercise of the EPA's police or regulatory powers and not an action to enforce a money judgment; therefore, the automatic stay did not apply to the EPA's actions. This holding, however, has no application to the present case. In the third case cited by the State to support its position, the issue was whether the automatic stay provision applied where the debtor's acts occurred pre-petition but the resulting cause of action arose post-petition. In re M. Frenville Co., 744 F.2d 332, 333 (3d Cir.1984). A & B, a certified public accounting firm, had been engaged by M. Frenville Co., Inc., as an independent auditor and accountant and, in this capacity, prepared financial statements for Frenville. Creditors of Frenville filed an involuntary petition in bankruptcy against Frenville. Id. Several banks also filed suit against A & B, alleging that the financial statements had been negligently and recklessly prepared. Id. A & B sought to include Frenville in this proceeding to obtain indemnification or contribution from Frenville for any loss suffered by A & B as a result of the banks' suit. Id. at 333-34. The bankruptcy judge, however, refused to lift the automatic stay, which barred A & B's action for indemnification and contribution. Id. at 334. According to the court, the applicability of the automatic stay depended on whether the claim arose pre-petition or post-petition. Id. at 336. More specifically, the determination to be made was at what point the claimant had a right to payment for indemnity or contribution. Id. Under New York law, a third-party complaint for contribution or indemnity may only be brought after the defendant (A & B) serves his answer in the suit brought by the plaintiff (the banks). Id. at 337. A claim for contribution or indemnification does not accrue at the time of Commission of the underlying act but at the time of payment of the judgment stemming from a claim on the underlying act. Id. at 337. Thus, before suit was brought by the banks, A & B had no claim or cause of action against Frenville. Id. at 337. A & B would only have a right to payment from the banks if A & B were found liable to the banks. Id. Therefore, once suit was brought by the banks, even before A & B filed its answer, A & B would have an unmatured, unliquidated, disputed claim.[6]Id. At the time the bankruptcy petition was filed, the banks had not filed suit; therefore, A & B had no claim against Frenville. Id. *842 Here, the State is in a position analogous to the banks in Frenville. It is the State that has the right to bring suit against Epps, not some other third party. The State had a right to payment thirty days after Epps failed to comply with Commission orders even though its claim had not yet been filed and was, therefore, unmatured, unliquidated, and disputed. Under section 101(5), however, even though the claim was unmatured, unliquidated, and disputed, the elements giving rise to liability occurred before the bankruptcy petition was filed. Consequently, the State's claim arose pre-petition. See 11 U.S.C.A. § 101(5). We note that all three cases cited by the State interpret the automatic stay provisions of the bankruptcy code. To the extent that those provisions apply here, they support Epps's rather than the State's position. Section 362 requires that the filing of a petition in bankruptcy operates as a stay of: the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title 11 U.S.C.A. § 362(a)(1) (West Supp.2008) (emphasis added). The automatic stay would apply to the State's claim, as the claim "could have been commenced" thirty days after Strata failed to comply with the Commission's orders of September and November 2000. Conversely, in Frenville, for example, the claim at issue was an action for indemnity. 744 F.2d at 335. Under New York law, the claim could not be filed until the defendant served his answer in the suit brought by the plaintiff. Id. The suit was not initiated by plaintiffs until fourteen months after bankruptcy was filed; therefore, the automatic stay did not apply. Here, however, the State could have plugged the wells and then filed its claim for indemnity at any time following thirty days of Strata's noncompliance with the Commission's order. Broadly summarizing its arguments, the State asserts that "[i]n Texas, unlike other federal environmental laws, the right to payment does not come into existence when the violation occurs; rather, in Texas, the Commission's right to payment only exists if and only if the Commission plugs or replug [sic] a well." In essence, the State is arguing that the underlying substantive federal and state and state environmental laws operate differently despite the similarities in procedures by which reimbursement claims arise and are filed. The State, however, cites no authority for this proposition, and the cases cited and discussed above in support of this proposition either do not apply or offer no support for the State's position. We conclude that the State's claim arose before the bankruptcy was filed and, therefore, assuming the State had notice of the claim, the reimbursement claim against Epps should have been discharged in his bankruptcy. Accordingly, we sustain Epps's first issue. Notice Under section 523(a)(3) of the bankruptcy code, "Exceptions to Discharge," a debtor is not discharged from any debt that is: (3) neither listed nor scheduled under section 521(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit — (A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor *843 had notice or actual knowledge of the case in time for such timely filing; or (B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dis-chargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request. 11 U.S.C.A. 523(a)(3) (West Supp.2008). Here, there is no evidence, and Strata does not assert, that the plugging expenses reimbursement claim was a listed or scheduled debt.[7] Consequently, discharge here turns on whether the State had "notice or actual knowledge of the case in time for" timely filing of a proof of claim and timely request for a determination of dischargeability. The district court found that "[t]he Commission had notice or actual knowledge of the bankruptcy of Stephen Bland Epps." In its cross-point, the State argues that the plugging-cost reimbursement liability could not have been discharged in Epps's bankruptcy because the evidence is insufficient to support the trial court's finding that the State had notice of the bankruptcy proceeding. In reply, Epps argues that the State had the burden of proof on this issue but failed to present any evidence to prove that it had no notice. Further, according to Epps, even if Epps had the burden of proof on the notice issue, the record contains sufficient evidence to support the court's judgment. Discharge in bankruptcy is an affirmative defense. Tex.R. Civ. P. 94; In re Haga, 131 B.R. 320, 327 (Bankr. W.D.Tex.1991); In re Anderson, 72 B.R. 495, 496 (Bankr.Minn.1987). The affirmative defense of discharge establishes a prima facie defense to any claim brought against the debtor for a pre-petition debt. In re Haga, 131 B.R. at 327. It is the debtor's burden to establish discharge, and as part of its burden, the debtor must show that the creditor had notice or actual knowledge of the case in time to file a proof of claim and request for a determination of dischargeability. Id.; Walters v. Hunt, 146 B.R. 178, 183 (Bankr.W.D.Tex. 1992). Thus, Epps has the burden of showing that the State had notice or actual knowledge of the case in time to file a proof of claim and request for determination of dischargeability. When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which it does not have the burden of proof, that party must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing a no evidence point, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). If there is more than a mere scintilla of evidence to support the finding, the evidence is legally sufficient, and we will overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). When the evidence of a vital fact is "so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Ford *844 Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). The State maintains that, pursuant to section 523(a)(3), there is no evidence that it had notice of the bankruptcy proceedings. Further, even if there is evidence of notice, the State argues, there is no evidence establishing when the proceeding occurred, and it was Epps's burden to establish that the State had "notice or actual knowledge of the case in time for such timely filing and request." See 11 U.S.C.A. § 523(a)(3)(B). Therefore, according to the State, Epps cannot be discharged from its debt for plugging costs. Although the State is correct that no evidence establishes when the referenced proceeding occurred and whether such proceeding occurred in time to allow the State to timely file its claim, the State conceded in its post-trial brief that it had, indeed, filed a claim in the bankruptcy proceeding initiated by Epps's August 3, 2003 bankruptcy petition: Plaintiff's claim for administrative penalties is nondischargeable under federal bankruptcy law. Defendant Steven Bland Epps filed for bankruptcy protection on August 3, 2003 in the United States Bankruptcy Court for the Southern District of Texas. The Commission filed a claim for $22,800.00 in administrative penalties as an unsecured nonpriority claim. In so stating, the State has conceded that it had actual notice of the bankruptcy sufficient to allow it to file its claim before the deadline. See 11 U.S.C.A. 523(a)(3)(B).[8] Viewing the evidence of notice in the light most favorable to the judgment, we conclude that there was sufficient evidence to support the district court's finding that the State had notice or actual knowledge of Epps's bankruptcy. See City of Keller, v. Wilson, 168 S.W.3d 802, 829-30 (Tex. 2005). Accordingly, we overrule the State's cross-point and hold that Epps's liability for plugging-expense reimbursement was discharged in his bankruptcy. Water-well conversions of Salinas No. 4 and Oliveira No. 4 As Epps's liability for plugging-cost reimbursement was discharged in his bankruptcy, appellants' remaining challenges to the plugging-cost reimbursement award concern only Brandes and Strata. In their second issue, appellants argue that they should not be responsible for the plugging costs on the Salinas No. 4 and the Oliveira No 4 because the State converted the wells to water wells for the benefit of the landowner without notice to appellants. These actions, appellants maintain, violated the Commission's own rules and preclude the State from charging the cost of conversion to appellants. The State responds that, even if the Commission converted the wells to water wells without giving notice to appellants, the State's claim for plugging cost reimbursement is unaffected. Commission rules allow it to plug dry or inactive wells in the following circumstances: *845 (A) After notice and hearing, if the well is causing or is likely to cause the pollution of surface or subsurface water or if oil, gas, or other formation fluid is leaking from the well, and: (i) Neither the operator nor any other entity responsible for plugging the well can be found; or (ii) Neither the operator nor any other entity responsible for plugging the well has assets with which to plug the well. (B) Without a hearing if the well is a delinquent inactive well and: (i) the Commission has sent notice of its intention to plug the well as required by § 89.043(c) of the Texas Natural Resources Code; and (ii) the operator did not request a hearing within the period (not less than 10 days after receipt) specified in the notice. (C) Without notice or hearing, if: (i) The Commission has issued a final order requiring that the operator plug the well and the order has not been complied with; or (ii) The well poses an immediate threat of pollution of surface or subsurface waters or of injury to the public health and the operator has failed to timely remediate the problem. 16 Tex. Admin. Code § 3.14(b)(4) (2007). If state funds are expended for the above plugging operations, "the Commission may seek reimbursement from the operator and any other entity responsible for plugging the well." Id. § 3.14(b)(5). This was the basis for the plugging reimbursement claims against appellants. Here, the Commission plugged the wells pursuant to section 3.14(b)(4)(C)(i). See id. § 3.14(b)(4)(C)(i). The Commission issued orders requiring that appellants bring the Salinas and Oliveira wells into compliance or plug them. It is undisputed that appellants did not comply with these orders. Therefore, the State was authorized to plug these wells pursuant to section 3.14(b)(4)(C)(i). See id. Commission rules also specify general requirements for plugging. Id. § 3.14(d). These rules provide that when a well is converted to a water well, the operator must plug the well up to the base of the usable quality water strata. See id. § 3.14(a)(4)(A). Further, Mark England, an engineering specialist for the field operation section of the Commission's oil and gas section, testified that plugging the wells by converting them into water wells cost the State less than completely plugging the wells. The crux of appellants' argument is that while the Commission had the right to seek reimbursement for fully plugging the wells, the Commission cannot recover those costs if it plugs the well in a manner allowing it to be used as a water well — even when doing so would cost the State less than fully plugging the well, and yield the added benefit of a water well. We find no support for appellants' contention. We conclude that the Commission plugged the Salinas No. 4 and Oliveira No. 4 consistent with the requirements of sections 3.14(b)(4) and (5) of its rules. The fact that the Commission's method of plugging also provided a benefit to the landowner by converting the wells into water wells has no bearing on the State's ability to "seek reimbursement from the operator and any other entity responsible for plugging the well," and appellants cite no authority indicating otherwise. See id. 3.14(b)(5). Accordingly, we overrule appellants' second issue. Salvage of equipment In appellants' third issue, they argue that they are not liable for the costs of *846 plugging the Salinas Well Nos. 1 and 2 and the Oliveira Well Nos. 1 and 2A because the State failed to prove certain reimbursement amounts — specifically, the value of wellsite equipment that the Commission salvaged — that appellants are entitled to offset against plugging costs. The State responds that the natural resources code allows, but does not require, such an offset and that to challenge the value of the offset, appellants were required to make a claim on the oil-field cleanup fund under section 89.086 of the code. See Tex. Nat. Res.Code Ann. § 89.086 (West Supp.2007). Appellants' argument is essentially an evidentiary-sufficiency challenge: The State did not meet its burden of proof by a preponderance of the evidence that the plugging costs for those wells identified in State Exhibit 5, for which the trial court awarded judgment for reimbursement, complied with the requirements of § 89.083(f); that is, the plugging costs incurred by the State, less properly priced wellsite equipment sold by the Railroad Commission at the statutory value. Appellants dispute the State's contention that wellsite equipment sold by the State to offset reimbursement costs was sold at the generally recognized market value. At trial, Epps testified as to his opinion of the generally recognized market value, which, in his view, was "greatly in excess" of the salvage price set by the Commission. Read together, sections 89.083(f) and 89.085 of the natural resources code allow the Commission to offset reimbursement costs with proceeds from the sale of equipment: (f) If the commission plugs a well under Sections 89.043 through 89.044 of this code, the state has a cause of action for all reasonable expenses incurred in plugging or replugging the well and not recovered under Section 89.085 of this code or through reimbursement to the commission. Tex. Nat. Res.Code Ann. § 89.083(f). To the extent that the Commission decides to dispose of well equipment, section 89.085 requires it to do so "in a commercially reasonable manner" to cover plugging costs: (a) When the commission forecloses its lien under Section 89.083 on a delinquent inactive well, well-site equipment and any amount of hydrocarbons from the well that is stored on the lease are presumed to have been abandoned and may be disposed of by the commission in a commercially reasonable manner by either or both of the following methods: (1) entering into a plugging contract that provides that the person plugging or cleaning up pollution, or both, will take title to well-site equipment, hydrocarbons from the well that are stored on the lease, or hydrocarbons recovered during the plugging operation in exchange for a sum of money deducted as a credit from the contract price; or (2) selling the well-site equipment, hydrocarbons from the well that are stored on the lease, or hydrocarbons recovered during the plugging operation at a public auction or a public or private sale. Id. § 89.085(a) (West Supp.2007). Further, The commission shall dispose of well-site equipment or hydrocarbons under this section at a price or value that reflects the generally recognized market value of the equipment or hydrocarbons, with allowances for physical condition. Id. § 89.085(c). According to appellants, "[t]he evidence is undisputed that the Commission disposed of wellsite equipment, *847 State Ex. 5, but not at the price or value required by statute."[9] The district court concluded that "[t] he reasonableness of the amounts for which salvaged equipment was sold is irrelevant to Strata Resources, Steven Bland Epps, and Charles W. Brandes's liability for state funds spent to plug the wells in question." At trial and on appeal, the State has argued that the exclusive means of asserting rights to proceeds of well equipment sales is not section 89.083 or section 89.085, as appellants assert, but in the statutes governing claims against the oil-field cleanup fund. See id. § 89.086. Because such proceeds are deposited in the oil-field cleanup fund, the State maintains that the claimant must file his claim against the fund pursuant to section 89.086: A person with a legal or equitable ownership or security interest in well-site equipment or hydrocarbons disposed of under Section 89.085 of this code may make a claim against the oil-field cleanup fund.... Id. § 89.086(a). In addressing such a claim, the Commission may conduct a hearing to receive evidence. Id. § 89.086(e). If the claimant is not satisfied with the Commission's decision on such a claim, he may appeal to the Travis County district court. Id. § 89.087(a) (West 2001). As the statutory scheme for making a claim on the oil-field cleanup fund is separate and independent from the Commission's claim for reimbursement of plugging costs, we hold that the district court was correct in concluding that "[t]he reasonableness of the amounts for which salvaged equipment was sold is irrelevant." To challenge the value the Commission obtained when disposing of their wellsite equipment, appellants were required to make a claim on the oil-field cleanup fund pursuant to section 89.086. Appellants made no such claim. Accordingly, we overrule appellants' third issue. Civil Penalties In their fourth issue, appellants challenge the district court's judgment imposing civil penalties against them. The civil penalties were based on section 85.381 of the natural resources code: (a) In addition to being subject to any forfeiture provided by law and to any penalty imposed by the commission for contempt for violation of its rules or orders, any person who violates the provisions of Sections 85.045 and 85.046 of this code, Title 102, Revised Civil Statutes of Texas, 1925, as amended, including provisions of this code formerly included in that title, or any rule or order of the commission promulgated under those laws is subject to a penalty of not more than: (1) $10,000 when the provision, rule, or order pertains to safety or the prevention or control of pollution; or (2) $1,000 when the provision, rule, or order does not pertain to safety or the prevention or control of pollution. (b) The applicable maximum penalty may be assessed for each and every day of violation and for each and every act of violation. *848 Tex. Nat. Res.Code Ann. § 85.381 (West 2001). The district court imposed civil penalties of $5,000 for appellants' violations of the administrative orders regarding each of the four groups of wells at issue. Consequently, it imposed a total of $20,000 in penalties — $10,000 of which Strata, Epps and Brandes were jointly and severally liable, and another $10,000 for which only Strata and Epps were jointly and severally liable. Appellants contend that legally and factually insufficient evidence supports the district court's civil penalties award because the court made no finding of the precise number of days for which they were in violation of each of the administrative orders. It is undisputed that none of the appellants complied with any of the four orders prior to trial. Based on the date of the orders and the date of trial, the orders that implicated only Strata and Epps were violated for a total of 3,722 days, while the orders that also implicated Brandes were violated for total of 16,488 days.[10] Thus, there is evidence in the record that Brandes was in violation of Commission orders for a total of 16,488 days while Strata and Epps were in violation of Commission orders for a total of 20,210 days. When a trial court finds one or more elements of a ground of recovery or defense, omitted elements "will be supplied by presumption in support of the judgment" if supported by the evidence. Tex.R. Civ. P. 299. The district court was authorized, based on the number of days the evidence showed each appellant was in violation and the statutory per-day maximums for civil penalties, to impose civil penalties for as much as $202,100,000 for Strata and Epps and $164,880,000 for Brandes. The district court's assessment of penalties of $20,000 for Strata and Epps and $10,000 for Brandes is, thus, well within the range of its authority and the evidence. Having found the evidence sufficient to support the trial court's award of civil penalties, we overrule appellants' fourth issue.[11] *849 Attorney's fees In their fifth issue, appellants challenge the district court's award of $7,500 in attorney's fees, imposed jointly and severally against Strata, Epps, and Brandes. Appellants argue that there is insufficient evidence of the reasonableness or necessity of the fees. Relatedly, appellants complain that the State failed to segregate its attorney's fees incurred in prosecuting claims for which fees were recoverable from those in which fees were not recoverable. The State presented the following evidence of its attorney's fees: • During its four-year pendency of the case prior to trial (October 18, 2001 through December 15, 2005), seven attorneys represented the State. • In total, State attorneys spent a total of 127 hours on the case. • State attorneys served no discovery on appellants. • The trial attorney, who had been practicing for one and one-half years, had a billing rate of $150 per hour. The State, however, did not segregate its attorney's fees between claims or defendants. The State asserted different claims against Epps and Brandes in which it could recover attorney's fees. The State could recover administrative and civil penalties against Epps in connection with all four groups of wells, but against Brandes regarding only two groups of wells. Conversely, while the State was entitled to recover well-plugging expenses against Brandes, we have held that such expenses were not recoverable against Epps. A claimant is required to segregate attorney's fees between claims for which attorney's fees are recoverable and those for which fees are not recoverable. Tony Gullo Motors v. Chapa, 212 S.W.3d 299, 313 (Tex.2006). It is only when legal services advance both recoverable and unrecoverable claims that the services are so intertwined that the associated fees need not be segregated. Id. at 313-14. Here, the claims for civil penalties, administrative penalties, and reimbursement of well-plugging expenses were separate and distinct. To prove its claim for civil penalties, the State needed only to prove that appellants failed to comply with Commission orders. To prove its claim for reimbursement costs, however, the State needed to show that it had plugged the wells and incurred plugging costs in compliance with the natural resources code. The State was also required to address Epps's affirmative defense that his claims for reimbursement had been discharged in bankruptcy. Indeed, the record shows that most of the trial focused on the State's reimbursement claim rather than the State's claim for civil penalties. Although the claims are not necessarily "so intertwined" that they could not have been segregated, the State's fee entries include only general entries, such as "reviewing/researching file(s)" and "conferring with agency personnel." See id.; Owens v. Ousey, 241 S.W.3d 124, 134 (Tex.App.-Austin 2007, pet. denied). Based on the evidence, we cannot conclude that there is sufficient evidence that the amount of attorney's fees for which each appellant was held jointly and severally liable-$7,500-was reasonable. We, therefore, remand to the district court to segregate and award attorney's fees based only on the State's recoverable claims against each appellant. See Owens, 241 S.W.3d at 134 (remanding because evidence of attorney's fees for entire *850 case is some evidence of what amount of segregated fees should be). To this extent, we sustain appellants' fifth issue. CONCLUSION We reverse the district court's judgment awarding the State reimbursement from Epps for well-plugging costs. We remand the case to the district court for further proceedings regarding the amount of attorney's fees imposed against each appellant. We otherwise affirm the district court's judgment. SUPPLEMENTAL OPINION The State has filed a motion for rehearing, which we overrule. Conditioned upon our overruling its motion with regard to attorney's fees, the State, in an attempt to cure the reversible error, has voluntarily remitted $7,200 of the $7,500 in attorney's fees awarded in the district court's judgment against Epps, and the entire amount of $7,500 in fees awarded against Strata. See Tex.R.App. P. 46 .5. Appellants do not oppose this remittitur. We accept the State's remittitur. Accordingly, we withdraw our judgment dated July 11, 2008, and render judgment (1) that the district court's judgment awarding the State reimbursement from Epps for well-plugging costs is reversed and that the State take nothing on those claims; (2) that the district court's judgment is reformed to award the State $300 in attorney's fees against Epps and no attorney's fees against Strata and, as so reformed, is affirmed; and (3) that the district court's judgment is otherwise affirmed. NOTES [1] A form P-4 is a Producer's Transportation Authority and Certificate of Compliance. [2] For convenience, we cite to the current versions of statutes and rules except where language in the prior version affects our analysis or the outcome. Rule 3.58(a) provides: The Commission form P-4 establishes the operator of an oil lease, gas well, or other well; certifies responsibility for regulatory compliance, including plugging wells in accordance with § 3.14 of this title (relating to plugging); and identifies gatherers, purchasers, and purchasers' commission-assigned system codes authorized for each well or lease. Operators shall file form P-4 for new oil leases, gas wells, or other wells; recompletions; reclassifications of wells from oil to gas or gas to oil; consolidation, unitization or subdivision of oil leases; or change of gatherer, gas purchaser, gas purchaser system code, operator, field name or lease name. [3] These amounts, according to the district court's subsequent findings of fact and conclusions of law, represented $17,705.70 in plugging expenses, $6,000 in administrative penalties, and $5,000 in civil penalties related to the Salinas wells; and $19,157.50 in plugging expenses, $8,000 in administrative penalties, and $5,000 in civil penalties related to the Oliveira wells. [4] Under CERCLA, private parties that incur costs in cleaning up hazardous substances may bring suit against certain statutorily defined responsible parties to recoup those costs. 42 U.S.C.A. § 9607(a)(4)(B) (West 2005). [5] Section 362(b)(5) provides: (b) The filing of a petition under section 301, 302, or 303 of this title does not operate as a stay (5) under subsection (a)(2) of this section, of the enforcement of a judgment, other than a money judgment, obtained in an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power 11 U.S.C.A. § 362(b)(5) (West Supp.2008). [6] The court emphasized that, had an indemnity contract existed between the banks and A & B, A & B would have had a contingent right to payment even before the banks filed suit; however, no such contract existed in this case. In re M. Frenville Co., 744 F.2d 332, 337 (3d Cir.1984). [7] Although Strata's Exhibit 5 appears to show that Strata listed the State as a creditor under the name of Ronald R. DelVento, who was the chief of the Bankruptcy and Collections Division at the Attorney General's Office, there is no evidence that any debts to the State were scheduled. [8] Epps also presented some evidence of the filing of his Chapter 13 bankruptcy petition on August 3, 2003, later conversion to a Chapter 7 case on September 10, 2004, and entry of an order of discharge on December 27, 2004. When asked whether, during the bankruptcy proceeding which is shown by Exhibits 4 and 5, a representative of the Commission appeared at any of the hearings held in that proceeding, Epps responded in the affirmative. Specifically, Epps responded that Guy Grossman, the director for District 3, had attended the bankruptcy proceedings. He further testified that, to his knowledge, the Commission was "fully aware of what was going on." [9] In their initial brief, appellants also argued that the Commission failed to account for all equipment. However, in their reply brief, appellants concede that "[t]he evidence is undisputed that the Commission disposed of wellsite equipment, State Ex. 5, but not at the price or value required by statute." We, therefore, address only the "price or value" for which the equipment was sold. [10] The calculations are as follows: September 12, 2000: issued for one well, Q.K. Barber, Well No. 1, for failure to pay administrative penalty; implicates Strata and Epps; 1,890 days of violation (from the 30 days after the date of the order, September 12, 2000 to the date of trial, December 15, 2005). November 9, 2000 order 1: issued for four wells, Guzman, Well No. 12, Ramirez, Well No. 14, Ramirez Guzman, Well No. 7, and Guzman-Ramirez, Well No. 8, for failure to pay administrative penalty; implicates Strata and Epps; these wells were brought into compliance by Strata on December 9, 1999; 1832 days of violation for failure to pay $8,000 administrative penalty (from 30 days after the date of the order, November 9, 2000 to the date of trial, December 15, 2005); 1832 days of violation for each Strata and Epps. November 9, 2000 order 2: issued for three wells, Salinas, Wells No. 1, 2, and 4; implicates Strata, Epps, and Brandes; 1832 days of violation for each well for failure to plug or for failure to pay reimbursement costs and 1832 days for failure to pay administrative penalty (from 30 days after the date of the order, November 9, 2000 to the date of trial, December 15, 2005); 1832 times 4 equals 7,328 days of violation for each Strata, Epps, and Brandes. November 9, 2000 order 3: issued for four wells, Oliveira, Wells No. 1, 2A, 3, and 4; implicates Strata, Epps, and Brandes; 1832 days of violation for each well for failure to plug or for failure to pay reimbursement costs and 1832 days for failure to pay administrative penalty (from 30 days after the date of the order, November 9, 2000 to the date of trial, December 15, 2005); 1832 times 5 equals 9,160 days of violation for each Strata, Epps, and Brandes. [11] Our disposition of appellants' issue renders moot the State's cross-point challenging the district court's fact finding that State Exhibit 4, which contained both the administrative orders and the State's calculations of the numbers of days of violation, "does not identify the number of days of violation by Strata Resources, Steven Epps or Charles Brandes."

896 F.2d 554 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(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 Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Ray WALDROP and Ricky D. May, Defendants-Appellants. Nos. 89-5671, 89-5769. United States Court of Appeals, Sixth Circuit. Feb. 28, 1990. Before KEITH and KRUPANSKY, Circuit Judges, and ENGEL, Senior Circuit Judge. PER CURIAM: 1 Defendant Ray Waldrop ("Waldrop") appeals the district court's January 31, 1989 denial of his motion to suppress evidence seized pursuant to a state search warrant. The district court found that although the state search warrant did not comply with the standard set forth in Rule 41 of the Federal Rules of Criminal Procedure, Waldrop's fourth amendment rights were not violated. Defendant Ricky May ("May") appeals the district court's June 13, 1989 denial of his motion for a new trial and its application of the United States Sentencing Commission Guidelines ("Guidelines"). The district court determined that a new trial was unwarranted, because May did not produce any newly discovered evidence that was likely to produce an acquittal if the case were retried. Further, the district court adhered to the Guidelines finding May's arguments for a downward departure unpersuasive. For the reasons set forth below, we AFFIRM. I. A. 2 On October 22, 1988 members of the Organized Crime Unit of the Memphis Police Department obtained a state search warrant based on information that two individuals were selling methamphetamine from a local motel in Memphis, Tennessee. The affidavit for the search warrant and the search warrant were presented to Judge William Hackett of the Shelby County, Tennessee General Sessions Court. The General Sessions Court is not a court of record. 3 The officers set up a surveillance at the motel and observed May and Waldrop in the motel lounge. Waldrop and an unnamed woman returned to the motel room rented by the defendants. Approximately one and a half hours later, the officers observed May depart the lounge and return to the motel room occupied by Waldrop. 4 The officers attempted to enter defendants' motel room and succeeded after some delay. As the officers entered, Waldrop fled the room leaving the woman behind. Waldrop was found outside the motel room dressed only in jeans. 5 Upon entering the motel room, officers observed drug paraphernalia sitting in plain view on the dresser. They also found a thermos containing a plastic bag of methamphetamine. Under May's bed, a gun and holster were found. After May's arrest, he indicated that the gun belonged to him. In May's jacket, the officers found a vial of methamphetamine. B. 6 On October 26, 1988, the grand jury for the Western District of Tennessee returned a one-count indictment charging May and Waldrop with aiding and abetting each other in the possession with intent to distribute 75.5 grams of methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. 7 On December 13, 1988, Waldrop filed a motion to suppress the evidence seized pursuant to the state search warrant. The district court referred the matter to Magistrate James Allen for report and recommendation. After a hearing, the magistrate recommended that the motion to suppress be denied. The district court filed an order denying the motion to suppress on January 31, 1989. On February 21, 1989, Waldrop entered a plea of guilty to the one-count indictment and reserved the right to appeal the denial of his motion to suppress the evidence. Waldrop was sentenced to a term of imprisonment of 41 months and three years of supervised release. On May 19, 1989, Waldrop filed a timely notice of appeal. 8 On February 21, 1989, May was tried before the Honorable Julia S. Gibbons. Testifying on his own behalf, May stated that he was visiting relatives while on vacation in Memphis. He further testified that the jacket he was wearing at the time of his arrest belonged to Waldrop who left it in the motel lounge. May had put the jacket on and was planning to return it to defendants' room when he was arrested. May maintained that he did not know the drugs were in the motel room. The jury returned a guilty verdict on February 22, 1989. 9 May filed a motion for new trial on May 19, 1989. At the evidentiary hearing on May 26, 1989, May testified that he was with Waldrop in Memphis because May's mother had instructed him to monitor Waldrop's whereabouts. May fancied himself an undercover agent for the Louisiana law enforcement authorities who were investigating Waldrop.1 After an evidentiary hearing, the district court denied the motion and sentenced May to a term of imprisonment of 33 months and three years of supervised release. May filed a timely notice of appeal on June 12, 1989. II. A. 10 On appeal, Waldrop contends that the district court erred in denying his motion to suppress. He argues that the evidence, seized pursuant to a state search warrant that fails to comply with Rule 41 of the Federal Rules of Criminal Procedure, should be suppressed.2 We disagree with Waldrop's contentions. We hold that when a search is conducted exclusively by state officials and the case is subsequently turned over to federal officials, the search warrant need only conform to state requirements and federal constitutional requirements. United States v. Anderson, 851 F.2d 384, 390 (D.C.Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 801 (1989); United States v. Comstock, 805 F.2d 1194, 1200-01 (5th Cir.1986), cert. denied, 481 U.S. 1022 (1987); United States v. Chavez, 603 F.2d 143, 146 (10th Cir.1979), cert. denied, 444 U.S. 1018 (1980). As the search was constitutionally sound and conducted in good faith, the fruits of the search should not be excluded. Therefore, we find that the district court properly denied Waldrop's motion to suppress. B. 11 May contends his motion for a new trial was improperly denied. May argues that his post-trial disclosure to his attorney, that his mother dispatched him to remain with Waldrop for the purpose of aiding the Louisiana police in the apprehension and arrest of Waldrop, constitutes newly discovered evidence warranting a new trial. We find May's argument specious. 12 A new trial should be granted on the basis of newly discovered evidence if the following elements are met: (1) the newly discovered evidence was discovered after trial; (2) in the exercise of due diligence, the evidence could not have been discovered earlier; (3) the evidence is material and not merely cumulative and impeaching; and (4) the newly discovered evidence is likely to produce an acquittal if the case were retried. United States v. O'Dell, 805 F.2d 637, 640 (6th Cir.1986), cert. denied, 484 U.S. 859 (1987). In the absence of a clear abuse of discretion, the district court's denial of a new trial based upon newly discovered evidence should not be disturbed. United States v. Allen, 748 F.2d 334, 337 (6th Cir.1984). As May fails to meet even one of the requirements for a new trial based upon newly discovered evidence, we conclude that the district court properly denied his motion for a new trial. 13 May also argues that his trial counsel's assistance was ineffective, in violation of the sixth amendment. To support this allegation, he contends that trial counsel failed to discover, through investigation, that May was acting on behalf of law enforcement officers. We find May's argument to be without merit. 14 In order to establish an ineffective assistance of counsel claim, May must show that counsel's performance was deficient and prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance occurs when counsel's representation falls below an objective standard of reasonableness. Id. at 688. Prejudice occurs when there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would be different. Id. at 694. Because there is insufficient evidence to show that a valid defense existed, May has not shown prejudice for counsel's failure to investigate a fact that May should have disclosed. 15 In challenging the district court's application of the Guidelines, May argues that the two-step enhancement of his offense level for possession of a weapon was improper. May further argues that the district court's refusal to make a downward departure from the Guidelines was in error. We reject these contentions and find that the district court properly sentenced May. 16 A two-step enhancement of the offense level was proper, because May had a firearm in his possession when he was arrested. See United States Sentencing Commission Guidelines Sec. 2D1.1(b)(1) (commentary indicating that a two level increase should be implemented "if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense"). The district court found that it was probable that the gun belonged to May. As this finding is not clearly erroneous, we will not set it aside. United States v. Perez, 871 F.2d 45 (6th Cir.), cert. denied, --- U.S. ----, 106 L.Ed.2d 576 (1989). 17 Finally, while a sentence is appealable if it is greater than the sentence specified in the applicable guideline range, a sentence that adheres to the Guidelines is not appealable for the district court's failure to make a downward departure. See United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.1989). III. 18 After careful review of the record, we hold that the district court properly denied Waldrop's motion to suppress the evidence and May's motion for a new trial. Additionally, we find no error in the district court's application of the Guidelines. Accordingly, the judgment of the Honorable Julia S. Gibbons of the United States District Court for the Western District of Tennessee is AFFIRMED. 1 May did not produce any evidence indicating that he was authorized to violate the law. His contention that he was acting as a secret agent for the Louisiana police is completely uncorroborated by law enforcement authorities 2 Rule 41 provides in pertinent part: A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government. Fed.R.Crim.P. Judge Hackett, who issued the state search warrant, sits on the Shelby County, Tennessee General Sessions Court which is not a court of record.

SECOND DIVISION ANDREWS, P. J., MILLER and BRANCH, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/ July 2, 2015 In the Court of Appeals of Georgia A15A0205. PINKNEY v. THE STATE. MILLER, Judge. A jury convicted Jamaal Pinkney of two counts of attempted armed robbery (OCGA § 16-4-1), two counts of false imprisonment (OCGA § 16-5-41 (a)), and one count each of burglary (OCGA § 16-7-1 (b)), interfering with an emergency telephone call (OCGA § 16-10-24.3), and attempted burglary (OCGA § 16-4-1).1 Pinkney appeals from the denial of his motion for new trial, contending that the trial court erred in (1) denying his motion for a mistrial after defense counsel misstated certain evidence during his opening statement, and (2) admitting into evidence 1 The jury also found Pinkney guilty of two counts of aggravated assault (OCGA § 16-5-21 (b)) and the trial court merged those offenses with the attempted armed robbery convictions. Pinkney’s cell phone number and the records of his cell phone calls and text messages. For the reasons that follow, we affirm. Viewed in the light most favorable to Pinkney’s conviction,2 the record shows that on the evening of December 31, 2011, an elderly woman and her live-in caregiver were watching television at the woman’s home in Lithia Springs. Pinkney had occasionally performed odd jobs for the elderly woman and, earlier that month, Pinkney had stopped by the woman’s house. Just after 11:00 p.m. on December 31, the woman and her caregiver heard what sounded like an explosion, and Pinkney, armed with a square, silver gun, burst through the kitchen door, breaking the door and the doorframe. Pinkney was dressed all in black, with a hooded shirt pulled down over his face and a turtleneck pulled up to his mouth, so that only his eyes were uncovered. Although the women could not see Pinkney’s face, the elderly woman asked Pinkney if she knew him from somewhere and recognized Pinkney by his voice and the way he moved. Once the elderly woman discovered that Pinkney was the intruder, she recognized his facial features as well. 2 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 2  After coming into the living room, Pinkney told the elderly woman and her caregiver to sit down, cursed at them, and pointed his gun at them. Pinkney forced the caregiver to sit down on the sofa by pointing his gun directly in her face. Pinkney asked the women where they kept their money and credit cards and dumped out the contents of the women’s purses and bags onto the floor. The caregiver tried to dial 911 on her cell phone, but Pinkney took her phone and threw it across the room. At one point, Pinkney told the caregiver to pull up her nightgown and threatened to rape her. The elderly woman then started holding her chest and saying that she could not breathe. She became pale and sweaty and started shaking, and the caregiver could not feel the woman’s pulse. Pinkney then made a phone call, said that the victims did not have anything, and asked to be picked up. Pinkney kicked at the contents of the bags that he had dumped on the floor, unlocked the front door, and walked out of the house. Ultimately, nothing was taken from the house. After Pinkney left, the caregiver called 911. A police officer responded just before midnight. Police officers observed that a window going into the basement of the woman’s home had been broken, a lawn chair had been placed under the window and the door from the basement into the house had been forced open. Based on the 3 victims’ statements that the intruder made a phone call, the police officers obtained a court order for records from all the major cell phone carriers showing all calls that went through the cell tower nearest to the woman’s home at the time of the break in. Police officers also spoke to the victims’ neighbors to see if they had seen or heard anything suspicious and someone mentioned Pinkney. A police officer then searched for and found Pinkney’s cell phone number through a paid online database. Police officers confirmed that phone calls made from Pinkney’s cell phone had gone through the cell tower nearest to the victims’ home. Records showed that on December 29, Pinkney sent a text message to his girlfriend that he was going to “hit that jug,” or go get some money, and he needed his girlfriend to find someone to watch their kids. On the early morning of December 30, Pinkney’s girlfriend sent a text message to him asking, “Did [you] go in?” Pinkney responded that he had not gone in because he made too much noise breaking a window, but that he would go back the next night. On the night of December 31, Pinkney sent a text message to his girlfriend just after 10:00 p.m. Eastern Standard Time stating that he was presently going through the window, and, shortly thereafter, at approximately 10:45 p.m., he sent a text message to her that he was in the house. Pinkney’s girlfriend replied immediately by 4 asking Pinkney what was going on, and Pinkney responded, “[I’m] good, just let me handle this as fast as I can[, I’ll text you when I’m done].” Pinkney then sent a text message to his girlfriend at approximately 11:30 p.m. and said that the victims did not have anything and he was upset. When police later advised the elderly woman that Pinkney had been arrested, she said that she knew it was him who had broken into her home. At trial, the woman identified Pinkney as the man who broke into her house. 1. Pinkney contends that the trial court erred in denying his motion for a mistrial on the ground that during his opening statement, his trial counsel misstated evidence to the jury. Specifically, he argues that the State misled his trial counsel with regard to the timing of Pinkney’s and his girlfriend’s text messages, causing trial counsel to make an argument to the jury that was based on a misstatement of the evidence. We discern no error. “Whether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citations and punctuation omitted.) Rafi v. State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011). 5  During his opening argument, trial counsel had argued that the phone records were inaccurate and inconsistent with the other evidence, such as the 911 cal1, which showed that the perpetrator was inside the house about an hour later. On the evening of the first day of trial, the prosecutor alerted Pinkney’s trial counsel that the records of Pinkney’s text messages, which had previously been disclosed by the State, were in Central Standard Time, not in Eastern Standard Time, as trial counsel had originally assumed. Pinkney moved to prohibit the State from relying on the correct time of the calls or, in the alternative, for a mistrial. The trial court denied both motions. At trial, an investigator with Pinkney’s cell phone carrier testified regarding both Pinkney’s and his girlfriend’s cell phone records, including their text messages. The cell phone records confirmed that on December 31, 2011 between 10:00 p.m. and 11:30 p.m. Eastern Standard Time, calls made from Pinkney’s cell phone had gone through the cell tower nearest the victims’ home. The investigator also explained that Pinkney’s carrier stored its customers’ text messages in Texas and, accordingly, the text message records were kept in Central Standard Time. The records of the phone calls, however, were in Eastern Standard Time. 6  We cannot determine from the record what, exactly, defense counsel argued to the jury since the opening statements were not transcribed. Nonetheless, a mistrial was not essential to the preservation of Pinkney’s right to a fair trial since the investigator’s testimony corrected trial counsel’s misstatement during opening argument, and the trial court instructed the jury that counsels’ opening and closing arguments were not evidence. Cf. Williams v. State, 292 Ga. 844, 848-849 (3) (b) (742 SE2d 445) (2013) (trial counsel’s misstatement to the jury regarding time of 911 call was not ineffective assistance because the misstatement was corrected by a detective’s testimony and the trial court charged the jury that counsels’ arguments were not evidence). Accordingly, the trial court did not err in denying Pinkney’s request for a mistrial. 2. Pinkney contends that the trial court erred in admitting into evidence his cell phone number and the records obtained from his cell phone carrier because his phone number was obtained in violation of Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LEd2d 694) (1966). We disagree. “The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his rights and has voluntarily waived those rights.” (Citation omitted.) Franks v. State, 268 Ga. 238, 7 239 (486 SE2d 594) (1997). Georgia law, however, provides for a limited booking exception to the Miranda rule for questions attendant to arrest, such as the suspect’s name, age, address, educational background and marital status. See id. After Pinkney was arrested, a detective sought to interview him. Before reading Pinkney his Miranda rights, the detective stated that he had a few housekeeping issues. The detective asked Pinkney his full name, date of birth, age, and level of education. The detective then noted the date and time, asked Pinkney if he was under the influence of anything that could affect his decision making, whether he spoke and wrote English, and whether he spoke any other languages. The detective also asked Pinkney for a “contact number” and Pinkney responded with his cell phone number. Immediately thereafter, the detective read Pinkney his Miranda rights. Pinkney indicated that he understood his Miranda rights and he invoked his right to counsel. The detective told Pinkney the charges against him, the interview ended, and Pinkney was taken back to jail. At trial, a video of Pinkney’s conversation with the detective was played for the jury. Whether a police officer may ask a suspect for his contact number under the booking exception to Miranda is not an issue that has been decided by this Court or the Supreme Court of Georgia. We need not decide this issue here because the police 8 officers obtained Pinkney’s phone number from their own investigation before placing Pinkney under arrest. Since the police were able to obtain Pinkney’s phone number and records independently of any alleged Miranda violation, this evidence was properly admitted. See Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007) (“The independent source doctrine allows admission of evidence that was discovered by means wholly independent of any constitutional violation[.]”) (citation omitted); see also Merritt v. State, 288 Ga. App. 89, 98 (2) (653 SE2d 368) (2007) (any error in admitting defendant’s statement during booking that he drank alcohol on the day of the accident was harmless given other evidence that defendant had been drinking). Accordingly, we affirm. Judgment affirmed. Andrews, P. J., concurs. Branch, J., concurs in judgment only in Division 1 and fully in Division 2. 9 

284 N.W.2d 12 (1979) 204 Neb. 573 STATE of Nebraska, Appellee, v. Milo L. KAREL, Appellant. No. 42520. Supreme Court of Nebraska. October 2, 1979. *13 George H. Moyer, Jr. of Moyer, Moyer & Egley, Madison, for appellant. Paul L. Douglas, Atty. Gen., and Terry R. Schaaf, Asst. Atty. Gen., Lincoln, for appellee. Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ. CLINTON, Justice. The sole issue on this appeal is whether or not the defendant Karel was entitled to a jury trial under the provisions of section 24-536, R.R.S.1943, upon the charge of drunken driving, first offense, under section 39-669.07, R.R.S.1943. The offense was alleged to have occurred on August 25, 1976, and the defendant was found guilty on May 11, 1978, in the county court of Butler County. Sentence was thereafter imposed. The court had denied his timely motion for trial by jury. On appeal to the District Court, that court also held that he was not entitled to a jury trial and the conviction and sentence were affirmed. Section 24-536, R.R.S.1943, provides: "Either party to any case in county or municipal court, except criminal cases arising under city or village ordinances and traffic infractions, and except . . . may demand a trial by jury. . . . All provisions of law relating to juries in the district court shall apply to juries in the county and municipal courts and the district court jury list shall be used, except that juries in the county and municipal courts shall consist of six persons." The State contends the charge was a traffic infraction under the provisions of section 39-602(106), R.R.S.1943, and, therefore, there existed no statutory right to a jury trial under section 24-536, R.R.S. 1943. Section 39-602(106), as it appears in the Revised Statutes of 1943, Reissues of 1974 and 1978, reads: "Traffic infraction shall mean the violation of any provision of sections 39-601 to 39-6,122 or of any law, ordinance, order, rule, or regulation regulating traffic which is not otherwise declared to be a misdemeanor or a felony and which shall be a civil offense." The defendant's position is that first offense drunk driving is a misdemeanor and not a traffic infraction, and, therefore, he was entitled to a jury trial. For reasons hereafter set forth, we find the defendant's position is correct and reverse and remand for a new trial. It is to be observed that section 39-602(106), R.R.S.1943, as it appears in the statutory revisions, defines traffic infractions as: ". . . the violation of any provision of sections 39-601 to 39-6,122 or of any law, . . . not otherwise declared to be a misdemeanor or a felony." (Emphasis supplied.) Section 39-669.07, R.R.S.1943, appears, therefore, to be included among the sections specifically referred to, that is, sections 39-601 to 39-6,122, R.R. S.1943. Before the enactment of the new criminal code, section 39-669.07, R.R.S.1943, did not define driving while intoxicated as either a felony or a misdemeanor. On the surface, therefore, the State's position appears to have some substance. However, things are not as they appear on the surface. In 1973, the Legislature enacted a rather comprehensive, amended version of the Rules of the Road. Laws 1973, L.B. 45, p. 123. Section 39-602(106), R.R.S.1943, is section 2(106) of L.B. 45. In L.B. 45, section *14 2(106) reads as follows: "Traffic infraction shall mean the violation of any provision of this act or of any law, ordinance, order, rule, or regulation regulating traffic which is not otherwise declared to be a misdemeanor or a felony and which shall be a civil offense." (Emphasis supplied.) When L.B. 45 was placed in the Revised Statutes by the Revisor of Statutes pursuant to the duties imposed upon him by section 49-705, R.R.S.1943, he substituted the specific reference, "any provision of sections 39-601 to 39-6,122," for the words, "this act," of section 2(106) of L.B. 45. This, as already noted, would apparently include section 39-669.07, R.R.S.1943. However, L.B. 45, Laws of 1973, did not include section 39-669.07, R.R.S.1943. It appears in its present position in the Revised Statutes only by virtue of the arrangement made by the Revisor of Statutes. Section 49-705(1), R.R.S.1943, in part provides: "The Revisor of Statutes, in preparing supplements and reissued or replacement volumes for publication and distribution, shall not alter the sense, meaning or effect of any act of the Legislature, but may . . .," and then goes on to specify the things which he may do. Further specification of his authority appears in subsection (2) of section 49-705, R.R.S.1943. The authority under subsection (1) includes renumbering sections and rearranging sections. Section 49-705, R.R.S.1943, makes it clear that such changes made by the Revisor of Statutes cannot make substantive changes in the statute as enacted by the Legislature. Subsection (1) as noted provides that he "shall not alter the sense, meaning or effect of any act of the Legislature." Subsection (2) of section 49-705, R.R.S.1943, provides in part: "No change made under the provisions of this subsection shall effect any change in the substantive meaning of any section." Changes made by the Revisor of Statutes in preparing supplements and reissued or replacement volumes of the Revised Statutes, under the provisions of section 49-705, R.R.S.1943, cannot change the substantive meaning of any statute as enacted by the Legislature. See Shames v. State, 192 Neb. 614, 223 N.W.2d 481. Since section 39-669.07, R.R.S.1943, was not included in L.B. 45, Laws of 1973, the crimes therein defined did not become traffic infractions by virtue of the provisions of L.B. 45, but retained their status as misdemeanors or felonies by virtue of the general statutory definition of section 29-102, R.R.S.1943, which provides: "The term felony signifies such an offense as may be punished with death or imprisonment in the Nebraska Penal and Correctional Complex. Any other offense is denominated a misdemeanor." Section 29-102, R.R.S.1943, has since been repealed by L.B. 748, Laws of 1978, and we note the offenses defined in section 39-669.07, R.S.Supp., 1978, are now specifically defined as a class of either misdemeanor or felony. For a general discussion of the question of classifying certain offenses as traffic infractions, see State v. Knoles, 199 Neb. 211, 256 N.W.2d 873. REVERSED AND REMANDED FOR A NEW TRIAL.

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-2955 MARK FRITZ, Plaintiff-Appellant, v. TONY EVERS, Wisconsin State Superintendent of Public In- struction, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cv-581-wmc — William M. Conley, Judge. ____________________ ARGUED SEPTEMBER 5, 2018 — DECIDED OCTOBER 23, 2018 ____________________ Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges. EASTERBROOK, Circuit Judge. Wisconsin requires public officials to report certain events or suspicions about teachers to the Superintendent of Public Instruction. Wis. Stat. §115.31(3)(a). When a qualifying report is made, the state lists the teacher on a public website as “under investigation”. Wis. Stat. §115.31(6)(b). Such a report was made about Mark 2 No. 17-2955 Frid in March 2012. In August 2013 the Department of Public Instruction told Frid that the report about him was not sup- ported by probable cause to believe that he had engaged in misconduct. His name was removed from the site. In this suit under 42 U.S.C. §1983 Frid alleges that schools would not hire him while he was under investigation. He contends that the state had to afford him a hearing before puging his name on the list of persons under investigation. This claim was doomed at the outset by the fact that Frid sued only the Superintendent, in his official capacity. Section 1983 does not authorize awards of damages against states, and a state official (in his official capacity) is the state. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989). In principle, prospective relief could be available under the approach of Ex parte Young, 209 U.S. 123 (1908), but Frid does not contend that his name is likely to appear on the “under investigation” list in the future. Instead of inviting Frid to name a different defendant, the district court dismissed the suit on the merits. 2017 U.S. Dist. LEXIS 143840 (W.D. Wis. Sept. 6, 2017). (The opinion says that the suit is dismissed without prejudice, but the judgment is unconditional and therefore with prejudice. Fed. R. Civ. P. 41(b). Thus appellate jurisdiction is secure.) The judge ruled that his complaint does not allege the depriva- tion of any liberty or property interest, taking the claim out- side the scope of the Due Process Clause. (Frid has aban- doned any other theory of recovery.) Paul v. Davis, 424 U.S. 693 (1976), holds that defamation by a public official does not violate the Due Process Clause. Defamation is what this complaint alleges, so it fails under Paul. Defamation plus some other injury, such as loss of em- No. 17-2955 3 ployment, may require a hearing. See Codd v. Velger, 429 U.S. 624 (1977). But the complaint does not assert that the listing cost Frid his job. The state statute does not require a teacher under investigation to be fired or otherwise disciplined. It does not authorize adverse action of any kind; it just pro- vides public notice of an investigation. Counsel told us at oral argument that Frid resigned voluntarily; that’s why he was looking for a new position; yet as long as he had a right to maintain his established position it is impossible to blame unemployment on §115.31(6)(b). We therefore agree with the district court that the complaint does not allege a loss of lib- erty or property. There’s a further problem. Frid contends that the Consti- tution requires a hearing before public notice that a charge is under investigation. Yet our legal tradition is notice first, hearing later. Thus criminal charges are filed, whether by indictment or information, before the accused has an oppor- tunity for a hearing. People are arrested, and criminal inves- tigations begun, before adversarial hearings. If the arrest oc- curs in a public place, even an ex parte warrant is unneces- sary. See United States v. Watson, 423 U.S. 411 (1976). A hear- ing occurs promptly after an arrest only if the suspect re- mains in custody. See County of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991). Civil proceedings also begin long be- fore a hearing. Both civil and criminal charges are public, even though being under a cloud may make it hard for the defendant to get a new job while the proceedings are ongo- ing. Probable cause is required to support custody, see Ma- nuel v. Joliet, 137 S. Ct. 911 (2017), but not to support a public charge of crime. “[T]here is no such thing as a constitutional 4 No. 17-2955 right not to be prosecuted without probable cause.” Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013). A criminal trial may occur months if not years after charges become public, and in the interim the accused does not have a constitutional right to a hearing at which a judge will determine whether the grand jury should have issued an indictment. See Kaley v. United States, 571 U.S. 320 (2014). Administrative investigations likewise precede hearings. The Federal Trade Commission or Securities and Exchange Commission may conduct a public investigation and defer a hearing until after it issues a charge and discovery has con- cluded. Judicial review is impossible until the agency makes its final decision. See FTC v. Standard Oil Co., 449 U.S. 232 (1980). Wisconsin followed the traditional approach: it con- ducted an investigation to see whether a formal proceeding was warranted, and after concluding that it was not the state closed the investigation and removed the public listing. It would upset more than two centuries of practice to declare that approach a violation of the Constitution. AFFIRMED No. 17‐2955  5  HAMILTON, Circuit Judge, concurring. I agree with my col‐ leagues that the district court’s judgment dismissing this case  must be affirmed, and I join the court’s opinion. Plaintiff Fritz  is not entitled to relief under federal law. He has not sued any  defendant who could possibly be held liable for damages, and  the  time  for  any  injunctive  relief  in  his  case  passed  when  Fritz’s good name was cleared in 2013.  On the merits, I also agree that “our legal tradition is no‐ tice  first,  hearing  later,”  ante  at  3,  but  that  is  not  the  whole  story here. There is another way to understand what happens  with Wisconsin’s system for publicizing an investigation of a  licensed teacher for “immoral conduct.” This alternate view  can pose due process problems. Because a state‐issued profes‐ sional license is at stake, the familiar rule of Paul v. Davis, 424  U.S. 693 (1976), concerning defamation by state officials, does  not necessarily control this situation.  In  March  2012,  Fritz  resigned  from  his  teaching  job.  He  learned later that month, when he was turned down for a new  job, that the state Department of Public Instruction had listed  him as “under investigation.” For the next 17 months, he was  in legal limbo: he was practically un‐hirable, yet he was un‐ able to discover why he was under investigation, and had no  idea when it might end. In July 2013, the department told him  that it would not complete its investigation until at least 2014,  two years after the report. Fritz hired a lawyer, who quickly  requested a hearing (to which Fritz was not statutorily enti‐ tled). See Wis. Admin. Code § PI 34.102. The department, ra‐ ther  than  convene  a  hearing,  made  a  formal  finding  in  less  than three weeks that there was no probable cause to initiate  license revocation proceedings, and it removed Fritz’s “under  investigation”  designation.  The  combination  of  stigma  and  6  No. 17‐2955  delay poses serious due process questions even if Fritz him‐ self  is  not  entitled  to  relief  under  federal  law.  See  DuPuy  v.  Samuels, 397 F.3d 493, 509 (7th Cir. 2005) (affirming injunction  ordering 35‐day deadline for resolving appeals of state’s pub‐ lic designation of child‐care workers as subject to “indicated”  findings of child abuse).  Wisconsin’s public designation of a teacher as “under in‐ vestigation”  for  suspected  “immoral  conduct”  can  inflict  a  stigma that makes a teacher unemployable, as a matter of fact  if not law, until the investigation is resolved. If that’s correct,  the teacher may well be entitled at least to notice of the charge  being investigated and a name‐clearing hearing—and within  a reasonable time.  Wisconsin asserts here that it is “simply implausible that  anyone  could  reasonably  infer  anything  of  substance”  from  the  designation  that  a  teacher  is  “under  investigation.”  The  state contends the category of “immoral conduct” is merely  an  “administrative  label”  “devoid  of  any  stigmatizing  sub‐ stance.” The state’s assertion loses sight of the statutory de‐ tails and of real life.  To explain, a school administrator must report a licensed  teacher to Wisconsin’s Department of Public Instruction, and  the department must designate that teacher as “under inves‐ tigation” on its public website, under four circumstances:  (1)  the  teacher is  charged  with  one  of  many  serious  crimes  against  children  (e.g.,  sexual  assault  or  child  trafficking) under Wis. Stat. Ch. 948;  (2) the teacher is convicted of such a crime or of fourth‐ degree sexual assault under Wis. Stat. § 940.225(3m);  No. 17‐2955  7  (3)  the  teacher  is  dismissed  (or  his  contract  is  not  re‐ newed) “based in whole or in part on evidence that the  person engaged in immoral conduct;” or  (4) the teacher resigns and the administrator has “a rea‐ sonable  suspicion  that  the  resignation  relates  to  the  person having engaged in immoral conduct.”  See Wis. Stat. § 115.31(3)(a).  Plaintiff  Fritz  was  not  charged  with  or  convicted  of  any  such crimes. He resigned from his last teaching job. The only  statutory  basis  for  reporting  and  investigating  him  was  his  former  employer’s  “reasonable  suspicion”  that  his  resigna‐ tion related to his having engaged in “immoral conduct.” Un‐ der the statute, “immoral conduct” includes a teacher’s use of  school computers for pornography, assisting child predators  with obtaining school positions, or otherwise “endanger[ing]  the health, safety, welfare, or education of any pupil” by vio‐ lating  “commonly  accepted  moral  or  ethical  standards.”  § 115.31(1)(c)1.  The broad definition is nearly as broad as the allegations  that Socrates was corrupting the youth of Athens. But given  the  statutory  emphasis  on  possible  sexual  abuse  of  school  children, the stigma of an investigation for someone in Fritz’s  shoes should be apparent. To use an example from the state’s  brief, what administrator in her right mind, in deciding to hire  a new teacher, would cross her fingers and hope that a teacher  under  investigation  might  have  only  given  a  cigarette  to  a  high‐school student when it is possible he engaged in sexual  activity with a child?   8  No. 17‐2955  When  a  teacher  comes  under  reasonable  suspicion  of  abusing students, the state’s interests are obvious and power‐ ful. Everyone has an interest in resolving the situation accu‐ rately, fairly, and quickly. But that leads us to two problems  under state law that surfaced in Fritz’s case. State law requires  that a report be made promptly, within just 15 days after an  administrator  learns  of  the  basis  for  the  report.  Wis.  Stat.  § 115.31(5)(a). Once a teacher has been reported, however, the  statutes impose no time limit on the department to determine  whether probable cause supports the report and whether to  initiate  license  revocation  proceedings.  § 115.31(6)(b).  Also,  when the department begins an investigation, it is supposed  to “Notify the licensee that an investigation is proceeding, the  specific allegations or complaint against the licensee, and [al‐ low] the licensee [to] respond to the investigator regarding the  complaint or allegation.” Wis. Admin. Code § PI 34.100(1)(b).  Fritz alleges here that he did not receive the required notice.  As a result, Fritz was in limbo indefinitely and did not know  why.   Wisconsin has the power to suspend a teacher’s license, of  course. That formal step would require due process, at least  in the  minimal  form of  notice and a timely  and meaningful  opportunity  to  be  heard.  See  DuPuy  v.  Samuels,  397  F.3d  at  503, 509 (affirming injunction requiring prompt hearings and  decisions in appeals by child‐care workers and foster parents  listed publicly as accused of abusing children; disclosure by  licensing  agency  of  stigmatizing  information  that  “effec‐ tively” bars individuals “from future employment” in chosen  field  “squarely  implicate[s]  a  protected  liberty  interest”  re‐ quiring  due  process);  see  also  Doyle  v.  Camelot  Care  Centers,  305 F.3d 603, 617 (7th Cir. 2002) (“the ‘alteration of a legal sta‐ tus,’  such  as  a  governmental  right  previously  held,  ‘which,  No. 17‐2955  9  combined with the injury resulting from the defamation, jus‐ tif[ies]  the  invocation  of  procedural  safeguards’”),  quoting  Paul, 424 U.S. at 708–09. Publicly listing accused teachers as  “under investigation” appears to be an easier and cheaper al‐ ternative to license suspension, but with similar practical con‐ sequences. It effectively suspends some teachers’ careers, but  without  a  prompt  and  fair  opportunity  to  be  heard  and  to  clear their names. The reasoning of DuPuy may well apply to  this system.  It is disingenuous for the state to contend here that an “un‐ der  investigation”  designation  is  not  meant  to  affect  a  teacher’s status. The department tells school administrators to  use the designation when making hiring decisions. Best Prac‐ tices for Misconduct Referrals under § 115:31, 1–2 (Jan. 30, 2012),  https://dpi.wi.gov/sites/default/files/imce/tepdl/Licens‐ ing/act84bestpractices2011.pdf  (administrators  should  use  department’s  “License  Look  Up”  feature  to  determine  “whether the applicant is currently the subject of a DPI inves‐ tigation”).  The  department  assures  administrators  that  its  website “will indicate in red type at the top of the page if a  person’s license [is] under investigation.” Id. at 2. The depart‐ ment further encourages administrators to cooperate in inves‐ tigations so as not to “allow[] potentially dangerous persons  to remain in the classroom.” Id. at 3.   Wisconsin undoubtedly has the power and duty to license  teachers and so to act as the gatekeeper to state education em‐ ployment. With that power comes the responsibility to be fair  to teachers, too, which includes complying with state law and  resolving these cases promptly. If another teacher has an ex‐ perience under this system similar to Fritz’s, it might add up  to a federal due process violation, calling at least for timely  10  No. 17‐2955  injunctive relief as in DuPuy v. Samuels. But complying with  state law would go a long way toward avoiding such prob‐ lems.  

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5172 RICKY LEE GROVES, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5173 WILLIE LEE STRICKLAND, Defendant-Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CR-94-97-F) Submitted: April 30, 1996 Decided: June 25, 1996 Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Robert Willis, LAW OFFICES OF ROBERT WILLIS, Raleigh, North Carolina; Brian E. Clemmons, YOUNG, MOORE & HEN- DERSON, P.A., Raleigh, North Carolina, for Appellants. Janice McKenzie Cole, United States Attorney, Christine B. Hamilton, Assistant United States Attorney, Raleigh, North Carolina, for Appel- lee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Ricky Lee Groves appeals his conviction and sentence of life plus 60 months for engaging in a continuing criminal enterprise (CCE), 21 U.S.C.A. § 848 (West Supp. 1996), trading food stamps for crack, 7 U.S.C.A. § 2024(b) (West 1988 & Supp. 1996), and use of a firearm in a drug trafficking offense. 18 U.S.C.A. § 924(c) (West Supp. 1996). Willie Lee Strickland appeals his conviction and 252-month sentence for crack conspiracy, 21 U.S.C.A. § 846 (West Supp. 1995), and crack distributions. 21 U.S.C.A. § 841 (West 1981 & Supp. 1995). We affirm.1 The government's evidence at Appellants' joint trial established that Ricky Groves's brother Charlie Groves sold crack for several years from his home at 3535 Government Road in Clayton, North Carolina. When Charlie Groves went to prison in 1992, Ricky Groves's mother, Alva Mae, moved into Charlie's trailer and Ricky Groves continued the crack business. Ricky Groves lived in Raleigh but went to the trailer on Government Road every day. Willie Strick- _________________________________________________________________ 1 Appellants' Motion for Leave to File Statistical Information is granted. We have considered the information attached to the Motion. 2 land had supplied Charlie and continued to supply Ricky Groves. Ricky Groves also obtained crack from several Haitians, principally "Haitian Roger." Roger supplied Ricky's sister, Margaret Woodard, who lived next door, and his niece, Pam Woodard. Runners who sold the crack to people who drove along Government Road obtained crack from Ricky, his mother, his sister, or co-conspirator Tim McCullers and were paid in crack, cash, or both. Ricky Groves also traded crack for foodstamps, firearms, and various other items. Dur- ing the course of an extended investigation, about twenty-six con- trolled buys of crack were made by a federal agent accompanied by a confidential informant. Audio and video recordings were made of most of these transactions. On appeal, Groves and Strickland first contend that the government unconstitutionally exercised three peremptory strikes against black jurors. During jury selection, the attorneys for Groves and Strickland objected to the government's use of three peremptory strikes against three young black males. The government attorney, who was also black, explained that the first juror, Mr. McCrowie, was struck because he was the only single person on the list at that point, and that the second, Mr. Autry, was struck because "he was looking at me in a way I didn't particularly care for." The third black juror was from an area where Groves had relatives living. The district court accepted the government attorney's explanations and found that no intentional discrimination had occurred. Later, Groves's attorney again raised the issue, arguing that the government was inconsistent in not striking a white male juror who was divorced as a single person like the first black male who was struck. He asked the district court to reinstate the first black juror who was struck, which the court declined to do. The government attorney stated that he was picking a jury for another attorney who would try the case, and was generally attempting to follow her instructions. The district court again found no intentional discrimination. A party challenging the exercise of a peremptory strike on racial discrimination grounds must make a prima facie case of intentional discrimination, after which the burden shifts to the other party, who must offer a race-neutral reason for exercising the strike. Batson v. Kentucky, 476 U.S. 79 (1986); Jones v. Plaster, 57 F.3d 417, 420 (4th 3 Cir. 1995). A satisfactory reason need only be based on something besides race; it need not be rational or credible or have any relation- ship to the trial. Purkett v. Elem, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3814 (U.S. May 15, 1995) (No. 94-802). The trial court must then decide whether intentional discrimination was a motivating factor for the peremptory strike. Its decision is reviewed for clear error. United States v. Hernandez, 500 U.S. 352, 359, 364-65 (1991) (finding con- cerning discrimination is credibility determination). Here, the government offered race-neutral reasons for striking all three black jurors.2 Groves and Strickland contend that the govern- ment's reason for striking McCrowie--that he was single--was inconsistent with its failure to strike a white male who was divorced, and that a policy of striking all never-married jurors would be dis- criminatory because black adults are more likely than whites to be unmarried. They also suggest that the district court failed to address their argument that the reason offered by the government for striking McCrowie was pretexual. However, the district court heard the argu- ment for reconsideration of its prior ruling and again found no Batson violation. The government attorney who handled the trial (and whose instruc- tions were being followed by the attorney who exercised the peremp- tory strikes) states in the government's appeal brief that she believes young unmarried people are less desirable as jurors because they have not yet had to make difficult decisions, while divorced people often have had to make such decisions and compromises. Whether or not such a view is true, it is a consistent and race-neutral reason for strik- ing young persons who have never been married. Appellants contend that the government's explanation for the strike against Autry was not credible, but they mischaracterize the reason for the strike. The government attorney did not say he struck Autry because of the way he looked, but because of the way he was looking at the government attorney. We find that the government offered race- neutral reasons for striking both McCrowie and Autry and that the _________________________________________________________________ 2 The preliminary question of whether a prima facie showing of inten- tional discrimination had been made thus became moot. Hernandez, 500 U.S. at 359. 4 district court did not clearly err in finding that there was no Batson violation. Groves contends that the evidence was insufficient to support his CCE conviction because it was insufficient to convict him of conspir- acy (Count 1) or the distribution counts (Counts 4-11, 21, 31, 32, and 34).3 A conviction must be sustained if there is substantial evidence, taken in the light most favorable to the government, to support a find- ing of guilt. Glasser v. United States, 315 U.S. 60, 80 (1942). The ele- ments which the government was required to prove to convict Groves of participation in a continuing criminal enterprise are: (1) that Groves committed a felony violation of the federal drug laws; (2) that the violation was part of a series of violations of the drug laws; (3) that the series of violations were undertaken by Groves in concert with five or more persons with respect to whom Groves occupied a position of organizer, supervisor, or any other position of manage- ment; (4) that Groves obtained substantial income or resources from the continuing series of violations. United States v. Heater, 63 F.3d 311, 316-17 (4th Cir. 1995). At least three predicate violations of the drug laws must be proved, of which one may be a conspiracy under 21 U.S.C.A. § 846 (West Supp. 1995). United States v. Ricks, 882 F.2d 885, 891 (4th Cir. 1989). Groves argues that three of the other named conspirators, Lonnie Morrison, Tim McCullers, or Baltasaras Romilus (Haitian Bill), were engaged in separate conspiracies.4 While the government's witnesses may not have testified about direct dealing between Groves and these three, there was abundant evidence that Groves conspired with _________________________________________________________________ 3 After Groves was convicted, the district court vacated his conviction for the conspiracy and all the distribution counts. It is unclear why the substantive counts were vacated. However, a defendant's conduct may be a predicate offense for CCE purposes even without a conviction for that conduct. United States v. Apodaca, 843 F.2d 421, 432 (10th Cir.), cert. denied, 488 U.S. 932 (1988). 4 McCullers and Romilus pled guilty to the conspiracy count before Appellants went to trial. Lonnie Morrison is identified in the presentence report as a street dealer for Groves, but runner Travis Walker testified that Morrison had his own crack business. Morrison pled guilty to two crack distribution counts and one count of trading food stamps for crack. 5 numerous people to violate federal drug laws. Runner Larry Horton testified that Groves's other runners included Eric Chris, James Lemon, Ricky McNeil, Malcolm Tomlinson, and "Soldier Boy." Groves also contends that there was insufficient evidence to prove the substantive distribution counts because the indictment gave spe- cific months (Counts 4-11) or specific dates (Counts 21, 31, 32, 34) when the distributions occurred, while the runners who testified at trial were not specific about dates. However, there was specific testi- mony from Detective Alfred Linton of the Clayton Police Depart- ment, and Sergeant Clyde Berube, of the Johnston County Sheriff's Department, about a transaction on June 23, 1993, in which Groves was shown to be the source of the crack purchased by the undercover agent for food stamps in a videotaped transaction. Runner Larry Hor- ton testified that Groves was the source of the crack he sold to an undercover agent for food stamps on September 30, 1993. This trans- action was audio taped.5 The evidence was thus sufficient to convict Groves of the offenses which were charged in Counts 21 and 34 under 21 U.S.C.A. § 841, and in Counts 61 and 73 under 7 U.S.C.A. § 2024(b). Because there was substantial evidence that Groves committed three felony viola- tions of the drug laws by participating in the crack conspiracy and the crack transactions on June 23, 1993, and September 30, 1993, the § 848 conviction will be affirmed. Groves makes the same claim of insufficient evidence with regard to his convictions for trading crack for food stamps and the argument is without merit for the same rea- son. Groves concedes that the evidence that he traded firearms for crack was sufficient to convict him under § 924(c), but suggests that the testimony was not credible. The credibility of witnesses is not reviewable on appeal. United States v. Saunders , 886 F.2d 56, 60 (4th Cir. 1989). _________________________________________________________________ 5 Government Exhibits 10 and 10A were the crack and the lab report for the June 23, 1993, controlled buy involving Ricky Groves and run- ners James Lemon and William (Red) Woodard. Government Exhibit 87 was a videotape of the transaction. Government Exhibit 85 was an audio tape of the September 30, 1993, controlled buy from runners Larry Hor- ton and Eric Chris. 6 Strickland first argues that there was insufficient evidence to con- vict him of conspiracy because there was no testimony that he con- spired with Lonnie Morrison, Timothy McCullers, or Baltaras Romilus (Haitian Bill). However, there was ample evidence that he supplied crack to Ricky Groves regularly throughout the conspiracy; this evidence is sufficient to sustain his conviction. Strickland also contends that there was insufficient evidence to support his substantive distribution convictions because the govern- ment's witnesses did not give the specific dates of his distributions. The substantive counts charged Strickland with distributions of more than 50 grams of crack in April, August, October, and December 1993, and in February, April, and June 1994. Runners Horton, Woo- dard, Tomlinson, and Walker all testified that Strickland supplied Groves with crack throughout the conspiracy. Horton testified that Strickland came to see Groves about once a week. Given that the jury found the government's witnesses credible, this evidence was suffi- cient for the jury to find that Strickland distributed crack to Groves in the months charged. Strickland next contests the admission of an address book seized during a December 1993 search of his apartment when he was being sought as a murder suspect. He contends first that the search warrant affidavit was insufficient because the sources of the information con- tained in it were not identified. Second, he argues that the affidavit failed to establish probable cause that an address book would be found in the apartment. On appeal, he further argues, in effect, that the warrant was overbroad in authorizing seizure of the address book because it was not evidence pertinent to the murder. An affidavit in support of a warrant application must provide the magistrate with information sufficient for determining the existence of probable cause that specific evidence of a crime will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 239 (1983). However, a reviewing court takes into account the totality of the information made known to the magistrate. Massachusetts v. Upton, 466 U.S. 727, 732-34 (1984). The affidavit submitted by Police Chief Toppings, of Four Oaks, North Carolina, described the murder in detail but did not make clear that he personally obtained the informa- tion from the witnesses to the murder. Toppings testified that he dis- 7 cussed his investigation with the magistrate before the warrant was issued, so that the magistrate was aware of the sources of the informa- tion. In this circumstance, we find that the district court did not err in finding that the warrant was based on probable cause. A magistrate may not authorize a search broader than the scope of the probable cause showing. United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1982). The address book was listed in the warrant appli- cation as an item sought as evidence of a crime and the identity of a person participating in a crime, along with handguns, bullets, clothes, shoes, and pictures. Toppings testified that he included the address book because it would be a help in finding Strickland if he were not apprehended quickly. He said the magistrate did not question him about the address book. Even if the address book was not properly listed on the warrant application because it was not evidence of the murder or the identity of the suspect (which was not really in doubt), the admission of the address book was harmless error at most. Chapman v. California, 386 U.S. 18, 23-24 (1967). It is not clear from the materials presented on appeal what part, if any, the address book played in the government's case against Strickland, but in view of the other evidence against him, we are satisfied that any error in the admission of the address book was harmless beyond a reasonable doubt. Following the jury's verdict, the probation officer recommended that Groves be held responsible for 72.9 kilograms of crack and 1792 grams of cocaine, and that Strickland be held responsible for 7.1 kilo- grams of crack. USSG § 2D1.1, 2D1.5.6 Both Groves and Strickland objected to the amount of crack attributed to them on the grounds that the trial testimony did not establish those amounts and that the infor- mation from unidentified co-conspirators contained in the presentence report was unreliable. Groves contends that the district court clearly erred in adopting the recommended finding that he was responsible for 72.9 kilograms of crack because the presentence report listed crack amounts reported by unidentified co-conspirators and the amounts do not correspond with _________________________________________________________________ 6 United States Sentencing Commission, Guidelines Manual (Nov. 1994). Groves and Strickland were sentenced in February 1995. 8 the trial testimony. However, the trial testimony firmly established that Groves was responsible for the distribution of more than 1.5 kilo- grams of crack over the course of the conspiracy. That amount gave him an offense level of 38, the highest possible under USSG § 2D1.1, which was increased to 42 under USSG § 2D1.5 because of his CCE conviction. Exactly how much Groves had distributed in excess of 1.5 kilograms is immaterial. The district court's adoption of the recom- mended findings was not clearly erroneous. Strickland concedes that the testimony of certain witnesses at trial establishes his responsibility for more than 1.5 kilograms of crack, but argues that the district court should have found their testimony unreli- able because it was vague and imprecise. Because the witnesses con- sistently testified that Strickland supplied Groves on a weekly basis throughout the life of the conspiracy, the district court did not clearly err in finding that Strickland was responsible for more than 1.5 kilo- grams of crack. Moreover, the court did not clearly err in finding that he was more than a mere courier. We therefore affirm Appellants' convictions and sentences. Appel- lants' Motion to File Statistical Information is granted. We dispense with oral argument because the facts and legal contentions are ade- quately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 9 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6172 ROBIN VIRGINIA MEADOWS COLLINS, Plaintiff - Appellant, v. PAT GREEN; ELLIOTT PANNELL; H. M. EDWARDS, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:14-ct-03111-D) Submitted: June 18, 2015 Decided: June 22, 2015 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Robin Virginia Meadows Collins, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robin Virginia Meadows Collins seeks to appeal the district court’s order dismissing without prejudice her civil rights action under 28 U.S.C. § 1915A(b)(1) (2012) for failure to state a claim on which relief may be granted. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders. 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949). Because the deficiencies identified by the district court may be remedied by the filing of an amended complaint, we conclude that the order Collins seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993). Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2 

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 19, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court U N ITED STA TES O F A M ER ICA, Plaintiff – Appellee, No. 05-1500 v. (D.C. No. 03-CR-00411-M SK) (D . Colo.) DENISE SOUSER, Defendant – Appellant. OR DER AND JUDGM ENT * Before KELLY, M cKA Y, and LUCERO, Circuit Judges. After Denise Souser pled guilty to one count of making a false statement to the Government in violation of 18 U.S.C. § 1001, she was ordered to pay restitution and sentenced to five years’ probation. The district court imposed a condition to her probation requiring Souser to notify her employer about her conviction. Concerned that her employment would be terminated, Souser appealed the employer-notice requirement of her probation to this court. W e vacated and remanded the condition because the sentencing court failed to make * The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. certain factual findings necessary to impose an “Occupation Restriction” under U.S.S.G. § 5F1.5. 1 See United States v. Souser, 405 F.3d 1162 (10th Cir. 2005). On remand, the district court held a sentencing hearing and ultimately granted the Probation Office’s request to restore the disputed condition. Souser now appeals the district court’s decision to reimpose the disputed condition. Under U.S.S.G. § 5F1.5(a)(2), the district court may impose an employer-notification condition on employment if, absent notification, the defendant will continue to engage in unlawful conduct similar to that for which she was convicted. This requirement was satisfied, the district court found, because Souser’s refusal to tell her employer about her present conviction constituted concealment of a fact similar to the conduct which lead to her conviction in this case. On appeal, the United States concedes that this finding does not satisfy § 5F1.5(a)(2). Specifically, the Government agrees with Souser 1 U.S.S.G. § 5F1.5, entitled “Occupational Restrictions,” provides in relevant part: (a) The court may impose a condition of probation or supervised release prohibiting the defendant from engaging in a specified occupation, business, or profession, or limiting the terms on which the defendant may do so, only if it determines that: (1) a reasonably direct relationship existed between the defendant’s occupation, business, or profession and the conduct relevant to the offense of conviction; and (2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted. -2- that the district court placed Souser in a Catch-22, effectively telling her that “your failure to reveal your conviction shows me that I need to order you to tell your employer.” The Government therefore maintains that the condition should be vacated and the case be remanded for de novo resentencing. W e agree. Souser’s sentence is VAC ATED and the case is REM AND ED for resentencing. ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge -3- 

696 So.2d 652 (1997) Barry LUGAR v. BATON ROUGE GENERAL MEDICAL CENTER. No. 96 CA 1873. Court of Appeal of Louisiana, First Circuit. June 20, 1997. *653 Hany A. Zohdy, Baton Rouge, for Plaintiff/Appellant Barry Lugar. Myron A. Walker, Jr., Baton Rouge, for Defendant/Appellee Baton Rouge General Medical Center. Before GONZALES and KUHN, JJ., and CHIASSON[1], J. Pro Tem. KUHN, Judge. This suit involves a claim for damages allegedly caused by the unauthorized release of confidential medical information. On appeal, plaintiff-appellant, Barry F. Lugar, challenges the trial court's action of granting a directed verdict in favor of defendant-appellee, Baton Rouge General Medical Center ("Baton Rouge General"). We affirm. I. FACTS AND PROCEDURAL BACKGROUND During 1988, after having pled guilty to more than one charge of driving while intoxicated, Lugar sought an alcohol abuse assessment at the Baton Rouge General Medical Center Chemical Dependency Unit. Lugar was advised he needed out-patient treatment. He returned for treatment, but did not complete the program. Lugar later attended another out-patient program in a different city. On February 28, 1990, Lugar, who had worked in the insurance industry for many years, applied for life insurance coverage through Indianapolis Life Insurance Company ("Indianapolis Life"). Around that same time, Lugar began working as an agent for Indianapolis Life. Pursuant to the application process, Lugar executed an "Authorization to Obtain and Disclose Information." This blanket authorization form provided, in pertinent part, as follows: I authorize Indianapolis Life ... to obtain medical and other information on me.... This includes information about drugs and alcohol and about diagnosis, treatment and prognosis of any physical or mental condition, as well as any other non-medical information. This information can be released by ... any hospital, clinic or other medical or medically related facility.... Information can also be released by ... the Medical Information Bureau (MIB).... I acknowledge that the information obtained by this authorization will be used by Indianapolis Life to determine eligibility for insurance applied for.... In Part II of the application, entitled "Declarations Made to Medical Examiner," Lugar *654 checked the box in the column under "No" for question 5.c., which stated, "Have you ever [s]ought or received advice for or treatment of or been arrested for use of alcoholic beverages?" According to Lugar's testimony, he also signed a form dated April 2, 1990, which was entitled, "Authorization for Release of Confidential Information." Pursuant to the form, Lugar authorized Baton Rouge General to release information for his application for insurance to Indianapolis Life. "X's" were used to designate categories of information which were subject to release. An "x" was marked authorizing the release of information regarding "History and Physical examination reports" and "Laboratory and X-ray reports." Pursuant to the application review process, Indianapolis Life's senior underwriter, Sue Calvin, initially obtained information regarding Lugar from the Medical Information Bureau (the "MIB"), a central registry for medical information utilized by insurance companies. Some of the codes that Calvin obtained from the MIB led her to believe there was undisclosed information on Lugar's application and the medical examination record. These codes pertained to treatment for alcoholism and for the treatment of a psychoneurotic disorder. This information prompted Calvin to seek additional information to process Lugar's application. Calvin requested medical records from Lugar's attending physician, Dr. John Palermo. She discovered that as of January 1990, Lugar had been seeing a psychologist for fourteen months and was being treated with several medications for depression. She explained this information alone would have caused the company to assess an extra premium for insurance coverage. Based on information provided by Lugar during his physical examination (and included in Part II of the application, "Declarations Made to Medical Examiner"), Calvin knew Lugar had been treated by the Baton Rouge General. Calvin originally requested medical records from Baton Rouge General on March 16, 1990. By letter dated March 23, 1990, Baton Rouge General responded to the February 28, 1990 blanket form authorization stating, "The authorization mailed to us is inadequate due to Federal Confidentiality Regulations...." The hospital sent its own authorization form, which Calvin forwarded to Allen Waldrop, the Indianapolis Life agent handling Lugar's application. Along with the form, Calvin sent a letter requesting that Waldrop have Lugar sign and date the form so that Indianapolis Life would be able to obtain the medical records. Dovie Brady, the director of the Medical Records Department at the Baton Rouge General, identified a letter sent by the department to Indianapolis Life, dated April 17, 1990, which stated that the hospital was "unable to fulfill your request for information regarding the above named patient at this time ..." because "History and Physical and Lab reports were not included in patient chart." This letter was sent in response to an April 2, 1990 authorization executed by Lugar which authorized only the release of "History and Physical examination reports" and "Laboratory and X-ray reports." Brady testified that the department also received another authorization form, which was signed by Lugar and dated April 2, 1990. Pursuant to this form, Baton Rouge General was authorized to release certain information for application for insurance to Indianapolis Life. Again "x's" were used to designate which categories of information were subject to release. On this particular form, an "x" appeared next to "Diagnoses, including those relating to alcohol or drug abuse, if any," "History and Physical examination reports," "Consultations," "Laboratory and X-ray reports," "Physician's progress notes," and "Discharge Summary." Based on this form, the Medical Records Department copied Lugar's medical records and sent them to Indianapolis Life on May 8, 1990. Upon examining the medical records, Calvin learned Lugar had presented himself for treatment at the Baton Rouge General in 1988, admitting to a long history of alcohol abuse and dependence. Upon reviewing the medical information received from all sources, Calvin determined that some of the information she received conflicted with the information Lugar provided in his application for insurance. A determination was made *655 not to issue a policy to Lugar. The decision was based on Lugar's previous treatment for alcohol use and depression and his continuing use of alcohol. Calvin testified that her decision to decline coverage was not based solely on information received from Baton Rouge General. Calvin also testified she had no reason to believe the information gathered by the underwriting department pertaining to Lugar was made available to other departments of Indianapolis Life. Lugar testified his employment with Indianapolis Life was terminated during June or July of 1990, and that he has been unsuccessful in obtaining employment in the insurance industry since that time. Although he has maintained other employment, his annual salary has been substantially less than the salary he earned while working in the insurance industry. Lugar's wife, Patricia Lugar, testified that her husband had taken a trip to Indianapolis and when he returned he informed her he had been fired. She also acknowledged that while on that same trip, Lugar had been arrested for disturbing the peace, but stated that nothing ever came of the arrest. Lugar filed this suit against Baton Rouge General asserting the hospital "acted beyond the scope of the authorization for release of confidential information and released information covering diagnosis related to [his] past alcohol abuse and treatment." Lugar further asserted that because this information was released, he was denied insurance coverage and his employment was terminated. In his petition, Lugar seeks recovery of damages for mental pain and suffering, humiliation and embarrassment; past, present, and future lost wages; and past, present, and future financial burden due to inability to obtain health insurance. Lugar contends the sole and proximate cause of these damages is the negligence of the hospital and its employees in failing to respect and protect confidential information. During the trial, defendant filed a motion for a directed verdict, which the trial court granted. A judgment was signed in favor of defendant dismissing plaintiff's demands. Lugar appeals, urging the trial court abused its discretion in granting defendant's motion for directed verdict. II. ANALYSIS La. C.C.P. art. 1810 provides: A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. In Busby v. St. Paul Ins. Co., 95-2128, pp. 16-17 (La.App. 1st Cir. 5/10/96); 673 So.2d 320, 331, writ denied, 96-1519 (La.9/20/96); 679 So.2d 443, this court addressed the standard of review for directed verdicts, as follows: A trial court has much discretion in determining whether or not to grant a motion for directed verdict. A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant's opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Furthermore, the propriety of a directed verdict must be evaluated in light of the substantive law *656 underpinning the plaintiff's claims. (Citations omitted.) In an action to recover damages allegedly caused by another's negligence, a plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989) (on rehearing). The standard negligence analysis employed in determining whether to impose liability under La. C.C. art. 2315 is the duty-risk analysis. Roberts v. Benoit, 605 So.2d 1032, 1041 (La. 1991). For liability to attach, plaintiff must establish that 1) the conduct in question was a cause in fact of the resultant harm; 2) the defendant owed a duty to plaintiff; 3) the duty owed was breached; and 4) the risk or harm caused was within the scope of the breached duty. Fox v. Board of Supervisors, 576 So.2d 978, 981 (La.1991). Plaintiff asserts he has established these four criteria. Plaintiff contends the release of information pertaining to his treatment for alcohol abuse was unauthorized and that the defendant "by unjustifiably and impermissibly releasing confidential medical information of a [persumptively] (sic) scandalous nature caused that information to be available to any insurance company with access to the [MIB]." Although Lugar admitted at trial that his signature appears on the release form which authorized Baton Rouge General to release information relating to alcohol or drug abuse, he denies having signed the release. He asserts the evidence establishes there was some tampering with the authorization form, having testified that he never would have signed the broad release because he believed he was entitled to maintain the confidentiality of those records. During the trial, Lugar testified that upon his examination of the broad authorization form, he observed that the "x's" appearing in the boxes pertaining to "Diagnoses, ... relating to alcohol or drug abuse," "Consultations," and "Discharge summary" were smaller than the other "x's" on the form and were aligned differently than the other "x's." We find the trial court did not abuse its discretion in granting the directed verdict in favor of Baton Rouge General. The evidence presented during the trial of this matter establishes that Baton Rouge General released the information pertaining to Lugar's alcohol abuse based on a form which indicated that such release was authorized by Lugar, i.e., the broad form release authorizing release of information pertaining to "Diagnoses, including those relating to alcohol or drug abuse, if any." The release of information by the hospital was not beyond the scope of this authorization for release. Lugar acknowledged that the signature that appeared on the form was his signature. While an inference can be drawn that someone may have tampered with the form, there is no evidence upon which reasonable men could base a conclusion that Baton Rouge General (or its employees) had tampered with the form. We find no authority to support the proposition that Baton Rouge General had a duty to ascertain whether the authorization form had been altered after its execution by Lugar. The evidence does not establish any facts to support a finding that Baton Rouge General should have suspected the form was not valid.[2] Considering all of the evidence and all evidentiary inferences in the light most favorable to Lugar, we conclude the *657 facts and inferences are so overwhelmingly in favor of Baton Rouge General that reasonable people could not have reached a contrary verdict. III. CONCLUSION For the above reasons, we find the trial court did not abuse its discretion in granting a directed verdict in favor of Baton Rouge General. The judgment of the trial court granting defendant's motion for directed verdict and dismissing plaintiff's demands with prejudice is affirmed. Costs of this appeal are to be paid by plaintiff-appellant, Barry F. Lugar. AFFIRMED. NOTES [1] Judge Remy Chiasson, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court. [2] Lugar asserts that the medical release form used by Baton Rouge General fails to comport with the minimum requirements of 42 U.S.C. § 290dd-2 pertaining to confidentiality of records, and that this noncompliance should be considered negligence. We find no merit in this argument because we conclude the form used by Baton Rouge General does comply with the federal statute and prescribed regulations for the enforcement of this statute. 42 C.F.R § 2.31. Moreover, even if the form did not comply with this federal legislation, we do not agree that the non-compliance necessarily would establish a negligence claim under Louisiana law. The standard duty-risk negligence analysis is the appropriate analysis to be applied. We further note that the purpose of the federal legislation was not to create a private right of action for violations of the confidentiality provision. Rather, by enforcing the statute through the imposition of criminal penalties, Congress intended to create public penalties in order to deter disclosure. The statute merely emphasizes the importance of preserving the confidentiality of patient records in order to encourage individuals to seek treatment. See Ellison v. Cocke County, 63 F.3d 467, 470-471 (6th Cir. 1995).

849 F.Supp. 190 (1993) Kimberly FONTAINE, Plaintiff, v. Kimberly RYAN, Stephen Sprouse, Stephen Sprouse Studios, Inc., Pinkerton's, Inc., Blanka Bernic, Jed Richardson and Keeble Cavaco & Duka, Inc., Defendants. No. 88 Civ. 1842 (VLB). United States District Court, S.D. New York. December 13, 1993. *191 *192 *193 Stuart R. Shaw, New York City, for plaintiff. Ralph F. DiSomma, Kelly & McGlynn, New York City, for defendants CSI, Stephen Sprouse and Stephen Sprouse Studios. Timothy Gillane, Gallahan, Schepp, New York City, for defendant Pinkerton's. Bernadette Harrigan, Morris, Graham, Westbury, NY, for defendant Blanka Bernic. Jed Richardson, pro se. Silfen & Glasser, New York City, for defendant Ryan. Kerrigan & MacCartney, Nyack, NY, for defendant Keeble Inc. VINCENT L. BRODERICK, District Judge. MEMORANDUM ORDER I This case, in which jurisdiction is based on diversity of citizenship, involves an altercation at a party in the course of which the defendant Kimberly Ryan ("Ryan") injured the plaintiff. In addition to Ryan, plaintiff sued the sponsor of the party, Pinkerton's, Inc. ("Pinkerton's") which had been retained to provide security at the affair, and other defendants. By Report and Recommendation dated September 2, 1993 United States Magistrate Judge Leonard Bernikow recommended that motions for summary judgment under Fed. R.Civ.P. 56 be granted for plaintiff against defendant Ryan and that such motions be granted in favor of defendants with respect to the other claims. I approve and adopt the Report and Recommendation of the Magistrate Judge, which is attached to and made a part of this memorandum order.[1] The comprehensive *194 factual and legal analysis of the Magistrate Judge will not be repeated here; familiarity with it is assumed. Plaintiff's objections are entirely devoid of merit. There is no evidence suggesting that the sponsor of the party, Pinkerton's, or anyone other than defendant Ryan caused, or could reasonably have been expected to prevent, plaintiff's injuries resulting from Ryan's attack. II In granting summary judgment for defendants other than Ryan, the Magistrate Judge did not determine the scope of the duty of Pinkerton's toward the party sponsor in the absence of any detailed or written agreement between them. The legitimate interests of the parties — an important guide to contract interpretation where no document or explicit oral agreement concerning the matter exists — would suggest that security guards were paid by the sponsor of the party to protect that sponsor, and absent advance assurances of protection of invitees, owed no duty to the invitees. Protection of the sponsor would logically include prevention, if possible, of the kind of incident giving rise to this lawsuit. Such an objective of the sponsor's agreement with Pinkerton's does not, however, suggest that a purpose of the agreement was to create a duty enforceable by invitees. There would have been no reason for the sponsor and Pinkerton's to agree to be liable to an invitee if an injury occurred at the affair notwithstanding whatever steps Pinkerton's might have been able to take to avoid such an incident, except if availability of guard protection was announced in order to encourage attendance (an event not suggested to have occurred here). Absent explicit or inferable agreement to undertake responsibility to third parties (not merely to protect them for the benefit of the directly contracting parties), a third party beneficiary agreement enforceable by the third party does not exist. See Strauss v. Belle Realty Co., 98 A.D.2d 424, 469 N.Y.S.2d 948, 950 (2d Dept.1983), aff'd 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985); Note, 57 Colum.L.Rev. 406 (1957); Special Comm. on Consumer Aff., "Remedies Short of Consent or Litigated Orders for Violation of the Federal Trade Commission Act," 32 Rec. Ass'n Bar City NY 622 (1977). If a contract is silent with respect to such a potentially far-reaching obligation not implicit in the parties' arrangement, and there is no basis for inferring a duty, the duty may properly be held to be absent based on the language of the contract. Otherwise the result would be one of "trapping parties in surprise contractual obligations that they never intended." TIAA v. Tribune Co., 670 F.Supp. 491, 497 (S.D.N.Y.1987) (Leval, J.). This would have ill effects on the predictability of transactions, whereas "stability and predictability in contractual affairs is a highly desirable jurisprudential value." Sabetay v. Sterling Drug, 69 N.Y.2d 329, 336, 514 N.Y.S.2d 209, 213, 506 N.E.2d 919, 922 (1987). If agencies such as Pinkerton's were liable for damages should injuries occur at an affair through no fault of theirs and despite efforts to provide security, the cost of such guard service would increase, and the ranks of those able to obtain such service would obviously be lessened with no gain to the contracting parties or the public interest.[2] III Pinkerton's has filed its own objections complaining that the Magistrate Judge's Report and Recommendation failed to limit Pinkerton's duty to the sponsor with whom they contracted. As a prevailing party securing summary judgment in its favor, Pinkerton's appears to lack standing to pursue such objections, which need not in any event be reached. See In re DES Litigation, 7 *195 F.3d 20 (2d Cir.1993); see also California v. Rooney, 483 U.S. 307, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987); Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188 (1956). SO ORDERED. REPORT AND RECOMMENDATION (Sept. 2, 1993) (As Corrected Sept. 22, 1993) To the Honorable VINCENT L. BRODERICK, United States District Judge: BERNIKOW, United States Magistrate Judge. This diversity action is based on an assault plaintiff sustained at the hands of defendant Kimberly Ryan at a party given by defendant CSI, Inc. Now before the court are the summary judgment motions of various defendants. Plaintiff has cross-moved for summary judgment against defendant Ryan and Pinkerton's Inc., and opposes the motions of the other defendants.[1] Background On September 17, 1987, defendants Stephen Sprouse, a New York fashion designer, and Stephen Sprouse Studios, Inc., (collectively CSI Associates, hereinafter "CSI") gave a party to celebrate the opening of Sprouse's new store. CSI hired defendant Keeble Cavaco Duka, ("Keeble"), a public relations, advertising and special events firm, to "produce" the party, at about which 1,000 guests were expected. Among other things, Keeble hired the caterer and, to provide security, defendant Pinkerton's, Inc. ("Pinkerton's"). Pinkerton's supplied five guards, all of whom were stationed inside the store where the party was held. The guards were dressed in what Pinkerton's terms its "soft look" uniform, consisting of a navy blue blazer, grey slacks and a blue and gray striped tie. Two guards were stationed in the foyer just inside the front door, one was located on the first level, one on the second level and one on the third. Keeble also hired four "bouncers" unaffiliated with Pinkerton's to maintain crowd control outside. Four Keeble employees were located at the front door to admit guests and seven other Keeble staffers were deployed throughout the store. Keeble rented six "walkie-talkies" so that its employees stationed in various parts of the store could communicate with each other. Keeble's Vice-President and the person responsible for planning the party, Julie Mannion, testified at deposition that no Pinkerton guard was issued a walkie-talkie. Mannion 67-68.[2] The party began at 9:00 p.m. Champagne, milk, Perrier, Coca-Cola, and food were passed around on trays by waiters and waitresses. Two bars, one on the main level and one on the second floor, operated until 10:45 p.m. The last guest left between 11:30 and 11:45 p.m. Plaintiff believes that she arrived at the party at about 11:00 p.m. She had not received an invitation; instead, she accompanied Rachel London, a clothing designer who had been invited and whose fashions she was modeling at Ms. London's request. Earlier that day, plaintiff and an ex-boyfriend, defendant Jed Richardson, had worked on a song that the two were recording together. Although their relationship was purely business by September of 1987, plaintiff and Richardson had been personally involved for a time during the late winter and early spring of that year. Guenther 104, 109. Some time after the two finished work on September 17, plaintiff went to Ms. London's apartment and then she and Ms. London left for the party. When they arrived, plaintiff said, the party was "really crowded." Guenther 128. She got some champagne and started chatting with people that she knew. At about 11:30, she noticed Jed Richardson walking by and called out his name. When he didn't respond, plaintiff "ran over to him" so that she could introduce him to the man that she had been talking with, Ed Steinberg, a video producer. Guenther 134. Plaintiff said that *196 Richardson continued to walk towards the front of the store "like he didn't know" her, as if "[h]e was trying to run away or something." Guenther 135. Plaintiff approached Richardson and said "hi" and kissed him on the cheek.[3] At that point, defendant Ryan, with whom Jed had had a sporadic romantic relationship, appeared from behind Richardson and greeted plaintiff with "Hello, bitch." Guenther 138. Ryan tossed her champagne in plaintiff's face and then struck her above the eye with the glass, cutting plaintiff with the broken glass from just above her eyebrow down to her mouth. According to witnesses, the entire encounter, from the time that plaintiff heard Ryan's epithet until the glass hit her, lasted between one and five seconds.[4]See, e.g., Guenther 141 (one to two seconds), Ryan 112, (three to five seconds), Richardson 49, 88 (two to five seconds), Steinberg 44 (three to four seconds). Plaintiff wiped the blood off her face and noticed that a crowd, including photographers, had gathered. She did not see any uniformed security guards. Guenther 149. Within a minute, Rachel London rushed plaintiff out of the store, Guenther 147, and tried to get a cab to take plaintiff to the hospital. As she was leaving, plaintiff testified, she saw a man in a "bluish gray suit ... going like hush, hush, hush to everybody." Guenther 148. She never learned this man's identity, yet she "got the feeling ... that he was in charge or something." Guenther 159. Another man, she said, ran over to her after the incident, but she didn't know if he was a security guard and he didn't introduce himself as one. Guenther 296. Jed Richardson testified that he thought that a black man in a turtleneck assisted plaintiff after Ryan struck her. Richardson 62. Ryan also said that she saw men in turtlenecks after the assault, but that she didn't notice any Pinkerton's guards. Ryan 61-62, 111, 131. Steinberg remembered "people taking care of [plaintiff]" and that "things were under control." Steinberg 31. Plaintiff alleges, as her first two claims, assault and negligence by Ryan. She also alleges, as her eleventh claim, that Ryan menaced her in a nightclub on March 9, 1988. Her third and fourth claims, against Stephen Sprouse and Stephen Sprouse Studios, Inc., allege that these defendants negligently failed to protect plaintiff and negligently and indiscriminately dispensed alcoholic beverages to guests. Plaintiff's fifth and sixth claims are for intentional infliction of emotional distress against Sprouse and Sprouse Studios. She alleges that in November, 1987, Sprouse held a fashion show in which models were made up to appear as if they had blood dripping down their faces and scars similar to the way plaintiff appeared after she had been assaulted. As a seventh claim, plaintiff alleges negligence against Sprouse's landlord, Blanka Bernic, who owns the building where the party was held. Her eighth claim alleges negligence on the part of Pinkerton's for failing to supervise the conduct of the guests and failing to aid plaintiff after the assault. Plaintiff also sues Jed Richardson, as her ninth and tenth claim, for conspiring with Ryan and encouraging her assault on plaintiff, and for failing to warn plaintiff of the impending attack. Finally, her twelfth claim alleges that Keeble Cavaco Duka was negligent in selecting Pinkerton's and in supervising the Pinkerton's guards assigned to the party. Defendants Blanka Bernic, CSI, Keeble and Pinkerton's now move for summary judgment. Plaintiff cross moves for summary judgment against Ryan and Pinkerton's, and opposes CSI's, Blanka Bernic's and Keeble's motions. Discussion The standards governing motions for summary judgment under Fed.R.Civ.P. 56 are well known. The court is not to resolve issues of fact, but to determine whether *197 there are issues to be tried. Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). "The key is issue finding, not issue resolution." United States v. One Tintoretto Painting Entitled "The Holy Family with Saint Catherine and Honored Donor", 691 F.2d 603, 606 (2d Cir.1982). Only disputes material to the claim before the court need be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law governing the litigation indicates which facts are material; factual questions not affecting the outcome of the suit will not forestall summary judgment. Phibro Energy Inc. v. Empresa De Polimeros De Sines Sarl, 720 F.Supp. 312, 315 (S.D.N.Y. 1989). When no reasonable trier of fact could find for the opposing party, judgment is appropriate. Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992). Initially, the movant must demonstrate the absence of a material factual dispute. Schering Corporation v. Home Insurance Company, 712 F.2d 4, 9 (2d Cir.1983). All ambiguities are resolved and all inferences drawn against the movant in considering its motion. Patrick v. Le Fevre, 745 F.2d 153, 158 (2d Cir.1984). Where the non-movant bears the ultimate burden of proof, the moving party meets its initial burden by alerting the court to the absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to show that a trial issue exists. See Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (quoting Fed.R.Civ.P. 56(e)). Conclusory allegations or denials, or "mere speculation or conjecture" are insufficient to meet this burden. Knight v. U.S. Fire Insurance Company, 804 F.2d 9, 12 (2d Cir.1986). Rather, the non-movant must submit specific facts establishing a genuine issue for trial. Fed. R.Civ.P. 56(e); Law Firm of Daniel P. Foster, P.C. v. Turner Broadcasting System, Inc., 844 F.2d 955, 959 (2d Cir.1988), cert. denied, 488 U.S. 994, 109 S.Ct. 559, 102 L.Ed.2d 585 (1988); see Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923 (2d Cir.1985). Even then, if "`it clearly appears that the issues are not genuine, but feigned,'" United National Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 354 (2d Cir.1993) (quoting Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 94, 239 N.E.2d 725, 726 (1968)), or if plaintiff fails to present affirmative evidence of all of the elements of the alleged tort, summary judgment is warranted. See International Minerals and Resources, Inc. v. Pappas, No. 87 Civ. 3988 (PKL), 1992 WL 354504 *2 (S.D.N.Y. November 19, 1992). I. Plaintiff's Motion Against Ryan Plaintiff moves for summary judgment with respect to liability against defendant Ryan on her first claim, which alleges that Ryan assaulted her.[5] At oral argument, Ryan's counsel conceded that Ryan's guilty plea to a charge of criminal assault is res judicata with respect to this civil claim. Thus, on her first claim, plaintiff should be awarded summary judgment as to liability. Plaintiff's damages have yet to be determined. II. Pinkerton's Motion a. Failure to Prevent the Assault Pinkerton's moves for summary judgment because it believes that it was hired to safeguard Sprouse's store and merchandise on display, not individual guests. It further points out that plaintiff's injury resulted from an unforeseeable attack that it could not have prevented. Plaintiff, on the other hand, contends that Pinkerton's function included protecting party guests. More than that, she argues, her injury was foreseeable "given the type of party, the number of celebrities, the number of guests crowded into a confined space, [and] the fact that alcoholic beverages were served indiscriminately." Plaintiff's Memorandum in Opposition at 15. As a general matter, to prove negligence, a plaintiff must demonstrate (1) the existence of a legal duty owed plaintiff by defendants, and (2) a breach of that duty (3) proximately causing injury to plaintiff. Kazanoff v. United States, 945 F.2d 32, 35 (2d *198 Cir.1991); Akins v. Glens Falls City School District, 53 N.Y.2d 325, 441 N.Y.S.2d 644, 648, 424 N.E.2d 531, 535 (1981).[6] Plaintiff's first hurdle is to establish that Pinkerton's had a duty to protect her. Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 394, 358 N.E.2d 1019, 1020 (1976) (citing Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99, 101 (1928)). Duty "tells us whether the risk to which one person exposes another is within the protection of the law," an inquiry guided by policy as well as logic. See De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 627, 449 N.E.2d 406, 407 (1983). The absence of a duty makes it impossible for plaintiff to show a breach; without a breach, there can be no liability. Pulka, 390 N.Y.S.2d at 395, 358 N.E.2d at 1020. The court ordinarily decides whether a duty exists. Eiseman v. State, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 613, 511 N.E.2d 1128, 1134 (1987); De Angelis, 462 N.Y.S.2d at 628, 449 N.E.2d 408. Plaintiff says Pinkerton's duty to protect her stems from Pinkerton's agreement with Keeble to provide security at the party. As a guest, she claims, she was a third-party beneficiary of the Keeble-Pinkerton's security agreement. The New York law relating to the rights of third-party beneficiaries is summed up in Strauss v. Belle Realty Co., 98 A.D.2d 424, 469 N.Y.S.2d 948, 950 (2d Dep't 1983), aff'd., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985) (quoting Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 430 N.Y.S.2d 179, 185 (1980)) (internal citations omitted): A third party beneficiary may sue on a contract made for his benefit. The intent to benefit a third party must be shown and the benefit must not be merely incidental but immediate to such a degree as to indicate the assumption of a duty to make reparation if the benefit is lost. Absent such intent, the third party is merely an incidental beneficiary with no right to enforce the contract. An incidental beneficiary is a third party who may derive benefit from the performance of a contract though he is neither the promisee nor the one to whom performance is to be rendered. While it is not necessary that a third-party beneficiary be identified or even identifiable at the time that the contract is made, he has no right to enforce the contract himself until such time as he is identified. A party, claiming to be a third-party beneficiary, has the burden of demonstrating that he has an enforceable right. Thus, plaintiff may recover as a third party beneficiary only if it appears from the contract that the parties intended to protect her from physical injury. See Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769, 770 (1st Dep't 1976), aff'd., 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362 (1977); see also Bizien v. Port Authority of New York & New Jersey, 577 F.Supp. 1093, 1102 (E.D.N.Y.1983); Cerullo v. Aetna Casualty & Surety Co., 41 A.D.2d 1, 341 N.Y.S.2d 767, 770 (4th Dep't 1973). Further, plaintiff bears the burden of showing that the contracting parties intended to confer upon her a third party benefit. Strauss, 469 N.Y.S.2d at 950; see Inn Chu Trading Co. v. Sara Lee Corp., 810 F.Supp. 501, 504 n. 6 (S.D.N.Y. 1992). As Pinkerton's points out, plaintiff submits nothing which "`evince[s] a discernible intention to allow recovery for the specific damages to the third party that resulted from a breach'" of the security contract. See Castorino v. Unifast Building Products Corp., 161 A.D.2d 421, 555 N.Y.S.2d 350, 352 (1st Dep't 1990) (quoting Strauss v. Belle Realty Co., 469 N.Y.S.2d at 950)); Buckley v. I.B.I. Security Service, Inc., 157 A.D.2d 645, 549 N.Y.S.2d 744, 744 (1st Dep't 1990); Haigler v. New York, 135 A.D.2d 362, 521 N.Y.S.2d 428, 429 (1st Dep't 1987). Apparently, the Keeble-Pinkerton's security agreement was oral; no written contract has been submitted. Pinkerton's supplies two documents, an invoice and an internal "journal entry," to show that it was not intended to assume responsibility for the guests' well-being. The invoice bills CSI for "Property Protection." Pinkerton's Exh. B. The journal entry also describes Pinkerton's function *199 as "property protection." Id. Under "Specific Duties," the journal entry says that "The S/O's by their uniformed presence shall serve to deter any aberrant or mischievous acts i.e. fire theft etc." Pinkerton's says these records establish that they were hired to safeguard Sprouse's designs and his store, not to protect guests from criminal assault. But the journal entry reference to the deterrence of "fire, theft etc." (emphasis supplied), suggests that Pinkerton's duties may not have been confined to guarding against just the listed hazards. Also, Julie Mannion testified that she did not know if property protection was "specifically the only purpose" for which Keeble obtained security. Mannion 78. She recalled that the Pinkerton's guards were told "basically to oversee the premises and make sure nothing happened," id. at 64, and "to observe, to make sure that nothing was stolen. There were no problems, nobody needed their assistance." Mannion 74. The open-ended journal language, and Mannion's testimony, suggests that the parties had no precise understanding as to Pinkerton's role at the affair. Summary judgment based on construction of a contract should be limited to unambiguous agreements. Leberman v. John Blair & Co., 880 F.2d 1555, 1559 (2d Cir.1989). The court may not interpret an ambiguous contract "to accord with its instinct for the dispensation of equity upon the facts of a given case." Cruden v. Bank of New York, 957 F.2d 961, 976 (2d Cir.1992). Mannion's testimony that the Pinkerton's guards were intended to maintain order and ensure that "nobody" needed assistance raises a question as to whether the guards were intended to protect guests. Given the deference to which plaintiff is entitled as non-movant, see Cargill, Inc. v. Charles Kowsky Resources, Inc., 949 F.2d 51, 55 (2d Cir.1991), she manages to identify a factual dispute with respect to the scope of Pinkerton's contractual duty. Even assuming that Pinkerton's was obligated to safeguard plaintiff, she is unable to establish that Pinkerton's breach proximately caused her injury. See Daversa v. Harris, 167 A.D.2d 810, 563 N.Y.S.2d 372, 373 (3rd Dep't 1990). Proximate cause is that "`which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred.'" Caraballo v. United States, 830 F.2d 19, 22 (2d Cir.1987) (quoting Rider v. Syracuse Rapid Transit Ry. Co., 171 N.Y. 139, 147, 63 N.E. 836 (1902)). Causation is ordinarily resolved by the fact finder, but where the actual cause of injury is undisputed, causation becomes a question for the court. See Caraballo, 830 F.2d at 22; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 612, 407 N.E.2d 451, 456 (1980); Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 170, 414 N.E.2d 666, 670 (1980); Rivera v. New York, 11 N.Y.2d 856, 227 N.Y.S.2d 676, 677, 182 N.E.2d 284, 285 (1962), rearg. denied, 11 N.Y.2d 1016, 229 N.Y.S.2d 1028, 183 N.E.2d 772 (1962). The immediate cause of plaintiff's injury was Ryan's attack. See Plaintiff's 3(g) Statement ¶¶ 1, 12; Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 504 N.Y.S.2d 56, 58 (2d Dep't 1986); see also Ventricelli v. Kinney System Rent A Car, Inc., 45 N.Y.2d 950, 411 N.Y.S.2d 555, 556, 383 N.E.2d 1149, 1150 (1978). If the assault was foreseeable, Pinkerton's may be liable if it did not take adequate security precautions. See Nallan, 429 N.Y.S.2d at 614, 407 N.E.2d at 458. On the other hand, Pinkerton's cannot be held liable for failing to prevent an unforeseen and unanticipated criminal act. See Cullen v. BMW of North America, 691 F.2d 1097, 1101 (2d Cir.1982), cert. denied, 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948 (1983); Silver v. Sheraton-Smithtown, 504 N.Y.S.2d at 57; Ward v. State, 81 Misc.2d 583, 366 N.Y.S.2d 800, 807 (Ct.Cl.1975). In Kohler v. Wray, 114 Misc.2d 856, 452 N.Y.S.2d 831, 834-35 (Sup.Ct.1982), the plaintiff, a guest at a party, unwittingly asked a married guest to dance and was subsequently beaten up by her husband. Id. at 833. The assault occurred so quickly that the defendant, the party's host, had no time to intervene. Id. at 834. The court granted the defendant summary judgment because there was no evidence that he had notice of the assault or an opportunity to prevent it. *200 452 N.Y.S.2d at 834. Similarly, in Axon v. New York City Transit Authority, 120 A.D.2d 475, 502 N.Y.S.2d 31, 32 (2d Dep't 1986), a police officer separated two quarrelling passengers on a subway train and took them to a platform to sort out their dispute. As the three stood on the platform, one combatant hit the other in the mouth without warning. Id. The injured passenger sued the Transit Authority. The court reversed the jury verdict in favor of the victim and dismissed the complaint, finding that "where [the attacker] had neither threatened nor engaged in prior acts of violence against the plaintiff," the defendant could not have reasonably anticipated nor thwarted the sudden attack. 502 N.Y.S.2d at 32. Plaintiff testified that she was not aware of any other altercations or disturbances at the party. Guenther 149. She said that she did not know Sprouse, Guenther 118, and Sprouse denies knowing plaintiff or Ryan. Sprouse 34; Sprouse Aff. ¶ 5. Steinberg testified that the party was a "very adult affair," and a "pretty relatively ordinary party," Steinberg 28, and he believed that it was "conducted in an orderly manner." Steinberg 45. What is more, nothing suggests that Pinkerton's, or indeed, any of the defendants, knew of the animosity between plaintiff and Ryan. It appears that none of the defendants even knew who plaintiff or Ryan were. Finally, Ryan described the assault as impulsive and without warning to anyone. Ryan 102-03. This evidence supports Pinkerton's contention that it had no way of predicting or preventing Ryan's sudden, see Axon, 502 N.Y.S.2d at 32-33, and unanticipated, see Silver v. Sheraton-Smithtown, 504 N.Y.S.2d at 57, attack. In response, plaintiff points out that Ryan testified that her roommate, "Dee Dee," reported to Ryan that the plaintiff had stepped on her foot and elbowed her in the stomach. Ryan 122-24. Plaintiff further notes that Ryan testified in connection with her criminal case that Dee Dee worked for Sprouse. See Plaintiff's letter dated March 30, 1993, Exh. 1 (transcript of Ryan's plea allocution). Plaintiff thus concludes that the parties had notice of trouble brewing. See Plaintiff's Affirmation in Opposition ¶ 12. For several reasons, this information falls short of establishing that Pinkerton's should have expected a criminal assault. First, Ryan's account of her conversation with her roommate is hearsay, and accordingly insufficient to raise a triable issue. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 n. 19, 90 S.Ct. 1598, 1609 n. 19, 26 L.Ed.2d 142 (1970); Burlington Coat Factory Warehouse, 769 F.2d at 924. Dee Dee is obviously known to plaintiff, but she has not submitted an affidavit or deposition testimony from her. See Gonyea v. Folger, 133 A.D.2d 964, 520 N.Y.S.2d 670, 671 (3rd Dep't 1987) (although assaulted bar patron claimed that his attacker had threatened another patron, the victim failed to provide an affidavit from the alleged recipient of the threat). Second, plaintiff said that she was unaware of any other altercations, arguments or incidents at the party. Guenther 149.[7] In addition, plaintiff submits no evidence that Ryan's roommate worked for Sprouse, let alone alerted him or anyone else to hostility between the Ryan and plaintiff. Indeed, Ryan testified that she and her roommate decided not to warn security but to avoid plaintiff instead. Ryan 124. Thus, plaintiff has not rebutted Pinkerton's contention that it could not have foreseen Ryan's attack. See Garofalo v. Henrietta Italia, Inc., 175 A.D.2d 580, 572 N.Y.S.2d 246, 246 (4th Dep't 1991). She therefore fails to establish that Pinkerton's negligence proximately caused her injury. Pagan v. Hampton Houses, Inc., 187 A.D.2d 325, 589 N.Y.S.2d 471, 472 (1st Dep't 1992); see Ward v. State, 366 N.Y.S.2d at 807. Cruz v. Madison Detective Bureau, Inc., 137 A.D.2d 86, 528 N.Y.S.2d 372, 374 (1st Dep't 1988), cited by plaintiff, does not compel a different result. In that case, a movie theater usher sued Madison Detective Bureau, who had been hired to protect both patrons and employees. Id., 528 N.Y.S.2d at 373. The usher had been assaulted by patrons attempting to sneak from one theater to another without paying. Id. The trial testimony indicated that the guards' responsibility *201 particularly included crime prevention when the movies had ended and the crowds were leaving the theaters. Id., 528 N.Y.S.2d at 374. In contrast to the instant case, the plaintiff there submitted evidence to indicate that the defendants should have anticipated the possibility of criminal activity because it had occurred at the theater in the past. Id., 528 N.Y.S.2d at 375. b. Failure to Assist Plaintiff further alleges that Pinkerton's was negligent because it "failed to call the police, told defendant Kimberly Ryan to leave, failed to call an ambulance or Emergency Medical Service, and let plaintiff seek medical attention for herself, without any assistance." Complaint ¶ 48.[8] Plaintiff's own deposition testimony undermines her claims. For one thing, she said that within a minute of the assault her escort rushed her out of the party. Guenther 146-47. She also admitted that she never requested the assistance of security. Guenther 298. In addition, at deposition, plaintiff could not explain the basis for her claim that a Pinkerton's employee ushered Ryan out of the party. Guenther 239. She testified that she thought that the claim referred to "the man in the little gray suit," Guenther 239, "who she described as going `ssh, ssh, ssh.'" Guenther 296. Richardson testified that no Pinkerton's guard told Ryan to leave. Richardson 50-51. Hence, nothing supports plaintiff's contention that Pinkerton's "admittedly" permitted Ryan to leave.[9] Plaintiff's Memorandum in Opposition at 12. More important, however, plaintiff has not shown that Pinkerton's alleged failure to come to her assistance proximately caused or aggravated her injuries. Failure to act "is not regarded as the cause of an injury if the injury would have occurred without it." See Trueba v. Flota Bananera Ecuadorian Lines, Inc., 675 F.Supp. 786, 789 (S.D.N.Y.1987). Ryan injured plaintiff; she has not shown that Pinkerton's alleged neglect exacerbated that injury. In sum, plaintiff submits no evidence to suggest that Pinkerton's should have anticipated Ryan's attack, or that its alleged negligence contributed to her injury. Accordingly, Pinkerton's motion for summary judgment should be granted and plaintiff's cross motion denied. III. Keeble As noted, plaintiff contends that Keeble, the party "producer," was negligent in selecting Pinkerton's and in supervising the Pinkerton's guards assigned to the party. As she had in connection with Pinkerton's motion, plaintiff claims that she was a third party beneficiary of the security contract between Keeble and Pinkerton's. To support her contention that the assault should have been expected, plaintiff continues to rely on Ryan's hearsay testimony regarding the confrontation between plaintiff and Ryan's roommate. Keeble's motion for summary judgment should be granted. Again, plaintiff fails to adduce sufficient facts to show that Ryan's attack should have been anticipated. First, as stated, Ryan's testimony as to the exchange between her roommate and the plaintiff is hearsay and thus insufficient to raise a triable issue. See Adickes, 398 U.S. at 159 n. 19, 90 S.Ct. at 1609 n. 19; Burlington Coat Factory Warehouse, 769 F.2d at 924; Gonyea, 520 N.Y.S.2d at 671-72. And although plaintiff claims that CSI, Keeble and Pinkerton's had notice of hostilities between guests, Plaintiff's Memorandum in Opposition at 7, Ryan testified that neither she nor her roommate notified anyone of plaintiff's confrontation with Ryan's roommate. Plaintiff admitted that she had not been acquainted with any Keeble employees on the night of the party. Guenther 349. Nor has she produced admissible evidence of similar incidents: she *202 testified that she was unaware of any other disturbances, fights, arguments or commotions. Guenther 149. Plaintiff's claim that Ryan's assault was foreseeable again fails. See Davis v. New York, 183 A.D.2d 683, 584 N.Y.S.2d 64, 64-65 (1st Dep't 1992); Lindskog v. Southland Restaurant, Inc., 160 A.D.2d 842, 554 N.Y.S.2d 276, 277 (2d Dep't 1990). In the absence of any evidence that the criminal attack should have been anticipated, see Kohler, 452 N.Y.S.2d at 834-45; Ward v. State, 366 N.Y.S.2d at 807 (Ct.Cl. 1975), Keeble's motion should be granted. IV. Blanka Bernic Plaintiff has also sued Sprouse's landlord, Blanka Bernic, who owns the building where Sprouse's store is located and where the party was held, "for negligently renting to an unsuitable tenant." Plaintiff's Memorandum in Opposition at 17. She alleges that "this out-of-possession landlord retained a substantial measure of control over the premises through its right to re-enter, inspect, make repairs and the like," id. at 16, and further asserts that Bernic was aware, when it leased the store to CSI, that "a large opening party (or parties) would be held." Id. at 17. No material factual disputes exist with respect to this claim. Bernic testified at deposition that she was unaware that CSI would be giving a party.[10] Bernic 8-9. Her attorney admitted that she had "little or no connection" with the property. Bernic 16. Bernic knew nothing of the events of November 17, 1987. Bernic 13. Although plaintiff asserts that Bernic's negligence is "all the more glaring since the building has only one means of egress/ingress and had not sprinkler system," Plaintiff's Memorandum in Opposition at 17, she has not claimed that the alleged lack of a second exit or sprinkler system contributed to her injury. Moreover, Bernic said that she was unaware of any building code violations existent on the date of the party, Bernic 13, and apparently has not been accused of any violations in connection with the events at the party.[11] The only issue is whether Bernic, as an out of possession landlord, owed plaintiff a duty of care to protect her from the criminal conduct of others. A landowner is obligated to exercise reasonable care in maintaining her property. Kush v. Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 833, 449 N.E.2d 725, 727 (1983); see Kazanoff, 945 F.2d at 38. Possessors of land are not insurers of a visitor's safety but they may be responsible for protecting tenants against third party criminal acts. See Nallan, 429 N.Y.S.2d at 613, 407 N.E.2d at 457; Clarke v. J.R.D. Management Corp., 118 Misc.2d 547, 461 N.Y.S.2d 168, 169 (Civ.Ct.1983). Such a duty attaches only if the risk of criminal conduct on the premises is foreseeable. Maysonet v. KFC, Nat. Management Co., 906 F.2d 929, 930-31 (2d Cir.1990); Camacho v. Edelman, 176 A.D.2d 453, 574 N.Y.S.2d 356, 357 (1st Dep't 1991). Even a history of criminal activity on the premises does not obligate the landlord to take protective measures unless she "knows or has reason to know from past experience `that there is a likelihood of conduct on the part of third persons ... which is likely to endanger the safety of the visitor.'" Nallan, 429 N.Y.S.2d at 613, 407 N.E.2d at 457 (quoting Restatement, Torts 2d, § 344, Comment f). Plaintiff submits nothing to suggest that Sprouse's store had a history of prior criminal activity. See Maysonet, 906 F.2d at 931; cf. Brown v. Marathon Realty, Inc., 170 A.D.2d 426, 565 N.Y.S.2d 219, 221 (2d Dep't 1991) (it is "incumbent on plaintiffs, in opposition to the motion, to lay bare their proof as to [defendant's] actual or constructive notice of the alleged hazard"). Unlike Nallan, in *203 which the victim showed that 107 crimes occurred in the building in question in the 21 months prior to his assault, plaintiff fails to identify any circumstances that should have warned Bernic of the possibility of violence. 429 N.Y.S.2d at 613, 407 N.E.2d at 457. Plaintiff has not established a pattern of criminal activity sufficient to place Bernic on notice that additional safety precautions were necessary. Camacho, 574 N.Y.S.2d at 357; Davis v. New York, 584 N.Y.S.2d at 64. Moreover, plaintiff fails to demonstrate, as she has failed with respect to the motions of the other defendants, that Ryan's conduct was foreseeable. See id. at 932. She alleges that Bernic "knew that [Sprouse] would have a large opening party, and that he was an avant-garde fashion designer, that an opening was likely to draw an unruly crowd." Plaintiff's Cross-Motion ¶ 40. The evidence contradicts these unsupported assertions. To begin with, Bernic flatly denied that she knew that Sprouse planned a party. Further, Ryan assaulted plaintiff impulsively and without warning. See Maysonet, 906 F.2d at 931. Also, no witness testified that the party was unruly; no evidence suggests that other fights marred the affair. Thus, Bernic cannot have been negligent for failing to take additional security precautions in the absence of some indication that criminal activity rendered such measures necessary. See Kazanoff, 945 F.2d at 39; Iannelli v. Powers, 114 A.D.2d 157, 498 N.Y.S.2d 377, 381 (2d Dep't 1986), app. denied, 68 N.Y.2d 604, 506 N.Y.S.2d 1027, 497 N.E.2d 707 (1986); see also Amarante v. Rothschild, 171 A.D.2d 633, 566 N.Y.S.2d 657, 658 (2d Dep't 1991). Plaintiff's reliance on Guzman v. Haven Plaza Housing Development Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 452-53, 509 N.E.2d 51, 52-54 (1987) is misplaced. True, the Court of Appeals found that an out of possession landlord who retained the right to re-enter for repair or inspection could be liable for the injuries caused by a defective staircase. But that plaintiff specifically asserted that her injury resulted from the hazardous condition of the stairs, which appeared to have violated the Administrative Code of the City of New York. See id. Plaintiff here establishes no connection between the alleged building defects and her injury. See Rivera, 227 N.Y.S.2d at 677, 182 N.E.2d at 285; see also Trueba, 675 F.Supp. at 789-90; Herndon v. Jennings, 101 A.D.2d 688, 475 N.Y.S.2d 678, 679 (4th Dep't 1984). V. CSI a. Negligence Plaintiff argues that CSI had a duty to protect plaintiff from foreseeable harm. It failed to take adequate security precautions, according to plaintiff, despite its awareness of the "dangers inherent in a large crowd, particularly where alcohol is being served." Plaintiff's Memorandum in Opposition at 3. She also alleges that "in the context of a large party, [where] alcohol was being served and where defendant Kimberly Ryan had admittedly availed herself of same," id. at 6, Ryan's attack was not unexpected. Specifically, plaintiff accuses CSI of failing to control the supply of alcohol and inadequately staffing the party. If she is to deter summary judgment, plaintiff must provide "some affirmative indication that [her] version of relevant events is not fanciful." See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980); see also Campbell v. Lorenzo's Pizza Parlor, Inc., 172 A.D.2d 478, 567 N.Y.S.2d 832, 834 (2d Dep't 1991), app. denied, 78 N.Y.2d 863, 578 N.Y.S.2d 877, 586 N.E.2d 60 (1991). She proffers no evidence linking her injury with the careless distribution of alcohol. See Gonyea, 520 N.Y.S.2d at 671; Ward v. State, 366 N.Y.S.2d at 809. Ryan testified that she had "one, maybe one and a half" ordinary glasses of champagne prior to the assault.[12] Ryan 111. Steinberg recalled that the party was not "wild" but was conducted in an orderly manner. Steinberg 44-45. More important, plaintiff has not shown that Ryan *204 was served at the party despite being obviously intoxicated. See Garofalo, 572 N.Y.S.2d at 247; Campbell, 567 N.Y.S.2d at 834. That Ryan subsequently assaulted plaintiff does not support an inference that Keeble's staff or agents served an intoxicated person. See Gonyea, 520 N.Y.S.2d at 672. Nor does having alcoholic beverages available at a party constitute notice of the potential for injury. See Kohler, 452 N.Y.S.2d at 834-35; see also Herndon, 475 N.Y.S.2d at 679. CSI's alleged failure to hire competent guards should also be rejected. As discussed in connection with Pinkerton's motion, supra, plaintiff has not submitted evidence of Pinkerton's incompetence or of other violence at the party. Nor has plaintiff shown that Keeble's or Pinkerton's due diligence would have prevented the assault. Accordingly, CSI's negligence cannot be premised on inadequate staffing. Finally, plaintiff argues that a factual dispute exists regarding the duration of the attack. The deposition excerpts submitted by the parties consistently place the length of the attack at from two to five seconds and bars this claim. See, e.g., Guenther 141 (one to two seconds), Ryan 112, (three to five seconds), Richardson 49, 88 (two to five seconds), Steinberg 44 (three to four seconds). In sum, plaintiff submits no evidence that crowded conditions, availability of alcohol or dearth of proper security measures contributed to or facilitated the assault. For the reasons stated in connection with Pinkerton's and Keeble's motions for summary judgment, plaintiff fails to establish that CSI should have foreseen the possibility of a guest being assaulted by another guest. b. Intentional Infliction of Emotional Distress In November, 1987, Sprouse held a fashion show featuring models wearing facial makeup to simulate blood. Plaintiff claims that the models appeared to have blood flowing down their cheeks from their forehead similar to the way she looked immediately after being cut by Ryan. She concedes that she never saw the fashion show; she testified that a friend "said that [Sprouse] had these models parading down the runway with blood dripping from their faces, like walking, like slashing themselves." Guenther 241. She attaches to her cross motion a photocopy of what she claims is a magazine photograph from "i.D." Magazine. Plaintiff's Exh. 4. It depicts a model whose left eye appears to drip a dark liquid running down her face. The caption identifies the clothing the model is wearing as "Sprouse label." Sprouse admitted that he selected the makeup for his November 1987 show, but he claims that the fake blood dripped from the models' mouths. Sprouse 30. The makeup, he testified, was inspired by vampire movies released during the summer of 1987. Sprouse 71. He also claims that the fashion show "was conducted as a part of [his] business in November 1987," and had nothing to do with plaintiff, Sprouse Aff. ¶ 10, whom he says he didn't know until he met her at his deposition. Sprouse 34. He further denies involvement in preparing or photographing the model whose picture plaintiff attaches to her motion as Exh. 4. Sprouse Aff. ¶ 9. Under New York law, claims of intentional infliction of emotional distress must meet the strict standard set forth in the Restatement (Second) of Torts § 46(1). See Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir.1985); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983); Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 992-93, 373 N.E.2d 1215, 1216-17 (1978). That section states: "One who by extreme and outrageous conduct intentionally ... causes severe emotional distress to another is subject to liability for such emotional distress." Restatement (Second) of Torts § 46(1). To be actionable, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id., comment d (quoted in Fischer, 402 N.Y.S.2d at 993, 373 N.E.2d at 1218). Moreover, the defendant's conduct must be "especially calculated to cause and does cause mental distress." Mauala v. Milford Management Corp., 559 F.Supp. 1000, 1004 (S.D.N.Y.1983); Kaplan v. Dart Towing, *205 Inc., 159 A.D.2d 610, 552 N.Y.S.2d 665, 667 (2d Dep't 1990). "It is for the court to determine, as a question of law, whether the alleged misconduct ... may be reasonably be considered so extreme as to permit recovery, so as to permit submission of the issue to the jury in the first instance." Richard L. v. Armon, 144 A.D.2d 1, 536 N.Y.S.2d 1014, 1017 (2d Dep't 1989). Four elements comprise emotional distress claims: (1) an extreme and outrageous act by the defendant; (2) an intent to cause severe emotional distress; (3) resulting severe emotional distress; (4) caused by the defendant's conduct. Conniff v. Dodd, Mead & Co., 593 F.Supp. 266, 269 (S.D.N.Y.1984). If plaintiff is to survive CSI's motion, she needs to show the existence of each of these elements. See Rooney v. Witco Corp., 722 F.Supp. 1040, 1043 (S.D.N.Y.1989). Plaintiff's claim fails without evidence of a deliberate and malicious effort to cause her injury. See Mauala, 559 F.Supp. at 1004. Sprouse, CSI argues, neither knew plaintiff nor intended to inflict mental harm upon her by holding its fashion show. CSI's Memorandum at 12-13; Sprouse Aff. ¶ 10; Preston v. Martin Bregman Productions, Inc., 765 F.Supp. 116, 118 (S.D.N.Y.1991); see Doe v. American Broadcasting Cos., 152 A.D.2d 482, 543 N.Y.S.2d 455, 455-56 (1st Dep't 1989), app. dismd., 74 N.Y.2d 945, 550 N.Y.S.2d 278, 549 N.E.2d 480 (1989) (television station which inadvertently disclosed rape victim's identity during investigative report despite assuring her anonymity found not to have acted intentionally or deliberately); see also Green v. Leibowitz, 118 A.D.2d 756, 500 N.Y.S.2d 146, 148 (2d Dep't 1986). Plaintiff submits nothing to establish that CSI's purpose in using blood-like makeup was to cause her distress. She has not even established that Sprouse's models had blood running down their faces instead of just running from their mouths in the manner of vampires, as Sprouse claims. Nor has she rebutted Sprouse's assertion that he did not plan and was unaware of the "i.D" Magazine photograph of a model in a Sprouse fashion with blood running from her eye to her chin. Additionally, plaintiff does not quarrel with Sprouse's assertion that his fashion show was intended to further his own interests: "[Sprouse] knew of the [assault] after it happened and apparently (and) callously capitalized upon it for his own fashion/business purposes." Plaintiff's Affirmation in Further Opposition ¶ 12. "If defendant's primary purpose was to advance its own business interests, and any conduct that harmed plaintiff was incidental, defendant has not committed the New York tort of intentional infliction of emotional distress." Rooney, 722 F.Supp. at 1040. Assuming that Sprouse's models were made up to appear as if they had been slashed, plaintiff has not shown that CSI's desire to harm her "was more than incidental to proper business motives." See Rooney, 722 F.Supp. at 1045 (quoting O'Rourke v. Pawling Savings Bank, 80 A.D.2d 847, 444 N.Y.S.2d 471, 472 (2d Dep't 1981)); see Preston, 765 F.Supp. at 120. In Preston, 765 F.Supp. at 118, the plaintiff alleged that the movie "Sea of Love" contained footage of her strolling along a New York street "scantily dressed, showing her full face and entire body." The court dismissed her emotional distress claim, apparently premised upon the unauthorized use of her image, because it found that the defendants' motivation was its own business interests and not a desire to inflict harm. See id. Here, too, plaintiff argues that Sprouse exploited for his own benefit the notoriety he gained through plaintiff's unfortunate injury. See Plaintiff's Affidavit ¶ 33 ("without question defendant CSI and its principal, Stephen Sprouse, knew of the [assault] and utilized it for publicity purposes"). Because plaintiff bears the ultimate burden of proving her claim, she is obliged to "make a showing sufficient to establish the existence of the challenged element essential to that party's case." See Mount Vernon Fire Ins. v. Creative Housing, 797 F.Supp. 176, 179 (E.D.N.Y.1992) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. at 2552) (internal brackets omitted). She fails to rebut CSI's contention that it lacked the intent to cause her mental distress, and thus her claim should be rejected. Conclusion For the foregoing reasons, I recommend that plaintiff be granted summary judgment *206 as to liability on her first claim, against Ryan. Pinkerton's motion for summary judgment, which relates to plaintiff's eighth claim, should be granted. Keeble Cavaco Duka's motion, relating to the twelfth claim, should also be granted. CSI's motion for summary judgment on the third, fourth, fifth and sixth claims should be granted. And Blanka Bernic should be granted summary judgment dismissing plaintiff's seventh claim. Copies of this report have been mailed this date to the parties listed below, who are hereby advised of their right to file objections to this report with Judge Broderick on or before September 22, 1993. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). Failure to object to this report by that date will preclude appellate review. Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir.1989). NOTES [1] The Report and Recommendation was corrected on September 22, 1993 to make clear that it recommends dismissing all claims other than those against Ryan. [2] The paradox that imposing liability to invitees upon security guard organizations without any warrant in contract or statute law would reduce rather than enhance the likelihood that such safety precautions could be taken is one of a generic type known as "fallacies of composition." The classic example of the fallacy arises where each passenger on a lifeboat seeks to add one more piece of luggage. See P. Samuelson, Economics: An Introductory Analysis 11-12 (6th ed. 1964). [1] The motions were referred to me for report and recommendation. See 28 U.S.C. § 636(b)(1)(B). [2] Deposition transcript pages are referenced by the deponent's name followed by the page number. [3] Richardson testified that plaintiff "started like jumping — like, you know, obnoxiously threw herself on me and started kissing me. And I was like, you know, I said get the hell off me and she came up and followed me and like she gave me a kiss." Richardson 45. [4] For her attack on plaintiff, Kimberly Ryan pled guilty to assault in the second degree, New York Penal Law § 120.05(2) (McKinney 1992), in New York Supreme Court on March 24, 1988. [5] It does not appear that plaintiff seeks summary judgment on her other claims against Ryan. [6] The parties agree that New York law governs this action. [7] Although plaintiff denied knowing any of Sprouse's employees and specifically Ryan's roommate, she admitted that the two had been introduced. Guenther 349. [8] Plaintiff also asserts that Pinkerton's failed to follow its own emergency protocols. Plaintiff's Memorandum in Opposition at 11. This conclusory statement finds no support in the record. Plaintiff fails to supply evidence that Pinkerton's had issued "directives" for emergency situations, fails to show how Pinkerton's ignored its own regulations, and does not indicate how this misconduct exacerbated plaintiff's injury. [9] How plaintiff was injured by Pinkerton's alleged failure to detain Ryan is unexplained. In any event, Ryan was subsequently indicted and pled guilty to assault. [10] Plaintiff complains that Blanka Bernic was not a "proper witness" despite the fact that she is a named party because she "knew nothing about anything." Plaintiff's Cross-Motion ¶ 41. Nonetheless, she alleges that Bernic "knew that [Sprouse] would have a party ... likely to draw an unruly crowd." Id. at ¶ 40 (original emphasis). As Bernic points out, nothing impaired plaintiff's legal remedies if she felt that Bernic could have supplied additional discovery or produced a more knowledgeable witness. [11] Plaintiff's charge that Bernic's building violated New York City's Administrative Code remains unsubstantiated. Nor does she identify which code provisions were allegedly violated. See Manning v. New York Telephone Co., 157 A.D.2d 264, 555 N.Y.S.2d 720, 724 (1st Dep't 1990). [12] Ed Steinberg testified that he thought Ryan was "totally out of her mind-smashed," Steinberg 32. He was not, however, acquainted with Ryan. Steinberg 23. In addition, Steinberg does not say that he spoke to plaintiff: "I wasn't fascinated with either of these Kimberlys. The one I knew or the one I didn't know." Id. at 26. Nor does he describe the basis for his belief that Ryan may have been drunk.

120 U.S. 782 (1887) EX PARTE HARDING. Supreme Court of United States. Submitted March 16, 1887. Decided March 21, 1887. ORIGINAL. *783 MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This motion is denied. This court has no jurisdiction for the discharge on habeas corpus of a person imprisoned under the sentence of a territorial court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no *784 authority to hold him under the sentence. Ex parte Wilson, 114 U.S. 417, 420, and the cases there cited. The fact that a law of the territory allowed an alien who had declared his intention to become a citizen of the United States to sit on a grand jury, and that an alien did in fact sit on the jury that found the indictment against this petitioner, did not deprive the court of its jurisdiction for his trial under the indictment. The objection, if it be one, goes only to the regularity of the proceedings, not to the jurisdiction of the court. The same is true of the allegation in the petition that the petitioner was denied his right to have compulsory process for obtaining witnesses in his favor. For such errors or irregularities, if they exist, a judgment is not void, and a writ of habeas corpus gives this court no authority for their correction. Motion denied.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1006-14T2 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. V.S., Defendant-Appellant, and J.R., Defendant. _____________________________ IN THE MATTER OF M.M-C. and J.M-R., Minors. _____________________________ Submitted October 4, 2017 — Decided November 3, 2017 Before Judges Koblitz, Manahan and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-0152-13. Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs).  Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Andrea M. Barilli, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM V.S.,1 appeals from a January 29, 2014 determination after a fact-finding hearing that V.S. abused or neglected her young daughters M.M-C. (Maureen), born in 2012 and J.M-R (Julie), born in 2013. She also appeals from a December 8, 2015 order denying her Rule 4:50-1 motion for relief from judgment. Although insufficient admissible evidence of harm to Julie was presented at the fact-finding hearing, we affirm based on the evidence of neglect of Maureen. V.S. has an extensive medical history, suffering from gallstones, polycystic ovary syndrome, scoliosis and sciatica. She also had gastric bypass surgery in 2010. While V.S. was pregnant with Maureen, she was hit in the hand and neck by a drive- by shooter. Her best friend was also shot as well as her best- friend's sixteen-year-old son, who died. V.S. was prescribed various medications due to her medical conditions, which included 1 Pursuant to Rule 1:38-3(d)(12), we use initials and fictitious names to protect the privacy of the family. 2 A-1006-14T2 post-traumatic stress disorder (PTSD) caused by the shooting. She also used drugs at times without a prescription. Unrelated to the shooting, Maureen's birth was thirty-three weeks premature. She has global developmental delays and chronic respiratory problems, requiring her to be on oxygen at all times, suctioned regularly to prevent suffocation by aspiration, and to be on a gastrostomy tube. Prior to Division involvement, Maureen was receiving physical therapy services twice a week and special- education therapy once a week. V.S. became skilled at caring for Maureen and engaged in drug treatment voluntarily. On June 6, 2013, V.S. left fifteen-month-old Maureen in the care of an untrained former heroin addict who did not attend to the baby's medical needs. Maureen was taken to the local hospital where she was admitted to the intensive care unit. Maureen was transferred three weeks later to Children's Hospital of Philadelphia, where she remained until September 10, 2013, more than three months after her initial hospitalization. She was then transferred to another children's hospital in New Brunswick. Her stay in the hospital may have been prolonged by V.S.'s refusal to grant permission for a tracheotomy, even after being offered a consultation from a second doctor. In September 2013, V.S. gave birth to Julie, who did not initially show withdrawal signs, although V.S. tested positive for 3 A-1006-14T2 benzodiazepines at the birth. V.S. had not been prescribed the drug after becoming pregnant, and was told that the drug would negatively affect the fetus. As a result of V.S.'s positive test, Julie's urine and meconium, or first stool, were tested and the hospital performed a Finnegan2 scoring every four hours. Julie's urine screen came back negative, but her meconium screen was positive for morphine and oxymorphone. Julie's Finnegan scores varied widely over the next several days. Initially, Julie scored a two. Julie had Finnegan scores of four, then eight, then four on three occasions. She showed signs of withdrawal such as trembling and sneezing. Then, a few days later, she scored a nine twice in a row. Later that day she scored seven, six, five, and twelve. During this twenty-four-hour period, Julie had ten stools, a high number. Julie, however, was never put on morphine treatment for withdrawal. Julie's Finnegan scores lessened and she was medically cleared for discharge ten days after her birth. A defense expert testified that Julie's records presented a confusing picture, and although the fetus was undoubtedly exposed to drugs prenatally, the baby was not at "substantial" risk of harm at birth due to her mother's drug usage. 2 The Division's doctor testified that a Finnegan Neonatal Abstinence Score is an assessment tool to determine whether a child is suffering from drug withdrawal. 4 A-1006-14T2  The Family Part judge made extensive credibility and factual findings. She noted that even the defense expert opined that Julie suffered from a mild case of neonatal abstinence syndrome. The judge found by a preponderance of the evidence that V.S. abused or neglected Julie by taking drugs leading to the infant's distress at birth. The judge also found that V.S. neglected Maureen by taking illegal drugs while caring for a seriously ill baby and leaving Maureen in the care of an admitted former drug addict who had no knowledge of how to care for the medically fragile child. After the fact-finding hearing, a Division-selected doctor evaluated V.S. psychiatrically. The doctor recommended that V.S.'s parental rights not be terminated, and opined that V.S. was properly prescribed benzodiazepine for severe PTSD and should not lose her children based on her mental health needs. As a result of this evaluation, V.S. moved to supplement the record before us, or for a remand for reconsideration under Rule 4:50-1. We granted such a remand. Upon reconsideration, the judge found that the new evaluation did not qualify as newly discovered evidence and, even if considered, did not affect her findings. Abuse or neglect proceedings are brought pursuant to Title 9, N.J.S.A. 9:6-8.21 to -8.73. "The main goal of Title 9 is to protect children 'from acts or conditions which threaten their welfare.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 176 (1999) 5 A-1006-14T2 (quoting State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). The statute sets forth seven definitions of the term "abused or neglected child." N.J.S.A. 9:6-8.21(c). Relevant to this case, N.J.S.A. 9:6-8.21(c)(4)(b) states: "Abused or neglected child" means . . . a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court (Emphasis added). "The phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S., supra, 157 N.J. at 178. "[A] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. "Whether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in 6 A-1006-14T2 light of the dangers and risks associated with the situation." Id. at 181-82. The State has the burden of proof of demonstrating "by a preponderance of the competent, material and relevant evidence the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008) (quoting N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005)). We accord particular deference "to fact findings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). A trial court "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). V.S. disputes the judge's determination that the Division proved Julie was put at substantial risk by V.S.'s drug ingestion. V.S.'s expert opined that the infant was not put at substantial risk in spite of the positive meconium and erratic Finnegan scores. See N.J. Dept. of Youth & Family Serv. v. A.L., 213 N.J. 1 (2013) 7 A-1006-14T2 (holding that a finding of abuse or neglect is not sustained even if the mother tested positive for drugs upon admission to the hospital and the newborn's meconium tested positive for drugs, absent a showing of actual harm, imminent danger, or a substantial risk of harm to the infant). The doctor who testified for the Division had not prepared an expert report, although a report was required prior to expert testimony pursuant to the court's case management order. The court thus allowed the doctor to testify only as a fact witness. The doctor's testimony did not arise from her first-hand knowledge of Julie's treatment. She was not the hands-on supervisor of the treating doctors with regard to Julie, in that she disagreed on the stand with their treatment decisions, about which she was unaware at the time of treatment. She stated, "If I were there or I was called, I would have started this child on morphine . . . . My colleagues did not do that, but I would have done that." Thus, this doctor was not sufficiently involved in the treatment of V.S. or Julie to testify as a fact witness. See Carchidi v. Iavicoli, 412 N.J. Super. 374, 383 (App. Div. 2010) (finding that doctors could not proffer their testimony as fact witnesses who did not consult with or examine a patient "for the purpose of treatment or diagnosis preliminary to treatment"). 8 A-1006-14T2  If we disregard the testimony of the Division's doctor as improperly admitted into evidence, the proof that Julie was put at substantial risk of harm was weak. Thus, we cannot affirm the finding of neglect with regard to Julie. The judge's findings regarding Maureen are not affected by V.S.'s post-trial psychiatric evaluation. "Title 9's main focus is not the 'culpability of parental conduct' but rather 'the protection of children.'" N.J. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting G.S., supra, 157 N.J. at 177). "[T]he definition of child abuse and neglect contained in the civil provision 'describe[s] only the kind of "harm" to the child and not the mental state of the accused required to establish an offense.'" G.S., supra, 157 N.J. at 176 (quoting Demarest, supra, 252 N.J. Super. at 331.)). V.S.'s psychiatric evaluation criticized the Division for its lack of understanding of the severity of V.S.'s PTSD. Leaving a young medically fragile baby alone with an untrained supervisor for an extended period of time, resulting in an extended hospitalization, represents substantial evidence to support a finding of neglect. We therefor affirm the fact-finding insofar as the judge found that V.S. neglected her daughter Maureen. Such a finding results in serious consequences. A.L., supra, 213 N.J. at 25-26. One of the consequences is a listing in the Child Abuse 9 A-1006-14T2 Registry (Registry). N.J.S.A. 9:6-8.11. "The records may be disclosed to physicians, courts, child welfare agencies, and certain employers. N.J.S.A. 9:6-8.10a(b)(1)-(23))." E.D.-O., supra, 223 N.J. at 170, n.2. We affirm the finding of abuse or neglect, although we affirm only with regard to Maureen. We also affirm the denial of reconsideration. If V.S.'s Registry information is no longer accurate based on our affirmance as to Maureen only, we direct the Division to make the necessary correction. Affirmed. 10 A-1006-14T2 

J-S37008-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WESLEY RASHAWN RICHARDS Appellant No. 488 WDA 2015 Appeal from the Judgment of Sentence February 11, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000567-2014 BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J. MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 28, 2016 Appellant, Wesley Rashawn Richards, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following his bench trial convictions for third-degree murder, persons not to possess firearms, and firearms not to be carried without a license.1 We affirm. The trial court opinion set forth the relevant facts of this case as follows: This matter arises out of the shooting death of the [V]ictim…on October 18, 2013 in a bar on the North Side of Pittsburgh. The Commonwealth presented the testimony of two eyewitnesses to the shooting and video surveillance which also showed the shooting. The eyewitnesses testified that in the early morning hours [Victim], [Appellant] and [Appellant’s] companion entered ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6106(a)(1), respectively. J-S37008-16 the bar and were searched by a security guard at the door. When [Victim] entered the bar the first time, the security worker, Brian Collins, searched him and found a pocket knife which he removed and placed behind the bar. Later, [Vicitm] left the bar and the knife was returned to him. Shortly thereafter, [Victim] returned and was searched again but the knife was not found. [Appellant] and his companion, Walter Banks, were also searched each time they entered or returned to the bar but [the guard] found no weapons. [Mr.] Collins knew [Appellant] for several years and also knew [Victim] from the neighborhood. At some point [Mr.] Collins became aware of something happening towards the back of the bar and as he went towards that area he saw [Victim] falling to the ground and then saw [Appellant] come around the corner with a gun in his hand. [Mr.] Collins grabbed [Appellant] and pinned him against the bar but was then hit in the head with a bottle by [Mr.] Banks. Stunned by the blow to the head, [Mr.] Collins let go of [Appellant] and when he looked again he saw [Appellant] standing over [Victim] shooting at him three times as he lay on the ground. [Mr.] Collins then followed [Appellant] and [Mr.] Banks towards the back as they left but then returned to [Victim]. [Mr.] Collins found [Victim] still alive and saw a closed pocket knife on the ground next to him.1 1 The autopsy showed [Victim] died of gunshot wounds to the trunk. The first entered in the central upper back and the second in the lateral left buttock. The Commonwealth also called the disc jockey who was working at the bar that night, Sylvanius Flowers, who also testified that he observed [Victim], [Appellant] and [Mr.] Banks standing near the bar together and they appeared to be laughing and joking. He then saw [Appellant] backing up toward the stairs and pull a gun out. He testified: I’m standing there talking to a young lady. [Victim] is standing there with the other guy, his arm around [Victim’s] neck. And me and the young lady was talking on my right side. And I happen to look over -2- J-S37008-16 and I see [Appellant] reach down beside his knees and pull out a gun. [Mr.] Flowers also testified: He pulls the gun up. He fires a shot. [Victim] duck[s] and take[s] the other guy’s arm off [from around his neck] and he tries to run. [Then] after that he falls down. I don’t know if he was hit or not but he falls down. Then [Appellant] comes up from around the back, steps back some, and starts running back, and goes and shoots him three times in the back. [Mr.] Flowers testified that he never saw a knife in [Victim’s] hand and never saw him threaten [Appellant] with a knife. He also testified that he saw the security guard, [Mr.] Collins, grab [Appellant] and wrestle with him for the gun before [Mr.] Collins was hit in the head with a bottle. The bartender, Tylonda Northington, also testified that she heard shots and ducked behind the bar and then saw [Mr.] Collins struggling with [Appellant] and [Appellant’s] hand come over the bar with a gun in it. The Commonwealth also introduced video surveillance taken from several cameras in the bar that showed [Victim], [Appellant] and [Mr.] Banks inside the bar before and during the shooting and confirmed the testimony of the eyewitnesses. The Commonwealth also introduced the certification that [Appellant] was not licensed to carry a firearm and it was stipulated that [Appellant] had a felony conviction that rendered him a person not to possess. (Trial Court Opinion, filed July 20, 2015, at 2-4) (internal citations omitted). Procedurally, the court convicted Appellant on November 3, 2014, of third- degree murder, persons not to possess firearms, and firearms not to be carried without a license. The court sentenced Appellant on February 11, 2015, to an aggregate term of twenty to forty years’ imprisonment. Appellant timely filed post-sentence motions on February 19, 2015, which -3- J-S37008-16 the court denied on February 23, 2015. Appellant timely filed a notice of appeal on March 25, 2015. On April 1, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following the grant of an extension, Appellant timely complied. Appellant raises one issue for our review: WERE APPELLANT’S STATE AND FEDERAL DUE PROCESS RIGHTS (AS GUARANTEED HIM BY PA. CONST. ART. I § 9 AND U.S. CONST. AMEND. XIV) VIOLATED WHEN HE WAS CONVICTED OF THE CRIME OF THIRD DEGREE MURDER— RATHER THAN, AS HE SHOULD HAVE BEEN, OF VOLUNTARY MANSLAUGHTER UNDER EITHER 18 PA.C.S. § 2503—BASED ON INSUFFICIENT EVIDENCE (THE COMMONWEALTH HAVING FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT APPELLANT’S ACT OF KILLING THE DECEDENT…[WAS] NOT AN ACT THAT UNDER THE CIRCUMSTANCES OF THIS CASE CONSTITUTED EITHER IMPERFECT SELF-DEFENSE VOLUNTARY MANSLAUGHTER OR HEAT-OF-PASSION VOLUNTARY MANSLAUGHTER)? (Appellant’s Brief at 3). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Randal B. Todd, we conclude Appellant’s issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion at 4-7) (finding: Victim did not exchange words with Appellant, threaten Appellant, or make gestures or actions directed to Appellant which could reasonably be construed as serious provocation; no evidence suggested Victim threatened Appellant with knife Victim had in his -4- J-S37008-16 possession or attempted to stab or injure Appellant; rather, eyewitness testimony and surveillance camera footage show Appellant acted with malice as he stood over Victim and repeatedly fired shots at him while Victim was lying on ground; record belies Appellant’s assertion that he acted in sudden and intense passion resulting from serious provocation by Victim; Commonwealth presented sufficient evidence to sustain Appellant’s conviction for third-degree murder).2 Accordingly, we affirm on the basis of the trial court’s opinion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/28/2016 ____________________________________________ 2 Appellant also claims the evidence at trial supported a voluntary manslaughter conviction based on an “imperfect self-defense” theory. See 18 Pa.C.S.A. § 2503(b) (explaining any person who intentionally or knowingly kills individual commits voluntary manslaughter if at time of killing he believes circumstances to be such that, if they existed, would justify killing, but his belief is unreasonable). Nevertheless, Appellant relied solely on the heat-of-passion voluntary manslaughter theory at trial, so this claim is waived. See Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa.Super. 1987), appeal denied, 517 Pa. 621, 538 A.2d 875 (1987) (stating: “This Court cannot review a case upon a theory different from that relied upon in the trial court, or raised for the first time on appeal”). -5-  Circulated 06/03/2016 12:24 PM IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION vs. CC NO: 201400567 WESLEY RICHARDS, APPEAL Defendant. OPINION JUDGE RANDAL B. TODD COPIES SENT TO: ~ ,.1 Counsel of Record for the \J!) C:..:! -r Commonwealth of Pennsylvania c:: -.. ('\ M ._, :z: () C' >-· t-- LLJ (.() ·4- r:.. ...... ::::, Stephen A. Zappala, Jr. 0 ~ '- 0 District Attorney UJ c< C)<...) ::;) _.I >·· 0 o ~f-.z ....J N uzui By ,_I \..1-:;;; :c LL ::, -, 0 :::= 0 . n:: ll.l - t.n c:t ~ I- t.) -' e; uJ 0 -' <C Michael Streily, Esquire Assistant District Attorney 401 Courthouse Pittsburgh, PA 15219 Counsel for Defendant: Scott B. Rudolf, Esquire Appellate Counsel Law Offices of the Public Defender 400 County Office Building Pittsburgh, PA 15219  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF ) CRIMINAL DIVISION PENNSYLVANIA, ) ) CC NO: 201400567 vs. ) ) WESLEY RICHARDS, ) ) Defendant. ) July 20, 2015 TODD,J. OPINION This is an appeal by Defendant, Wesley Richards, following a non-jury trial in which he was found guilty of Murder of the Third Degree in violation of 18 Pa.C.S.A. § 2502(c); Possession of Firearm Prohibited in violation of 18 Pa.C.S.A.§ 6105(a)(l); and, Firearms Not To Be Carried W/0 License in violation of 18 Pa.C.S.A.§ 6106(a)(l). Defendant was sentenced to 20 to 40 years incarceration for murder and concurrent sentences of 5 to 10 and 3 to 6 years on the remaining counts.. Defendant filed Post Sentence Motions which were denied on February 23, 2015. On March 25, 2015 Defendant filed a Notice of Appeal. On April 1, 2015 a 1925(b) Order for Concise Statement of Matters Complained of on Appeal was filed. On April 28, 2015 Defendant filed his Concise Statement setting forth the following: 1. Appellant's state and federal due process rights, guaranteed to him by Pa. Const. art. I§ 9 and U.S. Const. amend. XIV, were violated when he was convicted of 18 Pa.C.S. § 2502(c) Third Degree Murder (CC2014-00567, Count I) notwithstanding the Commonwealth's failure to prove, beyond a reasonable doubt, that Appellant's fatal shooting of the Decedent, Donald Lowry, was not an act of qualifying as 18 Pa.C.S. § 2503(a) Voluntary Manslaughter. 1  2. Appellant's state and federal due process rights, guaranteed to him by Pa. Const. art. I§ 9 and U.S. Const. amend. XIV, were violated when he was convicted of 18 Pa.C.S. § 6106 Unlawful Possession of an Unlicensed Concealed Firearm (CC 2014-00567, Count III) notwithstanding the Commonwealth's failure beyond a reasonable doubt, that the firearm that Appellant possessed on October 18, 2013 had been concealed by him on his person. BACKGROUND This matter arises out of the shooting death of the victim, Donald Lowry, on October 18, 2013 in a bar on the North Side of Pittsburgh. (T., p. 11) The Commonwealth presented the testimony of two eyewitness to the shooting and video surveillance which also showed the shooting. The eyewitnesses testified that in the early morning hours Lowry, Defendant and his companion entered the bar and were searched by a security guard at the door. When Lowry entered the bar the first time, the security worker, Brian Collins, searched him and found a pocket knife which he removed and placed behind the bar. (T., p. 37) Later, Lowry left the bar and the knife was returned to him. Shortly thereafter, Lowry returned and was searched again but the knife was not found. (T., p. 38) Defendant and his companion, Walter Banks, were also searched each time they entered or returned to the bar but found no weapons. (T., p. 40) Collins knew Defendant for several years and also knew Lowry from the neighborhood. At some point Collins became aware of something happening towards the back of the bar and as he went towards that area he saw Lowry falling to the ground and then saw Defendant come around the comer with a gun in his hand. (T., p. 42) Collins grabbed Defendant and pinned him against the bar but was then hit in the head with a bottle by Banks. (T., p. 43) Stunned by the blow to the head, Collins let go of Defendant and when he looked again he saw Defendant standing over Lowry shooting at him three times as he lay on the ground. (T., pp. 43- 44) Collins then followed Defendant and Banks towards the back as they left but then returned 2 to Lowry. Collins found Lowry still alive and saw a closed pocket knife on the ground next to 1 him. (T., p. 45) The Commonwealth also called the disc jockey who was working at the bar that night, Sylvanius Flowers, who also testified that he observed Lowry, Defendant and Banks standing near the bar together and they appeared to be laughing and joking. (T., p. 84) He then saw Defendant backing up toward the stairs and pull a gun out. He testified: I'm standing there talking to a young lady. Donald (Lowery) is standing there with the other guy, his arm around Donald's neck. And me and the young lady was talking on my right side. And I happen to look over and I see Mr. Wes (Defendant) reach down beside his knees and pull out a gun. (T., p. 85) Flowers also testified: He pulls the gun up. He fires a shot. Donald duck and take the other guy's arm off and he tries to run. The after that he falls down. I don't know if he was hit or not but he falls down. Then Mr. Wes comes up from around the.back, steps back some, and starts running back, and goes and shoots him three times in the back. (T., p. 86) Flowers testified that he never saw a knife in Lowry's hand and never saw him threaten Defendant with a knife. (T., p. 86) He also testified that he saw the security guard, Collins, grab Defendant and wrestle with him for the gun before Collins was hit in the head with a bottle. (T., p. 87) The bartender, Tylonda Northington, also testified that she heard shots and ducked behind the bar and then saw Collins struggling with Defendant and Defendant's hand come over the bar with a gun in it. (T., p. 95). The Commonwealth also introduced video surveillance taken from several cameras in the bar that showed Lowry, Defendant and Banks inside the bar before and during the shooting and 1 The autopsy showed Lowery died of gunshot wounds to the trunk. The first entered in the central upper back and the second in the lateral left buttock. (T., p. 59) 3 confirmed the testimony of the eyewitnesses. The Commonwealth also introduced the certification that Defendant was not licensed to carry a firearm and it was stipulated that Defendant had a felony conviction that rendered him a person not to possess. (T., p. 60) Considering all of the testimony, Defendant was found guilty of third degree murder. DISCUSSION: Defendant first argues that the Commonwealth failed to prove beyond a reasonable doubt that Defendant's fatal shooting of the victim was not voluntary manslaughter. Voluntary manslaughter is defined in pertinent part as follows: a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the individual killed; 18 Pa.C.S.A. § 2503 Murder, including murder in the third degree, is defined as follows: a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. (b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony. (c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree. 18 Pa. C.S.A. § 2502 Third-degree murder is defined in the Crimes Code as "All other kinds of murder" other than first-degree murder or second-degree murder. 18 Pa.C.S.A. § 2502(c). The elements of the third- degree murder, as developed by case law, are a killing done with legal malice but without the specific intent to kill required in first-degree murder. Commonwealth v. Pitts, 404 A.2d 1305 (1979). In Commonwealth v. Seibert, 622 A.2d 361 (Pa. Super. 1993) the Superior Court stated the following in discussing the elements necessary to prove third degree murder: 4  In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946), the Pennsylvania Supreme Court clarified the concept of malice: "When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty" which proved that there was at that time in him "the state or frame of mind termed malice." Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum, supra) In Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981), the Pennsylvania Supreme Court noted that malice may be found where the "actor consciously disregard[s] an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Id. at 228, 431 A.2d at 232. See Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973) (malice imports the absence of justification, excuse or mitigation and intent to cause a particular harm or the wanton and willful doing of an act with knowledge of circumstances indicating awareness of a plain and strong likelihood that harm will result); see also Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979) (malice may be found where the perpetrator "consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm."); Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982) Commonwealth v. Seibert, 622 A.2d 361, 364-65 (1993) As verdict winner, the Commonwealth is entitled to have the evidence viewed in the light most favorable to it. Commonwealth v. Cropper, 345 A.2d 645, 646 (1975) In addition, when reviewing a sufficiency of the evidence claim the evidence must be viewed in the light most favorable to the Commonwealth, as verdict winner, to determine if there is sufficient evidence to enable a fact-finder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. McNair, 603 A.2d 1014 (1992). It is exclusively within the province of the fact-finder to believe none, some or all of the evidence presented. Commonwealth v. Henry, 569 A.2d 929, 939 (1990); Commonwealth v. Jackson, 485 A.2d 1102 (1984). If the fact finder reasonably could have determined from the evidence presented that all of the necessary elements of the crime were established, then that evidence will be deemed sufficient to support the verdict. Commonwealth v. Wood, 637 A.2d 1335, 1343 (1994) Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super. Ct. 2000) 5 when he stated: "And I happen to look over and I see Mr. Wes (Defendant) reach down beside his knees and pull out a gun." (T., p. 85) This testimony supports the finding that Defendant had the gun concealed on his person and was sufficient to support his conviction for carrying an unlicensed concealed weapon. By the Court: 7 

118 N.W.2d 498 (1962) 174 Neb. 425 Application of BLACK HILLS STAGE LINES, INC., etc. BLACK HILLS STAGE LINES, INC., Norfolk, Nebraska, Appellee, v. GREYHOUND CORPORATION, Omaha, Nebraska et al., Appellants. No. 35250. Supreme Court of Nebraska. December 7, 1962. *499 James E. Ryan, Jack Devoe, Lincoln, J. C. Coupland, Valentine, for appellants. Viren & Emmert, K. Edward Wolcott, Omaha, for appellee. Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ. CARTER, Justice. The Black Hills Stage Lines, Inc., of Norfolk, Nebraska, filed its application with the Nebraska State Railway Commission for a certificate of public convenience and necessity authorizing the transportation of passengers, mail, and express from Omaha to the point where U. S. Highway No. 385 crosses the Nebraska-South Dakota state line, serving all intermediate points as a common carrier. The commission granted the certificate as requested in the application. The granting of the application was protested before the commission by the Greyhound Corporation, Omaha, Nebraska; Fred Larsen, Jr., doing business as Winner Bus Line, Winner, South Dakota; Gale Earl, doing business as Earl Bus Line, Chadron, Nebraska; and United Motor Ways, Inc., Grand Island, Nebraska. Upon the final grant of the certificate to Black Hills Stage Lines, Inc., the four named protestants appealed to this court. The route sought for the operation applied for was from Omaha to the Nebraska-South Dakota state line via Fremont, Norfolk, O'Neill, Valentine, and Chadron. The Greyhound Corporation is authorized to serve a route from Omaha to Norfolk, via Fremont. The Winner Bus Line has authority to serve between Norfolk and O'Neill. Earl Bus Line has authority to serve between Valentine and Chadron. United Motor Ways, Inc., is authorized to serve between O'Neill and Valentine. From the foregoing it will be noted that the route from Omaha to Chadron is served by the four protestants. The evidence shows that there is no through bus from Chadron to Omaha and it is not possible to travel the entire route without numerous interchanges and long delays. The evidence shows that the elapsed time one way between Chadron and Omaha under existing schedules of the four protestants is in excess of 32 hours. Under the proposed schedule of the applicant it would be less than 10½ hours. It is not disputed that additional service is needed in the area west of O'Neill, no other means of transportation by common carrier being available. The record does not disclose a need for additional service east of O'Neill. The evidence shows that an interested group of persons and civic organizations west of Norfolk organized themselves into a voluntary organization known as the Northern Nebraska Transportation Association. A committee of that organization contacted each of the protestants in an attempt to secure through service between Omaha, Nebraska, and Rapid City, South Dakota, by each or by joint operation. Protestants declined to provide such service individually although some appeared willing to furnish such service in conjunction with the others. The committee then contacted the Black Hills Stage Lines, Inc., a new corporation whose officers and stockholders are officers of the Arrow Stage Lines, Inc., a bus transportation company operating in *500 northeast Nebraska and connecting with the routes of three of the protestants. It is the contention of protestants that if the application of Black Hills Stage Lines, Inc., is granted, the route between Omaha and O'Neill should be restricted to protect the service provided in the area by Greyhound Corporation and Winner Bus Line. On the other hand, Black Hills Stage Lines, Inc., asserts that such restricted service between Omaha and O'Neill would make the through service between Omaha, Nebraska, and Rapid City, South Dakota, economically unfeasible, and that it could not and would not establish such through service unless certificates authorizing service to all intermediate points can be obtained from the Nebraska State Railway Commission, the South Dakota Commission, and the Interstate Commerce Commission. The problem presented appears to be one of first impression in this state. The evidence sustains the following findings: There is a public need for through service west of O'Neill. There does not appear to be a public need for additional service between O'Neill and Omaha. The grant of a certificate of public convenience and necessity is not economically feasible without service to intermediate points between Omaha and Rapid City. The institution of the proposed through service will decrease the revenue now being obtained by Greyhound Corporation on its Omaha-Norfolk route, although it will not materially affect the revenue of its overall operations. The grant of the new certificate will reduce the revenue of Winner Bus Line, Earl Bus Line, and United Motor Ways, Inc., with a strong probability that one or more of them might be compelled to cease operations because of depleted revenue. The purpose of the Nebraska Motor Carrier Act is stated in Shanks v. Watson Bros. Van Lines, 173 Neb. 829, 115 N. W.2d 441, as follows: "The purpose of the Nebraska Motor Carrier Act was regulation for the public interest. Its purpose was not to stifle legitimate competition but to foster it. Its purpose was not to create monopolies in the transportation industry, but to eliminate discrimination, undue preferences or advantages, and unfair or destructive competitive practices. Legitimate competition is a normal attribute of our free enterprise system. It must be permitted to exist and the law contemplates that it shall." The protestants rely in part on Furstenberg v. Omaha & C. B. St. Ry. Co., 132 Neb. 562, 272 N.W. 756, and In re Application of Effenberger, 150 Neb. 13, 33 N.W.2d 296. These cases deal with regulated monopolies in cities where competition is wasteful and in all likelihood would result in insufficient and unsatisfactory service and extravagant rates. A transportation company under such a situation is ordinarily granted an exclusive franchise and requires the furnishing of all necessary service, the unprofitable as well as the profitable. A new competition under such a situation will not ordinarily be permitted to compete in the lush areas of a city while the existing transportation system is required to render service in all parts of the city at rates fixed by the railway commission. These cases involve a principle not found in transportation problems in bus and truck operations outside of urban areas because they are not natural monopolies. The cited cases are not applicable to the situation before us for the reasons stated. This court has consistently held: "In determining the issue of public convenience and necessity, controlling questions are whether the operation will serve a useful purpose responsive to a public demand or need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant in a specified manner without endangering or impairing the operations of existing carriers contrary to public interest." Miller v. Consolidated Motor Freight, Inc., 168 Neb. 712, 97 N.W.2d 265. See, also, Houk v. Peake, 162 Neb. 717, 77 N.W.2d 310; Basin Truck Co. v. R. B. "Dick" Wilson, *501 Inc., 166 Neb. 665, 90 N.W.2d 268. The record discloses that the operation applied for will serve a useful purpose that is responsive to a public demand and need. It shows also that the service will not be adequately performed by existing carriers in the area. The question remaining for determination under the foregoing rule is whether or not the service to be performed by the applicant will endanger or impair the operations of existing carriers contrary to the public interest. We shall address ourselves to this question. It must be conceded at the outset that the operations of the protestants will be impaired and endangered by the granting of the application of the Black Hills Stage Lines, Inc. It must also be conceded that the failure of the commission to grant the application will deprive the area of northern Nebraska west of O'Neill of transportation service which is badly needed and for which there appears to be great demand. In other words, which is entitled to the greater consideration by the commission,—the furnishing of the badly needed service to this large area west of O'Neill and the 19 towns along the proposed route in the area, or the rights of certificate holders in the area east of O'Neill who cannot or will not provide the service but whose authorized routes will be impaired or endangered by the grant of a new application. It is contemplated by the Nebraska Motor Carrier Act that the railway commission shall, among other things, regulate transportation by motor carriers in intrastate commerce upon the highways of Nebraska in such manner as to develop and preserve a highway transportation system properly adapted to the needs of the commerce of Nebraska. Section 75-222, R.R.S.1943. See, also, Ferguson Trucking Co., Inc. v. Rogers Truck Line, 164 Neb. 85, 81 N.W. 2d 915; Abler Transfer, Inc. v. Lyon, 161 Neb. 378, 73 N.W.2d 667. We point out that the grant of a certificate of public convenience and necessity does not create a vested right which for all time circumscribes the public interest. It never was intended that the granting of certificates for local bus service on fragmentary sections of a needed through service should operate as a permanent bar to the providing of such needed service to other sections of the state. The statute contemplates that the railway commission shall weigh the need for the new service and the detriment accruing to existing carriers, and determine which is the more consistent with the public interest. Where there is evidence to sustain conflicting factors advanced by the parties, which are required to be considered by section 75-222, R.R.S.1943, the determination of the issue is peculiarly one for the railway commission and not the courts. In a case similar on its facts the Interstate Commerce Commission stated: "The issues for consideration include whether applicant should be granted authority to transport passengers over the entire route unrestricted, solely over that portion of the proposed route between Antlers and Wister, or over the entire route if restricted against service at intermediate points located between Wister and Fort Smith. If limited to the former, those elderly people and others needing service to Fort Smith for medical attention would be forced to interchange with protestant at Wister. The evidence clearly establishes a need for a direct service to Fort Smith, leaving for consideration the question whether a grant of the entire route subject to the closed-door restriction between Wister and Fort Smith would be practicable and feasible. Applicant takes the position that it would not be. A closed-door passenger operation is difficult for waiting passengers to understand and may at times result in wasteful transportation. In the absence of special circumstances not here present, we are reluctant to impose such a restriction. Based on the evidence of record, it is doubtful that a partial grant, or a grant restricted in the manner sought by protestant, would enable applicant to provide a practicable and profitable operation, and we conclude that the *502 benefits which would be denied to the general public would far outweigh any detriment occurring to protestant." Jordan Bus Co. Extension—Fort Smith, Ark., 74 M.C.C. 611. We think the reasoning of the foregoing decision supports and justifies the grant of a new certificate to the applicant in the instant case. The order of the railway commission granting the new certificate to Black Hills Stage Lines, Inc., was within the jurisdiction of the commission to make, and under the evidence it was not arbitrary or unreasonable. For the reasons stated, the order of the railway commission granting the application of Black Hills Stage Lines, Inc., for a new certificate of public convenience and necessity for the route between the described terminal points is affirmed. Affirmed.

Filed Washington State Court of Appeals Division Two February 7, 2017 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 47573-1-II Respondent, v. UNPUBLISHED OPINION RONALD GLENN DAUGHERTY, Appellant. MAXA, A.C.J. – Ronald Daugherty appeals his convictions for three counts of second degree child rape relating to the sexual abuse of his step-granddaughter, HH. We hold that the trial court did not abuse its discretion in (1) admitting testimony by Daugherty’s now-adult daughter, AF, that Daugherty had sexually abused her when she was a child as evidence of a common plan or scheme under ER 404(b) because it was sufficiently similar to HH’s alleged abuse, (2) denying a mistrial after AF made a reference to Daugherty being in prison because the reference did not connect his being in prison with sexual abuse, and (3) admitting expert testimony on delayed disclosure by child sexual abuse victims because it was helpful to the jury. We also hold that claims Daugherty asserted in a statement of additional grounds (SAG) lack merit. Accordingly, we affirm Daugherty’s convictions of three counts of second degree child rape. No. 47573-1-II FACTS Sexual Abuse In August 2012, when HH was 12 years old, she and her family moved to Washington to live with Daugherty (her stepfather’s father) and his wife. About a week after the family moved, Daugherty was beating HH at a game of blackjack when he suggested that, instead of paying him money, she “fool[] around” with him. Report of Proceedings (RP) at 466. HH and Daugherty went to the staircase, where he kissed her and felt her breasts with his hands. Over the next year, Daugherty continued to abuse HH. HH would occasionally help Daugherty in his workshop. On multiple occasions, Daugherty had HH perform oral sex on him. During one instance, Daugherty used a digital camera to videotape the acts and engaged in anal intercourse with HH. HH testified that she felt violated and knew the abuse was wrong, but decided not to tell anyone. She was scared, and she thought that saying something would hurt her family. Daugherty told HH that if she said anything, her family would split apart and would not talk to each other. HH also testified that she felt blackmailed. Daugherty had found “inappropriate messages” HH had exchanged with boys. RP at 487. He told HH that he would not tell her parents, but that she had to keep “fooling around” with him. Daugherty also let her use his tablet to send text messages. The abuse continued after HH and her family moved into their own home nearby. Daugherty would call or message HH, requesting that she visit him. HH testified that Daugherty touched her breasts and vagina, once at his house, and once at the house of Daugherty’s friend. Daugherty showed HH a pornographic video on his laptop, so that she could “do it right.” RP at 2 No. 47573-1-II 536. In the final instance of abuse, Daugherty had HH go upstairs to his bedroom where she performed oral sex on Daugherty before he engaged in anal intercourse with her. On Christmas day of 2013, HH told her uncle what had happened between her and Daugherty. HH had only seen her uncle a few times before that day, but she testified that she felt comfortable confiding in him. HH’s uncle and stepfather confronted Daugherty and later the police were called. Daugherty was charged with four counts of second degree child rape. Prior Abuse of AF The State sought to introduce testimony from AF, who is HH’s step-aunt and Daugherty’s daughter. AF had been abused by Daugherty when she was a child, resulting in Daugherty’s convictions for first degree child molestation. The State sought to admit AF’s testimony as evidence of a common scheme or plan carried out by Daugherty. In a pretrial hearing, AF testified that she lived with her mother until she was four years old, when AF and her brother (HH’s stepfather) started living with Daugherty. AF remembered Daugherty abusing her twice in the next two years. The first time came when Daugherty caught AF with cigarette butts. While they were alone in Daugherty’s truck, he pulled over and started touching AF’s vaginal area over her clothes. The second came when Daugherty found AF playing in the attic in violation of house rules. AF testified that he either pulled her pants down or asked her to pull them down and again touched her vaginal area. AF and her brother moved to California for about two years before moving back in with their father. Daugherty resumed abusing AF. He again would touch her vaginal area, both above and underneath her clothing. Daugherty also occasionally asked AF to sleep in his bed, 3 No. 47573-1-II where he would rub AF with his hands and penetrate her with his fingers. At one point, Daugherty showed AF a pornographic magazine. AF testified that over time the abuse got worse. When she was 10 or 11, Daugherty would “use [AF’s] legs to have sex,” going back and forth between her legs while they were both unclothed, touching his penis to her vagina but not penetrating. RP at 50. When AF asked Daugherty to stop, he responded that if she said anything he would go to prison, it would “tear the family apart,” and he might die there. RP at 42. Over Daugherty’s objection the trial court determined that AF’s testimony should be admitted to the jury. The trial court found AF to be “extremely credible,” Clerk’s Papers (CP) at 120, and found a “significant number of common factors” between AF’s abuse and HH’s abuse, even though there were differences. CP at 121. AF’s Trial Testimony The trial court ruled that the parties could not elicit testimony about Daugherty’s prior conviction. The court and the prosecutor instructed each witness on this issue. To AF, the trial court stated: We’re not going to mention that your dad was convicted. We’re not going to mention that he went to prison. . . . That kind of thing is off limits because we’re trying not to let the jury know under any circumstances that he was, in fact, convicted or that he went to prison. RP at 1665-66. On cross examination, Daugherty was asking AF about her contact with her brother and his family when she stated that Daugherty had been in prison: Q. Prior to [your brother and his family] moving to Washington, were you aware that they were contemplating moving in with your father and [his wife]? A. Yes. Q. And how did you become aware of that? 4 No. 47573-1-II A. [My brother] had come to visit Washington, and my – I believe my dad was still in prison, but was – sorry. RP at 1710-11. Daugherty immediately objected and moved for a mistrial. The trial court denied the motion. When the jury returned, the trial court had the court reporter re-read the questions posed to AF. The trial court then instructed the jury that “[t]he response was nonresponsive. There was an objection to the response. I granted that objection. . . . [Y]ou’re to disregard any answer entirely.” RP at 1725. Expert Testimony on Delayed Disclosure The State also moved to admit expert testimony of a forensic interviewer, Patricia Mahaulu-Stephens, who had interviewed HH. The State wanted Mahaulu-Stephens to testify about the fact that child sex abuse victims often delay reporting their abuse. Over Daugherty’s objection, the trial court ruled that the testimony was admissible, reasoning that the testimony would help the jury weigh HH’s credibility. At trial, Mahaulu-Stephens explained that disclosures are not a one-time event, but rather are processes that can take weeks and sometimes years to relay all the details. She explained that a victim’s relationship with the abuser, fear of impacting that relationship, and the victim’s sense of responsibility and shame can delay disclosure. She also noted that for adolescents it is common to disclose information to someone the victim does not know as well – “somebody that might not have a judgment or there might not be a consequence.” RP at 1194. Daugherty’s Testimony Daugherty testified in his defense, saying that HH had lied about the abuse. He stated that when he confronted HH about her inappropriate text messages she responded angrily, telling 5 No. 47573-1-II him that he could not tell her what to do. He testified that HH said that she was aware of AF’s prior accusations about him and told him that all she had to say was that he touched her and he would be in trouble. Daugherty said that he told his wife, son, and HH’s mother about the threats, as well as a friend of his at church. Conviction The jury convicted Daugherty of three of the four counts of second degree child rape. Daugherty appeals his convictions. ANALYSIS A. ADMISSION OF ER 404(b) TESTIMONY Daugherty argues that the trial court erred in admitting AF’s testimony that Daugherty sexually abused her when she was a child as evidence of a common scheme or plan under ER 404(b). We disagree. 1. ER 404(b) Framework Under ER 404(b), “[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.” However, this evidence may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). Before a trial court admits evidence under ER 404(b), it must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for admitting the evidence, (3) determine the relevance of the evidence to prove an element of the crime, and (4) weigh the probative value of the evidence against its prejudicial effect. State v. Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090 (2014). The proponent of the evidence has the burden demonstrating 6 No. 47573-1-II that the evidence has a proper purpose. State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). And if the trial court admits the evidence, it must give upon request an appropriate limiting instruction to the jury. Id. We review the decision to admit evidence under ER 404(b) for abuse of discretion. Gunderson, 181 Wn.2d at 922. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Id. 2. Common Scheme or Plan One accepted “other purpose” under ER 404(b) is to show the existence of a common scheme or plan, including when the defendant “ ‘devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.’ ” Gresham, 173 Wn.3d at 421-22 (quoting State v. Lough, 125 Wn.2d 847, 855, 889 P.2d 487 (1995)). Similarity of results is not sufficient. Gresham, 173 Wn.2d at 422. The prior misconduct and the charged crime must demonstrate a sufficient number of “markedly and substantially similar” common features so that the similarities can naturally be explained as individual manifestations of a general plan. Id. But the method of committing the crime need not be unique or novel. Id. Under the third element of the ER 404(b) analysis, the prior misconduct must be relevant to prove an element of the charged crime. One such element is whether a criminal act occurred. For the prior misconduct testimony to be admissible to show a common scheme or plan, it therefore must be sufficiently similar to the charged crime to be probative of whether the alleged act occurred. See State v. DeVincentis, 150 Wn.2d 11, 20, 74 P.3d 119 (2003) (“When the existence of the criminal act is at issue, evidence of substantially similar features between a prior act and the disputed act is relevant.”). “[E]vidence that a charged crime was carried out in a 7 No. 47573-1-II manner devised by the defendant and used by him more than once has a distinct and additional probative value [other than showing propensity] that justifies its admission.” State v. Slocum, 183 Wn. App. 438, 456, 333 P.3d 541 (2014). Washington courts have held in several cases that testimonial evidence of prior child sexual abuse committed by a defendant that is similar to the charged sexual abuse is admissible for the purpose of showing a common scheme or plan. E.g., Gresham, 173 Wn.2d at 422-23; DeVincentis, 150 Wn.2d at 22-24; State v. Kennealy, 151 Wn. App. 861, 887-89, 214 P.3d 200 (2009); State v. Sexsmith, 138 Wn. App. 497, 505, 157 P.3d 901 (2007); State v. Krause, 82 Wn. App. 688, 697, 919 P.2d 123 (1996)). But to be admissible to show a common scheme or plan, evidence of prior child sexual abuse must show more than a general “plan” to molest children. Slocum, 183 Wn. App. at 453. 3. Analysis Daugherty argues that (1) AF’s description of her sexual abuse and the sexual abuse alleged by HH were not similar enough to constitute a common scheme or plan and therefore was not relevant, and (2) AF’s testimony was more prejudicial than probative. We disagree with both arguments. a. Similarity of Allegations Here, Daugherty’s sexual abuse of AF and alleged sexual abuse of HH had several similarities: (1) both AF and HH were close family members who Daugherty started abusing soon after they moved into his house, (2) Daugherty was an authority figure to both AF and HH and abused his position of trust, (3) Daugherty requested sexual favors as a way that AF and HH could avoid consequences for misbehavior, (4) Daugherty abused AF and HH in isolated 8 No. 47573-1-II locations where he was alone with them, (5) Daugherty reduced both AF’s and HH’s inhibitions by showing them pornography and gradually increasing the seriousness of his sexual acts, and (6) Daugherty manipulated both AF and HH by saying that the family would break up if they disclosed the abuse. As the trial court noted, there also were differences between AF’s and HH’s situation. However, an exact fit between the prior acts and the charged crime is not necessary. This court’s decision in Kennealy is instructive. In that case, the defendant was charged with abusing three children unrelated to him – one boy and two girls between ages five and seven – by touching their genitals both over and under their clothing. 151 Wn. App. at 868-74. This abuse largely took place in the defendant’s apartment, where the defendant enticed the children with gifts, often a popsicle. Id. The State sought to admit testimony from several of the defendant’s relatives who he fondled – four girls between ages seven and eleven. Id. at 875-76. Even though the defendant never offered the witnesses gifts and the abuse occurred at a variety of locations, admission of their testimony was not an abuse of discretion. Id. at 888. The trial court noted that similarities ran through each of the various instances of abuse: the acts occurred in a place or manner that went unnoticed by others; the acts occurred only after the children knew and trusted the defendant; the victims were all young; and the abuse of the girls occurred multiple times, both outside and under their clothing. Id. at 889. The patterns of abuse in this case are also more similar to each other than in Slocum, where the court held that the admission of certain prior misconduct evidence was improper. 183 Wn. App. at 457. The victim in Slocum had suffered from recurring acts of abuse by her step- 9 No. 47573-1-II grandfather, who would ask her to sit on his lap while he would rub her vagina both over and under her clothing. Id. at 443-44. The defendant had also abused the victim’s mother (his step- daughter) and aunt. Id. at 445. He once touched his daughter’s breasts after taking her shirt and bra off and, on another occasion, reached beneath the aunt’s swimsuit top while applying sunscreen. Id. at 445-46. On a third occasion, the defendant told his daughter to sit on his lap, at which point he reached between her legs and began rubbing her vagina outside her clothes. Id. at 445. The court held that it was an abuse of discretion for the trial court to admit testimony about the first two instances of abuse. Id. at 455-56. Rather than demonstrating a scheme or plan, the evidence suggested that the first two events were “opportunistic.” Id. at 456. Those instances did not indicate anything more than the defendant’s propensity to molest children, which is not the type of evidence allowed under ER 404(b). Id. On the other hand, the court held that the trial court did not abuse its discretion in allowing evidence of the defendant rubbing his daughter’s vagina while she sat on his lap. Id. at 455. That abuse was similar to the victim’s allegations. Id. Daugherty’s abuse of AF and HH demonstrates parallels that were missing in Slocum. Daugherty applied a similar plan of repeatedly abusing both victims over time, increasing the severity of the abuse as it became more normalized. He took advantage of his relationship with both victims, playing on their desire to keep their families intact with threats. And although the abuse took a slightly different form when it began with AF, it reached a similar point when she reached HH’s age. 10 No. 47573-1-II Finally, Daugherty argues that there is no scheme at issue because the similarities the trial court noted were not distinctive or unusual. But case law makes clear that uniqueness is not required. DeVincentis, 150 Wn.2d at 21. The question is whether the acts are similar, so that they could be “ ‘naturally . . . explained as caused by a general plan.’ ” Id. at 19 (quoting Lough, 125 Wn.2d at 860). The abuse of HH and AF, although not unique, was similar enough to show a common scheme. We hold that the trial court did not abuse its discretion in ruling that AF’s testimony was sufficiently similar to HH’s allegations to show a common plan or scheme. b. Balance of Prejudicial Effect and Probative Value Even if the prior misconduct involved a common scheme or plan, the trial court must balance the probative value of the proposed testimony against its potential for undue prejudice to determine its admissibility. Gresham, 173 Wn.2d at 421. The prior misconduct is admissible only if its probative value clearly outweighs its prejudicial effect. Lough, 125 Wn.2d at 862. Evidence of prior sexual misconduct is “likely to be highly prejudicial.” Id.; see also Slocum, 183 Wn. App. at 442 (stating that the potential for prejudice from prior misconduct evidence is at its highest in sexual abuse cases). On the other hand, the probative value of common scheme or plan evidence is especially great in the child abuse context because of the victim’s age and vulnerability, the absence of physical proof of the crime, the degree of public disapproval of the accusation, and a lack of confidence in the jury’s ability to assess a child witness’s credibility. Kennealy, 151 Wn. App. at 890; see also DeVincentis, 150 Wn.2d at 23. In this case, the trial court found AF’s testimony to be highly probative. Although it noted that the testimony had the potential to be extremely prejudicial, the trial court concluded 11 No. 47573-1-II that any potential for unfair prejudice was outweighed by the testimony’s probative value. The trial court also limited the risk of unfair prejudice by instructing the jury immediately before AF testified that the evidence could be used only to determine whether Daugherty had a common plan and not for any other purpose and by providing a similar written instruction. The probative value of AF’s testimony was increased by the lack of physical evidence in this case, which made HH’s credibility a key issue. Daugherty argues that prior misconduct evidence was not necessary because HH was able to testify about the sexual abuse. But HH had a difficult time speaking about the abuse or remembering details of her abuse, which Daugherty repeatedly pointed out and questioned her about. Daugherty also denied basic details of HH’s testimony, further questioning HH’s credibility. AF’s testimony could properly be admitted to address these elements of the State’s case without excessively prejudicing Daugherty. We hold that the trial court did not abuse its discretion in ruling that the probative value of evidence of AF’s abuse outweighed its prejudicial effect. c. Summary We review the trial court’s admission of common scheme or plan evidence for an abuse of discretion. Gunderson, 181 Wn.2d at 922. Here, the trial court carefully analyzed the similarities and differences between AF’s abuse and HH’s allegations of abuse, and concluded that the common factors were more compelling than the subtle differences. Similarly, the trial court weighed the probative value of AF’s testimony against its prejudicial effect and concluded that the evidence was admissible. We hold that the trial court did not abuse its discretion in reaching these conclusions. Accordingly, we hold that the trial court did not err in admitting AF’s testimony about Daugherty’s prior sexual abuse of her. 12 No. 47573-1-II B. DENIAL OF MISTRIAL MOTION Daugherty argues that the trial court abused its discretion by not declaring a mistrial after AF mentioned that her father had been in prison. We disagree. We review a trial court’s denial of a mistrial for abuse of discretion. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). In evaluating a motion for a mistrial, we consider (1) the seriousness of the irregularity, (2) whether the irregularity involved cumulative evidence, and (3) whether the trial court instructed the jury to disregard the evidence. Id. These factors are considered with deference to the trial court because the trial court is in the best position to discern prejudice. State v. Garcia, 177 Wn. App. 769, 776-77, 313 P.3d 422 (2013). A trial court should only grant a mistrial if there is such prejudice that nothing short of a mistrial will ensure a fair trial. Emery, 174 Wn.2d at 765. A trial court’s denial of a mistrial is an abuse of discretion only when no reasonable judge would have reached the same conclusion. Id. Two cases address a mistrial motion based on a witness’s improper reference to the defendant’s prior conviction or prison time. In State v. Escalona, the defendant was charged with assault with a deadly weapon. 49 Wn. App. 251, 252, 742 P.2d 190 (1987). Despite the trial court’s exclusion of any references to the defendant’s prior conviction for the same crime, a witness stated that the defendant “ha[d] a record and had stabbed someone.” Id. at 252-53. The court held that the trial court should have granted a mistrial, noting that the statement was “extremely serious” and “inherently prejudicial.” Id. at 255-56. The court reasoned that the irregularity could not be cured by an instruction, in part because of the “logical relevance” between the witness’s statement and the charged crime. Id. at 256. The court believed that the 13 No. 47573-1-II jury would conclude that the defendant had acted in conformity with the “assaultive character” he had demonstrated in the past. Id. In State v. Condon, a witness in a murder trial twice stated that the defendant had been in jail, despite the trial court’s ruling that such evidence be excluded. 72 Wn. App. 638, 648, 865 P.2d 521 (1993). Despite these references, the court affirmed the trial court’s denial of a mistrial. Id. at 649-50. The court distinguished Escalona, reasoning that the improper statement in that case had indicated that the defendant committed a crime similar to the charged crime. Id. at 649. In contrast, in Condon the reference to the defendant’s time in jail was ambiguous – the witness at one point mentioned that the defendant called her “when he was getting out of jail” and at another implied that she had picked him up from jail. Id. at 648. The court held that these statements “[did] not indicate a propensity to commit murder.” Id. at 649. The court noted that the jury could have concluded that the defendant was in jail for a minor offense and that the fact that the defendant was in jail did not necessarily mean he has was convicted of a crime. Id. Here, AF’s statement did not connect Daugherty’s presence in prison with her allegations or sexual abuse. Unlike in Escalona, AF did not state that Daugherty was in prison because of child sexual abuse. As in Condon, the statement was ambiguous. There was no indication that Daugherty had been convicted of any crime, much less for one related to the current charges. Further, the statement occurred only once. Therefore, the irregularity was not so serious that a mistrial was required. In addition, the trial court instructed the jury that AF’s statement was nonresponsive, that the trial court had granted Daugherty’s objection, and that the answer should be disregarded entirely. Because AF’s statement was ambiguous, this instruction provided a sufficient remedy. 14 No. 47573-1-II We hold that the trial court did not abuse its discretion in denying Daugherty’s motion for a mistrial. C. ADMISSION OF EXPERT TESTIMONY ON DELAYED DISCLOSURE Daugherty argues that the trial court erred in admitting expert testimony regarding child sexual abuse victims’ delay in disclosing their abuse because such testimony was unnecessary and unduly bolstered HH’s credibility. We disagree. ER 702 provides that “[i]f 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 testify thereto in the form of an opinion or otherwise.” Testimony should be admitted under ER 702 when (1) the witness is qualified as an expert, (2) the expert’s opinion is based on a theory generally accepted by the scientific community, and (3) the expert’s testimony is helpful to the trier of fact. State v. Rafay, 168 Wn. App. 734, 784, 285 P.3d 83 (2012). Testimony is helpful when it concerns issues outside common knowledge and is not otherwise misleading. See id. Courts should interpret helpfulness broadly and in favor of admissibility. State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011). We review a trial court’s admission of expert testimony under ER 702 for abuse of discretion. State v. Cheatam, 150 Wn.2d 626, 645, 81 P.3d 830 (2003). In this case, Daugherty contests only whether the expert’s testimony was helpful. He argues that HH’s stated reasons for not disclosing the abuse earlier – that Daugherty knew she was sending inappropriate text messages and that he protected her from her parents’ punishment – were easy for any juror to understand and therefore HH did not require the support of an 15 No. 47573-1-II expert. Daugherty argues that under these circumstances, Mahaulu-Stephens essentially was vouching for HH. But in many situations, it might be reasonable to doubt an alleged victim’s delayed report of a crime. Jurors may understand a delay in reporting sexual abuse to indicate the alleged event never happened. State v. Graham, 59 Wn. App. 418, 425, 798 P.2d 314 (1990). For that reason, courts have recognized that expert testimony is “expressly permit[ted]” to rebut an attack on a victim’s credibility. Id.; see also State v. Grant, 83 Wn. App. 98, 109, 920 P.2d 609 (1996) (noting that expert testimony could be used to explain a domestic violence victim’s inconsistent conduct). The trial court in this case recognized that because delayed disclosure is a recognized phenomenon, expert testimony would assist the jury regarding whether HH was credible. Mahaulu-Stephens testified about delayed disclosure generally, informing the jury about the reasons why a child might wait to disclose abuse. She then described her interview with HH. This information allowed the jury to better assess HH’s credibility. We hold that the trial court did not abuse its discretion by allowing expert testimony on delayed disclosure. D. CUMULATIVE ERROR Daugherty argues that even if no single issue amounts to reversible error, taken together they materially affected the trial’s outcome. We disagree. Although it is possible for otherwise harmless errors to cumulate, “[t]he defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary.” State v. Yarbrough, 151 Wn. App. 66, 98, 210 P.3d 1029 (2009). The cumulative error doctrine 16 No. 47573-1-II “does not apply where the errors are few and have little or no effect on the outcome of the trial.” State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Daugherty has not demonstrated that the errors he alleges so impacted his trial that there is reason to doubt its result. The only error Daugherty properly identified – AF’s statement about his being in prison – was adequately addressed by a curative instruction. We reject Daugherty’s cumulative error claim. E. SAG CLAIMS 1. Exclusion of Sexually Explicit Text Messages Daugherty asserts that the trial court erred by not admitting evidence of sexually explicit text messages allegedly sent by HH because they refuted the notion that HH learned the explicit terms from Daugherty. We disagree because the text messages were not authenticated. In a pretrial hearing, the State sought to exclude a printout of text messages from an account used by HH, arguing that they were written by a friend using HH’s device. The trial court ruled these messages to be inadmissible because they lacked foundation showing HH authored them.1 But the trial court allowed the parties to ask about HH’s familiarity with certain sexually explicit terms. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” ER 901(a). To meet this requirement, the proponent “must make a 1 The trial court also excluded the text messages because (1) they were offered to show HH’s sexual promiscuity, a purpose barred by the rape shield statute, RCW 9A.44.020; and (2) their prejudicial effect outweighed their probative value. Because we affirm the trial court’s exclusion of the evidence on authentication grounds, we do not address these rulings. 17 No. 47573-1-II prima facie showing consisting of proof that is sufficient ‘to permit a reasonable juror to find in favor of authenticity or identification.’ ” State v. Bashaw, 169 Wn.2d 133, 140-41, 234 P.3d 195 (2010) (quoting State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003)). We review a trial court’s admission of evidence for abuse of discretion. State v. Young, 192 Wn. App. 850, 854, 369 P.3d 205, review denied, 185 Wn.2d 1042 (2016). When admitting text messages as substantive evidence, courts have found certain authenticating criteria helpful. These criteria include: (1) an admission of ownership by the sender, (2) any identifying information in the message, (3) an indication of the sender’s identity by the contents of the message, and (4) any other identification of the sender based on the context in which the message was sent (e.g., timing).2 In re Det. of H.N., 188 Wn. App. 744, 758, 355 P.3d 294 (2015), review denied, 185 Wn.2d 1005 (2016); see also Young, 192 Wn. App. at 855-58 (identifying and applying similar factors). Here, the first three H.N. criteria did not help determine who sent the text messages. HH did not admit that she sent the text messages. She testified that her friend sent them using HH’s device when HH visited Ohio in June 2013. There was no identifying information in the messages and the contents did not reveal the sender’s identity. Regarding the fourth criterion, the parties disputed when the text messages were sent. HH claimed that the text messages were sent when she visited her friend in Ohio. Daugherty claimed that he found the messages before HH visited Ohio. Daugherty testified that when he 2 In addition, ER 901(b)(10) provides three categories of evidence to be considered for the authentication of emails, which the court in H.N. applied to text messages by analogy. 188 Wn. App. at 759. The third category, which identifies as relevant to authentication “the appearance, contents, substance, internal patterns, or other distinctive characteristics of the e-mail, taken in conjunction with the circumstances,” is similar to H.N. criteria (2), (3), and (4). ER 901(b)(10). 18 No. 47573-1-II saw the messages, he printed them out and showed them to his wife, who confirmed that Daugherty showed her a printout of the messages in March or April 2013. As a result, the only way to determine whether HH sent the message was to weigh the credibility of one party’s statement against the other party’s statement. The trial court did this, concluding that HH’s version of events was more credible. The trial court is in the best position to make this credibility determination. State v. Hawkins, 181 Wn.2d 170, 182, 332 P.3d 408 (2014). We hold that the trial court did not abuse its discretion in ruling that the text messages lacked adequate foundation.3 2. Exclusion of Daugherty’s Prior Consistent Statements Daugherty asserts that the trial court erred when it prevented him from testifying about prior consistent statements he made to others about HH’s threat to say he abused her. We disagree because the trial court did allow Daugherty to testify about those statements. In a pretrial hearing, the trial court confirmed that under ER 801(d)(1) a declarant may testify to prior consistent statements in order to rebut a charge of recent fabrication. The trial court ruled that if Daugherty chose to testify, he would be able to introduce the statements he made to others about HH’s threats. The issue came up again during trial, and the trial court reiterated that Daugherty could testify that he told HH’s mother and father about the threats. Daugherty then testified on direct and cross examination that he told HH’s mother and father about her threat to him. Daugherty does not indicate any other way in which the trial court prevented him from presenting this evidence. 3 Daugherty also argues that the trial court’s ruling deprived him of his constitutional right to present a defense. But a defendant has no right to present inadmissible evidence. State v. Aguirre, 168 Wn.2d 350, 363, 229 P.3d 669 (2010). 19 No. 47573-1-II We hold that the trial court did not prevent Daugherty from testifying about prior consistent statements he made to others. 3. Admission of AF’s New Disclosures Daugherty asserts that the trial court erred by admitting new factual allegations AF made against him for the first time during this case. But there is no authority for the proposition that prior misconduct evidence is admissible only if that evidence had been revealed in prior proceedings. If Daugherty believed that AF was making allegations that she had not previously made, he could have cross-examined her on that issue. We hold that the trial court did not err in admitting AF’s testimony even though it may have contained new disclosures. F. APPELLATE COSTS Daugherty requests that this court refrain from awarding appellate costs if the State seeks them. Under RCW 10.73.160(1), we may order offenders to pay appellate costs. However, we have the discretion to not award costs. RAP 14.2; State v. Sinclair, 192 Wn. App. 380, 389-90, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016). Here, the trial court found that Daugherty was indigent. We presume under RAP 15.2(f) that a defendant remains indigent “throughout the review” unless the trial court finds that his financial condition has improved. Further, Daugherty has been sentenced to life in prison. There is no indication that he will ever be able to pay appellate costs. Therefore, we exercise our discretion to waive appellate costs. CONCLUSION We affirm Daugherty’s convictions of three counts of second degree child rape. 20 No. 47573-1-II A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. MAXA, A.C.J. We concur: WORSWICK, J. SUTTON, J. 21 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THE BURLINGTON INSURANCE No. 15-55702 COMPANY, D.C. No. Plaintiff-Appellee, 2:13-cv-05349-JAK-E v. MEMORANDUM * MINADORA HOLDINGS, LLC; et al., Defendants-Appellants. MARVIN W. DURMENT; et al., No. 15-56657 Plaintiffs-Appellants, D.C. No. 2:14-cv-01231-JAK-E v. THE BURLINGTON INSURANCE COMPANY, a North Carolina corporation, Defendant-Appellee, and ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, a Delaware corporation, Third-party-defendant–Appellee. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Appellee. Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding Argued and Submitted February 10, 2017 Pasadena, California Before: SCHROEDER and MURGUIA, Circuit Judges, and GLEASON,** District Judge. In this insurance dispute, Appellant Marvin Durment, as assignee of the rights of three insured companies, Jarvis Enterprises, Inc. dba Orange Precision Metal Fabrication (Orange Precision), Minadora Holdings, LLC (Minadora), and West Coast Storm, Inc. (West Coast), appeals the district court’s grant of summary judgment to the Appellee insurance companies, Burlington Insurance Company (Burlington) and Endurance American Specialty Insurance Company (Endurance). Burlington had insured Orange Precision and Minadora, and Endurance had insured West Coast. The parties are familiar with the relevant factual background giving rise to the insurance dispute, which we do not recount here in detail. There are two consolidated appeals. The first appeal, Case No. 15-55702, comes before us from judgment below to Burlington on Burlington’s two claims ** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. 2 for declaratory relief, the first involving Burlington’s duty to defend, and the second concerning Burlington’s duty to indemnify. The second appeal, Case No. 15-56657, comes before us from judgment below to Burlington and Endurance against several claims brought by Durment and the three insureds. Durment’s first claim, for reimbursement of a settlement, and second claim, for breach of the implied covenant of good faith and fair dealing, were against Burlington and Endurance. Durment’s third claim, for breach of the implied covenant, fourth claim, for declaratory judgment on Burlington’s duty to defend, and fifth claim, for fraud, were against only Burlington. Durment’s sixth and final claim was against a dismissed defendant, and is not before us. On appeal, Durment argues that the district court erred in its construction and interpretation of the relevant insurance policies and in analyzing settlement- related conduct by Durment, the insured companies, Burlington, and Endurance. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s grant of summary judgment in both cases de novo, see, e.g., Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011), we affirm in part, reverse in part, and remand for further proceedings. 1. The underlying complaint on which we focus our analysis, the First Amended Cross-Complaint (FAXC), alleged a covered injury. The policies cover “advertising injuries,” including injuries “arising out of . . . [t]he use of another’s 3 advertising idea in [the insured’s] advertisement.” The FAXC alleged that Durment shared advertising ideas with the insureds which the insureds then used in their online advertising. Even if the alleged ideas were inadequate to ultimately prevail on any state-law claim, the insurers still had a duty to defend the insureds. See, e.g., Horace Mann Ins. Co. v. Barbara B., 846 P.2d 792, 799 (Cal. 1993). The policy does not limit coverage to claims relating to novel or original advertising ideas. And while it is true that a direct solicitation does not constitute an “advertisement,” see Hameid v. Nat’l Fire Ins. of Hartford, 71 P.3d 761, 766 (Cal. 2003), the FAXC provides no basis for concluding that these ideas were used only in a solicitation and not in an “advertisement.” An insurer has a duty to defend if the complaint alleges facts “that create a potential for indemnity under the policy.” Scottsdale Ins. Co. v. MV Transp., 115 P.3d 460, 466 (Cal. 2005) (citing Montrose Chem. Corp. v. Super. Ct., 861 P.2d 1153, 1159 (Cal. 1993)). Because the allegations created the potential for liability under the “use of another’s advertising ideas” provision, the insurers had a duty to defend unless they could show an exclusion applied to preclude coverage. See Delgado v. Interinsurance Exch. of Auto. Club of S. Cal., 211 P.3d 1083, 1086 (Cal. 2009) (quoting Montrose, 861 P.2d at 1157) (explaining burdens of proof). 2. The prior publication exclusion in the Endurance policy does not preclude coverage. “[A]n allegedly wrongful advertisement published before the 4 coverage period triggers application of the prior publication exclusion.” Street Surfing, LLC v. Great Am. E & S Ins. Co., 776 F.3d 603, 610 (9th Cir. 2014). Once “this threshold showing is made, the exclusion bars coverage of injuries arising out of republication of that advertisement, or any substantially similar advertisement, during the policy period, because such later publications are part of a single, continuing wrong that began before the insurance policy went into effect.” Id. The Endurance policy does not cover injuries arising from advertisements published before the policy went into effect on January 10, 2009. The FAXC alleged that the insureds’ website made certain claims “from January 1, 2009 onward.” But the FAXC did not allege that all of the advertisements containing Durment’s advertising ideas were initiated prior to January 10, 2009. Endurance was not excused of its duty to defend by the prior publication exclusion. 3. The cross-liability exclusion in the Burlington policy precludes coverage only as to Orange Precision, and not as to Minadora. That exception excludes coverage for claims by a present, past, or future employee of “any insured.” Orange Precision cannot claim coverage because Durment is a “former employee” under the policy. Burlington therefore had no duty to defend Orange Precision because there was no possibility of coverage. 5  Minadora is also an insured in the Burlington policy. Generally, “in a policy with multiple insureds, exclusions from coverage described with reference to the acts of ‘an’ or ‘any,’ as opposed to ‘the,’ insured are deemed under California law to apply collectively, so that if one insured has committed acts for which coverage is excluded, the exclusion applies to all insured with respect to the same occurrence.” Minkler v. Safeco Ins. Co. of Am., 232 P.3d 612, 614 (Cal. 2010). However, a “‘separate insurance’ clause providing that ‘[t]his insurance applies separately to each insured’” means that each insured “would be treated, for all policy purposes, as if he or she were the sole person covered.” Id. at 617. The Burlington policy contains such a separate insurance clause. Because applying that clause to the cross-liability exclusion in this policy would not “impermissibly . . . negate [the exclusion] completely,” id. at 621 n.5, Minadora’s claim must be analyzed independently from Orange Precision’s. Minadora’s claim for coverage is not excluded by this provision, because Durment was not Minadora’s employee. 4. Both policies contain the same intellectual property exclusion in the main policy document. That exclusion cannot reasonably be read to exclude claims for use of another’s advertising idea; such an interpretation would contradict the reasonable expectations of the insured as it would allow an express grant of coverage for “injury” that arises from “use of another’s advertising idea” to be 6 vitiated by a separate provision that precludes coverage for “injury arising out of . . . other intellectual property rights.” See Haynes v. Farmers Ins. Exch., 89 P.3d 381, 391 (Cal. 2004). 5. The Burlington policy also includes a separate endorsement limiting coverage for claims related to intellectual property rights. But interpreting the exclusion in the endorsement to bar coverage for “use of another’s advertising idea” would make the grant of coverage for use of “another’s advertising ideas” entirely nugatory, creating an inconsistency in the contract. “[I]f there is a conflict in meaning between an endorsement and the body of the policy, the endorsement controls.” Aerojet-Gen. Corp. v. Transp. Indem. Co., 948 P.2d 909, 915 n.4 (Cal. 1997) (quoting Continental Cas. Co. v. Phoenix Constr. Co., 296 P.2d 801, 805 (Cal. 1956)). But such conflict must be inescapable: “Repugnancy in a contract must be reconciled, if possible, by such interpretation as will give some effect to the repugnant clauses,” Cal. Civ. Code § 1652, and construction of an insurance policy must “give effect to every part of the policy with each clause helping to interpret the other.” Palmer v. Truck Ins. Exchange, 988 P.2d 568, 573 (Cal. 1999). Moreover, “policy exclusions are strictly construed.” E.M.M.I. Inc. v. Zurich Am. Ins. Co., 84 P.3d 385, 389 (Cal. 2004). Interpreting the term “any other intellectual property” so as not to include advertising ideas is a permissible reading of the contract that avoids creating an 7 inconsistency. See Cal. Civ. Code § 1652. This exclusion does not preclude coverage. 6. The policies both provide that the breach of contract exclusion does not apply to claims arising from “an implied contract to use another’s advertising idea in your ‘advertisement.’” The FAXC did not include any allegation that Durment had any express contract with any insureds related to the use of his advertising ideas. Although the relationship between Durment and the insureds was based in contract, the allegations of use of another’s advertising idea might have sounded in either tort or in breach of an implied contract not subject to the exception. There was thus a possibility of coverage. 7. The intentional conduct exclusion does not preclude coverage. The policies exclude coverage for acts “caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury.’” A similar exclusion is codified in California law, see Cal. Ins. Code § 533, and they are identical in scope, see Delgado, 211 P.3d at 1090. The FAXC did not preclude the possibility that the insureds’ use of Durment’s advertising ideas was done without knowledge that it would violate his rights. 8. The district court properly granted summary judgment to Burlington on Durment’s third cause of action for breach of the duty of good faith because any 8 breach did not cause economic harm to the insureds due to the terms of the underlying settlement. See Richards v. Sequoia Ins. Co., 124 Cal. Rptr. 3d 637, 642 (Cal. Ct. App. 2011). Durment’s contention that Burlington’s allegedly deficient defense eliminates the requirement that the insured suffer injury is misplaced; that rule applies to a claim for reimbursement, not a claim for breach of the duty of good faith. See Isaacson v. Cal. Ins. Guarantee Ass’n, 750 P.2d 297, 308 (Cal. 1988). 9. Once an insurer has undertaken its duty to defend, the insured cannot settle the case without the consent of the insurer. If the insured settles against the direction of the insurer, that settlement “is insufficient to impose liability on the insurer in a later action against the insurer.” Pruyn v. Agric. Ins. Co., 42 Cal. Rptr. 2d 295, 303 (Cal. Ct. App. 1995) (quoting Wright v. Fireman's Fund Ins. Cos., 14 Cal. Rptr. 2d 588, 604 (Cal. Ct. App. 1992)). But “an insured who is abandoned by its liability insurer is free to make the best settlement possible with the third party claimant, including a stipulated judgment with a covenant not to execute.” Id. So long as the settlement is reasonable and “free from fraud or collusion,” the insurer will have to pay the amount that cannot be attributed to uncovered claims. Id. (citing Samson v. Transamerica Ins. Co. 636 P.2d 32, 44 (Cal. 1981)). 9  Factual disputes preclude summary judgment for Burlington as to its liability for the settlement. A reasonable jury could conclude that Burlington was no longer defending when the counsel it selected withdrew the day before trial. 10. Factual disputes preclude summary judgment for Endurance based on the no-voluntary payments provision in the Endurance Policy. An insurer may not “decline to participate in settlement negotiations, yet then rely on the policy’s consent provision to avoid responsibility under the settlement.” Fuller-Austin Insulation Co. v. Highlands Ins. Co., 38 Cal. Rptr. 3d 716, 737 (Cal. Ct. App. 2006). A reasonable jury could conclude that Endurance had reasonable notice of the impending settlement and thus that Endurance could “either assume the defense and settle or try the matter, or challenge the settlement on the grounds of unreasonableness, fraud or collusion.” Id. at 738 (citing Diamond Heights Homeowners Ass’n v. Nat’l Am. Ins. Co., 277 Cal. Rptr. 906, 917 (Cal. Ct. App. 1991)). Endurance did not assume West Coast’s defense. Summary judgment to Endurance is not warranted on these grounds. 11. In sum, on de novo review we hold that Endurance had a duty to defend West Coast. We hold that Burlington did not have a duty to defend Orange Precision, but that it did have a duty to defend Minadora. 10  Therefore, in Case No. 15-55702,1 we affirm in part the grant of summary judgment to Burlington on its two declaratory claims, as to coverage of Orange Precision; and we reverse in part the grant of summary judgment to Burlington on its two declaratory claims, as to coverage of Minadora. In Case No. 15-56657, we affirm the grant of summary judgment to Burlington on Durment’s third and fifth claims; we affirm in part the grant of summary judgment to Burlington on Durment’s first, second, and fourth claims, as to coverage of Orange Precision; and we reverse in part the grant of summary judgment to Burlington on Durment’s first, second, and fourth claims, as to coverage of Minadora,2 and the grant of summary judgment to Endurance on Durment’s first and second claims, as to coverage of West Coast. We remand both appeals for further consolidated proceedings, consistent with this decision. 1 Again, in the first appeal, Case No. 15-55702, Burlington brought two claims for declaratory relief, the first involving Burlington’s duty to defend, and the second concerning Burlington’s duty to indemnify. In the second appeal, Case No. 15-56657, Durment brought five claims: his first claim, for reimbursement of a settlement, and his second claim, for breach of the implied covenant of good faith and fair dealing, were against Burlington and Endurance; Durment’s third claim, for breach of the implied covenant, his fourth claim, for declaratory judgment on Burlington’s duty to defend, and his fifth claim, for fraud, were against only Burlington. 2 Appellant appealed the judgment to Burlington as to the fourth cause of action, for declaratory judgment, but the parties did not discuss that cause of action in their briefing. Although the panel reverses in part as to that cause of action with respect to Minadora, it does not intend to restrict the district court’s discretion on remand to again decline to grant the requested relief. 11 AFFIRMED in part, REVERSED in part, and REMANDED. 12 

285 So.2d 614 (1973) Anthony ESPERTI, Petitioner, v. STATE of Florida, Respondent. No. 43896. Supreme Court of Florida. October 23, 1973. Rehearing Denied December 12, 1973. Certiorari denied. 276 So.2d 58. CARLTON, C.J., and ROBERTS, ERVIN, ADKINS and DEKLE, JJ., concur.

497 S.W.2d 47 (1973) James W. GALLMAN, Appellant, v. Charles N. CARNES et al., and Arkansas Gazette Company, a corporation, Appellees. No. 73-28. Supreme Court of Arkansas. July 16, 1973. *48 Watson & Carter, Little Rock, for appellant. Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, Putman, Davis & Bassett, Fayetteville, and Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellees. HOLT, Justice. This is an appeal from a summary judgment rendered against appellant who brought suit against the individual appellees and the appellee, Arkansas Gazette, for libel. In March, 1972, the Gazette came into possession of certain documents allegedly prepared or caused to be prepared by the six individual appellees who were tenured members of the faculty of the School of Law of the University of Arkansas at Fayetteville. Appellant was a member of the same faculty and, also, assistant dean. Soon after the Gazette received the documents, using them as a basis, it published a news article which allegedly fashioned a direct attack on appellant's qualifications as a professor and scholar of law. The article, also, stressed "strong student dissatisfaction with his lack of teaching competence." Appellant brought this action in Pulaski County against the individual appellees, all residents of Washington County, seeking $100,000 in actual and $100,000 in punitive damages; and against the individual appellees and the Arkansas Gazette, a Pulaski County newspaper, jointly and severally, seeking actual damages of $1,000,000 and punitive damages in the amount of $1,000,000. Appellant alleged that the individual appellees published or caused to be published to certain individuals a libelous, malicious and false written statement regarding his qualifications as a teacher and scholar; that said publication was false and defamatory and made maliciously and with knowledge of its falsity resulting in great injury to his professional reputation and activities. Appellant, also, alleged that the Arkansas Gazette published in its newspaper a false and defamatory statement which was made maliciously and with knowledge of its falsity and with reckless disregard for the truth; that the Gazette failed to investigate the truth of the facts published as to appellant; failed to make any reasonable inquiry and was grossly negligent in such failure to inquire into the truth of the facts so published concerning appellant; that a proper or reasonable inquiry would have disclosed the falsity of the publication; that the article was printed, published and distributed by the Gazette with such *49 reckless disregard and carelessness regarding the truth or falsity as to indicate an utter disregard of appellant's rights and the consequences, thereby maliciously, negligently and inexcusably causing appellant substantial and great injury and damage to him as an individual and his professional reputation and activities; that the individual appellees directly caused the publication in the Gazette and indirectly by their indiscriminate publication of their libelous, malicious and false written statement. The individual appellees responded by a motion to quash service asserting they were not proper joint defendants and, therefore, the service upon them was invalid since proper venue of the asserted action would be in the county of their individual residences where the only service of process was had upon them. The Gazette answered admitting it had come into possession of a copy of two reports authored by members of the University of Arkansas Law School Committee on Faculty Tenure and Promotion; that the two reports concerned a matter of public and general interest which is the School of Law at the University of Arkansas, a tax supported institution; that the reports made references to certain public officials which included appellant, a faculty member. The Gazette admitted publishing the news story but asserted that the story contained a fair and accurate abridgement of the contents of the Law School Committee reports which were directly quoted and that the publication was privileged. It, also, responded that it was not chargeable with actual malice and that an award for damages would violate its rights under the First and Fourteenth Amendments to the Constitution of the United States. Subsequently, the Gazette moved for a summary judgment. The motion was submitted upon the pleadings, affidavits and depositions of witnesses and the arguments of counsel. The trial court found, after viewing the evidence most favorably to appellant, and with all doubts and inferences being resolved against the Gazette, that there was no genuine issue of material fact in the case. Accordingly, the motion was granted. Also, the individual appellees' motion to quash service of summons upon them was then granted inasmuch as they are residents of Washington County and, therefore, Pulaski County is an improper venue for trial of the issues existing between the remaining parties. For reversal, appellant contends that since a summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law and the court erred because such a fact issue existed. Of course, "it is familiar law that such a judgment is an extreme remedy, that the burden is upon the moving party to show that there is no genuine issue of fact, and that the evidence submitted upon the motion must be viewed most favorably to the party resisting motion." Quillen, Admn'x v. Twin City Bank, 253 Ark. —, 485 S.W.2d 181 (1972). In the case at bar, however, we are of the view that the Gazette met its burden of showing the absence of a genuine issue of fact. In New York Times v. Sullivan, 376 U. S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the extent of freedom of expression concerning subjects of public interest, as guaranteed by our Federal First Amendment,was considered. The rule was established which "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Further, in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the reckless aspect of actual malice was amplified. "[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion *50 that the defendant in fact entertained serious doubts as to the truth of his publication. * * * Failure to investigate does not in itself establish bad faith." And more recently, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), extended the "constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." Also, "a libel action * * * relating to * * * involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not." In Sanders v. Harris, 213 Va. 369, 192 S.E.2d 754 (1972), the Virginia Supreme Court, citing Times and Rosenbloom, upheld a summary judgment in recognizing that a faculty dispute at a state college constituted a subject of public and general concern. The Missouri Supreme Court has held that a faculty dispute as to a professor's qualifications was a proper subject "for public comment, and as such was privileged." Clark v. McBaine, 299 Mo. 77, 252 S.W. 428 (1923). In the case at bar, we have no hesitancy in holding that appellant, as assistant dean and professor in our University Law School, is a "public official" under the New York Times, supra, standard and subsequent federal decisions. Furthermore, we must hold that communications relating to appellant's qualifications as a scholar and professor of law involve "matters of public or general concern" to which the First Amendment constitutional protection of freedom of the press was extended in Rosenbloom v. Metromedia, supra. Thus, the ultimate question before us on this appeal is whether there is a genuine issue as to any material fact regarding actual malice (i. e. actual knowledge that the documents were false or a reckless disregard as to whether they were true or false) by the Gazette in publishing the allegedly defamatory news article. In our view, there was not. Leroy Donald, Jr., state editor of the Gazette, came into possession of the documents that were used as a basis for the allegedly defamatory news article. In his deposition he admitted that he made no attempt to personally determine whether any of the documents were true or false. He was aware that the documents were "emotionally tinged" and that the persons involved "were at each other's throats, tooth and toenail," including accusations that certain individuals involved were untruthful. Further, that the Faculty Commission was referred to as a "lynch mob and pack of wolves out to castrate" appellant. Also, he was basically interested only in whether or not the documents were in existence rather than whether they were true or false. However, Donald merely assigned the story to a reporter. He didn't investigate the situation or write the article published by his paper. Also, by affidavit, he swore he had no actual knowledge of any falsity of any portion of the documents. Ginger Shiras, a reporter for the Gazette, received the assignment from Donald and wrote the article. According to her affidavit, she never had any knowledge of the falsity of any statement made in the news article concerning the appellant. It appears that she accurately quoted from the documents. According to her deposition, she was instructed by Donald to determine whether the comments in the documents were true or false. Even though she, also, was aware of the documents being "emotionally tinged" and contained accusations of "lying," her investigation into the matter indicates to us there was no genuine issue as to any material fact with regard to her actual knowledge that the documents were false or a reckless disregard by her for the truth or falsity of the documents. It is appellant's position that the affidavit of the Dean of the Law School reflects the documents were false *51 and acrimonious. However, she talked to the Dean of the Law School on the day she wrote the news article. He had no comment to make about the documents. In her affidavit she stated that he said the matter was under investigation which was welcomed. In her conversation with the President of the University, she was merely informed that he, himself, had been misquoted in the documents. She was unable to reach the Vice-President of the University. Although she attempted several times to contact the appellant and left her telephone number, she was unable to reach him. Also, she had conversations with two of the individual appellees, neither of whom denied the existence or the official nature of the documents. "The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth." Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). There must be a "[showing] of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L. Ed.2d 1094 (1967). In applying these decisions to the case at bar we are of the view, as was the trial court, that the appellant did not present a genuine issue of a material fact according to the present standards required of him in a summary judgment proceeding. In other words it is not demonstrated that the news article was published by the Gazette with actual malice; i. e. with knowledge of falsity or with a reckless disregard of falsity. It appears to us and we hold in the case at bar that Miss Shiras met the required investigatory standards as prescribed by the controlling decisions interpreting the First Amendment as to freedom of press. As previously indicated, even a "[f]ailure to investigate does not in itself establish bad faith." St. Amant v. Thompson, supra. Appellant collaterally argues that, because he was not supplied with the names of the persons who presented the documents to Donald, the summary judgment should be reversed. We cannot agree. No ruling was made by the trial court upon appellant's motion. It was incumbent upon appellant "to call its motion to the court's attention and obtain a ruling thereon. Failure to do so would constitute a waiver so that the motion could not be considered on appeal." Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W.2d 789 (1970). By affirming the trial court's action in sustaining the Gazette's motion for summary judgment it becomes necessary also to affirm the approval of the individual appellees' motion to quash the service of summons upon them inasmuch as they are the only remaining defendants who neither resided in Pulaski County nor were summoned therein. Ark.Stat.Ann. § 27-615 (1962 Repl.); Universal CIT Credit Corp. v. Troutt, Ex'x, 235 Ark. 238, 357 S.W.2d 507 (1962). Affirmed. BYRD, J., not participating.

09-3716-cv In re MetLife Demutualization Litigation 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 August Term, 2009 7 8 (Argued: September 3, 2009 Decided: September 29, 2009) 9 10 Docket No. 09-3716-cv 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 DARREN F. MURRAY, MARY A. DEVITO, KEVIN L. HYMS, HARRY S. 15 PURNELL III, KATHY VANDERVEUR, and MICHAEL A. GIANNATTASIO, 16 17 Plaintiffs-Appellees, 18 19 - v.- 20 21 METROPOLITAN LIFE INSURANCE COMPANY and METLIFE, INC., 22 23 Defendants-Appellants. 24 25 - - - - - - - - - - - - - - - - - - - -x 26 27 Before: JACOBS, Chief Judge, WESLEY and HALL, 28 Circuit Judges. 29 30 Defendants-appellants Metropolitan Life Insurance 31 Company and MetLife, Inc. appeal an order of the United 32 States District Court for the Eastern District of New York 33 (Platt, J.), disqualifying its counsel Debevoise & Plimpton 34 LLP shortly before trial. On September 22, 2009, this Court 35 reversed the disqualification order, with opinion to follow. 36 This is that opinion.  1 TERESA WYNN ROSEBOROUGH, KEVIN 2 S. FINNEGAN, DUNCAN J. LOGAN, 3 Metropolitan Life Insurance 4 Company, New York, New York; 5 MICHAEL B. MUKASEY, MARY JO 6 WHITE, BRUCE E. YANNETT, MARK P. 7 GOODMAN, Debevoise & Plimpton 8 LLP, New York, New York, for 9 Appellants. 10 11 JARED B. STAMELL, Stamell & 12 Schager, LLP, New York, New York 13 (John C. Crow, David K. Bowles, 14 Robert A. Skirnick, and Samantha 15 H. Evans, on the brief), for 16 Appellees. 17 18 DENNIS JACOBS, Chief Judge: 19 20 Plaintiffs in this class action were policyholders of 21 Metropolitan Life Insurance Company when it was a mutual 22 insurance company. They complain that they were misled and 23 shortchanged in the transaction by which the company 24 demutualized in 2000. Nine years after the action was 25 commenced and five weeks before trial was scheduled to 26 begin, plaintiffs moved to disqualify the lead counsel for 27 Metropolitan Life Insurance Company and MetLife, Inc. 28 (“MetLife”), Debevoise & Plimpton LLP (“Debevoise”). The 29 grounds alleged related to that firm’s representation of 30 MetLife in the underlying demutualization. The United 31 States District Court for the Eastern District of New York 32 (Platt, J.) granted the motion to disqualify on September 1; 2 1 the district court then stayed its order and immediately 2 certified the issue to this Court pursuant to 28 U.S.C. 3 § 1292(b). We accepted the certification on September 2, 4 and on September 3 we heard oral argument. After time 5 allotted for additional briefing, a short delay caused by 6 the recusal of two judges, and the observance of national 7 and religious holidays, we reversed the disqualification by 8 order dated September 22, with opinion to follow. This is 9 that opinion. 10 The district court disqualified Debevoise on the ground 11 that its representation of MetLife in the 2000 12 demutualization made it counsel to the policyholders as 13 well. On appeal, plaintiffs urge affirmance on that ground, 14 and also on the independent ground that the witness-advocate 15 rule requires disqualification because four Debevoise 16 lawyers who worked on the demutualization will give 17 testimony adverse to MetLife at trial. 18 We conclude that (i) Debevoise did not have an 19 attorney-client relationship with the policyholders by 20 virtue of its representation of MetLife; and (ii) plaintiffs 21 have failed to establish that the purported violation of the 22 witness-advocate rule in this case would warrant 3 1 disqualification. Accordingly, we reverse. 2 I 3 In 1915, MetLife converted from a stock life insurance 4 company to a mutual insurance company. On April 7, 2000, 5 MetLife completed a months-long process of demutualization 6 back to a stock insurance company. Debevoise served as 7 MetLife’s corporate counsel in that transaction. 8 On April 18, 2000, plaintiffs filed this class action 9 lawsuit in the Eastern District of New York, alleging that 10 MetLife violated federal securities laws by misrepresenting 11 or altogether omitting certain information from the 12 materials provided to its policyholders during the 13 demutualization process. In June 2007, MetLife invoked the 14 attorney-client privilege to prevent plaintiffs’ discovery 15 of particular communications between MetLife and its in- 16 house and outside counsel. The district court denied a 17 protective order on the ground that the plaintiff 18 policyholders were the owners of the mutual company and were 19 therefore clients of Debevoise during the demutualization. 20 Following discovery and the usual preliminaries, the 21 trial was set to begin on September 8, 2009. When last- 22 minute settlement negotiations failed, plaintiffs moved to 4 1 disqualify Debevoise on July 31, 2009--more than nine years 2 after the action was commenced, more than two years after 3 the court ruled that plaintiffs were clients of Debevoise, 4 and five weeks before trial. Plaintiffs argued that 5 disqualification was appropriate for the same reason 6 articulated by the district court to support its 2007 7 discovery ruling: Debevoise had been counsel to plaintiffs 8 in the demutualization and cannot now jump sides to become 9 adverse to plaintiffs at trial. Plaintiffs also argued that 10 disqualification was required by the witness-advocate rule, 11 because four Debevoise lawyers are scheduled to testify 12 about disclosures and documents related to the 13 demutualization. 14 MetLife’s response invoked the doctrine of laches; 15 argued that as a matter of law the policyholders of a mutual 16 insurance company are not a priori the clients of that 17 company’s corporate counsel; denied that the testimony of 18 the Debevoise lawyers would be adverse to MetLife (or even 19 significant); and charged that the motion was made for 20 improper tactical purposes. 21 On September 1, the district court granted plaintiffs’ 22 motion and disqualified Debevoise. The following colloquy 5 1 explains the court’s decision: 2 [MetLife]: . . . [B]ut Debevoise represents in 3 this litigation MetLife Inc. and 4 Metropolitan Life Insurance Company, 5 and not the shareholders of MetLife 6 Inc. 7 8 The Court: I understand that and that’s the 9 result of the demutualization 10 process, and I fully understand 11 that. But the problem is whether 12 your representation of the 13 policyholders which turned into a 14 representation of the corporation is 15 tainted because of a conflict. 16 17 [MetLife]: And your Honor is aware that our 18 position is that Debevoise & 19 Plimpton never represented the 20 policyholders of Metropolitan Life 21 Insurance Company or--either before 22 this litigation began or presently. 23 24 The Court: You did represent the policyholders, 25 because there was--they were the 26 corporation. That’s the problem. 27 The problem was that all of the 28 former or the policyholders were the 29 owners of the corporation. So you 30 represented them and the track if 31 you will because there was no--they 32 were your clients. 33 34 Having granted the motion, the court immediately stayed 35 its order and certified the following question to this 36 Court: “Should Debevoise & Plimpton be disqualified from 37 representing MetLife in this case based on a conflict of 38 interest[?]” We accepted certification and now reverse. 6 1 II 2 Plaintiffs argue that the district court’s 2007 3 discovery ruling (that plaintiffs are clients of Debevoise) 4 is now law of the case, which we lack jurisdiction to 5 review. We conclude, first, that we have jurisdiction to 6 consider the question; and second, that under New York law, 7 the policyholders of a mutual insurance company are not the 8 clients of that company’s outside counsel. New York law is 9 applicable to this case because Metropolitan Life Insurance 10 Company was a mutual life insurance company that was 11 reorganized into a stock insurance company under New York 12 law, with its principal place of business in New York, doing 13 business in all fifty states. 14 Under 28 U.S.C. § 1292(b), a district court can certify 15 a question for interlocutory appeal if the issue “involves a 16 controlling question of law as to which there is substantial 17 ground for difference of opinion and [if] an immediate 18 appeal from the order may materially advance the ultimate 19 termination of the litigation.” In ruling on a certified 20 question of law, “we have the discretion to entertain an 21 appeal of another ruling of the district court if the two 22 rulings were ‘inextricably intertwined’ or if ‘review of the 7 1 [latter] decision was necessary to ensure meaningful review 2 of the former.’” Ross v. Am. Express Co., 547 F.3d 137, 142 3 (2d Cir. 2008) (quoting In re Methyl Tertiary Butyl Ether 4 (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 122 (2d Cir. 5 2007) (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 6 51 (1995))); see also Golino v. New Haven, 950 F.2d 864, 868 7 (2d Cir. 1991) (“[W]here we have jurisdiction to consider 8 some questions on appeal, we may exercise our discretion to 9 take pendent jurisdiction over related questions.”). 10 The district court’s 2007 and 2009 decisions are 11 clearly related. In 2007, the court determined that prior 12 to demutualization, “MetLife’s policyholders were the 13 clients for MetLife’s in-house and outside counsel, because 14 they were MetLife’s beneficiaries and the beneficiaries of 15 MetLife counsel’s advice.” In re MetLife Demutualization 16 Litig., 495 F. Supp. 2d 310, 314 (E.D.N.Y. 2007). The 2009 17 ruling explained similarly that “the problem, and 18 Debevoise’s problem, is they represented the policyholders 19 up until the day on the closing when they walked over across 20 the aisle and started representing the stockholders, if you 21 will, and [ ] the corporation more exactly . . . .” Because 22 these two rulings are “inextricably intertwined,” we have 8 1 jurisdiction to decide whether plaintiffs were, in fact, 2 clients of Debevoise. 3 III 4 We conclude that plaintiffs were not clients of 5 Debevoise. It is well-settled that outside counsel to a 6 corporation represents the corporation, not its shareholders 7 or other constituents. Evans v. Artek Sys. Corp., 715 F.2d 8 788, 792 (2d Cir. 1983) (“A ‘corporate attorney’--whether an 9 in-house lawyer or a law firm that serves as counsel to the 10 company--owes a duty to act in accordance with the interests 11 of the corporate entity itself. [The] client is the 12 corporation.”). This rule is entirely consonant with Rule 13 1.13 of the New York Rules of Professional Conduct, N.Y. R. 14 Prof’l Conduct § 1.13(a) (“[A] lawyer employed or retained 15 by an organization . . . is the lawyer for the organization 16 and not for any of the constituents.”), and with the 17 Restatement (Third) of the Rule Governing Lawyers, § 96 cmt. 18 b (explaining that a lawyer retained by a corporation has an 19 attorney-client relationship with the corporation, but the 20 lawyer “does not thereby also form a client-lawyer 21 relationship with all or any individuals employed by it or 22 who direct its operations or who have an ownership or other 9 1 beneficial interest in it, such as shareholders”). 2 These principles apply as well to a mutual insurance 3 company. Under New York law, “[a] mutual insurance company 4 is a cooperative enterprise in which the policyholders 5 constitute the members for whose benefit the company is 6 organized, maintained and operated.” Fid. & Cas. Co. of 7 N.Y. v. Metro. Life Ins. Co., 248 N.Y.S.2d 559, 565 (N.Y. 8 Sup. Ct. 1963). But a policyholder, “even in a mutual 9 company, [is] in no sense a partner of the corporation which 10 issued the policy, and . . . the relation between the 11 policy-holder and the company [is] one of contract, measured 12 by the terms of the policy.” Uhlman v. N.Y. Life Ins. Co., 13 17 N.E. 363, 365 (N.Y. 1888). 14 The district court’s 2007 decision reasoned that 15 plaintiffs were clients of Debevoise during the 16 demutualization “because they were MetLife’s beneficiaries 17 and the beneficiaries of MetLife counsel’s advice.” In re 18 MetLife Demutualization Litig., 495 F. Supp. 2d 310, 314 (2d 19 Cir. 2007). But this does not distinguish a mutual 20 insurance company from any other corporation. 21 Not every beneficiary of a lawyer’s advice is deemed a 22 client. See N.Y. R. Prof’l Conduct 2.3(a) (“A lawyer may 10 1 provide an evaluation of a matter affecting a client for the 2 use of someone other than the client if the lawyer 3 reasonably believes that making the evaluation is compatible 4 with other aspects of the lawyer’s relationship with the 5 client.”) (emphasis added); see also Fiala v. Metro. Life 6 Ins. Co., 6 A.D.3d 320, 322, 776 N.Y.S.2d 29, 32 (1st Dep’t 7 2004) (“[A]n insurance company does not owe its policyholder 8 a common-law fiduciary duty except when it is called upon to 9 defend its insured.”); N.Y. State Bar Ass’n, Comm. on Prof’l 10 Ethics, Op. No. 477 (1977) (explaining that the lawyer for 11 the executor of an estate need not provide substantive legal 12 advice to potential beneficiaries because doing so would 13 violate the lawyer’s duty to provide undivided loyalty to 14 his client, the executor). 15 In light of these principles, and without any 16 extraordinary circumstances raised by the parties, we 17 conclude that the policyholders in this case were not 18 clients of Debevoise. 19 IV 20 Plaintiffs make the separate argument that 21 disqualification of Debevoise is proper by virtue of the 22 witness-advocate rule set out in Rule 3.7 of the New York 11 1 Rules of Professional Conduct. Subsection (a) of the Rule 2 provides, with certain exceptions, that “[a] lawyer shall 3 not act as an advocate before a tribunal in a matter in 4 which the lawyer is likely to be a witness on a significant 5 issue of fact.” N.Y. R. Prof’l Conduct § 3.7(a). 6 Subsection (b) is broader, as it addresses imputation: “A 7 lawyer may not act as an advocate before a tribunal in a 8 matter if . . . another lawyer in the lawyer’s firm is 9 likely to be called as a witness on a significant issue 10 other than on behalf of the client, and it is apparent that 11 the testimony may be prejudicial to the client.” See N.Y. 12 R. Prof’l Conduct § 3.7(b)(1). 13 Rule 3.7 lends itself to opportunistic abuse. “Because 14 courts must guard against the tactical use of motions to 15 disqualify counsel, they are subject to fairly strict 16 scrutiny, particularly motions” under the witness-advocate 17 rule. Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989). 18 The movant, therefore, “bears the burden of demonstrating 19 specifically how and as to what issues in the case the 20 prejudice may occur and that the likelihood of prejudice 21 occurring [to the witness-advocate’s client] is 22 substantial.” Id. “Prejudice” in this context means 12 1 testimony that is “sufficiently adverse to the factual 2 assertions or account of events offered on behalf of the 3 client, such that the bar or the client might have an 4 interest in the lawyer’s independence in discrediting that 5 testimony.” Id. 6 As this definition suggests, the showing of prejudice 7 is required as means of proving the ultimate reason for 8 disqualification: harm to the integrity of the judicial 9 system. We have identified four risks that Rule 3.7(a) is 10 designed to alleviate: (1) the lawyer might appear to vouch 11 for his own credibility; (2) the lawyer’s testimony might 12 place opposing counsel in a difficult position when she has 13 to cross-examine her lawyer-adversary and attempt to impeach 14 his credibility; (3) some may fear that the testifying 15 attorney is distorting the truth as a result of bias in 16 favor of his client; and (4) when an individual assumes the 17 role of advocate and witness both, the line between argument 18 and evidence may be blurred, and the jury confused. Ramey 19 v. Dist. 141, Int’l Ass’n of Machinists & Aerospace Workers, 20 378 F.3d 269, 282-83 (2d Cir. 2004) (internal citations and 21 alterations omitted). These concerns matter because, if 22 they materialize, they could undermine the integrity of the 13 1 judicial process. See Hempstead Video, Inc. v. Inc. Vill. 2 of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (“The 3 authority of federal courts to disqualify attorneys derives 4 from their inherent power to preserve the integrity of the 5 adversary process.”) (internal quotation marks omitted); see 6 also id. (emphasizing “the need to maintain the highest 7 standards of the profession”) (internal quotation marks 8 omitted). 9 In imputation cases (Rule 3.7(b)), the witness is not 10 acting as trial counsel; these concerns are therefore 11 “absent or, at least, greatly reduced.” Ramey, 378 F.3d at 12 283 (internal quotation marks omitted); see also A.B.A. 13 Model Rules of Prof’l Conduct § 3.7 cmt. 5 (“Because the 14 tribunal is not likely to be misled when a lawyer acts as 15 advocate in a trial in which another lawyer in the lawyer’s 16 firm will testify as a necessary witness, [Model Rule 17 3.7(b)] permits the lawyer to do so except in situations 18 involving a conflict of interest.”). Accordingly, 19 disqualification by imputation should be ordered sparingly, 20 see Kubin v. Miller, 801 F. Supp. 1101, 1114 (S.D.N.Y. 21 1992), and only when the concerns motivating the rule are at 22 their most acute. 14 1 Therefore, we now hold that a law firm can be 2 disqualified by imputation only if the movant proves by 3 clear and convincing evidence that [A] the witness will 4 provide testimony prejudicial to the client, and [B] the 5 integrity of the judicial system will suffer as a result. 6 This new formulation is consistent with our prior efforts to 7 limit the tactical misuse of the witness-advocate rule. 8 See, e.g., Lamborn, 873 F.2d at 531. 9 A 10 In this case, four Debevoise lawyers are likely to be 11 called to testify at trial. Three of them are transactional 12 lawyers who are not and will not be trial advocates; the 13 fourth, a litigator, is a member of the trial team, but will 14 not act as an advocate before the jury. None of these 15 witnesses, then, is properly considered trial counsel for 16 purposes of Rule 3.7(a). See Ramey, 378 F.3d at 283 (“The 17 advocate-witness rule applies, first and foremost, where the 18 attorney representing the client before a jury seeks to 19 serve as a fact witness in that very proceeding.”) (first 20 emphasis added). If the rule applies here at all, 21 therefore, it will be subsection (b) (imputation), and 22 plaintiffs do not contend otherwise. 15 1 B 2 The parties dispute whether the Debevoise lawyer- 3 witnesses will give testimony so prejudicial to MetLife that 4 the integrity of the judicial system may be threatened and 5 disqualification warranted. Our review of the record 6 suggests that the Debevoise witnesses will do little more 7 than authenticate documents and confirm facts that do not 8 appear to be in dispute. For example, plaintiffs state that 9 they intend to use the testimony of Wolcott Dunham, a 10 Debevoise transactional lawyer, to show that MetLife 11 “intentionally or recklessly omitted material facts from the 12 prospectus.” A review of the cited deposition excerpts, 13 however, reveals only that Dunham testified that it was 14 inaccurate to characterize a policyholder’s interest in the 15 company as “ownership.” MetLife argues that this testimony 16 is not adverse to its position in this litigation. 17 Plaintiffs assert that MetLife is wrong, but do not explain 18 why. 19 Plaintiffs contend that they will use the testimony of 20 James Scoville, another Debevoise transactional lawyer, to 21 establish that “MetLife revealed that a significant portion 22 of the value of the Demutualization that it had said was set 16 1 aside for policyholders was in fact earmarked for new 2 stockholders.” A review of the cited deposition testimony, 3 however, shows that Scoville testified only to what various 4 written documents clearly state. It appears that at most 5 Scoville will be asked to authenticate those documents. And 6 the same is true for the remaining witnesses. 7 We doubt that, on this record, the testimony at issue 8 is sufficiently prejudicial to MetLife to warrant 9 disqualification. We recognize, however, that we are not in 10 a good position to answer this question; and there is no 11 finding by the district court on this issue of fact. 12 Even if we assume that some portion of the Debevoise 13 lawyers’ testimony will be adverse to MetLife (when 14 considered in a context that we cannot fully evaluate or 15 appreciate on this interlocutory appeal), plaintiffs have 16 failed to establish the clear and convincing evidence of 17 prejudice necessary to justify the extreme remedy of 18 disqualification by imputation. 19 First (as noted above), the concerns motivating Rule 20 3.7 are attenuated where, as here, the witness-“advocate” is 21 not someone who will be trying the case to the jury. 22 Therefore, plaintiffs seeking disqualification under Rule 17 1 3.7(b) must make a considerably higher showing of prejudice 2 than would be required under Rule 3.7(a). From the outset, 3 then, we are inclined to conclude that disqualification is 4 inappropriate in this case. 5 Second, MetLife’s desire to keep Debevoise as its trial 6 counsel, plainly evidenced by MetLife’s position in this 7 appeal, militates strongly against a finding of prejudice. 8 This appeal has been prosecuted in large part by MetLife’s 9 in-house lawyers, who have argued to this Court that 10 disqualification was improper and that Debevoise should be 11 reinstated, notwithstanding that Debevoise non-advocate 12 lawyers are scheduled to testify as fact witnesses during 13 trial. We are reluctant to conclude that MetLife, a 14 sophisticated client with sophisticated in-house counsel, 15 has a radically defective understanding of the case after 16 nine years of litigation. 17 C 18 Even if plaintiffs could convince us that allowing 19 Debevoise to remain as MetLife’s trial counsel poses some 20 threat to the integrity of the judicial process, we must 21 also consider whether that vital interest may be harmed by 22 disqualification. Parties have a well-recognized and 18 1 entirely reasonable interest in securing counsel of their 2 choice. Prospective jurors, who must leave their homes and 3 occupations to serve, have an interest in judicial 4 efficiency, an interest that we respect. Other litigants, 5 whose pending matters are affected or delayed by 6 developments in other cases, are also harmed by the 7 uncertainties caused by disqualification. And the public in 8 general has an interest in the swift and orderly 9 administration of justice. 10 In this case, disqualification would require MetLife to 11 retain new counsel. Appreciable time and money would be 12 spent to bring new counsel to the state of readiness that 13 Debevoise attained after more than nine years of work. And 14 other circumstances intensify the harm to MetLife: several 15 billions of dollars are at stake, the legal issues are 16 complex, pretrial litigation has been ongoing for more than 17 nine years, and disqualification occurred on the eve of 18 trial. 19 Finally, plaintiffs’ lengthy and unexcused delay in 20 bringing its motion to disqualify weighs against 21 disqualification. When plaintiffs filed this lawsuit in 22 2000, they knew that Debevoise had represented MetLife 19 1 during demutualization and that it would continue to 2 represent MetLife in this litigation. But plaintiffs did 3 not move to disqualify even when, seven years later, the 4 district court ruled that plaintiffs were clients of 5 Debevoise. Instead, plaintiffs waited until after 6 settlement negotiations broke down, five weeks before trial 7 was scheduled to begin, to finally file their motion. 8 Plaintiffs’ delay, which suggests opportunistic and 9 tactical motives, magnify the harms to the judicial system 10 that already inhere in any disqualification by imputation, 11 abuse the expectations of jurors, and has the general 12 tendency to impair rather than promote confidence in the 13 integrity of the judicial system. 14 The foregoing reasons, which weigh against finding an 15 adverse impact on the integrity of the judicial system, 16 reinforce our conclusion that plaintiffs have failed to show 17 by clear and convincing evidence that any of the Debevoise 18 lawyers’ testimony would be so prejudicial to MetLife that 19 the integrity of the judicial system would be threatened. 20 Consequently, the witness-advocate rule does not justify 21 disqualification in this case. 22 20 1 CONCLUSION 2 Based on the foregoing analysis, we reverse the 3 disqualification order and reinstate Debevoise as trial 4 counsel to MetLife in the underlying securities litigation. 21 

243 S.W.3d 843 (2008) In re Paul A. TURNER. No. 11-07-00353-CV. Court of Appeals of Texas, Eastland. January 10, 2008. *844 William H. Oxford, Stephenville, J. Michael Tibbals, Snell Wylie & Tibbals, Dallas, TX, for respondent. William R. Sudela, J. Daniel Long and Emily Chan Nguyen, Crady, Jewett & McCulley, LLP, Houston, TX, for Real Party in Interest Baker Hughes Oilfield Operations d/b/a Hughes Christensen Co. Scott D. Allen and Clay A. Butler, The Allen Firm, P.C., Stephenville, TX, for Real Party in Interest. J.D. Fields & Company & Brett Construction Company, Inc. Dean Elliott, CEO, Addison, TX, for Real Party in Interest Terax. Neil J. Orleans, Goins, Underkofler, Crawford, Langdon, Dallas, TX, for Real Party in Interest Schlumberger Technology Corporation. Robert K. Whitt, Midland, TX, for Real Party in Interest Alliance Drilling Fluids, LLC. K. Ray Campbell, Attorney At Law, Houston, TX, for Real Party in Interest Magnum Oilfield Service, Inc. James A. Collura Jr., Houston, TX, for Real Party in Interest BSI Holdings Mgmt of Red River Well Service Ltd. d/b/a Basisn Tooll. Michael Nicholls Pugh, Coan & Elliott, P.C., Stephenville, TX, for Real Party in Interest Ideal Energy Directional Drilling Services, Inc. Colton P. Johnson, Albany, TX, for Real Party in Interest Digital Mud Logging, LLC. Clifford Littlefield, Upton, Mickits, Hardwick & Heymann, Corpus Christi, TX, for Real Party in Interest Atlas Tubular, Inc. Peter Scaff, Gardere, Wynne, Sewell, LLP, Houston, TX, for Real Party in Interest Pacesetter Energy Field Services, LLC d/b/a Pacesetter Well Service. Bradley A. Waters, Adams and Reese, LLP, Houston, TX, for Real Party in Interest Integrated Production Services, Inc. Jason M. Johnson, Northcutt, Johnson & Parker, P.C., Stephenville, TX, for Real Party in Interest Eddy Lindley. Troy Okruhlik, Harris, Finley & Bogle, Fort Worth, TX, for Real Party in Interest NTEG, LLC, Star & Associates, L.P., RYBO Perforating and Logging, LP and Flo Control, LP. Heath Allen, Stephenville, TX, for Real Party in Interest Jay Mills Contracting, Inc. Robert J. Widmer Jr., Robert J. Widmer, P.C., Denton, TX, for Impact Energy Services, Ltd. Norman L. Burns, Munson & Burns, Gonzales, TX, for Real Party in Interest Harding Pump & Supply, Inc. Randall L. Rouse, Lynch, Chappell & Alsup, P.C., Midland, TX, for Real Party in Interest Well Testing Wireline Service Company, Inc. D. Prichard Bevis and James P. McGowen, McGowen & Shaw, P.L.L.C., Dallas, TX, for Real Party in Interest Caraway Enterprises, LLC. John C. Boucher, Stephenville, TX, for Real Party in Interest Don C. Mitchell, and Lola. Carl Dore Jr., Dore & Associates, Attorneys, P.C., houston, TX, for Real Party in Interest Opti-Flow, LLC and Basic Energy Services, LP. Paul Stipanovic, Gossett, Harrison, Reese, Millican & Stipanovic, P.C., San *845 Angelo, TX, for Real Party in Interest Geosite, Inc. Otis O. Bakke, Attorney At Law, Fort Worth, TX, for Real Party in Interest Centex Pipeline Construction, Inc. Dewey M. Dalton, Jones, Allen & Fuquay, LLP, Dallas, TX, for Real Party in Interest Holdttexas, Ltd., d/b/a Hold Cat, Intervenor. James E. Young, CFA, Stephenville, TX, pro se. Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J. OPINION RICK STRANGE, Justice. Paul A, Turner filed a petition for writ of mandamus complaining of the trial court's order requiring him to travel from his home in Hong Kong, China, to Dallas for a deposition. We conditionally grant the petition in part. Background Facts The underlying dispute involves competing security interests in oil and gas leases. In 2006, Paul A. Turner, Trustee, loaned Terax Energy, Inc. $2,500,000. Terax's debt was secured by a deed of trust, security agreement, assignment of production, and financing statement executed by Erath Energy, Inc. that conveyed a security interest in several oil and gas leases in Erath County. The parties refer to these as the Mitchell Lease. Baker Hughes Oilfield Operations, Inc. d/b/a Hughes Christensen Company also filed a mechanic's lien against this same lease. Baker Hughes filed suit against Terax and Erath Energy and obtained a default judgment that foreclosed its lien. J.D. Fields & Company, Inc. filed a separate suit against Baker Hughes and twenty to thirty ether creditors to stop foreclosure actions on the Mitchell Lease. When Turner subsequently initiated foreclosure proceedings on the Terax note, J.D. Fields added him as a defendant and asked the court to enjoin his foreclosure. Baker Hughes noticed Turner's deposition for Stephenville. Turner filed a motion to quash and for protective order, and the trial court held a hearing. Turner offered evidence that he is not a United States citizen, that he has made occasional business trips to the United States but does not regularly travel to the United States and has never been to Texas, that his last trip to the United States was in 2006, and that this trip was to New York City. Turner asked the court to quash Baker Hughes's notice and order that the deposition be taken by phone or by video. Baker Hughes responded that, because Turner was a party, it had the right under TEX.R. CIV. P. 199.2(b)(2)(C) to take his deposition in Stephenville. The trial court ordered that Turner's deposition be taken in Dallas, but otherwise denied Turner's motion. Standard of Review Mandamus is an extraordinary remedy available "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994). Thus, mandamus will not issue absent "compelling circumstances." Tilton *846 v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Analysis Baker Hughes argues that, because Turner's deposition was scheduled for a location provided for by TEX.R. CIV. P. 199.2(b)(2), the trial court did not abuse its discretion. See First State Bank, Bishop v. Chappell & Handy, P.C., 729 S.W.2d 917, 922 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.) (trial courts have great latitude in selecting the location for a deposition). Rule 199.2(b)(2) provides that a deposition may take place at the following locations: (A) the county of the witness's residence; (B) the county where the witness is employed or regularly transacts business in person; (C) the county of suit, if the witness is a party or a person designated by a party under Rule 199.2(b)(1); (D) the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or (E) subject to the foregoing, at any other convenient place directed by the court in which the cause is pending. Baker Hughes reasons that, because the court was expressly authorized to require Turner to attend a deposition in Erath County and because it was more convenient for Turner to travel to Dallas than Stephenville, no abuse of discretion can be shown. Baker Hughes also argues that the trial court's order is appropriate because it would cost significantly more to require the thirty defendants to travel to Hong Kong than to require Turner to travel to Dallas and because it would be difficult for the defendants' attorneys to obtain Turner's testimony via a telephone deposition. Baker Hughes equates ordering Turner to come to Dallas with ordering him to come to Stephenville. Turner does not attempt to distinguish between the two locations. When a deposition takes place outside one of the counties specifically identified by Rule 199.2(b)(2), it must be at a convenient place. This imposes an additional requirement and may, therefore, alter the analysis. But because it is clearly easier for an international traveler to travel to Dallas than Stephenville, if the trial court was authorized to order Turner to come to Stephenville for a deposition, it did not abuse its discretion by moving the deposition to Dallas. We will, therefore, treat this deposition as if it were taking place in the county of the suit. Baker Hughes invites us to hold that a deposition in any of the locations provided for by Rule 199.2(b)(2) is by definition reasonable and, thus, cannot amount to an abuse of discretion. We agree that the trial court's broad discretion in discovery matters will in most instances afford it the authority to order a party to appear in the county of the suit for an oral deposition. However, when international travel is involved, additional considerations are implicated. In Dresser Industries, Inc. v. Solito, 668 S.W.2d 893, 895 (Tex.App.-Houston [14th Dist.] 1984, no writ); the court noted that the potential for abuse is very great in such cases and held that trial judges "must be especially sensitive to the (1) actual need for the requested depositions and (2) alternative means of taking the depositions." We agree with the Houston Court's analysis. The only justification Baker Hughes offers for deposing Turner is the following statement: "Mr. Turner's deposition is tremendously important in order to gather information regarding the transaction involving *847 Mr. Turner and Terax and to determine the priority of the multiple lien claims in the Lawsuit." Clearly, Baker Hughes is entitled to depose Turner. The question is whether there is an actual need for an oral deposition sufficient to justify requiring Turner to travel internationally. The trial court was cognizant of the travel burden and Turner's limited role in the litigation. It noted that the only issues involving him were whether he had a lien and, if so, the status of that lien. The trial court specifically inquired of counsel why the deposition could not be taken telephonically, Baker Hughes's counsel responded that he had taken telephone depositions before and that they were "just not the same thing." We realize that telephone or video depositions are different from traditional oral depositions and that, when documents are involved, practical problems are presented. But we note that bankruptcy courts in the Western District of Texas routinely conduct trials—many of which involve numerous documents and parties—by video conference. An attorney's preference for an oral deposition is not synonymous with an actual need for one. Cf. Intl Awards, Inc. v. Medina, 900 S.W.2d 934, 936 (Tex.App.-Amarillo 1995, orig. proceeding) (trial court may weigh counsel's preference for a face-to-face deposition against the particular circumstances of the case). Baker Hughes contends before this court that it would be difficult for numerous attorneys representing thirty defendants to obtain Turner's testimony via a telephone. This argument asks us to assume a level of interest for which there is no support in the record. Baker Hughes was the only party seeking Turner's deposition. When the trial court considered Turner's motion to quash, it also considered Turner's motion to dismiss and another defendant's motion to dismiss. Turner's counsel, Baker Hughes's counsel, and J.D. Fields's counsel were the only attorneys present.[1] Only Baker Hughes has responded to Turner's petition for writ of mandamus. The record indicates that this is Baker Hughes's deposition. Even if we disregard the lack of action by any other codefendant, because Turner's involvement in this litigation is limited to the validity and priority of his lien, it is difficult for us to appreciate why each individual codefendant would need to pursue a separate line of inquiry. However, we do agree that the number of parties participating in the deposition is a relevant inquiry. The record indicates that the trial court on its own initiative expressed concern about Turner being subjected to numerous deposition requests and that it concluded that ordering him to come to Dallas would limit his exposure to one deposition. The trial court's initiative is commendable, but because it was requiring Turner to travel from Hong Kong to Dallas, the court was required to consider why alternative means of taking the deposition were inadequate. There is no reason why the trial court would lose control over the number of depositions Turner is required to give merely because they are done by phone or video. The trial court discussed alternative methods of deposing Turner but, after expressing its concern that Turner would be subjected to numerous separate deposition requests, never resolved the question of whether an alternative method was sufficient. Because a party cannot be forced to travel internationally when alternative means of taking the deposition are adequate, the trial court abused its discretion by ordering Turner to appear in Dallas for a deposition. *848 Turner not only asks this court for relief from the order requiring him to come to Dallas but also asks us to direct the trial court to allow him to appear for his deposition telephonically or by video conference. This we cannot do for the record does not conclusively establish that alternative means of taking his deposition are adequate. If not, the trial court has the discretion to order that Turner's deposition take place in Dallas. Holding Turner's petition for writ of mandamus is conditionally granted in part. We are confident that the trial court will set aside its order directing Turner to appear in Dallas for a deposition and address whether alternative means of taking Turner's deposition are adequate. If not, a writ of mandamus will issue. NOTES [1] Robert C. Prather, Sr. was also present, but he appeared as a witness and not an attorney.

125 Wn.2d 345 (1994) 884 P.2d 1326 WHATCOM COUNTY, Appellant, v. STEVE BRISBANE, Respondent. No. 60655-2. The Supreme Court of Washington, En Banc. December 8, 1994. David S. McEachran, Prosecuting Attorney, and Randall J. Watts, Chief Civil Deputy, for appellant. John M. Groen (Ronald A. Zumbrun and Robin L. Rivett, of counsel) of Pacific Legal Foundation, for respondent. Catherine W. Smith on behalf of The Washington Environmental Council, North Cascades Audubon Society, Greater Ecosystem Alliance, Point Roberts Heron Preservation Committee, Watershed Defense Fund, and Friends of Chuckanut, amici curiae for appellant. SMITH, J. This court granted the motion of Respondent Steve Brisbane[1] to transfer from the Court of Appeals, Division One, to the Supreme Court review of a decision by the Whatcom County Superior Court dismissing on summary judgment a challenge by Whatcom County to a referendum petition to amend portions of a critical areas ordinance adopted by the Whatcom County Council pursuant to the Growth Management Act. We reverse. STATEMENT OF FACTS On June 23, 1992, the Whatcom County Council adopted the Temporary Critical Areas Ordinance, ordinance 92-032.[2]*347 Respondent Brisbane (Respondent) conducted a successful referendum campaign to eliminate portions of the ordinance.[3] The referendum was certified by the County Auditor in January 1993 for placement on the November 1993 ballot.[4] On January 12, 1993, Whatcom County (County) filed a declaratory judgment action in the Whatcom County Superior Court asking the court to declare that the critical areas ordinance was not subject to local referendum.[5] On May 14, 1993, the Whatcom County Superior Court, the Honorable Michael F. Moynihan, granted summary judgment in favor of Respondent Brisbane and dismissed the complaint.[6] The trial court held the critical areas ordinance is subject to local referendum.[7] Whatcom County appealed to the Court of Appeals, Division One. On July 16, 1993, Respondent Brisbane moved to transfer the appeal to this court. The County did not oppose the motion. We granted it on April 6, 1994. QUESTION PRESENTED The sole question presented is whether a critical areas ordinance adopted by the Whatcom County Council pursuant to the Growth Management Act is subject to amendment by referendum under the home rule charter of the County. DISCUSSION Growth Management Act The Growth Management Act, RCW 36.70A, was enacted in 1990 to prevent "uncoordinated and unplanned growth" and to encourage "comprehensive land use planning" among the "citizens, communities, local governments, and the private sector ...."[8] Two years later, in 1992, WAC 365-195 was *348 promulgated which, when read in conjunction with the Growth Management Act, similarly operates to "accomplish[] the planning and development regulation requirements of the act."[9] Under former RCW 36.70A.040(1) any county with "a population of fifty thousand or more and has had its population increase by more than ten percent in the previous ten years ... shall adopt comprehensive land use plans and development regulations".[10] The statute further provides that "[a]ny county ... required to adopt a comprehensive land use plan under subsection (1) ... shall adopt the plan on or before September 1, 1993."[11] Whatcom County adopted the Temporary Critical Areas Ordinance[12] on June 23, 1992 to "carry out the goals of the Whatcom County Comprehensive Land Use Plan"[13] mandated by RCW 36.70A.040(1) and (3), .050, .060, .170, and .210. [1] Pursuant to Const. art. 11, § 4 (amend. 21),[14] Whatcom County enacted the most recent version of its home rule *349 charter (Charter) in 1993. Included among the rights of self-governance under the Charter was the right of citizens to reject ordinances passed by the County Council.[15] "[L]ocal governance is generally the province of home rule counties.... However, this principle does not entirely negate the State's ability to successfully challenge home rule county charter rights."[16] This court observed in Snohomish Cy. v. Anderson, supra: The Washington State Constitution expressly relegates home rule charters to an inferior position vis-a-vis "the Constitution and laws of this state". Const. art. 11, § 4, para. 2. The Henry court ... recognized bounds on charter rights, noting that county home rule was intended to further self-governance in "purely local affairs ... so long as [those exercising their rights to self-governance] abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws."[17] Under the Growth Management Act, RCW 36.70A, the Legislature used the words "county" or "city" interchangeably with the words "legislative body" of the county or city.[18] Thus, the power to act under the Growth Management Act was delegated to the "county legislative body". This raises a *350 conflict between the language of the Growth Management Act and the language of the Whatcom County Home Rule Charter (1993). [2] "Referendum rights do not exist when power has been statutorily delegated to the `legislative authority'."[19] "In the context of statutory interpretation, [this court has] previously held that a city's `corporate authority', also referred to as a `legislative authority', means exclusively the mayor and city council. Therefore, a statutory grant of power to a legislative authority does not generally permit delegation to the voters through an initiative or referendum."[20] Our most recent case involving legislative authority and the right of referendum is Snohomish Cy. v. Anderson.[21] In that case, we considered whether a section of the Growth Management Act, RCW 36.70A.210(2), was subject to referendum and whether the mandatory language of the Growth Management Act conflicted with referendum rights under the Snohomish County Home Rule Charter.[22] The Snohomish County Charter has a provision identical to that of the Whatcom County Charter granting referendum rights to the people. In that case, the people of Snohomish County argued that the words "legislative authority" included their right to exercise referendum powers.[23] This court rejected that argument, stating: "[L]egislative authority" cannot be carried out by initiative or referendum. For example, the statute directs the "legislative authority" to convene meetings and establish processes. These *351 responsibilities cannot be performed by the exercise of a "yes/no" vote. Furthermore, the Legislature is presumed to be familiar with judicial decisions of the Supreme Court construing existing statutes and the state constitution. At the time the Legislature enacted RCW 36.70A, case law defined "legislative authority" and comparable terms in statutory contexts to mean the council and/or mayor only, and not to permit referendum rights.[24] (Citation omitted. Italics ours.) [3] The purpose of the Growth Management Act, RCW 36.70A, would be frustrated if the people of Whatcom County were permitted by referendum to amend an ordinance adopted to implement the goals of a comprehensive land use plan. Under Anderson, "[p]ermitting the referendum would jeopardize [the] entire state plan [as intended by the Growth Management Act] and thus would extend beyond a matter of local concern."[25] One consequence of such a broad interpretation of the referendum power includes the potential repeal of ordinances required by the Legislature to be enacted for statewide growth management. Also, it would be difficult to balance the various interests contemplated by the Legislature.[26] [4] Referendum rights are generally matters of local governance and are not mentioned in the Growth Management Act.[27] "Where a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature.... The absence of any mention of referenda indicates the statute's *352 rejection of referendum rights."[28] But the Growth Management Act does provide a process for public participation in growth management legislation at the county or city level. The people of Whatcom County had a participatory opportunity to voice their concerns prior to adoption of the Temporary Critical Areas Ordinance, ordinance 92-032. RCW 36.70A.140 provides: Each county and city that is required or chooses to plan under RCW 36.70A.040 shall establish procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments. Errors in exact compliance with the established procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the procedures is observed. (Italics ours.) Ordinance 92-032 was adopted to satisfy the Whatcom County comprehensive land use plan mandated by the Growth Management Act. The County is correct in its assertion that adoption of the ordinance did not create new policy, but merely pursued a plan already adopted by its legislative body, the County Council. The ordinance is merely execution of a policy already in existence. It specifically provided that it was created to comply with the mandate of the Growth Management Act.[29] Whatcom County Code art. 2, § 2.20 provides in relevant part: The County Council shall exercise its legislative power by adoption and enactment of ordinances or resolutions. It shall have the power: .... *353 (d) To adopt by ordinance comprehensive plans, including improvement plans for the present and future development of the county. (Italics ours.) Under the Whatcom County Code, enactment of ordinances is clearly a legislative act. However, the critical areas ordinance in this case is still not subject to referendum. Art. 2, § 2.30 of the Whatcom County Code provides that "[e]very legislative act shall be by ordinance" and that "[n]o ordinance shall be amended unless the new ordinance sets forth each amended section or subsection at full length". Although legislative acts must be by ordinance, which would normally be subject to referendum, the Temporary Critical Areas Ordinance additionally falls within the public health and safety exception to referendum under article 5, section 5.50 of the Whatcom County Code: The second power reserved by the people is the referendum. It may be ordered on any act, or bill, or ordinance, or any part thereof passed by the County Council except such ordinances as may be necessary for the immediate preservation of the public peace, health or safety or support of the county government and its existing public institutions. (Italics ours.) The Whatcom County Council somewhat routinely declared that "enactment of the Temporary Critical Areas Ordinance w[ould] promote the public health, safety and general welfare."[30] But this nevertheless met the requirements for the exception. In addition, the Critical Areas Ordinance was enacted to satisfy the goals required by the Growth Management Act. The immediacy was established by the September 1, 1993 statutory deadline, which preceded the November 3, 1993 referendum election. [5] Even if the people of Whatcom County did have the power to amend the Critical Areas Ordinance, the amended ordinance would have to be consistent with state law as expressed by the Legislature. This court has determined that the power of referendum is "applicable only where ... *354 [the] procedures do not conflict with the expressed legislative intent."[31] If there are inconsistencies, "the intent of the legislature must govern, and ... conflicting charter provisions must yield to that intent."[32] Planning Enabling Act The Planning Enabling Act, RCW 36.70, was enacted "to provide the authority for, and the procedures to be followed in, guiding and regulating the physical development of a county ... through correlating both public and private projects and coordinating their execution with respect to ... assuring the highest standards of environment for living, ... and conserving the highest degree of public health, safety, morals and welfare."[33] The Act provides for creation of departments, commissions and planning agencies, and further describes the procedural functions of each.[34] The Planning Enabling Act and the Growth Management Act are two related statutes which should be "`... read together to determine legislative purpose to achieve a "harmonious total statutory scheme ... which maintains the integrity of the respective statutes."'"[35] Both statutes can be read consistently and harmoniously to carry out their intended legislative purpose. The Whatcom County Temporary Critical Areas Ordinance, ordinance 92-032, having been enacted pursuant to legislative mandate under the Growth Management Act, RCW 36.70A, is not subject to referendum. *355 SUMMARY AND CONCLUSIONS There is a conflict between the language of the Growth Management Act and provisions of the Whatcom County Home Rule Charter giving the right of referendum to the people of Whatcom County. This court has stated that when there is a conflict between the language of a state statute and the language of a home rule charter, the language of the state statute prevails. The Whatcom County Home Rule Charter may grant the people the right of referendum over ordinances enacted by the County. However, allowing exercise of that right over ordinances enacted pursuant to the Growth Management Act would run counter to and frustrate the declared purposes of the Act to prevent uncoordinated and unplanned growth and to encourage conservation and wise use of land. We reverse the Whatcom County Superior Court which granted summary judgment in favor of Respondent Steve Brisbane upholding a referendum amending portions of Whatcom County Ordinance 92-032, the Temporary Critical Areas Ordinance, enacted by the Whatcom County Council pursuant to the Growth Management Act, RCW 36.70A. ANDERSEN, C.J., and UTTER, BRACHTENBACH, DOLLIVER, DURHAM, GUY, and JOHNSON, JJ., concur. MADSEN, J. (dissenting) I respectfully dissent and would affirm the Superior Court's order dismissing Whatcom County's challenge to the referendum petition filed in this case. The majority makes three main points to support its decision to reverse the Superior Court, all of which are legally unsupportable. The majority claims that the wording of the statutory grant of power regarding temporary critical areas ordinances is of no significance; that "continuous public participation" in growth management decisions does not include referenda; and that the ordinance at issue was emergency legislation immune from revision by referendum. *356 I turn first to the majority's contention that under the Growth Management Act, the Legislature used the words "county" or "city" interchangeably with the words "legislative body" and that, therefore, "the power to act under the Growth Management Act was delegated to the `county legislative body'". Majority, at 349. At issue in this case is not the wording of the entire Growth Management Act, but that of two statutes therein, RCW 36.70A.060 and RCW 36.70A.170. As the County explains, these statutes mandate the passage of temporary critical areas ordinances. RCW 36.70A.060(2) states that "[e]ach county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170". RCW 36.70A.170(1) provides that "each county, and each city" shall designate critical areas where appropriate. There is no reference to the "county legislative body" in either statute. The absence of such a reference is key given the Washington case law cited by the majority. As the majority notes, "[A] statutory grant of power to a legislative authority does not generally permit delegation to the voters through an initiative or referendum.'" Majority, at 350 (quoting Citizens for Financially Responsible Gov't v. Spokane, 99 Wn.2d 339, 344-45, 662 P.2d 845 (1983)). The corollary to this rule is that if the grant of power is to the city or county as a corporate entity, direct legislation in the form of a referendum is permissible. Leonard v. Bothell, 87 Wn.2d 847, 852-53, 557 P.2d 1306 (1976); Paget v. Logan, 78 Wn.2d 349, 355, 474 P.2d 247 (1970). Consequently, this court recently found the wording of the statutory grant of power "at the heart" of whether referendum rights were available to challenge a countywide planning policy enacted pursuant to RCW 36.70A.210(2). Snohomish Cy. v. Anderson, 123 Wn.2d 151, 155, 868 P.2d 116 (1994). In construing this section of the Growth Management Act, the Anderson court found that the statute's reference to the "legislative authority" of a county eliminated referendum rights with regard to countywide planning policies. "Referendum rights do not exist when power has been *357 statutorily delegated to the `legislative authority'." Anderson, at 156 (quoting Neils v. Seattle, 185 Wash. 269, 53 P.2d 848 (1936)). The Anderson court observed further that the Legislature is presumed to be familiar with judicial decisions of the Supreme Court construing statutory language. Anderson, at 156. "At the time the Legislature enacted RCW 36.70A, case law defined `legislative authority' and comparable terms in statutory contexts to mean the council and/or mayor only, and not to permit referendum rights." Anderson, at 156; see also Leonard, at 854 ("This court should also presume the legislature was aware of the decisions of this court which preclude a referendum election when the legislature delegated the authority to the legislative body and not to the city as a corporate entity."). Given this precedent, the majority's conclusion that references to "county" and to the "county legislative authority" in the Growth Management Act are interchangeable is, to say the least, surprising. Having assumed that the Legislature knows the consequences of granting authority to a "legislative authority" in a statute, this court also should assume that the Legislature knows the differing consequences of granting authority to a "county". Since the grant of authority to enact critical areas ordinances is to the county under RCW 36.70A.060(2) and RCW 36.70A.170(1)(d), the conclusion must be that the Legislature intended no interference with the referendum rights conferred upon Whatcom County voters by that county's home rule charter. Part of the majority's confusion may stem from its belief that the elimination of referendum rights in Anderson requires the elimination of referendum rights in this case. Neither the language nor the purpose of the relevant statutes mandates such a result. As stated above, the statute at issue in Anderson was RCW 36.70A.210, which requires counties to enact planning policies that set forth general goals governing, among other things, the development of urban areas; the siting of public facilities of a countywide or statewide nature; transportation *358 facilities and strategies; and affordable housing. RCW 36.70A.210(3); see Anderson, at 154. RCW 36.70A.210(7) also authorizes multicounty planning policies adopted by two or more counties. The Anderson court recognized that county home rule is intended to further self-governance in purely local affairs so long as those exercising their rights to self-governance do not "run counter to considerations of public policy of broad concern, expressed in general laws.'" Anderson, at 159 (quoting Henry v. Thorne, 92 Wn.2d 878, 881, 602 P.2d 354 (1979)). The Anderson court understandably concluded that allowing the referendum under challenge would run counter to such considerations, given the broad range of policies required to be included in plans enacted pursuant to RCW 36.70A.210 and the possibility of multicounty plans. "Permitting the referendum would jeopardize an entire state plan and thus would extend beyond a matter of local concern." Anderson, at 159. By contrast, RCW 36.70A.060(2) is much more limited in scope, and the temporary critical areas ordinances enacted pursuant thereto are purely local in concern. The ordinance at issue is concerned solely with Whatcom County and addresses the development of specific environmental areas and the permit processes relevant thereto. It does not appear that the referendum provisions proposed to the Whatcom County ordinance "would jeopardize an entire state plan". Thus, neither the language nor the intent of the statutes authorizing critical areas ordinances is thwarted by recognizing the applicability of referendum rights. The majority next points out that Whatcom County voters should have contented themselves with the early participation in the ordinance process authorized by RCW 36.70A.140. This statute provides that each affected county shall establish procedures providing for early and continuous public participation in the development of comprehensive land use plans and of development regulations implementing such plans. These procedures are to provide for, in part, "broad dissemination of proposals and alternatives". RCW 36.70A.140. *359 The majority apparently interprets RCW 36.70A.140 as authorizing "continuous public participation" before, but not after, the enactment of an ordinance, and does not see a referendum as a legitimate means of disseminating alternatives. In a similar vein, the County states that cooperation in comprehensive land use planning is required under the Growth Management Act and "[t]he referendum is not a cooperative or coordinated effort in planning". Br. of Appellant, at 22. Apparently, enactment of a critical areas ordinance with which a significant portion of its population disagrees is an example of a cooperative effort in planning, whereas a referendum seeking to demonstrate that disagreement is not. More importantly, the County, as well as the majority, misconstrues the nature of referendum rights in discussing public participation. A referendum is not simply an effort to participate in, or contribute to, discussion; rather, the enactment of a referendum measure "is an exercise of the same power of sovereignty as that exercised by the legislature in the passage of a statute". Philip A. Trautman, Initiative and Referendum in Washington: A Survey, 49 Wash. L. Rev. 55, 66 (1973). Initiative and referendum provisions reserve to voters "the fundamental right of a governed people to exercise their inherent and constitutional political power over governmental affairs". Paget, at 352. Therefore, to say that public discussion of the proposed content of an ordinance is somehow equivalent to the right to challenge that ordinance by referendum, and that the public must be contented with such discussion, is a mischaracterization of the significance of the referendum power. I next disagree with the majority's statement that the critical areas ordinance at issue "is merely execution of a policy already in existence". Majority, at 352. Initially I am concerned because this statement is hard to reconcile with the majority's earlier statement that permitting the referendum would jeopardize the entire state plan. See majority, at 351 (citing Anderson, at 159). The greater issue, however, is the confusion created by the majority's failure both to support its conclusion and to adhere to it. *360 As stated earlier, the critical areas ordinance at issue here is of lesser magnitude than the countywide planning policy at issue in Anderson. However, I do not see the ordinance as merely execution of a policy already in existence. If viewed in this light, the ordinance presumably would be an administrative rather than legislative action and so not subject to referendum. The rule in Washington is that the referendum power extends only to matters legislative in character and not to merely administrative acts. Heider v. Seattle, 100 Wn.2d 874, 875, 675 P.2d 597 (1984); Citizens, at 347. Two tests used to distinguish between administrative and legislative matters are as follows: Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.... Another test has been whether the proposition is one to make new law or to execute law already in existence. (Citation omitted.) Heider, at 876 (quoting Citizens, at 347). The majority implicitly acknowledges but then ignores this law when it follows its statement that "[t]he ordinance is merely execution of a policy already in existence" (and thus presumably administrative) by stating that enactment of ordinances is a legislative act under the Whatcom County Code. Majority, at 353. Even if the Code did not so state, it would appear that the critical areas ordinance at issue constitutes a legislative act. The ordinance is 145 pages long and clearly establishes new guidelines for evaluating and regulating proposed development in and around critical areas in Whatcom County. Its preamble states that the temporary critical areas ordinance is designed to set standards to protect the public while allowing careful development around critical areas, and that the ordinance seeks to specify the framework that will be applied to define areas considered critical. As such, it appears to be more than an administrative action. While conceding that the ordinance is a legislative act, the majority maintains that it is not subject to a referendum *361 because the ordinance falls within the public health and safety exception in the Whatcom County Code. As set forth by the majority, article 5, section 5.50 of the code provides as follows: The second power reserved by the people is the referendum. It may be ordered on any act, or bill, or ordinance, or any part thereof passed by the County Council except such ordinances as may be necessary for the immediate preservation of the public peace, health or safety or support of the county government and its existing public institutions. (Italics omitted.) Majority, at 353. The majority then notes that the Whatcom County Council "somewhat routinely" declared that enactment of the Temporary Critical Areas Ordinance would promote the public health, safety and general welfare. Majority, at 353. Without explanation, the majority concludes that "this nevertheless met the requirements for the exception". Majority, at 353. Then, as if anticipating disagreement, the majority explains that the "immediacy" requirement was satisfied "by the September 1, 1993 statutory deadline, which preceded the November 3, 1993 referendum election". Majority, at 353. There are several problems with this conclusion. In the first place, the statutory deadline for the temporary critical areas ordinance was March 1, 1992. RCW 36.70A.060(2). Whatcom County asked for and received time extensions, and adopted its critical areas ordinance on June 23, 1992. Research has disclosed no deadline of September 1, 1993, that is applicable either to critical areas ordinances or to comprehensive land use plans. If such a deadline does exist, it would appear that adoption of the ordinance in 1992 eliminates any element of immediacy with regard to a 1993 deadline. Furthermore, if statutory deadlines could be used to meet the "immediacy" requirement, then the power of referendum would be placed in considerable jeopardy and legislative declarations of emergency would be rendered virtually meaningless. This court discussed the purpose of emergent legislation *362 in State ex rel. Gray v. Martin, 29 Wn.2d 799, 809, 189 P.2d 637 (1948): The purpose of emergent legislation is to enable the legislative body to provide immediate action in order to prevent or remedy a condition or situation which is of such a nature that it demands immediate attention when to postpone such action would result in serious injury or damage to the people, government, or community directly concerned. The Gray court cited previous cases upholding or denying legislative declarations of emergency and observed that in some it held that, unless the legislative act is in fact immediately necessary, all other factors are irrelevant, and the legislation will not be upheld as emergent. Gray, at 806. The Gray court also cited cases holding that an emergency does not mean expediency, convenience, or best interest, and that "promotion of the public welfare" is not a criterion by which the court may be guided in determining whether or not an emergency exists. Gray, at 807. Another case stated that, with reference to a legislative declaration of emergency, it would "`be scandalous indeed if the constitutional right of referendum could be thwarted by the mere use of false labels ...'" and that the highly beneficial character of the act does not establish "`that it is necessary for the immediate public peace, health or safety....'" Gray, at 807 (quoting State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 681-83, 157 P.2d 721 (1945)). Other authorities agree that a mere statement that passage of the ordinance is necessary for immediate preservation of public peace may not suffice. 5 Eugene McQuillin, Municipal Corporations § 16.56, at 275 (3d ed. 1989); Trautman, at 75. Here, the temporary critical areas ordinance did not even say that its adoption was necessary for the immediate preservation of the public peace, health, or safety. Rather, it simply stated that its enactment "will promote the public health, safety, and general welfare". Clerk's Papers, at 24. Thus, the county council did not characterize the ordinance as emergency legislation immune from referendum under *363 the county code, nor should this court regard it as such. While highly beneficial, the planned development of critical environmental areas does not qualify as emergency legislation. Thus, it is not excepted from referendum under article 5, section 5.50 of the Whatcom County Code. Finally, I neither agree nor disagree with the majority's analysis of the Planning Enabling Act because I do not see what conclusion the majority draws from that analysis. The majority cites no provision in the Planning Enabling Act that prevents the exercise of referendum rights. Suffice it to say that I, too, think that the Planning Enabling Act and the Growth Management Act can be read consistently and harmoniously to carry out their intended legislative purpose, and that this purpose is not thwarted by allowing referendum rights with regard to critical areas ordinances. In conclusion, I note that the content of the referendum is not at issue in this case, and I will not comment on it. What is at issue here is the right of the voters of Whatcom County to challenge an ordinance enacted by their county council. I can see no reason why this court should conclude that the referendum rights granted such voters under the Whatcom County Home Rule Charter are in conflict with the statutes governing passage of critical areas ordinances. Accordingly, I would affirm the Superior Court's grant of summary judgment upholding the referendum amending portions of Whatcom County's temporary critical areas ordinance. NOTES [1] In an affidavit Respondent signed his name "Stephen W. Brisbane". Clerk's Papers, at 155. [2] Clerk's Papers, at 22-25. [3] Clerk's Papers, at 16. [4] Clerk's Papers, at 16. Whatcom County voters approved the referendum at the November 3, 1993 election. [5] Clerk's Papers, at 15-18. [6] Clerk's Papers, at 7-8. [7] Clerk's Papers, at 8. [8] RCW 36.70A.010. [9] WAC 365-190-020. [10] RCW 36.70A.040(1) was amended in 1993 and provides in relevant part: "Each county that has both a population of fifty thousand or more ... shall conform with all of the requirements of this chapter." (Italics ours.) [11] RCW 36.70A.040(3) was amended in 1993 and provides in relevant part: "Any county ... required to conform with all of the requirements of this chapter under subsection (1) of this section shall take actions under this chapter as follows: (a) The county legislative authority shall adopt a county-wide planning policy under RCW 36.70A.210; (b) the county ... shall designate critical areas, ... and adopt development regulations... protecting these designated critical areas, under RCW 36.70A.170 and 36.70A.060; (c) the county shall designate and take other actions related to urban growth areas under RCW 36.70A.110; (d) if the county has a population of fifty thousand or more, the county ... shall adopt a comprehensive plan under this chapter and development regulations that are consistent with and implement the comprehensive plan on or before July 1, 1994...." (Italics ours.) [12] The text of the ordinance consists of approximately 128 pages. The amendments under the referendum struck words almost indiscriminately throughout the ordinance. See Clerk's Papers, at 27-145. [13] Clerk's Papers, at 27. [14] Any county may frame a `Home Rule' charter for its own government subject to the Constitution and laws of this state...." [15] The Whatcom County Code art. 5, § 5.10 (1993) provides in relevant part: "The people of Whatcom County reserve to themselves the power to make certain proposals, at their option, and to enact or reject them all at the polls, independent of the County Council." The Whatcom County Code art. 5, § 5.50 (1993) specifically provides for referendum: "The second power reserved by the people is the referendum. It may be ordered on any act, or bill, or ordinance, or any part thereof passed by the County Council except such ordinances as may be necessary for the immediate preservation of the public peace, health or safety or support of the county government and its existing public institutions. Upon registration and validation of a referendum petition, the measure will be ineffective pending the outcome of the referendum procedure...." This language closely parallels the language of Const. art. 2, § 1(b) (amend. 72) providing for referendum applicable to state laws. [16] Snohomish Cy. v. Anderson, 123 Wn.2d 151, 158, 868 P.2d 116 (1994). [17] Anderson, at 158 (quoting Henry v. Thorne, 92 Wn.2d 878, 881, 602 P.2d 354 (1979)). [18] For example, former RCW 36.70A.040(3) provides: "Any county or city that is required to adopt a comprehensive land use plan under subsection (1) of this section shall adopt the plan on or before July 1, 1993. Any county or city that is required to adopt a comprehensive land use plan under subsection (2) of this section shall adopt the plan not later than three years from the date the county legislative body takes action as required by subsection (2) of this section." (Italics ours.) [19] Anderson, at 156. [20] (Citations omitted.) Citizens for Financially Responsible Gov't v. Spokane, 99 Wn.2d 339, 344-45, 662 P.2d 845 (1983). [21] 123 Wn.2d 151, 868 P.2d 116 (1994). [22] Anderson, at 155. [23] Anderson, at 155. [24] Anderson, at 156 (citing, e.g., State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 409 P.2d 458 (1965); State ex rel. Haas v. Pomeroy, 50 Wn.2d 23, 308 P.2d 684 (1957); Neils v. Seattle, 185 Wash. 269, 53 P.2d 848 (1936)). See also Paget v. Logan, 78 Wn.2d 349, 474 P.2d 247 (1970) (court distinguished situation where authority is delegated to electorate from that where authority is delegated to "legislative authority". Referendum rights are not permitted in the latter.). [25] Anderson, at 159. [26] In RCW 36.70A.010, the Legislature considered and balanced the interests of the "citizens, communities, local governments, and the private sector" in developing the Growth Management Act. [27] Anderson, at 158-59. [28] (Italics ours.) Anderson, at 157. One commentator has noted that some "statutes scattered throughout the code authorize the initiative and referendum for particular subjects". Philip A. Trautman, Initiative and Referendum in Washington: A Survey, 49 Wash. L. Rev. 55, 77 (1973). [29] Clerk's Papers, at 22. [30] (Italics ours.) Clerk's Papers, at 24. [31] State ex rel. Guthrie v. Richland, 80 Wn.2d 382, 387, 494 P.2d 990 (1972). [32] Guthrie, at 385. See also Seattle Bldg. & Constr. Trades Coun. v. Seattle, 94 Wn.2d 740, 747, 620 P.2d 82 (1980); State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 679, 409 P.2d 458 (1965). [33] RCW 36.70.010. [34] RCW 36.70.030; 36.70.040; 36.70.320. [35] Ellensburg v. State, 118 Wn.2d 709, 713, 826 P.2d 1081 (1992) (quoting Employco Personnel Servs., Inc. v. Seattle, 117 Wn.2d 606, 614, 817 P.2d 1373 (1991)).

771 F.2d 962 Chester A. SHEPARD, Petitioner-Appellant,v.Dale E. FOLTZ, Warden, State Prison of Southern Michigan,and Frank J. Kelley, Attorney General of Michigan,Respondents-Appellees. No. 84-1537. United States Court of Appeals,Sixth Circuit. Argued July 15, 1985.Decided Aug. 30, 1985. Chester A. Shepard, Jody LeWitter (argued), Detroit, Mich., for petitioner-appellant. Frank J. Kelley, Atty. Gen. of Mich., J. Peter Lark, Thomas A. Kulick (argued), Asst. Atty. Gen., Corrections Div., Criminal Section, Lansing, Mich., for respondents-appellees. Before MARTIN, CONTIE and WELLFORD, Circuit Judges. BOYCE F. MARTIN, Jr., Circuit Judge. 1 Chester Shepard appeals from the district court's denial of his application for a writ of habeas corpus. For the reasons that follow, we affirm the decision of the district court.1 2 A Michigan jury convicted Shepard of the first degree murder of Leroy Parham, a reputed drug dealer. The conviction was based upon Michigan's felony murder rule, M.C.L.A. Sec. 750.316, on the theory that the killing was perpetrated during the course of a robbery. As a result of the conviction, Shepard is serving a mandatory life sentence in state prison. 3 The key government witness at trial was William Davis, a heroin addict and a participant in the murder of Parham. Davis testified that he, Shepard, and Johnny Ulmer, who was Shepard's codefendant, originally decided to kidnap Parham and then use him to gain access to the apartment of Alonzo Malone, another reputed drug dealer, in order to rob him. The plan later evolved to simply robbing Parham. Davis drove his car to Shepard's house where Shepard was waiting with an object, approximately two to three feet long, wrapped in newspaper. Davis later identified the item, which Shepard had placed in the trunk of the car, as a single shot, 12 gauge, sawed-off shotgun. 4 Two days after Shepard placed the gun in the car, Davis, Shepard, and Ulmer drove to Parham's apartment in Ann Arbor. Davis and Shepard hid in the bushes outside the apartment; Davis had a .32 caliber revolver and Shepard had the shotgun. When Parham approached, Davis heard a shot and then a scream. Davis testified that Shepard said he shot Parham when he went for a gun. After the shooting, Shepard reloaded the gun and he and Davis ran. Two other witnesses testified that they heard Shepard state that he had shot Parham. 5 Shepard's defense was alibi. He testified that he was not in Ann Arbor on the day of the murder. His mother testified that Shepard was at home in Detroit on the night of the murder because she remembered that he had asked her to leave car fare for him to go to the unemployment office the next day. Shepard's records from the Michigan Employment Security Office in Detroit indicated that he kept his appointment on the day after the murder. Prosecution witnesses testified that Shepard was in Ann Arbor on that day. Two witnesses who met Davis in prison after the murder testified that Davis told them that he and a person named "Chico" killed Parham and that Shepard had nothing to do with the crime. One of the witnesses testified that Davis said he implicated Shepard in the killing because Shepard had stolen Davis' pistol and had become involved with his girlfriend. 6 On this appeal, Shepard claims that he was denied due process of law when the state trial court failed to instruct the jury on lesser included offenses to first degree felony murder. The district court refused to entertain this claim on habeas review because Shepard failed to object to the jury instruction at trial and because Shepard failed to meet the "cause and prejudice" standards of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 7 Sykes' cause and prejudice test is designed to prevent federal habeas review of claims that were not considered by the state courts because of the petitioner's failure to observe a state procedural rule. The Sykes test is not applicable if the state court did not rely upon the petitioner's failure to comply with the state procedural rule. See County Court of Ulster v. Allen, 442 U.S. 140, 148-54, 99 S.Ct. 2213, 2220-23, 60 L.Ed.2d 777 (1979); Gilbert v. Parke, 763 F.2d 821, 824 (6th Cir.1985); Raper v. Mintzes, 706 F.2d 161 (6th Cir.1983); Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). 8 On appeal from the jury conviction, Shepard asserted in the state appellate court that the trial court's failure to instruct the jury on lesser included offenses was error. In its opinion, the Michigan Court of Appeals stated: "Of the remaining twelve issues, only five have been preserved and since no miscarriage of justice has been shown, the remaining seven issues do not require discussion." People v. Ulmer, 78 Mich.App. 319, 259 N.W.2d 875, 877 (1977). The court then proceeded to decide on the merits six, not five, claims of error. In discussing one of those claims of error, the court held: "Defendants requested that no instruction on lesser included offenses be given. It was not error to accede to this request." Id. It is unclear from the court's opinion whether the court's decision with respect to the instruction on lesser included offenses was based upon a procedural bar--Shepard's failure to object at trial precluded him from asserting the error on appeal--or was decided on the merits--the trial court's failure to instruct on lesser included offenses was not error given Shepard's failure to request those instructions. The district court held that Shepard's procedural default was a "substantial basis" of the state appellate court's rejection of Shepard's claim and that, based upon our decision in Hockenbury v. Sowders, supra, Shepard was required to meet the Sykes cause and prejudice test. 9 In Hockenbury v. Sowders we held that application of the Sykes cause and prejudice test was appropriate when the state court explicitly asserted, as alternative grounds of decision, the petitioner's procedural default and rejection of the claim on the merits and when the procedural default was a "substantial basis of the state court's denial of petitioner's claim." 620 F.2d at 115. That rule is not applicable here because it is not clear from the "plain language of the [state court opinion]," id., that Shepard's procedural default was invoked as a basis for the rejection of the claim. The state appellate court apparently invoked a procedural bar as an alternative ground of decision with respect to one of the six claims of error, but which one is not clear. 10 When it is unclear from the face of the state court opinion whether the state court relied upon a procedural bar as a basis for rejecting a claim, the appropriate procedure is for the district court to examine the arguments presented to the state court: 11 (1) if the state prosecutor only argued the merits of the petitioner's claim before the state court and failed to raise the procedural default issue, the federal court may assume that the state court ruled only on the merits; (2) if the prosecutor relied solely on the procedural default, the federal court may assume that that was the only basis for the state court's decision; and (3) if the prosecutor argued in the alternative, the federal court may assume that the state court did not rely solely on the merits unless it says so. 12 Raper v. Mintzes, 706 F.2d at 164. We have examined the brief filed by the prosecutor in the state appellate court. That brief clearly asserts both that the appellate court is without authority to decide the merits due to the procedural bar and that, if the court should reach the merits, the claim should be rejected. Under these circumstances, the district court correctly determined that Shepard was required to satisfy the Sykes cause and prejudice standard. See Gilbert v. Parke, 763 F.2d at 824-25; Raper v. Mintzes, 706 F.2d at 164. Shepard does not suggest any cause for the default or any prejudice resulting from the asserted error. The district court therefore properly refused to entertain the claim.2 13 Next, Shepard argues that he was denied due process when the state trial court instructed the jury that: 14 where the jury finds the killing occurred in the perpetration of, or an attempt to perpetrate a robbery, that the jury need not find malice or intent or deliberation because under these circumstances the statute setting forth the charge of First Degree Murder committed during the course of one of the felonies named in the statute, in this case being robbery, armed, or attempted robbery, armed, presumes that these necessary elements of malice or intent or deliberation [exist ].... (emphasis added)Shepard urges that this instruction creates a conclusive presumption of malice rather than permits a factual inference of malice and that the instruction therefore violates Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The state argues that the district court properly held that Shepard was required to, and failed to, meet the Sykes cause and prejudice standard because he failed to object to the instruction at trial. In Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), aff'd by an equally divided court, --- U.S. ----, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984), we noted that Michigan courts do not enforce a contemporaneous objection rule against failures to object to Sandstrom violations. Id. at 244 (citing People v. Wright, 408 Mich. 1, 30 n. 13, 289 N.W.2d 1 (1980)). We concluded that a federal habeas petitioner asserting a Sandstrom violation therefore need not satisfy the cause and prejudice standard. Engle v. Koehler, 707 F.2d at 244. In a recent decision, however, we questioned our prior determination whether Michigan enforces a contemporaneous objection rule with respect to Sandstrom violations, and, in any event, we held that a federal habeas petitioner must meet the Sykes test if the Michigan courts in fact applied such a rule. See McBee v. Grant, 763 F.2d 811, 816 (6th Cir.1985) (citing People v. Woods, 416 Mich. 581, 331 N.W.2d 707 (1982), cert. denied, 462 U.S. 1134, 103 S.Ct. 3116, 77 L.Ed.2d 1370 (1983)).3 15 In light of Shepard's failure to object at trial and the refusal of the Michigan Court of Appeals to entertain his claim due to the procedural default, the district court properly required Shepard to satisfy the cause and prejudice test. Shepard does not suggest any cause for the default or prejudice resulting from the asserted error. The district court properly refused to consider the Sandstrom claim.4 16 The judgment of the district court is affirmed. 1 In addition to the claims that we consider on this appeal, Shepard also asserts in his appellate brief that he was denied his sixth amendment right to a fair and impartial trial when the trial judge had several contacts with the jury during its deliberations and that he was denied his sixth amendment right to be present at every stage of the trial when the judge delivered supplemental instructions in Shepard's absence. In the district court, these issues were presented as errors of state law only, and the constitutional claims now asserted are not properly before us 2 We note, moreover, that asserted errors of state law do not provide a basis for federal habeas corpus relief, see Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and that a trial court's decision to permit a defendant to take an "all or nothing" approach to jury instructions does not violate due process, see Look v. Amaral, 725 F.2d 4, 9 (1st Cir.1984) 3 Shepard does not argue that, given the current state of the law in Michigan, reliance by the Michigan Court of Appeals on the procedural default was not an adequate and independent state ground of decision 4 Shepard argues that the "law of the case" indicates that the jury was required to find a malicious intent in his case because the Court of Appeals of Michigan, in initially reversing his conviction, had stated in dictum that "to eliminate the possibility of error on retrial, if that occurs, we recommend consideration of People v. Carter, 387 Mich. 397 [197 N.W.2d 57] (1972), and People v. Fountain, 71 Mich.App. 491 [248 N.W.2d 589] (1976), before ruling on a motion to dismiss the felony murder charge and before instructing the jury on that charge." People v. Ulmer and Shepard, No. 19184-19186 (Mich.Ct.App.1977). Fountain held that the element of malice should be submitted to the jury in a felony-murder case. Carter stated that in such a case malice "may be implied." Before Shepard could be retried, however, the Court of Appeals of Michigan amended its prior order and affirmed Shepard's conviction. See People v. Ulmer, 78 Mich.App. 319, 259 N.W.2d 875 (1977). The language from the state appellate court's opinion therefore cannot provide the law of the case. Moreover, the Michigan Supreme Court has made it clear that the common law felony murder doctrine was in effect prior to its decision in People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). See Aaron, 409 Mich. at 923, 299 N.W.2d 304; see also People v. Lonchar, 411 Mich. 923, 926-27, 308 N.W.2d 103 (1981) Finally, we note that we have previously held that the Michigan Supreme Court's decision not to give retroactive effect to Aaron does not violate due process. See Bowen v. Foltz, 763 F.2d 191 (6th Cir.1985).

Vacated by Supreme Court, January 24, 2005 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4025 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JESUS REYES, a/k/a Carlos Rodriguez, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Frank W. Bullock, Jr., District Judge. (CR-03-234) Submitted: May 13, 2004 Decided: May 18, 2004 Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jesus Reyes pled guilty to being knowingly and unlawfully found in the United States after being previously deported and being previously convicted in the United States for an aggravated felony in violation of 8 U.S.C. § 1326(a) (2000). The district court sentenced Reyes to a forty-one month term of imprisonment, one-year term of supervised release, and a $100 special assessment. Reyes was previously deported following his conviction in January 1996 for possession with intent to distribute and manufacture a Class A substance. After being deported, Reyes illegally reentered the United States. In March 2003, agents of the Bureau of Immigration and Customs Enforcement found Reyes incarcerated in North Carolina serving a 30-36 month sentence for trafficking in cocaine. Reyes was charged with the instant offense and elected to plead guilty pursuant to a written plea agreement. During sentencing, the district court added two points to Reyes’ criminal history pursuant to the U.S. Sentencing Guidelines Manual § 4A1.1(d) (2000), because Reyes committed the offense while serving a term of imprisonment. After determining Reyes’ guidelines range, the court sentenced Reyes to a forty-one month term of imprisonment. The court imposed this sentence consecutively to the undischarged state sentence Reyes was serving pursuant to USSG § 5G1.3(a), which mandates that if an offense is committed while the defendant is serving a term of imprisonment for - 2 - another offense, the sentence for the instant offense is to be served consecutively to the undischarged term of imprisonment. On appeal, Reyes argues that the court committed clear error in assessing two additional criminal history points and imposing a consecutive sentence because he committed the offense while he was serving a term of imprisonment. We review factual determinations made in sentencing proceedings for clear error and legal conclusions de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996). Reyes maintains that he did not voluntarily incarcerate himself and had no control over being found in prison, thus he should not be penalized for his inability to leave the country. However, § 1326(a) plainly states that the offense of unlawful reentry is committed whenever a previously deported alien, without permission, “enters, attempts to enter, or is at anytime found in, the United States.” The language of the statute thus clearly encompasses the circumstances in which Reyes was discovered. Accordingly, we affirm Reyes’ conviction and sentence. 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 - 3 - 

572 So.2d 343 (1990) Dan C. FRISARD, III v. EASTOVER BANK FOR SAVINGS and John Doe Company. No. 90-CA-483. Court of Appeal of Louisiana, Fifth Circuit. December 12, 1990. *344 Dan C. Frisard, Metairie, pro se. Donald A. Meyer, Rader Jackson, Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for defendant/appellee. Before KLIEBERT, BOWES and GOTHARD, JJ. GOTHARD, Judge. This is an appeal by the plaintiff from dismissal of his suit on an exception of no cause of action. The facts as related in the parties' briefs are as follows. Dan C. Frisard, III, owner and lessor of a house in Marrero, filed suit in proper person against Eastover Bank for Savings of Jackson, Mississippi. In May, 1988, a New Orleans law firm representing Eastover had sent a notice of eviction to Frisard's tenant telling her to vacate the premises as the property was to be seized and sold. Frisard telephoned the law firm and shortly thereafter the firm sent letters of apology to Frisard and his tenant, acknowledging an error had been made owing to an incorrect address in the bank's files. In August an Eastover representative went to the house and upon finding no one home left a message with a neighbor to the effect that the mortgage was in default, the property was to be sold, and the tenant must move voluntarily or be evicted. The representative made two more calls upon the tenant in August, one in person and the other by telephone, the last on August 15. The tenant got the representative's name on the third contact, following which Frisard was able to straighten out the matter with the bank. The pertinent sections of the petition, as amended in the first and second amending and supplemental petitions, read as follows: IV. That on or about May 9, 1988, the Law Offices of Shushan, Meyer, Jackson, McPherson and Herzog, hereafter referred to as Law Office, did mail a notice to occupant of 1002 DiMarco Drive, Marrero, Louisiana, Ms. Williams, to vacate property because property was being seized. *345 V. That on or about May 12, 1988, Ms. Williams called owner of property at 1002 DiMarco Drive, Marrero, Louisiana, Dan C. Frisard, and informed him of the letter from the law office. VI. That on or about May 13, 1988, Dan C. Frisard, after three telephone calls to the law office finally convinced collection department there was a grave mistake made concerning the address of the property to be seized by Eastover Bank. VII. That on May 31, 1988 and June 2, 1988, the law office sent Ms. Williams and Dan C. Frisard letters of regret for erroneous letters to vacate. VIII. That on or about August 1, 1988, a representative of Eastover Bank showed up at 1002 DiMarco Drive, Marrero, Louisiana and left word with neighbors that 1002 DiMarco was again going to be seized and left instructions for the neighbor to tell occupant of 1002 DiMarco, Ms. Williams, to vacate before seizure or risk eviction and her belongings to be put out on the street. IX. That on or about the afternoon of August 12, 1988, a representative of Eastover Bank, did suddenly appear in person and told Ms. Williams she would have to move because 1002 DiMarco was being seized and if she did not move her possessions would be placed out on the street. X. That on or about August 15, 1988, bank representative Rebecca Yates called Ms. Williams at her place of business, South Central Bell, and again warned her about moving out of 1002 DiMarco. XI. That from August 1st through August 15th, 1988, owner of 1002 DiMarco, Dan C. Frisard, was called on many occasions at work and home by Ms. Williams informing him of these threats. XII. As a result of Eastover's negligence, Dr. Frisard sustained emotional distress, anxiety, loss of goodwill with tenant of 1002 DiMarco, Ms. Williams; embarassment and defamation of character, and monetary loss from legal consultation and rent compensations; all in amount to be proved on the trial of this cause. XIII. That Dr. Frisard's damages resulted proximately from the joint and concurring fault of the employees or representatives of Eastover Bank for Savings (the names of such employees or representatives are unknown to plaintiff, but are peculiarly within knowledge of defendants) as set forth below in Paragraph XIV. XIV. The employees and/or representatives of Eastover were negligent in failing to carefully inspect public parish records of property ownership of 1002 DiMarco, Marrero, Louisiana, prior to eviction and seizure notices; in failing to take responsible action in response to Ms. Williams good faith attempts, when on at least three occasions she attempted to give information which revealed that the attempted seizure and eviction of 1002 DiMarco was in error; in failing to respect the basis (sic) right of privacy and good character of Dr. Frisard by negligently announcing false and erroneous information to neighbors of 1002 DiMarco, resulting in public embarassment and defamation of Dr. Frisard's good character; in failing to respect Ms. William's basis (sic) right of peaceable possession of *346 1002 DiMarco thereby making Dr. Frisard, lessor, an involuntary obligator of Ms. William's peaceable possession of 1002 DiMarco (Art. 2692); in failing to act and conduct banking business as would be expected of the average, prudent bank; and any and all other negligent acts to be proved on the trial of this cause. (Frisard's second amending petition merely renumbered the paragraphs.) Eastover raised exceptions of res judicata and no cause of action. After a hearing the trial judge took the matter under advisement and then denied the exception of res judicata but granted the exception of no cause of action, dismissing the plaintiff's suit with written reasons. The only issue before this court is whether the trial judge correctly dismissed the plaintiff's suit for failure to state a cause of action. The appellee argues in brief that the court erroneously denied the exception of res judicata; however, as no cross-appeal or answer to the appeal was filed, we shall not consider appellee's assignment of error. The purpose of the exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the petition, and for purposes of determining the issues raised, well pleaded facts in the petition must be accepted as true. Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). Mental Anguish The appellant's claim for emotional distress and mental anguish is based on his being upset by his tenant's distress and his concern that she might leave. He does not allege that at any time Eastover contacted him as owner of the property. Mental anguish for witnessing physical injuries to a third person has been recognized as a cause of action in two recent cases: LeJeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990) and Bell v. Travelers Indem. Co., 561 So.2d 731 (La.App. 1st Cir.1990); however, mental anguish because of the emotional distress of another has not yet been considered a valid claim by the courts. Damages for mental anguish have been awarded rarely for damage to property or interference with property rights. In Kolder v. State Farm Ins. Co., 520 So.2d 960, 963 (La.App. 3rd Cir.1987), the court listed the four circumstances under which awards for mental anguish have been made: ... (1) when property has been damaged by an intentional or illegal act; (2) where property is damaged by acts for which the tortfeasor will be strictly or absolutely liable; (3) when property is damaged by acts constituting a continuous nuisance; (4) when property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result.... The Kolder case awarded damages for mental anguish to a plaintiff who watched a fire in her neighbor's field encroach upon her land and feared that her child might be harmed and that her truck and house might be damaged. The appellate court lowered the trial court's award, allowing damages only for her fear for the child and holding that actual damage to property must result. In an earlier case relied upon by the appellant, Farr v. Johnson, 308 So.2d 884 (La.App. 2nd Cir.1975), where an automobile crashed into the plaintiff's house, damages were denied because the anguish was no more than normal worry and mental consternation. See also Blache v. Jones, 521 So.2d 530 (La.App. 4th Cir.1988); Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir.1959). There are no allegations in the plaintiff's petition that actual damage to his property occurred, or that he suffered any more than normal concern. Furthermore, no facts are pleaded which might lead one to conclude that the acts were illegal or intentional, only that they were negligent. As the necessary elements for awarding damages for mental anguish are not present in the plaintiff's petition, he has not stated a cause of action for such damages. Defamation The plaintiff claims in brief that he was defamed, in that Eastover's representative *347 told the tenant's neighbor and the tenant that he had not paid his mortgage. In order to state a cause of action for defamation the plaintiff must allege: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101 (La.1988), and cases cited therein. As quoted above, the petition alleges that, "The employees and/or representatives of Eastover were negligent ... in failing to respect the basis (sic) right of privacy and good character of Dr. Frisard by negligently announcing false and erroneous information to neighbors of 1002 Di Marco, resulting in public embarassment (sic) and defamation of Dr. Frisard's good character; ..." As the petition stands, it fails to allege specific facts representing the elements of defamation. There are no words that may be construed as defamatory; there is no allegation that Frisard was named as a debtor/owner of the property; and negligence rather than malice is alleged. Consequently, we find no error in the judge's ruling on the issue of defamation. Monetary Losses, Reduced Rentals and Legal Consultation, Loss of Tenant's Good Will The plaintiff's claim for lost rental income, owing to his allegedly being obliged to placate his tenant in order to retain her good will, falls into the category of tortious interference with his lease contract. In 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989), the Supreme Court held that under certain narrow circumstances claims for tortious interference with contract would be henceforth entertained in Louisiana. Tortious interference is an intentional act by a corporate officer that causes a party to breach a contract or that makes performance of it more burdensome, more difficult, or impossible, or of less value to the performer. It is not a negligent act. Furthermore, the claim is not actionable where the corporate officer has reasonable justification for his action, acting within his scope of corporate authority and believing the action would benefit the corporation. See also Tallo v. Stroh Brewery Co., 544 So.2d 452 (La.App. 4th Cir.1989) writ denied 547 So.2d 355 (La. 1989). The facts pleaded by Frisard do not place his claim within the limits set out in Spurney; consequently we find no error in the trial judge's ruling. As to the appellant's claim for attorney's fees, in the absence of a contractual or statutory right to receive attorney's fees, none may be awarded. The appellant pleads no facts to support such a right. For the reasons assigned above, the decision appealed from is affirmed insofar as it denies the defendant's exception of res judicata and sustains the exception of no cause of action. In accordance with La.C. C.P. art. 934, we remand the case to the trial court with instructions to allow the plaintiff fifteen (15) days from finality of this opinion to file an amended petition to allege, if he can, a cause of action. AFFIRMED IN PART AND REMANDED.

859 F.2d 1147 GOVERNMENT EMPLOYEES INSURANCE COMPANYv.BENTON, Ernest, Appellant in No. 88-1175.BENTON, Ernest, Appellant in No. 88-1176,v.GOVERNMENT EMPLOYEES INSURANCE COMPANY. Nos. 88-1175, 88-1176. United States Court of Appeals,Third Circuit. Argued Aug. 16, 1988.Decided Oct. 12, 1988.Rehearing and Rehearing In Banc Denied Nov. 7, 1988. R. Steven Shisler (argued), Bernard L. Kubert & Associates, P.C., Philadelphia, Pa., for appellant. William H. Resch, Jr. (argued), David M. McCormick, Liebert, Short, Fitzpatrick & Hirshland, Philadelphia, Pa., for appellee. Before STAPLETON and MANSMANN, Circuit Judges, and FISHER, District Judge.* OPINION OF THE COURT MANSMANN, Circuit Judge. 1 At issue is whether the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.Cons.Stat.Ann. Sec. 1701 et seq., (Purdon 1984) (effective October 1, 1984), which mandates underinsured motorist coverage, affects policies of insurance applied for prior to the effective date yet not actually received by the insured until sometime thereafter. We must interpret the meaning of the statute's usage of the words "delivery", "issued", and "issued for delivery" in the context of delineating the scope of coverage of an automobile insurance policy. 2 Relying upon procedures outlined under the Pennsylvania Automobile Insurance Plan and principles of statutory construction, we conclude that the insurer issued its policy for delivery prior to the effective date of the Financial Responsibility Law. The policy's terms are therefore controlled by the new law's predecessors, the now-repealed No-Fault Vehicle Insurance Act, Pa.Stat.Ann. tit. 40, Sec. 1009.101 et seq. (Purdon 1974), and the unrepealed Uninsured Motorist Act, Pa.Stat.Ann. tit. 40, Sec. 2000 (Purdon 1963) which do not provide for underinsurance coverage. The district court order granting summary judgment in favor of the insurance company, denying underinsured motorist insurance coverage to the insured, will be affirmed. I. 3 On September 28, 1984, Jean Brisco, in conjunction with the purchase of a motor vehicle, applied to the Pennsylvania Automobile Insurance Plan for automobile insurance through a broker. The Automobile Insurance Plan, also known as the assigned risk plan, was created pursuant to Sec. 1009.108 of the No-Fault Act to assure that individuals who were unable to obtain insurance through conventional means would be provided the necessary coverage and benefits afforded by that statute.1 4 The application for insurance which Brisco completed included the following language: 5 Coverage under this evidence of automobile insurance is effective from the effective date and time stated thereon. This evidence of automobile insurance will terminate immediately upon the issuance of the policy applied for.... 6 At the bottom of the application, above the insurance broker's and Brisco's signatures, was the stated effective date of the application--September 28, 1984, at 9:00 a.m. On this date, the No-Fault Act was still in operation. 7 Sometime in the next two weeks Brisco received a policy and an insurance card from the insurer designated under the Automobile Insurance Plan to provide her with coverage, Government Employees Insurance Company ("GEICO"). Brisco later discarded both the policy and the ID card. It is undisputed that the written terms of the policy did not contain underinsured motorist coverage. 8 On November 8, 1984, Brisco's father, Ernest Benton, while a pedestrian, was struck by an automobile.2 The operator of the vehicle which struck Benton was insured by Erie Insurance Company. To compensate for the injuries sustained in the accident, Benton received a $15,000.00 settlement in release for his claim against both the driver and Erie Insurance Company. 9 Finding this settlement amount inadequate, Benton filed a motion in a Pennsylvania state court to compel appointment of an arbitrator and to compel arbitration to determine his rights, specifically, his entitlement to underinsured motorist coverage under the insurance policy issued by GEICO. The case was removed to the federal district court where GEICO petitioned for a declaratory judgment that it had no obligation to provide underinsurance motorist coverage to Benton. In its petition GEICO claimed that underinsured motorist coverage was not required by the No-Fault Act and was not provided for in the policy issued to Brisco. The issues were joined and to a certain extent discovery proceeded.3 10 On February 19, 1988, the district court entered orders granting summary judgment in favor of GEICO and dismissing Benton's petition to compel appointment of an arbitrator and to compel arbitration. The district court, holding that Pennsylvania law governed the case, summarily decided that the Financial Responsibility Law was not applicable to the policy issued by GEICO to Brisco. Benton has appealed and we now have jurisdiction pursuant to 28 U.S.C. Sec. 1291. 11 Since the basic facts are uncontested, we exercise plenary review over the legal conclusions supporting the district court's grant of summary judgment in favor of GEICO. Adams v. Gould, Inc., 739 F.2d 858 (3d Cir.1984). The specific legal question involved is one of statutory construction, i.e., what are the meanings of the words "delivered", "issued", and "issued for delivery" as utilized in the Financial Responsibility Law? Questions of statutory construction also invoke our power of plenary review. Chrysler Credit Corporation v. First National Bank and Trust Company of Washington, 746 F.2d 200 (3d Cir.1984). II. 12 On September 28, 1984, when Brisco applied to the Automobile Insurance Plan, the Pennsylvania Motor Vehicle No-Fault Insurance Act was in effect. At that time, under the Uninsured Motorist Act, all insurance policies issued in Pennsylvania were required to include uninsured motorist coverage. Pa.Stat.Ann. tit. 40, Sec. 2000(a). Underinsured motorist coverage, however, was not mandated. Votedian v. General Accident Fire and Life Assurance Corp., 330 Pa.Super. 13, 478 A.2d 1324 (1984). Benton concedes that if the No-Fault Act is applicable to the present policy, then no underinsurance motorist coverage is due to him. 13 On October 1, 1984, the Financial Responsibility Law became the law in Pennsylvania. Underinsured motorist coverage was now required. 75 Pa.Cons.Stat.Ann. Sec. 1731(a). The Supplemental Provisions of the Financial Responsibility Law provide that the law applies to insurance policies issued or renewed after the October 1, 1984 effective date. Section 11 of the Supplemental Provisions of the Act of February 12, 1984, P.L. 53, No. 12, 1984 Pennsylvania Legislative Service 129; 75 Pa.Cons.Stat.Ann. Sec. 1701, note. Accord Brack v. Allstate Ins. Co., 666 F.Supp. 703 (M.D.Pa.1986). 14 The primary basis of Benton's appeal is that underinsured motorist coverage occurs here by operation of law. To justify entitlement to this coverage, Benton relies on Sec. 1731(a) of the Financial Responsibility Law. This section states that after October 1, 1984, "no motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth without underinsured motorist coverage." According to Benton, because Brisco did not receive physical possession of the policy from GEICO until after the effective date of the Financial Responsibility Law, the GEICO policy must provide the now-required underinsured motorist coverage. 15 Discerning which of the Pennsylvania statutes dictates the coverage afforded by the policy here may involve a two-step analysis. First, we must determine when coverage under the GEICO policy became effective. If coverage became effective after October 1, then clearly the Financial Responsibility Law would govern. If, however, the policy was in effect prior to October 1, 1984 and governed by the No-Fault Act, we must decide whether the actual receipt of the policy after October 1 transforms the policy into one subject to the provisions of the Financial Responsibility Law. 16 Since Brisco's application for insurance was initiated through the assigned risk plan, we begin by examination of the Pennsylvania Automobile Insurance Plan and the role it plays in determining the effective date of coverage of the insurance policy. III. 17 Section 12 of the Pennsylvania Automobile Insurance Plan outlines the procedures through which insurance companies participating in the assigned risk plan provide coverage to those applying for automobile insurance through the Plan. 18 Generally, upon receipt of the application for insurance and a deposit for a premium payment, the Plan makes a determination whether the applicant qualifies for coverage. If the eligibility requirement is satisfied: 19 [T]he Plan shall upon receipt of the application for insurance ... designate a company to which the applicant shall be assigned and so shall advise the applicant and the producer of the record and shall state in such notice when the coverage shall be effective, which date shall be 12:01 a.m. on the date following the date of mailing of the application to the Plan.... 20 (Emphasis added.) 21 The record supports the conclusion that GEICO's obligation to provide coverage to Brisco commenced in accordance with the above-stated provision. GEICO's confirmation of coverage sheet4 which outlined the extent of the company's coverage at the time of Benton's accident included the phrase "PA INCEPT DATE: 9/29/84." September 29, 1984, is 12:01 a.m. of the date after Brisco made application to the Plan and, presumably, the day following the date of mailing of the application to the Plan. Although neither party has enlightened us as to the meaning of "INCEPT DATE," in accordance with the language of the Plan, a reasonable interpretation is that INCEPT DATE indicates when coverage commenced under Pennsylvania's assigned risk plan. 22 GEICO proposes that its coverage became effective on September 28, the date of application. It argues that the application itself encompassed the extent of its obligation for coverage until replaced by the more specific, though substantively identical, evidence of coverage--the actual policy. 23 The Plan does allow in some instances that, if the applicant so requires and if the broker follows certain prescribed steps, coverage may become effective upon application.5 We are unable to conclude from the record whether the broker followed the Plan's necessary criteria to effectuate application date coverage, but, in any event, such a determination is not required. Whether GEICO's obligation to provide coverage commenced on application on September 28 or the date following, September 29, is of no consequence here since both dates precede the effective date of the Financial Responsibility Law. Therefore, at least until October 1, 1984 coverage was in place and was governed by the then-operative No-Fault Act.6 IV. 24 We turn now to whether enactment of the Financial Responsibility Law, predating the actual physical delivery of the policy, imbued the GEICO policy with underinsurance coverage by operation of law. The determinative inquiry is whether the activity on either September 28 or September 29 represented GEICO's "issuance"7 of a policy to Brisco. 25 Under the Pennsylvania Statutory Construction Act, 1 Pa.Cons.Stat.Ann. Sec. 1921(b) (Purdon 1972), where the words of a statute are unambiguous, the letter of the law shall not be disregarded under the pretext of pursuing its spirit. Chesler v. Government Employees Insurance Co., 302 Pa.Super. 356, 448 A.2d 1080 (1982), rev'd on other grounds, 503 Pa. 292, 469 A.2d 560 (1983). 26 As both parties point out, the crucial terms "delivery", "issued", or "issued for delivery" are not defined in the Financial Responsibility Law. Where the statute under scrutiny does not supply the definition of common usage words, we must assume the words' commonsense meaning. Derry Township, Dauphin County v. Swartz, 21 Pa.Commw. 587, 346 A.2d 853 (1975). 27 Applying this plain-meaning mandate we conclude that "delivery" of the policy is unambiguous and refers to that moment when Brisco received the policy from GEICO through the mail. Our examination does not end here because it is clear that the parties did not intend that the physical delivery of the policy have any operative effect on the coverage. 28 The meaning of "issued for delivery" is less clear. Accordingly, we once again consult the Statutory Construction Act's guidelines of interpretation. 29 Under Sec. 1921(c) of the Act, when the words of a statute are not explicit, the intention of the legislature may be ascertained through the following: 30 (1) The occasion and necessity for the statute. 31 (2) The circumstances under which it was enacted. 32 (3) The mischief to be remedied. 33 (4) The object to be attained. 34 (5) The former law, if any, including other statutes upon the same or similar subjects. 35 (6) The consequences of a particular interpretation. 36 (7) The contemporaneous legislative history. 37 (8) Legislative and administrative interpretations of such statute. 38 1 Pa.Cons.Stat.Ann. Sec. 1921(c). 39 We acknowledge that the import of the stated effective date is normally not the type of information gleaned through discussion of legislative intent. We reference the statute's history here briefly, in accordance with Sec. 1921(c)(1) through (5) and Sec. 1921(c)(7),8 only to determine if there were any considerations in the law's enactment which indicate if the chosen effective date of October 1, 1984 held any particular relevance. 40 The No-Fault Act was a complex statute which created a large body of appellate case law interpreting its terms. See Heffner v. Allstate Insurance Company, 265 Pa.Super 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980). Judicial interpretation of the Act often favored coverage which led eventually to increased insurance costs for consumers. According to Senator Edward Holl, this was the principal problem that precipitated the movement to repeal the No-Fault Act. See Comments of Senator Edward Holl in Legislative Journal--Senate (October 4, 1983). 41 Although the goal of remedying the high cost insurance crisis does not precisely impact upon the significance of the effective date of the statute, we do perceive the intent of the legislature in this regard as aspiring to a speedy death to the No-Fault Act. We do not, however, read into the desire to rid the books of an unpopular law an implication of a retroactive effect of the Financial Responsibility Law. Any concept of retroactivity is diminished by the statutory recital of the presumption against such an effect, see 1 Pa.C.S.A. Sec. 1926, and by reference to Pa.Const. art. I, Sec. 17 which forbids the enactment of any law impairing the obligation of contracts. An insurance policy is to be interpreted by the same rules governing any other contract. McCaffrey v. Knights of Columbia, 213 Pa. 609, 63 A. 189 (1906). 42 Accordingly, Benton's claim that upon physical receipt of the actual policy the coverage provided by the application ceased and a new policy with expanded coverage was "issued" constitutes an abrogation of general contract law and an unconstitutional impairment of such rights.9 Brisco contracted for certain coverage provided by Pennsylvania law when she made application to the Automobile Insurance Plan. At that time the applicable law was the No-Fault Act. To argue that she received the expanded coverage set forth in the Financial Responsibility Law upon receipt of the policy would grant her something for which she did not contract nor within her contemplation at the time of contracting.10 43 The Sec. 1921(c) guidelines also counsel us to consider the consequences of a particular interpretation of statutory language. This practical orientation provides a more concrete basis for our analysis of the effective date of the statute. We first note that the meaning of "issued" has been subjected to prior scrutiny and in reference to an insurance policy, has been found to be used in different senses. See generally 44 C.J.S. Insurance Sec. 262 et seq. On some occasions, "issued" may mean the preparation and signing of the instrument, as distinguished from its delivery to the insured. The term may also be construed to define the policy's delivery and acceptance whereby it becomes a binding mutual obligation. Agreement of the parties may determine the date of issuance of the policy.11 44 In addition, although the date of the policy does not necessarily determine the date of issue, when the words "date of issue of a policy" had been used to designate the date on which the policy becomes effective, this means the date which the policy itself bears rather than the date of actual execution or delivery. Id. Sec. 263. In Mutual Insurance Company v. Hurni Packing Company, 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235 (1923), the Supreme Court construed the "date of issue" of a life insurance policy as referring not to the actual execution of the policy or the time of its delivery but rather to the date of issue as specified by the policy itself. In Potts v. Metropolitan Life Insurance Co., 133 Pa.Super. 397, 2 A.2d 870 (1938), the Pennsylvania Superior Court utilized the authority of Hurni and held that the date of issue of a policy is defined by the policy itself. 45 The policy issued to Brisco12 does not expressly set forth the effective date of the policy but does state that the policy applies only to accident and losses which occur during the policy period as shown in the declarations. While the record does not contain a document labeled "Declarations,"13 it includes the coverage confirmation sheet listing "DATE OF INCEPT" as September 29, 1984. This being the most reliable record evidence of the policy's effective date, and since under the teachings of Hurni and Potts the policy encompasses the definitive statement of the date of issue, we conclude that September 29 is the date the policy was issued by GEICO. 46 Any other interpretation would result in unintended consequences. The actual receipt of the policy here only constituted a formalization of the terms agreed to in the application for insurance. Otherwise, the effectiveness of the policy's issuance would rest upon the uncertain event of receipt of the document through the mail. V. 47 We would agree that if the policy were "issued" after October 1, 1984 without mention of underinsured motorist coverage, coverage would be present by operation of law. See Johnson by Johnson v. Travelers, 348 Pa.Super. 278, 502 A.2d 206 (1985). Coverage occurring by operation of law is, however, confined to those situations where coverage becomes mandated by statute at the time of contracting, and not, as in this case, where the new law became effective after the effective date of the insurance contract. 48 The Pennsylvania legislature chose to enact a bright line statute making the new law effective only to those policies issued or renewed after October 1, 1984. The record supports a finding that the Brisco policy was issued prior to October 1, 1984 and was governed, at least until its renewal date, by the previous laws. We will, therefore, affirm the order of the district court denying application of the Financial Responsibility Law. 49 STAPLETON, Circuit Judge, dissenting. 50 In 1984, the Pennsylvania Legislature determined that it was desirable for all motorists to have underinsured motorist coverage. It therefore decreed that "[n]o motor vehicle liability insurance shall be delivered or issued for delivery in [the] Commonwealth, ... unless ... underinsured motorist [coverage is] provided therein...." 75 Pa.Cons.Stat.Ann. Sec. 1701(a) (1984). The legislature established October 1, 1984 as the effective date of this decree and stipulated that the new requirement "applies to insurance policies issued or renewed on or after the effective date...." Section 11 of the Supplemental Provisions of the Act of February 12, 1984, P.L. 53, No. 12, 1984 Pennsylvania Legislative Service 129 (Purdon) (codified at 75 Pa.Cons.Stat.Ann. Sec. 1701 note). Since Ms. Brisco's policy was her first with GEICO and not a renewal, the issue for decision is whether or not her policy was "issued ... on or after" October 1, 1984.1 The court equates issuance with the inception of coverage and concludes that it was not. I disagree. 51 When the Pennsylvania legislature specified that the new requirement would apply to "insurance policies issued ... on or after the effective date," it had in mind something tangible that could be "delivered or issued for delivery"; it equated the issuance of a policy with the creation of a policy document. This reading is not only supported by the text of the statute but also by considerations relating to the legislative objective of the statute and by industry usage and practice. 52 The Pennsylvania Legislature set October 1, 1984 as the effective date of its legislation in order to provide advance notice of the new requirement. Such notice having been given, the legislature undoubtedly wished as many motorists as possible to have underinsured motorist coverage as soon as possible. It recognized, however, that the scope of insurance is normally evidenced by a written policy and that additional coverage could not be included in written policies that had left the hands of the insurer. I think it fair to assume that the legislature reconciled these competing considerations by requiring the additional coverage in all policy documents that had not already left the hands of the insurer on the effective date. Accordingly, I think it very doubtful that the legislature intended to give an insurer the option on or after October 1st of either including the new coverage in the policy document or leaving it out and specifying an earlier date for the inception of coverage. 53 Moreover, this reading of the phrase "issuance of a policy" or "policy issuance" is consistent with industry usage and practice as reflected in Pennsylvania's Automobile Insurance Plan (the Plan), under which Ms. Brisco's policy was issued. As we shall hereafter see, the Plan uses these phrases to denote the creation of a policy document and makes it clear that policy issuance is quite distinct from the commencement of coverage. 54 With this understanding of the meaning of policy issuance, I turn to the issue of whether the policy document in this case was created before October 1, 1984. The application form that Ms. Brisco signed provided in part as follows: 55 This application having been completed and duly executed shall be from the effective date and time shown below, evidence of insurance in the limits and coverages specified, subject to the following conditions: 56 1. Coverage under this evidence of automobile insurance is effective from the effective date and time stated herein. This evidence of automobile insurance will terminate immediately upon (a) the issuance of the policy applied for,.... 57 2. A premium charge will be made for these coverages if the policy, when and as issued, is not acceptable by the insured. 58 3. The insurance afforded hereunder shall be subject to all the terms and conditions of the policy form prescribed for use in accordance with the rules of the Automobile Insurance Plan. 59 Effective Date and time 9 28 84 9:00 AM Month Day Year Hours PM 60 My signature hereon represents certification of the Statement of the Producer of Record on the face of this application AND I certify this application is submitted pursuant to the effective date provisions contained in the Automobile Insurance Plan of this state. 61 --/s/--------------- Date 9/28/84 Hour 9:00 A.M. PRODUCER'S SIGNATURE 62 App. at 179 (emphasis added). 63 These provisions indicate to me that Ms. Brisco received a binder pursuant to Section 12 of the Pennsylvania Automobile Insurance Plan2 which provided her with coverage from the date of the application until the "issuance of the policy applied for." It is undisputed that GEICO did not execute the policy document evidencing the "policy applied for" until after October 1st. While it is true that there was coverage before that date, I cannot believe the drafters of the Motor Vehicle Financial Responsibility Law intended that the existence of coverage under a binder would excuse an insurer from including the new coverage where the policy itself remained in the insurer's hands as of October 1, 1984. Accordingly, I conclude that Ms. Brisco's policy was "issued on or after" October 1, 1984. 64 Even if Ms. Brisco's coverage did not take effect immediately, however, the result should be the same. As the court notes, in the absence of special arrangements for immediately effective coverage, the Plan mandates that coverage become effective "at 12:01 A.M. on the day following the date of mailing of the application" unless the postmark is not legible, in which event coverage commences "at 12:01 A.M. on the day following receipt [of the application] by the Plan Office." Section 12, Supp. Appendix 10. This effective date must be stated in the notice of designation forwarded by the Plan to the applicant and the designated company. The Plan then goes on to mandate the issuance of a policy or a written binder at a later time. Thus, Section 14 provides in part: 65 A. Original Policy--Upon receipt of the notice of designation and the premium or deposit from the Plan, the designated company shall: 66 * * * 67 * * * 68 (2) within fifteen days issue a policy if all information necessary for the company to fix the proper rate is contained in the application form, such policy to become effective 12:01 A.M. on the date specified by the Plan in the notice of designation, or 69 (3) within fifteen days issue a binder if all information necessary for the company to fix the proper rate is not contained in the application form, such binder to become effective 12:01 A.M. on the date specified by the Plan in the notice of designation, ... 70 Supp.App. at 7 (emphasis added). 71 I would hold that the policy in this case was "issued" no earlier than the date upon which GEICO satisfied its responsibility under these provisions of Section 14 and, accordingly, that the underinsured motorist coverage required by law should be read into Ms. Brisco's policy. * Honorable Clarkson S. Fisher of the United States District Court for the District of New Jersey, sitting by designation 1 Under Sec. 1751 of the Financial Responsibility Law, insurers providing financial responsibility must organize and maintain an assigned claims plan in a fashion similar to that which existed under the No-Fault Act 2 At the time of the accident, Benton was residing with his daughter. There is no dispute that he was entitled to coverage under his daughter's insurance plan 3 This case represents an example of procedural conformity gone awry. Discovery requests were ignored, filing deadlines went unheeded, and motions were not decided. Of paramount concern was Benton's failure to respond timely to GEICO's request for admissions under Fed.R.Civ.P. 36. This lackadaisical compliance created confusion because it is unclear whether the district court's entry of summary judgment in favor of GEICO resulted from GEICO's Rule 36 requests being deemed as admitted under Rule 36(a), or whether Benton's eventual response to the requests, in addition to his response to GEICO's motion for summary judgment and his own cross motion for summary judgment, were considered by the court in entering judgment We will assume that since the language of the district court order indicates that Benton's response was considered, and also because GEICO's request for admissions could be interpreted as asking for conclusions of law, impermissible under Rule 36, (see Fed.R.Civ.P. 36 advisory committee's note), we will proceed to the substantive points of the matter before us. 4 In both the table of contents of the Appendix and during the course of oral argument the confirmation of coverage sheet was referred to as the "declarations." 5 Under Section 12 of the Plan if an applicant requires that coverage become effective at the time of application, the producer of the record (here, the insurance broker) must indicate the time and date when so required. Coverage will become effective upon application if: 1 the producer of record and the applicant certify, on a form prescribed by the Plan, the date (day, month and year) and time (hour, A.M. or P.M.) that the application was written, and 2 the producer forwards to the Plan Office, no later than the day after the application is written two copies of such form as prescribed by the Plan and simultaneously will supply the applicant with a copy of said affidavit duly executed by the producer, and 3 the producer of record maintains appropriate records of all risks for which he has designated the time and date of coverage and agrees that he will permit inspection or photocopying of such office records by the Plan or by a company representative. The inspection or photocopying will be limited to an applicant whose effective date and time of coverage is in question due to the occurrence of an accident or claim arising under the policy issued under this Section 6 The dissent construes Brisco's application to the Automobile Insurance Plan as creating a "binder," but does not indicate which entity became obligated under the "binder." We believe that the "binder" nomenclature more properly describes a situation where a specific insurance company, as contrasted to a company-to-be-designated, becomes contractually obligated to an insurance applicant for a short period of time until coverage commences for a longer period under the terms set forth in a policy We have concluded that coverage initiated on 12:01 a.m. of the day after application and that the application and the policy were not separate and distinct outlines of coverage but merely represented different evidence of that coverage. 7 The exact statutory language to be construed is "issued for delivery" as used in Sec. 1731(a) and "issued" as used in the Supplemental Provisions. The dissent notes that under the Sec. 1933 of the Statutory Construction Act the specific language of the Supplemental Provisions that the Financial Responsibility Law applies to policies issued or renewed after October 1, 1984 controls the general recitation of Sec. 1731(a) that "no ... insurance shall be delivered or issued for delivery...." We perceive neither conflict between the provisions require a finding that one controls the other nor substantive difference between the phrases. Therefore, when appropriate, we will utilize either term or its derivative interchangeably. 8 Section 1921(c)(8)'s directive to examine legislative interpretation of the statute is not helpful since no such annotation exists One non-legislative viewpoint of the effective date is that if a policy was in force before October 1, 1984, the Uninsured Motorist Act as opposed to the Financial Responsibility Law would apply even if the accident occurred after the statutory change. Ronca, J., Sloane, L., and Mundy, J., Pennsylvania Motor Vehicle Responsibility Law, Sec. 6.15 (1986). This is consistent with our conclusion that a policy effective prior to the new law is governed by the old law. 9 As noted in our discussion of the facts of this case, the application document itself provides that the application as evidence of automobile insurance terminates upon issuance of the policy. Benton construes this provision as support for his argument that new coverage was initiated upon receipt of the actual policy We dispute this characterization on two grounds. First, the application speaks in terms of its and the actual policy's value as evidence that insurance does in fact exist. This language clearly states that the application will serve as evidence of insurance coverage until the actual policy can fulfill this role. Receipt of the policy does not then terminate the specific coverage enjoyed by the insured prior to physical possession of the policy; the policy merely replaced the application as physical evidence of insurance coverage. We note here that, in accord, the Financial Responsibility Law allows a copy of the application for insurance to constitute acceptable proof of coverage indicating financial responsibility. 67 Pa.Code Sec. 219.6(b)(3). The second reason we reject the theory that receipt of the policy superceded the specific coverage provided by the application results from our finding that the policy was in force prior to October 1. 10 See n. 11, below 11 In Benton's response to interrogatories presented by GEICO, the question requesting the date of issue of policy was answered as "September 28, 1984." Although we have already decided that the date of issue is a legal question which could not be admitted by the parties, see, n. 3, id., we do note this admission as some evidence of the intent of the parties at the time of application 12 We note that Brisco discarded the actual policy and insurance card. The record does, however, contain a copy of a policy certified by affidavit to be identical to the one sent to Brisco 13 See n. 4, above 1 The pertinent statutory language is not "delivered or issued for delivery." While that language is helpful in deciding what the legislature meant by "issued," another section of the Act specifically describes the policies to which the Act applies, and it governs the issue before us. See 1 Pa.Cons.Stat.Ann. Sec. 1933 (1972) (Pennsylvania Statutory Construction Act) (specific provision prevails over general one) 2 The relevant provisions of Section 12 are as follows: Should the applicant require that the coverage applied for become effective at the time of application, the producer of record shall indicate the time and date when coverage is required. The coverages and limits for which the applicant is applying shall become effective as of the time the application is completed provided: 1 the producer of record and the applicant certify, on a form prescribed by the Plan, the date (day, month and year) and time (hour, A.M. or P.M.) that the application was written, and 2 the producer forwards to the Plan Office, no later than the day after the application is written two copies of such form as prescribed by the Plan and simultaneously will supply the applicant with a copy of said affidavit duly executed by the producer, and 3 the producer of record maintains appropriate records of all risks for which he has designated the time and date of coverage and agrees that he will permit inspection or photocopying of such office records by the Plan or by a company representative. This inspection or photocopying will be limited to an applicant whose effective date and time of coverage is in question due to the occurrence of an accident or claim arising under the policy issued under this Section In no event shall coverage be effective prior to the time shown on the application. The Plan shall forward to the designated carrier the original copy of the application form, the notice of the effective date of the coverage (certification form) and the deposit, same to be credited by the company against the policy premium, if for any reason the applicant refuses to accept the policy, the designated company shall retain the short rate earned premium for the period of coverage or the sum of $10.00 per car, whichever is greater, and return the balance to the applicant.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0194n.06 Filed: April 11, 2008 No. 07-3347 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MARGARET M. BRADY, ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE JOHN E. POTTER, Postmaster General; ) NORTHERN DISTRICT OF OHIO UNITED STATES POSTAL SERVICE, ) ) Defendants-Appellees. ) ) Before: COLE, GIBBONS, and ROGERS, Circuit Judges. Rogers, Circuit Judge. Plaintiff Margaret M. Brady appeals the district court’s grant of summary judgment in favor of defendants Postmaster General and United States Postal Service. After voluntarily resigning her position with the Postal Service, Brady, who suffers from diabetes, sued the defendants on the grounds that: (1) they had discriminated against her in violation of the Rehabilitation Act, and (2) they had violated her rights under the Family Medical Leave Act. The district court held that Brady could not recover under the Rehabilitation Act because she was neither disabled nor regarded as disabled by her employer. On the FMLA claims, the district court granted summary judgment for the defendants on the basis that they had neither interfered with Brady’s exercise of her FMLA rights nor retaliated against her for exercising those rights. Brady disputes those holdings, but because her arguments lack merit, we affirm. No. 07-3347 Brady v. Potter I. Brady, who was first diagnosed with Type I diabetes in 1983, was hired by the Postal Service as a clerk on December 5, 1998. She resigned on October 15, 2004. Throughout her employment with the Postal Service, Brady regulated her insulin either through shots or through an insulin pump, which she wore on her side. She also took simpler precautions to manage her condition, such as maintaining a balanced diet, maintaining an appropriate level of physical fitness, and keeping sodas in the refrigerator at work to help regulate her blood sugar. Those measures allowed Brady to live a relatively normal life free of any major limitations. In fact, when she was initially hired, her doctor placed two minimal restrictions on her employment — that she not operate dangerous machinery or climb ladders — and almost five years later, her doctor certified that she was not subject to any physical restrictions. During 1998, 1999, and 2000, Brady had an excellent attendance record. She was never absent in 1998 or 1999, and she only missed work once or twice in 2000. Brady apparently had her first diabetes-related episode at work on January 9, 2001, when she became disoriented and fell onto a cart. She then went to the bathroom, where she fell down again and hit her head, which prompted her co-workers to call an ambulance to take her to the hospital. Brady missed work for the rest of that day and the next day as a result of this incident. Approximately two months later, on March 22, 2001, Brady started feeling ill at work. She claims that the post office was very warm on that particular day because the exterior dock doors had -2- No. 07-3347 Brady v. Potter been closed, and she further claims that the high temperature made her feel ill. Brady further alleges that she went to the bathroom to check her blood sugar level, which she discovered to be low. After checking her blood, Brady decided to go home for the day. She says that decision caused a confrontation with Jack Thomas, her supervisor that day. Thomas tells a slightly different story. He says that the temperature outside was 33 degrees and that although he had closed the exterior dock doors because other employees were cold, he compromised by leaving the windows open. Upon his closing the doors, according to Thomas, Brady ran to the bathroom claiming that she was hot. Thomas says that Brady became angry about the doors being closed and yelled at him and said that she was going home. Both parties are in agreement that Brady left work after completing the necessary request-for-absence paperwork. Five days after that absence, Brady was given a letter of warning for “conduct unbecoming” as a result of the unprofessional conduct that she displayed during her confrontation with Thomas. The letter of warning, however, was eventually dropped through the Postal Service’s grievance system. On May 5, 2001, Brady missed work because of symptoms related to her diabetes. She was initially denied FMLA leave on the ground that she had not provided proper medical documentation, but the absence was later approved as FMLA leave. Representatives from the Postal Service and her union subsequently met with her to explain the information that she was required to provide in order to be approved for FMLA leave. Brady’s hostile attitude at that meeting led to imposition of a seven-day suspension, but that punishment was also dropped through the grievance process. -3- No. 07-3347 Brady v. Potter On June 13, 2002, Brady was late to work because of an episode of hypoglycemia. She was granted FMLA leave for the portion of the day that she missed because the medical certification form that she submitted indicated that she had been incapacitated on June 13. The form, however, was deemed an insufficient basis for approving future FMLA leave because it indicated that Brady would not need to work intermittently or on a less than full schedule, and because it failed to provide an estimate of the likely duration and frequency of future episodes of incapacity. Therefore, when Brady missed work on dates after June 13, 2002, she was asked to submit additional documentation showing that she had been incapacitated on those dates as well. Despite being informed that the June 13 form was only sufficient for that date, Brady persisted in her belief that the June 13 form was sufficient to cover future intermittent absences as well. Thus, she repeatedly submitted copies of her June 13 form whenever she missed work after June 13, and each time she re-submitted the June 13 form her request for FMLA leave was denied. The record indicates that all of Brady’s requests for FMLA leave up to and including June 13, 2002, were approved, while all requests after June 13 were denied. On December 19, 2002, Brady had a confrontation with supervisor Larry Nekic. She called in sick the next day and then did not return to work for the next two months. She requested FMLA leave, and Postal Service records — which Brady has not contradicted — show that she never submitted any FMLA documentation relating to her absence. Because Brady was continuously absent without leave for approximately two months, the Postal Service decided in February of 2003 -4- No. 07-3347 Brady v. Potter that she would be terminated effective March 29, 2003. Through the grievance process, however, Brady’s removal was reduced to a long-term suspension without back pay. Starting in April of 2004, Brady took 12 weeks of FMLA leave in order to give birth to her son. She returned to work in July of 2004. On October 5, 2004, Brady was informed that she had used her entire 12-week allotment of FMLA leave for 2004. Less than two weeks later, on October 15, 2004, Brady resigned her position through a letter to her supervisor, Stan Long. In her letter, Brady cited her health and family as the reasons for her departure, and she praised her supervisor for his “strong and fair leadership.” Nearly three months later, Brady filed this lawsuit. Her complaint presented allegations that the Postal Service discriminated against her in violation of the Rehabilitation Act, interfered with her rights under the Family Medical Leave Act, and retaliated against her for exercising her rights under the Family Medical Leave Act.1 The district court granted summary judgment in favor of the defendants on all of Brady’s claims. Brady filed four EEOC complaints during her employment with the Postal Service. The first was filed on June 15, 2001, concerning the letter of warning that she received in March of 2001 for conduct unbecoming. The second complaint was filed on December 23, 2002, concerning the Postal Service’s refusal to accept the FMLA documentation that Brady had repeatedly submitted in the second half of 2002 despite being informed that it was insufficient. An administrative judge issued a decision against Brady on both of those claims on August 18, 2004. Brady’s third EEOC claim 1 Brady’s complaint did not actually mention the interference allegation by name. Instead, it alleged retaliation while citing the portion of the statute applicable to interference claims. The district court interpreted the complaint as asserting both a retaliation and an interference claim. -5- No. 07-3347 Brady v. Potter was made on February 24, 2003, and it pertained to non-sexual harassment. Her fourth claim, which was made on April 28, 2003, stemmed from her proposed termination that was ultimately reduced to a long-term suspension without pay. The third case was closed on January 12, 2005, while the fourth case was closed a year earlier, on February 6, 2004. Only the first two EEOC complaints were made the subject of this lawsuit. II. The defendants are entitled to summary judgment on Brady’s Rehabilitation Act claim because Brady is not disabled, nor was she regarded her as being disabled by her employer. In a disability discrimination case brought under the Rehabilitation Act, the plaintiff must establish a prima facie case by proving that: (1) the plaintiff is disabled, (2) she is otherwise qualified for the job, with or without reasonable accommodation, (3) she suffered an adverse employment action, (4) the employer knew or had reason to know of the plaintiff’s disability, and (5) either the plaintiff was treated less favorably than similarly situated non-disabled employees, or, after the adverse employment action, the plaintiff was replaced by a non-disabled person or the plaintiff’s position remained open. See Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007). To satisfy the first element, Brady need not prove that she is actually disabled if she can show that the Postal Service regarded her as being disabled. See Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (citing 42 U.S.C. § 12102(2)(C)). Because Brady cannot satisfy the first element, summary judgment in favor of the defendants was appropriate since there is no way that a reasonable jury could rule in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). -6- No. 07-3347 Brady v. Potter Brady’s diabetes is not a disability because it is not a “physical or mental impairment that substantially limits one or more major life activities.” 29 U.S.C. § 705(9)(B). Major life activities are those “that are of central importance to daily life,” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002), such as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Mahon, 295 F.3d at 590 (quoting 45 C.F.R. § 84.3(j)(2)(ii)). A substantial limitation of such an activity exists when the individual’s ability to perform that activity is limited to a large degree. See Toyota Motor Mfg., 534 U.S. at 196-97. It is not enough for the impairment to cause merely moderate or intermittent interruptions in the performance of the activity. See Mahon at 590-91 (citing Toyota Motor Mfg., 534 U.S. at 196-97). Although Brady’s diabetes is an impairment, it did not substantially limit any major life activities. All of the evidence indicates that Brady leads a relatively normal life that is free of any major limitations. Her condition has, at most, a moderate impact on her major life activities. In fact, her impairment imposed such slight limitations on her life during her employment with the Postal Service that she was able to go for over a year without missing a single day of work. Additionally, when she was originally hired by the Postal Service, her doctor placed minimal restrictions on her work, and her physician later certified that she was able to work with no restrictions. Her claims that she is disabled are also belied by her EEOC testimony, in which she said that her condition was easily managed with the use of her insulin pump and with simple precautions like maintaining an appropriate diet, getting sufficient exercise, and keeping sodas in the refrigerator at work to help regulate her blood sugar. Brady’s condition must be analyzed in light of these therapeutic measures. -7- No. 07-3347 Brady v. Potter The Supreme Court held in Sutton v. United Air Lines Inc., 527 U.S. 471, 482 (1999), that the curative effects of such measures must be considered in determining whether an individual is disabled. Despite ample evidence that she is not disabled, Brady asserts that she is substantially limited in the major life activities of working and eating.2 While she missed a few days of work because of her diabetes, there is no indication that her diabetes-related absences constituted a substantial limitation on her ability to work. She had almost no medical restrictions on the type of work that she could perform, and there is no evidence that she has ever been determined to be unable to perform any jobs. Therefore, it cannot be said that she is limited in the activity of working. Finally, the evidence also indicates that Brady is not substantially limited in the major life activity of eating. Brady herself testified that there are no specific restrictions on what she can eat. Instead, she is merely required to monitor the quantity of what she eats. If the need to watch what one eats constitutes a disability, then almost everyone is disabled. Because Brady was not disabled, she can only satisfy the first element of her prima facie case if she can show that she was regarded as disabled by the Postal Service. She cannot meet that burden because there is no evidence showing: (1) that the Postal Service mistakenly believed that she had a physical or mental impairment that substantially limits one or more major life activities, or (2) that 2 It is unclear whether “working” is a major life activity. In Sutton, the Supreme Court noted that there are conceptual problems with considering “working” to be a major life activity, 527 U.S. at 491, and in Toyota Motor Mfg., the Supreme Court questioned the validity of the regulation that identifies “working” as a major life activity. See Toyota Motor Mfg., 534 U.S. at 194. For the sake of argument, we assume, without deciding, that working is a major life activity. -8- No. 07-3347 Brady v. Potter the Postal Service correctly believed that she had an impairment but mistakenly believed that the impairment substantially limited one or more major life activities. See Mahon, 295 F.3d at 592 (citing Sutton, 527 U.S. at 489). Here, there is no evidence indicating that the Postal Service regarded her as having substantial limitations on any major life activities. It is true that the Postal Service was aware of Brady’s diabetes, but awareness of an impairment is not enough to prove that the impairment was regarded as substantially limiting major life activities. It is also true that the Postal Service made Brady submit to a medical review before returning to work on at least one occasion, but that is not evidence that she was regarded as disabled. To the contrary, it is evidence that the Postal Service was uncertain as to her condition. By allowing her to return to work following her examination, the Postal Service actually appears to have accepted the certification of her health and thereby regarded her as not disabled. Further, there is no evidence that the Postal Service ever considered her to be unfit for any positions, nor is there evidence that the Postal Service placed any restrictions on her employment. Accordingly, Brady’s Rehabilitation Act claim must fail as a matter of law. The defendants also ask this court to affirm on the ground that Brady did not suffer an adverse employment action. Because Brady was not disabled, we need not reach that issue. III. The defendants are also entitled to summary judgment on Brady’s FMLA claims. First, Brady has waived her FMLA retaliation claim by not addressing it in her opening brief. See Marks -9- No. 07-3347 Brady v. Potter v. Newcourt Credit Group, Inc., 342 F.3d 444, 462 (6th Cir. 2003) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (en banc); Bickel v.Korean Air Lines Co., Ltd., 96 F.3d 151, 153- 54 (6th Cir. 1996)). Second, the defendants are entitled to summary judgment on Brady’s FMLA interference claim because the Postal Service did not interfere with Brady’s FMLA rights during the period encompassed by the statute of limitations — i.e., the twenty-four months preceding Brady’s lawsuit. See 29 U.S.C. § 2617(c)(1). During that time period, there was no interference with Brady’s FMLA rights because she was not denied FMLA benefits to which she was entitled. See Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 577-78 (6th Cir. 2007) (citing Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)). Because proof of such a denial is essential to Brady’s prima facie case, her failure to present such proof means that the defendants are entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The only denial of FMLA benefits during the statutory period occurred when Brady sought FMLA leave for her two-month absence in early 2003 that ultimately resulted in a long-term suspension. Contrary to being an interference with Brady’s rights, the denial of benefits in that instance was entirely appropriate because Brady had refused to provide any medical documentation to support her request. Brady, however, claims that it was an interference with her FMLA rights for the Postal Service to deny her request because she had previously provided the Postal Service with documentation that was sufficient to cover her two-month absence in 2003. Brady’s argument is wrong because her previously submitted documentation did not provide a sufficient basis for approving her two-month absence as FMLA leave since it stated that she would not need to be absent - 10 - No. 07-3347 Brady v. Potter from work intermittently. As a result, the Postal Service correctly requested new documentation showing that Brady’s absence was due to incapacitation by her diabetes. By refusing to provide such documentation, Brady essentially forfeited her ability to receive FMLA benefits. It is true that the two-year statute of limitations on FMLA claims is extended to three years if the case involves a willful violation of the FMLA. See 29 U.S.C. § 2617(c)(2). In this case, the two-year limitations period is appropriate because there was no violation — much less a willful violation — during the twelve-month period preceding January 3, 2003, the cut-off date for the two- year statute of limitations. The only possible violations during that additional year were the multiple rejections of Brady’s FMLA documentation after June 13, 2002. Even if those rejections were FMLA violations, however, they could not be considered willful violations because the FMLA Coordinator for the Northern Ohio District of the United States Postal Service said that he relied on the advice of Postal attorneys in rejecting Brady’s documentation. Reliance on an attorney’s opinion negates a finding of willfulness. See Willis v. Hartzell Propeller Inc., 497 F. Supp. 2d 913, 919 (S.D. Ohio 2007) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 130 (1985)). IV. For the foregoing reasons, the judgment of the district court is AFFIRMED. - 11 - 

967 F.2d 593 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.UNITED STATES of America, Plaintiff-Appellee,v.Rafael Gomez GONZALEZ, Defendant-Appellant. No. 91-30114. United States Court of Appeals, Ninth Circuit. Submitted May 7, 1992.*Decided July 8, 1992. Before PREGERSON, TROTT and KLEINFELD, Circuit Judges. 1 MEMORANDUM** 2 Rafael Gomez Gonzalez was convicted of distribution of cocaine, and possession with intent to distribute cocaine, and he was sentenced under the United States Sentencing Guidelines as a career offender. He appeals, disputing the sufficiency of the evidence used to convict him, the validity of a search warrant used to seize evidence against him, the fact that a government confidential informant ("CI") was paid on a contingent fee basis, and his sentence. We have jurisdiction under 28 U.S.C. § 1291 (1988), and we affirm Gonzalez's conviction, but vacate his sentence. 3 1. Did the district court err in denying Gonzalez's Fed.R.Crim.P. 29 motions for judgment of acquittal? 4 Gonzalez claims the judge should have granted his Fed.R.Crim.P. 29 motion on count one because Gonzalez's son, not Gonzalez himself, actually sold the cocaine to Detective Tangen on August 16, 1990. Gonzalez's son did testify that he sold the drugs to Detective Tangen. We review de novo the denial of a Fed.R.Crim.P. 29 motion for judgment of acquittal. See United States v. Mundi, 892 F.2d 817, 820-21 (9th Cir.1989), cert. denied, 111 S.Ct. 1072 (1991). The substantive inquiry is the same as for attacks on the sufficiency of the evidence: "whether, when viewed in the light most favorable to the government, the evidence adduced at trial was sufficient for a rational [trier of fact] to find [the defendant] guilty beyond a reasonable doubt." Id. 5 We reject Gonzalez's claim on count one. Detective Tangen testified he bought cocaine from Gonzalez, not Gonzalez's son, and could identify Gonzalez because he stood about a foot from Gonzalez in bright daylight. The unwitting informant, Raul Delgado, and the CI, Victor Smith, both corroborated Detective Tangen's account. The trial court relied on Tangen's identification. It rejected Gonzalez's son's testimony: 6 [t]he testimony to controvert [Tangen's identification] is ... unbelievable.... I cannot imagine a more tragic kind of setting ... but as far as my making a finding of fact, there is no question in my mind that this young man was ... putting his neck in a noose, so to speak, ... but also stepping forward and furnishing a version of ... events which, as far as I'm concerned, through his lips is no more believable than it is through his father's lips. 7 Tangen knew he had bought cocaine from Gonzalez, not Gonzalez's son. Viewed in the light most favorable to the government, Mundi, 892 F.2d at 820-21, there was sufficient evidence to convict Gonzalez on count one. 8 Gonzalez also claims the judge should have granted his Rule 29 motion on count two because (1) he was not in "possession" of the cocaine seized from his bedroom, and (2) he did not have the "intent to distribute" that cocaine under 21 U.S.C. § 841 (1988). As to the first claim, the cocaine found in the bedroom was packaged like the cocaine sold by Gonzalez to Detective Tangen, Gonzalez admitted he usually slept in the bedroom, and papers bearing his name were found in the bedroom. Viewed in the light most favorable to the government, Mundi, 892 F.2d at 820-21, the evidence was sufficient to establish constructive possession by Gonzalez of the cocaine in the bedroom. See United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). 9 As to the second claim related to count two, Gonzalez argues the amount of cocaine found was too small for the court to infer intent to distribute. We reject this argument. Although weight traditionally is used to infer intent to distribute, see, e.g., United States v. Valentin, 569 F.2d 1069, 1071 (9th Cir.1978), other facts also may lead to such an inference, see, e.g., United States v. Savinovich, 845 F.2d 834, 836-37 (9th Cir.), cert. denied, 488 U.S. 943 (1988) (presence of scales and weapons may yield inference of intent to distribute). Gonzalez had sold cocaine within the previous week to three persons, including Detective Tangen; the cocaine seized was packaged similarly to cocaine actually sold by Gonzalez to Detective Tangen; and Gonzalez had a relatively large amount of cash in the house, which a DEA agent testified was consistent with drug dealing. Viewed in the light most favorable to the government, Mundi, 892 F.2d at 820-21, this evidence is enough to create an inference of intent to distribute. 10 2. Did the district court err in denying Gonzalez's motion to suppress based on allegedly material omissions in the affidavit supporting the search warrant? 11 Gonzalez argues Detective Poindexter's affidavit in support of the search warrant omitted material information that requires suppression of the evidence obtained in the search. He complains the affidavit omitted the following facts: (1) the CI called the Task Force to demand more money; (2) neither the CI nor Detective Tangen ever had met Gonzalez before the August 16 purchase of cocaine; and (3) Tangen first learned Gonzalez's name from a police picture of Gonzalez. 12 We review de novo the importance of omissions in an affidavit in support of a search warrant. See United States v. Hernandez, 937 F.2d 1490, 1494 (9th Cir.1991) (per curiam). A search warrant is valid unless the affiant deliberately or recklessly omitted facts that, if included, would have precluded a finding of probable cause. See United States v. Stanert, 762 F.2d 775, 780-82 (9th Cir.), modified on other grounds, 769 F.2d 1410 (9th Cir.1985). "[T]here is 'a presumption of validity with respect to the affidavit supporting the search warrant'...." United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir.1987) (citation omitted). 13 We reject Gonzalez's arguments. Inclusion of the omitted material would not have defeated probable cause because that material cannot undo the fact that Gonzalez sold cocaine to an undercover police officer on the premises to be searched. Although Tangen never had seen Gonzalez before, he did see Gonzalez when Gonzalez sold him cocaine. Tangen was able to identify Gonzalez as the man who had sold him cocaine. Although the CI demanded more money, he did not do so until the day the Task Force applied for the warrant, five days after Gonzalez sold the cocaine to Detective Tangen. Had the omitted material been included, probable cause would have remained. 14 3. Did the district court err in denying Gonzalez's motion to dismiss for outrageous governmental conduct in agreeing to pay an informant a contingency fee? 15 Gonzalez claims his indictment must be dismissed because the government agreed to pay an informant/witness a contingent fee. However, because Gonzalez did not raise this issue in the district court, we will review only for plain error. See United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100 (1984); cf. United States v. Winslow, Nos. 91-30043, 91-30044, 91-30091, slip op. 3361, 3367 (9th Cir. Apr. 1, 1992). 16 There was no plain error. see United States v. Shelton, 588 F.2d 1242, 1246 (9th Cir.1978) ("Informant fees [paid to informants who testify] are neither unlawful nor unduly prejudicial per se"), cert. denied, 442 U.S. 909 (1979); United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir.1987) (en banc), (overruling Williamson v. United States, 311 F.2d 441 (5th Cir.1962)), cert. denied, 484 U.S. 1026 (1988). 17 4. Did the district court err in sentencing Gonzalez as a career offender? 18 Gonzalez claims he improperly was sentenced as a career offender. He disputes two of his prior convictions: (1) a 1984 California guilty plea for possession of heroin, and (2) a 1989 federal conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 924 (1988). He admits to a 1977 California assault conviction. Because neither of the two disputed convictions is valid for career-offender purposes, we vacate Gonzalez's sentence. See U.S.S.G. §§ 4B1.1, 4B1.2, 4A1.2 (1990). 19 Under U.S.S.G. § 4B1.1 (1990), 20 [a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 21 For purposes of sentencing, Gonzalez does not dispute he was over eighteen at the time of the instant controlled substance offense. 22 The evidence provided to the district court showed that Gonzalez pleaded guilty in 1984 in California state court to possession of heroin, but failed to appear for sentencing. At the time of his sentencing in the present case, Gonzalez had not been sentenced in the state heroin case. Under the Guidelines, "[t]he date that a defendant sustained a conviction shall be the date the judgment of conviction was entered." U.S.S.G. § 4B1.2(3) (1990). Because Gonzalez was not sentenced on the state heroin crime, judgment was not entered, and it cannot be used in the career-offender calculation. 23 The district court need not allow Gonzalez to profit from his own wrongdoing, however. This case may be one in which upward departure is appropriate, if the sentencing judge determines that Gonzalez's criminal history score, which will not include the California heroin charge, does not adequately reflect the seriousness of his past criminal conduct. See U.S.S.G. §§ 4A1.3(d)-(e) (1990). 24 We note that the latest version of the Guidelines states that "a conviction for which the defendant has not yet been sentenced is treated as if it were a prior sentence ... if a sentence resulting from such conviction otherwise would have been counted." U.S.S.G. § 4A1.2(4); id. Appendix C (amendment # 381) (1991). This amendment may not retroactively be applied to Gonzalez, see United States v. Sweeten, 933 F.2d 765, 772 (9th Cir.1991) (per curiam). 25 Gonzalez's second disputed conviction, felon in possession of a firearm, also may not be counted in the career-offender calculus because it is not a "crime of violence" under the post-1989 version of U.S.S.G. §§ 4B1.1 and 4B1.2, under which Gonzalez was sentenced. See United States v. Sahakian, No 91-10199. slip op. 5975, 5978-81 (9th Cir. May 26, 1992) ("being a felon in possession [of a firearm] is not a ... crime of violence under the 1989 amendment" to U.S.S.G. § 4B1.2).1 Accordingly, because neither of his two disputed convictions may be used, Gonzalez improperly was sentenced as a career offender. 26 Finally, we note the district court failed to append to the Presentence Report written findings regarding matters disputed and resolved verbally by the district court at sentencing. See Fed.R.Crim.P. 32; United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 & n. 5 (9th Cir.1990) (en banc). 27 We AFFIRM Gonzalez's conviction, but VACATE Gonzalez's sentence, and remand for resentencing, and for compliance with the procedural requirements of Fed.R.Crim.P. 32(c)(3)(D). * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Gonzalez also claims the district court should have departed downward from the applicable sentencing range. However, Gonzalez correctly admits the district court noted its discretion, and rejected his request for a downward departure. In such circumstances, we lack jurisdiction to review the failure to depart. United States v. Sanchez, 914 F.2d 1355, 1363-64 (9th Cir.1990), cert. denied, 111 S.Ct. 1626 (1991)

183 Ga. App. 271 (1987) 358 S.E.2d 661 EARNEST v. MERCK. 74560. Court of Appeals of Georgia. Decided June 10, 1987. Donald W. Huskins, for appellant. George D. Lawrence, for appellee. BIRDSONG, Chief Judge. Summary Judgment — Corporate Veil. On October 31, 1985, Charles Earnest purchased a home from Executive Builders, Inc. The home was located near Lake Sinclair. Its source of water was a deep well. Earnest apparently dealt with his sister-in-law, Kathy Earnest, in the negotiations for the sale of the house. Kathy Earnest was an agent for Merck Realty. The home was built and owned by Executive Builders, and John Merck was the corporation's president. Executive *272 Builders used Merck Realty as the selling agent. John Merck was the president of Merck Realty. John Merck also was the broker sponsoring Merck Realty. During the negotiations for the sale of the house and land, Charles Earnest asked his sister-in-law about the water supply and Kathy referred Charles Earnest to John Merck. Merck informed Earnest that the well should supply approximately four gallons of water per minute which should be sufficient to supply domestic needs. Charles Earnest decided to purchase the house. The real estate sales contract was signed by Earnest as purchaser and reflected the selling agency as Merck Realty. The agent was shown as Kathy Earnest and the seller was shown as Executive Builders, Inc. with John Merck signing as president. The warranty deed from Executive Builders was signed by John Merck, as president. Also the record contains a copy of the contract between the well digger and Merck. That contract shows the well digger as the one party and the other as John Merck on behalf of Merck Realty. The well contract shows that the services were rendered on behalf of Merck Realty Company. After Earnest accepted delivery of the house, in just a few days, it became apparent the well would not deliver even 2 or 3 gallons a minute and as a result the water supply for the house was wholly inadequate. Extended negotiations for an adequate water supply did not result in an acceptable compromise. Merck sued the well digger for breach of contract and recovered almost $5,000 in damages. However, none of that money has been credited to Earnest. It is uncontested that the funds for payment of the well came from Executive Builders and the recovery from the well digger was deposited to the account of Executive Builders. Because of the inability of Merck and Earnest to reach an acceptable agreement as to the source of an adequate water supply, Earnest brought this complaint against Executive Builders, Inc., Merck Realty, and John Merck individually, seeking to rescind the contract and recover damages. Each of the defendants moved for summary judgment. The trial court denied summary judgment to the two corporate defendants but granted summary judgment to John Merck in his individual capacity. Earnest brings this appeal asserting as his lone enumeration of error the grant of summary judgment to John Merck individually. Held: Earnest contends there are material issues of fact as to whether John Merck acted in his individual capacity so as to make the grant of summery judgment to Merck as an individual an erroneous ruling. Earnest contends that when he talked with Merck about the well and water capacity prior to the sale of the house he was not aware of whether he was accepting assurances from Merck in his individual capacity or as an officer of Executive Builders or Merck Realty. Earnest *273 also points out in his brief that Merck sued the well digger in his own name and not that of Executive Builders or Merck Realty. The recovery was in Merck's name. Lastly, Earnest points out that Merck was the only person involved in each of the corporate actions in the sale of the house and the promises and actions involved in the furnishing of the well water. In contradiction thereto, the trial court was made aware that Executive Builders is a corporation composed of four stockholders, not a sole proprietorship. Merck Realty is a corporation composed of two stockholders. It was made clear that Executive Builders built, owned and sold the house in question. The offer to purchase the home was made by Earnest through his sister-in-law to Merck Realtors, not Merck individually. The offer to purchase was accepted by Executive Builders. The warranty deed was executed by Executive Builders through Merck as president. The closing statement clearly reflects that Executive Builders was the seller. Thus all documents executed by both parties indicated to Earnest that he was dealing with corporate entities. All corporate bodies perforce must operate through individuals. The more operation of corporate business does not render one personally liable for corporate acts. Trans-State v. Barber, 170 Ga. App. 372, 374 (317 SE2d 242). The corporate veil may be pierced where the parties themselves have disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. We have not been presented with nor found any evidence in this record to indicate that Merck, in addition to acting as the principal operating officer of the corporate bodies involved, also conducted his private and corporate business on an interchangeable or joint basis as if they were one. See Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (250 SE2d 851). Moreover, all the documents signed by Earnest reflect that Merck signed in a representative capacity. Though Merck made certain oral statements (i.e., puffing) to Earnest as to the capacity of the well, Earnest had been referred by a sales agent to the president of the realty company. The documents of the sale contained written warranties pertaining to the house as well as to the utilities (including water). This warranty was signed by Merck in a representative capacity. Merck's oral statements may be admissible to explain the meaning of the written warrant (subject to the statute of frauds) but assuming such to be the case, there is no evidence short of speculation that Merck was acting in an individual capacity whereas in apposition, the records show Earnest was aware by written documents that Merck was acting only in a representative capacity. See Zagoria v. DuBose Enterprises, 163 Ga. App. 880, 884 (296 SE2d 353). In relation to the argument that Merck sued in his own name for *274 the recovery of damages for a defective well, there are undisputed facts that again reflect Merck was not acting in his own behalf. It is undisputed that the cost of digging the well and all future efforts to correct the deficient supply of water was made by Executive Builders. The money recovered from the well digger was deposited to the account of Executive Builders. The statement of charges for the well digging was addressed to John Merck, c/o Merck Realty, and the services were shown to have been rendered on behalf of Merck Realty. Lastly there is no showing that the lawsuit between Merck and the well digger was in trust for Earnest or on Earnest's behalf. In short, whether Merck sued in an individual or representative capacity casts no further light on the issue raised by Earnest in this appeal for he was not a party to that action and thus had no privity thereto. We conclude that the suit against Executive Builders and Merck Realty cannot proceed properly against their corporate officers in their individual capacities in the absence of compelling and persuasive reason showing the propriety of piercing the corporate veil. Farmers Warehouse of Pelham v. Collins, 220 Ga. 141, 150 (137 SE2d 619); Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 411 (203 SE2d 597). Earnest has not raised a material issue that in essence John Merck was nothing more than the alter ego of the two co-defendant corporations or that Merck made the corporate assets vehicles for his own private affairs or that there was such a unity of interest and ownership that separate personalities of the corporation and owner did not exist. Sheppard v. Tribble Heating &c. 163 Ga. App. 732 (1) (294 SE2d 572). There was no error in the grant of summary judgment to Merck in his personal capacity. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442). Judgment affirmed. Deen, P. J., and Pope, J., concur.

119 F.Supp.2d 831 (2000) The MIDWESTERN INDEMNITY COMPANY, Plaintiff, v. Daniel LAIKIN d/b/a Garden City Group d/b/a Flora Group, Flora Estate, Shady Pines, Cossell Group, Pat Skaggs and Lorrie Skaggs as next friends of Amber Nicole Mitchell and Patricia Skaggs, Defendants. No. IP 96-0830-C H/G. United States District Court, S.D. Indiana, Indianapolis Division. August 16, 2000. *832 Jeffrey A. Doty, Kightlinger & Gray, Indianapolis, IN, for plaintiff. James A. Mellowitz, Price Potter Jackson & Mellowitz, Indianapolis, IN, for defendants. ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT HAMILTON, District Judge. After a deadly fire in a mobile home, plaintiff Midwestern Indemnity Company sued here for a declaratory judgment that it owed no duty of coverage or defense for the loss. Defendants here are the owners and managers of the mobile home in which the fire occurred, Daniel Laikin and businesses he operates (collectively, "the Cossell Group"), and the Skaggs family, who were renting the mobile home from the Cossell Group and who were injured in the fire. While this declaratory judgment action has been pending, the Cossell Group and the Skaggs family settled their dispute through a consent judgment in state court. The Cossell Group paid $300,000 to the Skaggs family, which was less than the consent judgment's face amount of $1.6 million. The Skaggs family agreed to collect the difference only from the insurer Midwestern, not from the assets of the Cossell Group. The parties in this case have filed cross-motions for summary judgment that present the following principal issues: (a) assuming coverage is eventually established at trial, whether the consent judgment will have any binding effect on the insurer as to issues of its insured's liability or the injured family's damages; (b) whether the consent judgment was the product of bad faith or collusion or was unreasonable in its terms; and (c) whether the covenant not to execute relieves the insurer of all liability here on the theory that its insured is not "legally obligated to pay" any amount now being sought from the insurer. As explained below, this court predicts the Indiana courts would hold that: (a) the consent judgment is binding on the insurer *833 as to issues of the insured's liability and damages; (b) as a matter of law, the consent judgment was reasonable and was not the product of bad faith or collusion; and (c) the covenant not to execute does not relieve the insurer of any obligation to pay up to its policy limits toward the consent judgment. On a separate issue, the court also holds that any possible consequences of the Skaggs' failure to list their personal injury claims as assets in a bankruptcy filing have been cured by later ratification by the bankruptcy trustee. Accordingly, this case shall proceed to trial on the contested coverage issues, which turn on disputed issues of fact. Undisputed Facts Relevant to the Consent Judgment This entry addresses the second round of summary judgment motions in a long fought insurance dispute arising out of a deadly fire on October 7, 1989. The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir.1998). The fact that the parties have filed cross-motions for summary judgment does not alter the standard. When considering the plaintiff's motion for summary judgment, the court must consider the evidence in the light reasonably most favorable to the defendants, and vice versa. The facts material to the pending motions are undisputed, at least for purposes of the motions. The court has included as background to the issues here some facts established by the first round of summary judgment motions in this case. (References to "Laikin Ex. __" refer to exhibits filed in support of the defendants' response to plaintiff's first motion for summary judgment.) On October 7, 1989, Patrick and Lorrie Skaggs, Amber Nicole Mitchell, and Patricia Skaggs were all living in a rented mobile home in the Shady Pines mobile home park, which was owned and operated by Laikin and/or the Cossell Group. A fire began in the mobile home that morning. The fire killed Amber, who was five years old. Patricia, who was three years old, and Lorrie both suffered smoke inhalation and other injuries. Patrick suffered extensive burn injuries. The back door of the mobile home had been chained and wired shut from the outside by a property manager for the Cossell Group. Both the Wayne Township Fire Department and the Marion County Sheriff investigated the fire and issued reports. Laikin Exs. 7, 8. The fire department concluded that the fire began in the lounge area of the mobile home as a result of a faulty outlet. Laikin Ex. 8 (Structure Fire Investigation Report). In June 1989, plaintiff Midwestern Indemnity Company had received a request for liability coverage of Laikin's mobile home parks from Paul Nelson, an insurance agent with the Landmark Insurance agency. Midwestern underwriter Jan McWhirter denied that application. On October 4, 1989, three days before the fire, Nelson issued an insurance binder to Laikin for general liability insurance coverage by Midwestern of the Shady Pines mobile home park. Laikin Ex. 6. The effective date of the binder was backdated to August 27, 1989. Id. The record contains no actual insurance policy issued by Midwestern pursuant to the binder. Midwestern issued a later policy that McWhirter approved covering Laikin's mobile home parks, including Shady Pines, effective September 1, 1990. Cplt. Ex. A. That policy provides that Midwestern "will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." Id. *834 On March 31, 1995, the Skaggs filed suit in the Marion Superior Court against the owners and managers of Shady Pines for the death of Amber Nicole Mitchell and injuries to Patrick, Patricia, and Lorrie caused by the fire. The Cossell Group was added as a defendant in that lawsuit on June 2, 1995. The Skaggs alleged that the defendants had breached the implied warranty of habitability, resulting in the wrongful death of Amber Nicole Mitchell, severe burn injuries to Patrick Skaggs resulting in a 10 percent permanent partial impairment, psychological injuries to Lorrie Skaggs and Patricia Skaggs, as well as other injuries and damages. Def. Ex. 3. On November 1, 1995, the Cossell Group moved to dismiss the Skaggs' suit in the Marion Superior Court. The motion argued that the applicable statute of limitations was the two-year statute for a personal injury claim rather than the six-year statute for breach of an implied warranty of habitability. Def. Resp. Ex. 11. The trial court denied the motion on February 27, 1996. Def. Resp. Ex. 10. On March 1, 1996, the Cossell Group formally demanded that Midwestern provide indemnification and defend it against the Skaggs' suit. Midwestern denied coverage, claiming that the Cossell Group's insurance policy provided coverage only after September 1, 1990, after the fire and the loss had occurred. Laikin Aff. ¶ 3. Midwestern filed its Complaint for Declaratory Judgment in this court on June 10, 1996, seeking a declaration that it owed no duty of defense or indemnification to the Cossell Group for damages arising from the Skaggs' lawsuit. The Cossell Group answered and filed a counterclaim against Midwestern for bad faith denial of coverage. On April 27, 1998, this court denied Midwestern's motion for summary judgment on the issue of insurance coverage. The court found that factual disputes as to Nelson's authority to issue the insurance binder in 1989, the timing of Laikin's notice of the fire, and whether Midwestern was actually prejudiced by the long delay in notice of the fire all barred summary judgment on the issue of coverage. For purposes of the present motions, the court must assume that those issues will ultimately be resolved in favor of finding coverage.[1] In the same entry, however, the court granted summary judgment to Midwestern on Laikin's counterclaim for bad faith denial of coverage. On November 13, 1998, the Cossell Group and the other state court defendants in the Skaggs' lawsuit filed a motion for judgment on the pleadings based again on a statute of limitations defense. While the motion was pending, all parties attended a mediation in December 1998. Although Midwestern attended the mediation, it left before the mediation ended. Laikin Aff. ¶ 6. During the mediation, the Skaggs and the Cossell Group reached a settlement. The settlement agreement stated that "Cossell agrees that all statute of limitation defenses are waived" and provided for a cash payment of $300,000 to the Skaggs family by the general partners of the Cossell Group. Def. Ex. 2. As part of the settlement, the Cossell Group also assigned all its rights and claims against Midwestern Indemnity to the Skaggs family. Id. To implement the settlement, the Cossell Group submitted to the Marion Superior Court a confession of judgment against the Cossell Group in the amount of $1.6 million for actual and compensatory damages. However, the Skaggs agreed not to execute the judgment against any asset other than the (putative) Midwestern insurance policy. The state court approved the confession of judgment on February 19, 1999. Def. Ex. 1. The Cossell Group paid in excess of $62,000 in legal fees and costs in its defense against the Skaggs litigation. Laikin Aff. ¶ 5. *835 At the same time the Skaggs settled with the Cossell Group, they also entered into a settlement agreement with Jackson Kearns and Kenneth Lloyd; both had worked for Laikin, but their precise roles in these events have been disputed. The Skaggs agreed not to sue or execute any judgment against Kearns and Lloyd, who agreed to make periodic payments to the Skaggs family. Def. Resp. Ex. 4. Shelby Insurance, the insurance carrier for Kearns and Lloyd, paid $300,000 to resolve the Skaggs' claims, although Shelby's separate action for declaratory judgment to avoid coverage for the fire remained pending. Def. Resp. Exs. 4, 12. Then in this case, on March 4, 1999, Midwestern filed a supplemental answer to Laikin's counterclaim for coverage, adding two additional defenses: (1) that it has no duty to pay the consent judgment to the extent the judgment was procured by fraud, collusion, or bad faith; and (2) that it has no duty to pay the consent judgment because the insureds are not legally obligated to pay damages in connection with the consent judgment. The Cossell Group and the other defendants have filed a motion for partial summary judgment on these new defenses to coverage. Midwestern also has filed a motion for summary judgment, arguing that it has no duty to satisfy the underlying consent judgment against Cossell Group even if coverage were shown. On June 30, 2000, the court heard oral argument on the motions and they are now ripe for decision. Other undisputed facts are noted below as needed. Discussion Indiana law controls the parties' claims and defenses in this diversity action. The Supreme Court of Indiana has not directly addressed the issues presented here. This court's duty is to use available indicators of Indiana law to predict how the Supreme Court of Indiana would resolve these issues. See, e.g., General Accident Ins. Co. of America v. Gonzales, 86 F.3d 673, 675 (7th Cir.1996). All the motions and issues now pending assume both that Midwestern in fact agreed to provide liability coverage to the Cossell Group in 1989 and that Midwestern has breached its contract by refusing to provide a defense and indemnity for the losses arising from the fire in the Skaggs' mobile home. When a liability insurer incorrectly denies coverage to its insured, the insured faces the plaintiffs in the underlying lawsuit without the help of the insurer. The insured may face the threat of catastrophic uninsured liability. In such a case, the insured and the plaintiff in the tort lawsuit may reach an agreed resolution that allows the plaintiff to seek recovery from the insurer. It is not unusual for such agreements to take the form of agreed judgments against the insured, including provisions that the injured plaintiff will not execute on all or some portion of the judgment except to collect on the insurance policy. That is what happened here. The central question here is what effect that consent judgment has in this lawsuit in which the insurer seeks a declaratory judgment to the effect that it owes no coverage to the Cossell Group. The parties' motions for summary judgment propose three different approaches. First, defendants the Skaggs family and the Cossell Group contend that the consent judgment between them is binding on Midwestern on issues of both the Cossell Group's liability to the Skaggs and the extent of the Skaggs' damages. Defendants acknowledge that Midwestern remains entitled in this case to a trial on the factual issues affecting whether it owes any duty of coverage for the loss. But defendants believe the trial should be limited to those issues, so that if the jury finds coverage, the Skaggs family will be entitled to the $1 million policy limits. Midwestern argues for a second approach in which the consent judgment simply has no effect on Midwestern because it was not a party to it. Midwestern contends the trial in this case should include, in addition to factual questions affecting insurance *836 coverage, the issues of the Cossell Group's liability to the Skaggs for the fire and the extent of the Skaggs' damages, as well. In the alternative, Midwestern argues for a third approach under which the consent judgment actually would relieve Midwestern of any potential liability here. Midwestern contends it is entitled to this result for two independent reasons: (1) because the consent judgment was a product of bad faith and collusion between the Cossell Group and the Skaggs, and (2) because its insured is not actually "legally obligated to pay" any of the sums now being sought from Midwestern. Thus, the principal issues before the court are these: First, because Midwestern itself was not a party to the consent judgment, does that judgment bind Midwestern as to issues of the Cossell Group's liability or the Skaggs' damages? The court holds that if defendants can show at trial that Midwestern owed the Cossell Group coverage for the loss, then the consent judgment precludes Midwestern from re-litigating the issues of the Cossell Group's liability or the Skaggs' damages, so long as the consent judgment fell within a broad range of reasonable resolutions of the case and was not the product of bad faith or collusion. Second, is there evidence that the consent judgment between the Skaggs and the Cossell Group was unreasonable or the result of bad faith or collusion so as to relieve Midwestern of potential liability for coverage in this case? The court holds that, as a matter of law, there is no such evidence. The undisputed evidence shows that the consent judgment was not an unreasonable resolution of the case. Third, does the covenant not to execute relieve Midwestern of any potential liability on the theory that its insured is not "legally obligated to pay" any amount of the consent judgment beyond the $300,000 it actually paid in cash? The court holds that the "legally obligated to pay" language in the applicable policy cannot relieve Midwestern of potential liability here. A. Issue Preclusion on Liability and Damages A principal portion of Midwestern's motion for summary judgment argues that, because it was not a party to the consent judgment, it is not bound by that judgment in any respect. Issue preclusion, or collateral estoppel, "bars subsequent relitigation of a fact or issue where that fact or issue was necessarily adjudicated in a prior cause of action and the same fact or issue is presented in a subsequent suit." Small v. Centocor, Inc., 731 N.E.2d 22, 23 (Ind. App.2000), citing Slutsky v. Crews, 713 N.E.2d 288, 291 (Ind.App.1999). Thus, when there has been a final judgment on the merits in a prior action, when the issues are identical, and when the party to be estopped from relitigating the issue was a party or in privity with a party in the prior action, collateral estoppel applies to bar relitigation of a fact or issue. Small, 731 N.E.2d at 28, citing Adams v. Marion County Office of Family and Children, 659 N.E.2d 202, 205 (Ind.App.1995). An insurer is normally treated as being in privity with its insured for purposes of collateral estoppel or issue preclusion. "The doctrine of collateral estoppel applies to insurance contracts and an insurer is ordinarily bound by the result of litigation to which its insured is a party, so long as the insurer had notice and the opportunity to control the proceedings." Liberty Mutual Ins. Co. v. Metzler, 586 N.E.2d 897, 900 (Ind.App.1992); accord, State Farm Fire & Cas. Co. v. T.B., 728 N.E.2d 919, 923-24 (Ind.App.2000). Where the interests of the insurer and insured conflict, however, Indiana courts have recognized some limits on the use of collateral estoppel against the insurer. See Metzler, 586 N.E.2d at 901 (collateral estoppel may not apply to issues affecting coverage where insurer either defends insured under reservation of rights or files declaratory judgment action on coverage); State Farm Mutual Automobile Ins. Co. v. Glasgow, 478 N.E.2d 918, 923 (Ind.App. 1985) (same); Snodgrass v. Baize, 405 N.E.2d 48, 51 (Ind.App.1980) (stating general *837 rule but recognizing exception for issues as to which interests conflict). In Frankenmuth Mutual Ins. Co. v. Williams, 690 N.E.2d 675, 679 (Ind.1997), the Supreme Court of Indiana confirmed these general principles. In Frankenmuth the coverage question was whether one or both of the insureds had acted negligently (so the loss in question would be covered) or intentionally (so the loss would not be covered). The insurer had refused to defend its insured in the tort lawsuit, believing that the insured must have acted intentionally in causing the injury. However, the insurer had not filed a declaratory judgment action. One insured then entered into a consent judgment with the tort claimants in which she admitted that she had acted negligently. The tort claimants agreed not to execute the judgment against the insured's personal assets. They filed a proceeding supplemental to recover the consent judgment from the insurer. The insurer wanted to litigate whether the insured's conduct had been negligent or intentional. The Supreme Court of Indiana held, however, that the insurer was estopped from raising any defense under the policy's intentional acts exclusion. The court treated the consent judgment as a "final legal conclusion" that the insured had acted negligently, and found that "the time has passed" for the insurer to argue that the insured's negligence was not a proximate cause of the tort claimant's injuries. Id. at 678-79. The court held that the insurer had forfeited its right to litigate the negligent v. intentional issue by failing either to defend the insured under a reservation of rights or to clarify its obligation through a declaratory judgment action. Id. at 679. The court explained: "As the Court of Appeals observed in Liberty Mutual [v. Metzler], an insurer may `refuse to defend or clarify its obligation by means of a declaratory judgment action,' but `it does so at its peril.'" Id., quoting 586 N.E.2d at 902. These Indiana cases differ from this one in two important respects. First, unlike the insurers in Frankenmuth, Metzler, and Glasgow, Midwestern took affirmative steps to clarify its obligations by filing this declaratory judgment action. Second, the disputes in Frankenmuth, Metzler, and Glasgow dealt with the issue of covered negligent conduct v. non-covered intentional conduct. That is, the coverage disputes in those cases depended on resolution of factual disputes at the heart of the underlying tort lawsuits themselves. In this case, by contrast, the factual issues that will determine coverage have nothing to do with the specifics of the fatal fire itself or with the Skaggs' damages. What protection does the insurer gain by filing a declaratory judgment action, as Midwestern did here? Frankenmuth, Metzler, and Glasgow clearly imply that an insurer who files a declaratory judgment action may retain the ability to litigate those issues that affect its coverage. None of those cases suggests, however, that filing a declaratory judgment action leaves the insurer free to litigate (or relitigate) the issues of its insured's liability or the amount of damages. In dealing with "conflicts of interest" between an insured and insurer that preclude application of collateral estoppel, the Indiana cases have not referred to all disagreements between insurer and insured. Rather, these cases have referred only to issues relevant to both the insured's liability and the insurer's duty of coverage, such as negligent v. intentional conduct.[2] Despite these differences, however, the Indiana cases offer some guidance here. *838 They are generally consistent with the approach to this problem taken in the Restatement (Second) of Judgments, and they are consistent with the majority of courts in other states. Those courts hold that where an insurer has defended under a reservation of rights or has filed a declaratory judgment action, a consent judgment between an insured and a tort plaintiff will bind the insurer as to issues not related to coverage, at least so long as the insured has acted reasonably and in good faith. The Restatement (Second) of Judgments addresses in Section 57 the effect on an indemnitor of a judgment against an indemnitee: (1) Except as stated in Subsection (2), when one person (the indemnitor) has an obligation to indemnify another (the indemnitee) for a liability of the indemnitee to a third person, and an action is brought by the injured person against the indemnitee and the indemnitor is given reasonable notice of the action and an opportunity to assume or participate in its defense, a judgment for the injured person has the following effects on the indemnitor in a subsequent action by the indemnitee for indemnification: (a) The indemnitor is estopped from disputing the existence and extent of the indemnitee's liability to the injured person; and (b) The indemnitor is precluded from relitigating issues determined in the action against the indemnitee if: (i) the indemnitor defended the action against the indemnitee; or (ii) the indemnitee defended the action with due diligence and reasonable prudence. (2) If there is a conflict of interest between the indemnitee and the indemnitor regarding the injured person's claim against the indemnitee, so that the indemnitor could not properly have assumed the defense of the indemnitee, a judgment for the injured person precludes the indemnitor only with respect to issues determined in that action as to which: (a) there was no conflict of interest between the indemnitee and the indemnitor; and (b) the indemnitee conducted a defense with due diligence and reasonable prudence. (3) A "conflict of interest" for purposes of this Section exists when the injured person's claim against the indemnitee is such that it could be sustained on different grounds, one of which is within the scope of the indemnitor's obligation to indemnify and another of which is not. Restatement (Second) of Judgments § 57 (1980) (emphasis added). The dispute over coverage between Midwestern and the Cossell Group does not amount to a "conflict of interest" within the terms of § 57(3). This is not a case where the injured persons' claims against the Cossell Group could be sustained on different grounds, one of which would be within the scope of coverage and the other would not. Section 57(1) therefore applies to the case here because its other conditions were met. Midwestern certainly had notice of the Skaggs' action against the Cossell Group and had an opportunity to assume or participate in the defense. A judgment therefore estops the insurer from disputing "the existence and extent of the indemnitee's liability to the injured person." § 57(1)(a).[3] *839 Decisions by the Supreme Court of Minnesota and the Supreme Court of Arizona have approached the issue presented here in a manner similar to that of the Restatement (Second) of Judgments. Those decisions have given thoughtful consideration to the issue on facts similar to those presented here, in which the insurers sought declaratory relief as to coverage. Those courts' views are consistent with Indiana law and policy on related issues, and they reflect the majority view among the states.[4] The Minnesota case is Miller v. Shugart, 316 N.W.2d 729 (Minn.1982). Plaintiff Miller had been injured in a car accident involving a car owned by the insured. The insurer argued that it had no duty to provide insurance coverage because the insured had not been driving the car at the time of the accident. To determine the coverage question, the insurer filed a declaratory judgment action. The insurer also paid for separate counsel to defend its insured and the driver of the car in the tort litigation. The court in the declaratory judgment action found that the insurer had a duty to provide coverage to both the owner and the driver of the car. A few weeks later, the injured Miller filed her personal injury action against the driver and owner of the car. The insurer then appealed the decision in the declaratory judgment action. Id. at 731-32. Before a ruling was issued on appeal, Miller negotiated a settlement with the insured and the driver of the car. The insurer had been invited to participate in the negotiations but had refused. The parties entered into a stipulated judgment that provided it could be collected only from proceeds of any applicable insurance, with no personal liability to defendants. Id. at 732. Miller then sued to garnish the insurance policy pursuant to the stipulated judgment. The insurer argued that it had no duty to satisfy the judgment because the insureds had breached their duty under the insurance policy to cooperate with the insurer. Id. The trial court entered summary judgment for Miller on this issue, and the Supreme Court of Minnesota affirmed, ordering enforcement of the stipulated judgment against the insurer. The court recognized that the insurer "had a right to determine if its policy afforded coverage for the accident claim" and that the insurer had avoided a conflict of interest by "bringing a declaratory judgment action on the coverage issue prior to trial" and "appropriately providing another set of attorneys to defend the insureds in the declaratory judgment action." Id. at 733. The court also noted that, although the insurer "did not abandon its insureds neither did it accept responsibility for the insureds' liability exposure." Id. In light of these facts, the court stated the issue in terms that apply here: "What we have, then, is a question of how should the respective rights and duties of the parties to an insurance contract be enforced during the time period that application of the insurance contract itself is being questioned." Id. The Minnesota court concluded that the insureds did not breach their duty to cooperate with the insurer by settling directly with the tort claimant. Id. at 734. The court reasoned: If as here, the insureds are offered a settlement that effectively relieves them of any personal liability, at a time when their insurance coverage is in doubt, surely it cannot be said that it is not in their best interests to accept the offer. Nor, do we think, can the insurer who is disputing coverage compel the insureds to forego a settlement which is in their best interests. Id. at 733-34. The court also recognized that when an insured enters into a stipulated judgment with a tort claimant without the consent of *840 its insurer, there is a risk that the stipulated judgment could be the product of fraud or collusion. Under the facts presented, however, the court found as a matter of law that the stipulated judgment was not obtained by fraud or collusion. Id. at 734. The court specifically rejected the argument that a stipulated judgment is fraudulent or collusive as a matter of law when the stipulation is contrary to the insurer's interest, entered into over the objection of the insurer, and for an amount that is twice the amount of the insured's policy limits. Id. Reaffirming that the "insureds had a right to make a settlement relieving them of liability," the court noted that the insureds had notified the insurer that they were participating in settlement negotiations. Additionally, the insureds did not settle with the tort claimant until after the court in the declaratory judgment action had determined that coverage existed. Id. The Minnesota court also recognized that an insurer is placed in a "no-win" situation when its insured negotiates with a tort claimant while the issue of coverage is still pending: If the insurer ignores the "invitation" to participate in the settlement negotiations, it may run the risk of being required to pay, even within its policy limits, an inflated judgment. On the other hand, if the insurer decides to participate in the settlement discussions, ordinarily it can hardly do so meaningfully without abandoning its policy defense. Nevertheless, its seems to us, if a risk is to be borne, it is better to have the insurer who makes the decision to contest coverage bear the risk. Of course, the insurer escapes the risk if it should be successful on the coverage issue, and, in that event, it is plaintiff who loses. Id. (emphasis added). Perhaps because of the insurer's "no-win" situation, the court also held that a tort claimant has the burden "to show that the settlement is reasonable and prudent." Id. at 735. A settlement is reasonable and prudent if "a reasonably prudent person in the position of the defendant would have settled for [that amount] on the merits of plaintiff's claim." Id. The court then found that the trial court had not erred in granting summary judgment to the tort claimant in the amount of $50,000, thus enforcing the stipulated judgment against the insurer after coverage had been established. Id. The Supreme Court of Arizona considered similar issues in United Services Automobile Ass'n v. Morris, 154 Ariz. 113, 741 P.2d 246 (1987). In that case, an insurer had agreed to defend its insureds in a tort lawsuit under a reservation of rights. Without the consent of the insurer, the insureds entered into a settlement agreement with the tort claimant. The agreement included a covenant not to execute against the insureds' personal assets. The liability insurer then filed a declaratory judgment action seeking a declaration that it was not obligated to satisfy the settlement agreement because the insureds' action fell outside the policy's coverage and because the insureds had breached the insurance policy's cooperation clause. The Arizona court recognized the conflicting interests involved when an insurer disputes coverage for an insured while the insured is a defendant in a tort action. The court acknowledged that the insurer's reservation of rights placed the insureds in a "precarious position." Id. at 251. If the insureds had gone to trial, they faced the possibility of a large jury verdict that might not be covered by their insurance policy. The court therefore recognized "that the insureds had the need to act reasonably to protect themselves from `the sharp thrust of personal liability.'" Id., quoting Arizona Property & Cas. Ins. Guar. Fund v. Helme, 153 Ariz. 129, 735 P.2d 451, 459 (1987). On the other hand, the court also noted the risks an insurer faces when its insured enters into a settlement agreement without the insurer's participation. "Insureds' settlements often are motivated solely by their strongly-felt need for economic survival and the claimant's desire for a quick judgment that will enable him to get after *841 what he perceives as the real business — collecting from the insurer." Id. at 252. The court recognized, however, that insurers often expose themselves to such risks by raising the issue of coverage. "By raising the coverage defense, even in good faith, the insurer places the insured in a position where settlement may be necessary for his own protection rather than from a lack of cooperation with the insurer." Id. The court balanced these competing concerns by finding that an insured who is being defended under a reservation of rights can enter into a settlement agreement without breaching a cooperation clause. The Arizona court then turned to the insurer's claim that it should be permitted to "`relitigate' any aspect of the original tort claim." Id. at 253. Assuming that there was coverage, the insurer argued, as Midwestern does here, that it had "an absolute right to relitigate all aspects of the liability case, including liability and the amount of damages." Id. The court rejected this position. The insurer's "absolute position would destroy the purpose served by allowing insureds to enter into [settlement] agreements because claimants would never settle with insureds if they never could receive any benefit." Id. Like the Supreme Court of Minnesota in Miller, the Arizona court noted that an insurer faced the risk that its insured may settle for an "inflated amount" or concede "to a frivolous case merely to escape exposure or further annoyance." Id. Thus, the court found "that neither the fact nor amount of liability to the claimant is binding on the insurer unless the insured or claimant can show that the settlement was reasonable and prudent." Id. at 254, citing Miller, 316 N.W.2d at 735. The court then remanded the case for a determination as to whether the insurer had to provide coverage and, if so, whether the consent judgment was reasonable. Courts in many states have followed the reasoning of both Miller and Morris. They have held that when an insured and tort claimant enter into an agreed judgment and a covenant not to execute the judgment against the insured, the judgment can be enforced against the insurer if coverage is shown. Different states have taken two principal approaches to the burden of proof on the closely related issues of bad faith, collusion, and the reasonableness of the consent judgment. Some courts have held that the claimant has the burden of showing by a preponderance of the evidence that the amount of the judgment was reasonable and prudent. See, e.g., Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 534 (Iowa 1995); Fisher v. American Family Mutual Ins. Co., 579 N.W.2d 599, 607 (N.D.1998). Other courts have determined that an insured should have only the initial burden of producing evidence that the settlement is "prima facie reasonable in amount and untainted by bad faith;" if the insured satisfies this burden of production, then the insurer has the "burden of demonstrating, by a preponderance of the evidence, that it is not liable because the settlement is neither reasonable nor reached in good faith." Griggs v. Bertram, 88 N.J. 347, 443 A.2d 163, 173-74 (1982); accord, e.g., Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79, 92-93 (1990) (adopting the New Jersey rule as stated in Griggs); Steil v. Florida Physicians' Ins. Reciprocal, 448 So.2d 589, 592 (Fla.App.1984) (same). The Supreme Court of Texas has taken a much more restrictive approach to the issues presented by consent judgments containing an assignment of rights and a covenant not to execute. The Texas court has held that under specific circumstances, an insured's assignment of his claims against his insurer to a tort claimant is invalid. State Farm Fire and Cas. Co. v. Gandy, 925 S.W.2d 696 (Tex.1996). Concerned about the difficulty of evaluating a tort claimant's claim against an insured when a settlement is reached before the claim has actually been adjudicated, the Texas court found that an insured's assignment of his rights against his insurer to a claimant is simply invalid if: (1) the assignment was made prior to an adjudication of *842 the claimant's lawsuit against the insured in a fully adversarial trial; (2) the insurer has tendered a defense; and (3) either (a) the insurer has accepted coverage or (b) the insurer has made a good faith effort to adjudicate coverage issues prior to adjudication of the claimant's lawsuit. Id. at 714. The court also found that a judgment for the claimant against the insured, rendered without a fully adversarial trial, was not binding on the insurer or admissible as evidence of damages in an action against the insurer by the claimant as the insured's assignee. Id. After considering the Indiana decisions and those around the country, this court predicts that the Indiana courts would reject the Texas approach in Gandy and would instead follow the majority path reflected by § 57 of the Restatement (Second) of Judgments, the Minnesota court in Miller v. Shugart, and the Arizona court in Morris. The Indiana decisions in Frankenmuth, Metzler, and Glasgow, discussed above, all recognized that consent judgments with covenants not to execute could be imposed on an insurer even where there had been no trial on the underlying claim. All three cases involved insurers who had neither defended under a reservation of rights nor sought a declaratory judgment, as Midwestern did here. Nevertheless, nothing in those Indiana opinions suggests that merely filing a declaratory judgment action lets an insurer who has breached its contract retain the right to relitigate all issues of liability and damages. Such a rule would encourage denial of coverage and multiply litigation. The Texas approach essentially forces the abandoned insured (recall that all these cases assume the insurer has wrongfully denied coverage and often a defense as well) either to pay out of her own pocket for the costs of defense up through a full trial, or to wait until coverage issues have been resolved definitively by the courts. In either scenario, the abandoned insured is likely to be stuck for years in expensive litigation as a result of the insurer's breach of the insurance contract. The Texas approach denies the insured any earlier escape by settlement, and it does so in order to protect the insurer who, by definition in these cases, has breached that contract. That is not a policy the Indiana courts are likely to embrace, especially in view of the Indiana courts' recognition of the needs of the insured and injured plaintiffs when the insured has been abandoned by its insurer.[5] In addition, the Indiana courts are likely to view the Texas approach as unduly rigid in its effort to protect the insurer from bad faith or collusion. A more direct approach to that issue would suffice to protect the breaching insurer from outrageous efforts to overreach, while still encouraging and allowing settlement of disputes between the abandoned insured and injured plaintiffs. Thus, this court believes the Indiana courts would adopt an approach to this case in which the consent judgment with a covenant not to execute would bind the insurer on issues of its insured's liability and the extent of the injured parties' damages, so long as (1) the coverage is eventually shown, and so long as the consent judgment (2) is not the product of bad faith or collusion and (3) falls somewhere within a broad range of reasonable resolutions of the underlying dispute. As explained below, this court need not predict precisely which approach Indiana would take to burdens of production and proof on the issues of bad faith, collusion, and reasonableness. The result on the evidence in this record would be the same under any of those approaches. B. Bad Faith, Collusion, or an Unreasonable Settlement Midwestern has asserted as an affirmative defense that it has no duty to pay the *843 consent judgment because the judgment was a product of fraud, collusion, and/or bad faith. Midwestern has moved for summary judgment on this defense, contending that the agreed judgment must have been the result of fraud, collusion, or bad faith because the Cossell Group gave up a winning statute of limitations defense by agreeing to a consent judgment for $1.6 million, but requiring the Cossell Group to pay only $300,000 cash, with a covenant by the Skaggs not to execute on personal assets for any of the remaining amount. In response, the Cossell Group and the Skaggs family have also moved for summary judgment on the issue of this defense. They contend there is no evidence that would allow a reasonable trier of fact to conclude that the agreed judgment was the product of bad faith, collusion, or fraud. They also argue that there was considerable uncertainty about the statute of limitations defense at the time of the settlement. The cases do not distinguish precisely between fraud, bad faith, and collusion in this context, and the court has abbreviated the formula to "bad faith or collusion." There is no evidence here that defendants concealed anything from Midwestern or misled it about any matters. Closely related to the issue of bad faith or collusion, of course, is the question whether the consent judgment was a "reasonable" settlement of the dispute between the Skaggs and the defendants in the tort lawsuit. The issues are closely related because evidence of deliberate concealment or misrepresentations, or of explicit, knowing agreements between insured and injured parties to impose outrageous terms on an insurer is rare. Insurers who challenge so-called "sweetheart deals" ordinarily rely on indirect evidence of bad faith and collusion. They argue simply that the agreement is so unreasonable in its terms that it must have been the product of bad faith or collusion. As stated above, this court believes the Indiana courts would be willing to relieve a breaching insurer from the terms of a consent judgment that simply could not be deemed a reasonable resolution of the underlying lawsuit. However, the Indiana standard of reasonableness would be a generous one, allowing for a very broad range of reasonable resolutions. It would take into account factors that include uncertainty of fact and law, especially before trial, the fact that different parties have different degrees of risk aversion, the burdens of litigation on the abandoned insured, including expense and disruption of life and business, and the wide ranges of damage awards where the decisions are not subject to precise quantification. The standard of reasonableness would also allow the negotiating parties to make honest but perhaps mistaken judgments about the risks they face. See generally Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 934 P.2d 65, 87 (1997) (factors in evaluating reasonableness of settlement by abandoned insured include the releasing person's damages; the merits of the releasing person's liability theory; the merits of the released person's defense theory; the released person's relative faults; the risks and expenses of continued litigation; the released person's ability to pay; any evidence of bad faith, collusion, or fraud; the extent of the releasing person's investigation and preparation of the case; and the interests of the parties not being released); S.G. v. St. Paul Fire & Marine Ins. Co., 460 N.W.2d 639, 644-45 (Minn. App.1990) (holding settlement agreement was reasonable as a matter of law where insured's potential liability far exceeded settlement amount and no other evidence indicated it was unreasonable). Indiana courts would not treat a challenge to the reasonableness of a consent judgment as an opportunity to relitigate issues based merely on 20/20 hindsight or intervening changes in the law, nor because the insurer believes that if it had been directing the defense (i.e., if it had not breached its insurance contract), it could have gotten a better deal. See generally D.E.M. v. Allickson, 555 N.W.2d 596, 603 (N.D.1996) (settlement agreement was *844 reasonable even though a later change in state law might have precluded a finding of liability against insured; an insured's "failure to predict future appellate court rulings of other states certainly has no bearing on the reasonableness of the settlement"); Singleton v. United Tugs, Inc., 710 So.2d 347, 351 (La.App.1998) (rejecting challenge to reasonableness of settlement; court would not allow the insurer "the benefit of urging that there has been a settlement by parties who may otherwise not be liable as a result of trial," as insurer did not participate in the defense of the tort lawsuit or contribute to settlement of the matter). In dealing with analogous problems, Indiana courts have acknowledged the difficulty that can arise in evaluating the merits of a tort claim and whether an insurance policy provides coverage for the claim. For example, the Supreme Court of Indiana took this difficulty into account when it recognized but also limited a cause of action for breach of an insurer's duty to deal with its insured in good faith: We also note that this new cause of action does not arise every time an insurance claim is erroneously denied. For example, a good faith dispute about the amount of a valid claim or about whether the insured has a valid claim at all will not supply the ground for a recovery in tort for the breach of the obligation to exercise good faith. This is so even if it is ultimately determined that the insurer breached its contract. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 520 (Ind.1993). Thus, just as Indiana law allows an insurer reasonably, yet erroneously, to deny an insured's valid claim for coverage, this court believes that Indiana courts would uphold a settlement agreement reflecting an insured's reasoned but arguably mistaken evaluation of a tort claim brought against him. With this principle in mind, the court believes the Supreme Court of Indiana would instruct trial courts to resolve a challenge to the reasonableness of a consent judgment with a covenant not to execute by viewing the judgment from the standpoint of the insured at the time of the agreement, keeping in sharp focus the premise that the insurer breached its contract and left the insured hanging, exposed to the serious risk of devastating personal liability. See Miller, 316 N.W.2d at 735 ("The test as to whether the settlement is reasonable and prudent is what a reasonably prudent person in the position of the defendant would have settled for on the merits of plaintiff's claim. This involves a consideration of the facts bearing on the liability and damage aspects of plaintiff's claim, as well as the risks of going to trial."). The court also believes the Supreme Court of Indiana would apply a generous standard of reasonableness to cases of this type, leaving the issue to be decided as a matter of law unless there were clear grounds for finding the settlement fell outside any reasonable bounds for valuing the underlying dispute. Courts often say that reasonableness is a question of fact, of course, but special considerations in this situation would lead the Indiana courts to set a high bar for an insurer challenging a settlement reached by its insured after it has wrongfully abandoned that insured. A trial on the reasonableness of a settlement would effectively amount to a complex trial within a trial. At the core would be the evidence on the underlying claims — the evidence of liability, injury, and damages — in other words, a trial closely akin to the trial both the insured and the injured parties sought to avoid by entering into the settlement in the first place. (A court would presumably exclude or limit the relevance of evidence discovered or legal arguments first raised after the settlement was reached.) Layered over that trial of the core events, however, would be evidence about how the underlying litigation proceeded, about the course of the settlement negotiations (both objectively and from the subjective views of the participants), and about the factors that led the parties to agree on the terms they *845 reached. That evidence, moreover, would invite a further layer of evidence in the form of opinions from lawyers, claims adjusters, and perhaps mediators and judges, expressing their views on the reasonableness of the settlement terms. In this case, one can easily imagine, for example, the rather sterile exercise of lawyers or legal scholars testifying as expert witnesses to persuade the jury on their differing views on the apparent strength of the Cossell Group's statute of limitations defense in the interim after the Indiana Court of Appeals decision, but before the Supreme Court of Indiana decision, in the Schuman case discussed below. Such daunting prospects have led the Minnesota court that decided Miller v. Shugart to hold that such issues of reasonableness should be tried only to a court, not to a jury. See Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 279 (Minn. 1990). The Indiana courts are not likely to adopt that approach of taking such an issue away from a jury where it is genuinely disputed, but they would set a high bar before allowing an insurer who, by definition, has breached its duty to its insured, to impose such a trial on the parties who thought they had settled their dispute. Midwestern has presented no direct evidence of bad faith or collusion, relying instead on the argument that the agreement between the Cossell Group and the Skaggs family was unreasonably excessive to support an inference of bad faith or collusion. The court therefore must consider the information available to the Cossell Group at the time it decided to settle with the Skaggs. The parties in this action have submitted in the record here evidence relevant to the Cossell Group's decision with respect to the statute of limitations defense, damages, and its own liability for the Skaggs' losses. 1. The Statute of Limitations Defense In settling with the Skaggs family, the Cossell Group obviously gave up any defenses it might have had, including the statute of limitations. The settlement agreement included an explicit waiver of any statute of limitations defense. Def. Ex. 2. Midwestern contends that the waiver of this "absolute defense" is enough by itself to prove bad faith or collusion as a matter of law. Midwestern relies on the Supreme Court of Indiana's decision in Schuman v. Kobets, 716 N.E.2d 355, 356 (Ind.1999), in which the court found that bodily injury claims, even if characterized as claims for breach of the implied warranty of habitability in a residential lease, are governed by the Indiana two-year statute of limitations rather than the six-year statute for claims for breach of an implied warranty of habitability. As a general rule, the court agrees that where an insured simply surrendered an obviously winning defense to all liability, that surrender would be evidence of bad faith or collusion and could permit a finding of unreasonableness as a matter of law, especially when linked to a covenant not to execute. However, the undisputed evidence shows that in December 1998, the Cossell Group's statute of limitations defense appeared far from "absolute." The parties in the tort lawsuit had vigorously contested the issue. The Cossell Group first raised the issue on November 1, 1995, when it moved to dismiss the Skaggs' complaint in Marion Superior Court. Def. Resp. Ex. 3 at 16. On February 27, 1996, that court denied the Cossell Group's motion. Def. Resp. Ex. 9. On August 21, 1998, the Indiana Court of Appeals issued its opinion in Schuman v. Kobets, 698 N.E.2d 375 (Ind.App.1998), which rejected a plaintiff's claim that the six-year statute of limitations applied to her claim for personal injuries arising out of a breach of an oral lease contract and/or an implied warranty of habitability. The court focused on the nature of the harm suffered by the plaintiff, which was injury to her person. The court applied the two-year statute of limitations for personal injury actions, even though the plaintiff had framed the action as one for breach of an oral contract/implied warranty of habitability. Schuman, 698 N.E.2d at 378. *846 The Cossell Group then filed on November 13, 1998, a new motion for judgment on the pleadings arguing that the Skaggs' claims were untimely under the rule just announced in Schuman. See Pl. Ex. B. On November 25, 1998, the Skaggs responded to the motion. They argued that their claims arose solely out of an oral lease contract and were therefore governed by the six-year statute of limitation. See Def. Resp. Ex. 3. The Skaggs pointed out that a transfer petition was pending in Schuman. They argued that the Court of Appeals decision was "an erroneous decision and bad law" because it was "directly contrary" to the Supreme Court of Indiana's holdings in other cases. Id. at 15, citing Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 246-47 (Ind.1992), Insul-Mark Midwest v. Modern Materials, 612 N.E.2d 550, 556-57 (Ind.1993), and Wells v. Stone City Bank, 691 N.E.2d 1246, 1248-49 (Ind. App.1998). These decisions certainly lent substantial support to the Skaggs' argument that the Court of Appeals had erred in Schuman and that, where the parties had a contractual relationship, the contract statute of limitations would govern despite an argument that personal injuries sounding in tort were alleged. In December 1998, before the Marion Superior Court ruled on the Cossell Group's new motion, the parties reached their settlement. At the time of the settlement, a petition to transfer the Schuman decision to the Supreme Court had been filed but not yet granted. See Schuman v. Kobets, 714 N.E.2d 163 (Ind. Jan.11, 1999) (granting transfer and vacating appellate decision and opinion). In light of this sequence of events, Midwestern cannot rely on the Supreme Court of Indiana's September 15, 1999, decision in Schuman to support its contention that the Cossell Group gave up an "absolute defense" in its settlement with the Skaggs in December 1998. The evidence shows that at the time of the settlement, the law regarding the applicable statute of limitations for claims arising from a breach of an oral contract and the warranty of habitability was uncertain. The undisputed facts show that it was not unreasonable for the Cossell Group or its lawyers not to predict with a high degree of certainty that the Supreme Court of Indiana would affirm the appellate decision in Schuman. As reflected in the appellate court's divided views in Wells v. Stone City Bank, 691 N.E.2d 1246, the issue was fairly debatable. The Cossell Group could reasonably be worried that the Supreme Court of Indiana might follow the approach of the majority in Wells rather than in Schuman.[6] When the Cossell Group decided to settle with the Skaggs, neither side knew what the Supreme Court of Indiana would do with the statute of limitations issue. For both sides, the risks of a wrong prediction were enormous. The principals of the Cossell Group faced the prospect of personal liability in the range of millions of dollars. The Skaggs family faced the prospect of a complete loss on an otherwise strong case on liability and damages. Such large risks *847 often lead parties to settle cases. The court therefore cannot agree with Midwestern's contention that the Cossell Group gave up an "absolute defense" when it waived any defense based on the statute of limitations. The Cossell Group's decision to settle before the statute of limitations defense was resolved simply cannot support a finding that the settlement agreement was a product of bad faith or collusion or was unreasonable. 2. Liability, the Amount of Damages, and Settlement Negotiations Midwestern also argues that the consent judgment was a product of bad faith or collusion and was unreasonable because there was no "rational, principled basis" for the Cossell Group to agree to a total damages award of $1.6 million. Again, Midwestern offers no direct evidence that the settlement agreement was a product of bad faith or collusion. It essentially is asking this court to infer bad faith or collusion from the terms of and circumstances surrounding the settlement. In essence, the issue is whether, under all the circumstances, the settlement amount of $1.6 million, with $300,000 paid by the general partners of Cossell Group and a covenant not to execute on anything other than a Midwestern insurance policy for the rest, was so unreasonable as to permit an inference of collusion or bad faith. The court must consider the evidence regarding the nature and extent of the Skaggs' alleged injuries, as well as the alleged wrongful conduct of the defendants in the state tort case. At bottom, this is a case about a horrible trailer fire that claimed the life of a five year old girl, and injured her mother, younger sister, and stepfather. If the Skaggs' case against the Cossell Group had gone to trial, the Skaggs would have presented evidence that the fire began in the front room of the Skaggs' family trailer and that Patrick Skaggs became aware of the fire when he was awakened by two year old Patricia. He smelled smoke and proceeded to the front of the trailer, where he saw flames and sparks coming from a wall socket by the front door of the trailer. He picked up Amber who had been asleep on the couch and rushed back to the bedroom. Patrick Skaggs tried to kick open the back door of the trailer. Tragically, it would not open because it had been chained and wired shut from the outside, apparently by the Cossell Group's property manager. Patrick then ran back to the front of the trailer where he attempted to put out the fire, but was unsuccessful. When he opened the front door to try to get the family out of the trailer that way, the entire front room went up in flames. Patrick went through the flames, suffering burns as a result, and got outside. He then went around to the side of the trailer where he broke out a bedroom window. Patrick pulled little Patricia out through the window. Lorrie reached for Amber but could not find her. The room was full of smoke. Lorrie struggled to find Amber but still could not find her. Patrick eventually pulled Lorrie out through the window. Patrick tried several times to re-enter the trailer to find Amber. He was also unable to do so because of the intense smoke and flames. See Supp. Invest. Report; Deputy Coroner Field Report; Def. Ex. 3. Because of his efforts, Patrick sustained thermal burns over 3.5 percent of his body, which have resulted in daily pain, scarring, and a 10 percent permanent partial impairment rating. See Def. Resp. Exs. 7(K), 7(L). Firefighters then arrived and tried to pry open the back door of the trailer. Approximately three minutes after entering the burning trailer, they located Amber in a bedroom in the rear of the trailer. They found her just a few feet from the chained and wired back door, hiding under a bed and clutching a Raggedy Ann pillow-case. She was not breathing. The firefighters brought her blackened and lifeless body out of the trailer and immediately began attempts to resuscitate her. She was then transported to the hospital by ambulance. Doctors at the hospital were able to resuscitate her and she was placed on a *848 ventilator. It was estimated, however, that Amber had gone without oxygen to her brain for 45 minutes. Her pupils were fixed and dilated. Doctors determined that Amber had suffered second and third degree thermal burns over 46 to 50 percent of her body and had significant smoke inhalation injuries. The next morning, Amber's cerebral function was still zero. After discussing the options with Amber's treating physicians, Lorrie and Patrick Skaggs made the difficult decision to take Amber off of life support. Amber was pronounced dead a short time later. Def. Resp. Ex. 7(H). If this case had proceeded to trial, the Skaggs would have presented these facts by oral testimony from Patrick and Lorrie Skaggs and others, including firefighters, emergency medical personnel, and the doctors at Methodist Hospital. The court does not mean to suggest here that every detail of this account of the fire or the Skaggs' injuries is beyond reasonable dispute here or in a trial of their underlying claims. The evidence before this court shows beyond reasonable dispute, however, that the Skaggs family would have presented substantial evidence to support this account. For purposes of evaluating the reasonableness of the Cossell Group's decision to settle, that ability to support the account is the material fact. Additionally, in making the decision to settle, the Cossell Group knew the jury also likely would have viewed two kinds of probative and very powerful visual evidence: a fire department videotape of the fire, and photographs of Amber when she was at the hospital and autopsy photographs of her body. These items are part of the record here as Defendants' Response Exhibits 8, 7(F), and 7(G). The fire department videotape begins as the fire truck is en route to the fire. The videotape shows the entire front of the trailer engulfed in flames when the fire truck arrived on the scene. The videotape has sound. A viewer can hear people screaming that a child is trapped inside the burning trailer. The videotape shows firefighters working to enter the back of the trailer. After a short period of time, a firefighter emerges from the back of the trailer carrying Amber's blackened and lifeless body. As firefighters and medical personnel work feverishly to resuscitate her, Lorrie Skaggs can be heard hysterically screaming Amber's name and begging Amber to "please hold on for Mommy." Amber is then placed in an ambulance for transport to the hospital. The photographs of Amber when she was at the hospital show Amber lying on her back with numerous tubes hooked up to her blackened and burned body. Her once blond hair is black from soot, and a black liquid is seeping from her nose. The autopsy photographs graphically depict the severe burns on Amber's body. Defendants have also submitted a videotape of Patrick and Lorrie Skaggs that was part of a settlement presentation the Skaggs gave to the Cossell Group. Patrick and Lorrie discuss on the tape their memories of Amber as a young child and the effects the fire had on their lives. See Def. Resp. Ex. 9. The videotape is a good indication of what Patrick and Lorrie Skaggs likely would have said if they had been called to testify at trial on the issue of damages. Patrick describes his attempts to rescue Amber from the burning trailer and shares his frustration at not being able to reach her. He also describes the pain he continues to suffer from as a result of the burns to his feet and how the pain makes it difficult for him to work. Lorrie Skaggs describes her overwhelming grief at losing Amber and how difficult it was to make the decision to take Amber off of life support. She also relates how Patricia suffered from nightmares after the fire and is still terrified to be near an open flame. In addition to their physical and emotional injuries, the Skaggs family lost nearly all their clothes and other possessions in the fire, including their car and the family pets. The Skaggs estimate that they lost approximately $5,500 in personal property. Def. Ex. 3; Def. Resp. Ex. 7(N). Their *849 medical bills were approximately $8,000, and Amber's funeral and burial expenses were approximately $2,000. Def. Resp. Exs. 7(M), 7(N). Regarding the wrongful conduct of the Cossell Group, the Skaggs likely would have produced evidence at trial of various health and safety violations at the Shady Pines mobile home park. At the time of the fire, there was no smoke alarm in the Skaggs' trailer. Also, as noted, the back door, which arguably offered the best escape route from the fire, had been chained and wired shut from the outside by Cossell Group's property manager. Patrick Skaggs had complained to defendants Kearns and Lloyd about an electrical outlet next to the front door that was not working. Although the outlet was later repaired, it was the outlet where the fire started. From 1985 up to the time of the fire, Shady Pines had been cited many times by the Marion County Health Department for violations of health and safety regulations. The violations included having trailers with back doors that would not open, smoke detectors that did not work, and electrical hazards. See Def. Ex. 3; Def. Resp. Ex. 3. The Cossell Group had ample reason to fear the verdict of jurors who would have watched a videotape of a fireman carrying a lifeless Amber from the fire while her mother is screaming in the background, who would have viewed graphic pictures of Amber's badly burned body, and who would have learned of these health and safety violations at Shady Pines, especially in light of the fact that firefighters found Amber a few feet away from the locked back door of the Skaggs' trailer that Patrick Skaggs had desperately tried to force open. Because of the compelling evidence that likely would have been produced at a trial, this court is confident that the defendants in the Skaggs' lawsuit faced a considerable risk of liability and a large damages award against them. This conclusion is supported by reports of verdicts in similar cases, of the type that are often used as benchmarks in settlement negotiations. Of course, the Cossell Group still had the possibility of winning on its statute of limitations defense, but if that defense was not successful, its prospects were bleak. Those reports, submitted as part of the record in this case, support a conclusion that a verdict on all the Skaggs family's claims would likely have been well beyond $1.6 million, sufficient to support a discount to that figure when uncertainty over the statute of limitations defense was taken into account. See Def. Resp. Exs. 5, 6.[7] The possibility of a large jury verdict appears also to have been a significant risk in the eyes of Shelby Insurance, the insurance carrier for defendants Lloyd and Kearns. Shelby agreed to pay $300,000 to the Skaggs family in a structured settlement, even though it had filed a declaratory judgment action contesting coverage. See Def. Resp. Exs. 4, 12. In addition to the significant risk of a large jury award against the defendants, other circumstances regarding the manner *850 in which the parties reached a settlement further undermine any attempt to argue that this settlement was unreasonable or was a product of bad faith or collusion. First, the parties to the tort lawsuit contested that lawsuit vigorously for four years, and the insureds tried twice to have the case dismissed on statute of limitations grounds. This is not a case where abandoned insureds "rolled over" by quickly conceding liability and entering into a large settlement agreement with the plaintiffs. And, as discussed above, Cossell Group did not give up an "absolute defense" when it waived the statute of limitations defense. At the time of the settlement agreement, and without the unfair benefit of hindsight provided by the Supreme Court of Indiana decision in Schuman, Indiana law regarding which statute of limitations governed the Skaggs' claims was uncertain. Second, and most unusual in cases of this sort, the general partners of Cossell Group paid the Skaggs family $300,000 out of their own pockets. See Laikin Aff. ¶ 7. The cases this court has found dealing with issues of this kind involve consent judgments in which the insured pays nothing and the plaintiff agrees never to try to execute on the insured's assets. See Sargent v. Johnson, 551 F.2d 221, 232 (8th Cir.1977). In fact, Midwestern has not called the court's attention to, and the court is not aware of, any case finding that a consent judgment in these circumstances was unreasonable or a product of bad faith or collusion where the insured made such a substantial cash payment to the plaintiff. That fact alone is powerful evidence that the insureds did not simply roll over on a case they were certain to win. The Seventh Circuit has often recognized that real transactions in which a client actually pays a lawyer provide a far better gauge of the market value of a lawyer's time than does a judge's attempt to divine the modern equivalent of a medieval "just price." See, e.g., In re Continental Illinois Securities Litigation, 962 F.2d 566, 568, 570 (7th Cir.1992). Similarly here, the fact that the principals of the Cossell Group paid $300,000 in cash provides a far more compelling measure of the reasonableness of the terms of the settlement than do the arguments of lawyers bolstered by 20/20 hindsight.[8] Third, although the parties dispute the content of settlement negotiations, Midwestern had the opportunity to participate in settlement negotiations. This was not a settlement that was reached behind "closed doors" without any notice given to Midwestern. Considering all the evidence discussed above that likely would have been presented if the Skaggs' lawsuit had gone to trial, the court finds as a matter of law that the terms of the consent judgment were not unreasonable and could not reasonably permit an inference of collusion or bad faith. At the time the parties reached their settlement, Indiana law on the Cossell Group's statute of limitations defense was *851 not clear. Moreover, if the statute of limitations defense had turned out not to be applicable, the likely effects for the Cossell Group would have been devastating. Recall the evidence that the fire started in a faulty outlet, and especially the evidence that a Cossell Group employee had wired and chained the back door shut from the outside. Additionally, the evidence on damages made the threat of a multimillion dollar verdict a serious possibility. Such a verdict would have produced a judgment with "the sharp thrust of personal liability," see Morris, 741 P.2d at 251, directed against the principals of the Cossell Group. The court therefore finds as a matter of law that the settlement for $1.6 million was not so unreasonable as to permit an inference of collusion or bad faith. Because Midwestern has not produced any other evidence that the settlement agreement between the Skaggs and the Cossell Group was a product of bad faith or collusion, the court grants summary judgment to the defendants on this issue. The settlement withstands Midwestern's effort to force a trial of all the issues of liability and damages in the underlying lawsuit between the Skaggs and the Cossell Group.[9] C. Midwestern's Fifth Additional Defense — "Legally Obligated to Pay" The defendants have also moved for summary judgment as to Midwestern's fifth additional defense that it has a duty to pay only those damages which the Cossell Group is "legally obligated to pay." This defense is based on language in the Cossell Group's 1990-91 policy with Midwestern, which states that Midwestern will "pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." The parties assume for purposes of argument that the same terms would apply under the binder issued by the insurance agent in 1989 before the fire. Midwestern contends it has no duty to pay the consent judgment because the agreement between the Skaggs and the Cossell Group did not impose any legal obligation on the Cossell Group to satisfy the $1.6 million judgment. As part of the agreement, after the Cossell Group paid $300,000, the Skaggs covenanted not to execute the judgment against the Cossell Group. The Cossell Group assigned to the Skaggs its claims against Midwestern. Midwestern argues that the covenant not to execute relieves the Cossell Group of any legal obligation to pay the judgment. Thus, Midwestern contends, its duty to indemnify the Cossell Group never arose and it is not required to satisfy the judgment. In response, the Cossell Group and the Skaggs contend that Midwestern should not be permitted to rely on the "legally obligated to pay" policy language because Midwestern "abandoned" the Cossell Group and failed to provide a defense to the Skaggs' claims. The best indication of Indiana law on this issue appears in American Family Mutual Ins. Co. v. Kivela, 408 N.E.2d 805 (Ind.App.1980). The Indiana Court of Appeals considered the effect of a "hold harmless agreement" on an insurer's duty to satisfy a consent judgment after the insurer had refused to provide a defense for its insured. The plaintiffs and the insured settled their litigation by entry of consent judgments with the plaintiffs agreeing that the judgments would be satisfied *852 only by insurance proceeds, not from the insureds' personal assets. The insurer argued that it had no duty to satisfy the consent judgments because the insureds were not "legally obligated to pay" any amount of damages. The court wrote: "At first blush, the logic of this position is enticing." 408 N.E.2d at 811. However, after reviewing the split of authority from around the nation, the Indiana court found that, having been abandoned by their insurer, the insureds were "entitled to use all reasonable means of avoiding personal liability." Id. at 812, quoting Metcalf v. Hartford Accident & Indem. Co., 176 Neb. 468, 126 N.W.2d 471, 475 (1964). The court explained: It was to [the insured's] personal interest to consent to the ... judgment and accept an agreement from the plaintiff not to execute on his property other than any rights to indemnity he might have in the designated insurance policies. The matter is of no consequence to defendant if its claim of nonliability is correct. Since its claim of nonliability has no validity, and it having declined to defend the action when called upon to do so, the defendant is in no position to attack the judgment in the absence of fraud, collusion, or bad faith. Kivela, 408 N.E.2d at 812, quoting Metcalf, 126 N.W.2d at 475-76. Thus, the Indiana court concluded "that an insurer may not hide behind the `legally obligated to pay' language of the policy after it abandons its insured and the insured settles the claim against him by agreement." Kivela, 408 N.E.2d at 813. Midwestern argues that Kivela is not controlling here because Midwestern filed this declaratory judgment action and therefore did not "abandon" the Cossell Group. As discussed above, Midwestern clearly had the right under Indiana law to file a declaratory judgment action and have a court determine if it has a duty to provide coverage. See, e.g., Frankenmuth Mut. Ins. Co. v. Williams, 690 N.E.2d at 679. Midwestern's decision to file a declaratory judgment action, however, still left the Cossell Group in a position similar to that of the insured in Kivela. The Cossell Group was required to defend itself in the Skaggs' litigation, without knowing if it would have insurance coverage for the fire. Thus, like the insureds in Kivela, the Cossell Group was "entitled to use all reasonable means of avoiding personal liability." 408 N.E.2d at 812. The court does not believe the Supreme Court of Indiana would treat the existence of this coverage lawsuit as a reason to distinguish Kivela. Such reasoning would, in effect, enable an insurer, by breaching its contract, to lock its insured and injured victims into years of expensive and unwanted litigation. Under that approach, the Cossell Group and the Skaggs would have had to wait for the ultimate conclusion of this coverage litigation before reaching a settlement that would leave the Skaggs free to pursue the insurer while the Cossell Group went on about its business. Other state courts that have considered this issue have approached it in a manner similar to that of the Indiana court in Kivela. These courts have focused on the insurer's refusal to defend its insured in a tort lawsuit and have prohibited the insurer from relying on "legally obligated to pay" language in their policies to avoid satisfying a consent judgment. See, e.g., Globe Indemnity Co. v. Blomfield, 115 Ariz. 5, 562 P.2d 1372, 1375-76 (1977) (finding that a covenant not to execute is "merely a contract and not a release" and also recognizing an "alternative theory" under which an insurer may be held liable to a tort claimant despite a covenant not to execute: "Even if there were a rule that a covenant not to execute by one party released another party whose liability was solely derivative, an exception to this rule should be recognized where the insured made the covenant in order to protect himself after being abandoned by the insurer."); Griggs v. Bertram, 443 A.2d at 175 ("An insured tortfeasor should be able to reach an agreement relieving it of liability when its carrier wrongfully declines to defend."); State Farm Mutual Auto. Ins. Co. v. Paynter, 122 Ariz. 198, 593 P.2d 948, *853 953 (1979) (agreeing that an insurer who refuses to defend its insured should not be able to rely on "legally obligated to pay" language in an insurance policy to relieve its obligation to satisfy a consent judgment; permitting an insurer to do so "would wholly undermine the purpose of such [consent] agreements" between insureds and tort claimants); but see Lida Manufacturing Co., Inc. v. United States Fire Ins. Co., 116 N.C.App. 592, 448 S.E.2d 854, 856 (1994) ("This Court, however, along with other states, has determined that when an insurance policy contains language such as `legally obligated to pay,' an insurer has no obligation to an injured party where the insured is protected by a covenant not to execute."); Freeman v. Schmidt Real Estate & Ins., 755 F.2d 135, 138-39 (8th Cir.1985) ("An insured protected by a covenant not to execute has no compelling obligation to pay any sum to the injured party; thus, the insurance policy imposes no obligation on the insurer.") (citing cases).[10] Midwestern relies on the Seventh Circuit's decision in United States Fire Ins. Co. v. Lay, 577 F.2d 421 (7th Cir.1978), to show it has no obligation to satisfy the consent judgment. Lay involved a dispute between a primary liability insurer and an excess liability insurer. The primary insurer had a policy limit of $100,000. It negotiated a settlement agreement with the tort claimant in which it agreed to pay only $70,000 of its $100,000 policy limit. In exchange, the claimant agreed that if there was a judgment in the tort lawsuit in excess of $100,000, the primary carrier would be "given credit" for $100,000. Id. at 422. The tort claimant and the primary insurer then presented an agreed judgment of $150,000, to the court and the claimant sought to recover the difference from the excess carrier. Not surprisingly, in light of these facts, Judge Steckler of this court and a panel of the Seventh Circuit had no difficulty finding that an excess liability insurer's liability was extinguished by a settlement agreement between a tort claimant and the primary insurer for less than the amount of the primary insurer's policy limits. The Seventh Circuit found that the excess carrier was not obligated to indemnify the primary insurer because the settlement agreement "effectively released" the primary insurer from all liability in excess of $70,000. Id. at 423. Thus, the excess carrier's obligation to indemnify the primary carrier "never arose." Id. Midwestern's reliance on Lay is not persuasive here. Lay did not involve a situation in which an insurer refused to defend its insured, forcing the insured to "protect itself" by entering into a settlement agreement with a tort claimant. Implicit in the Indiana case law on collateral estoppel discussed above is the recognition that insureds who have been forced wrongfully by their insurers to defend themselves have been placed in a very difficult position. See, e.g., Liberty Mutual v. Metzler, 586 N.E.2d at 902 ("An insurer, having knowledge its insured has been sued, may not close its eyes to the underlying litigation, force the insured to face the risk of that litigation without the benefit of knowing whether the insurer intends to defend or to deny coverage, and then raise policy defenses for the first time after judgment has been entered against the insured."). Midwestern's decision to file a declaratory judgment action permits it to raise coverage defenses in this court. However, if this court were to agree with Midwestern and find that the covenant not to execute relieved Midwestern of its duty to indemnify the Cossell Group, then the settlement agreement between the Cossell Group and the Skaggs family would be worse than meaningless. See State Farm Mutual v. Paynter, 593 P.2d at 953 (permitting an insurer to rely on "legally obligated to *854 pay" language in an insurance policy to relieve its obligation to satisfy a consent judgment "would wholly undermine the purpose of such [consent] agreements" between insureds and tort claimants). Under Midwestern's approach, an insured who has been forced by his insurer to pay for his own defense and to face huge personal liability would be in a no-win, or perhaps a "no-settlement," situation. If the covenant not to execute lets the insurer off the hook completely, the insured and the injured parties would not be able to allocate between themselves the risks created by uncertainty over insurance coverage. The injured parties would have no incentive to settle their tort claims until after the coverage issue was resolved, perhaps years later. See generally Glenn v. Fleming, 799 P.2d at 93 ("Settlement practices and timing have a direct effect on the quantity and flow of court business and thus on the administration of justice generally. Public policy permitting or proscribing tactical weapons developed by claimants and insurers should be shaped by two influences: (1) the public interest in encouraging settlements, and (2) fairness, that is, equalization of the contenders' strategic advantages."). The court therefore finds that, because Midwestern is precluded from relying on the "legally obligated to pay" language in the insurance policy, the defendants are entitled to summary judgment on Midwestern's fifth affirmative defense. That does not mean, of course, that the court has determined Midwestern owes the Cossell Group any coverage here. That remains an issue for trial. But the terms of the consent judgment, which leave the Skaggs the incentive to pursue the coverage issue at this point, do not relieve Midwestern of any duties on the theory that its insureds were not legally obligated to pay the entire amount of the consent judgment.[11] D. The Effect of the Skaggs' Bankruptcy Finally, Midwestern contends it cannot be liable for any amount here because the 1999 consent judgment is void as a result of the Skaggs' failure to list their claims against the Cossell Group as an asset in their 1996 bankruptcy petition. See Pl. Ex. D. The court finds that the bankruptcy trustee's and bankruptcy court's later ratification of the Skaggs' handling of the tort litigation cured the Skaggs' initial failure. Midwestern is not entitled to avoid liability on this basis. The undisputed evidence establishes the following facts with respect to this issue. While the Skaggs' lawsuit in the Marion Superior Court was pending, Patrick and Lorrie Skaggs filed for bankruptcy in August 1996. They did not list their claims against the Cossell Group as assets on Schedule B of the petition, as they were required to do. Pl. Ex. C. However, after the consent judgment was entered in the Marion Superior Court lawsuit, the Skaggs reopened their bankruptcy in 1999, filed an amended schedule listing the various claims arising from the fire, and entered into a settlement agreement with the bankruptcy trustee. Under the agreement, the Skaggs paid $20,000 to settle all creditors' claims and costs, and the trustee assigned back to the Skaggs all his rights to and interest in the family's litigation regarding the fire. The trustee also ratified and consented to all actions that the family had taken to prosecute and settle the fire litigation, including the settlement and consent judgment. The bankruptcy court approved the settlement on December 8, 1999. Def. Resp. Ex. 2. After a debtor files for bankruptcy, the debtor's estate includes, with exceptions not relevant here, "all legal or equitable interests of the debtor in property as of *855 the commencement of the case." 11 U.S.C. § 541(a)(1). This statute has uniformly been interpreted to include causes of action. See, e.g., In re Polis, 217 F.3d 899, 901 (7th Cir. 2000); In re Yonikus, 996 F.2d 866, 869 (7th Cir.1993). Midwestern argues that the Skaggs had no authority to pursue their claims regarding the fire because the bankruptcy trustee is the only party under Indiana law who could have pursued such claims. From these premises, Midwestern contends that the consent judgment is void because the Skaggs had no authority to settle their claims regarding the fire.[12] Both sides rely on the Supreme Court of Indiana's decision in Hammes v. Brumley, 659 N.E.2d 1021 (Ind.1995), which actually decided several similar cases. In each, a debtor had filed for bankruptcy and had filed a tort claim against a third party without listing the tort claim as an asset on the debtor's bankruptcy petition. In each case the bankruptcy court later exercised its discretion to allow the debtor to amend the petition, and the state trial court allowed the debtor to amend the complaint to substitute the bankruptcy trustee as the real party in interest in the tort litigation. The question presented was whether the substitution of the bankruptcy trustee as the plaintiff related back to the time the debtor filed the original complaint, "notwithstanding the intervening expiration of the applicable statute of limitations." Id. at 1025. The Supreme Court of Indiana held in Hammes that the amendments related back to the times the original complaints were filed, so that the plaintiff-debtors' failures to list their claims as assets did not effectively release tortfeasors from liability. The court reasoned that the plaintiff-debtors had all had standing to bring their claims when they were filed but were not the real parties in interest to assert such claims. The court held that the real parties in interest (the bankruptcy trustees) could be substituted and that the substitutions would relate back to the times the original complaints were filed. Id. at 1029-30. The court based its conclusion on sound public policy considerations. Its decision had the effect of protecting the interests of the plaintiff-debtors' innocent creditors, which is a goal of the bankruptcy law requiring claims in lawsuits to be listed as assets. The decision also had the effect of prohibiting the tortfeasors from profiting at the creditors' expense merely because the debtors had erroneously failed to list the tort claims as assets. Similar reasoning applies here. This court sees no reason to permit Midwestern to avoid the possibility of having to indemnify an insured and satisfy the consent judgment simply because the Skaggs failed to list their pending tort claims on their bankruptcy petition. Midwestern's approach would turn upside down the goal of the bankruptcy laws. Midwestern seeks to use the debtors' failure to comply with a duty to creditors — listing all assets that may be available to creditors — as a basis for extinguishing those assets and allowing the tortfeasors or their insurer to escape liability to either the debtors or the creditors. As this court noted in its entry on plaintiff's motion to amend its complaint, "Hammes clearly reflects the state court's belief that these problems should be resolved in ways that serve substantive justice rather than creating new opportunities for tortfeasors to escape liability for their actions." When the Skaggs filed their lawsuit in the Marion Superior Court, they had not filed for bankruptcy, and they obviously had standing and were the real parties in *856 interest to pursue their claims. Under Hammes, after the Skaggs filed for bankruptcy, they still had standing to pursue their lawsuit for damages arising out of the fire, but the bankruptcy filing meant that the trustee then became the real party in interest who should pursue at least some of those claims.[13] The Skaggs later took sufficient steps to cure the problems created by their incomplete bankruptcy filing by petitioning to reopen their case, filing an amended schedule listing the claims arising from the fire, and entering into a settlement agreement with the bankruptcy trustee that was approved by the bankruptcy court. Def. Resp. Ex. 2. Under Hammes, these undisputed facts show that the Skaggs' failure to list their tort lawsuit in their bankruptcy petition did not render the consent judgment in the tort lawsuit void under Indiana law. Summary judgment for Midwestern on this basis is therefore denied. Defendants have not moved for summary judgment on this defense, but it appears that they may be entitled to it. Midwestern shall show cause no later than September 15, 2000, why summary judgment should not be entered for defendants on the issue whether the Skaggs' failure to list the tort claims in their bankruptcy petition voids the consent judgment. Any response shall include any additional evidence Midwestern relies upon to avoid summary judgment on this issue. Defendants may reply to Midwestern's response within 30 days after it is filed. Conclusion For the foregoing reasons, the court denies Midwestern's motion for summary judgment and orders Midwestern to show cause within 30 days why the court should not grant summary judgment to the Cossell Group and find as a matter of law that the Skaggs' failure to list their claims against the Cossell Group on their bankruptcy petition does not render the consent judgment void. The court grants summary judgment to the defendants on Midwestern's fourth additional defense because there is no evidence that the settlement agreement between the Skaggs family and the Cossell Group was unreasonable or a product of bad faith or collusion. Additionally, the court grants summary judgment to defendants on Midwestern's fifth additional defense because Midwestern is precluded from relying on the "legally obligated to pay" language in the insurance policy. The court will confer with counsel on Tuesday, September 5, 2000, at 4:30 p.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana, to set a date for trial on the issue of coverage. So ordered. NOTES [1] For that reason, this court refers to Laikin and the Cossell Group in this entry as the "insured," although whether they were in fact "insured" remains a hotly disputed issue for trial. [2] Defendants have argued that the Indiana court's opinion in Frankenmuth shows that an insurance company that files a declaratory judgment action does so "at its peril." The argument is based on a clear misreading of the opinion. The Supreme Court of Indiana wrote: "As the Court of Appeals observed in Liberty Mutual [v. Metzler], an insurer may `refuse to defend or clarify its obligation by means of a declaratory judgment action,' but `it does so at its peril.'" 690 N.E.2d at 679, quoting 586 N.E.2d at 902. The court clearly meant that if the insurer refuses either to defend its insured or to clarify its obligation in a declaratory judgment action, it does so "at its peril." That is also the plain meaning of Metzler, which was quoted, and Glasgow, which was followed in Metzler. [3] Even if the disagreement between Midwestern and the Cossell Group on coverage were deemed a conflict of interest for these purposes, Midwestern would still be bound on the issues of liability and damages (there was no conflict of interest on those issues), so long as the Cossell Group conducted a defense with due diligence and reasonable prudence. As explained below, it did so. [4] See generally Justin A. Harris, Note, Judicial Approaches to Stipulated Judgments, Assignment of Rights, and Covenants Not to Execute in Insurance Litigation, 47 Drake L. Rev. 853, 856-57 (1999); Chris Wood, Note, Assignments of Rights and Covenants Not to Execute, 75 Tex.L.Rev. 1373 (1997). [5] Midwestern would not even qualify for the protection the Texas court provided the insurer in Gandy, however, because Midwestern did not provide a defense to its (putative) insureds. [6] In addition, as any law student learns quickly, and as any experienced practitioner learns to feel in her bones, it is possible for a court to decide to depart from prior precedent and to chart a new course in the law even when that particular area of the law has seemed settled. See, e.g., Benton v. City of Oakland City, 721 N.E.2d 224 (Ind.1999) (rewriting law of public and private duties in tort claims against state and local governments); Kimberlin v. DeLong, 637 N.E.2d 121 (Ind.1994) (established precedents had held that a tort victim's subsequent suicide insulated tortfeasor from liability for wrongful death, but court recognized new exception if tort was intentional and was a substantial factor in suicide); Barnes v. Barnes, 603 N.E.2d 1337 (Ind.1992) (established precedents gave parents immunity in personal injury actions by minor children against their parents, but court recognized new exception when action is based on claim of intentional felonious conduct). Moreover, legal realists recognize that such departures from precedent are often more likely to occur in cases with especially compelling facts. The Cossell Group could reasonably fear that prospect in this case. [7] The risk that the Cossell Group's statute of limitations defense would fail and that its principals would face a serious prospect of a multimillion dollar verdict is also consistent with this court's experience in a case with some striking parallels to this one. In Dameron v. City of Scottsburg, 36 F.Supp.2d 821 (S.D.Ind.1998), this court denied a motion for summary judgment, concluding that recent Indiana Court of Appeals decisions on the controlling issue would not be followed by the Supreme Court of Indiana. The case went to trial on a mother's claim for the drowning of her six year old daughter as a result of negligence on the part of city lifeguards. The proof of negligence was clear. The plaintiff's attorneys asked the jury in closing argument for a verdict of $3 million. In less than an hour, the jury returned a verdict of $6 million. (That verdict, however, was subject to the $300,000 damages cap in the Indiana Tort Claims Act governing claims against local governments.) After the judgment was paid, the Supreme Court of Indiana addressed the dispositive issue and overruled the Court of Appeals decisions the defendant had relied upon in its summary judgment motion. See Benton v. City of Oakland City, 721 N.E.2d 224 (Ind. 1999). That sequence of events reflects the risk the Cossell Group faced if it did not settle, and it did not have the benefit of a statutory cap on damages. [8] The fact that the Cossell Group paid "only" $300,000 does not show, however, that any higher amount was not reasonable. Where the insurer has breached its contract — and that is the premise upon which all of this analysis is built — the plaintiffs and defendants in the underlying lawsuit are entitled to allocate between them in a reasonable way the risks of losing the coverage dispute. This is clear from the many cases around the country enforcing consent judgments against insurers even where the insured has paid no money at all. Courts are understandably concerned and cautious, of course, when looking at an agreement in which A and B agree that C should pay money to A. See, e.g., Citizens Electric Corp. v. Bituminous Fire & Marine Ins. Co., 68 F.3d 1016, 1022 (7th Cir.1995) (discussing Illinois law and in dicta describing as "contestable" the holding of Wolf v. Maryland Cas. Co., 617 F.Supp. 456, 460 (S.D.Ill.1985), to the effect that an insurer will be bound by a good faith consent judgment with a covenant not to execute). As shown by the numerous decisions addressing this problem squarely, however, enforcing reasonable consent judgments is the preferable approach when insurers have breached their contracts, leaving their insureds to finance their own defenses and to face the risk of devastating personal liability. See, e.g., Morris, 741 P.2d at 251-52; Miller v. Shugart, 316 N.W.2d at 734. [9] Even if there were evidence of unreasonableness, bad faith, or collusion, it is highly doubtful that such evidence would help Midwestern avoid all liability here. The undisputed evidence shows that the Cossell Group paid the Skaggs $300,000 in cash. That amount would be reasonable under any theory here, and the Cossell Group assigned to the Skaggs their own right to seek indemnity from Midwestern for that amount. In addition, the result of a finding of unreasonableness or bad faith as to the settlement would probably be to set aside the settlement, leaving the underlying claims for trial on the merits. See Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 280 (Minn.1990) (rejecting alternatives of either letting insurer escape all liability or allowing trial court to decide on a reasonable amount of damages). [10] Freeman involved a prediction of Iowa law, but when the issue was presented to the Supreme Court of Iowa, that court disagreed with Freeman and held that the "legally obligated to pay" theory would not relieve the insurer of liability. Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524 (Iowa 1995). [11] Even if Midwestern were correct on this issue, it would still be obligated to pay the $300,000 that its insured actually paid in cash. The Cossell Group assigned to the Skaggs all its claims and rights against Midwestern, and there is no apparent reason why it could not do so. The Skaggs would therefore be entitled to at least $300,000 even under Midwestern's theory. [12] Midwestern has not explained how the bankruptcy proceedings might have affected either Patrick and Lorrie Skaggs' claims as next friends of their children Patricia Skaggs and the late Amber Nicole Mitchell, or the Cossell Group's claims against Midwestern for defense costs, which the Cossell Group has assigned to the Skaggs. However, because the court finds that the steps taken to reopen the bankruptcy proceedings are sufficient to allow Patrick and Lorrie Skaggs to pursue even their own claims, the court need not resolve these other issues. [13] Again, the court is ignoring the complication posed by the fact that Patrick and Lorrie Skaggs were also pursuing claims on behalf of the two children who were victims of the fire, whose claims presumably would not have been part of the parents' bankruptcy estate.

14-2381 Neroni v. Coccoma UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of January, two thousand fifteen. PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges. _____________________________________ FREDERICK J. NERONI, Plaintiff-Appellant, v. 14-2381 MICHAEL V. COCCOMA, individually and as the Deputy Chief Administrative Judge in charge of Upstate New York courts, A. GAIL PRUDENTI, individually and as the Chief Administrative Judge of Upstate New York, ROBERT MULVEY, individually and as Chief Administrative Judge, 6th Judicial District, ELLEN L. COCCOMA, individually and as a former member of the Committee for Professional Conduct, Appellate Division, Third Judicial Department, HINMAN, HOWARD & KATTELL, LLP, a Binghamton law firm, KEVIN DOWD, Individually and as a Supreme Court Justice, State of New York, assigned to the Delaware County Supreme Court case Kilmer v. Moseman, Delaware County Index No. 2009- 298, Mokay v. Mokay, Delaware County Index No. 2007-695, EUGENE PECKHAM, individually and as the former Acting Supreme Court justice assigned to the Delaware County Supreme Court case Kilmer v. Moseman, Delaware County Index No. 2009-298, and as a judicial hearing officer in Delaware County Supreme Court, LEVENE, GOULDIN AND THOMPSON, LLP, MARGARET FOWLER, ESQ., THOMAS MERCURE, individually and as the former acting Chief Judge, Appellate Division, Third Judicial Department, KAREN PETERS, individually and as the Chief Judge, Appellate Division, Third Judicial Department, KELLY SANFILIPPO, Court Clerk Delaware County Supreme, County and Surrogate's Court, in her official capacity only, Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Frederick J. Neroni, pro se, Delhi, N.Y. FOR DEFENDANTS-APPELLEES MICHAEL COCCOMA, PRUDENTI, MULVEY, ELLEN COCCOMA, DOWD, PECKHAM, MERCURE, PETERS, AND SANFILLIPPO: Andrew B. Ayers, Assistant Solicitor General, Barbara D. Underwood, New York State Office of the Attorney General, New York, N.Y. FOR DEFENDANT-APPELLEE HINMAN, HOWARD & KATTELL, LLP: James Smith Gleason, Hinman, Howard & Kattell, LLP, Binghamton, N.Y. FOR DEFENDANTS-APPELLEES LEVENE, GOULDIN AND THOMPSON, LLP and MARGARET FOWLER: Robert A. Barrer, Hiscock & Barclay, LLP, Syracuse, N.Y. Appeal from the judgment of the United States District Court for the Northern District of New York (Sharpe, J.).  UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED and the motion for certification is DENIED. Frederick J. Neroni appeals from the district court’s judgment dismissing his complaint brought under 42 U.S.C. § 1983 for violations of his constitutional rights and denying his motion to recuse Judge Sharpe. We assume the parties= familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court decision dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Litwin v. Blackstone Group, L.P., 634 F.3d 706, 715 (2d Cir. 2011). Where a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, we review the district court’s legal conclusions de novo and its factual findings for clear error. Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2006). In each instance, we “accept[] all factual allegations as true and draw[] all reasonable inferences in favor of the plaintiff.” Litwin, 634 F.3d at 715; see also Triestman, 470 F.3d at 474. Dismissal of a case under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion, the complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 A district judge's decision not to recuse himself from a proceeding or disqualify counsel is reviewed for abuse of discretion. SEC v. Razmilovic, 738 F.3d 14, 30 (2d Cir. 2013) (recusal); GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., 618 F.3d 204, 209 (2d Cir. 2010) (disqualification). We affirm for substantially the same reasons stated by the district court in its well-reasoned opinion. Neroni v. Coccoma, No. 3:13-CV-1340, 2014 WL 2532482, at *4-14 (N.D.N.Y. June 5, 2014). Neroni argues that the district court erred by holding that the New York Committee on Professional Standards is “an arm of the appellate division.” However, we have consistently extended quasi-judicial immunity to attorney disciplinary committees. See Anonymous v. Ass'n of the Bar of City of New York, 515 F.2d 427, 433 (2d Cir. 1975) (noting that a Grievance Committee “acts as a quasi-judicial body” and thus “is an arm of the Appellate Division”), (quoting Wiener v. Weintraub, 22 N.Y.2d 330, 331-32 (1968)). We decline to consider Neroni’s argument, raised for the first time on appeal, that his wife’s suit against Judge Sharpe warranted recusal. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). Finally, in our discretion we deny Neroni’s motion to certify several questions to the New York Court of Appeals. We note that the question of whether particular conduct constitutes state action under Section 1983 is a matter of federal law, not state law. Powe v. Miles, 407 F.2d 73, 82-83 (2d Cir. 1968) (declining to consider state decisions in determining whether official conduct constitutes state action under Section 1983). 4  We have considered Neroni’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 5 

76 B.R. 199 (1987) In re PANDA DEVELOPMENT CORP., INC., Debtor. PANDA DEVELOPMENT CORP., INC., Plaintiff, v. SOUTHEAST BANK, N.A., Defendant. Bankruptcy No. 86-00941-BKC-6P1, Adv. No. 87-0065. United States Bankruptcy Court, M.D. Florida, Orlando Division. July 23, 1987. *200 Stephen A. Hilger, Gray, Harris & Robinson, P.A., Orlando, Fla., for Southeast Bank, N.A. Patricia L. Daugherty, Orlando, Fla., for the debtor corp. FINAL JUDGMENT GEORGE L. PROCTOR, Bankruptcy Judge. THIS CAUSE came before the Court on SOUTHEAST BANK, N.A.'s Motion to Dismiss the plaintiff's adversary proceeding for preliminary and permanent injunctive relief. The bank's motion was made on the grounds that this Court lacks jurisdiction. The Court finds that the bank's motion is well taken and should be granted. The adversary proceeding was brought by the debtor to prevent SOUTHEAST BANK, N.A. from executing on a judgment obtained against Curt L. Niederpruem who is the chief executive officer of the debtor corporation. Curt L. Niederpruem, individually, executed and delivered to SOUTHEAST BANK, N.A. a promissory note in the principal amount of $25,000. The promissory note makes no reference to the debtor corporation other than the fact that Curt L. Niederpruem could be reached at the debtor corporation's address. The promissory note executed by Curt L. Niederpruem went into default. SOUTHEAST BANK, N.A. brought suit against Curt L. Niederpruem on the promissory note in the Florida State Court in an action styled Southeast Bank, N.A. v. Curt L. Niederpruem, CASE NO: 85-4641-CA-01-K in the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida. A summary judgment was rendered in favor of the bank. After discovery in aid of execution, the bank filed a Motion for Proceedings Supplementary which was granted by the trial court. The actions by SOUTHEAST BANK, N.A. to collect its judgment against Curt L. Niederpruem precipitated the filing of this adversary proceeding. The jurisdiction of this Court does not extend to any consideration of the debtor's adversary proceeding since the debtor is asking this Court to make judicial determinations regarding assets and debts of a non-debtor party. The jurisdiction of the Bankruptcy Court extends only to assets and liabilities of debtors who file petitions for relief under the bankruptcy laws. This Court's jurisdiction does not extend to the separate liabilities of individual officers of the debtor corporation. United States v. Huckabee Auto Company, 783 F.2d 1546 (11 Cir.1986). The stock of the debtor corporation which SOUTHEAST BANK, N.A. seeks to obtain through state court proceedings supplementary is not property of the estate. Matter of Paso Del Norte Oil Company, 755 F.2d 421 (5th Cir.1985). Curt L. Niederpruem therefore has a remedy available to him should he decide to exercise it. That remedy is the filing of a Bankruptcy petition in this Court. The debtor corporation may not use its bankruptcy proceeding to shield the individual obligations of its corporate officers. IT IS THEREFORE ORDERED AND ADJUDGED that SOUTHEAST BANK's *201 Motion to Dismiss for Lack of Jurisdiction is GRANTED and the debtor's adversary proceeding against SOUTHEAST BANK, N.A. shall be dismissed with prejudice.

742 F.2d 1433 Garrisonv.Bklyn. Eastern Dist. Terminal 83-9023 United States Court of Appeals,Second Circuit. 4/30/84 1 E.D.N.Y. AFFIRMED

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ INVUE SECURITY PRODUCTS INC., Appellant v. MOBILE TECH, INC., Appellee ______________________ 2018-1236, 2018-1238, 2018-1239, 2018-1304 ______________________ Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2016- 00892, IPR2016-00896, IPR2016-00898, IPR2016-00899. ______________________ JUDGMENT ______________________ JOHN W. HARBIN, Meunier Carlin & Curfman, LLC, At- lanta, GA, argued for appellant. Also represented by GREGORY JOSEPH CARLIN, DAVID S. MORELAND, WARREN JAMES THOMAS. ALAN NORMAN, Thompson Coburn LLP, St. Louis, MO, argued for appellee. Also represented by ANTHONY F. BLUM, MATTHEW A. BRAUNEL, DAVID B. JINKINS. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (DYK, WALLACH, and STOLL, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT March 8, 2019 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court 

688 F.2d 436 Bill LAWSON, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 81-5423. United States Court of Appeals,Sixth Circuit. Argued May 25, 1982.Decided Sept. 16, 1982. John T. McFerrin (argued), Appalachian Defense Fund of Kentucky, Jeffrey A. Armstrong, Barbourville, Ky., for plaintiff-appellant. Louis De Falaise, U. S. Atty., Miles H. Franklin, Asst. U. S. Atty., Patrick H. Molloy, Lexington, Ky., Holly A. Grimes, Asst. Regional Atty. (argued), Dept. of Health and Human Services, Atlanta, Ga., for defendant-appellee. Before KENNEDY and CONTIE, Circuit Judges, and TAYLOR,* District Judge. CONTIE, Circuit Judge. 1 Appellant appeals the denial of benefits pursuant to the Black Lung Benefits Act of 1969, as amended, 30 U.S.C. § 901 et seq. Part B of this Act establishes a program to provide benefits to coal miners filing claims on or before December 31, 1973, who are totally disabled due to pneumoconiosis. The Act authorizes the Secretary of HEW to promulgate regulations establishing specific standards and presumptions for determining eligibility for Black Lung benefits. 30 U.S.C. § 921. 2 The Interim Regulations in effect when appellant filed for benefits in 1971 provide: 3 With respect to a miner who files a claim for benefits before July 1, 1973 ...., such miner will be presumed to be totally disabled due to pneumoconiosis ..., if: 4 (1) One of the following medical requirements is met: 5 (i) A chest roetgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see § 410.428). 6 20 CFR § 410.490(b). The presumption thus created may be rebutted by evidence that the claimant is doing or is capable of doing work comparable to his former work. 20 C.F.R. § 410.490(c). 7 At a hearing before the Administrative Law Judge (ALJ), claimant introduced an X-ray taken in 1971, which had been originally read as negative for pneumoconiosis and reread as negative by certified B readers.1 He also introduced reports of two X-rays taken in 1974 and read as positive for pneumoconiosis by an internist specializing in pulmonary disease. The ALJ sent one 1974 X-ray to a certified A reader, who also found it positive for pneumoconiosis. 8 The ALJ, relying largely on the report of the A reader, found that chest X-rays established that the claimant did have pneumoconiosis, that consequently a presumption of black lung disability had arisen, and that no evidence of ability to perform comparable or gainful work had been introduced to rebut the presumption. Accordingly, the ALJ found the claimant entitled to benefits. 9 The Appeals Council decided to review the ALJ's decision on its own motion and sent the X-ray which the A Reader had interpreted and all other X-rays (including a 1971 and 1973 X-ray not introduced into evidence at the hearing) to a certified B reader. The B reader found the X-rays either unreadable or negative for pneumoconiosis. Specifically, he found the 1974 X-ray that formed much of the basis for the ALJ's opinion negative. The Appeals Council reversed the decision of the ALJ, holding that "the preponderance of the medical and other relevant evidence did not establish, prior to July 1, 1973, the presence of pneumoconiosis or any totally disabling chronic respiratory disease." The Secretary adopted the action of the Appeals Council; the district court affirmed. 10 The question before use is whether the Appeals Council erred in ordering the X-rays reread. 11 Once a statutory presumption of the existence of pneumoconiosis has arisen, it cannot be rebutted by negative X-ray findings. Moore v. Califano, 633 F.2d 727 (6th Cir. 1980); Ansel v. Weinberger, 529 F.2d 304 (6th Cir. 1976). Accordingly, a negative reading of a given X-ray cannot rebut the § 410.490(b) (1)(i) presumption created by a prior positive reading of the same X-ray. Dickson v. Califano, 590 F.2d 616 (6th Cir. 1978). 12 If as a matter of law a presumption of pneumoconiosis had arisen in the instant case pursuant to 20 C.F.R. 410.490(b)(1)(i), as the ALJ found, the Secretary erred in ordering the X-rays reread. If substantial evidence existed for the Secretary to find that a presumption of pneumoconiosis had not arisen, he was not barred from ordering a rereading.2 13 A presumption arises when a chest X-ray "establishes the existence of pneumoconiosis." 20 CFR § 410.228, referred to in § 410.490(b)(1)(i), outlines the standard to be used in determining whether an X-ray provides evidence of pneumoconiosis. It resolves the question of what is required for a single X-ray to "establish" pneumoconiosis. It does not address the question of what evidence "establishes" black lung when contradictory X-ray results are introduced. 14 We hold that a single positive X-ray establishes pneumoconiosis as a matter of law only when it is uncontradicted by prior readings. To hold otherwise would mean that a claimant could have an X-ray that has been read as negative repeatedly reread until he achieves a positive reading and that he could then invoke the presumption of § 410.490. When X-ray evidence is in conflict, it is for the Secretary to weigh the evidence to determine whether the X-rays establish pneumoconiosis. Hill v. Califano, 592 F.2d 341 (6th Cir. 1979). 15 This approach is in accord with our rulings in earlier cases. In Dickson v. Califano, supra, we found claimant had established pneumoconiosis through positive X-rays and that consequently a subsequent negative X-ray reading by a nonexamining physician did not constitute substantial evidence to rebut the presumption created by the positive reading by a qualified examining physician. 16 Although in Dickson, without analysis, we made a distinction between examining and nonexamining physicians, we find that distinction not determinative of the issue before us.3 The examining-nonexamining distinction is based on the Supreme Court's discussion in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In Perales the Supreme Court, ruling that reports of nontestifying physicians could provide substantial evidence to support the Secretary's denial of Social Security disability benefits, found significant the fact that the reporting physicians had actually examined the claimant. The fact that the reports were based on personal consultation and examination was a factor assuring their underlying reliability and probative value. 17 The reliability of X-ray interpretations, however, does not depend upon examination of the patient. Radiologists as a rule interpret X-rays without examining the patient. The reliability and probative value of an X-ray interpretation depends upon the reader's personal examination of the X-ray, his professional qualifications, and his use of accepted medical procedures. See Perales, supra. In the instant case, the B reader who found the X-ray negative personally examined the X-ray; as a certified B reader he was highly qualified to interpret X-rays for pneumoconiosis; and he reported on a standard interpretation form, requiring detailed, objective responses, which form was supplied by the Social Security Administration and was identical to that used by the A reader who had found the X-ray positive. Given these circumstances, we find the fact that the B reader did not examine the claimant irrelevant.4 18 What distinguishes the instant case from Dickson is that in Dickson only one X-ray was introduced into evidence. That had been read as positive twice-once by a certified A reader. The report of the A reader established pneumoconiosis, for there was no conflicting X-ray evidence. Therefore, we found that the Secretary had erred in ordering a rereading of the X-ray and in basing a denial of benefits on subsequent negative results. 19 In the instant case, two positive interpretations of the 1974 X-ray, one by a certified A reader, likewise preceded the B reader's negative reinterpretation. However, prior to the Secretary's seeking additional evidence from the B reader, a conflict could be seen to exist in the X-ray evidence. For earlier X-rays taken in 1971 and 1973 had all been read as negative.5 Consequently, there was substantial evidence to support the Secretary's conclusion that the X-ray evidence was in conflict, that it did not necessarily establish pneumoconiosis, that no presumption had arisen, and that having all the X-rays of claimant's chest reread serially by a physician of greater expertise was necessary for a sound decision. II. 20 The Black Lung Benefits Act incorporates the hearing and review procedures of the Social Security Act, 42 U.S.C. § 405. 30 U.S.C. § 923(b). Subsection (b) of § 405 provides in part: 21 The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter. Upon request by any such individual ... (the Secretary) shall give such applicant reasonable notice and opportunity for a hearing with respect to such decision, and, if a hearing is held shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse his findings of fact and such decision.... The Secretary is further authorized, on his own motion, to hold such hearings and to conduct such investigations and other proceedings as he may deem necessary or proper for the administration of this subchapter. 22 Subsection (a) of § 405 gives the Secretary broad discretion to promulgate regulations: 23 The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder. 24 The regulations establish the Appeals Council and permit it to review a case on its own initiative. The regulations further provide: 25 (b) Receipt of evidence by Presiding Officer. Where the Appeals Council determines that additional evidence is needed for a sound decision, it will remand the case to a presiding officer for receipt of the evidence, further proceedings, and a new decision except where the Appeals Council can obtain the evidence more expeditiously and the rights of the claimant will not be adversely affected. 26 (c) Receipt of evidence by Appeals Council. Where the Appeals Council obtains the evidence itself, before such evidence is admitted into the record, notice that evidence will be received with respect to certain issues shall be mailed to the parties, unless such notice is waived, at their last known addresses, and the parties shall be given a reasonable opportunity to comment thereon and to present evidence which is relevant and material to such issues. 27 20 C.F.R. § 410.664. This was the procedure followed by the Appeals Council in the instant case when it sent claimant's X-rays for rereading. 28 The seventh circuit has held that 20 C.F.R. 410.664(b), permitting the Appeals Council to obtain evidence, violates 42 U.S.C. § 405(b) because a decision based on evidence gathered by the Appeals Council is not a decision "on the basis of evidence adduced at the hearing" as provided by the statute. Lonzollo v. Weinberger, 534 F.2d 712 (7th Cir. 1976). 29 We find this reading of the statute to be an overly narrow one, which ignores both the Secretary's statutory authority to conduct additional proceedings and hearings and his broad regulatory power. In essence, the regulations provide for a continuation of the hearing before the Appeals Council. For a hearing is a proceeding in which evidence is introduced and the claimant's right to be heard is protected. The provision that the Appeals Council may obtain evidence only if "the rights of the claimant will not be adversely affected" protects the claimant's right to be heard, for it means that in a case in which the ability to cross-examine witnesses or present additional live testimony may be of value to the claimant, the Appeals Council must remand the case to the ALJ for the gathering of additional evidence. 30 There is no indication that the Appeals Council abused its discretion in the instant case by failing to remand. Claimant did not object to the procedure employed. Furthermore, we are unable to perceive how he might have been prejudiced by the Appeals Council, rather than the ALJ, gathering the X-ray readings. Any cross-examination of the radiologist would have been severely limited. Although claimant hypothetically could have challenged the radiologist's qualifications, the fact that the physician was a certified B reader suggests this line of questioning would have been of little value to him. 31 We hold that 20 C.F.R. § 410.664(b) is not in conflict with 42 U.S.C. § 405, inasmuch as it permits the Appeals Council to gather additional evidence on its own only when the rights of the claimant will not be adversely affected. Further, since the claimant has made no showing that he was prejudiced thereby, we find that the Appeals Council did not abuse its discretion in the instant case by obtaining additional evidence itself. III. 32 Claimant was notified of the receipt of additional evidence; however, he failed to comment thereon or present additional evidence as the Appeals Council, according to regulation, invited him to do. Neither did he request oral argument before the Appeals Council. We find that under the circumstances he waived any due process objections he may have had to the Secretary's procedures. See Teschner v. Weinberger, 389 F.Supp. 1293 (E.D.Wis.1975). Inasmuch as claimant failed to utilize the procedures designed to protect his due process rights, we decline to consider the constitutional adequacy of those procedures. 33 Accordingly, we find that the Secretary's ruling that appellant is not entitled to black lung disability benefits is supported by substantial evidence. We AFFIRM the decision of the district court. * The Honorable Robert L. Taylor, United States District Court for the Eastern District of Tennessee, sitting by designation 1 Both A and B readers are certified by the Public Health Service. B readers have greater qualifications 2 In 1977 Congress amended the Act to prohibit the rereading of an X-ray read positive for pneumoconiosis where that X-ray is of good quality and has been read by a board certified or a board eligible radiologist. The amendment does not apply to the instant case, in which the Secretary made his final determination in December 1975, for the provisions of the amendment are not retroactive. Moore v. Califano, 633 F.2d 727 (6th Cir. 1980) 3 In the instant case, the taker and first reader of the 1974 X-rays was claimant's examining physician; he was not certified to read X-rays for black lung. Neither the A reader, who found one of the X-rays positive, nor the B reader, who found them negative, examined the claimant 4 Because claimant relies on the presumption created by X-ray evidence alone, other evidence of disease is not relevant in the instant case. Were the claimant not relying on this presumption, he would introduce other evidence of disease. In such a case, the conclusion that the patient did or did not have black lung might be more reliably made by a physician who had observed the severity of the patient's somatic symptoms. This is especially true because black lung often cannot be clearly diagnosed by either X-ray or other tests 5 In order to gain the benefit of the presumption created by 20 CFR § 410.490(b)(1)(i), claimant's disability from pneumoconiosis had to have arisen before July 1, 1973. Because of the slowly progressive character of the disease, X-rays taken after that date as well as before, may be relevant to the question of disability on June 30, 1973. See Begley v. Mathews, 544 F.2d 1345 (6th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1684, 52 L.Ed.2d 380 (1976). In the instant case, negative readings prior to the cut-off date coupled with positive readings after the cut-off date raised a question of fact regarding disability on the cut-off date. Substantial evidence supports the Secretary's finding that the X-ray evidence was in conflict since, on either side of July 1, 1973, there were contradictory findings

438 F.2d 518 Walter Henry BLACKWELL, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.No. 30720. Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Incv.Citizens Casualty Company of New York, et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Feb. 8, 1971. Walter Henry Blackwell, pro se. Allen I. Hirsch, Asst. U.S. Atty., John W. Stokes, Jr., U.S. Atty., Richard H. Still, Jr., Asst. U.S. Atty., Atlanta, Ga., for respondent-appellee. Before GEWIN, GOLDBERG and DYER, Circuit Judges. PER CURIAM: 1 This is an appeal from the district court's denial of habeas corpus relief to a federal prisoner who is serving a sentence in the United States Penitentiary at Atlanta. He contends that he is entitled to be given credit on his present sentence for time which he served under a prior unrelated federal sentence which has been vacated. 2 We recently rejected a similar contention in Davis v. United States Attorney General, 5 Cir. 1970, 432 F.2d 777. On Authority of the Davis decision, the order appealed from in this case should be and is hereby affirmed.

Order Michigan Supreme Court Lansing, Michigan December 2, 2011 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra, Justices 142759(87)(89)(91) SC: 142759 COA: 299471 In re C.I. MORRIS, Minor. Wayne CC Fam Div: 08-483987 ________________________________ On order of the Chief Justice, the motion by the Little Traverse Bay Bands of Odawa Indians for leave to file a brief amicus curiae is considered and it is granted. Motions by the Little Traverse Bay Bands of Odawa Indians and the American Indian Law Section of the State Bar of Michigan for leave to participate in oral argument are considered and they are denied. I, Corbin R. Davis, 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. December 2, 2011 _________________________________________ Clerk 

327 F.2d 720 Lewis E. SOLOMON, Trustee of the Estate of Northwood Millwork, Inc., a Corporation, Bankrupt, Appellant,v.NORTHWESTERN STATE BANK, Appellee. No. 17297. United States Court of Appeals Eighth Circuit. February 24, 1964. 1 M. L. Culhane, James E. Culhane, Minneapolis, Minn., for appellant. 2 Joe A. Walters, Thomas A. Keller, III, Minneapolis, Minn., and O'Connor, Green, Thomas & Walters, Minneapolis, Minn., Clinton W. Redlund, St. Paul, Minn., of counsel, for appellee. 3 Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HANSON, District Judge. 4 HANSON, District Judge. 5 This is an appeal from a bankruptcy review. The Northwestern State Bank filed a Petition for Reclamation in the Bankruptcy Court. This petition in part alleged: (1) That on March 24, 1961, the reclaimant, Northwestern State Bank, entered into a Factor's Lien Agreement with the bankrupt, Northwood Millwork, Inc., and that it had been filed in the office of the Register of Deeds of Ramsey County, Minnesota, on March 30, 1961; (2) That the reclaimant loaned to the bankrupt on December 14, 1961, $45,000.00 to be secured by the factor's lien which was subsequently reduced to $20,841.05; and (3) That the December 14, 1961, loan was also secured by certain specified accounts receivable. 6 The trustee answered and admitted that a purported agreement was filed on March 30, 1961, but denied that the factor's lien was valid upon the trustee. The trustee also denied that there was any valid lien as security or otherwise on the bankrupt's accounts receivable. 7 A hearing was held before the Referee in Bankruptcy on this matter. There was no question but that the Factor's Lien Agreement was executed and recorded as alleged, that the loan was made in the amount of $45,000.00 and that it had since been reduced to $20,841.05, and that the agreement purported to give the Bank a lien on the bankrupt's inventory and accounts receivable. 8 The trustee claimed that the Factor's Lien Agreement was invalid as to the trustee for the reason that it failed to describe the property and failed to give the location of the property which was to be subject to the lien. The applicable Minnesota statutes read as follows: 9 "514.81 Continuing lien 10 "If so provided by any written agreement with the borrower, a factor shall have a continuing lien upon all merchandise of the borrower generally described in such agreement, or any separate written statements thereafter signed by the borrower and delivered to the factor * * * and upon any accounts receivable or other proceeds resulting from the sale or other disposition of such merchandise, and * * * such lien shall secure the factor for all his loans and advances to, or for the account of, the borrower made within the time specified in a notice filed * *." 11 "514.82 Execution of lien; contents; amendment of notice 12 "Notice of the creation of a factor's lien shall be signed by the factor and the borrower, shall be filed as hereinafter provided, and shall contain the following information: * * * 13 "(c) The general character of merchandise subject to the lien, or which may become subject thereto, together with the place or places where such merchandise is or will be situated." 14 "514.83 Notice, filing of 15 "* * * no factor's lien created pursuant to sections 514.80 to 514.91 shall be valid or enforceable against creditors of the borrower until the notice provided for in section 514.82 has been so filed. * * *" 16 "514.91 Construction 17 "* * * A substantial compliance with their several provisions shall be sufficient for the validity of a lien * * *." 18 The Bank states in its brief that it is admitted that no description of the merchandise was given in the Notice which was filed. The Bank asserted that there was constructive notice of the location of the merchandise and that the factor's lien is valid because there was substantial compliance with the several provisions of the Factor's Lien Act. 19 The Referee found for the trustee and against the reclaimant Bank. Although other issues were presented to the Referee and the District Court, it is the disposition of this one issue which will be determinative of this appeal. 20 There is a discussion of factor's liens in Collier on Bankruptcy, 14th Ed. Section 70.77. The statutory factor's lien authorizes floating liens on inventory in favor of banks and various other types of lenders. The common-law factor's lien was usually a possessory type lien while the statutory lien is not. Collier states that the factor's lien is the most notable legislative development in the attempt to obtain by legislation the freeing of commercial lenders of the rule in Benedict v. Ratner, 268 U.S. 353, 45 S. Ct. 566, 69 L.Ed. 991. See also Knapp v. Milwaukee Trust Co., 216 U.S. 545, 30 S. Ct. 412, 54 L.Ed. 610. That rule as it was applied in Minnesota made any transfer of property as security which reserves to the transferor the right to dispose of the property void or voidable as against certain creditors. There appears to be at least three purposes behind this rule. One reason was that it left ostensible ownership in the transferor. The theory of a conceptional repugnancy between the actualities of the transaction and the purported security interest is another reason. A third reason is found in In Re Summit Hardware, Inc., 302 F.2d 397 (6th Cir.). In that case, the court said the records would serve to identify the property subject to the lien in the event of enforcement proceedings. The court was apparently aware that there might be fraud or collusion at the time of enforcement. 21 This court in In Re Frey, 15 F.2d 871 (8th Cir.) many years prior to the enactment of the present Minnesota statutes, recognized that Minnesota adhered to the general rule that an agreement that the mortgagor may retain possession and sell or dispose of the property as his own, without satisfaction of the mortgage debt, is fraudulent as a matter of law and voidable as against creditors. Since the mortgage in that case was recorded, the court apparently did not feel that Minnesota invalidated the lien only on the theory of ostensible ownership. Section 514.89 of the Minnesota Code contains an anti-Benedict clause and renders the reservation of dominion over the property innocuous provided that the several parts of the Act are substantially complied with as Section 514.91 prescribes. It might be contended that the reasons for requiring substantial compliance with the factoring statute are the same reasons that are behind the general rule that an exercise of dominion over the property by the mortgagor renders any lien voidable as against creditors. Of course, that is not necessarily so. See 28 Minnesota Law Review, 260, "The Retention of Dominion in Security Financing." 22 Collier Section 70.77, supra, pps. 1595-1596, In Re Cut Rate Furniture Co., D. C., 163 F.Supp. 360, In Re Summit Hardware, Inc., supra, and In Re Adams Machinery Inc., 20 Wis.2d 607, 123 N.W.2d 558, 564, tend to show that the purpose of the factor's lien statute in some States is only to prevent creditors from relying on ostensible ownership of the debtor while other jurisdictions require a designation of the property liened and give greater protection to the creditors. 23 In this case, the trial court felt that the purpose of the Minnesota Act was to prevent reliance by creditors on ostensible ownership. The court said: "The fact, therefore, that the filed agreement did not describe the merchandise liened or its location with greater particularity did not place upon interested third parties a burden of independent inquiry which they would not otherwise have." The court, however, also stated that the purpose of the statute was to prevent fraud upon creditors, to give certainty to the Notice, and to prevent lenders from later claiming their lien to be more extensive than it actually was. 24 In finding that the Factor's Lien Agreement substantially complied with the statutes, the trial court stated that "(2) the reference to all merchandise or its equivalent can be derived from the written agreement and the statute and (3) it was the Bank's money which presumably created the accounts receivable and inventory which the unsecured creditors now wish to divide." The Referee also stated that presumably it was the Bank's money which created the inventory and accounts receivable. The Referee, however, felt that it was too much to assume from the agreement that the factor's lien agreement covered all the merchandise of the borrower. 25 This court has stated many times that on questions of State law it will not reverse if the trial court has reached a permissive conclusion as to the law. This is true where the question of law is doubtful and the statutes in question have not been interpreted by the Supreme Court of that State. Hope Flooring & Lumber Company v. Boulden, 227 F.2d 303 (8th Cir.); Cass Bank & Trust Company v. National Indemnity Company, 326 F.2d 308 (8th Cir.). 26 The trial court concluded that if the agreement gave notice, that did not increase the duty of inquiry beyond that contemplated by the statute, and that if there was certainty to the notice so as to prevent fraud and to keep the lender from claiming their lien to be more extensive than it actually was, then there was substantial compliance with the factor's lien statute. The court believes that this is a permissible conclusion to be drawn from the State statutes involved. 27 The next question is whether the facts justified the court in finding that there was sufficient notice and that it contained the required degree of certainty. There is no problem in holding that there is substantial evidence that there was sufficient inquiry notice. There is more trouble in holding that there was substantial evidence of the required certainty in the notice. Findings cannot be based on speculation and conjecture. Arena Company v. Minneapolis Gas Company, 234 F.2d 451 (8th Cir. Minn.). The trial court in part based his findings in this regard upon the unusual nature of the business of the debtor and that he had only one location where the notice was filed. We cannot say that the court's finding in this regard was clearly erroneous. However, it is possible that on different facts, the filing of a notice without a general description of the property covered might not be sufficient to give the required degree of certainty to the notice. 28 The trial court relied somewhat on In Re Summit Hardware, Inc., 192 F.Supp. 489 (E.D.Ohio). That opinion was disapproved on appeal. The notice filed in that case contained more of a description of the property than in this case, but the Ohio statute required considerably more certainty in the notice than the Minnesota statute does. The statutes are different in that the Minnesota statute contains a specific clause stating that a substantial compliance with the several provisions shall be sufficient for the validity of a lien. The Ohio statute contained no such provision, and the court in In Re Summit Hardware, Inc., supra, stated: 29 "It seems clear to us that whether the Ohio Factor's Lien Law is given a strict or liberal construction, the statutory steps to obtain the lien must be substantially followed in order to obtain a lien. In the present case they were not." 30 The decision of the Appellate Court in that case is distinguishable from this case either on the above basis or on the difference in the facts of the two cases. We find nothing in In Re Summit Hardware, Inc., that should be given controlling effect in interpreting the Minnesota statute. 31 A factor's lien may cover both the debtor's inventory and the accounts receivable arising from the disposition of the inventory. Section 514.81 of the Minnesota Factor's Lien Act states that: 32 "If so provided by any written agreement with the borrower, a factor shall have a continuing lien upon all merchandise of the borrower generally described in such agreement, or any separate written statements thereafter signed by the borrower and delivered to the factor * * * and upon any accounts receivable or other proceeds resulting from the sale or other disposition of such merchandise * * *." Section 514.88 states: 33 "* * * unless the factor and the borrower shall agree otherwise, the delivery * * * of a written agreement * * * designating the merchandise which will be subject to the lien, shall operate as an assignment of the accounts receivable which will result from the sale or other disposition of such merchandise * * *." The Factor's Lien Agreement stated: 34 "The Factor's continuing lien upon said merchandise shall extend to any and all goods received in exchange therefor and to any and all moneys, accounts receivable or other proceeds resulting from the sale or other disposition of such merchandise, or of any goods received in exchange therefor, whether or not such exchange or disposition is herein authorized, and upon all goods wholly or partially processed of which any such merchandise, or any goods received in exchange therefor, shall have become a component part." 35 The trustee contended that there was no valid lien on the accounts receivable because there was no property generally described in the agreement and that the lists of accounts receivable were not especially prepared for the Bank. The accounts receivable in question were not completely set out in the record before this court, but samples were. They are simply lists of debtors of the bankrupt showing the amount of the debt and date it became receivable, and in order to avoid any possible confusion if there are further proceedings in this case, the accounts receivable here mentioned are those shown in the record by Exhibit 4 through 11. The District Court held that if the lien on the property subject to the lien was valid without the general description, then the lien on the accounts receivable arising from the sale of such property was also valid. This court holds that to be a permissible conclusion of law derived by construing the factoring statute and this court cannot hold the District Court clearly wrong in finding that these accounts receivable were given to the Bank pursuant to the Factor's Lien Agreement. 36 The District Court remanded the case to the Bankruptcy Court for further proceedings in compliance with his opinion. The Referee stated in his opinion that: 37 "There was no accounting before me to identify any money in the hands of the trustee as resulting from the collection of any of the accounts said to be covered by the Lien Agreement. And, the trustee objects to the validity of the Reclamation Petition because of that. But the record of the proceedings before me makes it abundantly clear that I was, by consent of the parties, to save the time of the Court and the parties, trying only the preliminary question of the validity of the Factor's Lien and Assignment, and leaving to a later date the accounting, if that became necessary, in the event no stipulation could be reached to settle the identity of the accounts and it should be determined that the Factor's Lien was valid." 38 This court now holds that the Factor's Lien Agreement is valid and the accounting will now be necessary. 39 In this case, the District Court reversed the Referee. There is much authority to the effect that ordinarily, when a Referee in Bankruptcy has made findings of fact and the Referee has actually heard the evidence, great weight is attached to his conclusions, and they will not be disturbed unless clearly erroneous. This matter was fully discussed in O'Rieley v. Endicott-Johnson Corp., 297 F.2d 1 (8th Cir.). See also Gross v. Fidelity & Deposit Company of Maryland, 302 F.2d 338 (8th Cir. 1962); Employers Mutual Casualty Company v. Hinshaw, 309 F.2d 806 (8th Cir.). In the present case, however, the Referee's error was one of law in that he gave the wrong legal significance to the facts. This court in Employers Mutual Casualty Company v. Hinshaw, supra, recently explained its position in that type of situation. 40 The District Court in the present case did not make separate findings of fact and conclusions of law. Rule 52 provides that the memorandum of decision will be sufficient if the findings of fact and conclusions of law appear therein. The court's findings did sufficiently appear in the memorandum of opinion. Also, it should be noted that while sometimes the District Court hears evidence in addition to that taken by the Referee, the District Court did not do that in this case. 41 The decision of the District Court is affirmed.

108 P.3d 251 (2005) 210 Ariz. 101 STATE of Arizona ex rel. Terry GODDARD, Plaintiff-Appellee, v. Debra GRAVANO, Defendant-Appellant, 1207 E. Secretariat Drive, Tempe, Defendants In Rem. State of Arizona ex rel. Terry Goddard, Plaintiff-Appellee, v. Debra Gravano, Defendant-Appellant, Nos. 1 CA-CV 03-0512, 1 CA-CV 03-0822. Court of Appeals of Arizona, Division 1, Department C. February 17, 2005. *253 Terry Goddard, Attorney General, Phoenix, by Cameron H. Holmes, Assistant Attorney General, for Plaintiff-Appellee. Cameron A. Morgan, Scottsdale, for Defendant-Appellant. OPINION WEISBERG, J. ¶ 1 Debra Gravano ("Appellant") appeals the grant of partial summary judgment enabling the State of Arizona's civil forfeiture action, as well as an award of attorneys' fees and costs in favor of the State. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Appellant is the business partner and former wife of Salvatore Gravano (collectively "the Gravanos").[1] Following their divorce, she moved to Arizona and bought a home in Tempe and a restaurant in Scottsdale. ¶ 3 By 2000, Appellant was functioning as the banker for the Gravanos' family ecstacy enterprise, known as the Southwest Ecstacy Enterprise. The enterprise's members included Salvatore; their son, Gerard; their daughter, Karen; and David Seabrook, the father of Karen's baby. The enterprise and Gravanos' lavish lifestyle both halted in February 2000 with the arrests of its members. ¶ 4 In June 2000, the State of Arizona filed an in personam and in rem civil forfeiture lawsuit against the Gravanos pursuant to the Arizona Racketeering Act, Arizona Revised Statutes ("A.R.S.") § 13-2314, and the Arizona Forfeiture Reform Act, A.R.S. §§ 13-4301 to -4315 (1999), seeking approximately $933,750 of drug sale proceeds. The complaint alleged Appellant's participation in the transfer of Gambino Organized Crime Family proceeds to Arizona for the acquisition of three enterprises: Uncle Sal's Inc., doing business as Uncle Sal's Italian Ristorante; Moran Investments, Inc.; and Marathon Development, L.L.C. ("Marathon"). It further alleged that the Gravanos acquired almost $1 million from ecstacy sales in Arizona. ¶ 5 While the State and the Gravanos were negotiating a possible civil settlement in late 2000, prosecutors were at work on a criminal plea agreement. The State's most recent offer in the civil case had just expired when the Gravanos entered guilty pleas in the criminal action. Appellant pled guilty to one count of conducting a criminal enterprise in violation of A.R.S. § 13-2312(B), and received probation. No agreement was reached between Appellant and the State regarding this civil forfeiture action. ¶ 6 Following sentencing, the State moved for summary judgment in the civil forfeiture case. It asserted that Appellant's guilty plea estopped her from denying the facts of her offense, and that the State was entitled to a judgment to be satisfied from the sale of her home and other property. Concentrating on the in personam forfeiture action, Appellant cross-moved for summary judgment on the grounds that the imposition of an in personam forfeiture violated her double jeopardy rights under the United States and Arizona Constitutions, constituted an unconstitutionally excessive fine, violated her plea agreement, and violated the forfeiture of estate provision in Article 2, Section 16 of the Arizona Constitution. ¶ 7 The trial court granted partial summary judgment to the State, rejected Appellant's challenge to the in personam forfeiture action, and entered a Rule 54(b) judgment.[2]*254 The court also ruled that the State was entitled to attorneys' fees and costs, which Appellant had also opposed. We have consolidated Appellant's appeals from those two rulings. DISCUSSION Federal Double Jeopardy ¶ 8 Appellant challenges the grant of summary judgment on the forfeiture claim. We determine de novo whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App.1997). Summary judgment is appropriate "if the facts produced in support of the claim or defense have so little probative value ... that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶ 9 The Double Jeopardy Clause of the United States Constitution provides that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see generally Ferreira v. Superior Ct., 189 Ariz. 4, 7, 938 P.2d 53, 56 (App.1996)(Double Jeopardy Clause is enforceable against states through Fourteenth Amendment's Due Process Clause). However, the United States Supreme Court has long recognized that this clause does not prohibit the imposition of additional sanctions that could, "in common parlance," be described as punishment. United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (citation omitted). It protects only against multiple criminal punishments for the same offense in successive proceedings. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (citations omitted). ¶ 10 Appellant contends that the civil judgment constitutes a second criminal punishment for her criminal offense and therefore violates the federal double jeopardy clause. We, however, disagree because this forfeiture is not a criminal punishment for double jeopardy purposes. ¶ 11 In United States v. Halper, the United States Supreme Court held that a civil sanction would constitute punishment for double jeopardy purposes if the sanction imposed were not, on its facts, rationally related to the goals of a civil action. 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).[3] In 1997, however, in Hudson, the Supreme Court retreated from Halper, and directed a different approach. The Hudson Court first looked at the forfeiture statute at issue, and asked "whether the legislature, `in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other;'" that is, either civil or criminal. Hudson, 522 U.S. at 99, 118 S.Ct. 488. Answering that same question here, we determine that the Arizona racketeering statutes, which underpin this forfeiture action, constitute a civil sanction because they are designated as civil, carry a civil burden of proof, and are processed pursuant to the rules of civil procedure.[4] ¶ 12 The next Hudson inquiry is whether the statutory scheme is "so punitive either in purpose or effect," as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Id. This second question includes several factors, but prohibits the conclusion that a sanction constitutes a criminal penalty solely because of its onerous effect. The relevant factors are: *255 • whether the sanction involves an affirmative disability or restraint; • whether it has historically been regarded as a punishment; • whether it comes into play only on a finding of scienter; • whether its operation will promote the traditional aims of punishment-retribution and deterrence; • whether the behavior to which it applies is already a crime; • whether an alternative purpose to which it may rationally be connected is assignable for it; and • whether it appears excessive in relation to the alternative purpose assigned. Id. at 99-100, 118 S.Ct. 488 (citations omitted). Furthermore, only the "clearest proof" will suffice to override the legislative intent and turn a civil remedy into a criminal penalty. Id. at 100, 118 S.Ct. 488 (citation omitted). Answering this second question, we conclude that the civil forfeiture has not been transformed into a criminal penalty. ¶ 13 The Second Circuit reached a similar conclusion in SEC v. Palmisano, 135 F.3d 860, 864-65 (2d Cir.1998), cert. denied, 525 U.S. 1023, 119 S.Ct. 555, 142 L.Ed.2d 462 (1998), when it applied the Hudson analysis to a disgorgement sanction. After the defendant pled guilty to a fraudulent Ponzi-type scheme, the court granted the SEC summary judgment and ordered that the defendant disgorge $9.2 million and pay a civil penalty of $500,000, in addition to the previous $3.8 million criminal restitution order. Id. at 863. The court rejected the defendant's double jeopardy challenge as "plainly meritless" in light of Hudson. Id. at 864. It found that, under Hudson's seven factor test, the disgorgement and the civil monetary penalty were not so punitive in purpose or effect as to override the congressional intent to provide for civil penalties. Id. at 864-66. ¶ 14 The Palmisano court noted that disgorgement has not been historically viewed as punishment, but rather, that a disgorgement order has long been recognized as civil. Id. at 865-66. The court reasoned that remedies can have a clear and rational purpose apart from punishment; and disgorgement is designed in part to ensure that defendants do not profit from illegal acts; a nonpunitive goal. Id., 135 F.3d at 866. Likewise, here, the proceeds-based forfeiture serves that same non-punitive goal and does not constitute double jeopardy. See id.; accord State v. Geotis, 187 Ariz. 521, 523, 930 P.2d 1324, 1326 (App.1996)(holding that Arizona civil forfeiture proceedings are not criminal in nature for purposes of double jeopardy analysis). ¶ 15 In Appellant's view, however, Hudson merely created a narrow exception to Halper, applicable only when "an in personam fine is levied in response to a violation in a regulated industry." But Appellant ignores Hudson's specific disavowal of Halper for all purposes because the Halper test for punitive sanctions had proved "unworkable." Hudson, 522 U.S. at 102, 118 S.Ct. 488. Hudson recognized that all civil penalties have some deterrent effect, and if the test were whether a sanction is solely remedial, then no subsequent civil remedy would be beyond the prohibition of the Double Jeopardy Clause. Id. The Hudson court therefore rejected that approach, and, for the same reasons, we reject Appellant's argument.[5] Arizona's Double Jeopardy ¶ 16 Appellant next argues that this forfeiture violates the Arizona Constitution's double jeopardy prohibition, which provides: "No person shall ... be twice put in jeopardy for the same offense." Ariz. Const. art. 2, § 10. She asserts that the Arizona provision requires a different interpretation from that applied to the United States Constitution. We, however, conclude that it does not. ¶ 17 Appellant suggests that Arizona ought to adopt the reasoning of State v. Nunez, in *256 which the New Mexico Supreme Court recognized additional state-based double jeopardy rights. 129 N.M. 63, 2 P.3d 264 (1999). There, the State of New Mexico had filed forfeiture complaints against the vehicles of several defendants that allegedly were used to transport illegal drugs, as well as against allegedly illegal proceeds. Id. at 270-71. The forfeitures were found to violate the New Mexico Constitution, in part because, unlike Arizona, the New Mexico courts had "always regarded forfeiture as punitive." Id. at 272. Moreover, the New Mexico double jeopardy provision differed on its face from the federal double jeopardy double jeopardy provision, providing a fundamental right of "acquiring, possessing and protecting property." Id. at 282 (quoting N.M. Const. art. II, § 4). That additional right protected both the vehicles and the proceeds of drug dealing from forfeiture. ¶ 18 Our jurisprudence, however, is different. The language of our Constitution parallels the United States Constitution rather than the New Mexico Constitution. See Geotis, 187 Ariz. at 523, 930 P.2d at 1326 (recognizing that the double jeopardy prohibition of the Arizona Constitution is construed consistently with its federal counterpart).[6] ¶ 19 In addition, the New Mexico forfeiture statutes differ markedly from our statutes. The New Mexico statutes evidence no legislative intent to obtain either reimbursement for the government's costs or compensation for the societal costs of the underlying crime. Nunez, 2 P.3d at 282-83, 287-88 (citing N.M. Stat. Ann. §§ 30-31 — 35(E)(2), 30-31 — 34(G)(1), (2) and (4)). In contrast, Arizona's statutes specifically compensate for societal costs and reimburse the government for the expenses of investigation and prosecution. A.R.S. § 13-2314(D)(5); A.R.S. § 13-2318. We, therefore, decline to follow New Mexico's path.[7] Prohibition Against Excessive Fines ¶ 20 Appellant alternatively argues that her in personam sanction violates the federal constitutional clause prohibiting the imposition of excessive fines. U.S. Const. amend. VIII. We, however, conclude otherwise because: (1) the subject forfeiture is remedial, not punitive, and thus not a "fine" under the Excessive Fines Clause; and (2) even if the forfeiture were punitive, it is not grossly disproportionate to the societal damage and governmental expense caused by the criminal enterprise. We review constitutional issues de novo. Little v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App.1995). ¶ 21 We first reject Appellant's argument because the forfeiture here is a compensatory sanction reasonably proportionate to the subject damages, which makes it remedial in nature. This conclusion is consistent with the United States Supreme Court's opinion in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). There, the government had sought the forfeiture of $357,144, which the defendant had attempted to take overseas without complying with the currency reporting requirement of 31 U.S.C. § 5316(a)(1)(A). Id. at 321, 118 S.Ct. 2028. The Court held that the forfeiture of the full amount would be an unconstitutionally excessive fine because (1) the case involved only a reporting offense unrelated to any illegal activity, and (2) the money was *257 the proceeds of a legal activity and was to be used to repay a lawful debt. Id. at 337-38, 118 S.Ct. 2028. ¶ 22 Although holding that the subject forfeiture was unconstitutional, the Bajakajian Court favorably recognized an existing line of cases, embracing both in personam and in rem forfeitures, that traditionally have not been subject to the excessive fines prohibition because such forfeitures have not been regarded as punishment. Id. at 341-44, 118 S.Ct. 2028. Instead, they have been considered to be remedial when reasonably based upon compensation for the social harm done. Id. at 331, 342-44, 118 S.Ct. 2028. The court concluded that a proceeds-based forfeiture could not be considered a fine because it "provide[d] a reasonable form of liquidated damages," id. at 343 n. 19, 118 S.Ct. 2028 (citation omitted), and was inherently linked to the harm caused. Id. at 339-41, 118 S.Ct. 2028. Applying this reasoning, the forfeiture of proceeds in the instant case does not constitute an excessive fine.[8] ¶ 23 Appellant nonetheless argues that a contrary result is required by State v. Leyva, 195 Ariz. 13, 985 P.2d 498 (App.1998), cert. denied, 529 U.S. 1037, 120 S.Ct. 1531, 146 L.Ed.2d 345 (2000) ("Leyva II"). In Leyva II, we held a fine to be excessive when imposed on a drug smuggler's wife who was not herself involved in the criminal enterprise. 195 Ariz. at 21-22, ¶ 37, 985 P.2d at 506-07. In contrast, here, Appellant was active in the ecstacy smuggling enterprise and served as its banker. Moreover, the Southwest Ecstasy Enterprise removed approximately $1 million from Arizona's legitimate economy, damaged its clientele, and caused related losses in health, public safety, and welfare expenses. Even the Leyva II court agreed that the forfeiture of proceeds from an illegal enterprise would not be subject to an excessive fines analysis "[t]o the extent that the `proceeds' at issue are the fruits or profits of the defendant's own crime." Id. at 19, ¶ 25, 985 P.2d at 504. Accordingly, Leyva II actually supports our conclusion that the subject forfeiture is not excessive because it forfeits only the amounts acquired by the criminal enterprise. ¶ 24 Although the Leyva II court admittedly stressed that its forfeiture's in personam procedure was a punitive feature, id. at 18-19, ¶ 20, 985 P.2d at 503-04, it did not have the benefit of the subsequent guidance in Bajakajian, which emphasized the similarity between civil in personam and civil in rem forfeiture proceedings, holding that a proceeds-based forfeiture would not constitute an excessive fine. Bajakajian, 524 U.S. at 331 n. 6, 343 n. 19, 118 S.Ct. 2028. In addition, Leyva II incorrectly observed that "Arizona's statutes appear to be unique in providing for civil in personam forfeitures, which is another indication of at least some punitive purpose." Leyva II, 195 Ariz. at 19, ¶ 20, 985 P.2d at 504. We, however, note that twelve other states employ in personam civil forfeitures.[9] Also, at least thirteen states allow for a civil judgment/fine tied directly to the amount obtained through racketeering or some multiple of it.[10]Leyva *258 II therefore does not shape the result here.[11] ¶ 25 Moreover, even if this forfeiture were a fine, we disagree with Appellant's contention that it would be grossly disproportionate. The main factor in determining proportionality is whether the forfeiture bears some relationship to the gravity of the conduct it is designed to punish. Bajakajian, 524 U.S. at 334-38, 118 S.Ct. 2028. Other relevant factors include whether the violation is related to any other illegal activities, id. at 337-38, 118 S.Ct. 2028, and the extent of the harm caused, id. at 339, 118 S.Ct. 2028. See also Leyva II, 195 Ariz. at 20, ¶ 30, 985 P.2d at 505 (requiring the trial court to consider both the harshness of the forfeiture and the culpability of the owner); United States v. 817 N.E. 29th Dr., Wilton Manors, 175 F.3d 1304, 1311 (11th Cir.1999)(interpreting Bajakajian and explaining that excessiveness is determined by comparing the amount of the forfeiture to the gravity of the offense, not to the amount of the owner's assets). ¶ 26 Applying these factors, we conclude that, even if this forfeiture were a fine, it would not be grossly disproportionate in light of the weighty penalties imposed by our Legislature for the conduct of the criminal enterprise, which include a sentence of twenty-five years to life (A.R.S. § 13-3410); a fine of three times the value of the drugs involved (A.R.S. § 13-3407(G)); and the forfeiture of all proceeds.[12] ¶ 27 Nor does the joint and several nature of the forfeiture judgment make it excessive because the amounts received by the co-conspirators were reasonably foreseeable by Appellant. This conclusion is consistent with several federal court opinions. United States v. Bollin, 264 F.3d 391, 419 (4th Cir.2001); United States v. Corrado, 227 F.3d 543, 558 (6th Cir.2000); United States v. Candelaria-Silva, 166 F.3d 19, 44 (1st Cir.1999); United States v. Simmons, 154 F.3d 765, 769-70 (8th Cir.1998). ¶ 28 For example, in United States v. Saccoccia, 823 F.Supp. 994 (D.R.I.1993), aff'd sub nom. United States v. Hurley, 63 F.3d 1, 22 (1st Cir.1995), cert. denied, 517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996), the district court upheld a $136,000,000 judgment against a claim of excessiveness for a conspiracy that laundered that amount in drug proceeds. The court reasoned that for purposes of 18 U.S.C. § 1963(a)(3), "a defendant should be deemed to have `obtained' amounts `obtained' by co-conspirators in furtherance of the conspiracy to the extent that receipt of those amounts was reasonably foreseeable." Id. at 1004. To hold otherwise would allow those engaging in racketeering to retain the fruits of their illegal conduct, defeating the purpose of RICO forfeiture. Id. Furthermore, "[i]n most cases, it would be a practical impossibility to determine the *259 precise amount of each conspirator's share in the conspiracy's criminal proceeds." Id. In affirming, the First Circuit observed that it is largely fortuitous whether a particular individual conspirator happens to possess funds, and a contrary rule would allow a high-level conspirator to escape liability by requiring couriers to handle the money. Hurley, 63 F.3d at 22. ¶ 29 Here, the amounts received by the criminal enterprise were foreseeable to Appellant because of her role as banker. Because the amounts were reasonably foreseeable, Appellant cannot claim that the forfeiture is excessive. Therefore, even if the forfeiture were a fine, it would not have violated the Excessive Fines Clause. Civil Forfeiture Does Not Violate Appellant's Plea Agreement ¶ 30 Appellant next claims that the State's pursuit of a civil forfeiture action violates her plea agreement. We, however, disagree. ¶ 31 Appellant's plea agreement provides that it does not "in any way compromise or abrogate any civil action, including actions pursuant to A.R.S. § 13-2301, et seq., or § 13-4301, et seq." Appellant agreed at her change-of-plea proceeding that she had read the plea agreement, understood it, discussed it with her counsel, and initialed each paragraph. She, therefore, understood the plea agreement's terms, which specifically allowed for the subsequent civil forfeiture action.[13] Forfeiture of Estate ¶ 32 Appellant next contends that this forfeiture violates the "forfeiture of estate" provision of the Arizona Constitution, which states: "No conviction shall work corruption of blood, or forfeiture of estate." Ariz. Const. art. 2, § 16. Applying de novo review, we again reject Appellant's constitutional interpretation. ¶ 33 Forfeiture of estate dates back to feudal times, when all lands ultimately belonged to the king, and tenants had to render continuing services to satisfy their tenancies and demonstrate loyalty to their lord, king, and society. United States v. Grande, 620 F.2d 1026, 1038 (4th Cir.1980). The commission of a felony demonstrated disloyalty. In fact, English law defined "felony" as "an offence which occasions a total forfeiture of either lands or goods or both." Id. (quoting 1 J. Bishop, Commentaries on the Criminal Law 382-83 (1956 ed.)). Thus, forfeiture of estate provided the legal basis for the reassignment of the felon's property. ¶ 34 Arizona and other states adopting similar constitutional provisions can trace them back to the Act of April 30, 1790, Ch. 9, § 24, 1 Stat. 112, 117, passed by the First Congress: "No conviction or judgment shall work corruption of blood, or any forfeiture of estate." At the time of the Act's enactment, England was still practicing forfeiture of estate. Although no feudal system existed in the United States, many states incorporated similar provisions into their constitutions. See Morrisey v. Ferguson, 156 Ariz. 536, 538, 753 P.2d 1192, 1194 (App.1988)(Arizona's constitutional provision "was intended to prohibit the application in Arizona of the early English penal requirement whereby a person convicted of a crime forfeited" his land and personal property to the king). ¶ 35 Of course, while our state constitution prohibits forfeiture of estate, it does not prohibit a proceeds-based forfeiture authorized by statute. Also, forfeiture of estate was triggered by a criminal conviction of a felony offense, Grande, 620 F.2d at 1038-39, while a conviction is not an element of this forfeiture. Here, the forfeiture is triggered only by racketeering conduct as defined in A.R.S. § 13-2301(D)(4). ¶ 36 Finally, forfeiture of estate confiscated all of the vassal's property because the king reasserted title following the vassal's disloyalty. Grande, 620 F.2d at 1038. In *260 contrast, forfeiture under the racketeering statutes is limited to the amount arising out of the racketeering conduct, and is designed to remove the financial incentives of crime and the financial ability to further engage in crime while compensating victims and reimbursing the State for expenses. State ex rel. Napolitano v. Gravano, 204 Ariz. 106, 113, ¶ 24, 60 P.3d 246, 253 (App.2002). We therefore conclude that this forfeiture of racketeering proceeds does not violate the forfeiture of estate provision of the Arizona Constitution. Awarding Attorneys' Fees and Costs to State Not Abuse of Discretion ¶ 37 Appellant next claims that the trial court erred by awarding attorneys' fees and costs to the State under A.R.S. § 13-2314(A). We review such awards under an abuse of discretion standard. Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 13, ¶ 12, 6 P.3d 315, 318 (App.2000). Nonetheless, we hesitate to second guess the trial court on this issue "in view of the [trial court's] superior understanding of the litigation and the desirability of avoiding frequent appellate review of what are essentially factual matters." Chase Bank of Ariz. v. Acosta, 179 Ariz. 563, 574, 880 P.2d 1109, 1120 (App.1994)(quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985)). ¶ 38 The trial court awarded $805,713.41 in attorneys' fees and costs as requested by the State. Appellant complains that the State's supporting affidavits fail to meet the standard of Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). That case put the initial burden on counsel to prepare an affidavit indicating the type of services performed, the date the service was performed, the attorney performing the service, and the amount of time spent. Id. at 188, 673 P.2d at 932. We conclude that the State has met its burden here. ¶ 39 Our conclusion tracks the recent opinion of Division Two of this court that upheld a similar affidavit. See Orfaly v. Tucson Symphony Society, 209 Ariz. 260, 99 P.3d 1030 (App.2004). In that case, the appellants had argued that the fee applications were inadequate under China Doll because they contained only broad "block summaries" of the work performed. Id., 266 at ¶ 22, 99 P.3d at 1036. The court rejected the challenge, however, because the China Doll requirements are meant to "enable the court to assess the reasonableness of the time incurred." Id. 266 at ¶ 23, 99 P.3d at 1036. Because the applications contained enough information to support a reasonableness finding, the court did not find an abuse of discretion. Id. Similarly, here, although the State's affidavit only included general descriptions of the work performed, we hold that the description was sufficient for the trial court to assess the reasonableness of the State's request. ¶ 40 The detail in the State's affidavit also compares favorably with the one submitted in Boltz & Odegaard v. Hohn, 148 Ariz. 361, 714 P.2d 854 (App.1985). The Boltz affidavit listed only general types of services without detailing time spent on individual tasks. Id. at 365, 714 P.2d at 858. The Boltz court nevertheless approved the application, pointing out that the China Doll affidavit was submitted in support of a request for fees on appeal, rather than at trial. Id. ¶ 41 We note that, although such detail might have assisted the trial court, it "has other alternatives available to it for acquiring such information such as through an evidentiary hearing." Id. Therefore, Appellant's argument also fails because she failed to seek a hearing or file an evidentiary-based opposition in the trial court. As explained in State ex rel. Corbin v. Tocco:"It is not enough for an opposing party simply to state, for example, that the hours claimed are excessive and the rates submitted too high." 173 Ariz. 587, 594, 845 P.2d 513, 520 (App.1992)(finding no abuse of discretion in award to the State for all the attorneys' fees requested for civil and criminal racketeering cases). We did not find an abuse of discretion in Tocco because the defendant had failed to pursue a specific complaint with factual evidence that the time entries were irrelevant. Id. Here, because the trial court was satisfied with the fee information, and Appellant failed to present any specific argument to it as to why the *261 State's request was inaccurate, we conclude that there was no abuse of discretion.[14] Awarding Attorneys' Fees and Costs Does Not Violate Eighth Amendment ¶ 42 Finally, Appellant contends that the award of attorneys' fees and costs violates the Excessive Fines Clause of the Eighth Amendment. We disagree. ¶ 43 As previously stated, Bajakajian sets forth the factors necessary for an award to be deemed as punitive under the Excessive Fines Clause. 524 U.S. at 328-44, 118 S.Ct. 2028. We conclude that the award of attorneys' fees and costs, based upon Appellant's liability under the statute, derives from her participation in the enterprise, and not from her criminal culpability. See id.; see generally A.R.S. § 13-2301(D)(6)(setting the liability threshold at "actions in concert with racketeering"); Restatement (Second) of Torts § 876 (1979)(the civil liability of persons acting in concert does not require criminal intent). ¶ 44 Furthermore, as discussed above, Bajakajian expanded the exception to the Excessive Fines Clause to include civil sanctions serving remedial purposes and linked to the amount of the sanction. Id. at 342-43, 118 S.Ct. 2028. The Supreme Court, in Austin v. United States, considered these sanctions a form of "liquidated damages." 509 U.S. 602, 621, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Both cases relied upon One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), signaling that sanctions based upon compensation for social harm will not be considered to be punishment for a criminal offense. See Bajakajian, 524 U.S. at 343, 118 S.Ct. 2028; Austin, 509 U.S. at 621, 113 S.Ct. 2801. Because the award of attorneys' fees and costs here was based upon the actual expenditure of government resources, it was proportional and cannot be considered to be punishment. See Bajakajian, 524 U.S. at 343, 118 S.Ct. 2028; see also United States v. Philip Morris USA, 310 F.Supp.2d 58 (D.D.C.2004)(holding that a $289 billion civil racketeering suit against cigarette manufacturers for disgorgement of sale proceeds does not implicate the Excessive Fines Clause).[15] CONCLUSION ¶ 45 For all the foregoing reasons, we affirm the trial court's judgment. WINTHROP, P.J. and KONGABLE, Judge Pro Tempore[*], concurring. NOTES [1] Appellant contends that she divorced Gravano in 1994. The State, on the other hand, asserts that they remained married. The court did not make a finding on the matter, and it does not affect our analysis in this appeal. [2] The in personam forfeiture was initiated by the State pursuant to A.R.S. §§ 13-4313(A), 13-2314(D)(7)and 13-2314(E). A.R.S. § 13-2314(D)(7) provides for forfeiture "of an amount equal to the gain that was acquired or maintained" through commission of the racketeering. Therefore, this appeal concerns only a proceeds-based forfeiture, which is premised upon the disgorgement of the proceeds of a criminal enterprise. [3] Following Halper, this court ruled in State v. Leyva that the subject $20,000,000 judgment might violate the Halper view of double jeopardy and therefore remanded the case to the trial court for findings. 184 Ariz. 439, 445-46, 909 P.2d 506, 512-13 (App.1995) ("Leyva I"). However, we did not hold that every civil forfeiture penalty was necessarily punitive. Id. at 446, 909 P.2d at 513. Moreover, the reasoning in Hudson has effectively rejected the logic of Leyva I. [4] See A.R.S. § 13-2314, entitled "Racketeering; civil remedies by this state; definitions"; see also § 13-2314(L) ("A civil action authorized by this section... is remedial and not punitive ..."); and § 13-2314(K)("[t]he standard of proof in actions brought pursuant to this section is the preponderance of the evidence test."). [5] Because we conclude that the subject forfeiture is not criminal in nature, we do not consider the alternative argument that even if the forfeiture were a criminal sanction, it would not constitute double jeopardy because its underlying offense did not have the same elements as the underlying criminal offense. We also decline to consider whether the statements of Appellant's attorney at the joint change-of-pleas proceeding constituted judicial estoppel that would prevent her from raising the double jeopardy issue on appeal. [6] Contrary to Appellant's view, In the Matter of a 1972 Chevrolet Corvette, 124 Ariz. 521, 606 P.2d 11 (1980), provides no independent state grounds for a double jeopardy violation. It was not founded upon double jeopardy, but rather upon the right to enforcement of a plea agreement. Id. at 523, 606 P.2d at 13. [7] The New Mexico Supreme Court later clarified that the Nunez analysis is a particular application of the provisions of the Controlled Substances Act. City of Albuquerque v. One (1) 1984 White Chevy UT, 132 N.M.187, 46 P.3d 94, 97 (2002). In that case, the court found that the applicable statute, which forfeited vehicles driven by persons whose licenses had been revoked for DWI offenses, was remedial under Hudson because it was designed to protect the public from drunk drivers. Id. at 97-99, 118 S.Ct. 488. It reached this conclusion notwithstanding that the statute came into operation only upon the owner's personal commitment of a crime, because the subject statute evidenced a clear deterrent intent, and had an innocent owner protection provision. Id., see also State v. Kirby, 133 N.M. 782, 70 P.3d 772, 774, 782-83 (App.2003) (limiting Nunez by upholding an indictment after the assessment of a $75,000 civil securities fraud penalty for the same offense). [8] Our result further follows the reasoning of Bajakajian in that the forfeiture did not punish her for the offense of conducting a criminal enterprise, as Appellant forfeited only the amount that was acquired in exchange for illegal drugs. See Bajakajian, 524 U.S. at 331-32, 118 S.Ct. 2028. Moreover, the forfeiture did not depend upon Appellant's criminal culpability. See id. at 328, 118 S.Ct. 2028. [9] Ark.Code Ann. §§ 5-64-505 to -508(Michie 2003); Ga.Code Ann. § 16-13-49 to -50 (2003); Haw.Rev.Stat. Ann. §§ 712A-1 to — 20 (2002); Iowa Code Ann. § 809A.1 to A.25 (West 2003); Kan. Stat. Ann. §§ 60-4101 to -4125 (2002); La.Rev.Stat. Ann. §§ 40:2601 to:2622 (West 2002); Mo. Ann. Stat. §§ 513.600 to .653 (West 2003); N.J. Stat. Ann. 2C:35A-2(West 2003); N.Y. C.P.L.R. 1311 (McKinney 2003); N.C. Gen.Stat. §§ 75D-1 to D-14 (2003); Tenn.Code Ann. § 39-11-701 to -17 (2003); Utah Code Ann. § 58-37-13 (2003). [10] Colo.Rev.Stat. §§ 18-17-101 to -109 (2003) (three times greater of gross gain or gross loss caused); Del.Code Ann., tit. 11, §§ 1501 to 1511 (2003)(same); Fla. Stat. Ann. §§ 895.01 to .09 (West 2003)(same); Miss.Code Ann. §§ 97-43-1 to -9 (2003)(same); Nev.Rev.Stat. §§ 207.350 to .520 (2002)(same); N.J. Stat. Ann. §§ 2C:41-1 to -6.2 (West 2003); Ohio Rev.Code Ann. §§ 2925.41 to .45 (West 2003) (not more than twice the gross profits or other proceeds); Okla. Stat. Ann. Tit. 22 §§ 1401 to 1419 (West 2002)(up to three times greater of gross gain or gross loss caused); Or.Rev.Stat. §§ 166.715 to .735(2001)(same); Tenn.Code Ann. §§ 39-12-201 to -210 (2003)(same); Utah Code Ann. §§ 76-10-1601 to -1609 (2003) (no more than twice the profits); Wash. Rev.Code §§ 9A.82.001 to .904 (2003)(amount of illegal gain); Wis. Stat. Ann. §§ 946.80 to .88 (West 2003)(up to two times greater of gross gain or gross loss caused). [11] We further reject Appellant's argument that our decision in One Residence at 319 E. Fairgrounds Dr., 205 Ariz. 403, 71 P.3d 930 (App.2003), affects this case. There, we upheld the in rem forfeiture of a house used as an instrumentality of the underlying crime. Here, we follow a different line of cases when considering a proceeds-based forfeiture. [12] Our analysis is also consistent with the plurality opinion in Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Justice Kennedy derived four principles guiding an Eighth Amendment analysis, which include: • The punishment for specific crimes involves a substantive penological judgment "properly within the province of the legislatures, not courts"' . the Eighth Amendment does not mandate the adoption of any one penological theory, • sentencing codes inevitably vary state to state, • and any Eighth Amendment review of a sentence should encompass "objective factors to the maximum possible extent." Id. at 998-1000, 111 S.Ct. 2680. In Harmelin, the defendant received a life imprisonment with no possibility of parole for possessing 672 grams of cocaine. The Court concluded that the Michigan Legislature could reasonably find that the goals of retribution and deterrence warranted this term in view of the threats of violence, crime, and social displacement. Id. at 1003, 111 S.Ct. 2680. Applying the Arizona statutes to the objective facts of this case, we conclude that Appellant's involvement in the drug enterprise amply supports the sanctions imposed. [13] Appellant unavailingly relies upon In the Matter of a 1972 Chevrolet Corvette, 124 Ariz. 521, 606 P.2d 11. In that case, the court affirmed the dismissal of the forfeiture claim because the plea agreement did not list forfeiture as a possible punishment. Id. at 523, 606 P.2d at 13. Unlike the defendant in 1972 Chevrolet Corvette, Appellant's plea agreement specified that it "in no way affects any forfeiture proceedings pursuant to A.R.S. § 13-4301 et seq., § 13-2314, or § 32-1993." [14] We also reject Appellant's argument that the trial court improperly awarded costs against Appellant that were unrelated to her. As in Tocco, the State affirmed in its affidavit that all attorneys' fees and costs requested were connected with Appellant's case, Tocco, 173 Ariz. at 595, 845 P.2d at 521, even though they included time directed towards co-defendants who were either witnesses against Appellant or her co-conspirators. Appellant did not submit below any evidence that the time entries were irrelevant to the claims against her, and we conclude, as did the trial court, that these listed hours were relevant to Appellant's prosecution. [15] Appellant also reasserts her joint and several liability argument with respect to the award of attorneys' fees and costs, and we reject it for the reasons previously stated. [*] The Honorable Kirby Kongable, Judge Pro Tempore of the Court of Appeals, Division One, has been authorized to participate in this appeal by order of the Chief Justice of the Arizona Supreme Court pursuant to Ariz. Const. art. 6, § 31 and A.R.S. §§ 12-145 through 12-147.

739 N.E.2d 1263 (2000) 193 Ill.2d 560 251 Ill.Dec. 141 MORRIS B. CHAPMAN & ASSOCIATES, LTD., Appellee, v. John KITZMAN et al., Appellants. No. 88393. Supreme Court of Illinois. November 16, 2000. *1266 William J. Knapp, Robert J. Evola, of Burroughs, Hepler, Broom, MacDonald, Hebrank & True, Edwardsville, for appellants. Morris B. Chapman, Terrance V. O'Leary, of Morris B. Chapman & Associates, Ltd., Granite City, for appellee. Justice BILANDIC delivered the opinion of the court: This action for attorney fees was filed in the circuit court of Madison County. BACKGROUND Johnny Kitzman died in an excavation-related accident in Missouri. His widow, Karen, hired the law firm of Morris B. Chapman & Associates to pursue legal recourse. Karen agreed to pay Chapman one-third of any recovery as attorney fees. Chapman filed a wrongful death action in Missouri. According to Missouri law, decedent's heirs included his widow and his parents. Chapman obtained an $800,000 settlement for the benefit of decedent's heirs after working on the case for three years. Chapman filed a petition in the Missouri circuit court for settlement approval and apportionment. Shortly before the hearing on the petition, decedent's parents, John and Edna Kitzman, retained separate counsel, John A. Kilo. The Kitzmans agreed to pay Kilo one-third of any recovery in excess of $100,000 as attorney fees. They intervened in the cause and participated in the settlement approval and apportionment hearing. The Missouri court approved the settlement and entered an order distributing 86% ($688,000) to Karen and 14% ($112,000) to the Kitzmans. The court awarded Chapman a fee consisting of one-third of Karen's share ($227,040), but no part of the Kitzmans' share. The court awarded Kilo a fee consisting of one-third of the Kitzmans' share over $100,000 ($4,000). The Missouri court based its attorney fee awards on a statutory provision that required the circuit court to order the claimant: "To deduct and pay the expenses of recovery and collection of the judgment and the attorneys' fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances." Mo.Rev.Stat. § 537.095(4)(2) (1986). Given that Karen and the Kitzmans hired separate counsel for the hearing, the court interpreted this language as requiring it to award attorney fees pursuant to the existing contracts. The court therefore awarded no attorney fees out of the first $100,000 of the Kitzmans' share. The court acknowledged that it "seems unfair to permit potential wrongful death plaintiffs to rest on their oars until a settlement of a claim is achieved, and then appear with counsel so as to prevent the original plaintiff's fees from being a shared burden." Nonetheless, the court held, the statutory language requires this result. No appeal was taken. One month later, Chapman filed the instant action against the Kitzmans in Illinois, requesting an award of reasonable attorney fees. Chapman's first amended *1267 complaint sought fees based on quantum meruit and the common fund doctrine. The Kitzmans filed three separate motions to dismiss. They alleged that Chapman's claim is barred by the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, § 1) as res judicata. They further alleged that the complaint fails to state a cause of action under Missouri law and, alternatively, under Illinois law. Lastly, the Kitzmans moved for sanctions against Chapman pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137). The pleadings disclosed that Chapman is an Illinois corporation with a law office in Illinois, and that the Kitzmans are Illinois residents. The circuit court ruled that Chapman's action is not barred. The court, however, dismissed the quantum meruit count after Chapman verbally agreed to its dismissal. The court dismissed the common fund doctrine count, holding that the doctrine is not applicable in this case. Lastly, the court denied the Kitzmans' motion for sanctions. The appellate court affirmed in part and reversed in part, and remanded the cause for further proceedings. 307 Ill.App.3d 92, 240 Ill.Dec. 235, 716 N.E.2d 829. Applying Missouri law, the court agreed that Chapman's action is not barred as res judicata. The court thus agreed that Chapman's action is not barred by the full faith and credit clause. The court nonetheless reversed the dismissal of the common fund doctrine count. After conducting a conflict-of-laws analysis, the court applied Illinois substantive law with respect to the common fund doctrine and held that count II of Chapman's complaint survives the Kitzmans' motions to dismiss. The court affirmed the denial of sanctions. The Kitzmans' initial petition for leave to appeal was returned to them because it violated the page limitation set forth in Supreme Court Rule 315(c) (177 Ill.2d R. 315(c)). After this violation was remedied, this court granted the Kitzmans leave to file their petition for leave to appeal instanter. See 177 Ill.2d R. 315(b). We subsequently allowed the Kitzmans' petition for leave to appeal as a matter of right. 134 Ill.2d R. 317; see Schoeberlein v. Purdue University, 129 Ill.2d 372, 376, 135 Ill.Dec. 787, 544 N.E.2d 283 (1989). This court has jurisdiction over the cause. ANALYSIS I The Kitzmans contend that the full faith and credit clause bars this action because the Missouri court's fee apportionment order is res judicata as to Chapman's claim. For this reason, they argue, the circuit court should have dismissed Chapman's complaint. As an initial matter, we generally apply the law of the forum, i.e., Illinois law, with regard to matters of pleading and how the litigation shall be conducted. See Nelson v. Hix, 122 Ill.2d 343, 346-47, 119 Ill.Dec. 355, 522 N.E.2d 1214 (1988); Restatement (Second) of Conflict of Laws §§ 122, 127 (1971); see generally 16 Am. Jur.2d Conflict of Laws §§ 153, 163 (1998) (noting that, in matters of pleading and how litigation is conducted, the law of the forum state governs). In Illinois, section 2-619(a)(4) of the Code of Civil Procedure permits the involuntary dismissal of an action where it is "barred by a prior judgment." 735 ILCS 5/2-619(a)(4) (West 1996). This provision allows a party to raise the affirmative defense of res judicata. Where, as here, there is no issue of material fact, an appellate court conducts de novo review and determines whether dismissal by reason of res judicata is proper as a matter of law. See Epstein v. Chicago Board of Education, 178 Ill.2d 370, 383, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997); Torcasso v. Standard Outdoor Sales, Inc., 157 Ill.2d 484, 486, 491, 193 Ill.Dec. 192, 626 N.E.2d 225 (1993). According to the United States Constitution, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every *1268 other State." U.S. Const., art. IV, § 1. This clause requires Illinois courts to give the judgment of a sister state at least the res judicata effect that the sister state rendering the judgment would give to it. Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186, 190 (1963); Hays v. Louisiana Dock Co., 117 Ill.App.3d 512, 517, 72 Ill.Dec. 687, 452 N.E.2d 1383 (1983); see Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Insurance Guaranty Ass'n, 455 U.S. 691, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982). Hence, we must apply Missouri law to determine whether Chapman's claim against the Kitzmans is barred as res judicata by the Missouri court judgment. Pursuant to Missouri law, the following "four identities" must appear for res judicata to adhere: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. 1991) (en banc). The third identity, that of the parties to the action, is dispositive here. Chapman was not a party to the wrongful death action. Rather, Chapman was the law firm representing a party. As the Missouri Court of Appeals explained in an attorney fee dispute arising out of a wrongful death action, "[T]he attorneys were not parties to the underlying litigation. Res judicata bars only claims by parties and privies. * * * The concept of privity for purposes of res judicata connotes interests so closely related that the party sought to be barred may be said to have had a day in court. The interest of an attorney with regard to a fee claim is not of this character." Floyd v. Shaw, 830 S.W.2d 564, 565 (Mo.App.1992). Accordingly, applying Missouri law, we conclude that res judicata is not a bar to Chapman's claim for fees. On a related note, the Kitzmans next suggest that Chapman is collaterally estopped from pursuing its claim for attorney fees. Collateral estoppel is also known as issue preclusion. To determine whether issue preclusion obtains, Missouri courts apply a somewhat different test than the one set forth above. King General Contractors, Inc., 821 S.W.2d at 500-01. Nevertheless, issue preclusion is never applied against a party who could not appeal from the earlier judgment as a matter of law. Restatement (Second) of Judgments § 28(1), at 273; Comment a, at 274 (1982); see King General Contractors, Inc., 821 S.W.2d at 501-02 (following Restatement (Second) of Judgments); see generally K. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L.Rev. 534, 560 & n.125 (1981) (discussing the importance of this exception). The question thus arises whether Chapman could have appealed from the Missouri court judgment. In Missouri, appellate review of an order distributing a wrongful death settlement must be sought pursuant to section 512.020 of the Missouri Code of Civil Procedure (Mo.Rev.Stat. § 512.020 (1993)). Section 512.020 limits the right to an appeal only to parties to the suit, which does not include a party's law firm. In a similar context, the Missouri Court of Appeals explained: "The right to appeal is purely statutory. [Citations.] Section 512.020 provides that any `party to a suit aggrieved by any judgment of any trial court in any civil case ... may take his appeal to a court having appellate jurisdiction.' By its express terms, the statute limits appeals; only a `party to a suit' may appeal. The [law] firm was not a party. Therefore, the [law] firm has no statutory right to appeal." Oberhellmann v. *1269 Oberhellmann, 950 S.W.2d 487, 488 (Mo. App.1997). Because the Chapman law firm was not a party to the wrongful death suit, it was not allowed to appeal from the Missouri court judgment. Issue preclusion, therefore, does not apply. In summary, there is no bar to Chapman's action against the Kitzmans for attorney fees. II The Kitzmans next argue that Chapman's complaint should be dismissed because it fails to state a cause of action pursuant to the common fund doctrine. According to the Kitzmans, the common fund doctrine cannot be used to obtain attorney fees in a wrongful death action. The Kitzmans contend that we should apply the substantive law of Missouri in resolving this issue. Chapman counters that the substantive law of Illinois applies. If Illinois substantive law applies, the Kitzmans maintain, Chapman's complaint still fails for legal insufficiency. Before proceeding, we note that the law of the forum state governs matters of pleading, including the rules of pleading and sufficiency. See Nelson, 122 Ill.2d at 346-47, 119 Ill.Dec. 355, 522 N.E.2d 1214; Restatement (Second) of Conflict of Laws §§ 122, 127 (1971); see generally 16 Am. Jur.2d Conflict of Laws § 163, at 171 (1998) (explaining rule). In Illinois, the standard of review on appeal from a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)) is whether the complaint alleges sufficient facts which, if proved, would entitle the plaintiff to relief. Charles v. Seigfried, 165 Ill.2d 482, 485-86, 209 Ill.Dec. 226, 651 N.E.2d 154 (1995). Our review is de novo. A conflict exists on this issue between the substantive law of Missouri and Illinois. If Missouri law applies, Chapman's common-fund-doctrine claim fails as a matter of law. This is because a Missouri statute precludes the use of the common fund doctrine to obtain attorney fees in a wrongful death action where, as here, all the attorneys had existing fee contracts with their clients. Keene v. Wilson Refuse, Inc., 788 S.W.2d 324, 327 (Mo. App.1990) (interpreting the same statutory provision at issue here). If, on the other hand, Illinois law applies, Chapman's complaint survives the dismissal motion because, as later explained, it sufficiently states a cause of action pursuant to the common fund doctrine. We must therefore decide whether the substantive law of Missouri or Illinois governs this case. In deciding whose substantive law to apply, we look to our own choice-of-law rules. Esser v. McIntyre, 169 Ill.2d 292, 297, 214 Ill.Dec. 693, 661 N.E.2d 1138 (1996). Ordinarily, Illinois follows the Restatement (Second) of Conflict of Laws (1971) in making choice-of-law decisions. Section 6 of that Restatement sets forth several general factors that courts consider in doing so, the following of which are relevant here: "the basic policies underlying the particular field of law"; "the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue"; and "the relevant policies of the forum." Restatement (Second) of Conflict of Laws § 6(2), at 10 (1971); see Esser, 169 Ill.2d at 299 n.1, 214 Ill.Dec. 693, 661 N.E.2d 1138 (utilizing relevant principles in section 6(2)); Nelson, 122 Ill.2d at 350-51, 119 Ill.Dec. 355, 522 N.E.2d 1214 (same). Consideration of the general factors of section 6 supports the application of Illinois law. We first assess the basic policies underlying the particular field of law. The basic policy underlying the common fund doctrine is the prevention of unjust enrichment. See Scholtens v. Schneider, 173 Ill.2d 375, 385, 219 Ill.Dec. 490, 671 N.E.2d 657 (1996); Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652, 661 (Mo. 1962). As this court stated, "The underlying justification for reimbursing attorneys *1270 from a common fund, as explained by the United States Supreme Court in three early cases, is that, unless the costs of litigation are spread to the beneficiaries of the fund, they will be unjustly enriched by the attorney's efforts. [Citations.]" Scholtens, 173 Ill.2d at 385, 219 Ill.Dec. 490, 671 N.E.2d 657. This underlying policy against unjust enrichment can be fulfilled in this case only by an application of Illinois law. Thus, this factor favors application of Illinois law. We next consider the relevant policies of Missouri and the relative interests of Missouri in the determination of this particular issue. The public policy of a state may be sought in its constitution, legislative enactments and judicial decisions. See Roanoke Agency, Inc. v. Edgar, 101 Ill.2d 315, 327, 78 Ill.Dec. 258, 461 N.E.2d 1365 (1984). The Missouri legislature has prescribed by statute how attorney fees are to be awarded, as earlier quoted. On the one hand, the Missouri statute promotes equitable fee awards. Where a party sharing in a judgment or settlement is not represented by counsel, it affords the trial court the discretion to award the attorney who secured the proceeds a fair and equitable fee from that party's share. On the other hand, the statute promotes inequitable fee apportionment and unjust enrichment in certain circumstances. Where a party sharing in the proceeds hires counsel only after a different attorney has already secured the proceeds, the statute removes the court's discretion to award fees by requiring the court to award fees "as contracted." Thus, the statute operates unjustly to reward a party for doing nothing until a judgment or settlement is achieved, and then hiring counsel. The late hiring of counsel relieves the party from paying any portion of the fees of the original attorney, even though that attorney secured the proceeds benefitting the party. The present case exemplifies the injustice inherent in the Missouri statute. Chapman alone pursued this case for longer than three years before securing an $800,000 settlement for the benefit of all the heirs, including the Kitzmans. Yet the Missouri statute required the Kitzmans to pay Chapman nothing because, after Chapman secured the settlement, the Kitzmans entered into a written contract with separate counsel to represent them at the apportionment phase. Given the conflicting results that may obtain under the Missouri statute, we are not able to discern what the relevant policies and interests of Missouri are with respect to this particular issue. The Missouri circuit court that denied Chapman fees expressly noted the unfairness inherent in the statute's operation under these facts. This factor thus disfavors the application of Missouri law. The relevant policies of the forum must be considered as well. The public policy of Illinois may be sought in our judicial decisions and legislative enactments, as well as our constitution. See Roanoke Agency, Inc., 101 Ill.2d at 327, 78 Ill.Dec. 258, 461 N.E.2d 1365. Decisions of this court express a public policy against unjust enrichment in this context. See Scholtens, 173 Ill.2d at 385, 219 Ill.Dec. 490, 671 N.E.2d 657; Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill.2d 235, 238, 213 Ill.Dec. 563, 659 N.E.2d 909 (1995). As to legislative enactments, the parties have not cited and our research has not disclosed any Illinois statute that precludes application of the common fund doctrine under these facts. Therefore, the public policy of Illinois favors the application of Illinois law. In addition to the broad general factors of section 6, the Second Restatement of Conflict of Laws contains guidance for more specific problems of determining which forum's law to apply. Section 221 is applied to the narrow class of claims of restitution and unjust enrichment. Restatement (Second) of Conflict of Laws § 221, Comment a, at 728 (1971). Because the common fund doctrine arises out of the equitable theory of unjust enrichment (see Scholtens, 173 Ill.2d at 385, 219 Ill.Dec. 490, 671 N.E.2d 657; Jesser, 360 S.W.2d at *1271 661), we also look to that section in resolving which forum's law to apply in the present case. Section 221 provides: "(1) In actions for restitution, the rights and liabilities of the parties with respect to the particular issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where a relationship between the parties was centered, provided that the receipt of enrichment was substantially related to the relationship, (b) the place where the benefit or enrichment was received, (c) the place where the act conferring the benefit or enrichment was done, (d) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (e) the place where a physical thing, such as land or a chattel, which was substantially related to the enrichment, was situated at the time of the enrichment. These contacts are to be evaluated according to their relative importance with respect to the particular issue." Restatement (Second) of Conflict of Laws § 221, at 727 (1971). Here, consideration of section 221 supports the application of Illinois substantive law to this dispute. We find it significant that Chapman is an Illinois corporation with its law office in Illinois, and that the Kitzmans are Illinois residents. Furthermore, Illinois is the place where the relationship between the parties is centered with regard to the pertinent issue of attorney fees. There also is no dispute that Chapman performed many of its legal services in Illinois, which conferred enrichment on the Kitzmans. Illinois, therefore, has the most significant relationship to the parties and the issue at bar. We acknowledge that Missouri is the place where the Kitzmans' enrichment was ultimately received, given that the underlying lawsuit was filed and concluded in a Missouri court. We further acknowledge that Chapman performed some of its legal services in Missouri, which conferred enrichment on the Kitzmans. These latter points, however, do not outweigh the significant factors favoring the application of Illinois law. In conclusion, the factors of both section 6 and section 221 support the application of Illinois law. We thus apply the substantive law of Illinois regarding the common fund doctrine. Illinois generally follows the "American Rule": absent statutory authority or a contractual agreement between the parties, each party to litigation must bear its own attorney fees and costs, and may not recover those fees and costs from an adversary. Scholtens v. Schneider, 173 Ill.2d 375, 384, 219 Ill.Dec. 490, 671 N.E.2d 657 (1996); Saltiel v. Olsen, 85 Ill.2d 484, 488-89, 55 Ill.Dec. 830, 426 N.E.2d 1204 (1981). The common fund doctrine does not authorize a party to shift fees to an adversary, but rather authorizes the spread of fees among those who benefitted from the litigation. The doctrine permits a party who creates, preserves, or increases the value of a fund in which othershave an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees. Scholtens, 173 Ill.2d at 385, 219 Ill.Dec. 490, 671 N.E.2d 657. The litigant or lawyer who recovers a common fund for the benefit of others is entitled to a reasonable attorney fee from the fund as a whole. Scholtens, 173 Ill.2d at 385, 219 Ill.Dec. 490, 671 N.E.2d 657, quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, *1272 749, 62 L.Ed.2d 676, 681 (1980). If the costs of litigation are not spread to the beneficiaries of the fund, they will be unjustly enriched by the attorney's efforts. Scholtens, 173 Ill.2d at 385, 219 Ill.Dec. 490, 671 N.E.2d 657. The Kitzmans argue that, under Illinois law, the common fund doctrine cannot be applied to this case for three reasons. First, they claim that Illinois courts have limited application of the doctrine to only class actions and insurance subrogation cases. We reject this contention. We consider it well established that the common fund doctrine "has been applied in many types of cases covering a large range of civil litigation," not just to class actions and insurance subrogation cases. Scholtens, 173 Ill.2d at 388, 219 Ill.Dec. 490, 671 N.E.2d 657 (and authorities cited therein); R. Rossi, Attorneys' Fees §§ 6.10 through 6.21 (2d ed. 1995 & Supp. 2000) (discussing many types of cases in which doctrine has been applied). Whether the doctrine applies in a particular case is not determined by a label, but rather by a proper understanding of the doctrine and its limitations. See generally R. Rossi, Attorneys' Fees §§ 6.1 to 6.9 (2d ed. 1995 & Supp. 2000) (explaining doctrine and its limitations). In support of their position, the Kitzmans quote from a federal appeals court decision, which states that Illinois case law "has restricted the application of the fund doctrine to class actions and insurance subrogation cases." McKee-Berger-Mansueto, Inc. v. Board of Education of the City of Chicago, 691 F.2d 828, 835 (7th Cir. 1982); see also Insurance Co. of North America v. Norton, 716 F.2d 1112, 1117 (7th Cir.1983). We disagree with this characterization of Illinois law. The only case cited by the federal court to support this statement was Maynard v. Parker, 54 Ill.App.3d 141, 11 Ill.Dec. 898, 369 N.E.2d 352 (1977), aff'd, 75 Ill.2d 73, 25 Ill.Dec. 642, 387 N.E.2d 298 (1979). A reading of this court's decision in Maynard, however, reveals the complete absence of any suggestion that the common fund doctrine is limited to only "class actions" and "insurance subrogation cases." See Maynard, 75 Ill.2d 73, 25 Ill.Dec. 642, 387 N.E.2d 298. In fact, those phrases never appear in the opinion. Maynard simply held that the common fund doctrine did not apply against a hospital where the attorney seeking fees represented a patient who was indebted to the hospital for medical services, and a statute both provided for and limited the amount of that hospital's lien. Maynard, 75 Ill.2d 73, 25 Ill.Dec. 642, 387 N.E.2d 298. In those circumstances, the hospital was not unjustly enriched by the attorney's services. Moreover, the appellate court in Maynard did not hold that the doctrine is limited to only class actions and insurance subrogation cases. See Maynard, 54 Ill.App.3d 141, 11 Ill.Dec. 898, 369 N.E.2d 352, aff'd, 75 Ill.2d 73, 25 Ill.Dec. 642, 387 N.E.2d 298. Second, the Kitzmans submit that the common fund doctrine cannot be utilized outside of the subrogation context unless the court has a full, segregated fund under its control. They correctly note that there is a conflict in our appellate court as to whether this requirement exists. The Fifth District of the appellate court in this case rejected the requirement, whereas the First District has embraced it (Wolff v. Ampacet Corp., 284 Ill.App.3d 824, 828-29, 220 Ill.Dec. 601, 673 N.E.2d 745 (1996); City of Chicago v. Korshak, 276 Ill.App.3d 597, 602-03, 213 Ill.Dec. 144, 658 N.E.2d 1165 (1995)). The Supreme Court of the United States rejected a similar requirement in a leading case applying the common fund doctrine, Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). The plaintiff in Sprague did not bring a fund into court in which others could participate. The fund, however, existed and was identifiable. It consisted of earmarked bonds in the trust department of a bank in receivership under the protection of a federal court. The Court held: *1273 "Whether one * * * formally makes a fund available for others may, of course, be a relevant circumstance in making the fund liable for his costs in producing it. But when such a fund is for all practical purposes created for the benefit of others, * * * the absence of * * * the creation of a fund * * * hardly touch[es] the power of equity in doing justice as between a party and the beneficiaries of his litigation." Sprague, 307 U.S. at 167, 59 S.Ct. at 780, 83 L.Ed. at 1187. Following Sprague, the United States Court of Appeals for the Fifth Circuit also declined to require that a segregated fund be under court control before the common fund doctrine may be applied. In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d 1006, 1018 (5th Cir. 1977). The court explained: "In the present case there is not a fund in the sense of identified items already in the hands of a court appointee, but this is not a necessity. Determination of whether a fund exists is a combination of traditional and pragmatic concepts centering around the power of the court to control the alleged fund." In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d at 1018. Thus, after concluding that a fund did exist as a practical matter, the court held that attorney fees could be awarded pursuant to the common fund doctrine. In re Air Crash Disaster at Florida Everglades on December 29, 1972, 549 F.2d at 1018-21. As noted, the First District of the appellate court has held that the common fund doctrine can never be applied outside the subrogation context unless the court has a full, segregated fund under its control. Wolff, 284 Ill.App.3d at 828-29, 220 Ill.Dec. 601, 673 N.E.2d 745; Korshak, 276 Ill. App.3d at 603, 213 Ill.Dec. 144, 658 N.E.2d 1165. We reject this view. The existence of a full, segregated fund within the court's control is not a universal prerequisite to application of the common fund doctrine. See Taylor v. State Universities Retirement System, 203 Ill.App.3d 513, 520-21, 148 Ill.Dec. 296, 560 N.E.2d 893 (1990). Rather, as explained by the decisions discussed above, the doctrine may be applied where a fund, for all practical purposes, has been created for the benefit of others. The First District based its holding on three decisions of this court, as well as some appellate cases interpreting those decisions. As we discuss below, however, no decision of this court has placed such a restriction on application of the common fund doctrine. Those decisions are distinguishable as falling outside the scope of the common fund doctrine. In Hamer v. Kirk, 64 Ill.2d 434, 1 Ill. Dec. 336, 356 N.E.2d 524 (1976), the petitioner sued several governmental entities on behalf of a class of taxpayers. The petitioner obtained partial relief in that the Lake County board of review was ordered to equalize the level of assessment of property for each township in the county. The petitioner then requested that the court enter an order against the defendants for attorney fees and expenses. This court held that attorney fees could not be awarded under the common fund doctrine because "no such funds exist." Hamer, 64 Ill.2d at 440, 1 Ill.Dec. 336, 356 N.E.2d 524. To elaborate, in Hamer there simply was no fund, either in court control or as a practical matter. The petitioner did not obtain any existing or identifiable monetary award for the class. The lack of a fund is further evidenced by the fact that the petitioner was seeking to collect attorney fees from his adversary, not from the beneficiaries of the attorney's work. Hamer, 64 Ill.2d at 436, 1 Ill.Dec. 336, 356 N.E.2d 524; see Saltiel, 85 Ill.2d at 489, 55 Ill.Dec. 830, 426 N.E.2d 1204 (explaining that attorney fees are not charged against an adversary in fund cases); Ryan v. City of Chicago, 274 Ill.App.3d 913, 925, 211 Ill.Dec. 21, 654 N.E.2d 483 (1995) (same). In Hoffman v. Lehnhausen, 48 Ill.2d 323, 269 N.E.2d 465 (1971), a class of *1274 taxpayers sued various governmental officials seeking to enjoin the enforcement of a statute that granted a certain property tax exemption to persons age 65 or older. The taxpayers obtained relief in that the statute was declared unconstitutional and its enforcement enjoined. The taxpayers then sought an award of attorney fees. This court held that attorney fees could not be awarded under the common fund doctrine because, among other reasons, there was "[n]o fund." Hoffman, 48 Ill.2d at 329, 269 N.E.2d 465. Like in Hamer, the taxpayers did not obtain any existing or identifiable monetary award for the class. Their success, rather, was in enjoining a statute as unconstitutional. In Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority, 51 Ill.2d 126, 281 N.E.2d 338 (1972), the plaintiffs filed a suit against the Illinois Highway Trust Authority and various governmental officials on behalf of a class of taxpayers. The plaintiffs successfully challenged as unconstitutional a statute that empowered the Trust Authority to act. The plaintiffs then sought an award of attorney fees from the defendants. This court held that attorney fees could not be awarded under the common fund doctrine because "no fund" was involved. Rosemont Building Supply, 51 Ill.2d at 130, 281 N.E.2d 338. Again, the plaintiffs did not obtain any existing or identifiable monetary award for the class. Their success consisted in having a statute declared unconstitutional. The fact that the plaintiffs were seeking to collect attorney fees from their adversaries, not from the beneficiaries of the attorney's work, also shows the inapplicability of the common fund doctrine. See generally Rosemont Building Supply, 51 Ill.2d at 128, 281 N.E.2d 338; see also Saltiel, 85 Ill.2d at 489, 55 Ill.Dec. 830, 426 N.E.2d 1204; Ryan, 274 Ill. App.3d at 925, 211 Ill.Dec. 21, 654 N.E.2d 483. Our review of Hamer, Hoffman and Rosemont Building Supply persuades us that this court has never restricted application of the common fund doctrine in the manner asserted by the Kitzmans. The common fund doctrine was not applicable in those cases, mainly because there was no fund. The present case, in contrast, falls squarely within the doctrine. Chapman alone pursued this case for longer than three years before securing an $800,000 settlement for the benefit of all the heirs, including the Kitzmans. The Kitzmans were awarded $112,000 as a result of Chapman's work. The settlement constitutes a common fund, and the Kitzmans received a share of that fund. The Kitzmans maintain that the doctrine cannot be applied to them because the fund is not currently controlled by Illinois courts. We disagree. We hold that the mere fact that the fund is not within the actual control of the Illinois courts is not determinative of Chapman's claim. The Kitzmans' third contention is that the common fund doctrine can never be used to obtain attorney fees in a wrongful death action. The Kitzmans do not offer any argument or authority in support of this position, and we are aware of none. Our research has not disclosed any Illinois statute or case that precludes application of the common fund doctrine to wrongful death cases. Accordingly, we reject this contention. The Kitzmans raise no further challenge to the application of the common fund doctrine in this case. Therefore, we affirm the holding of the appellate court that Chapman's complaint sufficiently states a cause of action pursuant to the doctrine. III The Kitzmans last assert that the circuit court erred in denying their motion for sanctions, filed pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137). They maintain that Chapman should be sanctioned for pursuing a claim that was barred by the full faith and credit clause and the doctrine of res judicata. According to the *1275 Kitzmans, Chapman has provided no good-faith argument that its claim is not barred. Rule 137 authorizes sanctions against an attorney for pursuing false or frivolous lawsuits. See Cult Awareness Network v. Church of Scientology International, 177 Ill.2d 267, 279, 226 Ill.Dec. 604, 685 N.E.2d 1347 (1997). The decision whether to impose sanctions under Rule 137 is committed to the sound discretion of the circuit court, and that decision will not be reversed on appeal absent an abuse of discretion. Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460, 487, 230 Ill.Dec. 229, 693 N.E.2d 358 (1998). Chapman has prevailed in its argument that no bar exists to its claim. Given Chapman's success on the merits of this issue, its position cannot be deemed frivolous. Thus, the circuit court's refusal to impose sanctions is not an abuse of discretion. As a final matter, taken with the case was the Kitzmans' motion to recall the mandate of the appellate court, which was issued on October 20, 1999. We hereby allow this motion. See 155 Ill.2d R. 368(c). CONCLUSION For the reasons stated, the judgment of the appellate court is affirmed. Affirmed. Chief Justice HARRISON took no part in the consideration or decision of this case. Justice RATHJE, dissenting: I agree with the majority's analysis and conclusion in parts I and III. I disagree, however, with the majority's analysis in part II. Accordingly, I respectfully dissent. The majority cites to section 6 of the Restatement (Second) of Conflict of Laws and identifies three factors that are relevant to the conflict of laws issue. 193 Ill.2d at 569, 251 Ill.Dec. at 147-148, 739 N.E.2d at 1269-1270. One relevant factor is ignored by the majority—"the protection of justified expectations." Restatement (Second) of Conflict of Laws § 6(2)(d), at 10 (1971). The balancing of this factor along with the three mentioned by the majority requires this court to apply Missouri's substantive law on the issue of the distribution of attorney fees. The first factor addressed by the majority is "`the basic policies underlying the particular field of law.'" 193 Ill.2d at 569, 251 Ill.Dec. at 147, 739 N.E.2d at 1269, quoting Restatement (Second) of Conflicts of Law § 6(2)(e), at 10 (1971). The majority begins by discussing the policy behind the common fund doctrine and then states that, because Illinois uses the common fund doctrine in wrongful death cases and Missouri does not, Illinois law should apply. In other words, the majority designates the Illinois common fund doctrine as the "particular field of law" and concludes that the policies underlying the Illinois law more clearly fulfill the policies of the "particular field of law." The majority's circular logic mischaracterizes the issue. The appropriate question under this factor is which state's law better serves the policies underlying the distribution of attorney fees. This question is a much closer one than the majority claims. On one hand, as the majority correctly points out, the Illinois common fund doctrine prevents attorneys who did not participate as fully in the litigation from being unjustly enriched in the dispensation of attorney fees. 193 Ill.2d at 569, 251 Ill.Dec. at 147-148, 739 N.E.2d at 1269-1270. On the other hand, as the majority fails to point out, under Missouri law, each litigant has the freedom to choose which attorney collects the fees associated with the litigant's claim. Both states' laws demonstrate clear policies that relate to the basic policies of attorney fee distribution-fairness and client choice of attorney. Second, the majority addresses "`the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue.'" *1276 193 Ill.2d at 568-569, 251 Ill.Dec. at 147, 739 N.E.2d at 1269, quoting Restatement (Second) of Conflict of Laws § 6(2), at 10 (1971). Again assuming that the particular field of law is the common fund doctrine, the majority argues that the statute creates unjust results and that therefore the factor "disfavors the application of Missouri law." 193 Ill.2d at 570, 251 Ill. Dec. at 148, 739 N.E.2d at 1270. The majority fails to even discuss the relevant interests of Missouri in the discussion of this factor. Missouri has a substantial interest in this case. The cause of action arose in Missouri, and some of the most relevant work on the action was done there. In fact, Chapman would not even have a separate cause of action for the disbursement of attorney fees if this case had not been filed in Missouri. See 193 Ill.2d at 567, 251 Ill.Dec. at 146-147, 739 N.E.2d at 1268-1269. As discussed above, Missouri also has a clear policy which, while different than the Illinois policy, does not offend it. This factor weighs in favor of Missouri. The third factor addressed is the "`relevant policies of the forum.'" 193 Ill.2d at 570, 251 Ill.Dec. at 148, 739 N.E.2d at 1270, quoting Restatement (Second) of Conflict of Laws § 6(2)(b), at 10 (1971). This factor is discussed throughout this section of the majority opinion. The majority is correct that Illinois law would apply the common fund doctrine and that the policy underlying that law is against unjust enrichment. This does not mean, however, that a state that does not apply the common fund doctrine has a policy for unjust enrichment. Rather, the Missouri legislators have determined that the policy of attorney choice is more important to their state than the policy against unjust enrichment. Illinois has an obvious policy against unjust enrichment, and, although the Missouri policy does not offend the Illinois policy, the Missouri law clearly does. Therefore, this factor weighs in favor of Illinois. A fourth factor that the majority does not consider is "`the protection of justified expectations.'" Restatement (Second) of Conflict of Laws § 6(2)(d), at 10 (1971). This factor is explained in the comments to the Restatement (Second) as follows: "This is an important value in all fields of law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state." Restatement (Second) of Conflict of Laws § 6(2)(g), Comments, at 15 (1971). In this case, the underlying action arose in Missouri, and, most importantly, Chapman filed this action in Missouri. He is presumed to know how attorney fees are disbursed in wrongful death actions in Missouri. The attorney clearly should have expected Missouri law to apply, as should all of the parties. The only person who might have any claim to expect Illinois to govern attorney fees is Karen, because her relationship with Chapman was initiated in Illinois. Karen, however, is not a party to this action, and the attorney fees for her portion of the settlement are not at issue. The Kitzmans, by contrast, had no relationship with Chapman until he filed the wrongful death action in Missouri. The Kitzmans contracted with their attorney, who agreed to be paid one-third of any recovery in excess of $100,000. This contract clearly demonstrates that they expected Missouri law to apply, and the fact that Chapman filed the lawsuit in Missouri renders their expectation justified. Consequently, this factor overwhelmingly favors the application of Missouri law. Under these four factors, Missouri law applies. As a result, the common fund doctrine is not applicable. I would therefore reverse the appellate court as to this issue.

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 1 2003 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 02-2157 v. (D.C. No. CIV-01-1215) (New Mexico) CLARENCE R. SINGLETON, Defendant-Appelllant. ORDER * Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges. Mr. Clarence R. Singleton, proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2255 habeas corpus petition and seeks a certificate of appealablity (COA) from this court. Because Mr. Singleton failed, in accordance with 28 U.S.C. § 636(b)(1), to file timely objections to the magistrate judge’s findings and recommendation to the district court, we deny his request for a COA. Mr. Singleton was indicted with twenty-five other defendants on twenty- After examining appellant’s brief and the appellate record, this panel has * determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. eight counts of various drug and drug related violations. He eventually entered a plea agreement pursuant to F ED . R. C RIM . P ROC . 11(e)(1)(C), under which he pled guilty to one count of conspiracy to possess and distribute one kilogram or more of a substance containing a detectable amount of methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(A), § 846. In accordance with the terms of his plea agreement, Mr. Singleton was sentenced to 210 months in prison and five years of supervised release. 1 Mr. Singleton, along with two other co-conspirators, subsequently filed individual § 2255 petitions to vacate, set aside or correct their sentences. Mr. Singleton essentially alleged his plea was not knowing and voluntary, claiming that his trial counsel was ineffective and that the trial court erred by not requiring a presentence report prior to accepting his plea. He also argued his role in the conspiracy was overstated, resulting in a disproportionally harsh sentence as compared to the sentences of other members in the conspiracy. Finally, he asserted the government’s search of his jail cell and seizure of legal papers constituted outrageous government conduct, violating his First, Fifth and Sixth Amendment rights and effectively coercing him to plead guilty. 2 1 Mr. Singleton’s request to withdraw his plea was denied by the district court and affirmed on appeal. See United States v. Hernandez, 216 F.3d 1088 (10th Cir. 2000) (unpub. op.). 2 Mr. Singleton did not specifically list this last claim in his § 2255 petition. Nonetheless, the magistrate judge addressed the claim noting that Mr. Singleton’s supporting brief, a document not included in the record on appeal, contained arguments regarding the search and seizure issue. -2-  The district court consolidated the petitions of Mr. Singleton and his co- conspirators, and referred them to a magistrate judge. On March 27, 2002, the magistrate judge issued findings and a recommendation denying the parties’ claims for relief. The magistrate’s report specifically indicated that pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days upon receiving the report to file written objections with the district court, and that failure to do so would bar their ability to seek appellate review of the court’s findings and recommendations. Mr. Singleton did not submit written objections to the district court until May 17, 2002, long after the ten day filing period had expired, so they were stricken as untimely. 3 Mr. Singleton nonetheless brings this appeal, challenging the district court’s denial of his § 2255 petition. Mr. Singleton is precluded from appealing the district court’s order under this circuit’s firm waiver rule, which holds that a party’s failure to timely object to a magistrate judge’s report and recommendation bars the party from seeking appellate review of the district court’s order. See Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). We do make exceptions to the firm waiver rule “where the interests of 3 Samuel J. Singleton, one of Mr. Singleton’s co-conspirators, filed written objections with the court after receiving an extension to May 10, 2002. Petitioner Clarence Singleton’s objections were not only filed beyond the time granted to Samuel Singleton, they were filed after the district court adopted the magistrate judge’s report on May 13, 2002. -3- justice so require,” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996), or where “the magistrate’s order does not clearly apprise a pro se litigant of the consequences of a failure to object.” Talley, 91 F.3d at 1413. However, this is not such a case. The magistrate judge’s report clearly told Mr. Singleton he had ten days in which to file his objections or waive his right to appeal. Mr. Singleton failed to file his written objections within the time allotted by statute, or even within the extended time granted to his co-conspirator. Moreover, Mr. Singleton has failed to present any argument indicating the interests of justice require us to address his claims. Accordingly, we DENY Mr. Singleton’s request for a COA. 4 ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge 4 In light of our denial of a COA, we need not address Mr. Singleton’s motions to file supplemental and reply briefs, or his motion to adopt Samuel J. Singleton’s brief regarding the government’s search of his jail cell. -4- 

26 Cal.App.2d 326 (1938) STEPHEN B. DEXTER, Respondent, v. T. ANKIEWICZ, Appellant. Civ. No. 11717. California Court of Appeals. Second Appellate District, Division Two. May 12, 1938. Schell & Delamer for Appellant. James W. Bell for Respondent. McComb, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for breach of an alleged contract defendant appeals. The pertinent facts are: May 17, 1935, Edmund Ankiewicz died in Los Angeles County. The public administrator of Los Angeles County filed a petition for letters testamentary of the estate of Edmund Ankiewicz. In this petition it was alleged that the heirs at law of the decedent were unknown and that no last will and testament had been found. Subsequently plaintiff, who was engaged in the business of searching for lost heirs caused an advertisement to be published in a newspaper in Poznan, Poland, with reference to the estate of decedent, In response to the aforementioned advertisement on November 5, 1935, defendant wrote to an agent of plaintiff in Connecticut stating that he was the brother, next of kin, and only heir at law of decedent. A copy of this letter he forwarded to plaintiff in Los Angeles, and in response plaintiff wrote defendant a letter reading: "WE FIND THE LOST WHEN MANY OTHERS FAIL" STEPHEN B. DEXTER, President and Manager HEIRS RESEARCH AND RECOVERY BUREAU 316 Homer Laughlin Building Los Angeles, California November 23, 1935. "Mr. T. Ankiewicz," "Strezelecka 3a str.," "Poznan," "Poland" "Dear Sir:" "Our Connecticut agent, Mrs. Emma Greve, has forwarded to us your very interesting letter of the 5th inst., and we thank you for the same. *328" "We have read your communication with care, and it is possible that you are related to the particular Edmund Ankewich or Edmond Ankevich (Ankiewicz). The differences in spelling of the name can, of course, be easily accounted for since our American way of spelling family names often differs from those of the Europeans." "It is most important that you protect your interests in the matter on the theory that he is your brother, and we are enclosing a form of Survey of Family Relationship which we will ask that you fill in to the best of your ability and sign and return to us. We also enclose our contract, which when signed by you and returned to us will give us the power to represent you and protect your interests. It is not necessary that you have this contract signed before a notary public, and all that is required is to have two witnesses sign on the lines provided for that purpose. This will save you the expense of a notary fee. You will note from our contract that you are put to no expense whatever. We take care of all that, and if we fail to make the recovery for you then we stand all the expenses incidental to the matter, and you are not responsible in any way whatever. In other words we have to make the recovery for you, before we receive our commission. In order to prevent delays, deal directly with us." "We wish to state that we have been in the research and recovery business for a number of years, specializing in estate work, and are thoroughly competent to look after your interests. We have been uniformly successful, and can serve you faithfully and well. We are members of the Los Angeles Chamber of Commerce, and are licensed and bonded by the State of California. Upon receipt of your Survey of Family and the Contract, we will immediately proceed to act in your behalf. If there is any other information we desire from you, we will advise you later." "Very sincerely," "(Signed)" "Stephen B. Dexter" "SBD/ *329" "READ THE INHERITANCE NEWS--PUBLISHED QUARTERLY--$1.00 a year." "News Worth While." "Your Chance Inquiry in Our Behalf May Mean Thousands" in Money for You--Read 'Uncovering Millions in Wealth'"" The contract mentioned in the foregoing letter was a printed form and read: "Heirs Research & Recovery Bureau," (Stephen B. Dexter, Manager) Dear Sirs:-- "I am in receipt of your offer to recover whatever portion may be due me from the Estate of Edmund Ankewich (Edmond Ankiewicz), and I hereby assign unto you one-third of such portion for your services in connection with this case, and I hereby authorize the Heirs Research and Recovery Bureau to Collect and protect my interest; and I give and grant unto your representative Stephen B. Dexter the right to act as my Attorney in fact in this specific Estate matter, and I hereby ratify all that he shall do in directing the distribution of any and all assets in connection with my portion of said Estate, it being understood and agreed that all expenses of whatever nature in connection with said recovery shall be advanced for me by the Heirs Research and Recovery Bureau and deducted at the time of distribution, and if distribution cannot be made, then the Bureau shall bear the loss of all moneys so advanced. The above assignment of one-third is to the Heirs Research and Recovery Bureau, or their assigns." "Witness:" __________ __________ __________ __________ "Signature__________ __________" "Address__________ __________" __________ __________ "Subscribed and sworn to before me, this___day of __________, 193___" __________ __________ "Notary Public in and for the County of__________State of" __________ "Approved:--" Heirs Research & Recovery Bureau By Stephen B. Dexter Manager." *330" December 20, 1935, defendant wrote to plaintiff a letter reading in part: "In reply to your letter of the 23rd, ult. I let you kindly know, that I am willing to sign and return you the contract sent me by you, and also to intrust you with the power to represent me and protect my interests, when you before will kindly give me some information, particularly of what will be composed the inheritance after my brother E. Ankewich and what value likely it represents in cash." "I note, that I do not care for it, to reach, in what place the inheritance is, I will only know his value." December 21, 1935, and before receipt of the letter just mentioned plaintiff cabled defendant as follows: "Forward agreement immediately as other heir claimants." After receipt of defendant's letter dated December 20, 1935, plaintiff on January 11, 1936, cabled defendant thus: "Estate about sixty five hundred dollars proceeding to protect your interests authority your letter December 20 forward contract immediately. Heirs Research, Los Angeles." The foregoing cable was followed by a letter from plaintiff to defendant dated January 18, 1936, reading in part as follows: "Referring to our previous correspondence, we are still awaiting the receipt of the Survey of Family Relationship and the Contract. In our letter, we impressed you with the importance of this on Nov. 23rd, and again in our cables of Dec. 21st and Jan. 11th. While we have already proceeded to look after your interests, and took your letter of Dec. 20th as our authority for the same, as we mentioned in our last cable, at the same time we need the other documents referred to above." "We have received letters from parties claiming that they represent you as attorneys, but you never mentioned them to us, and in the absence of such advices from you, we cannot recognize them in our relationship with you. The last letter is from an attorney by the name of Dr. J. Kaczmarczyk of Krynica, who states he holds Power of Attorney from you. We cannot understand this, as you had dealt with us, and given us the authority to act for you." "You do not need any attorney there, as we are fully equipped to take care of your interests and to serve you *331 faithfully and well. We have been in business a number of years, and have an international reputation in our class of work. We are licensed and bonded and reliable, and you need have no hesitancy in entrusting this matter to us. So we urge that you give this matter the attention it so well deserves, and send on the Contract and the Family Survey Form. It is most important that this has been done immediately." In response to the foregoing letter on February 15, 1936, the defendant wrote plaintiff a letter reading thus: "In answer to yours of the 18th ult. I beg to return you herewith unsigned the forms you send me, and to inform you that I was obliged to submit the question of my late brother's inheritance to the Polish Consulate General at Chicago through the Court of Justice of this town, giving them also full power of attorney since the 31 January last." "I have given no other authorization or power whatever neither to lawyers nor to any other person and, if any steps have been taken in this matter, he has taken them has done so of his own initiative and at his own risks." April 28, 1936, plaintiff again wrote to defendant a letter reading as follows: "We are calling your attention to your letter of February 15, 1936, in which you returned the forms of deposition which had been forwarded to you and we note what you state to the effect that you were obliged to submit the question of your late brother's inheritance to the Polish Consulate General at Chicago, and giving your Power of Attorney to proceed in your behalf." "You also stated that you have not authorized any attorney or any other person to take any steps in the matter." "In connection with the above paragraph of this letter, we call your attention to your letter of December 20, 1935, in which you state your willingness to entrust us with the power to represent you and to protect your interests, provided we give you the information as to the value the estate represented. Following the receipt of this letter, we cabled you under date of January 11th giving you the amount of the estate and telling you we were proceeding to protect your interests as you had indicated in your letter you desired us to do. *332" "Thereupon, we acted in good faith, had your appearance made in the estate, secured the deposition which you were to give in proof of your heirship and in every way acted for your interest. Considerable time has elapsed since your letter of February 15th, hearings concerning the estate have come up on two occasions and no one connected with the Polish Consulate has appeared in your behalf. However, the attorney who is looking after your interest under the power given to us by your letter of December 20th, has appeared and has continued these hearings so that your interest might not be impaired. So Mr. Ankiewicz, it appears to us that your interests would be best served by giving us further instructions in your behalf so that you may be properly represented. We are, therefore, returning the deposition so that you may have it properly filled in and mailed back to us." "Trusting that you will appreciate the situation and act promptly through us for your own protection, by further advice, we beg to remain." Again on June 27, 1936, plaintiff wrote defendant a letter reading thus: "I have been going over some of the letters in your case, and especially the letter where you authorize us to proceed if we could send to you a statement as to the amount of money involved." "I have carefully inquired from the Court House records, but note that no one has appeared outside of our attorney, and now I am asking you again, since time is passing rapidly, to fill in the papers that were sent you for the purpose of proving your relationship to one Edmund Ankiewicz." "I am sure, if you knew how important it was to finish this matter up, and if you knew as we know that delays in matters of this kind permit the passing of the estate to the State of California, you would appreciate the earnestness with which I write and urge upon you the necessity of filling in the papers that were sent you." "In filling in the papers, please be sure and sign the contract before two witnesses, and fill in the questionnaire showing your relationship to the said Edmund Ankiewicz (Ankewich)." "Hoping to hear from you without delay, we remain," *333 Finally on October 28, 1936, plaintiff wrote defendant this letter: "We are writing in reference to the Estate of your brother, Mr. Edmund Ankewich, which is being probated in this County." "You have doubtless been informed that we have filed a claim against this estate because of the understanding between us, and which you did not carry out according to the understanding and the contract, you having turned the matter over to other parties to represent you, after engaging our services, and after we had entered your claim to the estate of your brother and was representing you therein. We disliked to do this, but it was our only recourse under the circumstances, and we felt thoroughly justified in doing so." "Of course, this means that the estate will be tied up for some time and till the matter is adjudicated in the Courts. If you care to settle the matter with us, instead of waiting an indefinite period, you can so indicate to us, and the matter can be disposed of at an early date." "P. S. Our claim is the commission of one-third of the amount of the estate which would be coming to you." [1] This is the sole question necessary to be determined: Does the foregoing correspondence constitute a binding contract between plaintiff and defendant? This question must be answered in the negative. Where the parties understand that before a contractual relationship shall exist the terms of their contract are to be reduced to writing and signed by them, a binding or completed contract does not arise until a writing evidencing the terms of their agreement has been executed by the respective parties. (Mercantile Trust Co. v. Sunset etc. Co., 176 Cal. 461, 469 [168 P. 1037]; Spinney v. Downing, 108 Cal. 666, 668 [41 P. 797].) [2] In the instant case it is clear from the portions which we have italicized of the correspondence set forth above that both plaintiff and defendant contemplated that acceptance by defendant of plaintiff's offer should be signified by defendant's signing and returning the contract which accompanied plaintiff's letter to defendant dated November 23, 1935. Therefore, applying the above-mentioned rule of law to these facts, it is evident that defendant did not accept plaintiff's *334 offer in the manner contemplated by the parties, and hence defendant never entered into a binding or subsisting obligation with plaintiff. In view of our conclusion, it is unnecessary for us to discuss the other points presented by counsel. For the foregoing reasons the judgment is reversed. Crail, P. J., and Wood, J., concurred.

351 F.Supp.2d 278 (2004) Jamaal W. ALLAH; Lennie Kirkland; Kevin Jackson, Plaintiffs, v. Devon BROWN, Commissioner of the New Jersey State Department of Corrections; Terrance Moore, Administrator of East Jersey State Prison; Roy Hendricks, Administrator of New Jersey State Prison; Robert Shabbick; Wayne Sanderson, Defendants. No. CIV. 02-5298(WHW). United States District Court, D. New Jersey. October 26, 2004. *279 Lawrence S. Lustberg, Shavar D. Jeffries, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., Newark, NJ, for Plaintiffs. Peter C. Harvey, Office of the Attorney General, Department of Law and Public Safety, Trenton, NJ, for Defendants. OPINION WALLS, District Judge. This matter is before the Court on Plaintiffs' motion for judgment on the pleadings and Defendants' cross-motion for judgment on the pleadings. The motions are decided without oral argument pursuant to Fed.R Civ.P. 78. Plaintiffs' motion is granted in part and denied in part; Defendants' motion is granted in part and denied in part. FACTS AND PROCEDURAL BACKGROUND Plaintiffs are three inmates in New Jersey state prisons who allege that Defendants are responsible for adopting a policy that directed prison officials to open inmates' legal mail outside of their presence in violation of their constitutional rights. Before September 11, 2001, the policy of the New Jersey Department of Corrections ("DOC") required that legal mail be opened only in an inmate's presence. After the terrorist attacks of September 11, 2001, the then Acting Governor of the State of New Jersey, Donald DiFrancesco, issued Executive Order No. 131-2001, which authorized New Jersey agencies to suspend or modify existing rules to the extent they jeopardized public welfare. Pursuant to this order, the DOC amended its procedures regarding the handling of incoming mail and issued a policy directive on October 19, 2001 (the "Legal Mail Policy") requiring that all incoming legal mail be opened outside of the prisoners' presence and checked for contraband and anthrax contamination. Legal mail is now sorted and opened on prison grounds, but not within the inmates' housing units. Plaintiffs filed a pro se complaint on November 4, 2002 against various State officials, seeking, inter alia, an injunction to prevent enforcement of the Legal Mail Policy. On April 3, 2003, this Court dismissed with prejudice Plaintiffs' damages claims against the State officials in their official capacities and dismissed without *280 prejudice Plaintiffs' claim of a denial of access to the Courts. The Court permitted Plaintiffs' free speech and association claims to proceed against the State officials. Plaintiffs filed an Amended Complaint on June 3, 2003. Defendants filed a Second Amended Answer to Plaintiffs' Amended Complaint on July 29, 2003. Plaintiffs now move for judgment on the pleadings under Fed.R.Civ.P. 12(c) with respect to Count I of their Amended Complaint, asserting that the Legal Mail Policy violates their fundamental rights to free speech and association under the United States Constitution. Defendants filed a cross-motion for judgment on the pleadings. STANDARD OF REVIEW The Court reviews a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) under the same standard as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Constitution Bank v. DiMarco, 815 F.Supp. 154, 157 (E.D.Pa.1993). On a Rule 12(b)(6) motion, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994). Under Rule 12(c), judgement will only be granted if it is clearly established that no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law. See Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir.1988). The question is whether the plaintiff can prove any set of facts consistent with his allegations that will entitle him to relief, not whether he will ultimately prevail. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or permit inferences to be drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). DISCUSSION I. Violation of Plaintiffs' Constitutional Rights The Supreme Court has long held that despite the necessary loss of liberty that results from incarceration, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). A prison regulation that impinges on an inmate's constitutional rights will not be upheld unless it is "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S.Ct. 2254. However, the courts must give substantial deference to the judgment of prison administrators, who "bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them." Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). The specific contours of prisoners' First Amendment rights to free speech and association have not been established. The *281 Supreme Court has upheld a regulation that permitted clearly-marked legal mail to be opened and inspected for contraband, but not read, in the presence of the addressee prisoner. See Wolff v. McDonnell, 418 U.S. 539, 577, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Supreme Court has not addressed the corollary question of whether a regulation permitting opening and inspecting of legal mail outside of the addressee prisoner's presence is constitutional. Before the Legal Mail Policy was enacted, the Third Circuit Court of Appeals held that "a pattern and practice of opening [a prisoner's] properly marked incoming court mail outside his presence impinges upon his constitutional rights to free speech and court access. Such a practice chills protected expression and may inhibit the inmate's ability to speak, protest, and complain openly, directly, and without reservation with the court." Bieregu v. Reno, 59 F.3d 1445, 1456 (3d Cir.1995), overruling on other grounds recognized in Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir.1997). After concluding that this practice violated the plaintiff's constitutional rights, the Bieregu court applied the four-prong test established in Turner v. Safley to determine whether such a policy "is reasonably related to legitimate penological interests." Bieregu, 59 F.3d at 1457 (citing Turner v. Safley, 482 U.S. 78, 79, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The Turner test directs the courts to consider the following factors when deciding if a prison policy is constitutional: (1) whether there is a "valid, rational connection" between the infringing practice and a valid government interest; (2) whether there are "alternative means of exercise of the right" that are available to inmates; (3) the effect the accommodation will have on prison officials, other inmates and the allocation of prison resources; and (4) the existence of an alternative that accommodates the prisoner's rights at "de minimis cost to valid penological interests." Turner, 482 U.S. 78 at 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64. In the Third Circuit it is clear that as a general matter, prisoners have a constitutional right to be present when their legal mail is opened. Defendants now ask the Court to determine whether the Turner standard requires their presence in the context of today's heightened terrorism concerns, and more specifically, the threat of anthrax contamination through the mail. Plaintiffs contend that the Legal Mail Policy is reasonably related to the DOC's legitimate interest in maintaining prison safety and security. The policy was issued in the wake of the terrorist attacks of September 11, 2001, pursuant to an executive order authorizing state agencies to modify existing rules to the extent they jeopardized public welfare. Plaintiffs argue that the Legal Mail Policy was enacted in response to a "very real" threat of anthrax contamination through mail to prisoners, citing as evidence the letters containing anthrax that were processed in the Hamilton, New Jersey mail processing centers. See, David Kocieniewski, Hamilton: Anthrax Cleanup to Last until 2004, N.Y. Times, August 8, 2003 at B5. This Court finds that there is no reasonable connection between the Legal Mail Policy and the Defendants' asserted interest. Defendants have offered no evidence that there is an elevated risk of anthrax contamination in prisons resulting from the events of September 11, 2001, which prompted DiFrancesco's executive order. Nor have Defendants cited any evidence of attempts to expose prisoners to anthrax in the three years since the incident in the Hamilton postal facility. Since that time, investigations conducted by the Center for *282 Disease Control and Prevention (the "CDC") have found that the actual risk of anthrax contamination in this country is quite small, and guidelines set forth by the CDC and the State of New Jersey provide a sensible approach to dealing with suspicious packages. See CDC Health Advisory: Updated Information About How to Recognize and Handle a Suspicious Package or Envelope (November 2003), available at . In addition, a policy requiring the inmates' presence while their legal mail is opened does not significantly increase the risk that third-parties would be susceptible to anthrax contamination. The only additional person protected from exposure by the Legal Mail Policy is the inmate himself, who is at liberty to waive his first amendment right to be present. A policy requiring that legal mail be opened in an enclosed area would be reasonable, and a policy providing that any suspicious letters marked as legal mail be opened outside of the inmates' presence might also be appropriate. However, a policy expressly directing that all of the inmates' legal mail be opened and inspected outside of their presence impermissibly "overreaches" Defendants' legitimate interest in maintaining prison safety and security. Defendants concede that are no alternative means for inmates to exercise their right to freely communicate with attorneys and the courts, but argue that the Legal Mail Policy is only a "minor burden" on Plaintiffs' rights, which are protected when prison officials refrain from reading inmates' legal mail. Moreover, Defendants argue the burden on the prison that would result from accommodating Plaintiffs' rights is too onerous. It is no doubt true that "reading [inmates'] legal mail would infringe the right of access even more than simply opening and inspecting it." Bieregu, 59 F.3d at 1456. However, as the Supreme Court noted in Wolff v. McDonnell, the only way to ensure that inmates' legal mail is not read is to require that it be opened in their presence. 418 U.S. 539, 576-77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Plaintiffs' allegations, whether true or not, certainly indicate that Plaintiffs are under the impression that their legal mail is being read by prison officials. This is precisely the chilling effected that the Third Circuit warned about in Bieregu. A pattern and practice of opening an inmate's legal mail outside of his presence could have a significant effect on an inmate's ability to freely communicate with his attorney and the courts, and cannot be considered a "minor burden" on his First Amendment rights. Defendants have not shown how accommodating Plaintiffs' rights would prove overly burdensome. Legal mail is currently opened in an on-site facility that is located on prison grounds but outside of the prison walls. Defendants argue that allowing the prisoners to view the opening of their legal mail in this on-site facility would be a "logistical nightmare" because thousands of prisoners would have to be transported and searched at least once in order to gain entrance to the mail facility. However, there are surely other mail processing procedures that would accommodate Plaintiffs' rights and impose less of a burden on prison administration. Legal mail could be distributed and opened in an enclosed space within the prison walls, which would obviate the need for cumbersome inmate transfer. Or, as Plaintiffs suggest, a windowed room within the prison walls could be used for inspection of legal mail, which would allow inmates to observe the opening of their letters with no risk of anthrax exposure. Given the importance of the rights at issue in this case, the inconvenience associated with opening legal mail in *283 the presence of the inmate addressees do not outweigh Plaintiffs' First Amendment rights to freely communicate with their attorneys and the courts. Accordingly it is ordered that Defendants immediately cease and desist the practice of opening inmates' legal mail outside of their presence. II. Qualified Immunity Even if a plaintiff can establish a constitutional violation, under the doctrine of qualified immunity government officials will not be liable if "[t]heir conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For a right to be "clearly established," the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). If the law is not established clearly when an official acts, he is entitled to qualified immunity because he "could not reasonably be expected to anticipate subsequent legal developments." Harlow, 457 U.S. at 817-19, 102 S.Ct. 2727. The doctrine of qualified immunity only applies to claims for monetary damages. As such, Defendants' qualified immunity defense is inapplicable to Plaintiffs' request for injunctive relief. Plaintiffs also seek monetary damages for the violations of their First Amendment rights. While it is true that Third Circuit case law has long established inmates' rights to be present when their legal mail is open, the Supreme Court has held that the "clearly established" inquiry "must be under taken in light of the specific context of the case, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The reasonableness of Defendants' actions must be determined from an "on-scene perspective," and a court should find that state officials are entitled to qualified immunity "if the law did not put him on notice that his conduct would be clearly unlawful." Id. at 204-05, 121 S.Ct. 2151. The Legal Mail Policy was enacted at a very uncertain time in our history, and was enacted with the legitimate goal of protecting prison inmates and staff. Although this Court finds that the Legal Mail Policy is an overreaching response to the threat of anthrax contamination, it does not find that the law was so clearly established that it would be obvious to a reasonable official that the policy violated Plaintiffs' First Amendment rights. Because a reasonable official could believe that the Legal Mail Policy was constitutionally permissible under Turner, Defendants are entitled to qualified immunity from monetary damages in this case. Plaintiffs' motion for judgment on the pleadings on Count I of the Amended Complaint is granted to the extent it seeks injunctive relief, but denied to the extent it seeks monetary damages against Defendants in their individual capacities. Defendants' motion is granted to the extent Count I seeks monetary damages and denied to the extent it seeks injunctive relief. CONCLUSION It is on this 26th day of October, 2004, ORDERED that Plaintiffs' motion for judgment on the pleadings is GRANTED in part and DENIED in part; Defendants' motion for judgment on the pleadings is GRANTED in part and DENIED in part. ORDER It is on this 26th day of October, 2004: ORDERED that Plaintiffs' motion for judgment on the pleadings is GRANTED in part and DENIED in part; Defendants' *284 motion for judgment on the pleadings is GRANTED in part and DENIED in part.

656 F.2d 702 dRodriguez, Matter of 81-5542 UNITED STATES COURT OF APPEALS Fifth Circuit 8/20/81 1 S.D.Fla. AFFIRMED 2 --------------- d Local Rule 21 case.

463 B.R. 143 (2010) IN RE VISTA RIDGE DEVELOPMENT, LLC; VISTA RIDGE DEVELOPMENT, LLC v. VISTA RIDGE ASS'N, INC. Nos. CO-10-050, 09-37789. United States Bankruptcy Appellate Panel for the Tenth Circuit. December 20, 2010. DECISION WITHOUT PUBLISHED OPINION Affirmed.

948 F.2d 1296 U.S.v.Lowe** NO. 88-5949 United States Court of Appeals,Eleventh Circuit. NOV 05, 1991 1 Appeal From: S.D.Fla. 2 AFFIRMED. ** Local Rule 36 case

415 N.W.2d 432 (1987) Bethel J. HACKENMILLER, Relator, v. YE OLDE BUTCHER SHOPPE and Commissioner of Jobs and Training, Respondents. No. C1-87-1021. Court of Appeals of Minnesota. November 24, 1987. *433 Bethel J. Hackenmiller, pro se. Robert Suk, Rochester, for Ye Olde Butcher Shoppe. Hubert H. Humphrey, III, Atty. Gen., Donald E. Notvik, Sp. Asst. Atty. Gen., St. Paul, for Commissioner of Jobs and Training. Considered and decided by NORTON, P.J., and MULALLY and LOMMEN, JJ.,[*] with oral argument waived. OPINION A. PAUL LOMMEN, Acting Judge. Relator Bethel Hackenmiller seeks review of a decision by the Commissioner of Jobs and Training which disqualified her from receiving benefits based on the fact that she had voluntarily quit her job with the respondent to go back to work for her primary employer. We affirm the Commissioner's determination that Hackenmiller voluntarily quit her job with the respondent, but conclude the Commissioner erred by failing to address Hackenmiller's entitlement to benefits from her primary employer. FACTS On August 17, 1985, Bethel Hackenmiller was separated from her employment with the Hormel Meat Packing Plant in Austin, Minnesota, due to a strike. Hackenmiller had been earning $9.25 per hour, working full-time for Hormel prior to the strike. On August 18, Hackenmiller filed a claim for unemployment compensation benefits as a result of her separation from Hormel. On September 16, 1985, Hackenmiller began working full-time for the respondent Ye Olde Butcher Shoppe, earning $5.00 per hour. The record indicates this position was intended to be temporary, until the strike at Hormel ended. On January 4, 1986, Hackenmiller received a letter from Hormel stating the Austin plant would be reopened on January 13 and requesting all employees to come back to work on that date. On January 11, Hackenmiller quit her employment at Ye Olde Butcher Shoppe, intending to return to Hormel. Although she attempted to return to Hormel, Hackenmiller was intimidated by the strikers and decided not to cross the picket line. She thereafter reopened her claim for unemployment compensation benefits. Hackenmiller's claim for benefits was initially denied on the basis that she voluntarily quit her job with Ye Olde Butcher Shoppe. Following several appeals and two hearings, a Commissioner's representative from the Department of Jobs and Training, determined Hackenmiller voluntarily quit her job without good cause attributable to Ye Olde Butcher Shoppe. The representative determined Hackenmiller was disqualified from receiving benefits even though she intended to go back to Hormel when she left Ye Olde Butcher Shoppe, because she had not actually accepted reemployment with Hormel. The Commissioner's representative denied Hackenmiller's request for another remand, explaining Hackenmiller already received two hearings to explain her position. In another, separate, decision, the Department of Jobs and Training determined *434 the strike at Hormel ended on June 2, 1986, and affected employees were eligible to receive unemployment compensation benefits after that date. ISSUES 1. Did Hackenmiller voluntarily quit her employment without good cause attributable to the Ye Olde Butcher Shoppe? 2. Did Hackenmiller voluntarily discontinue her employment to accept work offering substantially better conditions of work? 3. Did the Commissioner's representative err by refusing to remand for additional testimony? 4. Should Hackenmiller's voluntary quit disqualification be applied to deny her benefits from Hormel? ANALYSIS 1. Voluntary Quit Without Good Cause An individual who voluntarily quits employment without good cause attributable to the employer is disqualified from receiving unemployment compensation benefits. Minn.Stat. § 268.09, subd. 1(1) (1984). The record clearly indicates Hackenmiller voluntarily quit her employment with Ye Olde Butcher Shoppe. In fact, Hackenmiller admitted her separation was voluntary. The record also supports the Commissioner's determination that Hackenmiller's separation was without good cause attributable to Ye Olde Butcher Shoppe. Hackenmiller claimed at the hearings that she quit because she wanted to return to work for Hormel and because the distance between her home and Ye Olde Butcher Shoppe made travel difficult during periods of inclement weather. Hackenmiller's desire to return to work for Hormel cannot be attributed to Ye Olde Butcher Shoppe, nor can her transportation problem. See, e.g., Hill v. Contract Beverages, Inc., 307 Minn. 356, 358-59, 240 N.W.2d 314, 316 (1976) ("In the absence of contract or custom imposing an obligation of transportation upon the employer, transportation is usually considered the problem of the employee. Prior decisions * * * have sustained denial of benefits where employees terminated their work because of their particular needs.") 2. "Better Work" Provision The legislature provides an exception to the voluntary quit disqualification where an individual discontinued employment "to accept work offering substantially better conditions of work or substantially higher wages or both." Minn.Stat. § 268.09, subd. 1(2)(a) (1984). Here, however, although Hackenmiller intended to accept work with Hormel offering substantially higher wages, she did not actually accept such work; therefore, we agree with the Commissioner that the above statutory exception to disqualification is not applicable. As this court stated in McDonnell v. Anytime Temporaries, 349 N.W.2d 339 (Minn.Ct.App.1984), "[t]he mere possibility of obtaining other employment is not sufficient to constitute good cause for voluntarily terminating one's employment." Id. at 341. Similarly, an individual should not be allowed to receive benefits if he voluntarily discontinued his employment with the "mere possibility" of accepting work offering substantially better conditions or substantially higher wages. 3. Remand The Commissioner is accorded broad discretion when determining whether to remand for additional evidence. Zielinski v. Ryan Co., 379 N.W.2d 157, 161 (Minn.Ct. App.1985). Here, the Commissioner's refusal to remand for additional testimony regarding the good cause issue was not erroneous, since Hackenmiller had already been allowed two hearings to present evidence on that issue. 4. Disqualification Hormel was Hackenmiller's primary employer, paying her $9.25 an hour. Hackenmiller only began working for Ye Olde Butcher Shoppe at $5.00 per hour when she was separated from Hormel due to the strike. When the strike and resultant *435 disqualification ended,[1] Hackenmiller might have been entitled to receive benefits along with Hormel's other employees. Throughout its progress, this case has been entitled Bethel Hackenmiller v. Ye Olde Butcher Shoppe. Hormel is not named as a party, nor is there any evidence in the record Hormel appeared as such. Nevertheless, we note the Commissioner's decision apparently disqualifies Hackenmiller entirely from receiving unemployment compensation benefits, even from Hormel, contrary to several previous cases decided by the Minnesota appellate courts. In Berzac v. Marsden Building Maintenance Co., 311 N.W.2d 873 (Minn.1981), claimants for unemployment compensation benefits who had voluntarily terminated part-time jobs and were subsequently laid off from their full-time jobs were held entitled to receive benefits from the full-time employers. The Berzac court stated: In practical effect, the department has concluded that if an individual voluntarily discontinues but one of multiple employment positions, the disqualification of section 258.09, subd. 1(1) precludes the receipt of benefits from any employer, regardless of the circumstances creating the unemployment. It is our view that the legislature could not have intended such an unfortunate result, particularly given the declared legislative intent to provide benefits for those who, through no fault of their own, are unemployed. Instead, a reasonable interpretation of section 268.09, subd. 1(1) would be that the department consider and decide claim petitions, in the unique situations presented here, as they relate to each of the multiple employers. In that manner, the department could determine that, as to one employer, the termination was voluntarily and without good cause attributable to the employer, but as to the other, the employee might well be entitled to receive unemployment compensation benefits. Id. at 875 (citation omitted). This language suggests that here also, Hackenmiller's separation from Ye Olde Butcher Shoppe should be considered independently of her separation from the Hormel Company. The Berzac court noted that the record did not establish whether claims for unemployment benefits were filed by the claimants against their primary full-time employers. The court therefore remanded the matter to the Commissioner to determine the employees' rights to receive benefits from each of their respective multiple employers. Id. In Sticka v. Holiday Village South, 348 N.W.2d 761 (Minn.1984), an employee had been involuntarily terminated from her principal employment as an engineer, and thereafter voluntarily discontinued two part-time jobs without good cause attributable to the part-time employers, to search for further employment as an engineer. The Sticka court stated: When relator's principal employment as a structural engineer was terminated, she became "unemployed." The character of that termination * * * must be determined as of the date of termination. * * * * * * [A]lthough the relator's eligibility for benefits as a result of the termination of her employment as a structural engineer is undisputed, the record before us does not indicate whether or not a claim against that employer, unidentified in these proceedings, has been considered and decided. The matter is, therefore, remanded to the Commissioner for determination of the relator's right to receive benefits based on termination of her principal employment * * *. Id. at 763. Finally, in Kuether v. Personnel Pool of Minnesota, 394 N.W.2d 259 (Minn.Ct.App. 1986), this court held that after an employee had been laid off from permanent full-time *436 work as an appliance repairman, his rejection of temporary unsuitable work should not penalize him from receiving unemployment compensation benefits. The court stated: We believe that to deny Kuether unemployment compensation benefits under the present circumstances would, in effect, penalize him for doing temporary work while seeking full-time, permanent employment. If Kuether had not signed up for temporary work, he would be entitled to receive benefits. As the supreme court has noted, the legislature could not have intended such a counterproductive result. Id. at 261. Here, also, we do not find it reasonable to penalize Hackenmiller for working at the Ye Olde Butcher Shoppe while the strike continued at Hormel. If Hackenmiller had not taken the job with the Ye Olde Butcher Shoppe, she could have renewed her claim for unemployment compensation benefits when the strike at Hormel ended. To deny her that same opportunity because she had accepted and then quit a job with Ye Olde Butcher Shoppe during the period of the strike would be contrary to the Kuether, Berzac, and Sticka rulings. While the findings of the Commissioner are generally accorded deference, in each of the cases discussed above, the court reversed the Commissioner's decision. Here, likewise, we find the Commissioner erred by determining Hackenmiller is automatically disqualified from receiving all unemployment compensation benefits. Nevertheless, we need not remand to the Commissioner for a determination whether Hackenmiller is entitled to receive benefits based upon her employment with Hormel. Our decision in Hormel v. Asper, et al., 415 N.W.2d 706 (Minn.Ct.App.1987) effectively denies benefits to all Hormel employees who participated or were directly interested in the strike. DECISION We affirm the Commissioner's determination that Hackenmiller voluntarily quit her employment with Ye Olde Butcher Shoppe without good cause. We also affirm the Commissioner's refusal to remand for additional evidence on the good cause issue. While the Commissioner erred by failing to address Hackenmiller's entitlement to benefits based on her prior employment with Hormel, our decision in Hormel will operate to deny Hackenmiller those benefits. Affirmed in part and reversed in part. NOTES [*] Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. 6, § 2. [1] During a strike, an employee is not entitled to receive unemployment compensation benefits, but after the strike has ceased, if the employee is not recalled to work, and if he has not otherwise been disqualified from receiving unemployment compensation benefits, he is then entitled to receive those benefits. Ayers v. E.F. Johnson Co., 244 Minn. 375, 380-81, 70 N.W.2d 296, 299 (1955); Minn.Stat. § 268.09, subd. 3 (1984).

THE THIRTEENTH COURT OF APPEALS 13-14-00178-CV Richard Darin Blackwell and Jennifer Lopez Blackwell Individually and as Next Friends of Adalyn Grace Blackwell, A Minor Child v. Michael Carrillo On Appeal from the County Court at Law No 2 of Nueces County, Texas Trial Cause No. 2011-CCV-60658-2 JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes the appeal should be dismissed. The Court orders the appeal DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against appellant. We further order this decision certified below for observance. July 24, 2014 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT DECEMBER 23, 2009 No. 08-16724 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 07-00063-CR-3-RWS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANIEL PUFFENBERGER, ARTHUR HARGRAVES, Defendants-Appellants. ________________________ Appeals from the United States District Court for the Northern District of Georgia _________________________ (December 23, 2009) Before TJOFLAT, BARKETT and WILSON, Circuit Judges. PER CURIAM: Daniel Puffenberger appeals his convictions, and Arthur Hargraves appeals his convictions and sentence, following a trial in which a jury convicted each on five counts of healthcare fraud, in violation of 18 U.S.C. § 1347. The alleged fraud involved Puffenberger and Hargraves deceptively billing a procedure known as “VAX-D,” which involved technicians, not medical doctors, strapping patients onto a table that would separate in the middle and return for approximately 20 minutes. Puffenberger and Hargraves billed this non-invasive mechanical procedure under an open surgical procedure code because insurance companies reimbursed for the surgical treatment code but not for “VAX-D” therapy. We address each Appellant’s claims in turn. I. On appeal, Puffenberger argues that the district court abused its discretion by failing to grant a severance. Puffenberger reasons that evidence admitted about Hargraves’s prior acts would not have been admissible against him in a separate trial and was used here only to show his guilt by association. We review the denial of a motion for severance for abuse of discretion. United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007). “It is well settled that defendants who are indicted together are usually tried together.” Id. “In considering a motion to sever, the district court must determine whether the prejudice inherent in a joint trial outweighs the public’s interest in judicial 2 economy.” United States v. Francis, 131 F.3d 1452, 1459 (11th Cir. 1997). “[T]o show such an abuse, [the appellant] must discharge the heavy burden of demonstrating compelling prejudice from the joinder.” Browne, 505 F.3d at 1268 (internal quotations omitted). “A defendant must first demonstrate that the joint trial resulted in prejudice to him; and second, must show that severance is the proper remedy for that prejudice.” Id. “Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.” Zafiro v. United States, 506 U.S. 534, 538-39, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). We have considered the record and the briefs of the parties and find no reversible error with reference to this claim. Because (1) Puffenberger failed to show that his joint trial resulted in any prejudice to him, (2) the government presented ample evidence of his guilt, and (3) the district court minimized any possible prejudice by instructing the jury to consider the evidence against each defendant separately, we affirm the district court’s denial of Puffenberger’s motion for severance. II. Hargraves first argues that insufficient evidence establishes that he acted with the necessary intent to defraud Blue Cross Blue Shield of Georgia by using an 3 improper code for the procedures performed in his clinic. Specifically, Hargraves argues that the government failed to prove that he “knowingly and willfully” billed the wrong codes. We review the sufficiency of the evidence presented at trial de novo and considers the evidence “in the light most favorable to the government, with all inferences and credibility choices drawn in the government’s favor.” United States v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilty, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990). To support a conviction for substantive health care fraud under 18 U.S.C. § 1347, the government must prove that the defendant (1) knowingly and willfully executed, or attempted to execute, a scheme or artifice to (2) defraud a health care program or to obtain by false or fraudulent pretenses any money or property under the custody or control of a health care benefit program, (3) in connection with the delivery of or payment for health care benefits, items, or services. 18 U.S.C. § 1347. Intent may be established through circumstantial evidence, so long as there is enough evidence from which a jury could reasonably infer that the 4 defendant acted with the specific intent to defraud. See United States v. Lopez- Ramirez, 68 F.3d 438, 440 (11th Cir. 1995). After reviewing the record and drawing all inferences in the light most favorable to the government, the evidence against Hargraves – even that which was circumstantial – was sufficient to support his convictions. The government presented ample evidence from former employees, as well as Hargraves’s former partner, Howard Berkowitz, that described both (1) how Hargraves deliberately used the wrong billing code and (2) how Hargraves sought to conceal this fact from Blue Cross Blue Shield. A reasonable jury, which had the opportunity to assess witness credibility and consider the evidence in context, could have found that this evidence proved beyond a reasonable doubt that Hargraves knew of this fraudulent scheme and intentionally furthered it. See Lopez-Ramirez, 68 F.3d at 440. Sufficient evidence supports Hargraves’s conviction. III. Hargraves also argues that the district court abused its discretion by imposing a sentence greater than necessary to achieve the § 3553(a) goals. Specifically, Hargraves contends that his sentence is substantively unreasonable because the district court relied too heavily on general deterrence. An appellate court reviews a sentence for unreasonableness under a 5 “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. ___,128 S.Ct. 586, 591, 169 L.Ed.2d. 445 (2007). A sentence is substantively unreasonable “if it does not achieve the purposes of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Pursuant to § 3553(a), the sentencing court shall impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection,” namely to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, protect the public from future crimes of the defendant, and provide the defendant with needed educational or vocational training or medical care. See 18 U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors in determining a particular sentence: the nature and circumstances of the offense and the history and characteristics of the defendant, the kinds of sentences available, the sentencing guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwanted sentencing disparities, and the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7). 6 “The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court, and we will not substitute our judgment in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotations and alterations omitted). In terms of the sentencing range, we have held that “when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. We find no reversible error in the low-end Guideline sentence imposed. Procedurally, the district court properly considered the § 3553(a) factors, the parties’ arguments, and the record. We find no reversible error in the consideration of the difficulties of law enforcement against healthcare fraud which requires honest reporting from medical providers. The district court did not act outside of its discretion in considering, although not exclusively, general deterrence. See Amedeo, 487 F.3d at 832. AFFIRMED. 7 

699 F.Supp. 185 (1988) L.A. PIPELINE CONSTRUCTION COMPANY, an Ohio Corporation, Plaintiff, v. TEXAS EASTERN PRODUCTS PIPELINE COMPANY, A DIVISION OF TEXAS EASTERN TRANSMISSION CORPORATION, a Delaware corporation, doing business in Indiana; and Texas Eastern Transmission Corporation, a Delaware corporation, authorized to do and doing business in Indiana, Defendants. Cause No. IP 88-323-C. United States District Court, S.D. Indiana, Indianapolis Division. September 28, 1988. Donald J. Graham, Bingham Summers Welsh & Spilman, Indianapolis, Ind., David W. Johnson, Lewis Ciccarello & Friedberg, Charleston, W.Va., for plaintiff. Robert S. Hulett, Philip B. McKiernan, Hackman McClarnon & McTurnan, Indianapolis, Ind., for defendants. ENTRY McKINNEY, District Judge. This cause came before the Court on the defendants' Motion to Dismiss or in the Alternative to Transfer Pursuant to Rule 12(b)(3) and 28 United States Code Section 1406(a). For the reasons stated below, defendants' Motion is GRANTED with specific instructions at the conclusion of this Entry. FACTS The defendants' Motion arose in the course of a diversity suit involving a construction *186 contract. Plaintiff L.A. Pipeline Construction Company ("L.A. Pipeline") is an Ohio corporation with its principal place of business in Belpre, Ohio. Its sole shareholder serves as president and supervises a permanent staff of six employees. Defendants Texas Eastern Transmission Corporation and Texas Eastern Products Pipeline Company operate a pipeline system through ten States[1]. (The Court will refer to defendants collectively as "Texas Eastern.") Texas Eastern is incorporated in Delaware with its principal place of business in Houston, Texas. L.A. Pipeline and Texas Eastern entered into an agreement whereby L.A. Pipeline was to remove a section of Texas Eastern's underground pipeline in the vicinity of the Indianapolis International Airport and install a new section nearby. The process which preceded the parties' agreement was one of competitive bidding, during which Texas Eastern furnished L.A. Pipeline with bid documents containing specifications, drawings and other provisions. One of these provisions was a forum-selection clause, the subject of the Motion now before the Court. Before accepting proposals, Texas Eastern conducted a pre-bid meeting which L.A. Pipeline attended. Subsequent to the meeting, L.A. Pipeline submitted a proposal and Texas Eastern awarded it the job. During the course of the project, the parties fell into dispute. L.A. Pipeline claims that Texas Eastern supplied pipe that was unsuitable for the project; Texas Eastern claims that L.A. Pipeline's placement of the pipe deviated from the contract requirements. Texas Eastern declared L.A. Pipeline in default, terminated the contract and hired another contractor to complete the work. L.A. Pipeline maintains that the termination was wrongful and is suing for compensation for the work performed. Texas Eastern moved to dismiss or transfer the suit. L.A. Pipeline resists the motion. The forum-selection clause in question appears on page 9 of a section of the Contract Documents entitled "General Conditions": 1.15.2 Any and all actions requiring interpretation or enforcement of the Contract Documents or otherwise concerning the subject matter of the Contract Documents shall for the convenience of Company be heard in state or federal courts with subject matter jurisdiction sitting in Harris County, Texas, and the parties hereby submit to the personal jurisdiction and venue of such courts for such purposes. Another relevant section of the Contract Documents is as follows: 1.15 GOVERNING LAW 1.15.1 Contractor and Company expressly acknowledge and confirm that the Contract has been negotiated in part in the State of Texas, that it has been presented by Contractor as a proposal to Company in Houston, Texas, and that the laws of the State of Texas and of the United States of America when applicable shall govern and control the construction, interpretation and enforcement of the Contract Documents, excluding any conflict of law rule which would refer any matter to the laws of a jurisdiction other than the State of Texas. General Conditions at 8-9. DISCUSSION Texas Law In resisting enforcement of the forum-selection clause, plaintiff L.A. Pipeline first asserts that the clause is invalid under Texas law. This argument is incorrect in light of the recently decided Stewart Organization, Inc. v. Ricoh Corporation, ___ U.S. ___, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). In Stewart, the Supreme Court held that federal law, specifically 28 United States Code Section 1404(a), governs a district court's decision of whether to give effect to the parties' forum-selection clause. Id. ___ U.S. at ___, 108 S.Ct. at 2245-46. Although the defendants in the present case have moved for dismissal or *187 transfer under 28 U.S.C. § 1406(a), this Court believes that federal law is supreme here as well. Texas law, no matter how interpreted, cannot therefore control the issue of whether this action is dismissed or transferred. Plaintiff next contends that even if controlling, federal law renders the forum-selection clause unenforceable. The clause is invalid, says the plaintiff, for several reasons: the parties did not negotiate it, the clause is "nothing more than boilerplate language inserted in a form contract by the defendants", and the defendants possessed "overweening bargaining power as compared to the plaintiff". Memorandum of L.A. Pipeline Construction Company in Opposition to Defendants' Motion to Dismiss, or in the Alternative, to Transfer (hereinafter referred to as Memorandum of L.A. Pipeline) at 11. Plaintiff, however, fails to convince the Court of these contentions. The leading case in this area is M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). This was an admiralty case involving an international agreement with a forum-selection clause that provided for the resolution of any dispute before the London Court of Justice. In this context the Supreme Court said that forum-selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances". Id. at 10, 92 S.Ct. at 1913 (footnote omitted). "There are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power ... should be given full effect." Id. at 12-13, 92 S.Ct. at 1914-15 (footnote omitted). In addition to suggesting that fraud, undue influence and overweening bargaining power could negate a forum-selection clause, the Court said that "[a] contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision". Id. at 15, 92 S.Ct. at 1916. The Court also noted that a specified forum may be unreasonable and unenforceable if it is seriously inconvenient for trial. Id. at 16, 92 S.Ct. at 1916. But "[i]n such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain". Id. at 18, 92 S.Ct. at 1917. Plaintiff L.A. Pipeline has failed to allege facts to this Court's satisfaction that would render the forum-selection clause unenforceable. The only case plaintiff cites from a court within the Seventh Circuit is Cutter v. Scott & Fetzer Company, 510 F.Supp. 905 (E.D.Wis.1981), in which, not surprisingly, the district court invalidated a forum-selection clause. Cutter, who was a distributor of the defendant's products, had originally sued in Wisconsin state court; the defendant subsequently removed the case to federal court. The court found that the parties had not bargained over the terms of the forum-selection clause, which, the court said, was "contained within the six pages of single-spaced boilerplate language". Id. at 908. Further, the court found a disparity of bargaining power between the two parties. This Court believes, however, that a significant feature of Cutter is that the plaintiff sued under the Wisconsin Fair Dealership Law, which was intended "to promote the compelling interest of the public in fair business relations between dealers and grantors, and in the continuation of dealerships on a fair basis". Id. (quoting Wis.Stat. § 135.025(2)(a)). The Cutter court said, "It is likely that a court in this district [in Wisconsin] is better prepared to consider a case under the Fair Dealership Law than is a court in Ohio". Cutter, 510 F.Supp. at 908. Nonetheless, the court noted that it would not presume to hold that a clause of this type would never be upheld when contained in a contract of this nature, nor even that a claim based on the Fair Dealership Law could only be litigated in a Wisconsin court. Id. at 909. After considering all of *188 the circumstances, however, the court found that the better course would be to refuse to apply the forum-selection clause in the Cutter contract. Id. In contrast to the district court in Wisconsin, a consideration of all the circumstances led the District Court for the Northern District of Illinois to enforce a forum-selection clause in Friedman v. World Transportation, Inc., 636 F.Supp. 685 (N.D.Ill.1986). The Friedman decision recognized that "[w]hile The Bremen was an admiralty case, set in an international context, its teachings are not limited to such cases". Id. at 689. "Lower federal courts have consistently applied The Bremen analysis to cases involving only domestic parties and causes of action other than admiralty." Id. In Friedman, the court gave little credibility to the plaintiff's contention that the contract was the product of "overweening bargaining power". Id. at 690. The plaintiff was a sophisticated investor to which the Bremen exceptions did not apply. "While the court should be wary of enforcing `boilerplate' language...., this factor carries little weight where the party is sophisticated and can deal at arm's length and where the other Bremen factors do not apply." Id. at 690. Friedman did not carry his heavy burden to show that enforcement of the forum-selection clause would for all practical purposes deprive him of his day in court. In Clinton v. Janger, 583 F.Supp. 284 (N.D.Ill.1984), the court found at least one, if not all, of various forum-selection clauses to be reasonable and dismissed the case without prejudice. The court discussed the considerations applicable in determining whether a contractual clause is reasonable: "(1) which law governs the formation and construction of the contract; (2) the residency of the parties involved; (3) the place of execution and/or performance of the contract; and (4) the location of the parties and witnesses participating in the litigation." Id. at 289. The court considered these factors in addition to those from the Bremen case such as "the inconvenience to the parties of any particular location; and whether the clause was equally bargained for." Id. In the case at bar, L.A. Pipeline raises the spectre of unreasonableness by pointing to the comparative size of itself and of Texas Eastern. A disparity in size, however, does not automatically mean that Texas Eastern secured the plaintiff's bid in an improper fashion, nor does it mean that defendants' bargaining power was necessarily overweening. From the information before the Court, the bid process appears typical. L.A. Pipeline does not allege that Texas Eastern forced it to enter into the contract. Plaintiff received all of the information pertaining to the project in advance of submitting a bid. It apparently had both the time and the opportunity to question the provisions. Plaintiff's failure to question is not to be held against defendants. Defendants had no duty to anticipate every question a potential bidder might have. Plaintiff maintains that "the Defendants were in a position where they could supply `take it or leave it' language which the Plaintiff would either have to accept, or forego the contract". Memorandum of L.A. Pipeline at 17. Plaintiff has not demonstrated, however, that it was unable to secure other contracts or that it was anything other than a typical contractor with the same knowledge and sophistication of bidding procedures as other contractors. Plaintiff's surprise in discovering the forum-selection clause, though regrettable, is not the fault of Texas Eastern. The language of the clause is not the legalese of typical boilerplate and is readily understandable. Although the clause was not in bold type, it was not disguised or buried in fine print; it appeared, double-spaced, as did the other provisions of the "General Conditions" section. That section contained paragraphs that defined terms, specified the laws and regulations to be observed, and set forth policy and procedure on a number of matters. The fact that plaintiff was "completely unaware", Memorandum of L.A. Pipeline at 16, of the forum-selection clause can only be ascribed to plaintiff's own neglect in reading the documents. *189 The "General Conditions" contained several important sections which any contractor bidding on the project should have studied carefully. Apparently, the plaintiff failed to do so. Plaintiff states further that it is a small corporation "which in recent years has experienced serious financial set backs, which has placed it in the position where it is attempting to literally survive. It is clear that in such a situation, the Plaintiff would not be in a position to run the risk of losing a contract in the hundreds of thousands of dollars simply to dispute contractual provisions which would hopefully never have to be used. In this case, the Plaintiff was unaware that the contractual provision even existed". Memorandum of L.A. Pipeline at 19. This statement reveals more about plaintiff's past judgment and hasty procedures than it does about defendants' purported overweening bargaining power. After receiving the documents and submitting its bid, L.A. Pipeline reaped the benefit of securing the project, something it freely pursued, yet now that the parties are at odds, plaintiff refuses to acknowledge that, as in most contracts, it made some concessions to its detriment. The plaintiff may have acted in haste, but "[i]n the absence of fraud or duress, a person who signs a contract cannot avoid his obligations under it by showing that he did not read what he signed". Comprehensive Accounting Corporation v. Rudell, 760 F.2d 138, 140 (7th Cir.1985). L.A. Pipeline offers no evidence of fraud or duress. Plaintiff must take responsibility for its own lack of negotiation. Plaintiff's allegations of disparity in size and overweening bargaining power fail to persuade the Court that the forum-selection clause should be disregarded. Plaintiff next contends that "the forum-selection clause is unreasonable and unenforceable in that the transactions occurred in the State of Indiana and virtually all of plaintiff's witnesses are much closer to the State of Indiana". Memorandum of L.A. Pipeline at 20. The construction may have occurred in Indiana, but defendants state that the work at the site performed by the plaintiff has been redone by another contractor and the ground has been restored to its original condition. Affidavit of Michael C. Stall at 3, para. 4. The majority of plaintiff's witnesses may be closer to Indiana, but such is not the case with respect to the majority of Texas Easterns' witnesses, most of whom are in Texas. Moreover, plaintiff has shown through its inclusion of the Sworn Statement of Mr. Jim Hewitt, attached as Exhibit C to the Memorandum of L.A. Pipeline, that in addition to Texas Eastern's own employees, at least two people with first-hand knowledge of the facts reside in Texas. These include Hewitt, a welding inspector and resident of Juaquin, Texas, and Mark Laney, a contractor with Laney, Incorporated, from Tomball, Texas. According to the Bremen case, a party seeking to escape his contract has the burden of showing that: "trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court". 407 U.S. at 18, 92 S.Ct. at 1917. Plaintiff has failed to convince the Court of such a degree of inconvenience. Moreover, other factors weigh in favor of a transfer to Texas. The Contract Documents state that Texas law governs the contract. General Conditions at 8-9. In this instance, the Court agrees with the District Court of the Northern District of Illinois, which said that "justice requires that, whenever possible, a diversity case should be decided by the court most familiar with the applicable state law". Heller Financial, Inc. v. Shop-A-Lot, Inc., 680 F.Supp. 292, 296 (N.D.Ill.1988). In addition, the Court does not find a strong public policy in favor of deciding this case in Indiana as opposed to Texas. Unlike the Cutter case in which a Wisconsin statute played a prominent role, the present case is a typical contractual dispute, capable of resolution in a Texas district court. Id. at 296. Nor does the Court believe the enforcement of the forum-selection clause will serve to deprive plaintiff of its day in court. Plaintiff has not demonstrated that the conduct of these proceedings in Texas will result in a level of inconvenience that would argue against a transfer. *190 Plaintiff's last contention is that "the forum-selection clause is ambiguous, and as such, it must be construed against the drafter and may not be applied in a mandatory fashion". Memorandum of L.A. Pipeline at 23. This contention is meritless. Plaintiff attempts to torture the plain meaning of the clause. The presence of the language "[a]ny and all actions ... shall ... be heard ... in Harris County, Texas" makes Texas, at the election of the defendants, not a permissive, but the exclusive forum state for this dispute. Cf. Walter E. Heller & Co. v. James Godbe Co., 601 F.Supp. 319 (N.D.Ill.1984). The Court discerns no ambiguity in the clause and rejects plaintiff's attempts to obfuscate the language of the provision. CONCLUSION The Court finds that transfer of this action to the District Court for the Southern District of Texas is proper. Nevertheless, the choice between the alternatives of dismissal or transfer under 28 U.S.C. § 1406(a) is best made by the plaintiff who, for tactical reasons or to facilitate an immediate appeal of this ruling, may prefer dismissal. Therefore, the Court GRANTS defendants' Motion and ORDERS that this action be DISMISSED without prejudice unless the plaintiff, within 10 days from the date of this Entry, files in the Clerk's Office a Notice of Assent to Transfer. Upon the timely filing of such Notice, this action shall instead be TRANSFERRED to the District Court for the Southern District of Texas. NOTES [1] Defendants' system runs through Arkansas, Illinois, Indiana, Kentucky, Louisiana, Missouri, New York, Ohio, Pennsylvania and Texas. Affidavit of Donald L. Kincaid at 2, para. 2.

FILED NOT FOR PUBLICATION OCT 19 2015 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-10459 Plaintiff - Appellee, D.C. No. 4:11-cr-01998-CKJ v. MEMORANDUM* JUAN ELISEA-GONZALEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted October 14, 2015** Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges. Juan Elisea-Gonzalez appeals from the district court’s judgment and challenges the 68-month sentence imposed on remand for resentencing. Pursuant to Anders v. California, 386 U.S. 738 (1967), Elisea-Gonzalez’s counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw * 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). as counsel of record. We have provided Elisea-Gonzalez the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable grounds for relief on direct appeal. Counsel’s motion to withdraw is GRANTED. AFFIRMED. 2 14-10459 

482 So.2d 970 (1986) Mary DAVIS, Plaintiff-Appellee, v. OILFIELD SCRAP & EQUIPMENT COMPANY, et al., Defendants, Mentor Insurance Limited, Defendant-Appellant. No. 84-1000. Court of Appeal of Louisiana, Third Circuit. February 5, 1986. *971 Michael J. Murphy of Lord, Day & Lord, New York City, for defendant-appellant. Antoon & Dalrymple, Joseph T. Dalrymple, Alexandria, for plaintiff-appellee. Before DOMENGEAUX, LABORDE and KING, JJ. DOMENGEAUX, Judge. Summary judgment was rendered in this worker's compensation case in favor of the plaintiff, Mary Davis. The defending insurance company, Mentor Insurance Limited, has appealed and specifies five assignments of error. The appellant alleges error in the overruling of the peremptory exceptions of prescription and no cause of action, the summary disposition of the case, the imposition of penalties and attorney's fees for arbitrary and capricious nonpayment of benefits, and the award of $1,000.00 as an expert witness fee to Doctor Wilbur. FACTS Prior to the events giving rise to this case Mary Davis had been diagnosed as having a multiple personality disorder. This condition caused Mrs. Davis to seek the psychiatric care of Dr. W.S. Easterling in May of 1981. Although Mrs. Davis' condition necessitated treatment, her different personalities cooperated to assist her in coping with her environment. Specifically, prior to February 25, 1982, Mrs. Davis was able to maintain a full time job at Oilfield Scrap & Equipment Company as the personal secretary to George Rothschild, the owner of the company. On February 25, 1982, George Rothschild committed suicide by shooting himself in *972 the chest with a large caliber pistol. Mrs. Davis, who was working in the office adjacent to Mr. Rothschild's, heard the shot and immediately ran to her supervisor's aid. During the twenty minutes it took Mr. Rothschild to expire, Mrs. Davis was burdened with the task of contacting the emergency services and administering first aid to the fatally wounded man, in addition to coping with the psychological stress of the situation. Upon reaching the death scene, Sgt. Urena of the Alexandria Police Department was confronted with an alternatingly sedate and hysterical witness—Mrs. Davis. At the insistence of the decedent's widow and new owner of the company, and against the advice of Doctor Easterling, Mrs. Davis continued her employment with Oilfield Scrap & Equipment Company. However, Mrs. Davis began experiencing increasing difficulty with depression, emotional instability, and dissociative episodes. Finally, yielding to the advice of her physician who had noticed suicidal tendencies developing in his patient, Mrs. Davis terminated her employment on June 25, 1982, and admitted herself to the Psychiatric Inpatient Service of the University of Kentucky Medical Center on June 30, 1982. Mrs. Davis remained hospitalized under the care of Dr. Cornelia Wilbur, a psychiatrist, until January 28, 1983. Thereafter, Mrs. Davis moved to a nearby Lexington apartment to continue treatment. On May 12, 1983, Mary Davis filed a suit against Oilfield Scrap & Equipment Company in worker's compensation and tort and against Mentor Insurance Limited as the worker's compensation insurer of the employer. The two causes of action was severed by mutual agreement between the parties. The plaintiff moved for summary judgment in her favor on the worker's compensation claim. The trial judge granted the motion based on the pleadings, the defendant's answers to interrogatories, and the plaintiff's deposition and affidavits. The defendant declined to present the court with opposing affidavits. PRESCRIPTION The appellant alleges that the trial court erred in not hearing and granting the defendant's peremptory exception of prescription. Since the granting of the summary judgment had the effect of overruling the exceptions of prescription and no cause of action, we must determine whether, as the appellant claims, the ruling was erroneous. Roddy v. NORCO Local 4-750 Oil, Chemical & Atomic Workers International Union, 332 So.2d 576 (La.App. 4th Cir.1976), on appeal after remand, 351 So.2d 219 (La. App. 4th Cir.1977), reversed on other grounds, 359 So.2d 957 (La.1978). In February of 1982, when this cause of action arose, La.R.S. 23:1209 provided in pertinent part: "In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter.... Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident." This statute creates a peremptive time period within which proceedings for voluntary settlement or judicial enforcement of claims must commence. Johnson v. Morton Salt Company, 377 So.2d 549 (La.App. 3rd Cir.1979). In this case the accident (Rothschild's death) occurred on February 25, 1982, Mary Davis quit work on June 25, 1982, and her suit for compensation benefits was filed on May 12, 1983. Since the suit was obviously not filed within one year of the date of the accident, but was filed within two years thereof, the issue becomes whether this case presents the proper *973 situation for application of the rule allowing the peremptive period to begin running from the time the injury developed. In Burleigh v. Argonaut Insurance Company, 347 So.2d 13 (La.App. 3rd Cir. 1977), writ denied, 349 So.2d 1267 (La. 1977), this Court stated: "[W]here there is an initial manifestation of injury and of disability, but the employee is able to return to work, a new period of prescription of one year will nevertheless commence where there is either a new injury or a disabling remanifestation of the symptoms of the initial injury." Here, Sgt. Urena's affidavit before the court on the motion for summary judgment clearly shows an initial manifestation of psychological injury. Mary Davis did return to her employment for several months, only to discover in June of 1982 that the accidental injury had indeed manifested itself to the point of total disability. The appellee's disability fully developed and manifested itself between the time of the accident and when Mrs. Davis quit her job. The appellant claims that a serious factual question exists as to when the disability actually became manifest to determine when the peremptive period began to run. Inasmuch as the appellant failed to present the court with affidavits demonstrating that the disability became manifest before the time Mrs. Davis terminated her employment, the peremptive period began to run on that date—June 25, 1982.[1] Since the appellee's worker's compensation claim was filed within two years of the accident and within one year from the time she terminated her employment, the cause of action had not perempted. This assignment of error is without merit. NO CAUSE OF ACTION It is the appellant's contention that the trial court erred in not hearing and granting the defendant's peremptory exception of no cause of action. Specifically, the appellant argues that Mrs. Davis did not suffer an "injury" as defined by the Worker's Compensation Act; therefore, it is alleged that she has no cause to bring to court. In Jordan v. Southern Natural Gas Company, 455 So.2d 1217 (La.App. 2nd Cir.1984), the Second Circuit concluded that a worker is entitled to compensation benefits only if (1) a physical injury on the job leads to disabling mental problems, or (2) emotional or mental stress on the job leads to a physical injury to the structure of the body. The appellee herein alleges a cause of action under No. 2 above, claiming her injury resulted from the emotional stress of her employer's suicide and manifested itself in clinically observable changes in her electroencephalograms (EEGS) and chemical metabolism. We find that the appellee has carried her burden of proving an "injury" compensable under the Worker's Compensation Act. Although this is a new and untested area of the law, Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972), on remand 274 So.2d 783 (La.App. 3rd Cir.1973) set the stage for an award of compensation benefits to a claimant who could prove injury from on-the-job stress. There, a claimant who suffered a stroke due to emotional stress was awarded compensation. Deciding that the worker had suffered an "injury" as defined by the Act, the court said: "[a]lthough [the claimant] received no blow or trauma, and although he was not injured because of physical stress or strain, the medical testimony is clear that he suffered `violence to the physical structure of the body'...." *974 Eleven years later in Taquino v. Sears, Roebuck & Company, 438 So.2d 625 (La. App. 4th Cir.1983), writ denied, 443 So.2d 597 (La.1983), the Fourth Circuit upheld a compensation award to a worker who suffered a nervous breakdown caused by emotional stress. Inasmuch as Taquino ignored the Ferguson requirement of proving "violence to the physical structure of the body", we are more inclined to cite the recent Fifth Circuit case of Guillot v. Sentry Insurance Company, 472 So.2d 197 (La.App. 5th Cir.1985). The facts of Guillot are substantially similar to the case before us. In Guillot, the claimant had suffered mental disorders prior to his accident. However, after being suddenly fired without explanation, the claimant's condition worsened to a point of partial occupational disability. The Fifth Circuit found an injury by violence to the physical structure of the body in the psychiatrist's testimony that the stress caused by the accident "precipitate[d] physiological changes in brain cells along with biochemical changes that could be measured clinically." We find roughly the same set of facts before us. The appellee was functioning well with a multiple personality disorder prior to her accident. After Mr. Rothschild's suicide, Mrs. Davis' condition worsened to a point of total disability. According to the appellee's psychiatrist, this disability can be clinically measured with EEGS and chemical analysis, documenting the extent of the claimant's injury. In the absence of conflicting medical opinion, we find an "injury" has been proven.[2] The assignment alleging error in the overruling of the exception of no cause of action is without merit. SUMMARY JUDGMENT Appellant's third assignment alleges the trial court erred in granting the motion for summary judgment because genuine issues of material fact exist concerning the appellee's right to recover and, alternatively, the extent of her need. A summary judgment will only be granted if "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 material fact, and that mover is entitled to judgment as a matter of law." La.C.C.P. Art. 966. On review, an appellate court's duty is to determine whether the supporting documents presented to the trial court were sufficient to resolve all material factual issues. If so, we must then consider whether any evidence presented by the opposing party tended to show that material facts were still at issue. However, an opposing party seeking to rebut sufficient evidence favoring the motion may not rest merely on allegations and denials contained in his pleadings. Chargois v. Trip-L-Quik, 441 So.2d 45 (La.App. 3rd Cir.1983). The appellee herein has proven a prima facie case to the satisfaction of both this Court and the trial court. She has proven an accident occurring within the course and scope of her employment causing an injury which has resulted in her total disability. Although it failed to present the lower court with opposing evidence, the appellant in brief set forth the issues it considers as yet unsettled. The assignments considered above (peremption and whether the claimant suffered an "injury") have been disposed of. The appellant also raises the issues of causation, whether the accident occurred within the *975 course and scope of the claimant's occupation, and the extent of medical treatment necessary. However, as the appellant merely rested on the denials and allegations in its pleadings and presented no evidence to rebut the positive deposition and affidavits of the appellee, we believe the district court was correct in ruling no genuine issue of material fact remained in dispute. The summary judgment is affirmed. PENALTIES AND ATTORNEY'S FEES Appellant's fourth assignment alleges the trial court erred in awarding penalties and attorney's fees to the appellee. At the time of the accident, La.R.S. 23:1201.2 had not yet been amended to provide that penalties and attorney fees could be assessed against a nonpaying worker's compensation insurer. As a result, the jurisprudence had begun applying the virtually identical provisions of La.R.S. 22:658 to penalize an insurer for arbitrary or capricious nonpayment of benefits. De Jean v. B.F. Trappey's Sons, Inc., 285 So.2d 297 (La.App. 3rd Cir.1973). Both statutes require the petitioner to prove lack of probable cause for the nonpayment, or arbitrary or capricious refusal to pay. In this case, we cannot say the nonpayment of benefits was arbitrary or capricious. The question of whether Mrs. Davis suffered a compensable injury is, alone, a basis for "probable cause". This case represents a heretofore unacceptable example of a compensable "injury". Since neither this Court nor our Supreme Court has previously awarded compensation benefits to a claimant suffering physical injury caused by purely emotional stress, we cannot say that the appellant's refusal to pay benefits was without probable cause.[3] For these reasons, the trial court's award of penalties and attorney's fees to the appellee must be reversed. EXPERT WITNESS FEE Finally, the appellant complains that the trial court erred in awarding an expert witness fee to Doctor Wilbur, and also erred in awarding a fee in the amount of $1,000.00. First, the appellant correctly states that according to Town of Krotz Springs v. Weinstein, 401 So.2d 664 (La. App. 3rd Cir.1981), expert witnesses are entitled only to reasonable compensation for their appearance in court and for preparatory work done. The appellant argues that since there was no trial in this matter, no expert fee is recoverable for the preparatory work furnished by Doctor Wilbur. This is incorrect. See the Louisiana Supreme Court case of Johnson v. State Farm Mutual Automobile Insurance Company, 342 So.2d 664 (La.1977), where a doctor was awarded an expert witness fee for his time in testifying at a pretrial deposition which was presented to the court in lieu of his in-court testimony. Second, the appellant contends that even if an expert fee is due, $1,000.00 was an excessive award for the preparation of a single affidavit "which we all know was actually prepared by plaintiff's counsel." For whatever reason, Doctor Wilbur's involvement in this case has been grossly understated by the appellant. Doctor Wilbur prepared an affidavit and testified at a deposition. To give the deposition, Doctor Wilbur was required to fly from Lexington, Kentucky, to Alexandria, Louisiana, at a cost of $488.00 round trip. Further, Doctor Wilbur left Lexington at 7:40 A.M. and arrived back home again no earlier than 4:30 P.M., virtually occupying her whole day. Finally, we note that the deposition took close to three hours to complete and ultimately consisted of 110 pages. Under these circumstances we cannot say that the trial judge abused his discretion in awarding $1,000.00 as the expert witness fee for *976 Doctor Wilbur. Therefore, the appellant's fifth assignment of error is without merit. For the above and foregoing reasons, the trial court's summary judgment in favor of the appellee and the award of a $1,000.00 expert witness fee are affirmed. The portion of the district court's judgment awarding the appellee penalties and attorney's fees for the arbitrary and capricious nonpayment of benefits is reversed. Costs on appeal are assessed four-fifths to appellant and one-fifth to appellee. AFFIRMED IN PART, REVERSED IN PART, AND RENDERED. NOTES [1] See Swearingen v. Air Products & Chemical, Inc., 481 So.2d 122 (La.1986), wherein our Supreme Court elucidates upon the subject of peremption under La.R.S. 23:1209. The Court states that although an injury may manifest itself at some time other than the date the plaintiff terminates his employment, the manifestation of injury "will often coincide with the date on which he ceases employment." [2] The appellant cites several cases in an effort to demonstrate a lack of jurisprudential foundation for the appellee's recovery. However, each of these cases is distinguishable. For instance, in Johnson v. Hartford Accident & Indemnity Company, 196 So.2d 635 (La.App. 3rd Cir.1967), the Court could find no "single physical incident or trauma which precipitated the condition...." In this case the precipitating event is clearly discernable. Stuckey v. Home Insurance Company, 433 So.2d 776 (La.App. 3rd Cir.1983), writ denied, 435 So.2d 450 (La.1983), is similarly distinguishable. Also, the Second Circuit could find no physical injury to the structure of the body in Jordan v. Southern Gas Company, supra. [3] For a case with similar reasoning, see Schouest v. J. Ray McDermott & Company, Inc., 411 So.2d 1042 (La.1982). There, an award of penalties and attorney's fees was reversed where the failure to pay was predicated upon an untested amendment to the worker's compensation laws and prior jurisprudence indicating the propriety of nonpayment. This case presented the appellant with similar reasons for nonpayment and, as in Schouest, we believe penalties and attorney's fees are inappropriate.

135 Ill. App.3d 517 (1985) 481 N.E.2d 1058 BESSIE McCOTTRELL et al., Co-Administrators of the Estate of Jessie McCottrell, Deceased, Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees. No. 84-2149. Illinois Appellate Court — First District (1st Division). Opinion filed July 29, 1985. *518 Lane & Munday, of Chicago (Fred Lane, Thomas J. Nathan, and Carla Lombardo, of counsel), for appellants. James D. Montgomery, Corporation Counsel, of Chicago (Philip L. Bronstein and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellees. Reversed and remanded. JUSTICE O'CONNOR delivered the opinion of the court: This appeal involves the question of whether the city of Chicago, a municipal corporation, can be held liable for the wilful and wanton acts of its employees committed within the scope of their employment when the individual employees were not named defendants in plaintiffs' cause of action. We find that it can be, and reverse the order of the trial court dismissing plaintiffs' cause. Plaintiffs, Bessie and Juanita McCottrell, co-administrators of the estate of Jessie McCottrell, deceased, filed the instant lawsuit against the city of Chicago in January 1983. In count III of their complaint, plaintiffs alleged that the wilful and wanton tortious conduct of certain city of Chicago paramedic employees proximately caused the death of Jessie McCottrell. While the specific paramedics were identified in plaintiffs' amended complaint, they were never named as party defendants. The trial court accepted defendants' argument that article II of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1983, ch. 85, par. 1-101 et seq.) dictated the dismissal of plaintiffs' complaint because no individual employee was named a defendant in the suit. That section states: "A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." Ill. Rev. Stat. 1983, ch. 85, par. 2-109. Plaintiffs themselves concede that, under the theory of respondeat *519 superior, defendants' employees must be guilty of wilful and wanton misconduct committed in the course of their employment before defendant itself can be held, because the city, being a corporate entity, can only act through its employees or agents. Plaintiffs contend, however, that the fact that the individual paramedic employees were not named as party defendants does not relieve the city of liability if the wilful and wanton acts alleged in plaintiffs' complaint were in fact committed by those employees. We agree. • 1 Our courts have long recognized that in an action by a third party based on injuries caused by the negligence of the servant, the servant is not a necessary party in an action against the master. (Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162; Holda v. County of Kane (1980), 88 Ill. App.3d 522, 410 N.E.2d 552.) Clearly, one need not name each employee of a corporation in a suit for injuries sustained in order to prevail against the corporate employer. Rather, a litigant may sue either the master or the servant, for they are jointly and severally liable. Lasko v. Meier (1946), 394 Ill. 71. Defendant cites Melbourne Corp. v. City of Chicago (1979), 76 Ill. App.3d 595, 394 N.E.2d 1291, appeal denied, 79 Ill.2d 626, for the general proposition that a direct action against a municipality for its employees' tortious conduct is impermissible. There, plaintiff sued the city for damages resulting from the city board of health's refusal to renew its nursing home license pursuant to an ordinance which was later held to be invalid. Section 2-203 of the Tort Immunity Act provided that a public employee acting in good faith, without malice, under the apparent authority of an enactment that is unconstitutional, invalid, or inapplicable is not liable for any injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable. (Ill. Rev. Stat. 1983, ch. 85, par. 2-203.) Plaintiff failed to allege bad faith or malice on the part of the board or its members or any other agent of the city, but sued the city only, contending that the city's liability was direct and primary for its refusal to issue a license. Based on our finding that the city could assert the immunity afforded to its board members for good faith reliance on an ordinance ultimately adjudged invalid, this court held that plaintiff could not evade the effects of the Tort Immunity Act by suing the city itself but not the board officials whose actions or omissions constituted the alleged cause of action. Melbourne was therefore factually distinguishable from the case at bar and cannot be construed as to extinguish plaintiffs' cause of action under the present facts. • 2 Our reading of the relevant case law indicates an interpretation *520 of the tort Immunity Act in a manner consistent with the procedure normally followed in suits against principals for the wrongful acts of their agents. (See Arnolt v. City of Highland Park (1972), 52 Ill.2d 27, 282 N.E.2d 144 (overruling sub silentio the majority opinion in Mills v. County of Winnebago (1969), 104 Ill. App.2d 366, 244 N.E.2d 65, upon which defendant relies); Krieger v. Village of Carpentersville (1972), 8 Ill. App.3d 243, 289 N.E.2d 481; Hampton v. City of Chicago (7th Cir.1973), 484 F.2d 602, cert. denied (1974), 415 U.S. 917, 39 L.Ed.2d 471, 94 S.Ct. 1413-14.) Therefore it is sufficient for recovery against a public entity to prove that an identified employee would be liable even though that employee is not named a defendant in the action. See Mills v. County of Winnebago (1969), 104 Ill. App.2d 366, 376 (Davis, J., dissenting). The judgment of the circuit court is reversed and the cause is remanded with directions to vacate the order of dismissal as to count III and for such further proceedings as are proper under that count. Reversed in part and remanded with directions. CAMPBELL and BUCKLEY, JJ., concur.