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463 F.Supp. 107 (1978) Ronald BAINES and Laverne Baines, Plaintiffs, American Mutual Liability Insurance Company, Plaintiff-Intervenor, v. U. S. PIPE AND FOUNDRY COMPANY, INC., Jim Walter Corporation, Jim Walter Associates, Advance Construction Equipment, Inc., Advanced Construction Company, Inc., Advanced Construction, Inc., C T Corporation System, Inc., Symons Corporation, Defendants. Civ. A. No. 77-G-0829-W. United States District Court, N. D. Alabama, W. D. December 27, 1978. Amended Memorandum Opinion February 16, 1979. *108 James J. Jenkins, Phelps, Owens & Jenkins, Tuscaloosa, Ala., for plaintiffs Ronald Baines and Laverne Baines. Duncan Y. Manley, Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, Ala., for plaintiff-intervenor. James W. Gewin, Bradley, Arant, Rose & White, Birmingham, Ala., for defendants U. S. Pipe and Foundry Co., Jim Walter Corp., and Jim Walter Associates. Hugh W. Roberts, Jr., and Robert Land, Roberts & Davidson, Tuscaloosa, Ala., for defendants Advance Construction Equip., Inc. and Symons Corp. AMENDED MEMORANDUM OPINION GUIN, District Judge. This diversity case is before the court on defendants' motions for summary judgment. Plaintiff Ronald Baines is a former employee of Underground Development Company, an independent contractor employed by defendant U. S. Pipe and Foundry Company, Inc., a subsidiary of defendant Jim Walter Corporation, to construct a coal mine. On June 20, 1976, Mr. Baines, while working as a coal miner or construction coal miner in the state of Alabama, fell through an unguarded hole in a "work deck," or metal platform, supplied by defendants Symons Corporation or Advance Construction Equipment, Inc., about 30 feet, the fall severely injuring him. Mr. Baines seeks damages for personal injuries; his wife, for loss of consortium. American Mutual Liability Insurance Company has intervened as a party plaintiff, alleging that it has paid Mr. Baines workmen's compensation benefits on account of his injuries and should, therefore, be subrogated to his rights against defendants to the extent of the benefits paid. Plaintiffs claim that defendants Symons Corporation or Advance Construction Equipment, Inc., negligently designed, manufactured, or sold the work deck in a condition *109 unreasonably dangerous to Mr. Baines, its ultimate user, and seek damages under a common law negligence theory, Code of Alabama 1975, Section 7-2-314, and Alabama's Extended Manufacturer's Liability Doctrine. Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976). To prove a claim under Alabama's Extended Manufacturer's Liability Doctrine, plaintiffs would have to show that Mr. Baines: (1) ... suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach its user or consumer without substantial change in the condition in which it is sold. 335 So.2d at 132-33. To prove a claim under a common law negligence theory, plaintiffs would have to show that defendants acted unreasonably and that their unreasonable activities approximately caused Mr. Baines' injuries. Sammons v. Garner, 284 Ala. 131, 222 So.2d 717 (1969). To prove the claim under Code of Alabama 1975, Section 7-2-314, plaintiffs would have to show, among other things, that the work deck was defective in that it was not manufactured with proper safety equipment. The record reveals that the manufacturer defendants are in the business of selling work decks and that the work deck in question did, as expected, reach its user without substantial change in the condition in which it was sold. The record also reveals, however, that the work deck was sold with proper safety chains and equipment, was not sold in a defective condition unreasonably dangerous to Mr. Baines, and that no activities of defendants proximately caused Mr. Baines' injuries. If the work deck, sold broken down, had been properly assembled, then the hole through which Mr. Baines fell would have been guarded by safety chains. It is undisputed that if the safety chains had been in place, then Mr. Baines would not have fallen through the hole. The work deck was not, therefore, defective in the particulars alleged, nor did any of the manufacturer-defendants' activities proximately cause Mr. Baines' injuries. There being no genuine issue of material fact as to the claims against defendants Symons Corporation and Advance Construction Equipment, Inc., and these defendants having shown entitlement to judgment as a matter of law, their motions for summary judgment are due to be granted. In support of their claim against defendants U.S. Pipe and Jim Walter Corporation, on the other hand, plaintiffs assert that these defendants breached a duty to provide Mr. Baines with a reasonably safe place to work, proximately causing his fall. The record reveals, however, that any duty these owner-defendants may have owed Mr. Baines was effectively delegated to the Underground Development Company, Mr. Baines' employer. It is undisputed that the owner-defendants exercised no control over Mr. Baines' work area and that to do so would have constituted a breach of the contract with Mr. Baines' employer. Any liability of these defendants, therefore, must be premised, not on their own actions, but on responsibility for the actions of Underground Development Company. Under Alabama state law, the owner of the premises is not normally responsible for the actions of an independent contractor. Evans v. Kendred, 362 So.2d 206 (Ala.1978); Chrysler Corp. v. Wells, 358 So.2d 426 (Ala. 1978). Neither mining nor construction are, of themselves, so dangerous as to create an exception to the general rule. Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832 (1919); 41 Am.Jur.2d Independent Contractors § 43 (1968). Plaintiffs, however, argue that the facts present another exception to the general rule of nonliability, that created by a breach of a nondelegable statutory duty. That the owner-defendants were under a nondelegable statutory duty to see that safety chains were in place under 30 C.F.R. § 75-1400-3 (1976), promulgated pursuant *110 to the Federal Coal Mines Health and Safety Act, is undeniable. Bituminous Coal Operators Association, Inc. v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977). That duty, however, was owed to the federal government and not to Mr. Baines. Plaintiffs cite Bituminous Coal Operators Association, Inc. v. Secretary of Interior, supra, for the proposition that the duty to comply with the Federal Coal Mines Health and Safety Act extends to owners of mines and cannot be delegated to independent contractors. However that may be, the duty is yet owed only to the federal government. Bituminous Coal Operators Association was a declaratory judgment action by an association of coal miners and an association of construction companies against the Secretary of the Interior. The Fourth Circuit held that the Secretary could cite owners for violations committed by independent contractors, since owners fell within the definition of "operator" under the Act. It did not hold that mine owners are vicariously liable in civil actions by injured employees. That the duty to comply with the Act is not owed to private individuals is well stated by Judge Pointer in Williams v. Mead Corp., Civil Action No. 76-P-1696-S (N.D. Ala. Nov. 23, 1977). There, the court held there to be no implied private cause of action under the Act. Of interest, also, is the Fifth Circuit's holding in Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975), that there is no implied private cause of action under the Occupational Safety and Health Act. Therefore, though the duty to comply with the Act may not be delegated to an independent contractor, it is not owing to Mr. Baines. There being no duty to Mr. Baines, plaintiffs cannot recover for its breach. It thus appearing that there is no genuine issue of material fact as to the owner-defendants and that they are entitled to judgment as a matter of law, the motions for summary judgment are due to be granted.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 130 KA 14-01899 PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND SCUDDER, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER RODNEY MCFARLAND, DEFENDANT-APPELLANT. CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF COUNSEL), FOR RESPONDENT. Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Monroe County (Thomas E. Moran, J.), dated August 29, 2014. The order denied the motion of defendant to vacate the judgment of conviction pursuant to CPL 440.10. It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion pursuant to CPL 440.10 (1) (g) is granted, the judgment of conviction is vacated, and the matter is remitted to Supreme Court, Monroe County, for further proceedings on the indictment. Memorandum: On a prior appeal, we remitted the matter to Supreme Court to conduct a hearing on defendant’s motion pursuant to CPL 440.10 (1) (g) seeking vacatur of the judgment “on the ground that new evidence has been discovered since the entry of the judgment, which could not have been produced at trial with due diligence ‘and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant’ ” (People v McFarland, 108 AD3d 1121, 1121, lv denied 24 NY3d 1220). Defendant alleged that a statement of a third party that it was he, and not defendant, who shot and killed the victim, constitutes a statement against penal interest and that, if the statement had been admitted in evidence at trial, the verdict would have been more favorable to defendant. We remitted the matter for a hearing to determine whether the third party was unavailable to testify “and, if so, whether there is ‘competent evidence independent of the declaration to assure its trustworthiness and reliability’ ” (id. at 1123). Following the hearing, the court denied the motion. That was error. We therefore reverse the order. The third party appeared at the hearing and exercised his Fifth Amendment right to remain silent. Thus, the court properly determined  -2- 130 KA 14-01899 that he is unavailable to testify. Defendant called to the stand to testify the person to whom the third party allegedly made the admission. That witness testified that the third party told him in 2003 at the Monroe County Jail that it was he who shot the victim and that he implicated defendant because “he did what he had to do” to avoid “serious jail time.” The witness’s testimony varied from the factual averments set forth in an affidavit he sent to defendant’s counsel in 2007. The witness averred in his affidavit that the third party told him that he and defendant went to the victim’s house where he had a confrontation with the victim because the victim owed him money. During the hearing, however, he testified that the third party said that the victim owed defendant money and that, after the victim punched defendant, the third party shot the victim. An eyewitness testified at the trial that “in her quick glance out of a window” she saw defendant engaged in a struggle on the porch with the victim (id.). She further testified, however, that while defendant, the victim, and the third party were inside the residence, the third party and the victim were engaged in a loud dispute and that defendant was not part of that dispute. We note that our prior decision erroneously states that other witnesses “testified” that they heard the victim pleading with the third party by name before they heard gunshots (id.). That information was provided in defendant’s CPL 440.10 motion through statements of those eyewitnesses to the police, but there was no testimony to that effect at defendant’s trial. In any event, an investigator hired by defendant’s attorney testified during the 440.10 hearing that the third party admitted to her that he was at the scene and that he had a dispute with the victim. He also told the investigator, however, that defendant was not present and that the victim was shot by a person who ran onto the porch and pushed the third party away from the victim. Also admitted in evidence at the 440.10 hearing were letters written by defendant’s wife to the third party and letters ostensibly written by the third party to defendant’s former attorney. Following the hearing, the court determined that the testimony of the witness who testified that the third party made the incriminating statement to him was “incredible as a matter of law.” The court also determined that the letters ostensibly written by the third party were “lacking in evidentiary foundation, and thus, authentically unreliable and untrustworthy,” explaining that it had compared the signatures on those letters with the third party’s signature on his statement to police implicating defendant in the crime. The court therefore concluded that the third party’s statement would not be admissible at trial as a declaration against penal interest. As a preliminary matter, it is well settled that a “less stringent standard [of admissibility] applies, where, as here, the declaration is offered by defendant to exonerate himself rather than by the People, to inculpate him” (People v Backus, 129 AD3d 1621, 1624, lv denied 27 NY3d 991; see McFarland, 108 AD3d at 1122). Furthermore, the statements attributed to the third party “all but rule[] out a motive [for the third party] to falsify” the statement that it was he, and not defendant, who shot the victim (Backus, 129 AD3d at 1624). Thus, in determining whether there is evidence  -3- 130 KA 14-01899 constituting “sufficient supportive evidence of a declaration against penal interest[,] . . . [t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself . . . Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true. Whether [the hearing] court believes the statement to be true is irrelevant . . . If the proponent of the statement is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt” (People v Settles, 46 NY2d 154, 169-170 [emphasis added]). We conclude that defendant provided sufficient competent evidence at the 440.10 hearing to establish the “possibility of trustworthiness” of the third party’s statement to satisfy the requirement that the statement was a declaration against penal interest. In addition to the trial testimony that the third party was engaged in a dispute with the victim, the third party admitted to the defense investigator that he was present and engaged in a dispute with the victim and that he wrote the letters to defendant’s former attorney. Thus, we conclude that the third party is unavailable and that his alleged statement is “supported by independent proof indicating that it is trustworthy and reliable” and thus that it is a statement against penal interest (People v Ennis, 11 NY3d 403, 412- 413, cert denied 556 US 1240; see People v Brensic, 70 NY2d 9, 15). Furthermore, the statement is “clearly exculpatory of the defendant” (People v Deacon, 96 AD3d 965, 968, appeal dismissed 20 NY3d 1046). We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence (see CPL 440.30 [6]), that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]; see People v Bailey, 144 AD3d 1562, 1564). Entered: March 24, 2017 Frances E. Cafarell Clerk of the Court 

[Cite as State v. Hale, 2014-Ohio-262.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 9-13-17 v. RICHARD L. HALE, OPINION DEFENDANT-APPELLANT. Appeal from Marion County Common Pleas Court Trial Court No. 12-CR-562 Judgment Affirmed Date of Decision: January 27, 2014 APPEARANCES: David H. Lowther for Appellant David J. Stamolis for Appellee Case No. 9-13-17 PRESTON, J. {¶1} Defendant-appellant, Richard L. Hale, appeals the Marion County Court of Common Pleas’ judgment entry of sentence. We affirm. {¶2} On November 21, 2012, the Marion County Grand Jury indicted Hale on 36 counts of pandering sexually oriented matters involving a minor, violations of R.C. 2907.322(A)(1) and second-degree felonies. (Doc. No. 1). Hale was indicted for creating multiple obscene photographs and videos of a minor girl from January 2009 to November 13, 2012. (Id.); (Bill of Particulars, Doc. No. 18). For purposes of Counts One through Six, it was alleged that Hale took six photographs of the minor girl performing fellatio on him. (Bill of Particulars, Doc. No. 18). For purposes of Counts Seven through Thirty-Six, it was alleged that Hale provided the minor girl with a video camera and money to film herself masturbating. (Id.). {¶3} On November 26, 2012, Hale entered not guilty pleas. (Doc. No. 3). {¶4} On February 12, 2013, Hale pled guilty to Counts One and Two, pursuant to a written plea agreement. (Feb. 12, 2013 Tr. at 1-2, 15-16); (Doc. No. 20). In exchange, the State dismissed the remaining 34 counts and recommended a total of 14 years of imprisonment. (Id. at 2); (Id.). The trial court accepted Hale’s guilty pleas and ordered a pre-sentence investigation (“PSI”) report. (Feb. 12, 2013 Tr. at 17-23). -2- Case No. 9-13-17 {¶5} On March 1, 2013, the trial court sentenced Hale to seven years imprisonment on each count and ordered that Hale serve the terms consecutively for a total of 14 years. (Mar. 1, 2013 Tr. at 18). On March 5, 2013, the trial court filed its judgment entry of sentence. (Doc. No. 24). {¶6} On March 22, 2013, Hale filed a notice of appeal. (Doc. No. 29). Hale raises three assignments of error. We will combine his second and third assignments of error for discussion. Assignment of Error No. I The trial court erred to the prejudice of the defendant-appellant by imposing a sentence that is contrary to the purposes and principles of felony sentencing. {¶7} In his first assignment of error, Hale argues that the trial court conducted an independent investigation into his conduct revealing facts different than those agreed to by the parties. In particular, Hale argues that, for purposes of sentencing, the parties agreed that there were no other victims in this case. Hale also argues that he disputed some of the factual statements in the PSI report, and therefore, the trial court was required to make factual findings pursuant to R.C. 2951.03(B)(5). {¶8} R.C. 2929.19 provides, in relevant part: (A) The court shall hold a sentencing hearing before imposing a sentence under this chapter upon an offender who was convicted of -3- Case No. 9-13-17 or pleaded guilty to a felony * * *. At the hearing, the offender, the prosecuting attorney, the victim or the victim’s representative in accordance with section 2930.14 of the Revised Code, and, with the approval of the court, any other person may present information relevant to the imposition of sentence in the case. * * * (B)(1) At the sentencing hearing, the court, before imposing sentence, shall consider the record, any information presented at the hearing by any person pursuant to division (A) of this section, and, if one was prepared, the presentence investigation report made pursuant to section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim impact statement made pursuant to section 2947.051 of the Revised Code. (Emphasis added). R.C. 2951.03(B)(5) provides: If the comments of the defendant or the defendant’s counsel, the testimony they introduce, or any of the other information they introduce alleges any factual inaccuracy in the presentence investigation report or the summary of the report, the court shall do either of the following with respect to each alleged factual inaccuracy: (a) Make a finding as to the allegation; -4- Case No. 9-13-17 (b) Make a determination that no finding is necessary with respect to the allegation, because the factual matter will not be taken into account in the sentencing of the defendant. {¶9} Hale first argues that the trial court conducted an independent investigation of his conduct, referencing an alleged email the trial court judge sent to counsel regarding the case. The trial court judge acknowledged that he sent an email to both the prosecutor and defense counsel, copied to the PSI writer, asking the parties to clarify some factual issues at the sentencing hearing. (Mar. 1, 2013 Tr. at 14). The email was admitted into the record at the sentencing hearing as court’s exhibit 1. (Id. at 13-14). In his February 25, 2013 email, the judge indicated that he was “carefully evaluat[ing] the defendant’s conduct due to the seriousness of this case and the sentence which has been recommended.” (Court’s Ex. 1). The judge requested that the parties be prepared to discuss, at the sentencing hearing, the victim’s age when the offenses occurred, the victim’s age when Hale began photographing her, the victim’s age when the sexual conduct occurred, the extent of the sexual conduct, and whether any other victims had been identified and, if so, how many. (Id.). {¶10} Nothing in the email indicates that the trial court was investigating outside of the record, or that the trial court was seeking anything other than information related to issues it had already raised in the case. At the change of -5- Case No. 9-13-17 plea hearing, the trial court asked the prosecution whether there were other photographed victims. (Feb. 12, 2013 Tr. at 5). The prosecution represented that the other photographed individuals “appear to be over the age of 18. They span -- (inaudible) -- of over maybe 30 years, Your Honor.” (Id.). The prosecutor also represented that the 36 counts in the indictment were for the same victim, but “[t]here’s other Counts that could be floating around out there with other victims. We have photographs but -- in those photographs the victims all appear to be * * * 18 years of age or older. There’s no way to tell if they’re under 18.” (Id. at 18- 19). Many of the other photographed individuals, according to the State, could not be identified because of the age of the photographs. (Id. at 20-21). The trial court also asked the prosecutor the age of the victim for purposes of the photographs underlying Counts One and Two (i.e., the victim’s age when the sexual conduct occurred), and the victim’s age when Hale began photographing her. (Id. at 7, 20). {¶11} At the sentencing hearing, the trial court questioned the prosecution again concerning the possibility of other victims: THE COURT: * * * it’s my understanding that, you know, you have a number of photographs with multiple different girls or women in a state of undress. There’s also some information provided on that in the -- in the PSI -- MR. STAMOLIS: Sure, Judge. -6- Case No. 9-13-17 THE COURT: -- as well. I think that, you know, you weren’t able to identify most of the victims or other people. It’s unclear to me how many of the others were under 18 and maybe that’s just unclear. I’m not -- MR. STAMOLIS: Of the -- of the photographs that were found by the Police Department, Judge, other than the ones with the victim in this case, they can’t identify any of those under the age of 18. THE COURT: Okay. When you say they can’t identify * * * are they saying they’re under 18 but we don’t know who they are or they can’t tell whether they’re under 18? MR. STAMOLIS: They can’t tell whether they’re under 18. THE COURT: Okay. MR. STAMOLIS: We’ve received reports of -- from some other individuals of some things that happened back in the 70’s, maybe early 80’s but, you know, things well past the statute that were not looked into any further by the Police Department. THE COURT: Those people report this happened to them when they were under 18? MR. STAMOLIS: A few people, I believe, it was two individuals reported some type of sexual abuse. Whether under the age of 18, -7- Case No. 9-13-17 back in the 70’s -- one of those individuals advised us some photographs were taken, you know, back in that era, and there were several other individuals that she believed were under 18 when photographs were taken. We don’t have those photographs. They haven’t talked to those people. THE COURT: Okay. Thank you. PSI WRITER: Your Honor, may I say something? THE COURT: You may. PSI WRITER: I saw those photographs at the Marion Police Department and I think it’s fair to say that many of those girls were under the age of -- well under the age of 18. My opinion. (Mar. 1, 2013 Tr. at 3-5). Defense counsel argued that the trial court could not consider the PSI writer’s opinion concerning the age of the individuals in the other photographs. (Id. at 5). Defense counsel indicated that he had seen “a number of photographs,” but he was not sure if he had seen the photographs to which the PSI writer and the prosecution were referring. (Id. at 6). Defense counsel also stated that Hale disputed the fact that any of the other photographed individuals were under 18, and the parties did not agree that there were other victims. (Id.). During his arguments, defense counsel also stated that the victim was 16 or 17—but not -8- Case No. 9-13-17 any younger—when the offenses occurred, and the victim was at least 17 when the sexual conduct occurred. (Id. at 12-13). {¶12} Based upon the record, we are not persuaded that the trial court inappropriately “conducted its own investigation”; rather, the trial court emailed both parties asking them to clarify certain relevant factual issues at the sentencing hearing. The State and defense had no agreement concerning other victims—the parties agreed only that the indictment concerned the same victim. In its statement of facts on appeal, the State specifically noted that it did not agree with Hale’s assertion that none of the other photographs depicted other victims under the age of 18. (Appellee’s Brief at 1). The prosecution made it clear that there could be future charges in the event other victims were identified or came forward. (Feb. 12, 2013 Tr. at 18-19). A trial court is permitted to consider evidence of other crimes—even unindicted ones—for purposes of sentencing. See State v. Cooey, 46 Ohio St.3d 20, 35 (1989), superseded by constitutional amendment as stated in State v. Smith, 80 Ohio St.3d 89 (1997). See also State v. Burton, 52 Ohio St.2d 21, 23 (1977) (per curiam). Furthermore, R.C. 2929.19(A)—cited by Hale— expressly permits the trial court to hear relevant information during the sentencing hearing from “any other person.” Therefore, the trial court was within its discretion to listen to the PSI writer’s opinion concerning the age of the other photographed individuals. -9- Case No. 9-13-17 {¶13} Next, Hale argues that the trial court should have made findings pursuant to R.C. 2951.03(B), because he pointed out several factual errors in the PSI. In particular, Hale argues that the PSI “contained disputed information about other so-called victims.” (Appellant’s Brief at 5). The original PSI’s only reference to other women Hale photographed is the following: “[d]uring the interview, the Defendant acknowledged that he has taken many photos of nude women, but all of them were over the age of 18, except [the victim].” (Feb. 20, 2013 PSI). The updated PSI—a one-page document with three pages from a police report attached thereto—has the following under the topic “Other victims”: a. The names of the victims referenced in the PSI were found with the details of the police report, both adult and adolescent. Attached are three pages from the police report, and I have highlighted the points of interest and names of other victims referenced in the PSI. b. The extent of the Defendant’s “collection” of personal photography and nude photos is massive. There are no doubt thousands of photographs in evidence at the Marion Police Department. After viewing only a small portion of those photographs, many of the girls could have easily been underage, but there is simply no way to confirm that. There were photographs that -10- Case No. 9-13-17 appeared to be from different decades, i.e[.], the 1980’s, the 1990’s, 2000, and recent. (Feb. 25, 2013 PSI). {¶14} To begin, we note that neither the updated PSI nor the original PSI mentioned any other victims by name—only the police report attached to the updated PSI names other victims. We also note that neither the original PSI nor the updated PSI had any information concerning the sentencing factors. (Compare PSI and Updated PSI to Mar. 1, 2013 Tr. at 11, 16). That said, the trial court did not commit reversible error by failing to make factual findings under R.C. 2951.03(B)(5)(a). On the issue of other victims, the trial court specifically noted the dispute between the parties and, nevertheless, concluded that “there is certainly * * * information that suggests that, you know, at least some of those” other women were under 18. (Id. at 16). R.C. 2951.03(B)(5)(a) does not require the trial court to state “I make the following finding,” and here it is clear that the trial court found evidence of other victims despite Hale’s assertions. See State v. Othman, 149 Ohio App.3d 82, 2002-Ohio-4029, ¶ 22 (8th Dist.). {¶15} Hale also argues that the trial court erred by failing to make an R.C. 2951.03(B)(5)(a) factual finding regarding the representation in the PSI that the photographs and sexual conduct occurred when the victim was under 17. (Mar. 1, 2013 Tr. at 13). We disagree. The trial court did not make any express findings -11- Case No. 9-13-17 regarding the age of the victim when the photographs for Counts One and Two occurred. (Id. at 17). The trial court did note, however, that the photographs depicted the victim performing oral sex on Hale, which appears to have been more of a concern for the trial court. (Id.). Since the trial court did not rely upon the age of the victim, as much as the sexual conduct, to craft its sentence, the trial court’s failure to make a finding on the victim’s age is harmless. State v. Williamson, 5th Dist. Richland No. 04 CA 75, 2005-Ohio-3524, ¶ 24-26. {¶16} For all these reasons, Hale’s first assignment of error is overruled. Assignment of Error No. II The trial court erred to the prejudice of the defendant-appellant by imposing consecutive sentences without making the required findings contained in R.C. 2929.14(C). Assignment of Error No. III The trial court erred to the prejudice of the defendant-appellant by imposing consecutive sentences without adequate justification. {¶17} In his second assignment of error, Hale argues that the trial court erred by failing to make findings under R.C. 2929.14(C) before imposing consecutive sentences. In his third assignment of error, Hale argues that the trial court abused its discretion by imposing a 14-year sentence after reviewing R.C. 2929.12. -12- Case No. 9-13-17 {¶18} A trial court’s sentence will not be disturbed on appeal absent a defendant’s showing by clear and convincing evidence that the sentence is unsupported by the record; the sentencing statutes’ procedure was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007- Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). {¶19} Clear and convincing evidence is that “which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not, however, substitute its judgment for that of the trial court because the trial court is ‘“clearly in the better position to judge the defendant’s dangerousness and to ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001). -13- Case No. 9-13-17 {¶20} R.C. 2929.14(C)(4), as amended by H.B. 86, now requires a trial court to make specific findings on the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find (1) consecutive sentences are necessary to either protect the public or punish the offender; (2) the sentences would not be disproportionate to the offense committed; and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id. {¶21} The trial court here specifically stated the following before imposing consecutive sentences: I will make the finding that the [consecutive] sentence is necessary to punish the offender or to protect the public from future crime. It’s not disproportionate to the conduct or the danger imposed by the Defendant and that two or more offenses were committed as part of the course of conduct and the harm is so great or unusual that a single prison term would not adequately reflect the seriousness of the conduct. (Mar. 1, 2013 Tr. at 18). The trial court incorporated these findings into its judgment entry of sentence. (Mar. 5, 2013 JE, Doc. No. 24). Therefore, the trial court made the requisite findings before imposing consecutive sentences. -14- Case No. 9-13-17 {¶22} Next, Hale argues that the trial court’s 14-year sentence was not supported by R.C. 2929.12’s sentencing factors. We begin by noting that, prior to sentencing, defense counsel highlighted the relevant R.C. 2929.12 factors. (Mar. 1, 2013 Tr. at 9-13). Prior to sentencing Hale, the trial court stated that it considered the principles and purposes of sentencing as well as the statutory sentencing factors concerning seriousness and recidivism. (Id. at 15-16). The trial court found that Hale did not have any serious criminal record (R.C. 2929.12(D)(2), (E)(1)-(2)). (Id. at 16). The trial court, however, found that Hale admitted that his conduct occurred over a several-year period resulting in hundreds of sexually oriented photographs (R.C. 2929.12(B) (other factor)). (Id.); (PSI). The trial court also found relevant that the record contained evidence that Hale photographed other minor girls. (R.C. 2929.12(B) (other factor)). (Mar. 1, 2013 Tr. at 15-16). The trial court also noted that the victim could not consent to being photographed since she was under 18 (R.C. 2929.12(C)(1)). (Id.). At the same time, the trial court noted that the victim’s mother may have brought the victim to Hale for photographing for money (R.C. 2929.12(C)(1), (4)). (Id. at 16-17). Nevertheless, the trial court observed that Hale did not only photograph the victim but engaged in sexual conduct with her. (R.C. 2929.12(B) (other factor)). (Id. at 17). State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, ¶ 15 (trial court may consider allegations of uncharged conduct among other sentencing factors). The -15- Case No. 9-13-17 trial court also found that the victim suffered serious psychological harm (R.C. 2929.12(B)(2)). (Mar. 1, 2013 Tr. at 17). {¶23} Hale has failed to clearly and convincingly demonstrate that the trial court’s 14-year sentence was not supported by the record. Hale was originally indicted on 36 second-degree felonies, each carrying a possible eight years of imprisonment, for a total possible sentence of 288 years. Hale’s criminal conduct with the victim occurred over several years and included more than just photographs. Hale was providing the victim with pregnancy tests and purchased the victim a cell phone if she promised not to get pregnant before she was 16. (PSI). Hale also admitted that he put his penis into the victim’s mouth “about” three times during 2012. (PSI). Hale used his friendship with the victim’s family to facilitate the offenses. R.C. 2929.12(B)(6). Hale reported that the victim’s brother did not like the fact that his sister was posing nude, but the victim’s brother “thought it was better from [Hale] then there [sic] mom having her get it from men on the street. That was his fear and mine.” (PSI). Furthermore, there was evidence to suggest that there were other victims. It is clear from the sentencing hearing that the trial court weighed the appropriate factors and reviewed the PSI when crafting its sentence. -16- Case No. 9-13-17 {¶24} Because the trial court made R.C. 2929.14(C) findings prior to imposing consecutive sentences and the sentence is supported by the record, we overrule Hale’s second and third assignments of error. {¶25} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed WILLAMOWSKI, P.J., concurs in Judgment Only. /jlr ROGERS, J., Concurring in Part and Dissenting in Part. {¶26} I concur with the opinion of the majority as to the second assignment of error, but I respectfully dissent in regard to the first and third assignments of error. {¶27} I must first express that my position on this issue is my legal opinion and is not intended to in any way condone Appellant’s actions or to minimize the seriousness of Appellant’s conduct. {¶28} In sentencing Appellant, the trial court stated: It will be my judgment to sentence the Defendant to seven years on Count 1, seven years on Count 2, run those sentences consecutively for a total sentence of 14 years. -17- Case No. 9-13-17 I will make findings that the sentence is necessary to punish the offender or to protect the public from future crime. It’s not disproportionate to the conduct or to the danger imposed by the Defendant and that two or more offenses were committed as part of the course of conduct and the harm is so great or unusual that a single prison term would not adequately reflect the seriousness of the conduct. (Emphasis added.) Sentencing Tr., p. 18. {¶29} Without question, the trial court sufficiently regurgitated the statutory language necessary to impose consecutive sentences. The trial court found that the harm is so great or unusual that a single prison term would not adequately reflect the seriousness of the conduct. However, I find that the trial court erred in imposing consecutive sentences and disagree with the majority’s opinion for two reasons: (1) the trial court improperly relied on disputed information contained in the presentence investigation report when sentencing; and (2) there is no evidence that the victim’s harm was great or unusual under the statutory construction of R.C. 2929.14, which limits the evidence a trial court can consider when imposing consecutive sentences. The Presentence Investigation Report {¶30} The majority asserts that the sentencing court, in general, may consider uncharged conduct when determining an appropriate sentence. However, this authority is not absolute. To determine whether a trial court’s sentence is appropriate, an appellate court’s review is limited to (1) the pre- -18- Case No. 9-13-17 sentence investigation report (PSI); (2) the record from the trial court; and (3) any oral or written statements made to or by the court at the sentencing hearing. R.C. 2953.08; accord State v. Tolliver, 9th Dist. No. 03CA0017, 2003-Ohio-5050, ¶ 24. Indeed, the cases cited by the majority allowed evidence that would have been excluded from the record at the trial to become a part of the record of the sentencing hearing. However, “[t]he broadening of the scope of admissible evidence for sentencing hearings * * * is not unlimited but nonetheless subject to the fundamentals of due process.” State v. Bowers, 10th Dist. Franklin No. 00AP- 1453, 2001 WL 1013090 (Sept. 6, 2001). Therefore, the trial court must only consider what is properly on the record at sentencing, and cannot rely on information outside of the record. See State v. Ford, 3d Dist. Union No. 14-10-07, 2010-Ohio-4069, ¶ 12 (trial court properly considered uncharged conduct placed on record by testimony of police officers at sentencing); Tolliver at ¶ 25 (trial court properly considered uncharged crimes as they appeared in a PSI that was made a part of the record); State v. Fisher, 11th Dist. Lake No. 2002-L-020, 2003- Ohio-3499, ¶ 18-19 (trial court could not base sentence on belief that defendant was guilty of crime when no evidence appeared on the record to support belief). Thus, uncharged conduct may be considered as long as it becomes a part of the record at sentencing. -19- Case No. 9-13-17 {¶31} A PSI may contain uncharged conduct as part of social history. State v. Cooey, 46 Ohio St.3d 20, 35 (1989). “[I]t is permissible for the court to consider information [contained in a PSI] concerning a defendant’s previous criminal history including uncharged yet undisputed conduct.” (Emphasis added.) State v. Steward, 4th Dist. Washington No. 02CA43, 2003-Ohio-4082, ¶ 26. Under R.C. 2951.03(B)(5), a defendant has an opportunity to object to the information contained within the PSI: (5) If the comments of the defendant or the defendant’s counsel, the testimony they introduce, or any of the other information they introduce alleges any factual inaccuracy in the presentence investigation report or the summary of the report, the court shall do either of the following with respect to each alleged factual inaccuracy: (a) Make a finding as to the allegation; (b) Make a determination that no finding is necessary with respect to the allegation, because the factual matter will not be taken into account in the sentencing of the defendant. {¶32} Once the defendant informs the court of the alleged inaccuracies in the report, it creates “an affirmative duty on the trial court to make a finding regarding the objection in accordance with [the statute].” State v. Swihart, 3d Dist. No. 14-12-25, 2013-Ohio-4645, ¶ 63. When a trial court fails to make a finding as required by the statute but still relies on the disputed parts of the PSI during sentencing, the sentence is improper and must be vacated and remanded for -20- Case No. 9-13-17 resentencing.1 Id.; see also State v. Rhoades, 5th Dist. Muskingum No. CT2006- 0085, 2007-Ohio-1826, ¶ 20 (trial court relying on disputed admission contained in PSI during sentencing required reversal); State v. Jackson, 6th Dist. No. E-00- 023, 2001 WL 311256 (Mar. 30, 2001) (trial court relying on disputed criminal record contained in PSI during sentencing required reversal). {¶33} At the sentencing hearing, there was no victim impact statement, nor was any additional evidence presented by the prosecutor in the form of witnesses. The information regarding the alleged uncharged conduct perpetrated against other victims was contained in the PSI. This is revealed on the record, as the trial court discusses with the prosecution: TRIAL COURT: I mean, we’ve discussed this before and it’s my understanding that, you know, you have number [sic] of photographs with multiple different girls or women in a state of undress. There’s also some information provided on that in the – in the PSI – PROSECUTION: Sure, Judge. TRIAL COURT: – as well. I think that, you know, you weren’t able to identify most of the victims or other people. It’s unclear to me how many of the others were under 18 and maybe that’s just unclear. I’m not – 1 Some courts have found that failure to make the requisite finding is harmless error, so long as the trial court’s findings or considerations would not be affected by the alleged inaccuracies. See, e.g. State v. Williams, 5th Dist. No. 04 CA 75, 2005-Ohio-3524, ¶ 25. However, this court has not addressed whether the harmless error analysis is proper when a trial court fails to make the requisite findings. See Swihart at f.n. 6. Further, without the PSI, there is no basis from which to impose consecutive sentences, as no additional evidence was produced during the sentencing hearing. -21- Case No. 9-13-17 PROSECUTION: Of the – of the photographs that were found by the Police Department Judge, other than the ones with the victim in this case, they can’t identify any of those under the age of 18. *** PROSECUTION: We received reports of – from some other individuals of some things that happened back in the 70’s, maybe early 80’s but, you know, things well past the statute that were not looked into any further by the Police Department. TRIAL COURT: Those people report this happened to them when they were under 18? PROSECUTION: A few people, I believe, it was two individuals reported some type of sexual abuse. Whether under the age of 18, back in the 70’s – one of those individuals advised us some photographs were taken, you know, back in that era, and there were several other individuals that she believed were under 18 when photographs were taken. We don’t have those photographs. They haven’t talked to those people. Sentencing Tr., p. 3-5. All of the information referred to by the prosecution is contained in the PSI, and the PSI is specifically discussed by the trial judge as the source of the information. {¶34} Later, Defense Counsel makes a series of objections to the information in the PSI. As to the age of any other alleged victims, Defense Counsel stated: DEFENSE COUNSEL: I have a couple issues, Your Honor, may it please the Court on behalf of Mr. Hale. Number one, I guess I would start with the comments of the PSI writer forming some opinion as to the age of some of the individuals in the photographs. I don’t believe that’s appropriate. I don’t believe that individual -22- Case No. 9-13-17 would have certainly the qualifications to identify the age of an individual in a photograph. *** DEFENSE COUNSEL: [W]e absolutely dispute that any of those individuals were under the age of 18. There is absolutely no agreement that there are any other victims. These individuals that were photographed were photographed with their consent. *** DEFENSE COUNSEL: My concern is that the PSI writer is relying on mother’s statements [sic]. You made no attempt to contact this individual at issue here who is now very close of being age – *** PROSECUTION: Your Honor, if I may? [I]’m sorry, I’ve spoken with K.S. I know the PSI writer attempted to make contact with K.S. and the mother would not make the child available to the PSI writer. *** DEFENSE COUNSEL: None of that information really is contained in the record. And what I’m concerned about is is [sic] that we are assuming facts in this case that we, as in representing my client, we dispute those facts. We dispute that there were any other victims. Sentencing Tr., p. 5-6, 8-9. {¶35} It is clear from the record that Hale’s counsel repeatedly objected to the use of the PSI as it contained factual inaccuracies. However, the trial court never made a finding regarding the alleged factual inaccuracy, nor did it state that -23- Case No. 9-13-17 it was ignoring the disputed information for the purposes of sentencing. To the contrary, the trial court, in referencing the PSI, specifically stated: And certainly there’s things that, you know, there’s some objective and subjective, you know, elements in [the PSI] and people are free to agree or disagree with it. But it – but I think is – it does reflect appropriate things that need to be considered. Now, we may weigh those differently, and evaluate differently * * *. *** I think the dispute is to what extent any of those women were under the age of, you know, of 18. There is – there is certainly a, you know, information that suggests that, you know, at least some of those were as well. Maybe not conclusive but we certainly have information to suggest that. (Emphasis added.) Id. at 14, 16. Here, the court acknowledged that there was a disagreement over the allegations of uncharged conduct contained in the PSI, but it never made a finding regarding the alleged factual inaccuracies. Further, it is clear from the repeated references to the PSI that the court relied on the information contained in the report when sentencing Hale. {¶36} As the trial court never made a finding on the disputed allegations contained in the PSI, but referenced the disputed allegations when sentencing Hale, it is reversible error. I would remand this matter back to the trial court for resentencing to make the appropriate findings as to the disputed allegations. -24- Case No. 9-13-17 Statutory Construction of R.C. 2929.14(C)(4) {¶37} Even if the trial court had made the appropriate findings regarding the PSI, there is still no evidence in the record to support the trial court’s imposition of consecutive sentences. While the court is allowed to admit evidence at sentencing that would be excluded at trial, the amount of evidence the trial court can rely on for the sentence in general is severely limited under the plain meaning of R.C. 2929.14(C)(4). The statute allows the imposition of consecutive sentences when the trial court: finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: R.C. 2929.14(C)(4). Determining whether the offender poses a threat to the public, requires punishment, and that the punishment is not disproportionate to the crime is similar to the trial court’s consideration of recidivism and the purposes of sentencing in general, and as a result there is no limitation on the types of evidence on the record that the court may consider for those purposes. {¶38} However, the statute states that the court must make an additional finding. Id. One of the possible additional findings is that: [a]t least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any -25- Case No. 9-13-17 of the courses of conduct adequately reflects the seriousness of the offender’s conduct. Id. This is the finding that the trial court purported to make when it sentenced Hale to two consecutive sentences. {¶39} As this court has stated: A basic rule of statutory construction requires that words in statutes should not be construed to be redundant, nor should any words be ignored. Statutory language must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative. (Citations omitted.) State v. Stults, 195 Ohio App.3d 488, 2011-Ohio-4328, ¶ 18 (3rd Dist.). As a result, each finding required by the statute must be separate and distinct. A reading that makes any two findings substantially similar should be rejected by the court over a reading that would give effect to every word and clause. {¶40} A plain reading of the statute requires that the two offenses were part of a course of conduct and that the harm caused, as a result of the course of conduct the offender is being sentenced for, was so great or unusual that consecutive sentences are necessary. Further, this is a separate and distinct finding from whether the offender represents a danger to society or must otherwise be punished. In other words, the defendant’s criminal history is irrelevant as to -26- Case No. 9-13-17 whether the offenses created a course of conduct, otherwise these two findings would be the same inquiry. {¶41} Instead, the statute must mean that the course of conduct is limited to the offenses that the defendant is being convicted of, not of a general course of conduct. This does not limit what can be admitted on the record, instead it limits what can be considered when making this determination. As a result, the trial court could only consider whether the two offenses that Hale pleaded guilty to created a course of conduct that resulted in a great or unusual harm. The pictures of the other girls cannot be a part of this finding, as they do not relate to the course of conduct of the offenses for which Hale is being convicted. {¶42} With this limitation in mind, the trial court can only consider how these two specific offenses created a great or unusual harm against the single victim. It is apparent that the trial court was offended by the nature of the activity between Appellant and the victim. I mean, you know, the ramification of this type of, you know, activity, you know, it’s difficult to quantify, difficult to even, you know, even understand. So I mean, I would, you know, I, you know, I think the record is more than sufficient in terms of serious, you know emotional, you know, injury as far as that –that goes. Sentencing Tr., p. 17. The trial court assumes that the victim endured psychological harm. As Defense Counsel pointed out, “[t]here was some assumption that this victim had serious physical harm or serious mental harm. -27- Case No. 9-13-17 And there’s absolutely no facts in the record that support a conclusion that the – the victim suffered some injury that would make this more serious than not.” Id. at 11. “Again, we have many conclusions that are being drawn or assumptions that are being made and again, we have no basis for those, no support for those either in the court record * * *.” Id. at 13. {¶43} The trial court is going outside of the record to state that it is obvious that there was trauma in this case as a result of the nature of the crime being charged. The trial court did reference the fact that when the victim first reported this case to people at her school “[s]he’s crying, she needed help, turn her life around.” Id. at 17. However, the victim also acknowledged using drugs and her mother selling and using drugs. There is nothing in the record to suggest that the conduct Appellant is being convicted of caused more problems than her home life with her mother. Further, although requested, there is no victim impact statement, let alone one alleging emotional distress as a result of this conduct. There is no suggestion that this activity has led to counseling, or any specific emotional complications. The court cannot assume the evidence exists; it must be on the record. {¶44} The trial court also found that the sexual conduct between the victim and the Appellant was relevant. The fact that there was sexual conduct between the victim and Appellant is not a proper justification for consecutive sentences -28- Case No. 9-13-17 because she insists that it did not happen until after her sixteenth birthday, which means consensual sex between them is not a criminal offense. Further, the statute necessarily requires that the minor child be participating in sexual activity. R.C. 2907.322(A)(1). The court cannot say that by simply violating the statute the harm is automatically great or unusual. Arguably, had the defendant distributed the sexually explicit material, it could have caused great or unusual harm. Since there is no indication that Appellant ever shared the photographs or videos with any other person, we do not consider the argument. {¶45} While the conduct of Appellant may be reprehensible, there is nothing in the record to warrant the trial court’s finding that the victim suffered serious psychological harm, or to justify the finding that the harm was so great or unusual that a single prison term would not adequately reflect the seriousness of the conduct. The trial court assumed that the incidents caused great or unusual harm, without any justification on the record as to how these two offenses caused that great or unusual harm. Without more than the usual harm caused by such conduct, or greater harm than is typical, I cannot support affirmance of the consecutive sentence in this case. {¶46} The record clearly and convincingly demonstrates that the trial court’s sentence was based on matters it was not authorized to consider, and that the trial court made a finding that, while mechanically correct, is not supported by -29- Case No. 9-13-17 the record. Therefore, the imposition of consecutive sentences in this case was contrary to law and an abuse of discretion. /jlr -30- 

733 F.Supp. 1382 (1990) UNITED STATES of America, Plaintiff, v. ONE RESIDENTIAL PROPERTY LOCATED AT 501 RIMINI ROAD, DEL MAR, CALIFORNIA, and Appurtenances Affixed Thereto, Defendants. Civ. No. 89-1011-R(CM). United States District Court, S.D. California. January 18, 1990. Gloria Sutton Clark, Asst. U.S. Atty., San Diego, Cal., for plaintiff. Sebastian D'Amico, San Diego, Cal., and Donald Green, Goodman, Stein & Chesnoff, Las Vegas, Nev., for defendants. MEMORANDUM DECISION AND ORDER RHOADES, District Judge. Claimants Eduardo M. Otero and Elizabeth R. Otero bring this motion to exclude from civil forfeiture a sum of money as attorney's fees from proceeds of a court controlled sale of seized property. The property at issue, the claimants' house, was seized by federal authorities under 21 U.S.C. § 881. Claimants seek an order excluding $250,000.00 from the sale of the property so that their son may retain counsel of choice in a related criminal case.[1]*1383 They contend that the Sixth Amendment of the U.S. Constitution mandates the exclusion of funds to pay reasonable attorney fees. The motion for exclusion was heard by this court on January 16, 1990. After considering the moving and opposing papers, oral arguments, and the applicable law, this court denied claimants' motion in a brief order. This opinion is to explain the court's reasoning. I. On or about April 20, 1989, the November, 1987 Grand Jury for the United States District Court for the Southern District of California handed down a three count indictment charging claimants' son, Edward Randolph Otero, with violations of 21 U.S.C. §§ 952, 960, and 963, conspiracy to import marijuana; 21 U.S.C. §§ 841(a)(1) and 846, conspiracy to possess marijuana with intent to distribute; and 18 U.S.C. § 924(c), use and carrying a firearm during a drug trafficking crime. The indictment alleges that the son performed one or more overt acts at his parents' home at 501 Rimini Road, Del Mar, California. On July 10, 1989, the Government filed a civil complaint for forfeiture against the defendant property, and alleged that the property was used to facilitate the importation of marijuana. The house has an estimated worth of $900,000.00. Claimants' son contends that he has no other source of funds to retain his counsel of choice other than funds whose source would be the proceeds of the sale of claimants' residence. II. The Supreme Court has already decided that the forfeiture of illicit proceeds or other assets utilized to facilitate criminal activity which would otherwise be used to pay attorney fees does not violate a criminal defendant's Sixth Amendment qualified right to counsel of choice. Caplin & Drysdale v. United States, ___ U.S. ___, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989); United States v. Monsanto, ___ U.S. ___, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). However, these cases were decided under the criminal forfeiture statute, 21 U.S.C. § 853, while the present case involves a seizure under the civil forfeiture statute, 21 U.S.C. § 881. Claimants contend that the Supreme Court's opinions in Caplin & Drysdale and Monsanto should not be applied to the present case because the Court only addressed a defendant's right to counsel of choice in the context of criminal forfeiture statutes. Claimants instead direct this court's attention to United States v. $70,476.00 in U.S. Currency, which holds that attorney's fees may be exempt from assets seized under the civil forfeiture law. 677 F.Supp. 639 (N.D.Cal.1987). While claimants assert that a critical distinction must be made between a civil and a criminal forfeiture proceeding, they offer little support for their contention that the distinction is relevant to the issue of whether seized assets may be used for attorney's fees. III. In determining the scope of a statute, a court must first look to its language. Monsanto, 109 S.Ct. at 2662, quoting United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). In Monsanto, the Court found that the language of § 853, the criminal forfeiture statute, is "plain and unambiguous: all assets falling within its scope are to be forfeited upon conviction, with no exception existing for the assets used to pay attorney's fees—or anything else for that matter." 109 S.Ct. at 2662. In reaching this conclusion, the Court specifically noted that the statute provides that a person convicted of the offenses charged in the indictment "shall forfeit ... any property" that was derived from the commission of these offenses. Id. The Court added that "property" was broadly defined by the statute. Id. Similarly, the language of § 881, the civil forfeiture statute, is plain and unambiguous. *1384 The statute provides that all assets falling within its scope "shall be subject to forfeiture to the United States and no property right shall exist in them." 21 U.S.C. § 881(a). Further, property is given a broad definition in the statute. 21 U.S.C. § 881(a)(1)-(7). Thus, this court concludes the 21 U.S.C. § 881 is unambiguous in failing to exclude assets that could be used to pay an attorney from its definition of forfeitable assets. Moreover, nothing in the legislative history of the statute suggests a legislative intent to exclude attorney's fees from forfeitable assets. See $70,476.00 in U.S. Currency, 677 F.Supp. at 644. Having concluded that there is no exemption from § 881's forfeiture provisions for assets which a defendant seeks to use to retain an attorney, this court must reach the question whether this provision violates the defendant's right to counsel of choice as protected by the Sixth Amendment or the Due Process Clause of the Fifth Amendment. IV. In Caplin & Drysdale, a narcotics defendant's counsel challenged the validity of the criminal forfeiture statute to the extent that it prevented defendant from paying attorney's fees. 109 S.Ct. 2646. The Court first addressed petitioner's Sixth Amendment argument and found that the statute did not impermissibly burden a defendant's right to retain counsel of choice. Id. at 2656. "A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney even if those funds are the only way that the defendant will be able to retain the attorney of his choice." Id. at 2652. The Court explained that the statute reflects the principle of vesting title to any forfeitable assets in the hands of the Government at the time of the criminal act giving rise to forfeiture. Id. at 2653. The Court also rejected petitioner's "balancing analysis" where petitioner asserted the Government had only a modest interest in forfeitable assets that may be used to retain an attorney. Id. at 2654. Further, the Court found that three governmental interests overrode any Sixth Amendment interest in permitting criminal defendants to use assets adjudged forfeitable to pay for their defense. Id. at 2655. First, "the Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his illgotten gains; that legitimate interest extends to recovering all forfeitable assets, for such assets are deposited in a Fund that supports law-enforcement efforts in a variety of important and useful ways." Id. at 2654. Second, the Government has an interest in securing forfeitable assets in order to return them to those wrongfully deprived or defrauded of them. Id. Finally, the Court found that a major purpose of the recent alterations to the forfeiture laws was to weaken the economic power of organized crime and drug enterprises. Id. The Court concluded that "[t]his includes the use of such economic power to retain private counsel." Id. at 2655. The Court next addressed petitioner's challenge to the statute based on the Due Process Clause of the Fifth Amendment. Id. at 2656. While recognizing the potential for abuse, the Court stated that "due process claims alleging ... abuses are cognizable only in specific cases of prosecutorial misconduct ... or when directed to a rule that is inherently unconstitutional." Id. at 2657. "The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them, e.g., by attempting to impose them on persons who should not be subjected to that punishment." Id. In Monsanto, the Court addressed the question of whether the criminal forfeiture statute authorized a court to enter a pretrial order freezing assets in a defendant's possession, even where the defendant seeks to use those assets to pay an attorney, and if so, whether the order is permissible under the Constitution. 109 S.Ct. at 2659. In holding that the statute was constitutional, the Court relied on its conclusion in Caplin & Drysdale. Id. at 2666. *1385 The defendant in Monsanto also argued that freezing the assets before he was convicted —and before they are finally adjudged to be forfeitable—raised distinct constitutional questions. Id. The Court rejected this argument and found that the assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable. Id. V. Claimants urge this court not to adopt the constitutional analysis applied in Caplin & Drysdale and Monsanto. However, this court is not persuaded that the civil nature of this forfeiture proceeding changes the nature of the constitutional question. First, claimants contend that the different burdens of proof in civil and criminal forfeiture cases distinguishes the present case from Caplin & Drysdale and Monsanto. In a civil forfeiture case, the United States must establish probable cause to believe that a substantial connection exists between the property to be forfeited and the illegal exchange of a controlled substance. See 21 U.S.C. § 881(d); 19 U.S.C. § 1615. Probable cause means reasonable grounds for belief of guilt, supported by less than prima facie proof but more than mere suspicion. United States v. $93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir.1984). If the government succeeds in showing probable cause to institute forfeiture, the burden shifts to the claimant to prove by a preponderance of the evidence that the item is not subject to seizure. Id. Pursuant to 21 U.S.C. § 853, the criminal forfeiture statute, a temporary restraining order may be entered if the United States demonstrates that there is probable cause to believe that the property is subject to forfeiture. The Government may secure a protective order in one of two ways. First, such an order may issue upon the filing of an indictment or information charging a violation of Subchapter I of Chapter 13. Alternatively, an order may issue if the court determines, after an opportunity for a hearing, that there is a substantial probability that the Government will prevail on the issue of forfeiture and that failure to enter the order will result in the property being made unavailable for forfeiture and that the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered. 21 U.S.C. § 853(e)(1). At trial, there is a rebuttable presumption that the property of a person convicted under the chapter is subject to forfeiture if the United States proves that the property is subject to forfeiture by a preponderance of the evidence. 21 U.S.C. § 853(d). Thus, neither statute allows the seizure of assets absent a minimum finding of probable cause. The Supreme Court has made it clear that assets in a criminal defendant's possession may be restricted based on a finding of probable cause to believe that the property will ultimately be proven forfeitable. Monsanto, 109 S.Ct. at 2666. This court is not persuaded by claimants' argument that the respective burdens of proof alter the constitutional analysis in the present matter. Second, the case relied on by claimants to distinguish the present matter from criminal forfeiture cases explicitly states that the opinion "include[s] discussion of section 853, since it is similar to section 881 and much of the relevant case law has developed under section 853." $70,476.00 in U.S. Currency, 677 F.Supp. at 642. Further, the continuing validity of that case is highly suspect.[2] *1386 Third, claimants' assertion that a sentence in the Monsanto decision explicitly limits the decision to criminal forfeiture cases is incorrect. In explaining its grant of certiorari, the Court states that there is a conflict among the Courts of Appeals over the statutory and constitutional questions presented and cites several cases in the footnote. 109 S.Ct. 2661 n. 6. Claimants contend that each of the cases cited in the footnote concerns only the criminal forfeiture proceedings under 21 U.S.C. § 853. While United States v. Moya-Gomez, 860 F.2d 706 (7th Cir.1988), addressed only criminal forfeitures, two other cases were not so limited in their reach. In United States v. Nichols, the Tenth Circuit expressly stated that "[t]his holding applies equally to criminal and civil forfeiture." 841 F.2d 1485, 1509 (1988). In addition, United States v. Jones involved the Racketeering Influenced and Corrupt Organizations Act ("RICO") forfeiture statute, 18 U.S.C. § 1963. 837 F.2d 1332, reh'g granted, 844 F.2d 215 (5th Cir.1988). Thus, this footnote provides additional support for this court's conclusion that the decision and rationale in Caplin & Drysdale and Monsanto are transferable to cases such as the present one involving seizures under the civil forfeiture laws. This court recognizes that civil and criminal forfeiture proceedings are not themselves interchangeable. A civil forfeiture proceeding is an in rem action against the property that the government seeks to obtain. The guilt or innocence of the property owner is irrelevant in a civil action because the theory is that the property itself has committed the wrong. See generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-86, 94 S.Ct. 2080, 2090-93, 40 L.Ed.2d 452 (1974). Moreover, because the property is considered tainted upon commission of the wrongful act, the interest of the government vests at the time of the act. Conversely, criminal forfeiture is in personam. It operates against a convicted criminal defendant. Before Congress amended the criminal forfeiture provisions in 1984, property did not vest with the United States upon commission of the wrongful act. By amendment, Congress included a "relation back" provision, which "essentially borrows the concept of taint from civil forfeiture." Nichols, 841 F.2d at 1489. "Thus, the government's interest in the property to be forfeited vests at the time the crime is committed, rather than upon conviction, as had previously been the case...." Id. Therefore, the differences between civil and criminal forfeiture proceedings do not suggest that the Caplin & Drysdale and Monsanto decisions are not applicable to civil forfeiture cases. In fact, because property subject to civil forfeiture has always been considered to be tainted upon commission of the wrongful act, thereby immediately vesting the government's interest, an even stronger argument can be made that "[a] defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice." Caplin & Drysdale, 109 S.Ct. at 2652. VI. This court holds that neither of the Fifth or the Sixth Amendments to the Constitution requires Congress to permit a criminal defendant to use assets adjudged to be civilly forfeitable to pay defendant's legal fees. This court relies on the conclusions in the cases of Caplin & Drysdale v. United States and United States v. Monsanto in reaching this result. Claimants' motion to exclude from the civil forfeiture a sum of money as attorney's fees is DENIED. IT IS SO ORDERED. NOTES [1] The Government argues that claimants lack jus tertii standing to advance their son's Sixth Amendment rights. While this is a close question, this court concludes that the claimants have the requisite standing. Claimants are seeking to redress the injury of not being able to afford their son counsel of choice because their home has been seized based on allegations of the son's criminal activity. This is an adequate injury-in-fact to meet the constitutional minimum of Article III standing. While third-party standing is generally not recognized by the courts, three factors may counsel for review: the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third-party interests. Caplin & Drysdale v. U.S., ___ U.S. ___, 109 S.Ct. 2646, 2651 n. 3, 105 L.Ed.2d 528 (1989). Here, the first two factors weigh heavily in claimant's favor. Thus, claimants satisfy the requirements for jus tertii standing. [2] As the Northern District treated civil and criminal forfeiture provisions interchangeably, its conclusion that defendants are entitled to exclude attorneys fees from forfeitable property in criminal cases has been overruled by the recent Supreme Court decisions and its position in civil cases has been severely undermined. For example, the Northern District found that excluding attorney's fees from forfeiture would not substantially defeat the three governmental interests identified from the 1984 amendments: 1) to deter offenders; 2) to deprive drug dealers of their illegal property; and 3) to provide funds to offset government expenses and add to the general Treasury. 677 F.Supp. at 645. The Supreme Court addressed the same three goals and came to the opposite conclusion. Caplin & Drysdale, 109 S.Ct. at 2655.

145 F.3d 386 330 U.S.App.D.C. 259 Jasper Napoleon BUCHANAN, Appellantv.Audrey MANLEY, Surgeon General, et al., Appellees No. 97-5363. United States Court of Appeals,District of Columbia Circuit. June 23, 1998. [330 U.S.App.D.C. 260] Appeal from the United States District Court for the District of Columbia (No. 97cv01840). Jasper Buchanan, pro se, filed a brief for appellant. Before: WILLIAMS, SENTELLE and HENDERSON, Circuit Judges. PER CURIAM: 1 Jasper Buchanan, proceeding without counsel, filed a complaint against the Surgeon General of the United States, the president of the American Medical Association ("AMA"), and the heads of two tobacco companies. Buchanan, who is incarcerated in South Carolina, alleged that the Surgeon General and the president of the AMA "deliberately neglected" their duties to protect him from health risks associated with the tobacco companies' products. He further alleged that the heads of the tobacco companies intentionally distributed their products without a warning notice regarding the health risks of smoking, and that he suffered injury as a result. Although his complaint does not describe the products at issue, on appeal he has provided exhibits showing the companies' packages for cigarette rolling papers and cigarette tobacco. Buchanan styled his complaint as one brought under the Federal Tort Claims Act but also claimed that his eighth amendment rights have been violated. He sought declaratory relief and damages. 2 After determining that there were no viable federal claims and dismissing the Surgeon General as a defendant, the district court concluded that the only proper basis for its jurisdiction would be pursuant to 28 U.S.C. § 1332, which provides for diversity jurisdiction in civil actions. The district court then determined that venue in the District of Columbia was improper and dismissed the complaint without prejudice. We publish this opinion to address the district court's sua sponte dismissal of the complaint on the ground of improper venue.1 3 In Anger v. Revco Drug Co., 791 F.2d 956 (D.C.Cir.1986) (per curiam), we held that the district court may not sua sponte dismiss a case as frivolous under 28 U.S.C. § 1915(d)2 on the sole ground that the court lacks personal jurisdiction over the defendants or that venue is improper. The court reasoned that "the Federal Rules of Civil Procedure indicate that personal jurisdiction is a matter to be raised by motion or responsive pleading, not by the court sua sponte. Therefore, before the complaint has been served and a response received, the court is not positioned to determine conclusively whether personal [330 U.S.App.D.C. 261] jurisdiction exists." Anger, 791 F.2d at 958 & n. 3 (citing Fed.R.Civ.P. 12(b) and (h)(1), and extending their application to sua sponte dismissals for improper venue). The court also concurred in the Third Circuit's statement that it is "inappropriate for the trial court to dispose of the case sua sponte on an objection to the complaint which would be waived if not raised by the defendant(s) in a timely manner." Id. at 958 (quoting Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir.1976)). 4 As Anger makes clear, the district court erred by sua sponte dismissing Buchanan's complaint. We conclude, however, that such procedural error is harmless in cases where, as here, the appellant has had an opportunity to challenge the district court's ruling on appeal but has failed to demonstrate that venue is proper. This conclusion is consistent with this court's longstanding practice of allowing such error to be cured on appeal. In the past, this court has affirmed a sua sponte dismissal on venue or personal jurisdiction grounds when it is clear that one or both of those defenses exists and no further factual development in the district court is necessary. The court has determined whether affirmance is warranted by issuing to appellees an order to show cause why the district court's dismissal order should not be vacated and the case remanded, and simultaneously inviting appellees to raise threshold defenses, including lack of personal jurisdiction and improper venue. We now adopt, with the approval of the full court, a modified procedure that eliminates the requirement of an order to show cause directed at appellees.3 This approach differs from the court's current practice only in that appellees will no longer be required to enter an appearance and raise the venue and personal jurisdiction defenses in every case. 5 Although the defenses of improper venue and lack of personal jurisdiction are waived if not raised in a timely manner, see Fed.R.Civ.P. 12(h)(1), this does not automatically preclude an appellate court from affirming the sua sponte dismissal of a complaint under 28 U.S.C. § 1915(e) on the basis of those defenses without first requiring appellees to raise them. In cases where the complaint is dismissed before it is served, a defendant who never had notice of the suit cannot be said to have waived an affirmative defense. Moreover, the usual concern behind requiring defenses such as lack of personal jurisdiction over the defendant and improper venue to be raised early or waived--that is, the possible unfairness to a plaintiff of rejecting a suit "after considerable time and expense has been invested in it"--are not present when the case is dismissed at the outset. Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995) (affirmative defense appearing on the face of the complaint may be a basis for sua sponte dismissal as frivolous prior to service of the complaint). 6 One significant concern that does arise when the district court sua sponte dismisses a complaint on the basis of a venue or personal jurisdiction defense is that the plaintiff does not have an opportunity to raise arguments supporting venue or personal jurisdiction.4 Accordingly, we will allow appellants to raise arguments supporting venue or personal jurisdiction, and even proffer evidence, for the first time on appeal. Often appellants will have addressed venue or personal jurisdiction in a motion or brief, but if not, the court will issue an order to show cause to appellants to allow them to demonstrate that venue is proper or that the court has personal jurisdiction over the defendants. Only if appellants can make the [330 U.S.App.D.C. 262] relevant showing will appellees be required to enter an appearance and respond to an order to show cause why the district court's dismissal order should not be vacated and the case remanded. This procedure gives appellants notice of affirmative defenses and an opportunity to be heard, allows appellees to avoid the burden of appearing in a case that appears clearly to have been brought in the wrong court, and prevents pointless remands where the district court's procedural error is harmless. See 28 U.S.C. § 2111 ("On the hearing of any appeal ... in any case, the court shall give judgment after an examination of the record without regard to error or defects which do not affect the substantial rights of the parties."). 7 In this case, Buchanan has addressed in his brief the district court's venue ruling, but has failed to demonstrate that venue here is proper. As noted above, we have by separate order affirmed the district court's dismissal of Buchanan's federal claims. Arguably, the complaint states a common law tort claim for failure to warn Buchanan of the health risks associated with the use of cigarette rolling paper and loose tobacco. The only possible basis for federal jurisdiction over this claim is the diversity statute. See 28 U.S.C. § 1332.5 The venue provisions for diversity actions, however, are not met. Such actions may be brought in a judicial district where (1) any defendant resides, if all defendants reside in the same State, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) where any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. See 28 U.S.C. § 1391(a). The complaint gives addresses for the non-federal defendants in Illinois and Kentucky, and Buchanan has not alleged that any of them resides in the District of Columbia. Moreover, no part of the events or omissions which gave rise to the claim are alleged to have occurred here. Nor has Buchanan shown that the action could not be brought in any other district. Accordingly, we affirm the district court's dismissal for improper venue.6 1 The district court's rulings that Buchanan failed to state a federal claim against any of the defendants, and its dismissal of the Surgeon General as a defendant, do not warrant a published opinion and are affirmed by separate order 2 Current version at 28 U.S.C. § 1915(e)(2)(B)(i) 3 Because this change in procedure has been considered and approved by the full court, it constitutes the law of the circuit. See Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C.Cir.1981) 4 Several circuits nevertheless have allowed the sua sponte dismissal of a complaint as frivolous based on an affirmative defense that appears on the face of the complaint. See Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 956 (4th Cir.1995) (en banc) (statute of limitations), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273, 134 L.Ed.2d 219 (1996); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995) (same); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.1994) (same); Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir.1991) (same), cert. denied, 502 U.S. 1063, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992); Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir.1987) (waiver); Sanders v. United States, 760 F.2d 869, 871-72 (8th Cir.1985) (per curiam) (personal jurisdiction) 5 Although the complaint alleges more than $75,000 as the amount in controversy and it appears that there may be complete diversity between Buchanan and the defendants, the allegations of the complaint are not detailed enough to determine with absolute certainty where each litigant resides. The court need not reach that issue, however, given our conclusion that venue is improper. See In re Minister Papandreou, 139 F.3d 247, 1998 WL 163561, * 7 (D.C.Cir.1998) (court may dismiss on non-merits grounds before finding subject matter jurisdiction) 6 The district court did not abuse its discretion in concluding that transfer would not be in the interest of justice. See 28 U.S.C. § 1406(a). Not only are there substantive problems with Buchanan's claims, but the sketchy allegations of the complaint make it difficult to determine where this case could properly be brought

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES and STATE OF No. 16-16070 NEVADA ex rel. MARY KAYE WELCH; D.C. No. Plaintiff-Appellee, 2:14-cv-01786- MMD-GWF v. MY LEFT FOOT CHILDREN’S OPINION THERAPY, LLC; ANN MARIE GOTTLIEB; JONATHAN GOTTLIEB, Defendants-Appellants. Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Argued and Submitted June 16, 2017 San Francisco, California Filed September 11, 2017 Before: Mary M. Schroeder, D. Michael Fisher, * and N. Randy Smith, Circuit Judges. Opinion by Judge Fisher * The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. 2 UNITED STATES EX REL. WELCH V. MLF SUMMARY ** False Claims Act The panel affirmed the district court’s denial of the defendants’ motion to compel arbitration on the alternate ground that relator Mary Kay Welch’s False Claims Act claims did not fall within the scope of the arbitration agreement with Welch’s former employer, defendant My Left Foot Children’s Therapy, LLC. Welch alleged that her former employer violated the federal and Nevada False Claims Acts by presenting fraudulent Medicaid claims. The United States and Nevada declined to intervene in the case and her employer moved to compel arbitration under the Federal Arbitration Act. The panel held that this lawsuit was not arbitrable because the plain text of Welch’s arbitration agreement that she signed when she applied for employment with My Left Foot did not encompass this False Claims Act case. COUNSEL Rex S. Heinke (argued) and Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; Shawn Hanson and Kelli Ann Kiernan, Akin Gump Strauss Hauer & Feld LLP, San Francisco, California; for Defendants- Appellants. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  UNITED STATES EX REL. WELCH V. MLF 3 Robert S. Oswald, David Scher, and Andrew M. Witko, The Employment Law Group P.C., Washington, D.C., for Plaintiff-Appellee. Lindsey Powell (argued) and Michael S. Raab, Assistant United States Attorneys, Appellate Staff; Civil Division, United States Department of Justice, Washington, D.C.; for Amicus Curiae United States. Mark J. Kreuger (argued), Senior Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Carson City, Nevada; for Amicus Curiae State of Nevada. OPINION FISHER, Circuit Judge: Originally enacted in 1863, the False Claims Act (FCA) establishes a scheme that permits either the Attorney General, 31 U.S.C. § 3730(a), or a private party, § 3730(b), to maintain a civil action against “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment” to an employee of the United States government. § 3729(a). When brought by a private party, an “enforcement action under the FCA is called a qui tam action, with the private party referred to as the relator.” United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 932 (2009) (internal quotation marks omitted). And when a relator initiates a FCA action, the United States has 60 days to review the complaint and decide whether it will intervene in the case. § 3730(b)(2), (4). 4 UNITED STATES EX REL. WELCH V. MLF When the government intervenes, it assumes “the primary responsibility for prosecuting the action, and shall not be bound by an act of the [relator].” § 3730(c)(1). When it does not intervene, it is not a “party” to a FCA action for the purposes of certain procedural rules. See Eisenstein, 556 U.S. at 931. Nonetheless, the United States maintains some minimal involvement in all FCA actions. For example, in every FCA case, it remains “a ‘real party in interest,’” id. at 930, and retains specific statutory rights including rights to “intervene at a later date upon a showing of good cause,” § 3730(c)(3), request service of pleadings and deposition transcripts, § 3730(c)(3), and veto a relator’s decision to voluntarily dismiss the action, § 3730(b)(1). In this case, Mary Kaye Welch alleges that her former employer violated the federal FCA and Nevada FCA by presenting fraudulent Medicaid claims. The United States and Nevada declined to intervene in the case and her employer moved to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. Holding that Welch had entered into a valid arbitration agreement that covers this FCA case, the District Court nonetheless declined to enforce that arbitration agreement. In its view, because FCA claims belong to the government and neither the United States nor Nevada agreed to arbitrate their claims, sending this dispute to arbitration would improperly bind them to an agreement they never signed. Though the question of the enforceability of a relator’s agreement to arbitrate FCA claims is interesting, our holding rests on a rather unremarkable textual analysis. Since we conclude that the plain text of Welch’s arbitration agreement does not encompass this FCA case, this lawsuit is not arbitrable, and we will affirm the District Court’s denial of the Defendants’ motion to compel arbitration on that alternate ground.  UNITED STATES EX REL. WELCH V. MLF 5 I. In August 2013, Mary Kaye Welch applied for employment with My Left Foot Children’s Therapy, LLC (MLF), a small, family-owned company that provides functional therapy to children in the Las Vegas area. She was hired as a speech therapist that September and worked at MLF for just over a year. During the application process, Welch entered into a mutually binding arbitration agreement with MLF that provides: I agree and acknowledge that the Company and I will utilize binding arbitration to resolve all disputes that may arise out of the employment context. Both the Company and I agree that any claim, dispute, and/or controversy that either I may have against the Company . . . or the Company may have against me, arising from, related to, or having any relationship or connection whatsoever with my seeking employment by, or employment or other association with the Company shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act . . . . To the extent permitted by applicable law, the arbitration procedures stated below shall constitute the sole and exclusive method for the resolution of any claim between the Company and Employee arising out of ‘or related to’ the employment relationship. ER 20 (underlining in original). The agreement then adds: Included within the scope of this agreement are all disputes, whether they be based on the 6 UNITED STATES EX REL. WELCH V. MLF state employment statutes, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation, equitable law, or otherwise, with exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims brought pursuant to state workers compensation statutes, or as otherwise required by state or federal law. Id. Shortly before Welch left MLF, she filed a sealed complaint in federal court alleging that MLF and its co- owners—Ann Marie and Jonathan Gottlieb—violated both the federal FCA and the Nevada FCA 1 by presenting fraudulent claims to Medicaid and Tricare, a program that offers Medicaid-like benefits to service members. In 2015, the United States and Nevada declined to intervene and Welch amended her complaint. In that amended complaint, Welch alleges that MLF treated patients who could not benefit from therapy, provided and billed for unnecessary treatment, ordered therapists to draft inaccurate patient progress reports, and told therapists to use a single billing code for all services regardless of whether a more appropriate code would result in lower charges. On October 19, 2015, the Defendants moved to compel arbitration of Welch’s FCA claims pursuant to the FAA and 1 Because we resolve this case based on the text of Welch’s arbitration agreement, any distinctions between the federal FCA and Nevada FCA are immaterial to our holding. We will accordingly refer to both sets of claims collectively as “FCA claims.”  UNITED STATES EX REL. WELCH V. MLF 7 MLF’s arbitration agreement with Welch. Welch opposed that motion as did the United States and Nevada. On June 13, 2016, the District Court denied the Defendants’ motion to compel arbitration on the ground that Welch’s arbitration agreement did not extend to the United States or Nevada, the parties which owned the underlying FCA claims. This timely appeal followed. II. The District Court had jurisdiction under 28 U.S.C. § 1331 and 31 U.S.C. § 3732. We have jurisdiction under 9 U.S.C. § 16(a)(1) and 28 U.S.C. § 1291. We review a district court’s decision to grant or deny a motion to compel arbitration de novo. Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 429 (9th Cir. 2015). III. On appeal, the Defendants argue that we should reverse the district court’s denial of their motion to compel arbitration. They maintain that MLF’s arbitration agreement with Welch encompasses this FCA lawsuit and that the government cannot prevent enforcement of an arbitration agreement covering FCA claims when, as here, it has declined to intervene in the underlying FCA suit. In addressing those arguments, we must first determine whether Welch’s arbitration agreement with MLF encompasses the FCA claims at issue in this case. A. Seeking “to reverse the longstanding judicial hostility to arbitration agreements” and place them “upon the same footing as other contracts,” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991), Congress enacted the 8 UNITED STATES EX REL. WELCH V. MLF FAA in 1925. Under the FAA, private agreements to arbitrate are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Since the FAA “mandates . . . arbitration on issues as to which an arbitration agreement has been signed,” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985), when, as here, an arbitration agreement involves “a contract evidencing a transaction involving commerce,” 9 U.S.C. § 2, our role is limited “to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron Corp v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). In this case, Welch does not argue that her arbitration agreement with MLF is invalid. Instead, she maintains that these FCA claims do not fall within its scope because, contrary to what the District Court held, none of them are related to, arose out of, or were connected with her employment or other association with MLF. This argument turns on interpretation of her arbitration agreement with MLF—“a matter of contract” that requires us “to honor parties’ expectations.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 351 (2011). Governing Law Before turning to the text of Welch’s arbitration agreement, we must first determine the governing law. Under the FAA, the “interpretation of an arbitration agreement is generally a matter of state law,” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 681 (2010), and since the arbitration agreement in this case was signed in Nevada by a Nevada resident and a Nevada-based LLC, the parties agree that Nevada law would govern any contract dispute here. In applying Nevada law to interpret Welch’s  UNITED STATES EX REL. WELCH V. MLF 9 arbitration agreement, however, “the FAA imposes certain rules of fundamental importance” that must also guide our interpretation “including the basic precept that arbitration is a matter of consent, not coercion,” id. (internal quotation marks omitted), and the rule that “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). “Because the FAA is at bottom a policy guaranteeing the enforcement of private contractual arrangements,” EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002) (internal quotation marks omitted), when examining the scope of an arbitration agreement, “[a]s with any other contract dispute, we first look to the express terms [of the parties’ agreement].” Chiron, 207 F.3d at 1130. If the text is plain and unambiguous, that is the end of our analysis in this case because we “must rigorously enforce arbitration agreements according to their terms” under both the FAA and Nevada law. Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013) (internal quotation marks omitted); see also Waffle House, 534 U.S. at 294 (“While ambiguities in the language of the agreement should be resolved in favor of arbitration, . . . we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated.”); State ex rel Masto v. Second Judicial Dist. Ct. ex rel. Cty. of Washoe, 199 P.3d 828, 832 (Nev. 2009) (“In interpreting a contract, we construe a contract that is clear on its face from the written language, and it should be enforced as written.”). The Arbitration Agreement Turning now to the text, the arbitration agreement that Welch signed when she applied for employment with MLF 10 UNITED STATES EX REL. WELCH V. MLF contains two key sections. The first section, which is titled “Agreement,” includes three separate iterations of an agreement to arbitrate. The second section, which is titled “Included Claims,” provides that minus limited exceptions not applicable here, the scope of the arbitration agreement includes “all disputes, whether they be based on the state employment statutes, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation.” ER 20. On appeal, the Defendants rely on the presumption in favor of arbitration, the breadth of the “Agreement” section, and the breadth of the “Included Claims” section to maintain that Welch’s arbitration agreement covers the FCA claims at issue in this case. In our view, however, it is solely the text of the “Agreement” section that dictates the scope of Welch’s arbitration agreement. Since the presumption of arbitrability is not in play if the text of the agreement is clear, that presumption plays no role unless the agreement is susceptible to an interpretation that covers this FCA case. And since it would violate several rules of textual interpretation to rely on the “Included Claims” section to define the breadth of the agreement, we believe that section is irrelevant to assessing the scope of Welch’s agreement unless the “Agreement” section first provides for arbitration. Certainly, as the Defendants point out, the “Included Claims” section is broad and encompasses FCA claims insofar as it provides that “all disputes,” including those based on “any . . . federal law,” fall within the scope of the arbitration agreement. ER 20. There are nonetheless two problems with relying on this section to assess whether this case is subject to arbitration. First, the “Included Claims” section contains no agreement to arbitrate any disputes— rather, the “Agreement” section defines when the parties  UNITED STATES EX REL. WELCH V. MLF 11 have agreed to arbitration while the “Included Claims” section explains the types of disputes that arbitration extends to when the parties have elsewhere agreed to arbitration. Second, the breadth of the “Included Claims” section cannot be read in isolation from the rest of the arbitration agreement, and the “Agreement” section provides for arbitration in much narrower circumstances than the “Included Claims” section. This second point is particularly critical because had the parties wished to arbitrate every dispute encompassed in the “Included Claims” section it could have left the scope of the “Agreement” section at “any and all disputes whatsoever.” Instead, every provision in the “Agreement” section containing an agreement to arbitrate is followed by some plain language imposing a textual limitation that, to be arbitrable, the dispute must arise from, relate to, or be connected with Welch’s employment or association with MLF. Having chosen to include that language, we are bound to define the scope of this agreement by those limitations under two cardinal rules of textual interpretation. The first is the rule that the specific governs the general, or generalia specialibus non derogant, because the “Agreement” section is more specific than the “Included Claims” section. See, e.g., S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 891 (9th Cir. 2003) (“A standard rule of contract interpretation is that when provisions are inconsistent, specific terms control over general ones.”); Shelton v. Shelton, 78 P.3d 507, 510 (Nev. 2003) (“[A] specific provision will qualify the meaning of a general provision.”). The second is the interpretative principle of verba cum effectu sunt accipienda—that if possible, every word and every provision is to be given effect—because if the language about arising out of and relating to employment did not limit the scope of the arbitration agreement to those situations, it 12 UNITED STATES EX REL. WELCH V. MLF would have no purpose. See, e.g., United States v. Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless, else they would not have been used.”); Sturges v. Crowinshield, 17 U.S. (4 Wheat.) 122, 202 (1819) (“It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.”); Quirron v. Sherman, 846 P.2d 1051, 1053 (Nev. 1993) (“It is a well established principle of contract law . . . that where two interpretations of a contract provision are possible, a court will prefer the interpretation which gives meaning to both provisions rather than an interpretation which renders one of the provisions meaningless.”). Having established that the scope of this arbitration agreement turns solely on the text of the “Agreement” section, we must now consider whether the text of the “Agreement” section is broad enough to encompass this lawsuit. As discussed above, the “Agreement” contains three different arbitration provisions. The first provision provides for arbitration of “all disputes that may arise out of the employment context.” ER 20. The second provision provides for arbitration of “any claim, dispute, and/or controversy that either I may have against the Company . . . or the Company may have against me arising from, related to, or having any relationship or connection whatsoever with my seeking employment by, or employment or other association with the Company.” Id. The third provision provides for arbitration of “any claim between the Company and Employee arising out of ‘or related to’ the employment relationship.” Id. (underlining in original). Like the “Included Claims” section, these provisions are broad and capable of expansive reach. But as this Court has  UNITED STATES EX REL. WELCH V. MLF 13 noted, there is a difference between a clause being “broad” and “unlimited.” N. Cal. Newspaper Guild Local 52 v. Sacramento Union, 856 F.2d 1381, 1383 (9th Cir. 1988). The first arbitration provision is limited to disputes that “arise out of the employment context” while the third is limited to claims “arising out of or ‘related to’ the employment relationship.” ER 20. And for three reasons, we cannot hold that the text of the first or third provision is broad enough to encompass this case. First, contrary to Defendants’ position, the terms used in the limiting language of the first and third provisions are not boundless because both of the phrases, “arising out of” and “related to,” mark a boundary by indicating some direct relationship. As we have held, the words arising out of are “relatively narrow as arbitration clauses go,” Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1464 (9th Cir. 1983) (internal quotation marks omitted), and “understood to mean originating from[,] having its origin in, growing out of or flowing from.” Cont’l Cas. Co v. City of Richmond, 763 F.2d 1076, 1080 (9th Cir. 1985) (internal quotation marks omitted). And though we have recognized that the phrase “relate to” is broader than the phrases “arising out of” or “arising under,” we agree with the Eleventh Circuit that “‘related to’ marks a boundary by indicating some direct relationship; otherwise the term would stretch to the horizon” and “have no limiting purpose” in violation of the cannon of verba cum effectu sunt accipienda. Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011); see also N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (noting that if the phrase “relate to were taken to extend to the furthest stretch of its indeterminacy,” it would be meaninglessly empty because “relations stop nowhere” (internal quotation marks omitted)). 14 UNITED STATES EX REL. WELCH V. MLF Second, we are persuaded by the reasoning of the Fifth and Eleventh Circuits, which have previously interpreted arbitration agreements covering disputes that “arise out of” or “relate to” a contractual or employment relationship. Though neither circuit decided this issue in the context of a FCA claim, we find their textual analysis compelling and instructive. In both cases, the courts found that a plaintiff’s sexual assault claims did not “arise out of” or “relate to” the plaintiff’s employment or workplace simply because the assault occurred at the plaintiff’s workplace or would not have occurred but for the plaintiff’s employment. As both circuits explained, the sexual assault did not “arise out of” or “relate to” the plaintiffs’ employment because there was no direct connection between their claims and employment where the defendant “could have engaged in” the same conduct “even in the absence of any contractual or employment relationship with [the plaintiff],” and a third party “could have brought the[] same claims . . . based on virtually the same alleged facts.” Doe, 657 F.3d at 1219–20; see also Jones v. Halliburton Co., 583 F.3d 228, 240 (5th Cir. 2009). The same is true here—this FCA suit has no direct connection with Welch’s employment because even if Welch “had never been employed by defendants, assuming other conditions were met, she would still be able to bring a suit against them for presenting false claims to the government.” Mikes v. Strauss, 889 F. Supp. 746, 754 (S.D.N.Y. 1995). Finally, the fact that Welch observed the fraud while employed is immaterial under the first and third arbitration provisions. Since, contrary to what the District Court held, neither clause applies to “claims aris[ing] from observations Welch made while employed by MLF,” United States v. My Left Food Children’s Therapy, LLC, No. 14-01786, 2016 WL 3381220, at *3 (D. Nev. June 13, 2016), to interpret this  UNITED STATES EX REL. WELCH V. MLF 15 clause to cover all disputes discovered while Welch worked at MLF would be “to read the arbitration provision so broadly as to encompass any claim related to [her] employer, or any incident that happened during her employment” whereas “that is not the language of the contract.” Jones, 583 F.3d at 241. Indeed, because Welch could have just as easily discovered the factual predicate of her claims in a different capacity, because Defendants could have engaged in the same fraudulent conduct absent any relationship with Welch, and because the legal basis of this FCA case would exist regardless of where Welch worked or observed the fraud, it is MLF’s act of fraudulent billing—rather than Welch’s employment—that these FCA claims “arise out of” and “relate to.” Since neither the first nor third arbitration provision is broad enough to encompass this FCA case, the lawsuit is arbitrable only if it falls within the scope of the second arbitration provision. As Defendants note, this provision is clearly the broadest and may not require a direct relationship with Welch’s employment insofar as the phrase “any relationship or connection whatsoever with” is much broader than the phrases “arising out of” and “related to.” But we must again look carefully at the text of this provision, which indicates that it only covers a “claim, dispute, and/or controversy that either [Welch] may have against [MLF] . . . or [MLF] may have against [Welch].” ER 20. Contrary to Defendants’ arguments, this case does not meet that textual requirement. This case involves no claim that MLF has against Welch. Nor can it be said to be a claim, dispute, or controversy that Welch “may have against [MLF].” ER 20. Indeed, though the FCA grants the relator the right to bring a FCA claim on the government’s behalf, an interest in the outcome of the lawsuit, and the right to 16 UNITED STATES EX REL. WELCH V. MLF conduct the action when the government declines to intervene, our precedent compels the conclusion that the underlying fraud claims asserted in a FCA case belong to the government and not to the relator. See, e.g., Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000) (Noting that the “FCA can reasonably be regarded as effecting a partial assignment of the Government’s damages claim.” (emphasis added)); Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1126 (9th Cir. 2007) (“The FCA makes clear that notwithstanding the relator’s statutory right to the government’s share of the recovery, the underlying claim of fraud always belongs to the government.”); Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 768 (9th Cir. 1997) (“[A] qui tam plaintiff by definition asserts not his own interests, but only those of United States.”). 2 The meaning of the verb “have” is “to hold in the hand or in control; own; possess.” Have, Webster’s New World College Dictionary (5th ed. 2014). Consequently, because FCA fraud claims always belong to 2 Stoner is particularly instructive here. In Stoner, we concluded that a relator cannot pursue a FCA claim pro se. 502 F.3d at 1126–28. A pro se plaintiff can only “prosecute his own action in propria persona,” and “has no authority to prosecute an action in federal court on behalf of others.” Id. at 1126. Because a FCA claim is the government’s claim— and not the relator’s claim—and because the FCA does not allow relators to pursue any interest they might have in the claim separately from the government, we concluded that a pro se plaintiff could not bring such a claim. Id. at 1126–28. Thus, even where, as here, “the government chooses not to intervene, a relator bringing a qui tam action for a violation of [the FCA] is representing the interest of the government and prosecuting the action on its behalf.” Id. at 1126. A relator only has “the right to bring suit on behalf of the government.” Id. (quoting United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 743 (9th Cir. 1993)). We find no grounds upon which to distinguish our holding in Stoner from the contract language at issue here.  UNITED STATES EX REL. WELCH V. MLF 17 the government, Welch cannot be said to own or possess them, and the FCA claims at issue in this case do not meet this arbitration clause’s requirement that the claim must be one that Welch “have against [MLF].” 3 E.R. 20. Since this second clause, like the other two, is not broad enough to encompass this FCA case, this suit does not fall within the scope of Welch’s arbitration agreement and is not arbitrable. IV. For the reasons set forth above, we affirm the District Court’s denial of the Defendants’ motion to compel arbitration on the alternate ground that Welch’s FCA claims do not fall within the scope of her arbitration agreement with MLF. AFFIRMED. 3 In so holding, we note that, once again, had the parties wished to agree to arbitrate FCA claims, they were free to draft a broader agreement that covers “any lawsuits brought or filed by the employee whatsoever” or “all cases Welch brings against MLF, including those brought on behalf of another party.” But having instead drafted a more limited clause that covers only those claims that Welch, rather than the government, has, Defendants cannot now argue that we should ignore this textual limitation. 

535 U.S. 999 CORTHRONv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 01-8332. Supreme Court of the United States. April 15, 2002. 1 C. A. 5th Cir. Certiorari denied. Reported below: 275 F. 3d 43.

  IN THE TENTH COURT OF APPEALS   No. 10-08-00402-CV   John Benjamin Clopton and Barbara Ann Clopton,                                                                                     Appellants  v.   Stephen Lynn Bradford and Raymond James Massey,                                                                                     Appellees     From the 40th District Court Ellis County, Texas Trial Court No. 76632   MEMORANDUM  Opinion               John Benjamin Clopton and Barbara Ann Clopton filed a notice of appeal from the trial court’s order denying the Cloptons’ motion to strike the Intervenor’s plea in intervention.  The Clerk of this Court notified the Cloptons by letter that the appeal was subject to dismissal because it appeared there was no right of interlocutory appeal.  The Cloptons were also notified that the appeal would be dismissed unless, within 21 days from the date of the letter, a response was filed showing grounds for continuing the appeal.             The Cloptons faxed a response but it does not show grounds for continuing the appeal.  Accordingly, this appeal is dismissed.  See Tex. R. App. P. 42.3, 44.3.                                                                           TOM GRAY                                                                         Chief Justice   Before Chief Justice Gray,             Justice Vance, and             Justice Reyna             (Justice Vance dissenting) Appeal dismissed Opinion delivered and filed December 23, 2008 [CV06]

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. RUDY BARRIGA, Petitioner. No. 1 CA-CR 15-0816 PRPC FILED 5-18-2017 Petition for Review from the Superior Court in Maricopa County No. CR2013-433449-002 The Honorable Sam J. Myers, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Gerald R. Grant Counsel for Respondent Rudy Barriga, Florence Petitioner  STATE v. BARRIGA Decision of the Court MEMORANDUM DECISION Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined. M c M U R D I E, Judge: ¶1 Rudy Barriga petitions this court for review from the dismissal of his petition for post-conviction relief. FACTS AND PROCEDURAL BACKGROUND ¶2 In 2014, Barriga pled guilty to two amended counts of attempted molestation of a child and one count of sexual conduct with a minor; all dangerous crimes against children. The superior court imposed a sentence of twenty years’ imprisonment to be followed by two lifetime probation tails. Barriga filed a timely pro per “Of-Right Rule 32 Post- Conviction Relief” which the superior court dismissed. It is from this dismissal that Barriga seeks relief. We have considered the petition for review and, for the reasons stated, grant review but deny relief. ¶3 Barriga’s petition for post-conviction relief raised a claim of ineffective assistance of counsel alleging that he did not enter the guilty plea knowingly, intelligently, and voluntarily based on three grounds: (1) trial counsel failed to advise Barriga of the court’s “order to hold a settlement conference or about a Donald advisement”; (2) trial counsel failed to advise Barriga about “specific doubts about the evidence that was ‘provided’ to the police department”; and (3) trial counsel failed to advise Barriga of three prior plea offers “that were for less prison time than [he] ultimately received.” ¶4 The superior court dismissed Barriga’s petition for post-conviction relief finding that he had no constitutional right to a settlement conference and that when he accepted the plea offer, the settlement conference and Donald advisory became unnecessary. See State v. Donald, 198 Ariz. 406, 414, ¶ 23 (App. 2000). Regarding the “specific doubts about the evidence,” the superior court found Barriga did not explain what he meant, and that by accepting a plea Barriga gave up his opportunity to contest the State’s evidence against him. Further, the superior court found that Barriga failed to demonstrate a colorable claim of 2  STATE v. BARRIGA Decision of the Court ineffective assistance of counsel and failed to support his claim that the plea agreement was not entered knowingly, intelligently, and voluntarily. DISCUSSION ¶5 On review, Barriga claims that the superior court abused its discretion when it found that Barriga did not demonstrate a colorable claim of ineffective assistance of counsel. Barriga also claims the factual basis to the guilty plea was contrary to the State’s motion under Arizona Rule of Criminal Procedure 404(B). Further, Barriga faults the superior court for failing to investigate his claims or the evidence presented and for failing to hold an evidentiary hearing. ¶6 A decision as to whether a petition for post-conviction relief presents a colorable claim is to some extent, a discretionary decision for the trial court. State v. D’Ambrosio, 156 Ariz. 71, 73 (1988); State v. Adamson, 136 Ariz. 250, 265 (1983). A claim must have the appearance of validity. State v. Suarez, 23 Ariz. App. 45, 46 (App. 1975). In other words, there must be something in the record that arguably supports the claim. Id. Having considered the issues presented, and the facts and law argued, this court finds that Barriga has not met his burden. ¶7 Regarding ineffective assistance of counsel, the burden is on the petitioner seeking post-conviction relief to show ineffective assistance of counsel, and the showing must be that of a provable reality, not mere speculation. State v. Rosario, 195 Ariz. 264, 268, & 23 (App. 1999). To demonstrate ineffective assistance of counsel, a defendant is required to establish both that counsel’s performance fell below an objectively reasonable professional standard and that there is a reasonable probability that the deficient performance caused prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). Barriga establishes neither prong of the Strickland standard. He does not provide sufficient facts to substantiate the argument. It is true that ineffective assistance of counsel that leads a defendant to reject a favorable plea and proceed to trial is a cognizable claim. State v. Donald, 198 Ariz. 406, 414, ¶ 20 (App. 2000). However, while Barriga asserts that three plea offers were made, he does not develop or provide evidence of the three pleas he references. Nor does Barriga provide argument to explain why he believes the trial court’s ruling is legally or factually incorrect. Finally, he fails to provide detail and specificity to support the claim that he was prejudiced by trial counsel’s alleged ineffectiveness. In the absence of any developed argument that the court erred by rejecting those claims, we are compelled 3  STATE v. BARRIGA Decision of the Court to deny relief. See State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013) (insufficient argument waives claim on review). ¶8 Entry of a guilty plea waives all non-jurisdictional defects, including ineffective assistance of counsel, other than ineffectiveness about matters directly relating to entry of a guilty plea. State v. Quick, 177 Ariz. 314, 316 (App. 1993). Statements made to the superior court at a change of plea hearing regarding voluntariness are normally binding on a defendant. State v. Hamilton, 142 Ariz. 91, 93 (1984). Here, trial counsel made a factual basis for each count. Barriga agreed that all statements made regarding the factual bases were true and correct. ¶9 Further, it is well established that when a defendant enters into a written plea agreement, he consents to the amendment of the charge against him without the filing of a further charging document. State v. Wilson, 126 Ariz. 348, 352 (App. 1980). Barriga’s allegation that the trial court accepted a factual basis in contradiction to the evidence described in the State’s Rule 404 motion is therefore moot. Notwithstanding the issue’s mootness, the record indicates that this allegation is also factually incorrect. Barriga argues the trial court abused its discretion by accepting evidence for uncharged acts. A review of the record shows the State, in its Motion to Admit Evidence of Other Acts pursuant to Rule 404(B) and (C), detailed the conduct Barriga was alleged to have engaged in. The motion’s description of the events which led to the State’s charging of counts 2 and 3 is not only consistent with the indictment, but also the factual bases presented by trial counsel and agreed to by the State and Barriga. Barriga fails to establish deficient conduct by trial counsel or abuse of discretion by the trial court when it accepted his guilty plea. ¶10 Finally, regarding Barriga’s assertion that the trial court failed to investigate his post-conviction claims and then abused its discretion when no evidentiary hearing was held; the trial court need not conduct an evidentiary hearing based on mere generalizations and unsubstantiated claims of ineffective assistance of counsel. State v. Borbon, 146 Ariz. 392, 399 (1985). Barriga failed to state a colorable claim and therefore, no evidentiary hearing was necessary. Further, Barriga is mistaken in his belief that the trial court was under an obligation to investigate his claims. A petition for review must set forth specific claims, present sufficient argument supported by legal authority, and include citation to the record. Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition must contain “[t]he reasons why the petition should be granted” and either an appendix or specific references to the record, but “shall not incorporate any document by reference, except the appendices”); Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition must state “[t]he 4  STATE v. BARRIGA Decision of the Court issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review”); State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12, n. 4 (App. 2010) (declining to address argument not presented in petition). Barriga failed to meet this burden. CONCLUSION ¶11 Based on the forgoing, while we grant review, we deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 5 

960 F.2d 146 NOTICE: Fourth Circuit I.O.P. 36.6 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.Joseph R. JONES, Plaintiff-Appellant,v.Mason WATERS, Warden, MCI-H, Defendant-Appellee. No. 92-6210. United States Court of Appeals,Fourth Circuit. Submitted: April 6, 1992Decided: April 22, 1992 Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-2083) Joseph R. Jones, appellant pro se. Timothy James Paulus, Assistant Attorney General, Baltimore, Md., for appellee. D.Md. AFFIRMED. Before ERVIN, Chief Judge, and MURNAGHAN and WILLIAMS, Circuit Judges. OPINION PER CURIAM: 1 Joseph R. Jones appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Jones v. Waters, No. CA-91-2083 (D. Md. Jan. 31, 1992). 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. 2 AFFIRMED.

339 So.2d 707 (1976) J.E. MORTON and William E. Morton, Appellants, v. Samy Farouk RIFAI and Maunira Rifai, Appellees. No. BB-352. District Court of Appeal of Florida, First District. December 1, 1976. *708 Jon D. White of Fisher, Bell & White, Pensacola, for appellants. William K. Jennings, Fort Walton Beach, for appellees. BOYER, Chief Judge. In 1974 appellees Rifai sold to appellants Morton a parcel of real estate. In addition to a cash payment, the purchasers assumed an existing mortgage in favor of a federal savings and loan association and executed a promissory note for the balance of the purchase price, secured by a second mortgage encumbering the property. Thereafter, experiencing financial difficulties, the Mortons reconveyed the property to the Rifais but there was no agreement as to the intended affect of the reconveyance. The Rifais thereafter conveyed the property to a third party in return for an assumption of the obligation of the first mortgage in favor of the federal savings and loan association and sued the Mortons for the balance owed on their note. Judgment was entered for the Rifais and this appeal followed. Appellants urge that when the property was reconveyed to appellees a merger was effected. Appellees respond that since they are not seeking to foreclose the mortgage it is immaterial whether or not there was a merger, urging that a merger does not affect the indebtedness on account of the note. Appellees are correct. Normally, there is no implication from the taking of collateral security for the payment of a debt that the creditor must look to it only or primarily for the payment of the debt. (22 Fla.Jur., "Mortgages", § 291) In Florida, a creditor holding a note secured by a mortgage may ignore his security and bring an action on the note. (Florida National Bank and Trust Co. v. Brown, Sup.Ct. Fla. 1950, 47 So.2d 748) Thus, when the Mortons reconveyed the property to the Rifais, there may have been a merger insofar as the second mortgage was concerned, but the promissory note, constituting a separate and distinct agreement, was unaffected by the reconveyance. Nor do the facts of this case reveal an accord and satisfaction. The requisites of an accord and satisfaction are a new agreement which is intended by the parties to substitute for a former agreement. (State Road Department v. Houdaille Industries, Inc., Fla.App. 1st 1970, 237 So.2d 270, 274) The uncontradicted evidence in this case reveals that although appellants apparently were of the view that a voluntary reconveyance of the property would cancel the indebtedness it is clear that there was no agreement to that effect and no meeting of the minds. In fact, appellant J.E. Morton admitted that he merely assumed that if he reconveyed the property to appellees, the promissory note would be forgotten, and that appellees never made any commitment to accept the deed as full satisfaction of the debt. Finally, appellants urge that appellees should not be permitted to recover what appellants term a "deficiency judgment", *709 claiming that the property was resold by appellees without notice to appellants, citing Turk v. St. Petersburg Bank & Trust Co., Fla.App.2nd 1973, 281 So.2d 534. Our examination of the record reveals that the lack of notice issue was raised for the first time on appeal and may not therefore be properly considered by us. AFFIRMED. McCORD and MILLS, JJ., concur.

446 So.2d 1228 (1984) Pam Reeves HEYL v. Cleveland George HEYL, Jr., as Administrator of the Succession of Cleveland George Heyl, III, a/k/a Cleve G. Heyl, III. No. 84-C-0352. Supreme Court of Louisiana. March 16, 1984. Denied.

Slip Op. 00-111 UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: RICHARD W. GOLDBERG, JUDGE TARGET STORES, DIVISION OF HUDSON CORPORATION, Plaintiff, v. Court No. 95-04-00376 (Joined Issue) UNITED STATES, Defendant. OPINION AND ORDER On January 12, 2000, plaintiff Target Stores moved for summary judgment in the above-captioned matter. On March 25, 2000, plaintiff moved the Court to amend its summary judgment motion. On March 31, 2000, defendant United States cross-moved for partial summary judgment. On May 8, 2000, plaintiff responded to defendant’s cross- motion for summary judgment and on May 30, 2000, defendant replied to plaintiff’s opposition to its cross-motion. Upon close review of the submitted motion papers, the Court finds a genuine factual dispute that is material to the resolution of the action. In particular, plaintiff offers evidence, based on the results of a scientific test, that the external surface area of the uppers of certain entries1 are composed of over 90% plastic. Defendant rebuts plaintiff’s claim by directing the Court to its own scientific test that purportedly demonstrates that the external surface area of the uppers of the subject entries are not composed of over 90% plastic. Defendant further points out to the Court that its classification, and all underlying factual determinations, are accorded a presumption of correctness. See 28 U.S.C. § 1 The entries at issue include the following Neo Grande Sandals: girls’ sizes 3, 4, 11, 12 and 13; boys’ sizes 1, 2, 11, 12, and 13; youths’ sizes 3, 4, 5, and 6; men’s Greatland sizes 7, 8, 10, and men’s Omega sizes 8, 11, 12. 2639(a)(1)(1994); United States v. New York Merchandise Co., 58 C.C.P.A. 53, 58, 435 F.2d 1315, 1318 (1970). Although the Court recognizes that the defendant’s classification enjoys a presumption of correctness, the plaintiff has presented substantial contrary facts “tending to prove...that the original classification by the [defendant] was erroneous.” Id.(emphasis added). Thus, there remains a genuine issue of fact to be resolved at trial: whether the external surface area of the uppers of the entries at issue are composed of over 90% plastic. See e.g., Associated Metals and Minerals Corp. v. United States, 77 Cust. Ct. 100, 426 F.Supp. 568 (1976). The issue of fact is material because the composition of the external surface area of the uppers of the entries at issue is dispositive to their classification under the Harmonized Tariff Schedule of the United States (“HTSUS”). At trial, the parties will be required to demonstrate the reliability of the conflicting evidence to determine the composition of the external surface area of the uppers. See Libas Ltd., v. United States, 193 F.3d 1361 (Fed. Cir. 1999). Therefore, summary judgment is not appropriate for this issue. Summary judgment is appropriate, however, with respect to the imported women’s shoes sizes 5, 6, 7, 8, and 9 that the defendant has agreed should be reliquidated under subheading 6402.99.15, HTSUS, with a duty rate of 6% ad valorem. Thus, partial summary judgment is appropriate on this issue. Therefore, upon consideration of plaintiff’s motion for summary judgment and brief in support thereof, defendant’s response; and defendant’s cross-motion for partial summary judgment and brief in support thereof, plaintiff’s response, and defendant’s reply; and upon all other papers; and upon due deliberation, it is hereby ORDERED that partial summary judgment for plaintiff is GRANTED with respect to the imported women’s shoes sizes 5, 6, 7, 8, and 9; ORDERED that the imported women’s shoes sizes 5, 6, 7, 8, and 9 be reliquidated under subheading 6402.19.15, HTSUS, with any refunds payable by reason of this order paid with any interest provided by law; ORDERED that partial summary judgment is DENIED for plaintiff in all other respects; ORDERED that partial summary judgment is DENIED for defendant is all respects; and it is further  ORDERED that plaintiff and defendant confer and jointly submit an amended scheduling order within twenty (20) days of the date of this Order. SO ORDERED. JUDGE Date: August __, 2000 New York, New York 

642 F.3d 876 (2011) Max W. COLL, II, Catherine Joyce-Coll, Charles T. Murphy, Barbara E. Murphy, Haydock H. Miller, Jr., Plaintiffs-Appellants, v. FIRST AMERICAN TITLE INSURANCE COMPANY, New Mexico Public Regulation Commission, Jason Marks, David W. King, Ben R. Lujan, Lynda M. Lovejoy, E. Shirley Baca, New Mexico Department of Insurance, Eric Serna, Old Republic Title Insurance Company, Inc., Commonwealth Land Title Insurance Company, Lawyers Title Insurance Corporation, Transnation Title Insurance *877 Company, Stewart Title Guaranty Company, Fidelity National Title Insurance Company, Chicago Title Insurance Company, Ticor Title Insurance Company, Commerce Title Insurance Company, United General Title Insurance Company, Defendants-Appellees. No. 08-2174. United States Court of Appeals, Tenth Circuit. April 26, 2011. *881 Victor R. Marshall, Victor R. Marshall & Associates, P.C., Albuquerque, New Mexico, for Plaintiffs-Appellants. Charles A. Newman, Sonnenschein Nath & Rosenthal, LLP, St. Louis, MO, (Richard M. Zuckerman, Sonnenschein Nath & Rosenthal, LLP, New York, NY, Jerry Wertheim, Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth, P.C., Santa Fe, NM, David M. Foster, Fulbright & Jaworski, LLP, Washington, D.C., Michael B. Campbell, Holland & Hart LLP, Santa Fe, NM, David Fleischer, Paul, Hastings, Janofsky & Walker LLP, New York, NY, W. Spencer Reid, Thomas C. Bird, Keleher & McLeod, P.A., Albuquerque, NM, Phillip E. Stano and Brian C. Spahn, Sutherland, Washington, D.C., D. James Sorenson, Kemp Smith, LLP, El Paso, TX, Stephen C. Schoettmer, Thompson & Knight, Dallas, TX, and Thomas A. Simons, IV, Faith Kalman Reyes, Simons & Slattery, LLP, Santa Fe, NM, with him on the brief) for Defendants-Appellees. Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges. EBEL, Circuit Judge. In this litigation, Plaintiffs challenge New Mexico's statutory scheme regulating title insurance, arguing it is contrary to state law. Here, Plaintiffs appeal the district court's decision dismissing their claims against several title insurance companies that have complied with this New Mexico law. Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.[1] *882 I. BACKGROUND A. New Mexico Title Insurance Act In New Mexico, "the business of title insurance [is] totally regulated by the state to provide for the protection of consumers and purchasers of title insurance policies and the financial stability of the title insurance industry." N.M. Stat. Ann. § 59A-30-2(B) (2004) (amended 2009).[2] Through the "Title Insurance Act," N.M. Stat. Ann. §§ 59A-30-1 through 59A-30-15 ("Act"), the New Mexico legislature "provide[s] a comprehensive body of law for the effective regulation and active supervision of the business of title insurance transacted within" the state. Id. § 59A-30-2(A). The Act requires the state superintendent of insurance, after conducting a public hearing at least once each year, to establish premium rates insurers can charge for title insurance. See id. §§ 59A-30-4, 59A-30-6, 59A-30-8.[3] Those rates "shall not be excessive, inadequate or unfairly discriminatory and shall contain an allowance permitting a profit that is not unreasonable in relation to the riskiness of the business of title insurance." Id. § 59A-30-6(C). "A person aggrieved by an order of the superintendent promulgating rates under the [Act] shall have the right[]" first to an administrative appeal before the New Mexico Public Regulation Commission ("PRC") and then to review in state court. Id. §§ 59A-17-34 to -35, 59A-30-9. The superintendent also establishes what coverage a title insurer can offer; and the Act mandates that title insurers use only forms promulgated by the superintendent to offer that coverage. See id. §§ 59A-30-4, 5; see also Lisanti v. Alamo Title Ins. of Tex., 132 N.M. 750, 55 P.3d 962, 964 (2002). See generally N.M.Code R. § 13.14.18 (setting forth title insurance forms). New Mexico's pervasive regulation of title insurance differs significantly from its regulation of other types of insurance under its general insurance code. "[I]n general," New Mexico's Insurance Code "permit[s] and encourage[s] ... independent action by and reasonable price competition among insurers" "as an effective way to produce rates" that are not "excessive, inadequate or unfairly discriminatory." N.M. Stat. § 59A-17-3(A)(1)-(2). Regarding premium rates for other types of insurance, the Insurance Code provides that "[r]ates shall not be excessive, inadequate or unfairly discriminatory, nor shall an insurer charge any rate which if continued will have or tend to have the effect of destroying competition or creating a monopoly." Id. § 59A-17-6(A) (2004). Generally, the Insurance Code requires insurers to file their premium rates with the superintendent of insurance, and then to abide by those filed rates, which the superintendent must approve. See id. §§ 59A-17-9, 59A-17-12-13. Importantly, however, the New Mexico Insurance Code expressly does not apply to title insurers, except to the extent that the Title Insurance Act provides otherwise. See id. § 59A-1-15(H) ("No provision of the Insurance Code shall apply to... title insurers and title insurance agents, as identified in Chapter 59A, Article 30 NMSA 1978, except as stated in that article."); see also id. § 59A-1-17 ("Provisions of the Insurance Code relative to a particular kind of insurance or type of *883 insurer or particular matter shall prevail over provisions relating to insurance in general or insurers in general or to such matter in general."). While the Title Insurance Act has explicitly incorporated a variety of provisions of the Insurance Code, it has not incorporated Article 17's provisions promoting competition among insurers.[4]See id. § 59A-30-14. B. Procedural background This federal litigation represents the consolidation of two putative class actions begun in New Mexico state court, Coll v. First American Title Insurance Co., and Murphy v. Fidelity National Title Insurance Co. Plaintiffs are New Mexico citizens who previously purchased title insurance in New Mexico. They seek to represent a class of thousands of similarly situated purchasers of title insurance covering property located in New Mexico. Plaintiffs sued two groups of defendants: 1) several title insurance companies ("Insurer Defendants")[5], and 2) the New Mexico Public Regulation Commission ("PRC"), the PRC commissioners, the New Mexico Department of Insurance, and the New Mexico superintendent of insurance ("State Defendants").[6] The Insurer Defendants removed both of these state-court actions to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Plaintiffs' complaints alleged generally that the Title Insurance Act violates numerous New Mexico constitutional and statutory provisions precluding price fixing and the creation of monopolies, and that the Insurer Defendants conspired with the insurance superintendent to establish a premium rate that is unreasonably high. Based upon these theories, Plaintiffs sought declaratory and injunctive relief; compensatory, punitive and statutory damages; the Insurer Defendants' disgorgement of their excessive profits; and attorneys' fees and costs. Defendants moved to dismiss Plaintiffs' claims. The district court did so in part, dismissing with prejudice Plaintiffs' claims against the Insurer Defendants under Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Then, without addressing their merits, the district court remanded Plaintiffs' claims against the State Defendants to state court. After these decisions, Plaintiffs *884 filed a motion to amend their complaints, which the district court denied. II. APPELLATE JURISDICTION In this appeal, Plaintiffs challenge both the district court's decision to dismiss their claims against the Insurer Defendants and the district court's denial of leave to amend the complaints. This Court has jurisdiction to review the former, but not the latter. On April 21, 2008, the district court dismissed Plaintiffs' claims against the Insurer Defendants with prejudice and remanded to state court all of Plaintiffs' remaining claims asserted against the State Defendants. This decision was final and appealable under 28 U.S.C. § 1291 because "it end[ed] the litigation on the merits and [left] nothing for the court to do but execute the judgment." N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 697 (10th Cir.2009); see also Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n. 1 (10th Cir.2000) (holding district court's decision dismissing federal claims was final, notwithstanding that court remanded remaining state-law claims to state court). The district court, however, did not at that time enter a separate judgment under Fed.R.Civ.P. 58. Before the district court did so several months later, Plaintiffs, on May 20, both moved to amend their complaints and filed a notice of appeal from the April 21, 2008, order. A party can file a motion to amend the complaint after the district court grants a motion to dismiss. See Triplett v. LeFlore County, 712 F.2d 444, 445-47 (10th Cir. 1983) (reversing district court's implicit denial of motion to amend raised in post-dismissal motion seeking reconsideration); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §§ 1488-1489 (2010). When a party does so, this court treats such a motion as one made under either Fed. R.Civ.P. 59 or 60, depending upon when the motion is filed. See Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1238 (10th Cir.2006) (treating motion to amend, filed after the time to file a Rule 59 motion, as a Rule 60 motion); Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1183 (10th Cir.2000) (treating motion to amend filed within the time to file a Rule 59 motion as such a motion). A timely filed Rule 59 motion (or a Rule 60 motion filed within twenty-eight days of the entry of judgment) will toll the time to file a notice of appeal. See Fed. R.App. P. 4(a)(4)(A)(v)-(vi). Thus, Plaintiffs' May 20 notice of appeal was premature for two reasons: because it was filed prior to the entry of a Rule 58 judgment and because Plaintiffs had filed a timely tolling motion seeking to amend their complaints. That premature notice of appeal ripened after the district court entered the Rule 58 judgment, on June 25, 2008,[7] and then denied Plaintiffs' motion to amend on June 27, 2008. See Fed. R.App. P. 4(a)(2) ("A notice of appeal filed after the court announces a decision or order— but before the entry of the judgment or order—is treated as filed on the date of and after the entry."); Rule 4(a)(4)(B)(i) ("If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A) [including Rule 59 and 60 motions]—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing *885 of the last such remaining motion is entered."); see also B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1295 (10th Cir.2008) (holding premature notice of appeal ripened when district court resolved remaining claims); Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1244-45 (10th Cir.2007) (concluding premature notice of appeal ripened when the district court resolved the tolling motion). After the May 20 notice of appeal ripened, it was sufficient to invoke this court's jurisdiction to review the district court's April 21 order dismissing Plaintiffs' claims against the Insurer Defendants. But, in order to perfect an appeal from the district court's later (June 27) decision denying Plaintiffs' post-dismissal motion to amend, Plaintiffs had to file a second notice of appeal: A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A) [including motions made under Rule 59 or 60], ... must file a notice of appeal, or an amended notice of appeal—in compliance with [Fed. R.App. P.] 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion. Fed. R.App. P. 4(a)(4)(B)(ii); see also Ysais v. Richardson, 603 F.3d 1175, 1179 (10th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 163, 178 L.Ed.2d 97 (2010); Laurino v. Tate, 220 F.3d 1213, 1219 (10th Cir.2000). Plaintiffs did file a second notice of appeal, on July 29, 2008. But, for several reasons, that second notice of appeal was not effective to give us jurisdiction to review the denial of Plaintiffs' motion to amend. First, the second notice of appeal was untimely when measured from the district court's decision denying the motion to amend, entered on June 27, 2008. Plaintiffs did not file their second notice of appeal until thirty-one days later, on July 29. That notice of appeal, therefore, was one day late. See Fed. R.App. P. 4(a)(1)(A). Second, the July 29 notice of appeal did not comply with Fed. R.App. P. 3(c)(1)(B), which requires that the notice of appeal "designate the judgment, order, or part thereof being appealed." The July 29 notice of appeal was expressly taken from the district court's entry of a second Rule 58 judgment, which occurred on June 30, 2008. But this second judgment was identical to the first judgment the court entered five days earlier and, thus, it explicitly pertained only to the original April 21 order dismissing Plaintiffs' claims against the Insurer Defendants. The July 29 notice of appeal did not mention the district court's decision denying Plaintiffs' motion to amend the complaints. Further, because the June 30 judgment was identical to the judgment the court first entered June 25, that second judgment did not restart the time to file a notice of appeal from the denial of Plaintiffs' motion to amend. See Fed. Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 97 L.Ed. 245 (1952) ("[T]he mere fact that a judgment previously entered has been reentered... in an immaterial way does not toll the time within which review must be sought."); Bridge v. U.S. Parole Comm'n, 981 F.2d 97, 102 (3d Cir.1992) ("When a court reenters a judgment without altering the substantive rights of the litigants, the entry of the second judgment does not affect the time within which a party must appeal the decisions made in the first order."); Offshore Prod. Contractors, Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229 (5th Cir.1990) (applying Minneapolis-Honeywell), superseded by rule on other grounds recognized by Catz v. Chalker, 566 F.3d 839, 841 n. 1 (9th Cir.2009). *886 For these reasons, Plaintiffs failed to file a timely notice of appeal from the district court's decision denying Plaintiffs' post-dismissal motion to amend their complaint. "This court can exercise jurisdiction only if a notice of appeal is timely filed. A timely notice of appeal is both mandatory and jurisdictional." Allender, 439 F.3d at 1239 (internal quotation marks and citation omitted). Therefore, we do not have jurisdiction to review the district court's decision denying Plaintiffs' motion to amend. We, thus, consider here only the district court's decision dismissing with prejudice Plaintiffs' claims asserted against the Insurer Defendants. III. STANDARD OF REVIEW This court reviews de novo the district court's Fed.R.Civ.P. 12(b)(6) dismissal, accepting as true all of the well-pled factual allegations and asking "whether it is plausible that the plaintiff[s] [are] entitled to relief." Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010). Because the claims at issue here are based solely on New Mexico law, this "court's task is ... to ascertain and apply the state['s] law." Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665 (10th Cir.2007) (internal quotation marks omitted). In doing so, we follow the most recent decisions of the state's highest court. Where no controlling state decision exists, [we] must attempt to predict what the state's highest court would do.... [We] may seek guidance from decisions rendered by lower courts in the relevant state, appellate decisions in other states with similar legal principles, district court decisions interpreting the law of the state in question, and the general weight and trend of authority in the relevant area of law. Ultimately, however, the Court's task is to predict what the [New Mexico] [S]upreme [C]ourt would do. Our review of the district court's interpretation of state law is de novo. Id. at 665-66 (internal quotation marks and citations omitted). IV. DISCUSSION A. New Mexico's "filed rate" doctrine precluded Plaintiffs' claims seeking damages and similar relief from the Defendant Insurers for charging excessive premiums Plaintiffs contend that the premium rate that the state superintendent of insurance established for title insurance in New Mexico is excessive and unreasonably high.[8] Furthermore, Plaintiffs allege that this rate is the result of the Insurer Defendants acting in concert with the State Defendants to fix prices for title insurance, and that the Insurer Defendants conspired with each other and Superintendent of Insurance Eric Serna to bribe Serna to set unreasonably high title insurance rates. We agree with the district court that New Mexico's "filed rate" doctrine precluded Plaintiffs' claims against the Insurer Defendants to the extent Plaintiffs sought money damages as relief for excessive title insurance premiums. 1. "Filed rate" doctrine precluded Plaintiffs' claims for damages generally New Mexico's "filed rate" doctrine provides that "any filed rate—that is, one approved by the governing regulatory agency—[is] per se reasonable and unassailable in judicial proceedings brought by ratepayers." Valdez v. State, 132 N.M. *887 667, 54 P.3d 71, 74-75 (2002) (internal quotation marks and alterations omitted); see also Summit Props., Inc. v. Pub. Serv. Co. of N.M., 138 N.M. 208, 118 P.3d 716, 723-24 (2005). "[T]he heart of the filed rate doctrine is not that the rate mirrors a competitive market, nor that the rate is reasonable or thoroughly researched, it is that the filed rate is the only legal rate." Valdez, 54 P.3d at 75. "The policy behind the filed rate doctrine is to prevent price discrimination[,] to preserve the role of agencies in approving rates and to keep courts out of the rate-making process." Id. This doctrine precluded Plaintiffs' claims against the Insurer Defendants for damages relief, including claims seeking restitution, recovery for unjust enrichment and disgorgement of the excessive amounts these Insurer Defendants charged for title insurance premiums sold at the rate set by the superintendent of insurance. See id. at 74-75 (holding "filed rate" doctrine precluded claims for damages challenging rates for collect telephone calls made from state prisons, which were set by the PRC and were higher than those charged to the public generally).[9] 2. The "filed rate" doctrine also precluded Plaintiffs' damages claims asserted against the Insurer Defendants based upon allegations of conspiracy and bribery to set excessive rates for title insurance Plaintiffs further alleged that the Insurer Defendants conspired with and bribed Superintendent of Insurance Eric Serna to set excessive rates for title insurance. More specifically, Plaintiffs alleged in one of their complaints: *888 72. Defendant insurance companies and defendant Serna have conspired to evade or violate NMSA 1978, § 1-19-34.2 [prohibiting a public officer or employee who works for a regulatory office to solicit funds from an entity regulated by that agency] by using Con Alma Health Foundation, Inc., a purported private foundation. Until he was recently forced by the [PRC] to resign from Con Alma, defendant Serna effectively directed and controlled Con Alma. Defendant Serna or his agents solicited contributions for Con Alma from entities or persons regulated by the Insurance Department, including the defendant insurance companies. 73. In 2003, unidentified persons or entities affiliated with the defendant insurance companies contributed at least $21,750 to Con Alma. The exact identity of these contributors is not currently known to plaintiffs, because Con Alma's contribution report identifies them only as "Title Insurance Industry in NM, 2155 Louisiana Blvd., # 4000, Albuquerque NM 87110." The current occupant of those premises is LandAmerica Albuquerque Title Company, which is a division or subsidiary of LandAmerica Financial Group, Inc. The defendants Commonwealth Land Title Insurance Company, Lawyers Title Insurance Corporation, and Transnation Title Insurance Company are subsidiaries of LandAmerica Financial Group. 74. In 2004, unidentified persons or entities affiliated with the defendant insurance companies contributed at least $26,200 to Con Alma. The exact identity of these contributors is not currently known to plaintiffs, because Con Alma's contributions report identifies them only as "Title Insurance Industry of NM." 75. A primary purpose of these contributions was to influence defendant Serna, in his capacity as Superintendent of Insurance, to set unreasonably high rates for title insurance, and to restrain competition as to the price and terms of title insurance in New Mexico. 76. Using improper means and methods, defendant title insurance companies have conspired among themselves and with defendant Serna to violate the laws of New Mexico as set forth herein. (Aplt.App. at 529-30, ¶¶ 72-76.) Because this matter comes to us on the district court's ruling on Defendants' motions to dismiss the complaints, we must accept these allegations as true. See Bixler, 596 F.3d at 756. Even so, the "filed rate" doctrine still barred Plaintiffs' claims against the Insurer Defendants for damages. Although New Mexico courts have not yet addressed the question, courts in numerous other jurisdictions have reached the same conclusion in similar or at least analogous situations. See H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 486, 488-92 (8th Cir.1992) (holding the "filed rate" doctrine barred claims brought by purchasers of telephone services alleging Northwestern Bell had bribed the Minnesota Public Utilities Commission ("PUC") in order to influence the telephone rates the PUC set in Minnesota).[10] Under this authority, *890 "the underlying conduct does not control whether the filed rate doctrine applies. Rather, the focus for determining whether the filed rate doctrine applies is the impact the court's decision will have on agency procedures and rate determinations." Id. at 489. The dispositive question, then, is whether, if plaintiffs succeed on their damages claims, the court's determination will impact the agency's rate determinations. If so, the "filed rate" doctrine will bar the claim. See Crumley, 556 F.3d at 882. That is clearly the case here. Although the New Mexico Supreme Court has not expressly addressed the question, we predict the Court would adopt this line of reasoning, see Wade, 483 F.3d at 665-66, which is consistent with the purposes of the "filed rate" doctrine, to prevent price discrimination and to preserve the role of agencies in approving rates. See Valdez, 54 P.3d at 75. And, although the New Mexico Supreme Court has not expressly addressed whether or not there is a fraud exception to the "filed rate" doctrine, the Court applied the "filed rate" doctrine in Valdez under circumstances that are similar to those alleged here. In Valdez, the plaintiffs alleged that telephone service providers had "entered into illegal agreements" with government correctional facilities, whereby the telephone service providers "were granted exclusive rights to provide collect telephone service at a higher rate than rates provided to the public," in return for paying the corrections facilities "a commission ... calculated on the amount billed to the service provider from collect calls placed by inmates in their facilities." Id. at 74. Under those circumstances, notwithstanding the allegation that these agreements were "illegal," the New Mexico Supreme Court applied the "filed rate" doctrine to preclude the plaintiffs' claims seeking damages for the excessive telephone rate that they had to pay. See id. at 75-76. 3. Plaintiffs' arguments to the contrary are unavailing Plaintiffs argue that [t]he district court ruled that once New Mexico regulators have decided and filed a rate, no one can challenge it, in any court, on any grounds. This sweeping ruling is so overbroad that it strips consumers of any protection under the New Mexico laws, and ousts the judiciary from any role in scrutinizing regulatory decisions for compliance with statutes and the [New Mexico] Constitution. (Aplt. Br. at 43 (internal citation omitted).) Plaintiffs' characterization is inaccurate. The "filed rate" doctrine, applied in this case, prevented Plaintiffs from recouping money damages for already-charged excessive or unreasonable rates. The "filed rate" doctrine, however, does not prevent any ratepayer from challenging the reasonableness of those rates through the administrative process established by the Title Insurance Act, which includes an opportunity for judicial review. See N.M. Stat. Ann. §§ 59A-30-4, -6, -8, -9 (adopting procedures in §§ 59A-17-34, -35) (2004). Nor does the "filed rate" doctrine necessarily preclude claims for injunctive relief, at least to the extent those claims do not implicate the *891 reasonableness of the approved rate for title insurance premiums. Cf. Square D, 476 U.S. at 422 & 422 n. 28, 106 S.Ct. 1922 (recognizing that, while "filed rate" doctrine precluded damages claim under federal antitrust laws, it did not preclude claims for injunctive and declaratory relief); Arsberry v. Illinois, 244 F.3d 558, 562-63 (7th Cir.2001) (noting that "a conspiracy to file (or not file) particular tariffs is not insulated by the filed-rate doctrine from attack under the antitrust laws or other sources of independent rights, provided only injunctive relief is sought" (internal citations omitted)); Dolan v. Fid. Nat'l Title Ins. Co., 365 Fed.Appx. 271, 275 (2d Cir.2010) (unpublished) (noting that "a plaintiff may sue for an injunction designed to put an end to the conspiracy" to set filed rates "so long as that injunction does `not enjoin operation under established rates'" (quoting Georgia v. Pa. R.R., 324 U.S. 439, 455, 65 S.Ct. 716, 89 L.Ed. 1051 (1945))), cert. denied, ___ U.S. ___, 131 S.Ct. 261, 178 L.Ed.2d 139 (2010); Marcus, 138 F.3d at 62-63 (in determining whether "filed rate" doctrine precluded claims for injunctive relief, considering whether requested injunction would implicate either non-discrimination or non-judiciability strand of "filed rate" doctrine). 4. Conclusion as to the application of the "filed rate" doctrine For these reasons, the district court correctly invoked the "filed rate" doctrine to dismiss Plaintiffs' claims for money damages, including their claims seeking restitution, disgorgement of excessive premium amounts, and recovery for unjust enrichment. See Valdez, 54 P.3d at 74-75 (relying on "filed rate" doctrine to preclude claims for "damages, restitution, or imposition of a constructive trust" resulting from rates set by the PRC for telephone calls made by inmates in the state prisons).[11] B. Plaintiffs lack standing to assert a claim for injunctive or declaratory relief against the Insurer Defendants, alleging that the New Mexico Title Insurance Act violates the New Mexico Constitution Plaintiffs allege that New Mexico's Title Insurance Act violates two provisions of the New Mexico Constitution, art. IV, §§ 26, 38.[12] Treating these allegations as claims seeking injunctive and declaratory relief, we conclude Plaintiffs lack standing *892 to assert such claims against the Insurer Defendants.[13] "Standing under Article III is, of course, a threshold issue in every case before a federal court, and diversity claims are no exception." Hutchinson v. Pfeil, 211 F.3d 515, 523 (10th Cir.2000) (internal quotation, alteration, emphasis omitted). To establish constitutional standing under Article III, Plaintiffs "must demonstrate three elements: injury in fact, traceability, and redressability." S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation and Enforcement, 620 F.3d 1227, 1233 (2010). Plaintiffs "must have standing to seek each form of relief in each claim." Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir.2007). In addressing standing at the motion-to-dismiss stage of these proceedings, we "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the [Plaintiffs, as] complaining part[ies]." Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir.2006) (en banc) (internal quotation marks omitted). Even so, Plaintiffs have clearly failed to meet the third requirement of constitutional standing, redressability, so we need not spend any time on the first two standing requirements, injury-in-fact and the traceability of the injury to the Defendants. "[T]he requirement of redressability ensures that the injury can likely be ameliorated by a favorable decision." S. Utah Wilderness Alliance, 620 F.3d at 1233. "The plaintiff must show that a favorable judgment will relieve a discrete injury, although it need not relieve his or her every injury." Nova Health Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir.2005) (on reh'g). Here, Plaintiffs failed to allege that any injury they suffered could be redressed by relief granted on the claims Plaintiffs asserted against the Insurer Defendants. In challenging the constitutionality of a statute, "[t]he redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce [the] challenged statute." Bronson, 500 F.3d at 1111 (addressing pre-enforcement challenge to criminal statute). "[I]t must be the effect of the court's judgment on the defendant that redresses the plaintiff[s'] injury, whether directly or indirectly." Gandy, 416 F.3d at 1159. The Court may not "assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees." Id. (internal quotation marks omitted). Thus, in this case, Plaintiffs had to establish that any declaratory judgment entered against the Insurer Defendants would somehow be binding on the State Defendants, who are the ones charged with enforcing the New Mexico Title Act. Plaintiffs have failed to make such a showing. For this reason, Plaintiffs failed to establish that they have Article III standing to assert their state constitutional claims for prospective relief against the Insurer Defendants. Although the district court dismissed these claims, it did so with, rather than without, prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213 (10th Cir.2006) (holding dismissal for lack of standing should be without prejudice). We, therefore, remand these claims to the district court with directions to vacate its decision dismissing these claims with prejudice and instead to dismiss them without prejudice for lack of standing. See Gandy, 416 F.3d at 1152-53, 1160. *893 C. Plaintiffs failed to state a claim under the New Mexico Antitrust Act Plaintiffs next contend that the Insurer Defendants violated New Mexico's Antitrust Act, N.M. Stat. §§ 57-1-1 through 57-1-19, by both 1) complying with the New Mexico Title Insurance Act and 2) conspiring to bribe Superintendent of Insurance Eric Serna to set excessive premium rates for title insurance.[14] 1. Compliance with the New Mexico Title Insurance Act did not violate the New Mexico Antitrust Act New Mexico's Antitrust Act makes unlawful "[e]very contract, agreement, combination or conspiracy in restraint of trade or commerce, any part of which trade or commerce is within this state." N.M. Stat. § 57-1-1. Further, it is "unlawful for any person to monopolize or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, trade or commerce, any part of which trade or commerce is within" New Mexico. Id. § 57-1-2. But the Antitrust Act specifically exempts from its coverage action taken in compliance with the law: Nothing contained in the Antitrust Act is intended to prohibit actions which are: A. clearly and expressly authorized by any state agency or regulatory body acting under a clearly articulated and affirmatively expressed state policy to displace competition with regulation; and B. actively supervised by the state agency or regulatory body which is constitutionally or statutorily granted the authority to supervise such actions when the agency or regulatory body does not have any proprietary interest in the actions. Id. § 57-1-16. Therefore, the district court did not err in concluding that § 57-1-16 precluded Plaintiffs' antitrust claims asserted against the Insurer Defendants challenging their compliance with the Title Insurance Act. See Valdez, 54 P.3d at 76 (holding N.M. Stat. § 57-1-16 precluded an antitrust claim challenging telephone rates charged for collect calls from inmates in state prisons because the PRC approved those rates); see also Gonzales v. Pub. Serv. Comm'n of N. Mex. (In re Elec. Serv. in San Miguel Cnty.), 102 N.M.529, 697 P.2d 948, 951 (1985) (noting that N.M. Stat. § 57-1-16 "specifically exempts from the Act arrangements that are approved by a regulatory body acting under statutory authority"). 2. The Insurer Defendants did not violate the New Mexico Antitrust Act even if they conspired to bribe the superintendent of insurance Plaintiffs further allege that the Insurer Defendants conspired with each other and with Superintendent of Insurance Eric Serna to bribe him "to set unreasonably high rates for title insurance, and to restrain competition as to the price and terms of title insurance in New Mexico." (Aplt.App. vol. ii at 530, ¶ 75.) Relying on the Noerr-Pennington doctrine,[15] the district *894 court held that, even assuming the truth of these allegations, "such an agreement is insufficient as a matter of law to establish a violation of [New Mexico's] antitrust laws." (Id. at 462-63.) We agree. The Noerr-Pennington doctrine stems from federal antitrust law and exempts from antitrust liability "the conduct of private individuals in seeking anticompetitive action from the government." City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379-80, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). The Noerr-Pennington doctrine is a corollary to the principle that, "[g]enerally, a state's anticompetitive actions are immune from civil antitrust laws. Parker v. Brown, 317 U.S. 341, 350-52, 63 S.Ct. 307, 87 L.Ed. 315 (1943)."[16]Tal v. Hogan, 453 F.3d 1244, 1258 (10th Cir.2006) (emphasis added). In this case, the district court's reliance on the Noerr-Pennington doctrine raises two questions: 1) Would the New Mexico Supreme Court apply a Noerr-Pennington exception to the New Mexico Antitrust Act? And, 2) if so, would that exception preclude Plaintiffs' claims alleging that the Insurer Defendants conspired to bribe Superintendent Serna? a. The New Mexico Supreme Court, if presented with the question, would adopt the Noerr-Pennington doctrine when applying the state's Antitrust Act Although the New Mexico Supreme Court has not yet addressed this question, we predict that the state supreme court would adopt reasoning similar to the federal Noerr-Pennington doctrine when applying New Mexico's Antitrust Act.[17] The New Mexico Antitrust Act is patterned after the federal Sherman Antitrust Act, see Smith Mach.Corp. v. Hesston, Inc., 102 N.M. 245, 694 P.2d 501, 505 (1985), and the state law specifically mandates that, "[u]nless otherwise provided in the [New Mexico] Antitrust Act, the Antitrust Act shall be construed in harmony with judicial interpretations of the federal antitrust laws. This construction shall be *895 made to achieve uniform application of the state and federal laws prohibiting restraints of trade and monopolistic practices," N.M. Stat. § 57-1-15. See Romero v. Philip Morris Inc., 148 N.M. 713, 242 P.3d 280, 289, 291 (2010). New Mexico case law, therefore, recognizes "the duty of the courts to ensure that New Mexico antitrust law does not deviate substantially from federal interpretations of antitrust law." Id. Thus, "[i]n the absence of New Mexico decisions directly on point, [the New Mexico Supreme Court] look[s] to federal cases involving allegations of antitrust arrangements under ... the Sherman Act." Smith, 694 P.2d at 505. Further, the Noerr-Pennington doctrine is based upon the First Amendment, which applies to New Mexico through the Fourteenth Amendment, see Petersen v. Utah Dep't of Corr., 301 F.3d 1182, 1191 (10th Cir.2002). And the New Mexico Constitution, art. II, § 17, similarly protects citizens' right to petition their government. See Am. Ass'n. of People with Disabilities v. Herrera, 690 F.Supp.2d 1183, 1224 (D.N.M.2010) (noting that U.S. Constitution's First Amendment freedoms of speech and association are coextensive with protections provided by New Mexico Constitution, art. II, § 17). Finally, many other states have adopted and apply the Noerr-Pennington doctrine to state antitrust claims, as well as other state-law claims.[18] For these reasons, *896 then, we predict that the New Mexico Supreme Court would adopt the Noerr-Pennington doctrine when applying the New Mexico Antitrust Act. b. The Noerr-Pennington doctrine precluded Plaintiffs' claims asserted under the New Mexico Antitrust Act, which are premised on allegations that the Defendant Insurers conspired to influence, and bribe, the superintendent of insurance to set an excessive premium rate The next question we address is whether the Noerr-Pennington doctrine would preclude Plaintiffs' claims that the Insurer Defendants conspired with each other and with Superintendent of Insurance Serna to bribe Serna to set excessively high title insurance premium rates. We conclude that the answer is yes. In Parker, the Supreme Court held that the federal Sherman Act's proscription of anti-competitive conduct did not apply to government action. See 317 U.S. at 350-52, 63 S.Ct. 307. Later in Noerr, the Court addressed the other side "of the same coin," City of Columbia, 499 U.S. at 383, 111 S.Ct. 1344, concluding that the Sherman Act also did not proscribe private citizens' conduct undertaken to influence government action. See Noerr, 365 U.S. at 135-37, 81 S.Ct. 523. That is so because the purpose of the Sherman Act is to regulate business, not political activity.[19]See id. at 137, 81 S.Ct. 523. This was true, according to Noerr, even if the conduct by which citizens attempted to influence governmental regulation was undertaken for the sole purpose of destroying competition, involved unethical business practices, or was specifically intended to hurt competitors. See id. at 138-45, 81 S.Ct. 523. In fact, Noerr addressed claims of egregious private conduct, including assertions that a number of railroads conspired to engage in a publicity campaign against their competitors in the trucking industry "designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers." Id. at 129-30, 81 S.Ct. 523. In conducting this publicity campaign, the truckers alleged that the railroads' "sole motivation" was to "injure... and eventually to destroy" the truckers as competitors. Id. at 129, 81 S.Ct. 523. To achieve this goal the railroads employed the "third-party technique," which involved making the "publicity matter circulated in the campaign" look like "spontaneously expressed views of independent persons and civic groups when, in fact, it was largely prepared[,] ... produced," and paid for by the railroads. Id. *897 at 130, 81 S.Ct. 523. The railroads counterclaimed, asserting the truckers had undertaken the same type of conduct against the railroads. See id. at 132, 81 S.Ct. 523. Notwithstanding this deceptive and "unethical" business conduct, the Court held that the Sherman Act did not apply to proscribe it. See id. at 140-41, 81 S.Ct. 523. Insofar as [the Sherman] Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and ... a publicity campaign to influence governmental action falls clearly into the category of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Id. In conclusion, Noerr noted that the "fight" between the railroads and the truckers "appears to have been conducted along lines normally accepted in our political system, except to the extent that each group has deliberately deceived the public and public officials. And that deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned." Id. at 144-5, 81 S.Ct. 523. Although Noerr addressed private citizens' attempts to influence the legislature, later cases extended Noerr's reasoning to citizens' attempts to influence other government bodies or officials, including those in the executive branch and the courts. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Pennington, 381 U.S. at 669-70, 85 S.Ct. 1585; Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885, 888 n. 2 (10th Cir. 2000) (en banc) (citing California Motor Transp., 404 U.S. 508, 92 S.Ct. 609, and Pennington, 381 U.S. 657, 85 S.Ct. 1585). More recently, the Supreme Court, relying on its reasoning in Noerr, held that the Sherman Act did not proscribe private citizens' conduct undertaken to influence government action, even if that conduct involved conspiracy or bribery. In City of Columbia, a jury found that a billboard company conspired with city officials to obtain legislation that protected the billboard company's monopolization of the billboard market within the city and that restrained the business of a competitor billboard company. See 499 U.S. at 368-69, 111 S.Ct. 1344. Nevertheless, the Supreme Court held that the Sherman Act did not apply to such conduct, which was undertaken to influence governmental action. See id. at 384, 111 S.Ct. 1344. In reaching this conclusion, the Court first rejected a conspiracy exception to Parker state-action immunity. See id. at 374-75, 111 S.Ct. 1344. "Since it is both inevitable and desirable that public officials often agree to do what one or another group of private citizens urges upon them, such an exception would virtually swallow up the Parker rule: All anticompetitive regulation would be vulnerable to a `conspiracy' charge." Id. at 375, 111 S.Ct. 1344. The Court applied this same reasoning to reject a conspiracy exception to Noerr immunity, too: The same factors which ... make it impracticable or beyond the purpose of the antitrust laws to identify and invalidate lawmaking that has been infected by selfishly motivated agreement with private interests likewise make it impracticable or beyond that scope to identify and invalidate lobbying that has produced selfishly motivated agreement with public officials. It would be unlikely that any effort to influence legislative action could succeed unless one or more members of the legislative body became... co-conspirators in some sense with the private party urging such action. *898 Id. at 383-84, 111 S.Ct. 1344 (internal quotation marks omitted). City of Columbia went further, rejecting exceptions to Parker and Noerr immunity even for conspiracies involving "corruption." See id. at 376-79, 383, 111 S.Ct. 1344. A conspiracy exception narrowed along such vague lines is similarly impractical. Few governmental actions are immune from the charge that they are "not in the public interest" or in some sense "corrupt." ... The fact is that virtually all regulation benefits some segments of the society and harms others; and that it is not universally considered contrary to public good if the net economic loss to the losers exceeds the net economic gain to the winners. Id. at 377, 111 S.Ct. 1344. Notwithstanding this language, Plaintiffs suggest that we carve out a special exclusion to Noerr-Pennington when the corruption involves some ill-defined and open-ended concept of bribery or other acts that might violate state or federal law. That approach would, of course, vitiate Noerr-Pennington almost entirely because there is hardly any lobbying effort that is not open to at least a charge of some illegal dealings when important economic interests are at stake. Indeed that is illustrated in this very case, as Plaintiffs' allegations here of bribery are vague and ambiguous. The Supreme Court in City of Columbia understood that risk and held that corruption—and even bribery explicitly—would not vitiate a claim of Noerr-Pennington immunity. The Court said: Such unlawful activity has no necessary relationship to whether the governmental action is in the public interest. A mayor is guilty of accepting a bribe even if he would and should have taken, in the public interest, the same action for which the bribe was paid.... To use unlawful political influence as the test of legality of state regulation undoubtedly vindicates (in a rather blunt way) principles of good government. But the [antitrust] statute we are construing is not directed to that end. Congress has passed other laws aimed at combating corruption in state and local governments. "Insofar as the Sherman Act sets up a code of ethics at all, it is a code that condemns trade restraints not political activity." City of Columbia, 499 U.S. at 378-79, 111 S.Ct. 1344 (quoting Noerr, 365 U.S. at 140, 81 S.Ct. 523) (internal citations, quotations marks, alterations omitted). Turning, then, to the specific antitrust claims at issue here, Plaintiffs first alleged that the Insurer Defendants conspired with each other and with Superintendent of Insurance Serna to get Serna to set excessive premium rates for title insurance. Such an antitrust claim, based upon allegations of conspiracy generally, is clearly precluded by Noerr-Pennington. See City of Columbia, 499 U.S. at 374-75, 379-80, 382-84, 111 S.Ct. 1344; see also Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988); GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 883-84 (10th Cir.2005) (applying City of Columbia and noting that, "[f]or purposes of Noerr-Pennington, there is no distinction between petitioning government officials and conspiring with them"). Plaintiffs went further, however, alleging at least generally that the Insurer Defendants conspired to bribe Superintendent Serna to set excessive premium rates for title insurance. Assuming these allegations to be true, as we must at the motion-to-dismiss stage of these proceedings, see Bixler, 596 F.3d at 756, it is, nevertheless, clear from our preceding discussion that there is no bribery exception *899 to Noerr-Pennington immunity.[20]See City of Columbia, 499 U.S. at 378-80, 382-84, 111 S.Ct. 1344. In rejecting such an exception, City of Columbia noted that even if the [immunity-]invalidating "conspiracy" is limited to one that involves some element of unlawfulness (beyond mere anticompetitive motivation), the invalidation would have nothing to do with the policies of the antitrust laws. In Noerr itself, where the private party "deliberately deceived the public and public officials" in its successful lobbying campaign, we said that "deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned." Id. at 383-84, 111 S.Ct. 1344 (internal quotation marks omitted). "The remedy for such conduct rests with laws addressed to it and not with courts looking behind sovereign state action at the behest of antitrust plaintiffs." Armstrong Surgical Ctr., Inc. v. Armstrong Cnty. Mem'l Hosp., 185 F.3d 154, 162 (3d Cir.1999); see also City of Columbia, 499 U.S. at 378-79, 111 S.Ct. 1344 (addressing state-action immunity); Trigen-Okla. City Energy Corp. v. Okla. Gas & Elec. Co., 244 F.3d 1220, 1227 (10th Cir.2001) (noting there is no bribery exception to state-action immunity); Armstrong Surgical Ctr., 185 F.3d at 162 ("Liability for injuries caused by ... state action [that inflicts anticompetitive injuries] is precluded even where it is alleged that a private party urging the action did so by bribery, deceit or other wrongful conduct that may have affected the decision making process."); Astoria Entm't, Inc. v. Edwards, 159 F.Supp.2d 303, 322-25 (E.D.La. 2001) (holding Noerr-Pennington precluded antitrust claims alleging "bribery, extortion and corruption"), aff'd, 57 Fed. Appx. 211 (5th Cir. Jan.7, 2003) (unpublished); Bayou Fleet, Inc. v. Alexander, 68 F.Supp.2d 734, 744 n. 10 (E.D.La.1999) (noting there was no conspiracy exception to the Noerr-Pennington doctrine in case where Plaintiff alleged bribery), aff'd, 234 F.3d 852 (5th Cir.2000); cf. Blank, 216 Cal.Rptr. 718, 703 P.2d at 63-69 (holding, even prior to City of Columbia, that Noerr-Pennington precluded claims under California antitrust law alleging bribery of government officials); Cow Palace, Ltd. v. Associated Milk Producers, Inc., 390 F.Supp. 696, 700-04 (D.Colo.1975) (holding, again prior to City of Columbia, that allegations of bribery and illegal campaign contributions did not automatically strip defendant of Noerr-Pennington immunity). In arguing to the contrary, Plaintiffs rely on Astoria Entertainment, Inc. v. DeBartolo, 12 So.3d 956 (La.2009), but that case is unhelpful to them and, in fact, supports instead the conclusion we reach here. Astoria Entertainment involved allegations that the defendants bribed a former Louisiana governor to have him influence the state Gaming Commission to grant the defendants, and not others, a license to operate a riverboat casino. 12 So.3d at 958-59. Plaintiff Astoria Entertainment, which sought, but did not receive, the license that the Gaming Commission awarded to the defendants, first sued the defendants in federal court, alleging both federal and state claims. See id. Most relevant to us, the federal court dismissed the federal antitrust claims based upon Noerr-Pennington immunity, notwithstanding the bribery allegations. See Astoria Entm't, 159 F.Supp.2d at 322-25. *900 In dismissing those antitrust claims, the federal court held, as we do here, that "alleged bribery, extortion and corruption... do not remove a case from the ambit of Parker or Noerr-Pennington." Id. at 322. The federal court then dismissed the pendent state-law claims without prejudice. See id. at 329. After that, Astoria Entertainment brought those state-law claims in Louisiana state court. In that state-court action, the Louisiana Supreme Court declined to apply Noerr-Pennington immunity to the state-law claims, which were not based on antitrust theories. See Astoria Entm't, 12 So.3d at 959 n. 7, 963-67. The Louisiana Court, therefore, refused to apply Noerr-Pennington immunity outside the antitrust context. See id. at 963-67. But that is not the question presented by this case, where we, like the federal court in Astoria Entertainment, apply Noerr-Pennington only within the antitrust context.[21] 3. Conclusion as to Plaintiffs' state antitrust claims For the foregoing reasons, the district court correctly dismissed Plaintiffs' claims asserted under the New Mexico Antitrust Act against the Insurer Defendants. D. Plaintiffs failed to state claims against the Insurer Defendants under the New Mexico Unfair Practices Act Plaintiffs alleged that the Insurer Defendants violated the New Mexico Unfair Practices Act, N.M. Stat. §§ 57-12-1 through 57-12-26 ("UPA"). That act makes unlawful "[u]nfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce." N.M. Stat. § 57-12-3. Like the New Mexico Antitrust Act, however, the UPA does not "apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico ..., but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the Unfair Practices Act." Id. § 57-12-7 (emphasis added); see also Quynh Truong v. Allstate Ins. Co., 147 N.M. 583, 227 P.3d 73, 81-82 (2010). The New Mexico Title Insurance Act "expressly permitted" the practices which Plaintiffs' challenge here—charging the same premium, offering the same coverage, using state-mandated forms to sell title insurance, and charging premium rates approved by the superintendent of insurance. See Valdez, 54 P.3d at 74-76 (holding N.M. Stat. § 57-12-7 precluded claims challenging rates charged for collect calls made by inmates in New Mexico prisons because the PRC expressly permitted those rates as part of its regulation of telephone service). The district court, therefore, did not err in dismissing Plaintiffs' claims asserted against the Insurer Defendants under the Unfair Practices Act. E. Plaintiffs failed to state claims against the Insurer Defendants under the New Mexico Unfair Insurance Practices Act Plaintiffs further alleged that the Insurer Defendants violated the New *901 Mexico Unfair Insurance Practices Act, N.M. Stat. §§ 59A-16-1 through 59A-16-30 ("UIPA"). "A purpose of this [act] is to regulate trade practices in the insurance business and related businesses . . . by defining, or providing for determination of, practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices so defined or determined." N.M. Stat. § 59A-16-2. Plaintiffs alleged that the Insurer Defendants violated the UIPA because they and their agents have engaged in unfair methods of competition and unfair or deceptive acts or practices, in violation of § 59A-[16]-3. They have also engaged in coercive conduct in violation of § 59A-16-14. They have engaged in illegal rebates and inducements in violation of § 59A-16-15. They have violated the provisions of § 59A-16-17, regarding inducements. They have given rebates in violation of § 59A-16-18. They have engaged in monopolistic practices in violation of § 59A-16-19. They have engaged in conduct which violates § 59A-16-25. (Aplt.App. vol. ii at 529, ¶ 69.) The UIPA, however, applies to title insurance only to the extent it does not conflict with the New Mexico Title Insurance Act. See N.M. Stat. § 59A-30-14(M). In light of that, Plaintiffs cannot state a cause of action under the UIPA based on allegations that the Insurer Defendants complied with the terms of the Title Insurance Act. Further, Plaintiffs did not allege facts involving improper rebates or inducements. The district court, therefore, did not err in dismissing Plaintiffs claims' asserted against the Insurer Defendants under the UIPA.[22] F. Plaintiffs failed to state claims against the Insurer Defendants under the New Mexico Price Discrimination Act Plaintiffs mention the New Mexico Price Discrimination Act ("PDA"), N.M. Stat. §§ 57-14-1 through 57-14-9, only in the prayers for relief included in their complaints, seeking damages under N.M. Stat. § 57-14-8(a). This claim fails as a matter of law because "the prayer for relief is no part of the cause of action and. . . the parties are entitled to such relief and to such judgment as the complaint . . . makes out." Daniels v. Thomas, 225 F.2d 795, 797 & n. 5 (10th Cir.1955) (applying federal and Colorado law). Further, Plaintiffs fail to explain on appeal how the allegations in their complaints stated a claim under the PDA. G. Plaintiffs failed to state claims for civil conspiracy Plaintiffs contend they alleged a claim against the Insurer Defendants under New Mexico common law for civil conspiracy. To the extent Plaintiffs did so, and to the extent such a claim could survive application of the "filed rate" doctrine, Plaintiffs have failed to state such a claim upon which relief can be granted. To state such a claim, Plaintiffs must allege: "(1) that a conspiracy between two or more individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to the conspiracy; and (3) that the plaintiff[s] [were] damaged as a result of such acts." Seeds v. Lucero, 137 N.M. 589, 113 P.3d 859, 863 (2005) (internal quotation marks omitted). "Unlike a conspiracy in the criminal context, a *902 civil conspiracy by itself is not actionable, nor does it provide an independent basis for liability unless a civil action in damages would lie against one of the conspirators." Id. at 864 (internal quotation marks omitted); see also Armijo v. Nat'l Sur. Corp., 58 N.M. 166, 268 P.2d 339, 346 (1954). Because Plaintiffs have failed to state any claim for damages against the Insurer Defendants, they have also failed to state a claim against them for civil conspiracy. V. CONCLUSION For the foregoing reasons, we AFFIRM the district court's decision to dismiss Plaintiffs' claims asserted against the Insurer Defendants, but we REMAND Plaintiffs' state constitutional claims asserted against those Defendants to the district court with directions to dismiss those claims without prejudice for lack of standing. NOTES [1] Plaintiffs have asked this Court to certify the questions of state law at issue here to the New Mexico Supreme Court. See generally N.M. Stat. Ann. §§ 39-7-1 through 39-7-13 (providing for certification). We deny that motion, in part because Plaintiffs never requested certification in the district court until after that court dismissed with prejudice their claims against the Insurer Defendants. See Zurich Am. Ins. Co. v. O'Hara Reg'l Ctr. for Rehab., 529 F.3d 916, 926 (10th Cir.2008) (noting that "[t]his court generally will not certify questions to a state supreme court when the requesting party seeks certification only after having received an adverse decision from the district court"). [2] The New Mexico legislature amended the Title Insurance Act in 2009, after Plaintiffs filed this action. The statutory provisions discussed above are those in effect when Plaintiffs filed this suit. [3] In 2009, the New Mexico legislature amended the Act to require such hearings only during odd-numbered years. See N.M. Stat Ann. § 59A-30-8(A) (2009). [4] For these reasons, Plaintiffs' heavy reliance in their appellate briefs on these provisions in Article 17 of the New Mexico Insurance Code is frequently unavailing. So, too, is their reliance on cases decided under the Insurance Code, including Berry v. Federal Kemper Life Assurance Co., 136 N.M. 454, 99 P.3d 1166 (2004) (addressing certification of class action seeking damages for life insurers' failure to disclose additional cost for policyholders to pay their premiums installments), and Azar v. Prudential Insurance Co., 133 N.M. 669, 68 P.3d 909 (2003) (addressing whether life insurers adequately disclosed to policyholders the additional cost of paying their premiums in installments). [5] The Insurer Defendants include: First American Title Insurance Company, Fidelity National Title Insurance Company, Chicago Title Insurance Company, Commerce Title Insurance Company, Commonwealth Land Title Insurance Company, Lawyers Title Insurance Corporation, Old Republic National Title Insurance Company, Stewart Title Guaranty Company, Ticor Title Insurance Company, Transnation Title Insurance Company, and United General Title Insurance Company. [6] Plaintiffs originally sued Eric Serna in his official capacity as the superintendent of insurance. When another superintendent was appointed, the district court granted the State Defendants' motion to replace Serna in this case with the new superintendent; Plaintiffs do not challenge that substitution on appeal. In light of that order, we have substituted in the caption the current New Mexico superintendent of insurance, John Franchini. See Fed.R.Civ.P. 25(d). [7] Five days later, on June 30, 2008, the district court entered the identical judgment a second time. [8] Plaintiffs challenge the superintendent's interpretation of the Title Insurance Act to require that he set one premium rate. We agree with the district court that the superintendent's interpretation was reasonable. [9] Plaintiffs argue that Valdez is not relevant here because that case dealt with telephone rates set by the PRC, while this case instead deals with insurance rates that are set by the state superintendent of insurance and overseen by the PRC. Plaintiffs further argue In New Mexico, telephone companies are subject to a system of regulated monopolies, administered by the PRC, a special body created by the Constitution itself, see N.M. Const. art. XI, § 2, to protect consumers against natural monopolies like electric utilities, gas utilities, transportation companies, and telephone companies. By contrast, insurance companies are subject to a system of regulated competition, administered by the Insurance Division, which is a purely statutory body which has no constitutional authority. (Aplt. Br. at 44.) Although New Mexico courts do not appear to have yet applied the "filed rate" doctrine specifically to claims brought against insurers, courts in numerous other jurisdictions have applied the "filed rate" doctrine to the insurance industry generally. See Schermer v. State Farm Fire & Cas. Co., 702 N.W.2d 898, 907 (Minn.Ct.App.2005) (citing cases; rejecting argument that "competitive and deregulated nature of the private insurance market and the absence of exclusive jurisdiction of the" Minnesota Department of Commerce precluded application of "filed rate" doctrine to the insurance industry), affd, 721 N.W.2d 307 (Minn.2006); Richardson v. Standard Guar. Ins. Co., 371 N.J.Super. 449, 853 A.2d 955, 963-65 (2004) (agreeing with "considerable weight of authority from other jurisdictions that have applied the filed rate doctrine to ratemaking in the insurance industry," citing cases). In light of this authority, we predict New Mexico courts would apply the "filed rate" doctrine to the pervasively regulated matter of title insurance. Plaintiffs have not shown any reason to reach a different conclusion. Plaintiffs' reliance on the Insurance Code, and specifically N.M. Stat. § 59A-17-3, to argue that "[t]he Insurance Code expressly preserves and promotes competition in insurance" is misplaced. (Aplt. Br. at 45-47.) The Insurance Code specifically provides that "[n]o provision of the Insurance Code shall apply to .. . title insurers and title insurance agents, as identified in Chapter 59A, Article 30 NMSA 1978, except as stated in that article." N.M. Stat. Ann. § 59A-1-15(H) (2004). And, while the Title Insurance Act does incorporate a number of provisions of the Insurance Code, it does not incorporate Article 17 generally nor § 59A-17-3 specifically. See id. § 59A-30-14. [10] See also Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 410, 412-17, 424, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986) (applying "filed rate" doctrine to preclude antitrust claims alleging motor carriers conspired to file excessive rates with the Interstate Commerce Commission, which, upon filing, became the legal rate; relying on Keogh v. Chi. & Nw. Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922)); Crumley v. Time Warner Cable, Inc., 556 F.3d 879, 880-81 (8th Cir.2009) (per curiam) (applying H.J. Inc. and holding "filed rate" doctrine barred claim alleging cable company fraudulently recovered double fees as part of rate filed with and approved by local regulating authority; noting that the "filed rate" doctrine applies regardless of the fact that the "claim involves allegations of fraud"); Wah Chang v. Duke Energy Trading & Mktg., LLC, 507 F.3d 1222, 1224-27 (9th Cir.2007) (applying "filed rate" doctrine to bar claim alleging rate approved by agency was too high because applicant fraudulently manipulated the market, skewing the rate approval process); AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 535 (3d Cir.2006) ("[T]here is no fraud exception to the filed rate doctrine."); Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 932-33 (9th Cir.2002) (applying H.J. Inc. to conclude that, under the circumstances of that case, the "filed rate" doctrine precluded claims alleging fraud before an administrative agency because "[t]he impact of any award of damages ... would be to undermine [the regulatory agency's] ability to regulate rates"); Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1311-13, 1315-17 (11th Cir.2004) (applying "filed rate" doctrine to bar state-law fraud claims that implicate approved rate); Marcus v. AT&T Corp., 138 F.3d 46, 58-59 (2d Cir. 1998) ("Application of the filed rate doctrine in any particular case is not determined by the culpability of the defendant's conduct or the possibility of inequitable results.") (citing cases); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18, 20-22 (2d Cir.1994) (holding there is no exception to the "filed rate" doctrine for a claim alleging that the approved rate is the result of fraud perpetrated on the regulatory agency; noting "every court that has considered the [question] has rejected the notion that there is a fraud exception to the filed rate doctrine") (citing cases); Taffet v. S. Co., 967 F.2d 1483, 1485, 1487-90, 1494-95 (11th Cir.1992) (reh'g en banc) (relying on "filed rate" doctrine to preclude civil claim, asserted under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), alleging utilities obtained rate increase through fraud perpetrated on regulating agency; noting that "[a] regulated entity's alleged fraud does not create a right to a reasonable rate that exists independently of agency action"); Centerpoint Energy, Inc. v. Miller Cnty. Circuit Ct., 370 Ark. 190, 258 S.W.3d 336, 342-43 (2007) (noting Arkansas law has adopted Eighth Circuit's reasoning in H.J. Inc. "that the underlying alleged fraudulent conduct of the defendants did not control whether the fixed-rate doctrine applies"); Gallivan v. AT & T Corp., 124 Cal.App.4th 1377, 21 Cal.Rptr.3d 898, 905-06 (2004) (applying reasoning of H.J. Inc., among others, to hold "filed rate" doctrine barred damages claim alleging fraud); Amundson & Assocs. Art Studio, Ltd. v. Nat'l Council on Comp. Ins., Inc., 26 Kan.App.2d 489, 988 P.2d 1208, 1211-17 (1999) (holding "filed rate" doctrine barred claims that workers' compensation insurers conspired to control insurance rates); Commonwealth ex rel. Chandler v. Anthem Ins. Cos., 8 S.W.3d 48, 50, 53 (Ky.Ct.App.1999) (holding there was no fraud exception to "filed rate" doctrine that would save claims that insurers "had engaged in a fraudulent scheme to charge Kentucky consumers of health insurance inflated premium rates"); Bauer v. Sw. Bell Tel. Co., 958 S.W.2d 568, 570-71 (Mo.Ct.App.1997) (holding "filed rate" doctrine barred claim alleging fraud; noting that "[c]ourts that have considered the fraud issue almost unanimously have rejected the notion that there is a fraud exception to the filed rate doctrine") (internal quotation marks omitted); Guglielmo v. WorldCom, Inc., 148 N.H. 309, 808 A.2d 65, 67, 69-72 (2002) (applying "filed rate" doctrine to bar claims alleging telecommunications companies conspired with prisons to violate state antitrust and consumer protection laws to set excessive rates for collect calls to inmates); Weinberg v. Sprint Corp., 801 A.2d 281, 283-84 (N.J.2002) (holding "filed rate" doctrine bars claim for money damages, asserted against telecommunications carriers, premised on "consumer fraud[] or other bases on which plaintiffs seek to enforce a rate other than the filed rate"); Porr v. NYNEX Corp., 230 A.D.2d 564, 660 N.Y.S.2d 440, 442, 445-46 (N.Y.App.Div. 1997) (noting "there is no general `fraud exception' to the filed rate doctrine," citing cases; further holding that "a consumer's claim, however disguised, seeking relief for an injury allegedly caused by the payment of a rate on file with a regulatory commission, is viewed as an attack upon the rate approved by the regulatory commission. All such claims are barred by the `filed rate' doctrine."); Minihane v. Weissman, 226 A.D.2d 152, 640 N.Y.S.2d 102, 102-03 (N.Y.App.Div. 1996) (holding "filed rate" doctrine barred claim alleging that insurers submitted false and misleading information to superintendent of insurance, thus fraudulently obtaining the filed rate); N.C. Steel, Inc. v. Nat'l Council on Comp. Ins., 347 N.C. 627, 496 S.E.2d 369, 371-75 (1998) (holding "filed rate" doctrine barred claim that workers' compensation insurers withheld evidence from insurance commissioner that caused him to approve an excessive rate, as well as claim that insurers conspired to affect premium rates); Prentice v. Title Ins. Co. of Minn., 176 Wis.2d 714, 500 N.W.2d 658, 659-60, 662 (1993) (applying "filed rate" doctrine to bar claim alleging insurance companies, which were required to file a rate with the state's insurance commissioner, agreed to fix prices of title insurance and related services). But see Cellular Plus, Inc. v. Superior Ct., 14 Cal.App.4th 1224, 18 Cal.Rptr.2d 308, 317-19 (1993) (holding that, under California law, "filed rate" doctrine would not preclude suit for damages by person injured by reason of a price fixing conspiracy even if the fixed prices had been approved by the relevant regulatory agency). [11] Relying on City of Las Cruces v. El Paso Electric Co., 904 F.Supp. 1238 (D.N.M.1995), Plaintiffs assert, contrary to Valdez, that the "filed rate" doctrine cannot preclude their claims for restitution or unjust enrichment. But City of Las Cruces did not address the application of the "filed rate" doctrine, as Valdez did. Further, in declining to dismiss the plaintiff's claim of unjust enrichment in that context, City of Las Cruces specifically held that the City's claim at issue in that case did not implicate the approved rate that the defendant electric company charged its customers, but instead sought to collect a franchise fee the electric company had been paying the City of Las Cruces for the right to use the City's streets, alleys, rights-of-way and other public grounds to provide electricity to its customers in the City. See 904 F.Supp. at 1244, 1246-47. [12] New Mexico Constitution, art. IV, § 26 provides: The legislature shall not grant to any corporation or person, any rights, franchises, privileges, immunities or exemptions, which shall not, upon the same terms and under like conditions, inure equally to all persons or corporations; no exclusive right, franchise, privilege or immunity shall be granted by the legislature or any municipality in this state. And Article IV, § 38 provides that "[t]he legislature shall enact laws to prevent trusts, monopolies and combinations in restraint of trade." [13] To the extent Plaintiffs are instead seeking damages relief on their state constitutional claims, the "filed rate" doctrine would also preclude such relief. [14] Even if the "filed rate" doctrine precluded Plaintiffs' claims for damages asserted under the New Mexico Antitrust Act, but see Valdez, 54 P.3d at 74-76 (addressing damages claims precluded by "filed rate" doctrine separately from claims asserted under the New Mexico Antitrust Act), the Antitrust Act also provides for injunctive relief, as well as costs and attorneys' fees. See N.M. Stat. § 57-1-3(A). The "filed rate" doctrine would not necessarily preclude such relief. Therefore, we need to proceed with the antitrust analysis. [15] See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). [16] New Mexico courts have indicated that the federal "state action immunity," which "implicate[s] the relationship between federal and state governments," is not applicable to cases brought under New Mexico's Antitrust Act. City of Sunland Park v. Macias, 134 N.M. 216, 75 P.3d 816, 823-24 (2003). But the New Mexico Antitrust Act similarly exempts the State from its coverage. See N.M. Stat. § 57-1-1.2 (excepting the State from the Act's definition of "person"). [17] Plaintiffs claim that the New Mexico Supreme Court has already rejected the Noerr-Pennington doctrine in DeVaney v. Thriftway Marketing Corp., 124 N.M. 512, 953 P.2d 277 (1997), overruled on other grounds by Durham v. Guest, 145 N.M. 694, 204 P.3d 19, 24-26 (2009), and Fleetwood Retail Corp. of New Mexico v. LeDoux, 142 N.M. 150, 164 P.3d 31, 39-40 (2007), and in Summit Properties, Inc. v. Public Service Co. of New Mexico, 118 P.3d at 727-28. But those cases are inapposite. In DeVaney, the New Mexico Supreme Court mentioned the Noerr-Pennington doctrine, not in the antitrust context, but instead in considering a malicious abuse of process tort claim. See 953 P.2d at 284 & n. 1. In that context, the New Mexico Supreme Court generally noted, without ruling on the subject, that, because of the importance of the First Amendment right to petition courts for redress "and the potential chilling effect of tort liability" on the exercise of that right, some states apply the Noerr-Pennington doctrine to actions for malicious prosecution and abuse of process. Id. at 284 n. 1. And in Summit Properties, the New Mexico Court of Appeals noted only that the defendant in that case had failed to raise adequately a defense under Noerr-Pennington. See 118 P.3d at 727-28. These decisions certainly do not suggest that the New Mexico Supreme Court would reject application of the Noerr-Pennington doctrine generally, let alone specifically in the antitrust context presented here, nor do they indicate how the New Mexico Supreme Court would apply Noerr-Pennington in other contexts. [18] See Ex Parte Simpson, 36 So.3d 15, 21, 26-28 (Ala.2009) (applying Noerr-Pennington to state tort causes of action); Gunderson v. Univ. of Alaska, 902 P.2d 323, 324, 326-30 (Alaska 1995) (applying Noerr-Pennington to state-law contract claim); Blank v. Kirwan, 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58, 60-61, 63-69 (1985) (applying Noerr-Pennington to California antitrust statute); Zeller v. Consolini, 59 Conn.App. 545, 758 A.2d 376, 378, 380-82 (2000) (applying Noerr-Pennington to state-law tort claim for tortious interference with a business relationship); Sandholm v. Kuecker, 405 Ill.App.3d 835, 347 Ill.Dec. 341, 942 N.E.2d 544, 562-63 (2010) (discussing Illinois courts' application of Noerr-Pennington to some state-law claims), appeal allowed, 239 Ill.2d 589, 348 Ill.Dec. 199, 943 N.E.2d 1109 (2011); Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 353, 355-56 (Iowa 1994) (applying Noerr-Pennington to state tort claim); Grand Cmtys. Ltd. v. Stepner, 170 S.W.3d 411, 412 (Ky.Ct.App. 2004) (applying Noerr-Pennington to state-law tort claims stemming from zoning decisions); Arim v. Gen. Motors Corp., 206 Mich.App. 178, 520 N.W.2d 695, 699-702 (1994) (per curiam) (applying Noerr-Pennington to state-law torts claims); Harrah's Vicksburg Corp. v. Pennebaker, 812 So.2d 163, 171 (Miss.2001) (holding Noerr-Pennington applies to state-law antitrust and tort claims alleging restraint of trade, civil conspiracy and tortious interference); Defino v. Civic Ctr. Corp., 780 S.W.2d 665, 666-71 (Mo.Ct.App.1989) (applying Noerr-Pennington to state antitrust and tort claims); Green Mountain Realty Corp. v. Fifth Estate Tower, LLC, 161 N.H. 78, 13 A.3d 123, 126, 128-31 (2010) (applying Noerr-Pennington doctrine to claim asserted under New Hampshire's Consumer Protection Act); Structure Bldg. Corp. v. Abella, 377 N.J.Super. 467, 873 A.2d 601, 602-03 (2005) (applying Noerr-Pennington to state-law tort claims); Arts4All Ltd. v. Hancock, 25 A.D.3d 453, 810 N.Y.S.2d 15, 16 (N.Y.App.Div.2006) (applying Noerr-Pennington to state-law tort claim); Good Hope Hosp., Inc. v. N.C. Dep't of Health & Human Servs., 174 N.C.App. 266, 620 S.E.2d 873, 877, 881 (2005) (applying Noerr-Pennington to state antitrust and tort claims); Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 753 (R.I.2004) (noting Rhode Island Supreme Court has adopted the Noerr-Pennington test and has applied it to common law torts); Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., 336 N.W.2d 153, 159 (S.D.1983) (applying Noerr-Pennington to state antitrust claims, but holding it did not apply in the particular circumstances of this case); RRR Farms, Ltd. v. Am. Horse Prot. Ass'n, Inc., 957 S.W.2d 121, 126-29 (Tex.App.1997) (applying Noerr-Pennington to state-law tort claims); Anderson Dev. Co. v. Tobias, 116 P.3d 323, 332-33 (Utah 2005) (noting that Noerr-Pennington applies to state antitrust and tort claims); Titan Am., LLC v. Riverton Inv. Corp., 264 Va. 292, 569 S.E.2d 57, 61-62 (2002) (applying Noerr-Pennington to state-law claims for conspiracy and business torts); Perrine v. E.I. du Pont de Nemours & Co., 225 W.Va. 482, 694 S.E.2d 815, 834, 884 n. 78 (2010) (noting Noerr-Pennington generally applied to state-law claims, but holding that doctrine did not apply in particular circumstances of this case); see also Astoria Entm't, Inc. v. DeBartolo, 12 So.3d 956, 964 (La.2009) (suggesting Noerr-Pennington would apply generally in Louisiana courts, but concluding it did not apply under the circumstances of this particular case); Kellar v. VonHoltum, 568 N.W.2d 186, 192-93 (Minn.Ct.App.1997) (suggesting Noerr-Pennington might apply, under Minnesota law, beyond antitrust context); Am. Med. Transp. of Wis., Inc. v. Curtis-Universal, Inc., 154 Wis.2d 135, 452 N.W.2d 575, 576, 583-84 (1990) (suggesting Noerr-Pennington might apply to state antitrust claims, but it did not apply under particular facts of this case). [19] The second reason the Sherman Act does not proscribe private citizens' efforts to influence government action is because doing so would implicate important First Amendment concerns. See Noerr, 365 U.S. at 137-38, 81 S.Ct. 523. [20] There is a "sham" exception to Noerr-Pennington immunity, applicable in "situations in which persons use the governmental process—as opposed to the outcome of that process—as an anticompetitive weapon." City of Columbia, 499 U.S. at 380, 111 S.Ct. 1344. But Plaintiffs have never invoked that exception in this case. [21] The parties do not rely on either the Tenth Circuit's post-City of Columbia decision in Tal, 453 F.3d 1244, or the pre-City of Columbia case of Oberndorf v. City and County of Denver, 900 F.2d 1434 (10th Cir.1990), abrogated in part by City of Columbia, 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). Although those cases include some language that might support Plaintiffs' contrary arguments here, see Tal, 453 F.3d at 1260; Oberndorf, 900 F.2d at 1440, that language is dicta and contrary to the clear "holding" in City of Columbia. [22] In a different vein, Plaintiffs also argue, on appeal, that the Insurer Defendants "acted as an insurance advisory organization or rating bureau without being licensed, in violation of the New Mexico Insurance Code." (Aplt. Br. at 58 (citing several provisions of Article 17 of the New Mexico Insurance Code).) However, because Plaintiffs did not include such allegations in their complaints, we do not address this theory here.

957 So.2d 1174 (2007) RUDDICK v. STATE No. 1D06-4392 District Court of Appeal of Florida, First District June 1, 2007. Decision without published opinion. Affirmed.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________________ No. 01-40117 _______________________________ UNITED STATES of AMERICA, Plaintiff-Appellee, versus JUAN ESTRADA, JR., Defendant-Appellant. _________________________________________________ Appeals from the United States District Court for the Southern District of Texas - Corpus Christi Division (C-00-298-1) _________________________________________________ December 17, 2001 Before DAVIS, WIENER and BARKSDALE, Circuit Judges. PER CURIAM*: Defendant-Appellant Juan Estrada, Jr. appeals his sentence, claiming that the district court erred when it departed upward from the prescribed sentencing guideline range. Perceiving no plain error in the district court’s decision to depart upwardly, we affirm Estrada’s sentence. I. FACTS AND PROCEEDINGS * Pursuant to 5TH Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. R. 47.5.4.  Estrada pleaded guilty to the second count of a two-count indictment charging him with violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) for possession with intent to distribute 353 kilograms of marijuana.1 Based on his scoreable criminal conduct, his acceptance of responsibility, and his base offense level, Estrada had a criminal history category (“CHC”) of I and a base offense level of 25. The imprisonment range for this combination is 60 to 71 months. The district court found, however, that a CHC of I understated the gravity of Estrada’s prior criminal conduct. Pursuant to the discretion afforded by U.S.S.G. §§ 4A1.3, 4A1.2 n. 8, the district court took into account Estrada’s remote criminal convictions, determined his CHC to be IV, and sentenced him to a 96-month term of imprisonment.2 In calculating a CHC of IV, the district court considered prior convictions on four uncounted offenses included in the Presentence Investigation Report (“PSR”). Specifically, the court included Estrada’s 1976 conviction for marijuana possession, his 1981 conviction for being a felon in possession of a firearm, his 1983 conviction for escaping from federal custody, and his 1985 conviction for involuntary manslaughter.3 Estrada timely appealed, 1 As part of the plea bargain, the first count of possession of marijuana with intent to distribute was dropped. 2 A CHC of IV along with a base offense level of 25 requires imprisonment in the range of 84 to 105 months. 3 These convictions had not been initially counted for CHC purposes because they were too remote in time to qualify under the 2 arguing that the district court erred in considering his conviction for escaping from federal custody when it calculated his CHC. II. ANALYSIS A. Standard of Review In general, we review the district court’s decision to depart upward from the sentencing guidelines range for abuse of discretion.4 In this instance, however, our review is further circumscribed. Although Estrada lodged a universal objection to the upward departure, he failed to object specifically to the district court’s determination that his remote convictions constituted “serious dissimilar” conduct. Estrada raises this discrete objection to the inclusion of his remote convictions for the first time in his brief to this court. Hence, in this case, we are limited to plain error review.5 B. No Plain Error in the District Court’s Ruling Estrada’s 1983 conviction for escape from a federal half-way house was not initially counted in determining his CHC because the Sentencing Guidelines. See U.S.S.G. § 4A1.2(e). 4 United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc) (further stating, “[w]e affirm a departure from the Guidelines if the district court offers acceptable reasons for the departure and the departure is reasonable.”) (internal quotations omitted) (citations omitted). 5 Fed. R. Crim. P. 52(b); United States v. Ravitch, 128 F.3d 865, 869-70 (5th Cir. 1997). 3 conviction involved a six-month sentence and the term of incarceration for that offense was imposed more than ten years before his commission of the instant offense. U.S.S.G § 4A1.3 provides, however, that “[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range.” U.S.S.G. § 4A1.2 n. 8 further clarifies that “[i]f the court finds that a sentence imposed outside [the time period established by §§ 4A1.2(d)(2) and (e)] is evidence of [1] similar, or [2] serious dissimilar, criminal conduct, the court may consider this information in determining whether an upward departure is warranted under 4A1.3.” Undoubtedly, Estrada’s escape from federal custody is dissimilar to his federal drug violation in the instant case. Thus, the only issue on appeal is whether escaping from federal custody is a “serious” crime. The Sentencing Guidelines do not define “serious” crimes and “serious” is not a legal category generally used to distinguish between different types of crimes. Additionally, this court has never addressed the question of what constitutes “serious dissimilar” conduct. In the absence of any precedent or other guidance, the district court could not possibly have committed plain error. 4  III. CONCLUSION For the foregoing reasons, the district court’s upward departure in its sentencing of Estrada is AFFIRMED. 5 WIENER, Circuit Judge, specially concurring: Although I agree with the result reached by the panel, I write separately to note my disagreement with the standard of review employed in arriving at this result. My review of the sentencing record convinces me that counsel for Estrada adequately objected to the district court’s upward departure in sentencing, and thereby preserved his appeal. Rather than review the imposition of the enhanced sentence for plain error, I would affirm Estrada’s sentence by holding that the district court did not abuse its discretion. Counsel for Estrada twice objected to the court’s upward departure and —— more importantly —— did so during the court’s discussion of its basis for increasing Estrada’s CHC. Indeed, the only factor being discussed by the court in support of its decision to depart upwardly was the inclusion of Estrada’s remote convictions. Thus, Estrada’s admittedly terse objection to the upward departure could only relate to the inclusion of his remote convictions under the “serious dissimilar” clause of the relevant sentencing guideline. I am convinced that the district court could not have failed to understand the basis for counsel’s objection. Under such circumstances, we should not require counsel to perform the redundant act of incanting talismanic words; all that is 6 required is that counsel’s words be sufficient for the court to comprehend the objection. In this instance, counsel’s objections adequately encompassed the issue herein appealed and properly preserved the issue for our review. With the objection thus properly preserved, our review would not be for plain error; rather, we would review the district court’s decision to depart upwardly from the sentencing guidelines range for abuse of discretion.6 When the sentencing court exercises the discretion afforded by U.S.S.G § 4A1.3 to depart upwardly, we require the court to articulate expressly its reasons for the departure.7 Reasons thus articulated by the district court are findings of fact, which we review for clear error.8 As the per curiam opinion notes, the term “serious” is not defined by the Sentencing Guidelines or by other federal criminal statutes. Thus, the district court’s determination whether the crime of escape is serious is a factual one made in light of all the attendant circumstances. The question, therefore, is whether the district court abused its discretion by including Estrada’s 6 United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc) (further stating, “[w]e affirm a departure from the Guidelines if the district court offers acceptable reasons for the departure and the departure is reasonable.”) (internal quotations omitted) (citations omitted). 7 Id.; United States v. Martinez-Perez, 916 F.2d 1020, 1024 (5th Cir. 1990). 8 United States v. Pennington, 9 F.3d 1116, 1118 (5th Cir. 1993). 7 remote convictions as “serious dissimilar” conduct. My review of the record supports the district court’s conclusion that when Estrada was convicted of escape from a federal half-way house, he was convicted of a serious crime, justifying inclusion in his CHC calculation. I reach this determination with some guidance from other federal courts that have addressed the issue.9 The opinions cited by Estrada to advocate the opposite view are either inapposite or have been superceded.10 Moreover, 9 See United States v. Connelly, 156 F.3d 978, 984 (9thCir. 1998) (reviewing 9th Circuit case law determining that shoplifting, simple marijuana possession, and misdemeanor assault and battery were not serious, whereas assault with a deadly weapon, impersonating a military officer, first degree robbery, immigration violations, marijuana trafficking, prison fights, and public transportation fare evasion were serious) (citing cases); United States v. Lowe, 106 F.3d 1498, 1503 (10th Cir. 1997) (affirming the trial court’s decision to depart upward where one of the reasons for the upward departure was a remote conviction for escape); United States v. Pratt, 940 F.Supp. 424, 427 (D.N.H. 1996) (finding that the defendant’s prior convictions for criminal liability for the conduct of another and DWI were serious dissimilar conduct to the defendant’s conviction for mailing threatening communications); cf. United States v. Cooper, 1996 WL 346953 *6-7 (D.D.C. 1996) (although declining to exercise its discretion to depart, noting that the defendant’s remote convictions, including one for escape, were serious). 10 Although I acknowledge counsel’s service to this court as Estrada’s court-appointed attorney, counsel must remain mindful that he is an officer of the court with the concomitant duty of complete candor. In his vigorous efforts to persuade this court, counsel has cited cases from other jurisdictions that address versions of the Sentencing Guidelines that are no longer in force and are thus irrelevant to the instant case. See e.g., United States v. Donaghe, 50 F.3d 608, 612 (9th Cir. 1995) (applying the pre-1992 version of the Sentencing Guidelines which did not expressly provide for inclusion of “serious dissimilar” conduct); United States v. Smallwood, 35 F.3d 414, 417 (9th Cir. 1994) (same); United States v. Stephenson, 887 F.2d 57 (5th Cir. 1989) (addressing only the time period for calculating the initial CHC 8 even if we were to assume that the district court erred in considering Estrada’s escape to be serious, such error would be harmless. I do not quarrel with the district court’s conclusion that when Estrada’s remote convictions are not considered, his resulting CHC score does not adequately reflect the recurrent and sustained nature of his criminal past. The district court’s thorough articulation of its reasons for the upward departure referenced but a few of the many criminal violations detailed in Estrada’s PSR. Even though it was entitled to include other serious violations detailed in the PSR, such as Estrada’s conviction for assault on a police officer for which he served 30 days in jail,11 the district court expressly declined to do so. My point is that even if we were to reject the escape conviction as not serious, a surfeit of other criminal history matters remain to support an upward departure. Reviewing the record as a whole, I am convinced that the district court did not abuse its discretion by upwardly departing. In summary, I respectfully concur with the panel’s affirmance of Estrada’s sentence, albeit my concurrence is grounded in the score under § 4A1.2(e) and not discussing discretionary inclusion of convictions under § 4A1.3; abrogation on other Sentencing Guideline matters recognized by United States v. Johnson, 961 F.2d 1188, 1189 (5th Cir. 1992)). I would caution counsel henceforth to exercise greater care to avoid citing obviously inapplicable authority to this court. 11 Coincidentally, this assault conviction occurred during the time of his absence from the federal half-way house following his escape. 9 belief that the court properly exercised its discretion after considering the substance of Estrada’s objection. Because I believe that counsel’s objection left the court no doubt about the basis, I find the application of plain error review inapposite here. 10 

249 P.3d 1027 (2011) In re the Personal Restraint Petition of Mark Daniel SMITH, Petitioner. No. 85160-3. Supreme Court of Washington. March 30, 2011. ORDER ¶ 1 Department II of the Court, composed of Chief Justice Madsen and Justices Alexander, Owens, J.M. Johnson and Wiggins, considered this matter at its March 29, 2011, Motion Calendar and unanimously agreed that the following order be entered. ¶ 2 IT IS ORDERED: ¶ 3 That the Petitioner's Motion for Discretionary Review is granted and the matter is remanded to the Court of Appeals Division Two for reconsideration in light of State v. Knight, 162 Wash.2d 806, 174 P.3d 1167 (2008). For the Court /s/ Madsen, C.J. CHIEF JUSTICE *1028

516 N.W.2d 792 (1994) David DeVETTER, Appellant, v. PRINCIPAL MUTUAL LIFE INSURANCE CO., f/k/a the Bankers Life, Appellee. No. 91-1039. Supreme Court of Iowa. May 25, 1994. Rehearing Denied June 17, 1994. David DeVetter, pro se. Eric F. Turner of Herrick, Langdon & Langdon, Des Moines, for appellee. Considered by McGIVERIN, C.J., and LARSON, CARTER, NEUMAN, and SNELL, JJ. *793 McGIVERIN, Chief Justice. This case involves a challenged clause in a group disability insurance policy. The provision starts the accrual of benefits on a date no earlier than six months preceding the time that written proof of claim is furnished to the insurer. The main question is whether the clause violates public policy. The district court concluded that it did not, but the court of appeals reversed, holding that it did. We vacate the decision of the court of appeals and affirm the judgment of the district court. I. Background facts and proceedings. Defendant Principal Mutual Life Insurance Company (Principal) issued a group long-term disability insurance policy to the Camanche Community School District on July 1, 1973. The policy remained in effect at all material times. Plaintiff David DeVetter obtained employment with the school district for the 1979-80 school year and by reason of his employment became an insured under the Principal policy. Plaintiff left his employment with the school district effective January 18, 1980, at which time he was totally disabled due to a mental ailment. About seven and one-half years later, on July 22, 1987, plaintiff DeVetter filed a group disability claim form with defendant Principal. Although plaintiff's 1987 filing of notice of claim was untimely, section 10 of the policy contained a clause allowing late filed claims. The clause provided: Failure to furnish notice or proof within the time fixed in this Policy will not invalidate or reduce any claim if it shall be shown that it was not reasonably possible to furnish such notice or proof on time and that it was furnished as soon as was reasonably possible. Defendant concedes that plaintiff DeVetter's late filing satisfied the conditions of this clause. Because this dispute involves the question of when disability benefits started to accrue under the policy, the operation of the policy must be explained. Under section 10 of the policy, DeVetter first became eligible to file for benefits on May 23, 1980. This date marked the end of the "qualifying period"—that is, the eighteen-week period following the onset of the disability (here, January 18, 1980) during which the disability continued uninterrupted. This period of eligibility to file a claim ran for three months, until August 15, 1980. Any filing after that, including plaintiff's filing on July 22, 1987, had to meet the standards of section 10's "failure to furnish notice" clause discussed above. The parties agree plaintiff's claim was furnished as soon as was reasonably possible and therefore satisfied the standards of section 10. The question then arose concerning the period for which disability benefits would be paid. Section 12 of the policy provided in part: Monthly income accrues commencing on the day immediately following the date of completion of the qualifying period, but in no event prior to the date six months preceding the date written proof of such total disability is furnished to the Company at its Home Office in Des Moines, Iowa. (Emphasis added.) In addition, section 12 contained prospective limits on the accrual of benefits. It prospectively limited benefits upon the occurrence of one of several conditions, such as the ceasing of the disability, the death of the beneficiary, or, as here, the expiration of 60 months of total disability. Section 12's retroactive provision, the clause at issue in this case, limited the accrual of monthly income benefits to six months preceding the date written proof of the disability was furnished to Principal at its home office in Des Moines. This provision applied no matter when the claim was filed. The next question concerned the amount of the disability income benefits to be paid. The policy integrated disability income benefits payable under the policy with the social security benefits that a claimant and any of his dependents were eligible to receive. Section 13 of the policy provided a scheduled monthly income benefit equal to 60% of the claimant's monthly compensation at the time of the onset of the disability, less the social security benefits. If the social security benefits exceeded 60% of the claimant's monthly *794 compensation, section 16 of the policy still provided the claimant a minimum monthly benefit of $50. Defendant Principal computed plaintiff DeVetter's benefits as follows. Plaintiff's claim was filed with defendant insurer on July 22, 1987. Under section 12 of the policy his benefits commenced on January 22, 1987, or six months before he filed his claim. Applying section 13 of the policy, defendant Principal thus determined plaintiff was entitled to benefits for the period starting January 22, 1987 and for 60 months thereafter. Plaintiff's monthly income upon becoming disabled was $1,385 per month, 60% of which is $831. The social security benefits of plaintiff and his dependents, which began to pay out effective October 1982, were $865 per month. Because the social security benefits exceeded the policy's disability benefits, defendant Principal concluded that plaintiff was entitled under section 16 of the policy to the minimum benefit of $50 per month for the 60 month benefit period. Plaintiff contends his disability benefits from defendant Principal should have been started on May 24, 1980. This would mean that his benefits from defendant Principal would begin to run nearly two and one-half years before his social security benefits began to accrue. This earlier commencement of benefits from Principal would entitle plaintiff to receive over $30,000 from defendant, because for the period from January 1980 to October 1982, Principal would not be able to offset its obligation to DeVetter against DeVetter's social security benefits. Plaintiff filed a petition seeking damages against defendant Principal based on a theory of breach of contract. Defendant filed a motion for summary judgment. The district court sustained defendant's motion. The court agreed with defendant's interpretation of the insurance policy under the record and dismissed plaintiff's petition. Plaintiff appealed. We transferred the case to the court of appeals, which reversed the district court. We granted further review. Our review of an order granting summary judgment is for correction of errors at law. Iowa R.App.P. 4. To sustain a motion for summary judgment, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, must show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c); Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991). The record in this case consisted of the pleadings, the motion, affidavits, exhibits, and answers to interrogatories. The parties do not dispute the facts, only the legal interpretation of the insurance policy provisions. This is a matter of law to be resolved by the court. Farm Bureau Mut. Ins. Co. v. Sandbulte, 302 N.W.2d 104, 107 (Iowa 1981). II. Public policy argument. DeVetter argues that the six-month retroactive provision in this insurance policy, which started disability payments at most six months prior to the filing of any claim, violates public policy. The district court disagreed, concluding that "no clearly articulated public policy of the State of Iowa prohibit[s] the use of a six-month retroactive limitation provision in a group disability policy." The court concluded that the policy does not work a forfeiture against mentally disabled persons. The court of appeals reversed, holding that the provision violated public policy and that the policy would work a forfeiture on mentally disabled persons. The power to invalidate a contract on public policy grounds must be used cautiously and exercised only in cases free from doubt. Walker v. American Family Mut. Ins. Co., 340 N.W.2d 599, 601 (Iowa 1983). For a court to strike down a contract on these grounds, it must conclude that the preservation of the general public welfare imperatively so demands invalidation so as to outweigh the weighty societal interest in the freedom of contract. Id. A. We believe the policy provision is consistent with the public policy of the state of Iowa. As the district court concluded, we believe no clearly articulated public policy of the state of Iowa prohibits the use of a six-month *795 retroactive limitation provision in a group disability policy. On the contrary, public policy favors providing low cost group disability insurance to citizens through predictable underwriting and premium structures. See, e.g., William C. Brown Co. v. General Am. Life Ins. Co., 450 N.W.2d 867, 871 (Iowa 1990) ("Reasons that justify the use of [coordination of benefits] provisions [in group insurance policies] include the following: (1) preventing the insured from recovering more than is necessary to make the insured whole; (2) keeping premium rates as low as possible while assuring full compensation to the group policy holder; and (3) reimbursing employees for their medical expenses while at the same time not enabling them to profit from their illness or injuries."); Steve D. Thompson Trucking, Inc. v. Twin City Fire Ins. Co., 832 F.2d 309, 310-11 (5th Cir.1987) (court may consider what risks are reflected in an insured's premium and what effect an alteration of policy terms would have upon the risk for which the insurer contracted and for which premiums are charged); Zurich Ins. Co. v. Heil Co., 815 F.2d 1122, 1126 (7th Cir.1987) (same). This clause allows such predictability and affords evenhanded coverage to all persons and all claims, regardless of status. Moreover, the public policy of the state disfavors liability based on unreliable or unavailable evidence. See, e.g., Iowa Code ch. 614 (1993) (statutes of limitations); Schulte v. Wageman, 465 N.W.2d 285, 286 (Iowa 1991) (explaining purpose of statute of limitations). The clause here furthers this important state interest. B. Plaintiff cites Levitt v. New York Life Insurance Co., 230 Iowa 456, 461, 297 N.W. 888, 892 (1941), and McCoy v. New York Life Insurance Co., 219 Iowa 514, 518, 258 N.W. 320, 322 (1935), in which we held that a condition precedent in an insurance contract requiring notice or proof of disability is excused where performance is impossible because of the physical or mental incapacity of the insured. We concede that these cases evince a general concern for the protection of insureds against the consequences of their incapacity. However, they provide little guidance in a case such as this in which the insurer specifically provided a clause allowing a disabled insured to file late but in another clause limited retroactive benefits applicable to all claimants. Plaintiff points to Chagnon v. Metropolitan Life Insurance Co., 96 N.H. 256, 75 A.2d 167, 169-70 (1950), in which the court invalidated a similar clause that imposed a six-month retroactive limitation on disability benefits. The court reasoned: "Strict compliance with the contract is not enforced where it would produce a forfeiture so that the insane are protected from the results of their own incapacity." Id. at 259, 75 A.2d at 169-70. Although we acknowledge the Chagnon court's concern for the protection of mentally disabled persons, we believe that the policy in this case adequately protected this interest. First, at the time Chagnon was decided, the social security act did not provide the disability benefits that DeVetter received. Such benefits were available for the first time in 1956. See Social Security Act of 1956, Pub.L. No. 880, § 103(a), 70 Stat. 807, 815 (1956) (codified at 42 U.S.C. § 423 (1988)). Indeed, prior to 1958, the social security act provided no retroactive benefits. See Social Security Amendments of 1958, Pub.L. No. 85-840, § 202(a), 72 Stat. 1020 (1958); Yeiter v. Secretary of Health & Human Servs., 818 F.2d 8, 9 (6th Cir.), cert. denied, 484 U.S. 854, 108 S.Ct. 160, 98 L.Ed.2d 115 (1987). Therefore, enforcing the six-month retroactive clause in this case imposes a substantially smaller burden on DeVetter than it would have on the plaintiff in Chagnon, who could get no social security disability benefits, retroactive or otherwise. Second, unlike the policy before us, the policy in Chagnon contained no clause that allowed late filing of claims. We believe that the policy here manifested an intention on the part of defendant Principal to protect the mentally disabled from the results of their own incapacity, but in a way that also took into account the costs that such protection, if taken to extremes, would impose on beneficiaries as a whole. Third, we disagree with the plaintiff that the operation of this clause works a *796 forfeiture of his rights under the policy. A forfeiture implies the taking away from one of some preexisting right or vested interest. St. Regis Paper Co. v. Aultman, 280 F.Supp. 500, 509 (D.Ga.1967), aff'd per curiam, 390 F.2d 878 (5th Cir.1968); Hogg v. Forsythe, 198 Ky. 462, 248 S.W. 1008, 1011 (1923). Because under the policy plaintiff's benefits did not accrue until 1987 when he filed a claim, he suffered no real forfeiture of the benefits dating to 1982 that he now claims. The retroactivity clause applies equally to all persons regardless of disability. It works a forfeiture on no one. C. We find analogous support in two recent federal cases that rejected constitutional challenges to the one-year retroactive limitation on the recovery of social security disability benefits in 42 U.S.C. § 423(b) (1988). Yeiter, 818 F.2d at 10; Tusson v. Bowen, 675 F.Supp. 1032, 1034 (E.D.La.1987), aff'd per curiam, 847 F.2d 284 (5th Cir.1988). The plaintiffs in both cases based their challenges on the due process clause of the fifth amendment and the equal protection clause of the fourteenth amendment to the federal constitution. With respect to the due process argument, the Tusson court concluded that the claimant had no vested property interest in the benefits and observed that some person acting on behalf of the mentally impaired person could have filed an application for benefits. Tusson, 675 F.Supp. at 1034. As the Yeiter court remarked, a caretaker has "a strong incentive to file for benefits." 818 F.2d at 10. The retroactive limit in 42 U.S.C. § 423(b) also withstood equal protection challenges in both cases. Both courts reasoned that the provision did not single out the mentally disabled; instead, it subjected all claimants to the same limitation period. Id. at 10; Tusson, 675 F.Supp. at 1035. Therefore, the statute satisfied the rational basis test of Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501 (1970), because of Congress's need "to preserve the fiscal integrity of the social security trust fund." Tusson, 675 F.Supp. at 1035 (citing Yeiter, 818 F.2d at 10). Although these cases addressed whether a retroactive limit on benefits violated the federal constitution, not public policy, we believe their analysis reinforces ours. First, neither the social security claimants in the federal cases nor the plaintiff here had a vested right to benefits. Under due process analysis, this means that a claimant could not claim a property interest in such benefits; under public policy analysis, it means that no forfeiture occurred. Second, in both situations, the claimant could have had a caretaker file for benefits. A caretaker has the same "strong incentive," Yeiter, 818 F.2d at 10, to file for benefits with the beneficiary's private insurer as it does to file with the social security administration. Third, the policy, like the statute, does not single out the mentally disabled. Plaintiff DeVetter's recovery of reduced benefits from defendant occurred only incidentally to his late filing. Nothing in the policy reduces recovery because of late filing; had plaintiff not filed for social security, for instance, he would have received full recovery from defendant Principal without any subtraction of social security benefits. Finally, we perceive a close analogy between preservation of the social security trust fund and the societal interest in allowing insurers to make reasonable limits in their policies for underwriting purposes. Just as the invalidation of 42 U.S.C. § 423(b) would endanger the availability of social security disability benefits to society, so would the invalidation of insurance policy clauses such as this endanger the availability of privately contracted disability coverage. We agree with the district court that defendant Principal's six-month retroactive limitation did not violate public policy. We do not believe this is a case in which "the preservation of the general public welfare imperatively... demands" striking down this clause on public policy grounds. Walker, 340 N.W.2d at 601. III. Ambiguity. Plaintiff further argues that the policy terms contained an ambiguity and that we should therefore strike down the six-month limitation clause. Both the district court and the court of appeals *797 rejected plaintiff's argument. We reject it as well. Section 10 of the policy states that when notice of a claim is given as soon as is reasonably possible, such a claim will not be invalidated or reduced on the ground that it is untimely. Here, defendant accepted the claim, despite its untimeliness by several years. Plaintiff contends that because section 10 states that late claims will not be reduced, an ambiguity arises when that provision is considered in connection with section 12's six-month limitation concerning the earliest date from which claims will be paid. An ambiguity exists only if there is "genuine uncertainty" regarding the policy's language. Cairns v. Grinnell Mut. Reins. Co., 398 N.W.2d 821, 824 (Iowa 1987). Here, no such uncertainty exists. The policy allowed late filed claims, but all claims were paid from a date no earlier than six months prior to filing. Regardless of this limitation, however, the claimant was entitled to a maximum of 60 months of benefits. Thus, although the policy had a retroactive limit, nothing in the policy reduced claimant's recovery on the basis of his late filing. We see nothing ambiguous about these provisions. IV. Disposition. We have considered the various other contentions raised by plaintiff and have concluded that they either were not preserved or have no merit. Plaintiff's separate motion filed in this court for attorney fees and interest is denied. We therefore vacate the decision of the court of appeals and affirm the judgment of the district court. DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

ACCEPTED 03-14-00518-CV 6708789 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/28/2015 4:18:06 PM JEFFREY D. KYLE CLERK NO. 03-14-00518-CV IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS AUSTIN, TEXAS 8/28/2015 4:18:06 PM JEFFREY D. KYLE Clerk JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC, Appellants vs. EDUARDO S. ESPINOSA, IN HIS CAPACITY AS RECEIVER OF RETIREMENT VALUE, LLC, Appellee Appeal from the 200th Civil District Court of Travis County, Texas (Hon. Gisela Triana presiding) APPELLANTS’ REPLY BRIEF Respectfully submitted, ALDRICH PLLC Scott Lindsey State Bar No. 24036969 1130 Fort Worth Club Tower 777 Taylor Street Fort Worth, Texas 76102 Telephone: 817-336-5601 Facsimile: 817-336-5297 slindsey@aldrichpllc.com ATTORNEY FOR APPELLANTS APPELLANTS REQUEST ORAL ARGUMENT  TABLE OF CONTENTS I. INDEX OF AUTHORITIES ................................................................ iv II. STATEMENT OF FACTS .................................................................. 1 III. ARGUMENT ...................................................................................... 1 Issue One: Proper application of the one-satisfaction rule required that the trial court grant Appellants a settlement credit for unallocated settlement proceeds of $5.5 million. Because Appellants were found liable for an amount less than the unallocated settlement proceeds, the trial court erred, as a matter of law, by failing to render a take-nothing judgment in Appellants’ favor. A. Standard of Review .................................................................. 1 B. Espinosa Did Not Meet His Burden under Ellender................... 2 C. The Settlement Agreement Does Not Allocate.......................... 4 D. Espinosa Sued the James Defendants for All Damages ........... 7 E. James Defendants’ Liability Never Adjudicated ........................ 8 F. Espinosa’s Capacity Argument ............................................... 10 G. Conclusion .............................................................................. 11 Issue Two: The trial court abused its discretion by overruling Appellants’ objections to Espinosa’s summary judgment Evidence. ......................................................................................... 13 Issue Three: The trial court erred by rendering summary judgment for Espinosa on his TUFTA claim against Appellants because Espinosa lacked standing and because genuine issues of material fact existed for at least one element of each of Espinosa’s TUFTA theories. A. Espinosa’s Summary Judgment Evidence .............................. 14 B. Creditor Claims ....................................................................... 15 C. Actual Intent ........................................................................... 18 D. Insolvency and Remaining Assets .......................................... 20 IV. PRAYER .......................................................................................... 23 ii V. CERTIFICATE OF COMPLIANCE ................................................... 25 VI. CERTIFICATE OF SERVICE ........................................................... 25 VII. APPELLANTS’ APPENDIX .............................................................. 26 iii  INDEX OF AUTHORITITES Cases 1. B.T. Healthcare, Inc. v. Honeycutt, 196 S.W.3d 296 (Tex.App.—Amarillo 2006, no pet.) ................ 6 2. Buccaneer Homes of Alabama, Inc. v. Pelis, 43 S.W.3d 586 (Tex. App.—Houston [1st Dist.] 2001, no pet.) .......................................................................................... 8 3. Camden Machine & Tool, Inc. v. Cascade Co., 870 S.W.2d 304 (Tex.App.—Fort Worth 1993, no writ) ........... 15 4. Christus Health v. Dorriety, 345 S.W.3d 104 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) ............................................................................ 11 5. Cohen v. Arthur Anderson, L.L.P., 106 S.W.3d 304 (Tex. App.—Houston [1st Dist.] 2003, no pet.) ...................................................................................... 2, 8 6. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) ................................................... 2, 9 7. Dalworth Restoration, Inc. v. Rife-Marshall, 433 S.W.3d 773 (Tex. App.—Fort Worth 2014, pet. dism’d) .................................................................... 8, 10, 11, 12 8. Flores v. Robinson Roofing & Constr. Co., 161 S.W.3d 750 (Tex.App.—Fort Worth 2005, pet. denied) .... 16 9. Galle, Inc. v. Pool, 262 S.W.3d 564 (Tex. App.—Austin 2008, pet. denied) ............................................................. 1, 3, 4, 9, 11, 12 10. Genie Indus. v. Matak, 462 S.W.3d 80 (Tex.App.—Corpus Christi 2012)...................... 6 11. Goose Creek Consol. Indep. Sch. Dist. of Chambers v. Jarrar’s Plumbing, 74 S.W.3d 486 (Tex. App.—Texarkana 2002, pet. denied) ....................................................................... 9, 12 iv 12. Great AM. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965) ............................................. 21 13. Howard v. Rayco Steel, Ltd., No. 04-11-00521-CV, 2012 Tex. App. LEXIS 8174 (Tex.App.—San Antonio Oct. 3, 2012, no pet.) (mem. op.) ..... 16 14. Imperial Lofts, Ltd. v. Imerial Woodworks, Inc., 245 S.W.3d 1 (Tex.App.—Waco 2007, pet. denied) ............. 4, 5 15. LJ Charter, L.L.C. v. Air Am. Jet Charter, Inc., No. 14-08-00534-CV, 2009 Tex. App. LEXIS 9469 (Tex.App.—Houston [14th Dist.] Dec. 15,2009, pet. denied) (mem. op.) ............................................................... 2, 5 16. Lundstrom v. United Servs. Auto. Ass’n, 192 S.W.3d 78 Tex.App.—Houston [14th Dist.] 2006, pet. denied) ................................................................................. 5, 6 17. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex. 1998) ..................................... 2, 3, 11, 12 18. Osborne v. Jauregui, Inc., 252 S.W.3d 70 (Tex. App.—Austin 2008, pet. denied) (op. on reh’g) (en banc) ................................................................... 8 19. Ramsey v. Spray, No. 02-08-00129-CV, 2009 Tex. App. LEXIS 9737 (Tex.App.—Fort Worth Dec. 23, 2009, pet. denied) (mem. op.) ........................................................................................... 4 20. Renfro v. Cavazos, No. 04-10-00617-CV, 2012 Tex. App. LEXIS 1230 (Tex.App.—San Antonio Feb. 15, 2012, pet. denied) (mem. op.) .............................................................................. 15 21. Reservoir Sys. v. TGS-NOPEC, 335 S.W.3d 297 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ........................................................................... 11 22. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) ................................................... 23 v 23. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76 (Tex. 1989) ..................................................... 15 24. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374 (Tex. 1993) ............................................. 18, 19 25. Stiles v. Resolution Trust Corp., 867 S.W.2d 24 (Tex. 1993) .................................................... 16 26. United Blood Servs. v. Longoria, 938 S.W.2d 29 (Tex. 1997) ..................................................... 13 27. Walker v. Packer, 827 S.W.2d 833 (Tex.1992) ...................................................... 2 28. Waller v. Pidgeon, No. 3:06-CV-0506-D, 2008 U.S. Dist. LEXIS 44238 (N.D. Tex. June 5, 2008) (mem. op.)................................................ 22 29. Wein v. Sherman, No. 03-10-00499-CV, 2013 Tex. App. 10666 (Tex. App.— Austin Aug. 23, 2013, no pet.) (mem. op.) ................................ 1 30. Williams v. Performance Diesel, No. 14-00063-CV, 2002 Tex. App. LEXIS 2735 (Tex.App.—Houston [14th Dist.] Apr. 18, 2002, no pet.) ......... 17 Statutes 1. Tex. Bus. & Com. Code Ann. § 24.005 ......................... 16, 17, 19, 20 2. Tex. Bus. & Com. Code Ann. § 24.006 ............................... 16, 17, 20 Rules 1. Tex. R. Civ. P. 166a......................................................................... 15 vi  Appellants James Poe and Senior Retirement Planners, LLC (collectively, “Poe”) respond to Appellee Eduardo Espinosa’s Brief as follows: STATEMENT OF FACTS Poe disputes that Espinosa’s statement of facts accurately represents the factual matters before the trial court in the summary judgment record, particularly because of the applicable summary judgment standard of review and Espinosa’s failure to rely on that evidence in the trial court. ARGUMENT Issue One: Proper application of the one-satisfaction rule required that the trial court grant Appellants a settlement credit for unallocated settlement proceeds of $5.5 million. Because Appellants were found liable for an amount less than the unallocated settlement proceeds, the trial court erred, as a matter of law, by failing to render a take- nothing judgment in Appellants’ favor. A. Standard of Review When there are no disputed fact questions affecting the settlement credit analysis, this Court applies a de novo standard of review. See Galle, Inc. v. Pool, 262 S.W.3d 564, 571 n.3 (Tex. App.—Austin 2008, pet. denied); see also Wein v. Sherman, No. 03-10-00499-CV, 2013 Tex. App. 10666, at *37-38 (Tex. App.—Austin Aug. 23, 2013, no pet.) (mem. op.). Espinosa did not identify any factual disputes that would require application 1 of an abuse of discretion standard. Regardless, a “trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). B. Espinosa Did Not Meet His Burden under Ellender The nonsettling defendant has the initial burden of proving his entitlement to a settlement credit, which the nonsettling defendant meets by “placing the settlement agreement or some evidence of the settlement amount in the record.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998). The burden then shifts to the plaintiff to show that it will not receive a double recovery. Id. at 928. To meet this burden, the plaintiff must “tender a valid settlement agreement allocating the settlement between (1) damages for which the settling and nonsettling defendant are jointly liable, and (2) damages for which only the settling party was liable.” Cohen v. Arthur Anderson, L.L.P., 106 S.W.3d 304, 310 (Tex. App.— Houston [1st Dist.] 2003, no pet.) (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 392 (Tex. 2000)). If the settlement covers damages for which no other defendant could be liable and the settlement agreement allocates the proceeds to apply only to the sole liability damages, the trial court should not apply a settlement credit. See LJ Charter, L.L.C. v. Air Am. Jet Charter, Inc., No. 14-08-00534-CV, 2009 Tex. App. LEXIS 9469, at *27-28 2 (Tex. App.—Houston [14th Dist.] Dec. 15, 2009, pet. denied) (mem. op.). On the other hand, if there is no allocation within the settlement agreement, the nonsettling defendant is entitled, as a matter of law, to a credit for the entire settlement amount. Ellender, 968 S.W.2d at 928; Galle, 262 S.W.3d at 573. Espinosa does not dispute the applicability of this burden-shifting framework, nor does Espinosa contend that Poe failed to meet his initial burden. Moreover, Espinosa readily admits, as he must, that he sought joint liability against the James Defendants for some claims but not others. [Appellee’s Brief pp. 13-14] Despite this concession, Espinosa contends that the “James settlement was credited against and extinguished [the TUFTA] claim for separate damages against James.” [Appellee’s Brief p. 19] As discussed below, nothing within the James Settlement Agreement supports this statement. [CR 2023-29] 1 Because Espinosa sued the James Defendants for both joint liability and sole liability damages, the law required that Espinosa allocate the James Settlement proceeds within the four corners of the James Settlement Agreement to avoid a credit for nonsettling defendants. “[I]f 1 “CR” refers to the original Clerk’s Record filed on September 26, 2014, “1st Supp CR” refers to the Clerk’s Record filed on November 3, 2014, “2nd Supp CR” refers to the Clerk’s Record filed on December 8, 2014, and “3rd Supp CR” refers to the Clerk’s Record filed on December 24, 2014. 3 settlement monies were also paid on claims for which there is no joint and several liability, it is the plaintiff’s burden to establish any reduction in a settlement agreement by tendering a settlement agreement that allocates the settlement amount between sole and joint liability claims.” Ramsey v. Spray, No. 02-08-00129-CV, 2009 Tex. App. LEXIS 9737, at *9 (Tex. App.—Fort Worth Dec. 23, 2009, pet. denied) (mem. op.); see Galle, 262 S.W.3d at 573 (noting “theoretic possibility” that settlement agreement covered only settling defendant’s sole liability damages but holding plaintiffs had burden to allocate settlement proceeds). Espinosa failed to do so, entitling Poe to a credit for the entire James Settlement. C. The Settlement Agreement Does Not Allocate Espinosa incorrectly contends that the following language in the James Settlement Agreement allocated settlement proceeds: Nothing in this release language nor any other provision of this Agreement is intended to release any claims Plaintiffs have against the Licensees, Wells Fargo, or any other party to the Lawsuit. Those claims are expressly and specifically reserved. Except as expressly provided herein, there are no third party beneficiaries to this Agreement. [Appellee’s Brief p. 21; CR 2027] Very similar language was held not to allocate settlement proceeds. See Imperial Lofts, Ltd. v. Imperial Woodworks, Inc., 245 S.W.3d 1, 6 (Tex. 4 App.—Waco 2007, pet. denied). There, the settlement agreement between Lofts and Travelers stated: IMPERIAL LOFTS and TRAVELERS expressly agree that the Release only extends to the above-described policy and the first-party property claim asserted by IMPERIAL LOFTS. It shall not apply to any third-party claims asserted by IMPERIAL LOFTS in the [lawsuit]. Id. at 6 n.4. The court expressly held that this settlement agreement “does not allocate the $600,000 settlement payment” and noted that the plaintiff apparently confused a release with a settlement credit. Id. at 6 & n.4. Allocation is different than clarifying that the settlement agreement does not release other parties. Espinosa could have allocated had he chosen to do so. In LJ Charter, the settlement agreement stated that the settlement was for “fuel and storage” and that it resolved a quantum meruit claim lodged only against the settling party. See 2009 Tex. App. LEXIS 9469 at *27. The court held that because the settlement proceeds were for the sole liability of the settling party and because the settlement agreement allocated the proceeds to the sole liability damages, settlement credits would not apply to those separate damages. Id. at *27-28. Although not decided on one- satisfaction grounds, the settlement agreement in Lundstrom v. United Services Automobile Association specified that the $400,000 settlement 5 was apportioned as follows: $95,000 for a townhome purchase, $30,000 for damages to contents of the townhome, and $275,000 for physical injuries to the plaintiffs. See 192 S.W.3d 78, 82 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); see also Genie Indus. v. Matak, 462 S.W.3d 80, 92 (Tex. App.—Corpus Christi 2012) (noting settlement agreement allocated settlement proceeds only to payment of actual damages, not punitive damages), rev’d on other grounds, 462 S.W.3d 1 (Tex. 2015). Espinosa cites a case from the Amarillo Court of Appeals for the proposition that allocation does not require any magic language. See B.T. Healthcare, Inc. v. Honeycutt, 196 S.W.3d 296, 299 (Tex. App.—Amarillo 2006, no pet.). While true, the Honeycutt case actually supports Poe’s position. The Honeycutt Court held that the settlement agreement did not allocate between sole and joint liability damages because it released “claims brought or that could have been brought, events described in and issues related in any way to the lawsuit” and because Honeycutt’s “live pleading at the time of the settlement . . . expressly sought to hold all the defendants jointly and severally liable for his injuries.” Id. Much like Honeycutt, in which the trial court erred by not applying the settlement credit, Espinosa sought joint liability against the James Defendants for all damages and released the James Defendants from “any and all claims” 6 that Espinosa brought or could have brought against the James Defendants in the lawsuit. [CR 2025] The James Settlement Agreement does not allocate settlement proceeds to apply only to the James Defendants’ sole liability. [CR 2023- 29] A settlement credit was therefore required. D. Espinosa Sued the James Defendants for All Damages Espinosa boldly asserts in his brief that “[a]t no point did the Receiver seek to hold James jointly liable with Poe for his commissions.” [Appellee’s Brief p. 14] To the contrary, Espinosa devoted thirty pages of his petition to allege that the James Defendants orchestrated everything Retirement Value did, including the recruitment and payment of Licensees such as Poe, and that the James Defendants were therefore liable for the entire $77.6 million invested in Retirement Value by the participants. [CR 613, 639-669] As Espinosa asserted in his petition, the commission payments to Licensees were made from the participants’ initial loan proceeds. [CR 681] Review of Espinosa’s live pleading indisputably establishes that Espinosa sued the James Defendants for all damages alleged in the case, including the commissions paid to Licensees such as Poe. Espinosa alleged that the participants loaned over $77 million to Retirement Value, [CR 680] that Retirement Value paid commissions to Licensees from the 7 participants’ $77 million in loan proceeds, [CR 681] that Retirement Value had been ordered to make restitution to participants for the $77 million, [CR 691] and that Espinosa sued the James Defendants for recovery of the entire $77 million. [CR 680-81, 690-91; see also CR 641, 664, 687-89] It is inaccurate to now claim that Espinosa never sued the James Defendants for Poe’s commissions because Poe’s commissions were included within the lump sum Espinosa sued the James Defendants to recover. 2 E. James Defendants’ Liability Never Adjudicated Espinosa suggests that this Court should look only to the judgment against Poe to determine whether there should be any settlement credit. [Appellee’s Brief p. 17] This is an incomplete statement of the law. The Court must look to both the judgment against Poe and Espinosa’s pleadings against the James Defendants to determine whether Espinosa sued both defendants for the same damages. See Dalworth Restoration, Inc. v. Rife-Marshall, 433 S.W.3d 773, 785 (Tex. App.—Fort Worth 2014, pet. dism’d) (noting that “the record confirms that some of the settled and tried claims, as pled, overlapped to the extent that the claims commonly 2 That Espinosa did not assert a TUFTA claim against the James Defendants for recovery of Poe’s commissions is irrelevant because application of the one-satisfaction rule does not depend on the cause of action asserted and instead focuses on the injury. See Osborne v. Jauregui, Inc., 252 S.W.3d 70, 75 (Tex. App.—Austin 2008, pet. denied) (en banc); Cohen, 106 S.W.3d at 310; Buccaneer Homes of Alabama, Inc. v. Pelis, 43 S.W.3d 586, 590 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The alleged injury is the payment of commissions to Poe. 8 sought damages related to appellee’s personal possessions”); Galle, 262 S.W.3d at 571 (noting overlapping damage categories alleged in live pleadings); Goose Creek Consol. Indep. Sch. Dist. of Chambers v. Jarrar’s Plumbing, 74 S.W.3d 486, 503 (Tex. App.—Texarkana 2002, pet. denied) (reviewing pleading allegations against settling defendant to determine whether damages overlapped with those awarded against nonsettling defendant). Espinosa unquestionably sued the James Defendants for all damages, including the damages ultimately awarded against Poe. Espinosa continues by arguing that there can be no settlement credit because Poe was not found jointly liable with the James Defendants. [Appellee’s Brief pp. 18] This too is wrong because the James Defendants’ liability was never adjudicated. See Crown, 22 S.W.3d at 391 (“Normally, claims against the settling party are dropped before the jury returns a verdict, so the amount of sole damages that the settling party is potentially liable for is rarely determined.”). Had the James Defendants not settled, the trial court may have ultimately adjudged them jointly liable for the entire $77 million, just as Espinosa alleged in his petition. Moreover, Espinosa’s contention that only the Poe judgment is relevant does not withstand scrutiny. A judgment against a nonsettling defendant will rarely if ever reflect that the nonsettling defendant was jointly 9 liable with a settling party. For example, the Dalworth Restoration Court reversed and rendered judgment for the nonsettling defendant because an unallocated, pretrial settlement exceeded the nonsettling defendant’s liability as found by the jury. See 433 S.W.3d at 782-83, 788. The trial court’s judgment in that case is in the appendix to this reply brief. [Reply App. Tab 1] That judgment does not state that the nonsettling defendant was jointly liable with any other party. 3 That the judgment against Poe does not reflect joint liability with the James Defendants is not dispositive. F. Espinosa’s Capacity Argument Espinosa’s argument that he asserted different claims in separate capacities is new and was not argued to the trial court. [CR 2081-86; 2 RR 13-38] If not waived, the argument is without merit because the James Settlement Agreement says nothing about Espinosa having settled with the James Defendants in only one capacity or another or about Espinosa collecting settlement proceeds in only one capacity or another. [CR 2023- 29] Even if Espinosa sought damages in two capacities or for distinct injuries, he sued the James Defendants for all damages without allocating 3 The Dalworth Court also held that the jury’s finding that Dalworth was “wholly responsible for appellee’s injuries [did] not preclude the application of a settlement credit that relates to the same injuries.” Id. at 787 10 the settlement proceeds. 4 Without language allocating the settlement proceeds among the allegedly different capacities and injuries, the law presumes that the settlement proceeds apply only to joint damages, entitling Poe to a credit for the full amount of the unallocated settlement. Ellender, 968 S.W.2d at 928; Dalworth Restoration, 433 S.W.3d at 782; Galle, 262 S.W.3d at 573. G. Conclusion The Supreme Court of Texas decided Ellender in 1998 and announced the burden-shifting framework that Poe asks this Court to apply in this appeal. Since Ellender, Texas litigants have been on notice that it is the plaintiff’s burden to present a settlement agreement allocating settlement proceeds between joint liability and sole liability damages and that the failure to do so entitles nonsettling defendants to a credit for the entire amount of the unallocated settlement. See 968 S.W.2d at 928. The Supreme Court placed this burden on the plaintiff, recognizing that the plaintiff is in a better position than nonsettling defendants to allocate damages within a settlement agreement and that “[n]onsettling parties 4 In addition, the cases upon which Espinosa relies are easily distinguished. One involved a birth-injury settlement 22 years before the wrongful death lawsuit involving the child’s mother. See Christus Health v. Dorriety, 345 S.W.3d 104, 114 (Tex. App.— Houston [14th Dist.] 2011, pet. denied). The other held that the appellant waived his argument under the one-satisfaction rule. Reservoir Sys. v. TGS-NOPEC Geophysical Co., L.P., 335 S.W.3d 297, 308 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). 11 should not be penalized for events over which they have no control.” Id. Applying the law and rendering judgment for Poe does not lead to an absurd result; it leads to the result required by the law. Poe met his burden under Ellender and its progeny by advising the trial court of the amount of the James Defendants’ settlement and asking the trial court to apply a settlement credit prior to entry of judgment. Espinosa could have avoided application of settlement credits for the nonsettling defendants by clarifying within the James Settlement Agreement that the proceeds applied only for the profits that the James Defendants allegedly received, only for the return of money paid to the James Defendants for the purchase of insurance policies, or only for punitive damages. Espinosa did not do so. Espinosa therefore failed to meet his burden under Ellender, and Poe was entitled to a credit for the entire $5.5 million James settlement and entry of a take-nothing judgment in his favor. See Ellender, 968 S.W.2d at 928; Dalworth Restoration, 433 S.W.3d at 782-83; Galle, 262 S.W.3d at 573; Goose Creek, 74 S.W.3d 486, 503-04. The trial court erred by failing to render judgment that Espinosa take nothing against Poe. 12 Issue Two: The trial court abused its discretion by overruling Appellants’ objections to Espinosa’s summary judgment evidence. Espinosa contends that Burchett was qualified to offer the opinions stated in his summary judgment affidavit solely because Burchett is a CPA. [Appellee’s Brief p. 27] Burchett’s affidavit states only that he is “a certified public accountant and ha[s] been since 1992.” [2nd Supp CR 233] This is not enough. The summary judgment affidavit must establish the expert’s qualifications to testify, and the burden of proving qualifications is on the party proffering the expert as a witness. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 30-31 (Tex. 1997). Burchett’s affidavit does not satisfy this standard by affirmatively establishing his qualifications to testify, and the trial court thus abused its discretion by overruling Poe’s objection to Burchett’s affidavit testimony. Espinosa also contends that he was qualified to testify about the value of Retirement Value’s assets because he, as receiver, was the owner of the assets. [Appellee’s Brief p. 22] Neither of the cases cited by Espinosa addresses testimony of a receiver about the value of receivership assets. Because Espinosa’s summary judgment affidavit did not establish his qualifications to testify, the trial court abused its discretion by overruling Poe’s objections. 13 Issue Three: The trial court erred by rendering summary judgment for Espinosa on his TUFTA claim against Appellants because Espinosa lacked standing and because genuine issues of material fact existed for at least one element of each of Espinosa’s TUFTA theories. A. Espinosa’s Summary Judgment Evidence Most of the evidence Espinosa relies on in his Appellee’s Brief was never cited to the trial court in support of his motion for summary judgment. [2nd Supp CR 3-22] For example, in the TUFTA section of his motion for summary judgment (the only ground upon which the trial court granted summary judgment), Espinosa cited only a few paragraphs in the Espinosa and Burchett affidavits and made reference to only two individual pages of the exhibits attached to the Espinosa and Burchett affidavits. [2nd Supp CR 17, 13-18] Despite having not pointed the trial court or the parties to any of the other hundreds of pages attached to his motion for summary judgment or to another almost 450 pages of documents he purportedly incorporated by reference into his motion for summary judgment, [2nd Supp CR 4; see CR 170-610] Espinosa now relies primarily on that unreferenced evidence in arguing that the summary judgment against Poe should be affirmed. The summary judgment cannot be affirmed based on the unreferenced evidence because Espinosa did not rely on it in the trial court and because his general references to summary judgment evidence are 14 insufficient to sustain a motion for summary judgment. Tex. R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor.”); see Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 81 (Tex. 1989) (“[A] general reference to a voluminous record which does not direct the trial court and parties to the evidence on which the movant relies is insufficient.”); Camden Machine & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 310 (Tex. App.—Fort Worth 1993, no writ) (disallowing adoption of a co-defendant’s motion for summary judgment by reference because the motion itself did not set forth sufficient grounds to support summary judgment); see also Renfro v. Cavazos, No. 04-10-00617-CV, 2012 Tex. App. LEXIS 1230, at *14-16 (Tex. App.—San Antonio Feb. 15, 2012, pet. denied) (mem. op.) (rejecting nonmovant’s attempt to incorporate her prior motion for summary judgment into her summary judgment response). This Court should not consider the evidence on which Espinosa did not rely in the trial court. B. Creditor Claims – TUFTA § 24.005(a) & § 24.006(a)5 Commission payments to Licensees were made shortly after Retirement Value’s receipt of the participants’ loan proceeds. [2nd Supp CR 205-06] Poe presented evidence in his summary judgment response that 5 See Appellants’ Brief, pp. 41-44. 15 the participants in this case would have claims only once the life insurance policies matured. [Appellant’s Brief, pp. 41-44; see, e.g., 2nd Supp CR 642- 62, 720] Those claims thus did not arise “before or within a reasonable time after the transfer was made or the obligation was incurred” or “before the transfer was made or the obligation was incurred.” Tex. Bus. & Com. Code Ann. §§ 24.005(a), .006(a). Espinosa does not dispute Poe’s evidence but now contends that the participants always had a claim against Retirement Value because of Retirement Value’s securities fraud. [Appellee’s Brief, p. 38] Espinosa did not make this argument to the trial court, [2nd Supp CR 13-18, CR 1947-50] and it cannot be a ground on which this Court affirms summary judgment in Espinosa’s favor. 6 See, e.g., Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). At minimum, though, there are fact issues as to when those claims arose in relation to commission payments to Poe. See generally Howard v. Rayco Steel, Ltd., No. 04-11-00521-CV, 2012 Tex. App. LEXIS 8174, at *7 (Tex. App.—San Antonio Oct. 3, 2012, no pet.) (mem. op.) (noting that trial court found that the plaintiff’s claim arose on the date it filed its lawsuit); Flores v. Robinson Roofing & Constr. Co., 161 S.W.3d 750, 757 (Tex. 6 Espinosa argued in his reply brief only that the “investors were indisputably creditors since they loaned RV money.” [CR 1948-49] 16 App.—Fort Worth 2005, pet. denied) (noting fact questions in summary judgment proceeding when alleged transfer occurred after a lawsuit was filed). A claim need not be reduced to judgment to allow for relief under TUFTA, but the summary judgment evidence must still establish the existence of qualifying claims as a matter of law. See Williams v. Performance Diesel, No. 14-00063-CV, 2002 Tex. App. LEXIS 2735, at *9- 14 (Tex. App.—Houston [14th Dist.] Apr. 18, 2002, no pet.) (mem. op.) (holding plaintiff failed to prove claim arising at time of or within reasonable time of transfers as a matter of law). This lawsuit was filed on May 5, 2010, and the transfers to Poe necessarily occurred prior to that date. [2nd Supp CR 72, 319] Espinosa references the trial court’s order requiring Retirement Value to make restitution to participants in February 2013, but Espinosa did not reference any other evidence in his motion for summary judgment to show that there were claims that arose before or within a reasonable time after any transfers to Poe. See Tex. Bus. & Com. Code Ann. §§ 24.005(a), .006(a). There are thus genuine issues of material fact as to whether any participants had qualifying claims under TUFTA. Because this element is common to each of Espinosa’s TUFTA theories against Poe, the summary judgment must be reversed in its entirety. 17 C. Actual Intent – TUFTA § 24.005(a)(1)7 Espinosa again relies on Ponzi scheme and fraudulent scheme cases in an effort to meet his burden of proving actual intent as a matter of law, arguing in his brief that “[p]roving that a debtor operated as a Ponzi scheme proves actual intent to hinder, delay, or defraud any creditor or debtor required by TUFTA § 24.005(a)(1).” [Appellee Brief, p. 34-35; pp. 32-38] The trial court did not, however, grant summary judgment for Espinosa on this theory, meaning Espinosa cannot now rely on it as a basis for this Court to affirm the summary judgment. [CR 1973-74] See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Espinosa attempts to sidestep this hurdle by claiming that there is no difference between a Ponzi scheme and a fraudulent scheme. [Appellee Brief, p. 34] Distinction or not, the trial court denied summary judgment on Espinosa’s theory that Retirement Value operated as a Ponzi scheme or fraudulent scam. Espinosa’s motion for summary judgment included seven pages of argument that the Licensees were participants in a Ponzi scheme or fraudulent scam, that “agents in a fraudulent investment scam are required to return the income derived from the scam,” and that the Licensees “have to return their commissions as a matter of law. [2nd CR 7 See Appellants’ Brief, pp. 60-64. 18 Supp 7-13] In a separate section of his motion, Espinosa asserted an alternative TUFTA argument. [2nd Supp CR 13] The trial court granted summary judgment only on Espinosa’s alternative TUFTA claim. [CR 1973- 74] In other words, Espinosa expressly asked the trial court to grant summary judgment on the ground that Retirement Value operated as a Ponzi scheme or fraudulent scam—the same argument he now relies on as proof of an alleged fraudulent intent for transfers to Poe—but the trial court denied summary judgment on that theory of liability. The trial court’s order is specific to the TUFTA claim only, meaning this Court cannot affirm summary judgment on a ground on which the trial court denied summary judgment. See id. This is significant here because Espinosa points to no other evidence of fraudulent intent for any transfer to Poe under Tex. Bus. & Com. Code Ann. § 24.005(a)(1). The statute clearly requires that the debtor make “the transfer” with fraudulent intent, 8 but Espinosa’s only argument is that all transfers were fraudulent because Retirement Value operated as a Ponzi scheme or fraudulent scam, the theory on which the trial court denied summary judgment. Nowhere in his briefing to the trial court or to this 8 In relevant part, section 24.005(a)(1) states that “[a] transfer made . . . by a debtor is fraudulent . . . if the debtor made the transfer . . . with actual intent to hinder, delay, or defraud any creditor of the debtor.” Tex. Bus. & Com. Code Ann. § 24.005(a)(1) (emphasis added). 19 Court does Espinosa attempt to show evidence of fraudulent intent with regard to a commission transfer to Poe. Because section 24.005(a)(1) requires proof that a specific transfer was made with fraudulent intent and because the trial court denied summary judgment on Espinosa’s theory that all transfers to Licensees were fraudulent, Espinosa failed to prove as a matter of law that Retirement Value transferred commissions to Poe in violation of section 24.005(a)(1). D. Insolvency and Remaining Assets – TUFTA § 24.005(a)(2) & § 24.006(a) 9 Espinosa clarified that he does not contend that a commission payment to Poe rendered Retirement Value insolvent. [Appellee’s Brief, p. 48] Rather, Espinosa contends that Retirement Value was insolvent from its inception, [Appellee Brief p. 48] but the summary judgment evidence is conflicting on that issue in many respects. Retirement Value had $154 million in life insurance policies and $25 million in cash and securities at the time of the receivership and gained another $4 million in cash by August 2011. [2nd Supp CR 92-93, 734-38] Retirement Value’s liabilities are alleged to be approximately $77 million, far less than its assets. Retirement Value never had an obligation to 9 See Appellants’ Brief, pp. 44-60. 20 reserve premiums sufficient to cover all insurance policies through maturity because the participants were obligated to contribute once the initial premium reserves were exhausted, which would fund the policies to maturity. [2nd Supp CR 645, 642-62] The maturing policies then funded the payments back to the participants. [2nd Supp CR 720, 645] The cash and insurance policies on hand exceeded the amount of Retirement Value’s liabilities. Espinosa told the bankruptcy court that Retirement Value had forty- eight life insurance policies and about $30 million in cash, that Retirement Value needed about $19 million in cash to pay for all of the policies through maturity, and that there was sufficient cash in reserve to hold all life insurance policies to maturity and pay all participants their money back “in full.” [2nd Supp CR 734-38] This evidence, much of it from Espinosa himself, contradicts Espinosa’s contentions that Retirement Value was insolvent from its inception. There were also issues with Espinosa’s summary judgment evidence, including qualifications, methodology, and credibility determinations that should have been reserved for a jury. It is well settled that all inferences, including credibility and weight-of-the-evidence determinations, must be resolved in favor of the nonmovant. See, e.g., Great Am. Reserve Ins. Co. 21 v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Among other things, Burchett admitted that at policy maturity, Retirement Value would receive the face amount of the policy and would have more than enough money to pay the $77 million in liability to the participants. [2nd Supp CR 758] Burchett also conceded in his deposition that in order to determine fair value, one must determine what a willing buyer would pay and what a willing seller would accept for an asset or liability. [2nd Supp CR 761] Burchett admitted that, on the open market, the liability represented by the obligation to the participants would be discounted and that the fair value of the liability was different from what he represented in his report. [2nd Supp CR 761] See Waller v. Pidgeon, No. 3:06-CV-0506-D, 2008 U.S. Dist. LEXIS 44238, at *16-22 (N. D. Tex. June 5, 2008) (mem. op.) (holding that plaintiff receiver failed to prove insolvency as a matter of law because TUFTA does not require book value for liabilities and that the adjusted fair value of defendant’s liabilities was less than the fair value of the assets). The law thus contemplates the adjustment of liabilities to represent their fair value, a calculation Burchett did not perform. There are also fact issues as to whether Espinosa and his experts credibly testified to the fair value of Retirement Value’s assets. Fact questions thus remain as to the fair value of Retirement Value’s liabilities and assets. 22  Espinosa also contends that Poe presented no expert testimony to contradict Espinosa’s evidence of the fair value of Retirement Value’s assets. [Appellee Brief p. 30, 50] But the law does not impose a burden on Poe to present expert testimony in opposition to a motion for summary judgment when the movant’s own summary judgment evidence fails to establish entitlement to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999) (“The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense.”). Regardless, Poe presented substantial evidence in response to the motion for summary judgment, including excerpts from the depositions of Espinosa and Burchett that called their opinions into question. All conflicts in the summary judgment evidence must be resolved in Poe’s favor, including the inconsistencies within Espinosa’s own evidence and the controverting evidence presented through Poe’s response, and the trial court erred by granting Espinosa’s motion for summary judgment. PRAYER Appellants Poe and Senior Retirement Planners, LLC respectfully request that the Court reverse the trial court’s judgment in its entirety and render a take-nothing judgment against Espinosa for all of his claims 23 against Appellants. Alternatively, Appellants pray that the Court reverse the trial court's judgment and remand for a new trial. Appellants also generally pray for rendition of judgment in their favor, or alternatively, for remand for a new trial on any ground this Court deems appropriate. Respectfully submitted, ALDRICH PLLC Scott Lindsey State Bar No. 24036969 slindsey@aldrichpllc.com 1130 Fort Worth Club Tower 777 Taylor Street Fort Worth, Texas 76102 Telephone: 817-336-5601 Telecopier: 817-336-5297 ATTORNEYS FOR APPELLANTS JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC 24  CERTIFICATE OF COMPLIANCE I certify that this brief was produced on a computer using Microsoft Word and contains 5,171 words, as determined by the computer software's word-count function, excluding the sections of the brief listed in Texas Rule of Appellate Procedure 9.4(i)( 1). Scott Lindsey CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was delivered pursuant to Rule 21 a, Tex. R. Civ. P., to all counsel or parties of record as shown below. Dated this 281h day of August, 2015. Via electronic service and e-mail: John W. Thomas jthomas@gbkh.com George, Brothers, Kincaid & Horton, L.L.P. 114 W. Seventh, Suite 1100 Austin, TX 78701-3015 ATTORNEY FOR APPELLEE Scott Lindsey 25  NO. 03-14-00518-CV IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS JAMES POE AND SENIOR RETIREMENT PLANNERS, LLC, Appellants vs. EDUARDO S. ESPINOSA, IN HIS CAPACITY AS RECEIVER OF RETIREMENT VALUE, LLC, Appellee APPELLANTS’ REPLY APPENDIX I. Final Judgment – Cause No. 17-237012-09, Rife-Marshall v. Dalworth Restoration, Inc. ................................. Tab 1 26  CAUSE NO. 17-237012-09 MRS. ANGIE § IN THE DISTRICT COURT RIFE-MARSHALL § § Plaintiff, § § vs. § TARRANT COUNTY, TEXAS § DALWORTH RESTORATION, INC. § (LIBERTY MUTUAL) § Defendant. § § § 17T11 JUDICIAL DISTRICT FINAL JUDGMENT BE IT REMEMBERED THAT this case came on for trial by jury at 9:00a.m. on Monday, 16 April 2012, and the parties were present and had with them their counsel, and all did at that time announce ready, and a jury was selected and seated, and then the presentation of the case to the jury did begin, and it continued thereafter from day to day until the jury returned a verdict; and during J that time period and prior to the time when jury argument was completed and the jury retired to deliberate no party requested and received leave of Court to file any late filed pleading; but after the jury did retire to deliberate one party, being Plaintiff, did request permission pursuant to Rule 66 for the filing of a Trial Amendment, which said request was Denied; and the jury did continue its deliberations and on the afternoon of Friday, 20 April2012, did return its verdict in open court; and at that time, upon request of counsel for Plaintiff, and with no objection made, the jury was polled, and it appearing that there was in fact a verdict of the jury with no indication to the contrary when the jury was polled by the Court, the verdict of the jury was then received and filed, on the afternoon FINAL JUDGMENT Page I Copy mailed to each Pro Se AndAttomey..of~ecord · Court's Minutes - \\ ~-\\.~T-\'~ . Transaction#~ {\\ij~;:!,\" \ ~\'\\)\~ ~ I of Friday, 20 Apri120 12, and at that time the jury was dismissed, no party objecting to the dismissal of the jury; and the jury by its verdict having found fault (negligence) on the part of one party only, that being defendant, Dalworth Restoration, Inc., and having made findings that this negligence caused harm to Plaintiff for "damage related to personal property" in the amount of $I 0 I ,000.00, and caused "mental anguish sustained by Plaintiff in the past" in the amount of $50,000.00, which totals $151,000.00; and the Court finding from the record of the case that claims in this case were first filed by Plaintiff against the defendant, Dalworth Restoration, Inc., on or about I1 January 20 I 0; and the Court having confirmed that there is no evidence in the record of any offer of settlement or other activity which would impact the calculation of pre-judgment interest under the · statutes of the State of Texas, and it appearing therefore that the amount of pre-judgment interest to be due and owing in this case through the date of the signature of this judgment 1 is $12,080.00; it is, therefore, ORDERED, ADJUDGED AND DECREED, that PLAINTIFF, MRS. ANGIE RIFE- MARSHALL, to have and recover against DEFENDANT, DALWORTH RESTORATION, INC., as damages, including pre-judgment interest, the total amount of $163 ,080.00; and, it is, further, ORDERED, ADJUDGED AND DECREED, that, from the date of the signing of this judgment until the date of satisfaction in full of this judgment, post-judgment interest shall accrue at the highest lawful and statutory rate as provided by the laws of the State of Texas; and, it is, Actually, this calculation is based on a rate of 5% per annum, and assumes this judgment had been signed on the date (20 April 2012) when the jury returned its verdict; and also, since the claim · against Dalworth was filed [see: Court EXHIBIT "2"] on 11 January 2010, and the 18P1 day thereafter is 11 July 2010, and the length oftime from 11 July 2010 to 20 April2012 is in excess of 21 months, the total interest rate for this period has been "rounded down" to 8%; and $151,000.00 X 8% = $12,080.00. FINAL JUDGMENT Page2 further, ORDERED, ADJUDGED AND DECREED, that Plaintiff shall, and does, recover over and against Defendant all taxable costs of court, which shall be established through the preparation of a proper Bill of Costs by the Clerk of this Court in customary manner, should such Bill of Costs be requested by Plaintiff; and, it is, further, ORDERED, ADJUDGED AND DECREED, that, upon request of Plaintiff, execution shall · issue from this Court in connection with this judgment, and for enforcement and satisfaction of it, there being no indication that any portion of the amount awarded to Plaintiff by this judgment, or any portion of that amount, has been paid by DEFEND ANT, Dal worth Restoration, Inc., to Plaintiff. Signed this the '2012. FINAL JUDGMENT Page3 

236 Minn. 366 (1952) RICHARD D. HUTCHINSON, A MINOR, BY EDWIN T. HUTCHINSON, HIS FATHER AND NATURAL GUARDIAN, v. EDWARD F. COTTON.[1] No. 35,645. Supreme Court of Minnesota. April 18, 1952. William H. DeParcq, Donald T. Barbeau, and Chester D. Johnson, for appellant. Warren B. King and Freeman, King, Larson & Peterson, for respondent. *367 CHRISTIANSON, JUSTICE. This case arises out of an action to recover damages for personal injuries allegedly caused by defendant's negligence. Appeal is taken from an order denying plaintiff's motion for a new trial made after the return of a verdict for defendant. The sole issue on appeal concerns the correctness of the trial court's refusal to instruct as requested that defendant's violation of a zoning ordinance provision constituted negligence per se. Defendant, a building contractor by trade, maintained a workshop in a garage attached to his home in the residential district of the village of St. Louis Park, Minnesota. At the time of the injury, he was operating therein a power-driven jointer to plane three pieces of lumber which he intended to use as window frames in a home he was constructing two lots away. As boards were passed through the jointer, power-driven blades on a cylinder cut off shavings, which fell to the floor through a chute beneath the cylinder. Plaintiff, then five years of age, was injured when he inserted his left hand into the chute in an attempt to get some shavings and brought it in contact with the moving blades. The case was submitted to the jury on general instructions of negligence, and a verdict returned for defendant. No error is assigned upon the instructions given. Plaintiff's sole contention is that defendant's operation of the jointer violated § 4 of the village zoning ordinance of St. Louis Park forbidding the conduct of a business in a private residential dwelling area,[2] and that the trial *368 court erred in refusing to instruct that such a violation by defendant constituted negligence per se. We shall assume that sufficient evidence of violation has been shown. The only liability expressly imposed for violating the ordinance is that of fine or imprisonment.[3] However, plaintiff invokes the doctrine, well established in Minnesota, that, under certain circumstances, where a statute or ordinance[4] embodies a standard of conduct designed to protect a class of which plaintiff is a member, it is proper to substitute the legislative standard for that of the reasonable prudent man in determining whether defendant is civilly liable in negligence for having caused plaintiff's injury.[5] We agree with the court below that this doctrine is inapplicable to the instant case. A zoning ordinance is not a safety statute in the usual sense of that term. Generally, zoning ordinances are regarded as being aimed primarily at conserving property values and encouraging the most appropriate use of land.[6] Nevertheless, the general safety of the community is unquestionably improved by *369 such ordinances; and, as indicated by the preamble to the ordinance in question, safety ranks among the purposes for their enactment. In the instant case, we shall assume that by prohibiting business use of residential premises the ordinance provision here in question contributes to community safety by tending to reduce both the number of power machines and the amount of their use in the residential district. However, the question remains whether the provision imposes a standard of conduct intended to measure civil liability. In our opinion it does not. Section 4, subsection 12, of the ordinance authorizes — "Use customarily incidental to * * * [a private dwelling] when located on the same lot and not involving the conduct of a business; including home occupations engaged in by the occupant of a dwelling and not involving the conduct of a business on the premises, * * *." The net effect of this provision is that in many situations violation of the ordinance is dependent solely upon the purpose for which a given act is done. For example, in the instant case neither the presence of the jointer in the garage nor its operation violated § 4 of the ordinance. Had the machine been used, as it sometimes was, solely to further a woodworking hobby of defendant, no question of violation could arise. Any violation of the provision stems from the purpose for which the machine is being used. Within the area of acts which might be considered uses incidental to a private dwelling, the test of violation becomes one of motive. Motive may be one of the relevant considerations in establishing a standard of conduct to measure negligence; and, conceivably, a legislative body might reasonably decide that all acts done for a given purpose are negligent per se, even though not negligent if done for other purposes. However, an enactment which would make negligent all acts done for a business purpose would require the most careful legislative deliberation and the weighing of policy considerations. Such an intent should not be lightly inferred by the courts. From the language of the zoning ordinance before us, it does not clearly appear that the village council intended that § 4, *370 subsection 12, the violation of which depends solely on the motive or purpose of the actor, should serve as a standard of conduct by which to measure the negligence of an alleged tortfeasor. Therefore, we hold that the trial court did not err in refusing to give the requested instructions. In view of our decision on this point, it is unnecessary to discuss the questions of the class intended to be protected, proximate cause, and others of a similar nature. Affirmed. NOTES [1] Reported in 53 N.W. (2d) 27. [2] "An ordinance relating to and regulating the location, size and height of buildings, the arrangement of buildings on lots, and the density of population in the Village of St. Louis Park, and for the purpose of promoting the public health, safety, order, prosperity and general welfare in said Village and for said purpose to divide said Village into districts and make different regulations for different districts. * * * * * * * * "§ 4. In the Residential District, * * * no building * * * shall be used * * * except for one or more of the following uses: "1. Private dwellings, * * *. * * * * * "11. Accessory buildings including one private garage or private stable, when located on the same lot, or parcel of property. Such accessory building shall not be used wholly or in part as a dwelling, except by one or two household employes and their families, of the occupant of the dwelling, nor for the conduct of any business, * * *. "12. Use customarily incidental to any of the above uses when located on the same lot and not involving the conduct of a business; including home occupations engaged in by the occupant of a dwelling and not involving the conduct of a business on the premises, * * *." [3] Section 24 of the ordinance reads as follows: "Any persons who violate or refuse to comply with any of the provisions of this ordinance, shall, upon conviction thereof, be subject to a fine of not less than $5.00 or more than $100.00 for each offense, or to imprisonment not exceeding 90 days. Each day that a violation is permitted to exist that shall constitute a separate offense." [4] Bott v. Pratt, 33 Minn. 323, 23 N.W. 237. [5] Osborne v. McMasters, 40 Minn. 103, 41 N.W. 543. See, generally, Standafer v. First Nat. Bank, 236 Minn. 123, 52 N.W. (2d) 718; Dart v. Pure Oil Co. 223 Minn. 526, 27 N.W. (2d) 555, 171 A.L.R. 885; 19 Minn. L. Rev. 667, and cases cited. [6] Yokley, Zoning Law and Practice, §§ 10, 11; Smith, Zoning Law and Practice, § 2; Rathkopf, Law of Zoning and Planning (2 ed.) § 1, p. 2.

570 P.2d 612 (1977) 91 N.M. 74 John B. GRIEGO, Plaintiff-Appellant, v. John WILSON and Barcelona Cash Lumber Store, Inc., Defendants-Appellees. No. 2840. Court of Appeals of New Mexico. September 20, 1977. *613 Charles H. Reid, Montoya & Montoya, Albuquerque, for plaintiff-appellant. Mary C. Walters, Albuquerque, Robert E. Poulson, Wheeler & Poulson, Albuquerque, for defendants-appellees. OPINION SANDENAW, District Judge. John B. Griego, Plaintiff, brought suit to recover compensatory and punitive damages for personal injuries allegedly sustained as the result of an assault and battery. The incident arose while Plaintiff was a customer in Defendant's place of business. After trial to the Court, the complaint was dismissed with prejudice. Plaintiff appeals. We affirm. Griego raises three issues: (1) Whether or not an assault and battery was committed by the Defendant John B. Wilson; (2) Whether or not justification existed to excuse an assault and battery, if such took place; and (3) If justified, whether or not Defendant used excessive force thereby overcoming justification? These issues are raised by attack on several of the trial court's findings of fact and conclusions of law. Griego also asserts error in refusing to give certain of his requested findings and conclusions. As to the trial court's findings of fact, we view the evidence in the light most favorable thereto to determine if there is substantial support. Fierro v. Murphy, 85 N.M. 179, 510 P.2d 112 (Ct.App., 1973). If ample support is found, the findings and conclusions will not be disturbed on appeal. Farmers and Stockmens Bank of Clayton v. Morrow, 81 N.M. 678, 472 P.2d 643 (1970). The findings which have been attacked may be summarized as follows: The Plaintiff, Griego, was angry, abusive, profane and used obscene gestures toward John Wilson and other employees, advancing on one of them. Wilson cautioned him to stop. The Plaintiff's conduct was provocative, abusive, offensive, threatening, and vulgar. Employees offered to make a refund because of the conduct, and upon continued observance, Wilson became apprehensive that Griego was provoking a disturbance and about to attack an employee, whereupon Wilson restrained him. Even though there is contradictory evidence as to the facts presented in the trial, the trial court's findings are the ones which are before this court on appeal and will be sustained unless unsupported by substantial evidence. Ortiz v. Mason, 89 N.M. 472, 553 P.2d 1279 (1976). The record supports these findings. Griego's requested findings were basically contrary to those given. The trial court's refusal to adopt requested findings must be regarded as a finding against the appellant. Ortiz v. Mason, supra. Griego's requested conclusions, material to the issues phrased above, were to the effect that a business invitee must be requested to leave and warned of the consequences of his failure to do so before force or restraint can be used, and thereafter, only reasonable force may be used to restrain or eject him. The trial court concluded Wilson did not use excessive force and that Wilson was justified in his restraint of Griego. Assuming, for purposes of the ensuing discussion, that an assault and battery occurred, the first question to be resolved is whether or not Wilson's acts were justified. Wilson alleges that this is a case of first impression in this jurisdiction on the issue of justification as a defense. We are not directed to any New Mexico cases by either party and have found none. *614 Griego responds that "justification" was neither plead nor proved. We have already held there was substantial evidence in the record to support the trial court's findings; therefore, the contention regarding lack of proof requires no further comment. Was "justification" adequately plead? The complaint alleged that Griego was lawfully on Defendant's property, and that Wilson, acting in the course of his employment, made a violent and unlawful assault on Griego without cause. The Answer constitutes a general denial and includes, as a "First Defense", the allegation that Griego made an unprovoked attack and assault on Wilson and instigated the altercation. The Answer as thus worded was sufficient to apprise the Plaintiff that Defendant's acts were justified. Moreover, a review of the record as a whole reflects that the issue was litigated without objection. Griego cannot now complain that the matter was first brought up on appeal. See Posey v. Dove, 57 N.M. 200, 257 P.2d 541 (1953), where a similar question arose and the Court concluded: "It appearing that said defense complained of was available under the issue litigated, and that substantial competent evidence supports its pre-requisite facts found by the court, the trial court did not commit error in considering such defense and making decision on it." (57 N.M. 206 at 210, 257 P.2d at 546) We therefore conclude that the trial court, in the present case, was not precluded by the pleadings and evidence from concluding that Wilson was justified in restraining Griego. This conclusion, however, does not resolve the issue of a proprietor's privilege or justification in ejecting or restraining a customer. We hold that the proprietor of a business has the right to expel or restrain a person who by virtue of abusive conduct refuses to leave or persists in this abusive conduct after being cautioned, though that person was initially on the premises by express or implied invitation, so long as the expulsion or restraint is by reasonable force. See Ramirez v. Chavez, 71 Ariz. 239, 226 P.2d 143 (1951); Penn v. Henderson, 174 Or. 1, 146 P.2d 760 (1944); Crouch v. Ringer, 110 Wash. 612, 188 P. 782 (1920); Austin v. Metropolitan Life Insurance Co. of New York, 106 Wash. 371, 180 P. 134, 6 A.L.R. 1061 (1919); Johanson v. Huntsman, 60 Utah 402, 209 P. 197 (1922). Annot., Right to Eject Customer from Store, 9 A.L.R. 379. This brings us to the third of the issues listed above: if justified, whether or not the defendant used excessive force thereby overcoming justification? We hold he did not. The record, as noted above, supports the trial court's findings pertaining to the reasonableness of the restraint. Likewise, the findings support the conclusion that the Defendant Wilson did not use excessive force. We find no error. The judgment of the trial court is affirmed. SUTIN and LOPEZ, JJ., concur.

705 F.Supp.2d 14 (2010) DISTRICT OF COLUMBIA, Plaintiff, v. John A. STRAUS, et al., Defendants. Civil Action No. 08-2075 (RWR). United States District Court, District of Columbia. April 12, 2010. Richard Allan Latterell, Office of the Attorney General, Washington, DC, for Plaintiff. Roxanne D. Neloms, James E. Brown & Associates, Washington, DC, for Defendants. *15 MEMORANDUM OPINION RICHARD W. ROBERTS, District Judge. The District of Columbia ("DC") unsuccessfully sued attorney John Straus and his law firm, James E. Brown & Associates, seeking attorneys' fees under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415, claiming that the District of Columbia Public Schools ("DCPS") was the prevailing party in an administrative proceeding that Straus had needlessly brought and continued. The defendants now seek attorneys' fees under Federal Rule of Civil Procedure 54(d), arguing that DC acted in bad faith throughout the course of the litigation. Because the defendants have not established that DC's efforts were undertaken in bad faith, their petition for fees will be denied. BACKGROUND In the underlying action, Straus represented a child with special educational needs who was enrolled in a DC public high school. A DCPS multidisciplinary team referred the child to DCPS for a psychiatric evaluation. Because DCPS failed to conduct the evaluation, Straus filed an administrative due process complaint on behalf of the child and his legal guardian. The complaint sought to have DCPS fund an independent evaluation. Three business days after Straus filed the complaint, DCPS authorized Straus to obtain an independent evaluation at DCPS' expense. Thereafter, a hearing officer dismissed the complaint with prejudice on the ground that DCPS' authorization mooted the issue. The hearing officer added his conclusions that Straus had filed the complaint without foundation and had groundlessly maintained the litigation after it became moot. DC then brought this action and moved for summary judgment, claiming that DCPS was the prevailing party in the administrative proceeding and it therefore was entitled to attorneys' fees. However, judgment as a matter of law was entered in the defendants' favor because DCPS was not a prevailing party. DC appealed the decision, the D.C. Circuit affirmed, and the defendants now move under Rule 54(d) for attorneys' fees, arguing that DC brought and pursued this action in bad faith and therefore they are entitled to a fee award. DC opposes the motion, disputing that defendants have demonstrated any bad faith. DISCUSSION "In the United States, parties are ordinarily required to bear their own attorney's fees—the prevailing party is not entitled to collect from the loser." Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Resources ("Buckhannon"), 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); see also Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). "Under this `American Rule,' we follow `a general practice of not awarding fees to a prevailing party absent explicit statutory authority.'" Buckhannon, 532 U.S. at 602, 121 S.Ct. 1835 (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)). Numerous statutes, including the IDEA, provide for an award of attorneys' fees for the prevailing party. That party may move under Rule 54(d) for a fees award by specifying "the statute, rule, or other grounds entitling the movant to the award." Fed. R.Civ.P. 54(d)(2)(A), (B)(ii). When there is no statutory authorization for such an award, a court may "consider whether the requested fee award [falls] within any of the exceptions to the general `American Rule[.]'" Alyeska Pipeline Serv. Co., 421 U.S. at 245, 95 S.Ct. 1612. In Alyeska, the Supreme Court set *16 forth these common law exceptions, which include circumstances "where a party has brought an action as a trustee of a fund or property or to preserve or recover a fund for the benefit of others in addition to himself" or where the non-movant has acted in "bad faith." In re Antioch Univ., 482 A.2d 133, 136 (D.C.1984) (internal quotation marks omitted). "Legal fees may... be levied against a party who has willfully disobeyed a court order or when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. (internal quotation marks omitted); see also Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Am. Hosp. Ass'n v. Sullivan, 938 F.2d 216, 219 (D.C.Cir.1991); Ellipso, Inc. v. Mann, 594 F.Supp.2d 40, 43 (D.D.C.2009). Notwithstanding these exceptions, "courts do not have `roving authority' to allow counsel fees whenever deemed warranted." In re Antioch Univ., 482 A.2d at 136 (quoting Alyeska Pipeline Serv. Co., 421 U.S. at 260, 95 S.Ct. 1612). "Bad faith can support an award of attorneys' fees in circumstances where the bad faith (1) occurred in connection with the litigation, or (2) was an aspect of the conduct giving rise to the lawsuit." Am. Hosp. Ass'n, 938 F.2d at 219. Bad faith occurring in connection with the litigation can include "the filing of a frivolous complaint or meritless motion, ... or discovery-related misconduct." Id. at 219-20 (internal citations omitted). "Bad faith in conduct giving rise to the lawsuit may be found where `a party, confronted with a clear statutory or judicially-imposed duty towards another, is so recalcitrant in performing that duty that the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal rights.'" Id. at 220 (quoting Fitzgerald v. Hampton, 545 F.Supp. 53, 57 (D.D.C. 1982)). Further, "the substantive standard for a finding of bad faith is `stringent' and `attorneys' fees will be awarded only when extraordinary circumstances or dominating reasons of fairness so demand." Ass'n of Am. Physicians and Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C.Cir.1999) (quoting Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 702 (D.C.Cir.1986)). "[T]he finding of bad faith must be supported by `clear and convincing evidence[.]'" Id. (quoting Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1476-78 (D.C.Cir.1995)). This "`generally requires the trier of fact, in viewing each party's pile of evidence, to reach a firm conviction of the truth on the evidence about which he or she is certain.'" Id. (quoting United States v. Montague, 40 F.3d 1251, 1255 (D.C.Cir.1994)). The defendants advance three main arguments to establish bad faith.[1] The defendants complain that DC's Attorney General contacted the press and "provide[d] interviews to the Washington Post and the City Paper" about filing this case, thereby "cho[osing] to make this matter a media event[.]" (Defs.' Reply at 3.) It is hardly a novel concept, much less evidence of bad faith, that a jurisdiction's chief law enforcement officer would choose to make public his initiatives. The defendants also argue that DC had no "interest [in] resolving this matter amicably, adumbrating that it wanted a decision and thereafter ... refus[ing] seriously [to] engage in settlement discussions." (Id.) That a party in litigation chooses to seek a decision on the merits as opposed to settle the case does not alone establish bad faith or necessarily *17 reflect an illegitimate litigation strategy. Defendants' final argument—that DC's decision to appeal the judgment against it shows bad faith (id.)—wholly lacks merit and warrants no discussion. DC's efforts here reflected zealous, if misguided, advocacy, but the defendants have made no showing meeting the stringent standards required to establish bad faith. Thus, defendants are not entitled to attorneys' fees, and their petition for fees therefore will be denied. CONCLUSION Because the defendants fail to make a factual showing of bad faith by DC, their petition for attorneys' fees will be denied. A final, appealable Order accompanies this Memorandum Opinion. NOTES [1] The defendants offer no support for their conclusory allegation that DC brought this litigation based on a baseless claim (Defs.' Reply at 4), nor have defendants argued that DC filed any meritless motions during the course of litigation, or that DC committed any discovery-related misconduct.

51 N.J. 62 (1968) 237 A.2d 857 LESLIE BOWERS, PLAINTIFF-APPELLANT, v. CAMDEN FIRE INSURANCE ASSOCIATION, DEFENDANT-RESPONDENT. The Supreme Court of New Jersey. Argued October 24, 1967. Decided January 22, 1968. *66 Mr. Milton L. Silver for appellant. Mr. Roy D. Cummins for respondent (Messrs. Orlando & Cummins, attorneys; Mr. George H. Hohweiler, of counsel). The opinion of the court was delivered by FRANCIS, J. Plaintiff Leslie Bowers obtained a judgment against defendant Camden Fire Insurance Association for $9,000, plus interest, representing the excess over the limit of coverage of his liability policy of a judgment against him in an automobile accident suit. The Appellate Division reversed, 93 N.J. Super. 302 (App. Div. 1967), and this Court granted certification, 49 N.J. 20 (1967). Prior to May 21, 1961, the Association had issued an automobile liability insurance policy to Bowers. By its terms, the Association agreed to pay on his behalf all sums which he became "legally liable to pay as damages" because of bodily injuries suffered by any person in an accident arising out of the operation of the insured vehicle, up to a limit of $20,000. The policy reserved to the insurer the right to "make such investigation, negotiation and settlement of any [covered] claim or suit as it * * * [deemed] expedient." On May 21, 1961, in the daylight hours, plaintiff Bowers was involved in an accident while driving his automobile on Clinton Street in Clayton, New Jersey. The car came into *67 contact with Albert Seagrave, a 21-months old infant who was in the street at the time. There were no eye witnesses and no one said Bowers was driving at an unreasonable speed. He did not see the little child before the impact. There were no cars parked along the curb at or near the scene to obstruct his vision. He first became conscious that something had happened when he felt and heard a thump on the right side of his car. He stopped and found the child lying behind his right rear wheel. At this time the right side of the car was at least eight feet away from the curb. The child was taken to the hospital immediately. Clinton Street is a residential area. Bowers was familiar with it and knew that children played along and in the street. The accident happened in front of the Seagrave boy's home located on the right side of the street in the direction in which Bowers' car was proceeding. As he approached the Seagrave home, he had a clear view of the lawn in front of it, the sidewalk and the grass plot between the sidewalk and the curb and the street. After the accident, Bowers immediately notified his insurer, and it undertook the investigation of the circumstances and the Seagrave child's injuries. At this time it was Bowers' view that he had not been guilty of negligent driving which caused the mishap. Thereafter, a suit was brought against him in the Superior Court, Law Division, to recover damages for the child's injuries and for the consequential losses sustained by his father. In accordance with its policy obligation, the Association undertook the defense thereof. The investigation had revealed that the child's injuries were serious. After examining the various medical and hospital reports, the attorney who was engaged by the insurer to defend the suit concluded that if the trial resulted in a verdict for the plaintiff, it would probably exceed the policy limit of $20,000. As he put it in the present case, "to me, it was a very serious case on the injury end." Therefore, in accordance with the Association's practice in such cases, he wrote Bowers calling attention to the serious nature of the *68 injuries. He advised that if a verdict exceeded the policy limit, Bowers would be personally responsible for the excess. The letter also informed him that he could, if he wished, engage a personal attorney to cooperate in defense of the law suit. Bowers decided against retaining independent counsel. The record is unclear on the matter of settlement prior to trial. Plaintiff's attorney had no clear recollection of submitting any settlement demand. The insurer's attorney testified that he offered $12,000 or $14,000, probably $14,000, but the offer was neither accepted nor was any counter-proposal made. The complaint in the present action, however, alleges that prior to trial of the damage suit, the Seagraves' attorney offered to settle their claims for the policy limit, $20,000. The answer of the insurer admits that fact. In any event, the case proceeded to trial. At the trial, the evidence of Bowers' negligence was purely circumstantial. The jury found it sufficient, however, and returned a verdict of $20,000 for the infant and $9,000 for his father's consequential losses. After the verdicts were returned, defense counsel discussed the matter with Bowers, who indicated he still felt he was not responsible for the accident. During this conversation, when advised of his right of appeal, Bowers indicated that he favored such an appeal. Thereafter, defense counsel first sought a new trial. The grounds urged were that as a matter of law the facts proved were insufficient to justify verdicts for the plaintiffs, and that the verdicts were contrary to the weight of the evidence. After hearing argument, the trial court denied the motion. At the time the motion was argued, and before a decision was rendered, the Seagraves' attorney told the court and defense counsel that if the insurance carrier would pay its limit of $20,000, he would recommend that his clients accept it in settlement of the $29,000 judgments. Later that day, this $20,000 offer of settlement was repeated by letter to Bowers' insurer-provided attorney. The offer was conditioned upon termination of the litigation. This letter, which was admitted in evidence in the suit on the policy over defendant's *69 objection, expressed the opinion that a successful appeal was unlikely. Defendant was warned also that if it was unwilling to settle on the basis suggested, "and unreasonably gambles on the result of an appeal," it "could be held liable" for the excess of the judgments because of a failure to act in good faith on behalf of its insured. Four days later, Bowers was notified by the carrier's attorney that the motion for new trial had been denied. The letter advised him of Seagraves' offer to settle for $20,000, and told him also that the Association had refused because "it feels as I do, and also as you have indicated to me you felt, that there was no evidence from which the jury could have found negligence on your part, and the reasonable course is to appeal on that ground." Consequently, an appeal had been authorized. Bowers' consent to the appeal was not requested, nor was his viewpoint sought on the matter. It was suggested, however, that if he had any questions he should consult his personal counsel. Bowers testified in the present action that this letter was the first notice he had that the Seagraves would take $20,000 in payment of the $29,000 judgments. He said also that if he had known that fact after the verdict against him he would not have indicated to trial counsel that he favored an appeal. In any event, he engaged a personal attorney, as the Association had suggested, and after consultation they decided the appeal should not be prosecuted. A letter was then written to the insurer's attorney informing him that in light of the offer of settlement, Bowers no longer favored an appeal. The view was expressed also that there was no reasonable probability of success on appeal. Therefore, the Association was requested to make the settlement and advised that good faith required it to take such action. The letter concluded with notice that failure of the appeal would result in a suit by Bowers against the insurer for the excess of the judgment over the policy limits. It appears also that in addition to this letter, the matter was discussed by the two attorneys. In the discussion, Bowers' *70 personal attorney said he would not take an appeal. He voiced the opinion that the trial judge's ruling on the motion for a new trial — that the evidence of Bowers' negligence was sufficient to send the case to the jury — ought to be regarded as dispositive. Nevertheless, the offer of settlement was not accepted, nor was any counter-offer of a sum less than $20,000 made to the Seagraves. The appeal was pursued. After argument in the Appellate Division, a short per curiam opinion was filed affirming the $29,000 judgments. It pointed out that the sole grounds of the appeal were that there was insufficient evidence of Bowers' negligence to submit the issue to the jury, and that the trial court erred in refusing to grant the defense motion for a judgment of involuntary dismissal. As to these claims, the court said almost summarily, "we conclude that the proofs were sufficient to submit the issue of such alleged negligence to the jury." Following the affirmance, the Association paid its $20,000 insurance limit on the judgments. Shortly thereafter, Bowers instituted the present suit on the policy to recover the $9,000 excess plus accrued interest. The claim as submitted to the jury was predicated upon the charge that the insurer's refusal to accept the offer to settle the judgments for $20,000 had violated its duty to exercise good faith in the settlement of claims and judgments against Bowers. On that narrow issue the jury found against defendant and returned a verdict in favor of the insured for $9,000, plus interest. The appeal now before us involves that issue alone. Bowers does not assert that the Association was negligent in investigating the automobile accident, or in the preparation for the trial of the case. Nor does he charge that any duty toward him was violated because of the failure to effect settlement with the Seagraves prior to or during that trial. As indicated above, under the liability policy issued to Bowers, the Association reserved control of the settlement of claims against him that were within its coverage. In Radio Taxi Service, Inc. v. Lincoln Mut. Ins. Co., 31 N.J. 299 (1960), this Court laid down the general rule that such *71 reservation, viewed in light of the insurer's obligation to pay on behalf of the insured up to the policy limit all sums which he shall become legally obligated to pay, imposed upon the insurer the duty to exercise good faith in settling claims against him. We said that a decision not to settle must result from weighing, in a fair manner, the probabilities of a favorable or adverse verdict in the trial of a covered damage suit against the insured. We pointed out that the purpose of this type of insurance is to protect the insured from liability within the limits of the contract. The courts, we said, cannot allow the insurer to frustrate that purpose by a selfish decision as to settlement which exposes the insured to, and which results in, a judgment beyond the specific monetary protection which his premium purchased. Good faith is a broad concept. Whether it was adhered to by the carrier must depend upon the circumstances of the particular case. A decision not to settle must be a thoroughly honest, intelligent and objective one. It must be a realistic one when tested by the necessarily assumed expertise of the company. In cases like the present one, where the insurer recognizes the probability that an adverse verdict at the trial will exceed the limit of its policy, the boundaries of good faith become more compressed in favor of the insured. This potential exposure to a judgment for which he is only partly protected makes it obvious that ordinarily the interests of the insurer and the insured come into conflict whenever a settlement demand is presented which is within the limit of the coverage. When it is probable that an adverse verdict will exceed the policy limit, the propriety of an insurer's refusal to accept a settlement offer which is within the coverage requires a resolution of conflicting interests. In our judgment, in view of the duty of the insurer to act in good faith, the resolution can lead to but one fair result: both interests can be served justly only if the insurer treats any settlement offer as if it had full coverage for whatever verdict might be recovered, regardless of policy limits, and makes its decision *72 to settle or to go to trial on that basis. That rule, which we deem to be the appropriate one, has been applied in other jurisdictions in such cases. For example, in Murach v. Massachusetts Bonding & Ins. Co., 339 Mass. 184, 158 N.E.2d 338 (1959) it was said that to mitigate the danger that the insurer will favor its own interests to the exclusion of the insured's, good faith requires it to decide whether to settle a claim within the limits of the policy or to try the case as if no policy limit were applicable to the claim. So too, in American Fidelity & Cas Co. v. L.C. Jones Trucking Co., 321 P.2d 685, 687 (Okl. 1957) the court declared the proper rule to be "that both parties' interests must be given the same faithful consideration. The fairest method of balancing the interests is for the insurer to treat the claim as if the insurer alone were liable for the entire amount." To the same effect see Kaudern v. Allstate Ins Co., 277 F. Supp. 83 (D.N.J. 1967); Crisci v. Security Ins. Co., Cal., 58 Cal. Rptr. 13, 426 P.2d 173 (1967); Kinder v. Western Pioneer Ins. Co., 231 Cal. App.2d 894, 42 Cal. Rptr. 394 (Dist. Ct. App. 1965); Davy v. Public Nat'l Ins. Co., 181 Cal. App.2d 387, 5 Cal. Rptr. 488 (Dist. Ct. App. 1960). As we have said, there is no charge here of lack of good faith in failing to settle the Seagraves' claims before or during trial. The complaint relates to defendant's action in taking and prosecuting an appeal from the over-the-policy-limit judgments when a settlement could have been made on payment of the limit, and either refraining from an appeal, or withdrawing the appeal before the adverse determination in the Appellate Division. As we have noted above, the sole issue submitted to the jury was whether that action constituted a good faith discharge of its duty toward Bowers. It seems obvious that application of the good faith test must be more exacting at the appeal stage of the proceedings than before or during trial. Hazelrigg v. American Fidelity & Casualty Co., 241 F.2d 871 (10th Cir. 1957). Since settlement could have been made at that time for the policy *73 limit, which represented the full extent of the protection Bowers had paid for, he was the one whose interests were really put in jeopardy by the appeal. At that juncture, only the insurer stood to benefit by it. The trial judge's denial, in the automobile case, of the motion for judgment for defendant because in his opinion negligence sufficiently appeared to support a jury verdict, the jury's finding that Bowers' negligence was a proximate cause of the accident, and the trial judge's later denial of a new trial after a thorough review of the evidence, were new and significant factors that could not be ignored by the insurer. These factors, capped by the Seagraves' offer to settle for the policy limit to avoid the appeal, added stronger acid to the test of good faith. At this point certainly the carrier could not be partial in any way to its own interest. The insured had the right to assume that the duty to protect him would not be subordinated in the slightest because of the prospect that an unsuccessful appeal would cost no more than the proposed settlement. This meant that a decision to appeal could not spring from optimism unrelated to the realities of the situation. In our judgment, in circumstances such as existed in the present case, where the insurer alone can profit from a refusal to settle, the facts must point to the probability of a reversal. If such a likelihood does not appear, good faith can be demonstrated only by making the proposed settlement. What, then, is the consequence if the offer of settlement is refused and the appeal is lost, and the insured subsequently sues the insurer to recover the excess portion of the judgment? If the evidence is such as to create any reasonable basis for disagreement among reasonable minds as to whether the insurer discharged its duty of good faith, the question must be submitted to the jury or fact finder for determination. Defense counsel characterizes the damage suit as an unusual one because Bowers' negligence in the operation of his car had to be shown circumstantially. But courts and members of the bar, especially those with some expertise in *74 the trial of cases, know that if the circumstances are sufficient to generate a reasonable inference of negligence, frequently the inference is more potent than eye witness testimony. Moreover, it is well known that the search for this inference must be engaged in by looking at the circumstances in the light most favorable to the injured plaintiff. It was a simple matter at this trial to keep attention focused on the question of whether Bowers' driving was a culpable cause of the mishap. It was the only issue in the case on liability. No defense of contributory negligence was asserted against the 21-months old infant. We are thoroughly satisfied that sufficient inferences of Bowers' negligence arose from the circumstances appearing in the record to require submission of the question to the jury. The position of the car in the street at the impact, the location of the child's body with respect to the rear of the car, the probability that the child was in the street as Bowers approached, and the absence of any substantial obstruction to vision all serve to justify a jury finding that the incident would not have occurred had Bowers been making reasonably effective use of his powers of observation. Further, we agree with the trial judge's refusal to reverse himself and set aside the verdicts of the jury for the infant and his father. Consideration of the motion to set aside the judgments involved an even more deliberate evaluation of the facts adduced at the trial because of the cases presented by defense counsel in support of his contention that under the law there was no jury question. Incidentally, substantially the same cases, none of which was directly in point factually, were relied upon in the subsequent appeal to the Appellate Division. The reported opinions of our courts over many years demonstrate that the instances are rare in negligence cases when an appellate tribunal reverses a trial court's finding that the evidence was sufficient to support a jury verdict. That fact is well known to the trial bar, as the expert witness for the plaintiff testified here. Defendant's expert, who was trial counsel in the negligence case and who had handled "over a *75 half dozen" appeals at the time this case was tried, declined to concede the fact, saying he had no statistics on the subject. But whatever the state of his knowledge, obviously it was greater than that of Bowers. Certainly Bowers, who had much to lose if the Association pursued an unsuccessful appeal, was entitled to assume that the insurer's representatives were reasonably aware of the circumstances which create an inference of negligence. Further, he was entitled to assume that the insurer had knowledge of the generally unfavorable results of appeals based upon the claim that there was a complete absence of evidence of negligence, and that such knowledge would be acted upon as though defendant would be bound to pay the full $29,000 if an appeal were unsuccessful. Defendant's witnesses gave three reasons for the decision to appeal: (1) Bowers' feeling before and during the trial, and after the adverse verdict, that he was not at fault for the child's injuries; (2) an infant was involved in the case and there was no guaranty that the trial court would approve a settlement of $20,000 since it would probably mean a reduction of the injury judgment; and (3) on the facts adduced at the trial, the law was "unclear" as to whether sufficient evidence of negligence had been introduced to make a jury question, and, as they saw the law, there was a reasonable basis for an appeal with a "probability of success." Whether good faith was exercised in refusing to settle by paying the policy limit requires a general consideration of these reasons. As to (1), it must be remembered that Bowers is a layman. His feeling of non-liability after the accident, and even after the adverse verdict and before the appeal, was of minor importance when the defendant was called upon to decide whether, as a matter of law, the facts of the accident, as they were developed at the trial, pointed to the probability of reversal of the judgments. The view of a layman untrained in the law is a weak reed for an insurer to lean on. Moreover, it is obvious that before trial of the negligence case, *76 defendant's alleged reliance on Bowers' belief that he was not at fault was not an unqualified or unquestioning one. Defendant's settlement offer of $12,000 or $14,000 of its $20,000 policy demonstrates that fact. When defendant sent its rather self-serving letter to Bowers, referring to his feeling of non-responsibility and advising him of the decision to appeal, the suggestion was made that he consult personal counsel if he had any questions on the subject. He adopted the suggestion and received independent legal advice indicating the slim chance of reversal. Whatever may have been his earlier layman's notion about his responsibility for the accident, it underwent a change. As a result, he and his attorney protested the appeal and requested that the offer of settlement of $20,000 be accepted. More specifically, his attorney notified defendant of his opinion that there was no "reasonable probability" of a reversal. Moreover, he informed defendant that Bowers' interest should not be jeopardized by an appeal, and that good faith on its part required acceptance of the Seagraves' offer. He concluded by saying that if an appeal was taken unsuccessfully, and Bowers became obligated to pay a part of the judgments, suit would be brought against defendant for that part. The Seagraves' attorney who tried the negligence case was called as an expert witness by Bowers in the present case. He had a great many years of experience in the trial of such cases. His letter, written to the insurer's attorney after denial of the motion for a new trial and offering to take $20,000 in settlement of the judgments, was admitted in evidence. The letter contained his opinion that no appeal could be undertaken successfully, and that if the insurer was not willing to pay the policy limit immediately and "unreasonably gambles" on the result of an appeal, it could be held liable for the excess over the limit. The Appellate Division declared that this letter should not have been admitted in evidence. It was within the trial court's discretion to admit the first part of the letter containing the offer to settle for $20,000. Most of the opinion portion could have *77 been introduced through the oral testimony of the witness as an expert, and it seems obvious that the court considered the letter in that light. The letter did state the law; the reference to possible liability on defendant's part if it took an unreasonable gamble is consistent with this Court's like comment in Radio Taxi Service, Inc. v. Lincoln Mut. Ins. Co., supra, where this Court used the phrase "unduly venturesome" at the expense of an insured. 31 N.J., at p. 313. Although we agree that at least the latter portion of the letter should have been excluded, yet in view of its hypothetical nature, the warning contained in Bowers' personal attorney's letter, and the explanation in the court's charge to the jury as to the duty of the insurer and the nature of the issue to be decided, we cannot say that the error in admitting it was so prejudicial of itself as to require reversal. The effect of these two letters was to set out in bold relief the nature of the risk defendant would be taking if it persisted in pressing the appeal. Such action thereafter was entirely on its own; even defendant's unrealistic assertion of reliance upon the original view of non-liability expressed by its layman-insured now provided no real support for the projected appeal. Reason (2) is frivolous. The suggestion is that settlement was not made because an infant was involved and there was no guaranty that a court would approve whatever distribution of the $20,000 settlement might be proposed as between the father and child. Defendant made no inquiry of the trial court or any other court with regard to approval of a $20,000 settlement on any basis of distribution. Moreover, if a court was advised that Seagraves' attorney's credit report on Bowers indicated doubtful financial ability to pay the additional $9,000 of the judgments, we consider it highly unlikely that approval of the settlement would have been withheld. The last reason is argued more assertively by defendant, i.e., that the law was unclear on whether the facts proved at the Seagraves-Bowers trial were sufficient to create *78 an inference of Bowers' negligence, and that defendant's view that they were not sufficient would probably prevail on appeal. Certainly there was nothing unclear about the applicable principle of law. It was simply whether Bowers had failed to use reasonable care in the operation of his automobile, which failure was a proximate cause of the accident. The principle was to be applied according to the equally commonplace rule that the facts adduced had to be evaluated in the light most favorable to the plaintiff's case. In the last analysis, the crucial part of reason (3) is whether, in view of the duty to exercise good faith in dealing with an offer of settlement in cases like this one, where the insured's personal financial jeopardy is so great, it was reasonable to believe on the facts that a probability of reversal of the judgments existed. Substantial evidence was presented at the trial that the chance of a reversal of the judgments was minimal. The suggestion by the attorney who took the appeal for the insurance company was that the Appellate Division opinion was "per curiam" because "no judge wanted to actually take the responsibility for putting his name" on it, shows little appreciation of the work of the judges or of their judicial integrity. The correct view was expressed by the attorney who defended the appeal; the opinion was a short per curiam because its merits warranted no more. Under all the circumstances shown by the record here, the reasons advanced for the appeal strike us as excuses rather than reasons. Since the proposed settlement required payment of the full policy limit, on the face of things, defendant had nothing to lose by prosecuting an appeal, even if unsuccessful. (It should be recalled, however, that defendant made no counter-proposal to the settlement offer of $20,000. Who can say at this time whether the Seagraves' attorney would have accepted somewhat less than $20,000, if tendered?) We find it difficult to believe that if the policy had been for an unlimited amount defendant would have acted the way it did. The inferences are strong that in making the decision *79 to appeal the Association was partial to its own interests. They likewise show strongly a willingness to gamble with the insured's money in an attempt to save its own. And they tend to negative any claim that the decision to appeal the $29,000 judgments represented the conscientious exercise of the expertise it is reasonable to suppose defendant possessed as an insurer. A finding that an insurer lacked good faith in a situation like the present one does not signify that it acted maliciously or with ill will toward the insured. It simply means that the insurer failed to discharge the fiduciary obligation which is inherent in the duty to act in good faith in the matter of settlement of claims against him. For the reasons set forth, we are satisfied the trial court was correct in submitting to the jury the issue of defendant's good faith in refusing to accept the offer to settle the judgments against Bowers for the amount of the policy limit. Since no other contention raised by defendant demonstrates prejudicial trial error, the verdict in favor of Bowers must be regarded as sound. Accordingly the judgment of the Appellate Division is reversed and the judgment of the trial court is reinstated. For reversal — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, GOLDMANN, SCHETTINO and HANEMAN — 7. For affirmance — None.

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Case No. 96-3356 NICOLE STEWART, also known as (D.C. 95-CR-20086) Tina Wilson, also known as LeShell (District of Kansas) Town, Defendant-Appellant. ORDER AND JUDGMENT * Before ANDERSON, HENRY, and BRISCOE, Circuit Judges. Nicole Stewart appeals from her sentence for conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The sole basis for Ms. Stewart’s appeal is that her sentence is disparate from those of her co-conspirators and, therefore, in conflict with the sentencing guidelines’ goal of lessening sentencing disparities between similarly situated defendants. In * 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. United States v. Allen, 24 F.3d 1180, 1188 (10th Cir. 1994), we rejected a defendant’s contention that the goal of the sentencing guidelines was frustrated when his codefendant received a lesser sentence but the defendant’s sentence fell within the applicable guideline range. Ms. Stewart attempts to distinguish Allen by claiming that her sentence fell outside the applicable guideline range. It did not. In exchange for her cooperation, the government requested a downward departure for Ms. Stewart of at least four levels. The district court granted the departure and sentenced Ms. Stewart to forty-six months, the lowest possible sentence within the adjusted, applicable guideline range. Additionally, the transcript of Ms. Stewart’s sentencing hearing reveals that the district judge did in fact consider the sentences and crimes of her co- conspirators and gave Ms. Stewart a sentence harsher than theirs because she was more culpable. The district court’s decision was amply supported by the record and legally correct. See id. at 1189. We affirm. The mandate shall issue forthwith. Entered for the Court, Robert H. Henry Circuit Judge 2 

774 F.2d 417 William M. YORK, dba York Arms Co., Plaintiff-Appellant,v.SECRETARY OF TREASURY; Stephen E. Higgins, Director Bureauof Alcohol, Tobacco and Firearms (BATF) and JohnDoes 1 through 20, Agents of BATF,Defendants- Appellees. No. 84-1370. United States Court of Appeals,Tenth Circuit. Oct. 1, 1985. Loni F. DeLand and Herschel Bullen of McRae & DeLand, Salt Lake City, Utah, for plaintiff-appellant. Brent D. Ward, U.S. Atty., and Barbara W. Richman, Asst. U.S. Atty., Salt Lake City, Utah, for defendants-appellees. Before LOGAN, SETH and SEYMOUR, Circuit Judges. LOGAN, Circuit Judge. 1 After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument. 2 Plaintiff William M. York appeals from the district court's grant of summary judgment for defendants, the Secretary of the Treasury and the Director and agents of Bureau of Alcohol, Tobacco and Firearms (BATF). York sued for injunctive and other relief from a BATF ruling classifying the YAC STEN MK II weapon as a "machinegun." York claimed that (1) the BATF ruling was arbitrary, capricious, and an abuse of discretion; (2) the BATF ruling violated his rights as seller of the gun to due process and equal protection; and (3) he is entitled to de novo review of the agency's decision. 3 In 1982 the BATF became aware that York was selling a gun called the YAC STEN MK II, a somewhat modified version of the famous World War II British STEN submachine gun. BATF issued its ruling after examining a sample obtained through normal commercial channels. York, a federally licensed firearms manufacturer, had ignored the BATF's request for a sample to enable classification of the gun under the National Firearms Act, 26 U.S.C. Secs. 5801-5872. 4 Before the ruling, York had written to the BATF to request general information on the standards applicable to his business but had made no mention of the STEN. In response, the BATF sent York several publications but recommended that he contact the Bureau with specific questions. York made no further written inquiries, although he was aware that the STEN's status was in question and apparently made some telephone inquiries. 5 After classifying the STEN as a "machinegun" under 26 U.S.C. Sec. 5845(b), BATF agents told York to recall the weapons already sold and advised purchasers by letter to return the guns. York resisted the recall and filed this action. The district court granted defendants' motion for summary judgment and dismissed York's complaint with prejudice. 6 * Congress has delegated the administration of the National Firearms Act to the Department of the Treasury, which acts through the BATF. See Davis v. Erdmann, 607 F.2d 917, 918 (10th Cir.1979) (judicial recognition of the administrative hierarchy). Under 26 U.S.C. Sec. 7805(a), the Secretary of the Treasury or his delegate "shall prescribe all needful rules and regulations for the enforcement" of the Internal Revenue Code title, which includes the National Firearms Act. In the present case, the BATF was using that enforcement power to interpret 26 U.S.C. Sec. 5845(b), which provides that a "machine gun" includes "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." Id. 7 The Bureau designated the STEN a machinegun in ATF Ruling 83-5. The ruling noted that the STEN had identical design characteristics to the original World War II submachinegun, except for a disconnector intended to prevent more than one shot from being fired with a single trigger function. The ruling stated: 8 "The trip lever (disconnector) is designed in such a way a simple modification to it, such as bending, breaking or cutting allows the weapon to operate automatically. Thus, this simple modification to the trip lever (disconnector), together with STEN submachinegun design features and components in the YAC STEN MK II carbine, permits the firearms to shoot automatically, more than one shot, without manual reloading by a single function of the trigger. The above combination of machinegun design features as employed in the YAC STEN MK II carbine are not normally found in the typical sporting firearm." 9 R. I, 137-38. After noting that the National Firearms Act defined a weapon that shoots automatically, or can be readily restored to shoot automatically, more than one shot by a single trigger function, as a machinegun, the Bureau ruling declared: 10 "The 'shoots automatically' definition covers weapons that will function automatically. The 'readily restorable' definition defines weapons which previously could shoot automatically but will not in their present condition. The 'designed' definition includes weapons which have not previously functioned as machineguns but possess specific machinegun design features which facilitate automatic fire by simple alteration or elimination of existing component parts." 11 R. I, 138. 12 The BATF ruling on the STEN was thus an administrative interpretation of an existing statute. Under Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1964), "when faced with a problem of statutory construction, [a court] shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Id. at 16, 85 S.Ct. at 801. This court similarly has held that a court "should not overturn an administrative interpretation of a statute which it is charged with administering unless it can be said that the interpretation is plainly erroneous." Board of Directors and Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777, 784 (10th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 233, 38 L.Ed.2d 158 (1973). Although an interpretative rule like the one involved in this case is not granted the "force of law" of legislative rules, it still requires deferential treatment by the court. Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 153-54, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946). 13 Applying these standards to the facts of this case, we hold that the BATF classification was based on relevant factors, was not a clear error of judgment, and was not arbitrary, capricious, or an abuse of discretion. Although York argues that the BATF has not classified other firearms that are "readily convertible" to automatic weapons as machineguns, there are statements in the record outlining important distinctions between those guns and the STEN. Charles Lanum, a firearms enforcement officer with the BATF, explained to York in a November 1983 meeting that the YAC STEN MK II was merely a manipulation of the parts of the original British STEN, not a redesign. In contrast, several of the weapons that York characterized as comparable were not designed originally to accommodate machinegun parts. The BATF ruling stressed that the disconnector in the YAC STEN MK II, which must prevent automatic fire, could be disabled by mere bending, breaking, or cutting. In response to a letter from York's congressman, the BATF asserted that other weapons were neither designed originally to fire automatically nor able to be converted without substantial alteration or substitution of parts. York has never offered any evidence contradicting these points beyond his own vehement insistence that the unclassified guns are the same as the STEN. In fact, his counsel admitted when arguing against the summary judgment motion that there was no way to demonstrate that the YAC STEN MK II could not be converted to automatic operation. 14 York has also detailed the adverse impact the BATF ruling will have on his business. But harsh consequences for York's business alone are not enough to find an agency's action unreasonable. See Gulf Oil Corp. v. Hickel, 435 F.2d 440, 447-48 (D.C.Cir.1970). II 15 Analysis of whether the BATF followed necessary procedures requires us first to decide whether the Bureau's action qualifies as an adjudication or a rulemaking. We are convinced that it includes elements of both. See 2 K. Davis, Administrative Law Treatise Sec. 10:5 (2d ed. 1979) (recognizing that most agency actions involve elements of both adjudication and rulemaking). 16 The portion of the BATF ruling that further defines the language of 26 U.S.C. Sec. 5845(b) was merely an interpretative rule not subject to either notice and comment procedure under 5 U.S.C. Sec. 553 or the formalities of an agency hearing under 5 U.S.C. Secs. 556-557.1 See, e.g., American Postal Workers Union, AFL-CIO v. U.S. Postal Service, 707 F.2d 548, 559 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1594, 80 L.Ed.2d 126 (1984). In contrast, that portion of the Bureau's ruling placing the STEN in the category of machineguns, i.e., applying the law to the facts of a particular case, was not a rulemaking of any stripe.2 Rather, such agency action fell into the category of adjudication, albeit informal. Such decisions require adjudicatory hearings under the Administrative Procedure Act only when a statute demands that they be made "on the record after opportunity for an agency hearing." 5 U.S.C. Sec. 554(a); see also Anaconda Company v. Ruckelshaus, 482 F.2d 1301, 1306 (10th Cir.1973). There is no such requirement in this case. Further, the classification of the STEN falls under an exception to the hearing requirement for "proceedings in which decisions rest solely on inspections, tests, or elections." 5 U.S.C. Sec. 554(a)(3). 17 Nevertheless, York argues that the agency failed to observe his constitutional right to due process in this case. In this respect York evidently claims that he is constitutionally entitled to a predeprivation hearing. He complains that he was allowed "no input regarding the decision to construe the STEN a machinegun." Brief of Appellant at 12. He speaks of the deficiency in the administrative record and the Bureau's "redefinition" of the term "machinegun." Id. at 14-15. 18 York did receive notice of the Bureau's concern with the STEN several months before it classified the STEN as a machinegun. He chose to continue with his marketing plan without providing a sample of the gun to the BATF. He selected this course, despite his admission that the government has a "public interest" in regulating automatic weapons, because he did not want his business delayed by Bureau consideration. Nevertheless, there is no doubt that, as applied to prohibit further sales of the STEN and to require past purchasers to return the guns to York for refunds, the agency action here was summary. It was based chiefly upon the BATF's inspection of the STEN it acquired. 19 The Supreme Court has issued several recent decisions concerning when the Due Process Clause requires predeprivation hearings. In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Court identified three factors that must be weighed in deciding what process is due: 20 "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." 21 Id. at 335, 96 S.Ct. at 903. We can apply this test to the instant case. 22 York has an important interest affected by the BATF decision, which banned further sales of his gun and required him to recall and give refunds for guns already sold. But the two other considerations weigh heavily in favor of the government. The risk of error is low in this case because the evidence upon which the government relied to classify the STEN as a machinegun is scientific, engineering data--sharply focused, easily documented and not based to a significant extent upon witness credibility or other subjective determinations. See id. at 343-44, 96 S.Ct. at 906-07. And the government has a strong interest in regulating automatic weapons capable of criminal use, and in being able to act quickly to stem the flow of such weapons to the public. The Supreme Court has upheld, against similar due process claims, summary seizure of a mislabeled vitamin product. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); see also North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (destruction of food unfit for human consumption without a predeprivation hearing). We therefore hold that York was not deprived of his constitutional due process right by the government's action. 23 We believe, however, that constitutional due process does require a hearing for York after the issuance of the order classifying the STEN as a machinegun, if he contends the agency made a mistake of fact, i.e., that his gun does not meet the criteria set out in the BATF's expanded definition of "machinegun." See White v. Acree, 594 F.2d 1385 (10th Cir.1979). We do not read his briefs on appeal to make such a contention. As noted, York's counsel admitted there was no way to demonstrate that the STEN could not be converted to automatic operation.III 24 York's equal protection claim appears to be that he has been denied his rights because of selective enforcement. He contends that firearms similar to the STEN have not been classified as machineguns. 25 As the district court pointed out, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1961). We have held in the parole revocation setting that one who succeeds on a selective enforcement claim must show by a preponderance of the evidence that (1) he or she has been singled out while others who are similarly situated have not been subjected to enforcement and (2) the selection has been invidious or in bad faith and based on intentional, purposeful discrimination stemming from impermissible considerations such as race, religion, or the desire to prevent the exercise of other constitutionally secured rights. Barton v. Malley, 626 F.2d 151, 155 (10th Cir.1980); see also United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985). In addition, "[a]ggressively displaying one's antipathy to the ... system or daring the Government to enforce it does not create immunity from or a defense to, prosecution." United States v. Stout, 601 F.2d 325, 328 (7th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979); see also United States v. Rickman, 638 F.2d 182, 183 (10th Cir.1980).3 26 In this case, York has not met his burden to show selective enforcement. He has produced no evidence that there are other gun manufacturers who truly are "similarly situated." He also offers little beyond mere accusations that there was bad faith in the Bureau's actions. References in a license investigation report to his "reputation" for skirting regulations and to a "reasonable assumption" that the STENs could end up in criminal hands do not necessarily raise an inference of bad faith. Those industry rumors instead provided legitimate reasons for lawful investigation of the situation, i.e., inspection of the STEN. Once that was accomplished, the properties of the gun, and not the alleged proclivities of its maker, were the basis of the BATF ruling. As we have noted, York's "semi-automatic" guns were not the first to be classified as machineguns. Prior rulings took the same action on essentially the same basis for weapons from different sources. 27 AFFIRMED. 1 The Bureau's interpretation of the statute's wording in ATF Ruling 83-5 is consistent with its prior interpretations in two other cases. See ATF Rulings 82-2 and 83-5, R. I, 83-84 2 This case can be distinguished from Hoffman-La Roche, Inc. v. Kleindienst, 478 F.2d 1 (3rd Cir.1973), in which the court found agency action classifying certain drugs to be only a rulemaking. In Hoffman, the proposed agency order applied "across the board to all producers, wholesalers, and distributors ... as well as to pharmacies and physicians." Id. at 13. Hoffman was not in any special or unique circumstances, and the classification had only prospective application. Id. None of these factors are present in the STEN classification 3 York advertised kits for his STEN guns in a York Arms Company catalog as good weapons for those purchasers who "just don't care for Big Brother's record keeping program." R. I, 153. The STEN "Sputter Gun" also was advertised as the weapon for those "who want the fun and excitement of owning and firing a fully automatic weapon without the government tax and red tape." R. I, 155. The gun, according to the catalog, could be fired by simply holding it against the operator's bicep, inserting a loaded magazine, and pulling and then releasing the bolt handle. The main beauty of the gun, according to the catalog, was the absence of a trigger. Without a trigger, the advertisement reasoned, the gun could not be a machinegun under the statute

330 S.W.2d 237 (1959) Harry STALCUP, Appellant, v. Harris G. EASTHAM, Jr., et al., Appellees. No. 5338. Court of Civil Appeals of Texas, El Paso. July 1, 1959. Rehearing Denied July 23, 1959. *238 Clyde E. Thomas, Big Spring, for appellant. Max Osborn, Turpin, Kerr, Smith & Dyer, Rucker & Rassman, Midland, for appellees. *239 ABBOTT, Justice. This is an appeal from a suit heard before the court without a jury, interpreting a written contract. On April 20, 1953 appellant (plaintiff below), sold and delivered to appellees (defendants below) the Dr. Pepper Bottling Company, together with all rights, title and franchise, as well as personal property; the franchise covering Howard, Martin, Midland, Ector, Crane, Glasscock, Borden, Andrews and Dawson counties. In the contract of sale, there appeared the following clause: "4. Second Party covenants and agrees not to engage in any form of the soft drink bottling or vending business, directly or indirectly, in the trade territory composed of the counties of Howard, Martin, Midland, Ector, Crane, Glasscock, Borden, Dawson and Andrews, Texas, for a period of ten consecutive years commencing April 18, 1954. During said term Second Party shall receive annually from First Party the sum of two and one-half (2½) cents per case (24 bottles) on the first 220,000 cases of Doctor Pepper sold by First Party each year. The parties represent that the money paid to Second Party by First Party hereunder constitutes no part of the purchase price of said business." There was a cash consideration paid at the time of the transfer in the amount of $56,000, and notes totaling $50,000 to be paid in equal installments over a period of ten years. These payments have been duly and timely paid, and do not enter into this suit. Beginning in June 1955, the Dr. Pepper Company of Dallas required the appellees to sell Dr. Pepper in six-ounce and tenounce cans. These cans—both sizes—were filled and sealed in Dallas, Texas, and shipped to appellees in cardboard containers, each containing 48 cans. Also, sales of six bottles to a package, called "6-Packs", had been sold before and after the contract. These "6-Packs" came four to a case and contained 24 bottles in a case. Also, there is evidence that Dr. Pepper is now being sold in a 10-ounce bottle. From June, 1955, until the present time, appellees have refused to pay the agreed royalty; however, they have said that they would pay the royalty on the cases of 24 six-ounce bottles as originally agreed. There has been no tender. Appellant contended that the cases of 24 six-ounce bottles, as contained in the original contract, is a measuring device only, and that he is entitled to his royalty on all Dr. Pepper, whether cans or bottles, "6-Packs" or 24-bottle cases. The trial court rendered judgment finding appellant entitled to two and one-half cents per case of twenty-four 6-ounce bottles, but not entitled to any payment on the sale of Dr. Pepper in cans or in any bottles except those sold in cases of 24, and containing only 6-ounce bottles. The trial court, in the requested Findings of Fact, found a "case" to be a divided wooden case, or container, with spaces for only 24 six-ounce bottles. Also, that the parties contracted and intended for the sum of two and one-half cents per case to be based only on the sale of each wooden case containing 24 six-ounce bottles. From the trial court's judgment appellant has perfected his appeal to this court, complaining of the court's finding that appellant was entitled only to the royalty payment on cases of 24 six-ounce bottles, and excluding any royalty on any other type package, case, carton or can of Dr. Pepper. Appellees bring five counter-points, contending that the trial court properly and correctly interpreted the terms of the contract. We must bear in mind the well-settled principle of law that a contract freely entered into between the parties must be construed from its four corners; that is, every part thereof must be permitted to stand as written, if it can be done without doing violence to the manner in which the intentions of the parties are expressed, *240 without infringing the well-settled rules of judicial construction. Southwestern Life Ins. Co. v. Houston, Tex.Civ.App., 121 S. W.2d 619. Appellees purchased a bottling plant, complete, along with the Dr. Pepper franchise for a described area. The business was for the purpose of bottling and selling Dr. Pepper. The size of the bottles of Dr. Pepper sold is not mentioned in either the contract of sale or the agreement not to compete. It is our opinion that the word "case", as used in the contract, means twenty-four bottles, and that this is a measuring device to determine the royalty due. We believe that appellant is entitled to two and one-half cents for every twenty-four bottles of Dr. Pepper sold, whether by the single bottle or by "6-Packs", or by the case of 24 bottles, and whether 6-ounce bottles or 10-ounce bottles. At the time of the contract, neither party contemplated Dr. Pepper in cans. It could not be canned at the plant in question. The profit, if any, was not known. In fact, the canned product was a new business, in that the bottling plant had no part in its manufacture, but only in its sale and distribution. Courts cannot make contracts for parties, and can declare implied covenants to exist only where it appears that such covenants were clearly contemplated by the parties or are necessary to effect purposes of contract. Hillburn v. Herrin Transp. Co., Tex.Civ.App., 197 S.W.2d 149. We are of the opinion that the trial court was correct in holding that no royalty was to be paid for the Dr. Pepper sold in cans. The trial court assessed costs against appellant in that appellees had been ready, willing and able to pay the royalty on the 24, six-ounce bottles to a case that had been sold. Since by this opinion we have enlarged the judgment, costs in both courts shall be assessed against appellees. Rule 139, Texas Rules of Civil Procedure. It is our opinion that the judgment of the trial court as to the bottled Dr. Pepper must be reversed and rendered, and that appellees pay to appellant two and one-half cents per case, or twenty-four bottles, of any size sold; that the trial court's judgment as to canned Dr. Pepper be affirmed; that defendants below (appellees here), be assessed costs of court. On Motion for Rehearing Appellee Harris G. Eastham, Jr. has filed his motion for rehearing, insisting that this court has exceeded its authority by substituting its findings for those of the trial court. We are well aware of Rule 453, Texas Rules of Civil Procedure, and had, in our opinion, the evidence as to meaning of the contract in question been in conflict, this case would have been remanded. We have again read the Statement of Facts and, without quoting, we are still of the opinion that we were correct in our original opinion that the contract was clear, and both parties understood the meaning of the contract. Appellant's own testimony could not support the trial court's finding that a "case" was 24, six-ounce bottles in a separated container. This court is not justified in reversing and rendering a case unless it appears, as a matter of law, that there was no evidence, or insufficient evidence, of probative force to sustain the findings of the trial court. 4 Tex.Jur.2d 375, sec. 832; Texas & P. Ry. Co. v. City of El Paso, 126 Tex. 86, 85 S.W.2d 245; Sovereign Camp, W. O. W. v. Derrick, Tex.Civ.App., 64 S. W.2d 982 (error ref.); Corzelius v. Oliver, 148 Tex. 76, 220 S.W.2d 632. Appellant further complains that the pleadings do not support our findings. We think it sufficient to state that plaintiff, to the best of his ability and knowledge, sued for all of the royalty that was due him under his contract. Believing that our original opinion was correct, we overrule the motion for rehearing.

105 Pa. Commonwealth Ct. 282 (1987) 523 A.2d 1218 Leroi Dinkins, Petitioner v. Commonwealth of Pennsylvania, Department of Justice, Pennsylvania Board of Probation and Parole and Bureau of Corrections, and Lawrence Reid, Superintendent at SCIP Greensburg, and his hearing Examiner/Coordinator, M.J. Mathews, Respondents. No. 1666 C.D. 1986. Commonwealth Court of Pennsylvania. April 14, 1987. Submitted on briefs December 19, 1986. *283 To Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three. Dante G. Bertani, Public Defender, for petitioner. Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondents. OPINION BY JUDGE PALLADINO, April 14, 1987: Leroi Dinkins (Petitioner) appeals from a decision of the Pennsylvania Board of Probation and Parole (Board) which affirmed its prior order to rescind Petitioner's parole. We affirm. On December 13, 1985, Petitioner was released from prison on a furlough. He returned on December 15, 1985. A urine sample was taken at that time for the purpose of drug testing. The test returned positive for morphine, and on December 20, 1985, the Department of Corrections held a hearing on Petitioner's misconduct. Petitioner was found guilty of unauthorized use of dangerous or controlled substances and violation of a condition of his pre-release program which prohibits such use. As a result, the Department ordered disciplinary action, and Petitioner did not appeal that decision. On December 23, 1985, without knowledge of the action of the Department of Corrections, the Board issued *284 a decision to parole Petitioner to an approved plan on January 8, 1986 subject to the condition that there be no misconducts in the interim. Upon learning that the Department of Corrections had found Petitioner guilty of misconduct while on furlough, the Board rescinded its prior paroling action. This determination is listed on the Board's decision form as having been recorded on March 7, 1986. However, it was not mailed to Petitioner's counsel until April 18, 1986. Petitioner filed this action on May 16, 1986. The Board filed a motion to quash Petitioner's appeal as untimely pursuant to Pa. R.A.P. 1512(a)(1) which states that petitions for review of quasijudicial orders shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order. In support of its motion, the Board argues that its order rescinding Petitioner's parole was recorded on March 7, 1986 and that, therefore, Petitioner's time for petitioning for review had expired at the time this action was filed. We disagree. The 30-day limit for taking appeals under Pa. R.A.P. 1512 starts to run upon entry of the order. Pa. R.A.P. 108 defines the Date of Entry of Orders as "the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties. . . ." This Court has recognized that the date of execution of a determination is not necessarily the mailing date. Sheets v. Department of Public Welfare, 84 Pa. Commonwealth Ct. 388, 479 A.2d 80 (1984). In the case at bar, there is nothing in the record to indicate that the Board notified Petitioner or his counsel of their decision on March 7, 1986. The fact that the Board's decision is listed as being recorded on March 7, 1986 is not sufficient to establish March 7, 1986 as the mailing date. On the contrary, in a letter dated April 18, 1986 to Petitioner's counsel, the Board stated: "This *285 will acknowledge receipt of your correspondence dated March 13, 1986 regarding [Petitioner]. Attached is a copy of the Board's action dated March 7, 1986 which is self-explanatory." The record is devoid of any offer of proof by the Board of a date of mailing. Since the Board's letter of April 18, 1986 is the only evidence of notification to the Petitioner of its decision, that date constitutes the date of entry of the Board's order. Petitioner filed this action 28 days later on May 16, 1986. Therefore, it is timely. As to the merits of his claim, Petitioner contends[1] that the Board failed to afford him due process protection in rescinding his parole without a full hearing and that the Department of Corrections improperly relied on hearsay evidence (a laboratory urinalysis) in finding him guilty of misconduct. Petitioner's contentions demonstrate a misunderstanding of the nature of parole. Parole is not a matter of right, rather it is a privilege of administrative discretion, Commonwealth v. Brittingham, 442 Pa. 241, 275 A.2d 83 (1971), and the Board has the exclusive power to parole. Furthermore, while an individual who has been paroled does gain a liberty interest which must be afforded due process protection where the Board seeks to revoke parole, see Morrissey v. Brewer, 408 U.S. 471 (1982), a prisoner approved for parole but not yet released is not a parolee with such liberty interest, and, therefore, the Board may rescind parole without conducting a hearing. Jago v. Van Curen, 454 U.S. 14 (1981); Franklin v. Pennsylvania Board of Probation and Parole, 83 Pa. Commonwealth Ct. 318, 476 A.2d 1026 (1984). *286 As to the hearsay issue, Petitioner never appealed from the action of the Department of Corrections in finding him guilty of misconduct. Such appeals must be made in accordance with the procedures established by that agency for such appeals. Since Petitioner did not appeal that determination, he will not be heard to collaterally challenge it now in this action against the Board. Accordingly, the order of the Board rescinding Petitioner's parole is affirmed. ORDER AND NOW, April 14, 1987, the decision of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed. NOTES [1] Our scope of review for Board decisions is limited to whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. Seyler v. Pennsylvania Board of Probation and Parole, 97 Pa. Commonwealth Ct. 302, 509 A.2d 438 (1986).

716 F.2d 912 Waldv.International Broth. of Teamsters, Chauffeurs, Warehousemenand Helpers of America, Council No. 42, Local 357 81-5907 UNITED STATES COURT OF APPEALS Ninth Circuit 8/8/83 1 C.D.Cal. AFFIRMED

United States Court of Appeals, Fifth Circuit. No. 96-50278 Summary Calendar. David CERVANTEZ, Plaintiff-Appellant, v. BEXAR COUNTY CIVIL SERVICE COMMISSION; Bexar County, Texas, Defendants- Appellees. Nov. 14, 1996. Appeal from the United States District Court for the Western District of Texas. Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges. BENAVIDES, Circuit Judge: This appeal requires us to determine whether the removal of this action to federal court was time barred pursuant to the thirty-day limitations period of 28 U.S.C. § 1446(b). Because we hold that Bexar County did not timely file notice of removal in federal court, we vacate the judgment of the district court and remand to the district court with instructions to remand the case to state court. I. Background David Cervantez was employed by Bexar County, Texas as Director of the Bexar County Parks Department from 1985 until his termination in 1992. In 1992, the Bexar County Commissioners Court investigated allegations made by employees against Cervantez of sexual harassment and drinking on the job. Cervantez denied the allegations. During the course of the investigation, it was discovered that Cervantez had been arrested and co nvicted for driving while intoxicated while in a Bexar Co unty vehicle. The investigation also uncovered other alleged mismanagement of the Parks Department. Cervantez was fully informed of the allegations against him and was given a hearing. Cervantez was afforded the due process required by Civil Service up to and including the procedure used for his termination.1 After the hearing, Cervantez was terminated as Parks Director and declined to accept an offer of employment in a lower-paying position. In July 1993, Cervantez filed this lawsuit against Bexar County, Texas and the Bexar County Civil Service Commission (collectively "Bexar County") in state court. In response to special exceptions filed by Bexar County, Cervantez filed a First Amended Petition in state court on January 6, 1994. Cervantez alleged that he was discriminated against on the basis of sex because he was treated differently than a similarly situated female employee.2 Cervantez also alleged that he was retaliated against for filing a charge with the Equal Employment Opportunities Commission. Bexar County filed a motion for summary judgment in state court in June 1995. Cervantez responded to this motion in state court on July 13, 1995. Based on Cervantez's response, Bexar County removed the action to federal district court on July 19, 1995. The federal district court remanded the case to state court sua sponte on July 28, 1995. On August 1, 1995, Bexar County filed a motion for reconsideration of the court's decision to remand. The federal district court denied this motion on August 3, 1995. On August 8, 1995, however, Cervantez filed an advisory to the court concerning Bexar County's motion for reconsideration in which he acknowledged his "intent to pursue federal claims." Based on this advisory, the district court issued an advisory of its own informing Bexar County that it would entertain a second notice of removal, which Bexar County promptly filed on August 18, 1995. On September 11, 1995, the federal district court denied Cervantez's motion to remand the case for the second time to state court. Following removal, the district court referred Bexar County's pending motion for summary 1 Bexar County contends that as Parks Director, Cervantez was an exempt employee who was not entitled to Civil Service protections or a Civil Service Appeal. We express no opinion about the merits of this contention. 2 Cervantez alleged that sexual harassment complaints against female department heads were investigated in a more lenient fashion than complaints against male department heads. Specifically, Cervantez alleged that the Bexar County Community Resources Director, Aurora Sanchez-Gonzales, was also the subject of employee complaints of sexual harassment. The Bexar County Commissioners Court performed an initial investigation of the allegations against Sanchez-Gonzales. Later allegations against Sanchez-Gonzales, however, were handled by a private investigator. judgment to a magistrate judge for the issuance of a report and recommendation. On January 23, 1996, t he magistrate judge filed its report and recommendation finding that Bexar County had asserted a legitimate nondiscriminatory reason for Cervant ez's discharge, this reason has not been shown to be pretextual, and that Cervantez had failed t o establish a genuine issue of material fact regarding his retaliation claims. The magistrate judge, therefore, recommended that Bexar County's motion for summary judgment be granted. On March 5, 1996, the district court accepted the report and recommendation of the magistrate judge and granted summary judgment in favor of Bexar County. Cervantez filed a motion for reconsideration on March 15, 1996. On March 18, 1996, Cervantez filed voluminous affidavits and deposition excerpts in support of his motion for reconsideration. On March 19, 1996, Cervantez filed a motion for a new trial. Cervantez's motions were denied by the district court on April 2, 1996. This appeal followed. II. Discussion Cervantez argues that the removal of this action to federal court was untimely. Therefore, he urges us to vacate the district court's judgment and remand this cause with instructions that the district court remand the case to state court. "This court has jurisdiction over a denial of a motion to remand to state court when coupled with the appeal of a final judgment." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 522 n. 1 (5th Cir.1994). "Because removal is an issue of statutory construction, we review a district court's determination of the propriety of removal de novo." Id. (citing Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d 591, 593 (5th Cir.1991)). The timeliness of notice of removal is governed by 28 U.S.C. § 1446(b). This statute provides, in relevant part: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based .... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.... Id. It is undisputed that the initial pleading filed by Cervantez did not state a federal question upon which removal could be based. Therefore, we need to determine at what point, if ever, Bexar County received "a copy of an amended pleading, motion, order or other paper from which it [could] first be ascertained that the case [was] one which [had] become removable." See id. Only after this inquiry may we determine whether Bexar County timely filed notice of removal. Cervantez argues that the requirements of 28 U.S.C. § 1446(b) were satisfied on January 6, 1994, when he filed his First Amended Petition in state court.3 Bexar County did not file its first notice of removal until July 19, 1995, nearly eighteen months after Cervantez's First Amended Petition was filed. Cervantez, therefore, urges us to hold that Bexar County waived its right to remove the case.4 See Buchner v. FDIC, 981 F.2d 816, 818 (5th Cir.1993) ("Unquestionably, a party may implicitly waive its right to remove a case by failing timely to file a notice of removal.") (citations omitted); Courtney, II v. Benedetto, 627 F.Supp. 523, 527 (M.D.La.1986) (noting that the requirement for timely filing a petition for removal is mandatory). "In general, an action is removable to a federal court only if it might have been brought there originally." 14A WRIGHT, MILLER, & COOPER, Federal Practice & Procedure § 3721, at 189 (2d 3 An affidavit signed by an attorney who had formerly represented Cervantez in this matter states that on January 6, 1994, he handed opposing counsel a copy of Cervantez's First Amended Petition. At this time, opposing counsel "immediately noticed that it contained federal claims pursuant to 42 U.S.C. § 1983. [Counsel for Cervantez] acknowledged that these federal claims were intended and further noted that State District Courts had concurrent jurisdiction with federal courts to hear such claims." Cervantez argues that this oral notice is sufficient to trigger the thirty-day limitations period of the statute. Because we conclude that Cervantez stated a federal claim on the face of his First Amended Petition, we need not reach this issue. See Smith v. Bally's Holiday, 843 F.Supp. 1451, 1454-55 (N.D.Ga.1994) (noting a split of authority regarding whether oral statements can be sufficient to satisfy the notice requirement of 28 U.S.C. § 1446(b)); Sunburst Bank v. Summit Acceptance Corp., 878 F.Supp. 77, 79-82 (S.D.Miss.1995) (same). 4 Bexar County filed its first notice of removal based on Cervantez's response to its motion for summary judgment. The district court found that this document did not state a federal question and remanded the case to state court. On appeal, neither party challenges this determination. See New Orleans Pub. Serv., Inc. v. Majoue, 802 F.2d 166, 167 (5th Cir.1986) ("It is beyond cavil ... that a district court's order remanding a cause to state court may not be appealed, if erroneous.") (citations omitted). ed. 1985). Removal jurisdiction may be predicated on the existence of a claim arising under the Constitution and laws of the United States.5 See 28 U.S.C. § 1441(b). Resolution of the timeliness of Bexar County's notice of removal, therefore, turns on whether Cervantez's First Amended Petition stated a federal question sufficient to create subject matter jurisdiction in the district court. Cervantez's First Amended Petition alleged claims of gender discrimination and retaliation in violation of the common law of Texas and the Texas Commission on Human Rights Act. He also alleged that Bexar County failed to provide a civil service appeal under the Texas Local Government Code and that he was entitled to attorney's fees under the Texas Civil Practice and Remedies Code. While these claims were brought pursuant to state law, Cervantez also alleged that he was "entitled to the affirmative relief he seeks ... pursuant to ... Title 42 of the United States Code, Section 1983." Although Cervantez did not elaborate on his theory of recovery under section 1983, his failure in this regard is not sufficient to defeat the subject matter jurisdiction of the district court. First, there is no question that section 1983 cases filed in state court may be removed to federal court because they are cases that could have originally been filed in federal court. See, e.g., Leffall, 28 F.3d at 524-25 (holding that the removal clock began to run when the defendants received a pleading that revealed on its face that the plaintiff was bringing a section 1983 claim). Second, this court has held that the scope of federal subject matter jurisdiction is broader than the existence of a cause of action. Holland/Blue Streak v. Barthelemy, 849 F.2d 987, 988 (5t h Cir.1988). Therefore, even if Cervantez's pleading was insufficient to state a section 1983 claim upon which relief could be granted, it was not insufficient to create federal subject matter jurisdiction in the district court. See Leffall, 28 F.3d at 525-32 (dismissing the plaintiff's section 1983 claim for failure to state a claim upon which relief could be granted under FED.R.CIV.P. 12(b)(6)). In Holland/Blue Streak, we explained: ... District Courts have original jurisdiction of all civil actions arising under the Constitution or laws of the United States. A federal court may have subject matter jurisdiction even though the complaint fails to state a claim for which relief can be granted. When a challenge to the district court's jurisdiction also contests the existence of a federal cause of action, the proper procedure for the district court is to find that jurisdiction exists 5 Neither party in this case asserts any other basis for federal jurisdiction.  and to deal with the objection as a direct attack on the merits of the plaintiff's case. The question is not whether the plaintiff has a cause of action or a remedy, but whether the district court may entertain the suit. The assertion of a claim under a federal statute alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. 849 F.2d at 988-89 (internal quotations omitted) (citations omitted) (emphasis added). See also Grinter v. Petroleum Operation Support Serv. Inc., 846 F.2d 1006, 1008 (5th Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 498, 102 L.Ed.2d 534 (1988); Daniel v. Ferguson, 839 F.2d 1124, 1127-29 (5th Cir.1988); Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1346-49 (5th Cir.1985); In re Carter, 618 F.2d 1093, 1102-05 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981); Burke v. Austin Indep. Sch. Dist., 709 F.Supp. 120, 121-24 (W.D.Tex.1987). We recognize that federal question jurisdiction can be defeated in rare cases when the federal claim is "clearly immaterial and is invoked solely for the purpose of obtaining jurisdiction or if the claim is wholly insubstantial and frivolous." Holland/Blue Streak, 849 F.2d at 989 (citations omitted). See, e.g., Patterson v. J.T. Hamrick, 889 F.Supp. 913, 915-16 (E.D.La.1995) (concluding that no federal question was presented by a claim based on a federal statute that did not create a private cause of action against the defendant); Martin v. Wilkes-Barre Publishing Co., 567 F.Supp. 304, 307-10 (M.D.Pa.1983) (holding that federal question jurisdiction could not be exercised over a first amendment claim against a private employer). In the instant case, however, Cervantez's section 1983 claim does not approach this level of frivolity. In this regard, we note that we have on numerous occasions recognized that section 1983 and Title VII are parallel causes of action.6 See, e.g., Whiting v. Jackson State Univ., 616 F.2d 116, 121-22 (5th Cir.1980); Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir.1986). While we express no opinion regarding the merits of Cervantez's substantive claims of employment discrimination, they are clearly not so futile as to satisfy the above standard. III. Conclusion We conclude that Cervantez's First Amended Petition stated a federal claim on its face that 6 Although Cervantez has not alleged violations of Title VII, his state-law claims under the Texas Commission on Human Rights Act are analogous. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). was sufficient to support federal subject matter jurisdiction. As a result, this case was properly removable on January 6, 1994, when Cervantez filed his First Amended Petition in state court. Because Bexar County waited until July 19, 1995, to file its first notice of removal, we hold that notice of removal was untimely. Therefore, Bexar County waived its right to remove this case to federal court. The judgment of the district court is VACATED and this action is REMANDED to the district court with instructions to REMAND this case to state court. 

17 F.3d 1444NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Raymond L. SLATE, Claimant-Appellant,v.Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee. No. 93-7070. United States Court of Appeals, Federal Circuit. Jan. 14, 1994. Before NIES, Chief Judge, PLAGER and CLEVENGER, Circuit Judges. NIES, Chief Judge. 1 Raymond L. Slate appeals from the February 10, 1993, judgment of the Court of Veteran Appeals (CVA), which affirmed the decision of the Board of Veterans' Appeals (BVA) denying his request to reopen a claim. We dismiss for lack of jurisdiction. I. 2 Slate served on active duty in the United States Army from August 1960 to August 1963. In 1972, physicians diagnosed Slate as having a sarcoma of the right thigh, which required amputation. Slate filed a claim with the Veterans Administration later that year, claiming that the sarcoma resulted from a parachuting accident that occurred while he was on active duty. This claim was denied. Slate requested that his claim be reopened in 1986. The BVA denied this request in a February 13, 1989, decision. 3 Slate again asked that his claim be opened in 1990 on the basis of new and material evidence. The BVA denied his request on May 13, 1991, concluding that his submissions did not meet the "new and material" evidence standard as set forth in 38 U.S.C. Sec. 5108. The CVA summarily affirmed this decision on February 10, 1993. This appeal followed. II. 4 Under 38 U.S.C. Sec. 7292, this Court may review only challenges to the validity or interpretation of a statute or regulation, or to the interpretation of a constitutional provision, that the CVA relied on in its decision. If an appeal to this Court from the CVA does not challenge the validity or interpretation of a statute or regulation, or the interpretation of a constitutional provision, Sec. 7292(d) requires this court to dismiss the appeal. That section states that this Court "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 5 Although Slate couches his arguments in terms of due process, the substance of his argument is that the evidence that he submitted should be deemed to satisfy the statutory "new and material" standard. His appeal thus amounts to a request for review of the trial court's application of the law governing reopening of claims to the facts of his case. As this Court has no jurisdiction to conduct such an inquiry, this appeal must be dismissed. See Livingston v. Derwinski, 959 F.2d 224, 225-26 (Fed.Cir.1992).

259 P.3d 115 (2011) 245 Or. App. 165 STATE v. WOODALL. No. A142663 Court of Appeals of Oregon. August 17, 2011. Affirmed without opinion.

923 F.2d 842 141 L.R.R.M. (BNA) 2312 Camporealev.Airborne NO. 90-7479 United States Court of Appeals,Second Circuit. OCT 11, 1990 Appeal From: E.D.N.Y., 732 F.Supp. 358 1 AFFIRMED.

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 22, 2009 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court JOE JEFFRIES, Plaintiff–Appellant, v. No. 09-2086 (D.C. No. 1:08-CV-00436-WPL) SOCIAL SECURITY (D. N.M.) ADMINISTRATION, Michael J. Astrue, Commissioner of the Social Security Administration, Defendant–Appellee. ORDER AND JUDGMENT * Before LUCERO, GORSUCH, and HOLMES, Circuit Judges. Joe Jeffries appeals from an order of the district court affirming a decision by the Commissioner of the Social Security Administration (“Commissioner”) to deny Jeffries’ application for Disability Insurance and Supplemental Security * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Income (“SSI”) benefits. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm. I Jeffries filed for disability benefits and SSI in the fall of 2004. He alleged disability based on a back injury, rib fractures on his right side, and accompanying pain. The agency denied his applications initially and on reconsideration. On November 30, 2005, Jeffries received a de novo hearing before an administrative law judge (“ALJ”). The ALJ determined that Jeffries retained residual functional capacity (“RFC”) to perform sedentary work, but that he could not climb ropes, ladders, or scaffolds and should avoid concentrated exposure to unprotected heights and hazardous moving machinery. At the same time, Jeffries could climb ramps and stairs, balance, stoop, kneel, crouch, and crawl occasionally. Based on this RFC, the ALJ concluded that, although Jeffries could not return to his past relevant work, there were a significant number of other jobs that he could perform in the national or regional economy. These jobs included working as a charge account clerk, jewelry sorter, or surveillance monitor. Applying the Medical-Vocational Guidelines, the ALJ ruled that Jeffries was not disabled within the meaning of the Social Security Act. Jeffries appealed the ALJ’s decision to the Appeals Council. He submitted additional evidence that became available after the ALJ’s decision, including -2- medical treatment notes from his treating physician and reports completed by two consultative examiners. The Appeals Council considered this new evidence but denied review, making the ALJ’s decision the Commissioner’s final decision. 1 II “Our review of the [Commissioner’s] decision is limited to whether his findings are supported by substantial evidence in the record and whether he applied the correct legal standards.” Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993) (quotations omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations omitted). The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing process). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. Id. at 751 n.2. If the claimant successfully meets this burden, at step five the burden of proof shifts to the Commissioner to show that the claimant retains sufficient 1 Because the Appeals Council considered the additional evidence Jeffries submitted, this evidence became part of the administrative record. O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). The agency’s final decision “necessarily includes the Appeals Council’s conclusion that the ALJ’s findings remained correct despite the new evidence.” Id. We therefore consider the entire record, including the new evidence, in conducting our review. -3- RFC to perform work in the national economy, given his age, education, and work experience. Id. at 751 . In the present case, the Commissioner reached his decision at step five and therefore bore the burden of proving Jeffries’ ability to work. On appeal, Jeffries asserts that: (1) the ALJ failed to give controlling weight to the medical opinions of his treating physician; (2) substantial evidence does not support the ALJ’s conclusion that Jeffries could perform work in the national economy; and (3) the ALJ did not evaluate Jeffries’ complaints of pain under the applicable legal framework. A 1 Following an MRI of Jeffries’ back in April 2005, Dr. Ravi Bhasker diagnosed him with multilateral degenerative disc disease with a small central disc herniation. At the request of Jeffries’ attorney, Dr. Bhasker completed an RFC form. Through a series of check-off boxes on the form, he indicated that Jeffries could: (1) occasionally and frequently lift less than ten pounds; (2) stand and walk fewer than two hours out of an eight-hour workday; and (3) sit fewer than four hours out of an eight-hour workday. Dr. Bhasker wrote on the form that Jeffries suffered from a pain-producing impairment and that his pain was severe, causing sleep disturbances and fatigue. Dr. Bhasker assigned “marked” limitations to Jeffries’ ability to “[m]aintain attention and concentration for -4- extended periods”; “[m]aintain physical effort for long periods”; “[s]ustain an ordinary routine without special supervision”; “[w]ork in coordination with/or [in] proximity to others without being distracted by them”; “[m]ake simple work-related decisions”; and “[c]omplete a normal workday and workweek without interruptions from pain or fatigue-based symptoms and to perform at a consistent pace without [an] unreasonable number and length of rest periods.” These restrictions are more severe than those the ALJ assigned to Jeffries in her RFC findings. In February 2007, Dr. Bhasker wrote in his progress notes that, although Jeffries was “attempting to start his own cab business,” he was currently “disabled due to the severe pain in his back.” The next month, Dr. Bhasker stated: “At the present time, [Jeffries] is unable to work. I have told him he cannot work. . . . I do believe that the patient is disabled and unable to do any kind of work that would involve heavy lifting, squatting, or bending.” 2 To properly evaluate the opinion of a treating physician, an ALJ must engage in the following analysis: [The] ALJ must give good reasons in the notice of determination or decision for the weight assigned to a treating physician’s opinion. Further, the notice of determination or decision must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight. -5- Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quotations, citations, and alteration omitted). In determining how much weight to give a treating source’s opinion, an ALJ must first decide whether the opinion qualifies for “controlling weight.” Id. To make this decision, the ALJ must “first consider whether the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques.” Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *2 (quotations omitted). If the answer to this question is no, then the controlling- weight analysis is complete. Watkins, 350 F.3d at 1300. On the other hand, “[i]f the ALJ finds that the [doctor’s] opinion is well-supported, she must then confirm that the opinion is consistent with other substantial evidence in the record.” Id. Even if the ALJ finds that the opinion is not entitled to controlling weight, she must still afford it deference and weigh it according to the factors provided in 20 C.F.R. §§ 404.1527 and 416.927. SSR 96-2p, 1996 WL 374188, at *4. These factors include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician’s opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s attention which tend to support or contradict the opinion. -6- Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted). After considering these factors, the ALJ must give good reasons for the weight she ultimately assigns the opinion in her notice of determination or decision. If the ALJ rejects the opinion completely, she must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at 1301. 2 3 In her evaluation of Dr. Bhasker’s RFC opinion, the ALJ stated: Claimant’s treating physician, Ravi Bhasker, M.D., has seen Mr. Jeffries since April 2005, for his low back pain. He has completed two functional capacity evaluations, one for exertional, and one for non-exertional limitations. Essentially, Dr. Bhasker opined that Mr. Jeffries cannot work because of his back condition. Ordinarily, I should accord a treating physician’s opinion controlling weight. However, after reviewing Dr. Bhasker’s progress notes, I find little objective support for his opinion of disability. The MRI results to which he alludes as basis for his opinion of exertional limitations, were given short shrift by Dr. Gelinas, who essentially[] found them unremarkable. Thus, it appears that Dr. Bhasker has based his assessments on Claimant’s allegations of pain, even though he remarks repeatedly that prescribed medications adequately control claimant’s pain. However, objective medical findings do not support a disabling level of pain. Moreover, most of Claimant’s visits to Dr. Bhasker appear to be for medication refills, without clinical examinations. For these reasons, I accord to Dr. Bhasker’s functional capacity evaluations little weight. 2 Medical source opinions on certain issues reserved to the Commissioner are not given controlling weight, even when provided by a treating physician. Although these opinions are still considered, they are not given any special significance. SSR 96-8p, 1996 WL 374184, at *8 n.8. To the extent that Dr. Bhasker’s opinions fell within the category of issues reserved to the Commissioner, the Commissioner did not err by failing to give them controlling weight. -7-  On appeal, while admitting that the ALJ provided specific reasons for her conclusions concerning Dr. Bhasker’s opinions, Jeffries contends that her analysis was flawed because: (1) the reasons given by the ALJ were neither legitimate nor accurate; and (2) the ALJ failed to complete all of the steps required by Watkins. Jeffries first takes issue with the ALJ’s statement that Dr. Bhasker’s opinion finds little objective support in the record. On the RFC form, Dr. Bhasker was asked to state the medical basis for his RFC opinion. He relied exclusively on the MRI results and on the opinion of a consultant, Dr. Claude Gelinas. In his opinion, Dr. Gelinas stated that the MRI showed only “mild degenerative changes” and “[n]o significant nerve root stenosis.” As a result, his diagnosis was “[e]arly degenerative disc disease.” Dr. Gelinas also saw no “pathology to justify surgery” and instead recommended that Jeffries be referred to physiatry for pain management and pursue a program of physical therapy exercise and stretching. The ALJ credited these conclusions over Dr. Bhasker’s ultimate opinion. Because there were good reasons for the ALJ to credit Dr. Gelinas’ conclusions over Dr. Bhasker’s, we fail to see how the ALJ acted improperly. First, Dr. Gelinas’ conclusions were more specific than Dr. Bhasker’s. Second, unlike Dr. Bhasker, Dr. Gelinas is an orthopedic surgeon who specializes in spinal pathology. Finally, it was Dr. Bhasker who referred Jeffries to -8- Dr. Gelinas, and Dr. Bhasker later tailored his recommendations for Jeffries’ care to those of Dr. Gelinas. We also do not see error in the ALJ’s characterization of Dr. Gelinas’ reading of the MRI. Jeffries complains that the ALJ misconstrued Dr. Gelinas’ reading of the MRI when she stated that Dr. Gelinas found the MRI results “unremarkable.” Actually, the ALJ stated that Dr. Gelinas “essentially[] found [the results] unremarkable.” But even if “unremarkable” was too strong a word in this context, the ALJ’s basic point was well-taken. 3 For the reasons we have already specified, nothing in Dr. Gelinas’ observations supports Dr. Bhasker’s reliance on the MRI results as objective proof of disability. Dr. Gelinas interpreted the MRI as showing only mild degenerative changes and early degenerative disc disease. Jeffries’ challenge is therefore without merit. Jeffries also takes issue with the ALJ’s finding that Dr. Bhasker’s assessment of Jeffries’ limitations was based on his “allegations of pain” and therefore entitled to little weight. Citing to Sisco v. United States Department of Health & Human Services, 10 F.3d 739 (10th Cir. 1993), Jeffries argues that an ALJ should not second guess the manner in which a doctor arrives at his opinions 3 The record does not support Jeffries’ contention that “the ALJ made repeated comments within her decision stating her disagreement with the objective evidence insofar as she viewed Jeffries’s degenerative spinal condition to be ‘unremarkable.’” The ALJ rejected only Dr. Bhasker’s interpretation of the MRI results on this basis. -9- or presume to prescribe the proper methods for a physician to follow in reaching a medical opinion. Our reasoning in Sisco, however, differed significantly from the analysis required here. In Sisco, the ALJ rejected the consensus of the claimant’s treating physician and the Mayo Clinic that the claimant suffered from chronic fatigue syndrome because she could not produce a “dipstick” laboratory test to diagnose her symptoms. Id. at 744. In fact, no such “dipstick” test existed, and the claimant’s diagnosis of chronic fatigue syndrome was actually supported by medically acceptable techniques. Id. In the present case, the ALJ assigned little weight to Dr. Bhasker’s opinion because it was unsupported by medically acceptable diagnostic techniques. As noted above, the results of Jeffries’ MRI were the only objective evidence on which Dr. Bhasker relied. 4 The ALJ permissibly credited Dr. Gelinas’ interpretation of the MRI rather than Dr. Bhasker’s and then ruled out the only other basis for Dr. Bhasker’s opinion: Jeffries’ allegations of pain. These allegations were contradicted by Dr. Bhasker’s own observations that the medication controlled Jeffries’ pain. Because the ALJ provided adequate reasons 4 Dr. Gelinas may also have performed some range-of-motion (“ROM”) tests on Jeffries. In the same letter to Dr. Bhasker in which he gave his opinion about the MRI, Dr. Gelinas also stated that he found Jeffries’ ROM slightly reduced due to pain. Dr. Gelinas’ opinions about Jeffries’ ROM were incorporated into his conclusions expressed in the same letter, i.e., that Jeffries’ back problems were mild and required only non-surgical intervention. The ROM findings thus do not form a separate, objective basis to support the more serious restrictions Dr. Bhasker assigned in his RFC opinion. -10- for her conclusion that Dr. Bhasker’s opinions were not entitled to controlling weight, we reject Jeffries’ contention that the ALJ’s analysis relied on impermissible speculation. Jeffries advances a final argument in opposition to the ALJ’s evaluation of Dr. Bhasker’s opinions. He argues that after denying controlling weight to Dr. Bhasker’s opinions, the ALJ failed to follow the second part of the Watkins analysis: the determination of what lesser weight should be assigned to those opinions. Our review of the ALJ’s decision persuades us otherwise. First, the ALJ expressly determined that Dr. Bhasker’s opinions were entitled to little weight. In reaching this conclusion, she considered the factors described in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). She specifically discussed the length of the treatment relationship between Jeffries and Dr. Bhasker, the frequency of examination, and the nature and extent of treatment provided. She also noted that although Jeffries had been seeing Dr. Bhasker for his back problems since April 2005, most of the visits consisted primarily of medication refills without clinical examination. Second, the ALJ discussed the degree to which Dr. Bhasker’s opinions were supported by the evidence. She noted that Dr. Gelinas concluded that the MRI showed only mild degenerative changes and no significant nerve root stenosis. Finally, the ALJ considered the specialization of the doctors in the record. Dr. Gelinas specialized as an orthopedic surgeon while Dr. Bhasker did not. Thus, the ALJ provided adequate reasons for -11- assigning little weight to Dr. Bhasker’s opinions and did not commit reversible error. 5 B Jeffries next contends that the ALJ’s step-five finding that he could perform other work must be reversed because: (1) the RFC assessment was unsupported by substantial evidence; and (2) the ALJ’s hypothetical questions to the vocational expert (“VE”) did not encompass all of Jeffries’ limitations. 1 Citing to SSR 96-8p, 1996 WL 374184, at *7, Jeffries first argues that the ALJ improperly failed to give reasons for rejecting the specific limitations set forth in Dr. Bhasker’s RFC opinion. Jeffries claims that in formulating her RFC assessment, the ALJ should have specifically discussed each of the restrictions Dr. Bhasker imposed on Jeffries’ functional capacities, such as his ability to sit, stand, and walk. Jeffries points to no case law or other relevant authority mandating such a rigid approach to the discussion requirements of SSR 96-8p. 6 The ruling simply 5 To the extent Jeffries challenges the Appeals Council’s failure to grant review based on statements contained in Dr. Bhasker’s treatment notes of February 14, 2007, and May 16, 2007, we also discern no reversible error. The opinions were contradicted by other medical evidence and expressed conclusions on issues reserved to the Commissioner. 6 Where an ALJ implicitly accepts a physician’s opinion in formulating her RFC, but rejects some of the limitations contained in that opinion, she may have a (continued...) -12- states that “[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” 1996 WL 374184, at *7. As we have detailed above, the ALJ provided such an explanation, giving specific, legitimate reasons for assigning little weight to Dr. Bhasker’s entire RFC opinion. 7 Jeffries also contends that in formulating her RFC opinion, the ALJ improperly relied on information from two non-examining reviewing physicians and one non-treating consultative examiner. He argues that these opinions should not outweigh that of his treating physician. Although in general an ALJ should give greater weight to the opinion of a treating physician than that of a consultant or non-examining physician, see 20 C.F.R. § 404.1527(d)(2), here the ALJ provided legitimate reasons for assigning little weight to Dr. Bhasker’s opinion. Moreover, an ALJ is entitled to rely on all the medical evidence in the record, 6 (...continued) duty to give reasons for the specific limitations she rejects. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). But that is not the scenario here. Unlike the ALJ in Haga, the ALJ here provided reasons for assigning little weight to Dr. Bhasker’s entire opinion. 7 It is true that “medical source statements may actually comprise separate medical opinions regarding diverse physical and mental functions, such as walking, lifting, seeing, and remembering instructions, and that it may be necessary [for the ALJ] to decide whether to adopt or not adopt each one.” SSR 96-5p, 1996 WL 374183, at *4. In the present case, however, the reasons the ALJ gave for rejecting Dr. Bhasker’s assessment encompassed all of the restrictions she rejected, and specific discussion of each was not required. -13- including that of the consulting and non-examining physicians. See SSR 96-6p, 1996 WL 374180, at *1-*2. 8 2 In addition to the RFC assessment, Jeffries also challenges the ALJ’s hypothetical question to the VE. He argues that when the ALJ questioned the VE regarding what occupations someone with Jeffries’ strength limitations could be capable of performing in a national or regional economy, the ALJ should have included the limitations described by Dr. Bhasker. An ALJ, however, is not required to include limitations “not accepted by [her] as supported by the record” in her hypothetical question. Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995). For the reasons we have already stated, the ALJ permissibly rejected the additional restrictions on Jeffries’ RFC as specified by Dr. Bhasker. She therefore did not err in omitting these restrictions from her hypothetical question to the VE. 8 Jeffries complains that the non-treating consultative examiner did not have his x-ray or MRI results to review at the time of his examination. As a result, Jeffries contends that the Commissioner failed in his duty to provide the consultative examiner with “any necessary background information about [Jeffries’] condition.” 20 C.F.R. §§ 404.1517, 416.917. At the time the consultative examiner observed Jeffries, however, the MRI results did not yet exist. Although the x-rays had been completed the day before, and apparently were not provided to the consultative examiner, they were made available to the non-examining physicians. These physicians opined one day later that the x-rays showed only early sclerotic changes that pointed to a non-severe condition. -14-  C Finally, Jeffries asserts that the ALJ erred by failing to apply the proper legal framework to his claim of disabling pain. In assessing a claim of disabling pain, an ALJ is required to follow a three-step process. Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987). First, she must determine whether a pain-producing impairment has been established by objective medical evidence. Id. Second, she must determine whether at least a “loose nexus” has been established “between the proven impairment and the pain alleged.” Id. at 164. Finally, the ALJ must determine whether, considering all the evidence, both subjective and objective, the claimant’s pain is in fact disabling. Id. at 163. Jeffries concentrates his attack on the third step of the analysis. He asserts that in reaching the conclusion that his complaints of pain were not entirely credible, the ALJ ignored several factors demonstrating that his pain was in fact disabling. Specifically, the ALJ was required to consider such factors as: the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted). According to the Jeffries, the ALJ failed to consider: (1) the medications he takes; (2) certain medical treatments he received; (3) lay testimony from his wife -15- concerning his pain; (4) statements from the consultative physicians; and (5) other evidence he presented concerning his disabling pain. First, Jeffries claims that “the ALJ failed to even mention that [he] was consistently prescribed and took medication for his pain.” This assertion is incorrect. Although the ALJ did not identify or discuss the specific medications Jeffries took, she noted that he had seen Dr. Bhasker for medication refills and that Dr. Bhasker had repeatedly remarked that the prescribed medication adequately controlled his pain. These remarks show that the ALJ gave adequate consideration to Jeffries’ medications. Second, Jeffries contends that the ALJ erred in failing to mention the analgesic epidural injections he received for his back pain. However, in support of her conclusion that medication adequately controlled Jeffries’ pain, the ALJ specifically cited Dr. Bhasker’s treatment note of October 25, 2006. In that note, Dr. Bhasker stated that Jeffries’ “pain appears to be stable with his pain medication and injections.” Thus, the ALJ gave adequate consideration to Jeffries’ epidural injections and their effect on his pain. Third, Jeffries complains that the ALJ did not consider the lay witness testimony from his wife concerning his pain. However, the ALJ stated: I have also considered the written statement from Claimant’s wife. As his spouse, she is no doubt, biased, though understandably so. However, I am inclined to conclude that her perceptions of her husband’s limitations are due in part to her husband’s inclination to act more limited than he is, given the disparity between the objective -16-  medical evidence and his symptoms. Therefore, I accord her statement some weight, but not substantial weight. Jeffries’ fourth argument is that the Appeals Council disregarded two examination reports that established the disabling nature of his pain. More specifically, Jeffries points to one report in which Dr. Greg McCarthy made statements that Jeffries’ gait was “slow and antalgic”; that he had positive straight-leg testing in both the supine and sitting positions; that he was unable to walk on his heels or tiptoes; and that he was unable to squat or to perform a heel- to-toe walk due to pain in his lower back. Dr. McCarthy also concluded, however, that Jeffries could lift ten pounds on an occasional basis and would be able to sit, stand, and walk sufficiently to complete an eight-hour workday. All told, Dr. McCarthy’s conclusions about the physical limitations posed by Jeffries’ pain do not contradict the ALJ’s RFC determination. Jeffries also draws our attention to a psychiatric assessment by Dr. Charles Mellon. He asserts that because Dr. Mellon did not diagnose him with a specific mental illness, but assigned him a Global Assessment of Functioning (“GAF”) score of fifty-four, 9 the doctor must have based the low GAF score on his Axis III 9 A GAF rating of fifty-four falls within the range of scores, fifty-one to sixty, that indicates moderate symptoms or functional difficulties in an individual’s overall level of functioning. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed. text revision, 2000). -17- diagnosis of “Back pain with Herniated Discs.” This diagnosis would indicate that Dr. Mellon considered Jeffries’ back pain to be a very serious impairment. However, Jeffries ignores the fact that Dr. Mellon diagnosed him with narcissistic personality disorder and concluded that his ability to interact with co-workers and supervisors would be moderately limited. Thus, the low GAF score could have been attributable to psychological factors other than pain. Without more, we cannot draw a straight line from Jeffries’ GAF score to a conclusion that his back pain was sufficiently severe to call the ALJ’s decision into question. Finally, Jeffries argues that the ALJ failed to consider that his back pain continued even after he was provided with pain medication and injections. However, the ALJ never denied that Jeffries suffered from continuing back pain; rather, she rejected Jeffries’ contention that the pain was disabling. In the same way, the Appeals Council never denied that Jeffries experienced pain; instead, it rejected the opinions of Dr. Bhasker about the disabling severity of the pain. 10 Based on the evidence in the record, these decisions were not in error. 10 Jeffries complains that the ALJ made a finding that he did not comply with the prescribed physical therapy regime without considering the appropriate factors relating to non-compliance. It does not appear that he raised this argument in the district court. Accordingly, we do not consider it. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”). -18-  III For the reasons stated above, the judgment of the district court is AFFIRMED. ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge -19- 

861 F.2d 715 Munnings (Gene Edward)v.Officer Townes, Officer Brehm, Lt. Newkirk NO. 88-6741 United States Court of Appeals,Fourth Circuit. SEP 30, 1988 1 Appeal From: D.Md. 2 AFFIRMED.

734 F.2d 11 McCallv.U.S. 82-2077 United States Court of Appeals,Fourth Circuit. 4/23/84 1 D.Md. AFFIRMED

172 Ill. App.3d 455 (1988) 526 N.E.2d 882 In re MARRIAGE OF MICHAEL D. PLYMALE, Petitioner-Appellant, and KARIN M. PLYMALE, Respondent-Appellee. No. 2-87-1055. Illinois Appellate Court — Second District. Opinion filed July 13, 1988. Supplemental opinion filed on denial of rehearing August 18, 1988. *456 Thomas W. Hunter, of Palatine, for appellant. Mary Robinson, of Robinson & Skelnik, of Elgin, for appellee. Judgment reversed. JUSTICE REINHARD delivered the opinion of the court: Petitioner, Michael D. Plymale, appeals from the October 8, 1987, order of the circuit court of McHenry County granting respondent Karin M. Plymale's motion to vacate, in part, a previous judgment, entered on April 27, 1984, which invalidated the parties' marriage ab initio, awarded custody of the two minor children to petitioner, and awarded the marital residence to petitioner. The circuit court determined that, the retroactive judgment of invalidity having been previously entered, the court, in that original proceeding, lacked the subject matter jurisdiction to award custody of the children or to distribute property. The issue raised on appeal is whether the trial court properly interpreted section 304 of the Illinois Marriage and Dissolution of Marriage *457 Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 304) in finding that it had lacked the subject matter jurisdiction to award custody or distribute property when it declared the marriage invalid ab initio. On March 14, 1984, petitioner filed a petition to declare the March 20, 1981, marriage of the parties invalid alleging that respondent was still married to another person at the time of the marriage and was not divorced until May 28, 1981. Additionally, petitioner sought division of the property of the parties and custody of the two children who were born during the marriage. Respondent was personally served in the State of Kentucky and did not appear in the proceedings below. At the April 26, 1984, hearing on the petition, petitioner testified that he did not discover that respondent had not been divorced prior to their marriage until respondent informed him just prior to the petition being filed. Petitioner further testified, in relevant part, that he sought the marital residence because he and his parents made the down payment and all the subsequent payments for the home, and that he sought custody of the children subject to reasonable visitation rights. No mention was made at the hearing of whether the invalidity of the marriage would be retroactive. On April 27, 1984, a written judgment of invalidity of the marriage was entered by Judge William F. Homer which provided that the marriage was declared void ab initio, that custody of the children be awarded to petitioner, that each party be awarded the personal property which was in his or her own name, that petitioner be awarded the marital residence, and that neither party is entitled to maintenance. On September 18, 1987, respondent filed a motion to vacate the custody and property provisions of the judgment of invalidity of the marriage contending that, as the judgment was specifically made void ab initio, the court had no subject matter jurisdiction to adjudicate custody and property rights under section 304 of the Act. Other petitions for temporary custody and for a rule to show cause were filed by the parties. On October 8, 1987, Judge Conrad F. Floeter entered an order vacating the custody and property provisions of the April 27, 1984, judgment of invalidity of the marriage. In his oral comments on his ruling, Judge Floeter indicated that, in describing the marriage as "void ab initio" in the April 27, 1984, judgment, the circuit court, Judge Homer, thereafter was deprived of subject matter jurisdiction pursuant to section 304 of the Act to adjudicate property and custody matters. Petitioner appeals from the order partially vacating the previous judgment. On appeal, petitioner contends that the circuit court, once it acquired subject matter jurisdiction, did not lose jurisdiction by an erroneous *458 application of the law to the facts. Petitioner also presents further arguments which would construe the language in section 304 as directory, rather than mandatory or, alternatively, if mandatory, as not depriving the circuit court of jurisdiction. Respondent essentially argues that because the circuit court recited in the judgment that the marriage was "void ab initio," there is no subject matter jurisdiction to further adjudicate property and custody rights under section 304. Section 304 of the Act provides: "Sec. 304. Retroactivity. Unless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive judgment on third parties, that the interests of justice would be served by making the judgment not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of this Act relating to property rights of the spouses, maintenance, support and custody of children on dissolution of marriage are applicable to nonretroactive judgments of invalidity of marriage only." Ill. Rev. Stat. 1987, ch. 40, par. 304. Section 304, which derives from section 208(e) of the Uniform Marriage and Divorce Act (see 9A U.L.A. 170-71 (1987)), now allows the circuit court to make the judgment of invalidity of the marriage nonretroactive so that the provisions of the Act relating to property rights of spouses, maintenance, and support and custody of children may be applied. (See Ill. Ann. Stat., ch. 40, par. 304, Historical and Practice Notes, at 94-95 (Smith-Hurd 1980).) While, in the instant case, the circuit court's judgment of invalidity of the marriage recited that "the marriage is declared void ab initio," the court further made provisions for custody of the children, disposition of the property of the parties, and entitlement to maintenance. We also note that the petition to declare the marriage invalid requested the adjudication of property and custody rights, but did not mention seeking retroactive invalidity of the marriage. At the hearing on the petition, petitioner also testified that he sought custody and division of the property. Again, no mention was made of a retroactive application of the invalidity of the marriage. The record shows that the written judgment of invalidity of the marriage was prepared by petitioner's counsel and signed by Judge Homer. There appears to be no reason why the language was included in the judgment that "the marriage is declared void ab initio." The petition, testimony, and all the other findings and awards of the court in the judgment clearly indicate that petitioner and the circuit court intended that the judgment of invalidity of the marriage not be retroactive. *459 • 1, 2 As a general rule, judgments are to be construed like other written instruments, the determinative factor being the intention of the court as gathered from all parts of the judgment itself. (46 Am.Jur.2d Judgments § 73 (1969).) In construing a judgment, it may be presumed that the court intended a valid, not a void, judgment; hence, where it is reasonably possible, such construction should be adopted as will give force and effect to the judgment. (46 Am.Jur.2d Judgments § 74 (1969).) A judgment which may be ambiguous may be read in conjunction with the entire record (46 Am.Jur.2d Judgments § 76 (1969)), and it will be construed in accordance with that record. (See Listeman, Bandy & Hamilton Association v. Wilson (1983), 94 Ill.2d 60, 64-65, 445 N.E.2d 323.) We conclude that the intent of the April 27, 1984, judgment was to make the judgment nonretroactive, notwithstanding the one reference to the contrary in the judgment, and to adjudicate the child custody and property issues between the parties. Accordingly, the court properly exercised its jurisdiction over these matters pursuant to section 304. It is well established that a judgment entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular judgment involved, is void and may be attacked at any time. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill.2d 304, 309, 489 N.E.2d 1360.) However, as there was no issue raised as to personal jurisdiction over respondent in the proceeding to declare the marriage invalid and, as we have concluded that the court intended to exercise subject matter jurisdiction under section 304 to adjudicate the child custody and property rights of the parties, the subsequent action by respondent to vacate the April 27, 1984, judgment must necessarily fail on any other possible basis as it was brought more than two years after entry of the original judgment. Ill. Rev. Stat. 1987, ch. 110, par. 2-1401(c); People v. Bushnell (1984), 101 Ill.2d 261, 264, 461 N.E.2d 980. For the foregoing reasons, the judgment of the circuit court of McHenry County is reversed. Reversed. DUNN and INGLIS, JJ., concur. SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JUSTICE REINHARD delivered the opinion of the court: • 3 In her petition for rehearing, respondent contends that the basis *460 for our reversal of the circuit court was not argued on appeal, nor was it advanced below by petitioner when asked about such theory by the trial court. For these reasons, respondent contends that petitioner has waived this specific ground for reversal. While the general rule is that, other than for jurisdictional reasons, a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse a trial court judgment (Saldana v. Wirtz Cartage Co. (1978), 74 Ill.2d 379, 386, 385 N.E.2d 664), the waiver doctrine as expressed in Supreme Court Rule 341(e)(7) (107 Ill.2d R. 341(e)(7)) is an admonition to the parties and is not a limitation upon the jurisdiction of the reviewing court. (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill.2d 208, 211, 443 N.E.2d 563; Hux v. Raben (1967), 38 Ill.2d 223, 224-25, 230 N.E.2d 831.) A reviewing court need not ignore grave errors of law which the parties on appeal either overlook or decline to address. (See People v. Reddick (1988), 123 Ill.2d 184, 199.) In exercising this power, care should be taken that the litigants are not deprived of an opportunity to present argument. (Schutzenhofer, 93 Ill.2d at 211, 443 N.E.2d at 564.) Here, the issue was one of law, not involving proof, which interpreted a prior judgment. No argument is made in the petition for rehearing by respondent challenging the legal theory upon which this case is decided. DUNN and INGLIS, JJ., concur.

411 F.Supp.2d 1338 (2006) COCA-COLA BOTTLING CO., CONSOLIDATED, INC., Plaintiff, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS, LOCAL UNION NO. 991, Defendant. No. Civ.A.05-0230-P-B. United States District Court, S.D. Alabama Southern Division. January 26, 2006. Forrest H. Roles, Mark A. Carter, Charleston, WV, Paul D. Myrick, Jackson, Myrick LLP, Mobile, AL, for Plaintiff. *1339 J. Cecil Gardner, Mobile, AL, Mary Elizabeth Olsen, Michael Vance McCrary, Gardner, Middlebrooks, Gibbons, Kittrell & Olsen, P.C., Mobile, AL, for Defendant. ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT PITTMAN, Senior District Judge. This is an action brought by plaintiff Coca-Cola Bottling Co. Consolidated, Inc. (hereinafter referred to as "CCB"), against defendant the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991 (the "Union"), seeking to vacate a labor arbitration award issued under the terms of a collective bargaining agreement. Pending before this court are cross-motions for summary judgment filed by both parties pursuant to Rule 56 of the Federal Rules of Civil Procedure: 1) CCB's Motion For Summary Judgment (docs.19-20); and 2) the Union's Motion For Summary Judgment (docs.21-23). Responses to each of these Motions have been filed by CCB (doc.26), and by the Union (doc.27). After careful consideration of all relevant matter, and the record as a whole, this court finds: 1) CCB's Motion For Summary Judgment (docs.19-20), is DENIED; and 2) the Union's Motion For Summary Judgment (docs.21-23), is GRANTED. A. Procedural History CCB filed this action on April 15, 2005 (doc.1). This court has jurisdiction pursuant to 28 U.S.C. § 1331, under Section 301 of the National Labor Relations Act, 29 U.S.C. § 185 (the "Act"). The Act provides: For the purpose of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. § 185(c). Venue is proper insofar as the Act states: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in the Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. § 185(a). It is undisputed that CCB is a corporation licensed to do business in Alabama and is an employer engaged in commerce within the meaning of the Act, operating distribution centers and a bottling facility in Mobile County, Alabama. 29 U.S.C. § 152(2). The Union is an unincorporated association and labor organization within the meaning of the Act. Id., at § 152(5) (doc.1 ¶ 2-3). CCB alleges that the parties have been and remain at all relevant times bound by the terms of a collective bargaining agreement (the "Agreement"[1]). CCB alleges that under the Agreement, it has the express right to establish new classifications and to set wages for those classifications (Article 27); to establish or revise its distribution system (Article 5-27); and that the Union has no specific right to operate pursuant to any defined distribution system or to prevent CCB from staffing new classifications (doc.1, ¶ 6-8).[2] *1340 CCB alleges that on May 3, 2004, under its express authority and after notice and consultation with the Union, it implemented a new system of delivery routes throughout Mobile. CCB alleges that as a result of the new system, the Union's employees when compared with the previous routing system, accrued an increase in annual compensation, generally. Id., ¶ 9, 11. CCB alleges that on May 6, 2004, the Union filed a grievance challenging the implementation of the new system under the grievance arbitration mechanism within the Agreement. In October 2004, the grievance was arbitrated before Arbitrator Harold Curry. Id., ¶ 10, 12. CCB alleges that on April 8, 2005, the Arbitrator rendered a decision granting the Union's grievance in "deliberate contradiction" to the express agreement rights of CCB. CCB alleges that the Arbitrator directs it "to make the `Union whole for any loss of compensation' without similarly ordering the Union or its members to make [CCB] whole for any overpayments to [CCB] employees. The Arbitrator similarly seeks to retain jurisdiction over the grievance arbitration for a period of 120 days despite no such authority being provided by the [Agreement]." Id., ¶ 14. CCB alleges that the Arbitrator's Decision and Award are incomplete and ambiguous to the extent that it is impossible to determine how to comply with the Award. Id., ¶ 15. CCB claims that the Arbitrator's Award imposes upon it a duty to abandon its express Agreement rights to control its operations, i.e., to re-route drivers and overpay them; it undermines the utility and integrity of the Agreement; and denies CCB the ultimate decision making and operations authority guaranteed under Articles 2, 5, and 27 of the Agreement. CCB asks this court to vacate the Award, and seeks attorney's fees and costs. Id., ¶ 17-19. On May 5, 2005, the Union filed its Answer and Counterclaim to Enforce Arbitrator's Award (doc.7). The Union alleges that the parties voluntarily submitted to binding arbitration provided for in the Agreement, and that the Arbitrator acted within his authority conferred by the Agreement. Id., ¶ 28-29. The Union alleges that even though the Arbitrator's binding Decision and Award was issued on April 8, 2005, CCB has refused and failed to implement the award in violation of the Agreement, and federal labor law. The Union asks the court to enforce the Award, and argues that any disputes regarding the proper calculation of the Award should be addressed to the Arbitrator (doc.23). The Union also seeks attorney's fees for its enforcement efforts. Id., ¶ 30; (doc.23). On May 25, 2005, CCB filed its Answer to the Union's Counterclaim and requests its attorney's fees in defending against the Counterclaim (doc.9). On July 20, 2005, the Rule 16(b) Scheduling Order was entered noting the inappropriateness of formal discovery under 9 U.S.C. § 6 ("Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, . . ."). This court set an October 19, 2005 deadline for dispositive motions (doc.18, items 8, 16). On October 19, 2005, CCB filed its Motion For Summary Judgment (docs.19-20), and the Union filed its Motion For Summary Judgment (docs.21-23). On November *1341 21, 2005, CCB filed its Reply to the Union's Motion For Summary Judgment (doc.26), and the Union filed its Submission In Opposition to CCB's Motion For Summary Judgment (doc.27). B. Findings of Facts CCB produces and distributes Coca-Cola brand products under a franchise (doc.19, attachment 16, p. 3, ¶ 2). CCB and the Union are parties to the Agreement which governs the terms and conditions of bargaining unit employees at CCB's facility in Mobile, Alabama. Id; doc.23, ¶ 1. The Agreement between the parties was entered into on August 27, 2002, "to provide for the operation of [CCB] under methods which will further, to the fullest extent possible the safety and welfare of the [e]mployees, economy of operations, quality and quantity of output, cleanliness of facilities, protection of property, customer service, innovation, and harmonious relations." (doc.23, Ex.A, p. 1, 40). The Agreement provides: Nothing in this Agreement shall be deemed to limit [CCB] in any way in the exercise of the regular and customary functions of management, including, without limitation, the right to plan, direct and control all operations, and the right to make, in connection therewith, such rules and regulations relating to operations as it shall deem advisable. This shall not be interpreted to nullify any of the specific provisions of this Agreement. The provisions of the contract shall prevail if there is a conflict with rules established by [CCB]. (doc.23, Ex.A, p. 2, Art.2). Article 5 provides, in part: Section 1: [CCB] and the Union recognize the principle of seniority based upon length of service, ability and experience of the employees in its application to promotion, transfer, job selection, laid off and recall. [CCB] seniority shall be defined as the uninterrupted length of service an employee has been employed by [CCB]. Departmental seniority shall be defined as the uninterrupted length of service the employee has worked in the department. It is recognized that departmental seniority is an exception to the general principle of [CCB] Seniority. Controlling seniority for bidding purposes, promotions and shift preference within these departments is departmental seniority. Employees within a department will have the first opportunity for any job vacancy within their department based on their department seniority. If the job cannot be filled from within the department, then bids from other departments will be accepted to fill the vacancy. [CCB] wide seniority is the controlling seniority for layoff situation. A list of employees in order of their seniority shall be posted on the official bulletin boards at their places of employment twice a year on August 1st and February 1st. A copy will be sent to the Union and a department list will be given the steward in each department. Any objections to the seniority standing shown on the list must be made within fourteen (14) days from the date of posting, and any controversy over the seniority standing of an employee on this list shall be handled under the Grievance Procedure. Section 2: (Job Vacancies and Bids) A.) Job Bids Notice of job vacancies shall be posted within seven (7) days after a determination by [CCB] that a vacancy exists. Notice of all new jobs and job vacancies covered by this agreement shall be posted on the bulletin boards of [CCB] *1342 for a period of seven (7) calendar days. All subsequent job bids, which are a result of the original new job or other job vacancy will be posted on the bulletin board for a period of two (2) working days. Successful bidders will be placed in their new positions within 30 days of the conclusion of the entire bid process, including subsequent bids being awarded. If there is more than one qualified employee with the ability and fitness to perform the job, the senior employee will be designated the successful bidder. For purposes of job bids, departmental seniority shall apply. When choosing among bidders who have no departmental seniority, company seniority shall apply. The successful bidder shall be on a trial basis for a period of not more than sixty (60) working days from the date of assignment. If within the trial period [CCB] determines that the employee has not demonstrated ability to handle the job satisfactorily, [CCB] may remove such employee from such job and reassign him to the classification he held prior to such assignment. In the event a new type job or new type route is created, no employee will be restricted from bidding on such new job or new route as outlined under Bid Locks of this section. * * * * * * C.) Sales Department When any route becomes open, [CCB] shall post a notice of the fact on the official bulletin board in the Sales room and mail a copy of the notice to each of the Warehouses and to the Union. Any Sales Department Employee who desires to bid on the route, must sign the bid in accordance with the above mentioned bid procedure. The job will be awarded to the qualified Sales department employee with the greatest department seniority. If there is a major change in the Sales Department such as restructuring of routes that involves 25% or more of routes in that branch/location, they will be posted in the branch doing the reroute for seven (7) calendar days and may be posted on any day. During the seven (7) day period, sales department employees will have the opportunity to review the new structure. At the conclusion of the seven (7) day period, all sales department employees in that branch will exercise their sales department seniority and bid upon an available bargaining unit position . . . D.) Bid Locks The employee who is the successful bidder for any job will be required to remain in that job for six months before they can bid on another job. The exception would be: If no other eligible employees bid on a job, if routes are restructured, or if they were bumped or laid off from the department and coming back from being bumped or laid off, the six (6) month restriction would not apply for the first bid. Newly hired employees working in manufacturing (production, maintenance, quality assurance, warehouse, garage, transport) cannot bid for six (6) months from their hire date as a regular full time employee. Id., p. 3-5, Art.5. The Agreement contains a prohibition on extra contract agreements: [CCB] agrees not to enter into any agreement or contract with its employees, individually or collectively, which in any way conflicts with the terms and provisions of this Agreement. [CCB] is permitted to make and enforce any reasonable [CCB] rules which do not conflict with the provisions of this Agreement; all such rules to be posted on the official bulletin boards for a period of seven (7) calendar days before becoming *1343 effective and the Union to be furnished a copy of such rules. Id., p. 18, Art.25. With regard to sales personnel, the Agreement provides, in pertinent part: Section 1: Route Driver-Salesperson The parties to this contract agree that the following classifications for Route Driver-Salesperson shall be recognized: Relief Salesperson, Bulk Account Salesperson, Bulk Delivery Driver, Senior Salesperson, Full Service Representative, Home Market Route Salesperson, Cold Bottle Route Salesperson. * * * * * * Section 8: Miscellaneous Provisions for All Sales Employees * * * * * * D. [CCB's] intent in regards to routes is as follows: [CCB] will endeavor to set up the routes on a Winter-Summer basis whereby it will not be necessary for all routes to be "open" when the temporary Summer routes are added in the Spring and taken off in the Fall. Further, [CCB] will endeavor to set the routes up so that the volume on the regular Home Market routes will be about 1,500 cases per week in the Summer and about 1,200 cases per week in the Winter. The volume on the temporary Summer routes will probably be less than on the regular Summer routes. The guideline for Bulk Account routes will be about 2,200 cases per week. It is recognized that these volume figures are only goals to shoot for and many conditions will cause them to vary. If the volume on the routes vary too far from these goals, [CCB] will make necessary adjustments in the routes to conform to good business practices, keeping in mind the best interest of the employees and [CCB] . . . Id., p. 19, Art.27. The Agreement also contains a procedure for grievances and for arbitration of disputes between the parties: (A). Grievance by Union and Employees Step 1. The aggrieved employee or steward under whose jurisdiction any grievance may arise, within five (5) working days of the occurrence shall present the matter in writing to the aggrieved employee's manager. In the event the steward and manager cannot agree on adjustment of the matter within three (3) working days following receipt by the manager of the written grievance, the grievance may be taken to Step 2. The five (5) day time limit shall apply to [CCB], the Union and the Employee in the same way. The Employee has five (5) working days to file a grievance from the time of knowledge and [CCB] has five (5) working days from the time of knowledge to take disciplinary action. Step 2. When a grievance is to be taken to this Step, the Business Representative shall, within three (3) working days after the expiration of the time limit in Step 1. present a written report setting forth the grounds or reasoning supporting the grievance to the Human Resource Director of [CCB], or such other representative as may be designated by [CCB]. The Business Representative and [CCB's] representative will attempt to adjust the matter within ten (10) working days after the Business Representative's report has been received by the Human Resource Director . . . If the grievance is not settled within the time limit provided *1344 in this Step, it is agreed that the parties may submit to arbitration as provided in Step 3, below, and any decision thereby rendered will be final and binding . . . Step 3. In the event either party desires to submit the grievance to Arbitration, it must be within thirty (30) calendar days after expiration of the time limit in Step 2 or . . ., make written request to the other party for Arbitration. Promptly upon receipt of a request by either party in writing for arbitration, the parties shall ask the Federal Mediation and Conciliation Service to supply a panel of five (5) arbitrators. Either party may reject an entire panel once and request the furnishing of a new panel. Within twenty (20) working days of receipt of the panel, the parties shall meet to select an arbitrator by alternately striking names. The party requesting arbitration shall strike first. The fifth individual not so stricken shall be the arbitrator to hear the grievance involved in the panel request. Expenses incurred in arbitration proceedings shall be paid equally by the parties. Any decision rendered by the arbitrator must be within the scope of this Agreement, shall in no manner change any terms or conditions of the Agreement and shall be final and binding upon the parties. (B). Grievance by [CCB] All rights granted to the Union and Employees shall correspondingly accrue to [CCB]; . . . Id., p. 33-35, Art.33. With regard to CCB's distribution system, CCB operated a "home market" system involving "conventional" practices under which product deliveries were made to convenience stores and small supermarkets for consumption away from the point of sale while cold drink deliveries were made to accounts for "on premises" consumption at offices, restaurants, and manufacturing facilities (doc.19, attach.16, p. 4, ¶ 6). The "home market" system operated with one individual, a route driver, who replenished stock at different pre-determined accounts from a truck loaded at the warehouse. Upon the completion of the route, the driver would return to the warehouse, and predict what stock would be needed for the next day to facilitate reloading inventory for the next day. Id., ¶ 7. In an effort to improve sales and to better coordinate truck inventory with product demand, CCB found it needed more predictability in its truck inventory. Id., ¶ 8. In June 2002, CCB began considering a substantial re-route of its distribution system which would allow its employees to concentrate on sales and delivery of a more precise product volume, a "pre-sell" distribution. Id., ¶ 9. Under the "pre-sell" system, truck inventory is determined by customer orders placed in advance with account managers. A route driver delivering pre-sold product would experience minimal daily "haul back" volume (unwanted product). Although a route driver could still sell product. Id. On June 12, 2002, in the context of collective bargaining over Agreement Article 27 (sales employees), CCB notified the Union that it was necessary to implement the "pre-sell" distribution system in Mobile.[3]Id., ¶ 10. *1345 CCB by letter dated January 27, 2004, announced to the Union that it plans to change its distribution system to a Predictive Selling System, which will enable us to focus and improve upon our ability to service customers and continue to grow our business. This change will also allow us to remain competitive since our competition is already utilizing a Predictive Selling System in our contact area. [CCB] will be making this change in accordance with the [A]greement between the parties. Specifically, the Company's right to operate the business as addressed through Article 2 — Management Prerogatives — Paragraph 1: * * * * * * The transition to the new distribution system will facilitate the creation of several new job classifications. Since new job types are being created, employees within the Sales Department will not be restricted from bidding on such new job types as outlined under Bid Locks of Article 5, Section 2(A). Also, since this will amount to a change of at least 25% of the routes within the locations we will follow the procedure established under Article 5, Section 2(C) — Paragraph 2 . . . * * * * * * In an effort to make this transition smoothly, [CCB] would like to meet with the Union committee on afternoon of January 27, 2004 to further discuss any of your questions about the new distribution system and job types. In a meeting on February 3rd, 2004 the Company will inform you of the new rates for the various positions, given the various changes. [CCB] will welcome any input you may offer before we implement the new rates . . . (doc.19, Ex.C, J-3; attach.16, p. 7, ¶ 12). Several follow-up meetings were held on February 3, 18, and March 23, 2004, to discuss the "pre-sell" system. Id. CCB conducted a comprehensive wage survey to facilitate wage structuring under Agreement Article 27, to insure minimal transition related adverse financial impact. On May 3, 2004, CCB implemented the new distribution system. CCB states that "[o]verall, employees . . . were earning $48.00 more per week under the new [pre-sell] system." Id., p. 7-8, ¶ 13. CCB states that [t]he two drivers classifications in issue (Tel-sell Delivery Merchandiser and Pre-sell Delivery Merchandiser) were earning between $125.00 and $150.00 more per week under the new system. As such, these employees, whom the [Union] allege[s] are adversely impacted financially by the new system, were actually earning between $300.00 and $600.00 more each month . . . under the new system. The post implementation data establishes that the [CCB] employees are earning more and handling (i.e., moving) fewer cases [of product] under the pre-sell distribution system . . . Id., p. 8, ¶ 14. On May 6, 2004, the Union filed a Grievance protesting CCB's implementation of the new distribution system. The Union states that the "system" is a "predictive selling system," and its implementation violates the Agreement (doc.23, ¶ 2). By letter dated May 19, 2004, CCB noted: ". . . In regards to the grievances discussed dated January 27, 2004, February 3, 2004, April 26, 2004 and May 3, 2004 the Company respectfully denies your grievances on the grounds that the Company has acted within its negotiated rights." (doc.19, Ex.C, J-6). Because the parties were unable to negotiate a resolution, the parties proceeded to arbitration pursuant to the Agreement, Article 33 (doc.23, ¶ 2). The Union, regarding a remedy, asked that CCB "return to the distribution system used in the past *1346 and honor the contractual wages and sales department classifications. All employees should be made whole for any lost wages under this new system" (doc.23, Ex.A, p. 8). The Agreement provides for arbitration pursuant to the rules of the Federal Mediation and Conciliation Service (doc.23, Ex.A, p. 33-35, Art.33, A, Step 3). On October 20, 2004, the Arbitrator Harold Curry held an arbitration hearing (see doc.19, Ex.C-Hearing Transcript). Following the hearing, the parties submitted briefs (doc.23, ¶ 3). On April 8, 2005, the Arbitrator's written Decision was issued (doc.23, Ex.C-Publication of Award, Ex.A-Arbitrator's Opinion and Award). The Arbitrator set out the factual background (doc.23, Ex.A, p. 3-9), delineated the applicable Agreement Articles, 1-2, 5, 25, and 27, Id., p. 9-12, noted the testimony of eight witnesses and the parties' positions, Id., p. 12-33, discussed the facts, and thereafter rendered a decision. Id., p. 35-47. The Arbitrator found "that the implementation of the predictive selling system by [CCB] on May 3, 2004 violated the [Agreement]" (doc.23, Ex.A, p. 45-47, ¶ 1-8, 10). The Arbitrator noted: [CCB] argues that it engaged in good faith bargaining with the Union before it implemented the [pre-sell] system. Fundamentally, in order for [CCB] to obtain the right under Article 2 to change from the conventional method of distribution to the predictive selling method requires the mutual consent of it and the Union. Indeed, under the [Agreement], [CCB] has the right to create new job classifications and make route changes within the bargaining unit; and the Union has a right to grieve those creations. [CCB] also has the right to create new job classifications under its management rights outside the bargaining unit, so long as their implementation does not conflict with any other provisions in the contract. While Article 27 of the [Agreement] permits [CCB] to set initial wages for new job classifications seven (7) days after the parties failed to agree to such a change, the change referenced in this article does not extend to changes in the distribution systems. Stated another way, in January of 2004, the current [Agreement] contained no language that would allow [CCB] to leap frog the condition precedent of mutual consent as a requirement to implement a new [distribution] system. * * * * * * Having concluded that the implementation of the predictive selling system conflicts with other provisions in the current Agreement, the next question is whether [CCB] subsequently took the proper and necessary steps to acquire that authority. The evidence . . . indicates that on June 12, 2002, [CCB] informed the Union that it was contemplating switching to a pre-sell system in the not too distant future. The evidence further indicates that the Union expressed resistance to the intended change. Nonetheless, the current [Agreement] was signed by both parties on August 27, 2002 without inclusion of any language regarding a change in the method of distribution of products. Therefore, the arbitrator finds that the exchanges that took place between [CCB] and the Union prior to the execution of the 2002-2005[A]greement did not alter the language of Article 2. Moreover, [CCB] cannot infer acceptance of its [distribution] plan from the Union's silence or rejection of it. In the months that immediately followed the execution of the current [A]greement, the parties were relatively *1347 reticent on the theme of changing distribution systems. However, between January 2004 and May 3, 2004, [CCB], by both written and verbal communications, made clear to the Union its plans to change to a pre-sell system. More than that, it requested the Union's input on the implementation of a new pre-sell system. While the parties exchanged information and met several times, the evidence indicates that they never mutually consented to the implementation of a predictive sell system. Nonetheless, on May 3, 2004, [CCB] unilaterally switched to the predictive sell system. Thus, the arbitrator finds that prior to May 3, 2004, the parties did not mutually agree to the implementation of a new or predictive sell system. Id., p. 42-45. With regard to implementation of the Arbitrator's Decision, the Arbitrator noted that he lacked "sufficient information to make a definitive and plenary determination" regarding "the financial impact the implementation of the predictive selling system has had on the bargaining unit employees" and "the operational impact of restoring the bargaining unit employees in the newly created positions . . . to their former positions . . ." Id., p. 46, ¶ 9. The Arbitrator then noted that he would retain jurisdiction "upon the parties' written request" to resolve "any disputes arising from the implementation of this award, including reopening the record to determine entitlements of the Union or any other make whole remedy." Id., p. 47. Neither party made such a written request (doc.26, p. 4). By letter dated April 15, 2005, CCB expressly announced that "it does not consent to release of the arbitral decision and order for publication and will not consent to extending the [A]rbitrator's jurisdiction . . ." (doc.19, Ex.B). Also on April 15, 2005, CCB filed this action seeking to vacate the Award (doc.1). During the pendency of this subject action, the parties agreed to a successor collective bargaining agreement. CCB states that the successor agreement was ratified by the parties in August 2005, but it has not been signed (doc.26, p. 6, n. 6). The Union states that the successor agreement does not resolve the subject dispute (doc.23, ¶ 6). C. Discussion Because the cross Motions For Summary Judgment are substantially intertwine both factually and legally, this court discusses and addresses the issues raised and the arguments presented by both parties, rather than addressing each Motion separately. CCB asks this court to vacate the Arbitrator's Decision and Award; the Union asks that it be upheld and that the [A]ward be enforced. There is no dispute that the Agreement expressly provides for binding arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., under the rules of the Federal Mediation and Conciliation Service. See doc.23, Ex.A, p. 33-35, Art.33. CCB initiated this action with a "Complaint," which this court construes, pursuant to 9 U.S.C. § 9, 12, as CCB's petition to vacate the Award.[4] As grounds, CCB *1348 alleges that "the [A]rbitrator's [D]ecision does not draw its essence from the parties' [Agreement] and that the [D]ecision and [A]ward is so vague that the parties do not know how to comply with [it] . . ." (doc.19, attach.16, p. 1). Arbitration is the "decidedly favored" means of resolving disputes arising under a collective bargaining agreement. United Paperworkers v. Misco, Inc., 484 U.S. 29, 37, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); accord Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001); Millcraft-SMS Services v. United Steel Workers of America, AFL-CIO-CLC, 346 F.Supp.2d 1176, 1182 (N.D.Ala.(Oct.25, 2004)). Federal courts are empowered by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to review decisions of labor arbitrators. See Garvey, 532 U.S. at 509, 121 S.Ct. 1724. However, [j]udicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Paperworkers v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). We recently reiterated that if an "arbitrator is even arguable construing or applying the contract and acting within the scope of his authority,' the fact that `a court is convinced he committed serious error does not suffice to overturn his decision.'" Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (3)27 (2000) (quoting Misco, supra, at 38, 108 S.Ct. 364). It is only when the arbitrator strays from interpretation and application of the agreement and effectively "dispenses his own brand of industrial justice" that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).[5] When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's "improvident, even silly, factfinding" does not provide a basis for a reviewing court to refuse to enforce the award. Misco, 484 U.S. at 39, 108 S.Ct. 364. In discussing the court's limited role in reviewing the merits of arbitration awards, we have stated that "`courts . . . have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim.'" Id. at 37, 108 S.Ct. 364 (quoting Steelworkers v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)). When the judiciary does so, "it usurps a function which . . . is entrusted to the arbitration tribunal." Id., at 569, 80 S.Ct. 1343; see also Enterprise Wheel & Car Corp., supra., at 599, 80 S.Ct. 1358 ("It is the arbitrator's construction [of the agreement] which was bargained for . . ."). Consistent with this limited role, we said in Misco, that "[e]ven in the very rare instances when an arbitrator's procedural aberrations rise to the level of affirmative misconduct, as a rule the court must not foreclose further proceedings by settling the merits according *1349 to its own judgment of the appropriate result." 484 U.S. at 40-41, 108 S.Ct. 364, . . . * * * * * * . . . But even "serious error" on the arbitrator's part does not justify overturning his decision, where . . . he is construing a contract and acting within the scope of his authority. Misco, supra., at 38, 108 S.Ct. 364 . . . Garvey, 532 U.S. at 509-10, 121 S.Ct. 1724 (footnote added); Millcraft-SMS Services, 346 F.Supp.2d at 1182-83. In Steelworkers v. Enterprise Wheel & Car Corp., the Supreme Court stated that [t]he refusal of courts to review the merits of an arbitration award is the proper approach. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards . . . [T]he arbitrators under these collective agreements are indispensable agencies in a continuous collective bargaining process. They sit to settle disputes at the plant level — disputes that require for their solution knowledge of the custom and practices of a particular factory or of a particular industry as reflected in particular agreements . . . 363 U.S. at 596, 80 S.Ct. 1358 (footnote omitted). The Eleventh Circuit interprets this standard "strictly." Millcraft-SMS Services, 346 F.Supp.2d at 1183. In Millcraft-SMS Services, the district court succinctly re-capped the Eleventh Circuit's standard which [r]equires that, in order to prevail, an employer seeking to vacate an arbitrator's award "must refute every reasonable basis upon which the arbitrator may have acted." Osram Sylvania, Inc. v. Teamsters Local Union, 528, 87 F.3d 1261, 1264 (11th Cir.1996): Sullivan, Long & Haggerty v. Local 559 Laborers' Intern. Union, 980 F.2d 1424, 1429 (11th Cir.1993). . . . The Osram Sylvania Court observed that an award "may be wrong; it may appear unsupported; it may appear poorly reasoned; it may appear foolish. Yet it may not be subject to court interference." 87 F.3d at 1263 (quoting Delta Air Lines v. Air Line Pilots Assoc., 861 F.2d 665, 670 (11th Circuit 1988)). "The court may not reevaluate supposed inconsistencies in the arbitrator's logic or review the merits of the arbitrator's decision . . ." Local 863 Int'l Bhd. of Teamsters v. Jersey Coast Egg Producers, Inc., 773 F.2d 530, 534 (3rd Cir.1985); accord Florida Power Corp. v. Int'l Bhd. of Electrical Workers, 847 F.2d 680, 683 (11th Cir.1988). "A court may not vacate an arbitral award unless it is irrational, exceeds the scope of the arbitrator's authority' or `fails to draw its essence from the collective bargaining agreement.'" IMC-Agrico Co. v. Int'l Chemical Workers Council of the UFCW, 171 F.3d 1322, 1325 (11th Cir.1999) (quoting Butterkrust Bakeries v. Bakery Workers Int'l Union Local 361, 726 F.2d 698, 699 (11th Cir.1984)). 346 F.Supp.2d at 1183. Simply put, "[t]he substantive review of a labor arbitration award `is limited to a determination of whether an award is irrational, whether if fails to draw its essence from the collective bargaining agreement or whether it exceeds the scope of the arbitrator's authority.'" Sullivan, Long & Hagerty, 980 F.2d at 1426 (citing Butterkrust Bakeries, 726 F.2d at 699). Courts do not sit, in arbitration cases, to make findings of fact about the dispute or to interpret an agreement; that authority resides solely with the Arbitrator. Sullivan, Long & Hagerty, 980 F.2d at 1429 (citing Misco, 484 U.S. at 39, 108 S.Ct. 364); see also Millcraft-SMS Services, 346 F.Supp.2d at 1185. "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, *1350 that a court is convinced he committed serious error does not suffice to overturn his decision. Sullivan, Long & Hagerty, 980 F.2d at 1427; Millcraft-SMS Services, 346 F.Supp.2d at 1183. Herein, in support of its request to have the Award vacated, CCB raises three contentions: the Award is incomplete; it was rendered untimely; and it fails to draw its essence from the Agreement. First, CCB contends that the Arbitrator's Award is incomplete and that it cannot comply with the vague remedy set out by the Arbitrator (doc.19, attach.16, p. 12, ¶ 1-2). CCB argues that it would be difficult to make the affected employees "whole" as the payroll records indicate that the employees, generally, fared better financially on the "pre-sell" system and there was no particular injury. Id., ¶ 3. CCB argues that the Arbitrator provided no details regarding how to facilitate the "make-whole" remedy imposed (doc.26, p. 5). CCB further argues that the Arbitrator's Award does not address whether the "pre-sell" system should be abandoned, an issue insofar as the "pre-sell" system is currently in place and has been mandated under the latest collective bargaining agreement (doc.19, attach.16, p. 12-13, ¶ 3). CCB also argues that the Arbitrator's indication that he would retain jurisdiction upon the parties' written request for the purpose of resolving disputes arising from the implementation of the Award, further demonstrates that the Award is incomplete. Id., p. 13-18, ¶ 6-15. Second, CCB contends that the Arbitrator's Decision and Award was issued untimely under the Federal Mediation and Conciliation Service rules which requires an award no later than sixty days from the closing of the record. Id., p. 20, ¶ 18. CCB argues that the record closed on October 22, 2004, and the parties' briefs were due and filed on December 15, 2004; the Award was not filed until April 8, 2005. Id., and p. 8, ¶ 14. CCB's first two contentions fall outside the standard set out by the United States Supreme Court in Garvey, 532 U.S. at 509-10, 121 S.Ct. 1724, and the Eleventh Circuit in Millcraft-SMS Services, 346 F.Supp.2d at 1183. CCB asserts neither that the Arbitrator's Decision and Award is irrational, nor that it exceeds the scope of the Arbitrator's authority. Sullivan, Long & Hagerty, 980 F.2d at 1426. Moreover, this court's review of the Decision and Award finds that it is neither vague, nor incomplete as to the issue of liability. The Decision and Award reflects that the Arbitrator had a hearing, gave the parties an opportunity to examine and cross-examine witnesses, to present and challenge documentary evidence, to make opening and closing arguments, and to submit post-hearing briefs. Thereafter, the Arbitrator issued a detailed opinion, clearly finding in favor of the Union, "that the implementation of the predictive selling system by [CCB] on May 3, 2004 violated the [Agreement]" (doc.23, Ex.A, p. 45-47, ¶ 1-8, 10). The Arbitrator then stated with regard to the remedy, that he lacked "sufficient information to make a definitive and plenary determination" as to "the financial impact the implementation of the predictive selling system has had on the bargaining unit employees" and on "the operational impact of restoring the bargaining unit employees in the newly created positions . . . to their former position . . ." Id., ¶ 9.[6] *1351 The Union contends that this court should uphold the Arbitrator's imposition of the Award including the "make-whole" monetary remedy and the Arbitrator's decision to retain jurisdiction to resolve disputes regarding that remedy (doc.23, p. 5). The Union points out that "the Arbitrator did not set out a precise monetary amount for the `make-whole' portion of the remedy, but instead left that for the parties to attempt to work it out on their own, with recourse to [the Arbitrator] for further decisionmaking if necessary." (doc.27, p. 3). The Union argues that "[i]n any sort of back-pay calculation, there are many possible subjects of dispute as to what should be included [and] what should be deducted . . ." (doc.23, p. 5). This court finds that the Arbitrator, after resolving the liability issue, prudently left the financial impact and restoration issues for future negotiations between the parties, offering to retain jurisdiction upon the parties' written request to resolve "any disputes arising from the implementation of this award, including reopening the record to determine entitlements of the Union or any other make whole remedy." Id., p. 47. Such remedies are common in labor arbitration and labor arbitrators have broad discretion as to remedies once they have found a violation of a collective bargaining agreement. See Enterprise Wheel & Car, 363 U.S. at 597, 80 S.Ct. 1358 ("When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies."). With regard to the issue of untimeliness of the Decision and Award, this court notes that procedural aspects of arbitrable disputes are for the Arbitrator, not for the Court. Misco, 484 U.S. at 40, 108 S.Ct. 364. Moreover, although CCB raises the issue of timeliness, CCB has proffered no legal, jurisprudential or regulatory support establishing that the untimeliness of a decision and award is the type of "`procedural aberration[]' that constitute `affirmative misconduct'" sufficient for this court to vacate or even remand an arbitrator's decision and award. See Garvey, 532 U.S. at 511, 121 S.Ct. 1724; Misco, 484 U.S. at 40-41, 108 S.Ct. 364. Third, CCB contends that the Decision and Award does not draw its essence from the Agreement (doc.19, attach.16, p. 14, ¶ 8). CCB argues that the Arbitrator examined Article 2 of the Agreement and stated that it "unquestionably empowers the Employer to switch from the conventional mode of distribution to a predictive system without further negotiations with the Union," but noted that the last sentence of Article 2 "includes language that potentially restricts the Employer's right to manage its operations." Id., p. 15, ¶ 10 (footnote omitted), referring to Ex.A-Arbitrator's Opinion and Award, p. 35. CCB *1352 contends that the Arbitrator's issue "whether the . . . management right clause is broad enough in scope to include changing its distribution system," hinges on "whether it nullifies or conflicts with specific provisions in other parts of the Agreement." Id., p. 15-16, ¶ 10, referring to Ex.A, p. 36. CCB argues that the [A]rbitrator never answers the issue that he poses . . . The decision does not state how pre-sell conflicts with provisions of the [Agreement] . . . Also, because only Art. 2 and Art. 27 § 9 [Wages] were included in the [A]rbitrator's findings, it appears as though these were the portions of the [Agreement] on which his determinations relied. (Ex.A at p. 45-46). Due to the [A]rbitrator's failure to address the key issue he posed, the award does not draw its essence from the [Agreement] and should be vacated . . . The [A]bitrator also did not discuss the provision of the [Agreement] dealing with "re-routes," which expressly does permit [CCB] to change its distributions system as it did. The [Agreement] anticipates "re-routes", which are changes in the distribution system that did take place in the implementation of pre-sell . . . The [Agreement] permits unilateral changes by the employer and identifies the obligations of the employer in the event of a "re-route" in the distribution system . . . When the employer "implements a restructuring of routes that involves 25 percent or more of routes in that branch/location", the employer must post the routes and bid the routes pursuant to seniority [Art.5(C)] . . . (doc.19, attach.16, p. 16-17, ¶ 11-13). CCB argues that the Arbitrator ignores the plain language of the Agreement (doc.26, p. 7). CCB relies on Clinchfield Coal Co. v. District 28, United Mine Workers of America & Local Union #1452, 720 F.2d 1365, 1369 (4th Cir.1983). In Clinchfield, the court stated that the award would be unsatisfactory if it allowed "an arbitrator to shield his award simply by the ruse of stating an issue without discussing it." Id. Such an award "cannot be considered to draw its essence from the contract." Id. "When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." Enterprise Wheel & Car, at 597, 80 S.Ct. 1358; Clinchfield, at 1368. The Union, relying on Garvey, 532 U.S. at 509-10, 121 S.Ct. 1724, counters that herein the Arbitrator interpreted the Agreement and his Opinion contains extensive discussion as to why the Arbitrator interpreted the Agreement in the way he did. "There is no hint that the arbitrator was doing anything other than interpreting the [Agreement]." (doc.23, p. 4) (emphasis in original). This court agrees with the Union. As this court has previously noted, the Decision and Award is clear. The Arbitrator looked at all the evidence presented including the Agreement (specifically Articles 1-2, 5, 23, 25, 27, 39[7]), and considered the arguments of the parties. The Arbitrator clearly resolved the issue posed — in order for [CCB] to obtain the right under Article 2 to change from the conventional method of distribution to the predictive selling method requires the mutual consent of it and the Union. * * * * * * While Article 27 of the [Agreement] permits [CCB] to set initial wages for new job classifications seven (7) days after the parties failed to agree to such a change, the change referenced in this article does not extend to changes in the distribution systems. *1353 ... [T]he current [Agreement] contained no language that would allow [CCB] to leap frog the condition precedent of mutual consent as a requirement to implement a new [distribution] system. (doc.23, Ex.A., p. 42). Moreover, . . . When more than one contract provision is implicated, an arbitrator is at liberty to determine which of two competing contract provisions governs over the other. U.S. Postal Serv. v. Nat. Ass'n of Letter Carriers, 789 F.2d 18, 20 (D.C.Cir.1986) (recognizing that arbitrator's conclusion as to which competing contract language "controlled `was itself' an interpretation of the contract which this court has no authority to disturb."); IMC-Agrico, 171 F.3d at 1328 ("Where there are two plausible interpretations of an agreement, then the arbitrator's choice of one over the other will be honored."). Millcraft-SMS Services, 346 F.Supp.2d at 1183. CCB also charges that the Arbitrator did not discuss the provision of the Agreement "dealing with re-routes," which CCB argues expressly permits it to change its distributions system, referring to Art.5(C). CCB is mistaken. This court's review of the Decision and Award reflects: [CCB] also argues that "a major change in the sales department such as a restructuring of routes that involves 25% or more routes in that branch/location allows it to unilaterally change to a predictive system". Although this is an intriguing argument, it would be a stretch and misconstruction of the language contained in this provision to conclude that it would permit a change of the magnitude suggested. For there is a profound difference between a major restructuring of routes and the elimination of most or all of the selling duties that employees acquire through negotiations. Thus, the arbitrator opines that based on the restructuring of routes, Article 2 prohibits a unilateral change in the distribution system by use of this method. (doc.23, Ex.A, p. 38). CCB is mistaken; the Arbitrator clearly discussed "re-routes." In sum, this court finds that the Arbitrator's Decision and Award is neither irrational, nor does it fail to draw its essence from the Agreement. Sullivan, Long & Hagerty, 980 F.2d at 1426. As noted, CCB never charged that the Arbitrator exceeded the scope of his authority. The parties bargained for final and binding arbitration (doc.23, Ex.A, p. 33-35, Art.33) and got it. This court finds that the Arbitrator "arguably" construed the contract. Garvey, 532 U.S. at 511-12, 121 S.Ct. 1724. As such, this court finds that the Arbitrator's Decision and Award should be upheld. In light thereof, CCB's request that upon remand, if so ordered, the matter be remanded to a different Arbitrator is hereby MOOT. D. Conclusion Accordingly, for the reasons stated, it is ORDERED that CCB's Motion For Summary Judgment (docs.19-20), be and is hereby DENIED; and it is further ORDERED that the Union's Motion For Summary Judgment (docs.21-23), be and is hereby GRANTED. The Arbitrator's Decision and Award is hereby UPHELD. This court will consider the Union's well documented and legally supported request for attorneys' fees expended in its enforcement effort, filed pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. NOTES [1] The "Articles of Agreement Between [CCB] and [the Union] [-] Term of Agreement July 10, 2002 through July 9, 2005" (doc. 19, Ex.C, J1 — the Agreement; doc.23, Ex.A). [2] CCB alleges that Article 2 of the Agreement constitutes a management rights clause which permits the employer [i.e., CCB] to plan, direct, and control all operations of its business and to make rules and regulations relating to its operations. "Nothing in this Agreement shall be deemed to limit [CCB] in the exercise of those rights, although nothing in that clause should be interpreted to `nullify any of the specific provisions'" of the Agreement. (doc.1, ¶ 4-5) (emphasis in original). [3] Throughout the Briefs and documentary evidence presented, the "pre-sell" distribution system is also referred to as "Predictive selling system" (doc.19, Ex.C, J-3; attach.16, p. 7, ¶ 12; doc.23, p. 2, ¶ 2), and a "predictive system" (doc.19, attach.16, p. 15, ¶ 10, and Ex.A, p. 35). [4] A party initiates judicial review of an arbitration award not by filing a complaint in the district court, but rather by filing either a petition to confirm the award or a motion to vacate or modify the award. See 9 U.S.C. § 9 . . .; § 12 . . . These rules further the [FAA]'s policy of expedited judicial action because they prevent a party who has lost in the arbitration process from filing a new suit in federal court and forcing relitigation of the issues . . . Moreover, the district court need not conduct a full hearing on a motion to vacate or confirm; such motions may be decided on the papers without oral testimony . . . Booth v. Hume Publishing, Inc., 902 F.2d 925, 932 (11th Cir.1990) (citations omitted). [5] Enterprise Wheel & Car, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, is the most recent of the "Steelworkers Trilogy," decided by the United States Supreme Court in 1960, in which the Supreme Court announced the basic principles of deference in judicial review of arbitration decisions: Enterprise Wheel & Car, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; and United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432. [6] The Arbitrator noted that he is not convinced of what financial losses, if any, the Union has suffered. For example, Mr. Armstrong of the Union [John Robert Armstrong, member of the Union's Board of Trustees] testified, on the one hand, that the predictive system is costing him $160.00 a week. On the other hand, [CCB] presented, without describing each employee in the affected class with particularity, that on the average the delivery merchandisers earned $3,600 to $7,200 more annually than they did as route delivery drivers/salespersons. (doc.23, Ex.A, p. 41). The Arbitrator also noted: To be sure, [CCB's] calculations are somewhat specious in that the comparative wage survey on which it is based only covers a thirteen (13) week period. More significantly, Mr. Strong's testimony [Michael Alvin Strong, Unit Manager for CCB] regarding "on the average" allows for the fact that some or even most of the affected union employees might be making less under the new system, such as Mr. Armstrong. Therefore, the full economic impact of the predictive sell system on bargaining unit employees remains speculative and uncertain. Id., p. 44. [7] See doc.23, Ex.C, p. 4-5, 7-12, 21-22, 27, 29-30, 32, 35-39, 42-43, 46.

293 F.2d 524 90 A.L.R.2d 1193, 110 U.S.App.D.C. 336 METROPOLITAN BROADCASTING CORPORATION, Appellant,v.Mortimer C. LEBOWITZ et al., Appellees. No. 15851. United States Court of Appeals District of Columbia Circuit. Argued Jan. 6, 1961.Decided June 16, 1961, Petition for Rehearing Denied July 11, 1961. Mr. Philip W. Amram, Washington, D.C., with whom Messrs. Gilbert Hahn, Jr., and Mark B. Sandground, Washington, D.C., were on the brief, for appellant. Mr. David G. Bress, Washington, D.C., with whom Messrs. Leonard Braman and J. H. Krug, Washington, D.C., were on the brief, for appellees. Before WILBUR K. MILLER, Chief Judge, and EDGERTON and DANAHER, Circuit Judges. DANAHER, Circuit Judge. 1 The parties had entered into a television advertising contract, weekly performance of which commenced in March, 1958. With new management in control as of August 7, 1958, appellant gave notice of its intention to terminate the contract as of August 31, 1958. Appellees in the District Court unsuccessfully sought an injunction to prevent that cancellation. The appellant cancelled the contract, and appellees then sought damages for the breach. Appellant on brief here conceded that it had 'improperly cancelled the contract and is liable for a breach,' but now attacks the award of damages. Details follow. 2 Appellees, as partners, conduct a department store in the District of Columbia known, and hereinafter referred to, as Morton's. Appellant here operates on Channel 5, a television station, WTTGTV, hereinafter referred to as the Station. In February, 1958, the Station contracted to provide each Sunday one hour of television time and services1 for a children's talent program2 to begin at 11 A.M. Morton's was to pay $225 per week for the first year with an option to renew at $300 per week for an additional year. 3 Before performance had commenced, the Station found it could sell to another advertiser on alternate Sundays, 15 minutes of the Morton's hour. Following negotiations, the parties agreed that Morton's would relinquish that 15 minutes provided the Station would reduce the rate for the second year3 to $225 per week and in addition grant two weekly commercial announcements on Class B time. 4 The modifications having proved acceptable, the Station thus promised in writing to produce the entertainment program and to afford Morton's three weekly commercial announcements in Class A time4 on a children's hour to 'promote the show' and two weekly commercial announcements on Class B time. Morton's was to prepare the commercials and to pay $225 per week for the 'package.' 5 The trial judge took testimony first as to the effect of the modified terms as typed into the printed contract form and as supplemented by the Station's letter outlining specific details. 'This letter is to be part of your contract No. 58-46 covering the Morton's Talent Program,' it read. Thereupon, the trier analyzed this aspect of the case as follows: 6 'The plaintiffs claim that typewritten Clause 3 on the face of the contract supersedes completely Paragraph 2(a) on the reverse of the contract and that, therefore, only the plaintiffs had the right to cancel prior to the expiration of the contract. 7 'The defendant claims that the typewritten Paragraph 3 is merely a limitation of Paragraph 2(a) on the reverse of the contract in respect to the client's right to cancel and that both paragraphs are in effect. 8 'The Court rules that this situation creates an ambiguity, which can be explained by parole evidence. 9 'The Court finds as a fact that it was the intention of the parties that typewritten Clause 3 on the face of the contract was to supersede Paragraph 2(a) on the reverse of the contract and, therefore, the Court concludes as a matter of law that the plaintiffs alone had the right to cancel the contract prior to the expiration of its term and that, therefore, the plaintiffs are entitled to recover damages.' 10 The finding and conclusion are clearly supported by substantial and uncontroverted evidence, and, as noted, the Station has here conceded that the contract was improperly terminated. 11 The trier passed then to the matter of damages. Commenced as a doubtful venture, the Morton's Talent Show popularity had developed as did that of the Station's 'Popeye' program, it was urged. Morton's counsel claimed that the true measure of damages turned on 'how much it would have cost us during this period to have bought what we got under the contract,' calculated to total $84,627.66. 12 As to appellant's position, the Station's trial counsel-- not its present counsel-- was specifically asked by the trial judge: 13 'Do you admit that the proper measure of damages is the difference between what the plaintiffs would have had to pay to get similar services as called for by the contract for the unexpired period of the contract, less the amount they would have had to pay under the contract? 14 'Mr. Paulson: Yes, your Honor. 15 'The Court: You admit that? 16 'Mr. Paulson: Yes, sir. 17 'The Court: Very well.' 18 Morton's thereupon offered evidence to prove that the value of the Sunday morning program by itself, as compared with Sunday time on the other VHF television stations in the District, was $312.50 per week;5 in addition, Morton's lost the advertising during the week on three one minute spots of Class A time on the 'Popeye' program, and two one minute announcements on Class B time.6 19 The trial judge might reasonably have concluded that the Station's new management looked askance at Morton's valuable contract which had been developed over the past several months. He might have decided that Morton's lost direct benefits of a value much greater than the mere cost of the Sunday program production. We think he correctly looked to the object of the transaction in its entirety and from its inception and to the manifest intent of the parties. Thus viewed, the contract called for the rendering of unique services tailored to meet the needs of a special situation. Results from advertising, whether by newspaper, handbill, radio or television, it may seem, are not readily to be measured as allocable to a particular source. It is a truism of the market place that favorable word-of-mouth advertising is frequently more desirable than that of other media. Apart from the Sunday programs, the mere use of Morton's name on choice spots during the week may have reached parents among the buying public through their children. Hopalong Cassidy and Roy Rogers are known from coast to coast. 20 Against the background of record and the arguments of counsel at various stages of the trial, Judge Holtzoff after analysis, announced: 21 'Accordingly, the Court will allow $312.50 per week for the remainder of the term, including the term of the option. In addition, it will allow the established charges for the announcements that the contract called for, namely, three Class A spots per week, the charge for which was $397.50, and two Class B spots, the charge for which was $120.7 22 'Accordingly, the damages will be computed at the rate of $829 a week. Can you agree upon the number of weeks remaining? 23 'Mr. Bress: Seventy-eight, your Honor. 24 'The Court: Is that correct? 25 'Mr. Paulson: That is correct, your Honor. 26 'The Court: Seventy-eight weeks? 27 'Mr. Paulson: Yes, sir. 28 'The Court: Have you computed the amount? 29 'Mr. Bress: Yes, your Honor.' 30 The trier then deducted the contract price of $225, multiplied the difference by 78, and computed total damages at $47,112. 31 'The Court: Do you agree on that computation? 32 'Mr. Paulson: That is the correct computation, yes, sir. 33 'The Court: The Court will render judgment in favor of the plaintiffs against the defendant for the sum of $47,112.' 34 We conclude that the award is not without ample support in the record, especially as the judge noted, in the 'absence of contradiction.' 35 We are not persuaded that the Station is now entitled to complain that Morton's failed to ascertain and establish precise damage when the Station's own wrongful conduct produced the situation. It is sufficient if the wronged party, as here, provided a basis for a reasoned conclusion.8 Elementary 'conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.'9 The Station was in no way precluded from offering independent evidence contrary to that submitted by Morton's,10 and such as could be elicited from Station's general manager tended to confirm, not refute, what had already been shown. 36 We may assume that Station's present counsel might have tried the case differently. Points now urged, however, were not raised at trial and will not be considered.11 37 Affirmed. 1 Including all production, master of ceremonies, two cameras, technicians, a director and a piano player, as well as rehearsal time and certain program advertising 2 Weekly amateur talent contests over a 13 week cycle were to culminate in a prize award to the performer receiving the largest number of audience votes 3 The Station's answer admitted that the modified contract had granted Morton's the option to renew the contract for another year on the same terms, but asserted the Station had reserved the right to cancel. Judge Holtzoff heard evidence that Morton's alone by the modified agreement had been granted the privilege of cancellation. 'Client (Morton's) has option to cancel in 13 week cycles with 4 weeks advance written notice,' the amended contract provided, in part 4 'Selling' announcements at the advertiser's discretion from 6:30 to 11 P.M. Class B time covered similar announcements, but during an afternoon movie presentation 5 In addition to evidence of record, we may note that the Station in pretrial interrogatories was asked and made reply as follows: What was your regular charge for each of the following as of September 1, 1958: (a) One hour television time, from 11 A.M. to noon on Sundays. (b) Forty-five minutes of television time, from 11 to 11:45 A.M. on Sundays. Answer: (a) $325 per week, subject to allowance of 15% agency commission, for advertisers broadcasting 52 times or more within one year from the date of the first telecast. (b) $243.75 per week, subject to allowance of 15% agency commission for advertisers broadcasting 52 times or more within one year from the date of the first telecast. 6 The Station's general manager testified on cross-examination that in 1958 and 1959, the Station's charges for one minute Class A announcements on the 'Popeye' program were $132.50 each. As to Class B time, the charge was $60 for a fixed spot 7 The trier found Morton's had not proved a basis for, and so disallowed, recovery as to the cost of a master of ceremonies, for advertisements in the TV Guide, for a pianist, the cost of a prize and other miscellaneous items. It may be noted that such costs were not recurring in view of the cancellation of the program 8 Palmer v. Connecticut Ry. & Lighting Co., 1941, 311 U.S. 544, 561, 61 S.Ct. 379, 85 L.Ed. 336; Eastman Kodak Co. of New York v. Southern Photo Materials Co., 1927, 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684; Shapiro, Bernstein & Co. v. Remington Records, Inc., 2 Cir., 1959, 265 F.2d 263, 270; Thompson v. Rector, 1948, 83 U.S.App.D.C. 371, 170 F.2d 167; and see Locke v. United States, Ct.Cl.1960, 283 F.2d 521, 524 9 Bigelow v. RKO Radio Pictures, 1946, 327 U.S. 251, 265, 66 S.Ct. 574, 580, 90 L.Ed. 652 10 And the burden of doing so rested upon the Station. Detroit Graphite Co. v. Hoover, 1 Cir., 1930, 41 F.2d 490, 494 11 Friedman v. Decatur Corporation, 1943 77 U.S.App.D.C. 326, 327, 135 F.2d 812, 813

Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 6-26-2003 China Minmetals v. Chi Mei Corp Precedential or Non-Precedential: Precedential Docket No. 02-2897 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "China Minmetals v. Chi Mei Corp" (2003). 2003 Decisions. Paper 397. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/397 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  PRECEDENTIAL Filed June 26, 2003 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 02-2897 and 02-3542 CHINA MINMETALS MATERIALS IMPORT AND EXPORT CO., LTD. v. CHI MEI CORPORATION, Appellant On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 01-03481) Honorable Dennis M. Cavanaugh, District Judge Argued April 7, 2003 BEFORE: ALITO, FUENTES, and GREENBERG, Circuit Judges (Filed: June 26, 2003) J. Jeffrey Weisenfeld (argued) 401 Broadway, Suite 306 New York, NY 10013 Attorney for Appellee  2 David L. Braverman Robert C. Seiger, III, Esq. Richard E. Miller (argued) Braverman Kaskey & Caprara One Liberty Place, 21st Floor Philadelphia, PA 19103 Attorneys for Appellant OPINION OF THE COURT GREENBERG, Circuit Judge. This matter comes on before this court on an appeal by the Chi Mei Corporation (“Chi Mei”) from the district court’s order entered June 11, 2002, granting the motion of China Minmetals Import & Export Co. (“Minmetals”) to confirm and enforce a foreign arbitration award and from the judgment entered on August 26, 2002, in favor of Minmetals and against Chi Mei in the amount of $4,040,850.41. For the reasons stated herein, we will vacate the district court’s order and judgment and will remand the case for further proceedings. I. BACKGROUND Chi Mei is a New Jersey corporation and Minmetals is a corporation formed and existing under the laws of the People’s Republic of China (“PRC”).1 Production Goods and Materials Trading Corp. of Shantou S.E.Z. (“Shantou”), which also is implicated in this action, likewise is a corporation formed and existing under the laws of the PRC. This dispute arises out of a transaction involving Chi Mei, Minmetals, and Shantou. The parties dispute almost every detail of the transaction; for example, Chi Mei refers to it as a “currency conversion transaction”2 while Minmetals calls 1. Inasmuch as the district court enforced the arbitration award without opinion, it did not explicitly find any facts in this case. Nevertheless, the facts we summarize are undisputed except as noted. 2. The PRC imposes strict restrictions on foreign currency transactions, allowing only authorized parties to convert PRC currency (“RMB”) into United States dollars.  3 it a contract for purchase by Minmetals of electrolytic nickel cathode. Moreover, we do not find the parties’ descriptions of the transactions to be completely clear, a problem that fortunately does not impede our ability to decide this case. Chi Mei argues that it never intended nor agreed to sell anything to Minmetals and alleges that the contracts on which Minmetals relies were forged. On the other hand, Minmetals argues that Chi Mei failed to deliver the goods it promised to sell after receiving payment by drawing on a line of credit of several million dollars. According to Chi Mei, on or about June 12, 1997, Shantou sought out Chi Mei to discount a certain sum of US dollars. J.A. at 119.3 Chi Mei orally agreed to provide discounting services for a .7% commission of the amount of US dollars before discount. Minmetals was to obtain the funds by way of a letter of credit obtained from the Bank of China, as the PRC apparently authorized Minmetals to engage in currency conversion transactions. Chi Mei asserts, however, that Shantou did not disclose its relationship with Minmetals to it and that it was unaware of Minmetals’ role in the transaction until after the delivery of the proceeds of the letter of credit to Shantou. Chi Mei subsequently was to transfer the funds to accounts Shantou designated, and Chi Mei did so. By contrast, Minmetals asserts that the transaction involved an agreement to purchase electrolytic nickel cathode alloy, it issued letters of credit worth several million dollars to Chi Mei, and Chi Mei knowingly submitted to a New York bank numerous false documents evidencing the sale, including an invoice, weight packing list, quality certificate, and bill of lading, in order to collect funds under the letters of credit. Minmetals contends that Chi Mei did not deliver the goods described in the contracts. Two contracts submitted to a bank in the PRC that purport to be contracts for the sale of nickel by Chi Mei to 3. Chi Mei sets forth its version of the facts primarily in the affidavit of Jiaxiang Luo, its president during the relevant period, which it submitted to the district court in opposition to Minmetals’ motion to enforce and in support of Chi Mei’s motion to dismiss. See J.A. at 115- 26.  4 Minmetals for a sum equal to the amount of the letters of credit (the “Sale of Goods contracts”) are central to this dispute. Chi Mei alleges that the two contracts were entirely fraudulent, containing a forged signature of a nonexistent Chi Mei employee as well as a forged corporate stamp. Chi Mei further alleges that it was unaware of the existence of these contracts until it appeared at the arbitration that is the subject of this dispute. The contracts provide for binding arbitration of any disputes in connection with the contracts before the China International Economic and Trade Arbitration Commission (“CIETAC”). App. at 33. According to Chi Mei, it performed its duties under the oral agreement governing the currency discounting transaction and delivered the funds to Shantou after collecting its .7% commission.4 Shantou then allegedly misappropriated the funds, refusing to remit any of them to Minmetals.5 On or about November 14, 1997, Minmetals initiated an arbitration proceeding before CIETAC against Chi Mei pursuant to the arbitration clauses contained in the Sale of Goods contracts.6 Chi Mei repeatedly objected to CIETAC’s jurisdiction but, nevertheless, appeared before it, submitting evidence that the contracts which contained the arbitration clause on which Minmetals relied were forged. Chi Mei also argued that Minmetals’ flouting of Chinese law should prevent its recovery in the arbitration. Id. at 44-45. 4. At oral argument on the appeal, counsel for Chi Mei suggested for the first time that insofar as there may have been some agreement to sell goods, that agreement involved a company called Hexin (Far East) Development Ltd., not Chi Mei. This alternative argument does not affect our analysis in this opinion. 5. Chi Mei indicates that Minmetals filed criminal complaints in the PRC against Chi Mei and Shantou. Chi Mei was exonerated after a formal inquiry by the Beijing Police Department, which did not result in a criminal charge, while Weizhe Lin, the president of Shantou, was convicted of the criminal offense of conversion in connection with this matter. Id. at 122. 6. According to Jiaxiang Luo, the Chi Mei president, the contracts submitted by Minmetals to CIETAC were in fact different from the two contracts presented to the Bank of China. App. at 124-25. According to him, all four contracts were forged and fraudulent. Id.  5 The arbitration tribunal held that Chi Mei failed to meet its burden of showing that the contracts at issue were forged, and that even if Chi Mei’s signature and stamp had been forged, its actions, such as providing documents to the New York bank and drawing on the letters of credit, constituted “confirmation of the validity of the contracts.” Id. at 49. On August 30, 2000, the CIETAC panel awarded Minmetals an amount in excess of $4 million. In July 2001, Minmetals moved in the district court for an order confirming and enforcing the arbitration award. Chi Mei opposed the motion and filed a cross-motion to deny the relief Minmetals sought, submitting numerous documents and affidavits, including the affidavit of Jiaxiang Luo, the Chi Mei president. Minmetals did not submit any contrary affidavits. The district court heard oral argument on the motions and, without conducting an evidentiary hearing, on June 11, 2002, entered an order granting Minmetals’ motion to confirm and enforce the award and denying Chi Mei’s cross-motion. The court, however, did not file an opinion explaining its decision and, accordingly, we do not know the basis for its entry of the order. On August 26, 2002, the district court entered judgment in favor of Minmetals in the amount of $4,040,850.41. This appeal followed. II. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 9 U.S.C. § 203 and 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.7 Ordinarily, in reviewing a district court’s order confirming an arbitration award, we would review the district court’s factual findings for clear error and its legal conclusions de novo. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 1926 (1995). Here, however, inasmuch as the court, 7. Chi Mei filed two notices of appeal, the first following the June 11, 2002 order and the second following entry of the judgment. Because the second notice of appeal supplies a jurisdictional basis for us to consider all the issues, we need not consider the effect of the first notice of appeal. See Livera v. First Nat’l State Bank, 879 F.2d 1186, 1190 (3d Cir. 1989).  6 at least explicitly, did not make findings of fact, and we, in any event, are deciding the case on a legal basis, our entire review is plenary. III. DISCUSSION A. FORGERY ALLEGATIONS The primary issue in this case is whether the district court properly enforced the foreign arbitration panel’s award where that panel, in finding that it had jurisdiction, rejected Chi Mei’s argument that the documents providing for arbitration were forged so that there was not any valid writing exhibiting an intent to arbitrate. This issue actually involves two distinct questions. First, we must consider whether a foreign arbitration award might be enforceable regardless of the validity of the arbitration clause on which the foreign body rested its jurisdiction. In this regard, Minmetals points out that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) differs somewhat from the general provisions of the Federal Arbitration Act (“FAA”), and particularly argues that Article V of the Convention requires enforcement of foreign awards in all but a handful of very limited circumstances, one of which is not the necessity for there to be a valid written agreement providing for arbitration. If we conclude, however, that only those awards based on a valid agreement to arbitrate are enforceable, we also must consider who makes the ultimate determination of the validity of the clause at issue. Thus, in considering the second question, we must examine the district court’s role, if any, in reviewing the foreign arbitral panel’s finding that there was a valid agreement to arbitrate. 9 U.S.C. § 207 provides: Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.  7 The Convention is incorporated into the FAA in 9 U.S.C. § 207 and appears at 9 U.S.C.A. § 201 historical n. Article V of the Convention provides: 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or . . . . (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or . . . . 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or  8 (b) The recognition or enforcement of the award would be contrary to the public policy of that country. Article IV establishes the procedure for seeking enforcement of an award under Article V: 1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: (a) The duly authenticated original award or a duly certified copy thereof; (b) The original agreement referred to in article II or a duly certified copy thereof. . . . . Article II provides: 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. The court of a Contracting State, when seized of an action in a matter in respect to which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Minmetals argues that each article of the Convention governs a different aspect of arbitration procedure—Article II sets forth the grounds for compelling arbitration, Article IV describes the procedure required for seeking  9 enforcement of an award, and Article V provides that once an award is made, the courts of a contracting state must enforce that award unless one of the narrow grounds for nonenforcement is proven. This case, according to Minmetals, therefore involves only Article V, under which in its view “the requirement of a valid written agreement is not necessary for enforcement.” Appellee’s Br. at 6. Chi Mei, on the other hand, argues that the Convention must be read as a whole and that Article V both explicitly and implicitly incorporates Article II’s valid written agreement requirement. In addition, Minmetals argues that the arbitration panel’s decision as to the validity of the arbitration agreement is conclusive unless an Article V exception applies, which, it argues, is not the case here. Chi Mei, for its part, argues that the district court had an obligation to determine independently the validity of the agreement. Because the domestic FAA (chapter 1 of the FAA) is applicable to actions brought under the Convention (chapter 2 of the FAA) to the extent they are not in conflict, 9 U.S.C. § 208, Chi Mei relies heavily on the Supreme Court’s decision in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920. First Options involved the domestic FAA, not the Convention, but involved facts similar to those in this case. In First Options, as here, the district court confirmed an arbitration award where the parties against whom the award was enforced had argued both in the arbitration proceedings and before the district court that they had not signed the document containing the arbitration clause. Id. at 941, 115 S.Ct. at 1922. In that case, the Court held that the district court and not the arbitration panel must decide the question of arbitrability— that is, the question whether a certain dispute is subject to arbitration under the terms of a given agreement—unless the parties clearly and unmistakably have agreed that the arbitrator should decide arbitrability. Id. at 943, 115 S.Ct. at 1923-24. In other words, the Court, relying on the principle that “a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration,” id. at 945, 115 S.Ct. at 1925, held that, unless the district court found that there was clear and unmistakable evidence that the parties agreed to arbitrate arbitrability,  10 the district court independently must determine whether the parties agreed to arbitrate the merits of the dispute, id. at 943-45, 115 S.Ct. at 1923-25. Chi Mei therefore argues that, under First Options, the district court should have concluded that the parties did not agree to arbitrate arbitrability8 and, faced with the evidence presented by Chi Mei in opposition to enforcement and the lack of evidence submitted in response by Minmetals, the district court should have found that the dispute was not arbitrable because the contract had been forged, or at least should have conducted a hearing to resolve that issue. If this case had arisen under the domestic FAA, First Options clearly would have settled in Chi Mei’s favor both the question of the need for a valid agreement to arbitrate and the question of the district court’s role in reviewing an arbitrator’s determination of arbitrability when an award is sought to be enforced. We, therefore, must determine whether First Options provides the rule of decision in a case involving enforcement of a foreign arbitration award under the Convention. Our cases involving enforcement under the Convention largely have arisen under Article II, with one party seeking an order compelling another party to arbitrate a dispute. Under those cases, it is clear that if Minmetals had initiated proceedings in the district court to compel arbitration, the court would have been obligated to consider Chi Mei’s allegations that the arbitration clause was void because the underlying contract was forged. See Sandvik v. Advent Int’l Corp., 220 F.3d 99, 104-07 (3d Cir. 2000). It is, of course, true that the FAA, of which the Convention is a part, establishes a strong federal policy in favor of arbitration and that the presumption in favor of arbitration carries “ ‘special force’ ” when international commerce is involved. Id. at 104 (quoting Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 3356 (1985)). Nonetheless, we have stated that the “ ‘liberal federal policy favoring arbitration agreements . . . is at bottom a policy guaranteeing the enforcement of private 8. Minmetals does not point to any evidence supporting a conclusion that the parties manifested an intent to arbitrate arbitrability.  11 contractual arrangements,’ ” id. at 105 (quoting Mitsubishi, 473 U.S. at 625, 105 S.Ct. at 3353), and that because “arbitration is a matter of contract, . . . no arbitration may be compelled in the absence of an agreement to arbitrate,” id. at 107-08 (citing AT&T Techs, Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418 (1986)). In Sandvik, we affirmed the district court’s denial of a motion to compel arbitration where the district court had concluded that it had to determine whether the parties in fact had entered into a binding agreement to arbitrate before it could compel arbitration. Id. at 104-07. In that case, there was a dispute as to whether the agreement containing the arbitration agreement was binding on the defendant corporation where it alleged that its attorney signed the contract without proper authorization. Id. at 101-02. We relied on our decision in Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51 (3d Cir. 1980), in which we stated: Before a party to a lawsuit can be ordered to arbitrate and thus be deprived of a day in court, there should be an express, unequivocal agreement to that effect. If there is doubt as to whether such an agreement exists, the matter, upon a proper and timely demand, should be submitted to a jury. Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement. Id. at 106 (quoting Par-Knit Mills, 636 F.2d at 54). In Sandvik, we drew a distinction between contracts asserted to be void or nonexistent, as was the case there and is the case here, and contracts alleged to be voidable, in which case arbitration, including arbitration of the fraud question, may be appropriate under Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801 (1967).9 9. In Prima Paint, the plaintiff brought an action to rescind a contract with the defendant on the basis of fraud in the inducement. The defendant moved to arbitrate the dispute on the basis of an arbitration clause contained in the contract alleged to have been induced fraudulently. The Supreme Court held that the arbitrator should decide the challenge based on fraud in the inducement of the entire contract. Prima Paint, 388 U.S. at 403-04, 87 S.Ct. at 1806.  12 We concluded that “[b]ecause under both the [Convention] and the FAA a court must decide whether an agreement to arbitrate exists before it may order arbitration, the District Court was correct in determining that it must decide whether [the attorney’s] signature bound Advent before it could order arbitration.” Id. at 107; see also Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 152-56 (3d Cir. 2001) (affirming district court’s decision in case to compel an international arbitration to submit arbitrability question to jury after finding arbitration clause’s application to defendant ambiguous). Notably, although we supported our conclusion with references to the “null and void” language in Article II of the Convention, we based our decision on straightforward notions of contract law rather than on any technical interpretation of the language of the treaty. See Sandvik, 220 F.3d at 105-10. In this case, however, an arbitral tribunal already has rendered a decision, and has made explicit findings concerning the alleged forgery of the contract, including the arbitration clause. “The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.” Scherk v. Alberto- Culver Co., 417 U.S. 506, 520 n.15, 94 S.Ct. 2449, 2457 n.15 (1974). In an oft-cited opinion concerning enforcement of a foreign arbitration award, the Court of Appeals for the Second Circuit noted the “general pro-enforcement bias informing the Convention,” explaining that the Convention’s “basic thrust was to liberalize procedures for enforcing foreign arbitral awards.” Parsons & Whittemore Overseas Co. v. Societe Generale de l’Industrie du Papier, 508 F.2d 969, 973 (2d Cir. 1974). Consistently with the policy favoring enforcement of foreign arbitration awards, courts strictly have limited defenses to enforcement to the defenses set forth in Article V of the Convention, and generally have construed those exceptions narrowly. See, e.g., id. at 973-77; see also Biotronik Mess-und Therapiegeraete GmbH & Co. v. Medrord  13 Med. Instrument Co., 415 F. Supp. 133, 136, 140-41 (D.N.J. 1976). As the Court of Appeals for the Second Circuit has noted, “[t]here is now considerable caselaw holding that, in an action to confirm an award rendered in, or under the law of, a foreign jurisdiction, the grounds for relief enumerated in Article V of the Convention are the only grounds available for setting aside an arbitral award.” Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys ‘R’ Us, Inc., 126 F.3d 15, 20 (2d Cir. 1997) (emphasis added) (citing M&C Corp. v. Erwin Behr GmbH & Co., 87 F.3d 844, 851 (6th Cir. 1996); Int’l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 181-82 (S.D.N.Y. 1990); Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F. Supp. 160, 167 (S.D.N.Y. 1987); Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 265 (1981)). This narrow interpretation of the Convention is in keeping with 9 U.S.C. § 207 which unequivocally provides that a court in which enforcement of a foreign arbitration award is sought “shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.” (emphasis added). The absence of a written agreement is not articulated specifically as a ground for refusal to enforce an award under Article V of the Convention. In fact, the Convention only refers to an “agreement in writing” in Article II, which requires a court of a contracting state to order arbitration when presented with an agreement in writing to arbitrate, unless it finds that agreement to be void, inoperative, or incapable of being performed. This distinction, according to Minmetals, is enough to differentiate this case from cases like First Options, which arose under the FAA,10 as well as from cases like Sandvik and Deutz, which arose under Article II. 10. As Minmetals notes, the grounds for refusal to enforce an award are broader under the FAA than under the Convention. Furthermore, the FAA refers repeatedly to the need for a written agreement, see MCI Telecommunications Corp. v. Exalon Indus., Inc., 138 F.3d 426, 429 (1st Cir. 1998) (citing numerous provisions of the FAA that refer to a “writing”  14 On the other hand, the crucial principles common to all of these decisions—that arbitration is a matter of contract and that a party can be forced to arbitrate only those issues it specifically agrees to submit to arbitration— suggest that the district court here had an obligation to determine independently the existence of an agreement to arbitrate even though an arbitration panel in a foreign state already had rendered an award, unless Minmetals’ argument concerning the exclusive nature of Article V or some other principle provides a meaningful reason to distinguish the cases we have cited. Thus, we consider whether Convention cases cited by Minmetals, which contrast Article II with the stricter Article V, provide a compelling reason to distinguish this case from Sandvik and Deutz. Furthermore, there is some question whether the culture of international arbitration, which informs the structure, history, and policy of the Convention, provides a basis for distinguishing this case from First Options. With regard to the first question, we are not convinced by Slaney v. International Amateur Athletic Federation, 244 F.3d 580 (7th Cir. 2001), or by Yusuf Ahmed Alghanim, both cited by Minmetals, that the absence from Article V of the lack of a valid written agreement as a ground for refusal to enforce an award is fatal to Chi Mei’s contention that forgery of the arbitration agreement should preclude its enforcement. In Slaney, the Court of Appeals for the Seventh Circuit held that a foreign arbitration award should be enforced against the plaintiff despite her argument that there was not a valid “agreement in writing” as required by Article II of the Convention. The court explained: and relying on that statutory language in holding that “determining whether there is a written agreement to arbitrate the controversy in question is a first and crucial step in any enforcement proceeding before a district court”), while the Convention does not. Neither of these distinctions in itself supplies a convincing reason to refuse to apply First Options to a case under the Convention, however, inasmuch as neither of these points played any role in the Supreme Court’s analysis in First Options. The Court based its decision in that case largely on straightforward contract principles rather than on a technical statutory analysis.  15 Assuming that this case had come to the district court and the IAAF had sought to compel Slaney to arbitrate her claims, a determination as to whether there had been a writing might pose a barrier to the IAAF ’s position. However, that is not the case. Here, an arbitration has already taken place in which, as we have determined, Slaney freely participated. Thus, the fact that Slaney suggests there is no written agreement to arbitrate, as mandated by Article II of the New York Convention is irrelevant. See, e.g., Coutinho Caro & Co., U.S.A., Inc. v. Marcus Trading Inc., Nos. 3:95CV2362 AWT, 3:96CV2218 AWT, 3:96CV2219 AWT, 2000 WL 435566 at *5 n.4 (D. Conn. March 14, 2000) (recognizing a difference between the situation where a party seeks to compel arbitration and a situation in which one attempts to set aside an arbitral award that has already been issued). What is highlighted here is the difference between Article II of the Convention, which dictates when a court should compel parties to an arbitration, and Article V, which lists the narrow circumstances in which an arbitration decision between signatories to the Convention should not be enforced. Id. at 591. The court went on to apply ordinary rules of contract law in holding that the plaintiff was estopped from arguing that the lack of a binding written agreement precluded enforcement because she had participated freely in the arbitration proceeding, had not argued that she never agreed to the arbitration clause during those proceedings, and had let the opportunity to do so pass by when she withdrew from those proceedings. Id. The court also considered certain defenses to enforcement under Article V but rejected all of them. Id. at 592-94. Minmetals relies on Slaney for the proposition that lack of a valid written agreement to arbitrate is irrelevant to enforcement under Article V, which neither mentions such an agreement nor explicitly incorporates the written agreement requirement of Article II. We, however, will not apply Slaney in the way Minmetals suggests. First, it appears that the language in Slaney suggesting that lack of a written agreement is irrelevant in an Article V case is  16 dicta. The court rested its decision primarily on an estoppel theory because Slaney had participated freely in the arbitration without arguing that lack of a written agreement to arbitrate deprived the arbitral tribunal of jurisdiction. Id. In applying estoppel principles, the court stated: “We see no reason why, even in the absence of a writing, ordinary rules of contract law should not apply.” Id. In this case, as we discuss below, Chi Mei continually objected to the arbitration panel’s jurisdiction and always has maintained that the purchase contracts were forged. Estoppel is therefore not applicable in this case. Moreover, the court in Slaney did not discuss First Options in considering Slaney’s position with regard to the alleged lack of a written agreement to arbitrate.11 Minmetals’ reliance on Yusuf Ahmed Alghanim likewise is misplaced. In that case, the court distinguished between awards rendered in a foreign state and awards rendered in the state in which enforcement is sought, holding that a court may consider implied grounds of relief under the FAA, such as the arbitrator’s manifest disregard of the law, when asked to enforce an award rendered in the United States under the Convention. Yusuf Ahmed Alghanim, 126 F.3d at 20-23. The court stated: In sum, we conclude that the Convention mandates very different regimes for the review of arbitral awards (1) in the state in which, or under the law of which, the award was made, and (2) in other states where recognition and enforcement are sought. The Convention specifically contemplates that the state in which, or under the law of which, the award is made, will be free to set aside or modify an award in 11. We do not suggest that the court’s analysis was inconsistent with First Options. The Supreme Court explicitly stated that “[w]hen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally . . . should apply ordinary state-law principles that govern the formation of contracts.” First Options, 514 U.S. at 944, 115 S.Ct. at 1924. On the facts of Slaney, therefore, the court’s conclusion that “non-signatories to an arbitration agreement may nevertheless be bound according to ordinary principles of contract and agency, including estoppel” was consistent with the Court’s reasoning in First Options.  17 accordance with its domestic arbitral law and its full panoply of express and implied grounds for relief. See Convention art. V(1)(e). However, the Convention is equally clear that when an action for enforcement is brought in a foreign state, the state may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention. Id. at 23. At first blush, Yusef Ahmed Alghanim might appear to support Minmetals’ position as it holds that awards rendered in a foreign state must be enforced unless one of the specific narrow exceptions in Article V is proven, while a United States court may refuse to enforce an award rendered in the United States or under United States law on other grounds implied under the FAA. First Options is, of course, a case under the FAA, and Minmetals suggests that it is therefore irrelevant here as the award in this case was made in a foreign state. First Options, however, did not involve an implied ground for relief under the FAA. Rather, it involved the more fundamental question of whether the party opposing enforcement was ever a party to a valid agreement to arbitrate. In Yusuf Ahmed Alghanim, there was no challenge to the validity of the arbitration agreement—only the arbitrator’s interpretation of contract terms and application of New York law on lost profits were disputed. Id. at 23-25. We therefore find that the absence of any reference to a valid written agreement to arbitrate in Article V does not foreclose a defense to enforcement on the grounds that there never was a valid agreement to arbitrate. Minmetals cannot point to any case interpreting Article V of the Convention so narrowly as to preclude that defense and we are aware of none.12 Nor do the text and structure of the 12. At oral argument, counsel for Chi Mei for the first time urged that Europcar Italia, SPA v. Maiellano Tours, Inc., 156 F.3d 310, 315-16 (2d Cir. 1998), provided direct support for its reading of the Convention. In that case, however, the party resisting enforcement did not argue that the agreement containing the arbitration clause (which was executed in 1988) was forged or fraudulent; rather, it argued that one of the agreements on which the arbitrators based their substantive decision  18 Convention compel such an interpretation. Indeed, although only Article II contains an “agreement in writing” requirement, Article IV requires a party seeking to enforce an award under Article V to supply “[t]he original agreement referred to in article II” along with its application for enforcement. Furthermore, Article V expressly provides that the party opposing enforcement may furnish “to the competent authority where the recognition and enforcement is sought proof that . . . the said agreement is not valid . . . .” Read as a whole, therefore, the Convention contemplates that a court should enforce only valid agreements to arbitrate and only awards based on those agreements. Thus, the concern we expressed in our decisions in Article II cases like Sandvik and Deutz—that parties only be required to arbitrate those disputes they intended to arbitrate—is likewise present in this case. We therefore hold that a district court should refuse to enforce an arbitration award under the Convention where the parties did not reach a valid agreement to arbitrate, at least in the absence of a waiver of the objection to arbitration by the party opposing enforcement.13 We therefore are left with the question whether the international nature of this case distinguishes it from First Options. Stated more precisely, we must ask whether the (which was executed in 1979) was forged. Id. The court therefore concluded that, inasmuch as the 1988 arbitration agreement explicitly provided that the arbitrators would decide disputes involving the validity of that agreement, the party resisting enforcement had the opportunity to raise the issue of forgery of the 1979 agreement during the arbitration proceedings, and, in any event, the existence of the 1979 agreement had only a minor influence on the arbitrators’ substantive decision, enforcing the award would not violate public policy under Article V(2)(b). Id. Here, in the face of Chi Mei’s argument that the contract containing the arbitration clause itself is forged Europcar is inapposite. We express no opinion as to the applicability of Article V(2)(b) to this case. 13. We do not, however, hold, as Chi Mei urges, that Article V “incorporates” Article II’s valid written agreement requirement. In this respect, there is indeed some distinction between Article II and Article V. The former explicitly requires an “agreement in writing” while the latter requires only that the parties have reached an agreement as to arbitrability under ordinary contract principles.  19 international context of the arbitration at issue affects the principle that the district court should decide whether there was a valid agreement to arbitrate. As already noted, First Options held that, in a case arising under the domestic FAA, the district court independently should make that decision, even after the arbitrators have decided that they did have jurisdiction, absent clear and unmistakable evidence that the parties intended to leave that determination to the arbitrators. Preliminarily on the issue it is worth noting that we previously have applied First Options in the international context, albeit in a case seeking to compel arbitration rather than to confirm an award. See Deutz, 270 F.3d at 155 (“We recognize that First Options is a domestic arbitration case, but the international nature of the present litigation does not affect the application of First Options’ principles.”). Furthermore, one district court in this circuit has refused to distinguish international arbitration proceedings from domestic arbitration proceedings, despite the greater presumption in favor of arbitration in the international context, in applying First Options to a case involving the Inter-American Convention on International Commercial Arbitration, which is implemented in Chapter 3 of the FAA, 9 U.S.C. § 301. Am. Life Ins. Co. v. Parra, 25 F. Supp. 2d 467, 474, 476 (D. Del. 1998). There nonetheless may be reason to think that the international posture of this case removes it from the scope of First Options. For example, international arbitration rules tend to favor the rule of competence-competence (sometimes known as kompetenz-kompetenz)—the principle that gives arbitrators the power to decide their own jurisdiction—more than American arbitration rules.14 One 14. Article 21 of the United Nations Commission on International Trade Law (“UNCITRAL”) Rules of Arbitration states that “[t]he arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement.” UNCITRAL Arbitration Rules Art. 21. The International Chamber of Commerce (“ICC”) Rules of Arbitration allow a party that contests the existence, validity, or scope of an arbitration agreement to ask a court to decide  20 commentator has opined that “international arbitration rules normally provide explicitly that the arbitrators have the power to determine their own jurisdiction,” so that agreements incorporating international arbitration rules fall within “the agreement of the parties exception of First Options.” Ian R. MacNeil et al., IV Federal Arbitration Law: Agreements, Awards And Remedies Under the Federal Arbitration Act § 44.15.1 (Supp. 1996) (quoted in Parra, 25 F. Supp. 2d at 476. See also, Conrad K. Harper, The Options in First Options: International Arbitration and Arbitral Competence, 771 PLI/Comm 127, 141-43 (1998) (noting that even prior to First Options some courts had held that by incorporating ICC Arbitration Rules into an arbitration agreement the parties clearly and unmistakably had authorized the arbitral tribunal to determine its own jurisdiction and arguing that incorporation of such rules is too often overlooked by the courts). But see Parra, 25 F. Supp. 2d at 476 (rejecting the suggestion that the parties clearly and unmistakably agreed to submit arbitrability disputes to the arbitral panel by submitting to an arbitration proceeding governed by Inter-American Commercial Arbitration Commission rules, which authorize arbitrators to resolve such disputes). The contracts in this case, for example, incorporate the rules of CIETAC. App. at 31. Those rules do indeed allow the arbitrators the power to determine their own jurisdiction. China International whether a valid agreement exists; if the court so finds, then the arbitral tribunal rules on the arbitrability of the specific dispute before it. ICC Rules of Arbitration Art. 6(2). The Arbitration Rules of the International Center for Settlement of Investment Disputes (“ICSID”) as well as the American Arbitration Association (“AAA”) International Arbitration Rules likewise give arbitral tribunals the power to rule on their own jurisdiction, including objections with respect to the existence, scope, or validity of the arbitration agreement. ICSID Arbitration Rule 41(1); AAA International Arbitration Rules Art. 15. The London Court of International Arbitration (“LCIA”) Rules go one step further, granting the arbitration tribunal the same power, and further providing that “[b]y agreeing to arbitration under these Rules, the parties shall be treated as having agreed not to apply to any state court or other judicial authority for any relief regarding the Arbitral Tribunal’s jurisdiction or authority . . . .” LCIA Rules of Arbitration Art. 23.4.  21 Economic and Trade Arbitration Commission, Arbitration Rules Ch. I, § 1, Art. 4 (“The Arbitration Commission has the power to decide on the existence and validity of an arbitration agreement and on jurisdiction over an arbitration case.”). Nonetheless, incorporation of this rule into the contract is relevant only if the parties actually agreed to its incorporation. After all, a contract cannot give an arbitral body any power, much less the power to determine its own jurisdiction, if the parties never entered into it. Although incorporation of CIETAC rules in an allegedly forged contract is not enough in itself to require that Chi Mei be bound by the arbitration clause in this case, Minmetals nonetheless suggests that the international nature of this dispute is sufficient to distinguish this case from First Options. Thus, it could be argued that international norms favoring competence-competence, as well as American policy favoring arbitration particularly strongly in international cases, are sufficient to render First Options inapplicable in the international context. Competence-competence is applied in slightly different ways around the world. The one element common to all nations is the conferral of the power to decide jurisdiction on the arbitrators themselves. It is important to note, however, that this principle says nothing about the role of judicial review. In its simplest form, competence-competence simply means that the arbitrators can examine their own jurisdiction without waiting for a court to do so; if one side says the arbitration clause is invalid, there is no need to adjourn arbitration proceedings to refer the matter to a judge. William W. Park, Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts and Arbitrators, 8 Am. Rev. Int’l Arb. 133, 140 (1997). Under this brand of competence-competence, however, the arbitrators’ jurisdictional decision is subject to judicial review at any time before, after, or during arbitration proceedings, as was traditionally the case under English law. See id. at 140 & n.22. The French form of competence-competence goes somewhat further. A court only can decide arbitrability before an arbitral panel has been constituted if the alleged  22 arbitration agreement is clearly void; otherwise, courts must decline to hear the case until after an arbitral award is rendered. Id. at 141. Finally, the strictest form of competence-competence is the traditional German kompetenz-kompetenz, under which an arbitral panel’s jurisdictional decision in a case where the parties agreed to a kompetenz-kompetenz clause essentially was insulated from any form of judicial review. Id. at 141-42. Despite these different formulations, however, and despite the principle’s presumption in favor of allowing arbitrators to decide their own jurisdiction, it appears that every country adhering to the competence-competence principle allows some form of judicial review of the arbitrator’s jurisdictional decision where the party seeking to avoid enforcement of an award argues that no valid arbitration agreement ever existed. See id. at 140-42. Even the traditional German model allowed for judicial review when the very making of the competence-competence agreement was challenged. See Adriana Dulic, First Options of Chicago, Inc. v. Kaplan and the Kompetenz-Kompetenz Principle, 2 Pepp. Disp. Resol. L.J. 77, 79 (2002). Furthermore, in 1985, the United Nations Commission on International Trade Law (“UNCITRAL”) proposed its Model Law on International Commercial Arbitration, which prohibits parties from limiting the power of the arbitral tribunal to rule on its own jurisdiction, but which allows substantial opportunity for judicial review of that ruling. UNCITRAL Model Law on International Commercial Arbitration Art. 16. If a jurisdictional challenge is made, the arbitral panel either may issue a preliminary ruling on jurisdiction or may defer that decision until issuance of its final award. Id. In either case, the party challenging jurisdiction may seek judicial review of a tribunal’s decision that it has jurisdiction over the dispute. Id. Both England and Germany, as well as nearly 40 other countries and several states within the United States have enacted legislation based on the Model Law. UNCITRAL, Status of Conventions and Model Laws (last modified Mar. 20, 2003). It therefore seems clear that international law overwhelmingly favors some form of judicial review of an arbitral tribunal’s decision that it has jurisdiction over a  23 dispute, at least where the challenging party claims that the contract on which the tribunal rested its jurisdiction was invalid. International norms of competence-competence are therefore not inconsistent with the Supreme Court’s holding in First Options, at least insofar as the holding is applied in a case where, as here, the party resisting enforcement alleges that the contract on which arbitral jurisdiction was founded is and always has been void. In sum, First Options holds that a court asked to enforce an arbitration award, at the request of a party opposing enforcement, may determine independently the arbitrability of the dispute. Although First Options arose under the FAA, the Court’s reasoning in the case is based on the principle that “arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” First Options, 514 U.S. at 943, 115 S.Ct. at 1924. This rationale is not specific to the FAA. It is a crucial principle of arbitration generally, including in the international context. Indeed, even international laws and rules of arbitration that traditionally grant arbitrators more leeway to decide their own jurisdiction have allowed a party objecting to the validity of the agreement to arbitrate to seek judicial review of an arbitral panel’s decision that it has jurisdiction under the alleged agreement. For these reasons, we hold that, under the rule of First Options, a party that opposes enforcement of a foreign arbitration award under the Convention on the grounds that the alleged agreement containing the arbitration clause on which the arbitral panel rested its jurisdiction was void ab initio is entitled to present evidence of such invalidity to the district court, which must make an independent determination of the agreement’s validity and therefore of the arbitrability of the dispute, at least in the absence of a waiver precluding the defense. In this case, the district court confirmed and enforced the arbitral award without opinion. Chi Mei asks us to reverse the district court’s judgment and remand with instructions to enter judgment in its favor denying Minmetals’ motion to confirm and enforce and granting its motion to dismiss. On this record, we cannot grant this relief. Although Chi Mei  24 proffered evidence suggesting that the contracts providing for arbitration were forged, Minmetals presented the sale of goods contracts and other documents evidencing the existence of valid contracts to the district court. In the alternative, Chi Mei asks that we remand the case to the district court for further proceedings to ascertain the validity of the contracts. Given the apparent dispute of facts, we agree that a remand is appropriate. On remand, the district court is free to treat Chi Mei’s motion to dismiss as a motion for summary judgment, to entertain opposition to it, and to conduct such further proceedings as may be appropriate. B. WAIVER Minmetals also argues that Chi Mei has waived the forgery/jurisdiction argument by participating voluntarily in the arbitration proceedings rather than seeking a stay of arbitration in the district court.15 Chi Mei counters by arguing that it did not participate on the merits of the arbitration, but rather appeared only to object to jurisdiction and that, regardless of its participation on the merits, it preserved its right to challenge jurisdiction by properly objecting to jurisdiction and by arguing the forgery issue before the arbitral panel. Although it did not issue a written opinion, the district court plainly was concerned with this issue as it asked counsel for both sides numerous questions about waiver at oral argument. We repeatedly have held under the FAA, including in our opinion in First Options in which the Supreme Court affirmed our judgment, that a party does not waive its objection to arbitrability where it raises that objection in arbitration: “A party does not have to try to enjoin or stay an arbitration proceeding in order to preserve its objection to jurisdiction. . . . A jurisdictional objection, once stated, remains preserved for judicial review absent a clear and unequivocal waiver. . . . Therefore, where a party objects to 15. We note that Minmetals contends that “Chi Mei waived its right to claim a lack of a written arbitral agreement,” Appellee’s br. at 18, and thus we do not consider the sometimes elusive distinction between the application of principles of waiver and estoppel. See Slaney, 244 F.3d at 591.  25 arbitrability but nevertheless participates in the arbitration proceedings, waiver of the challenge to arbitral jurisdiction will not be inferred.” Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1510 (3d Cir. 1994), aff ’d, 514 U.S. 938, 115 S.Ct. 1920; see also Pa. Power Co. v. Local Union #272, IBEW, 886 F.2d 46, 50 (3d Cir. 1989). Minmetals argues that this case is different from our precedent under the domestic FAA because it arises under the Convention. Yet the principle we state on the limitation of waiver to jurisdiction of the arbitrators is well-settled in this court and Minmetals offers no compelling reason to ignore it here. There is, however, some question whether federal or state law should govern the waiver issue. In Deutz, we observed that “[f]ederal law applies to the interpretation of arbitration agreements” and that “[t]hus, ‘whether a particular dispute is within the class of those disputes governed by the arbitration and choice of law clause is a matter of federal law.’ ” Deutz, 270 F.3d at 154 (quoting Becker Autoradio U.S.A., Inc. v. Becker Autoradiowerk GmbH, 585 F.2d 39, 43 (3d Cir. 1978)). We recognized, however, that the Supreme Court in First Options stated that a court deciding whether the parties agreed to arbitrate a certain matter should apply “ordinary state-law principles governing contract formation.” Id. (citing First Options, 514 U.S. at 944, 115 S.Ct. at 1924). We went on to uphold the parties’ choice of law by applying Pennsylvania law to the arbitrability dispute in that case, noting that First Options’ principles concerning application of state law were no less applicable in the international context than under domestic arbitration law and that, in any event, application of federal law would not have altered the outcome of the case. Id. at 155. In this case it appears that if state law is applicable it is that of New Jersey, the state in which Chi Mei is incorporated, has its offices, and does business.16 New Jersey law may be somewhat more tolerant than federal law of the notion that a party may waive its objection to an arbitrator’s jurisdiction by participating in arbitration 16. We note that to the extent that the parties treat state law as applicable they seem to assume that the law is that of New Jersey.  26 proceedings. In New Jersey Manufacturers Insurance Co. v. Franklin, 389 A.2d 980 (N.J. Super. Ct. App. Div. 1978), the New Jersey intermediate appellate court held that “[e]ven in the absence of a contractual submission of an issue to arbitration, a party may by conduct or agreement waive his legal right to judicial determination,” but that “mere participation in the arbitration does not conclusively bar a party from seeking a judicial determination of arbitrability, even as late as the time of the claimant’s application to confirm the award.” Id. at 983, 984. On the other hand, the same court has held that “mere assertion of an objection does not dictate a finding of non-waiver.” Highgate Dev. Corp. v. Kirsh, 540 A.2d 861, 863 (N.J. Super. Ct. App. Div. 1988). In Franklin, the court held that a party preserved its objection to an arbitrator’s jurisdiction by clearly “flagging” that issue in its memoranda to the arbitrator while presenting what the court called a “mere alternative argument on the merits” in the same memoranda. Franklin, 389 A.2d at 984-85. In Kirsh, the court found a waiver where a party entered what the court suggested was a “nominal objection to the arbitrator’s jurisdiction” and proceeded to participate fully in the merits of the arbitration and even filed its own counterdemand for arbitration. Kirsh, 540 A.2d at 863-64. Finally, the New Jersey Supreme Court, in dicta, has noted that a party may preserve its objection to an arbitrator’s jurisdiction in an uninsured motorist case by “making an objection to the propriety of the arbitration on the ground of no coverage and participating in the arbitration proceeding under protest to decide the other . . . questions.” In re Arbitration Between Wilmer Grover and Universal Underwriters Ins. Co., 403 A.2d 448, 452 (N.J. 1979). The record in this case makes clear that Chi Mei’s participation in the CIETAC proceedings largely was limited to arguing the forgery issue. Although it appears to have presented at least one alternative argument, it consistently objected to the arbitral panel’s jurisdiction both in the arbitration proceedings and before the district court. App. at 41-45. Furthermore, its decision to proceed with the arbitration despite its jurisdictional objection was likely necessary to prevent an award being entered against it in its absence; it appears that Minmetals may not have had  27 sufficient contacts with New Jersey or the United States for it to have been subject to the jurisdiction of the federal district court in New Jersey or elsewhere, so that Chi Mei likely would not have been able to initiate suit against it to enjoin the arbitration, at least not in the United States.17 See id. at 212. Thus, whether we apply federal law or New Jersey law, the result is the same: Chi Mei did not waive its objection to CIETAC’s jurisdiction inasmuch as it participated in the arbitration primarily to argue the forgery/jurisdiction issue and consistently objected to CIETAC’s jurisdiction throughout the proceedings.18 IV. CONCLUSION For the foregoing reasons, we will vacate the order of the district court entered June 11, 2002, and the judgment of the district court entered August 22, 2002, and remand this case to that court for further proceedings consistent with this opinion. 17. Our result would not be different even if Chi Mei could have initiated an action in the United States to enjoin arbitration and have obtained jurisdiction over Minmetals in that action. 18. Because we hold that the district court has an obligation to determine the validity of an agreement to arbitrate where a party raises that point as an issue before it may enforce a CIETAC award, we need not reach Chi Mei’s arguments raising defenses under Article V of the Convention. If the court holds on remand that the agreements are valid, Chi Mei’s arguments regarding defenses may require resolution.  28 ALITO, Circuit Judge, concurring: I join the Court’s opinion but write separately to elaborate on the importance of Article IV, Section 1(b) of the Convention in this case. As the Court notes, “the crucial principles . . . that arbitration is a matter of contract and that a party can be forced to arbitrate only those issues it specifically agrees to submit to arbitration . . . suggest that the district court here had an obligation to determine independently the existence of an agreement to arbitrate.” Opinion of the Court at 14. These principles find expression in Article IV, Section 1(b), which provides that a party seeking to enforce an arbitral award must, “at the time of the application, supply . . . [t]he original agreement referred to in article II or a duly certified copy thereof.” Convention at art. IV, § 1(b). Because a party seeking to enforce an arbitral award cannot satisfy this obligation by proffering a forged or fraudulent agreement, this provision required the District Court to hold a hearing and make factual findings on the genuineness of the agreement at issue here. Article IV, Section 1(b), as noted, requires a party seeking enforcement to supply the court with “[t]he original agreement referred to in article II,” and it is apparent that this means that the party seeking enforcement must provide the court with either a duly signed written contract containing an arbitration clause or an agreement to arbitrate that is evidenced by an exchange of letters or telegrams. Article II provides as follows: 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 2. The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have  29 made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Id. at art. II (emphasis added). Article II thus refers to an “agreement” on three occasions: (1) when discussing the obligation of each “Contracting State” to “recognize an agreement in writing”; (2) in defining an “agreement in writing”; and (3) in requiring the court in which enforcement is sought to compel arbitration when the parties “have made an agreement within the meaning of ” Article II. Both the first and second references concern an “agreement in writing,” and the third reference merely directs the reader to a definition of “agreement” set forth elsewhere in Article II. Since an “agreement in writing” is the only type of “agreement” discussed in Article II, it seems clear that an “agreement referred to in article II” means an “agreement in writing” as defined in that Article. Thus, a party seeking enforcement of an arbitral award under Article IV must supply the court with an “agreement in writing” within the meaning of Article II. An “agreement in writing,” Article II tells us, means “an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.” Id. at art. II, § 2. To enforce the award granted by the arbitral tribunal, Minmetals was therefore required to demonstrate to the District Court that it and Chi Mei had agreed to arbitrate any dispute arising out of the purported nickel contracts and that they had done so by means of either (1) a written contract signed by both parties or (2) an exchange of letters or telegrams between them. Since Minmetals does not contend that Chi Mei agreed to arbitrate disputes relating to the purported nickel contracts by way of an exchange of letters or telegrams, it follows that Minmetals was required to prove to the District Court that Chi Mei signed a written agreement to arbitrate the dispute adjudicated by the arbitral tribunal. Chi Mei specifically disputes this issue, claiming that the signatures of its officers on the purported nickel contracts were forged. As a result, the Convention required the District Court to  30 inquire into whether Chi Mei’s officers signed the purported nickel contracts. Minmetals contends, however, that where an arbitral tribunal has already determined that the parties entered into a written agreement to arbitrate their dispute, the Convention requires the District Court to assume that the tribunal’s determination was correct. Minmetals’s reading of the Convention, however, would render the prerequisites to enforcement of an award set forth in Article IV superfluous. It is well established that “ ‘courts should avoid a construction of a statute that renders any provision superfluous.’ ” United Steelworkers of Am. v. North Star Steel Co., 5 F.3d 39, 42 (3d Cir. 1993) (quoting Pennsylvania v. United States Dept. of Health and Human Servs., 928 F.2d 1378, 1385 (3d Cir. 1991)). If Minmetals’s reading were correct, there would be no purpose for Article IV, Section 1(b)’s requirement that a party “applying for recognition and enforcement” of an arbitral award supply the court with the parties’ signed, written agreement or exchange of letters or telegrams. On Minmetals’s view, the existence of a valid agreement would be conclusively established once the party seeking enforcement pointed out the portion of the arbitral tribunal’s decision in which it found that the parties had entered into a written agreement to arbitrate, and therefore Minmetals’s position would make the Convention’s requirement that the party seeking enforcement submit the original agreement a meaningless formality. The better reading of Article IV — which comports with fundamental principles of arbitration — requires that the party seeking enforcement both (1) supply a document purporting to be the agreement to arbitrate the parties’ dispute and (2) prove to the court where enforcement is sought that such document is in fact an “agreement in writing” within the meaning of Article II, Section 2. In the present case, accordingly, Minmetals was required to demonstrate to the District Court that an officer of Chi Mei signed the purported nickel contracts. Because the District Court ordered the award enforced without requiring Minmetals to make that showing, its decision must be vacated.  31 A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 

325 S.W.2d 755 (1959) In the Matter of the ESTATE of Edward B. TOLER. Mary D. TOLER, Appellant, v. Virginia T. WORKMAN, Louise T. Steger and Virginia T. Workman, Executrix of the Estate of Amelia B. Toler, Deceased, Respondents. No. 47177. Supreme Court of Missouri, Division No. 2. July 13, 1959. *756 Hogan & Hogan, Robert E. Hogan, Michael W. Hogan, West Plains, Simmons, Perrine, Albright, Ellwood & Neff, Robert W. Neff, Cedar Rapids, Iowa, of counsel, for appellant. H. G. Green, A. W. Landis, West Plains, for respondents. *757 STOCKARD, Commissioner. On March 26, 1957, Mrs. Mary B. Toler, widow of Edward B. Toler, filed a petition in the Probate Court of Howell County, Missouri, for the issuance of letters of administration on the estate of Edward B. Toler. She alleged that her husband died intestate on February 17, 1956, that at the time of his death he was domiciled in Howell County, Missouri, and that the general nature of the property in his estate was personal and, before debts, was in excess of $20,000 in value. Respondents, the mother and two sisters of the deceased, filed a plea to the jurisdiction of the probate court on the ground that the deceased was not, at the time of his death, domiciled in Howell County, Missouri, but that his domicile was in the State of Louisiana. The Probate Judge was disqualified, and the cause was transferred to the Circuit Court of Howell County pursuant to Section 472.060, Laws of Missouri 1955, p. 385, § 7, V.A.M.S. The circuit court, after a hearing in which most of the evidence consisted of documentary evidence and depositions, found that "the domicile of Edward B. Toler, the decedent, was not in the State of Missouri at the time of his death, and * * * that this court is bound by * * * and should give full faith and credit to the succession or probate proceedings in the State of Louisiana, and * * * that under the evidence and the law, the petition for the appointment of an administrator in the State of Missouri should be and is dismissed." Mrs. Toler has appealed to this court from the judgment of the trial court and contends that the evidence established that her husband was domiciled in Missouri at the time of his death, and that the trial court erroneously ruled that a proper construction of Article IV, Section 1 of the Constitution of the United States required it to give full faith and credit to the succession proceedings in the State of Louisiana. In view of our conclusion as to the first contention it is unnecessary to rule on the constitutional question. But, it appears from the record that this question is not a fictitious one, and for this reason this court has jurisdiction and retains it even though, in the final disposition of the appeal, we find it unnecessary to rule thereon. McCord v. Missouri Crooked River Backwater Levee District of Ray County, Mo.Sup., 295 S.W.2d 42; Haley v. Horjul, Inc., Mo.Sup., 281 S.W.2d 832. It is agreed that appellant married Mr. Toler on January 2, 1956, after he had been admitted to a hospital at Tupelo, Mississippi, suffering from a heart attack. He died on February 17, 1956, without leaving the hospital. There is no contention that he owned any real estate in this state, or any place, and the parties do not question the rule, as a general proposition, that the descent and distribution of his personal property shall be made according to the laws of the state of which the deceased was domiciled. See Section 473.670 (repealed effective August 29, 1957, Laws of Missouri 1957, p. 860) and Section 473.675, par. 2, Laws of Missouri 1957, p. 860, § 3, V.A.M.S.; Jaeglin v. Moakley, 236 Mo.App. 254, 151 S.W.2d 524. Under the Louisiana law the surviving widow's share in the estate of her husband who dies intestate is limited to a part of the community property, of which there was none, while under the more liberal provisions of the Missouri law she would be entitled to at least one half of his total estate after the payment of debts. Section 474.010, Laws of Missouri 1955, p. 385, § 236, V.A.M.S. Following the death of Mr. Toler, respondents sought and obtained a "judgment of possession" from the District Court of Lafayette Parish, Louisiana, on the basis that Mr. Toler died domiciled there, which awarded to them as the "sole heirs" of Mr. Toler all the personal property inventoried. Mr. Toler was born and reared in Howell County, Missouri. He was educated in the public schools of West Plains, Missouri, and the University of Missouri. He also was graduated from the law school at Vanderbilt University in Tennessee, and was admitted to the practice of law in Missouri *758 in 1923. He was enrolled as a member of the bar of Howell County, and he maintained his enrollment there until the time of his death. However, after 1937 he did not engage in the practice of law in Howell County, or as far as shown by the record, any other place. He was a member of the Episcopal Church and the Masonic Lodge at West Plains, but he was suspended from the latter organization in 1933 for nonpayment of dues. The record does not establish his activities from 1923 to 1937, but by 1937 he was engaged in securing oil and gas leases for various oil companies. In this work he traveled widely and worked in several states other than Missouri. He lived in hotels or rented rooms and carried his personal belongings with him in his automobile. For about nineteen years before his death Mr. Toler did not physically reside in Missouri, and apparently he returned only for short periods about once a year to visit his mother or when there was "something special like a funeral or someone ill." He voted an absentee ballot in Howell County in a primary election in 1944, but there is no record that he voted any place thereafter. In the early part of 1953 he moved to New Orleans, Louisiana, and lived in a rented room for most of that year. He then moved to Lafayette, Louisiana, and lived at the Evangeline Hotel where he stayed except when away on business. He did not retain the same room in the hotel when he was away, but he would leave his personal belongings with the hotel. He paid an income tax to the State of Louisiana for the years 1953 and 1954, and for each year he filed a "Resident Individual Income Tax Return." On each such return he listed his "home address" as the Evangeline Hotel, and he made the answer "yes" to the question, "Are you a resident of Louisiana?" On the 1953 return he stated that no return had been filed in Louisiana previously because he was not then a resident. He did not file an income tax return in Missouri for 1953 or 1954. He sent his federal income tax return for 1953 to the New Orleans office and gave his home address as the Evangeline Hotel. In a letter to his attorney written in December 1955 he stated that he received a letter from the Bureau of Internal Revenue indicating that he should continue to send his federal return to the Kansas City, Missouri, office where he had been sending them prior to 1953, and he did send the 1954 return there in order not to "scatter them around in many offices in several states." In the 1954 tax return which he filed in the Kansas City office he listed his home address as 203 Garfield Avenue, West Plains, Missouri, which was his mother's home. However, in this return, he attached an exhibit on which he listed his income and expenses, and labeled it "Edward B. Toler Evangeline Hotel, Lafayette, Louisiana 1954." He then listed deductions for "hotels away from home on business $360.38" and for "meals away from home on business $443.20." There is no further explanation of these deductions, but it is fairly obvious by reason of the amounts that he did not purport to deduct for all hotel and meals during the year while away from West Plains, Missouri. For 1953 and thereafter his automobile was licensed in Louisiana, and on November 28, 1955 he registered as a voter in Lafayette Parish, Louisiana, and stated under oath that he was then and had been a resident of Lafayette Parish since January 3, 1953. There is no evidence that he ever voted in Louisiana, but he suffered his heart attack a month after he registered, and it would appear that probably no election was held at which he could have voted. He also maintained a checking account in a bank at Lafayette, Louisiana, but none in West Plains, Missouri, after August 1951. After Mr. Toler was hospitalized and after he was married, he wrote his sister in Indiana, with whom his mother was then living, that "Mary and I will buy a home in Lafayette and we want you to often come to visit us." He also wrote the clerk at the Evangeline Hotel that he and his wife planned to make their home in Lafayette. *759 In November 1955, the State of Missouri made a demand upon Mr. Toler for the payment of Missouri state income tax for the year 1951. He employed counsel in West Plains, and in connection with that claim he thereafter wrote several letters to his counsel in which he stated in unequivocal terms that he was not then and had no intention of being a resident of or domiciled in the State of Missouri. In this correspondence he told his counsel to write to him at the Evangeline Hotel, and that the telephone operator at the hotel would always know where he could be found if he was not there. He also stated that he would be away from the hotel during the week working but would "come back to Lafayette every Friday afternoon." Mr. Toler purchased some interests in oil, gas or mineral rights for himself. In three deeds dated in 1952, the grantee was listed as "Edward B. Toler, West Plains, Missouri" or "Edward B. Toler, address, West Plains, Missouri." A deed dated April 18, 1953, named him as grantee and his "Postoffice Address" as West Plains, Missouri. Another deed dated June 12, 1954 was made to "E. B. Toler, a single man, never having married, address, 203 Garfield Avenue, West Plains, Missouri." In this nonjury case we review the record de novo and determine the credibility, weight and value of the testimony and evidence, and we arrive at our own conclusions based on the entire record. Ordinarily we give due deference to the trial judge's opportunity to see and hear the witnesses and thereby judge their credibility. But here most of the evidence consisted of depositions and documents and there is no occasion to give deference to what might appear, by reason of the judgment entered, to be his determination of any factual issue based on such evidence. Pitts v. Garner, Mo.Sup., 321 S.W.2d 509. A person can have but one domicile, which, when once established, continues until he renounces it and takes up another in its stead. In re Ozias' Estate, Mo.App., 29 S.W.2d 240, 243; Restatement, Conflict of Laws, § 11. Domicile has been defined as the place with which a person has a settled connection for certain legal purposes, either because his home is there, or because that place is assigned to him by law, Restatement, Conflict of Laws, § 9, and also as "That place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning." In re Ozias' Estate, supra. There can be no question but that what is referred to as the domicile of origin (see Restatement, Conflict of Laws, § 14, and Beale, The Conflict of Laws, § 14.1) of Mr. Toler was West Plains, in Howell County, Missouri. However, a person who has attained his majority and is not under some legal disability may, through the proper exercise of a choice, change his domicile and thereby acquire what is known as a domicile of choice. Phelps v. Phelps, 241 Mo.App. 1202, 246 S.W.2d 838, 844; Stumberg, Conflict of Laws, p. 18; Beale, The Conflict of Laws, § 15.2; Restatement, Conflict of Laws, § 15. Mr. Toler went to Louisiana in the early part of 1953, and if he established a domicile there he did so thereafter. Under these circumstances we can assume for the purposes of this discussion that his domicile was still in Missouri until 1953, and thereby limit our consideration to the question of whether it was thereafter changed to Louisiana. In order to effectuate a change of domicile it is necessary that there shall be actual personal presence in the new place and also the present intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode. The fact of physical presence and the intention must concur, and if they do so, even for a moment, the change of domicile takes place. Nolker v. Nolker, Mo.Sup., 257 S.W. 798; Phelps v. Phelps, 241 Mo.App. 1202, 246 S.W.2d 838; Barth v. Barth, Mo.App., *760 189 S.W.2d 451; In re Ozias' Estate, Mo.App., 29 S.W.2d 240; Finley v. Finley, Mo.App., 6 S.W.2d 1006; Hays v. Hays, 221 Mo.App. 516, 282 S.W. 57. While physical presence is required, it is not necessarily essential that there be established a home, in the generally accepted meaning of that term, in a particular building. "Thus where a man, never settling down in one place, lives at hotels or clubs in a certain place, he may nevertheless acquire a domicil there." Beale, The Conflict of Laws, § 16.3; Restatement, Conflict of Laws, § 16. The evidence unquestionably establishes that during a part of 1953, and at all times thereafter, Mr. Toler was physically present in Louisiana with the Evangeline Hotel being his dwelling place, except for business trips and visits to his mother. He had a continuing arrangement at that hotel for accommodations, and whether or not he was physically occupying a room he always had some personal belongings there. The hotel was what might be referred to as his "base of operations." There can be no question but that subsequent to 1953 he was physically present in Lafayette Parish of the State of Louisiana. Therefore, the determinative question in this appeal is whether there concurred with that presence the necessary intent on his part to abandon his previous domicile and to establish a new one in Louisiana. The question of intent is to be gathered largely from the acts and utterances of the person whose domicile is under question, In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147, and the declarations of the person made before, at, and after the time the domicile is in dispute may be considered. Memphis Bank & Trust Co. v. West, Mo.App., 260 S.W.2d 866. There are admittedly some acts of Mr. Toler and some statements attributed to him, most of which occurred prior to 1953, which would possibly indicate an intent not to abandon Howell County, Missouri, as his domicile even though he was not present there and had not been for many years except for isolated short visits. The only acts on his part shown by the evidence to have occurred subsequent to 1953 which might be contended to indicate an intent to keep his domicile in Missouri were the acceptance of two deeds, one in 1953 and the other in 1954, listing his address as West Plains, Missouri, the filing of his federal tax return for the year 1954 in Kansas City, Missouri, and listing his home address thereon (inconsistent with the listing on the exhibit attached thereto) as West Plains, Missouri, and the continued payment of his bar dues in Missouri. On the other hand during and subsequent to 1953 Mr. Toler was physically present in Lafayette Parish, Louisiana, and all his work called for his presence outside of Missouri. He maintained a regular dwelling place in Louisiana to which he habitually and regularly returned, he obtained a driver's license in Louisiana and he registered his automobile there. He also maintained his checking account in Lafayette, Louisiana, and filed state income tax returns on a form for use by residents only and affirmatively stated thereon that he was a resident. The most that can be said is that prior to November 1955 the circumstances are conflicting whether Mr. Toler intended to establish a domicile in Louisiana. But in November 1955 the State of Missouri sought to collect income tax from Mr. Toler for the year 1951, and this brought forth acts and utterances on his part that leaves no question but that as of that time, if not previous thereto, he had the firm and unconditional intent not to be a resident of Missouri. He voluntarily registered as a voter in Louisiana and solemnly swore under oath that he was then and had been since 1953 a resident of that state. He wrote his attorney that after he moved away from Missouri "I have never had the intent of being a resident of Missouri since that date," and that when he went to Louisiana he "fully intended to locate here permanently" and that he "never intended to again become a resident of Missouri for a single second." Appellant attempts to brush aside the statements of Mr. Toler made in the letters *761 to his attorney on the ground that they were made in connection with a claim by the State of Missouri for income tax for 1951, and that they "reveal a determined taxpayer seeking to avoid taxation." This may be true, but whatever effect they may have as to his residence or domicile in 1951, they reveal an unequivocal intent at the time they were made on the part of Mr. Toler that his residence was then in the State of Louisiana where he was physically present, and not in the State of Missouri where he was not present and had not been, except for isolated visits, for many years. In Restatement, Conflict of Laws, § 22, it is stated that "If the new dwelling-place is acquired with the necessary intention of making it a home, it becomes a domicil of choice although there may be a special, even an unworthy, motive in making the change." Under this statement, in what is designated as an "illustration," is the following: "A changes his dwelling-place for the purpose of diminishing his taxes or avoiding the payment of a debt or for the purpose of securing a divorce. He intends, however, to make the new place his home. A's domicil is changed." See also Beale, The Conflict of Laws, § 22.1, and also, Stevens v. Larwill, 110 Mo.App. 140, 84 S.W. 113. Mr. Toler was a lawyer and a graduate of Vanderbilt University School of Law. It can therefore be reasonably assumed that he appreciated and understood the legal significance of his utterances concerning residence, not only for tax purposes but for all purposes. When we weigh the effect of all the circumstances and the acts and statements of Mr. Toler, we must and do conclude that he established a regular dwelling-place in Louisiana which he intended to constitute his true, fixed and permanent home; that he intended to remain there for an indefinite time; and that he clearly had no intention of returning to Missouri on the basis that it constituted his place of abode. It is true that prior to November 1955 there occurred some isolated instances which may be considered to cast some doubt on his otherwise clearly expressed intention, but any doubt so created was effectively removed by the acts and statements of Mr. Toler thereafter. We can only conclude that the necessary intent concurred with physical presence to establish a domicile in Louisiana, and that Mr. Toler was not domiciled in Missouri at the time of his death. Appellant established that there is personal property in this state belonging to the estate of her deceased husband. Since he was domiciled in the State of Louisiana at the time of his death the succession or distribution of that property is governed by the law of that state. Section 473.670 V.A.M.S., now repealed; Section 473.675, par. 2, Laws of Missouri 1957, p. 860, § 3, V.A.M.S. However, all personal property located in Missouri and belonging to a nonresident decedent is subject to ancillary administration under the laws of this state, II Limbaugh, Missouri Practice, § 1035; McPike v. McPike, 111 Mo. 216, 20 S.W. 12, unless there is a specific statutory exclusion. Whether appellant, or anyone else, is entitled to ancillary administration in this state, and in such event whether Section 473.675, par. 3, Laws of Missouri 1957, p. 860, § 3, V.A.M.S., which was enacted after the death of Mr. Toler, would be applicable, are questions not for decision on this appeal. The judgment of the trial court that appellant is not entitled to domiciliary administration in this state on the estate of her husband is affirmed BOHLING and BARRETT, CC., concur. PER CURIAM. The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court. All concur.

779 F.2d 52 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.RAY J. SEAY, Plaintiff-Appellant,v.UNITED STATES POSTAL SERVICE, ET AL., Defendants-Appellees. 85-5325 United States Court of Appeals, Sixth Circuit. 10/31/85 AFFIRMED M.D.Tenn. ORDER BEFORE: ENGEL, KENNEDY and KRUPANSKY, Circuit Judges. 1 This pro se Tennessee plaintiff appeals from a district court judgment dismissing his suit filed as a Bivens-type action against the United States Postal Service and nine of its employess. 2 Seeking damages, the plaintiff alleged that the defendants have denied him his fifth, thirteenth and fourteenth constitutional rights pursuant to a grand conspiracy at his place of employment by the defendants forcing him to work in excess of ten hours on three days, by their giving him a public and humiliating reprimand, by their causing other confrontations with the plaintiff while he was waiting on the public and by their denying him access to his medical records all of which caused him severe physical and mental distress. Upon consideration of the cause, the district court dismissed the suit on the grounds of frivolity, failure to state a claim and immunity. 3 On appeal, the defendants have moved this Court to dismiss the appeal for lack of jurisdiction. The defendants argue that the notice of appeal was filed more than sixty days after the entry of the district court's judgment, and that the appeal is, therefore, untimely and should be dismissed. The plaintiff has responded to the motion and has also filed an informal brief with the Court. 4 Upon our own review of the cause in light of the arguments raised by the parties, this Court concludes that it does have jurisdiction to entertain the appeal and that the district court properly dismissed the plaintiff's action for the reasons stated by it. The defendants overlook the fact that the plaintiff filed a time-tolling motion to reconsider the district court's judgment. The motion was denied on February 11, 1985 and the plaintiff's notice of appeal was filed within sixty days thereafter. Under these circumstances, this appeal is timely. Rule 4(a)(4), Federal Rules of Appellate Procedure; Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). 5 Under the facts of this case, it is also clear that the plaintiff simply did not have the non-statutory Bivens-type remedy available for him as a means to seek redress of alleged constitutional violations arising from his federal employment. Congress has provided postal service employees with a comprehensive, judicially-reviewable administrative system of remedies for violations of their rights; and, it has also authorized the Postal Service to negotiate collective bargaining agreements containing grievance-arbitration procedures wherein employees may resolve various disputes which arise during the course of their employment. See 39 U.S.C. Secs. 1001-1209. Under these circumstances, it is clear that the plaintiff was precluded from pursuing a Bivens-type suit given the existence of another elaborate system of remedies available to him to pursue his alleged constitutional violations. See Bush v. Lucas, 462 U.S. 367 (1983); Clemente v. United States, 766 F.2d 1358, 1364 (9th Cir. 1985); Philippus v. Griffin, 759 F.2d 806, 808 (10th Cir. 1985); Heaney v. United States Veterans Administration, 756 F.2d 1215, 1220 (5th Cir. 1985); Shoultz v. Monfort of Colorado, Inc., 754 F.2d 318, 324-25 (10th Cir. 1985); Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984), cert. denied, 105 S.Ct. 2019 (1985); Broussard v. United States Postal Service, 674 F.2d 1103, 1112-13 (5th Cir. 1982). 6 The plaintiff's allegations were also vague and conclusory and, therefore, failed to support a construction of his complaint to allege any other kind of cause of action. Kaylor v. Fields, 661 F.2d 1177, 1183 (8th Cir. 1981); Davidson v. State of Georgia, 622 F.2d 895, 897 (5th Cir. 1980). The plaintiff was also not deprived of fair notice of the dismissal of his suit as he had been served with the defendants' motion to dismiss and he even filed a response in relation thereto. The plaintiff's pending motions before the district court were also without merit due to plaintiff's failure to state a Bivens-type or other cause of action. 7 For these reasons, this panel unanimously agrees that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The defendants' motion to dismiss is, accordingly, denied and the district court's judgment is hereby affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with  Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 22, 2010* Decided December 22, 2010 Before WILLIAM J. BAUER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 10‐1668 EVE JOLICOEUR‐VASSEUR, Appeal from the United States District Plaintiff‐Appellant, Court for the Northen District of Illinois, Eastern Division. v. No. 08 C 853 ASSOCIATION OF PROFESSIONAL Susan E. Cox,  FLIGHT ATTENDANTS and Magistrate Judge. AMERICAN AIRLINES, INC., Defendants‐Appellees. O R D E R  American Airlines fired Eve Jolicoeur‐Vasseur for failing to pay dues to her union, the Association of Professional Flight Attendants, as required by the collective bargaining agreement.  Jolicoeur‐Vasseur then sued the union under the Railway Labor Act, see 45 U.S.C. §§ 151 to 164, claiming that it breached its duty of fair representation by failing to * After examining the briefs and the record, we have concluded that oral argument is unnecessary.  Thus, the appeal is submitted on the briefs and the record.  See FED. R. APP. P. 34(a)(2)(C). No. 10‐1668 Page 2 give notice that her dues were in arrears and then by thwarting her efforts to grieve her termination.  She also sued American, but her action against the airline is wholly derivative of her claim against the union, and so we can ignore it here.  A magistrate judge, presiding by consent, granted summary judgment to the union.  We agree with that court’s analysis and affirm the judgment. Except as noted, the facts are not disputed.  Jolicoeur‐Vasseur’s career with American spanned 16 years.  When she was working or on paid leave, the airline automatically deducted union dues from her pay.  But she also took a significant amount of unpaid leave, and during those periods, Jolicoeur‐Vasseur was obligated to pay the union directly unless she could establish an exemption.  She did neither, says the union, and by January 2007 was $600 in arrears.  (Jolicoeur‐Vasseur disputes the liability but concedes that the union certified with the airline that she owed that amount.)  In both April and May 2007 the union mailed her a letter itemizing her unpaid dues but both letters, which were sent via regular mail, certified mail, and FedEx, went undelivered.   Then in June 2007 the union’s treasurer, Cathy Lukensmeyer, learned that Jolicoeur‐ Vasseur would be in Dallas, Texas, that month for training near the union’s headquarters.  On June 13 she went to the training facility with her colleague, Michael Parker, to notify Jolicoeur‐Vasseur in person that she had unpaid dues.  The parties dispute the details of that meeting.  According to Jolicoeur‐Vasseur, Lukensmeyer called her out of a training session, showed her a “multipage document,” and asked her to sign the last page.  Jolicoeur‐Vasseur insists that she couldn’t spare the time to read the document, but she acknowledges reading enough to know that it concerned a threat of termination for nonpayment of union dues totaling more than $600.  Jolicoeur‐Vasseur refused to sign a delivery receipt, and she has equivocated about whether she walked away from the meeting with the document in hand.  At first, in a declaration executed in January 2008—after she had hired counsel to negotiate her reinstatement but before she filed this lawsuit—she professed an inability to recall whether Lukensmeyer had let her keep the letter.  In a deposition months later, however, Jolicoeur‐Vasseur testified that Lukensmeyer did not give her a copy of the letter.  Both Lukensmeyer and Parker, by contrast, testified at their depositions that Jolicoeur‐Vasseur departed with the three‐page letter.  The parties do agree that Jolicoeur‐Vasseur refused Parker’s offer to help her update her address, and that Lukensmeyer gave Jolicoeur‐Vasseur a business card and asked her to call to discuss the unpaid dues.  Jolicoeur‐Vasseur says she called Lukensmeyer several times over the following weeks but never reached her.  Lukensmeyer acknowledges missing one call, but says that Jolicoeur‐Vasseur did not leave a return number and could not be reached at any of the numbers the union had on file.  The two women did not connect until after Jolicoeur‐ Vasseur was fired. No. 10‐1668 Page 3 On July 17, 2007, the union certified to American that Jolicoeur‐Vasseur was more than 60 days in arrears on her dues and asked the airline to fire her as required by the collective bargaining agreement.  According to Article 31 of the agreement, once the union notifies American that a flight attendant’s dues are in arrears, American “shall then take proper steps to discharge such employee from service.”  The airline began this process on July 25, 2007, when Aprille Gordon, Jolicoeur‐Vasseur’s direct supervisor, wrote to inform her that, as a consequence of her unpaid dues, she would be fired in 14 days.  The letter identified the applicable provision of the collective bargaining agreement and notified Jolicoeur‐Vasseur that she could contest the decision by contacting Gordon in writing “within seven (7) days from the date the grievance arises.”  Gordon mailed the letter to Jolicoeur‐Vasseur’s permanent address on file, her mother’s house, and also sent a copy to her sister.  Both letters arrived on July 30.  Gordon got these addresses—which differed from the addresses the union had tried—from American’s database of contact information for flight attendants.  Jolicoeur‐Vasseur had updated that database to include her mother’s address as recently as October 2006. Two weeks later, when Jolicoeur‐Vasseur completed her shift and cleared customs after an international flight, Gordon met her to collect her badge and keys.  Gordon told Jolicoeur‐Vasseur that she was being fired because she had failed to pay her union dues.  Jolicoeur‐Vasseur replied that this was the first she had heard of unpaid dues, and Gordon responded that she and members of the union had been trying to reach Jolicoeur‐Vasseur for some time.  When Gordon gave Jolicoeur‐Vasseur a copy of the termination letter dated July 25, she denied seeing it previously. Jolicoeur‐Vasseur then asked where the letter had been sent, and when told she remarked that both addresses were outdated.  Jolicoeur‐ Vasseur was not taking the news well, so Gordon called Lukensmeyer and invited Jolicoeur‐Vasseur to speak with her directly.  Jolicoeur‐Vasseur then told Lukensmeyer that she would pay the dues, but Lukensmeyer said it was too late to pay the money or ask the union to change its decision. Jolicoeur‐Vasseur hired a lawyer and tried without success to get the union to reverse its decision so that American could reinstate her.  She then filed this lawsuit.  Jolicoeur‐Vasseur claimed that the union had breached its duty of fair representation by prompting American to fire her before giving adequate notice of her unpaid dues and then concealing from her that she could grieve her discharge.  In granting summary judgment, the magistrate judge concluded that, as far as the undisputed evidence showed, the union had done more than required by the collective bargaining agreement when Lukensmeyer, its treasurer, confronted Jolicoeur‐Vasseur in Dallas and personally conveyed that her dues were substantially in arrears.  The court reasoned that, even giving her every benefit of the doubt, Jolicoeur‐Vasseur conceded that Lukensmeyer had shown her a “multipage document” complete with the amount owed, and that encounter was enough to put her on notice of the union’s position.  The court also rejected Jolicoeur‐Vasseur’s contention that No. 10‐1668 Page 4 the union concealed the grievance procedures from her, reasoning that both the letter Lukensmeyer brought to Dallas and the termination letter that was delivered to her permanent address informed her of her right to file a grievance.  On appeal Jolicoeur‐Vasseur says nothing about the magistrate judge’s analysis of the evidence discussed in the order granting summary judgment.  Instead, Jolicoeur‐ Vasseur seeks to undermine the adverse ruling by asserting that the magistrate judge ignored evidence that she had given American an updated mailing address before the airline sent the termination letter to her mother’s home on July 25.  Our review is de novo.  See Adelman‐Reyes v. Saint Xavier Univ., 500 F.3d 662, 665 (7th Cir. 2007). We begin with Jolicoeur‐Vasseur’s central contentions that the union failed to notify her that it planned to take action based on her dues delinquency and that it failed to inform her of her right to file a grievance after American fired her.  The duty of fair representation requires a union to inform an employee of the actions she must take to remedy a dues delinquency before requesting termination on the basis of nonpayment.  See Prod. Workers Union of Chi. & Vicinity, Local 707 v. NLRB, 161 F.3d 1047, 1052 (7th Cir. 1998); Larkins v. NLRB, 596 F.2d 240, 245 (7th Cir. 1979).  Jolicoeur‐Vasseur argues that the union breached this duty, but the problem with this argument is that the union gave written notice, in‐ person, at the training in Dallas.  And we agree with the magistrate judge that Jolicoeur‐ Vasseur failed to establish a material dispute about the events surrounding that notice.  She insisted in her opposition to summary judgment that Lukensmeyer refused to relinquish possession of the letter when the two parted company, and for that reason, Jolicoeur‐ Vasseur maintains, she did not know what the letter said.  But that assertion is refuted by Jolicoeur‐Vasseur’s declaration and her deposition testimony.  In those sworn statements, she acknowledges that she knew Lukensmeyer wanted to speak to her about unpaid dues, that Lukensmeyer handed her a “multipage document,” and that she read enough of that  letter to know the precise amount the union said she owed and that her job was at risk if she did not pay.  The letter also detailed the manner in which the arrearage had been calculated, warned that Jolicoeur‐Vasseur would be fired if she did not make payment within 30 days, and pointed her to the procedures for contesting both the amount of unpaid dues owed and her resulting termination.  Jolicoeur‐Vasseur counters that she couldn’t spare the time to read the entire letter because she was eager to return to her training session, but that was her choice, and she has never said that Lukensmeyer refused to let her read the letter carefully.  Moreover, the union already had sent the same letter to Jolicoeur‐Vasseur by certified mail to the addresses it had on file, and the collective bargaining agreement required nothing more.  It was not the union’s fault if those addresses were out of date.  Although Jolicoeur‐Vasseur testified that she had given American her correct address, it is undisputed that the airline does not generally share contact information with the union, and Jolicoeur‐Vasseur presented no evidence to show that her case was an exception to that general rule. No. 10‐1668 Page 5 As in the traditional rules for service of process, the notice provided by the union was sufficient because it was reasonably calculated to apprise Jolicoeur‐Vasseur—and by her own admission, it did apprise her—that the union was trying to collect her unpaid dues.  See Ho v. Donovan, 569 F.3d 677, 680 (7th Cir. 2009).  Nothing in the collective bargaining agreement required Jolicoeur‐Vasseur to read the letter that Lukensmeyer handed her, but the consequences of her failure to do so are of her own making.  As we have often repeated, parties “cannot stick their heads in the sand and later claim ignorance,” and Jolicoeur‐ Vasseur’s argument premised on precisely this type of behavior is thus without merit.  See Chi. Truck Drivers v. El Paso CGP Co., 525 F.3d 591, 600‐01 (7th Cir. 2008).  Finally, we turn to Jolicoeur‐Vasseur’s argument that the union colluded with American so that the airline would send her termination letter to the wrong address.  This argument is meritless.  Jolicoeur‐Vasseur presented no admissible evidence that American sent the letter to an improper address.  She listed that address as her permanent address in October 2006.  An although she regularly updated her contact information in American’s payroll system, she admits that she made no effort to update American’s other databases despite an explicit warning in the payroll system that her changes would not carry over.  Neither American nor the union is to blame for Jolicoeur‐Vasseur’s failure to change her address in the database for storing contact information for flight attendants.  And even if American had sent the letter to an old address, Jolicoeur‐Vasseur has failed to articulate any reason why this error would have been the union’s fault given that the union and the airline do not share contact information.  AFFIRMED. 

667 S.E.2d 919 (2008) HINER TRANSPORT, INC. v. JETER. No. A08A1291. Court of Appeals of Georgia. September 25, 2008. *920 Drew, Eckl & Farnham, George W. Brinson, Atlanta, Edwin A. Treese, for appellant. Watkins, Lourie, Roll & Chance, Robert D. Roll, Atlanta, for appellee. JOHNSON, Presiding Judge. Hiner Transport, Inc. ("Hiner") appeals from the denial of its motion to set aside a default judgment entered in favor of Jimmie Jeter. For reasons that follow, we reverse. In March 2003, Jeter sued several defendants for damages he allegedly sustained in a motor vehicle accident. The following year, Jeter moved for leave to file an amended complaint adding additional party defendants, including Hiner. The trial court granted Jeter's motion, and Jeter filed his amended complaint naming Hiner as a defendant on March 5, 2004. Hiner did not answer the amended complaint. Citing that failure, the trial court entered default judgment against the company as to liability on May 5, 2004. Almost two years later, the trial court scheduled "a final hearing on the issue of damages to be assessed against Defendant Hiner Transport, Inc., which has admitted liability through default." Hiner did not appear for the hearing, and the trial court awarded Jeter $6,000,000 in damages. Hiner subsequently moved to set aside the judgment. The trial court denied the motion, but issued a certificate of immediate review, and we granted Hiner's application for discretionary appeal. A motion to set aside a judgment may be brought on several grounds, including when a nonamendable defect appears on the face of the record or pleadings.[1] In cases involving a default judgment, this type of defect arises "[w]here . . . the record shows on its face that the default was entered on an improper basis."[2] Hiner argues that such a defect undermines the final judgment here. We agree. The record shows that the trial court entered default judgment based on Hiner's failure to answer the amended complaint. A defendant, however, "is not required to file an answer to an amended complaint unless the trial court itself has affirmatively ordered such answer."[3] This is true even if the amendment brings a new defendant into the suit. Absent an order to respond, "[a]n amended complaint adding a new party defendant `does not require a responsive pleading.'"[4] The trial court did not order Hiner to answer or respond to the amended complaint. Hiner, therefore, was not required to answer and could not be held in default for failing to do so.[5] As a matter of law, the default judgment — and the resulting damages award — were improper, creating a nonamendable *921 defect on the face of the record.[6] Accordingly, the trial court erred in denying Hiner's motion to set aside.[7] Trying to avoid this result, Jeter suggests on appeal that Hiner's absence from the damages trial, as well as its failure to participate in other proceedings throughout its two-year involvement in the litigation, also supported the default judgment and damages award. There is no evidence, however, that the trial court entered default on these grounds. On the contrary, it found Hiner in default for not answering the amended complaint. Jeter further claims that, given Hiner's negligence and inattention in this matter, it is guilty of laches and should not be allowed to set aside the judgment. But the issue of negligence is immaterial to our analysis. Regardless of whether Hiner was negligent, it "retained the right to seek a motion to set aside under OCGA § 9-11-60(d)(3) for the existence of a non-amendable defect on the face of the record."[8] A laches defense "has no relevancy to [a case] involving a motion to set aside a judgment upon a legal ground."[9] We also find no merit in Jeter's waiver arguments. First, he claims that Hiner never raised the nonamendable defect issue below. In connection with its motion to set aside, however, Hiner argued that default was improper because it was not required to answer the amended complaint. Although Hiner did not specifically cite OCGA § 9-11-60(d)(3) or use the term "nonamendable defect," it sufficiently raised the key issue before the trial court. Finally, Jeter claims that Hiner's appeal does not challenge the denial of the motion to set aside. We disagree. "Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith."[10] Hiner's enumerated errors do not specifically reference the motion to set aside. Instead, they allege that the trial court improperly entered default judgment. As clearly stated in the notice of appeal, however, Hiner appealed from the trial court's Order on Post-Judgment Motions, through which the court denied the motion to set aside. Although Hiner could have drafted its enumerated errors more carefully, it is apparent, particularly given the notice of appeal, that Hiner seeks to challenge the denial of its motion to set aside.[11] Judgment reversed. BARNES, C.J., and PHIPPS, J., concur. NOTES [1] OCGA § 9-11-60(d)(3). [2] Shields v. Gish, 280 Ga. 556, 558(2), 629 S.E.2d 244 (2006). [3] Id. [4] Stubbs v. Pickle, 287 Ga.App. 246, 247(1), 651 S.E.2d 171 (2007). [5] See id. [6] See id.; Evans v. Marshall, 253 Ga.App. 439, 559 S.E.2d 165 (2002). [7] See OCGA § 9-11-60(d)(3); Shields, supra at 558(2), 629 S.E.2d 244; see also A.A. Professional Bail v. State of Ga., 265 Ga.App. 42, 44, 592 S.E.2d 866 (2004) (trial court abuses its discretion by denying a motion to set aside under OCGA § 9-11-60(d)(3) where a nonamendable defect appears on the face of the record or pleadings). [8] Scott v. Scott, 282 Ga. 36, 36-37(1), 644 S.E.2d 842 (2007); see also Shields, supra at 558(2), 629 S.E.2d 244. Compare OCGA § 9-11-60(d)(2) ("A motion to set aside may be brought to set aside a judgment based upon . . . [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant."). [9] Moore v. American Finance System, 236 Ga. 610, 611(3), 225 S.E.2d 17 (1976). [10] OCGA § 5-6-48(f). [11] See id.

J-S90032-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MICHAEL OSEI IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. SUGARHOUSE CASINO, ALEXIS R. KROLL, WENDY HAMILTON, TONI DILACQUA Appellees No. 919 EDA 2016 Appeal from the Order Entered February 19, 2016 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): 2664 June Term 2015 BEFORE: OTT, J., SOLANO, J. AND JENKINS, J. MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2016 Michael Osei (“Appellant”) appeals from an order entered February 19, 2016 by the Philadelphia County Court of Common Pleas denying his Motion for Nunc Pro Tunc Appeal and Nunc Pro Tunc Order Modification (“nunc pro tunc motion”). After careful review, we affirm. This matter stems from Appellant’s amorous pursuit of Alexis Kroll, a cocktail waitress at Sugarhouse Casino, which resulted in the State Police bringing summary criminal harassment charges against Appellant. Ms. Kroll did not receive a subpoena notifying her of the date and time of Appellant’s harassment hearing, however, and so she did not appear to testify. As a result, the Philadelphia Municipal Court dismissed the case. J-S90032-16 Thereafter, acting pro se, Appellant brought the instant action in which he claimed, inter alia, that because the Municipal Court dismissed the harassment charges, he is entitled to defense attorney’s fees1 and the return of tips he gave to Ms. Kroll. On May 21, 2015, following a hearing, the Municipal Court entered judgment in favor of Appellees. The trial court summarized the further relevant procedural posture of this matter as follows: On June 19, 2015, [Appellant] filed an appeal to [the trial court] from the Municipal Court judgment entered in favor of [Sugarhouse Casino, Alexis Kroll, Wendy Hamilton, and Toni Dilacqua (collectively “Appellees”)] and subsequently filed a Complaint on July 17, 2015. On August 6, 2015, [Appellees] filed Preliminary Objections to the Complaint, which [the trial court] sustained without prejudice for [Appellant] to file a properly pleaded Amended Complaint. On October 16, 2015, [Appellant] filed an Amended Complaint to which [Appellees] filed Preliminary Objections on November 9, 2015. On [2] December 7, 2015, [the trial court] sustained [Appellees’] Preliminary Objections and dismissed the amended Complaint with prejudice. On January 21, 2016, [Appellant] filed an untimely Motion for Reconsideration[,] which this [c]ourt denied on January 22, 2016. On January 26, 2016, [Appellant] filed an ____________________________________________ 1 Appellant was represented by counsel during the prosecution of the harassment charges. He claims $3,500.00 of attorney’s fees. 2 The trial court’s order sustaining Appellees’ Preliminary Objections and dismissing the amended complaint is actually dated December 4, 2015. However, the prothonotary docketed the order and provided Appellant with notice on December 7, 2015. Accordingly, we view December 7, 2015 as the operative date of the motion. See Pa.R.C.P. 236 -2- J-S90032-16 untimely Notice of Appeal to the Superior Court.[3] On January 25, 2016, [Appellant] filed [the instant nunc pro tunc motion], to which [Appellees] filed their opposition on February 16, 2016, and [the trial court] denied the motion on February 19, 2016. [4] On March 22, 2016, [Appellant] filed [a] Notice of Appeal to the Superior Court.[5] Trial Court Pa.R.A.P. 1925(a) Opinion, filed May 20, 2016 (“1925(a) Opinion”), at pp. 1-2 (internal footnotes omitted). Appellant raises the following two issues for our review: 1. WHETHER, the Trial Court erred and abused its discretion denying Appellant’s (substituted) amalgamated motion for nunc pro tunc relief to appeal the order entered on December 8, 2015, and motion for nunc pro tunc order despite supporting evidence(s) showing cause for delayed appeal for about 18 days, as well as the trial Court’s failure to do the following: ____________________________________________ 3 This Court addressed Appellant’s appeal from the December 7, 2015 order sustaining Appellees’ preliminary objections and dismissing Appellant’s amended complaint with prejudice at 394 EDA 2016. By dispositional order filed April 1, 2016, this Court quashed Appellant’s appeal as untimely. See Dispositional Order filed April 1, 2016, Osei v. Sugarhouse Casino, et al., 394 EDA 2016. 4 The trial court dated its order denying Appellant’s motion February 18, 2016. However, the prothonotary docketed the order and provided Appellant with notice on February 19, 2016. Accordingly, we view February 19, 2016 as the operative date of the motion. See Pa.R.C.P. 236. 5 The trial court described Appellant’s notice of appeal as “untimely.” 1925(a) Opinion, p. 2. We agreed and quashed Appellant’s appeal on December 2, 2016. See Osei v. Sugarhouse Casino, et al., 919 EDA 2016, unpublished memorandum filed December 2, 2016. However, we withdrew our memorandum quashing Appellant’s appeal on December 9, 2016, and now determine this matter on the merits. -3- J-S90032-16 (i) without allowing Appellant to reply to Appellees’ response against the nunc pro tunc motions demanding certain specifics; (ii) without holding any evidentiary hearing; (iii) without articulating any reason, explanation, grounds, analysis, findings of facts, and conclusions of law on the face of both the trial Court’s order and section 1925 opinion denying the nunc pro tunc reliefs. 2. WHETHER, Strong Public Policy and the demands of justice requires this Court to look beyond form to set aside procedural rules and grant nunc pro tunc reliefs in the interests of justice for Appellant. Appellant’s Corrected Brief,6 pp. 3-4 (verbatim). Appellant’s claims challenge the trial court’s denial of Appellant’s nunc pro tunc motion. In reviewing a trial court’s decision not to allow an appeal nunc pro tunc, we are mindful that [a]llowance of an appeal nunc pro tunc lies at the sound discretion of the [t]rial [j]udge. This Court will not reverse a trial court’s denial of a motion for leave to appeal nunc pro tunc unless there is an abuse of discretion. An abuse of discretion is not merely an error of judgment but is found where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will as shown by the evidence or the record. Fischer v. UPMC Nw., 34 A.3d 115, 120 (Pa.Super.2011) (internal quotations and citations omitted). ____________________________________________ 6 Appellant filed his original brief with this Court on September 9, 2016. On September 19, 2016, this Court granted Appellant’s request to correct his brief, struck Appellant’s original brief, and afforded Appellant until September 21, 2016 to timely file his corrected brief. Appellant filed his “Brief of Appellant (Corrected)” on September 22, 2016. -4- J-S90032-16 Our Supreme Court has characterized the purpose of nunc pro tunc restoration of appellate rights as follows: Allowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline. This Court has emphasized that the principle emerges that an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances. Generally, in civil cases, an appeal nunc pro tunc is granted only where there was fraud or a breakdown in the court’s operations through a default of its officers. Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cty., 746 A.2d 581, 584 (Pa.2000) (internal quotations and citations omitted). Our Supreme Court has held that nunc pro tunc relief may also be granted where an appellant proves that: (1) the appellant’s notice of appeal was filed late as a result of non-negligent circumstances, either as they relate to the appellant or the appellant’s counsel; (2) the appellant filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay. Criss v. Wise, 781 A.2d 1156, 1159 (Pa.2001). Here, Appellant claims that a non-negligent circumstance occasioned the late filing of his nunc pro tunc motion. See Appellant’s Corrected Brief, pp. 29-30. Additionally, Appellant claims a court officer misled him by informing him that weekends and holidays were not to be included in the calculation of the 30 days he had to appeal the trial court’s order denying his request to file his appeal nunc pro tunc. Id. at 38-41. Finally, Appellant claims a “breakdown in [c]ourt operations and litigation support facilities -5- J-S90032-16 during the holiday season” occasioned his failure to timely file his notice of appeal. Id. at 41. These arguments merit no relief. Initially, we find unconvincing Appellant’s claim that his grandmother’s death was a non-negligent circumstance upon which the trial court should have granted his nunc pro tunc motion. The record reveals Appellant’s grandmother passed away on or about September 15, 2015, and that her funeral services occurred in Ghana on November 14-15, 2015. The death of a family member nearly four months before the expiration of an appeal period and/or the occurrence of funerary rituals completed nearly two months prior to the expiration of an appeal period does not represent a non- negligent circumstance that excuses such a late filing, Appellant’s unspecified “temporary neuropsychological issues” notwithstanding. Next, Appellant claims that he improperly calculated the time period7 to timely file his notice of appeal based on the incorrect advice of an unidentified “clerk” of an unspecified court provided over the telephone regarding the 2015 Municipal Court appeal of this matter to the Court of Common Pleas. See Appellant’s Corrected Brief, p. 38; Plaintiff’s Memo of Law in Support of Nunc Pro Tunc Reliefs [sic], etc., RR. 1466a. While Appellant admits he did not consult the Pennsylvania Rules of Appellate ____________________________________________ 7 Would-be appellants must file a notice of appeal within 30 days from the date of the challenged order. Pa.R.A.P. 903. In this matter, Appellant’s 30 days expired on January 6, 2016. -6- J-S90032-16 Procedure to ascertain the correct appeals period,8 Appellant claims a “judicial officer” informed him that the proper calculation of the 30 day time period to appeal excluded all the intervening weekends and holidays. See id. Although this Court has previously allowed untimely appeals where an appellant received improper advice from the trial court, Appellant’s undocumented and unverifiable claim that he received erroneous advice from an unidentified employee of a unspecified court regarding unrelated lower court appeal procedures fails to persuade this Court that the trial court erred in refusing to grant nunc pro tunc relief. Compare Commonwealth v. Anwyll, 482 A.2d 656, 657 (Pa.Super.1984) (refusing to dismiss untimely appeal where trial court record reflected that the court purported to extend 30-day period). Additionally, that the time Appellant alleges he excluded as a result of the alleged conversation he had with a clerk of a Pennsylvania court approximately and conveniently lines up with the amount of time by which ____________________________________________ 8 We find wholly unconvincing Appellant’s argument that, as a pro se litigant, he should be held to a lesser standard of legal knowledge than a licensed attorney. See Appellant’s Corrected Brief, pp. 39-40. Pennsylvania courts have long held that those choosing to proceed in self-representation do so at their own peril. See Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.2005) (“any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing”). -7- J-S90032-16 Appellant untimely filed his nunc pro tunc motion fails to convince this Court of the veracity of Appellant’s claim of misinformation.9 Finally, Appellant’s claim that the holiday season occasioned his failure to timely file his notice of appeal does not afford Appellant relief. See Appellant’s Corrected Brief, p. 41. Simply put, we find unconvincing Appellant’s claim that “the intervening ephemeral holiday season at the time i.e. Christmas Day, New Year’s Day, and MLK Day . . . presented a ‘breakdown in the operations of the [c]ourt’ affecting litigation support for pro se [Appellant] also because of the lack of access to litigation support facilities including the research libraries of the [c]ourts.” Id. While Pennsylvania’s courts, and their attendant support services, were, in fact, closed on Christmas and New Year’s Day,10 these annual closures were predictable, known, and certainly did not prevent Appellant from employing available court resources on any other days during Appellant’s appeal period. ____________________________________________ 9 Further reducing the credibility of Appellant’s claims is that, despite allegedly being informed of his improper appeal period calculation on January 14, 2016, Appellant waited an additional 8 days to file his nunc pro tunc motion on January 22, 2016. 10 We note that Martin Luther King, Jr. Day, Monday, January 18, 2016, occurred after both the January 6, 2016 deadline for timely filing a notice of appeal in this matter and Appellant’s January 14, 2016 alleged conversation with the trial court wherein he learned of his time period calculation error. -8- J-S90032-16 For the above reasons, we do not find the trial court abused its discretion in denying Appellant’s nunc pro tunc motion. Accordingly, we affirm the order of the trial court. Order affirmed. Appellant’s Application for Stay and Motion for Vacatur, both filed December 5, 2016, are denied as moot. Judge Ott joins the Memorandum. Judge Solano concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/22/2016 -9- 

14 P.3d 114 (2000) 2000 UT App 320 STATE of Utah, Plaintiff and Appellee, v. Michael Trevor MARTINEZ, Defendant and Appellant. No. 990568-CA. Court of Appeals of Utah. November 16, 2000. *115 Joan C. Watt, Lynn R. Brown, and Stephen W. Howard, Salt Lake Legal Defender Association, Salt Lake City, for Appellant. Jan Graham, Attorney General and Joanne C. Slotnik, Assistant Attorney General, Salt Lake City, for Appellee. Before Judges GREENWOOD, BILLINGS, and DAVIS. OPINION BILLINGS, Judge: ¶ 1 Michael Martinez (Defendant) appeals his conviction for unlawful sexual activity with a minor in violation of Utah Code Ann. § 76-5-401, arguing the trial court erred by ruling that unlawful sexual activity with a minor is a strict liability crime. We affirm. BACKGROUND ¶ 2 Nineteen-year-old Defendant had sexual intercourse with a fifteen-year-old girl. Defendant was charged with one count of rape, in violation of Utah Code Ann. § 76-5-402 (1999), and in the alternative, with one count of unlawful sexual activity with a minor, in violation of Utah Code Ann. § 76-5-401(2)(a) (1999).[1] Defendant filed a motion in limine seeking a determination that unlawful sexual activity with a minor is not a strict liability crime and requesting permission to introduce evidence that he was reasonably mistaken as to the age of the victim. ¶ 3 The trial court denied the motion, ruling unlawful sexual activity with a minor is a strict liability crime, and Defendant was not entitled to produce evidence that he mistook the victim's age. Defendant subsequently entered a conditional guilty plea to unlawful sexual activity with a minor. Defendant now appeals the trial court's ruling that unlawful sexual activity with a child is a strict liability crime. ISSUES AND STANDARD OF REVIEW ¶ 4 Whether unlawful sexual activity with a minor is a strict liability crime is a question of statutory interpretation which "we review for correctness and give no deference to the conclusions of the trial court." Adkins v. Uncle Bart's, Inc., 2000 UT 14,- ¶ 11, 1 P.3d 528; see also Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997) (stating that "matters of statutory construction are questions of law that are reviewed for correctness"). ¶ 5 If we conclude that unlawful sexual activity with a minor imposes strict liability, we must determine whether eliminating a culpable mental state as to the victim's age violates Defendant's federal due process rights. "A challenge to the constitutionality of a statute presents a question of law, which we review for correctness, according no deference to the trial court's ruling." Provo *116 City v. Whatcott, 2000 UT App 86,¶ 5, 1 P.3d 1113. ANALYSIS Strict Liability Under Section 76-5-401 ¶ 6 Defendant argues the trial court erred in ruling that section 76-5-401 imposes strict liability. Defendant asserts the State must prove that he had the necessary criminal intent before it can convict him of committing a crime. Because section 76-5-401[2] does not specify the culpable mental state required to convict a defendant of unlawful sexual activity with a minor, section 76-2-102 supplies the required mental state. Under section 76-2-102, a crime requires a mental state of at least recklessness unless this crime is one of strict liability. See Utah Code Ann. § 76-2-102 (1999). A crime is one of strict liability when "the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Id. Thus, we must determine whether Utah's criminal code clearly indicates a legislative purpose to impose strict liability for unlawful sexual activity with a minor. ¶ 7 "It is `a fundamental rule of statutory interpretation . . . that a statute "be looked at in its entirety and in accordance with the purpose which was sought to be accomplished."'" W.C.P. v. State, 1999 UT App 35,¶ 8, 974 P.2d 302, cert. denied, 984 P.2d 1023 (Utah 1999) (citations omitted). We conclude that the legislature intended a violation of section 76-5-401 to be a strict liability crime. ¶ 8 The plain language of Utah's criminal code explicitly precludes the defense of mistake of fact regarding the victim's age in crimes involving sexual acts against children: It is not a defense to the crime of unlawful sexual activity with a minor, a violation of Section 76-5-401, . . . that the actor mistakenly believed the victim to be 16 years of age or older at the time of the alleged offense or was unaware of the victim's true age. Utah Code Ann. § 76-2-304.5(2) (1999). The clear language of this section supports the conclusion that the legislature intended to render a defendant's state of mind regarding the age of the victim irrelevant. Thus, the element of the victim's age under section 76-5-401 is one of strict liability.[3] ¶ 9 Defendant acknowledges he may not raise mistake of age as an affirmative defense, but argues a mens rea is nonetheless an element of unlawful sexual activity with a minor that the State must prove. Defendant first argues that the burden of proof differs between a mens rea requirement *117 and an affirmative defense. Contrary to Defendant's assertion, "[i]t is fundamental that the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense once the defense is put into issue." State v. Hill, 727 P.2d 221, 222 (Utah 1986); see also Utah Code Ann. §§ 76-1-501(1), 502(2)(b) (1999). ¶ 10 Applying this principle to section 76-5-401, it is clear that the burden of proving the mens rea for unlawful sexual activity with a minor is precisely the same as the burden of disproving the affirmative defense of mistake of age. That is, proof that Defendant knew or was aware of the risk that his partner was under sixteen (Defendant's proposed mens rea requirement) is no more or less than proof that Defendant did not mistakenly believe his partner was sixteen or was unaware of the risk that his partner was under sixteen. Thus, to require the State to prove a mens rea is to require the State to disprove mistake of fact, contrary to section 76-2-304.5(2). ¶ 11 Defendant further argues that mens rea differs from an affirmative defense in that the former is based on objective criteria whereas the latter is based on subjective criteria. Defendant quotes our supreme court's opinion in State v. Elton, 680 P.2d 727 (Utah 1984): There is no inconsistency in requiring a mens rea of criminal negligence as to age and an affirmative defense of mistake of fact as to age. The mens rea requirement may be based on objective criteria, while the ignorance or mistake of fact defense bears upon the subjective state of mind of the defendant. Id. at 730 (emphasis added).[4] Defendant argues that Elton and section 76-2-304.5 establish a sort of evidentiary rule permitting the State to present objective evidence bearing on the mens rea, such as the victim's appearance, demeanor, and statements to Defendant, but prohibiting Defendant from presenting evidence of his contemporaneous subjective opinion of the victim's age. We disagree. ¶ 12 Defendant misunderstands the Elton court's reference to subjective and objective criteria. That comment does not refer to the type of evidence that the parties may present, i.e., objective facts versus subjective opinions. Rather, it refers to whether the defendant's mental state is to be judged by what the defendant was actually aware of-a subjective test—or what the defendant ought to have been aware of-an objective test.[5] Because the Elton court held that the defendant could be convicted for criminal negligence, the mens rea could be based on objective criteria: what the defendant ought to have been aware of. See id. at 729-30. Neither Elton nor section 76-2-304.5 establishes any evidentiary rule, by implication or otherwise.[6] ¶ 13 Defendant finally argues that the Utah Supreme Court has previously held that section 76-5-401 does not impose strict liability. See State v. Elton, 680 P.2d 727, 729 (Utah 1984). Although the Elton court stated that "§ 76-5-401 . . . does not clearly indicate `a legislative purpose to impose strict *118 liability,'" id.,[7] it recognized that its construction of section 76-5-401 "may have only limited significance, as the Legislature has amended the Utah Criminal Code in 1983 to disallow mistake of fact as to age as a defense to the crime of unlawful sexual [activity with a minor]." Elton, 680 P.2d at 732 n. 8. Thus, the Elton court construed a criminal code substantially different from that under which Defendant was convicted. Accord W.C.P., 1999 UT App 35 at ¶ 10 n. 2, 974 P.2d 302.[8] ¶ 14 In concluding section 76-2-304.5(2) imposes strict liability, we note that we have previously held that nearly identical parallel language in section 76-2-304.5(1) indicates a legislative intent to impose strict liability for sexual acts against children under fourteen.[9]See W.C.P., 1999 UT App 35 at ¶¶ 6-10, 974 P.2d 302. We observed that by "expressly remov[ing] mistake as to age as a defense," "the criminal code's treatment of this issue evinces a clear legislative intent to impose strict liability." Id. at ¶ 10. Notably, no such provision precludes a mistake of fact defense when the alleged victim is a minor of sixteen or seventeen. ¶ 15 Finally, we note that a majority of jurisdictions impose strict liability for sexual offenses against fourteen- and fifteen-year olds under statutes similar to Utah's. See Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 508 (1997).[10] ¶ 16 We conclude that section 76-5-401 imposes strict liability on a defendant who engages in sexual activity with a fourteen- or fifteen-year-old victim. The statutory scheme in its entirety reflects a legislative intent to protect minors from sexual exploitation by older individuals. Thus, the State need not prove that Defendant had a mens rea of at least recklessness regarding the age of the victim. Rather, the State's burden is met by proving that defendant had sex with the victim and that the victim was fourteen or fifteen years old at the time. Constitutionality of Section 76-5-401 ¶ 17 Defendant next argues that if section 76-5-401 imposes strict liability, his constitutional due process rights have been violated by not requiring a mens rea as to the victim's age as an element of the crime. We disagree. *119 ¶ 18 We are persuaded by the reasoning of a decision from the United States Court of Appeals for the Tenth Circuit which held that the absence of a mens rea in a federal statutory rape statute did not render the statute unconstitutional. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir. 1991). ¶ 19 In Ransom, the defendant was charged with having sexual intercourse with a girl under the age of twelve, in violation of 18 U.S.C. § 2241(c). See id. at 776. The defendant moved the trial court to allow him to raise the defense of mistake of fact regarding the victim's age. See id. After the court denied his motion, the defendant entered a conditional guilty plea. See id. He appealed both the denial of his pre-trial motion and his conviction, arguing that he was deprived of his federal due process rights because he was not allowed to assert the affirmative defense of reasonable mistake of fact regarding the victim's age. See id. ¶ 20 The court in Ransom reasoned that "[t]he Supreme Court has recognized that the legislature's authority to define an offense includes the power `to exclude elements of knowledge and diligence from its definition.'" Id. (quoting Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957)). Therefore, [i]n order to show that the exercise of [the legislature's] power is inconsistent with due process, appellant must demonstrate that the practice adopted by the legislature "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." That is not the case here. The history of the offense of statutory rape indicates that from ancient times the law has afforded special protection to those deemed too young to understand the consequences of their actions. Ransom, 942 F.2d at 777 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). ¶ 21 Defendant concedes that states have historically imposed strict criminal liability for sexual activity with children, but takes issue with the age at which our legislature has drawn the line for imposing strict liability. Defendant insists there is a fundamental distinction between children thirteen years old and children fourteen years old for constitutional purposes. Although imposition of strict liability may at some point run afoul of the Constitution, we cannot say, as Defendant argues, that Utah's statutory scheme for protecting minors from sexual encounters lacks any acceptable rationale for imposing strict liability. ¶ 22 Utah's criminal laws protecting minors from sexual encounters divides minors into three age groups and afford greater protection for progressively younger minors in three ways. First, the class of persons subject to felony prosecution expands as the age of the minor decreases.[11] Second, sexual activity with the youngest group is penalized most severely.[12] Third, mistake as to the age of the minor is a defense if the minor is sixteen or seventeen, but not if the minor is under sixteen. See Utah Code Ann. § 76-2-304.5(1), (2) (1999). ¶ 23 This statutory scheme reflects our legislature's careful consideration of the level of protection required for minors of different ages. We simply cannot say that our legislature's determination to preclude the mistake of age defense for sexual activity with a minor fourteen or fifteen is so arbitrary as to run afoul of the Constitution. Like the statute at issue in Ransom, section 76-5-401 offends no deeply-rooted and fundamental *120 tradition of due process. Children have historically received special protection from sexual contact with adults. See Morissette v. United States, 342 U.S. 246, 251 n. 8, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952) (recognizing that statutory rape has historically not required mens rea regarding element of victim's age); see also Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499 (1997) (stating that "[p]rior to 1964, it was the universally accepted rule in the United States that a defendant's mistaken belief as to the age of a victim was not a defense to a charge of statutory rape"). ¶ 24 To satisfy substantive due process, a statute must rationally further a legitimate governmental interest. See Ransom, 942 F.2d at 777. The Ransom court concluded: the statute rationally furthers a legitimate governmental interest. It protects children from sexual abuse by placing the risk of mistake as to a child's age on an older, more mature person who chooses to engage in sexual activity with one who may be young enough to fall within the statute's purview. Id. at 777 (citations omitted). Our state legislature likewise has a legitimate interest in protecting the health and safety of our children. We therefore conclude that section 76-5-401 does not violate Defendant's constitutional due process rights. CONCLUSION ¶ 25 We conclude section 76-5-401 imposes strict liability for sexual activity with a fifteen-year old. We also conclude Defendant's federal due process rights are not violated by imposing strict liability under section 76-5-401. We therefore affirm Defendant's conviction. ¶ 26 I CONCUR: PAMELA T. GREENWOOD, Presiding Judge. DAVIS, Judge (dissenting): ¶ 27 I dissent from the majority opinion. It is my view that Utah Code Ann. § 76-5-401 (1999) does not establish a strict liability offense; therefore, I would reverse the trial court's ruling and remand the case to allow the defendant to withdraw his conditional plea. ¶ 28 The basic principle of criminal liability in our system is expressed by the maxim, actus not facit reum nisi mens sit rea—an act does not make one guilty unless one's mind is guilty. The Supreme Court of the United States has acknowledged that legislatures may eliminate the mens rea element from certain crimes. However, the Court has made the following doctrinal observations: "[W]e must construe [a] statute in light of the background rules of the common law . . . in which the requirement of some mens rea for a crime is firmly embedded." Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994). "`[T]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.'" United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978) (citation omitted). The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952). "There can be no doubt that this established concept has influenced our interpretation of criminal statutes. . . . Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored. . . ." Staples, 511 U.S. at 605-06, 114 S.Ct. 1793 (emphasis added); see also Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985); cf. United States Gypsum, 438 U.S. at 438, 98 S.Ct. 2864. ¶ 29 Courts have generally looked to the following factors to determine whether a statute should be interpreted as imposing strict liability: (1) the statute's legislative history, title, or context; (2) other statutes that may provide guidance as to whether *121 strict liability was intended; (3) the severity of the punishment—the greater the possible punishment, the more likely mens rea is required; (4) the seriousness of the harm to the public which may be expected to follow from the forbidden conduct; (5) the defendant's opportunity to ascertain the true facts—the harder to find out the these facts, the more likely the Legislature meant to require fault in not knowing; (6) the difficulty prosecuting officials would have in proving a mental state for this type of crime; and (7) the number of prosecutions expected—the greater the number, the more likely the legislature meant to impose strict liability. See 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.8 (1986); see also Reese v. State, 106 N.M. 498, 745 P.2d 1146, 1150-51 (1987) (Ransom, J., concurring); State v. Stoehr, 134 Wis.2d 66, 396 N.W.2d 177, 180 (1986); cf. State v. Semakula, 88 Wash.App. 719, 946 P.2d 795, 797-98 (1997). ¶ 30 The majority concludes that the crime of unlawful sexual activity with a child is a strict liability offense because Utah Code Ann. § 76-2-304.5 (1999) removes the affirmative defense of mistake as to age as a defense to the crime. The majority supports this conclusion by reference to this court's ruling in W.C.P. v. State, 1999 UT App 35, 974 P.2d 302. In light of the traditional rule that strict liability crimes are disfavored— especially when punishment is great—together with an analysis of the aforesaid factors, our statutory scheme and caselaw, I do not interpret section 76-5-401 as a strict liability offense for the following reasons. ¶ 31 Analyzing the first factor—the legislative history of the statute, its title, and its context—I do not find support for the proposition that the Legislature intended section 76-5-401 to describe a strict liability offense. The State claims that the legislative history of section 76-5-401 supports the argument that the Legislature intended a strict liability offense. However, the legislative statements cited by the State merely shed light upon the 1998 amendments to section 76-5-401.[1] Furthermore, neither the title nor the context[2] of section 76-5-401 lends support to the proposition that unlawful sexual activity with a minor should be construed as a strict liability offense. ¶ 32 Additionally, the plain language of Utah Code Ann. § 76-2-102 (1999), the statute pertaining to strict liability, does not support the majority's view that section 76-5-401 is a strict liability offense. Specifically, section 76-2-102 states that "[a]n offense shall involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Utah Code Ann. § 76-2-102 (1999) (emphasis added). Here, the statute defining unlawful sexual activity with a minor, section 76-5-401, does not clearly indicate a legislative purpose to impose strict liability. Although section 76-5-401 is silent concerning mens rea, "silence on this point by itself does not necessarily suggest that [the legislature] intended to dispense with a conventional mens rea element. . . . `[T]he existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American jurisprudence.'" Staples, 511 U.S. at 605, 114 S.Ct. 1793 (quoting United States Gypsum, 438 U.S. at 436, 98 S.Ct. 2864). Also, the crime of unlawful sexual activity with a minor is a class B misdemeanor, rather than a third degree felony, if "the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred. . . ." Utah Code Ann. § 76-5-401(3) (1999). The Legislature's inclusion of a mitigating factor in the statute defining the offense indicates that the Legislature considered the culpability of the defendant a relevant factor with respect to the seriousness of the crime. Although mitigating *122 factors may or may not specifically focus on a defendant's mental state, it is apparent that under section 76-5-401, the Legislature has determined that a defendant greater than four years older than the minor is more culpable, thereby implicating that defendant's mental state. To the extent that mitigation based on affirmative evidence of age differential implicates a defendant's mental state, such a provision is inconsistent with the concept of strict liability.[3] Consequently, section 76-5-401 does not clearly indicate a legislative purpose to impose criminal responsibility without requiring proof of any culpable mental state. ¶ 33 The second factor used by courts to determine whether a statute should be interpreted as a strict liability offense—whether other statutes and case law support strict liability—also cuts against the majority's position. Specifically, I do not find our decision in W.C.P. v. State, 1999 UT App. 35, 974 P.2d 302, as supporting the conclusion that section 76-5-401 is a strict liability offense. It is true that W.C.P. relied, in part, on the same section that the majority considers dispositive.[4] However, section 76-2-304.5 was only briefly alluded to as one of several statutory provisions that persuaded this court to find that the crime of rape of a child was a strict liability offense. See id. at ¶¶ 9-10. Specifically, W.C.P. placed great emphasis on the fact that a child under the age of fourteen cannot, as a matter of law, consent to sexual intercourse. See id. at ¶ 9. W.C.P. also focused on several other statutes that provide added protections for children under fourteen as well as statutes that relax the rules of evidence as they pertain to child victims of sexual abuse who are under fourteen years old. See id. at ¶ 10. Indeed, the overall focus of W.C.P. supports the notion that unlawful sexual activity with a minor fourteen years of age or older is not a strict liability offense, while rape of a child under fourteen years old is a strict liability offense. ¶ 34 I do not agree with the proposition that this court should look to other sections in the criminal code to determine whether the Legislature intended a crime to be one of strict liability because the statute governing strict liability offenses in this jurisdiction explicitly states that the statute defining the crime must clearly indicate a legislative purpose to impose strict liability. See Utah Code Ann. § 76-2-304.5 (1999). However, looking at the criminal code as a whole, as this court did in W.C.P., I am not persuaded that the crime of unlawful sexual activity with a minor is a strict liability offense. Here, the defendant was charged with the crime of unlawful sexual activity with a minor, which defines minor as "a person who is 14 years of age or older, but younger than 16 years of age. . . ." Utah Code Ann. § 76-5-401(1) (1999). In contrast, the crime at issue in W.C.P., rape of a child, states that "[a] person commits rape of a child when the person has sexual intercourse with a child who is under the age of 14." Utah Code Ann. § 76-5-402.1(1) (1999) (emphasis added). All the statutes that this court found as supportive of a clear legislative intent to impose strict liability, except the statute eliminating mistake of age as an affirmative defense, provided special protection to minors under fourteen years of age. As stated above, section 76-5-401 prohibits sexual activity with a person fourteen years of age and older but under sixteen years of age. Consequently, all but one of the statutes that this court relied upon in determining that the crime of rape of a child is a strict liability offense are inapplicable to the present case. In fact, because the Legislature has chosen the age of fourteen as a cutoff for several statutory protections, it is reasonable to conclude that the Legislature considers minors fourteen years or older no longer in need of the same level of protection that the State provides to children under fourteen. This conclusion is bolstered by the fact that the Legislature considers minors fourteen years of age or older to have reached a level of maturity at which they may be held criminally responsible for their conduct. See Utah Code Ann. § 76-2-301 (1999). Therefore, *123 unlike the crime of rape of a child, it is not clear that the Legislature intended the crime of unlawful sexual activity with a minor to be a strict liability offense.[5] ¶ 35 The third factor, the severity of the punishment, is perhaps the most compelling factor used by courts to determine whether a statute should be interpreted as a strict liability offense. Here the severity of the punishment cuts against the proposition that the Legislature intended that section 76-5-401 describe a strict liability offense because the crime of unlawful sexual activity with a minor involves harsh penalties. If the penalty for an offense is great, it is less likely that the Legislature intended to create a strict liability offense. See People v. Casey, 41 Cal. App.4th Supp. 1, 6-7, 49 Cal.Rptr.2d 372 (Cal.App. Dep't Super.Ct.1995) ("[I]f the penalties prescribed are felony penalties, then it is more likely that criminal intent is an essential element of the offense."); State v. Eastman, 81 Hawai'i 131, 913 P.2d 57, 66 (1996) ("`[A]bsolute or strict liability in the penal law is indefensible in principle if conviction results in the possibility of imprisonment and condemnation.'") (citation omitted); People v. Avery, 277 Ill.App.3d 824, 214 Ill.Dec. 507, 661 N.E.2d 361, 365 (1995) ("`[W]here the punishment is great, it is less likely that the Legislature intended to create an absolute liability offense.'") (citation omitted). See also 21 Am.Jur.2d Criminal Law § 148 (1999). In addition, the Model Penal Code, drafted by the American Law Institute, mandates that strict liability should not apply to crimes in which a prison sentence may be imposed. See Model Penal Code § 2.05 (1985). Specifically, the commentary to section 2.05 states: This section makes a frontal attack on absolute or strict liability in the penal law, whenever the offense carries the possibility of criminal conviction, for which a sentence of probation or imprisonment may be imposed. . . . The liabilities involved are indefensible, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of probation or imprisonment may be imposed. Id. cmt. 1. ¶ 36 The severity of the punishment for violating section 76-5-401 strongly weighs against finding that it is a strict liability offense. Unless the defendant can put on evidence mitigating the level of offense, the violation of this statute is a third degree felony that carries severe direct and collateral consequences. A person who has been convicted of unlawful sexual activity with a minor may be sentenced to imprisonment for up to five years in the Utah State Prison. See Utah Code Ann. § 76-3-203(3) (1999). In addition to becoming a convicted felon, with attendant disenfranchisement,[6] and condemnation from family, friends, and society as a whole, a convicted defendant would also be required to register with the Department of Corrections as a sexual offender. See Utah Code Ann. § 77-27-21.5(8) (1999). This registration must be renewed annually for ten years and would presumably prevent the defendant from obtaining employment in a wide variety of fields, thereby limiting any rehabilitative efforts. See id. Due to the high level of punishment associated with the crime of unlawful sexual activity with a minor, I cannot find a clear legislative purpose to impose strict liability. ¶ 37 The fourth factor, whether unlawful sexual activity with a minor creates serious harm to the public, is contextual and does not necessarily indicate a legislative intent to impose strict liability. This is not to say that unlawful sexual activity with a minor may not be seriously harmful in certain cases. On the contrary, I consider the crime to be of such a nature that while it could be seriously harmful to a minor or the public in one case, it may be far less harmful in another case. Due to the factually intensive inquiries that need to be conducted in determining the culpability of a defendant accused of unlawful sexual activity with a minor, I do not find that the crime is one that is so absolutely *124 harmful that the Legislature meant to impose liability without regard to fault. ¶ 38 The fifth factor courts look at in determining whether the Legislature intended to create a strict liability offense is the defendant's opportunity to ascertain the true facts. "The harder to find out the truth, the more likely the legislature meant to require fault in not knowing; the easier to ascertain the truth, the more likely failure to know is no excuse." 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.8 (1986). This factor is particularly fact intensive and can involve, among other things, the true age of the minor, his or her appearance, level of maturity, representations made by the minor and the circumstances surrounding the relationship. These matters can be addressed without regard to a defendant's subjective belief and should be determined by a jury or court as fact finder. Thus, it is unlikely that the Legislature meant section 76-5-401 to describe a strict liability offense because there may be numerous occasions when a reasonable person would be unable to ascertain the minor's true age. ¶ 39 The sixth factor in determining whether the Legislature intended section 76-5-401 to be a strict liability offense is the difficulty the prosecution would have in proving the mental state for this type of crime. Although the Legislature, in a separate section of the criminal code, declared that the actor's mistaken belief respecting the age of the minor was not a defense to unlawful sexual activity with a minor, I do not agree with the assertion that to require the State to prove a mens rea is to allow the defendant, in rebuttal, to assert a mistake as to age as an affirmative defense. ¶ 40 "Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge, or recklessness shall suffice to establish criminal responsibility." Utah Code Ann. § 76-2-102 (1999). In most cases like the present case, the Legislature's elimination of the affirmative defense of mistake as to age, see id. § 76-2-304.5 (1999), obviates the mental states of intentionally and knowingly as the basis for criminal responsibility. Therefore, the State need only show that a defendant acted recklessly. A person acts recklessly or maliciously when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Id. § 76-2-103(3) (1999). ¶ 41 A prosecution under section 76-5-401, requiring the State to prove that the defendant was criminally reckless as to the minor's age, would not allow the defendant to rebut evidence of recklessness by establishing the defendant's subjective belief as to the minor's age. Specifically, the State could prove that the defendant acted recklessly by introducing evidence regarding the minor's appearance at the time in question, the minor's statements, the setting in which defendant met the minor, and other evidence indicating that defendant was aware of a risk that he or she was involved with a minor under sixteen years of age. Perhaps most importantly, the jury or court as fact finder would have an opportunity to observe the minor. The defendant could then rebut by showing that his disregard of the risk did not constitute a gross deviation from the standard of care that an ordinary person would exercise, without regard to his mistaken belief, but on his or her own actions and whether an ordinary person would have exercised a greater degree of care. Even if the State's evidence otherwise opened up the issue of defendant's subjective belief, he could rebut without any reference thereto by objective evidence relative to the minor's age. Thus, depriving the defendant of the affirmative defense of his mistaken belief as to the minor's age does not convert an offense described in section 76-5-401 to a strict liability offense. ¶ 42 The final factor that courts look at in determining whether the Legislature intended to create a strict liability offense is the number of prosecutions expected-the greater the number, the more likely the Legislature *125 meant to impose strict liability. Because unlawful sexual activity with a minor is a consensual act[7] that presumably occurs under less than open circumstances, it is improbable that there will be a high number of prosecutions for this crime. Therefore, it is unlikely that the Legislature intended to make section 76-5-401 a strict liability offense as a way of easing the burden created by a very high number of prosecutions. ¶ 43 The existence of mens rea is the rule rather than the exception in American criminal jurisprudence, and courts should be extremely cautious when attempting to determine a clear legislative intent to create a strict liability offense, especially where the legislature has not done so. Therefore, in light of the above analyses and because the statute defining the offense does not indicate a clear legislative purpose to impose strict liability, I do not find that the Legislature intended section 76-5-401 to be a strict liability offense. Accordingly, I would reverse the trial court's conclusion that the crime of unlawful sexual activity with a minor is a strict liability offense and I would remand defendant's case so that he could withdraw his conditional guilty plea. NOTES [1] Under the facts of the present case, unlawful sexual activity with a minor is a lesser included offense to rape, the sole distinction being whether the victim consented. Compare Utah Code Ann. § 76-5-402 (1999) (rape statute including lack of consent as an element) with id. § 76-5-401(2)(a) (unlawful sexual activity with minor statute including no such requirement). [2] Section 76-5-401 states in relevant part: (1) For purposes of this section "minor" is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred. (2) A person commits unlawful sexual activity with a minor if, under circumstances not amounting to rape, in violation of Section 76-5-402, object rape, in violation of Section 76-5-402.2, forcible sodomy, in violation of Section 76-5-403, or aggravated sexual assault, in violation of Section 76-5-405, the actor: (a) has sexual intercourse with the minor . . . (3) A violation of Subsection (2) is a third degree felony unless the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, in which case it is a class B misdemeanor. Two days after Defendant committed the crime, an amendment to subsection three became effective, making a violation of section 76-5-401 a third degree felony if the actor was four or more years older than the victim at the time of the activity. Previously, section 76-5-401 was a third degree felony if the actor was three or more years older than the victim. Because this change is irrelevant to our analysis of whether section 76-5-401 imposes strict liability, we cite to the most recent version of the statute for convenience. [3] Our able colleague in dissent chooses to make a thorough and persuasive argument for why we should determine the element of the victim's age is not one of strict liability. We do not feel free to do so. It is our view that the plain statutory language in our criminal code, see Utah Code Ann. § 76-2-304.5(2) (1999), precedent from this court, see W.C.P. v. State, 1999 UT App 35,¶¶ 6-10, 974 P.2d 302, and dicta from our supreme court, see State v. Elton, 680 P.2d 727, 732 n. 8 (Utah 1984), mandate this result. [4] The Elton court seemed to be struggling with a perceived inconsistency between imposing liability for criminal negligence and permitting an affirmative defense of mistake of fact. See Elton, 680 P.2d at 730. As we have shown, the inconsistency lies instead where the affirmative defense is prohibited but the mens rea is required. [5] Liability for criminal negligence attaches where the defendant "ought to be aware of a substantial and unjustifiable risk," Utah Code Ann. § 76-2-103(4) (1999), and thus may be based on objective criteria. By contrast, liability for criminal recklessness, knowledge, and intent require actual knowledge or awareness, see id. §§ 76-2-103(1) to -103(3), and thus turn on the defendant's subjective mental state; see State v. Singer, 815 P.2d 1303, 1307-09 (Utah Ct.App. 1991) (explaining difference between objective standard of criminal negligence and subjective standard of recklessness). [6] Indeed, such a rule would be anathema to our system of justice. If proof of an element of a crime is required, then the defense must be permitted to meet the State's evidence with any relevant admissible evidence. Defendant's testimony as to his subjective opinions would clearly be relevant and admissible. The only exception is where strict liability eliminates the mens rea requirement as to an element of a crime, rendering evidence bearing on Defendant's mental state irrelevant to that element. [7] At the time of the Elton decision, Section 76-5-401 stated that "(1) [a] person commits unlawful sexual intercourse if that person has sexual intercourse with a person, not that person's spouse, who is under sixteen years of age. (2) Unlawful sexual intercourse is a felony of the third degree except when at the time of intercourse the actor is no more than three years older than the victim, in which case it is a class B misdemeanor. Evidence that the actor was not more than three years older than the victim at the time of the intercourse shall be raised by the defendant." Utah Code Ann. § 76-5-401 (1953) (amended 1998). [8] We also note that our legislature has relaxed the standard for determining whether a crime should be interpreted as one of strict liability. Previously, a crime was considered strict liability "only when a statute defining the offense clearly indicate[d] a legislative purpose to impose strict liability for the conduct by use of the phrase `strict liability' or other terms of similar import." Utah Code Ann. § 76-2-102 (1982) (emphasis added). However, this statute has since been amended, and now requires only that "the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the statute without requiring proof of any culpable mental state." Utah Code Ann. § 76-2-102 (1999) (amended 1983). [9] Section 76-2-304.5(1) states in relevant part that [i]t is not a defense to the crime of child kidnaping, . . . rape of a child, . . . object rape of a child, . . . sodomy upon a child, . . . sexual abuse of a child, . . . aggravated sexual abuse of a child, . . . or an attempt to commit any of those offenses, that the actor mistakenly believed the victim to be 14 years of age or older at the time of the alleged offense or was unaware of the victim's true age. Utah Code Ann. § 76-2-304.5(1) (1999). [10] Jurisdictions imposing strict liability include Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Virginia, and Wisconsin. See Colin Campbell, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 46 A.L.R.5th 499, 510-13. [11] Consensual sexual activity with a minor sixteen or seventeen years old is a felony only if the older participant is at least ten years older than the minor. See Utah Code Ann. § 76-5-401.2 (1999). Consensual sexual activity with a minor fourteen or fifteen years old becomes a felony if the older participant is only four years older than the minor. See id. § 76-5-401. Felony liability for sexual activity with a child under fourteen does not depend on the age of the older participant. See id. § 76-5-402.1. [12] Sexual activity with a minor under fourteen is a first degree felony. See Utah Code Ann. § 76-5-402.1 (1999). Sexual activity with an older minor is a third degree felony or misdemeanor, depending on the age difference of the participants. See id. §§ 76-5-401(3), 76-5-401.2(3), 76-7-104. [1] These amendments focused on the type of prohibited sexual activity and the age difference required for a lower level of offense. [2] In fact, in looking at section 76-5-401 in the context of the chapter of the criminal code in which the crime is defined—Chapter 5, Offenses Against the Person—it is clear that almost all of the offenses described therein require some level of criminal intent. [3] If a crime is a strict liability offense, the defendant's age is irrelevant because the defendant's culpability is determined by the mere commission of the forbidden act. [4] Section 76-2-304.5 eliminates mistake as to the minor's age as a defense to both rape of a child and unlawful sexual activity with a minor. [5] It appears that strict liability offenses that pass constitutional muster almost invariably involve minors of very tender years suggesting a sort of presumptive level of culpability, i.e., the younger the minor, the less likelihood of a mistake as to age. [6] See Utah Const. art. IV, § 6. [7] If it were not consensual, the defendant would more appropriately be charged with rape under Utah Code Ann. § 76-5-402 (1999).

Filed 5/2/14 Marriage of Controulis and Hazard CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE In re the Marriage of STEPHEN CONTROULIS and JARI HAZARD. STEPHEN CONTROULIS, Respondent, v. A136260 JARI HAZARD, (Contra Costa County Appellant. Super. Ct. No. D99-01707) Jari Hazard (wife) appeals from an order filed on August 22, 2012, which, among other things, granted respondent Stephen Controulis’s motion to terminate spousal support, and denied her motion to increase spousal support and imposed discovery sanctions of $20,000 against her. Wife challenges the order on various grounds, none of which requires reversal. Accordingly, we affirm. FACTS 1 A. Background On April 6, 1999, after almost 14 years of marriage, Stephen Controulis (husband) filed a petition for dissolution of his marriage to wife. The parties had two children, who 1 We set forth only those facts as are necessary to resolve the issues raised on this appeal. The facts are taken from the record provided by wife, which consists of a 10- volume clerk’s transcript; all exhibits save two that were admitted at trial; and a partial reporter’s transcript of the trial proceedings on June 19 and 20, 2012. 1 were then four and seven years old. The court (Hon. Judith S. Craddick) entered a judgment of dissolution, status only, and awarded parties joint legal and physical custody of the children, whose primary residence would be with father and mother’s parenting time to be agreed to by the parties. On February 11, 2002, the court issued a permanent spousal support order, awarding wife the monthly sum of $4,975, based on the parties’ marital standard of living. Husband was ordered to pay spousal support effective January 1, 2002 and “until the remarriage of wife, the death of either party, or further order of the court.” The court also ruled: “No income is imputed to [wife] at this time; however, the law requires that upon making a spousal support order that the supported person is informed that it is the goal of this state that each party shall make reasonable good faith efforts to become self- supporting within a reasonable period of time. Generally, that period of time is one-half the length of the marriage. In this case, the duration of the marriage was 14 years. Therefore, the law contemplates that the person receiving spousal support shall make reasonable and good faith efforts to become self-supporting within 7 years. Failure to make reasonable efforts to become self-supporting may be one of the factors considered by this court as a basis for modifying or terminating support.” After the resolution of additional financial issues and husband’s request for a modification of the February 11, 2002, order, the court issued an order on December 20, 2002, confirming that husband was to pay permanent spousal support in the sum of $4,975 per month and that no income would be then imputed to wife. The court again admonished wife of her obligation to make reasonable efforts to become self-supporting within seven years, and reminded her that she could not wait “until the [seven] years is imminent” before she made such efforts to become self-supporting. B. Current Litigation On June 10, 2010, husband moved to terminate spousal support. In support of his request, husband asserted that wife had a bachelor’s degree in psychology (1982), a Master’s Degree in counseling (1985) and a Ph.D. in higher education administration (1993), and that since February 2002 she had made little or no effort to become self- 2 supporting despite the court’s admonitions. Husband further alleged that wife was capable of earning income equal to or exceeding spousal support (about $60,000 per year), and she had some income of her own and access to at least $100,000 in cash or liquid assets. Wife opposed termination of spousal support and made a motion seeking an increase in spousal support. She asserted that the original spousal support award never met the parties’ marital standard of living as it was insufficient to allow her to obtain reasonable health insurance, regular psychiatric care on the level necessitated by her psychiatric disorder, and housing for the children equal to that provided by husband. She further asserted that in the dissolution proceeding she had presented evidence that she had a psychiatric disorder that then rendered her totally disabled from part or full-time employment based on reports by her expert witnesses. Wife also submitted a letter from her then treating psychiatrist, Phyllis Cedars, M.D., who was prepared to testify to the specifics of wife’s psychiatric disability and inability to tolerate stress. Wife contended that despite her ongoing pathology, she had attempted numerous endeavors to make money with the goal of becoming self-supporting but she was unsuccessful, and she was never able to use her education to obtain employment because of her psychiatric disability. On June 19, 2012, the parties appeared for trial before Hon. Charles S. Treat. Husband was represented by counsel and wife appeared in propria persona. After denying wife’s request for a continuance, the court commenced the trial. The court informed the parties that it would consider both husband’s motion for termination of spousal support and wife’s motion to increase spousal support. The court also confirmed “that in this trial [wife] was entitled (and expected) to make her full and best case for not only the maintenance of support, but its increase.” After wife made her opening statement, the court took judicial notice of husband’s exhibits Nos. 1-10, and exhibits Nos. 1-8 were admitted into evidence. The court also admitted into evidence husband’s exhibits nos. 12-30, and 33-38. Husband testified in his case-in-chief and also presented the testimony of the following witnesses: wife, wife’s 3 now former psychiatrist Phyllis Cedars, M.D., husband’s psychiatric expert Stephen M. Raffle, M.D.,2 and husband’s accounting expert CPA Jeff A. Stegner.3 After husband rested, wife presented her case in chief. Wife testified in a narrative form regarding her retention of her former counsel, her attempts to respond to husband’s discovery requests, the reasons she thought her spousal support should be increased and why a termination of spousal support was not supported by the evidence. At the conclusion of wife’s case, husband’s counsel gave a closing argument. The court took the matter under submission in order to read some of the exhibits that had been admitted into evidence, including the report of a court-appointed expert Betty Kohlenberg.4 The court told the parties that it did not “intend to issue a detailed factual exposition,” but would issue “a brief statement [summarizing] . . . the reasons for [its] ruling.” The court filed a decision summarizing “the most important reasons” for terminating spousal support “in either direction, effective July 1, 2012,” and denying wife’s motion for an increase in spousal support. The court explained: “I am not finding that [wife] has in fact become self-supporting. Clearly she has not. I find that [wife] has 2 In his designation notice of his psychiatric expert, husband indicated the expert was willing to testify on the following issues: “[t]he nature and extent of any mental condition or disorders suffered by [wife],” “whether [wife] has been and/or continues to be disabled from employment as a result of such condition(s);” “whether and to what extent [wife’s] ability to seek and/or maintain employment is or has been impaired by reason of such condition(s);” “whether such condition(s) are likely to impair or disable [wife] from seeking or maintaining employment in the future;” “[t]he extent, if any, that [wife’s] ability to respond to legal discovery and/or to otherwise participate in the current legal proceedings is or has been impaired by reason of any mental condition or disorder she suffers.” Additionally, the expert’s testimony would include “a description of [his] examination and testing of [wife], and his impressions and diagnoses derived therefrom.” 3 In his designation notice of his accounting expert, husband indicated the expert had agreed to testify at trial and was “expected to testify about the annual earnings of [wife] from her eBay business, based on information produced by [wife] and by PayPal.” 4 Before trial, the court had appointed Betty Kohlenberg to examine, evaluate, and assess (1) wife’s ability to obtain employment, with or without additional training or education, (2) the availability of employment opportunities commensurate with wife’s abilities; and (3) wife’s earning capacity in such employment. 4 made virtually no efforts to become self-supporting since the judgment in this case. [Wife] acknowledges being warned several times by Judge Craddick, in 2000-01, that she had an obligation to become self-supporting, and that seven years was a presumptively reasonable time for her to do so. By her own candid testimony, however, [wife] took no serious steps at all to become self-supporting for many years. This was not laziness, forgetfulness, or procrastination. It was a conscious decision that she would not work or attempt to work, and an attitude that she refused to consider any career path that she was not ‘interested in.’ While she did open her EBay-based home business, she is quite clear that she never intended that as a means of self-support, but rather as a way of keeping herself occupied and making herself get out of the house. Not until the present motion was filed did she make even halting efforts at seeking real employment, and that only ineffectively. Her testimony and her actions speak quite clearly: Her intention (and, most likely, her expectation) have always been simply to live off [husband’s] spousal support for the rest of her life. She has succeeded in doing so for nearly the length of the marriage. [Wife] evinces no consciousness that she has any obligation to provide for herself. [¶] I am not as convinced as [husband] or Dr. Raffle are, that [wife] is reliably capable of working at a conventional job outside the home. It is true, I think, that the level of dysfunction [wife] displayed in court is situational – instigated by her extreme distress at the prospect of losing spousal support – and therefore not necessarily to be expected in all settings. Nevertheless, I believe she is dubiously employable at best, because of her abrasive and impulsive personality. . . . For present purposes, however, I accept that [wife’s] inability to work with others is something that she can’t help. [¶] But I believe that [wife], if she would make up her mind to try, is capable of doing a great deal more than she is doing to support herself through home-based self-employment or independent contractor work. I accept Dr. Raffle’s opinion that [wife] has intentionally and systematically tried to depict herself as more disabled than she really is, by attempting to cheat on Dr. Raffle’s tests. Her conduct of her EBay business evinces a capability for sustained, organized and successful enterprise, with attention to detail and orientation toward a goal. Further, I have read several examples of [wife’s] writing. She 5 is a talented writer, fully capable of well-organized, clearly expressed, and well-thought- out exposition of a nuanced set of ideas. Neither of these can be squared with the dysfunctional scatterbrain she pretends to be. I am not her career counselor, but I believe she can find ways of harnessing these talents that can work around her lack of interpersonal skills. [¶] Bluntly, there is a very good reason why [wife] has not succeeded in any such enterprise: because she has not only refrained from trying, but consciously rejected any prospect of trying. If there is any doubt about her ability to become self- supporting, she has intentionally created that doubt by her own actions and decisions. She cannot willfully refrain from trying to support herself, and consciously sabotage all efforts to show whether or not she could support herself – and then plead that she should remain on the spousal-support dole indefinitely because she is not supporting herself.” When neither party requested a formal statement of decision or made a motion for reconsideration or for a new trial, the court filed its “findings and order after hearing” on August 22, 2012. Wife now appeals. 5 DISCUSSION I. Issuance of a Gavron Warning in Initial Spousal Support Orders As noted, in the dissolution proceeding, the court issued orders on February 20, 2002 and December 20, 2002, which contained Gavron warnings (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712) (Gavron), admonishing wife that she was expected to make reasonable efforts to become self supporting within seven years of January 2002.6 Wife now argues the Gavron warnings were inadvisable because it was 5 We deem wife’s August 10, 2012, notice of appeal from the June 22, 2012, decision to be a premature notice of appeal from the August 22, 2012, order. (Cal. Rules of Court, rule 8.104(d)(2).) Also, on December 16, 2013 and again on February 27, 2014, husband has written to this court asking us not to schedule oral argument on certain dates. However, on June 3, 2013, this court sent oral argument waiver notices to both parties. Because no request for oral argument was timely made by either party, oral argument was deemed waived by this court on June 14, 2013. Consequently, we deny husband’s requests regarding the scheduling of oral argument as untimely. 6 After Gavron was decided, the Legislature enacted Family Code section 4330, which reads: “(a) In a judgment of dissolution of marriage or legal separation of the 6 unreasonable to expect her to become self-supporting in light of her severe psychological issues and extended absence from the work force. However, wife forfeited review of this issue by not appealing from the February and December 2002 orders. (See, e.g., In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412-413; In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50.) Even assuming those earlier orders were not appealable, as wife argues, we are not now in a position to address this issue because wife has not provided a complete record of the proceedings that formed the bases for the February and December 2002 orders. (See, e.g., Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [appellant’s failure to include hearing transcript foreclosed court’s review of claim of error].) parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320). [¶] (b) When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336 [presumption that marriage of 10 years or more, from date of marriage to the date of separation, is one of long duration], the court decides this warning is inadvisable.” Section 4320 provides, in relevant part, that in ordering spousal support, the court shall consider various circumstances including “[t]he goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.” (Id., subd. (l).) In this case, Judge Craddick apparently determined that notwithstanding the fact the parties had been married for almost 14 years at the time of their separation, a reasonable period of time for spousal support was seven years starting from January 2002, and that Gavron warnings were appropriate. 7 II. Denial of Wife’s Request for a Trial Continuance A. Relevant Facts On April 23, 2012, wife’s counsel filed a motion to withdraw and sought an ex parte order shortening time for the motion to be heard as trial was then set for June 19 and June 20, 2012. The basis for the relief was that the attorney-client relationship had broken down such that there was a conflict of interest. Wife opposed the motion, arguing that her counsel had decided to withdraw after wife refused to settle the matter. Wife asserted the proposed settlement was not in her best interest but was enticing to counsel who would be paid her attorney fees pursuant to settlement. On May 24, 2012, Judge Treat referred counsel’s motion to withdraw to another judge for an in camera hearing to “prevent any bias . . . at trial.” On the same day, after an in camera hearing, Hon. Trevor White granted counsel’s motion to withdraw. Within one week of the court’s decision on counsel’s motion to withdraw, wife, representing herself, filed two motions seeking pendente lite attorney fees and costs and an increase in spousal support. Wife explicitly stated that the trial was set for June 19 and 20, 2012, and, “I need to make this point: I do NOT want a continuance.” Instead, she sought $35,000 to hire an attorney to attempt to settle the matter. In the event the case did not settle, wife intended to represent herself, as she neither wanted nor could afford another attorney and she felt certain the outcome would be the same whether or not she had legal representation. Wife moved ex parte to advance the hearing date of her motion for pendente lite relief to a date before the start of the trial, which request was opposed by husband and ultimately denied by Judge Treat during the first week in June. At the beginning of the trial on June 19, 2012, wife made an oral motion to continue the trial date until after the court considered her motion for pendente lite attorney fees and costs, which was then scheduled to be heard on July 11. She explained to the court that she wanted to retain an attorney because she was unable to represent herself in this complicated case. Alternatively, she requested a settlement conference because no attorney was willing to take her case without payment. She asserted her depression and anxiety had kept her from getting further involved in the matter and being 8 present at previous hearings. Husband opposed the request for a continuance, noting, among other things, that the trial date had been set for six months, the request for a continuance was being raised for the first time that morning, and he had three witnesses ready to appear at the scheduled two-day trial. The court denied wife’s request for a trial continuance “for several reasons. [¶] First, we’ve had a settlement conference. And the indication that I received is that although I don’t know the details, you had received what your then counsel thought was a good settlement offer and you declined to consider it. [¶] Second, your request for continuance is itself untimely. That should have been presented well before now. [¶] Third, I already granted a motion for attorney’s fees for what I felt was adequate. Your attorney then was of the view it was insufficient, but it was what I thought was adequate in the circumstances. [¶] Fourth, my understanding of the reasons that you are without an attorney is not because you lack fees but because your attorney . . . convinced Judge White there was a conflict that required her to withdraw.” B. Analysis Wife presents several arguments in support of her claim that the trial court abused its discretion in denying her request to continue the trial date. We conclude her contentions are unavailing. “Continuances are granted only on an affirmative showing of good cause requiring a continuance. [Citations.] Reviewing courts must uphold a trial court’s choice not to grant a continuance unless the court has abused its discretion in so doing.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 (Falcone & Fyke); see Cal. Rules of Court, rule 3.1332 [provisions governing continuances].) Contrary to wife’s contention, the record does not demonstrate she was incapable or unable to file a timely motion to continue the trial date due to her psychological problems. After her counsel’s withdrawal, wife, representing herself, was able to file two cogent motions for pendente lite relief and an increase in spousal support, in which she explicitly eschewed any need for a continuance of the trial date. Once the court refused to advance wife’s request for pendente lite relief in early June, 2012, she had more than 9 sufficient time to request a continuance of the trial date. Nevertheless, wife waited until the morning of the trial to make an oral request for a continuance, which was unfair to husband who had prepared for trial and subpoenaed witnesses. Given the uncertainty that wife would be able to retain counsel to appear in court and try the case within a reasonable time even if granted pendente lite attorney fees, the court reasonably denied the request for a trial continuance. We are not persuaded by wife’s argument that the trial court should have granted a trial continuance because of her appearance and conduct in court. At the time the court denied wife’s request for a trial continuance, she had not said or exhibited any conduct that called into question her ability to proceed with the trial. The court’s recognition that the courtroom was a difficult setting for wife, “even more so than the typical” in propria persona litigant, does not establish an abuse of discretion in denying the trial continuance. III. Termination of Spousal Support and Denial of Increase in Spousal Support Wife challenges the termination of her spousal support and the denial of her request for an increase in spousal support on the grounds that the court failed to follow established legal principles and based its findings on insufficient evidence. As we now discuss, we conclude wife’s arguments are unavailing. To the extent wife asks us to consider the court’s statements in its written decision, in support of her assertion of error, we are precluded from doing so. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647 (Ditto).) Where, as here, the parties did not request a formal statement of decision, “we must assume the court made whatever findings [were] necessary to sustain” the order. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, superseded on other grounds by statute as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448.)7 “A statement of decision allows the trial court to review its memorandum of intended decision and ‘to make . . . corrections, additions or deletions it 7 Wife’s reliance on In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282, 305; In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1285, 1296; In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1106, is misplaced as in those cases the trial courts issued statements of decision. 10 deems necessary or appropriate.’ [Citation.] Such statement thus enables a reviewing court ‘to determine what [law] the trial court employed . . . .’ [Citation.] It is the statement of decision which allows the court to place upon the record its view of facts and law of the case. [Citation.] A failure to request a [statement of decision] results in a waiver of such findings.” (Ditto, supra, at p. 647.) “Because a statement of decision was not requested, the trial court did not have the opportunity to amend; the [order] therefore governs” and “it will be presumed on appeal that the trial court found all facts necessary to support the [order].” (Id. at pp. 648, 649.) Thus, the only issue before us is whether there is “ ‘substantial evidence’ to support the [trial] court’s ‘implied findings.’ ” (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274.) Wife argues that the record contains affirmative evidence demonstrating that during the 10 years since the entry of the spousal support orders she was not capable of becoming self-supporting and she made reasonable efforts to become self-supporting consistent with her ability to do so but she was unsuccessful in her endeavors. However, we must reject wife’s “attempt to reargue on appeal those factual issues decided adversely to [her] at the trial level” as “contrary to established precepts of appellate review.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) Whether wife was capable of supporting herself and made reasonable efforts to become self-supporting were “question[s] addressed peculiarly to the trial court which heard [wife’s] testimony and observed [wife’s] demeanor at trial,” together with the other testimonial and documentary evidence admitted at the trial. (In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749.) As an appellate court, we cannot grant relief by relying solely on “ ‘isolated bits of evidence,’ ” as wife urges. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336 (DiMartino).) Of more significance is the fact that wife has failed to provide us with either a reporter’s transcript or a settled statement in lieu of the reporter’s transcript of the testimony elicited during husband’s case-in-chief. Consequently, we must resolve wife’s claim of error against her for failure to “furnish an adequate record of the . . . proceedings.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295- 1296 [appellants had burden “to provide an adequate record to assess error;” appellants 11 “should have augmented the record with a settled statement of the proceeding;” and “[b]ecause they failed to furnish an adequate record of the . . . proceedings, [their] claim must be resolved against them”].)8 IV. Trial Court’s Order Directing Wife to Pay $20,000 in Discovery Sanctions A. Relevant Facts On or about August 2010, husband served his first discovery requests using form interrogatories (13 questions), an initial set of special interrogatories (52 questions), and a demand for the production of documents (26 general categories and 24 categories relating to the special interrogatories). The form interrogations requested information about wife’s health and current financial circumstances, her efforts to seek employment and her business ventures since 2002. The first set of special interrogatories and document demands sought information pertaining to wife’s income, financial accounts, real property ownership, and other information about her economic circumstances and standard of living. Wife filed no motion for a protective order. In October and November 2010, husband extended wife’s time to provide responses. But, as of 8 In her reply brief, wife argues that if we deem the missing trial testimony necessary to address her appellate arguments, we should sua sponte exercise our authority to augment the record with the missing reporter’s transcript and to waive payment for the transcript in order to avoid a miscarriage of justice. However, we will not order a transcript at public expense “where alternative measures are reasonably available” to a litigant as in this case. (Graziano v. Appellate Department (1978) 84 Cal.App.3d 799, 801.) Our appellate rules permit litigants to proceed by using a settled statement in lieu of a reporter’s transcript, but wife failed to make the required application in the superior court. (See Cal. Rules of Court, rule 8.137(a).) Wife makes no argument that “the trial was too complex or protracted to permit the preparation of an adequate settled statement from memory or notes.” (People v. Goudeau (1970) 8 Cal.App.3d 275, 281-282.) We recognize wife was not represented by counsel at the time she was required to designate the record on appeal and serve and file a motion in the superior court requesting the preparation of a settled statement instead of a reporter’s transcript. (See Cal. Rules of Court, rules 8.121(a), 8.137(a).) Nevertheless, as a litigant appearing in propria persona, she “ ‘is entitled to the same, but no greater, consideration than other litigants and attorneys,’ ” and she “ ‘is held to the same restrictive rules of procedure as an attorney.’ ” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.) 12 December 1, 2010, wife’s only substantive response was the submission of copies of her federal income tax returns for 2007 through 2009. On December 16, 2010, husband filed his first motion to compel discovery responses and sought monetary sanctions pursuant to Family Code section 2719, which requests were opposed by wife. The trial court held a hearing on January 26, 2011, at which counsel were present without their clients. The court suggested that wife seek the appointment of a guardian ad litem. The court then made the following orders: (1) husband was to pay the costs of subpoenaing wife’s medical records after wife signed the necessary authorizations for the release of the documents, and (2) wife was to sign under oath that the copies of her tax returns were true and correct copies. The court continued the matter to May 13, 2011, at which time the court intended to further consider husband’s request that wife file responses to discovery seeking information about her psychological condition and efforts to become self-supporting. After the court’s order and in response to wife’s request for consideration under the Americans with Disability Act, the parties reached an agreement with the court’s assistance regarding the outstanding discovery. Pursuant to the agreement, wife signed releases allowing husband’s counsel to obtain wife’s tax returns directly from the IRS 9 Family Code section 271 reads: “(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award. [¶] (b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. [¶] (c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.” 13 and wife’s medical records directly from her physician. Husband’s counsel also agreed to obtain requested information about wife’s eBay sales directly from either eBay and/or PayPal (the company through which it was believed virtually all of wife’s eBay sales were processed). On May 20, 2011, the court issued an order directing wife to produce all the information she had provided to her tax attorney who had prepared her 2010 tax return. Wife’s counsel also agreed that wife would submit responses to the outstanding discovery requests, section by section, on a weekly basis. In June 2011, wife filed a motion for pendente lite attorney fees and costs, which request was opposed by husband. In early August 2011, husband agreed to grant wife an extension of time to respond to the outstanding discovery until after the hearing on wife’s request for pendente lite attorney fees and costs. On August 10, 2011, husband was directed to pay to wife the sum of $35,000 as pendente lite attorney fees within one week of the court’s order. Husband granted wife an extension of time to submit her discovery responses until August 24, 2011. Husband did not receive any discovery responses from wife, and on October 24, 2011, he filed a second motion to compel responses to the outstanding discovery propounded in August 2010 and a second set of 13 special interrogatories that had been served on wife in response to her declaration regarding her 2011 earnings from any business ventures, and again sought monetary sanctions under Family Code section 271, which requests were opposed by wife. At a hearing on December 13, 2011, husband appeared with counsel and wife’s counsel appeared without her client. The court granted, in part, husband’s motions to compel discovery compliance. Wife was directed to submit responses to the form interrogatories and the second set of special interrogatories by court-imposed dates. Compliance with the other propounded discovery (first set of special interrogatories and document demand) was deemed moot as wife had served her responses to that discovery on Friday, December 9, 2011. The court continued the matter to March 29, 2012, at which time the court intended to resolve any issues relating to the adequacy or completeness of wife’s discovery responses and husband’s requests for attorney fees and sanctions. In response to the court’s order, wife filed a declaration 14 addressing husband’s complaints about her discovery responses. She also sought additional pendente lite attorney fees and costs, which request was opposed by husband. At the March 29, 2012 hearing, the court issued an order regarding the remaining outstanding discovery issues: (1) husband’s motion to compel was granted, in part, and wife was directed to file amendments to her responses to certain interrogatories and the document demand; and (2) husband’s request for sanctions was granted but the court reserved for further consideration “at the time of trial” the appropriate monetary award because the court needed to hear “further evidence relative to [wife’s] psychiatric condition and financial condition.” At a further hearing on April 23, 2012, the court directed wife to be in “full compliance” with its March 29, 2012, discovery order by April 27, 2012, and she was awarded an additional sum of $25,000 as pendente lite attorney fees. At the conclusion of the trial, the court granted husband’s request for “discovery sanctions.” The court explained: “On March 29, 2012, the Court spent considerable time addressing a number of problems with [wife’s] discovery responses. ([Wife] still has not complied with my order from that hearing.) I stated at the time that at least some discovery sanctions would be appropriate, but deferred setting a number until trial. My reason for delay was to assess the evidence concerning [wife’s] mental-health issues and the extent, if any, to which they may have caused the inadequacy of her discovery responses. I observed that most of the deficiencies appeared, at first view anyway, to be simply a matter of sloppy lawyering by [wife’s] (now-former) counsel . . .; but I wanted to reserve judgment to assess whether any of the problem might have arisen from things [wife] could not really help. [¶] I find no evidence that any of [wife’s] mental-health issues disabled her (or her attorney) from responding timely and properly to [husband’s] discovery. [Wife] herself testified that she cooperated fully in discovery and responded fully and timely to her attorney’s demands – a description seriously at odds with what her attorney had represented to me in several prior hearings. Which of those versions is true I cannot say. But I can say that although [wife] has no reluctance to point out her own faults when she thinks they help her position, she vehemently and credibly disclaims any 15 inability to comply with discovery. Instead, I believe that the seriously deficient level of [wife’s] discovery response is part of her conscious campaign to maintain her spousal support by refusing to cooperate in litigating [husband’s] motion. What part of the deficiency is due to [wife’s] obstructive attitude, and what part due to [her former counsel’s] sloppy lawyering, I cannot say. But both are sanctionable. [¶] Having reviewed the live and documentary proof on this subject, I award $20,000 in discovery sanctions to [husband]. [Husband] is authorized to deduct these sanctions from [wife’s] share of the omitted accounts.”10 B. Analysis We conclude wife’s arguments challenging the trial court’s award of sanctions do not require reversal. Husband sought monetary sanctions pursuant to both Family Code section 271 and Code of Civil Procedure sections 2023.030, 2030.290, and 2031.300. The trial court did not identify the statutory basis for the sanctions award in either its June 22, 2012 decision or its August 22, 2012 order. Nevertheless, given the court’s explanation for its award, “[t]he more reasonable interpretation” of its August 22, 2012 order is that the court awarded a monetary sanction against wife pursuant to Family Code section 271. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1082; see Fam. Code, § 271, subds. (a), (c).) 11 10 As part of this post-dissolution proceeding, the parties asked the court to determine their joint request for a division of several community-property nonqualified financial accounts, collectively worth a little over $100,000, which had not been previously divided between the parties. The court agreed, “[a]s [husband] suggested and [wife] agreed,” that “those [accounts] should be divided in kind now. [Husband] is directed to take all necessary steps to accomplish that. [Wife] is directed to cooperate reasonably in those steps, such as by signing any necessary consents or forms.” On this appeal wife does not challenge the court’s distribution of the funds in these financial accounts. 11 Consequently, we do not further address whether the award was properly made pursuant to the Code of Civil Procedure sections governing sanctions for discovery misuse. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 [“under settled 16  Family Code section 271, “advances the policy of the law ‘to promote settlement and to encourage cooperation which will reduce the cost of litigation.’ [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys’ fees and costs as a sanction.” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177 (Petropoulos).) “ ‘A sanctions order under [Family Court] section 271 is reviewed for abuse of discretion. [Citation.] Accordingly, we will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.’ [Citations.] ‘ “We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.” ’ ” (Falcone & Fyke, supra, 203 Cal.App.4th at p. 995.) We find unavailing wife’s challenge to the sufficiency of evidence supporting the court’s award of sanctions. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178 (Parker).) She asserts the court mischaracterized her testimony and failed to consider the conduct of her former counsel. However, as we have noted, we cannot grant relief from the court’s order by relying on “isolated bits of evidence,” as wife suggests. (DiMartino, supra, 80 Cal.App.4th at p. 336.) More importantly, in ruling on the matter of sanctions, the trial court relied on both documentary evidence and the testimony elicited at the trial. Thus, it was wife’s responsibility to include a reporter’s transcript or a settled statement in lieu of the reporter’s transcript of the testimony elicited in husband’s case in chief. Having failed “to designate an adequate record for this court to evaluate [her] claim, . . . we presume the [order] imposing sanctions . . . . is correct.” (Parker, supra, at p. 1178; see id. at pp. 1175-1176, 1178 [court upheld judgment imposing $92,000 sanctions pursuant to Family Code section 271 against husband because he failed to include reporter’s transcript of 13-day trial].) We also reject wife’s challenges to the court’s imposition of a monetary sanction against her alone and not her counsel. “ ‘[W]hile [Family Code] § 271 impose[s] duties appellate principles we may affirm the court’s sanctions order on any ground supported by the record”].) 17 upon counsel as well as counsel’s client to cooperate in seeking to resolve the litigation [citation], those duties are enforced under the statute by means of a fees and costs award against the party, not counsel – even when the sanctionable conduct lies solely with a party’s counsel.’ ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1535- 1536, fn. 17, quoting from Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) § 14:237, p. 14–63; see Fam. Code, § 271, subd. (c).) Additionally, before imposing a sanction payable by wife, the trial court had no duty, either sua sponte or if requested, to hold a hearing to determine the culpability of wife’s counsel. Before a court may impose a Family Code section 271 sanction, notice and an opportunity to be heard must be given to the party against whom the sanction is proposed to be imposed. (Id., subd. (b).) In this case wife was afforded all the due process to which she was entitled –the court specifically informed her that at trial it would consider monetary sanctions for discovery noncompliance, she was given an opportunity and did address the issue at trial, and she did not move for either reconsideration or a new trial on the sanction issue. (See Petropoulos, supra, 91 Cal.App.4th at pp. 178-179.) 12 V. Trial Court’s Award of Pendente Lite Attorney Fees to Wife A. Relevant Facts Before trial, husband initially voluntarily paid wife $2,500 as attorney fees and costs and the trial court later directed husband to pay wife $60,000 as attorney fees and costs. After her counsel withdrew, wife, representing herself, filed a motion on May 29, 2012, seeking an order directing husband to (a) pay all the fees and costs wife then owed to her former counsel and experts hired by former counsel, and (b) pay fees to allow wife to hire new counsel for settlement. In support of her request, wife submitted a declaration in which she expressly stated that she did “NOT want a continuance” of the trial then scheduled for June 19 and 20, 2012. She asserted she neither wanted nor could 12 To the extent wife seeks relief based on complaints that her former counsel was ineffective, “[w]e need not assess the validity of these charges, for we are aware of no authority, and [wife] has cited us none, which would permit [an] . . .appellate court to grant [any relief] . . . to an unsuccessful litigant in a civil case . . . on the grounds of incompetency of counsel.” (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978.) 18 afford a new attorney and would be representing herself if the matter went to trial. Wife further asserted that although her former counsel had submitted a list of proposed expert witnesses, wife did not consent to those witnesses appearing on her behalf and she did not want to spend money for those witnesses to appear. However, she asked that her therapist be allowed to speak on her behalf and she wanted the court-appointed vocational evaluator, Betty Kohlenberg, to testify but wife claimed she did not have the money to pay for the witness to appear at trial. Approximately two weeks before trial, wife filed an ex parte motion to advance the hearing date of her attorney fees motion to a date before the start of the trial, which request was opposed by husband and denied by the court. At the conclusion of the trial, the court commented in its written decision that it had declined to advance the hearing date scheduled for wife’s pending motion for attorney fees because it “was an attempt to seek a different result on the same attorney fee motion [the court had recently] ruled on on April 23, 2012;”and wife had “no legitimate reason to expect a different result.” In all events, the court found wife’s motion for attorney fees was moot. The court explained: “[Wife] pointedly stated that she did not want to continue the trial. There was no plausible prospect that she would be able to hire counsel who could be ready for the trial date, no matter how much attorney fees [the court] might award. [Wife] also sought funds to enable her to call two experts – but the report of one of those experts was in fact admitted and considered, while [wife] chose not to offer the other’s report because she disagreed with it. [¶] In any event, the motion sought fees only to enable her to litigate the then-pending spousal support issue. That issue is now resolved by this Decision, and there is no reason to entertain a request for fees for further litigation of it.” B. Analysis We reject wife’s contention that the trial court was required to award her the full amount she requested for pendente lite attorney fees and costs “based on the disparity in income between the parties alone.” In awarding pendente lite attorney fees and costs, the court is required to consider not only “the wealth and available resources of the parties,” 19 but also “the complexity of the issues involved in the litigation, . . . and the litigation costs already incurred and expected to be incurred through trial.” (In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 884.) On this record, wife has failed to demonstrate that the court abused its discretion in its award of pendente lite attorney fees and costs of $60,000, which sum was slightly more than an entire year of spousal support that wife had been receiving from husband. 13 DISPOSITION The August 22, 2012 order is affirmed. Respondent Stephen Controulis is awarded costs on appeal. _________________________ Jenkins, J. We concur: _________________________ McGuiness, P. J. _________________________ Siggins, J. 13 Because the matter of attorney fees was an issue for the trial court, we deny wife’s request that we now grant her $23,102.98 in attorney fees, which she currently owes her former attorney, on the ground that husband’s excessive discovery conduct led to much of the attorney fees incurred by her. 20 

556 F.2d 568 Singerv.Wyeth Laboratories, Inc. No. 76-1880 United States Court of Appeals, Third Circuit 3/28/77 1 E.D.Pa. VACATED AND REMANDED

Case: 10-50199 Document: 00511315618 Page: 1 Date Filed: 12/08/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 8, 2010 No. 10-50199 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ANGEL ALFARO-HERNANDEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:09-CR-9-1 Before KING, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Angel Alfaro-Hernandez presents arguments that he concedes are foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which held that a district court may order a term of imprisonment to run consecutively with an unimposed state sentence. The Government’s motion for summary affirmance is * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.  Case: 10-50199 Document: 00511315618 Page: 2 Date Filed: 12/08/2010 No. 10-50199 GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2 

230 P.3d 1238 (2009) DENVER POST CORP., a Colorado corporation, d/b/a The Denver Post; and Karen Crummy, Plaintiffs-Appellants, v. Bill RITTER, Governor of the State of Colorado, Defendant-Appellee. No. 08CA2659. Colorado Court of Appeals, Div. A. December 24, 2009. *1239 Levine Sullivan Koch & Schulz, L.L.P., Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, for Plaintiffs-Appellants. John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, for Defendant-Appellee. Opinion by Chief Judge DAVIDSON. The issue presented in this appeal is whether the personal cell phone billing statements of defendant, Governor Bill Ritter, constitute public records subject to disclosure under the Colorado Open Records Act (CORA), sections 24-72-201 to -206, C.R.S. 2009. We affirm the judgment dismissing the action to access the bills pursuant to CORA. The following facts have been stipulated to or are not disputed: Ritter has both an official cell phone (a smartphone), for which the state pays and which Ritter uses almost exclusively for e-mail, and a personal cell phone, for which Ritter pays and which he uses for both official and personal telephone calls. The personal phone is not owned by and was not issued by the state, and the state neither pays for the phone nor reimburses Ritter for charges associated with its use. Substantially all the cell phone calls in which Ritter conducts state business are made or received on his personal phone. The majority of calls made or received on Ritter's personal phone during regular business hours are calls in which he discusses official business in his capacity as governor. When Ritter makes or receives a call on his personal phone, the service provider automatically logs the date, time, and duration of the call and the telephone number of the other party. The service provider sends Ritter monthly billing statements that include this information. Ritter has not used the bills for any purpose other than to determine the amount owed and has not provided them to any other state officer or employee for any purpose. Plaintiffs, Karen Crummy and her employer, Denver Post Corp., doing business as The Denver Post (collectively, the Post), requested access to the bills pursuant to CORA. The governor's office provided the records from the state-paid cell phone, but refused to provide the records from the personally-paid cell phone, stating that the personal cell phone bills were not public records subject to CORA. The Post then filed this action. On Ritter's motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5), the *1240 trial court determined that the Post had not shown that the requested documents were likely public records, denied the Post's motion to amend its complaint, and dismissed the case. The Post appeals, and on grounds different from those relied on by the trial court, we affirm. I. Standard of Review A. Trial Court Standard of Review The dismissal of a complaint under C.R.C.P. 12(b)(5) is proper if, accepting all allegations of the complaint as true, it appears beyond a doubt that the plaintiff is not entitled to relief as a matter of law. See, e.g., Public Service Co. v. Van Wyk, 27 P.3d 377, 385-86 (Colo.2001). In its order, the trial court correctly examined the allegations of the complaint in the light most favorable to the Post, and, in concluding that the requested bills were not likely public records as a matter of law, assumed all of the Post's factual allegations were true. Contrary to Ritter's suggestion, we do not agree that the trial court's consideration of the parties' stipulation of facts converted the Rule 12(b)(5) motion to a motion for summary judgment under C.R.C.P. 56. See C.R.C.P. 12(c); Walker v. Van Laningham, 148 P.3d 391, 397 (Colo.App.2006) (a court may consider facts of which it may take judicial notice without converting a motion to dismiss into one for summary judgment); see also Kendall v. San Juan Silver Mining Co., 9 Colo. 349, 354, 12 P. 198, 200 (1886) (court must take judicial notice of stipulations of fact). B. Standard of Review on Appeal We review de novo the dismissal of a complaint for failure to state a claim under C.R.C.P. 12(b)(5). Like the trial court, we accept the Post's factual allegations as true and construe them in the light most favorable to the Post. See Asphalt Specialties, Co. v. City of Commerce City, 218 P.3d 741, 744 (Colo.App.2009); Kreft v. Adolph Coors Co., 170 P.3d 854, 857 (Colo.App.2007). II. Legal Framework: Shifting Burdens of Proof A. CORA Subject to exceptions not relevant here, CORA requires that all public records be open for inspection. § 24-72-201, C.R.S.2009. CORA defines a "public record" as "all writings made, maintained, or kept" by the state "for use in the exercise of functions required or authorized by law" or involving public funds. § 24-72-202(6)(a)(I), C.R.S.2009. By its terms, CORA balances the public's interest in access to information about how its government operates against the privacy interests of public officials and employees. See Denver Publ'g Co. v. Bd. of County Comm'rs, 121 P.3d 190, 194 (Colo. 2005) (citing legislative declaration of intent for 1996 amendments to CORA, which addressed e-mail). Consequently, although the statute generally favors access, CORA does not require public disclosure of all documents in the custody of state employees or agencies. See § 24-72-201, C.R.S.2009 (declaring legislature's intent to make all "public records" available for inspection). Thus, in CORA, both the definition of "public records" and the enumerated exceptions limit which documents are required to be disclosed. See Denver Publ'g Co., 121 P.3d at 194 (recognizing "the privacy protection already integrated into CORA's express statutory provisions"). However, because the balancing of competing public and private interests is resolved differently in other contexts, documents not subject to disclosure under CORA may still be discoverable under other legal mechanisms. See, e.g., Colo. Const. art. 2, § 7 (seizure of private document pursuant to a search warrant); §§ 24-72-301 to -309, C.R.S.2009 (Colorado Criminal Justice Records Act (CCJRA), providing for access to criminal justice records); C.R.C.P. 26(b)(1), 34(a)(1) (civil discovery); see also Harris v. Denver Post Corp., 123 P.3d 1166 (Colo.2005) (records not subject to CORA were subject to disclosure pursuant to CCJRA). *1241 B. Wick The parties agree, as do we, that our initial analysis is governed by Wick Communications Co. v. Montrose County Board of County Commissioners, 81 P.3d 360 (Colo. 2003). According to Wick, when it is disputed whether a requested record is private or public, the court must determine as a threshold matter whether the requested records are likely public records as defined by CORA. When the custodian is a government agency, the burden of proving that a record is not public is on that agency because it holds the necessary information. Id. at 363-64. However, when, as here, the custodian is not an agency but an individual with both private and official capacities, and it is disputed in which capacity he or she holds the record, the burden of showing that the record is likely a public record as defined by CORA is placed on the requesting party. To meet that initial burden, the requesting party must show that the record was likely "made, maintained, or kept" by the custodian in his or her official capacity. Id. C. Denver Publishing Co. Only when the requesting party makes the required threshold showing that the records are made, maintained, or kept by the custodian in his or her official capacity does the burden shift to the custodian to show that the records were not "for use in the exercise of functions ... authorized by law." Denver Publ'g Co., 121 P.3d at 199; see § 24-72-202(6)(a)(I). Thus, it is only at this point that the court is to examine whether the contents of the records "address the performance of public functions," that is, whether the records are being held for use in the exercise of public functions. Denver Publ'g Co., 121 P.3d at 199 (citing Wick, 81 P.3d at 366). III. Because the Post did not meet its burden, dismissal was proper Accordingly, under Wick, the Post had the initial burden to show that the bills were likely "made, maintained, or kept" by Ritter in his official capacity as governor. 81 P.3d at 364. Because we conclude that the Post did not meet its required burden, we further conclude that the trial court properly dismissed the complaint. A. The trial court misapplied the Wick burden of proof Initially, we agree with the Post's contention that, in its ruling, the trial court improperly placed on the Post the burden of showing the bills were likely public records by requiring it to show not only that the bills were likely made, maintained, or kept by the governor but also that they were "for official use." In its order, the court found that under the facts of the complaint, taken as true and viewed most favorably to the Post, Ritter "maintained or kept" the bills. However, the court did not determine, as required by Wick, in what capacity Ritter did so. Instead, it analyzed whether the billing records were kept "for official use" under the test set forth in Denver Publishing Co. In its analysis, the court determined that, pursuant to Denver Publishing Co., although no allegation of actual official use was required, the Post was required to allege a likely future official use. The court agreed that the bills were connected with official business because Ritter used the cell phone for official calls, but it concluded that the complaint had not sufficiently alleged facts to show that the bills themselves were kept for official use. To the extent that the court's analysis placed the burden on the Post to show that the bills were being kept "for official use," we agree with the Post that the court erred. See Denver Publ'g Co., 121 P.3d at 199 (a requesting party that shows "the records are made, maintained, or kept in an official capacity" has met its burden and "the burden then shifts to the public agency"). B. The Post did not meet the threshold burden required by Wick However, under the Wick analysis, before the burden shifted to Ritter to show that the bills were being kept for "official *1242 use," it was the Post's burden to show that Ritter likely made, maintained, or kept the bills in his official capacity as governor. See Wick, 81 P.3d at 364. Because we conclude that the Post did not allege facts that, viewed most favorably to it and accepted as true, showed that Ritter likely "made, maintained, or kept" the bills in his official capacity, we agree that the trial court's dismissal of the complaint was proper, albeit on somewhat different grounds. See Camp Bird Colorado, Inc. v. Bd. of County Comm'rs, 215 P.3d 1277, 1280 (Colo.App.2009) (affirming on grounds different from those relied on by the trial court); Roth v. Capitol Life Ins. Co., 36 Colo.App. 46, 538 P.2d 125 (1975) (court's error in stating burden of proof was on insurer to prove suicide rather than beneficiary to prove accident was harmless where it otherwise employed the correct analysis), rev'd on other grounds, 191 Colo. 289, 553 P.2d 390 (1976). In analyzing whether the Post met its threshold burden, because they are not contradictory, we accept as true the allegations of both the original and the proposed amended complaint, and we take judicial notice of the stipulation of facts. 1. Ritter did not "make" the bills First, the Post's factual allegations were insufficient to show that Ritter "made" the bills, in either his personal or his official capacity. To "make" something in the context of making a record means to create, or generate it. Webster's Third New International Dictionary 945; see Hiwan Homeowners Ass'n v. Knotts, 215 P.3d 1271, 1273 (Colo.App.2009) (appellate courts may determine meaning of undefined statutory words by referring to a dictionary). Here, the undisputed fact is that the service provider created and generated the phone bills. The Post does not dispute that the bills came from the service provider. It contends, nonetheless, that because placing or receiving calls is a necessary prerequisite to the creation of each line item on the bills, Ritter also "made" the bills (and, because the majority of Ritter's calls concerned official business, he did so in his official capacity). However, although we agree with the Post that Ritter's phone calls triggered each line item in the bills, we disagree that either version of the complaint contains factual allegations that show that Ritter created or generated the bills. Nor could they — it is indisputably the service provider that decides whether to list calls in its bills. The decision whether or not to toll calls is a business decision made by the service provider that is out of the control of both the maker and the receiver of calls. Although we note that federal regulations require carriers that "offer or bill toll telephone service" to retain the line-item call information for eighteen months, it is the carrier's decision, not the customer's, whether or not to offer a tolled service instead of only offering a flat rate for unlimited calling. See 47 C.F.R. § 42.6 (2009). In contrast, we note that providers of land line telephones typically toll only long distance calls, and only to the originator; lists of local calls and received calls (where the charges were not reversed) are typically not included in billing statements. Thus, we agree with Ritter that his participation in making the calls — even when the conversations concerned official business, and accepting that he was aware that the calls would be tolled by the service provider — does not constitute his making the record that the calls were made. We agree that Ritter (and the recipients of the calls) created the contents of the conversations — and Ritter would be the maker of a record of their contents just as someone could "make" a record by dictating to another for transcription or recording. However, the Post has not requested transcripts or recordings of the contents of the conversations pursuant to section 24-72-202(6)(a)(II), C.R.S.2009 (concerning "correspondence" of "elected officials"), presumably because none exist. Instead, it has requested the records that memorialize the fact that the conversations occurred, which are created and generated only by the service provider. Indeed, the service provider would still send a bill regardless of whether Ritter placed or received any calls; its contents would just be different. 2. Ritter did not "maintain" the bills Ritter also did not "maintain" the bills in either his personal or his official capacity. *1243 To maintain means to keep in good repair. See Webster's Third New International Dictionary 1362. Thus, in the context of a document, to "maintain" could include, for example, periodically updating the information contained in the document to maintain its accuracy. Although in some contexts "to maintain" can mean merely to keep, see id., because the statute also includes the verb "kept," defining it as such here would make that word redundant. See Johnston v. City Council, 177 Colo. 223, 228, 493 P.2d 651, 654 (1972) (it is a fundamental rule of construction to give effect to every word of a statute if possible); Hiwan, 215 P.3d at 1273 (the meaning of a word may be ascertained by reference to the meaning of words associated with it). Here, the extent of the allegations on this issue were that Ritter received the phone bills from the service provider, used them to pay the amounts owed, and has access to all of them from the service provider upon request. Thus, insofar as the term "maintain," as opposed to the term "keep," means to keep up or keep in good repair, there were no factual allegations whatsoever that Ritter maintained the bills. 3. Ritter "kept" the bills, but only in his personal capacity We agree, as the trial court determined and Ritter does not dispute, that the Post's factual allegations showed that Ritter "kept" the bills. Thus, the issue we next address, pursuant to Wick, is in what capacity, personal or official, he did so. As noted, it was stipulated that Ritter has kept the bills only to verify the amounts he owed and to pay them, which is a personal, not official, function. The Post argues, however, that because the information contained in the bills could be used to confirm if and when particular calls were made, Ritter kept them in his official capacity. We disagree. Although it definitively stated that "CORA was not intended to cover information held by a government official in his private capacity," the court in Wick did not provide a definitive test, or an exhaustive list of factors to consider, to determine in what capacity an official keeps a document. 81 P.3d at 364. However, in determining that the public official's diary at issue in that case was not a public record, the court examined (1) whether the official was required to keep the diary; (2) where it was kept; (3) who had access to it; (4) whether a public entity had ever attempted to exercise control over it; and (5) to what use it was put. Id. at 364-66. Informed by Wick, we apply a similar inquiry here. We conclude that the Post's factual allegations, viewed in the most favorable light and taken as true, do not show that Ritter kept the bills in his official capacity as governor. No official duties require a governor to keep personal cell phone bills. Indeed, although it may be impractical, a governor is not required to use a cellular telephone at all. Further, although where records are physically located is not dispositive of whether they are otherwise public, see, e.g., Int'l Bhd. of Elec. Workers Local 38 v. Denver Metro. Major League Baseball Stadium Dist., 880 P.2d 160, 164 (Colo.App. 1994) (CORA does not require a custodian who is responsible for maintaining and keeping records to have the records in his actual physical possession), it is relevant that Ritter does not keep the bills at his office. More important, none of Ritter's staff has ever had or been offered access to the bills, and no public official, employee, or agency, including the governor's office itself, has ever attempted to exercise control over them. See id. (the dispositive question is control and responsibility, not physical possession). Also, as noted, it is undisputed that the use to which Ritter has put the bills has been, as with any personal bill or invoice, to verify the amount owed and pay it, a use that is clearly personal, not official. We do not disagree with the Post's assertion that the bills contain call logs, which can and have been used to corroborate or contradict someone's account of events. See, e.g., People v. Gilbert, 173 P.3d 1113, 1116 (Colo. O.P.D.J.2007) (using cell phone records showing that magistrate made ex parte phone calls to litigant as basis for censure). We disagree, however, that merely because the bills could be used to verify Ritter's call history, a use that could in certain circumstances be official, that speculation alone transforms them into public records under CORA. *1244 The inherent function of any bill, such as the cell phone billing statements here, is for the provider of services or goods to obtain payment, see Black's Law Dictionary 846 (8th ed.2004) (an invoice is a list of goods or services furnished by seller to buyer, specifying price or terms of sale), and, as noted, the payment of a private bill, such as here, is an inherently private function. Indeed, if the possibility of some future official use could transform an otherwise private document, such as a personal bill, into a public record merely because it is kept by a public official or employee, then almost any document kept by a public official or employee could be subject to CORA's disclosure requirements. CORA does not reach so far. As the supreme court, in discussing Wick, stated, "simply because a document was `made' [and we would include here, `kept'] during one's tenure as a public official does not render it a public record." Denver Pub'g Co., 121 P.3d at 195-96 (quoting Wick, 81 P.3d at 365). Accordingly, we conclude that an alleged potential future official use, in the absence of any other indicia that a record is made, maintained, or kept in an official capacity, is not sufficient to establish that a record is likely a public record. Indeed, we note that in Wick there was more than a potential future use: there, the public official had actually used the requested diary to refresh his recollection of events leading to the termination of an employee and had quoted portions of it in an official report. Nonetheless, the court held that the diary in question was made, maintained, and kept in a personal, not an official, capacity. Wick, 81 P.3d at 360. C. Conclusion Thus, although the trial court erred by assigning to the Post the burden of proof in the "for use" test articulated in Denver Publishing Co., instead of addressing whether Ritter kept the bills in his official capacity as governor, it reached the correct result. Ritter kept the bills, but he did not do so in his official capacity, and thus, the trial court was correct in its determination that the Post did not meet its threshold burden of proof. Accordingly, the trial court properly dismissed the case. IV. Amended Complaint As noted above, in our analysis of whether dismissal of the complaint was proper, we have accepted as true and viewed most favorably to the Post the allegations of both the original and the proposed amended complaint. Because, even with consideration of the allegations of the proposed amended complaint, we have determined that the Post failed to meet its threshold burden, we conclude, the Post's argument to the contrary notwithstanding, that the trial court correctly denied the request to amend the complaint on the ground that doing so would be futile. See Bristol Co. v. Osman, 190 P.3d 752, 759 (Colo.App.2007) (a court may properly deny leave to amend when the proposed amendment would be futile) (citing Benton v. Adams, 56 P.3d 81, 85 (Colo.2002)). Accordingly, the judgment of dismissal is affirmed. Judge STERNBERG[*] and Judge NIETO[*] concur. NOTES [*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2009.

91 F.3d 762 35 Fed.R.Serv.3d 1252 UNITED INDUSTRIES, INC., Plaintiff-Appellant,v.SIMON-HARTLEY, LTD., Defendant-Appellee. No. 95-30898. United States Court of Appeals,Fifth Circuit. Aug. 15, 1996. John Dallas Whitler, Bethesda, MO, William David Kiesel, Roy, Kiesel & Tucker, Baton Rouge, LA, for plaintiff-appellant. Claude F. Reynaud, Jr., Christine J. Lipsey, James Rodney Chastain, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LA, for defendant-appellee. Appeal from the United States District Court for the Middle District of Louisiana. Before BENAVIDES, STEWART and DENNIS, Circuit Judges. BENAVIDES, Circuit Judge: 1 United Industries, Inc. ("United") appeals from a denial of attorneys' fees. Because United failed to comply with the procedural requirements for making such a fee request, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 2 In May 1989, United sued appellee Simon-Hartley, Ltd. seeking reformation of a license agreement. The license agreement included a choice of law provision that "this agreement shall be interpreted and the rights of the parties determined in accordance with English law." United's complaint did not include a request for attorneys' fees. It did, however, request "costs." Similarly, the pretrial order did not include a request for attorneys' fees. The district court conducted a three-day bench trial in September 1992. Following trial, the district court issued a memorandum opinion on October 29, 1992 indicating its intention to rule in United's favor on the reformation claim.1 Despite this initial ruling, the court specifically ordered the clerk to withhold entry of judgment until the court issued its written opinion. On April 5, 1994, the court issued its opinion explaining the reasons for granting United's claim. Judgment was entered on April 11, 1994. Simon-Hartley then appealed and we affirmed in an unpublished per curiam opinion on March 23, 1995 under our local rule 47.6. 3 On April 28, 1995, nearly one year after entry of judgment, United filed a "Notice of Application to Include Attorneys' Fees as Costs" in the district court.2 United based its tardy claim for fees on the English choice-of-law provision. United argued that under substantive English law it was entitled to attorneys' fees as "costs" because it was the prevailing party. Without addressing the merits of whether the English rule applied, the district court denied the fee request for two reasons. Initially, the court found that United's failure to request attorneys' fees in its complaint or pretrial order precluded recovery. Alternatively, the court noted that the judgment in the case was final and that it only had jurisdiction to enforce the judgment. This appeal ensued. DISCUSSION 4 Because a jurisdictional issue has been raised, we briefly address this threshold matter. As a general rule, a final judgment terminates litigation on the merits and leaves the district court with nothing to do except execute the judgment. First Nationwide Bank v. Summer House Joint Venture, 902 F.2d 1197, 1199 (5th Cir.1990). Similarly, once a case has been decided on appeal to this Court, a lower court is not free to alter our mandate. Barrett v. Thomas, 809 F.2d 1151, 1154 (5th Cir.1987). However, a district court is not precluded from acting on a matter neither before nor acted upon by the appeals court. Id.; Engel v. Teleprompter Corp., 732 F.2d 1238, 1241 (5th Cir.1984); see Albert T. Smith Co. v. Albertsons, Inc., 826 F.Supp. 1299, 1301 (D.Utah 1993). In this case, it is undisputed that the issue of attorneys' fees was not raised before the district court. Likewise, attorneys' fees were not an issue before this Court on appeal. Consequently, at a jurisdictional level, the district court is not precluded from ruling on the attorneys' fees issue by either its final judgment or our mandate. 5 While the district court has, at a basic level, the authority to hear such a fee request, this does not mean that United has complied with the procedural requirements making such a motion for attorneys' fees appropriate. In its order denying United's fee request, the district court specifically grounded its ruling on the fact that United failed to plead for attorneys' fees. This was not reversible error. 6 Our sister circuits routinely classify attorney's fees as special damages that must be specifically pleaded under Federal Rule of Civil Procedure 9(g).3 See Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3d Cir.1973) ("Claims for attorney fees are items of special damage which must be specifically pleaded under Federal Rule of Civil Procedure 9(g)."); Western Casualty & Sur. Co. v. Southwestern Bell Tel. Co., 396 F.2d 351, 356 (8th Cir.1968) ("Claims for attorneys' fees are also items of special damage which must be specifically pleaded under Fed.R.Civ.P. 9(g)."); see also In re American Casualty Co., 851 F.2d 794, 802 (6th Cir.1988); 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1310 (1990). Failure to plead waives the right to attorneys' fees. Maidmore, 474 F.2d at 843; Western, 396 F.2d at 356; see 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1312 (1990). 7 While this Circuit has not specifically held that attorneys' fees are items of special damage that must be specifically pleaded, we have intimated that this is so. See Crosby v. Old Republic Ins. Co., 978 F.2d 210, 211 n. 1 (5th Cir.1992) (noting that any pleading defect caused by a party's failure to plead for attorneys fees under Rule 9 was cured by advancing the claim during the pretrial conference). Similarly, our district courts have denied attorneys' fees in the absence of appropriate pleading and we have affirmed on appeal. See Wilson v. William Hall Chevrolet, Inc., 871 F.Supp. 279, 282-83 (S.D.Miss.1994), aff'd in part and rev'd in part, 77 F.3d 479 (5th Cir.1996) (unpublished per curiam) (affirming on all issues except award of interest). We have noted that there may be exceptions to this general rule, such as when the issue is tried by consent or included in a pretrial order. See Crosby, 978 F.2d at 211 n. 1; see also Seybold v. Francis P. Dean, Inc., 628 F.Supp. 912, 914-15 (W.D.Pa.1986). Likewise, we have held that under certain circumstances not present here that Rule 54(c) allows the district court to consider the fees issue even in the absence of a specific pleading. See Engel, 732 F.2d at 1240-41.4 As a general rule, however, we find nothing inappropriate with requiring a party to put its adversaries on notice that attorneys' fees are at issue in a timely fashion or waive that claim. This is accomplished by specifically pleading for attorneys' fees in the complaint. 8 It is undisputed that United did not specially plead attorneys' fees under Rule 9(g). United argues, however, that its request for "costs" should be deemed sufficient because, under English law, attorneys' fees are awarded to the prevailing party as costs. We reject this semantic word game. If, as United argues, its right to attorneys' fees is a substantive issue that requires application of English fee-shifting law, then United was obligated to specifically plead for them under the procedural rules that govern our courts. Having voluntarily sued in this forum, United has an obligation to put the parties and the court on notice that attorneys' fees are at issue. A claim for attorneys' fees, premised on an interpretation of a contract provision incorporating an English choice-of-law clause,5 cannot be buried in a general request for costs and then later resurrected a year after entry of final judgement. Given the circumstances presented in this case, the district court did not abuse its discretion in denying an award of fees that were not timely requested. 9 Moreover, an additional reason supports the district court's judgment. United failed to comply with Federal Rule of Civil Procedure 54(d)(2).6 Rule 54(d) was amended with the express purpose of harmonizing and clarifying the procedural requirements for attorneys' fees requests. Fed.R.Civ.P. 54 advisory committee's note (subdivision (d)); 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2679 (Supp.1996). Rule 54(d)(2)(A) requires that claims for attorneys' fees must be made by separate motion to the district court.7 Unless modified by statute or court order, this motion for attorneys' fees must be filed fourteen days after entry of judgment; must specify the statute, rule or other grounds entitling the movant to the award; and must state the amount or fair estimate of the amount sought. Fed.R.Civ.P. 54(d)(2)(B). This amended rule took effect on December 1, 1993 and applies to this judgment that was entered in April 1994.8 10 This rule was promulgated for precisely the situation presented in this case. The Rule 54(d) procedure was adopted for claims for attorneys' fees whether or not they are denominated as "costs." Fed.R.Civ.P. 54 advisory committee's note (subdivision (d)); 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2679 (Supp.1996). A party seeking attorneys' fees must make a timely Rule 54(d)(2)(B) motion unless it falls under a 54(d) exception.9 This rule serves several laudable purposes that are underscored by United's failure to comply in this case. The Rule assures that the opposing party has notice of the claim. Fed.R.Civ.P. 54 advisory committee's note (subdivision (d)). Additionally, prompt filing may allow the district court to make its fee ruling in time to allow appellate review at the same time as review on the merits. Id. It is undisputed that United did not file a motion for attorneys' fees within fourteen days of entry of judgment as required by Rule 54(d). This failure to file within the allotted period serves as a waiver of its claim for attorneys' fees. CONCLUSION 11 Under the procedural rules that govern our courts, attorneys' fees must be specifically requested in a timely fashion. This is accomplished by including a request for attorneys' fees in the pleadings and by timely filing a Rule 54(d) motion following entry of judgment, unless excepted from the motion requirement because fees were proved as damages at trial. United failed to comply with these procedural requirements. The judgment of the district court denying attorneys' fees is AFFIRMED. 1 The district court also rejected Simon-Hartley's counterclaim for rescission of the license agreement 2 United sought $490,641.75 in attorneys' fees to be taxed as costs 3 "When items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P. 9(g) 4 In Engel, plaintiffs-shareholders sued Teleprompter Corp. for breach of a subscription agreement and for attorneys' fees under a contract provision entitling a prevailing party to fees. 732 F.2d at 1240. The non-jury trial resulted in judgment for the plaintiffs. On appeal, we reversed and remanded with instructions to dismiss the complaint. On remand, the now-prevailing party, Teleprompter, moved for fees as provided in the contract. The district court denied the request. On subsequent appeal we reversed. Our reversal, however, was specifically grounded in both the procedural posture of the case and the factual background of the litigation. Procedurally, we noted that because Teleprompter was not the prevailing party in the first suit, it could not have been required to request fees at that time. Consequently, Teleprompter's failure to plead for fees as an initial defendant was not fatal to the later request following remand. Id. at 1240-41. Additionally, we noted that the plaintiffs and Teleprompter had an explicit contract provision that the prevailing party would be entitled to fees in the event of litigation. Id. at 1240. The validity and interpretation of the provision was never in dispute. Moreover, following remand to the district court, Teleprompter made a timely application for attorneys' fees and submitted supporting materials before the district court officially entered its final judgment. Id. at 1242. None of these characteristics are present in the case now before us 5 While we do not address the merits of United's claim for fees under the choice-of-law provision in the license agreement, we note our skepticism that such a clause targeting interpretation of the contract terms also incorporates English fee-shifting 6 While the district court did not explicitly ground its denial of attorneys' fees on Rule 54(d), it is well-settled that this Court will not reverse a judgment of the district court if it can be affirmed on any grounds, regardless of whether the grounds were articulated by the district court. See Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981). Additionally, the district court's concern over United's belated request for attorneys' fees is consistent with the procedural objectives embodied in Rule 54(d) 7 This motion requirement is waived if the substantive law governing the action provides for recovery of such fees as an element of damages to be proved at trial. Fed.R.Civ.P. 54(d)(2)(A). Attorneys fees that are recoverable as an element of damages, such as when sought under the terms of a contract, must be claimed in a pleading. Fed.R.Civ.P. 54 advisory committee's note (subdivision (d); paragraph 2) 8 United contends that amended Rule 54(d) should not apply in this case because it was tried and initially decided by the district court in 1992. This argument, however, ignores the subsequent opinion and judgment which were entered in 1994. Amended Rule 54(d) applies to all civil actions commenced after December 1, 1993, and "insofar as just and practicable, all proceedings in civil cases then pending." Order of the Supreme Court of the United States, Apr. 22, 1993, 146 F.R.D. 401, 404. Because the district court withheld entry of judgment until its written opinion was issued in April 1994, this case was pending when amended Rule 54 took effect. At that time, United could have easily complied with the rule and filed a motion for fees within fourteen days of entry of judgment. United offers no explanation for its failure to comply except to state that it would be unjust and impracticable. The cases United cites however are easily distinguishable. See, e.g., Franz v. Lytle, 854 F.Supp. 753, 755 (D.Kan.1994) (declining to apply amended rule to case that would have been completed prior to effective date of amended rule except for delay caused by interlocutory appeal by losing defendants); Schwartz v. Dolan, 159 F.R.D. 380, 385 (N.D.N.Y.1995) (granting leave to file untimely motion for attorneys' fees in the exercise of discretion under Rule 6(b)(2) due to excusable neglect) 9 Aside from situations where attorneys' fees were proved as damages at trial, Rule 54(d) also excepts claims for attorneys' fees as sanctions from the fourteen-day motion requirement. Fed.R.Civ.P. 54(d)(2)(E)

276 F.2d 601 60-1 USTC P 9398 COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Frank POLK and Marie Polk, Respondents. No. 6202. United States Court of Appeals Tenth Circuit. March 17, 1960. John J. Pajak, Department of Justice, Washington, D.C. (Howard A. Heffron, Acting Asst. Atty. Gen., Lee A. Jackson and Harry Baum, Attorneys, Department of Justice, Washington, D.C., on the brief), for petitioner. Ranel Hanson, Oklahoma City, Okl., for respondents. Before BRATTON, HUXMAN and PICKETT, Circuit Judges. HUXMAN, Circuit Judge. 1 This is an appeal by the Commissioner of Internal Revenue from a decision of the Tax Court holding that interest on a personal income tax deficiency assessed against an individual taxpayer is a deduction 'attributable to the operation of a trade or business' for the purpose of computing a net operating loss under Section 122(d)(5) of the Internal Revenue Code of 1939, 26 U.S.C.A. 122(d)(5), where the deficiency on which the interest was paid resulted from an understatement by the taxpayer of his business income. The facts are without dispute and the sole question is one of law. 2 At all relative times, the taxpayer, Frank Polk, was engaged as an individual in the business of raising and producing livestock. He filed his income tax return on the accrual basis. On his books he carried large livestock inventories which were a substantial factor in determining net income, if any, from the operation of his business. As a result of a revaluation of the taxpayer's livestock inventories, the Commissioner determined a very substantial deficiency in his 1948 income tax on which penalty interest was assessed. In 1952, he treated the item of interest as a business expense arising out of the operation of his business. In his 1953 return, he claimed the item as an operating loss carryover from the previous year under applicable provisions of the Revenue Code. 3 We are concerned here solely with the taxpayer's right to treat this item of interest as an item of expense attributable to the operation of his business of raising and producing livestock. Whether the penalty interest may be deducted as a business expense must be determined from a consideration of Section 23(a) (1)(A) of the 1939 Code, 26 U.S.C.A. 23(a)(1)(A). That Section permits deduction of 'all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.' The Section is general in its terms. It does not attempt to define or lay down a yardstick by which can be determined what specific items constitute business expense. A considerable discretion must be exercised in determining that question under the facts of each particular case. 4 In its opinion upholding taxpayer's right to deduct the penalty interest as an ordinary and necessary expense of doing business, the Tax Court said, 'We think it is clear that the deficiency assessed by respondent in 1948 arose in connection with petitioner's business, and was proximately related thereto, and that the same must be said of the interest paid thereon.' The court also concluded that this case was controlled by Commissioner of Internal Revenue v. Standing, 4 Cir., 259 F.2d 450. The Standing case involved both attorneys' fees and penalty interest. In reaching its conclusion in the Standing case that penalty interest on a deficiency assessment of income taxes was deductible as a business expense, the court relied on a line of cases holding attorneys' fees deductible as a business expense. 5 An item of expense is not deductible as a business expense merely because it arose in connection with the taxpayer's business and was proximately related thereto. To be deductible, it must be an ordinary and necessary expense incurred in the operation of the business. The decision in Kornhauser v. United States, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505, upholding the allowance of attorneys' fees in defending a suit against a taxpayer, was on the grounds that such fees were an ordinary and necessary expense of doing business and not that they were connected with the business and proximately related thereto. That expenses must be ordinary and necessary to be deductible as a business expense was again expressed by the court in Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 252, 88 L.Ed. 171. There, the court said, 'For respondent to employ a lawyer to defend his business from threatened destruction was 'normal'; it was the response ordinarily to be expected.' We are in accord with those decisions holding that attorneys' fees necessarily expended in litigation instituted by the taxpayer or in defense of such litigation brought against him, under proper circumstances, constitute ordinary and necessary expenses incurred in the operation of the business. But it does not follow from these cases that penalty interest on a deficiency income tax assessment likewise is deductibel. Such expenses stand in a different light. 6 What is the meaning of the word 'ordinary' as used in Section 23(a)(1)(A)? The Act does not define it. Neither is there a regulation by which we may be guided. Webster defines 'ordinary' as, 'Having or taking its place according to customay occurrences or procedure; usual; normal.' In that sense, attorneys' fees, in defense of litigation against a taxpayer, are ordinary expenses because such litigation results in numerous instances and is to be expected. But the same cannot be said, as a matter of course, of penalty interest. Whether such expenses are ordinary business expenses, depends upon the peculiar facts of each case. 7 The field, within which it can be said that penalty interest on a deficiency assessment of taxes against a taxpayer, charged with the duty of filing a correct return, constitutes an ordinary and necessary expense arising out of the operation of the business, is much narrower than in the case of attorneys' fees. Penalty interest is an incident of a deficiency assessment of additional taxes brought about by the failure of the taxpayer to correctly return all income of the business. Unless it can be said that the failure to properly evaluate inventories, which form a part of a taxpayer's return, arises because of the nature of the business, and is ordinarily and necessarily to be expected,1 interest on a deficiency assessment does not arise out of the ordinary operation of the business and may not be deducted. 8 As pointed out, the taxpayer was engaged in raising and producing livestock for the market. He kept his books and made his tax return on the accrual basis. We think we may judicially not that the value of livestock, including livestock which has been raised, as well as purchased, is a matter on which qualified minds may differ. Under such facts, it is difficult, if not impossible, for a taxpayer acting in the best of faith to make an inventory return which will correctly reflect the true value of the livestock as finally determined. Under such facts, it is to be expected that a final analysis and examination of the return will result in a valuation considerably different from that adopted by the taxpayer. Under such facts, it is our conclusion that the assessment of additional income taxes is an ordinary and usual incident of conducting such a business and may be expected to arise where the best of faith is exercised in the preparation of the return. In such cases, it is an ordinary and perhaps an unavoidable incident of conducting such business. There is a very great disparity in the amount of tax as revealed by the return and as finally determined, assessed and paid, after the correction of the inventory valuations. But there is no finding of bad faith in the preparation of the return. We mean to hold no more than that, under the facts of this case as presented to us, the holding of the Tax Court that the penalty interest constituted an ordinary and necessary business expense, within the terms of the applicable statute, is not without foundation, and the judgment is, therefore, affirmed. 1 Ordinary and necessary is used in the sense that it may be expected to occur on numerous occasions even where th taxpayer exercises good faith in preparing and evaluating the inventories

Filed 7/22/20; Certified for publication 8/7/20 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- THE PEOPLE, C087681 Plaintiff and Appellant, (Super. Ct. No. STK-CR-FER- 2018-0003729) v. LEON WILLIAM TACARDON, Defendant and Respondent. Defendant Leon William Tacardon was charged with possession of a controlled substance for sale (Health & Saf. Code, § 11351) and misdemeanor possession of marijuana for sale (Health & Saf. Code, § 11359). Evidence of these crimes was seized following an interaction with San Joaquin County Sheriff’s Deputy Joel Grubb, the details of which will be set forth momentarily. After an unsuccessful motion to suppress 1 the evidence made during the preliminary hearing pursuant to Penal Code1 section 1538.5, defendant renewed the motion in the superior court under section 995 and prevailed. The People appeal. We reverse. BACKGROUND The facts are taken from the evidence presented at the hearing on defendant’s motion to suppress. Deputy Grubb testified that at 8:45 p.m. on March 20, 2018, he was in uniform and driving a marked patrol car, with its high beams on, on Fairway Drive in Stockton.2 The deputy saw a gray BMW legally parked between two houses with its engine and headlights off. Three people were in the BMW, two of whom were reclining in the front seats wearing hooded sweatshirts. Smoke was coming out of the car windows that were slightly cracked open. Deputy Grubb made a U-turn, pulled up 15 to 20 feet behind the BMW, and parked, intending to contact the persons inside. He did not activate his siren or emergency lights, but turned on his spotlight to illuminate the car’s interior. He got out and began to approach the car; his weapon was not drawn. As Deputy Grubb approached the BMW, the passenger who had been in the rear seat, M.K., jumped out and closed the door behind her, moving very quickly and “kind of abrupt[ly].” Her conduct struck the deputy as “unusual” and caused him to be concerned for his safety, although he did not see anything in her hands or any bulge in her clothing, and she did not make any movements that appeared threatening. 1 Undesignated statutory references are to the Penal Code. 2 According to Deputy Grubb, the search took place in “west Stockton,” a high- crime, high-drug area. However, the immediate neighborhood was known as Riviera Cliffs and was adjacent to “the Country Club area.” The deputy did not know how many drug arrests had recently been made in Riviera Cliffs or how the drug arrest rate there compared to that in other parts of west Stockton. 2  When M.K. got to the rear of the BMW, Deputy Grubb asked her what she was doing. She replied: “I live here.” The deputy asked her to stay outside the car and near the sidewalk behind it, where he could observe her and react in time in case she were armed or began to act irrationally. He did not draw his gun or Taser and spoke in a “moderate” and “fairly calm” voice. She complied with his orders. Deputy Grubb did not smell marijuana before M.K. got out of the BMW, as he was not close enough to the car yet. However, he smelled the substance at about the time she got out and he made contact with her.3 At that point, the deputy did not consider any of the car’s occupants free to leave. The deputy then approached the BMW, using his flashlight to illuminate the interior because the rear windows were tinted. On the rear passenger floorboard, he saw three large clear plastic bags, the largest at least eight inches across and “kind of tied off,” containing a green leafy substance. He also saw a custom-rolled dark brown and green cigarette in the center console, containing a burnt green leafy substance; he did not believe it was lit. Deputy Grubb contacted the two men in the front seat and asked for their identification. Defendant, who was in the driver’s seat, did not produce identification but gave his name and said he was on probation. The front seat passenger produced identification that the deputy took and retained while speaking to the men. The deputy told defendant to stay in the car. Deputy Grubb returned to his patrol car and conducted a records check that confirmed the identifications of the BMW’s occupants and showed defendant was on searchable probation. The deputy secured defendant in the back of the patrol car. Along with other deputies, Deputy Grubb conducted a probation search of the BMW. The search uncovered, in addition to the plastic bags, an unlabeled prescription 3 The deputy stated that detaining M.K. and smelling the marijuana happened “all kind of simultaneously.” 3 vial containing 76 suspected hydrocodone pills in a storage area near the passenger-side rear door. Defendant was arrested, and $1,904 was found on his person. Laboratory analysis showed the plastic bags contained 696.3 grams of marijuana and the pills were hydrocodone. An expert opined both substances were possessed for purposes of sale. The Magistrate’s Ruling After hearing argument on the suppression motion, the magistrate ruled: “Deputy Grubb said that he was on Fairway Drive, which is in Riviera Cliffs, which I always thought was one of the wealthier areas of Stockton, but he said it[] . . . has a high crime rate. . . . I’ve been a judge for 34 years. I don’t recall that many cases coming out of Riviera Cliffs. In any case, he saw a BMW with three people in it at 8:45 p.m., March 20th of 2018. And two are in the front, one was in the back. And he saw smoke. The windows were cracked. I took that to mean they were open a small amount. The engine was not running. The vehicle was not moving. He . . . was going to contact the people. So he turned on his spotlight and illuminated the vehicle. At that point, the female passenger from the back seat exited quickly, jumped out, as he described it. Then he . . . said that -- and this was subject to quite a few questions -- that I think what happened was as she -- up until then, he didn’t smell marijuana. When she opened the door, he told her to stop. At that point, he did not smell the marijuana. But then more or less -- well, a little bit after she opened the door, a little bit after he told her to stop, he smelled the marijuana. And he told her . . . to stay in his vision for safety. So then . . . he used . . . his flashlight. And he turned the flashlight -- he had the flashlight on. And he can see large clear plastic bags with green leafy substance, approximately eight inches in diameter, in plain sight in the vehicle. This was as a result of looking through the windows with a flashlight. That . . . is not considered a search. He saw a cigarette in the center console that was rolled. It was dark, a burned substance, but it was a green leafy substance. I guess it was a combination of both. As it turned out, the 4 substance was marijuana, . . . 696.3 grams. So there were three baggies. So I would say this is approximately half a pound per bag. And after all this happened -- and this all happened pretty quickly. Once he flashed his light on the vehicle and observed the material, he then asked for ID from the defendant. The defendant didn’t have it. Then he obtained the name and date of birth from the defendant. And he subsequently recovered the marijuana. He . . . also discovered a vial of 76 pills in the passenger door, which were determined to be [O]xycodone. So then he arrested the defendant. “[I]t’s not against the law to possess an ounce, but if it’s more than an ounce, then it’s against the law. In other words, possession for sale of marijuana is still a felony.[4] So I think the officer had probable cause to believe that . . . this was more than an ounce that he saw in plain sight. I think it was a police contact. . . . [I]n other words, he didn’t stop the defendant. There certainly was a point at which the defendant wasn’t free to go, but that still would not preclude it being characterized as a contact. And so the question is were his Fourth Amendment rights violated. And I’m going to say even with the new law about marijuana, . . . they were not violated. . . . [B]ecause all this happened so quickly, . . . and the vehicle was stopped already, I don’t think his Fourth Amendment rights were violated. I think it was a valid search. In other words, after the officer saw this, he was entitled to seize it. And the search of the . . . passenger side door would be a search incident to a lawful arrest. “So here we had ample amount of marijuana and -- now, as far as the [O]xycodone, was that possessed for sale? Well, it might be possessed for personal use. Very possibly. But the issue for a preliminary examination is is there reasonable and 4 After defense counsel questioned this finding, the magistrate determined that under current law that was already in effect at the time of the search, possession of marijuana for sale is a misdemeanor. The magistrate then held defendant to answer on count 2 as a misdemeanor. 5 probable cause to believe that a felony was committed. And I think there’s certainly enough evidence to say . . . it certainly could be possessed for sale. Also we have a $1,904 in cash. There could be an innocent reason for the defendant to possess $1,900. Maybe he was going to pay his rent with it, but maybe he wasn’t. But in any case, I think there’s enough for a preliminary examination. So the 1538.5 is denied.” Ruling on the Section 995 Motion As mentioned, defendant’s section 995 motion renewed his challenge to the search and seizure. After hearing argument on the motion, the superior court ruled: “[T]he test for a temporary detention is an officer may temporarily detain a person suspected of criminal activity for only so long a period of time as is reasonably necessary to confirm or dispel such suspicions. At the point in time the officer pulled in behind the vehicle, it was . . . a consensual contact. He didn’t have his red lights on, he didn’t order anyone to do anything. “When the female got out of the car and he said it was for officer’s safety and ordered her to stop, he detained her. That’s . . . a detention. And he also said in his testimony the other individuals were detained in the car. . And even though . . . it doesn’t matter what he thought -- but to give it any commonsense logic, if he’s thinking they’re detained, wouldn’t a reasonable person think they were detained? And the test for the temporary detention is is the officer able to articulate particular facts that support a reasonable suspicion that the person is involved in criminal activity? . . . [T]his may be the highest crime-rate area ever. There may have been a million reasons justifiable as to why he detained the people in the car prior to smelling the marijuana. But the problem was, he couldn’t articulate those things. When you read through the transcripts, when he’s asked open-ended why he’s doing this, he doesn’t testify to any of that. “So I’m gonna grant the defendant’s motion. The evidence is suppressed and the case is dismissed.” This appeal followed. 6  DISCUSSION I Standard of Review “A criminal defendant is permitted to challenge the reasonableness of a search or seizure by making a motion to suppress at the preliminary hearing. [Citation.] If the defendant is unsuccessful at the preliminary hearing, he or she may raise the search and seizure matter before the superior court under the standards governing a section 995 motion. [Citations.]” (People v. McDonald (2006) 137 Cal.App.4th 521, 528-529.) In ruling on a suppression issue as part of a section 995 motion, “the superior court’s role is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a judgment. [Citation.] The superior court merely reviews the evidence; it does not substitute its judgment on the weight of the evidence nor does it resolve factual conflicts. [Citation.]” (McDonald, at p. 529.) On appeal from a superior court’s grant of a section 995 motion based on the conclusion a search or seizure was unreasonable, we “ ‘must draw all presumptions in favor of the magistrate’s factual determinations, and we must uphold the magistrate’s express or implied findings if they are supported by substantial evidence. [Citations.]’ [Citation.] ‘We judge the legality of the search by “measur[ing] the facts, as found by the [magistrate], against the constitutional standard of reasonableness.” [Citation.] Thus, in determining whether the search or seizure was reasonable on the facts found by the magistrate, we exercise our independent judgment. [Citation.]’ [Citation.]” (People v. Magee (2011) 194 Cal.App.4th 178, 182-183.) II The Challenged Detention Was Reasonable The Attorney General argues the superior court erred in concluding defendant was detained when Deputy Grubb ordered M.K. to stay outside the car and near the sidewalk behind it. According to the Attorney General, regardless of whether M.K. was detained 7 at that point, defendant was not detained until after Deputy Grubb smelled marijuana and saw three large bags of the substance on the rear floorboard of the BMW, at which point, “the deputy had reasonable suspicion that criminal activity was afoot.” In response, defendant argues the superior court correctly determined a reasonable person in defendant’s position would not have felt free to leave when the deputy prevented M.K. from going into her house and ordered her to remain by the BMW. After the initial briefing was submitted, our colleagues at the Fourth Appellate District decided People v. Kidd (2019) 36 Cal.App.5th 12 (Kidd), holding the defendant in that case, who was also in a parked car at night, “was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car.” (Id. at p. 21.) We granted the Attorney General’s request to file supplemental briefing addressing the new case. Having reviewed the supplemental briefing filed by the Attorney General and defendant, we agree with the Attorney General’s assessment of when the detention occurred and conclude it was supported by reasonable suspicion.5 “[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [20 L.Ed.2d 889].) Our Supreme Court has explained: “As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. . . . ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances 5 This conclusion makes it unnecessary to address the Attorney General’s alternative argument that discovery of defendant’s probation search condition was an intervening independent circumstance justifying the search and attenuating any taint from an initial unreasonable detention. 8 surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) It is settled that the driver and occupants of a vehicle are detained when a police officer blocks the vehicle’s only means of departure with the officer’s patrol car. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [detention occurred when officer in marked patrol car parked diagonally behind defendant’s vehicle so it could not exit parking lot].) However, “[w]ithout more, a law enforcement officer simply parking behind a defendant would not reasonably be construed as a detention.” (Kidd, supra, 36 Cal.App.5th at p. 21, citing People v. Franklin (1987) 192 Cal.App.3d 935, 940.) It is also settled that the use of emergency lights is a sufficient show of authority to communicate to a reasonable person that he or she is not free to leave. (People v. Bailey (1985) 176 Cal.App.3d 402, 405-406 [“reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer”].) However, “[w]ithout more, a law enforcement officer shining a spotlight on a person does not constitute a detention.” (Kidd, supra, 36 Cal.App.5th at p. 21, citing People v. Rico (1979) 97 Cal.App.3d 124, 128-129; People v. Franklin, supra, 192 Cal.App.3d at p. 940.) 9  For example, in People v. Perez (1989) 211 Cal.App.3d 1492 (Perez), a police officer parked his patrol car in front of Perez’s vehicle, leaving “plenty of room” for Perez to drive away, and activated both spotlights on the patrol car “to get a better look at the occupants and gauge their reactions.” (Id. at p. 1494.) The officer then walked over to the car, tapped on the window, and asked the driver to roll down the window. (Ibid.) The appellate court concluded: “[T]he conduct of the officer here did not manifest police authority to the degree leading a reasonable person to conclude he was not free to leave. While the use of high beams and spotlights might cause a reasonable person to feel himself [or herself] the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.]” (Id. at p. 1496.) In contrast, People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) involved more than the use of a spotlight to illuminate the person under scrutiny. As the appellate court explained, the following circumstances amounted to a sufficient show of authority to communicate to a reasonable person in the defendant’s position that he was not free to leave: “[A]fter only five to eight seconds of observing defendant[, a pedestrian,] from his marked police vehicle, [the officer] bathed defendant in light, exited his police vehicle, and, armed and in uniform, ‘briskly’ walked 35 feet in ‘two and a half, three seconds’ directly to him while questioning him about his legal status. Furthermore, [the officer] immediately questioned defendant about his probation and parole status, disregarding defendant’s indication that he was merely standing outside his home. In other words, rather than engage in a conversation, [the officer] immediately and pointedly inquired about defendant’s legal status as he quickly approached.” (Id. at pp. 1111-1112, fn. omitted.) Here, as in Perez, there is no evidence in the record indicating that the BMW was blocked in by Deputy Grubb’s patrol car. Nor does the fact that the deputy pulled up behind the BMW, activated the patrol car’s spotlight, and approached the vehicle on foot, manifest a sufficient show of police authority to constitute a detention. Unlike Garry, the 10 deputy did not quickly close the gap between himself and defendant or immediately and aggressively question him rather than engage in conversation. Nor does defendant argue, either in his initial briefing or in his supplemental brief, that a detention occurred when the deputy illuminated the BMW with the spotlight and began to approach on foot. We nevertheless pause the sequence of events here because Kidd, supra, 36 Cal.App.5th 12, holds to the contrary. In Kidd, a police officer on patrol in a marked police car at night saw a car with two occupants parked on a residential street with its fog lights on. The officer drove past the car, made a U-turn, parked about 10 feet behind the car, and illuminated the car with two spotlights. He then got out of his car and approached the parked car on foot, detecting a strong marijuana odor as he did so. When the officer reached the driver’s window, he shined his flashlight in the car and asked the occupants what they were doing. Ultimately determining the driver was subject to searchable probation, the subsequent search of the car uncovered drugs and a firearm. (Kidd, supra, 36 Cal.App.5th at pp. 15-16.) Relying on Garry, the appellate court held these circumstances constituted a detention: “Taking into account the totality of the circumstances, we find that Kidd was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car. The officer did not block Kidd’s car in, and he did not illuminate his colored emergency lights, so as to unambiguously signal a detention. Nevertheless, motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd’s circumstances ‘would expect that if he [or she] drove off, the officer would respond by following with red light on and siren sounding . . . .’ [Citation.] Moreover, any ambiguity was removed when the officer more or less immediately exited his patrol vehicle and began to approach Kidd’s car. Although the officer’s approach was, according to record, not made in a particularly 11 aggressive or intimidating manner, a reasonable person in Kidd’s circumstances would not have felt free to leave.” (Kidd, at pp. 21-22.) We disagree with this analysis for the reasons expressed in Perez, a decision the Kidd opinion inexplicably ignores. Simply put, although a person whose vehicle is illuminated by police spotlights at night may well feel he or she is “the object of official scrutiny, such directed scrutiny does not amount to a detention.” (Perez, supra, 211 Cal.App.3d at p. 1496.) Turning to the question of whether Deputy Grubb’s interaction with the backseat passenger, M.K., after she got out of the car, in addition to the foregoing events, amounted to a detention, we have no difficulty concluding M.K. was detained at that point. As to her, in addition to the spotlight, the deputy ordered her to remain on the sidewalk near the BMW. (See People v. Roth (1990) 219 Cal.App.3d 211, 215 [detention occurred when officer shined spotlight on defendant, stopped the patrol car, got out and commanded defendant to approach].) However, there is no evidence defendant observed the deputy’s interaction with M.K., or that the deputy conveyed to defendant that he, like M.K., was required to remain. (See Florida v. Bostick (1991) 501 U.S. 429, 434-437 [115 L.Ed.2d 389, 398-400] [no seizure when officers question a person, ask for identification, and request consent for search, so long as officers do not convey message that compliance required].) We conclude the magistrate’s implied finding that defendant was not detained at this point is supported by substantial evidence. Nevertheless, the superior court set this finding aside and found defendant was detained even before the deputy contacted him, apparently because the deputy testified he did not subjectively consider the car’s occupants free to leave after he had contacted M.K.6 Because the superior court should not have made new factual findings on a 6 After citing the deputy’s testimony, the superior court stated: “[I]t doesn’t matter what he thought.” However, the court then added that according to “commonsense 12 section 995 motion, and because the deputy’s uncommunicated state of mind would not have suggested to a reasonable person in defendant’s position that he was not free to leave, we disregard the superior court’s finding on this question. (See People v. Magee, supra, 194 Cal.App.4th at p. 182; People v. McDonald, supra, 137 Cal.App.4th at p. 529.) Based on the magistrate’s factual findings expressed on the record and supported by substantial evidence, we conclude defendant was detained by Deputy Grubb not when the deputy detained M.K., but when the deputy, after smelling marijuana coming from the BMW and seeing three large bags of the substance on the rear floorboard, told defendant to remain in the car while he conducted a records check. At that point, there can be no doubt the deputy possessed reasonable suspicion defendant was engaged in criminal activity. (See People v. Fews (2018) 27 Cal.App.5th 553, 560 [officers smelled and saw marijuana in vehicle, supplying reasonable suspicion the defendant may have been unlawfully transporting the substance].) We conclude the superior court erred by setting aside the magistrate’s ruling denying defendant’s motion to suppress evidence. We therefore grant the relief requested by the Attorney General. logic,” “if he’s thinking they’re detained, wouldn’t a reasonable person think they were detained?” The answer is no: if an officer has not said or done anything to cause a reasonable person to think he or she is detained, the officer’s unspoken thoughts are irrelevant. (In re Manuel G., supra, 16 Cal.4th at p. 821.) 13  DISPOSITION The superior court’s order is reversed, and the matter is remanded with directions to reinstate the information and the magistrate’s order denying defendant’s motion to suppress evidence. /s/ HOCH, J. We concur: /s/ ROBIE, Acting P. J. /s/ BUTZ, J.* * Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 14 Filed 8/7/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- THE PEOPLE, C087681 Plaintiff and Appellant, (Super. Ct. No. STK-CR-FER- 2018-0003729) v. ORDER CERTIFYING OPINION LEON WILLIAM TACARDON, FOR PUBLICATION Defendant and Respondent. [NO CHANGE IN JUDGMENT] APPEAL from a judgment of the Superior Court of San Joaquin County, Michael J. Mulvihill, Judge. Reversed with directions. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Appellant. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Respondent. THE COURT: The opinion in the above-entitled matter filed on July 22, 2020, was not certified for publication in the Official Reports. For good cause it now appears that the opinion 1 should be published in the Official Reports and it is so ordered. FOR THE COURT: /s/ ROBIE, Acting P. J. /s/ HOCH, J. /s/ BUTZ, J.* * Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 2 

566 A.2d 742 (1989) Robert E. ANUSZEWSKI, d/b/a Pine Tree Post & Beam v. Richard H. JUREVIC, et al. Supreme Judicial Court of Maine. Argued October 6, 1989. Decided November 28, 1989. Daniel T. Rush (orally), Hodsdon & Rush, Kennebunk, for plaintiffs. Paul F. Macri (orally), Berman, Simmons & Goldberg, Lewiston, Dana Prescott, Potter & Prescott, Saco, for defendants. *743 Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ. CLIFFORD, Justice. Defendants and counterclaim plaintiffs Richard and Judy Jurevic appeal from a judgment entered after a jury trial in Superior Court (York County, Bradford, J.).[1] Because we conclude that the court improperly limited the jury's consideration of damages claimed by the Jurevics, we vacate the judgment on the counterclaim. In early 1987, the Jurevics contracted with the plaintiff, Robert E. Anuszewski, a contractor doing business as Pine Tree Post & Beam, for Anuszewski to construct a home for the Jurevics in Kennebunkport. The home was to be completed by June 1, 1987, at a cost of $134,000, and the contract called for the Jurevics to make periodic progress payments. The home was only about fifty percent complete on June 1, 1987. In January 1988, the Jurevics discharged Anuszewski. In March 1988, Anuszewski brought an action against the Jurevics to recover $39,590.[2] The Jurevics filed a counterclaim. At trial, the Jurevics presented evidence that the construction work was defective and testimony in the form of an expert opinion as to the total cost to correct the defects and to complete the house. The testimony indicated that this cost would include a general contractor markup of fifty percent added to the actual cost of the work to be done for overhead and profit, and that this was a usual and customary practice of the industry. The Jurevics also claimed damages for rental and other incidental expenses caused by Anuszewski's delay in completing the house. The court, however, prohibited the Jurevics from presenting evidence of delay damages beyond January 5, 1988, the date the Jurevics terminated the contract with Anuszewski. At the conclusion of the evidence, the court, in its jury instructions, precluded the jury from considering the general contractor's markup as follows: [I]f you find that the Jurevics are entitled to recover damages from Mr. Anuszewski for completion of the work not done or for repairing work not performed in a workmanlike manner, any amount of damages that you award must be the cost of doing that work by the various workmen without any markup to a general contractor, such as was testified to by [the Jurevics' expert witness]. The jury returned a verdict awarding Anuszewski damages of $25,000 on his complaint and awarding $22,000 to the Jurevics on their counterclaim. This appeal by the Jurevics followed the denial of their motions for a mistrial, or in the alternative, for a new trial, and for additur. We find merit in the Jurevics' contention that the court impermissibly restricted the jury's consideration of the full amount of damages that they were entitled to recover. The purpose of contract damages is to place the injured parties in the position they would have been in but for the breach, by awarding the value of the promised performance. See Forbes v. Wells Beach Casino, Inc., 409 A.2d 646, 654 (Me.1979); Restatement (Second) of Contracts § 344(a), at 102-03 (1981). Those damages for breach of a construction contract are measured by either the difference in value between the performance promised and the performance rendered, or the amount reasonably required to remedy the defect. Parsons v. Beaulieu, 429 A.2d 214, 217 (Me.1981). The amount reasonably required to remedy the defect may be measured by the actual cost of necessary repairs. Id.; Wimmer v. Down East Properties, Inc., 406 A.2d 88, 92 (Me.1979). Those costs may be proven by the presentation of expert testimony, as the Jurevics did here. Gosselin v. Better Homes, Inc., 256 A.2d 629, 639 (Me.1969). *744 The court correctly instructed the jury that the Jurevics' measure of recovery for incomplete or defective work was "the amount reasonably required to remedy the defect" as specifically measured by the actual cost of repair. See Parsons, 429 A.2d at 217. The court went on, however, to instruct the jury that the cost of repair was to be considered "without any markup to a general contractor."[3] This instruction was given despite testimony from an expert witness that the actual cost to remedy the incomplete and defective construction work of Anuszewski would include a general contractor markup for overhead and profit, and that such a markup was customary and usual in the construction business. Although Anuszewski defends the court's instruction, he did not argue at trial, nor does he now, that the Jurevics were not entitled to have the jury consider their claim that it was reasonable for them to hire a general contractor to supervise the repairs and completion of the house. If the jury concluded that it would be reasonable for the Jurevics to hire a substitute general contractor to supervise the repairs and completion, but was precluded by the court's instruction from considering the award of damages for the reasonable cost of the substitute contractor's overhead, for which the evidence suggests they would be charged as a matter of routine, then the Jurevics could be deprived of full recovery in their breach of contract claim. They would not be placed in the same position they would have been had Anuszewski performed the contract. Forbes, 409 A.2d at 654. In breach of contract cases we have upheld repair or replacement damage awards of the amount required to bring a home into compliance with the contract. Parsons, 429 A.2d at 217 (recovery of amount expended to replace defective septic system installed by contractor); Wimmer, 406 A.2d at 91-92 (recovery of amount expended to drill replacement well). In addition, we have affirmed the computation of indebtedness owed a builder by a homeowner that included a contractor's overhead and profit. Gosselin, 256 A.2d at 639. We see no reason to exclude reasonable and customary profit and overhead of a contractor from the cost of repairs to remedy defects in a breach of contract case. See Beal v. New Orleans Public Serv., Inc., 365 So.2d 1118, 1121 (La.App.1978).[4] The entry is: Judgment on the complaint affirmed. Judgment on the counterclaim vacated. Remanded to the Superior Court for further proceedings consistent with the opinion herein. All concurring. NOTES [1] Plaintiff Anuszewski filed a cross-appeal that has since been dismissed. [2] The $39,590 represented, alternatively, the unpaid part of the contract price, or the value of the labor and materials provided by Anuszewski for which he had not been paid. [3] At the conclusion of the court's instruction, counsel for the Jurevics objected "to the instruction regarding the general contractor markup and the damages...." The court acknowledged and noted the objection. Contrary to Anuszewski's contention, the objection to the court's instruction to the jury precluding their consideration of the contractor's markup or overhead in awarding damages to the Jurevics was distinctly stated and adequately preserved. M.R.Civ.P. 51(b). [4] The Jurevics also contend that the court impermissibly limited their proof of consequential damages by restricting the evidence of those damages to the time period before January 5, 1988, the date Anuszewski was discharged. Anuszewski argues that the Jurevics failed to preserve the issue for appellate review because they failed to make an offer of proof as to those damages arising after January 5. See M.R.Evid. 103(a)(2). Because we vacate the judgment, we need not address whether the issue was properly preserved. At a new trial on the counterclaim, however, the Jurevics should be entitled to offer proof of their reasonable consequential damages. See Restatement (Second) of Contracts § 374(b) (1981). Subject to their duty to mitigate damages, see Schiavi Mobile Homes, Inc. v. Gironda, 463 A.2d 722, 724-25 (Me.1983), the Jurevics should not be limited in their proof of consequential damages by an arbitrary time period.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1705 EDDIE BRADFORD LEE; WILLIAM SANFORD GADD; KATHY CAROL MOORE, Plaintiffs - Appellants, versus GRAHAM C. MULLEN; ROBERT D. POTTER; RICHARD L. VOORHEES; H. BRENT MCKNIGHT; CARL HORN, III; J. HARVIE WILKINSON, III; DONALD S. RUSSELL, JR.; H. EMORY WIDENER, JR.; K. HALL; FRANCIS D. MURNAGHAN, JR.; SAM J. ERVIN, III; WILLIAM WILKINS, JR.; PAUL V. NIEMEYER; CLYDE H. HAMILTON; J. MICHAEL LUTTIG; KAREN J. WILLIAMS; M. BLANE MICHAEL; DIANA GRIBBON MOTZ; JOHN D. BUTZNER; J. DICKSON PHILLIPS; ROBERT F. CHAPMAN; MARK T. CALLOWAY; JAMES M. SULLIVAN; CLIFFORD C. MARSHALL; LORETTA C. ARGRETT; JONATHAN S. COHEN; DONALD B. TOBIN; ELLEN M. GREGG; SEVERAL UNKNOWN STAFF ATTORNEYS; UNKNOWN OFFICERS OF THE COURT, Defendants - Appellees. Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Charlotte. Lacy H. Thornburg, District Judge. (CA-99-180-T-3) Submitted: October 17, 2000 Decided: November 1, 2000 Before TRAXLER and KING, Circuit Judges.* Affirmed by unpublished per curiam opinion. Eddie Bradford Lee, William Sanford Gadd, Kathy Carol Moore, Appellants Pro Se. Joseph L. Brinkley, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina; Gilbert Steven Rothenberg, John A. Dudeck, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Wash- ington, D.C.; Frank Lane Williamson, Debbie Weston Harden, WOMBLE, CARLYLE, SANDRIDGE & RICE, Charlotte, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). * The opinion is filed by a quorum pursuant to 28 U.S.C. § 46(d) 1994). 2 PER CURIAM: Eddie Bradford Lee, William Sanford Gadd, and Kathy Carol Moore appeal the district court’s order dismissing their civil complaint for failure to state a claim upon which relief could be granted. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Lee v. Mullen, No. CA-99- 180-T-3 (W.D.N.C. Sept. 3, 1999). 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 

244 S.W.2d 707 (1951) NUNNELEY et al. v. WEILER et al. No. 15301. Court of Civil Appeals of Texas, Fort Worth. December 14, 1951. Rehearing Denied January 11, 1952. *708 Cantey, Hanger, Johnson, Scarborough & Gooch, and J. Kirby Smith, all of Fort Worth, for appellants. Carter & Gallagher, Joe Hill Jones, Walter Magee and Ben T. Warder, Jr., all of Dallas, for appellees. RENFRO, Justice. Appellants W. E. Nunneley and Jerry Nunneley have appealed from an order of the district court of Cooke County, Texas, overruling their plea of privilege to be used in Montague County, Texas. The appellees, John J. Weiler, Joe C. Trachta and R. W. Donnell, Sr., filed suit for damages growing out of a collision on Highway 82 in Cooke County. By their first two points, appellants allege error on the part of the trial court in refusing to sustain their motion to dismiss the appellees' controverting affidavit. The motion to dismiss was based on the allegation that the controverting affidavit was sworn to by appellees' attorney and that he could not have knowledge of the truth or falsity of the matters contained in appellees' petition. The attorney for appellees testified he obtained his knowledge of the facts and circumstances set out in appellees' petition and the controverting affidavit upon independent investigation and upon information given by his clients. He was not asked and did not testify what he learned from independent investigation and what he learned from his clients. *709 An attorney may make such an affidavit as herein involved. Rule 14, Texas Rules of Civil Procedure. The affidavit is admittedly sufficient in law upon its face. It is definite, unequivocal, and recites that the allegations set out in the appellees' petition and in the controverting affidavit are true and correct. It is therefore an affidavit on which a charge of perjury can be based if the matters sworn to therein are false. There is nothing in the affidavit to indicate that the contents of the petition or the affidavit is based on information or hearsay. There being nothing in the pleadings or the affidavit to indicate appellees' attorney was not cognizant of the statements therein, we are bound to accept the affidavit for what it appears to be on its face. The purpose of a controverting affidavit is to join issue upon venue facts. It must assert fact propositions which are so clear and definite that their falsity would sustain a prosecution for perjury. Appellees' affidavit met the foregoing requirements. The test of the sufficiency of a controverting affidavit is the affidavit itself The affidavit in question was perfectly valid on its face. The venue issues were joined upon the filing of the affidavit. The court did not err in refusing to dismiss the controverting affidavit. Our conclusion, we believe, is supported by Maucini v. Haymes, Tex.Civ.App., 231 S.W.2d 757; Evans v. Jeffrey, Tex.Civ.App., 181 S.W. 2d 709; Cumba v. Union Bus Lines, Inc., Tex.Civ.App., 229 S.W.2d 176 and Duncan v. Denton County, Tex.Civ.App. 133 S.W. 2d 197. By points 3 to 7, inclusive, appellants challenge the sufficiency of the evidence to show a crime or trespass committed by either appellant in Cooke County. Venue was sustained in Cooke County under the provision of Sec. 9, Art. 1995, Revised Civil Statutes of Texas, Vernon's Ann.Civ.St. Art. 1995, subd. 9, which permits suit to be brought in the county where a crime or trespass is committed. The pleadings and evidence reveal that three automobiles were travelling east on Highway 82 in Cooke County. There was a heavy for reducing visibility to a distance of fifty to seventy-five feet. The care were travelling at a speed of 25 to 30 miles per hour. A Ford pick-up, traveling 40 to 60 miles per hour, going east, passed the three other cars. In doing so, it crossed to the left hand side of the highway. The Trachta car, going west, met the Ford pick-up just as it was passing the lead car of the three heretofore mentioned. To avoid a head-on collision with the Ford pick-up, Mrs. Trachta pulled off the paved portion of the highway, lost control of her car and collided with one of the three cars going east. Evidence on ownership of the Ford pick-up and identity of its driver was conflicting. The hearing was before the court without a jury. The trial court did not file findings of fact and conclusions of law. It must be presumed that the trial court found the necessary facts raised by the pleadings and the evidence in support of its judgment. We must therefore view the evidence in the light most favorable to appellees; Broussard v. L. Cartwright Realty Co., Tex.Civ.App., 179 S.W.2d 777, error refused; Kimbell Milling Co. v. Greene, 141 Tex. 84, 170 S.W.2d 191, Supreme Court. Several witnesses testified regarding the identity of the Ford pick-up and its driver. Some of the evidence was circumstantial. The trier of the facts was entitled to consider circumstantial evidence. Strain v. Martin, Tex.Civ.App., 183 S.W. 2d 246; Davis v. Bailey, Tex.Civ.App., 187 S.W.2d 412. A careful study of the entire statement of facts brings us to the conclusion that the evidence, viewed in the light most favorable to appellees, sustains the trial court's judgment. The appellants' points of error are overruled and the judgment of the trial court is affirmed.

798 F.Supp. 593 (1992) RESOLUTION TRUST CORPORATION, in its capacity as Conservator of Great American Federal Savings Association, Plaintiff, v. FREEWAY LAND INVESTORS, et al., Defendants. No. Civ. 91-2107 PHX SMM. United States District Court, D. Arizona. May 11, 1992. Randy R. Kehrli, Morrison Hecker, Washington, D.C., Mark A. Nadeau, Paul *594 Edward Golab (argued), Morrison & Hecker, Phoenix, Ariz., for Resolution Trust Corp. Jones Osborn, II, Anna Lorraine Durand, G. Murray Snow (argued), Meyer Hendricks Victor Osborn & Maledon, P.A., Phoenix, Ariz., for Freeway Land Investors, Wayne Taylor and Nora Taylor. Ronald E. Warnicke, Warnicke & Littler, Phoenix, Ariz., for Ralph Watkins, Jr. and Patricia M. Watkins. Janet B. Hutchison, Susan G. Wintermute, Robbins & Green, P.A., Phoenix, Ariz., for Hardesty Enterprises, George W. Hardesty, Aliene Hardesty, Lawrence D. Hardesty, Gail Hardesty, Bruce B. Hardesty and Mary Jane Hardesty. Michael R. Scheurich, William L. Novotny, Mariscal Weeks McIntyre & Friedlander, P.A., Phoenix, Ariz., for Northern Equities Co., Hamilton-Lyons Co., Ricky J. Lyons, Inc., John R. Hamilton and Can Am Financial Corp. ORDER McNAMEE, District Judge. This action arises from Defendant Freeway Land Investors' default on a $2,500,000.00 promissory note secured by a junior trust on a piece of property near McDowell Road and 51st Avenue in Phoenix, Arizona (the subject property). On February 14, 1991, then-Plaintiff Great American Bank (Great American) brought this action in the Superior Court of the State of Arizona, in and for the County of Maricopa, seeking enforcement of the promissory note. The parties proceeded with the lawsuit in the Superior Court, and filed various motions. The Resolution Trust Corporation (RTC) was appointed as the receiver for Great American on October 25, 1991. The RTC subsequently substituted itself into the action and removed the action to the United States District Court for the District of Columbia. Soon afterward, that court transferred the case to this Court. At the time the RTC removed the action from the Superior Court, several motions and cross-motions for summary judgment were pending and had been argued before the Superior Court. Although various motions remain pending, the parties have brought a single motion to the Court's attention at this time because that motion could dispose of the entire case. In the motion, Defendants Freeway Land, Wayne Taylor and Nora Taylor[1] seek summary judgment based on A.R.S. section 33-814, which they contend bars this action for enforcement of the note because the Plaintiff conducted a trustee's sale of the subject property and failed to commence a deficiency action within 90 days of the sale. The RTC contends the instant action, which was filed prior to the trustee's sale, is tantamount to a deficiency action and thus satisfies the requirements of section 33-814. FACTS Defendant Freeway Land Investors (Freeway) executed a promissory note to Great American for $2,500,000.00 on March 24, 1986. On March 24, 1986, Freeway executed a deed of trust to two acres of the subject property as security for its performance under the note. Great American, the beneficiary under the deed of trust, recorded the deed of trust on March 25, 1986. Freeway also assigned its interests as the second beneficiary under a junior trust to the remainder of the subject property to Great American on March 24, 1986. The assignment of the interest under the junior trust gave Great American the right to foreclose on the assignment as it would a mortgage.[2] Great American recorded the assignment of interest under the junior trust on March 25, 1986. After receiving two extensions of the maturity date of the promissory note, Freeway defaulted on the note. *595 Great American commenced this action to enforce the note and foreclose on the interest under the junior trust on February 14, 1991. On July 1, 1991, the trustee held a trustee's sale on the two acres secured by the deed of trust. Great American purchased the two acres for a credit bid of $380,000.00. Great American did not commence a separate deficiency action after the sale, and did not amend its complaint specifically to seek a deficiency. DISCUSSION A.R.S. section 33-814(D) states: If no action is maintained for a deficiency judgment within [90 days of the trustee's sale], the proceeds of the sale, regardless of amount, shall be deemed to be in full satisfaction of the obligation and no right to recover a deficiency in any action shall exist. "To `maintain' an action is to uphold, continue on foot, and keep from collapse a suit already begun, or to prosecute a suit with effect." BLACK'S LAW DICTIONARY 859 (5th ed. 1979) (citing George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265 (1933)). "To maintain an action or suit may mean to commence or institute it; the term imports the existence of a cause of action. Maintain, however, is applied to actions already brought, but not yet reduced to judgment." Id. (citing Smallwood v. Gallardo, 275 U.S. 56, 61, 48 S.Ct. 23, 23, 72 L.Ed. 152 (1927)). The Plaintiff clearly "maintained" this action within 90 days of the trustee's sale. Thus, the only issue before the Court is whether the instant action to foreclose the property secured by the assignment under the junior trust and to recover on the promissory note, which was filed prior to the trustee's sale, constitutes an action for deficiency judgment within the meaning of A.R.S. section 33-814. In Baker v. Gardner, 160 Ariz. 98, 770 P.2d 766 (1989), the Arizona Supreme Court considered the issue of whether a holder of a purchase-money security interest in residential property could waive its right to foreclose and instead sue on the note. Under A.R.S. sections 33-729(B) and 33-814(G), a holder of a purchase-money mortgage or deed of trust on two and one-half acres or less of residential property cannot recover a deficiency judgment after a foreclosure or trustee's sale. The court concluded a lawsuit to enforce the note effectively was a lawsuit to recover a deficiency: "In our view, the legislature would not have protected homeowners from deficiency judgments but still permitted the holder of a mortgage or deed of trust to obtain essentially the same result by waiving the security and bringing [an] action on the note." Id. at 101-02, 770 P.2d at 769-70. Therefore, the court held the creditor could not waive its security interest in the property and sue on the note. Id. at 104, 770 P.2d at 772. The Court finds the same analysis of the relationship between an action on the note and an action for a deficiency judgment following a sale of the property applies in this case. If the Plaintiff had proceeded to judgment on the promissory note and then sold the properties in execution of the judgment, the amount of judgment left unsatisfied by the sales would constitute a deficiency. The Plaintiff would have a right to recover the deficiency based on the judgment already obtained. Thus, an action on the note and an action seeking a deficiency are one and the same. This conclusion finds further support in other Arizona cases and in A.R.S. section 33-814(C). For instance, in Faber v. Althoff, 168 Ariz. 213, 812 P.2d 1031 (App.1990), the Arizona Court of Appeals noted the effect of a judgment in a foreclosure action "is to render a defendant liable for the full amount of the debt, not just the portion of the debt that will be satisfied from the proceeds of the sale of the property." Id. at 219, 812 P.2d at 1037. The effect ... of a judgment in a foreclosure action is to render a judgment for the full amount of the debt, not just that portion of the debt that will be satisfied from the proceeds of the sale of the property.... If ... the named defendant is personally served or appears and the action is in personam, the court *596 would have personal jurisdiction to issue a general execution against the assets of the defendant other than the foreclosed property, should the special execution on the foreclosed property be insufficient to satisfy the judgment. The effect of the deficiency language in A.R.S. § 33-725 is to allow a plaintiff to obtain an in personam judgment in a proceeding to foreclose, which was historically an in rem proceeding, and to thereby authorize a court to award, in one proceeding, full equitable and legal relief....[3] [B]ased on this reading of the statute, we reject defendants' argument that the remaining amount of the debt was "extinguished" by plaintiff's sale of the property under the writ of special execution. Id. (emphasis in original). Although the court in Faber did not analyze section 33-814, the court recognized the right to bring an action on the note prior to the sale of the land and to recover the outstanding balance remaining after the sale of the land. The court in Faber and the Arizona Supreme Court, in Kries v. Allen Carpet, Inc., 146 Ariz. 348, 706 P.2d 360 (1985), reiterated the principle that [t]echnically speaking, there is no such thing under our law as a "deficiency judgment" in the sense that a formal judgment of that description is rendered by the court, or entered by the clerk for the amount not made by the sale of the mortgaged property. There is only the original judgment for the full amount of the indebtedness, upon which a deficiency may exist after the issuance and return of the special execution, or even perhaps of one or more general executions in addition. It has nevertheless been customary in ordinary parlance to refer to the amount still due after the return of the special execution as a deficiency judgment...." Id. at 349, 706 P.2d at 361 (quoting Bank of Douglas v. Neel, 30 Ariz. 375, 380-81, 247 P. 132, 134 (1926)); Faber, 168 Ariz. at 219, 812 P.2d 1031 (same quote). As with the Court of Appeals' discussion in Faber, the Arizona Supreme Court's discussion in Kries did not involve a trustee's sale. However, the courts' explanation of the relationship between an action on a note and a deficiency judgment has broad application. Both courts' discussions highlight the indistinguishable rights bound up in a deficiency action and a pre-sale action on a note. Moreover, A.R.S. section 33-814(C) states: The obligation of a person who is not a trustor to pay, satisfy or purchase all or a part of the balance due on a contract secured by a trust deed may be enforced, if the person has so agreed, in an action regardless of whether a trustee's sale is held. If, however, a trustee's sale is held, the liability of a person who is not a trustor for the deficiency is determined pursuant to subsection A of this section and any judgment for the deficiency against the person shall be reduced in accordance with subsection A of this section. If any such action is commenced after a trustee's sale has been held, it is subject, in addition, to the ninety day time limitations of subsections A and B of this section. Because subsection C contains an explicit provision requiring application of the 90-day statute of repose to actions commenced against non-trustors after a trustee's sale, it implies the existence of a proper action on the note prior to a trustee's sale, and further implies such an action either satisfies or is not subject to the 90-day period of repose. Based on the foregoing, the Court finds an action on the note is the same as an action on a deficiency, and satisfies the requirements of section 33-814 if commenced in a timely manner. Returning to the definition of "maintain," the Court further finds an action on the note, commenced prior to a trustee's sale, constitutes *597 a timely action for deficiency within the meaning of section 33-814. CONCLUSION IT IS ORDERED denying the motion for summary judgment based on A.R.S. section 33-814(D), which was filed in the Maricopa County Superior Court on October 18, 1991. NOTES [1] The Hardesty Defendants filed a notice of their joinder in the motion on October 25, 1991. [2] In light of the separate parcels securing the note, the Court questions whether A.R.S. section 33-814(B) has any application in this case even though the property secured by the second trust deed must be foreclosed as a mortgage. In light of the Court's ruling, however, the Court does not need to address this issue. [3] The Court notes this language casts serious doubt on the arguments made in the Taylors' and Freeway Land's cross-motion for summary judgment dated July 19, 1991. See also id. at 220, 812 P.2d at 1038.

155 F.2d 992 (1946) JONES v. WATERMAN S. S. CORPORATION (READING CO., Third Party Defendant). Nos. 8930, 8945. Circuit Court of Appeals, Third Circuit. Argued November 20, 1945. Decided May 28, 1946. *993 *994 Abraham E. Freedman, of Philadelphia, Pa. (Freedman, Landy & Lorry, all of Philadelphia, Pa., on the brief), for appellant David E. Jones. George M. Brodhead, of Philadelphia, Pa. (Rawle & Henderson and Joseph W. Henderson, all of Philadelphia, Pa., on the brief), for appellant Waterman Steamship Co. Henry R. Heebner and Wm. Clarke Mason, both of Philadelphia, Pa. (Morgan, Lewis & Bockius, of Philadelphia, Pa., on the brief), for appellee. Before BIGGS, McLAUGHLIN and O'CONNELL, Circuit Judges. BIGGS, Circuit Judge. The plaintiff, David E. Jones, a seaman employed by the defendant and third-party plaintiff, Waterman Steamship Corporation, brought suit against his employer in a civil action to recover maintenance and cure and wages. Jones had left his ship, the S.S. "Beauregard", on shore leave and was proceeding across the pier toward the street when all the lights on the pier were extinguished. As a result of the darkness he fell into an open ditch along a railway siding owned and operated by the third-party defendant, Reading Company, and sustained injuries which incapacitated him for some months. Waterman impleaded Reading Company as a third-party defendant for reasons set out hereinafter. The suit at bar, Civil Action No. 1481 in the District Court, was instituted by Jones on the same day that he brought a civil action against Reading Company in the court below, Civil Action No. 1480, to recover damages for his injuries and expenses in connection therewith. No. 1480 was tried to a jury and a verdict was returned for the plaintiff in the amount of $2,387.50. Thereafter, the court granted a motion made by Reading for a new trial. See Jones v. Reading Company, D.C., 45 *995 F.Supp. 566. Jones then settled his case with Reading for the sum of $750 and executed a general release in the latter's favor. The release was in the usual form and released and discharged Reading from all claims and demands whatsoever which Jones had against Reading "by reason of any matter, cause or thing whatsoever * * * and particularly, * * * by reason of injuries and losses sustained as a result of * * *" the fall "to recover for which I brought suit in the U. S. District Court for the Eastern District of Pennsylvania against Reading Company, in Civil Action No. 1480, * * *". During the pendency of No. 1481 Waterman filed a motion to dismiss the action against it on the ground that a ship owner was not liable for maintenance and cure for an injury occurring on a pier. The motion was granted by the court below but the judgment was reversed by this court. See 3 Cir., 130 F.2d 797. Our decision was affirmed. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. After remand Waterman filed an answer setting out the release which Jones had executed to Reading and impleaded Reading asserting that Waterman is entitled to indemnity from Reading for any sum which Jones may recover against Waterman. The case went to trial. Jones introduced as evidence the testimony received in No. 1480. Other evidence was also received which need not be detailed here. It is enough to state that certain testimony was given by Jones respecting his inability to work following his medical discharge and that shipping articles of the "Beauregard" were introduced in evidence as was the release to Reading. In No. 1480 Jones sought to recover both compensation and consequential damages, the latter including, as the evidence shows, substantially all the items recoverable by Jones as maintenance and cure and wages. The court below in the instant case concluded that "To permit the plaintiff to successfully prosecute [the action at bar] would be to enable him to obtain two satisfactions for the one injury by resort to two different causes of action." 60 F.Supp. 30, 32. Judgment was entered in favor of Waterman and against Jones. Judgment also was entered in favor of Reading as third-party defendant and against Waterman as third-party plaintiff on the theory enunciated in The Federal No. 2, 2 Cir., 21 F.2d 313. Both Jones and Waterman have appealed at our Nos. 8930 and 8945, respectively. If a seaman falls sick or is injured and must be removed or is kept from his vessel he is entitled to maintenance and cure as well as to his wages. Smith v. Lykes Brothers-Ripley S.S. Co., 5 Cir., 105 F.2d 604, 605. Wages, even if they include "keep", must be restricted to the term of employment as specified by the shipping articles while the duty to provide maintenance and cure lasts as long as the seaman's need continues. Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L.Ed. 993; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, certiorari denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535. Jones has a cause of action against Waterman for maintenance and cure and for his wages as set out in his complaint in the suit at bar. This is an action ex contractu. Jones may maintain it by reason of the obligations and duties imposed on Waterman by the shipping articles and by virtue of his status as a member of the crew of the "Beauregard". Jones also had a cause of action against Reading sounding in tort and arising ex delicto by reason of Reading's alleged failure properly to maintain its right-of-way. Jones was careful to restrict his complaint in the case at bar to a claim for "wages to the end of the articles and maintenance and cure for the period of his disability * * *". He does not seek to recover damages from Waterman. The distinction between the right to maintenance and cure and wages and the right to damages is made clear by the Supreme Court in Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220, wherein Mr. Justice Sanford stated, "In short, the right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence; and these two rights are consistent *996 and cumulative." See also Aguilar v. Standard Oil Co., supra, 318 U.S. at pages 730, 731, 63 S.Ct. 930, 87 L.Ed. 1107. Jones could not have recovered maintenance and cure and wages from Reading, nor may he recover damages from Waterman. It follows that Waterman and Reading were not joint tortfeasors. In fact, Waterman committed no tort. It is not alleged that it did. Under no theory of law can Jones' release to Reading release Waterman. It is unnecessary therefore to discuss the Pennsylvania law of release of joint tortfeasors or to compare it with the federal law. Cf. Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550 and McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253. Jones has settled his cause of action against Reading but he is free to assert and to recover on his ex contractu cause of action against Waterman. He would be free to do this even if he had obtained a judgment against Reading and had executed it. The circumstances are somewhat analogous to those which would be presented if a person insured against personal liability were injured by an automobile driven by an alleged tortfeasor. He has sued the tortfeasor who drove the automobile which hit him and recovered a verdict. This has been set aside and he, thereafter, makes a settlement with the alleged tortfeasor. He then seeks to collect a sum of money which he alleges is due to him under his insurance policy because of his injuries. The insurance carrier says, "You have made a settlement with and have received money from the tortfeasor, the amount of your claim against us has been satisfied by that settlement or at the least your recovery against us must be reduced pro tanto." This contention in substance was dealt with by the court in Dempsey v. Baltimore & O. R. Co., D.C., 219 F. 619 and was refuted. See also Sprinkle v. Davis, 111 F. 2d 925, 128 A.L.R. 1101 and Clune v. Ristine, 10 Cir., 94 F. 745. The position taken by Waterman as to Jones is untenable. In the suit at No. 1480 there was a certain confusion evinced by counsel for both parties as to the nature of the damages which Jones was entitled to prove and this confusion seems to have been carried over into the suit at bar. As we have indicated at an earlier point in this opinion, a seaman is entitled to wages only to the end of the period of time covered by the shipping articles, whereas he is entitled to maintenance and cure as long as he shall have need of them. Two sets of shipping articles were introduced in evidence. We are concerned with only one, those signed by Jones on January 6, 1941, and which were in effect on January 16, 1941, the day of the accident. It has been stipulated by the parties that these shipping articles were "closed out" on February 5, 1941. But the articles state, inter alia, that the seamen should make one or more voyages on the "Beauregard" as the master might direct "for a term of time not exceeding twenty-four calendar months." We entertain no doubt in the light of such decisions as McCarron v. Dominion Atlantic Railway Company, D.C., 134 F. 762, and Enochasson v. Freeport Sulphur Co., D.C., 7 F.2d 674, that Waterman's obligation to pay Jones' wages endured as long as the period for which he claims maintenance and cure. Since this was the fact the District Court at No. 1480 could not have permitted Jones to recover from Reading damages based upon maintenance and cure and wages. Jones was entitled to recover in the suit at No. 1480 only compensatory damages including an amount to be awarded for pain and suffering. Since Jones was not entitled to recover damages for maintenance and cure and wages in the suit at No. 1480, all other considerations aside, these elements may not be deemed to have been included in the settlement of the suit at No. 1480. We come now to the final phase of the case at bar. The question presented by it may be assumed up as follows: May Waterman recover from Reading any sum which it may be required to pay to Jones for maintenance and cure and wages? In other words, if Waterman pays Jones, is Waterman entitled to indemnity from Reading if it be found that Reading negligently caused Jones' injuries? The third party complaint filed by Waterman does not allege specifically that Reading was negligent or that Jones was injured by reason of Reading's negligence. It does aver, *997 however, that Reading was in charge of the premises through which Jones walked as an invitee and that when the lights on the pier were extinguished Jones fell into the railroad "ditch" sustaining the injuries which he recites in his complaint. The evidence in No. 1480 was introduced by a stipulation into the case at bar. The court below in the case at bar made no findings of fact or conclusions of law as to Reading's negligence, if any, since it relied on The Federal No. 2, supra. It is suggested by counsel for Jones that this court "as in an action in admiralty" may make findings of fact and conclusions of law. We may not do this. The suit at bar is not in admiralty though Jones' rights against Waterman are governed by the general maritime law. It is a civil suit and is to be conducted in the court below according to the Rules of Civil Procedure. 28 U.S. C.A. following section 723c. Since it was tried to the court[1] and not to a jury, findings of fact and conclusions of law must be made by the court below as required by Rule 52. For the purpose of expediting the cause we will assume, arguendo, that Jones' injuries were caused by Reading's negligence and will endeavor to state the applicable principles of law governing the third-party action. Whether Waterman may maintain its action against Reading in the present suit depends in part on whether the cause of action set out in the third-party complaint can be fitted into the frame of Rule 14(a). The answer to this question turns in large part on the construction of the word "claim" as used in the rule.[2] We think it would be difficult to employ a more inclusive term, and, as is stated in Moore's Federal Practice, Vol. 1, at p. 742, "* * * it is reasonably certain that Federal Rule 14 sought the same general objectives as * * * Admiralty Rule [56]." Admiralty Rule 56, 28 U.S.C.A. following section 723, is very broad and, if the suit at bar were in admiralty, would permit the defendant to maintain the third-party complaint under the assumption of proof which we have made. Moore states also at p. 740, that "The general purpose of Rule 14 is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant." If Waterman will have a claim which it can assert against Reading because compelled to pay Jones money which, absent Reading's negligence in relation to Jones, it would not have to pay, Waterman may assert that claim in the suit at bar by way of its third-party complaint. The primary question therefore is whether or not Waterman has a cause of action which it can assert against Reading if Waterman is compelled to pay Jones. We think that Waterman has such a cause of action if it can prove that Reading's negligence was the cause of Jones' injuries. If Waterman can recover from Reading it can do so because a cause of action arises under the law of Pennsylvania where the operative facts occurred.[3] and [4] No Pennsylvania case in point has been cited to us *998 and we can find none. The right is one of an employer to recover indemnity for sums of money which he has been compelled to pay to a servant who has been injured by the tortious act of another. This is not the right of an employer to recover against a tortfeasor for an act which has deprived him of the services of a servant but resembles the latter. It is desirable to state some of the precedents of the general law to the end that our reasons for allowing recovery to Waterman under the assumptions hereinbefore stated may be made plain. At common law an employer could maintain an action against a tortfeasor to recover damages on account of loss of services which he sustained by reason of an injury to his employee.[5] This cause of action included damages measured by the loss of the employee's services. See 35 American Jurisprudence, Master and Servant, § 530, and the authorities cited therein, and 18 R.C.L., 542, § 58. As to servants infra moenia, some cases held that the master could recover only his out-of-pocket expense due to being deprived of the services. This rule of law persisted to a rather late date in New York. See Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145. These rights in substance were those of indemnification. Some of the early cases permitted indemnification against an intentional tortfeasor and denied it as to a merely negligent tortfeasor. The Supreme Judicial Court of Massachusetts did not make such a distinction in Ames v. Union Railway, 1875, 117 Mass. 541, 19 Am.Rep. 426, but permitted a master to recover for the loss of apprentice's services, the latter having been injured due to negligent operation of the railway. See Coal Land Development Co. v. Chidister, 86 W.Va. 561, 103 S.E. 923. The American courts seem to have made no distinction between loss of services caused by intentional wrongdoing, such as assault and battery, and those in which the loss of services resulted from mere negligence. See Voss v. Howard Fed.Cas. No. 17,013. The case of Cain v. Vollmer, 19 Idaho 163, 112 P. 686, 32 L.R.A. N.S., 38, seems typical. In this case a jockey was injured by a dog, negligently permitted to wander at large by its master. The employer of the jockey sued to recover the value of the prizes which the jockey might have won had he been able to ride. The damages, however, were held to be too speculative to permit recovery. The Supreme Court of Idaho, however, clearly found that a cause of action existed. Compare Fluker v. Georgia Railroad & Banking Co., 81 Ga. 461, 8 S.E. 529, 2 L.R.A. 843, 12 Am.St.Rep. 328. A case which denies the master's right to recovery is Chelsea Moving & Trucking Co. v. Ross Towboat Co., 280 Mass. 282, 182 N.E. 477. The Supreme Judicial Court of Massachusetts distinguished Ames v. Union Railway, supra, on the ground that the employee in the Ames case was an apprentice and the relationship between master and apprentice was different from that of an ordinary employer and employee, which was purely contractual. The Chelsea Moving & Trucking Co. case is the only decision among the early cases which we have found (though doubtless there are others in the deeps of the law) which holds that an employer cannot recover indemnity for the loss of his employee's services, whether the loss was caused by intentional wrongdoing or negligence. The English law may have gone off in the direction of permitting recovery only if there had been intentional tortious interference with the employer and employee relationship. Lumley v. Gye, 2 El. & Bl. 216, may be said to look in that direction. But the general law in the United States upon this subject seems settled.[6] *999 This is not to say, however, that the employer or master may necessarily recover the sums expended by him out of his own pocket to cure the servant or employee or to maintain him during the illness resulting from an accident. It would seem to follow, however, as a matter of logic that if the master by virtue of his contract of employment with the servant is compelled to maintain and cure his servant during the latter's illness the master should be permitted to recover these sums from the wrongdoer as part of the remedy afforded him in his cause of action against the wrongdoer.[7] There are a number of cases arising under the general maritime law where such recovery or indemnification was permitted. In Mystic Terminal Co. v. Thibeault, 1 Cir., 108 F.2d 813, the operator of a car float towed by a tug was held liable for injuries sustained by the mate of the tug when he stepped through the rotted roof of the car float. It was held that the mate was on the roof for a business purpose and that it was the intention of the parties to include within the contract of towage and implied warranty of a safe place to work. In New York & Porto Rico S.S. Co. of New York v. Lee's Lighters, D.C.E.D.N.Y., 48 F.2d 372, the court held that the steamship company was entitled to indemnity for money paid by it in satisfaction of a judgment obtained against it, plus expenses, arising out of an injury to a stevedore, employed by the steamship company, the accident arising out of the unseaworthiness of a lighter operated by the lighterage company. It was held that there was an implied warranty of seaworthiness in the lighter under the lighterage contract. This case should be viewed in the light of the recent decision of the Supreme Court in Seas Shipping Co., Inc., v. Sieracki, 66 S. Ct. 872. In The No. 34, 2 Cir., 25 F.2d 602, a stevedoring company whose employee was injured by a defective ladder fastened to the side of a lighter and who had recovered a judgment against his employer in the state court, was held to be entitled to indemnification from the owner of the lighter. Again, it was ruled that there was an implied warranty of a safe place to work as an incident of the stevedoring contract. See also The Lewis Luckenbach, 2 Cir., 207 F. 66. In this case a stevedore had been injured due to a defect in the ship's machinery. The stevedore sued the owner and the charterer and settled with both. The charterer sued the owner for indemnity and recovered. See also Rederii v. Jarka Corporation, D.C.S.D.Me., 26 F. Supp. 304. In this case an employee of a stevedoring company was injured in the hull of a vessel under circumstances possibly entitling him to compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. He sued the vessel and made a compromise settlement. The owner of the vessel brought a libel in personam against the stevedoring company for indemnity. It was held that the owner of the vessel had a cause of action. The Federal No. 2, supra, is the only decision which we have been able to find which militates against this view. We will discuss that decision at a later point in this opinion. If the principles of the majority of the decisions cited in the foregoing paragraph are sound it would follow that indemnity or recovery over may be had against a pier owner, or one holding under him, by a ship for sums expended by it for the maintenance and cure of one of its seamen injured because the pier was not maintained in a condition fit for the business purpose for which it was intended. The duty to maintain the pier, or a railroad track running upon it, in a safe condition for the benefit of seamen leaving a ship moored to the pier is a warranty implicit in the contract between the pier owner and the ship and in the contract or arrangement between the pier owner and the railroad *1000 whose tracks run upon the pier. But putting this tortious spelling out of contractual obligations and implied warranties aside, it is clear that Reading had a duty so to maintain its tracks on the pier that a seaman leaving the "Beauregard" would not be injured if he exercised due care. Under this concept Reading's obligation sounds in tort and not in contract but is none the less binding upon it for that reason. Chief Justice Holmes took this position in Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781, 86 Am.St.Rep. 478, declaring that although the cause of action of the injured employee against the third party sounded in tort and the obligations and duties of the employer and the employee sounded in contract, the right of the employer to indemnity against the tortfeasor who had injured the employee was not impaired. We come finally to such Pennsylvania cases as there are. There is no doubt that under the Pennsylvania law an employer has a right to recover against a tortfeasor for an act deliberately intended to deprive him of the services of his servant. Such a right was recognized by the early Pennsylvania decisions dealing with labor relations.[8] We believe that the law of Pennsylvania follows the general law and will permit the employer to recover from a negligent tortfeasor for the value of the services of his injured employee, though we can find no decision directly in point upon this question. It is the law of Pennsylvania that property owners may recover indemnity from persons whose primary negligence has caused them to pay damages to injured persons. See Orth v. Consumers' Gas Co., 280 Pa. 118, 124 A. 296, and Wise Shoes, Inc., v. Blatt, 107 Pa. Super. 473, 164 A. 89. Here the duty imposed upon the corporations primarily liable sounds in tort and grows directly out of the failure to maintain premises properly. The Pennsylvania labor relations cases and the two decisions last cited throw some light on the problem of law presented. Moreover, it must be borne in mind that the obligation of Waterman in the instant case grows out of the maritime law. Waterman cannot escape the burden of Jones' maintenance and cure and it could not escape the loss of his services. Each element of the loss rose out of Reading's tort, assuming Reading to have been negligent. We think that under these circumstances the law of Pennsylvania will permit Waterman to recover not only for the loss of Jones' services but for the sums which it will be compelled to expend for his maintenance and cure. In so holding we are not unmindful of the decision of the Circuit Court of Appeals for the Second Circuit in The Federal No. 2 which held to the contrary under circumstances analogous to those at bar. The substance of that Court's ruling appears in 21 F.2d at page 314, where, after reference to a "social condition" which permits a father to recover for the loss of the services of a child or a husband for those of his wife, states, "But this social condition does not exist in the relationship of a seaman and his employer. It is a contract obligation, which [the employer] must perform, that imposes this responsibility, even though it be a special damage he suffers from a tortious act. The cause of the responsibility is the contract; the tort is the remote occasion." In Seas Shipping Co., Inc. v. Sieracki, Mr. Justice Rutledge makes it plain that the obligations of the ship to its seamen do not rest solely in contract; that a seaman is in effect a ward of the admiralty and that the relationship between owner and seaman, master and seaman, and ship and seaman is in essence a "consensual relationship". We are of the opinion that the relationship of the ship owner to the seaman is more closely analogous to that of father and child than to that of an employer to a mere employee. *1001 We prefer to impose a higher degree of dignity upon the ship-seaman relationship, awarding to it a status or a "social condition" in excess of that given under the ruling in The Federal No. 2. Compare Crab Orchard Imp. Co. v. Chesapeake & O. R. Co., 4 Cir., 115 F.2d 277, 282, 283, where an employer was not permitted to recover indemnity against the tortfeasor who had injured his employee. It should be pointed out that in the cited case the relationship was merely that of employer and employee. The status of the ship to its seaman bears comparison to that of a soldier in the United States Army to the United States. In United States v. Standard Oil Co., D.C. S.D.Cal., 60 F.Supp. 807, the United States sued the Standard Oil Company for indemnity for the money expended by it to cure an enlisted man of the United States Army who had been struck by the defendant's truck and for the soldier's wages during the period of his incapacity. The court permitted the recovery of both items. While the status of an enlisted man in the armed forces of the United States may be described as statutory and the obligation of the ship to grant maintenance and cure to the injured seaman arises under the admiralty law as embodied in decisions, the principle of liability so clearly enunciated in the cited case should be applicable under the facts of the case at bar. While the courts of the Commonwealth of Pennsylvania have not applied the maxim "Ubi jus, ibi remedium", they have been apt in indemnifying injured employers and we conclude that it is no very great innovation to permit Waterman to recover from Reading for maintenance and cure to be paid by it to Jones, if Reading's negligence is found to be the cause of Jones' injuries. It is clear that the release executed by Jones to Reading will not avail Reading in the third-party action for the right of Waterman against Reading is not a derivative right through Jones but is a separate and distinct cause of action which will vest in Waterman when it is ascertained what sum of money is due from Waterman to Jones. Cf. United States v. Standard Oil Co., supra. The judgment against Jones and in favor of Waterman will be reversed. The judgment in favor of Reading and against Waterman will be reversed. The cause will be remanded with the direction to proceed in accordance with this opinion. McLAUGHLIN, Circuit Judge (dissenting). I agree with the majority that Jones has a right ex contractu against the Waterman company for wages, maintenance and cure. I dissent from the finding that the Waterman company in its turn can recoup such payments from the tort-feasor railroad. Crab Orchard Imp. Co. v. Chesapeake & O. R. Co., 4 Cir., 115 F.2d 277, presented quite similar facts. There the Court in an exhaustive opinion determined that the employer had no claim against the third party tort-feasor. The principles of both indemnity and subrogation were held inapplicable because the tort-feasor was not benefited by the employer's payments and because of the vast difference between the duties and liabilities of the employer and those of the tort-feasor. There is no more factual basis here for indemnification or subrogation than appeared in that matter. The Pennsylvania cases cited in the majority opinion as holding "that property owners may recover indemnity from persons whose primary negligence has caused them to pay damages to injured persons" do not assume to govern an action founded on a contract status. Other Pennsylvania decisions may indicate a liberal trend in dealing with injuries to employees but afford very slim ground on which to predicate the Court's opinion on the instant problem. The Pennsylvania workmen's compensation law allows an employer's subrogation action against a third party tortfeasor, 77 P.S. § 621. The statutory basis of such right thrusts a new and contrary rule into the common law (Williston on Contracts, Revised Edition, § 1028A) but that doctrine is confined to workmen's compensation. I do not think that the common law rule of indemnification to an employer extends beyond payments by him to his servants and such class of persons or that the majority view to the contrary can *1002 be fairly said to represent the present Pennsylvania law. The majority further asserts that indemnity is indicated because of the maritime contract between Jones and the Waterman company with that relationship controlling between Waterman and the railroad. Under such pronouncement there is created generally a greater responsibility to a sailor than to a landsman which would exist in favor of a ship operator simply because of his special liability to his seamen. No valid reason is advanced for such radical extension of the underlying maritime theory. Lastly the Court opinion states that the logic of the law suggests the allowed indemnity. Even if this were to be assumed, arrival at such logical result necessitates holding the defendant under a liability which did not attach to it at the time of the occurrence. The logic involved might be for consideration of the Pennsylvania Legislature in establishing the same type of statutory indemnification against a third party tort-feasor as that body has already fixed in workmen's compensation, but the question is not properly before us on this appeal. NOTES [1] While there was no express waiver of jury trial, the original plaintiff having requested trial by jury on April 17, 1941, as provided by Rule 38(b) and the third party plaintiff having made no such request, it is apparent from the transcript of the proceedings in the court below on June 5, 1944, the day of the trial, that all the parties waived all rights to trial by jury. [2] See that portion of Rule 14(a) which provides that a defendant may "serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him." [3] The dividing line between Admiralty and the common law is set out in Sec. 128 and 128a of Benedict on Admiralty, Knauth's 6th Ed. Contrast the English and American Rules. See the authorities cited to Knauth's text. Under the decisions of the American courts there is no doubt that Waterman's cause of action does not lie within the purview of the maritime law. [4] It will be observed that the third-party complaint alleges diversity of citizenship and jurisdictional amount and that the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. must be applied. [5] The action by husband or parent for loss of services of wife or child is closely analogous. See the Restatement, Torts, Section 703. It will be noted that the husband or parent is entitled to recover reasonable expenses incurred in treating the illness or injury. See h. Damages, under Section 703 of the Restatement. The recovery of such items may be had because the husband or parent is himself legally liable for them. [6] It is stated as follows in 39 C.J., Master and Servant, § 1604, "A master may maintain an action for all injuries to his servants because of the negligent or wilful acts of third persons which result in damage to the master through loss of services; and the rule has been applied where loss of services resulted from an assault and battery upon the servant, or by reason of his false imprisonment, from the negligent shooting of the servant, or from negligently driving or transporting him, or from his being bitten by defendant's dog." See the authorities cited to the text, some of which have been referred to in this opinion. [7] The fact that a husband or father, suing for loss of services of wife or child, may recover for medical expenses supplies a helpful analogy. See note 5 supra. [8] See O'Neil v. Behanna, 182 Pa. 236, 37 A. 843, 38 L.R.A. 382, 61 Am.St.Rep. 702; Jefferson & Indiana Coal Co. v. Marks, 287 Pa. 171, 134 A. 430, 47 A. L.R. 745; Floccus v. Smith, 199 Pa. 128, 48 A. 894, 54 L.R.A. 640, 85 Am. St.Rep. 779; Kraemer Hosiery Co. v. American Federation of Full Fashioned Hosiery Workers, 305 Pa. 206, 157 A. 588. Cf. Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, cited by Reading. As to the general common law on this subject see 18 R.C.L. p. 542, § 58, and the authority cited to the text.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-40173 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GILBERTO SALDIVAR-GONZALEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-247-1 -------------------- January 7, 2003 Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit Judges. PER CURIAM:* Gilberto Saldivar-Gonzalez appeals his sentence following his guilty-plea conviction for illegally reentering the United States after having been previously deported, in violation of 8 U.S.C. §§ 1326(a) and (b). Saldivar-Gonzalez argues, and the Government correctly concedes, that the district court erred in assessing a 16-level increase to Saldivar-Gonzalez’ offense score pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) by determining that * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 02-40173 -2- Saldivar-Gonzalez’ prior state-court conviction for retaliation constituted a “crime of violence.” We agree that the district court committed reversible error when it determined that the retaliation conviction constituted a “crime of violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, Saldivar-Gonzalez’ sentence is VACATED and his case is REMANDED to the district court for resentencing. See United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). Saldivar-Gonzalez also argues that the voluntary disclosure of an offense is a permissible basis for a downward departure. See U.S.S.G. § 5K2.16, p.s. If Saldivar-Gonzalez renews his request for a downward departure on this ground, the district court should determine whether he is entitled to such downward departure. See United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). SENTENCE VACATED; REMANDED FOR RESENTENCING. 

527 F.2d 1264 UNITED STATES of America, Appellee,v.James Andrew LANG et al., Appellants.UNITED STATES of America, Appellee,v.Otha Lee LOWE, Appellant. Nos. 75--1524, 75--1525. United States Court of Appeals,Fourth Circuit. Argued Oct. 10, 1975.Decided Nov. 4, 1975. W. J. Chandler, Jr., Charlotte, N.C. (Court-appointed) (William M. Claytor, Charlotte, N.C. (Court-appointed), on brief), for appellants. Douglas M. Martin, Asst. U.S. Atty. (Keith S. Snyder, U.S. Atty., on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges. PER CURIAM: 1 This is an appeal by four persons convicted of bank robbery--Huntley and Lowe as aiders and abettors to principals Lang and Harris. 2 It is not error to refuse motions for severance where there is no suggestion that joinder will result in prejudice. Nor may these defendants successfully claim error in that the district court in its discretion severed the trial of a fifth defendant who subsequently testified as a government witness. 3 Lang moved the court to permit him to appear as co-counsel. Absent some indication of special need, it is not error to deny such a motion. United States v. Shea, 508 F.2d 82 (5th Cir. 1975); Duke v. United States, 255 F.2d 721 (9th Cir. 1958); United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y.1975). See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). 4 Appellant Lang argues that it was error to admit as evidence $300 obtained by police officers from the apartment of Mrs. Bertha Suber where he was arrested. We conclude that Lang lacks standing to challenge this search as violative of his fourth amendment rights. 5 Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), set out the minimal 'privacy' and 'possessory' interests required to establish standing. These cases hold standing to exist where either: (1) 'possession of the seized evidence is itself an essential element of the offense with which the defendant is charged . . .,' or (2) the defendant is 'legitimately on (the) premises when the search occurs.' Simmons, supra,390 U.S. at 390, 88 S.Ct. at 974. 6 We believe that Lang satisfies neither test. First, as Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), clearly demonstrates, the 'automatic' standing afforded to defendants charged with possessory offenses is narrowly limited to those circumstances where 'possession of the seized evidence at the time of the contested search and seizure' is an "essential element of the offense . . . charged." 411 U.S. at 228, 93 S.Ct. at 1569. Since possession of stolen money at the time of the search was not an essential element of the crime of bank robbery charged in this case, appellants, under this test, lack standing to challenge the search. 7 Secondly, Lang was not 'legitimately on the premises' of Mrs. Suber's apartment at the time of the search. Her testimony at trial clearly shows that she was aware of Lang's purpose of avoiding detection by the police when he entered her apartment, and that the $300 left by him there was tendered as payment for providing him with a hiding place from the police. App. 66--70. Thus, in no sense was Lang legitimately there when arrested, and therefore he and a fortiori all other appellants1 lack standing to challenge the search. Compare Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973). 8 Other errors assigned are without sufficient merit to require discussion. 9 Affirmed. 1 Alderman v. United States, 394 U.S. 165, 171--72, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)

736 F.Supp. 1479 (1990) UNITED STATES of America, Plaintiff, v. Robert H. BAILIN, et al., Defendants. No. 89 CR 668-1, 2, 4. United States District Court, N.D. Illinois, E.D. April 19, 1990. *1480 Jeffrey B. Steinback, Genson, Steinback & Gillespie, Chicago, Ill., for defendant Robert H. Bailin. Jerry D. Sparks and Noel Dennis, Chicago, Ill., for defendant Tom Crouch. Robert M. Stephenson, Cotsirilos, Crowley, Stephenson, Tighe & Streicker, Chicago, Ill., for defendant James Marren. David J. Stetler, McDermott, Will & Emery, Chicago, Ill., for defendant Joseph O'Malley. Eugene J. Kelley, Jr., Arnstein & Lehr, Chicago, Ill., for defendant Mike Greenfield. Steven J. Rosenberg, Rosenberg, Opdycke, Gildea, Hellner & Kelly, Chicago, Ill., for defendant Ray Pace. William P. Murphy, Murphy, Peters, Davis & O'Brien, Chicago, Ill., for defendant Martin Riley, Jr. James Meltreger, Onesto, Giglio, Meltreger & Associates, Chicago, Ill., for defendant Michael Sidel. *1481 James Streicker, Cotsirilos, Crowley, Stephenson, Tighe & Streicker, Chicago, Ill., for defendant Mike Smith. Patrick A. Tuite, Tuite, Mejia & Giachetti, Chicago, Ill., for defendant Gary Wright. Michael Lorge, Laser, Kolman & Frank, Chicago, Ill., for defendant Aric March. Nicholas J. Etten, Foran, Wiss & Schultz, Chicago, Ill., for defendant Daniel Parz. Charles D. Sklarsky and Robert J. Byman, Jenner & Block, Chicago, Ill., for defendant Matt Newberger. Michael Goggin, Oak Park, Ill., for defendant Thomas M. Braniff. Thomas P. Sullivan and Jeffrey Colman, Jenner & Block, Chicago, Ill., for defendant John Baker. Thomas A. Durkin, Arnstein & Lehr, Chicago, Ill., for defendant Sam Cali. Richard Manning, Chicago, Ill., for defendant Michael Christ. Thomas Shanahan, Mansker & Shanahan, Chicago, Ill., for defendant Ken Maslak. Frank Stachyra, Riverside, Ill., for defendant Donald Callahan. Michael D. Monico and Barry A. Spevack, Monico, Pavich & Spevack, Chicago, Ill., for defendants Brian Sledz and James Sledz. Daniel Gillogly, Mark Pollack and Lisa Huestis, Asst. U.S. Attys., for the Government. MEMORANDUM OPINION AND ORDER HART, District Judge. This case is the product of an undercover investigation into the trading practices in the Japanese Yen Pit of the Chicago Mercantile Exchange. Defendants Bailin, Baker and Cali each seek to suppress statements made to agents of the Federal Bureau of Investigation ("FBI") and Assistant United States Attorneys ("AUSA") during interviews. A question frequently asked by defense lawyers is—why do suspects make admissions? It might seem that it never would be in the interest of any person being investigated to respond to questions. The answer from psychologists and students of this subject is that suspects make admissions because they are in a state of mind which leads them to believe that cooperation is the best course of action to follow. The fact that statements do not appear to be in the subject's self-interest does not contradict the fact that they were motivated. R. Royal, The Gentle Art of Interviewing and Interrogation, 115 (1981). Interrogation for the purpose of motivating admissions becomes constitutionally objectionable only when the circumstances prevent the person being questioned from making a rational choice between answering or remaining silent. Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir.1989). Defendant Bailin asserts that his statements should be suppressed because they were prompted by the deceitful conduct of the Government agents. Defendant Baker alleges that his statements should be suppressed because they were prompted by "refined coercion." Baker also urges the court to exercise its supervisory powers to suppress his statements because an AUSA allegedly violated DR 7-104(a)(2) of the Illinois Code of Professional Responsibility by giving legal advice to him during their interview. Defendant Cali contends that his statements were given involuntarily. He also urges the court to suppress his statements because of an alleged violation of DR 7-104(a)(2). The motions were the subject of a three-day evidentiary hearing. Defendants were granted leave to develop and fully brief all of the issues raised in their motions. I. BAILIN'S MOTION TO SUPPRESS Bailin has moved to suppress statements he made to Government agents over the course of two interviews. The first was conducted by two FBI agents at Bailin's home. The second took place two days later when Bailin visited the offices of the FBI to discuss his case with an AUSA. At the hearing on the motion, the Government presented four witnesses. Bailin testified in support of his motion. *1482 A. Findings of Fact for Bailin's Motion 1. At approximately 7:00 a.m. on Saturday, January 21, 1989, FBI Agents Maura Kelly and Kevin Rust sought to serve Bailin with a grand jury subpoena at his apartment in the Presidential Towers complex in Chicago. 2. Bailin was not at home when the agents arrived. They left a copy of the subpoena with his wife. Agent Kelly told Mrs. Bailin that they would like to talk to her husband. Kelly also gave Mrs. Bailin one of her business cards. 3. Between 5:00 and 6:00 p.m. that evening, Bailin called the number on Agent Kelly's business card and reached Agent Ernest Locker. Bailin told Locker that he wanted to get "to the bottom of the situation," and that he was "anxious to talk to the agents" about the subpoena. Bailin agreed to meet with two agents that evening after Locker told him that it might be possible for the agents to return to discuss the matter. 4. At approximately 7:00 p.m. that evening, Agents Kelly and Rust returned to Bailin's apartment. Bailin's wife and child were present in the apartment. Bailin invited the agents into his study to talk privately. 5. At the time of these interviews, Bailin was 36 years old. He was employed as an independent trader in the Yen pit and had traded in the futures markets for approximately thirteen years. Bailin has an undergraduate degree in mathematics and economics from New York University and a Master's degree in finance and accounting from the University of Chicago. 6. Agent Kelly began the interview by telling Bailin about the nature of the investigation and that undercover Agent Dietrich Volk, who had posed as a Yen pit trader, had tape recorded his conversations and transactions with other traders. Bailin admitted to having occasionally traded with Volk because he was under the impression that Volk was a small, struggling trader like himself who needed help. Bailin then speculated that his trades with Volk were likely to have been captured on tape. 7. At that point, Bailin stated, "Perhaps I should have an attorney." Agent Kelly told Bailin that the agents could not advise him on the matter and that he would have to make that decision himself. 8. Bailin continued the interview, explaining to the agents that smaller traders like him had to agree to take losses from a broker if they wanted to keep receiving business. On more than one occasion, Bailin asked the agents why they were picking on him since he was such a "little fish" compared to the other traders in the pit. 9. Near the end of the interview, Bailin asked the agents about the specific charges that might be brought against him. Agent Kelly informed Bailin he would have to talk to someone from the United States Attorney's Office. 10. The January 21st interview lasted approximately one and one half hours. The agents conducted the interview in a polite manner. Although Bailin's demeanor was somewhat "excited," he readily answered all of their questions and repeatedly expressed his desire to continue cooperating with the Government. 11. On the following Monday, January 23, 1989, at approximately 3:00 p.m., Bailin went to the office of the FBI for the purpose of learning from an AUSA the specific charges that might be brought against him. Agents Kelly and Volk met with Bailin and directed him into an empty office. 12. During the interview, Bailin reaffirmed his desire to cooperate with the Government. He answered more of the agents' questions until a certain point when he asked whether he was doing the right thing by cooperating. Agent Volk told Bailin that he did not have to talk to the agents if he did not want to, but that he could be brought before a grand jury with a grant of immunity. 13. AUSA Gillogly joined the January 23rd interview after approximately an hour. Gillogly explained to Bailin that his trading activities could result in possible RICO charges and that under RICO, he could be subject to a twenty-year sentence and forfeiture of his ill-gotten assets. This *1483 information was conveyed to Bailin in a polite, business-like fashion. 14. At that point, Bailin informed Gillogly that he would need to talk to an attorney before deciding whether to cooperate further. Gillogly responded by telling Bailin that he could not give him any advice on that decision. B. Conclusions of Law on Bailin's Motion Bailin argues that the statements he made during both of these interviews were not given voluntarily. There is no dispute between the parties over the characterization of the statements as those made during the course of two noncustodial interviews and without the benefit of Miranda warnings. A noncustodial interrogation conducted without the benefit of such warnings does not give rise to a presumption of coercion. United States v. Hocking, 860 F.2d 769, 774 (7th Cir.1988). Nonetheless, the Supreme Court has recognized that the conduct of Government agents in a noncustodial setting may prompt a suspect to make statements involuntarily. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). In Beckwith, the Court stated that a "noncustodial interrogation might possibly in some situations, by virtue of some special circumstances, be characterized as one where `the behavior of ... law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined....'" Id. (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961)). Thus the question before the court is whether the defendant made the statements because his free will was overborne by virtue of the interrogative conduct of the agents. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (statements may be admitted if they are "the product of an essentially free will and unconstrained choice of [their] maker"). In addressing this question, the court must review the totality of the circumstances, including the nature of the interrogation as well as the characteristics of the accused. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). As a necessary predicate to a determination that the statements were made involuntarily, the court must find that "coercive police activity" during the interrogation caused the defendant to make his or her statements. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 527, 93 L.Ed.2d 473 (1986). The Government bears the overall burden of proving by a preponderance of the evidence that the statements were made voluntarily. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). Bailin's primary contention is that the agents prompted him to make his statements by means of "deceit, trickery, and false promises of leniency."[1] In United States v. Serlin, the Seventh Circuit held that in order to suppress on the basis of such a claim, the evidence must reveal that the Government agents (1) affirmatively mislead the defendant as to the true nature of their investigation, and (2) the misinformation was material to the defendant's decision to speak with the agents. United States v. Serlin, 707 F.2d 953, 956 (7th Cir.1983). The court went on to clarify that the "[s]imple failure to inform defendant that he was the subject of an investigation, or that the investigation was criminal in nature, does not amount to affirmative deceit unless defendant inquired about the nature of the investigation and the agents' failure to respond was intended to mislead." Id. The testimony at the hearing on Bailin's motion does not support his motion to suppress on any of the foregoing grounds. In support of his contention, Bailin first argues that the agents' initial attempt to serve him at 7:00 a.m. on a Saturday morning was intended to catch him off guard and leave him with insufficient time to assess whether to talk to them. Even if *1484 this assertion regarding the intent of the agents is correct, Bailin was not at home when the agents arrived. Bailin learned of the visit and subpoena later that day when he returned home. He initiated the subsequent interview with the agents by calling the offices of the FBI early that evening. On the basis of Bailin's own testimony, it is clear that he had sufficient time to decide whether to respond to the subpoena, whether to call and talk to the agents, or whether to contact an attorney. Bailin also had sufficient time to reassess whether he was going to talk to the agents since it took them approximately an hour to arrive at his apartment. In support of his claim of deceit, Bailin argues that he made his statements during the January 21st interview only because he was mislead by Agent Kelly. Bailin testified that Kelly told him over the phone that the use of a subpoena did not necessarily mean he was in trouble because it was a standard investigative technique. Bailin also testified that during the interview, Agent Kelly told him he was not a "target" of the investigation. The testimony at the hearing does not support an inference in favor of Bailin's claim that he was deceived by the agents. To begin with, Bailin could not recall that he talked to Agent Locker rather than Agent Kelly when he called the FBI offices. Moreover, Agent Kelly denied telling Bailin that he was not a target of the investigation. In fact, both Agent Kelly and Agent Rust testified that they began the January 21st interview with Bailin by informing him about the nature of the investigation and Agent Volk's use of a tape recorder in the Yen pit. At that point, Bailin fully understood that if he had made any illegal trades with Volk, it was likely that those trades were captured on tape. Agent Rust further testified that when Bailin was told about the recordings, he speculated that his trades with Agent Volk were captured on tape and that that was good evidence. The testimony does not show that Bailin was mislead as to the nature of the investigation, or that such alleged misinformation was material to his decision to speak with the agents. Serlin, 707 F.2d at 956. Bailin's claim of deceit is unavailing. Bailin also claims that he was threatened during both the January 21st and January 23rd interviews and that these threats were patently coercive. Defendant's Brief In Support Of His Motion To Suppress at 11 (citing United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir.1981)). Bailin testified that when he expressed his reluctance to talk to the agents about his own trading activities without first obtaining legal advice, Agent Kelly threatened to convict him under RICO. He also testified that Agent Kelly threatened him with RICO and forfeiture charges during the January 23rd interview. The evidence does not support a finding that Bailin was threatened during either of the interviews. Bailin's allegation that he was threatened by Agent Kelly during the January 21st interview is not credible, especially when measured against defendant's entire testimony. Bailin specifically testified that Agent Kelly told him that if he did not cooperate, the Government would convict him under RICO, take his house, and make him "talk and say anything they wanted." At the same time, Bailin testified that he repeatedly asked the agents whether he was in trouble and needed to hire an attorney. It is inconceivable that Bailin would repeatedly ask whether he was in trouble and whether he needed an attorney in the face of such a threat. Both of these claims are further undermined by Bailin's testimony on cross examination that he did not attempt to contact an attorney before going to the offices of the FBI two days later. With reference to the January 23rd interview, Bailin claims that both Agent Volk and AUSA Gillogly threatened him with charges under RICO and with possible forfeiture. The testimony shows, however, that Bailin was informed about the charges and penalties he faced. The agents testified that this information was conveyed to Bailin in a professional and business-like manner. See United States v. Hocking, 860 F.2d at 775 (agents' act of informing defendant of prosecution, possible imprisonment *1485 and forfeiture was not coercive under the circumstances). According to Bailin's own testimony, he went to the FBI offices for this very purpose. The agents' act of informing Bailin of the potential charges were made in response to his inquiry rather than as a threat.[2] Finally, Bailin argues that his statements were prompted by the agents' false promises of leniency in exchange for his cooperation. In support of this argument, Bailin relies upon the oft-quoted passage in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), in which the court held that a confession is not voluntary if it is "obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence." Id. at 542-43, 18 S.Ct. at 187. In this Circuit, Bram has been substantially limited in its application. In United States v. Long, 852 F.2d 975 (7th Cir.1988), the Seventh Circuit emphasized that a per se finding of involuntariness based on a liberal reading of Bram would undermine the "totality of circumstances" test, which has been reaffirmed by the Supreme Court as the appropriate test for measuring the voluntariness of a confession. See Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). Accordingly, the Seventh Circuit held that a promise of leniency is but one factor to consider under the totality of circumstances test. Long, 852 F.2d at 977. The testimony in the present case does not support an inference that Bailin was promised lenient treatment in exchange for his cooperation. Nor does the testimony reveal that Bailin was prompted to cooperate against his will only after being offered an alleged promise. Because the preponderance of credible testimony reveals that Bailin made his statements to the agents free of any coercive or deceitful conduct, his motion to dismiss is denied. II. BAKER'S MOTION TO SUPPRESS Baker seeks to suppress the statements he made to two FBI agents and two AUSAs during an interview with them at his home on the evening of January 18, 1989. At the hearing on Baker's motion, Agents Volk and Bargmann testified on behalf of the Government. The defendant's wife, Sally Baker, testified on defendant's behalf. A. Findings of Fact on Baker's Motion 1. At approximately 7:30 p.m. on January 18, 1989, Agent Volk, Agent Mark Bargmann, AUSA Gillogly, and AUSA Mark Pollack (collectively referred to as "the agents") appeared at Baker's home in LaGrange, Illinois. 2. When John and Sally Baker answered the door, the agents showed the Bakers their badges and Agent Volk addressed the defendant by saying, "John, you know who I am, you know you are on tape, I think it would be a good idea if you listened to what we have to say." Baker then invited the callers into his house and directed them into the kitchen. The agents and John Baker took seats. Sally Baker sat on the floor. The two FBI agents were armed, however, their guns were covered by their overcoats and were not visible to the Bakers at any point during the evening. 3. Baker is a successful commodities trader and has been employed as such for approximately fourteen years. 4. Before the interview began, Mrs. Baker heard an agent—she is unsure which one—tell her that she had a nice house, and that it would be too bad if she were to lose it. There is no evidence that John Baker heard this comment. 5. Agent Volk began the interview by explaining to Baker that the Government had conducted an undercover investigation of the Yen pit; that he had tape recorded numerous conversations involving illegal trades, and that Baker had been recorded *1486 as a participant in some of those conversations. Volk then informed Baker that the United States Attorney's office was considering bringing charges against him. 6. AUSA Gillogly then told Baker that if he wanted the agents and attorneys to leave, all he had to do was "say the word adios and we're out of here." At that point, Gillogly informed Baker that he was facing charges under RICO, the federal wire and mail fraud statutes, and the Commodities Exchange Act. Gillogly explained the scope of these statutes, the potential sentences under them, and possibility of forfeiture under RICO. 7. Baker told the agents that he wanted to cooperate, but that he first wanted to reach some form of agreement with the United States Attorney's Office "to protect his family." Gillogly told Baker that his office was in no position to enter into such an agreement; however, any cooperation would be considered in the charging decision and would be made known to the sentencing judge. 8. On at least two, possibly three occasions, Baker asked the agents whether he needed to hire an attorney. AUSA Gillogly told Baker that he was unable to advise him on that decision, but that Baker was free to retain an attorney if he thought he needed one. 9. At some point during the interview, Baker asked Gillogly whether he was entrapped when he entered into a series of transactions with Agent Volk for tax purposes. Gillogly responded by chuckling and telling Baker he hoped that that would be his defense. 10. At the time of the interview, Baker was tired and "stressed out" from the day's trading, which was particularly heavy because the trade deficient figures had been released that day by the Commerce Department (a day known as "Merchandise Trade Day" in the nomenclature of the Exchanges). 11. On the evening of the interview, Baker had come home from work four hours late. He had been at a bar after work and probably had some drinks; however, there was no testimony as to how much he may have had to drink. Before the agents arrived, Baker drove the couple to a local fast food restaurant to pick up dinner. 12. Although Baker drank two beers during the scope of the two to three hour interview, he was not drunk. Rather, he was "composed," "relaxed," "calculating" and "in complete control." B. Conclusions of Law on Baker's Motion Baker argues that his statements should be suppressed because the Government's conduct constituted "refined coercion" intended to make Baker cooperate. Baker contends that the Government's decision to interview him after a particularly stressful day, its use of sarcasm during the interview, and its references to the sentences and forfeiture provisions of RICO robbed him of his free will and caused him to make his statements involuntarily. Baker does not dispute that his statements were made in a noncustodial setting. Therefore, the question before the court is whether Baker's free will was overborne by virtue of the interrogative conduct of the agents. Culombe, 367 U.S. at 602, 81 S.Ct. at 1879. Upon reviewing the totality of the circumstances, the court concludes that Baker, like the defendant in United States v. Hocking, was not "subjected to the type of debilitating coercion necessary to render a confession or statement involuntary." Id. 860 F.2d at 775. In Hocking, the Seventh Circuit was faced with a direct appeal from an appellant alleging that the conduct of two FBI agents during a three hour interview in his home constituted "mental coercion" rendering his confession involuntary. Id. at 773. In reaching its conclusion that the conduct of the agents was not coercive, the court underscored the circumstances of the interview in that case; circumstances quite similar to those surrounding Baker's interview. The appellant in Hocking was a mature adult who had worked in a relatively sophisticated field. He invited the agents into his home after they identified *1487 themselves and asked appellant if he would answer their questions regarding an ongoing investigation. During the subsequent noncustodial interview, the agents sat a few feet away from the appellant in his living room while they politely asked him questions about his conduct. They informed him that he faced possible prosecution, imprisonment and forfeiture. After denying any involvement in the fraudulent acts outlined by the agents, the appellant ultimately confessed to them. Id. at 774-75. The Seventh Circuit reviewed the foregoing circumstances and concluded that the agents' conduct could not be characterized "as anything more than vigorous, persistent questioning, conduct which our court has held does not vitiate an otherwise valid confession." Id. at 775. That same conclusion holds for the conduct of the agents during their interview with defendant Baker in this case. Baker invited the agents into his home. He answered their questions freely, and sought protection for his family in exchange for his cooperation. The preponderance of the evidence reveals that he freely chose to make his statements to the agents.[3] Baker's final argument is that this court should exercise its supervisory powers to suppress his statements because AUSA Gillogly rendered legal advice to Baker during the scope of the interview. Baker claims that AUSA Gillogly's conduct violated DR 7-104(a)(2) of the Illinois Code of Professional Responsibility, and that this provides an independent basis for suppressing the statements. Disciplinary Rule 7-104(a)(2) provides that "[d]uring the course of his or her representation of a client[,] a lawyer shall not ... give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his [or her] client." Baker's argument starts with the proposition that the Disciplinary Rule is applicable to Government attorneys. See United States v. Hammad, 858 F.2d 834 (2d Cir.1988). He goes on to urge the court to enforce the Rule by exercising its supervisory powers to suppress the statements made subsequent to the violation. Id. But see United States v. Scarpelli, 713 F.Supp. 1144, 1159-61 (N.D.Ill. 1989). This motion raises significant issues regarding the reach of the Disciplinary Rules and the scope of the court's supervisory authority. However, the court need not reach these questions because the testimony at the hearing establishes that none of statements made by the AUSAs constituted "legal advice" as that term is contemplated by the Rule.[4] Baker claims that the following statements constituted legal advice: 1) AUSA Gillogly's statement that Baker was facing possible charges, imprisonment, and forfeiture; 2) an unidentified agent's statement that Baker was probably ineligible for the appointment of a public defender, and; 3) AUSA Gillogly's act of chuckling at Baker's entrapment defense question and telling Baker that he hoped that that would be his defense. On their face, none of these statements can be fairly understood *1488 to constitute legal advice to Baker.[5] In point of fact, all of the parties agree that when Baker asked whether he should retain an attorney, AUSA Gillogly explicitly stated that he could not provide advice on that issue. Baker's motion to suppress on the basis of the alleged disciplinary rule violation is denied. III. CALI'S MOTION TO SUPPRESS Cali seeks to suppress his statements made to FBI agents and AUSAs on the grounds that they were given involuntarily. Alternatively, he seeks to have the court invoke its supervisory powers to suppress the statements because the AUSA allegedly offered legal advice during their interview. At the hearing on the motion, the Government presented four witnesses on its behalf. Cali did not present any witnesses or evidence in support of his contentions. A. Findings of Fact on Cali's Motion 1. On the morning of January 18, 1989, James Sledz, a trader who turned Government informant, informed Cali that FBI agents wanted to speak with him at Sledz's apartment in the Presidential Towers complex. In doing so, Sledz handed Cali a handwritten note warning the defendant not to say anything because Sledz was wired with a microphone. 2. Cali agreed to meet with Sledz in the McDonald's restaurant in the Presidential Towers apartment complex later that day after the closing of the Exchange. 3. At the time of this meeting, AUSA Gillogly, AUSA Mark Pollack, Agent Volk, Special Agent Charles Near, and Brian Sledz were waiting in Sledz's apartment. After meeting with Cali, James Sledz called up to the apartment to inform the group that Cali was reluctant to come upstairs. 4. Brian Sledz and Agent Volk responded by going to the lobby to persuade Cali to come upstairs. In the lobby, Cali addressed Volk initially by saying "Hi Peter or Dietrich, or whatever your name is." 5. Agent Volk told defendant about the investigation and that it was important for him to come upstairs to hear what the agents had to say. Cali agreed to do so at approximately 2:45 p.m. 6. AUSA Gillogly addressed Cali first by telling him that he was free to leave the apartment anytime he wanted. He also told Cali that he was not obligated to make any statements if he did not want to. 7. Gillogly then informed Cali about the investigation and the recordings of his possibly illegal trades. Gillogly told Cali that he could be charged with RICO, mail and wire fraud, and violations of the Commodities Exchange Act. Gillogly further explained to Cali that he could be facing a twenty-year sentence under RICO and possible forfeiture. 8. At some point in the interview, Cali asked whether he needed a lawyer. Gillogly responded by telling him that the agents were not in a position to advise him on that matter; it was a decision he was going to have to make for himself. 9. Cali proceeded to answer the agents' questions. He agreed to cooperate with them in the investigation. 10. The interview lasted for an hour to an hour and one half, until Cali noted that he had to meet his wife because they were buying a house the next day. Cali assured the agent that he wanted to continue cooperating with them. B. Conclusions of Law on Cali's Motion Cali contends that his statements to the agents were made against his will. He begins by arguing that his meeting with the agents constituted a custodial arrest, thus requiring the agent to read him his Miranda rights. This contention is unavailing. The testimony establishes that Cali freely chose to talk to the agents. He *1489 agreed to proceed up to the apartment to continue the discussion with the AUSAs and other agents. Although he was told that Cali was free to leave, he voluntarily submitted to questioning by the agents. There is no evidence that Cali was ever prevented from ending the interview at any time. Hocking, 860 F.2d at 773. The testimony also establishes that Cali ultimately cooperated with the agents based upon his own free will. There is no evidence of the type of coercive police activity required to find that the agents overbore defendant's will. Id. at 774-75. Finally, Cali's motion for suppression based on DR 7-104(a)(2) is unavailing because there is no evidence that the AUSAs gave him any legal advice during the interview. An AUSA's act of informing Cali of the potential charges against him does not constitute "legal advice" within the meaning of the Rule. Accordingly, Cali's motion to suppress is hereby denied. IT IS THEREFORE ORDERED that the motions of defendants to suppress their statements are denied. NOTES [1] Bailin contends that his arguments in support of suppression are applicable to the entirety of the January 21st and January 23rd interviews. However, Bailin's own testimony regarding his conduct and the statements made during the interviews belies such a claim. [2] Bailin also argues that his statements should be suppressed because he sufficiently manifested his desire not to discuss matters any further without the benefit of counsel. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The court concludes that Bailin merely asked the agents whether he needed to obtain counsel, a question to which the agents properly responded by stating that it was a decision he would have to make for himself. [3] Baker seeks to distinguish Hocking, both factually and by citing to Bram. The factual distinctions between the circumstances in Hocking and those in the present case are not significant. With reference to Baker's claim that he was drunk during the interview, the court does not credit Sally Baker's testimony on this issue. She testified that she knew her husband was drunk because he came home late from work on a stressful day, after which he drove to a fast food restaurant. The only testimony regarding the amount that Baker had to drink established that he had no more than two beers during the scope of a three hour interview. On the other hand, the testimony of the agents was that Baker was "composed," "relaxed," "calculating" and "in control" during the entire interview. There is no basis for an inference that Baker was explicitly promised leniency in exchange for his cooperation. AUSA Gillogly informed Baker that his office was in no position to make such an agreement. [4] Another judge of this court has persuasively held that violation of the Code does not establish a basis for a motion to suppress. United States v. Dempsey, No. 89 CR 666, slip op. at 4-7 (N.D.Ill. March 1, 1990). [5] Baker also seeks leave of court to call AUSAs Gillogly and Bargmann as witnesses who can supplement the poor recall of Sally Baker regarding the legal advice given to her husband. The justification for this previously denied request is the grounds for its summary denial pursuant to the reasoning of this court in its prior order on the matter. United States v. Bailin, No. 89 CR 668, 1990 WL 16435 (Jan. 22, 1990) (denying request to call AUSAs under the "compelling and legitimate need" standard).

813 F.2d 1231 Order of Exclusion From U.S. Courthouse, In re 85-2759 United States Court of Appeals,Ninth Circuit. 3/19/87 1 N.D.Cal. AFFIRMED

8 N.Y.3d 992 (2007) In the Matter of ADULT HOME AT ERIE STATION, INC., Respondent, v. ASSESSOR AND BOARD OF ASSESSMENT REVIEW OF CITY OF MIDDLETOWN et al., Appellants. Court of Appeals of the State of New York. Submitted April 30, 2007. Decided June 5, 2007. Motion by the New York State Assessors Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Opinion issued August 11, 2011   In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00610-CV ——————————— Nilesh Bavishi and Dipti Bavishi, Appellants V. Sterling Air Conditioning, Inc. d/b/a Airtron, Inc., a/k/a Airtron Heating & Air Conditioning, Appellee     On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 09-DCV-174880     MEMORANDUM OPINION           Sterling Air Conditioning, Inc. d/b/a Airtron, Inc., a/k/a Airtron Heating & Air Conditioning (“Airtron”) sued Nilesh and Dipti Bavishi (“Bavishi”) on a sworn account and asserted alternative claims for breach of contract and quantum meruit arising out of Bavishi’s failure to pay Airtron for air conditioning work that Airtron had completed at Bavishi’s new house.  The trial court rendered summary judgment in favor of Airtron.  In four issues, Bavishi contends that the trial court erroneously rendered summary judgment because (1) Airtron failed to allege that all lawful offsets had been applied to the account; (2) Airtron did not conclusively establish that it fully performed under the contract and that Bavishi breached the contract; (3) Airtron failed to prove that Bavishi accepted Airtron’s services; and (4) Airtron’s summary judgment affidavit contained conclusory statements.           We affirm. Background           Bavishi began construction on a new house in 2006.  In June 2008, Transtar Builders, Inc. (“Transtar”), the general contractor on the project, terminated its relationship with G.K. Mechanical, Inc., the original air conditioning subcontractor.  Transtar hired Airtron as air conditioning subcontractor to complete the project in place of G.K. Mechanical, and it executed a contract with Airtron for a “total turnkey price” of $42,954.  Transtar’s contract with Airtron listed nine distinct items under “Scope of Work Included,” including:  installing condensers, programmable thermostats, a zone control board, fresh-air intake controllers, and supply and return grills; connecting the vent hoods; adding supply drops to a second floor bathroom; modifying “return air on the first floor plus additional return on [second] floor landing”; obtaining a permit from the City of Sugar Land; and supplying “miscellaneous material and labor.”  Under the “Notes” section, the contract provided that:  “Condition of existing coils, furnaces, and ductwork is unknown and is not warranted through Airtron.  Any repairs or additional services to complete start-up will be extra.”  The contract similarly stated that the “condition of zone dampers is unknown, replacement of existing equipment (if needed) is extra.”  This contract did not include a provision specifically obligating Airtron to correct any problems created by previous subcontractors. In March 2009, Bavishi terminated his relationship with Transtar and himself assumed the role of general contractor.  At the time Bavishi fired Transtar, Airtron had not yet completed its work for Transtar, although it had installed some materials at Bavishi’s house, including grills, registers, and fan covers.           On May 12, 2009, Bavishi and Airtron executed a contract governing Airtron’s remaining work on the project.  This contract provided that Airtron would install thermostats and a total of seven condensers for a price of $32,215.  The contract also included the following statement: This Contract has been modified to show what remaining work is to be completed, as per the original agreement.  Based upon previous conversations, the remaining [w]ork left is 1) Completing the trim, both outside and inside the house.  2) Setting the condensers on Builder supplied pad.  3) Starting up systems and installing all thermostats to appropriate locations.   As with Airtron’s contract with Transtar, Airtron’s contract with Bavishi did not include a provision requiring Airtron either to correct any problems with the air conditioning system created by previous subcontractors or to complete all necessary work to make the system operational. On June 2, 2009, Airtron issued an invoice to Bavishi in the amount of $32,215.50 for “HVAC final—finish trim & set units.”  During the course of Airtron’s work at Bavishi’s property, Airtron employees discovered a problem in the copper line that fed coolant to the condensers.  The copper line had been installed by another company, but, at Bavishi’s request, Airtron repaired a leak in the line.  Airtron invoiced Bavishi an additional $150 for parts and labor.           Beginning in June 2009, after Airtron had installed the contracted-for condensers and thermostats, Bavishi and Airtron disputed both the quality of Airtron’s work and the scope of its responsibilities under the contract.  Specifically, the parties disputed whether the contract obligated Airtron to correct all problems with the air conditioning system that were created by the subcontractors who had worked on the project prior to Airtron.  After the parties were unable to achieve a resolution of this dispute, Airtron ceased working on the project on July 1, 2009.           Bavishi subsequently refused to pay Airtron in accordance with the two invoices Airtron had issued.  Airtron then sued Bavishi on a sworn account and asserted claims for breach of contract and quantum meruit.  Airtron attached the affidavit of William Nylan, Airtron’s Operations Manager, to its original petition in support of the sworn account.  Nylan averred that he had personal knowledge of the contents of the affidavit and control over the records of the account.  He stated: According to [Airtron’s] books and records, pursuant to request by [Bavishi], [Airtron] sold, delivered, and installed for [Bavishi] certain labor, materials and supplies on account to one or more real properties, on which account a systematic record has been kept.  A true and correct copy of the invoice(s) for said materials, labor, and supplies so provided . . . is (are) attached hereto as Exhibit “A-1” and incorporated herein for all purposes.   According to [Airtron’s] books and records, this claim is just and true and the amount due and unpaid by [Bavishi] to [Airtron] after allowing for all just and lawful offsets, payments, and credits is [$32,365.]   Airtron attached the contract and the two invoices to Bavishi to its original petition.  Airtron also alleged that it had completed its obligations under the May 2009 contract and that Bavishi had breached the contract by failing to pay the invoiced amounts.  In its quantum meruit claim, Airtron asserted that it was entitled to the reasonable value of materials and supplies that it had sold and delivered to Bavishi while Transtar was still the general contractor on the project and before Airtron entered into its own contract with Bavishi.           Bavishi answered by filing an unsworn general denial.           Airtron moved for summary judgment on each of its own claims.  As summary judgment evidence, Airtron attached an affidavit by William Nylan; its contract with Bavishi; the two unpaid invoices to Bavishi; an unpaid invoice for $2,972.80 to Transtar for work performed by Airtron for Transtar prior to Bavishi’s assuming the role of general contractor; and Bavishi’s interrogatory answers, in which Bavishi acknowledged the contract he had made with Airtron and admitted that he owed Airtron $21,742. Nylan averred that at the time Bavishi fired Transtar as the general contractor Transtar owed Airtron $2,972.80 for materials, including “grills, registers, and fan covers,” that Airtron had installed at Bavishi’s property pursuant to its contract with Transtar.  Airtron argued that it was entitled to recover those funds under quantum meruit.  Nylan further averred that Airtron “sold, delivered, and installed for [Bavishi] certain labor, materials and supplies on account” and that Airtron “provided and/or installed said air conditioning labor, materials and supplies pursuant to the terms of [the May 2009 contract between Airtron and Bavishi].”  According to Nylan, Airtron’s records indicated that, “after allowing for all just and lawful offsets, payments, and credits,” Bavishi owed it $32,365 on its suit on a sworn account or, alternatively, for breach of contract.           In his interrogatory answers, Bavishi claimed that he was entitled to $10,473 in offsets because, after Airtron left the project, he had to hire additional air conditioning subcontractors to “complete the work” and make the air conditioning system operational.[1]  Airtron argued that Bavishi was not entitled to any of the claimed offsets because the subsequent subcontractors corrected deficiencies in the work of subcontractors that Transtar had hired prior to contracting with Airtron.  These subcontractors did not correct deficiencies in the work that Airtron had completed pursuant to its contract with Bavishi.  Because Airtron was not contractually obligated under either its original contract with Transtar or its subsequent contract with Bavishi to correct the work of the prior subcontractors, it argued that Bavishi was not entitled to any offsets.           In response to Airtron’s summary judgment motion, Bavishi argued that the summary judgment evidence reflected that “[Airtron] did not finish the job, that [Bavishi] had to expend considerable sums after [Airtron] left [the job] to correct and complete the work [Airtron] had contracted to do, and that [Bavishi was] entitled to significant offsets to the amount of [Airtron’s] claim.”  Bavishi argued that Airtron’s original contract with Transtar was for a “turnkey job,” that Airtron’s contract with Bavishi noted that “the work in the original contract was incomplete and that the new contract was a modification of the previous one,” and that the “turnkey” contract between Airtron and Bavishi required Airtron “to recognize the previous problems with the [air conditioning] system and make it operational,” and this was not done.  Bavishi argued that he was entitled to over $10,000 in offsets expended “to correct the inadequacies of Airtron’s work.”           As summary judgment evidence, Bavishi attached his own affidavit, Airtron’s contract with Transtar, and a series of e-mails between Bavishi and Nylan discussing the problems with the air conditioning system.  Bavishi averred that Airtron’s contract with Transtar was “for a ‘turnkey price’ for Airtron to complete any necessary work so that the air conditioning would be in working order.”  He further stated that the May 2009 contract covered not just the installation of condensers and thermostats, but also covered the completion of “any air conditioning work to make the system operational.”  Bavishi averred: Airtron did not do the work it contracted to do.  From June 14 through July 1, 2009, I sent Airtron a series of lengthy emails explaining the problems with the system and the corrective action that was necessary.  These are attached as Exhibit C.  As the email of June 30 at 7:24 P.M. indicates, Airtron had the responsibility to correct any problems with the air conditioning system that existed when Airtron started the job, regardless of how or by whom those problems arose.  Airtron did not take any corrective action and left the job about July 1 (without obtaining a final inspection as required for an occupancy permit from the City of Sugar Land).  Airtron has performed no work since.   Bavishi then averred that he had spent over $10,000 since Airtron left the project to make the air conditioning system operational, and “[a]ll of [those] expenses were for work that Airtron had contracted to do but did not.”           Without specifying the basis for its ruling, the trial court rendered summary judgment in favor of Airtron and awarded it a total of $35,337.80 in damages, $4,496.12 in pre-judgment interest, $6,250 in attorney’s fees, and $12,250 in conditional post-trial and appellate attorney’s fees.  After the trial court denied Bavishi’s motion for new trial, this appeal followed. Standard of Review           We review de novo the trial court’s ruling on a summary judgment motion.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).  To prevail on a traditional summary judgment motion, the movant must establish that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).  A party moving for summary judgment on its own claims must conclusively prove all essential elements of the claim.  See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Tex. R. Civ. P. 166a(a) (“A party seeking to recover upon a claim . . . may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.”).  A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.  See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).           If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment.  See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence.  See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).  To determine if the nonmovant has raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not.  See Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827).  We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.  See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).           When, as here, the trial court’s summary judgment does not state the basis for the court’s decision, we must uphold the judgment if any of the theories advanced in the motion are meritorious.  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).       Suit on a Sworn Account           In his first issue, Bavishi contends that the trial court erroneously rendered summary judgment in favor of Airtron on its sworn account because Airtron failed to allege that all lawful offsets, payments, and credits had been applied.           Texas Rule of Civil Procedure 185 applies to “any claim for a liquidated money demand . . . [for] labor done or labor or materials furnished . . . .”  Tex. R. Civ. P. 185.  This rule is not a rule of substantive law; rather, “it is a rule of procedure regarding the evidence necessary to establish a prima facie right of recovery” on certain types of contractual account claims.  See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979); Smith v. CDI Rental Equipment, Ltd., 310 S.W.3d 559, 566 (Tex. App.—Tyler 2010, no pet.); Panditi v. Apostle, 180 S.W.3d 924, 926 (Tex. App.—Dallas 2006, no pet.).           Rule 185 provides that “when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath.”  Panditi, 180 S.W.3d at 926; see Tex. R. Civ. P. 185.  To establish a prima facie case in a suit on a sworn account, the plaintiff must strictly comply with the requirements of Rule 185.  Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.—Dallas 2003, pet. denied).  The plaintiff’s petition “must contain a systematic itemized statement of the services rendered, reveal offsets made to the account, and be supported by an affidavit stating the claim is within the affiant’s knowledge and that it is ‘just and true.’”  Id.; see also Panditi, 180 S.W.3d at 926 (stating requirements for sworn account petition and accompanying affidavit).  If there is a deficiency in the plaintiff’s sworn account, the account will not constitute prima facie evidence of the debt.  Panditi, 180 S.W.3d at 927; Nguyen, 108 S.W.3d at 562.           The defendant resisting the sworn account must also strictly comply with the requirements of Rule 185, “or he will not be permitted to dispute the receipt of the services or the correctness of the charges.”  See Panditi, 180 S.W.3d at 927; see also Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985) (per curiam) (“Holloway failed to file a sworn denial and he has, therefore, waived his right to dispute the amount and ownership of the account.”).  Rule 185 requires the defendant to “comply with the rules of pleading” and “timely file a written denial, under oath,” or else the defendant “shall not be permitted to deny the claim, or any item therein.”  Tex. R. Civ. P. 185; Panditi, 180 S.W.3d at 927 (noting that Rule 185 requires sworn denial to be written and verified by affidavit).  To place the plaintiff’s sworn account claim at issue, the defendant must file a “special verified denial of the account” in accordance with Texas Rule of Civil Procedure 93.  See Huddleston v. Case Power & Equip. Co., 748 S.W.2d 102, 103 (Tex. App.—Dallas 1988, no writ); see also Tex. R. Civ. P. 93(10) (“A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit[:]  A denial of an account which is the foundation of the plaintiff’s action . . . .”).  This sworn denial must be included in the defendant’s answer; a sworn denial in a response to a summary judgment motion does not satisfy Rule 185.  See Cooper v. Scott Irrigation Constr., Inc., 838 S.W.2d 743, 746 (Tex. App.—El Paso 1992, no writ); see also Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (“Only in the affidavit accompanying his response to Ward’s motion for summary judgment did appellant dispute the correctness and fairness of the charges, and demand additional proof of his liability.  Because the combined effect of Texas Rule of Civil Procedure 185 and Texas Rule of Civil Procedure 93(10) required appellant to raise those claims in his answer, we hold that appellant raised his assertions too late.”).           If the defendant fails to file a verified denial to the sworn account, the sworn account is received as prima facie evidence of the debt, and the plaintiff, as summary judgment movant, is entitled to summary judgment on the pleadings.  Nguyen, 108 S.W.3d at 562; see Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 430 (Tex. App.—Beaumont 1999, no pet.) (holding that when plaintiff files proper sworn account petition but defendant does not comply with Rule 185, the petition will support summary judgment and “additional proof of the accuracy of the account is unnecessary”).  “In other words, a defendant’s noncompliance with rule 185 conclusively establishes that there is no defense to the suit on the sworn account.”  Nguyen, 108 S.W.3d at 562; see Whiteside v. Ford Motor Credit Corp., 220 S.W.3d 191, 194 (Tex. App.—Dallas 2007, no pet.) (“When the defendant fails to file a sworn denial and the trial court enters summary judgment on a sworn account, appellate review is limited because the defendant will not be allowed to dispute the plaintiff’s claim.”).  If, however, the plaintiff’s suit on a sworn account was not properly pleaded pursuant to Rule 185, the defendant is not required to file a sworn denial.  Panditi, 180 S.W.3d at 927.  In this circumstance, a general denial is sufficient to controvert the account.  Tex. Dep’t of Corrs. v. Sisters of St. Francis of St. Jude Hosp., 753 S.W.2d 523, 524 (Tex. App.—Houston [1st Dist.] 1988, no writ).           Here, Bavishi contends that his general denial and sworn affidavit attached to his response to Airtron’s summary judgment motion, which alleges that several offsets should be applied to the account, raises a fact issue because Airtron did not allege that all offsets, payments, and credits had been applied to the account, and, therefore, Airtron did not properly plead a sworn account in compliance with Rule 185.  The record, however, reflects otherwise.           In its original petition, Airtron alleged that it “sold and delivered to [Bavishi] certain heating and air conditioning labor, materials and supplies specified in the Account.”  Airtron attached its contract with Bavishi and two unpaid invoices totaling $32,365 to its original petition.  Airtron also attached the affidavit of William Nylan.  Nylan averred that he had personal knowledge of the account and stated: According to [Airtron’s] books and records, pursuant to request by [Bavishi], [Airtron] sold, delivered, and installed for [Bavishi] certain labor, materials and supplies on account to one or more real properties, on which account a systematic record has been kept.  A true and correct copy of the invoice(s) for said materials, labor, and supplies so provided . . . is (are) attached hereto as Exhibit “A-1” and incorporated herein for all purposes.   According to [Airtron’s] books and records, this claim is just and true and the amount due and unpaid by [Bavishi] to [Airtron] after allowing for all just and lawful offsets, payments, and credits is [$32,365].   (Emphasis added.) Airtron’s petition, affidavit, and supporting invoices contain all of the information required by Rule 185.  See Tex. R. Civ. P. 185; Nguyen, 108 S.W.3d at 562 (stating requirements for sworn account petition and supporting affidavit).  Thus, to dispute Airtron’s implied assertion that Bavishi was not entitled to any offsets, Bavishi was required to file a verified denial of the account in compliance with Rule 185 and Rule 93(10).  See Panditi, 180 S.W.3d at 927.  It is undisputed that Bavishi filed only an unsworn general denial and did not argue that he was entitled to offsets until his response to Airtron’s summary judgment motion.  Because Bavishi did not file a verified denial, “he was precluded from denying ‘the claim or any item therein.’”  See id. (quoting Tex. R. Civ. P. 185); Solano v. Syndicated Office Sys., 225 S.W.3d 64, 67 (Tex. App.—El Paso 2005) (“The failure to follow Rule 185 precludes the defendant from raising a fact issue and from disputing the receipt of the items or services rendered or the correctness of the claim.  The defendant may not deny the claim or raise an issue that he did not owe the account or that it was wrongfully charged to him.”).           We conclude that because Airtron properly stated that all lawful offsets had been applied to Bavishi’s account and Bavishi did not file a verified denial challenging this assertion, Airtron’s petition and supporting affidavit constituted prima facie evidence of the sworn account which Bavishi waived the right to dispute, entitling Airtron to summary judgment on its pleadings.  We therefore hold that the trial court correctly rendered summary judgment in favor of Airtron on its sworn account.           We overrule Bavishi’s first issue.[2] Quantum Meruit           In his third issue, Bavishi contends that the trial court erroneously rendered summary judgment in favor of Airtron on its quantum meruit claim because it failed to establish that Bavishi accepted Airtron’s services.           Quantum meruit is an equitable theory of recovery based on an implied agreement to pay for benefits received and knowingly accepted.  Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 502 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  A party can recover in quantum meruit when non-payment for the services rendered would result in an unjust enrichment to the party benefited by the work.  Speck v. First Evangelical Lutheran Church of Houston, 235 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  To recover in quantum meruit, the plaintiff must establish that:  (1) valuable services and/or materials were furnished, (2) to the party sought to be charged, (3) which were accepted by the party sought to be charged, and (4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient.  Heldenfels Bros., 832 S.W.2d at 41 (citing Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)).  The plaintiff must also demonstrate that its efforts “were undertaken for the person sought to be charged; it is not enough to merely show that [its] efforts benefitted the defendant.”  Hester v. Friedkin Cos., 132 S.W.3d 100, 106 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (emphasis in original).           Bavishi contends that he raised a fact issue regarding whether he accepted Airtron’s services, and he points to his summary judgment affidavit and the attached series of e-mails between Nylan and himself discussing the problems with the air conditioning system as evidence that Airtron did not satisfy its responsibility to correct all problems that arose involving the air conditioning system.  Airtron argues that its quantum meruit claim was limited to recovery for the reasonable value of materials that it provided to Bavishi under its agreement with Transtar before Airtron contracted directly with Bavishi, including the installation of “grills, registers, and fan covers,” and that by not objecting to the installation of these particular materials or claiming that Airtron’s installation of these materials was faulty Bavishi accepted the materials.  We agree with Airtron.           Airtron’s contract with Transtar obligated it to install, among other things, “steel supply grills and aluminum fixed bar return grills.”  In his summary judgment affidavit, Nylan averred that Airtron installed materials, “including grills, registers, and fan covers,” pursuant to its contract with Transtar and that Transtar did not pay Airtron for these materials.  After Bavishi fired Transtar and took over the project as general contractor, he signed a new contract with Airtron, which specified the remaining work to be completed and materials to be installed.  This contract did not mention items such as grills, registers, and fan covers.  Furthermore, although Bavishi subsequently informed Airtron of the numerous alleged problems with the air conditioning system, he never complained that the materials installed under the Transtar contract, and specified in Airtron’s quantum meruit claim, were unsatisfactory.  There is also no evidence that any of the subsequent air conditioning subcontractors hired by Bavishi after Airtron left the project were required to fix problems concerning these specific materials.           We conclude that, under these facts, the summary judgment evidence establishes that Bavishi accepted the materials installed pursuant to Airtron’s contract with Transtar and at issue in Airtron’s quantum meruit claim.  See also RC Mgmt., Inc. v. Tex. Waste Sys., Inc., No. 04-02-00488-CV, 2003 WL 1712535, at *4 (Tex. App.—San Antonio Apr. 2, 2003, no pet.) (mem. op.) (“[T]he evidence reflects that RCM did not refuse delivery of the larger containers or contact TWS to, at the very least, complain of the larger containers.”).  We therefore hold that the trial court correctly rendered summary judgment in favor of Airtron on its quantum meruit claim.           We overrule Bavishi’s third issue.     Conclusory Statements in Summary Judgment Affidavit           Finally, in his fourth issue, Bavishi contends that the trial court erroneously rendered summary judgment based on Nylan’s summary judgment affidavit, which contained legally and factually conclusory statements.[3]           Affidavits containing conclusory statements unsupported by facts are not competent summary judgment evidence.  Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex. App.—Corpus Christi 1994, writ dism’d w.o.j.)); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (“A conclusory statement is one that does not provide the underlying facts to support the conclusion.”).  An affidavit must be factual—mere conclusions of the affiant lack probative value.  Prime Prods., 97 S.W.3d at 637; see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“[Conclusory affidavits are neither] credible nor susceptible to being readily controverted.”).  A conclusory statement “may set forth an unsupported legal conclusion or an unsupported factual conclusion.”  Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.—Waco 2003, no pet.).           Bavishi contends that Nylan’s statement in his affidavit that “[a]t the time that Transtar was fired from the job, Transtar owed [Airtron] moneys for work done by [Airtron] for Transtar at said residence” is conclusory because it is “not supported by any facts” and “Airtron attached no summary judgment proof.”  We disagree.           In addition to the above statement, Nylan’s summary judgment affidavit also included the following paragraph: Additionally, pursuant to [Airtron’s] books and records, Transtar owes [Airtron] for work at the subject residence, which included grills, registers, and fan covers, a copy of which unpaid invoice is attached hereto as Exhibit “A-4,” and incorporated herein for all purposes.  According to [Airtron’s] books and records, this claim is just and true and the amount due and unpaid by Transtar to [Airtron] after allowing for all just and lawful offsets, payments, and credits is [$2,972.80].   Airtron also attached the invoice issued to Transtar, dated May 14, 2009, which reflects an unpaid balance of $2,972.80, to Nylan’s affidavit.           We conclude that, contrary to Bavishi’s assertion, Airtron presented factual support for the objected-to statement demonstrating the amount that Transtar owed to Airtron.  See Rivera v. White, 234 S.W.3d 802, 808 (Tex. App.—Texarkana 2007, no pet.) (“Although all of White’s statements concerning the vehicle damage and medical care are to some degree conclusory, each furnishes some factual information that could have been rebutted.”); Choctaw Props., 127 S.W.3d at 242 (“Thus, his ‘conclusory’ statements that he spoke with an agent of the Defendants have factual support in the affidavit.”).  Nylan’s statement is supported by facts and, thus, is not conclusory.  We therefore hold that the trial court properly considered this evidence when rendering summary judgment in favor of Airtron.           We overrule Bavishi’s fourth issue. Conclusion           We affirm the judgment of the trial court.                                                                        Evelyn V. Keyes                                                                    Justice   Panel consists of Justices Keyes, Higley, and Matthews.[4] [1]           Bavishi argued that he was entitled to the claimed offsets solely in his interrogatory answers and in his summary judgment response.  He did not raise this argument in a verified denial of Airtron’s sworn account. [2]           Because we hold that the trial court properly rendered summary judgment on Airtron’s sworn account, we do not address Bavishi’s second issue—whether the trial court erred in rendering summary judgment on Airtron’s breach of contract claim.  In his fourth issue, Bavishi contends that Nylan’s summary judgment affidavit included conclusory statements supporting Airtron’s breach of contract and quantum meruit claims.  Although we address whether Nylan’s statements relating to Airtron’s quantum meruit claim are conclusory, we do not address whether his statements relating to Airtron’s breach of contract claim are conclusory. [3]           On appeal, Airtron contends that Bavishi’s objections to Nylan’s affidavit constitute objections to the form of the affidavit, and, thus, Bavishi failed to preserve this complaint for appellate review because he did not object to Nylan’s affidavit in the trial court.  An assertion that a summary judgment affidavit is conclusory is an objection relating to a substantive defect, and, thus, an appellant may raise this argument for the first time on appeal and without obtaining a ruling from the trial court.  McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); see Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied).  Because Bavishi objects to the substance of Nylan’s affidavit, he may raise this contention for the first time on appeal. [4]           The Honorable Sylvia Matthews, Judge of the 281st District Court of Harris County, Texas, participating by assignment.  See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).

535 U.S. 1010 BLOOMEv.UNITED STATES. No. 01-9042. Supreme Court of the United States. April 15, 2002. 1 C. A. 2d Cir. Certiorari denied. Reported below: 20 Fed. Appx. 24.

Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 2-20-2002 USA v. Fleming Precedential or Non-Precedential: Docket 1-2153 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "USA v. Fleming" (2002). 2002 Decisions. Paper 138. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/138 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No: 01-2153 UNITED STATES OF AMERICA v. JOHN FLEMING, Appellant On Appeal From the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 99-cr-00593 District Judge: Hon. J. Curtis Joyner Submitted Pursuant to Third Circuit LAR 34.1(a) February 5, 2002 Before: BECKER, McKEE & BARRY, Circuit Judges MEMORANDUM OPINION ( Filed: February 20, 2002) McKEE, Circuit Judge. John Fleming appeals the sentence imposed after he pled guilty to violations of 18 U.S.C. 2252(a)(2), and (a)(4). He argues that the district court erred in failing to credit him with a three point reduction in sentence pursuant to U.S.S.G. 3E1.1(a) and U.S.S.G. 3E1.1(b)(2). For the reasons that follow, we will affirm. Inasmuch as we write only for the parties, we need not set forth the facts and circumstances underlying this appeal except insofar as it is helpful to our brief discussion. The defendant asserts that the district court erred in considering conduct that he engaged in after entering a plea. He stresses that the conduct may have been distasteful, vulgar, and even reprehensible, but that it was not unlawful. He argues that the "government's suggestion that the Appellant should lose acceptance points because a third party mailed Appellant 'objectionable material' flies in the fact of common sense." [sic] Appellant's Br. at 14. The defendant concedes that a court may rely upon post- indictment unlawful conduct in determining whether to grant 3E1.1 reduction for acceptance of responsibility, quoting Ceccarini 98 F.3d at 130, but argues that the district court erred in relying upon lawful conduct to deny a reduction in sentence. We disagree. A district court has substantial discretion in determining whether or not a downward departure is appropriate under the sentencing guidelines. Koon v. United States, 518 U.S. 81 (1996). Under 3E1.1(a) a defendant is entitled to a reduction in sentence if he or she "clearly demonstrates acceptance of responsibility. . . ." Despite defendant's protestation to the contrary, the issue here is not the legality of the defendant's behavior, but the significance of that behavior insofar as it reflected upon his purported remorse and "acceptance of responsibility" for his offense. We need not comment on the defendant's argument that he ought not to be punished for materials which he received from third parties because the district court's sentence is more than justified by the content of materials which the defendant himself sent to others. The evidence that the government introduced at sentencing included numerous letters which evidenced a total absence of remorse and no acceptance of responsibility whatsoever beyond the simple fact of the plea agreement itself. However, "entry of a guilty plea does not entitle a defendant to a 3E1.1 reduction as 'a matter of right.'" U.S.S.G. 3E1.1, Application Note 3. The sentencing court correctly determined that defendant's letters painted a much clearer picture of his remorse and acceptance of responsibility than his guilty plea. In one such letter, dated November 8, 2000, the defendant expressed his gratitude for materials containing the kind of references to children that had led to his prosecution in the first place. He also spoke of how he missed the "good old days," of having sex with children. App. 106-107a. Indeed, given the quality and quantity of the proof which the government introduced in opposition to a downward departure, defendant's argument on appeal is specious at best. The defendant has also filed a pro se brief in which he raises several arguments in addition to the argument raised by counsel. However, "[e]xcept in cases in which counsel has filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967), parties represented by counsel may not file a brief pro se." 3rd Cir. LAR 31.3 (2002). Accordingly, we would usually ignore the numerous assertions raised only in Fleming's pro se brief. See United States v. Essig, 10 F.3d 968, 973 (3d Cir. 1993). Here, however, we will depart from that practice because the government concedes that one of the arguments raised in the pro se brief warrants remand for resentencing. Accordingly, we will briefly address that argument. In "Argument Four" of his brief, the defendant appears to argue that the district court erred in imposing a sentence of 86 months under Count II (charging possession of child pornography in violation of 18 U.S.C. 2252(a)(4)) because the maximum is only five years. The government interprets this argument the same way we do, and agrees that the district court erred. The government asserts that, inasmuch as the defendant also received a concurrent sentence of 86 months on Count I of the indictment for violating 18 U.S.C. 2252(a)(2) (receiving child pornography), we should remand to allow the court to correct the sentence on Count II. The defendant and the government are both wrong, and remand is not necessary. Prior to October 30, 1998, 2252(b)(2) provided that a person who violated 2252(a)(4) and had a prior conviction "relating to the possession of child pornography," could receive an enhanced sentence of "not less than 2 years nor more than 10 years." 18 U.S.C. 2252(b)(2). In 1985, Fleming confessed to sodomizing a 10 year old boy and pled guilty to "Sodomy in the First Degree," in state court in Delaware. However, that conviction would not have justified an enhancement to his current sentence because it was obviously not a conviction "relating to the possession of child pornography." However, that enhancement was amended as of October 30, 1998. The amended provision allows for a maximum sentence of 10 years under 2252(a)(4) when a defendant has a prior conviction "relating to . . . abusive sexual conduct involving a minor . . . ." Fleming was arrested on February 5, 1999, after that amendment became effective. He is therefore subject to 10 year maximum sentence, and the district court properly imposed a sentence that did not exceed that statutory maximum. Accordingly, we will affirm the judgment of sentence imposed by the district court. TO THE CLERK: Please file the forgoing opinion. By the court, /s/ Theodore A. McKee Circuit Judge 

Case: 11-30560 Document: 00511768046 Page: 1 Date Filed: 02/24/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 24, 2012 No. 11-30560 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARCO ANTONIO QUIROZ-GARCIA, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Louisiana No. 2:10-CR-345-1 Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM:* Marco Quiroz-Garcia appeals the 96-month sentence following his guilty- plea conviction of illegally reentering the United States after removal. See 8 U.S.C. § 1326. He contends that the sentence, which the district court charac- * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-30560 Document: 00511768046 Page: 2 Date Filed: 02/24/2012 No. 11-30560 terized as both an upward departure and a variance from his advisory sentenc- ing guideline range of 57-71 months, is substantively unreasonable. Where, as here, an appellant has preserved error, we review sentences, including those based on variances or departures, for reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). We review the substantive reasonableness of a sentence “under an abuse-of-discretion standard . . . tak[ing] into account the totality of the circumstances.” Id. The district court found that an above-guideline sentence was warranted because Quiroz-Garcia abused alcohol, had a propensity for violence, had repeat- edly entered the United States without permission, and had been convicted of twelve criminal offenses, eight of which were too old to be reflected in his crim- inal history score. Quiroz-Garcia’s criminal history, including uncounted convic- tions, provided a proper basis for an upward departure or variance. See U.S.S.G § 4A1.3(a), p.s.; United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The sentence is justified by the facts, and it advances the objectives of 18 U.S.C. § 3553(a)(2), such as protecting the public from further crimes. It is well within the range of variances and departures this court has upheld. See e.g. Brantley, 537 F.3d at 349-50 (upholding a 180-month sentence imposed as an upward departure and variance where the maximum guideline sentence was 51 months); United States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006) (upholding a 60-month sentence imposed as an upward departure where the maximum guideline sentence was 33 months). Quiroz-Garcia maintains that his prior convictions had little probative value regarding his potential for recidivism, and he complains that the district court failed adequately to consider his relatively crime-free recent past. That argument, however, is essentially a request that we reweigh the § 3553(a) fac- tors, which we will not do. See Gall, 552 U.S. at 51. Quiroz-Garcia has not shown that his sentence is substantively unreason- able. AFFIRMED. 2 

120 F.3d 325 74 Fair Empl.Prac.Cas. (BNA) 1086,71 Empl. Prac. Dec. P 44,944Rhoda TANG, Plaintiff, Appellee,v.STATE OF RHODE ISLAND, DEPARTMENT OF ELDERLY AFFAIRS andMaureen Maigret and Susan Sweet, in theirindividual and official capacities,Defendants, Appellants. No. 96-2320. United States Court of Appeals,First Circuit. Heard June 4, 1997.Decided Aug. 11, 1997. Rebecca Tedford Partington, Assistant Attorney General, Providence, RI, with whom Jeffrey B. Pine, Attorney General, was on brief, for appellants. Dennis J. Roberts II, Providence, RI, with whom Law Offices of Dennis J. Roberts II was on brief, for appellee. Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and BOUDIN, Circuit Judge. BOUDIN, Circuit Judge. 1 In the district court, Maureen Maigret and Susan Sweet moved for summary judgment, arguing that Rhoda Tang's claim against them under 42 U.S.C. § 1983 was barred by qualified immunity. The district court held that factual disputes precluded summary judgment on this issue, and Maigret and Sweet have taken an interlocutory appeal to this court. Under governing Supreme Court precedent, we are obliged to dismiss the appeal on procedural grounds. 2 Tang, an Asian American, has worked as a public health nutritionist at the Rhode Island Department of Elderly Affairs since 1974. In her view, the Department has discriminated against her for many years, in various respects, primarily on account of her race. The history of litigation includes a formal administrative charge by Tang of employment discrimination and a settlement of the matter in 1987, and Tang's 1989 discharge and 1992 reinstatement, which followed union-initiated arbitration. 3 In 1996, Tang filed the present action in district court against the Department, Maigret (former director of the Department), and Sweet (then the associate director). Tang charged that she had been discriminated against for racial and other reasons in the conditions of her employment and also had been subjected to retaliation on account of her prior complaint. Her claims were based on Title VII, 42 U.S.C. §§ 2000e-2 and 3, on 42 U.S.C. §§ 1981 and 1983, and on counterpart provisions of Rhode Island law. 4 After some preliminary skirmishing, Maigret and Sweet moved for summary judgment as to the section 1983 claim against them on grounds of qualified immunity. They conceded that there was a clearly established right to be free from racial discrimination. But, relying upon Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982), and Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987), they argued that an objectively reasonable person would not think that the conduct attributed to them by Tang violated that right. 5 Some of the incidents cited by Tang as examples of racial discrimination or retaliation would strike many people as tame (for example, that she was given too many clerical tasks); others might be more serious. But Maigret and Sweet sought to narrow the focus by asserting that each was directly linked only to one or two incidents. Tang answered that factual issues, including the defendants' alleged discriminatory intent, precluded summary judgment. 6 In October 1996, the district court filed a memorandum and order concluding that "the [individual] defendants' motion for qualified immunity must be and is hereby deferred until completion of the trial of the plaintiff's case." The court declined to "detai[l] the allegations the parties have made" but explained: "It suffices to say that I agree with plaintiff's counsel that the vast majority of the facts are in dispute." This appeal followed. 7 Although Tang defends the district court's order on the merits, she also says that we have no authority to review the district court's order. The objection, couched in language taken from a recent Supreme Court case, is that "a defendant entitled to invoke a qualified immunity defense may not appeal a district court summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine issue of fact for trial.' " See Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995). 8 The Supreme Court had earlier held in Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985), that despite the ordinary requirement of finality, a denial of qualified immunity on legal grounds is immediately appealable under the collateral order doctrine. But in Johnson, it narrowed this opportunity by saying that an interlocutory appeal from a denial of immunity would not be permitted where the district court found that a genuine issue of material fact precluded an immediate grant of qualified immunity. 515 U.S. at 312-18, 115 S.Ct. at 2156-58. Accord Behrens v. Pelletier, 516 U.S. 299, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996). 9 In construing these cases, this court has spelled out what is implicit in Johnson, namely, that it does not help the official appealing a denial of immunity to argue that the district court erred in finding a material issue of fact. Diaz v. Diaz Martinez, 112 F.3d 1, 4-5 (1st Cir.1997); Stella v. Kelley, 63 F.3d 71, 77-78 (1st Cir.1995). True, such an error can be described as an error of law. But, as the Supreme Court made clear, Johnson 's limitation on immediate review rests primarily on a prudential desire to avoid bringing evidentiary disputes to the appeals court except as part of a final judgment. Johnson, 515 U.S. at 312-18, 115 S.Ct. at 2156-58. 10 In this case, the district court did not identify specific factual issues or explain its ruling, but its reasoning probably lay along one or both of two different lines: that disputed incidents trivial in themselves might add up to something more sinister as part of a pattern, or that some of the incidents (such as the later withdrawn discharge of Tang in 1989) might not be so trivial at all. Neither theory is impossible in the abstract. See, e.g., Carter v. Rhode Island, 68 F.3d 9, 13 (1st Cir.1995). 11 Whether the evidence adduced by Tang created a material issue of fact under summary judgment standards is a different question; to decide it, we would have to describe in some detail the events cited by Tang and the inferences as to defendants' intent that might, or might not, be drawn from the episodes alleged. But this is the very type of factual dispute that Johnson holds to be premature so far as appellate review is concerned. Right or wrong, the district court's ruling is not subject to immediate appeal. 12 The defendants counter by saying that subjective intent is irrelevant to qualified immunity. They concede arguendo each of the few incidents directly involving them (e.g., Maigret's allegedly inadequate investigation of Tang's complaint that another department employee demanded to use Tang's computer although other machines were available). But drawing upon the Harlow-Anderson objective test of qualified immunity, they say that no reasonable person could regard these actions as unlawful discrimination. 13 We think that the Harlow-Anderson objective test does not automatically resolve a qualified immunity defense in favor of the defendant in a case of alleged racial discrimination or retaliation. The essence of such claims, or at least one standard version, is that official actions that might otherwise be defended as reasonable become illegitimate when taken out of racial bias or in revenge for a prior complaint. See Alexis v. McDonald's Restaurants of Mass., Inc., 67 F.3d 341, 354 (1st Cir.1995) (citing cases). To employ a wholly objective test would wipe out many, if not most, of these claims. 14 The objective test focuses on the reasonableness of the official's conduct independent of motive. It is rarely going to be manifestly unreasonable, judged apart from motive, to assign particular tasks to an employee, move her file cabinet, alter her parking arrangements or do most of the things of which Tang complains. But because of special constitutional or statutory protections, some motives can convert relatively minor slights into causes of action. Cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 & n. 8, 110 S.Ct. 2729, 2737 & n. 8, 111 L.Ed.2d 52 (1990). 15 An unresolved tension exists between such specific-intent torts and the objective Harlow-Anderson qualified immunity test.1 That test was designed to meet, not claims of racial bias or retaliation, but rather ill-founded allegations that an official action was "malicious" or taken "in bad faith"--characterizations that defeated qualified immunity at common law. Prosser and Keeton on Torts § 132, at 1059-62 (5th ed.1984). In all events, the circuit courts have almost uniformly refused to apply a strictly objective test of qualified immunity in racial and retaliation cases. See Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir.1993); Crawford-El, 93 F.3d at 817 (citing cases). 16 The defendants strongly suggest that the failure to allow an appeal now, in a case like this one, will undercut the protection that qualified immunity is supposed to give to a government official in a weak case not only to avoid liability but to avoid trial itself. Of course, nothing prevents a district court from granting summary judgment for the defendants where proof of a racial or retaliatory motive is very thin. But this does not help government officials seeking an early exit where the district court thinks that factual issues remain, for, in that event, Johnson still bars an immediate appeal. 17 Johnson involved a factual dispute about what occurred, not an issue of motive, and its full implications for motive cases may not have been entirely apparent. See Johnson, 515 U.S. at 307-10, 316-18, 115 S.Ct. at 2154, 2158. Given the policies set forth in Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2737-38, and Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40, officials arguably do need some special protection against charges of improper motive, which are easily made and which may be supported simply by an alleged remark of the defendant made when only the plaintiff was present. The problem for officials facing such lawsuits is very real. 18 In a few circuits, it appears that courts have responded by squeezing Johnson a bit and effectively granting interlocutory review of denials of qualified immunity based on alleged factual disputes about intent; but this circuit and a number of others have resisted that course.2 More inventively, the District of Columbia Circuit, which had developed a heightened pleading standard for such motive claims, recently abandoned it in favor of imposing a "clear and convincing evidence" standard of proof. Crawford-El, 93 F.3d at 818, 823. 19 Because the Supreme Court has granted review in Crawford-El, an answer to the quandary may be forthcoming, but we need not hazard our own guess about the outcome. In the present case, Maigret and Sweet did not ask for any special evidentiary standard to be used in the district court--but merely for summary judgment granting them qualified immunity. The district court denied it because of a perceived factual dispute, and under Johnson that ruling cannot be reviewed on interlocutory appeal. 20 Appeal dismissed. 1 The Supreme Court may clarify matters next fall when it confronts a qualified immunity defense offered to a charge of retaliatory motive. Crawford-El v. Britton, 93 F.3d 813 (D.C.Cir.1996) (en banc), cert. granted, --- U.S. ----, 117 S.Ct. 2451, 138 L.Ed.2d 210 (1997) 2 Compare Walker v. Schwalbe, 112 F.3d 1127, 1131-32 (11th Cir.1997) and Blue v. Koren, 72 F.3d 1075, 1083-84 & n. 6 (2d Cir.1995) (exercising pendent jurisdiction), with Berdeca-Perez v. Zayas-Green, 111 F.3d 183, 184 (1st Cir.1997) and Chateaubriand v. Gaspard, 97 F.3d 1218, 1223-24 (9th Cir.1996) and Shinault v. Cleveland County Bd., 82 F.3d 367, 370-71 (10th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 740, 136 L.Ed.2d 678 (1997)

In the United States Court of Appeals For the Seventh Circuit No. 00-3681 Tina R. Thomas, O.D., Plaintiff-Appellant, v. Pearle Vision, Inc., Defendant-Appellee. Appeal from the United States District Court for the Central District of Illinois. No. 97-1441--Joe B. McDade, Chief Judge. Argued April 10, 2001--Decided May 30, 2001 Before Coffey, Rovner, and Diane P. Wood, Circuit Judges. Coffey, Circuit Judge. When Pearle Vision, Inc. ("Pearle") refused to restore Dr. Tina Thomas to the optometrist position in its Peoria, Illinois, store after a medical leave related to the birth of her child, she sued Pearle, alleging that Pearle had breached her employment contract. Thomas claimed that Pearle’s 1997 Summary Plan Description of employee benefits incorporated into her contract the Family Medical Leave Act of 1993, 29 U.S.C. sec. 2601, et seq. Thomas also claimed Pearle violated the FMLA by failing to provide her with written notice that it considered her a highly compensated employee and that it intended to deny her job restoration upon the completion of her leave. The district court granted summary judgment to her employer, Pearle, holding that the "Problem Resolution" clause within the manual afforded Dr. Thomas an exclusive remedy for Pearle’s failure to comply with the FMLA and therefore, Dr. Thomas’s failure to comply with that clause defeated her claim. Dr. Thomas appeals. I. Factual Background Dr. Thomas began working at Pearle in September 1994 as a full-time doctor in its Peoria, Illinois store. Pearle employed only 12 employees at the Peoria store and less than 50 employees within 75 miles of the Peoria store. In 1996, however, Pearle distributed to all of its employees a 1997 Summary Plan Description of Employee Benefits ("1997 SPD"). In a section entitled, "The Family and Medical Leave Act of 1993," Pearle stated in the 1997 SPD that "all employees with one year of service who worked 1,250 hours with Pearle in the 12 months immediately prior to requesting leave" were eligible for leave under the FMLA. The 1997 SPD repeated this eligibility description clause later, stating "[i]f you have worked for Pearle for at least one year, and have worked 1,250 hours or more during the 12 month period prior to requesting leave, you are eligible for Family and Medical leave." The handbook further contained instructions on how to request leave, which required employees requesting leave to notify a supervisor at least 30 days in advance and complete the necessary FMLA forms. Additionally, the 1997 SPD contained a section entitled, "Problem Resolution." In that section, Pearle advised its employees that: It is the policy of the organization not to discharge or discriminate against any employee exercising his or her rights under the federal Family and Medical Leave Act. If you think you have been treated unfairly, please contact the Vice President of Human Resources. The decision of the Vice President of Human Resources will be final and binding. In September 1996 while expecting the birth of her first child, Dr. Thomas read over the potential benefits listed in the 1997 SPD to determine which one’s she might be eligible for, paying particular attention to potential benefits pursuant to the FMLA. Around February of 1997, Dr. Thomas notified her manager of her pregnancy and requested maternity leave under the FMLA. Dr. Thomas’s manager fur nished her with an FMLA checklist and other forms that had to be completed pursuant to the FMLA. On the FMLA request form, Dr. Thomas noted that she sought only eight weeks of leave (though the FMLA and Pearle’s plan allowed for up to twelve weeks of leave). Further, on the form for physician certification, which she completed before the birth of her child, Dr. Thomas and her physician answered in the affirmative that she was 1) able to perform work of any kind, and 2) able to perform the functions of her position. Shortly after completing the forms, Dr. Thomas expressed a concern to Pearle regional manager, Cheryl Melquist, dealing with her eligibility because of the section in the 1997 SPD labeled "Job Restoration." In that section, Pearle noted that "[c]ertain highly compensated salaried employees are eligible for leave, but are not guaranteed restoration to their position if they choose to take leave."/1 Melquist advised Dr. Thomas that Pearle "would do everything [it] could to help, to get fill-in doctors for [her]" and that "as long as [it could] find fill-in help, [Thomas] would havenothing to worry about." Melquist also told Thomas to call Pearle’s human resources manager, Tim Hying, if she had any questions. Admittedly, both Melquist and Hying also told Thomas that there may not be a position for her when she returned, seemingly contradicting her earlier statement that Thomas had nothing to worry about. But neither Melquist nor Hying ever sent Thomas written notice to that effect or indicated definitively that she would not be offered job restoration upon completion of her leave. Shortly before Thomas’s leave commenced, Pearle hired several doctors to serve part-time (both to cover Thomas’s absences before the delivery, and her leave after delivery). On April 24, Dr. Don Nelson told Thomas that he was going to fill in for her while she was on leave. Thomas’s manager, Traci Soots, confirmed that Dr. Nelson was temporary help. Thomas commenced her leave on April 29, several weeks earlier than she expected, because of a back problem asso ciated with her pregnancy. The next day, Thomas sent a letter via facsimile to Melquist, informing her that she still planned to take pregnancy leave and inquiring about what was planned for the future regarding her position and about Dr. Nelson’s status. On May 5, 1997, Melquist phoned Thomas and explained that Dr. Nelson was temporary help. But the following day, Hying instructed Melquist to hire a full-time regular employee doctor, and Dr. Nelson was hired shortly thereafter. Pearle did not notify Dr. Thomas at this time of its decision to hire Dr. Nelson full-time. In fact, Pearle never did notify Dr. Thomas in writing that they were unable to continue using temporary help to fill her position during her absence or much less that she would be denied job restoration upon her return from pregnancy leave. Instead, sometime around July 1997 Dr. Thomas learned that Pearle had hired a full-time replacement for her when she noticed that her name was not on her office door. On July 24, 1997, regional manager Kurt Schaefer (who had recently replaced Melquist) informed Dr. Thomas (still, not in writing, but via a message left on her home telephone’s answering machine) that Pearle had hired Dr. Nelson as a full-time doctor and that there were currently no part-time or full-time positions available in the region. Schaefer did not explain that restoring Dr. Thomas to her position (or a similar one) would result in substantial and grievous economic injury to Pearle (thus necessitating the hire of Dr. Nelson). Dr. Thomas then commenced suit against Pearle for breach of contract, alleging that Pearle incorporated the FMLA into her contract through the 1997 SPD. Dr. Thomas further claimed that Pearle breached the contract when it failed to comply with the provision of the FMLA that an employer give highly compensated employees written notice at the time leave was requested that it intended to deny job restoration on the completion of leave. See 29 C.F.R. sec. 825.219. Pearle moved for summary judgment, arguing that the 1997 SPD did not create an enforceable contract granting Dr. Thomas any rights under the FMLA, and in the alternative, that Dr. Thomas breached the contract by failing to take advantage of the "Problem Resolution" clause in the 1997 SPD. The trial court rejected defendant’s first argument, holding that the 1997 SPD met the requirements of Duldulao v. Saint Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 317-18 (Ill. 1987), and created an enforceable contract that gave Dr. Thomas the benefits of the FMLA. Nonetheless, the district court granted summary judgment to Pearle, holding that Dr. Thomas had not complied with the "Problem Resolution" procedure and therefore her breach of contract defeated her claim.  Dr. Thomas filed a motion to reconsider the judgment and also for leave to supplement the record (to show that she had complied with the clause). In her motion, Dr. Thomas argued that Pearle had breached the contract first, and therefore her breach was immaterial. The court granted Dr. Thomas’s motion and vacated its initial order. The court further declared Dr. Thomas’s motion to supplement the record as moot. After the district court vacated the judgment, Pearle filed a motion to reconsider, arguing that the court’s holding rendered the "Problem Resolution" clause meaningless. The court agreed and again granted summary judgment to Pearle. The court reasoned that, although the 1997 SPD granted Dr. Thomas rights under the FMLA, it also limited those rights through the Problem Resolution clause, which operated as an exclusive remedy for violations of FMLA benefits given to Dr. Thomas by the 1997 SPD. Dr. Thomas appeals, arguing that the Problem Resolution clause is ambiguous in that it can reasonably be interpreted as either permissible or mandatory and in that it does not apply to her as published. II. Issues Two issues present themselves in Dr. Thomas’s appeal. Initially, we must determine whether the 1997 SPD created an enforceable contract that granted Dr. Thomas the benefits of the FMLA. Next, if we determine that the 1997 SPD did create an enforceable contract, we must determine whether the Problem Resolution clause was ambiguous. III. Analysis We review de novo a district court’s grant of summary judgment. Kuchenruether v. City of Milwaukee, 221 F.3d 967, 972 (7th Cir. 2000). Summary judgment is proper if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under Illinois law a genuine issue of material fact exists in contract cases when a key provision of a contract is ambiguous, requiring admission of extrinsic evidence. McDonald’s Operators Risk Mgmt. Ass’n, Inc. v. CoreSource, Inc., 717 N.E.2d 485, 488; Dudek, Inc. v. Shred Pax Corp., 626 N.E.2d 1204, 1209 (Ill. App. Ct. 1993); Dash Messenger Serv., Inc. v. Hartford Ins. Co., 582 N.E.2d 1257, 1260 (1991). Moreover, once the trial court has interpreted the contract as a matter of law, the reviewing court may independently construe the contract. In re Marriage of Davis, 678 N.E.2d 68, 70 (Ill. App. Ct. 1997); Omnitrus Merging Corp. v. Illinois Tool Works, Inc., 628 N.E.2d 1165, 1168 (Ill. App. Ct. 1994). A. Existence of a Contract and FMLA Benefits Because Pearle employed less than 50 employees within 75 miles of the store at which Dr. Thomas worked, she would not be an eligible employee as defined by the FMLA. See 29 U.S.C. sec. 2611(2)(B). Thus, Dr. Thomas’s claim arises not under the FMLA, but under the language of her contract. Dr. Thomas contends that the 1997 SPD that Pearle distributed to all of its employees, and language therein created an enforceable contract granting her rights under the FMLA. Under Illinois law, employee manuals can create enforceable contracts if the traditional elements of contract formation are present. See Duldulao, 505 N.E.2d at 318; Perma v. Arcventures, Inc., 554 N.E.2d 982, 987 (Ill. App. Ct. 1990). To support her contention that Pearle made an express promise to grant her benefits under the FMLA, Dr. Thomas points to a passage in the 1997 SPD that reads: If you have worked for Pearle for at least one year, and have worked 1,250 hours or more during the 12 month period prior to requesting leave, you are eligible for Family and Medical Leave. Dr. Thomas argues that this language, repeated elsewhere in the 1997 SPD, serves to waive the jurisdictional threshold mandating a minimum number of employees be employed within a certain radius for an employee to be eligible for the FMLA. In essence, Dr. Thomas contends that this language expressly incorporates the FMLA, in its entirety, into her contract. Pearle contends on appeal, as it did below, that the 1997 SPD does not create an enforceable contract because the statement discussing FMLA eligibility is not an express promise that it "incorporates, adopts, abides by, or provides to all its employees the full array of FMLA rights." But it is hard to construe the statement in the 1997 SPD that "all employees with one year of service who worked 1,250 hours with Pearle in the 12 months immediately prior to requesting leave" are eligible for the FMLA as anything other than an express promise. Cf. Lee v. Canuteson, 573 N.E.2d 318, 322 (Ill. App. Ct. 1991) (holding that employee manual that stated "it is the sincere intent of [employer] to be fair and reasonable with all employees at all times" and that employees "may" be subject to progressive discipline did not constitute express promises). Had Pearle wished to limit this clause, it needed only omit the "all" and replace it with "any employee who is employed at a work site with less than 50 employees." Similarly, had Pearle intended the section on the FMLA to merely describe FMLA benefits for those employees who were eligible it could have drafted the clause accordingly. It did neither. The above is not the only evidence in the record that Pearle obligated itself to provide Dr. Thomas (and other employees not otherwise statutorily eligible) the benefits of the FMLA. Pearle’s actions provide further evidence of their intent to provide Dr. Thomas with FMLA benefits. The 1997 SPD established a procedure for employees to follow when requesting leave under the FMLA, and pursuant to this procedure Pearle provided Dr. Thomas with FMLA forms to complete. In short, Pearle acted as if the 1997 SPD did, in fact, grant Dr. Thomas the right to request leave under the FMLA, despite the fact that at this point in time she was not statutorily eligible. Dr. Thomas’s reliance on Pearle’s actions was reasonable, and Pearle’s argument that the 1997 SPD did not offer Dr. Thomas the benefits of the FMLA is disingenuous at best. B. Interpretation of the Problem Resolution Clause Although we hold that the 1997 SPD did create an enforceable contract that rendered Dr. Thomas eligible for the FMLA, this alone does not carry the day for Dr. Thomas. This is because of the simple principle that what a contract gives, it can also take away. Pearle argues that, even if the 1997 SPD did make Dr. Thomas eligible for benefits under the FMLA, other parts of the 1997 SPD took away certain benefits. Principally, Pearle contends that the Problem Resolution clause/2 serves either as an exclusive remedy for any violations of the FMLA or as a requirement that must be exhausted before an aggrieved employee may bring suit. Thus, Pearle argues that Dr. Thomas’s claim for breach of contract is barred because Dr. Thomas failed to follow the procedure set forth in the Problem Resolution clause. Dr. Thomas suggests, however, that the Problem Resolution clause is ambiguous, pointing to two ambiguities: 1) whether it is mandatory or permissive; 2) whether it applies to any claim under the FMLA or only claims of retaliation or discrimination for exercising FMLA rights. A contract is ambiguous if it is reasonably or fairly susceptible to more than one interpretation. Owens v. McDermott, Will & Emery, 736 N.E.2d 145, 150 (Ill. App. Ct. 2000); Pennsylvania Life Ins. Co. v. Pavlick, 637 N.E.2d 1160, 1162 (Ill. App. Ct. 1994); Omnitrus Merging Corp., 628 N.E.2d at 1168. However, merely because the parties do not agree on the contract’s meaning does not render it ambiguous. Pennsylvania Life Ins. Co., 637 N.E.2d at 1102. Thus, we must determine whether Dr. Thomas’s interpretations of the Problem Resolution clause are reasonable, bearing in mind that Illinois has long recognized the rule of contract construction that any ambiguity in the contract should be resolved against the drafting party, in this case Pearle. See Liccardi v. Stolt Terminals (Chicago), Inc., 669 N.E.2d 1192, 1199 (Ill. App. Ct. 1996); Wheeler v. Phoenix Co. of Chicago, 658 N.E.2d 532, 537 (Ill. App. Ct. 1995) (ambiguities in language contained within employee manual construed against the drafter); Epstein v. Yode 391 N.E.2d 432 (Ill. App. Ct. 1979). 1. Mandatory or Permissive We note at the outset that the plain language of the contract is permissive, not mandatory. See Owens, 736 N.E.2d at 150 (holding that a party’s intent is best determined from the plain language of the contract). The clause reads, "[i]f you think you have been treated unfairly, please contact the Sr. Vice President of Human resources." It does not read, "you must contact the Sr. Vice President" or "failure to contact the Sr. Vice President will result in a loss of your rights and benefits." If Pearle had wished the Problem Resolution clause to be an exclusive and mandatory remedy that must be exhausted before a complainant resorts to litigation, then it could very easily have drafted the clause with clear, unambiguous, and express mandatory language. Cf. Lee v. Canuteson, 573 N.E.2d 318, 320 (1991) ("failure to comply with any of the time limits listed below shall constitute a waiver of the grievance."). Even though the district court’s interpretation could perhaps be deemed reasonable, so too is an interpretation that the Problem Resolution clause merely offered Pearle employees the additional benefit of an informal resolution procedure. Pearle suggests that to interpret the clause as permissive eviscerates its meaning, and deprives Pearle of a bargained for right, citing Mayfair v. Waveland, 619 N.E.2d 144, 152 (Ill. App. Ct. 1993) (contracts should be construed to give effect to every clause). We disagree. Pearle may have intended the Problem Resolution clause to grant employees additional rights, giving them an informal remedy should they chose to avoid retaining an attorney. This could both generate good will among Pearle employees (who may not have to struggle as mightily to validate their FMLA rights when management makes an honest mistake), but also, in turn, helps Pearle avoid legal expenses when those employees choose that remedy. Pearle’s suggestion that employees would never avail themselves of a permissive remedy and would instead always resort to litigation is but speculation. But there is more to cast doubt on Pearle’s interpretation of the Problem Resolution clause. The FMLA prohibitscovered employers from discouraging eligible employees from exercising their rights under the FMLA, see 29 C.F.R. sec. 825.220(a)(1), and Pearle distributed the 1997 SPD to all of its employees, including those statutorily eligible for protection under the FMLA. Accordingly, if the Problem Resolution clause is obligatory, then it arguably violates the FMLA and would be entirely invalid against its FMLA- eligible employees. Pearle suggests that every contract should be read so that every clause is given effect, but the very interpretation of the contract that it proposes would strip the Problem Resolution clause of meaning for many Pearle employees./3 Because the express language of the Problem Resolution clause is permissive and because an interpretation of the clause as such is reasonable, we hold that the Problem Resolution clause is ambiguous. Therefore, there is a genuine issue of material fact as to whether Pearle intended the procedure set forth in the Problem Resolution clause to be permissive or mandatory. 2. The Scope of the Problem Resolution Clause Even if, however, the Problem Resolution clause clearly expressed Pearle’s intent to create an obligatory remedy that aggrieved employees must utilize before resorting to litigation, Dr. Thomas further argues that the Problem Resolution clause is ambiguous as to its scope. Dr. Thomas contends that the clause applies only if an employee seeks to bring a claim of retaliation for exercising rights under the FMLA. She points to language in the clause that reads "[i]t is the policy of the organization not to discharge or discriminate against any employee exercising his or her rights under the Family and Medical Leave Act." Pearle largely ignores this argument, relegating its response to a footnote in which it claims that Thomas’s reading of the clause is "tortured" and "facially unavailing." But an examination of the structure of the FMLA suggests that Dr. Thomas’s reading of the Problem Resolution clause is, in fact, reasonable. The FMLA establishes two categories of broad protections for employees--one prescriptive in nature, the other proscriptive. See 29 U.S.C. sec. 2615 (a)(1) & (2); see also Rice v. Sunrise Express, 209 F.3d 1008, 1016-17 (7th Cir. 2000); King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999); Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 119, 1206-07 (11th Cir. 2001); Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999); Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998). The prescriptive category of protections ensures the availability of the FMLA’s substantive statutory rights, making it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." See 29 U.S.C. sec. 2615(a)(1); see also King, 166 F.3d at 891; Strickland, 239 F.3d 1206-07. The proscriptive category of protections does not ensure substantive rights, but instead, protects employees from retaliation, making it unlawful for employers to discriminate against employees who have exercised their rights under the FMLA. See 29 U.S.C. sec. 2615 (a)(2); 29 C.F.R. sec.825.220(c); see also King, 166 F.3d at 891; Strickland, 239 F.3d at 1206-07. Courts have routinely recognized the difference between the two types of claims, and have applied different tests when employees bring only one of the two types of claims. See, e.g., Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997); Nero v. Industrial Molding Corp., 167 F.3d 921 (5th Cir. 1999); Chaffin, 179 F.3d at 319. In this case, language of the Problem Resolution clause suggests that it applies to proscriptive claims of retaliation and discrimination and not to prescriptive claims that Pearle failed to provide substantive FMLA rights. It directs employees who believe they have been discriminated against for exercising their rights under the FMLA (and not those employees who believe they have unlawfully been denied FMLA benefits) to contact the Sr. Vice President. Further, the second paragraph of the clause directs employees who have "questions" about their FMLA benefits to contact their benefits coordinator./4 A reasonable interpretation of the entire clause, which differs from that offered by Pearle, is that employees who have questions about substantive FMLA benefits (such as Dr. Thomas) contact their benefits coordinator, while employees who believe that they have been retaliated against for exercising FMLA rights (a category in which Dr. Thomas would not be included) contact the Sr. Vice President. Accordingly, we hold that the Problem Resolution clause is also ambiguous as to its scope. Therefore, there is a genuine issue of material fact as to whether the procedure set forth in the Problem Resolution clause applies to Dr. Thomas. C. Form over Function Lest we elevate form over substance, we discuss briefly whether Dr. Thomas was actually damaged by Pearle’s failure to provide her written notice that she was a highly compensated employee and that it intended to deny job restoration. The parties do not dispute that both Melquist and Hying told Thomas that there may not be a position for her when she returned. But Melquist, Soots, and even Dr. Nelson himself, told Thomas on numerous occasions, 4 in number, that she had "nothing to worry about" and that Dr. Nelson was only temporary help. Indeed, on the day before Melquist hired Dr. Nelson, she advised Thomas that Dr. Nelson was only performing her duties as "temporary help." Thus, Pearle’s actions should not be considered so clear to a reasonable individual, including Dr. Thomas, that it considered her to be a highly compensated employee and would not necessarily offer her job restoration when she returned from leave. They are, in fact, far from it. And there is more. At the same time Pearle employees told Thomas that she might not be offered job restoration, they provided her with FMLA forms to complete, which could have lead a reasonable person to believe that her position was secure and her leave had been granted. On those leave request forms, Dr. Thomas also indicated that she was able and willing to perform the functions of her position--and yet Pearle never informed her that it planned to hire Dr. Nelson full-time because they could not find sufficient coverage for Dr. Thomas’s position. Indeed, Thomas did not even learn that Pearle had hired a full-time replacement until she began preparing and was physically able to return from her leave in July and noticed that her name was no longer on the office door.  In essence Pearle never did provide Dr. Thomas with a clear and definite statement of its intentions. Perhaps, if faced with the decision between two definite alternatives--either to continue her leave knowing that her job would not be restored or to abort her leave to secure her position--Dr. Thomas would have chosen the latter, and that is sufficient to establish that Pearle’s failure to provide her written notice was certainly far more important than a simple, technical error, but one that substantively affected Dr. Thomas’s rights. IV. Conclusion We disagree with the district court’s conclusion that the Problem Resolution clause in Pearle’s 1997 SPD unambiguously created an exclusive remedy for Pearle’s breach of the FMLA. The clause neither used express language indicating such an intent, nor clearly defined the scope of the clause. Further, we hold that Dr. Thomas was injured by Pearle’s failure to provide clear, written notice of its intention not to offer her job restoration, with which she might have chosen to continue working rather than risk the loss of her job. Accordingly, because the contract is ambiguous, its interpretation is a question for the trier of fact and summary judgment was improper. The decision of the district court is REVERSED and the case REMANDED for further proceedings consistent with this opinion. FOOTNOTES /1 This clause is similar to an exemption in the FMLA, allowing employers under certain conditions to deny restoration to highly compensated employees. 29 U.S.C. sec. 2614(b)(1). The regulations implementing the FMLA require an employer that chooses to avail itself of this exemption to provide the employee written notice at the time the employee requests leave that it intends to deny restoration pursuant to sec. 2614. If the employer does not provide written notice to the employee, then it loses its right to deny restoration. 29 C.F.R. sec. 825.219. /2 The Problem Resolution clause reads, in its entirety: It is the policy of the organization not to discharge or discriminate against any employee exercising his or her rights under the federal Family and Medical Leave Act. If you think you have been treated unfairly, please contact the Sr. Vice President of Human Resources. The deci- sion of the Sr. Vice President of Human Resources will be final and binding. If you have questions about the Family and Medi- cal Leave Act of 1993, please contact your Bene- fits Coordinator. /3 The record does not disclose how many Pearle employees are eligible employees as defined by the FMLA, but presumably all of those employees in major metropolitan areas (where it is likely that more than 50 employees work within a 75 mile radius) are eligible. /4 Although the record does not disclose who Thom- as’s benefits coordinator was, she had contact with both Pearle’s regional manager, Melquist, and Pearle’s human resources manager, Hying, regarding her leave. 

Fourth Court of Appeals San Antonio, Texas November 18, 2016 No. 04-16-00025-CV Beatrice VASQUEZ & Darryl De La Cruz, Appellants v. OLD AUSTIN ROAD LAND TRUST, Joseph Anthony Pizzini Individually and as Trustee of Old Austin Road Land Trust, & John Price, Appellees From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-20809 Honorable David A. Canales, Judge Presiding ORDER On August 31, 2016, we abated this appeal based on appellee John Loan Price’s petition for bankruptcy filed in the United States Bankruptcy Court for the Western District of Texas under Case No. 16-51752-rbk, on August 1, 2016. See TEX. R. APP. 8.1. We suspended the appeal and all time periods under the Texas Rules of Appellate Procedure from the date the bankruptcy petition was filed in the bankruptcy court. See id. R. 8.2. We advised the parties the appeal would remain suspended unless and until it is reinstated in accordance with Rule 8.3. See id. R. 8.3(a). On November 8, 2016, appellants Beatrice Vasquez and Darryl De La Cruz filed a motion to reinstate the appeal and attached a copy of the court’s order from the United States Bankruptcy Court for the Western District of Texas, San Antonio Division. See id. The agreed order states that “the automatic stay is lifted to permit Beatrice Vasquez and Darryl De La Cruz to proceed with litigation pending against John Price and others in the Fourth Court of Appeals in San Antonio, Texas, Cause No. 04-16-00025-CV through entry of judgment or final order” with certain added restrictions depending on the outcome of this appeal. Therefore, we REINSTATE this appeal on this court’s docket. Appellees’ brief is due to be filed in this court within THIRTY DAYS of the date of this order.  _________________________________ Patricia O. Alvarez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 18th day of November, 2016. ___________________________________ Keith E. Hottle Clerk of Court 

Citation Nr: 1550113 Decision Date: 11/30/15 Archive Date: 12/04/15 DOCKET NO. 14-36 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.W. Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1958 to July 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran did not have service, or other duty or visitation, in the Republic of Vietnam, and the preponderance of the competent evidence is against a finding that he was exposed to Agent Orange or other herbicide agents during his period of service, to include his service at Ubon Royal Thai Air Force Base (Ubon Air Base). 2. Diabetes mellitus was not first manifested during active duty or within one year of the Veteran's separation from service, and the preponderance of the evidence is against a finding that the current disability is related to military service, to include alleged herbicide exposure therein. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim has been eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in March 2014 and May 2014 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The March 2014 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (stating that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced national service organization who has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. In May 2014, the RO requested that the Veteran submit more information related to the Veteran's unit and timeframes of the alleged exposure to Agent Orange. The Veteran did not reply, and the RO opined that there was not enough detail of information to submit a U.S. Army and Joint Services Records Research Center (JSRRC) request. The following month, the Veteran submitted a VCAA notice response indicating that he had no additional information to submit. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). The Board notes that the Veteran has not been afforded a VA examination with respect to his claim. However, as will be discussed below, the competent, credible, and probative evidence of record fails to demonstrate that the Veteran served in Vietnam during the Vietnam War, nor was he shown to have been exposed to herbicides while serving in Thailand. This is important as exposure to herbicides is the basis of his claim for service connection. As will be discussed below, there is no evidence of any complaints, treatment, findings, or diagnoses referable to diabetes mellitus during service. Additionally, the first evidence of a diagnosis of diabetes mellitus was sometime around 2013. Moreover, the Veteran has not alleged a continuity of diabetes mellitus symptomatology since service; rather, he has contended that he is entitled to presumptive service connection based on exposure to herbicides. As will be discussed further below the preponderance of the evidence is against showing that he was exposed to herbicides, to include Agent Orange, during service. Therefore, the Board finds that there is no indication that diabetes mellitus, or persistent or recurrent symptoms of such disease, may be associated with the Veteran's military service. Thus, a remand for examinations and/or opinions is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Diabetes mellitus is deemed to be a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of herbicide exposure is warranted for service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The VA Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 57586 -57589 (1996). Additionally, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). The Board notes, notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). In the absence of a presumptive basis to grant a claim, to establish a right to compensation for a present disability on a direct basis. Again, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Factual Background and Analysis The Veteran contends that his currently diagnosed diabetes mellitus is due to Agent Orange exposure during service. He contends that he was exposed to herbicides while working on the flight line in Ubon, Thailand from January 1965 to September 1966; or alternatively, during stopovers in Republic of Vietnam enroute to and from Thailand. He also maintains that he was exposed to Agent Orange from aircraft that flew over Vietnam. A review of the Veteran's service treatment records show no findings of diabetes mellitus or symptoms related to diabetes mellitus. Periodic urinalysis testing was negative throughout service. A review of the Veteran's service personnel records shows no service in Vietnam or evidence of stopovers in Vietnam. His service in Thailand at Ubon Air Base was noted. His military occupations were radar operator/aerospace control and warning systems technician. In the Veteran's June 2009 claim for service connection, he specifically denied any service in Vietnam. It appears that the Veteran was first diagnosed as having diabetes mellitus in 2013. A private treatment note, dated in July 2013, states that the Veteran has a recent diabetes mellitus diagnosis. In a March 2014 communication to VA, the Veteran reported that enroute to Thailand, he stopped ant Ton Son Knut Air Base in Vietnam. This was in January 1966. In 1970, he recalled returning to Thailand and passing through Vietnam again. He stated that he controlled aircraft flying missions over Cambodia and Vietnam. He questioned whether his diabetes mellitus may have started during service. Upon careful review of the evidence of record, the preponderance of the evidence is against finding that the Veteran served in-country in Vietnam, and is against any direct exposure to Agent Orange in Thailand. In finding that the Veteran did not serve in Vietnam, and was thus not exposed to herbicide exposure in Vietnam, the Board also finds that he is not entitled to a presumption of herbicide exposure due to his service in Thailand. In that regard, the Veterans' Benefits Administration (VBA) Fast Letter 09-20 provides updated information concerning herbicide use in Thailand during the Vietnam era. Previous development procedures that VBA was using for purposes of developing information concerning possible Agent Orange exposure in Thailand was replaced by a memorandum for the record that was jointly prepared by the Compensation Service and the Department of Defense. Now, if a claimed herbicide exposure cannot be resolved based on the information contained in this memorandum, then follow-up inquiries are being sent to the Army and JSRRC. This memorandum reports that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. See VBA Fast Letter 09-20 (May 6, 2009). This memorandum reflects that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. Although the 1966 missions involved the spraying of Malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. The memorandum further concedes that non-tactical, commercial herbicides were used within fenced perimeters at other times during the Vietnam War period. Therefore, if a Veteran's military occupational specialty or unit was one that regularly had contact with the base perimeter, there was a greater likelihood that the Veteran had been exposed to commercial pesticides. Security police units were known to have walked the perimeters, especially dog handlers. Id. In this case, it cannot be presumed that he was exposed to tactical herbicides while stationed in Thailand. Although the VBA Fast Letter noted above provides guidance on the extent of herbicide exposure outside Vietnam, such exposure is not presumed for any veteran and actual exposure must be demonstrated based on the facts found from the record. Unlike veterans who served in the Republic of Vietnam during the Vietnam era who are presumed to have been exposed, including those service members who only disembark from a ship for the day and place "boots on the ground" in Vietnam; the presumption of exposure to herbicides does not carry to those servicemen who service in Thailand during the Vietnam era. The Veteran contends that his military occupational specialty caused him to be present at the perimeter of his military base. The Veteran was radar operator/aerospace control and warning systems technician and contends that his duties took him near the perimeters of the Ubon Thai base. The Board finds, however, that there is no documentation that the Veteran was indeed exposed to herbicides sprayed at the base perimeter. In light of the Veteran's statements in this case, and upon review of his service personnel records, the Board finds that the weight of the credible evidence is against a finding that he was exposed to commercial herbicides while stationed in Thailand. Thus, further verification with the JSRRC is not necessary and presumptive service connection for diabetes mellitus is not warranted on that basis. The Veteran's claim for diabetes mellitus is based entirely on his alleged exposure to Agent Orange. Though the Board finds the Veteran to be largely credible and sincere in his own belief that he was either exposed to Agent Orange in Thailand, there is simply no record of the Veteran's exposure at Ubon Air Base in Thailand. Consequently, the preponderance of the evidence is against a presumptive finding of service connection based on exposure to Agent Orange. The Board finds that the Veteran's service personnel file is the most probative evidence of record as to whether he was exposed while serving in Thailand. Therefore, he cannot be presumed to have been exposed to herbicides in Thailand. The Veteran's service personnel records further demonstrate that he did not serve in the Republic of Vietnam, and the other probative evidence of record does not show that he was exposed to herbicides at Ubon base in Thailand, and he is therefore not entitled to the presumption that he was exposed to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii). The Veteran has not contended that he personally sprayed Agent Orange or any other herbicidal agents while in Thailand, and the overwhelming evidence of record shows that the Veteran was not present in areas where Agent Orange or other herbicides may have been spread during the timeframe he alleges. Indeed, the Veteran had some exposure to the base perimeter at Ubon, but his MOS does not suggest that he walked the perimeter of the base on a regular basis like a dog handler or security police would. In fact, the Veteran referenced his work as being on the flight line. In regard to the Veteran's assertion that he was exposed to residuals herbicides on aircraft returning from Vietnam, there are no current medical studies of record that show harmful health effects from such secondary or remote herbicide contact that may have occurred. See BVA Fast Letter 09-20, with attached VA memorandum on Herbicide Use in Thailand during the Vietnam Era. The Board further finds that such an assertion is too speculative on its face to constitute credible evidence of actual exposure to herbicides. The Board acknowledges the Veteran's sincere belief that he was directly exposed to Agent Orange while serving in Thailand, but finds that his personnel records, and other sources, significantly outweigh the statements made by the Veteran. As such, the preponderance of the evidence is against finding that the Veteran was exposed to herbicides, including Agent Orange, during service. Moreover, the record fails to show that the Veteran manifested diabetes mellitus to a degree of 10 percent within the one year following his final service discharge in 1979. As noted above, the Veteran was first diagnosed as having diabetes mellitus around 2013. Therefore, presumptive service connection is not warranted for diabetes mellitus. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, the Board has also considered whether the Veteran is entitled to service connection for diabetes mellitus on a direct basis. Finally, the Board notes that there are no findings attributed to diabetes mellitus in the service treatment records, nor is there any competent medical opinion attributing his diabetes mellitus to any incident of service. In reviewing the Veteran's argument, it does not appear that he is alleging continuity-of-symptomatology; the Board nonetheless notes that the Veteran is not competent to provide an alternate theory of causation. Such an allegation of causation is different from descriptions of continuity of symptomatology, which in many instances a Veteran is competent to provide. See 38 C.F.R. § 3.159(a)(2); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (lay persons not competent to diagnose cancer). Consequently, the preponderance of the evidence is against a finding of service connection on a direct basis. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for diabetes mellitus must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) NUCOR STEEL-ARKANSAS & ) NUCOR-YAMATO STEEL ) COMPANY, ) ) Plaintiffs, ) ) v. ) No. 14-cv-0199 (KBJ) ) SCOTT PRUITT, in his official capacity ) as Administrator, U.S. Environmental ) Protection Agency, ) ) Defendant. ) ) MEMORANDUM OPINION This case is nominally a procedural action that Plaintiffs Nucor Steel-Arkansas and Nucor-Yamato Steel Company (collectively, “Nucor”) have filed against the Administrator of the Environmental Protection Agency (“EPA”) pursuant to one of the citizen-suit provisions of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q. See id. § 7604(a)(2) (authorizing lawsuits against the Administrator of the EPA where the agency has allegedly failed to perform a non-discretionary duty). But in the broader scheme of things, this matter is actually one of many battlegrounds in a multi-front conflict between two competing steel-manufacturing companies with facilities in Mississippi County, Arkansas. Nucor operates two manufacturing facilities near Blytheville, Arkansas, which is approximately twenty miles from a site in Osceola, Arkansas, at which Big River Steel Company (“Big River Steel”) has proposed to build a new manufacturing facility. (See Nucor’s Second Suppl. & Am. Compl. (“Compl.”), ECF No. 40, ¶¶ 4–5, 10.) 1 Big River Steel obtained a permit from the Arkansas Department of Environmental Quality (“ADEQ”) that authorized the construction and operation of its planned facility, and Nucor responded by launching legal attacks against the permit, both in the Arkansas state court system and in the U.S. District Court for the Eastern District of Arkansas. See Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm’n (Nucor I), 478 S.W.3d 232 (Ark. 2015); Nucor Steel- Arkansas v. Big River Steel, LLC (Nucor II), 825 F.3d 444 (8th Cir. 2016). 2 Significantly for present purposes, Nucor has also sought to challenge Big River Steel’s permit by petitioning the EPA to object to the permit under Title V of the CAA, 42 U.S.C. §§ 7661–7661f. Per Title V, the EPA may object to any operating permit that a state permitting authority issues if the permit does not comply with the CAA, id. § 7661d(b)(1), and if EPA fails to object on its own, any person may petition the agency to issue an objection, id. § 7661d(b)(2). When the EPA failed to respond timely to Nucor’s petition for an objection to Big River Steel’s permit, Nucor filed this lawsuit, seeking a court order that compels the EPA to respond to Nucor’s petition. (See Compl., Prayer for Relief, ¶ B.) Before this Court at present is the EPA’s motion to dismiss Nucor’s complaint. (See EPA’s Mot. to Dismiss Second Suppl. & Am. Compl. for Lack of Jurisdiction (“Mot.”), ECF No. 43.) In the motion, the agency contests Nucor’s various stated bases for Article III standing, only one of which this Court finds worthy of discussion here. 3 1 Big River Steel is participating in this lawsuit as an amicus curiae. (See Order, ECF No. 34.) 2 Both of these legal challenges were ultimately unsuccessful. See Nucor I, 478 S.W.3d at 236–37; Nucor II, 825 F.3d at 446–47. 3 In order to demonstrate that it has standing to sue, a plaintiff needs to identify only one type of cognizable injury-in-fact, and therefore, a court “need not address” alternative theories of injury once 2 Specifically, Nucor’s complaint asserts that, by operation of a set of rules within the CAA known as the Prevention of Significant Deterioration (“PSD”) program, the permitted emissions from the new Big River Steel mill will cause a construction project that Nucor has planned to undertake at one of its Arkansas facilities to be subject to more stringent emissions limitations than would have applied to Nucor’s project otherwise. (See Compl. ¶¶ 63, 71–81.) The EPA argues that Nucor has not adequately alleged that Big River Steel’s permit will cause Nucor imminent injury in this way, because the complaint does not sufficiently assert that Nucor has any imminent construction plans that will require PSD-program review or that such plans would actually be affected by Big River Steel’s emissions. (See Mot. at 18–23.) 4 For the reasons explained below, this Court agrees with Nucor that certain allegations in the complaint are sufficient to demonstrate (for the purpose of the pleading stage of this litigation) that Big River Steel’s permit works a plausible and imminent injury to Nucor in the form of more stringent limitations under the PSD program. (See, e.g., Compl. ¶ 78 (alleging that one of Nucor’s facilities “is currently pursuing permit modifications that may require PSD review”); id. ¶ 28 (asserting that Big River Steel’s emissions “will impact the overall air quality of Mississippi County, including the air quality in and around Nucor’s facilities”).) Consequently, this Court finds that the complaint adequately alleges Nucor’s standing to bring the instant lawsuit, which means that the EPA’s motion to dismiss for lack of standing must be DENIED. A separate order consistent with this Memorandum Opinion will follow. one injury-in-fact is established. Sierra Club v. EPA, 755 F.3d 968, 976 n.2 (D.C. Cir. 2014). 4 Page-number citations to the documents the parties have filed refer to the page numbers that the Court’s electronic filing system automatically adds. 3 I. BACKGROUND This Memorandum Opinion addresses the EPA’s contention that Nucor lacks Article III standing because its complaint does not adequately allege that Nucor has imminent construction plans that the emissions from Big River Steel’s new facility will affect by operation of the PSD program. Notably, the EPA appears to accept Nucor’s suggestion that an injury of the type Nucor alleges can constitute a concrete, particularized injury that would confer Article III standing if an entity that has imminent construction plans demonstrates that it actually would be harmed in this way. In order to evaluate the EPA’s assertion that Nucor’s complaint fails to make an adequate showing of imminent injury, it is important to understand how the operation of the PSD program could possibly inflict a cognizable injury-in-fact for standing purposes, and achieving that understanding requires background knowledge of the overall CAA scheme and the contours of the PSD program, both of which are sketched out below. A. The Clean Air Act Framework With the CAA Amendments of 1970, Congress enacted a “comprehensive national program that made the States and the Federal Government partners in the struggle against air pollution.” Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990). At the heart of the CAA are the National Ambient Air Quality Standards (“NAAQS”), which are specified numerical thresholds for the concentration of particular pollutants in the outdoor air (also known as the “ambient” air). See 42 U.S.C. § 7409. Because of their role within the overall statutory scheme, the NAAQS are generally considered to be “the engine that drives nearly all of Title I of the CAA.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). 4  The CAA requires the EPA “to promulgate NAAQS for each air pollutant” about which the agency has made certain findings, id. at 462; see also 42 U.S.C. § 7409(a), and the agency must set these uniform, nationally applicable pollution standards at the levels necessary “to protect the public health,” 42 U.S.C. § 7409(b)(1), while also providing for “an adequate margin of safety,” id., and “accurately reflect[ing] the latest scientific knowledge” about the effects on public health from the presence of each pollutant in the ambient air, id. § 7408(a)(2). To date, the EPA has promulgated NAAQS for six types of air pollutants. Util. Air Regulatory Grp. v. EPA (UARG), 134 S. Ct. 2427, 2435 (2014); see 40 C.F.R. pt. 50. As pertinent here, there are two NAAQS that relate to a pollutant called “particulate matter”: one that applies to PM 2.5 and another that applies to PM 10 . See 40 C.F.R. §§ 50.6 (setting NAAQS for PM 10 ), 50.13, 50.18 (setting NAAQS for PM 2.5 ). 5 The States’ Role In The Regulation Of New And Modified Stationary Sources Under The CAA Once the EPA establishes a NAAQS for a particular pollutant, each state assumes the lead role in implementing that air quality standard, with each state adopting (subject to EPA approval) “a plan which provides for implementation, maintenance, and enforcement” of that NAAQS. 42 U.S.C. § 7410(a)(1). 6 Each state’s implementation plan (“SIP”) is subject to certain minimum requirements laid out in the CAA, see id. § 7410(a)(2), but “[i]t is to the States that the CAA assigns initial and primary responsibility for deciding what emissions reductions will be required from which 5 These two NAAQS reflect different particle sizes. PM 2.5 takes account of particles with a diameter of 2.5 micrometers or less, while PM 10 takes account of particles with a diameter of 10 micrometers or less. See 40 C.F.R. §§ 50.6, 50.7, 50.13. 6 The EPA has approved Arkansas’s SIP. See 40 C.F.R. §§ 52.170, 52.172. 5 sources” in order to achieve the NAAQS. Am. Trucking Ass’ns, 531 U.S. at 470; see also 42 U.S.C. § 7407(a) (“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting [a SIP] which will specify the manner in which [the NAAQS] will be achieved and maintained within each air quality control region in such State.”). As a general matter, through its SIP, each state implements a permit program that requires each new and modified major stationary source of pollution to seek a pre- construction permit that sets emissions limitations for that source. See Texas v. EPA, 726 F.3d 180, 183–84 (D.C. Cir. 2013); see also 42 U.S.C. §§ 7410(a)(2)(C). For example, in Arkansas, the ADEQ issues pre-construction permits, Nucor II, 825 F.3d at 447; see Ark. Code §§ 8-4-201, 203, and any entity that plans to build a new major emitting facility, or modify an existing one, must apply to the ADEQ for a permit that, if granted, contains allowable emissions levels pertaining to that source, Nucor II, 825 F.3d at 447. Importantly, the particular emissions limitations that apply to a new or modified source depend on where the source is located. The EPA divides the country into “air quality control regions” and classifies each region as being in “attainment,” or in “non- attainment,” or treats the region as “unclassifiable,” with respect to each NAAQS. 42 U.S.C. § 7407(d)(1)(B); see 40 C.F.R. pt. 81, subparts B–C. And these designations dictate which emissions limitations the states must impose in any pre-construction permits that they issue in a particular region. See 42 U.S.C. §§ 7475 (setting permit requirements for sources in “attainment” and “unclassifiable” regions), 7503 (setting permit requirements for sources in “non-attainment” regions). 6  In essence, “the [CAA] triggers more or less stringent [emissions] requirements depending on the quality of an area’s ambient air.” Catawba Cty, N.C. v. EPA, 571 F.3d 20, 26 (D.C. Cir. 2009). Furthermore, the EPA can change a region’s designation “at any time[,]” based on “any . . . air quality-related considerations the Administrator deems appropriate[.]” 42 U.S.C. § 7407(d)(3)(A). The PSD Program In regions that have been designated “attainment” or “unclassifiable,” the CAA requires states to implement the statute’s Prevention of Significant Deterioration (“PSD”) program. See id. § 7471. The PSD program is so named because, in attainment and unclassifiable regions, the pre-construction permits that states issue have to impose the emissions limitations that are “necessary . . . to prevent significant deterioration of air quality,” 42 U.S.C. § 7471 (emphasis added); hence, the pre- construction permits that the states issue in those regions are known as “PSD permits,” Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 470, 472 (2004). When a major new or modified emitting facility seeks a PSD permit, it is required to certify that it will comply with a number of requirements. See 42 U.S.C. § 7475. One such requirement is that the new or modified facility must employ the best available control technology (“BACT”) for each pollutant subject to the PSD program. Id. § 7475(a)(4). Another is that the facility must “demonstrate[]” that its emissions “will not cause, or contribute to, air pollution in excess of any . . . [NAAQS] in any air quality control region[.]” Id. § 7475(a)(3). In addition, and importantly for this case, the applicant must also “demonstrate[]” that its emissions “will not cause, or contribute to, air pollution in excess of any . . . maximum allowable increase or maximum allowable concentration 7 for any pollutant in any area [subject to the PSD program] more than one time per year[.]” Id. With respect to this last requirement, the “maximum allowable increase” for a particular pollutant is known as the PSD “increment.” Alaska Dep’t of Envtl. Conservation, 540 U.S. at 473; see also 42 U.S.C. § 7473 (setting “increments” for specific pollutants). The PSD increment is a number that is expressed as an ambient concentration of a given pollutant in micrograms per meter cubed (µg/m 3 ), and it reflects “the maximum allowable increase in concentration[ of a pollutant] . . . over the baseline concentration.” 42 U.S.C. § 7473(b)(2); see also 40 C.F.R. § 52.21(c) (setting PSD increments). The EPA establishes the “baseline concentration” for a given pollutant, and the baseline, which varies from region to region, is generally equal to the concentration of the pollutant that was present in the ambient air at the time the first application for a PSD permit in a particular region was submitted. See 42 U.S.C. § 7479(4); see also 40 C.F.R. § 52.21(b)(13)–(15). The PSD increment—which, as explained, is the maximum allowable increase above the baseline—is a single number that the EPA fixes for each pollutant, and it applies to all regions that have been designated as “attainment” or “unclassifiable” with respect to that pollutant; for example, in the case of PM 2.5 and PM 10 , the established PSD increments are 4 and 17 µg/m 3 , respectively. See 40 C.F.R. § 52.21(c). 7 What this means, as a general and practical matter, is that all new or modified stationary sources of pollution in attainment 7 These numbers reflect the “annual arithmetic mean” PSD increments—that is, the maximum allowable increase in the ambient concentration of each pollutant as measured over the course of a year. See 40 C.F.R. § 52.21(c). Moreover, these numbers apply in “Class II areas,” see id., which the law defines as all areas other than certain large national and international parks, see 42 U.S.C. § 7472. 8 and unclassifiable areas must be mindful not to construct facilities whose emissions of a pollutant would cause the region to exceed the PSD increment for that pollutant. The method by which a new or modified facility must demonstrate that it will not “cause or contribute to” air pollution in excess of the PSD increment, 42 U.S.C. § 7475(a)(3), is critical to Nucor’s PSD-related theory of injury in this case. In brief, each PSD-permit applicant must begin by conducting an air quality impact analysis that identifies the area in which the proposed new or modified facility will have a significant impact on air quality. See 42 U.S.C. § 7475(a)(6); 40 C.F.R. § 52.21(m); see also Environmental Protection Agency, New Source Review Workshop Manual C.26–31 (Draft, Oct. 1990) (hereinafter “NSRWM”). This “impact area” is “a circular area” that is centered on the proposed facility and has a radius that extends out either 50 kilometers or to the most distant point where air modeling suggests that a significant impact will occur, whichever is less. See NSRWM at C.26. Next, the PSD permit applicant must develop an inventory of “all increment-affecting sources located in the impact area” as well as “all increment-affecting sources located within 50 kilometers of the impact area . . . if they, either individually or collectively, affect the amount of PSD increment consumed.” Id. at C.35. Sources are “increment-affecting” (and thus must be included in the inventory) if they have caused a change in emissions subsequent to the setting of the baseline concentration. See id. Finally, after assembling this inventory of nearby sources that already affect the PSD increment, the permit applicant must demonstrate that its proposed facility, in conjunction with the pre-existing facilities, will not cause the PSD increment to be exceeded. See 40 C.F.R. § 52.21(k)(ii); see also id. § 52.21(b)(13)(ii)(a) (explaining 9 that emissions from other sources constructed after the baseline concentration has been set “affect the applicable maximum allowable increase[]” that a new facility must take into account when applying for a PSD permit). Put another way, once the baseline concentration of a given pollutant has been set in a particular region, any facility constructed thereafter that increases the ambient concentration of that pollutant “consumes” a portion of the PSD increment, leaving less of the increment available for subsequent new facilities in the region to use. NSRWM at C.10. B. Underlying Facts And Procedural History Big River Steel is currently constructing a steel mill near the town of Osceola in Mississippi County, Arkansas. (Compl. ¶¶ 1, 9.) Mississippi County is part of the Northeast Arkansas Intrastate Air Quality Control Region, see 40 C.F.R. § 81.139, which the EPA has classified as “attainment” or “unclassifiable” with respect to PM 2.5 and PM 10 , see id. § 81.304, and thus the area is subject to the PSD program, see 42 U.S.C. § 7471. In January of 2013, Big River Steel applied to ADEQ for a pre-construction PSD permit related its new mill, and it did so at the same time that it sought an operating permit under Title V of the CAA with respect to the proposed new facility. See Nucor I, 478 S.W.3d at 237–38 & n.1. The basic requirements for seeking and receiving a PSD permit are described above, see supra, Part I.A.2, while the purpose and procedures for operating permits under Title V—which is the vehicle pursuant to which the instant case is brought—are as follows. 1. The Title V Permitting Process Title V of the CAA mandates that each major stationary source obtain a facility- wide operating permit that lays out all federally enforceable emissions limitations 10 applicable to that facility. See Sierra Club v. EPA, 551 F.3d 1019, 1022 (D.C. Cir. 2008); 42 U.S.C. §§ 7661–7661f. Title V “is designed to facilitate compliance and enforcement by consolidating into a single document all of a facility’s obligations under the Act.” UARG, 134 S. Ct. at 2436. Title V operating permits are distinct from PSD permits, see id. at 2435–36, but PSD-permit requirements are among the obligations that must be included in a Title V permit, see 40 C.F.R. § 70.2 (defining “applicable requirement” for the purposes of Title V to include “[a]ny term or condition of any preconstruction permits” issued under the PSD program). The EPA allows states to consolidate their PSD and Title V permits, see EPA, Operating Permit Program, 57 Fed. Reg. 32,250, 32,259 (July 21, 1992), and Arkansas has done so, see Nucor II, 825 F.3d at 453; Nucor I, 478 S.W.3d at 238 n.1. Moreover, having a Title V permit shields a facility from the charge of operating in violation of the CAA, because once a facility obtains a Title V permit, Title V’s “permit shield” provision dictates that “compliance with the permit shall be deemed compliance with” the statute. 42 U.S.C. § 7661c(f); see also Sierra Club, 551 F.3d at 1022. Significantly for present purposes, Title V establishes that a state permitting authority must subject each Title V permit application to public comment and judicial review by the state’s courts, 42 U.S.C. § 7661a(b)(6), and it must also transmit all proposed Title V permits to the EPA for review, id. § 7661d(a)(1). If, upon review of a Title V application, the EPA determines that the proposed Title V permit would violate the CAA in any respect, it “shall . . . object to its issuance” and “provide a statement of reasons for the objection” to the state permitting authority and to the permit applicant. Id. § 7661d(b)(1). If the state permitting authority receives an EPA objection, it may 11 respond by submitting a revised permit to the EPA, but it must refrain from issuing the permit. 42 U.S.C. § 7661d(b)(3). And once it has objected, the EPA makes the final decision whether to deny the permit or issue it with revisions, id. § 7661d(c); consequently, an objection from the EPA is effectively a “veto[.]” Operating Permit Program, 57 Fed. Reg. at 32,256. However, if the EPA does not object within forty-five days of receiving a proposed Title V permit, “any person” may petition the EPA to object on any ground that was raised during the state permitting authority’s public comment period. 42 U.S.C. § 7661d(b)(2). The EPA must grant or deny any such petition for an objection within sixty days of receiving it, and “shall issue an objection [i.e. grant the petition] within such period if the petitioner demonstrates . . . that the permit is not in compliance” with the CAA. Id. 8 The EPA’s denial of a petition for an objection is subject to judicial review in the appropriate Court of Appeals. Id.; see also id. § 7607(b)(1). 9 In addition, if the EPA fails to take any action on the petition, the CAA’s citizen-suit provision supplies a cause of action for the petitioner to bring a suit against the EPA in federal district court for “a failure . . . to perform any act or duty under [the CAA] which is not discretionary[.]” Id. § 7604(a)(2). 8 The EPA maintains an online list of Title V petitions and its decisions on those petitions. See EPA, Title V Petition Database, www.epa.gov/title-v-operating-permits/title-v-petition-database (last visited Mar. 29, 2017). 9 Because this pathway exists for judicial review of Title V permits, the CAA’s citizen suit provision, 42 U.S.C. § 7604, does not encompass direct challenges to Title V permits in district court. See Nucor II, 825 F.3d at 452–53; Romoland Sch. Dist. v. Inland Empire Energy Ctr. LLC, 548 F.3d 738, 754–55 (9th Cir. 2008). Of course, judicial review from a state permitting authority’s decision to grant a Title V permit is available in state court. 42 U.S.C. § 7661a(b)(6) (requiring state judicial review of Title V permitting decisions); see, e.g., Ark. Code §§ 8-4-205, 223(a)(1), (d) (prescribing judicial review for ADEQ permitting decisions in the Arkansas Court of Appeals); see also, e.g., Nucor I, 478 S.W.3d 232 (reviewing ADEQ Title V permitting decision). 12  Big River Steel’s Permit Application And Nucor’s Response To It Big River Steel’s application to the ADEQ regarding the new steel mill that it proposed to build Osceola, Arkansas, contained an air quality analysis that predicted that the new mill would contribute 2.47 µg/m 3 to the ambient concentration of PM 2.5 in the region, bringing the total concentration to 11.91 µg/m 3 , just below the NAAQS of 12 µg/m 3 . See Nucor I, 478 S.W.3d at 237–38. 10 ADEQ issued a draft permit in June 2013, which triggered a public comment period. Id. at 238. Nucor had “actively followed” its prospective neighbor’s permit application, and it “submitted over forty comments” to ADEQ, “most objecting to the technical aspects of [Big River Steel]’s modeling and to a perceived bias in ADEQ’s evaluation of [Big River Steel]’s application.” Id. Over Nucor’s vigorous objection, ADEQ issued a final permit on September 18, 2013. Id. Nucor then proceeded to press its opposition to Big River Steel’s Osceola mill on several fronts. It appealed ADEQ’s permit, first, to the Arkansas Pollution Control and Ecology Commission, which affirmed the permit, and then to the Arkansas Court of Appeals, which in turn affirmed the Commission. Nucor I, 478 S.W.3d at 236–37. Nucor also sued Big River Steel directly in the U.S. District Court for the Eastern District of Arkansas, challenging the permit under the portions of the CAA’s citizen- suit provision allowing for claims against private parties. See 42 U.S.C. § 7604(a)(1), (3). That court dismissed Nucor’s complaint for lack of subject matter jurisdiction, see Nucor Steel-Arkansas v. Big River Steel, LLC, 93 F. Supp. 3d 983, 992–93 (E.D. Ark. 2015), and the Eighth Circuit affirmed, see Nucor II, 825 F.3d at 447. 10 12 µg/m 3 represents the primary annual arithmetic mean NAAQS for PM 2.5 . See 40 C.F.R. § 50.18. 13  In addition, and directly relevant here, on October 9, 2013, Nucor petitioned the EPA to object to the permit under 42 U.S.C. § 7661d, raising many of the concerns that Nucor had previously flagged during ADEQ’s public comment period. (Compl. ¶¶ 95– 96.) Among other things, Nucor asserted that, when ADEQ issued the permit to Big River Steel, ADEQ failed to monitor the pre-existing concentration of PM 2.5 properly, failed to model the air quality impacts of the Big River Steel mill, and failed to establish an appropriate BACT standard. (Compl. ¶ 57.) Procedural History The EPA did not respond to Nucor’s petition within the sixty-day statutory window. (See Compl. ¶ 97 (citing 42 U.S.C. § 7661d(b)).) After giving the agency the requisite notice of its intent to sue (see Compl. ¶ 92 (citing 42 U.S.C. § 7604(b)(2))), Nucor filed this lawsuit on February 11, 2014, alleging that the EPA’s ongoing failure to respond to Nucor’s petition constitutes “a failure of the Administrator to perform any act or duty . . . which is not discretionary[.]” 42 U.S.C. § 7604(a)(2). Nucor’s complaint seeks an order requiring the EPA to grant or deny its petition for an objection within 30 days. (See Compl., Prayer For Relief, ¶ B.) Since filing this lawsuit, Nucor has twice amended its complaint (once with the Court’s leave and once under Court order) in response to motions to dismiss challenging its standing to sue, and both times, Nucor has expanded the complaint’s allegations in support of standing. (See Pl.’s Mot. for Leave to File First Suppl. & Am. Compl, ECF No. 19; Mot. for Leave to File Second Suppl. & Am. Compl., ECF No. 39.) 14 In its now-operative pleading, which is titled the Second Supplemental and Amended Complaint, Nucor asserts several theories of injury. 11 First, Nucor alleges that particulate matter emissions from the new Big River Steel facility “will reach the Nucor mills given the short distance between them,” and “will negatively impact Nucor’s employees’ health and productivity, which impacts the operations at Nucor’s facilities.” (Compl. ¶¶ 27, 29.) Second, Nucor alleges that particulate matter emissions from the Big River Steel facility will damage Nucor’s property by polluting a 350-acre wildlife area that Nucor preserves for its employees’ leisure (see id. ¶¶ 36–52), and by “stain[ing] and damag[ing] buildings and other property owned by Nucor” (id. ¶ 54). Third, Nucor alleges that it will suffer competitive injury if ADEQ issues permits to Nucor in the future that, either initially or as the result of an EPA objection, impose emissions limitations on Nucor that should have been, but were not, imposed on Big River Steel. (See id. ¶¶ 57–62). Fourth, Nucor alleges that Big River Steel’s Title V permit contains unrealistic BACT requirements, which will force Nucor to implement more expensive emissions control technologies in the future when it submits its own permit applications. (See id. ¶¶ 82– 86.) Fifth, Nucor alleges that emissions from the Big River Steel facility will cause the ambient concentration of PM 2.5 to exceed the NAAQS (see id. ¶ 63), which “will result in Mississippi County being reclassified as ‘nonattainment’” (id. ¶ 64), leading to additional regulatory burdens for Nucor (see id. ¶¶ 65–68). Sixth and finally, Nucor alleges that emissions from the Big River Steel facility will partially or completely 11 For simplicity’s sake, the Court refers to the Second Supplemental and Amended Complaint as “the complaint” throughout this opinion. 15 consume the regional PSD increments for PM 2.5 and PM 10 , constraining any future Nucor construction project that generates particulate matter emissions and that requires PSD review. (See id. ¶¶ 63, 72–81.) With respect to the contention that the Big River Steel mill will consume some or all of the pertinent PSD increment, Nucor alleges, first of all, that it is “nearly certain” that its two mills in Arkansas will undergo PSD review in connection with future modification projects. (Id. ¶ 78.) Furthermore, in support of this prediction, Nucor alleges that both of its mills have previously been subject to PSD review (see id. ¶¶ 4– 5); that one of its two mills “is currently pursuing permit modifications that may require PSD review” (id. ¶ 78); and that over the past 25–30 years, its two mills have averaged almost an ADEQ-air-permit modification per year apiece, “[m]any” of which required PSD review (id.). Nucor also alleges that any PSD permit applications that it might seek in the future will be meaningfully constrained by Big River Steel’s emissions (see id. ¶¶ 78, 80–81), because Big River Steel’s new facility is located just 20 miles upwind of Nucor’s mills (see id. ¶¶ 10–11) and is in the same air quality control region as Nucor’s mills (see id. ¶ 8), and Nucor maintains that Big River Steel’s new mill will emit particulate matter that “will reach the Nucor mills” (id. ¶ 27) and “impact the overall air quality in Mississippi County” (id. ¶ 28). In its pending motion to dismiss, the EPA argues that Nucor lacks standing to sue because none of its asserted injuries amounts to an “injury-in-fact” that is cognizable under Article III of the Constitution. (See generally Mot.) The agency makes compelling arguments that Nucor’s assertions of injury related to its employees and property rely on speculation about increased risk of harm and fail to account for 16 Nucor’s own emissions (see id. at 11–14), and that Nucor’s assertions of competitive injury, injury related to BACT standards, and injury arising from an exceedance of the NAAQS all rely on speculation about the unpredictable future conduct of third-party regulators (see id. at 14–17). As for Nucor’s PSD-increment theory of standing, the EPA maintains that Nucor’s complaint contains insufficient allegations of fact to support a finding of standing insofar as it fails to allege adequately that Nucor will imminently need to secure a PSD permit or that any such permit would likely be more restrictive as a result of emissions from the Big River Steel facility. (See id. at 18–23.) Nucor responds that its complaint references a permit modification that one of its Arkansas facilities is currently pursuing, and thus Big River Steel’s consumption of the PSD increment affects Nucor’s present behavior. (See Nucor’s Req. for Oral Arg. & Opp’n to EPA’s Mot. to Dismiss Second Suppl. & Am. Compl. for Lack of Jurisdiction (“Opp’n”), ECF No. 47, at 37.) Nucor also argues that even if those present effects are insufficient to confer standing, Nucor has adequately alleged that it will need PSD permits in the future and that those permits will be impacted by Big River Steel’s emissions. (Id. at 37–39.) The EPA’s motion to dismiss Nucor’s complaint for lack of standing is now ripe for decision (see Mot.; Opp’n; EPA’s Reply in Supp. of Mot. to Dismiss Second Suppl. & Am. Compl. for Lack of Jurisdiction (“Reply”), ECF No. 50); this Court held a hearing on the motion on May 17, 2016. 12 12 Big River Steel has attempted to participate in this lawsuit in several respects. It has sought leave to intervene (ECF No. 9), which the Court denied (Order, ECF No. 34); leave to file briefs in support of EPA as an amicus curiae (ECF Nos. 23, 29, 45), which the Court granted (Order, ECF No. 34; Min. Order of Nov. 18, 2015); and leave to participate in the Court’s two Motion Hearings (ECF Nos. 36, 17 II. LEGAL STANDARDS A. Motions To Dismiss For Lack of Standing Under Rule 12(b)(1) Article III of the Constitution limits the judicial power of the federal courts to “[c]ases” and “[c]ontroversies[,]” U.S. Const. art. III, § 2, and that limitation creates a jurisdictional requirement that the plaintiff have standing to sue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Because it is a plaintiff’s burden to demonstrate that the court has jurisdiction over his claims, “[e]very plaintiff in federal court bears the burden of establishing the three elements that make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, causation, and redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) (quoting Defs. of Wildlife, 504 U.S. at 560–61). Thus, to establish standing in a lawsuit that seeks an injunction, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation omitted). Courts consider motions to dismiss a complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). See, e.g., Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 48 (D.C. Cir. 2016). In evaluating whether the plaintiff has established the three elements of standing, the Court must be mindful of the stage of the litigation, because “each element must be supported in the same way as any other matter on which 55), which the Court denied (Min. Order of Jan. 6, 2015; Min. Order of Feb. 29, 2016). 18 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Defs. of Wildlife, 504 U.S. at 561; accord Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 (D.C. Cir. 2015). Thus, at the pleading stage, “a complaint must state a plausible claim” that the elements of standing are satisfied, Humane Soc’y of U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015) (emphasis added) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), and when deciding whether the plaintiff’s assertion of standing is plausible, “the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff, but the court need not ‘accept inferences unsupported by the facts or legal conclusions that are cast as factual allegations.’” Cal. Clinical Lab. Ass’n v. Sec. of Health & Human Servs., 104 F. Supp. 3d 66, 74 (D.D.C. 2015) (quoting Rann v. Chao, 154 F. Supp. 2d 61, 63 (D.D.C. 2001)). Finally, while reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court may consider material outside of the pleadings as it deems appropriate. Am. Freedom Law Ctr., 821 F.3d at 49. B. When The Plaintiff Alleges A Procedural Violation, Some Standing Requirements Are Relaxed But Others Are Not Often, a plaintiff who is injured by a government action (or its failure to act) sues to rectify the government’s violation of a procedural requirement that is connected to the substantive action. In such a lawsuit, a plaintiff “who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Defs. of Wildlife, 504 U.S. at 572 n.7. This principle means that the plaintiff need not demonstrate that correcting the procedural violation itself would necessarily remedy the injurious government 19 action, so long as “there is some possibility” that it would do so. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). Thus, for example, “one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.” Defs. of Wildlife, 504 U.S. at 572 n.7. Be that as it may, alleging a procedural violation does not excuse a plaintiff from having to identify a related, substantive government action that actually does (or imminently will) cause him concrete injury in order to establish standing to sue. Put another way, “the requirement of injury in fact is a hard floor of Article III jurisdiction[,]” and courts have long held that “a procedural right in vacuo . . . is insufficient to create Article III standing.” Earth Island Inst., 555 U.S. at 496, 497. Thus, returning to the dam example: the adjacent property owner has standing to demand an environmental impact statement, notwithstanding the small chance that the statement will change the government’s decision to license the dam, and without regard to the fact that construction of the dam is years away (i.e., not imminent). However, “persons who live (and propose to live) at the other end of the country from the dam” would not have standing to file suit to enforce the impact-statement requirement. Defs. of Wildlife, 504 U.S. at 572 n.7. This is because the law permits a somewhat attenuated connection between the allegedly botched procedure and the underlying injurious substantive action, but there must always be a causal link between the underlying substantive action and the plaintiff’s injury. See WildEarth Guardians v. Jewell, 738 20 F.3d 298, 306 (D.C. Cir. 2013); see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 15 (D.C. Cir. 2011) (noting that the injurious action must be one “that would otherwise confer Article III standing” if challenged directly (quoting United Transp. Union v. ICC, 891 F.2d 908, 918 (D.C. Cir. 1989))). Thus, even a plaintiff whose procedural rights have been violated cannot establish standing “[w]ithout an imminent threat of injury traceable to the challenged action[.]” Nat’l Ass’n of Homebuilders, 667 F.3d at 15. III. ANALYSIS In its motion to dismiss, the EPA argues that Nucor has failed to establish that it will suffer an injury-in-fact as a result of the agency’s failure to respond to Nucor’s petition, because Nucor has not demonstrated that it will be harmed by the underlying substantive decision at issue (i.e., the EPA’s failure to object to the permit that ADEQ issued to Big River Steel). (See Mot. at 10–23.) As noted, the agency has dutifully attacked each of the myriad bases upon which Nucor claims that the emissions from Big River Steel’s new plant will injure it. (See, e.g., id. at 13 (arguing that Nucor cannot claim that it is injured by damage that Big River Steel’s emissions will cause to its property because the “emissions from Nucor’s own mills exceed the permitted emissions from Big River”).) Nevertheless, as explained below, this Court concludes that Nucor has asserted a concrete and particularized injury resulting from ADEQ’s approval of Big River Steel’s new mill, insofar as Nucor plausibly contends that its current plans to modify its own existing plants are likely to require PSD review yet Big River Steel’s new facility will consume all or most of the applicable PSD increment. This Court also finds that correcting the EPA’s alleged procedural violation would 21 create the requisite possibility of redress for this PSD-increment injury, and as a result, Nucor’s complaint adequately alleges that Nucor has standing to sue. A. Nucor Has Adequately Alleged An Injury-In-Fact For the following reasons, this Court concludes that Nucor’s alleged PSD- increment injury is “concrete and particularized[,]” and is also “actual or imminent, not conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560 (internal quotation marks and citations omitted). Consumption Of The PSD Increment Is A Concrete, Particularized Injury As explained above, when a major emitting facility seeks permission to embark on a construction project that requires PSD review, it must demonstrate that its emissions will not “cause or contribute to” an exceedance of any applicable PSD increment. 42 U.S.C. § 7475(a)(3). If other nearby facilities have already emitted significant amounts of a pollutant, those prior emissions consume the corresponding PSD increment, leaving less behind for a proposed construction project to consume. See 40 C.F.R. § 52.21(b)(13)(ii) (providing that emissions from other sources “affect the applicable maximum allowable increase[]” that a new facility must take into account when applying for a PSD permit); see also NSRWM at C.26, 34–35 (explaining that a facility must account for other increment-affecting sources within the area in which it will have a significant impact). Under this regulatory regime, the mechanics of which the EPA has laid out in a document called “The New Source Review Workshop Manual,” if one facility is allowed to emit a given pollutant in a given region, its action meaningfully constrains many of the future construction projects of its pollution- 22 emitting neighbors. See NSRWM at C.34–35. 13 Thus, it is clear to this Court that consumption of the PSD increment is a concrete and particularized harm that qualifies as an injury-in-fact for the purpose of Article III standing. First of all, there can be little doubt that PSD-increment injury is a concrete harm. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”). The Supreme Court has recognized a variety of “concrete” injuries, ranging from the tangible, Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 772 (2000) (loss of money); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012 & n.3 (1992) (loss of real property), to the intangible, see Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989) (informational harm); Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (aesthetic harm). Ultimately, the word “concrete” is “meant to convey the usual meaning of the term—‘real,’ and not ‘abstract.’” Spokeo, Inc., 136 S. Ct. at 1548 (citations omitted). A government action that restricts a plaintiff’s ability to emit pollution—and thus limits its ability to operate a manufacturing facility as it chooses—doubtless inflicts a concrete injury on that plaintiff. See UARG, 134 S. Ct. at 2445. Accordingly, when a permit enables a polluter to consume all or part of the PSD increment such that a 13 The Environmental Appeals Board, an administrative tribunal within the EPA, has described the New Source Review Workshop Manual as follows: The New Source Review Workshop Manual is a draft document issued by EPA’s Air Quality Management Division in October 1990. It was developed for use in conjunction with new source review workshops and training, and to guide permitting officials. Although it is not accorded the same weight as a binding Agency regulation, it has been looked to by this Board as a statement of the Agency’s thinking on certain PSD issues. In re: Commonwealth Chesapeake Corp., 6 E.A.D. 764, *3 n.6 (EAB 1997). The Supreme Court has relied on the Manual for insight into how the EPA implements the PSD program. See Alaska Dep’t of Envtl. Conservation, 540 U.S. at 476, 497; see also UARG, 134 S. Ct. at 2457 & n.1 (Alito, J., concurring in part and dissenting in part). 23 neighboring permit applicant must promise reduced emissions in order to comply with the PSD program, the neighboring applicant suffers a concrete injury. Second, Nucor’s alleged PSD-increment injury is sufficiently particularized. The particularity requirement bars lawsuits that “rais[e] only a generally available grievance[,]” because a plaintiff is “seeking relief that no more directly and tangibly benefits him than it does the public at large[.]” Defs. of Wildlife, 504 U.S. at 573–74. A lawsuit to redress PSD-increment injury does not raise a mere generalized grievance: the PSD increment is a scarce resource within a confined geographical area, and its scarcity constrains only prospective polluters within that region. See 42 U.S.C. § 7475(a)(3)(A) (providing that a PSD-permit applicant must demonstrate that its emissions will not cause or contribute to an exceedance of the PSD increment “in any area” governed by the PSD program). When one facility’s consumption of a PSD increment subjects its neighbor’s imminent construction plans to more stringent emissions limitations under the PSD program, the neighbor is “affect[ed] . . . in a personal and individual way[,]” and its injury is therefore particularized. Defs. of Wildlife, 504 U.S. at 560 n.1; cf. La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998) (explaining that when a government action benefitting one entity increases competitive pressures on another entity within the same market, the second entity can establish an injury-in-fact under a competitor-standing theory). Moreover, as explained at the outset, the EPA ultimately does not dispute that a PSD-increment injury—when plausibly alleged by a pollution emitter with genuinely imminent construction plans that will be constrained by a neighbor’s emissions— constitutes a concrete and particularized injury that is cognizable under Article III. 24 (See Mot. at 19 n.9 (describing allegations Nucor would need to make “[t]o show injury based on an alleged overconsumption of the increment”).) Instead, the EPA argues that, given the circumstances presented in Nucor’s complaint, Nucor has not adequately alleged that such an injury is imminent. (See Mot. at 18–23.) This Court disagrees, for the reasons explained below. Nucor Has Adequately Alleged That The Asserted PSD-Increment Injury Is Imminent In its complaint, Nucor specifically alleges that, due to ADEQ’s decision to grant the Big River Steel permit, when Nucor undertakes to “evaluat[e] whether a future modification” to one of its facilities “will contribute to an exceedance of the NAAQS or an exceedance of the PSD increment,” Nucor “will have to take the additional BRS emissions into account . . . , which will constrain [Nucor]’s ability to obtain permit modifications without additional pollution controls or operating restrictions.” (Compl. ¶ 81.) The EPA’s primary response to Nucor’s PSD-increment theory of injury is that Nucor has not plausibly alleged that it is in fact “planning modifications [to its mills] that would require a PSD permit” (Mot. at 18), or that there is an “overlap between the geographic areas affected by Nucor’s emissions and the emissions from the Big River facility” such that Big River Steel’s emissions would “affect the amount of increment available to Nucor” (id. at 20). According to the EPA, these two inadequacies render the allegations in Nucor’s complaint “insufficient to establish that the permitting of emissions from Big River causes an actual or imminent injury to Nucor.” (Id. at 18.) But the EPA’s contention disregards the pleading standards applicable at this early stage of the litigation, which require only that Nucor plausibly allege that the asserted PSD-increment injury is imminent. 25  Specifically, where, as here, a plaintiff’s assertion of injury depends on the plaintiff’s own future plans, courts examine whether the injury is imminent from two angles: the firmness of the plaintiff’s future plans, and the likelihood that the challenged government action will implicate those plans. See, e.g., In re Navy Chaplaincy, 697 F.3d 1171, 1176 (D.C. Cir. 2012); NB ex rel. Peacock v. District of Columbia, 682 F.3d 77, 83 (D.C. Cir. 2012). For example, in In re Navy Chaplaincy, a group of military chaplains alleged future injury in the form of religious discrimination by selection boards that would consider their future candidacies for promotion. 697 F.3d at 1175–76. The D.C. Circuit assessed that “assertion of future injury” by dividing the contention into “two subsidiary premises: that plaintiffs will be considered for promotion by future selection boards and that selection boards will discriminate against them.” Id. at 1176. The court proceeded similarly in NB ex rel. Peacock. See 682 F.3d at 83. That is, in order to evaluate whether the plaintiff had adequately alleged future denial of Medicaid prescription coverage without the requisite notice, the court subdivided its analysis into the “contingencies” of (1) “whether [the plaintiff] ha[d] alleged an ongoing need for prescription coverage[,]” and (2) whether the defendant agency was “likely to . . . den[y] coverage . . . [and] fail to provide the required notice upon denial.” Id. And these twin inquiries regarding (1) the plaintiff’s future plans, and (2) the likelihood that the challenged government action will implicate those plans, are parallel perspectives from which to examine the ultimate issue: whether, in light of the plaintiff’s allegations, it is plausible that the alleged injury is imminent. See id. at 85–86. 26  With respect to Nucor’s future plans, this court finds that Nucor has adequately alleged that its future construction projects will require a PSD permit. Nucor asserts that it is “nearly certain” that its two mills in Arkansas will undergo PSD review in connection with future modification projects. (Compl. ¶ 78.) Furthermore, in support of this prediction, Nucor alleges that both of its mills have previously been subject to PSD review (Compl. ¶¶ 4–5); that one of its two mills “is currently pursuing permit modifications that may require PSD review” (Compl. ¶ 78); and that over the past 25– 30 years, its two mills have averaged almost one ADEQ-air-permit modification per year apiece, “[m]any” of which required PSD review (id.). At this early stage of the litigation, these allegations suffice to support a plausible inference that Nucor will soon embark on a construction project that requires a PSD permit. See, e.g., Peacock, 682 F.3d at 83 (concluding that a plaintiff who had alleged that he needs two inhalers per month “is virtually certain” to engage in the conduct in the future that would subject him to injury); Dearth v. Holder, 641 F.3d 499, 502–03 (D.C. Cir. 2011) (holding that plaintiff’s “stated intent to return regularly to the United States” and purchase firearms made the injury that he would suffer in those circumstances “sufficiently real and immediate to support his standing” at the pleading stage); Emergency Coalition to Defend Educational Travel v. U.S. Dep’t of Treasury, 545 F.3d 4, 10 (D.C. Cir. 2008) (holding that the plaintiff had made adequate assertions regarding his future plans to lead a study-abroad program, where he described “the consistent annual repetition of the . . . program over several years” and his “concrete plans for the content and focus of the [upcoming year’s] program”). 27  The EPA’s argument regarding Nucor’s future intentions fails to appreciate the lower standard that is applicable at this phase of the litigation. (See Mot. at 18–19.) Citing the Supreme Court’s admonition in Defenders of Wildlife that “‘some day’ intentions . . . do not support a finding of . . . ‘actual or imminent’ injury,” the EPA contends that Nucor’s “allegations are too vague and speculative” to establish that it has imminent construction plans that will require PSD review. (Mot. at 19 (quoting Defs. of Wildlife, 504 U.S. at 564).) But Defenders of Wildlife was clear that its analysis was contingent on the case having arisen at the summary judgment stage, 504 U.S. at 561, and indeed the decision’s author clarified just weeks later that the standing challenge in Defenders of Wildlife “would have been unsuccessful” had it “been made at the pleading stage.” Lucas, 505 U.S. at 1012 n.3; see also Food & Water Watch, 808 F.3d at 912–13. The EPA’s arguments regarding Nucor’s future plans are similarly misplaced. For example, the agency argues that Nucor’s allegation that it is “currently pursuing permit modifications that may require PSD review” (see Compl. ¶ 78) does not pass muster because many Title V permit modifications do not require PSD review. (See Mot. at 18–19 & nn.8–9 (emphasizing that PSD review is not required for changes that do not amount to “major modifications”)); see also 40 C.F.R. § 51.166(a)(7)(i), (b)(2)(i); Envt’l Def. v. Duke Energy Corp., 549 U.S. 561, 568–69 (2007). Moreover, the EPA continues, even those permit modifications that do require PSD review only entail PSD-increment analysis if the modification increases emissions of a pollutant by a “significant” amount. (Mot. at 18 n.8 (citing 40 C.F.R. § 51.166(b)(23), (m)(1)(i)).) But these criticisms simply identify the sorts of “‘specific facts that are necessary to 28 support the [complaint’s] claim’” of injury, Osborn v. Visa Inc., 797 F.3d 1057, 1063– 64 (D.C. Cir. 2015) (emphasis added) (quoting Defs. of Wildlife, 504 U.S. at 561), and at the motion-to-dismiss stage, the court must “‘presum[e] that [the plaintiff’s] general allegations embrace’” such facts. Id. (citation omitted). Consequently, Nucor’s failure to include in the complaint detailed allegations regarding the extent to which the planned permit modifications will actually and ultimately require PSD review does not undermine the plausibility of an inference that it has imminent construction plans that will require such review. As for the likelihood that Nucor’s future PSD permits will be subject to more stringent limitations as a result of Big River Steel’s emissions, Nucor has again alleged enough facts to move forward. In support of the complaint’s contention that Nucor’s future PSD permit applications will be meaningfully constrained by Big River Steel’s emissions (see Compl. ¶¶ 78, 80–81), the complaint alleges that Big River Steel’s new facility is located just 20 miles upwind of Nucor’s mills (see id. ¶¶ 10–11), is in the same air quality control region as Nucor’s mills (see id. ¶ 8), and will emit particulate matter that “will reach the Nucor mills” (id. ¶ 27) and will “impact the overall air quality in Mississippi County” (id. ¶ 28). Given these allegations (which the Court must accept as true), it is certainly plausible that Nucor’s future PSD permit applications will have to account for Big River Steel’s particulate matter emissions and that, as a result, Nucor will have to promise correspondingly lower new emissions in its future PSD permit applications. The EPA challenges Nucor’s allegations by pointing out that the operation of PSD-increment analysis described above means that “[t]here can be no injury to 29 Nucor’s ability to obtain permits without an actual overlap between the geographic areas affected by Nucor’s emissions and the emissions from the Big River facility—and Nucor has made no allegations regarding such an overlap.” (Mot. at 20 (emphasis added).) The agency adds that Nucor’s contentions about the geographical proximity between the facilities do not suffice to demonstrate actual overlap, because the “significant impact area” that would be used to determine restrictions on any future Nucor PSD permit is identified using complex air modeling that Nucor has not yet performed. (Id. at 21–22.) These arguments both overcomplicate the mechanics of the PSD-increment analysis and underestimate the importance of the litigation stage to a proper evaluation of a plaintiff’s injury assertions. As explained above, the “significant impact area” that Nucor will need to analyze in the context of any future PSD-permit application is a circular area that is centered on the relevant Nucor mill, see NSRWM at C.26, and Nucor’s analysis will need to account for “all increment-affecting sources located within 50 kilometers of the impact area[,]” id. at C.35. Nucor’s allegations support inferences both that the distance between its mills and Big River Steel’s mill is less than 50 kilometers (see Compl. ¶ 10), and that Big River Steel’s mill is “increment- affecting” (see Compl. ¶ 79). What is more, Nucor also specifically alleges that Big River Steel’s emissions “will reach the Nucor mills[.]” (Compl. ¶ 27.); see also Catawba Cty., 571 F.3d at 26 (“PM 2.5 can travel hundreds or thousands of miles.”) 14 14 In this regard, the EPA points out that Nucor’s mills are not accessible to the public, which, says the agency, means that Nucor’s mills are not considered part of the “significant impact area” in any PSD increment analysis per the applicable regulations. (Mot. at 22 (citing 40 C.F.R. § 50.1(e) (defining “ambient air” for the purpose of the PSD program as “that portion of the atmosphere, external to buildings, to which the general public has access”)).) This argument is too clever by half, because it ignores the fact that the complaint’s allegation that Big River Steel’s emissions “will reach the Nucor 30 Thus, it is entirely plausible that Big River Steel’s emissions will reach the “significant impact area” that Nucor will need to analyze for one of its future construction projects, such that Nucor’s future PSD permits will be made more restrictive in light of Big River Steel’s emissions. As a result, this Court concludes that Nucor has adequately alleged for the purpose of the motion-to-dismiss stage that it faces imminent PSD- increment injury. See Peacock, 682 F.3d at 83–84; see also Food & Water Watch, 808 F.3d at 912–13 (explaining the lower bar for demonstrating standing that is applicable at the pleading stage). 15 B. Nucor Has Adequately Alleged That Its Injury Is Fairly Traceable To The EPA’s Conduct And Would Likely Be Redressed By A Favorable Outcome In This Lawsuit Finally, although the EPA does not dispute the causation and redressability aspects of Nucor’s purported standing, this Court will evaluate those standing elements, because the Court has “an independent obligation to assure [itself] that jurisdiction is proper.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324 (2008). mills” (Compl. ¶ 27) gives rise to the logical inference that Big River Steel’s emissions will also reach the publicly accessible land adjacent to those mills that is within the “significant impact area.” 15 Because this Court concludes that Nucor has adequately alleged an imminent PSD-increment injury, it need not (and will not) address Nucor’s alternative argument that it is already suffering a PSD- increment injury by virtue of the changes to its construction plans that it must make now in anticipation of future PSD-permit applications. (See Opp’n at 36–37.) It is doubtful that an anticipatory, self- inflicted injury confers standing unless the plaintiff undertakes the injurious act in anticipation of a certainly impending, externally-inflicted injury that would confer standing in its own right. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013) (“[R]espondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”). This Court has already opined about the heart of the instant impending- injury matter by concluding that Nucor’s alleged future PSD-increment injury is imminent. Thus, this Court sees no need to evaluate whether the plan change that Nucor is allegedly making at present in anticipation of the imminent PSD-increment injury confers standing in-and-of-itself. 31  With respect to causation, there can be little doubt that Nucor’s PSD-increment injury is fairly traceable to the EPA’s failure to object to Big River Steel’s permit. That is, if the EPA had objected, ADEQ would have been forbidden from issuing a Title V permit to Big River Steel, and Big River Steel could not construct or operate its mill. See 42 U.S.C. § 7661d(b)(3). It is likewise clear that the EPA’s failure to object is connected to the alleged procedural failing that Nucor challenges in this lawsuit, which is the agency’s failure to respond to Nucor’s petition for an objection. See WildEarth Guardians, 738 F.3d at 306 (explaining that, to demonstrate causation in the procedural-injury context, “[a]ll that is necessary is to show that the procedural step was connected to the substantive result” (quoting Massachusetts, 549 U.S. at 518)). In other words, if the EPA had reviewed and responded to Nucor’s petition in a timely fashion, it would also have had to object to Big River Steel’s permit in the event that it determined that Nucor “demonstrate[d] . . . that the permit is not in compliance with the [CAA.]” 42 U.S.C. § 7661d(b)(2). Therefore, it is undoubtedly the case that the procedural omission is “connected to” the substantive government action that directly causes Nucor’s alleged injury. See WildEarth Guardians, 738 F.3d at 306. Nucor has likewise satisfied the relaxed standard for redressability that applies in cases raising procedural violations. Just as the landowner adjacent to a proposed dam does not need to demonstrate that requiring an agency to issue a statutorily required environmental impact statement will necessarily alter the substantive decision to build the dam, see Defs. of Wildlife, 504 U.S. at 572 n.7, Nucor need not demonstrate that requiring the EPA to respond to its petition will necessarily result in the EPA issuing an objection and blocking Big River Steel’s permit. In the procedural-injury context, it 32 suffices that the agency “might” do so, Lemon v. Green, 514 F.3d 1312, 1315 (D.C. Cir. 2008), and as just mentioned, that possibility exists here. Accordingly, in light of the legal standards that apply to the standing determination when a plaintiff challenges an agency’s alleged procedural violation, Nucor’s PSD-increment injury is fairly traceable to the challenged conduct by the EPA and would likely be redressed by the relief that Nucor seeks. IV. CONCLUSION Nucor has employed the CAA’s procedure for petitioning the EPA to object to a state-issued Title V permit, and has now filed a complaint in this Court that maintains that the agency has failed to grant or deny its petition within the required timeframe. Thus, the immediate subject of Nucor’s lawsuit is a mere procedural violation, but Nucor’s stake in the substantive outcome of this litigation is allegedly very real, because the Title V permit that is the subject of Nucor’s petition enables Big River Steel to operate a new steel mill just twenty miles away from Nucor’s two steel- manufacturing facilities. There is no dispute that all three plants are in the same county and in the same air quality control region, and Nucor alleges that it has pending construction plans at one of its preexisting mills that will require PSD review, and therefore will be meaningfully constrained by Big River Steel’s consumption of the applicable PSD increment for the region. For the reasons explained above, this Court concludes that, at this early stage of the litigation, Nucor has said enough to allege a concrete and particularized injury that is fairly traceable to the EPA’s failure to timely respond to Nucor’s petition, and that Nucor’s complaint contains sufficient facts to support a plausible claim that the injury Nucor faces (in the form of Big River Steel’s 33 consumption of the PSD-increment) is imminent and would likely be redressed by a favorable outcome. Accordingly, the allegations of Nucor’s complaint sufficiently support Nucor’s contention that it has standing to pursue the relief that it seeks in this lawsuit, which means that, as set forth in the accompanying order, the EPA’s motion to dismiss for lack of standing must be DENIED. DATE: March 31, 2017 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge 34 

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.  RENDERED: FEBRUARY 19, 2015 NOT TO BE PUBLISHED ,Suprrntr &int 7,firtifurku 2014-SC-000074-MR QUENTIN WILSON APPELLANT ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE CHARLES LOUIS CUNNINGHAM, JR., JUDGE NO. 11-CR-002547-01 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING On the evening of August 14, 2011, Appellant, Quentin L. Wilson, and William B. Smith III fired a barrage of gunshots into a crowd of people gathered at Shawnee Park in Louisville. Antonio Lamont Anderson died as a result and two others were seriously injured. Several vehicles were also damaged by the shooting. A bullet entered and lodged in the trunk of one nearby vehicle, narrowly missing Mr. Anderson's four-year-old daughter who was asleep in the backseat. Anderson's pregnant fiancée was also in the car. Louisville Metro Police Officer Chad Johnson was present during the shooting. Officer Johnson testified that after hearing gunshots, he witnessed Wilson standing with his arm outstretched, firing a handgun into the crowd. The officer also testified that he saw several other muzzle flashes near Wilson. Wilson, Smith, and another individual involved in the shooting fled the scene on foot and Officer Johnson followed. They were eventually apprehended and arrested. Police officers re-traced the path along which Wilson and his confederates fled and discovered four handguns, three of which were found together underneath a broken tree branch. A ballistics expert determined that several of the projectiles and casings recovered from the crime scene were fired from the recovered handguns. Wilson and Smith were indicted and jointly tried. The other individual involved in the shooting was a juvenile. A Jefferson Circuit Court jury convicted Wilson of complicity to murder, two counts of criminal attempt to commit murder, two counts of first-degree wanton endangerment, and one count of tampering with physical evidence. The jury also convicted Wilson of being a second-degree persistent felony offender ("PFO"). In addition to the 30 year sentence previously recommended for the murder conviction, the jury recommended an enhanced sentence of 20 years' imprisonment for each attempted murder conviction, seven years for each wanton endangerment count, and five years for the tampering conviction. The jury recommended that these sentences be served concurrently with each other with the exception of the 30-year sentence for murder, which was to be served consecutively with the other sentences. The total recommended sentence was 50 years' imprisonment. The trial court sentenced Wilson in accord with the jury's recommendation. Wilson now appeals his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution. Two issues are raised and addressed as follows.  Self-defense Instruction Wilson argues that the trial court committed reversible error by not instructing the jury on self-protection as an affirmative defense to murder. We recognize that "[o]ur case law regarding the proper standard of review when reviewing alleged errors in jury instructions is inconsistent." Goncalves v. Commonwealth, 404 S.W.3d 180, 193 n.6 (Ky. 2013). However, we find no error here under either an abuse of discretion or de novo standard. Wilson did not present a pre-trial immunity defense. KRS 503.085. He only takes issue with the trial court's denial of his request to instruct the jury under KRS 503.050. That statute provides in part as follows: (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person. (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055. "A defendant is entitled to have the jury instructed on the merits of any lawful defense . . . ." Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky. 1997) (citations omitted). "However, the entitlement to an affirmative instruction is dependent upon the introduction of some evidence justifying a reasonable inference of the existence of a defense." Id. (citations omitted). In the present case, Wilson contends that reasonable jurors could have concluded that he acted in self-defense based on the following evidence. 3  ( First, Officer Johnson testified that he heard two gunshots followed by a series of shots. Wilson argues that Officer Johnson did not observe him firing into the crowd until after this initial series of shots, thus indicating that another individual fired the first shots. Furthermore, one of the victims, Norman Bradley Wilson, testified that he heard two or three gunshots and saw seven men shooting guns. Lastly, a firearms examiner testified that at least six handguns had been fired at the scene, some of which were never recovered. According to Wilson, this demonstrates that one or more of the guns had been removed from the scene by the initial aggressor after Wilson returned fire. While only the first argument was presented to the trial court, none of these arguments are convincing. Wilson did not testify or present a self-defense theory during trial. Instead, defense counsel argued from the outset that Wilson was not one of the shooters in the park and that he did not have a gun. Wilson's multiple pre- trial statements to the police were also introduced as evidence. In one statement, Wilson admitted to being in the middle of the shooting and identified three shooters by name but repeatedly informed the interrogating officer that he did not have a gun. See Fitch v. Commonwealth, 103 S.W.2d 98, 102 (Ky. 1937) ("With rare exception it is the rule that where the defendant denies committing the homicide at all, he is not entitled to a self-defense instruction."); Butler v. Commonwealth, 516 S.W.2d 326, 328-29 (Ky. 1974). Also, Wilson stated that he met up with one of the shooters after the shooting and advised him to toss his gun. Considering the absence of evidence 4 supporting Wilson's proffered instruction, the trial court did not err in declining to instruct the jury on self-protection. Sentencing Wilson alleges several sentencing errors. First, he claims that the jury was not properly instructed on the law governing the case. Next, Wilson argues that the trial court erred by failing to instruct the jury that its sentence for murder could not be altered by the trial judge. Lastly, he maintains that the sentence imposed was arbitrary and unenforceable. Wilson requests palpable error review. Post-incarceration Supervision Pursuant to the "Truth in Sentencing" statute, the Commonwealth introduced testimony concerning sentencing ranges, parole eligibility and sentencing credits. KRS 532.055(2)(a)(4). The Commonwealth's witness did not inform the jury that KRS 532.400 imposes a one-year term of post- conviction supervision for persons convicted of a capital offense. However, KRS 532.055(2)(a) does not require that the Commonwealth do so; rather, it provides evidence that "may be offered by the Commonwealth . . . ." (Emphasis added). There was no error here. Also, to the extent that Wilson's argument is interpreted as a failure to instruct the jury on post-conviction supervision, appellate review is barred due to improper preservation. See RCr 9.54(2); Martin v. Commonwealth, 409 S.W.3d 340, 346-47 (Ky. 2013). 5 Judicial Modification and Arbitrariness of Wilson's Sentence Wilson further argues that it was error not to "advise" the jury that its sentence for murder could not be altered by the judge. He specifically contends that trial judges have no statutory authority to modify sentences in non- aggravated capital cases, therefore, resulting in an arbitrary sentencing scheme. Kentucky Const. § 2; U.S. Const. Amendment XIV. These issues are also unpreserved. Wilson fails to assert the appropriate manner in which the court should have "advised" the jury. If we interpret his argument as a failure to instruct the jury, our review of this issue is barred due to improper preservation. See RCr 9.54(2); Martin, 409 S.W.3d at 346-47. Interpreting Wilson's argument as an unpreserved constitutional challenge to Kentucky's statutory sentencing scheme also forecloses our review. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008); CR 24.03. Conclusion For the foregoing reasons, the judgment of the Jefferson Circuit Court is hereby affirmed. Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., sitting. All concur. COUNSEL FOR APPELLANT: Daniel T. Goyette James David Niehaus Office of the Louisville Metro Public Defender COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Dorislee J. Gilbert Special Assistant Attorney General 7 

187 F.2d 987 PILLSBURY, Deputy Commissionerv.UNITED ENGINEERING CO. et al. (two cases).PILLSBURY, Deputy Commissionerv.MATSON TERMINALS INC. et al.CYR, Deputy Commissionerv.UNITED ENGINEERING CO. et al. No. 12644. No. 12645. No. 12646. No. 12647. United States Court of Appeals Ninth Circuit. March 14, 1951. Frank J. Hennessy, U. S. Attorney, Macklin Fleming, R. H. Colvin, Asst. U. S. Attys., all of San Francisco, Cal. (Ward E. Boote, Asst. Solicitor, Herbert P. Miller, Atty., U. S. Dept. of Labor, Employees' Compensation Div., Washington, D. C., of counsel), for appellant. John H. Black, Edward R. Kay, San Francisco, Cal., for appellee. Before: HEALY, BONE, and ORR, Circuit Judges. HEALY, Circuit Judge. 1 Involved here are consolidated cases, four in number, arising under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. In each case the Deputy Commissioner found a partial disability growing out of injury suffered in the course of employment. In one instance (the Shallat case) the award was for permanent and in the others for temporary disability. On appropriate proceedings before the district court the awards were annulled on the ground that the claims were barred because not filed within one year after the injury as provided in § 13(a) of the Act, 92 F. Supp. 898. The Deputy Commissioner appeals. 2 In each case the claimant suffered a specific injury from accident on a particular date. No latent injury or occupational disease is involved. There were no voluntary payments of compensation. The claims were filed on dates ranging from 18 to 23 months after the injury. Omitting for the moment what we regard as irrelevant or argumentative matters, the Deputy Commissioner's findings were these: 3 No. 12,644. Claimant Johnson on May 12, 1947, struck his head on a crossbeam of a vessel while working as a welder, "sustaining extensive strain of the muscles of the neck which still continues painful." His employer continued him in lighter work in a partially disabled condition without reduction in wages until May 15, 1948. He lost no time from work as a result of the injury until about June 15, 1948. Throughout the period in question he was furnished by his employer with medical treatment. His claim for compensation was filed January 17, 1949. 4 No. 12,645. Claimant Curnutt, on the 18th of February, 1947, while performing services as a sheet-metal worker in ship repair operations sustained personal injury resulting in disability as follows: While lifting a heavy object, he wrenched his back. He was disabled from work for six days, after which he was continued in lighter work at full wages until his employment was terminated January 13, 1948. He did not lose wages in excess of seven days until February 5, 1948. His claim for compensation was filed January 17, 1949. Medical treatment was furnished him by the employer throughout the period. 5 No. 12,646. Claimant Shallat on November 21, 1947, while performing services as a longshoreman on a vessel sustained personal injury resulting in disability as follows: He caught his left hand between a sling and a bight, causing a contusion of the left hand, and exacerbation of a pre-existing progressive arthritis of the proximal joint of the second or middle finger. Apparently he lost no time because of the injury and continued at work. It does not appear from the findings whether he received medical treatment at the expense of his employer. His claim for compensation was filed May 23, 1949. 6 No. 12,647. Claimant Manos on December 22, 1947, while performing services as a welder in the repair of a ship, sustained personal injury resulting in disability when he was struck on top of the head by an iron bar falling from above, suffering strain of the musculature in the cervical region. Following the injury he continued at his regular occupation as a welder without loss of time or wages until January 31, 1949, at which time, because of the condition of his neck, he was forced to discontinue working as a welder and seek other and lighter employment. Throughout the employer furnished him with medical treatment. His claim for compensation was filed August 17, 1949. 7 The material portion of § 13(a) of the Act reads: "The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury, * * * except that if payment of compensation has been made without an award on account of such injury * * * a claim may be filed within one year after the date of the last payment. * * *" 8 The Commissioner argues that the word "injury" should be construed as meaning "compensable injury." This, he says, has been the practical administrative construction of the term for a long time. He says that the interpretation is "consistent" with § 19(a), providing that a claim for compensation "may be filed * * * at any time after the first seven days of disability", and with § 6(a) providing that "no compensation shall be allowed for the first seven days of the disability * * *." He adds that unless the interpretation meets with judicial approval his office will be flooded with a load of unnecessary claims. 9 We may observe in passing that the injured men appear to have suffered a disability of greater or less extent from the outset. Two of them, at least, as the Commissioner found, had to be put on lighter work, and all of them confessedly continued from the time of injury to suffer pain and discomfort from it. It is true they lost no time, or none in excess of seven days anyway, and were paid their old wage, but those facts alone do not spell absence of disability for which an award may be made. See Twin Harbor Stevedoring & Tug Co. v. Marshall, 9 Cir., 103 F.2d 513, where this court sustained an award under like circumstances, saying that wages received by a worker who has suffered an injury are not conclusive and that ability to earn is the test. 10 But we do not, as the trial court did, rest decision on the Twin Harbor holding. What the Commissioner's argument really amounts to is that the statute begins to run, not from the date of the injury, but from the date of disability. The view appears irreconcilable with the plain terms of the Act. The argument necessarily assumes that the terms "injury" and "disability" are interchangeable. However, as we pointed out in Kobilkin v. Pillsbury, 103 F.2d 667, 669, the terms are separately defined in the statute and are not synonymous. Section 2(2) states that when used in the Act "the term `injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, * * *." In the same section (subdivision 10) "disability" is defined as meaning "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 11 In the Kobilkin case, supra, the claimant was disabled from work for a period of three weeks following his injury, for the allowable portion of which time compensation was voluntarily paid him. He then resumed his employment at the former wage and continued to work for 17 months, when his condition worsened and it was learned that his injury was more extensive than had originally been thought. Later he filed a claim. Deputy Commissioner Pillsbury disallowed it because not filed within one year from the last payment of compensation as provided in § 13(a). We upheld the ruling and the Supreme Court affirmed without opinion, 309 U.S. 619, 60 S.Ct. 465, 84 L.Ed. 983.1 Answering an argument somewhat analogous to the one made here, we said that the injury "was inflicted at the time of the accident, not when its full extent was first noted at the later time." [103 F.2d 670.] 12 The Commissioner endeavors to distinguish the holding on the ground that Kobilkin was off work for more than seven days in consequence of the injury and was appropriately paid compensation. If the distinction were accepted as of controlling significance a startling result would ensue, as will be seen from the following illustration: Worker A is disabled from work for eight days following his injury, and is accordingly paid compensation for the eighth day. If he fails to file a claim within a year after the payment he is forever barred. Worker B is disabled from work for but six days or less after injury, and in line with § 6(a), supra, is paid no compensation. According to the argument there is no time limit within which B may file a claim. 13 As the language of § 13(a) evidences, Congress was not unaware that there would be many cases like B's and it deliberately provided that the right to compensation in such cases would become barred unless claim therefor is filed within one year after the injury. If it is thought desirable in the interest of justice or practical administration that a different limitation be prescribed, the power to effect the change resides in Congress, not in the courts. 14 The decrees of the district court in the several cases are affirmed. Notes: 1 The Kobilkin case, unlike the present, may be thought to have involved a latent or undiscovered injury. It is arguable that in such cases the injury should be treated as arising when its true nature is discovered. Possibly this circumstance accounts for the four to four division among the justices when the case was disposed of in the Supreme Court

104 B.R. 799 (1989) In re Harvey KOMET & Eleanor B. Komet, Debtors. Bankruptcy No. 88-50379-C. United States Bankruptcy Court, W.D. Texas, San Antonio Division. July 5, 1989. *800 Claiborne B. Gregory, Jr., Gresham, Davis, Worthy & Moore, San Antonio, Tex., for debtors. Ruth Lown, Wolff & Wolff, San Antonio, Tex., for First City Nat. Bank of San Antonio. Gloria Scott, Martin & Drought, Inc., San Antonio, Tex., for San Antonio Sav. Ass'n. James H. Barrow, Kaufman, Becker, Clare & Padgett, Inc., San Antonio, Tex., for Texas Commerce Bank — San Antonio. Richard H. Weinstein, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, Tex., Employee Benefits Committee, Section of Taxation State Bar of Texas. DECISION AND ORDER LEIF M. CLARK, Bankruptcy Judge. This court previously heard the objections of First City Bank-Central Park, N.A., First City Bank-Forum, N.A., San Antonio Savings Association and Texas Commerce Bank-San Antonio ("creditors") to the exemptions claimed by Harvey Komet and Eleanor B. Komet ("debtor") in a pension plan and a profit sharing plan, pursuant to Bankruptcy Code Section 522(b)(2)(A) and the recently enacted Texas exemption statute for retirement plans, Section 42.0021 of the Texas Property Code. Tex.Prop.Code, § 42.0021 (West pamphl. ed. 1988). In light of the U.S. Supreme Court's decision in Mackey v. Lanier Collections Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (hereinafter Mackey), this court held that the Texas exemption statute was unavailable as it was preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"). In re Komet, 93 B.R. 498 (Bankr.W.D.Tex. 1988); see 29 U.S.C. § 1144(a). The debtors moved to reconsider, to further argue the preemption issue. This court granted the debtors' motion, heard extensive oral argument, and considered the briefs submitted not only by the parties to this case but also from the amicus curae, the Employee Benefit Committee, Section of Taxation for the State Bar of Texas. After careful reconsideration of this court's previous ruling, and with the benefit of decisions since rendered by other bankruptcy courts in Texas on the same or similar issue, I reaffirm my decision that the Texas exemption statute for retirement plans is indeed at least partially preempted by ERISA, and certainly preempted in this case. See In re Dyke, 99 B.R. 343, 19 BCD 105 (Bankr.S.D.Tex.1989); In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989); In re Laxson, 102 B.R. 85 (Bankr.N.D.Tex.1989). However, this court vacates its order sustaining creditors' objections to the claimed exemptions. The court will allow the debtors to retain their plans pursuant to Code Section 522(b)(2)(A), finding these plans are exempt by virtue of the anti-alienation provisions of ERISA. ERISA § 206(d)(1), codified at 29 U.S.C. § 1056(d); see also 26 U.S.C. § 401(a)(13). LEGAL ANALYSIS I. Texas' Exemption for ERISA tax-qualified retirement plans is pre-empted by operation of Section 514(a) of ERISA. Following Mackey, this court previously found that Texas' exemption statute for ERISA tax-qualified employee pension benefit plans "relates to" ERISA and is thereby preempted. In re Komet, 93 B.R. 498 (Bankr.W.D.Tex.1988), reh'ng. granted; see Tex.Prop.Code, § 42.0021 (West pamphl. ed. 1988). I reaffirm that decision here, for the following reasons. First, the precise language of Mackey itself compels that conclusion. Second, the expansive scope of ERISA supports Mackey's equally expansive application of Section 514(a) of ERISA. Finally, even under a more limited reading of the scope of pre-emption, such as that suggested in Fort Halifax (cited and discussed infra), Texas' statute impermissibly encroaches upon the due administration of ERISA plans, compelling a finding of pre-emption. *801 A. The binding precedent of Mackey compels a finding that Texas' exemption statute for ERISA-qualified plans is pre-empted under ERISA Section 514(a). The Supreme Court in Mackey observed that the Georgia anti-garnishment provision there under review expressly refers to — indeed, solely applies to — ERISA employee benefit plans . . . "A law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." . . . we have reaffirmed this rule, concluding that state laws which make "reference to" ERISA plans are laws that "relate to" those plans within the meaning of Section 514(a)..... Mackey, 486 U.S. at ___, 108 S.Ct. at 2185, 100 L.Ed.2d at 843.[1] Under the expansive reading given to Section 514(a) by Mackey, it is nearly impossible for a state statute such as Section 42.0021 of the Texas Property Code to survive pre-emption. In re Dyke, 99 B.R. 343, 348, 19 BCD 105, 109 (Bankr.S.D.Tex.1989) (Mahoney, B.J.); In re Laxson, 102 B.R. 85 (Bankr.N.D.Tex. 1989) (McGuire, B.J.); contra In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989) (Kelly, B.J.). In Dyke, Bankruptcy Judge Margaret Mahoney pointed out that [g]iven the Supreme Court's interpretation of the phrase "relate to," [in Shaw v. Delta Air Lines, 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1985)] the court in Mackey expended little analysis in determining that Georgia's anti-garnishment statute was pre-empted by ERISA. The statute's express reference to ERISA plans as well as the "different treatment" accorded to non-ERISA plans under the statute established the factual predicate for the court's conclusion. Logically absent from the Court's analysis was any discussion of whether the Georgia statute was "in conflict with" ERISA's substantive provisions. The Court in Shaw had already rejected the narrow interpretation of the phrase "relate to" as only embracing those state laws that directly clash with ERISA's substantive provisions. In re Dyke, supra, 99 B.R. at 348, 19 BCD at 109 (citations omitted). I concur in Judge Mahoney's evaluation of Mackey and its impact on Texas' exemption law for private retirement plans governed by ERISA.[2] It is simply not possible to evade the clear mandate that a law which "makes reference to" an ERISA plan faces pre-emption under Section 514(a). See 120 Cong.Rec. H29197 (1974) (remarks of Rep. Dent) (pre-emption principle is intended to be applied in its broadest sense to foreclose any non-Federal regulation of employee benefit plans); see also Cefalu v. B.F. Goodrich Co., 871 F.2d 1290 (5th Cir. 1989) (state laws beyond the scope of ERISA pre-emption are few). The Texas statute, by incorporating ERISA,[3] seeks to insulate ERISA pension benefits from the reach of creditors, an area already regulated by ERISA. ERISA § 206(d), codified at 29 U.S.C. § 1056(d); 26 U.S.C. § 401(a)(13)(B); 26 CFR § 1.401(a)-13(b)(1); see Commercial Mortgage Ins. Inc. v. Citizens National Bank of Dallas, 526 *802 F.Supp. 510 (N.D.Tex.1981). "[A]ny state law which singles out ERISA plans, by express reference, for special treatment is pre-empted." Mackey, 486 U.S. at ___, n. 12, 108 S.Ct. at 2189 n. 12, 100 L.Ed.2d at 849 n. 12; See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 1552-1553, 95 L.Ed.2d 39, 107 S.Ct. 1549 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1985). Even though this reference is entirely salutary and consistent with the purposes of ERISA, it is nonetheless a reference sufficient to bring Texas' statute within the ambit of Mackey's holding. "The pre-emption provision . . . displace[s] all state laws that fall within its sphere, even including state laws that are consistent with ERISA's substantive requirement." Mackey, 486 U.S. at ___, 108 S.Ct. at 2185, 100 L.Ed.2d at 844, citing Metropolitan Life Ins. Co. v. Massachusetts, supra, 471 U.S. at 739, 105 S.Ct. at 2388. I also reject the contention that Texas' statute is "too tenuous, remote, or peripheral" to trigger pre-emption under Section 514(a) of ERISA. In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490, 501 n. 21 (1985). The Fifth Circuit pointed out that one appropriate predicate for the application of this exception to the broad reach of Section 514(a) is that the state law in question be one of "general application." Sommers Drug Stores v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1467 (5th Cir. 1986). Judge Mahoney, examining the Texas exemption statute, correctly observed that Section 42.0021 is clearly not a state law of general application. Instead, Section 42.0021 is a state law of specific application designed to regulate in part ERISA plan benefits. It specifically exempts qualified benefit plans from creditor attachment. This is not a state law which exempts many types of property and only indirectly affects qualified benefit plans. In re Dyke, 99 B.R. at 350, 19 BCD at 110. A state statute which by its terms explicitly enters into a field expressly regulated by a provision of ERISA (here, Section 206(d) of ERISA) is simply not a statute which "may affect employee benefit plans in too tenuous, remote or peripheral a manner . . ." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490, 503 n. 21 (1985).[4] B. The holding in Mackey is consistent with congressional intent with regard to ERISA. When Congress enacted ERISA in 1974, it intended to thoroughly occupy the field of private employee benefit plans, to the exclusion of all state laws and regulations. See H.R.Conf.Rep. No. 1280, 93rd Cong., 2d Sess. 383 (1974); D. Gregory, "The Scope of ERISA Preemption of State Law: A Study in Effective Federalism," 48 Pitt LR 427, 449-457 (1987); ERISA § 514(a), codified at 29 U.S.C. § 1144(a). ERISA, by definition, governs Any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a *803 result of surrounding circumstances such plan, fund, or program — (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. ERISA § 3, codified at 29 U.S.C. § 1002(2)(A). Any plan falling within this broad definition is involuntarily subject to ERISA's regulation. As a result, there are very few private employee pension benefit plans which are not governed by ERISA. See Gavalik v. Continental Can Co., 812 F.2d 834, 851 (3rd Cir.), cert. denied 484 U.S. 979, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987); Ferrante v. International Salt Co., 687 F.Supp. 309 (E.D.Mich.1988). In a very real sense, Congress has "federalized" the field of private employee pension plans, to nurture their creation and to assure their fairness, in the national interest. ERISA § 2, codified at 29 U.S.C. § 1001(a); Gregory, supra at 446. ERISA is primarily and originally a labor statute, whose principal intended beneficiaries are not the employers who may enjoy tax benefits from setting up such plans but employees and their dependents. 29 U.S.C. § 1001; Gregory, supra at 443-48. In furtherance of the larger goal of assuring the preservation of benefits so that they will be available at retirement, Part I of ERISA requires that all private employee pension benefit plans contain an anti-alienation provision. "Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated." ERISA § 206(d)(1), codified at 29 U.S.C. § 1056(d)(1); see also 26 U.S.C. § 401(a)(13); 26 CFR § 1-401(a)(13)-(b)(1) (1982).[5] The Secretary of Labor is given specific authority to enforce this regulation with both civil and criminal sanctions. 29 U.S.C. §§ 1131, 1132(a)(5).[6] A substantial portion of the enforcement of ERISA (including the enforcement of the requirement that private employee pension benefit plans contain anti-alienation language) has been entrusted to the Secretary of the Treasury. Section 101(a), 1978 Reorganization Plan No. 4, reprinted at 29 U.S.C. § 1001, Note: Ancillary Laws and Directives (1982); see also 29 U.S.C. § 1202(c); 26 CFR § 1.401(a)-13(b)(1) (1982).[7] However, if the Commissioner of Internal Revenue determines to disqualify a plan, the Secretary of Labor is afforded 60 days within which to act to compel compliance with ERISA's requirements, via Section 502 of ERISA (29 U.S.C. § 1132). 29 U.S.C. § 1202(a). The tax provisions thus assist the Secretary of Labor in enforcing the provisions of *804 ERISA. It is not ultimately a tax purpose which is being served by withholding tax benefits from non-qualifying plans, however. It is a labor purpose. The tax benefit is the carrot. The civil and criminal enforcement mechanisms are the stick. See 29 U.S.C. § 1001. See 60A Am.Jur.2d, Pensions and Retirement Funds, §§ 456, 479 (1988). Thus, as a matter of both federal policy and federal law, private employee pension plans must contain the prophylactic language dictated by Section 206(d) of ERISA regardless whether it is tax-qualified. Any plan which, by definition, falls within the ambit of ERISA, is also by federal law insulated from the reach of its beneficiaries' creditors. General Motors Corp. v. Buha, 623 F.2d 455, 461-63 (6th Cir.1980); United Metal Products Corp. v. National Bank of Detroit, 811 F.2d 297 (6th Cir.1987); In re Graham, 726 F.2d 1268, 1273 (8th Cir.1984); Commercial Mortgage, supra; see discussion infra at Part II.A. Because ERISA already regulates the protection of ERISA benefits as part of its overall regulatory scheme, further efforts by states to regulate in this thoroughly federal field must of necessity fail. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985) (purpose of Congress is the ultimate touchstone); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981) (pension plan regulation exclusively a federal concern). C. Texas' exemption statute for ERISA pension benefit plans impermissibly interferes with the administration of plans and the enforcement of ERISA's provisions with respect to such plans. Section 42.0021, albeit inadvertently, also raises the prospect of conflicting or inconsistent state regulation, compelling preemption in the face of ERISA's already comprehensive regulatory scheme. See Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 10-11, 107 S.Ct. 2211, 2216-17, 96 L.Ed.2d 1, 10-11 (1987) ("Pre-emption ensures that the administrative practices of a benefit plan will be governed by only a single set of regulations");[8]see also 120 Cong.Rec. H29197 (1974) (remarks of Rep. Dent). For example, as a state exemption law, Section 42.0021 purports to shelter, under state law, ERISA plan benefits from state-law attachment, execution, or seizure for the satisfaction of any debt. See Tex. Prop.Code, § 42.001(a). The federal antialienation provision, on the other hand, permits alienation of benefits to satisfy "qualified domestic relations orders" and directs plan trustees to honor such orders, in the interest of furthering ERISA's overall purpose of protecting the benefits of an employee and his/her dependents. ERISA § 206(d)(3), codified at 29 U.S.C. § 1056(d)(3); 26 U.S.C. § 401(a)(13)(B) (1984)). The inconsistency threatens to impose litigation burdens on plan trustees who may be forced to intervene in state collection actions to avert contradictory directives from state and federal tribunals. Because the Texas statute relies on ERISA for definition of what benefits are protected from creditor collection remedies in this state, ERISA qualification is an element to be established by the debtor claiming the state exemption — or to be attacked by the creditor challenging the claim. The prospect of a state court litigation over plan qualification impermissibly encroaches upon the federal statutory scheme. Under federal law, creditors have no standing to *805 challenge a plan's qualification. Only plan beneficiaries, the employer, the trustee, the Commissioner of the Internal Revenue, and the Pension Benefit Guaranty Board have standing to challenge the tax qualification of a plan. 26 U.S.C. § 7476(b). Furthermore, the proceeding to contest tax qualification must be instituted in U.S. Tax Court, and then only after having exhausted the administrative remedies set out in the Treasury Regulations. Id. Texas' law of necessity confers both standing and jurisdiction to litigate these issues in state court, in violation of this exclusive federal scheme.[9] The spectre of a challenge to a plan's qualification will of necessity compel the prudent plan trustee to intervene in any such action, for if the plan is disqualified, the trustee will likely face angry lawsuits from other plan beneficiaries whose plan benefits will be placed in jeopardy as a result.[10] Trustees should not have to fear potential liability from this quarter, nor should they have to incur the attendant legal expenses which would be associated with protecting plans from collateral attack as a result of the operation of this statute.[11] Even under the narrower standard for pre-emption set out in Fort Halifax, Texas' statute thus falls to Section 514(a) of ERISA. For all these reasons, this court joins In re Dyke and reaffirms its original decision that Texas' Section 42.0021 runs afoul of ERISA and so is unavailable to shelter these plans from the reach of creditors in this bankruptcy proceeding. However, I narrow that holding to apply only to the first sentence of Section 42.0021, and then only to the extent that the statute invokes state law protection for ERISA-qualified plans already protected by Section 206(d).[12] II. ERISA-qualified plans are available for exemption under Section 522(b)(2)(A) as exempt under "other federal law". The debtor and the amicus curae both argued, inter alia, that plans subject to ERISA's regulation and which, in compliance therewith, contain the anti-alienation language mandated by ERISA § 206(d)(1) of ERISA, should qualify for exemption under the "other federal law" rubric of Section 522(b)(2)(A) of the Bankruptcy Code. Upon careful review of the ERISA provision, its genesis, and its interpretation, I am inclined to agree. I reach this conclusion in spite of the strong dicta to the contrary in In re Goff, 706 F.2d 574 (5th Cir.1983). I first explain how I reach the conclusion that ERISA § 206(d)(1) creates an exemption cognizable under Section *806 522(b)(2)(A) of the Bankruptcy Code. I then turn to why I depart from Goff's "strong dicta." A. ERISA § 206(d)(1) creates an "exemption" under non-bankruptcy law. An exemption may be defined as a right given by law to allow a debtor to retain a portion of their personal property free from seizure and sale by their creditors under judicial process. Clark v. Nirenbaum, 8 F.2d 451, 452 (5th Cir.1925) cert. denied 270 U.S. 649, 46 S.Ct. 349, 70 L.Ed. 780 (1926); Pickens v. Pickens, 125 Tex. 410, 83 S.W.2d 951, 954 (1935). Its grant or withdrawal is totally dependent on the will of the state, and is normally enacted on grounds of public policy for a humane or generous purpose. See generally 31 Am. Jur.2d, Exemptions § 1 at p. 329 (1967); Black's Law Dictionary ("privilege allowed by law to a judgment debtor, by which he may hold property to a certain amount or certain classes of property, free from all liability to levy and sale on execution or attachment").[13] By virtue of ERISA § 514(a) (the preemption provision), ERISA § 206(d)(1) (the provision which compels private employee pension plans to incorporate language insulating their benefits from involuntary attachment), has been held by most courts to override the operation of state law collection statutes. General Motors Corp. v. Buha, 623 F.2d 455, 461-63 (6th Cir.1980); Commercial Mortgage Ins. Inc. v. Citizens National Bank of Dallas, 526 F.Supp. 510, 518-519 (N.D.Tex.1981); see also United Metal Products Corp. v. National Bank of Detroit, 811 F.2d 297 (6th Cir.1987); In re Graham, 726 F.2d 1268, 1273 (8th Cir. 1984);[14]Vink v. SHV North America Holding Corp., 549 F.Supp. 268 (S.D.N.Y. 1982); Northwest Airlines, Inc. v. Roemer, 603 F.Supp. 7 (D.Minn.1984); Crausman v. Curtis-Wright Corp., 676 F.Supp. 1302 (D.N.J.1988); Cody v. Riecker, 454 F.Supp. 22 (E.D.N.Y.1978), aff'd 594 F.2d 314 (2d Cir.1979); Ball v. Revised Retirement Plan, 522 F.Supp. 718 (D.Colo.1981); see also Citizens Bank of Ashburn v. Shingler, 173 Ga.App. 511, 326 S.E.2d 861 (1985); Christ Hospital v. Greenwald, 82 Ill.App.3d 1024, 38 Ill.Dec. 469, 403 N.E.2d 700 (1980); Biles v. Biles, 163 N.J.Super. 49, 394 A.2d 153 (1978); Ward v. Ward, 164 N.J.Super. 354, 396 A.2d 365 (1978); Helmsley-Spear, Inc. v. Winter, 74 App. Div.2d 195, 426 N.Y.S.2d 778 (1980), aff'd 52 N.Y.2d 984, 438 N.Y.S.2d 79, 419 N.E.2d 1078 (1981); but see St. Paul Fire & Marine Ins. Co. v. Cox, 752 F.2d 550 (11th Cir.1985); Guidry v. Nat. Sheet Metal Workers' Nat. Pension Fund, 641 F.Supp. 360 (D.Colo.1986); National Bank of North America v. International Brotherhood of Electrical Workers, Local No. 3, 69 App.Div.2d 679, 419 N.Y.S.2d 127, appeal dism'd, 48 N.Y.2d 752, 422 N.Y.S.2d 666, 397 N.E.2d 1333 (1979); Cogollos v. Cogollos, 93 Misc.2d 406, 402 N.Y.S.2d 929 (1978).[15] A body of federal common law has thus developed around ERISA, clarifying that ERISA § 206(d) effectively operates *807 as an exemption for covered plan benefits. Most recently, the Supreme Court in Mackey observed that Congress adopted ERISA § 206(d)(1) precisely because otherwise "ERISA plan benefits could be attached and/or garnished." Mackey, 486 U.S. at ___, 108 S.Ct. at 2189, 100 L.Ed.2d at 849. Added the Court: Where Congress intended ERISA to preclude a particular method of state-law enforcement of judgments, or extend anti-alienation protection to a particular type of ERISA plan, it did so expressly in the statute. Specifically, ERISA § 206(d)(1) bars the alienation or assignment of benefits provided for by ERISA pension benefit plans. . . . by adopting § 206(d)(1), Congress demonstrated that it could, where it wished to, stay the operation of state law as it affects only benefits and not plans. . . . when Congress was adopting ERISA, it had before it a provision to bar the alienation or garnishment of ERISA plan benefits, and chose to impose that limitation only with respect to ERISA pension benefit plans. Id. 486 U.S. at ___, ___, 108 S.Ct. at 2188, 2189, 100 L.Ed.2d at 848, 849 (emphasis added and in original). The Mackey Court does not shrink from characterizing ERISA § 206(d) as, functionally, a federal exemption.[16] Of particular importance to us in this jurisdiction is that the Northern District of Texas expressly held that the anti-alienation provision of ERISA pre-empted this state's garnishment laws as applied to qualified plans. Commercial Mortgage Ins. Inc. v. Citizens Nat. Bank, 526 F.Supp. 510, 518-20 (N.D.Tex.1981); see Calhoun v. FDIC, 653 F.Supp. 1288 (N.D. Tex.1987) (only Section 1144(d) prevents ERISA from protecting benefits from the reach of the FDIC's garnishment pursuant to federal statute); see also Citizens Bank of Ashburn v. Shingler, 173 Ga.App. 511, 326 S.E.2d 861 (1985) (ERISA protects plan benefits from creditors in a nonbankruptcy context). Commercial Mortgage was before the Fifth Circuit in Goff and, though discussed, was not overruled. The Commercial Mortgage court correctly recognized that ERISA § 206(d)(1) successfully insulated qualified plans from state law garnishment.[17] This protection amounts to an exemption under nonbankruptcy law. It is critical to understand that it is not states' spend-thrift trust laws which ultimately shelter ERISA-regulated plan benefits from execution or levy, though many such plans may also enjoy protection under those laws. Compare In re Ewald, 73 B.R. 792 (Bankr.W.D.Tex.1987) with In re Connally, 94 B.R. 908, 18 BCD 1129 (Bankr.W.D.Tex.1989); Tex.Prop.Code § 112.035(b). Congress could not have achieved the national uniformity which motivated ERISA's broad pre-emption of state law if the efficacy of anti-alienation turned on the vagaries of state spendthrift trust law. See HR Rep No 1785, 94th Cong, 2nd Sess 47 (1977) ("the Federal interest and the need for national uniformity are so great that enforcement of state regulation should be precluded"); Menzel, "Corporate Pension Plans as Part of the Bankruptcy Estate," 69 Minn.L.R. 1113, 1118 (1985).[18] *808 Instead, it is the fact that the anti-alienation language is mandated by the federal regulation of private employee pension benefit plans that renders those plans exempt from state law creditor remedies. Commercial Mortgage Ins. Inc. v. Citizens Nat. Bank, 526 F.Supp. 510, 518-19 (N.D. Tex.1981); Mackey, supra, 486 U.S. at ___ -___, 108 S.Ct. at 2189, 100 L.Ed.2d at 848-49; see 29 U.S.C. §§ 1131, 1132 (powers of civil and criminal enforcement resides in Secretary of Labor); see also discussion supra at Part I.B. What is more, the Treasury Regulations strongly support such an interpretation. ERISA plans which comply with Section 401(a)(13) of Title 26 (the Internal Revenue Code enactment of ERISA § 206(d)(1)) are immune from creditor attachment without further resort to whether the plans also qualify for protection under state spendthrift trust law. See 26 CFR § 1.401(a)-13(b)(1) (1982).[19]Commercial Mortgage, supra at 520 (N.D.Tex.1981). Section 206(d)(1) has been held by numerous federal courts to insulate retirement benefits from liability to state law levy or attachment, and thus functions as a privilege created by law sheltering certain property from creditor attachment — in short, an exemption created by federal law. Section 206(d) thus creates a federal exemption properly cognizable in bankruptcy, under the "other federal law" rubric of Section 522(b)(2)(A).[20] The principal impediment to such a holding, however, is the "strong dicta" in Goff to the contrary. In re Goff, 706 F.2d 574 (5th Cir.1983).[21] B. Goff's conclusion that ERISA plans are not eligible for exemption under the "other federal law" rubric of Section 522(b)(2)(A) is incorrect. Goff concludes that ERISA plans do not qualify for exemption under 522(b)(2)(A) by assuming that "the contingent nature of ERISA's restraints on alienation differs markedly from the absolute prohibitions contained in the listed statutes [in the legislative history]." Id. at 585. The court adds that the antialienation requirement is not an exemption from creditors' process provided by federal law. . . . ERISA's anti-assignment and alienation provisions are different in kind from those contained in the statutes listed in the Code's legislative history . . . ERISA merely provides that as a condition of obtaining qualified status — with its attendant tax and other benefits — a pension plan must preclude alienation or assignment of its benefits. It does not prohibit pension funds from permitting alienation or assignment; rather, while it encourages and favors qualified plans, it envisions that "disqualified" plans may be formed which are still subject to *809 ERISA's regulatory scheme but which do not restrict alienation or assignment. Id. at 583 and 585. I cannot agree with this analysis, for a number of reasons. First, I believe Goff is simply mistaken in its contention that the only function of the anti-alienation language is to qualify plans for favorable tax treatment. Second, I believe Goff misunderstands the structure and purpose of the Bankruptcy Code and has found a "congressional policy" antithetical to the retention of retirement benefits where precisely the opposite policy is indicated. Thirdly, I disagree with Goff's treating the legislative history to Section 522(b)(2)(A) as though that history had in fact been enacted. Finally, I believe Goff's presumption that the Bankruptcy Code has, in effect, implicitly repealed ERISA's anti-alienation provisions does not square with the rules of statutory construction that regulate such a finding. 1. Anti-alienation — it's not just for tax qualification Although the presence of anti-alienation language in retirement plans is indeed a condition for their tax-qualification, ERISA § 206(d)(1) requires the language to be included in any plan which fits the definition of "employee pension benefit plan" found in 11 U.S.C. § 1001, regardless of whether it seeks tax qualification. 29 U.S.C. § 1056(d). The Employee Benefit Committee of the State Bar of Texas correctly notes in its brief that ERISA Section 501 [29 USC § 1131] imposes criminal liability for any person who willfully violates Part 1 of ERISA (where ERISA Section 206(d)(1) is found); and ERISA Section 502 [29 USC § 1132(a)] imposes civil liability. It is true that it is possible for tax purposes to have pension plans that are not "qualified" plans in the sense of the loss of certain tax benefits that are available to "qualified plans"; but if the nonqualified pension plan is subject to ERISA, it must contain all provisions mandated by ERISA. It is hard to imagine a circumstance where an employer would willfully expose itself to the criminal sanctions imposed by ERISA by refusing to insert the antialienation/anti-assignment language mandated by ERISA Section 206(d)(1). Amicus Brief, Employee Benefit Committee, pages 4-5; see discussion supra at Part I.B.; but see In re Dyke, 99 B.R. 343, 347, 19 BCD 105, 108 (Bankr.S.D.Tex.1989). More is at stake than mere loss of tax benefits, for ERISA is first of all a labor statute which seeks to regulate nearly all private employee pension benefit plans, whether they want to be regulated or not. ERISA is an involuntarily statute. See 29 U.S.C. § 1002(2)(A). Part I of ERISA's regulatory scheme in turn requires anti-alienation language to be included in all such plans, and subjects employers and plan administrators to civil or criminal penalties for failure to comply with any of the requirements of Part I of ERISA. 29 U.S.C. §§ 1131, 1132(a)(5). See note 6 supra, and discussion at Part I.B. Goff is incorrect, therefore, when it states that the anti-alienation language required by ERISA § 206(d)(1) serves only a tax purpose. Certainly the tax provisions are the "carrot" which induces voluntary compliance with ERISA's labor regulations. The threat of loss of tax benefits is an effective means to enforce the equitable requirements imposed by Part I of ERISA. But it is just that — the means, not the end. 2. The structure of the Bankruptcy Code indicates a strong congressional policy favoring a debtor's fresh start and honoring existing exemption schemes. The Fifth Circuit contends in Goff that the Bankruptcy Code was, generally, intended to broaden the "property of the estate" available to creditors in bankruptcy and, specifically, intended to limit any exemption of pension funds. These policies based upon provisions of the Code would be frustrated were ERISA's antialienation and assignment provisions applied with a sweeping brush. In re Goff, 706 F.2d at 587 (emphasis added). The structure and development of the applicable provisions of the Bankruptcy Code belie this conclusion. Goff has improperly *810 elided the two concepts "property of the estate" and "exemptions," assuming that an intention to bring as much property as possible into the estate must also be mirrored by an intention to limit the exempt property which can be removed from the estate. Actually, Sections 541 and 522 serve two very discrete purposes which can and do co-exist very comfortably without conflict. To see this more clearly, one need only revisit how the two provisions came about. a. Property of the estate — the reasons for the changes wrought by Section 541. In 1978, Congress undertook a comprehensive revision of the bankruptcy laws. Under the Bankruptcy Act of 1898, the concept of property of the estate was largely governed by melange of references to state law principles, leading to unevenness, delay, confusion and forum-shopping. See Report of the Commission on the Bankruptcy Laws of the United States, HR Doc. 137, 93rd Cong., 1st Sess. 16-17 (1973); § 70, Bankruptcy Act of 1898, codified at 11 U.S.C. (repealed) § 110(a) (1976). Property of the estate under the Act did not include exempt property. Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 514, 15 L.Ed.2d 428 (1966); Lines v. Frederick, 400 U.S. 18, 19-20, 91 S.Ct. 113, 113-114, 27 L.Ed.2d 124 (1970). In Section 541 of the Bankruptcy Code, Congress departed from the Act's formalistic, uneven approach and instead gave the broadest possible sweep to the definition of what property would be governed by the bankruptcy process. The purpose of this new approach was to empower the newly-created bankruptcy courts with the broadest possible jurisdictional grant, contributing to prompt and complete adjudication of rights within a single forum, with a minimum of delay and uncertainty occasioned by questions of jurisdiction and state property law questions. HR Rep. No. 595, 95th Cong., 1st Sess. 176, 368 (1977) U.S.Code Cong. & Admin.News 1978, pp. 5787, 6136, 6323; First National Bank of Louisville v. Hurricane Elkhorn Coal Corp. II (In re Hurricane Elkhorn Coal Corp. II), 19 B.R. 609, 8 BCD 1243, 1246 (Bankr.W.D. Ky.1982), aff'd 32 B.R. 737 (W.D.Ky.1983), aff'd 763 F.2d 188 (6th Cir.1985) (significant change made by Code has reduced reliance on state law in determining what is estate property); Firestone v. Metropolitan Life Ins. Co. (In re Di Piazza), 29 B.R. 916, 918 (Bankr.N.D.Ill.1983). Congress also expressly divorced the exemption issue from the "property of the estate" question, a clear departure from the practice under the Bankruptcy Act. See HR Rep. No. 595, 95th Cong., 1st Sess. 368 (1977) (Section 541 has the effect of overruling Lines v. Frederick). Thus, exempt property would, under the new Code, be subject to administration by the estate (and by the bankruptcy court). Joelson v. Tiffin Sav. Bank (In re Everhart), 11 B.R. 770, 774 (Bankr.N.D. Ohio 1981). The raison d'etre for this rewrite was not, as Goff supposed, to enlarge the pool of assets available for creditors, nor was there any particular intention to restrict what debtors could keep. The Code leaves that latter issue for resolution in Section 522, the exemption statute. All that Congress intended to achieve in Section 541 was (1) national uniformity and (2) broad jurisdiction (consistent with the expanded powers conferred on the bankruptcy court by the new Code). By departing from a scheme which had so heavily relied on state law to define estate property, Congress did not intend in the process to amend prior law which excluded from the estate legitimate spendthrift trust benefits. With the Code's more expansive definition of estate property, Congress had to add a provision affirming that the Code would continue to honor state spendthrift trust law, as had the Bankruptcy Act.[22] HR Rep. No. 595, 95th *811 Cong., 1st Sess. 369 (1977); 11 U.S.C. § 541(c)(2) (restrictions on the transfer of a beneficial interest of the debtor in a trust enforceable under applicable nonbankruptcy law are also enforceable in bankruptcy). The narrow scope of this exception is consistent with the broad sweep of Section 541 generally. Section 541(c)(2), far from expressing any particularly new congressional policy (as suggested in Goff), simply ratified long-standing prior law honoring state spendthrift trust law. Nothing more need be read into its enactment. HR Rep. No. 595, 95th Cong., 1st Sess. 176 (1977). b. Exemptions — the distinctly different function of Section 522. Section 522 of the Code, the exemption provision, serves a different, equally important, but entirely distinct policy, that of affording the individual debtor emerging from bankruptcy a "fresh start." 11 U.S.C. § 522; HR Rep. No. 595, 95th Cong., 1st Sess. 126 (1977); see In re Hahn, 5 B.R. 242, 244 (Bankr.S.D.Ia.1980). In crafting Section 522, Congress carried forward the basic exemption scheme set out in Section 6 of the Bankruptcy Act, which honored whatever exemptions a debtor was entitled to outside of bankruptcy, then added an alternative set of "generic exemptions." 11 U.S.C. § 522(b). (1) The history of the "existing exemptions" scheme in § 522(b)(2)(A). Section 6 of the Act had permitted debtors to take advantage of all the exemptions available under both (1) the laws of the United States and (2) the laws of the state in which the debtor filed. Section 6, Bankruptcy Act of 1898 (11 U.S.C. (repealed) § 24).[23] The Act itself neither added to nor detracted from those "existing exemptions." Report of the Commission on the Bankruptcy Laws of the United States, HR Doc. No. 137, 93rd Cong., 1st Sess. 16 (1973). This provision was reenacted in the Bankruptcy Code as Section 522(b)(2)(A), substantially without change. HR Rep. No. 595, 95th Cong., 1st Sess. 126, 360 (1977); 11 U.S.C. § 522(b)(2)(A).[24] Thus, Section 522(b)(2)(A), as had Section 6 of the Bankruptcy Act, also honors existing exemption law in bankruptcy. It has long been the policy of Congress in its bankruptcy laws to recognize and give effect to state exemption laws. 1A Collier on Bankruptcy ¶ 6.18 (14th ed., rel. no. 14, 1972); In re Freidrich, 100 Fed. 284, 286 (7th Cir.1900) (bankruptcy court adopts state law rules of decision as to the extent and nature of exemptions, reserving to itself only the procedure by which the exemption is claimed). That policy did not change when, in 1938, Congress added to Section 6 the language permitting debtors to claim exemptions arising under federal law as well. Collier, supra at ¶ 6.17 (rel. no. 19, 1974). Collier's specifically notes that It is not the intent of § 6 to state a federal exemption but only to incorporate those created by various federal statutes. *812 These statutes control as to the nature and extent of the exemption. Id. at p. 900. Any intention on the part of Congress to violate or abolish this wise and uniform rule, observed from the creation of the federal system, should be made to appear by clear and unmistakable language, and should not be presumed from a doubtful or ambiguous provision fairly susceptible of any other construction. Holden v. Stratton, 198 U.S. 202, 213, 25 S.Ct. 656, 659, 49 L.Ed. 1018, 1022 (1905); 31 Am. Jur.2d, Exemptions § 11 (1967). When a subsequent enactment reenacts prior law, the rule of statutory construction is that the new enactment is presumed to have continued the interpretation given the prior law absent the most compelling evidence to the contrary. Communications Workers of America v. Beck, ___ U.S. ___, ___, 108 S.Ct. 2641, 2649, 101 L.Ed.2d 634, 647 (1988); Pott v. Arthur, 104 U.S. 735, 736, 26 L.Ed. 909, 910 (1882). Section 522(b)(2)(A) must be interpreted as was its predecessor, Section 6 of the Act, to be neutral with respect to the nature and extent of exemptions arising under other federal laws, regardless of their source or purpose.[25] (2) The genesis of the "generic exemptions" scheme codified at § 522(d). Congress recognized that the exemption scheme of many states (upon which most debtors would have to rely to protect such things as house, car, clothes, furniture and the like) had become, over the years, unnecessarily parsimonious: [S]ome State exemption laws have not been revised in this century. Most are outmoded, designed for more rural times, and hopelessly inadequate to serve the needs of and provide a fresh start for modern urban debtors. The historical purpose of these exemption laws has been to protect a debtor from his creditors, to provide him with the basic necessities of life so that even if his creditors levy on all of his nonexempt property, the debtor will not be left destitute and a public charge. The purpose has not changed, but neither have the level of exemptions in many States. Thus, the purpose has largely been defeated . . . [The Bankruptcy Code] adopts the position that there is a Federal interest in seeing that a debtor that goes through bankruptcy comes out with adequate possessions to begin his fresh start. HR Rep. No. 595, 95th Cong., 1st Sess. 126 (1977) U.S.Code Cong. & Admin.News 1978, p. 6087 (emphasis added).[26] In response to a recommendation by the Commission on the Bankruptcy Laws of the United States, Congress enacted a set of "generic exemptions," available as an alternative to those debtors unfortunate enough to live in those parsimonious jurisdictions. These generic exemptions are derived in considerable part from the Uniform Exemptions Act, drafted and adopted by the National Conference of Commissioners on Uniform State Laws in 1976. See Uniform Exemptions Act, Prefatory Note, reprinted at 13 U.L.A., Civil Procedural and Remedial Laws, p. 207 (West 1986) (hereinafter "Uniform Exemptions Act"). 11 U.S.C. § 522(b)(1), (d). In giving debtors a choice of exemption schemes ("existing" or "generic"), Congress certainly did not intend to put debtors to a Hobson's choice. The generic exemptions alternative represents a complete, *813 free-standing exemption scheme, which provides not only for such things as cars, clothes and homestead (otherwise governed by state exemption law) but also for retirement benefits. 11 U.S.C. § 522(d)(10)(E);[27]see Uniform Exemptions Act, § 6(a)(5) (nearly the same wording as that found in Section 522(d)(10)(E) of the Bankruptcy Code). After all, debtors who might choose the generic exemptions must forego the existing exemptions, including those for retirement benefits available under "other federal law."[28] Debtors should not be penalized for making that choice, nor does anything in the statute or the legislative history suggest otherwise. (3) Congress expressed no particular intent to limit debtors' access to retirement benefits in the exemption statute. The overall structure of Section 522(b) manifests a congressional policy which generally favors debtors retaining their retirement benefits. The legislative history is effusive in according sufficient property to debtors for their fresh start, with nary a hint of an intent to penalize debtors for choosing one exemption scheme over the other. Moreover, the history of the enactment of Section 541(c)(2) demonstrates it to be a continuation of prior law largely unrelated to retirement benefits, contrary to Goff's contentions. Finally, and most persuasively, the substantial reenactment of Section 6 of the Act in Section 522(b)(2)(A) indicates that Congress there also intended to continue prior law, which simply incorporated by reference such federal exemptions as might otherwise be available to the debtor absent bankruptcy. Under prior law, those statutes controlled the nature and extent of the exemption. The same rule of construction should also apply to Section 522(b)(2)(A). As Section 522(b)(2)(A) contemplates honoring existing exemptions available under "other federal law," the holding in Commercial Mortgage, representing as it does a statement of federal common law construing ERISA § 206(d)(1) as effectively an exemption, compels this court to honor as exempt the benefits accruing from ERISA-regulated plans which are in compliance with ERISA § 206(d)(1). 3. The "illustrative list" in the legislative history to Section 522(b)(2)(A) is not sufficient authority to support either an amendment of the Bankruptcy Code's exemption statute or an implicit repeal of ERISA's anti-alienation provision. Goff contends that the illustrative list found in the legislative history to Section 522(b)(2)(A) betrays an effort by Congress to amend or delimit access to the "other federal law" exemptions available under the "existing exemptions" scheme. While Goff does not go so far as to hold that ERISA § 206(d)(1) does not operate as an exemption from attachment or execution, the court does argue that it functions in that fashion only in the nonbankruptcy context. Matter of Goff, 706 F.2d at 585. I respectfully disagree. a. No intention to change prior law. First, as discussed above, Section 6 of the Bankruptcy Act (from which this section of the Code was taken) deferred to non-bankruptcy exemption statutes with respect to the nature and extent of the exemptions a debtor could claim upon bankruptcy. Nothing in that section even vaguely suggested an intention to modify *814 or limit the scope or operation of a given exemption in the bankruptcy context. Had Congress intended to depart from prior law, it would have had to have done so by choosing explicit statutory language. It is dangerous to rely upon illustrative lists in the legislative history to add such a limitation to the statute. Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124, 143 (1977); Scripps-Howard Radio v. FCC, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229, 1235 (1942).[29] b. The "existing exemptions" scheme is neutral with regard to the underlying laws honored. Second, Goff's suggestion departs from the clearly expressed intention of Congress that the Code be neutral with regard to the existing exemptions" scheme. Section 522(b)(2)(A) continues that policy of honoring, with neutrality, existing exemption schemes. Cf. In re Dyke, 99 B.R. 343, 350, 19 BCD 105, 110 (Bankr.S.D.Tex.1989) ("the only legislative attitude toward state exemption laws which can be gleaned from Section 522 is one of strict neutrality"). Goff suggests that the Code is not neutral with regard to exemptions, that Congress has somehow federalized and then modified the scope and reach of exemptions otherwise available under the laws of the United States. That suggestion is simply not consistent with the clear and unambiguous language of the statute, nor does it square with the prior law from which Section 522(b)(2)(A) is drawn.[30] Absent resort to the legislative history (discussed below), there is no basis for Goff's departure from the rule of neutrality which has governed the bankruptcy exemption statute for nearly a century. c. Legislative history may not be used to amend statutory enactments. Third, Goff breaks a cardinal rule of statutory construction when it relies so heavily on the listing in the legislative history to support its conclusion that Congress did not intend to include ERISA plans under the "other federal law" rubric. Looking at the House and Senate reports, Goff concluded that "[t]he failure of Congress to include ERISA in its listing of illustrative federal statutes is highly probative of congressional intent." In re Goff, 706 F.2d at 585. Where the meaning of a statute is clear on its face, however, it is improper to resort to legislative history to interpret the statute. Diamond v. Chakrabarty, 447 U.S. 303, 315, 100 S.Ct. 2204, 2210, 65 L.Ed.2d 144, 154 (1980); United Air Lines, Inc. v. McMann, 434 U.S. 192, 199, 98 S.Ct. 444, 448, 54 L.Ed.2d 402, 410 (1977); United States v. McKesson & Robbins, Inc., 351 U.S. 305, 315, 76 S.Ct. 937, 943, 100 L.Ed. 1209, 1217 (1956). The plain meaning of a statute cannot be overcome by legislative history which, "through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction." Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207, 1211 (1949), citing Gemsco v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 614, 89 L.Ed. 921, 933 (1945). To paraphrase Goff, had Congress intended to exclude ERISA-regulated plans from the "other federal law" rubric, it would certainly have done so in the Bankruptcy Code itself. Goff concedes that Section 522(b)(2)(A)'s legislative history is sparse and that it provides "no further insight into which other, if any, federal laws were intended to be brought within this provision." Id. at 583. As Goff's interpretation derives from its heavy reliance on the illustrative list in the legislative history, its logic must be rejected in the face of the statute, which is clear and unambiguous on its face. d. The failure to include an item in an "illustrative list" is not probative. Fourth, if resort is to be made to the legislative history, then interpretation of *815 that history must be disciplined. It is a non-sequitur to say that the failure to include something on an illustrative list is probative of an intent to exclude it from that list. Illustrative lists (in contrast to exhaustive lists) by their nature preclude the possibility of "overlooking" a statute of the type already listed. Goff doubted that Congress meant to include ERISA when other "significantly less comprehensive and less well known statutes" were included in the list, Id. at 585, but that observation simply misses the point. The statute has long adopted an attitude of neutrality toward the nature and extent of a given exemption, leaving that issue to be controlled by the statute which confers the exemption and the case law which construes it. 1A Collier on Bankruptcy ¶ 6.17 (14th ed. 1974); In re Freidrich, 100 Fed. 284, 286 (7th Cir.1900). Against this backdrop, the legislative history cannot be read to be anything more than what it purports to be — an "illustrative" list which merely indicates what might qualify for exemption under Section 522(b)(2)(A). It is up to the courts to determine whether a given statute confers an exemption, without resort to bankruptcy law, much less resort to its legislative history. 4. The Bankruptcy Code has not "implicitly repealed" ERISA § 206(d)(1). Goff also suggested that the Bankruptcy Code somehow overruled ERISA: It is well to make a final telling observation on the relationship between ERISA and the Bankruptcy Code. While ERISA preempts state law, 29 USC § 1144(a), it clearly was not intended to affect the operation of other federal law. . . . Thus, ERISA's specific provision precluding interference with the operation of federal law renders the Bankruptcy Code effective over any ERISA provisions to the contrary. . . . ERISA was not intended to affect the operation of other federal laws including federal bankruptcy laws. If a distinction is created by operation of bankruptcy law, which might conflict with ERISA, bankruptcy law prevails. Even assuming arguendo that the court-drawn distinction conflicts with federal pension law, it is nonetheless enforceable if valid under federal bankruptcy law. Id. at 587 and 589 (emphasis added). The logic is in error. Goff all too easily embraces the idea that the Bankruptcy Code impliedly repealed or altered ERISA. See 29 USC § 1144(d). That the Code could have done so is far from justifying the conclusion that it did. Conflicts between other federal law and the Bankruptcy Code cannot be presumed. . . . The proper analysis is to determine whether the two statutes can be construed so as to avoid any conflict, and if such a way cannot be found, then decide upon a resolution which will do the most to serve the congressional intent impressed in both statutes and will least undercut that intent as expressed in either one. In re Witte, 92 B.R. 218, 223-224 (Bankr. W.D.Mich.1988). Goff, when it found a purported congressional "intent to limit any exemption of pension funds" was relying on what it apparently viewed as a conflict between the Code and "ERISA provisions to the contrary." Goff, 706 F.2d at 587. Goff first found a subsequent, generalized congressional intent to limit pension plans in bankruptcy, then concluded that that intent "trumped" the earlier congressional intent expressed in ERISA to protect those very same pensions plans. For want of a better term, we shall call this selective implicit amending "repeal by implication." The Supreme Court has warned that "courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). Repeal by implication is greatly disfavored, and the presumption is always against the intention to repeal by implication. Watt v. Alaska, 451 U.S. 259, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). An intent to repeal by implication must be clear, unequivocable, and necessary for the survival *816 of the repealing statute or provision. St. Martin Evangelical Lutheran Church v. South Dakoka, 451 U.S. 772, 101 S.Ct. 2142, 68 L.Ed.2d 612 (1981). "[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960); Mackey, 486 U.S. at ___, 108 S.Ct. at 2190, 100 L.Ed.2d at 850 (1988). Moreover, courts will not hold to a repeal by implication if a reasonable ground to hold to the contrary can be found. Lewis v. United States, 244 U.S. 134, 37 S.Ct. 570, 61 L.Ed. 1039 (1917); United States v. Jackson, 302 U.S. 628, 58 S.Ct. 390, 82 L.Ed. 488 (1938); see also Seiden, "Do ERISA and the Bankruptcy Code Conflict as to Whether a Debtor's Interest in or Rights Under a Qualified Plan Can be Used to Pay Claims?," 61 Am.Bankr.L.J. 301, 317-319 (1987).[31] With these affirmative duties to harmonize in mind, this court holds that Section 522(b)(2)(A) does not implicitly repeal ERISA Section 206(d). The Bankruptcy Code section does not purport to limit in bankruptcy a debtor's access to federal exemptions available (and readily honored) outside of bankruptcy. See discussion supra at Part II.B.2.b. There is no need therefore to find a conflict with ERISA § 206(d) and hence, no bankruptcy barrier to honoring ERISA's exemption for qualified plans by way of Section 522(b)(2)(A), to the extent such an exemption is otherwise available under applicable nonbankruptcy law.[32] III. Conclusion I conclude therefore that Section 522(b)(2)(A) permits a debtor who has elected the "state and other federal law" exemption scheme to claim his or her ERISA pension benefit plan as exempt under "other federal law," to wit, ERISA § 206(d), to the extent therein provided.[33] As this court said in its earlier decision, it is up to Congress to amend ERISA, not the courts. If creditors and courts find it objectionable to permit persons such as Dr. Komet to shelter large sums of money in ERISA tax-qualified plans, their appeal should be to Congress, not to this court. The prior reasoning of this court on the pre-emption issue is, on reconsideration, affirmed. The holding, however, is reversed, and the objections to the claim of exemption *817 for the retirement benefits here in question, asserted as it is under the "existing exemptions" scheme of Section 522(b)(2)(A), are denied. The benefits accruing from the plans in question may be retained by the debtors as their exempt property. So ORDERED. NOTES [1] The Georgia anti-garnishment statute made reference to both pension and welfare benefit plans: Funds or benefits of a pension, retirement or employee benefit plan or program subject to the provisions of the federal Employee Retirement Income Security Act of 1974, as amended, shall not be subject to the process of garnishment . . . unless such garnishment is based upon a judgement for alimony or for child support. Ga.Code Ann. Sections: 18-4-22.1 (1982). [2] I must also therefore respectfully disagree with my colleague, Judge Larry E. Kelly, that ERISA's preemption occurs only to the extent the Texas statute "purport[s] to regulate the terms and conditions of an employee benefit plan . . . [or to] affect the relationship between the principal ERISA entities." See In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989). [3] I reiterate my earlier ruling that Section 42.0021's use of references to sections of the Internal Revenue Code does not rescue the statute from relating to ERISA. See In re Komet, 93 B.R. 498, 500 (Bankr.W.D.Tex.1989); see also In re Dyke, 99 B.R. 343, 19 BCD 105, 109 (Bankr.S. D.Tex.1989). Only those benefits which are "ERISA-qualified" obtain the favorable tax treatment set out in Section 401 et seq. of the Internal Revenue Code. 26 U.S.C. §§ 401(b), 410. [4] Shaw severely limits the application of the "too tenuous, remote and peripheral" exception, despite its citation to American Telephone & Telegraph Co. v. Merry, 592 F.2d 118, 121 (2d Cir.1979), which interpreted the exception expansively. In Shaw, at issue was a New York human rights law which generally prohibited employer discrimination in terms, privileges and conditions of employment. The law made no reference to retirement plans, much less to ERISA plans. After acknowledging the existence and continuing validity of the exception (citing Merry) the Supreme Court went on to observe that "the present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line." Shaw, supra at 463 U.S. at 101 n. 21, 103 S.Ct. at 2901 n. 21, 77 L.Ed.2d at 503 n. 21. Regardless where the line ends up being drawn, if the New York human rights law at issue in Shaw came nowhere near the "borderline," then certainly Texas' explicit exemption for ERISA retirement plans does not present a borderline case warranting resort to the exception. [5] Purpose of ERISA § 206(d) is to ". . . further insure that the employees' accrued benefits are actually available for retirement purposes . . ." HR Rep. No. 807, 93rd Cong., 2d Sess. 68 (1974). The provision seeks to protect pension benefits against the claims of general creditors. HR Rep. No. 1280, 93rd Cong., 2d Sess. 280 (1974), U.S.Code Cong. & Admin.News 1974 pp. 4639, 4670, 5038. [6] (a) A civil action may be brought — . . . . . (5) except as otherwise provided in subsection (b) by the Secretary [of Labor] (A) to enjoin any act or practice which violates any provision of this title, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this title. 29 U.S.C. § 1132(a)(5). The structure of the statute suggests that most of the Secretary's efforts will be devoted to enforcing the reporting requirements of ERISA. As a practical matter, the loss of tax qualification is usually motivation enough for most plans to include the antialienation language. The statute nonetheless authorizes enforcement of this inclusion requirement, especially if a beneficiary requests the Secretary exercise the authority and the Secretary determines that "such violation affects, or such enforcement is necessary to protect, claims of participants or beneficiaries to benefits under the plan." 29 U.S.C. § 1132(b)(1)(B). [7] That regulation provides as follows: (b) No assignment or alienation. — (a) General rule. Under section 401(a)(13), a trust will not be qualified unless the plan of which the trust is a part provides that benefits provided under plan may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process. 26 CFR § 1.401(a)-13(b)(1). [8] I note at the outset that the continuing vitality of Fort Halifax has been weakened somewhat by the strong holding in Mackey. Justice White, whose position carried the day in the majority opinion in Mackey, authored the dissenting opinion in Fort Halifax. He pointedly noted in his dissent that [b]y making pre-emption turn on the existence of an "administrative scheme," the Court creates a loophole in ERISA's pre-emption statute, 29 U.S.C. § 1144, which will undermine Congress' decision to make employee-benefit plans a matter of exclusive federal regulation. Fort Halifax, supra, 107 S.Ct. at 2223-24 (White, J., dissenting). For an excellent survey and discussion of pre-emption analysis and its handling (or mishandling) in the case law, see In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989). [9] Of course a state court might defer to the determination by the Secretary of the Treasury that the plan is qualified, but there is no requirement in the Texas statute that it do so, or that the determination of the Secretary must operate as a conclusive, irrebuttable presumption of qualification. Section 42.0021 is written in terms of Section 401(a) of the Internal Revenue Code, which sets out the requisites for qualification. The statute thus squarely places the state court judge in the shoes of the Commissioner of Internal Revenue. [10] The position of the Service is that, if a particular beneficiary's benefits are determined to be subject to attachment, the entire plan loses its tax-qualification, rendering the plan and its benefits taxable to the other beneficiaries. Private Letter Ruling No. 8910035, CCH Letter Rulings Reports (1988). [11] The infringement threatened by the Texas statute is far more direct than the interference of which the parties complained in Fort Halifax, precisely because our statute does more than merely affect ERISA plans. Texas' law is defined in terms of the qualified status of plans under ERISA, forcing not only reference to ERISA but construction of ERISA vis-a-vis particular plans. [12] The court does not have before it the question of Individual Retirement Accounts and other devices which enjoy favorable tax treatment but are not governed by ERISA. If these devices are not governed by ERISA, they are also not subject to the pre-emption scheme of Section 514(a). See Smith v. Winter Park Software, Inc., 504 So.2d 523 (Fla.App.1987); Vann Rowland v. Strickland, 294 S.C. 119, 362 S.E.2d 892 (App.1987); Long Island Jewish Hillside Medical Center v. Prendergast, 134 Misc.2d 93, 509 N.Y.S.2d 697 (1986). Whether they are otherwise protected by ERISA is not before the court. See In re Laxson, 102 B.R. 85 (Bankr.N.D.Tex.1989) (finding the Texas statute sufficient to protect such devices). Church and government plans are already expressly excluded from regulation by ERISA. 29 U.S.C. § 1003(b). Section 514(a) therefore does not pre-empt Section 42.0021 to the extent it extends exemption protection to such plans. [13] In many states property is exempt either because it is on a list of exempt property or because it is deemed inalienable. For example, in New York the assignment or transfer of a claim for personal injury is prohibited, N.Y.Gen.Obligation Law § 13-101, and under C.P.L.R. § 5201(b), a "money judgment may be enforced against any property which could be assigned or transferred . . . unless it is exempt from application to the satisfaction of the judgment." Courts have had no problem in seeing claims for personal injury in New York as exempt under § 522(b). See In re Murcelli [Mucelli], 21 Bankr. 601 (Bankr.S.D. N.Y.1982). . . . T. Jackson, The Logic and Limits of Bankruptcy Law, "The Scope of Discharge" p. 263 n. 26 (Harvard Univ.Press 1986). [14] The court concurred, however, with Goff's strong dicta that the exemption from state law collection would not be effective as an exemption for bankruptcy purposes under Section 522(b)(2)(A). Id.; cf. In re Hinshaw, 23 Bankr. 233 (Bankr.D.Kan.1982) (ERISA-qualified retirement trust held exempt under Section 522(b)(2)(A)). [15] The few cases to the contrary have for the most part done so in order to carve out an exception for spousal support obligations. Congress has since amended ERISA to expressly recognize that exception. 29 U.S.C. § 1056(d)(3), as amended August 23, 1984, P.L. 98-397, Title I, § 104(a), 98 Stat. 1433. [16] The purpose of ERISA is consistent with the general purpose of exemptions to assure that debtors will not become public charges and their families will not be deprived by the extravagance or misfortune of their breadwinners. See generally 31 Am.Jur.2d, Exemptions § 3 (1967) and cases cited therein. ERISA's most important purpose will be to assure American workers that they may look forward with anticipation to a retirement with financial security and dignity, and without fear that this period will be lacking in the necessities to sustain them as human beings within our society. HR Rep. No. 533, 93rd Cong, 1st Sess 8 (1973) U.S.Code Cong. & Admin.News 1974, p. 4639. [17] The court noted that it was indeed the statute, and not merely the plan provision, which operated to override state garnishment law. [18] Spendthrift trust law serves a different purpose than does ERISA: ERISA authorizes a whole host of employee pension plans, which may be established by employer, employee, or both, may consist of contributions from employer, employee, or both, and will in any event be protected from creditors' actions in state court by virtue of the statutorily mandated antialienation provisions of the plans themselves. The simplistic division between settlor and beneficiary in the traditional doctrine of spendthrift trusts lends no aid in determining whether ERISA plans should be protected . . . Comment, "Contra Goff: Of Retirement Trusts and Bankruptcy Code § 541(c)(2)," 32 U.C.L.A. L.Rev. 1266, 1274 (1985). [19] The Supreme Court has noted the deference to be given regulations when Congress delegates to an agency power to prescribe standards for interpreting statutes: Congress entrusts to the Secretary, rather than to the Courts, the primary responsibility for interpreting the statutory term. . . . The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the Secretary exceeded his statutory authority or if the regulation is "arbitrary, capricious or an abuse of discretion or otherwise not in accordance with law". Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448, 456 (1977) (footnotes and citations omitted) (Social Security regulations); cf. 29 U.S.C. §§ 1201, 1202, 1203(b), 1204(a) (delegation provisions). [20] Section 522(b)(2)(A), derived from Section 6 of the Bankruptcy Act, directs a bankruptcy court to, in effect, honor existing exemptions with neutrality from the bankruptcy vantage. Nonbankruptcy law controls the nature and extent of any given exemption, even though it is the bankruptcy court which is called on to apply that law. For a more detailed discussion of these concepts, see the discussion infra at Part II.B.2.b. [21] Other circuits which have followed Goff's dicta on this point have simply repeated Goff's analysis, adding no significant additional arguments for the proposition. See In re Graham, 726 F.2d 1268, 1274 (8th Cir.1984); In re Lichstrahl, 750 F.2d 1488, 1491 (11th Cir.1985); In re Daniel, 771 F.2d 1352, 1360 (9th Cir.1985). [22] Under Section 70 the trustee succeeded to the "title of the bankrupt as of the date of the filing of the petition" as well as to "property . . . which prior to the filing . . . could by any means have been transferred or which might have been levied upon and sold under judicial process . . ." § 70(a), Bankruptcy Act, codified at 11 U.S.C. (repealed) § 70 (1976). As a result, property governed by a valid restriction on alienation did not become property of the estate under the Act, so there was no need for a provision expressly honoring restrictions on alienation (such as the one now found in Section 541(c)(2) of the Bankruptcy Code). [23] The statute read as follows: This Act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the laws of the United States or by the State laws in force at the time of the filing of the petition in the State wherein they have had their domicile for the six months immediately preceding the filing of the petition . . . § 6, Bankruptcy Act of 1898, codified at 11 U.S.C. (repealed) § 24 (1976). [24] The pertinent portions of the statute, which track Section Six of the Act nearly verbatim, reads as follows: Notwithstanding section 541 of this title [defining property of the estate], an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, alternatively, paragraph (2) of this subsection. . . . Such property is — . . . . . (2)(A) Any property that is exempt under Federal law, . . . or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor's domicile has been located . . . 11 U.S.C. § 522(b)(2)(A). [25] Nothing in the legislative history or the statutory language of 11 USC § 522 indicates any federal dependency on the substantive content of state exemption laws. The only legislative attitude towards state exemption laws which can be gleaned from Section 522 is one of strict neutrality. In re Dyke, 99 B.R. 343, 351, 19 BCD 105, 111 (Bankr.S.D.Tex.1989). [26] Students who have examined the exemptions laws of the several states are always astounded by the enormous disparity that characterizes these laws . . . If the original objectives of state exemption legislation remain operative, the time for overhaul in the light of the needs of those living in this last quarter of twentieth century has long since arrived. Uniform Exemptions Act, Prefatory Note reprinted in 13 ULA, Civil Procedural and Remedial Laws (West 1986); see also B. Weintraub & A. Resnick, Bankruptcy Law Manual, ¶ 4.07[1][b] at p. 4-34 (Revised ed. 1986). [27] The exemption for retirement benefits under the generic scheme is available only if the benefits are "reasonably necessary for the support of the debtor and dependents of the debtor," a limitation not found in ERISA. 11 U.S.C. § 522(d)(10)(E); see 29 U.S.C. §§ 1056(d)(1), 1144(d). This overlay does not affect the interpretation of existing exemptions, which have a source independent of the generic exemptions. Debtors cannot keep more than $7,500 equity in their residence under the federal scheme either, but that hardly affects how bankruptcy courts construe a Texas homestead exemption claimed under the existing exemptions scheme. [28] For example, a resident of the District of Columbia, employed in a civil service job, would not have to give up his or her civil service retirement system benefits, no matter which exemption scheme he or she chose. Under the existing exemption scheme, they are exempt under "other federal law" (5 U.S.C. § 8346(a)). Under the generic exemptions, they are protected by Section 522(d)(10)(E). [29] "We must be wary against interpolating our notions of policy in the interstices of legislative provisions." Id. (Frankfurter, J.). [30] The Fifth Circuit has never suggested adopting a similar rule of interpretation for state exemptions claimed under Section 522(b)(2)(A). If anything, that court has shrunk from such an approach when it has been called upon to construe state exemption law in the context of bankruptcy. See In re Niland, 825 F.2d 801, 807-11 (5th Cir.1987). [31] [O]n June 29, 1984, the Bankruptcy Code was amended, and thereafter on August 13, 1984 the anti-alienation provisions of ERISA were amended by the Retirement Equity Act of 1984 ("REA"). REA amended the ERISA requirements that plans must prohibit benefit alienation and assignment by adding an exception to ERISA and the Internal Revenue Code. . . . The Bankruptcy Code amended specific portions of ERISA that referred to the word "bankruptcy" to "the Bankruptcy Act," or to "that Act." Thus the impact of the Bankruptcy Code on certain provision of ERISA was considered and amendments made. To hold that a significant aspect of ERISA was repealed by implication when other less significant provisions of ERISA were specifically amended would be unusual. Seiden at 320. [32] This analysis does not disturb Goff's holding regarding Section 541(c)(2). I agree that that section is ineffective to insulate all ERISA plans from coming into the bankruptcy estate. Indeed, were it otherwise, Congress would not have needed to have enacted Section 522(d)(10)(E), because Section 541(c)(2) would afford all the protection required for such plans. I also acknowledge that Section 522(d)(10)(E) of the Bankruptcy Code is less generous than ERISA § 206(d)(1) (exempt to the extent reasonably necessary for support), but that variance does not affect how a bankruptcy court should construe ERISA § 206(d)(1). The generic exemption alternative is a parallel exemption scheme. It does not purport to duplicate the scope of exemptions available under the existing exemption scheme. It most certainly did not purport to replace existing exemptions. [33] The bankruptcy court in the usual instance will have to determine whether benefits have been pledged or otherwise drawn down to the extent permitted by ERISA, as those benefits will of course not be exempt. That issue was not raised by any of the objecting parties in this case, however. This also means that, in the usual instance, the bankruptcy court may have to make the determination whether the plan is an ERISA-regulated plan. These tasks are imposed by the Bankruptcy Code itself, the provisions of which preempt ERISA. 29 U.S.C. § 1144(d). Note that this fact does not save Texas' attempt at exemption for these plans, however. Congress confers the power to construe existing exemptions. It did not, in so doing, federalize those exemptions. See In re Dyke, 99 B.R. at 351, 19 BCD at 111.

376 F.Supp. 158 (1974) UNITED STATES ex rel. William RUSSELL v. Edward J. HENDRICK, Superintendent, and Joseph McGowan, Warden. Civ. A. No. 71-2714. United States District Court, E. D. Pennsylvania. May 21, 1974. Christopher M. Laquer, of Temple University Law School Prison Project, Philadelphia, Pa., for plaintiff. Stephen T. Saltz, Asst. City Sol., Philadelphia, Pa., for defendants. MEMORANDUM OPINION EDWARD R. BECKER, District Judge. This is an action brought under 42 U. S.C. § 1983. The plaintiff, William Russell, presently an inmate at the State Correctional Institution at Huntingdon (Pennsylvania) seeks damages for the alleged deprivation of access to the courts on the ground that he was wrongfully deprived by officials of the Holmesburg Prison of certain lawbooks which he had ordered. The case was tried to the Court sitting without a jury. Plaintiff was ably represented, pursuant to Local Rule 9½, by Christopher M. Laquer, a third-year law student at Temple University, to whom the Court expresses its appreciation.[1] For the reasons which follow, relief will be *159 denied. This opinion constitutes our findings of fact and conclusions of law mandated by F.R.Civ.P. 52(a). I. Findings of Fact In October, November, and December of 1971, plaintiff was an unsentenced inmate at Holmesburg Prison, a county prison in Philadelphia housing both sentenced and unsentenced male prisoners. During that time defendant Edward J. Hendrick was the Superintendent of Philadelphia County Prisons, and defendant Joseph P. McGowan was Warden of Holmesburg Prison. A third defendant, Robert Fromhold, who was Deputy Warden of Holmesburg Prison, was also named in the complaint. However, the action was dismissed as to Major Fromhold after his death in a prison disorder on May 31, 1973. In September or October of 1971, plaintiff ordered from Lawyers Co-Operative Publishing Company in Rochester, N.Y. the following books: Bailey and Rothblatt, Manual of Criminal Forms (1 volume); Anderson, Wharton's Criminal Law and Procedure (13th ed., 5 volumes); Anderson, Wharton's Criminal Evidence (12th ed., 3 volumes). He mailed the order to his sister-in-law in Camden, New Jersey, who forwarded it to the publishing company. The ordered books arrived at Holmesburg on October 21, 1971.[2] The two guards on duty in the mail room looked through their records for a record of the book order in accordance with regular prison regulations. These regulations provided that an inmate could receive books or other publications in the mail, but only if (1) they were mailed directly from the publisher, and (2) the mail room was notified in advance of the order on a form known as a D Form, filled out by the inmate and signed by the warden or his delegate. Because they could not find a D Form for this particular order, the guards called Warden McGowan for instructions. He directed them to follow the established procedure, which was to mail publications for which there was no D Form back to the publisher. One to two weeks later Warden McGowan received an inquiry about the matter from his superior, Assistant Superintendent of Prisons Ernest Goldsborough, who had become aware of the case through a complaint made by plaintiff. A few days thereafter, plaintiff came to see Warden McGowan about the books, whereupon the warden phoned the publisher in Rochester and asked that the books be reshipped to plaintiff. The books were received in the last week of November or the first week of December 1971, but Wharton's Criminal Evidence was not received because it was by this time out of print. At the time of the events described above, plaintiff had been convicted in Philadelphia Common Pleas Court in a case involving murder, aggravated robbery, burglary, conspiracy, and possession of firearms. His motion for new trial or arrest of judgment in that case was pending. Plaintiff was represented on that motion by Anthony J. DeFino, Esq., who had represented him from the preliminary hearing and continued to represent him through sentencing. Mr. DeFino had filed plaintiff's motion for new trial on February 9, 1971. On October 29, 1971, he filed a brief in support of the motion. Mr. DeFino testified that the preparation of the brief entailed extensive legal research by him and his associate and that he conferred with plaintiff about the legal points to be raised in the brief, but did not think any of plaintiff's suggested case citations to be relevant and did not utilize them. Mr. DeFino testified that he and his associate used several law books to research the brief but did not use any of the books ordered by plaintiff, and that he was able to obtain access to all the law books which he felt he needed to *160 brief and argue plaintiff's motion. We credit Mr. DeFino's testimony. Oral argument was heard by the Court of Common Pleas on plaintiff's motion on November 18, 1971. The motion was denied on July 12, 1972. On August 18, 1972, plaintiff was given two consecutive sentences of 10 to 20 years, to run concurrently with consecutive sentences of life and 2 years. II. Discussion The right which the plaintiff complains he was denied is the right of a prison inmate to access to the courts. As the Supreme Court stated in Procunier v. Martinez, ___ U.S. ___, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974): The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. There is no specific right of access to legal materials, although for an inmate not represented by counsel, access to the courts may be meaningless without the reasonable availability of law books. The cases recognizing more specific facets of the right of access to the courts involved unrepresented inmates and, therefore, do not control here. See, e. g., Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970) (three-judge court), aff'd per curiam sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L. Ed.2d 142 (1971) (right to lawbooks); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (right to assistance of inmate "writ-writers"); United States ex rel. Silo v. Frame, Civ. No. 73-598 (E.D.Pa. June 11, 1973) (Lord, Ch. J.) (right to lawbooks). In Bauer v. Sielaff, 372 F.Supp. 1104 (E.D.Pa., 1974), we considered a prisoner's complaint that he was deprived of his trial transcript and writing paper during a period when his appeal to the Supreme Court of Pennsylvania was pending. Discussing the nature of the right of access to the courts, we wrote: We recognize that a prisoner has the constitutional right to have reasonable access to the courts. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L. Ed. 1034 (1941); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). But access to the courts and not access to particular legal documents at specific times is the real issue. If a prisoner has reasonable access to legal counsel then he has the means to prepare, serve and file whatever documents are necessary. Here, as in Bauer, we must conclude that the plaintiff, through counsel, had adequate access to the courts and was not in the least damaged by his inability to do his own legal research to supplement that of his attorney. There is no evidence that plaintiff had any legal training, and his counsel did not feel that the assistance plaintiff gave him on legal points was worthwhile. There is no contention that communications between plaintiff and his counsel were curtailed by prison authorities. Therefore, we find no violation of plaintiff's constitutional rights in the defendants' actions in sending the law books back to the publisher under the circumstances of this case.[3] *161 III. Conclusions of Law 1. This Court has jurisdiction of the parties and of the subject matter of this lawsuit. 2. Access of state prison inmates to the courts is a constitutionally guaranteed right under the Fourteenth Amendment due process clause. 3. Plaintiff was not denied his right of access to the courts by virtue of the delay in the delivery of law books to him, because he was adequately represented by competent counsel who during the relevant period was actively pursuing plaintiff's case. NOTES [1] Defendants were represented, also ably, by Assistant City Solicitor Stephen T. Saltz. [2] The books were sent on credit. Apparently Lawyers Co-Op was satisfied to send the books to plaintiff at "P.O. Box 6268 Apt. G763, Phila., Pa." According to an exhibit produced at trial, the bill for $196.10, plus other orders totaling $313.50, is as yet unpaid. [3] At the trial, there was conflicting testimony on the issue whether the defendants took reasonable steps to insure that plaintiff knew in advance of the regulation regarding the receipt of law books. Mr. McGowan, who was warden at the House of Correction at a time when plaintiff was detained there in 1969, testified that the policy of that institution at that time was for each inmate to receive a copy of the regulations "on the way in the front door." At Holmesburg, regulations were posted on the bulletin board, but inmates often removed the posted notices. According to McGowan, since inmates could spend money in only two ways, namely at the commissary or through use of the D Form, "a reasonably intelligent inmate would pick this information up about two hours after he hit the institution." Plaintiff testified, on the other hand, that the first he heard of the regulation was the day McGowan telephoned the publisher to send the books again; he also claimed he had received printed materials in the past without using a D Form. In light of our conclusions derived from plaintiff's representation by counsel during the relevant period, we need not resolve this factual discrepancy and rule on the constitutionality of the D Form regulation and the constitutional adequacy of the prison administration's efforts to disseminate it. We do note however, that the regulation is less accurately described as a restriction on the right to receive printed material than as a restriction on the right to receive printed material without prior notification to the warden or his delegate. Thus it is more a procedural than a substantive regulation, and less likely to be found impermissibly in derogation of constitutional rights. See Procunier v. Martinez, ___ U.S. ___, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). But cf. Van Ermen v. Schmidt, 343 F.Supp. 377 (W.D.Wis.1972) (constitutional challenge to regulations prohibiting receipt of lawbooks from any source other than publisher states a cause of action).

Third District Court of Appeal State of Florida Opinion filed September 2, 2015. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D15-204 Lower Tribunal No. 13-4180 ________________ Eller-I.T.O. Stevedoring Company, L.L.C., et al., Petitioners, vs. Lazaro Pandolfo and Olga Alvarez, etc., Respondents. A Case of Original Jurisdiction – Prohibition. Hamilton, Miller & Birthisel and Jerry D. Hamilton, Robert M. Oldershaw, and Michael J. Dono, for petitioners. Dorta Law and Matias R. Dorta and Gonzalo R. Dorta, for respondents. Before SUAREZ, C.J., and LAGOA and SCALES, JJ. PER CURIAM. We grant the Appellant’s, Eller-I.T.O. Stevedoring Company, LLC, Motion to Clarify solely to indicate that the Court’s June 24, 2015 Order staying the mandate in Case No. 3D15-204 does not stay the proceedings in the trial court, Lower Case No. 13-04180 CA 32. 

762 F.2d 1013 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.SYLVESTER SEAL MURRAY ANDRE DIGGS, MICHAEL JENKINS, ANDDELOS FULWYLIE, DEFENDANTS-APPELLANTS. NO. 83-1441, 83-1537, 83-1594, 83-1617, 83-1618 United States Court of Appeals, Sixth Circuit. 4/19/85 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN Before: ENGEL, KRUPANSKY, and WELLFORD, Circuit Judges. WELLFORD, Circuit Judge. 1 On December 6, 1982, the defendants herein were among the forty-one persons indicted by a federal grand jury in Michigan for conspiracy to distribute and possess with intent to distribute quantities of heroin and cocaine. Various co-defendants were also charged with substantive violations. After preliminary undercover investigation, the government used wiretap recordings to make the charges against the defendants. 2 Prior to trial, 31 co-defendants entered pleas of guilty. One of the above-named defendants, Diggs, contends as his only issue on appeal that District Court Judge Ralph B. Guy abused judicial discretion in not allowing him to withdraw what he claimed to be a 'hasty' guilty plea. 3 The other above-named defendants were convicted at trial in the spring of 1983. Defendant Fulwylie was convicted on two substantive counts of drug distribution but not on the conspiracy charge. Fulwylie contends that his conviction on the substantive charge was prejudiced by the district court's failure to sever it from the conspiracy charge. 4 The lead defendant, Murray, was convicted of conspiracy and a number of substantive violations. Murray challenges the sufficiency of the evidence and argues that major portions of evidence should have been suppressed on Fourth Amendment privacy grounds. Defendant Jenkins also challenges his conspiracy conviction by arguing for suppression of wiretap evidence on the same grounds asserted by Murray. 5 I. Murray. 6 Lead defendant Sylvester Seal Murray raises a number of issues challenging his conviction for conspiracy (21 U.S.C. Sec. 846), substantive drug violations (21 U.S.C. 841(a)(1)), unlawful use of a communication facility (21 U.S.C. Sec. 843(b)), and engaging with others in a continuing criminal enterprise (21 U.S.C. Sec. 848). 7 Murray mounts his most vigorous attack against the district court's decision not to suppress evidence from wiretaps and searches conducted by the government in the Detroit city area. 8 The Wiretap Evidence. 9 On March 11, 1982, Judge Ralph B. Freeman ordered the first interception of phone communications on the phones of two other suspects in the conspiracy (Melvin Davenport and John Thomas). On April 20, 1982, Judge Guy ordered the wiretapping of defendant Murray's residence. On May 14, Judge Guy also authorized the wiretap of an apartment used by Murray and others in the conspiracy (24-1 Jeffersonian Apartments). One more wiretap of a residence was subsequently authorized by Judge Robert E. DeMascio on September 8, 1982. 10 Murray argues that a) the government failed to demonstrate investigative necessity in requesting the first wiretap authorization; b) evidence gained from the subsequent wiretaps therefore was fruit of the poisonous tree as well as unnecessary; and c) Judge Guy should have disqualified himself from ruling on the suppression motion because he authorized one of the wiretaps and conducted a hearing on its validity. 11 A government request for a wiretap order must reasonably demonstrate to a judge that 'normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.' 18 U.S.C. Secs. 2518(3)(c). The issuing judge enjoys considerable discretion, however, in making a practical and common sense judgment about the sufficiency of the government's showing. United States v. Landmesser, 553 F.2d 17 (6th Cir. 1977). 12 Murray argues that the wiretapping was not necessary because the government was already enjoying great success in undercover infiltration of the drug network. The district court found that tapping into the nerve center of the network was necessary in order to establish the full scope of this extensive operation. We find that the district court did not abuse its discretion in this regard. See, e.g., United States v. Woods, 544 F.2d 242, 257 (6th Cir. 1976) (even significant opportunities for undercover infiltration would still not alleviate 'difficulty in learning all the complex details of the widespread [drug] organization, and its aiders and abettors.'). The subsequent wiretaps therefore were not poisonous fruit because the initial wiretap was not a poisonous search and seizure. See Woods, supra. We find no merit in defendants' argument in this respect. 13 The alternative argument that the subsequent wiretaps were unnecessary also fails to persuade us. The first and each successive wiretapping period uncovered communication indicating new dimensions to the conspiracy. The issuing judges exercised reasonable discretion after the government's showing of the need for more wiretapping to discover the various members of the drug ring. 14 Defendant Murray finally attempts to question the propriety of Judge Guy's ruling on the suppression motion in respect to the two wiretaps that he authorized. A judge is supposed to disqualify himself under 28 U.S.C. Sec. 455 in a proceeding if 'his impartiality might reasonably be questioned.' See Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980). Knowledge accquired in the course of earlier participation in the same trial is usually not sufficient grounds for a judge's recusal. See Southerland v. Irons, 628 F.2d 978, 980 (6th Cir. 1980). 15 The frequent recusal of judges in such situations could lead to serious procedural headaches for the federal court system. Such a practice might even encourage an unjust form of judge-shopping. Prosecutors might select a trial judge by presenting preliminary wiretap and search authorization requests to certain other district judges in order to disqualify them from trying the case. In this case two other judges ruled similar evidence sufficient for the wiretaps in the investigation. We find no merit to the argument that Judge Guy erred by not disqualifying himself in regard to the suppression motion. 16 The Physical Searches and Seizures. 17 Federal agents also executed a search warrant in two residences at the Jeffersonian Apartments on May 18, 1982. In this search government agents seized large quantities of heroin, cocaine, narcotics paraphernalia, relevant papers and business cards, as well as sums of cash. On June 16, 1982 and December 7, 1982, government agents executed search warrants at 18706 Tracey in Detroit. During the first Tracey search, agents found defendant Murray with drug paraphernalia and relevant drug-related business papers. Soon before trial, on March 16, 1983, the district court suppressed the use of jewelry and furs discovered at 18706 Tracey (and other searches not relevant here). At the same time, the court allowed use of the validly seized drug paraphenalia and other items included in the warrants. 18 One of defendant Murray's primary arguments on appeal is that this 'severance' or splitting of a search into valid and invalid portions encourages the kind of illicit 'general searches' feared by the Fourth Amendment founders. Yet we are not confronted here with a warrant that vaguely defines the scope of the search and thus arguably permitted a 'general search.' The indicriminately seized evidence was suppressed; only the particularly described evidence contemplated in the warrant was used as evidence at trial. Thus the key constitutional concern about a general or overly broad search--that the government will be able to search for and use all evidence possibly incriminating an individual--is simply not relevant here. See e.g., United States v. Giresi, 488 F. Supp. 445 (D.N.J. 1980), aff'd mem, 642 F.2d 444 (3d Cir. 1981), cert. denied, 452 U.S. 939 (1981). 19 Defendant Murray also asserts that the government's affidavit submitted for the first Tracey search warrant in June 1982 recited untrue information and thus invalidated probable cause for the search. Judge Guy held a preliminary hearing on the truthfulness of the affidavit as required under Franks v. Delaware, 438 U.S. 154 (1978). Government agents testified to the truthfulness of their key affidavit recitation. This concerned what an apparent drug courier in the conspiracy told them after being stopped coming out of the Tracey residence. At the hearing the individual contended that he acknowledged carrying a satchel filled with money but not the presence of drugs at the Tracey residence. After examination of the preliminary hearing record, we find no grounds for reversing the trial judge's decision as 'clearly erroneous.' United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981). 20 Defendant also alleges that a second search of the Tracey residence in December 1982 should have been ruled invalid as fruit of the poisonous tree and also stale in time. Thus the evidence gained in this search should also be suppressed. However, since we have upheld the relevant portion of the Tracy 1 search the Tracey 2 search in December 1982 cannot now be deemed tainted by any invalidity traceable to Tracey 1. Murray has also failed to present a convincing case on the staleness claim. This court's review of the record does not establish grounds for reversing the judicial authorization granted below. The government, moreover, asserts that none of the evidence found in this second search was actually used at trial. And defendant Murray has completely failed to demonstrate the prejudicial use of this evidence. 21 Defendant Murray similarly argues for the lack of probable cause in the Jeffersonian apartment search, which turned up sizeable amounts of drugs and drug paraphenalia. We find more than sufficient evidence from the wiretap conversations and undercover investigation to est blish probable cause. We also refuse to question the trial court's ruling that Murray had no standing to challenge the searches because he had not credibly established his live-in access and resulting 'reasonable expectation of privacy' in the Jeffersonian apartment areas. See e.g., Rakas v. Illinois, 439 U.S. 128 (1978). 22 Defendant Murray finally argues that reversible error was somehow committed in the trial court's refusal to order return of illegally seized property in the searches that was subsequently levied by the IRS. We find no merit whatever in this claim. The trial court suppressed the use of all illegally seized evidence. None of this property therefore played an evidentiary role at trial. 23 Challenges to Judge's Conduct at Trial and Sufficiency of Evidence. 24 Murray also alleges a disqualifying bias on the part of Judge Guy in his conduct of the trial. Besides making general allegations that Judge Guy took the government's side throughout the case, Murray specifically complains about the high bail set for him. Murray, however, was the main ringleader suspect, had indicated that he would flee rather than go to jail, and obviously had demonstrated access to large sums of money. Murray fails to demonstrate any basis for his charge that the judge was predisposed against him, or that he should have sought someone else to try the charges. 25 Murray next argues that there was insufficient evidence for his conviction under 21 U.S.C. Sec. 848 for participation in a continuing criminal enterprise. Murray insists the government has not proved three factual elements necessary for conviction: a) a series of Drug Control Act violations; b) his 'management' position in contact with five or more persons; c) his obtaining of substantial income from the activity. 26 We note first that great deference is due to jury's judgment about sufficiency of evidence. United States v. Luxenberg, 374 F.2d 241, 248 (6th Cir. 1967). The evidence also seems upon examination sufficient to establish all these requisite elements. In wiretapped conversation Murray bragged about the numerous people connected to his enterprise. There were more than enough guilty pleas and convictions connected to Murray's participation in the conspiracy and his management role therein. The government, moreover, did not have to prove that Murray was sole ringleader. United States v. Phillips, 664 F.2d 971, 1013 (5th Cir. 1981). The jury could reasonably infer the final element from the existence of Murray's unexplained substantial income and other circumstances pointing to his drug involvement. 27 Murray also argues that insufficient evidence existed for his conviction of aiding and abetting distribution of heroin by courier Melvin Davenport on March 25, 1982. The record indicates that a big heroin deal planned between Davenport and an undercover agent broke down because of a dispute about the transaction. The record also indicates, however, that the courier distributed earlier that day a sufficient heroin sample to the undercover agent. A phone conversation between Murray and the courier was recorded in which they discussed going ahead with the drug distribution. The undercover agent testified that he was actually given a quite sizeable amount of heroin but returned it after the dispute developed. There are sufficient facts for the jury to infer Murray's aiding and abetting of Davenport's distribution on that day. 28 Murray next argues that there was not sufficient evidence for his conviction of unlawful use of a communications facility under 21 U.S.C. Sec. 843(b). No specific drug distribution, however, had to be established by the government for the jury to infer an unlawful use of telephone communication. United States v. Pierosazio, 578 F.2d 48 (3d Cir. 1978). And the wiretap evidence overwhelmingly supports the inference that Murray unlawfully used phones to further drug conspiracy aims. 29 Murray finally argues that trial judge should have dismissed charge of aiding and abetting drug distribution by Darryl Young. Young was apparently found hiding near the premises after drugs were discovered in a Jeffersonian Apartment search. Moreover, recorded conversations between Young and Murray sufficiently demonstrate their drug-linked connections. There was sufficient evidence supporting the decision not to dismiss. 30 II. Jenkins. 31 Defendant Jenkins makes the same arguments against the wiretap orders launched by Murray. They are rejected for the same reasons as stated above. 32 As a lesser figure in the conspiracy, Jenkins' identity apparently was not known at the time of the wiretap. Yet there is no legal significance in this distinction. The government does not have to show exhaustion, futility, or danger of other investigative procedures as specifically applied to particular individuals in the conspiracy. See, e.g., United States v. Baker, 589 F.2d 1008, 1011 (9th Cir. 1978). 33 Jenkins also argues that the government failed to prove his knowing or willing participation in the conspiracy. Yet his knowing participation can unquestionably be inferred from the wiretap conversations and the evidence validly seized in various searches. 34 III. FULWYLIE. 35 Fulwylie (alias, Pete) stood trial with lead defendant Murray, Jenkins, and another person whose case is not now on appeal. His several motions for severance were rejected by the trial court. 36 Fulwylie was convicted for being directly involved in drug transactions involving government special agents. The government's main evidence against him on the conspiracy counts were some telephone conversations between defendants Murray and others about his drug dealings. The thrust of his argument is that the guilty verdict against him for the substantive violation of drug distribution cannot stand in light of his acquittal on the conspiracy charge. The common test for retroactive misjoinder, however, is presented in the following question: 'In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task may be difficult, severance should not be granted.' United States v. Martino, 648 F.2d 367, 385 (5th Cir. 1981), citing Peterson v. United States, 344 F.2d 419, 422 (5th Cir. 1965) (emphasis added). The jury's split verdict on the charges against Fulwylie suggests that it had indeed been able to separate the substantive charge of drug distribution against him from the conspiracy counts against everyone. 37 A defendant, moreover, has the burden of establishing 'compelling prejudice' in the trial court's decision not to sever his case. United States v. Warner, 690 F.2d 545, 554 (1982). It is not sufficient for a defendant to show that the evidence against him is not as substantial in comparison to the evidence against other defendants. United States v. Mayes, 512 F.2d 637, 647 (6th Cir.), cert. denied, 422 U.S. 1008 (1975). The defendant also does not need to know the full scale of the conspiracy to be charged with the offense. United States v. Shermetaro, 625 F.2d 104, 108 (6th Cir. 1980). 38 Jenkins, nevertheless, suggests that the government's only possible evidence was that of single isolated acts of distribution. This argument for severance is rebutted by United States v. Grunsfeld, 558 F.2d 1231 (6th Cir. 1977), cert. denied, 434 U.S. 1016 (1978). Defendants there similarly argued that their alleged criminal activities were limited to single and isolated incidents. They also suggested that the voluminous quantity of evidence presented in the evidence was unrelated to them and thus prejudicial. We follow Grunsfeld in rejecting this argument, because the defendant simply cannot show 'any specific instances where the jury might have been confused by the scope of the proofs or was unable to limit evidence to only one defendant when necessary.' 558 F.2d at 1237. 39 IV. Diggs. 40 Diggs appeals from the district court's denial of his pro se motion to withdraw a guilty plea before being sentenced. 41 It is undisputed that Diggs voluntarily gave up his status as a fugitive in order to enter his guilty plea. In turning himself over to the authorities, he was apparently responding to a newspaper article stating that the authorities were soon to cancel their willingness to accept plea bargains from fugitives in this drug case. 42 Diggs turned himself in at the end of the plea-bargaining period. He received court-appointed counsel and Judge Guy questioned Diggs fully about the voluntariness of his plea in court on April 7, 1984. In exchange for a guilty plea, the government promised Diggs would not be called as a witness in other related trials and that his sentence would be no more than 3 years. Diggs does not explicitly dispute any of these facts or now plead his innocence. He does not even say that his plea was involuntary. Diggs instead only characterizes his decision as 'hasty' and given when he was 'very scared.' Diggs also acknowledges that a hearing was held to consider his motion on June 28, 1983. He is thus challenging only the substantive grounds for the denial. Cf. United States v. Coure, 632 F.2d 665, 666 (6th Cir. 1980). 43 This court has stated that '[w]ithdrawal prior to sentencing is not an absolute right, rather it is within the discretion of the trial court.' Coure, supra, 632 F.2d at 666. A key consideration in evaluating withdrawal motions should be the possible prejudice to be suffered by the prosecution. Requisite prejudice would certainly seem to exist in this situation where the prosecution explicitly gave up a stiffer sentence and the right to call him as a witness in other drug-related cases. 44 This court, therefore, affirms the convictions of all defendants as to each issue raised on appeal.

247 F.2d 535 101 U.S.App.D.C. 129 Marcus SINGER, Appellant,v.UNITED STATES of America, Appellee. No. 13299. United States Court of Appeals District of Columbia Circuit. June 28, 1957. PER CURIAM. 1 It appearing to the court that the opinion of the Supreme Court in Watkins v. United States, 77 S.Ct. 1173, requires reversal of the judgment heretofore entered herein, 2 It is ordered by the court that the judgment, 244 F.2d 349, heretofore entered in this case be, and it is, vacated; that the judgment of the District Court, 139, F.Supp. 847, be, and it is, reversed, and that this case be and it is hereby remanded to the District Court with instructions to enter a judgment of acquittal.

367 F.Supp. 373 (1973) Richard MACKENSWORTH v. AMERICAN TRADING TRANSPORTATION CO. Civ. A. No. 73-943. United States District Court, E. D. Pennsylvania. November 19, 1973. *374 Cohen & Lore, Harry Lore, Philadelphia, Pa., for plaintiff. Krusen, Evans & Byrne, E. Alfred Smith, T. J. Mahoney, H. Wallace Roberts, Philadelphia, Pa., for defendant. OPINION AND ORDER EDWARD R. BECKER, District Judge. The motion now before us has stirred up a terrible fuss. And what is considerably worse, it has spawned some preposterous doggerel verse. The plaintiff, a man of the sea, after paying his lawyer a fee, filed a complaint of several pages to recover statutory wages.[1] The pleaded facts remind us of a tale that is endless. A seaman whom for centuries the law has called "friendless" is discharged from the ship before voyage's end and sues for lost wages, his finances to mend. The defendant shipping company's office is based in New York City, and to get right down to the nitty gritty, it has been brought to this Court by long arm service,[2] which has made it extremely nervous. Long arm service is a procedural tool founded upon a "doing business" rule. But defendant has no office here, and says it has no mania to do any business in Pennsylvania. Plaintiff found defendant had a ship here in June '72, but defendant says that ship's business is through. Asserting that process is amiss, it has filed a motion to dismiss. Plaintiff's counsel, whose name is Harry Lore, read defendant's brief and found it a bore. Instead of a reply brief, he acted pretty quick and responded with a clever limerick: "Admiralty process is hoary With pleadings that tell a sad story Of Libels in Rem— *375 The bane of sea-faring men The moral: Better personally served than be sorry." Not to be outdone, the defense took the time to reply with their own clever rhyme. The defense counsel team of Mahoney, Roberts, & Smith drafted a poem cutting right to the pith: "Admiralty lawyers like Harry Both current and those known from lore Be they straight types, mixed or fairy Must learn how to sidestep our bore. For Smith, not known for his mirth With his knife out for Mackensworth With Writs, papers or Motions to Quash Knows that dear Harry's position don't wash." Overwhelmed by this outburst of pure creativity, we determined to show an equal proclivity. Hence this opinion in the form of verse, even if not of the calibre of Saint-John Perse. The first question is whether, under the facts, defendant has done business here to come under Pennsylvania's long arm acts.[3] If we find that it has, we must reach question two, whether that act so applied is constitutional under Washington v. International Shoe.[4] Defendant runs a ship known as the SS Washington Trader, whose travels plaintiff tracked as GM is said to have followed Nader. He found that in June '72 that ship rested its keel and took on a load of cargo here which was quite a big business deal. In order for extraterritorial jurisdiction to obtain, it is enough that defendant do a single act in Pa. for pecuniary gain. And we hold that the recent visit of defendant's ship to Philadelphia's port is doing business enough to bring it before this Court. We note, however, that the amended act's grammar[5] is enough to make any thoughtful lawyer stammer. The particular problem which deserves mention is whether a single act done for pecuniary gain also requires a future intention. As our holding suggests, we believe the answer is no, and feel that is how the Pa. appellate cases will go. Further, concerning § (a)(3)'s "shipping of merchandise" *376 the future intention doctrine has already had its demise.[6] We do not yet rest our inquiry, for as is a judge's bent, we must look to see if there is precedent.[7] And we found one written in '68 by three big wheels on the Third Circuit Court of Appeals. The case, a longshoreman's personal injury suit, is Kane v. USSR, and it controls the case at bar. It's a case with which defendants had not reckoned, and may be found at page 131 of 394 F.2d. In Kane, a ship came but once to pick up stores and hired as agents to do its chores a firm of local stevedores. Since the Court upheld service on the agents, the case is nearly on all fours, and to defendant's statutory argument Kane closes the doors. Despite defendant's claim that plaintiff's process is silly, there have been three other seamen's actions against defendant, with service in Philly. And although they might have tried to get the service corrected, the fact of the matter is they've never objected.[8] We turn then to the constitutional point, and lest the issue come out of joint, it is important that one thought be first appended: the reason the long arm statute was amended. The amendment's purpose was to eliminate guess and to extend long arm service to the full reach of due process.[9] And so we now must look to the facts to see if due process is met by sufficient "minimum contacts."[10] The visit of defendant's ship is not yet very old, and so we feel constrained to hold that under traditional notions of substantial justice and fair play,[11] defendant's constitutional argument does not carry the day. This Opinion has now reached its final border, and the time has come to enter an Order, which, in a sense, is its ultimate crux, but alas, plaintiff claims under a thousand bucks. So, while trial counsel are doubtless in fine fettle, with many fine fish in their trial kettle, we urge them not to test their mettle, *377 because, for the small sum involved, it makes more sense to settle. In view of the foregoing Opinion, at this time we enter the following Order, also in rhyme. ORDER Finding that service of process is bona fide, the motion to dismiss is hereby denied. So that this case can now get about its ways, defendant shall file an answer within 21 days. NOTES [1] nautical terms, the wage statute is stowed at § 594 of 46 U.S.Code. [2] arm service is effected, not by stealth, but through the Secretary of the Commonwealth. [3] to relieve the plaintiff's service burdens, Pennsylvania's latest long arm law may be found at § 8309 of 42 Purdon's. [4] decision of the Supreme Court of Courts may be found at page 310 of 326 U.S. Reports. [66 S.Ct. 154, 90 L.Ed. 95] [5] The words of the statute are overly terse, still we will quote them, though not in verse: (a) General rule.—Any of the following shall constitute "doing business" for the purposes of this chapter: . . . . . (2) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts. (3) The shipping of merchandise directly or indirectly into or through this Commonwealth. 42 Pa. S. § 8309. [6] See Aquarium Pharmaceuticals Inc. v. Industrial Pressing and Packaging (E.D.Pa. 1973). Prospects for suit on a single goods shipment are decidedly greener because of the Aquarium decision of Judge Charles R. Weiner, holding that, in a goods shipment case no future intention is needed; the message of Aquarium we surely have heeded. Anyone who wishes to look Aquarium up can find it at p. 441 of 358 F.Supp. [7] thus reject the contention that one of the judicial vices is too much reliance on stare decisis. [8] Berrios v. American Trading & Production Co. (AT&P) (defendant's predecessor), C.A. 68-47; Gibson v. AT&P, C.A. 68-1466. And in Battles v. AT&P., C.A. 73-102, in this very annum, service on the Secretary of the Commonwealth was authorized by Judge John B. Hannum. [9] See Aquarium Pharmaceuticals Inc. v. Industrial Presing & Packaging, supra, at 444. [10] See International Shoe v. State of Washington, supra, at 316. [11] See id.

249 Md. 233 (1968) 238 A.2d 863 HOWARD v. BISHOP BYRNE COUNCIL HOME, INC. [No. 139, September Term, 1967.] Court of Appeals of Maryland. Decided March 7, 1968. *234 The cause was argued before HAMMOND, C.J., and MARBURY, BARNES, FINAN and SINGLEY, JJ. Martin E. Gerel for appellant. Gilbert R. Giordano, with whom was Gary R. Alexander on the brief, for appellee. FINAN, J., delivered the opinion of the Court. Again this Court is asked to overthrow the long established doctrine of immunity of charitable organizations from tort liability, for the reasons that it remains an anachronism, a slave of stare decisis, a source of wrongs committed without a remedy, and against the "weight" of modern authority. These arguments have all been presented before this Court at some time or another, and, of course, have been found not persuasive. However, since our last review of this subject in 1959, a wealth of recent authority, both in favor of and opposed to charitable immunity, has developed; it appears timely to again discuss the question in light of both the established Maryland policy and the respected authorities from our sister states. Appellant Russell G. Howard was employed as a laborer by Harris & Brooks, Inc., which had contracted with the appellee to participate in the clearing of a lot owned by the appellee in Oxon Hill. Evidently the appellee expected to construct a building on the lot, but the record remains silent as to the exact nature of the intended building. On April 7, 1966, the appellant was seriously injured when struck by a falling tree which had been cut by an employee or servant of the appellee. Suit was filed, and the appeal is taken from the action of the lower court sustaining the appellee's motion raising preliminary objection to the appellant's declaration. The appellant concedes that the appellee is a charitable, non-profit corporation. The Maryland law of charitable immunity is familiar to most attorneys, since it has as its root one of the first cases in the *235 United States to decide the issue. Almost all authorities which undertake a detailed analysis of this aspect of tort law, especially those decisions which abrogate the doctrine, have noted that Perry v. House of Refuge, 63 Md. 20 (1885) and MacDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876) were both based on English cases which had been overruled as early as 1866. The Perry case adopted the "trust fund" theory of immunity on the authority of the Massachusetts case, and Lord Cottenham's statement in Feofees of Heriot's Hospital v. Ross, 12 Clark & Fin. 507, 513, 8 Eng. Reprint 1508, 1510 (1846), that: "To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose." Both Massachusetts and Maryland appeared nonconversant with the fact that the English case had been overruled by Foreman v. Mayor of Canterbury, [1871] L.R. 6 Q.B. 214, following the rule in Mersey Docks v. Gibbs, [1866] L.R. 1 H.L. 93. The second case to reach the Court of Appeals was Loeffler v. Sheppard-Pratt Hospital, 130 Md. 265, 100 A. 301 (1917). After distinguishing the three theories used to justify charitable immunity (trust fund, respondeat superior and implied consent), this Court stated that the trust fund theory was "firmly established law in Maryland." Thirty years later the Court decided Howard v. South Baltimore General Hospital, 191 Md. 617, 62 A.2d 574 (1948), the first Maryland case involving a patient at a non-profit hospital. A number of states have distinguished between the functions and financial posture of a non-profit hospital on one hand and a religious or eleemosynary institution on the other. As will be seen shortly in this opinion, this distinction has led to somewhat contradictory results whereby in some states immunity has been granted, and in others immunity denied, because of the fact that the particular defendant was a hospital. In Howard, however, the Court made no such distinction, but instead articulated the first of several statements to the effect that to withdraw immunity would be an *236 act of judicial legislation in the face of both strong public policy and a legislative expression to the contrary. This reference to the Legislature opened a discussion on the history of what is now Code 1957, Art. 48A, § 480 (1964 Repl. Vol.). This Court noted that in 1947 the General Assembly declined to enact House Bill 99, which would have estopped any charitable institution from pleading immunity as a defense to a tort claim. Instead, it adopted the Senate version (S.B. 411), which estops a liability insurer from setting up the charitable immunity of the insured. That became Art. 48A, § 85 of the Code, repealed and reenacted as Art. 48A, § 480 by Chapter 553, Laws of Maryland 1963. The Court in Howard and later cases made it plain that the Legislature had broached the entire problem, and had resolved it in its own manner. "* * * the Legislature may well have had in mind the fact that, except to the extent of the premium voluntarily paid, there would be no invasion of the trust funds, upon which the rule of immunity was largely predicated." State v. Arundel Park Corp., 218 Md. 484, 488, 147 A.2d 427 (1959). See also Gorman v. St. Paul Fire & Marine Ins. Co., 210 Md. 1, 121 A.2d 812 (1956); Thomas v. Prince George's County Commissioners, 200 Md. 554, 92 A.2d 452 (1952). Most recently, in Cornelius v. Sinai Hospital of Baltimore, 219 Md. 116, 148 A.2d 567 (1959), the Court, per curiam, restated its firm adherence to the settled Maryland rule granting immunity, but left the door open for the Legislature to step in should it sense the demand or desire. To date, the rule of Perry v. House of Refuge, supra, stands, tempered only by statutory provisions directed to the insurer (Art. 48A, § 480) and Art. 43, § 556A (1965 Repl. Vol.), which will be discussed shortly in this opinion. With the Maryland law thus established, we now focus on what the appellant calls the "overwhelming body of judicial reasoning" abolishing the rule. Certainly, the reports are replete with decisions on point. However, a comprehensive review in this opinion would only serve as a repetition of the compilations found in several authorities. See, e.g., Justice Rutledge's landmark opinion in President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir.1942); *237 Rabon v. Rowan Memorial Hospital, Inc., 152 S.E.2d 485, 496-498 (N.C. 1967); Flagiello v. Pennsylvania Hospital, 208 A.2d 193 (Pa. 1965); Prosser, Torts § 127 (3d Ed. 1964); Annot. 25 A.L.R.2d 29 (1952). After studying these authorities, as well as the more recent rulings in other states, we cannot conclude that Maryland is still attempting to breathe life into a dead law. What is indicated, however, is that of the forty seven states to decide the question,[1] less than one-half (twenty) have completely abandoned charitable tort immunity. Eight states agree with Maryland that, as a matter of public policy, eleemosynary institutions should be immune from liability to tort claimants, either on the theory that the charitable assets are placed in trust for charitable purposes,[2] or that the doctrine of respondeat superior does not apply to religious or charitable organizations.[3] Two of these states, Missouri[4] and South Carolina,[5] have even gone so far as to rule that a charitable corporation may set up its immunity even though it carries liability insurance. At the other end of the spectrum are the twenty states and the District of Columbia which have in effect totally abandoned charitable immunity, and now hold all such institutions amenable to suit, and their property subject to attachment.[6] *238 Most jurisdictions, however, are reluctant to totally withdraw immunity, and, therefore, they set up important distinctions. As a consequence, we discover that in most states, liability will depend on the type of negligence, the function of the charitable institution at the time of the injury, the presence of liability insurance or any combination of these factors. For instance, in Nebraska, charitable hospitals are not immune to suit by a patient for negligence, but liability is limited to the effective insurance coverage. Myers v. Drozda, 141 N.W.2d 852 (Neb. 1966). To this extent, the rule is similar to Maryland. See Code 1957, Art. 43, § 556A (1965 Repl. Vol.). Both Arkansas[7] and Maine,[8] which were previously cited as retaining total immunity, also provide by statutes similar to Maryland that a charitable institution may be liable to the extent of its effective insurance coverage. Georgia has held that a liability policy represents a non-charitable asset which may support a cause of action.[9] And in a recent case, the Supreme Court of Indiana withdrew immunity from hospitals but expressly declined *239 to decide whether the doctrine of charitable immunity existed in that state. It did, however, recommend that the state legislature take action to authorize the purchase of liability insurance by charities, limiting liability to the amount of the coverage.[10] We note that Indiana and Nebraska are just two of several states, perhaps the majority of states, that treat hospitals as a separate class of charitable institutions. As noted above Maryland also draws the distinction by statute. The reason for separate treatment was well summarized by the Supreme Court of Appeals of West Virginia in Adkins v. St. Francis Hospital of Charleston, West Virginia, 143 S.E.2d 154, 158 (W. Va. 1965): "In the early days of our society hospitals bore the true character of charitable institutions. They were a haven for the indigent ill, lame and disabled. The expense of their operation and maintenance was, for the most part, borne by contributions from charitably inclined citizens. The indigent rarely paid for services rendered to him. Charity in its true sense prevailed. "Today the concept of the hospital has changed materially. The worn, run-down accommodations have been replaced by modern buildings of brick, glass and steel. No longer are they reserved for the indigent ill, but are available to and are commonly used by people of all economic levels. They are staffed by trained physicians, surgeons, nurses and other employees. Available therein is the finest equipment devised by medical science. All of this is for the benefit of the patient. However, as heretofore noted, the modern hospital operates on a businesslike basis and, in that stature, must be responsible for all of its obligations."[11] Prior to the above case, West Virginia had followed the rule *240 presently enforced in Virginia that all eleemosynary institutions are liable for their own torts, but hospitals were excepted, so long as reasonable care was exercised in the selection of staff and employees. See Roanoke Hospital Ass'n v. Hayes, 133 S.E.2d 559 (1963).[12] Virginia bases this rule on "public policy," apparently with the thought in mind that hospital procedures are accompanied by a certain element of danger, and patients would take advantage of this situation to deplete the limited funds of the hospital. One might characterize this as a coalescing of the trust fund and the implied consent theories of immunity. We do not necessarily support nor do we condemn this reasoning. However, we note with interest that at least two states reinstated hospital immunity by statute shortly after their respective high courts abandoned the charitable immunity doctrine,[13] whereas at least two other jurisdictions originally withdrew immunity from hospitals and only later did they abrogate the rule completely.[14] Finally, we recognize that several *241 decisions have on the surface imposed liability upon all charitable and religious institutions where, in fact, the cases involved the extension of respondeat superior to charitable hospitals.[15] One might well argue that the liability of a charitable institution, such as a church, to one not a beneficiary of the charity, such as a workman, is still an open question in those jurisdictions. By reading the cases cited, plus numerous earlier decisions, the inescapable conclusion is reached that both imposition and abrogation of the immunity doctrine are products of specific circumstances. There is no universal sentiment charging charitable tort immunity to be unconscionable, a state subsidy to religious organizations or a deprivation of equal protection of the laws. Where states have chopped away at the doctrine, it has mostly been by processes of attrition and piecemeal adjudication, often accompanied by legislation amending the state insurance code. Most important, however, is the fact that the majority of states have either limited liability to, or at the very least, based the rule of liability upon, situations involving hospitals, which Maryland has already covered by statute. Art. 43, § 556A specifically prevents a hospital from defending a tort suit on the basis of charitable immunity. It provides, however, that if such a hospital is insured for an amount not less than $100,000, liability is limited to the amount of the policy coverage. We again restate our opinion that the General Assembly has completely investigated the immunity question, and the present statutes are tangible evidence that the Legislature arrived at *242 a solution which it deemed satisfactory. In response to appellant's contention that a judicially created rule of law based on public policy may be judicially repealed, we need only quote a portion of the recent case of Watkins v. Southcrest Baptist Church, 399 S.W.2d 530, 533 (Texas 1966), with which we are in full agreement: "The principle of vicarious liability based upon the rule of respondeat superior is essentially a public policy doctrine * * *. [We might very well substitute the trust fund theory for respondeat superior.] Courts have applied the rule to certain factual situations and refused to apply it to others. When the application of the doctrine has been determined by court decisions, a change in application may be judicially effected. The situation is not the same as a judicial repeal of a statute for example. However, there is a case for a legislative rather than a judicial change of court created policy rules. Statutes effecting policy changes operate prospectively and are generally adopted following a period of deliberation accompanied by a sufficient and practical notice to all those who might be affected thereby. In fixing classifications of charitable institutions (for example) such as churches, hospitals, schools, etc. and prescribing limits of liability, the legislative power is much more flexible and amenable to particular needs and detailed requirements than is the judicial process." The appellant also raises the argument that a charitable organization should not be immune from torts committed by its servants, where the charity has failed to use reasonable care in the selection of such servants. Admittedly, several other jurisdictions follow this qualification to the immunity rule.[16] It suffices *243 to say that this court has never in the past distinguished between an employee's negligence and the "corporate" negligence of the charitable institution in hiring an employee. As a final proposition, the appellant would have us hold that a charitable institution is liable for torts committed by its servants in the course of non-charitable activities. We are not prepared, nor are we inclined to admit the soundness of this rule. Aside from raising detailed factual investigations and queries as to what is a proprietary as opposed to charitable function (how does one classify the activity of a church bazaar, for example?), we are of the opinion that the facts before us do not indicate the purpose for clearing the land, nor do they shed any light on what was to be constructed there in the future. A resolution of this legal question in light of the dearth of relevant facts before us would be premature on our part. Order affirmed, with costs. NOTES [1] Hawaii, Mexico and South Dakota have neither decided the point judicially, nor treated it by statute. [2] Webb v. Blount Memorial Hospital, 196 F. Supp. 114 (E.D. Tenn. 1961); Helton v. Sisters of Mercy of St. Joseph's Hospital, 351 S.W.2d 129 (Ark. 1964); Hemenway v. Presbyterian Hosp. Ass'n of Colo., 419 P.2d 312 (Colo. 1966); Rhoda v. Aroostook General Hosp., 226 A.2d 530 (Me. 1967); Harrigan v. Cape Cod Hosp., 208 N.E.2d 232 (Mass. 1965); Schulte v. Missionaries of La Salette Corp. of Mo., 352 S.W.2d 636 (Mo. 1961); Decker v. Bishop of Charleston, 147 S.E.2d 264 (S.C. 1966). [3] Watkins v. Southcrest Baptist Church, 399 S.W.2d 530 (Texas 1966). [4] Schulte v. Missionaries of La Salette Corp. of Mo., 352 S.W.2d 636 (Mo. 1961). [5] Decker v. Bishop of Charleston, 147 S.E.2d 264 (S.C. 1966). [6] Nevada: N.R.S. 41:480; President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir.1942); Tuengel v. City of Sitka, Alaska, 188 F. Supp. 399 (D. Alas. 1954); Ray v. Tucson Medical Center, 230 P.2d 220 (Ariz. 1951); Malloy v. Fong, 232 P.2d 241 (Calif. 1951); Durney v. St. Francis Hosp., Inc., 83 A.2d 753 (Del. 1951); Suwannee County Hosp. Corp. v. Golden, 56 So.2d 911 (Fla. 1952); Bell v. Presbytery of Boise, 421 P.2d 745 (Idaho 1966); Neely v. St. Francis Hosp. & School of Nursing, 391 P.2d 155 (Kan. 1964); Mullikin v. Jewish Hospital Ass'n, 348 S.W.2d 930 (Ky. 1961); Miller v. Macalester College, 115 N.W.2d 666 (Minn. 1962); Mississippi Baptist Hospital v. Holmes, 55 So.2d 142 (Miss. 1951); Dowd v. Portsmouth Hospital, 193 A.2d 788 (N.H. 1963); Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957); Gable v. Salvation Army, 100 P.2d 244 (Okla. 1940); Hungerford v. Portland Sanitarium & Benevolent Ass'n, 384 P.2d 1009 (Ore. 1963); Flagiello v. Pennsylvania Hospital, 208 A.2d 193 (Pa. 1965); Foster v. Roman Catholic Diocese of Vermont, 70 A.2d 230 (Vt. 1950); Friend v. Cove Methodist Church, Inc., 396 P.2d 546 (Wash. 1964); Adkins v. St. Francis Hosp. of Charleston, West Virginia, 143 S.E.2d 154 (W. Va. 1965); Widell v. Holy Trinity Catholic Church, 121 N.W.2d 249 (Wis. 1963). [7] 6 Ark. Stat. Ann. § 66-3240 (1966 Repl. Vol.), grants direct action against the insurer. See Ramsey v. American Automobile Ins. Co., 356 S.W.2d 236 (Ark. 1962). [8] 14 M.R.S.A. § 158 (effective Feb. 8, 1966), estops both the charitable institution and the insurer from setting up the immunity. See Rhoda v. Aroostook General Hospital, 226 A.2d 530 (1967). [9] Morehouse College v. Russell, 135 S.E.2d 432 (1964). [10] Ball Memorial Hospital v. Freeman, 196 N.E.2d 274 (1964). [11] North Carolina is another state which has just recently abrogated the doctrine which it formerly applied only to beneficiaries of the charitable services. See Quick v. High Point Memorial Hospital, Inc., 152 S.E.2d 527 (1967). [12] The rule in Louisiana is similar. Humphreys v. McComiskey, 159 So.2d 380 (La. App. 1964). However, the state insurance code provides for direct action against the insurer. La. R.S.A. 22-655. And it has been held that an insurer may not raise a defense personal to the insured. Hill v. Eye, Ear, Nose & Throat Hosp., 200 So.2d 34 (1967). [13] See Noel v. Menninger Foundation, 267 P.2d 934 (Kan. 1954), which was followed in 1959 by K.S.A. 17-1725, which gave the property of charitable hospitals immunity from attachment or collection except from governmental or contractual debts. The statute was held to be unconstitutional in Neely v. St. Francis Hosp., 391 P.2d 155 (1964). The other state is Rhode Island. In the recent Pennsylvania case of Flagiello v. Pennsylvania Hospital, 208 A.2d 193 (1965), Justice Musmanno noted that "Rhode Island, a state * * * with a wisdom and courage in inverse proportion to its geographical size, declared that a maltreated hospital patient was entitled to recover for damage done him." This reference was to Glavin v. Rhode Island Hospital, 12 R.I. 411 (1897), apparently the first American case to reject the immunity doctrine. Unfortunately, the Pennslyvania Court did not mention the fact that, in 1896, Rhode Island passed G.L. 7-1-22, removing respondeat superior as a source of hospital liability. See Fournier v. Miriam Hospital, 175 A.2d 298 (R.I. 1961). [14] Washington: Friend v. Cove Methodist Church, Inc., 396 P.2d 546 (1964) extended the rule of Pierce v. Yakima Valley Memorial Hospital Ass'n, 260 P.2d 765 (1953). Wisconsin: Widell v. Holy Trinity Catholic Church, 121 N.W.2d 249 (1963) extended the rule of Kojis v. Doctors Hospital, 107 N.W.2d 131, 107 N.W.2d 292 (1961). [15] Howard v. Sisters of Charity of Leavenworth, 193 F. Supp. 191 (D. Mont. 1961); Wittmer v. Letts, 80 N.W.2d 561 (Iowa 1957); Parker v. Port Huron Hospital, 105 N.W.2d 1 (Mich. 1960); Rabon v. Rowan Memorial Hospital Inc., 152 S.E.2d 485 (N.C. 1967); Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 (N.D. 1965); Jones v. Hawkes Hospital of Mt. Carmel, 196 N.E.2d 592 (Ohio 1964); Sessions v. Thomas D. Dee Memorial Hospital Ass'n, 78 P.2d 645 (Utah 1938); Bishop Randall Hospital v. Hartley, 160 P. 385 (Wyo. 1916). [16] Bader v. United Orthodox Synagogue, 172 A.2d 192 (Conn. 1961); Humphreys v. McComiskey, 159 So.2d 380 (La. App. 1964); Rhoda v. Aroostook General Hosp., 226 A.2d 530 (Me. 1967); Watkins v. Southcrest Baptist Church, 399 S.W.2d 530 (Texas 1966); Roanoke Hospital Ass'n v. Hayes, 133 S.E.2d 559 (Va. 1963); Bishop Randall Hospital v. Hartley, 160 P. 385 (Wyo. 1916).

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0002-08 DARRELL JAY KEEHN, Appellant v. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS WICHITA COUNTY K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., M EYERS, P RICE, W OMACK, J OHNSON, H ERVEY, and C OCHRAN, JJ., joined. H OLCOMB, J., concurred. OPINION After seeing a propane tank containing anhydrous ammonia in a van parked in Darrell Jay Keehn’s driveway, law enforcement officials entered the van and seized the tank without a warrant. The court of appeals held that the seizure was lawful under the plain view exception or, alternatively, under the automobile exception.1 We affirm its judgment but 1 Keehn v. State (Keehn III), 245 S.W.3d 614, 615-16 (Tex. App.—Fort Worth 2008).  KEEHN—2 hold that the search was lawful under the automobile exception. Background Keehn was charged with possession of anhydrous ammonia with intent to manufacture methamphetamine. Before trial, he filed a motion to suppress the propane tank, containing the anhydrous ammonia, that was seized from the minivan parked in his driveway during a warrantless search. The trial judge held a suppression hearing. At the hearing, Deputy Monty Deford with the Wichita County Sheriff’s Office testified that he was investigating a theft at a house near 1811 Cameron Lane. Keehn and his girlfriend, Julianne Dickson-Stevens, lived at 1811 Cameron Lane. The victim of the theft reported seeing a male and female run to the back of the house at 1811 Cameron Lane and that, a few minutes later, a minivan left the house. He tried to stop the van but was unsuccessful. While investigating the theft, Deputy Deford went to 1811 Cameron Lane several times looking for the van, but it was not there. Days later, when Deputy Deford spotted the van parked in the driveway beside the house, he decided to talk to the residents about the theft. As he walked up the driveway to the front door, Deputy Deford looked into the van’s passenger-side windows, which he testified were slightly tinted. He saw a five-gallon propane tank in the back of the van and noticed that the “cutting of the tank” had a bluish- greenish discoloration. Based on his experience, Deputy Deford concluded that the tank contained anhydrous ammonia, which is used to manufacture methamphetamine. He  KEEHN—3 proceeded to the house and knocked on the door. He heard “a bunch of rustling around the inside of the residence.” After knocking for “some time,” he returned to his vehicle and requested the assistance of other members of the Sheriff’s Department. And, because of the propane tank, he requested the assistance of the Wichita Falls Police Department’s North Texas Drug Task Force. After other officers from the Sheriff’s Department arrived, Deputy Deford went to the door of the house and knocked again. Keehn responded, and Deputy Deford told him that he was investigating the theft. Deputy Deford and the other officers entered the house. Deputy Deford asked Keehn about the theft. Officer John Spragins, a member of the North Texas Drug Task Force, arrived shortly after Deputy Deford and the other officers entered the house. Officer Spragins received specialized training regarding the investigation and production of methamphetamine in Quantico, Virginia from the Drug Enforcement Agency. He was also involved in investigating methamphetamine production in North Texas. Recalling Keehn’s case, Officer Spragins testified that, after speaking with officers from the Sheriff’s Department and Keehn inside the house, he went to the van and looked in the windows. He testified that the windows were not tinted. He saw the propane tank and noticed that the valve was discolored and looked like it had been modified in some way. Based on his training and experience, Officer Spragins also believed that the tank contained anhydrous ammonia. Officer Spragins entered the van, seized the tank, and tested the tank for ammonia. The test yielded a positive  KEEHN—4 result, and Spragins arrested Keehn for possession. Keehn testified that, when he was questioned about the van, he told the officers that the van belonged to his friend, Trey Hopkins. According to Keehn, Hopkins was trying to sell him the van and left it at Keehn’s house for two months because he did not have any other place to store it. Keehn said that he drove the van for the first month but that he had not driven it for the past month. Keehn testified that he did not give the officers permission to enter the van to seize the tank. The trial judge denied Keehn’s motion to suppress. In doing so, he stated: 1. The defendant had standing to complain about the search of the van parked by his house. 2. The propane tank found in the referenced van was in plain view to officers as they made their way to the front door of the defendant’s house on the normal course used to reach the front door. 3. The peace officers had a right to be in the place they were to see the propane tank. 4. The propane tank had discoloration consistent with tanks that contained anhydrous ammonia. 5. The propane tank was not designated to contain anhydrous ammonia. 6. The peace officers had probable cause to believe that a crime was being committed and therefore had the right to seize the propane tank from the van. Keehn later pled guilty to the charge, and he was sentenced to seven years’ imprisonment. Keehn preserved his right to appeal the trial judge’s decision to deny his motion to suppress. Court of Appeals On appeal, Keehn claimed that the trial judge erred in overruling his motion to suppress because: (1) Deputy Deford and Officer Spragins were not lawfully in his driveway  KEEHN—5 when they saw the propane tank; (2) it was not immediately apparent to Deputy Deford or Officer Spragins that the propane tank was evidence of a crime; and (3) Officer Spragins’s entry into the van was unlawful under the plain view exception to the warrant requirement.2 Responding to Keehn’s first argument, the Fort Worth Court of Appeals held that “law enforcement officers had a right to be where they were when they observed the propane tank.” 3 Taking into account Officer Spragins’s training and experience, the court found that Officer Spragins’s testimony established that it was immediately apparent to him that the propane tank constituted evidence of a crime.4 As a result, the court found that the plain view exception to the warrant requirement applied to this case and overruled Keehn’s point of error.5 After the court of appeals denied his motion for rehearing, Keehn filed a petition for discretionary review. He claimed that the court of appeals ignored his argument that the plain view doctrine did not justify the warrantless entry into the van.6 We agreed and remanded the case to the court of appeals.7 2 Keehn v. State (Keehn I), 223 S.W.3d 53, 55-56 (Tex. App.—Fort Worth 2007). 3 Id. at 58. 4 Id. at 59. 5 Id. 6 Keehn v. State (Keehn II), 223 S.W.3d 348, 349 (Tex. Crim. App. 2007) (per curiam). 7 Id.  KEEHN—6 Outwardly displeased with our decision, the court of appeals declared that it had addressed every issue Keehn raised.8 Nevertheless, the court went on to hold: To the extent that Keehn’s sole issue contains a sub-argument that the plain view doctrine did not authorize the officers to open the unlocked door of the van to seize the propane tank, when, for the reasons set forth in our prior opinion they had a lawful right to be on Keehn’s driveway where they observed the tank, and which, for the reasons set forth in our prior opinion, they had probable cause to believe constituted evidence of a crime, we expressly reject that argument.9 The court also held, in the alternative, that the police had the authority to open the van and seize the tank pursuant to the automobile exception.10 The court then affirmed the trial court’s judgment.11 Appellant’s Petition for Discretionary Review We granted Keehn’s petition for discretionary review to decide whether the court of appeals erred in holding that the warrantless entry into the van in Keehn’s driveway was justified under the plain view or automobile exceptions to the Fourth Amendment’s warrant requirement. 8 Keehn III, 245 S.W.3d at 615. 9 Id. (citing Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000); Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996); State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991); Ramirez v. State, 105 S.W.3d 730, 745 (Tex. App.—Austin 2003, no pet.)). 10 Id. at 616 n.3 (citing Maryland v. Dyson, 527 U.S. 465, 467 (1999); Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991)). 11 Id.  KEEHN—7 Initially, we note that Keehn also challenged the search and seizure under Article I, Section 9 of the Texas Constitution on appeal. Keehn, however, failed to separately brief the state constitutional issue in the court of appeals 12 and, as a result, the court of appeals did not reach that issue. Because our authority on discretionary review is limited to reviewing decisions of the court of appeals, we cannot consider Keehn’s state constitutional claim.13 Discussion When a trial judge enters findings of fact after denying a motion to suppress, an “appellate court [must first] determine[] whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports these fact findings.” 14 If the findings are supported by the record, appellate courts will “afford almost total deference to a trial court’s determination of the historical facts” when they “are based on an evaluation of credibility and demeanor.” 15 Appellate courts give “the same amount of deference” to “‘mixed questions of law and fact[]’ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.” 16 But when the resolution of mixed law and fact questions do not depend upon an evaluation of credibility and demeanor, appellate courts are permitted to 12 See generally Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998). 13 T EX. R. A PP. P. 66.1. 14 State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). 15 Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 16 Id.  KEEHN—8 conduct a de novo review.17 The court of appeals reached the correct result but erred in upholding the trial judge’s ruling under the plain view exception. This case illustrates the nuances involving the plain view and the automobile exceptions to the Fourth Amendment’s warrant requirement. A seizure of an object is lawful under the plain view exception if three requirements are met. First, law enforcement officials must lawfully be where the object can be “plainly viewed.” 18 Second, the “incriminating character” of the object in plain view must be “‘immediately apparent’” to the officials.19 And third, the officials must have the right to access the object.20 In his petition and brief, Keehn focuses on the third requirement, arguing that Officer Spragins did not have a lawful right under the plain view doctrine to enter the van and seize the propane tank without a warrant. We agree. Plain view, in the absence of exigent circumstances, can never justify a search and seizure without a warrant when law enforcement officials have no lawful right to access an object.21 The court of appeals therefore was mistaken in upholding the seizure of the tank under the plain view exception 17 Id. 18 Horton v. California, 496 U.S. 128, 136 (1990). 19 Id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (plurality opinion)). 20 Id. at 137. 21 Id. 137 n.7 (quoting Coolidge, 403 U.S. at 468 (plurality opinion).  KEEHN—9 because Officer Spragins had no lawful right, absent some exception to the warrant requirement, to enter the van.22 The court of appeals did, however, correctly cite the automobile exception,23 even though it erred in relying on it as an alternative holding. Under the automobile exception, law enforcement officials may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband.24 There are two justifications behind this exception. First, the “ready mobility” of a vehicle creates “an exigency . . . .” 25 Second, an individual has a reduced expectation of privacy in a vehicle because it is subject to “pervasive [government] regulation.” 26 Keehn argues that the automobile exception does not apply in this case because the van was parked in his driveway. Keehn contends that the automobile exception applies only when a vehicle is located in a public place that is not regularly used for residential purposes. 22 Id. at 135-36 (“The doctrine [of plain view] serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits a warrantless seizure”) (quoting Coolidge, 403 U.S. at 465-66 (plurality opinion). 23 Keehn III, 245 S.W.3d at 616 n.3. 24 California v. Carney, 471 U.S. 386, 393 (1985); Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). 25 Labron, 518 U.S. at 940 (citing Carney, 471 U.S. at 390-91; Carroll v. United States, 267 U.S. 132, 153 (1925)). 26 Id. (citing Carney, 471 U.S. at 391-92).  KEEHN—10 Supporting this argument, Keehn points us to the following statement from the United States Supreme Court’s opinion in Carney v. California: “When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes—temporary or otherwise—the two justifications for the vehicle exception come into play.” 27 Keehn’s narrow reading of Carney is incorrect. Carney involved a warrantless search of a motor home parked in a public lot in downtown San Diego, California.28 The Court upheld the search noting that, although the vehicle “possessed . . . many of the attributes of a home,” it was readily mobile and subject to regulation.29 The Court also stated that an “objective observer would conclude that it was being used not as a residence, but as a vehicle.” 30 Given the particular facts of Carney, the quoted text above strongly suggests that the location of a motor home is extraordinarily important when determining whether to characterize it as a vehicle or residence under Fourth Amendment jurisprudence, which recognizes that individuals possess a greater privacy interest in a fixed residence.31 Carney’s reference to “a place not regularly used for residential purposes” in no way stands as a per 27 Carney, 471 U.S. at 392-93. 28 Id. at 388. 29 Id. at 393. 30 Id. 31 Id. at 390.  KEEHN—11 se bar on the application of the automobile exception to a vehicle parked in the driveway of a private residence. Indeed, our reading of the quoted text is reinforced by the Court’s observation that it did not have to decide whether the automobile exception applies to “a motor vehicle that is situated in a way or place that objectively indicates that it is being used as a residence.” 32 Furthermore, numerous other courts have adopted our reading of Carney when confronted with the same argument that Keehn advances here.33 The automobile exception gave Officer Spragins the right to enter the van and seize the propane tank. The van was readily mobile, as demonstrated by Keehn’s use of it days before the search, and it was subject to regulation. And based on his training and investigative experience concerning the production of methamphetamine, Officer Spragins had probable cause to believe that the tank contained anhydrous ammonia. Conclusion The seizure of the propane tank from the van parked in Keehn’s driveway was lawful under the automobile exception to the warrant requirement. Therefore, the court of appeals did not err in affirming the trial court’s judgment. 32 Id. at 394 n.3. 33 Harris v. State, 948 So. 2d 583, 591 (Ala. Crim. App. 2006) (citing State v. Cox, 351 S.E.2d 570, 571-72 (S.C. 2006); United States v. Brookins, 345 F.3d 231, 237-38 (4th Cir. 2003); State v. Marquardt, 635 N.W.2d 188, 200 (Wis. Ct. App. 2001); United States v. Fladten, 230 F.3d 1083 (8th Cir. 2000); United States v. Markham, 844 F.2d 366 (6th Cir. 1987); United States v. Moscatiello, 771 F.2d 589 (1st Cir. 1985), vacated on other grounds sub nom. Carter v. United States, 476 U.S. 1138 (1986); United States v. Hamilton, 792 F.2d 837 (9th Cir. 1986); People v. Garvin, 597 N.W.2d 194 (Mich. App. 1999); Commonwealth v. A Juvenile (No. 2), 580 N.E.2d 1014 (Mass. 1991)).  KEEHN—12 DATE DELIVERED: March 25, 2009 PUBLISH 

463 F.2d 1338 Sandra Lee BECKER, etc., et al., Plaintiffs, Richard GuySteffel, Plaintiff-Appellant,v.John R. THOMPSON, etc., et al., Defendants-Appellees. No. 71-1856. United States Court of Appeals, Fifth Circuit. July 20, 1972. Appeal from the United States District Court for the Northern District of Georgia, Albert J. Henderson, Jr., Judge, 334 F.Supp. 1386. Howard Moore, Jr., Peter E. Rindskopf (deceased), Elizabeth Roediger Rindskopf, William R. Gignilliat, III, William H. Traylor, John R. Myer, Atlanta, Ga., for plaintiff-appellant. Robert E. Mozley, George P. Dillard, Decatur, Ga., Dock H. Davis, Atlanta, Ga., for defendants-appellees. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion May 3, 1972, 5 Cir., 1972, 459 F.2d 919). Before TUTTLE, GEWIN and DYER, Circuit Judges. PER CURIAM: 1 The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied. 2 GEWIN and DYER, Circuit Judges, specially concurring: 3 The full court has considered the views of Judge Tuttle, expressed in concurrence, and has further considered the suggestion that the panel has been overruled by Lake Carriers' Association v. MacMullan, 1972, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257. 4 Lake Carriers' is an abstention case, and as Justice Brennan points out, "[T]he question of abstention, of course is entirely separate from the question of granting declaratory or injunctive relief." 406 U.S. at 509, 92 S.Ct. at 1756. Significantly, he also points out that in Lake Carriers', unlike Becker, there is an "absence of an immediate threat of prosecution." Id. at 511, 92 S.Ct. at 1757. Justice Brennan's gratuitous statement that, in the absence of pending prosecutions, declaratory relief may be appropriate, is as he indicates, taken from his separate opinion in Perez v. Ledesma, 1971, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed. 2d 701, and is pure dicta in Lake Carriers'. To suggest that the Supreme Court in collateral dicta in Lake Carriers' has decided that the prerequisites to federal intervention defined in Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, do not apply to declaratory judgments against threatened state criminal prosecutions is inconceivable when the issue was so carefully preserved in Younger and Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 for a time when the point was squarely raised. 5 The lack of a nod to the Younger doctrine by the Supreme Court in its recent decisions in Police Department of the City of Chicago v. Mosley, 1972, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 and Lloyd Corp., Ltd. v. Tanner, 1972, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, is of no moment. The grant of certiorari in each case was specifically limited to constitutional issues other than those raised by Younger and its progeny. See 1972, 404 U.S. 1037, 92 S.Ct. 703, 30 L. Ed.2d 728; 1972, 404 U.S. 821, 92 S.Ct. 42, 30 L.Ed.2d 48. 6 We underscore our agreement with the dissent that the district courts of this Circuit are entitled to consistent decision making on our part. Since Younger and Samuels were decided, but prior to the decision in this case, this Court twice held that declaratory relief was inappropriate in cases involving threatened state criminal prosecutions in the absence of proof of Younger prerequisites to intervention. Cooley v. Endictor, 5 Cir. 1972, 458 F.2d 513; Thevis v. Moore, 5 Cir. 1971, 440 F.2d 1350. Such is the holding of the case sub judice. No panel has held to the contrary.1 7 Before JOHN R. BROWN, Chief Judge and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges. 8 JOHN R. BROWN, Chief Judge, with whom WISDOM and GOLDBERG, Circuit Judges, join dissenting from the denial of rehearing en banc: 9 Because Senior Circuit Judge Tuttle has not participated in the Court's consideration of the petition for rehearing en banc, he does not have an opportunity to respond now to the apparent rejection of the views expressed in his concurring opinion. As one who shares his misgivings, I feel obligated to state concisely my reasons for believing that the present case is enbancworthy. 10 In effect the Court has held that a Federal declaratory judgment action challenging the constitutionality of a State criminal law is subject to the restrictions imposed by Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 and companion cases, regardless of whether prosecutions under that law have been initiated. That position has heretofore been rejected by the First,1a Third2 and Sixth3 Circuits and by at least two three-judge District Courts.4 Its underlying philosophy appears to be at odds with one of our own earlier decisions, Hobbs v. Thompson, 5 Cir., 1971, 448 F.2d 456. Moreover, its continuing vitality is somewhat suspect in light of the Supreme Court's recent pronouncement that the reasoning supporting the application of the Younger doctrine has "little force in the absence of a pending state proceeding. In that circumstance exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met." Lake Carriers' Assn. v. MacMullan, 1972, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257. 11 Admittedly the Court in Lake Carriers was concerned primarily with the problem of abstention and only indirectly with the potential applicability of the Younger sextet. However, in a dissenting opinion both Mr. Justice Powell and the Chief Justice concluded that abstention was inappropriate and would have remanded the case for a trial on the merits, thereby negating any inference that they regarded Younger as a possible bar to a declaratory judgment in the absence of a pending State criminal proceeding. Since Justices Brennan, White and Marshall have adopted an equivalent point of view,5 and since Mr. Justice Douglas obviously shares it,6 I have considerable difficulty avoiding the conclusion that the question which the panel's opinion purports to find "open" is now regarded as closed by two-thirds of the present membership of the Supreme Court. 12 There is little doubt that the legislative history of the Declaratory Judgment Act of 1934 suggests emphatic Congressional disapproval of the theory that in all circumstances "the Constitution requires litigants to subject themselves to the possible harm of a criminal prosecution before seeking relief from an allegedly unconstitutional statute * * * when actual interference with protected rights is alleged or shown." Crossen v. Breckenridge, supra, note 3, 446 F.2d at 838 (citation omitted). Judicially imposed limitations on the remedy are appropriate when a State prosecution is already underway because a Federal declaratory judgment action would almost invariably disrupt that proceeding, which by itself provides the defendant with an adequate procedural vehicle for testing the law's constitutionality. Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. But such considerations are absent when the Federal plaintiff has not yet been arrested or charged and therefore, apart from a declaratory judgment action, has no choice but to obey a potentially unconstitutional statute or to disobey it and risk fine or imprisonment on the ultimate outcome.7 I have most serious reservations about imposing such a dilemma upon those who seek to exercise what they sincerely believe to be their Federal constitutional rights. 13 Nevertheless, I pass no final judgment on the result reached here. Despite the difficulties raised by the foregoing analysis there may yet be some persuasive justification for the opinion rendered by the Court. All I suggest is that the case obviously involves a problem of exceptional importance which, because of previous uncertainty and apparent inconsistency,8 requires en banc reconsideration to insure decisional uniformity. Particularly is this true in light of Judge Tuttle's assertion that the availability of a narrower ground for decision reduces most of the panel's opinion to the level of obiter dictum. When issues of such far-reaching significance are at stake, the District Courts of this Circuit are entitled to know precisely what the law is. In its present posture this case simply does not provide that precision.9 14 I dissent from the denial of rehearing en banc. 1 The dissent's suggestion that the panel opinion is inconsistent with Hobbs v. Thompson, 5 Cir. 1971, 448 F.2d 456, is inexplicable. Hobbs is a civil, not a criminal case, involving no possibility of interference with state criminal proceedings 1a Wulp v. Corcoran, 1 Cir., 1972, 454 F. 2d 826. 2 Lewis v. Kugler, 3 Cir., 1971, 446 F.2d 1343 3 Crossen v. Breckenridge, 6 Cir., 1971, 446 F.2d 833 4 Anderson v. Vaughn, D.Conn., 1971, 327 F.Supp. 101; Thoms v. Smith, D.Conn., 1971, 334 F.Supp. 1203 5 Perez v. Ledesma, 1971, 401 U.S. 82, 93, 91 S.Ct. 674, 681, 27 L.Ed.2d 701, 710 (separate opinion by Brennan, J.) 6 Dyson v. Stein, 1971, 401 U.S. 200, 211, 91 S.Ct. 769, 775, 27 L.Ed.2d 781, 789 (dissenting opinion by Douglas, J.) 7 "There is indeed a serious present controversy, involving important federal issues, and posing for the Lake Carriers an immediate choice between the possibility of criminal prosecution or the expenditure of substantial sums of money for antipollution devices and equipment which may not be compatible with the federal regulations which admittedly in due time will be pre-emptive. This presents a classic case for declaratory relief * *." Lake Carriers' Assn. v. MacMullan, supra, 406 U.S. at 514, 92 S.Ct. at 1759 (dissenting opinion by Powell, J.) 8 Compare Hobbs v. Thompson, supra, with Musick v. Jonsson, 5 Cir., 1971, 449 F.2d 201 and Cooley v. Endictor, 5 Cir., 1972, 458 F.2d 513 9 In two recent decisions involving circumstances virtually identical to those present here, the Supreme Court considered the merits of the constitutional claims without even mentioning the Younger doctrine. Police Department of the City of Chicago v. Mosley, 1972, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212; Lloyd Corp., Ltd. v. Tanner, 1972, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131

547 F.Supp. 854 (1982) Donald H. GAGER, et al. v. MOBIL OIL CORPORATION. Civ. No. H-82-384. United States District Court, D. Connecticut. September 30, 1982. *855 Richard W. Farrell, Abate, Fox & Farrell, Stamford, Conn., for plaintiffs. William E. Glynn, Scott P. Moser, Day, Berry & Howard, Hartford, Conn., for defendant. RULING ON PLAINTIFFS' MOTION FOR PERMANENT INJUNCTIVE RELIEF BLUMENFELD, Senior District Judge. In this case the plaintiffs challenge the defendant Mobil Oil Corporation's (Mobil) refusal to consent to an assignment to the plaintiff Kenneth Coomes of Mobil's franchise contracts with the plaintiff Donald Gager. The plaintiffs' challenge is based upon the Connecticut Gasoline Dealers Act, Conn.Gen.Stat. §§ 42-133j through 42-133n, which regulates various aspects of the relationship between petroleum product franchisors and franchisees. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332. Only questions of state law are raised in this litigation.[1] The plaintiff, Donald Gager, is the sole owner of a franchise granted by Mobil for the operation of a Mobil service station adjacent to Interstate 95 in Niantic, Connecticut.[2] The Niantic location, in the opinion of William Nappo, Mobil's Sales Manager for the Southern New England Resale District, is a "Class A" location selling over 900,000 gallons of gasoline per year and can be classified as within the top ten percent of the district's stations in terms of volume of business. The value of the real estate to Mobil has been estimated to be between one-half and three-quarters of a million dollars. *856 In January 1982 Mr. Gager signed a contract of sale with his co-plaintiff, Kenneth Coomes, in which they agreed that Mr. Gager would sell his business to Mr. Coomes for a total of approximately $90,000. To date Mr. Coomes has paid $15,000 towards the purchase price and, upon closing, will pay 50 percent down with Mr. Gager taking a secured promissory note for the other 50 percent to be paid over a three-year period at 12 percent interest. In the event the deal is not consummated because of Mobil's refusal to consent to the assignment of the franchise, Mr. Coomes will be refunded all but $1,000 of the money he has paid to date. On February 3, 1982, after the plaintiffs entered into the contract of sale, the plaintiffs' attorney wrote to Mr. Nappo informing Mobil of the proposed sale and requesting that Mobil arrange to obtain from Mr. Coomes all the information needed "to confirm his qualification as a Mobil franchisee." Defendant's Exhibit A. This was the first time Mr. Nappo was informed of Mr. Gager's intention to assign his franchise to Mr. Coomes. Subsequently a series of interviews with Mr. Coomes was arranged by Mobil representatives. Mr. Coomes was interviewed first by Dale Austin, Mobil's marketing representative for the Niantic location. They met for two and a half hours and discussed Mr. Coomes' work experience, education and marketing ideas. Mr. Austin formed a negative opinion of Mr. Coomes as a dealer candidate. He found Mr. Coomes ill prepared for the interview and was particularly unimpressed with his marketing ideas. Specifically, Mr. Austin testified that, in his opinion, Mr. Coomes indicated a negative attitude toward the idea of introducing self-service as a means of increasing the volume of business, stating that, "he didn't want to rock the boat with the other dealers that were in the neighborhood." Transcript of May 18, 1982 hearing at 111.[3] Mr. Austin made an oral report of his impressions to his superiors. Shortly thereafter, Mr. Coomes was interviewed by Stephen House, Mr. Austin's immediate supervisor, who is employed by Mobil as the area manager with jurisdiction over this location. The meeting lasted about 30 minutes. Mr. House was similarly unimpressed with Mr. Coomes' qualifications and formed the opinion that he was unqualified to operate Mr. Gager's service station. He concluded that Mr. Coomes lacked sufficiently aggressive business ideas and, in addition, that Mr. Coomes' work and business experience was inadequate preparation for the operation of a business involving in excess of one million dollars in gross sales annually. After receiving reports from both Mr. Austin and Mr. House, Mr. Nappo, who has authority to make the final decision as to whether to approve the assignment of the franchise to Mr. Coomes, met with Mr. Coomes to conduct another interview. Although normally Mr. Nappo would not interview a candidate where the initial interviews are unfavorable, Mr. Nappo conducted an additional personal interview because of the fact that Mr. Gager had already entered into a contract of sale with Mr. Coomes. Mr. Nappo talked to Mr. Coomes for approximately 20 minutes and discussed his work experience, education, and management ideas and experience. Mr. Nappo concluded that Mr. Coomes did not have sufficient business experience to effectively handle a business of this magnitude. He did, however, at a subsequent meeting with Mr. Coomes and his mother, Shirley Coomes, offer Mr. Coomes the opportunity to apply for a franchise at another location in Montville, Connecticut, where he could gain business experience by first taking on a smaller volume business. Both Mr. Coomes and his mother indicated that they were not interested in that location. They explained in court that their reason for refusing to consider the Montville station *857 was that it was known to have a history of business failures.[4] Subsequent to these interviews Mr. Coomes submitted a written application and financial statement.[5] Mr. Coomes has a work history of four years and has been employed at three service stations in Niantic, Connecticut. According to his own testimony, he worked part-time until he graduated from high school two years ago and has since worked full-time. He began as a gas attendant, learned to do minor automotive repairs, became a shift manager while employed by Mr. Gager, and is now the assistant manager at Mr. McGinley's Sunoco station across the street from Mr. Gager's station. Both Mr. Gager and Mr. McGinley testified in support of Mr. Coomes' qualifications to be a franchise service station dealer. Mr. McGinley, currently a franchise dealer for Sunoco, has previously been employed by Sunoco in a capacity which required him to select and counsel franchise dealers for Sunoco. He testified that during his employment with Sunoco he interviewed approximately 200 dealer candidates and filled between 50 and 70 dealer locations. Based on his experience as Mr. Coomes' employer he expressed his opinion that Mr. Coomes is an excellent dealer candidate. By a letter dated March 19, 1982 Mr. Nappo informed Mr. Coomes of Mobil's decision to refuse consent to the proposed assignment of Mr. Gager's franchise to Mr. Coomes. This decision was based upon the conclusion that Mr. Coomes lacked sufficient business and work experience to "demonstrate the responsibility required to run a service station of this magnitude." Transcript at 44. In addition, Mobil's representatives were unimpressed with his attitude and marketing ideas. On the basis of three interviews and after reviewing Mr. Coomes' application, Mr. Nappo made the final decision to refuse consent to the proposed assignment. His judgment was shared by the two subordinate employees who had also interviewed Mr. Coomes. Mr. Nappo has explained to the court why Mobil considers it necessary to undertake a serious review of the business qualifications of its dealer candidates. Mobil's profits are tied directly to the volume of business done by its service stations. The manner in which the dealer manages his station directly controls his volume of business. The business decisions made by Mobil's franchise dealers on questions of pricing, hours of operation, the extent of services offered and the quality of the station's appearance and staff all have a direct effect on Mobil's profits. Mobil has a substantial investment at stake in this service station location making the selection of a franchise dealer who can maximize the return on this investment of great importance to the corporation. Once the initial choice of a franchisee is made, the company's discretion to terminate or not renew the franchise is very limited. See, e.g., 15 U.S.C. § 2802(b). In addition, since Mr. Gager has more than ample security for the note covering one-half of the purchase price, it is clear that the risk of a poor business judgment in selecting Mr. Coomes lies only upon Mr. Coomes himself and Mobil. Mr. Gager and Mr. Coomes have challenged Mobil's refusal to consent to the proposed assignment of Mr. Gager's franchise to Mr. Coomes. Their complaint challenges Mobil's disapproval of the assignment under sections 42-133l and 42-133m(a) of the Connecticut Gasoline Dealers Act. This statute regulates various aspects of petroleum industry franchise contracts. Section 42-133l limits a franchisor's ability to terminate or fail to renew a franchise contract by imposing a "good cause" standard *858 on such action, Conn.Gen.Stat. § 42-133l (a), and also prohibits terminations or failures to renew motivated by any of a number of specified grounds enumerated in section 42-133l (e). Section 42-133l (f) makes it illegal for a franchisor to engage in a variety of specified practices vis-a-vis its franchisee. Section 42-133m(a) in effect imposes a reasonableness standard limiting the franchisor's power to refuse its consent to a franchisee's proposed assignment of a franchise. The plaintiffs' complaint makes three distinct legal arguments. The first and primary claim is that Mobil's disapproval of this assignment is unreasonable in violation of Mobil's franchise contract with Mr. Gager and Conn.Gen.Stat. § 42-133m(a). Second, they contend that Mobil has violated its statutory duty under Conn.Gen.Stat. § 42-133l (f)(6) to deal in good faith with Mr. Gager, its current franchisee. Lastly, they contend that Mobil's action constitutes a prohibition of a change in management without good cause in violation of Conn. Gen.Stat. § 42-133l (f)(4). The defendant counters that Mobil's refusal to approve this franchise is justified by substantial business reasons and, therefore, cannot be considered in violation of either the terms of Mr. Gager's franchise contract or the laws of the State of Connecticut. I shall consider each of the plaintiff's arguments in turn despite the fact that the parties have only briefed and argued plaintiffs' first claim, i.e. that Mobil's action violates Conn.Gen.Stat. § 42-133m(a). I. Conn.Gen.Stat. § 42-133m(a) Conn.Gen.Stat. § 42-133m(a) is one provision of the Connecticut Gasoline Dealers Act which was enacted by the Connecticut legislature in 1977. It provides: (a) A term in any franchise agreement between a franchisor and a franchisee which prohibits the voluntary assignment of the franchise to which they are parties, or which requires the franchisor's consent to such assignment, is ineffective and void as contrary to public policy unless such term provides that consent may be or is reasonably withheld. Reasonable withholding of consent includes, but is not limited to: (1) Material and substantial change of the other party's duties; (2) material and substantial increase of the other party's contractual burden of risk; (3) material and substantial impairment of the other party's opportunity to obtain return performance. Conn.Gen.Stat. § 42-133m(a). This statute by its terms does not require Mobil's disapproval of a franchise assignment to be reasonable. It only voids any contractual prohibition on assignments which does not provide that "consent may be or is reasonably withheld." Id. Mobil's contract with Donald Gager contains such a provision which has been amended to comply with the requirements of this statute. Specifically, Article 18 of Mobil's "retail dealer contract" with Mr. Gager, as amended, reads: Any assignment of this contract by the Buyer without the Seller's written consent shall be void. However, the Seller shall not unreasonably withhold such consent. Plaintiff's Exhibit 1.[6] Technically, the question before the court is one of contractual interpretation, not statutory construction. In this case, however, the contractual language is specifically required by law and, therefore, the court shall look to the policy behind the statute and the intent of the legislature in construing the contractual provision. See Restatement (First) of Contracts § 236(d) (1932). The court must attempt to define the substantive content of the reasonableness *859 standard imposed by section 42-133m(a). The plaintiff, relying on the explicit examples of reasonable withholding of consent provided by the statute, proposes that this court construe the statute as requiring a showing by the franchisor that the proposed assignment imposes a material and substantial increased risk or alteration of the franchisor's burden or opportunity to obtain return performance. Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Permanent Injunctive Relief at 4-6. The defendant proposes the following construction: Mobil must explain to the Court the reason for its action, satisfy the Court that its stated reason is in fact the explanation for Mobil's conduct, and not a sham or artifice to disguise some other motive. Moreover, the Court must be satisfied that Mobil's reason for rejection is rationally related to the franchise relationship. Finally, the Court can require that Mobil's process for decision-making be reasonable. Defendant's Post-Trial Memorandum at 10. A. The Burden of Proof The parties agree that the defendant bears the burden of showing that its refusal of consent was reasonable. Id.; Plaintiffs' Memorandum at 6. I conclude that this is the correct construction of the statute. The legislature clearly intended to protect franchise dealers from unfair and abusive overreaching by petroleum industry franchisors. The statute itself includes legislative findings to this effect: In order to promote the public interest and public welfare, to avoid undue control of the dealer by suppliers, ... and to offset evident abuses within the petroleum industry as a result of inequitable economic power, it is necessary to legislate standards pursuant to the police power of this state governing the relationship between suppliers and distributors of gasoline and petroleum products and the dealers within the state who sell those products to the public. Conn.Gen.Stat. § 42-133j(a) (emphasis added). The statute must be liberally construed, therefore, as a remedial statute designed to correct recognized historical abuses by petroleum industry franchisors. See, e.g., Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973). In addition, specific legislative findings on the issue of assignments of franchise contracts leads me to conclude that the franchisor should bear the burden of showing that its refusal to consent is reasonable: The legislature finds and declares that existing petroleum franchise agreements ... uniformly prohibit assignment of franchise interests without the consent of the franchisor, which consent may be unreasonable and arbitrarily withheld.... The legislature finds and declares that such provisions constitute unreasonable restraints on alienation and inhibit the fair and efficient functioning of a free market economy within the petroleum industry. Therefore, it is provided that the provisions of any franchise agreement which prohibit assignment without the consent of the franchisor and permit such consent to be unreasonably withheld are void and without effect as contrary to public policy. Conn.Gen.Stat. § 42-133j(c) (emphasis added). B. The Content of the Reasonableness Standard The question of the substantive content of the franchisor's burden under Conn.Gen. Stat. § 42-133m(a) is more difficult to resolve. One possible construction is that the franchisor may only have the burden of convincing the court that it has a reason which is rationally related to the franchise relationship. This is basically the standard proposed by the defendant.[7] A minimal *860 "rational basis" review of this sort is suggested by the legislature's use of language such as "unreasonably and arbitrarily withheld" in its statement of legislative findings. See Conn.Gen.Stat. § 42-133j(c). The term "arbitrary" suggests the possibility that the legislature was only concerned with requiring some minimal articulation of a reason for the franchisor's disapproval. The operative section of the statute, however, uses language which leads me to conclude that the legislature intended the courts to engage in a more substantial review of the franchisor's explanation than merely requiring the franchisor to articulate a legitimate reason for its action. Section 42-133m(a) uses the terms "material and substantial" repeatedly to describe the showings which could be considered reasonable bases for withholding consent. In fact, the bill which eventually became the Connecticut Gasoline Dealers Act was amended in committee to specifically add the word "substantial" to this section. 20 Conn. General Assembly House Proceedings 1977 Part 9 at 3478. The deliberate use of the phrase "material and substantial" (emphasis added) indicates that the court must not only determine that the franchisor's reason is material to the franchise relationship but, in addition, must satisfy itself that there is some substance to the justification. I conclude, therefore, that more than the articulation of a reason rationally related to the franchise relationship is required by this statute. It is not easy to define precisely what the franchisor must show in addition to a reason which is rationally related to the franchise relationship. At the outset, it is clear that the legislature did not intend the court to substitute its judgment for the experienced business judgment of the franchisor. Within the bounds of reasonableness there is room for an unwise decision or a difference of opinion. Conn.Gen.Stat. § 42-133m(a) explicitly allows a franchisor to refuse consent to a proposed assignment for "material and substantial" reasons. The federal Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801 et seq., which places substantial limitations upon a franchisor's freedom of action in dealing with its franchisees, makes an explicit exception to the "good cause" standard governing the termination or failure to renew an existing franchise[8] for "trial" or "interim" franchises. 15 U.S.C. § 2803. A "trial franchise" is a franchise contract, for a term of no more than one year, with a franchisee who "has not previously been a party to a franchise with the franchisor." Id.[9] Thus, a trial franchise allows the franchisor to independently determine whether the trial franchisee meets its standards. Since the federal statute was enacted with the same remedial purpose as the Connecticut act, compare S.Rep.No.95-731, 95th Con., 2d Sess. 1 (1978), reprinted in [1978] U.S.Code Cong. & Ad.News 873, with Conn.Gen.Stat. § 42-133j(a), the Connecticut statute should be construed in a manner which also allows franchisors some opportunity to make their own independent evaluation of potential franchisees. The Connecticut legislature applied a distinctly different standard to the assignment situation than that governing the termination or failure to renew an existing franchise *861 contract. Conn.Gen.Stat. § 42-133l (a) applies a "good cause" limitation on the franchisor's power to terminate or fail to renew a franchise[10] whereas section 42-133m(a) requires that the franchisor's refusal to consent to an assignment be only "reasonable." The legislature specifically did not require disapproval of a proposed assignment to be for good cause. Conn. Gen.Stat. § 42-133m(a) should be construed, therefore, in a manner which meaningfully distinguishes it from the good cause standard of section 42-133l (a). Although I have been unable to find any reported cases construing this specific provision of the Connecticut statute, statutes of other states address the same issue and provide guidance as to the kinds of considerations which are of sufficient substance to justify a franchisor's disapproval of a proposed assignment. New Jersey requires a franchisor to set forth in writing "material reasons relating to the character, financial ability or business experience of the proposed transferee." N.J.Stat.Ann. § 56:10-6 (West 1981-1982 Supp.). California will allow a petroleum industry franchisor to withhold its consent to an assignment where, among other things, the "proposed purchaser of the franchise has less business experience and training than that normally required by the franchisor." Cal. Business and Professions Code § 21148 (West 1982 Supp.). Other statutes merely require that the franchisor set forth in writing the specific grounds for the refusal to consent to the assignment. E.g., Mass.Ann. Laws ch. 93E, § 4A(b). Thus, concern with a proposed franchisee's character, business experience and training, or financial ability are appropriate and substantial considerations which a franchisor is entitled to take into consideration when reviewing a proposed assignment. In summary, the franchisor must first convince the court that its reasons for refusing consent to a proposed assignment are material, i.e. rationally related to the franchise relationship. Second, although the court need not concur in the franchisor's decision, it must be convinced that the franchisor's reasons are of some substance. Examples of "substantial" reasons would be, among other things, concerns about the proposed franchisee's character, business experience and training or financial ability.[11] C. Application of Section 42-133m(a) to the Case at Bar Mobil's decision to disapprove the assignment of Mr. Gager's franchise to Mr. Coomes was based primarily on the judgment that Mr. Coomes lacks sufficient business experience to successfully manage a business of the magnitude of this service station. Insufficient business experience and training of the franchisee is a factor which the statutes of both New Jersey and California specifically recognize as justifying a franchisor's withholding of consent in such a situation. It is not only a relevant criteria but an extremely important one from the franchisor's point of view. I conclude, therefore, that this reason alone will justify Mobil's refusal to consent to the proposed assignment. Mobil has offered a substantial amount of evidence supporting *862 its conclusion that Mr. Coomes has insufficient business experience. Not only did its employees give specific examples in support of their conclusion that Mr. Coomes lacked the business judgment required for the job, but Mr. Coomes' own testimony and application reveal a limited business experience and a full-time work history of only two years. While the Horatio Alger concept is not dead in the economic fabric of America, a little skepticism about its undeviating success in our present complicated system is not unreasonable. The evidence clearly supports the finding, therefore, that Mobil had material and substantial reasons justifying its refusal to consent to this assignment. II. Conn.Gen.Stat. § 42-133l(f)(6) The complaint also raises the claim that Mobil's refusal to consent to this assignment violates its duty under Conn.Gen. Stat. § 42-133l(f)(6)[12] to deal in good faith with Mr. Gager, its present franchisee. I find that the evidence presented to this court wholly fails to support a finding that Mobil has acted in bad faith in any respect in its review and final disapproval of Mr. Gager's proposed assignment. Mobil carefully reviewed the qualifications of the proposed assignee. Mr. Coomes was interviewed at least three times. In fact, Mr. Nappo personally interviewed Mr. Coomes despite the fact that Mobil's regular procedure did not call for an interview by Mr. Nappo in cases where both his subordinates reported unfavorable results from earlier interviews. Mobil has offered to assist Mr. Gager in finding another, acceptable assignee so that Mr. Gager can proceed with his plans to sell his business. Mobil's representatives spoke highly of Mr. Gager and expressed their complete satisfaction with his performance as a franchise dealer over the years. There is absolutely no evidence that Mobil is in any manner attempting to deny Mr. Gager an opportunity to sell his business for the maximum amount the market will bear. I find, therefore, that Mobil has not violated its duty to act in good faith in its dealings with Mr. Gager. III. Conn.Gen.Stat. § 42-133l(f)(4) The plaintiffs also contend that Mobil's refusal to approve this assignment constitutes a prohibition of a change in management without good cause in violation of Conn.Gen.Stat. § 42-133l (f)(4).[13] Although this claim was not argued or briefed by the parties, basic principles of statutory construction compel the conclusion that section 42-133l(f)(4) does not apply to assignments of franchise contracts. The "change in management" provision applies a "good cause" standard to a franchisor's prohibition of a change in management by a franchisee. Section 42-133m(a), on the other hand, applies a reasonableness standard to a franchisor's refusal to consent to a proposed assignment. The statute thus explicitly makes a distinction between the standards which govern a franchisor's conduct in the two situations. If I were to construe section 42-133l(f)(4)'s good faith standard as applicable to assignments it would render section 42-133m(a) meaningless since a showing of "good cause" is clearly more substantial than a showing of "reasonableness." Separate parts of a statute should be reconciled wherever possible to avoid rendering any portion of the statute meaningless. See, e.g., Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980); Atwood v. Regional School District No. 15, 169 Conn. 613, 621, 363 A.2d 1038 (1975). In addition, it is well established that specific statutory provisions prevail over more general provisions. Id. at 622, 363 A.2d 1038. *863 Section 42-133m(a)'s reasonableness standard, therefore, controls since it is the section which specifically addresses the issue at bar. IV. Conclusion For the reasons stated above, judgment shall enter in favor of the defendant, Mobil Oil Corporation. SO ORDERED. NOTES [1] The federal Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801 et seq., although applicable to this franchise relationship, regulates only terminations of or failures to renew existing franchise contracts and leaves to state law the regulation of prohibitions on assignments or transfers of franchise contracts, 15 U.S.C. § 2806(b). The state statute is only operative, however, to the extent that it is consistent with the federal law. 15 U.S.C. § 2806(a); Ted's Tire Service, Inc. v. Chevron U. S. A., Inc., 470 F.Supp. 163, 165 (D.Conn.1979). [2] Mr. Gager is also the lessee of the real property at which the station is operated. The real property is owned by Mobil and leased to its franchisee. [3] Mr. Coomes is currently employed as assistant manager at the competing Sunoco service station located directly across the street from Mr. Gager's Mobil station. Mr. McGinley, the dealer who owns the Sunoco franchise, testified as a witness in this trial on Mr. Coomes' behalf. See page 857 infra. [4] Mr. Nappo also offered Mrs. Coomes the opportunity to apply for the Niantic franchise in her own name. She never submitted an application, however, because she feels that it was unnecessary since her son is well-suited to take care of the station. Transcript at 168. In addition, she is currently employed at two jobs. [5] Mr. Coomes' financial capacity to undertake this business was not a factor in Mobil's decision to disapprove this assignment. [6] Mobil's lease agreement with Donald Gager contains a prohibition on assignments without any reasonableness qualification. Plaintiff's Exhibit 1. Mobil is obviously of the opinion that Conn.Gen.Stat. § 42-133m(a) does not apply to leases of real property even if they are part of an overall franchise relationship. The lease contract does not appear at first glance to come within the definition of "franchise" set forth by the statute. Conn.Gen.Stat. § 42-133k(b). It is unnecessary to definitively resolve this question, however, as the parties have not raised or argued the point. [7] Mobil, in addition, would allow the court to review the rationality of the franchisor's decision-making process and determine whether the franchisor's stated reason is in fact the actual motive or a pretext disguising another, perhaps illegitimate, reason. These elements are not determinative in this case so I need not dwell at length on the question of whether they are properly considered in the court's review under section 42-133m(a) of a franchisor's refusal to consent to a franchise assignment. The evidence clearly shows the fairness of Mobil's decision-making process. As to the question of pretext, the plaintiff offered some evidence which could support an argument that the defendant's purported explanation of its disapproval was a pretext disguising an illegitimate motivation. The plaintiff did not plead or argue this theory, however, and the court is not inclined, at any rate, to credit this evidence. Although I assume that a proper showing of pretext could rebut the defendant's showing of reasonableness, I need not definitively resolve this legal issue in this case. [8] 15 U.S.C. § 2802. See note 1 supra. [9] This section of the federal act does not apply to a situation where an existing franchise is assigned or transferred "to the extent authorized by the provisions of the franchise or any applicable provision of state law which permits such transfer or assignment." 15 U.S.C. § 2803(b)(2). Although Conn.Gen.Stat. § 42-133m(a) is not preempted by the federal act, it must be construed in a manner which is consistent with the federal statute's overall scheme and purpose. [10] Of course, to the extent that Conn.Gen.Stat. § 42-133l (a) is inconsistent with 15 U.S.C. § 2802, the federal act preempts the state law. 15 U.S.C. § 2806(a) [11] I do not, however, mean to imply, as the plaintiffs' proposed construction suggests, that the franchisor must prove a material and substantial increased risk or contractual burden to the franchisor in order to justify its disapproval. Although any material and substantial reason for refusing consent to an assignment would involve, in all probability, a judgment that the assignment constitutes an increased risk for the franchisor, the plaintiffs' proposed construction implies that the franchisor must prove an actual increase in risk. This would place a burden of proof on the franchisor which would be practically impossible to meet in most cases. The factor of risk inevitably involves questions of probability that are not susceptible to specific proof. The plaintiffs' attempt to impose an impossible burden of proof upon franchisors is inconsistent with the statute which explicitly allows a franchisor to refuse its consent on reasonable grounds. In addition, the statute clearly states that the specific examples enumerated in section 42-133m(a)(1)-(3) are not exclusive but merely illustrative of reasonable grounds for refusing consent. [12] Conn.Gen.Stat. § 42-133l(f)(6) provides: No franchisor, directly or indirectly, ... shall ... (6) fail to deal in good faith with a franchisee .... [13] Conn.Gen.Stat. § 42-133l(f)(4) provides: No franchisor, directly or indirectly, ... shall ... (4) require or prohibit any change in management of any franchise unless such requirement or prohibition of such change shall be for good cause, which cause shall be stated in writing by the franchisor ....

486 F.3d 100 Tyler GREEN, Appellantv.Greg FORNARIO; Tyler Green Sports. No. 06-2649. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit LAR 34.1(a) April 23, 2007. Opinion Filed May 8, 2007. John M. Elliott, John P. Elliott, Elliott, Greenleaf, and Siezikowski, P.C., Blue Bell, Pennsylvania, Counsel for Appellant. Gregory M. Castaldo, Schiffrin & Barroway, LLP, Radnor, Pennsylvania, Counsel for Appellees. Before: McKEE and AMBRO, Circuit Judges, ACKERMAN,* District Judge. OPINION OF THE COURT AMBRO, Circuit Judge. 1 We decide whether the District Court abused its discretion in declining to award attorneys' fees to a prevailing party in an unfair competition suit. This is a discretionary decision, and it turns on whether the Court believes that the case is, in the words of the Lanham Act, "exceptional." In holding that the Court did not abuse its discretion here, we emphasize that the term "exceptional" is not, as the plaintiff seems to suggest, a throwaway. Rather, it calls for a district court to determine whether it finds a defendant's conduct particularly culpable — enough to alter the general American rule that parties to litigation pay their own attorneys' fees. We therefore affirm. I. Facts and Procedural History A. Tyler Green 2 Tyler Green is a former pitcher for the Philadelphia Phillies. He was drafted by the Phillies in 1991 — the tenth overall pick — following a stellar college career at Wichita State University that included two College World Series appearances. After spending just one year with its Triple-A farm team, Green joined the Phillies for the 1993 season. Plagued by injuries from the get-go, Green was able to play only three full seasons in the Major Leagues. The apex of his career was a 1995 trip to the All Star Game. 3 Following his retirement from professional baseball in 2000, Green has stayed in the Philadelphia area. He is the pitching coach for the nationally acclaimed Germantown Academy varsity baseball team. Local media have covered his coaching work extensively. In addition, he regularly appears on regional television and radio baseball programs, and he participates in a variety of Phillies-related charitable events. From this evidence, Green no doubt retains some name recognition in the greater Philadelphia community. B. Greg Fornario and Tyler Green Sports 4 Greg Fornario ran a business called Tyler Green Sports. A former bartender at a Philadelphia-area sports bar, Fornario decided in the late 1990s to start a sports handicapping business. Handicappers are the stock analysts of the sports gambling world: they provide information to sports bettors. According to Fornario, he saw this as an easy way to make money, and so he acquired an 800 number, took out an ad in the paper, and waited for the calls to come in. There was a mix-up, however, with his 800 number, and so he discontinued the business after running the advertisement for only one day. He had no financing and was in no position to advance the business additional money from his personal assets. 5 Fornario did, however, market this short-lived venture as Tyler Green Sports. He testified that the business was never affiliated with anyone named Tyler or Green. Rather, he purportedly came up with "Green" because handicapping businesses, he said, typically have some reference to money in their names. Green is, of course, the color of money, so it fit. Fornario then tried to come up with something "catchy" to put with Green. He settled on Tyler, he claimed, because he is an Aerosmith fan, and Stephen Tyler is the group's lead singer. Thus, Tyler Green Sports. He testified that at the time he had never heard of Tyler Green the baseball player. He admitted, however, to being a fan of all sports except hockey. The Philadelphia teams have no allure for him, as he is a New York native. He described himself as a "diehard" Yankees fan. While all of this is more than a mite shaky, it is Fornario's story, and he is sticking to it. 6 In 2000, Fornario, his handicapping business long defunct, resumed using the name Tyler Green Sports in trade. This time, he used it as the name of an entertainment promotion company. Specifically, the company made money by coming up with event ideas, putting them together, and selling them to venues. For example, it promoted a number of Philadelphia Eagles' pep rallies by lining up player appearances, taking care of decorations and advertising, and selling the pre-packaged events to sports bars. It also did traditional party planning. The company used the website http:///www.tylergreensports. com to advertise its services. Fornario incorporated the company in Pennsylvania, and registered to it the name Tyler Green Sports. Before registering the name, he testified that he engaged an attorney to do a trademark search. According to Fornario, this search revealed that the name Tyler Green Sports was not registered to any business or person. Tyler Green Sports never achieved significant commercial success. C. This Litigation 7 In October 2003 Tyler Green's agent Rex Gary discovered that a local business was using the name Tyler Green Sports. After investigating its activities, he phoned the company and spoke to Fornario. He confirmed that the business was not affiliated with anyone named Tyler or Green, and on that basis demanded that Fornario cease trading under the name. When Fornario declined, Green's attorneys sent formal cease and desist letters in February and March 2004.1 Following the second letter, Fornario offered to stop using the name in return for $3,000. According to Green's attorneys, Fornario represented that this figure corresponded with the money he had spent on Tyler Green Sports-labeled merchandise. Fornario, on the other hand, contends that it was merely an opening settlement offer. The evidence shows that Fornario did not spend even ten percent of that amount on merchandise. Green balked at the offer and filed suit in the District Court. 8 In his answer, Fornario denied liability and asserted a counterclaim of libel against Green and his attorneys. Specifically, Fornario alleged that accusing him in the February 2004 letter of using Tyler Green's name to "sell alcohol and sex" libelously insinuated that he was involved in, to be euphamistic, "Mrs. Warren's profession."2 Green responded with a Rule 11 motion, and Fornario withdrew the counterclaim. Within two weeks of the answer, Fornario signed a consent decree in which he agreed to stop using the name Tyler Green in trade. The action continued on the issues of damages, costs, and attorneys' fees. 9 Green proceeded with discovery, but his efforts trailed off, and the District Court dismissed the case for failure to prosecute in January 2006. On Green's motion, the Court reinstated it and, on the basis of the record evidence, awarded costs. The Court refused, however, to award attorneys' fees, and Green appeals that denial to us.3 II. Whether This Case Is Exceptional 10 Though best-known as the law that regulates trademark infringement, the Lanham Act, 15 U.S.C. §§ 1051-1141, also prohibits other forms of unfair competition.4 Specifically, § 1125 creates civil liability for misdescribing goods in commerce, importing mislabeled goods, diluting the value of a famous mark, and cybersquatting.5 15 U.S.C. § 1125(a)-(d). Here, Green asserted claims of misdescription, dilution, and cybersquatting. 11 The Lanham Act allows a prevailing plaintiff to recover costs, along with damages and profits, as a matter of course. 15 U.S.C. § 1117(a). But it allows a recovery of attorneys' fees only in "exceptional" cases. 15 U.S.C. § 1117(a) ("The court in exceptional cases may award reasonable attorney fees to the prevailing party."). 12 Determining whether a case is exceptional is a two-step process. First, the District Court must decide whether the defendant engaged in any culpable conduct. Ferrero U.S.A., Inc. v. Ozak Trading, Inc., 952 F.2d 44, 47 (3d Cir.1991). We have listed bad faith, fraud, malice, and knowing infringement as non-exclusive examples of the sort of culpable conduct that could support a fee award. Id.; see also Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 280 (3d Cir. 2000). Moreover, the culpable conduct may relate not only to the circumstances of the Lanham Act violation, but also to the way the losing party handled himself during the litigation. Securacomm, 224 F.3d at 282. Second, if the District Court finds culpable conduct, it must decide whether the circumstances are "exceptional" enough to warrant a fee award. See Ferrero, 952 F.2d at 49 (noting that the court may consider factors other than the defendant's culpable conduct, such as the closeness of the liability question and whether the plaintiff suffered damages). In sum, a district court may not award fees without a finding of culpable conduct, but it may decline to award them despite a finding of culpable conduct based on the totality of the circumstances. 13 Here, Green alleges two basic categories of culpable conduct: (1) Fornario's knowing infringement, and (2) his bad-faith failure to stop at Green's request. We deal with each in turn. A. Knowing Infringement 14 Green alleges that Fornario knew his name and intentionally used it to profit from Green's goodwill. Fornario, of course, denies this, and in its Memorandum Opinion the District Court was unwilling to infer Fornario's culpable knowledge and intent from Green's regional recognition. That Fornario did not intentionally trade on Green's name is a finding of fact, so we can overturn it if it is clearly erroneous. See ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 971 (D.C.Cir. 1990). Under that standard, we only set aside factual findings when we are "`left with the definite and firm conviction that a mistake has been committed.'" Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). In addition, it is worth noting that Green, like any civil plaintiff, bears the burden of proving culpable conduct as a necessary element of establishing that he is eligible for a fee award. 15 At the time that he began using the trade name Tyler Green Sports, Fornario had lived in the Philadelphia area for at least five years and had spent considerable time around sports as a fan, a bartender in a sports bar, and a nascent handicapper. From this, he seems the sort of person who would know of a pitcher on the Phillies' team. Still, finding that he knew of Green is not compelled by this record. Doing so here would require discrediting Fornario's testimony and deciding that Green was famous enough that Fornario could not but know of him. While Tyler Green was known regionally in his short career and his post-retirement work continues to garner some attention, we cannot conclude that the record evidence of his recognition means that Fornario must have known of him. Because the District Court's resolution of this disputed issue of fact was not clearly erroneous, we cannot disturb it notwithstanding our suspicions about Fornario's explanation for his trade name. B. Bad Faith Refusal To Cease and Desist 16 A defendant's refusal to comply with cease and desist letters in bad faith is no doubt a legitimate means of establishing an "exceptional" case. In general, putative defendants have every right to decline pre-litigation requests without adverse consequences, but they must do so in good faith — that is, believing that they have a colorable claim of right to engage in the challenged behavior. See Northern Light Tech., Inc. v. Northern Lights Club, 236 F.3d 57, 65 (1st Cir.2001) (approving district court's use of defendant's disregard of legitimate cease and desist letters as evidence of bad faith). Thus, did Fornario decline to stop using Green's name knowing that he had no right to use it, thereby wilfully refusing to comply with the law? This is a question of Fornario's subjective state of mind. See Bishop v. Equinox Intern. Corp., 154 F.3d 1220, 1224 (10th Cir.1998) (evaluating whether defendant subjectively believed plaintiff had abandoned trademark before using it in commerce). There is, as usual, no direct evidence of Fornario's bad state of mind, so the District Court would have had to infer bad faith from the surrounding circumstances, and, here again, it declined to do so. It ruled instead that Fornario's conduct was equally consistent with the belief that his use of the trade name was legitimate. 17 Was that finding clearly erroneous? Boiled down, Green's argument seems to be that Fornario had no arguable defense to his Lanham Act claims; thus, from the facts that (1) Green alerted Fornario to his objections and (2) Fornario did nothing, the Court should have inferred bad faith. To analyze that argument, we must consider, as best we can on a limited record, the strength of Green's claims. It is important to point out that we do this only to determine whether it is plausible that Fornario thought that he had a colorable claim of right to use the trade name. We analyze the three Lanham Act claims that Green ended up bringing, keeping in mind, however, that the cease and desist letters were not nearly specific enough to direct Fornario to these precise claims. 18 We begin with Green's § 1125(c) claim for diluting a famous mark. In relevant part, that section provides: 19 Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. 20 15 U.S.C. § 1125(c)(1). The key requirement is that the mark be famous, which the section defines as "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner." 15 U.S.C. § 1125(c)(2)(A). This is a rigorous standard, as it extends protection only to highly distinctive marks that are well-known throughout the country. TCPIP Holding Co., Inc. v. Haar Commc'ns, Inc., 244 F.3d 88, 99 (2d Cir. 2001). Without going into more detail than this case requires, it seems several steps short of probable that a person with such a brief, and largely undistinguished, professional career limited to one team in one area would have a name that is "widely recognized by the general consuming public of the United States." 15 U.S.C. § 1125(c)(2)(A). Thus it appears that Fornario had a colorable defense to this claim. 21 We turn now to Green's § 1125(d) cybersquatting claim. That section — a relatively new addition to the Lanham Act — prohibits registering a domain name that is confusingly similar to a distinctive mark or dilutive of a famous mark with "a bad faith intent to profit" from it. 15 U.S.C. § 1125(d)(1)(A). For example, registering the site http://www.dupont.com with the hope of selling it to E.I. du Pont de Nemours and Company for an exorbitant price would be a quintessential act of cybersquatting. 22 To determine bad faith in this context, Congress has given us nine factors to consider: 23 (I) the trademark or other intellectual property rights of the person, if any, in the domain name; 24 (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; 25 (III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services; (IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name; 26 (V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site; 27 (VI) the person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person's prior conduct indicating a pattern of such conduct; 28 (VII) the person's provision of material and misleading false contact information when applying for the registration of the domain name, the person's intentional failure to maintain accurate contact information, or the person's prior conduct indicating a pattern of such conduct; 29 (VIII) the person's registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and 30 (IX) the extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous . . . . 31 15 U.S.C. § 1125(d)(1)(B)(i). 32 Here, at least five of the nine factors appear to cut in Fornario's favor. It is undisputed that he used the name Tyler Green in connection with a bona fide offering of services (factors III and VI). In addition, there is no evidence that he provided misleading contact information (factor VII), that he registered multiple confusing domain names (factor VIII), or that he intended to divert internet users from Tyler Green's own website (factor V). While applying the factors is a holistic, not mechanical, exercise, see Lucas Nursery & Landscaping, Inc. v. Grosse, 359 F.3d 806, 811 (6th Cir.2004), we have little difficulty concluding that Fornario met the low threshold of having a colorable defense to Green's cybersquatting claim. 33 It appears that Green's strongest claim was his § 1125(a) claim for confusing misdescription. That section prohibits using in commerce any name that is likely to cause confusion as to sponsorship of or affiliation with one's goods. 15 U.S.C. § 1125(a)(1)(A). Here, Green's claim was that Fornario's use of his name created the false impression that he was affiliated with, or otherwise approved of or sponsored, Fornario's business. Given the evidence of Green's name recognition, we believe that he would have had a good chance of succeeding on this claim, as it is sensible to think that using the name of a regionally known sports player in connection with a company that hosts events at sports bars in that region would deceive people. 34 At the same time, likelihood of confusion is a factual issue, and we will not presume to know what evidence Fornario could have produced had he found it prudent to continue litigating the case. See A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 207 (3d Cir. 2000) (noting that likelihood of confusion is an issue of fact). His business activities appear to have little to do with baseball.6 Moreover, it is unclear just how well-recognized, even regionally, Green was when Fornario acted. So the evidence produced at discovery would be key. While possible, we are not convinced that it is even probable that a retired player, with a career neither long nor notable, would be well-known enough to render use of his name in connection with a party and event-planning business confusing to the typical consumer.7 Indeed, it is plausible that Fornario's use of Tyler Green's name confused few consumers. Thus, once again we cannot conclude that Fornario lacked a colorable defense. 35 We do not know precisely why Fornario agreed to stop using the name Tyler Green Sports so quickly. Likelihood of success almost certainly went into the thought process, but, as the District Court noted, Fornario probably also considered the financial position of his business (precarious) and the value of the trade name (minimal). Deciding to forgo costly litigation struck the District Court as a reasonable strategic decision, and we agree. In any event, given that Fornario met the low bar of a colorable claim to use the name Tyler Green Sports, it was reasonable for the District Court not to infer bad faith from his refusal to stop at Green's request. If anything, by settling quickly Fornario saved Green (who, we note, does not press a claim for damages) a great deal of trouble, and we are loathe to discourage such decisions by using them to support an inference of culpable conduct. Thus, we cannot conclude that the District Court clearly erred in declining to find that Fornario refused to heed Green's cease and desist letters in bad faith. 36 * * * * * * 37 Green argues that Fornario knowingly sought to profit from Tyler Green's name recognition. But the District Court found that Fornario did not know of Green when he began using the trade name Tyler Green Sports, and that finding (no matter our doubts) is not clearly erroneous. In addition, Green argues in effect that upon receiving the first cease and desist letter, Fornario immediately should have set off for Canossa. We cannot agree. If Fornario maintained a good-faith belief that he was rightfully using the trade name Tyler Green Sports, he was entitled to decline pre-litigation requests and defend his position as he saw fit. The District Court found that the evidence did not support a finding of bad faith, and that determination also is not clearly erroneous. Thus, we affirm the Court's conclusion that this case is not "exceptional" enough to merit an award of attorneys' fees to Green. Notes: * Honorable Harold A. Ackerman, United States District Judge for the District of New Jersey, sitting by designation 1 While cease and desist letters are understandably neither warm nor friendly, we cannot help but note that Green's were particularly combative. For example, in his February 20, 2004, letter, Green's counsel advised Fornario that he would "refer[] [Fornario's] conduct to the appropriate criminal authorities." This is curious, as the Lanham Act is a purely civil statute. There is a parallel criminal counterfeiting statute, but to be "counterfeit" a mark must be similar to a registered trademark. 18 U.S.C. § 2320(e)(1)(A)(ii). Here, no registered trademark is involved. To be sure, unfair competition is a serious tort, but we see nothing in this record that approaches criminal conduct, nor do we see any evidence that Green's counsel followed up (or had any intention of following up) on this threat. It is worth noting that lawyers should take threatening criminal prosecution — particularly in a letter to an uncounseled individual — very seriously. To do so where no criminal reference is objectively possible or subjectively contemplated is a most unwise tacticSee Philadelphia Bar Ass'n Prof'l Guidance Comm., Guidance Inquiry No. 89-17, 1989 WL 253283 (Sept.1989) (discussing danger of threatening uncounseled individual with criminal prosecution under Pennsylvania professional ethics code). 2 See generally GEORGE BERNARD SHAW, MRS. WARREN'S PROFESSION (William-Alan Landes, ed., Players Press 1991) (1893). 3 The District Court had jurisdiction under 28 U.S.C. § 1331. Our jurisdiction is based on 28 U.S.C. § 1291 4 The initial version of the Lanham Act, Pub.L. No. 87-772, 76 Stat. 769 (1946), did not provide for all of these causes of action. In keeping with general use, however, we use the term "Lanham Act" to refer collectively to it and its subsequent amendments 5 In general, cybersquatting is the act of registering, in bad faith and to garner profit, on the internet a domain name so similar to a distinctive mark that it is confusing. A popular subgenera of cybersquatting — termed typosquatting — involves registering a domain name that is but a letter or two off from a distinctive mark (e.g., registering http://www. yahoo.com to catch people mistyping the popular search engine http://www.yahoo.com). See generally Shields v. Zuccarini, 254 F.3d 476 (3d Cir.2001) (providing an overview of the Lanham Act's prohibition of cybersquatting); Christopher G. Clark, The Truth in Domain Names Act of 2003 and a Preventative Measure To Combat Typosquatting, 89 CORNELL L. REV. 1476 (2004). 6 It is not clear from the record whether Fornario's one-day handicapping business provided information on baseball games. There is nothing in the record suggesting that the entertainment company had anything to do with baseball. Rather, the only sport mentioned is football 7 Here it is worth remembering that the primary purpose of § 1125(a) is not to protect people (like Tyler Green) from having their names used by others, but to protectconsumers from peddlers who use confusing, misdescriptive trade names. See Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 209 (3d Cir. 2002). Thus, the "touchstone" of a § 1125(a) claim is likelihood of confusion. Id. at 204.

786 F.2d 1170 Williamsv.C.I.R. 85-1875 United States Court of Appeals,Eighth Circuit. 2/24/86 1 U.S.T.C. 2 AFFIRMED* * See Local Rule 14

12 N.Y.3d 853 (2009) PEOPLE v. FLAGG. Court of Appeals of New York. May 4, 2009. Application in criminal cases for leave to appeal denied. (Jones, J.)

615 F.3d 448 (2010) Richard SHANEBERGER, Petitioner-Appellant, v. Kurt JONES, Respondent-Appellee. No. 07-2211. United States Court of Appeals, Sixth Circuit. Argued: March 3, 2010. Decided and Filed: July 16, 2010. Rehearing Denied August 27, 2010. *450 ARGUED: Michael C. Merrick, Dinsmore & Shohl LLP, Louisville, Kentucky, for Appellant. Andrew L. Shirvell, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Michael C. Merrick, Dinsmore & Shohl LLP, Louisville, Kentucky, Michael J. Newman, Dinsmore & Shohl LLP, Cincinnati, Ohio, for Appellant. Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. Before BOGGS and NORRIS, Circuit Judges; ADAMS, District Judge.[*] OPINION ADAMS, District Judge. Petitioner Richard Shaneberger appeals from the district court's denial of his petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Shaneberger contends that the district court erred when it found that he failed to demonstrate ineffective assistance of appellate counsel. We affirm. I. FACTUAL BACKGROUND On December 11, 1996, Shaneberger was convicted of felony murder, aiding and abetting armed robbery, conspiracy to commit armed robbery, and aiding and abetting kidnapping. Prior to his conviction, Shaneberger moved to suppress oral statements that he made on December 30, 1995. Shaneberger contended that his statements were the result of an interrogation conducted in violation of his right to counsel. The following facts have been developed in support of this argument. *451 Detective Richard Rau was placed in charge of the investigation of the shooting death of John East. On December 29, 1995, Detective Rau interviewed Shaneberger's co-defendant James Rowe. During that interview, Rowe admitted to being involved in the robbery with Justin Gillette and a man named "Rick." After further interrogation, Detective Rau came to the conclusion that "Rick" referred to Shaneberger. Armed with this information, Detective Rau returned the local police department the next day, intending to interview Shaneberger. Unbeknownst to the detective, Shaneberger was already present and being interviewed at the department on unrelated charges. Detective Rau entered the interview room just as Shaneberger was receiving his Miranda warnings. At that time, Shaneberger indicated that he wished to speak to his father before answering questions and that his father would make any decision about obtaining him an attorney. The detective conducting the questioning ended the interview at that point, apparently concluding that Shaneberger had invoked his right to counsel. Detective Rau, however, then made a statement to Shaneberger: I told Shaneberger that ... I don't mind laying my cards on the table. I asked him not to say anything but listen to what I had to say. I told him that I had already talked to his partner Rowe, and Rowe [had implicated him in the robbery]. Detective Rau then immediately left the jail without offering Shaneberger an opportunity to respond to his statement. Sometime after Detective Rau left the jail, Trooper Michael Gutierrez was instructed to transport Shaneberger to the county jail. From the record before this court, it is unclear how much time elapsed between Detective Rau's statement and Shaneberger's subsequent transport to the county jail. However, shortly after the trip began, Trooper Gutierrez noticed that Shaneberger was crying and appeared uncomfortable. Believing that Shaneberger's handcuffs were too tight, Trooper Gutierrez asked him whether he was "okay." Shaneberger responded that he needed to get something off his chest. Trooper Gutierrez then once again read Shaneberger his Miranda rights and asked whether he understood them. Shaneberger responded in the affirmative and indicated a further desire to talk. During the trip, Shaneberger told Trooper Gutierrez, "Well, I didn't kill anybody, I'm not a killer, I just want you to know that." Trooper Gutierrez continued to encourage him to talk during the trip and upon arriving at the county jail, Shaneberger gave a full confession, implicating himself and identifying Gillette as the individual that shot and killed East. Prior to trial, Shaneberger moved to suppress his custodial statements. The trial court denied the motion. In addition, Shaneberger's counsel opposed the State's motion to consolidate his trial with Rowe's trial. The motion was granted over the objection, and Shaneberger's counsel never sought thereafter to sever the trials. As a result, Shaneberger was tried jointly with Rowe, and Rowe's custodial statements were introduced against Shaneberger. Shaneberger was convicted by a jury of the counts detailed above. On appeal, Shaneberger's appellate counsel did not challenge the trial court's ruling on his motion to suppress, nor did appellate counsel assert that trial counsel was ineffective for failing to move to sever the trials. Appellate counsel instead raised seven other issues, including challenges to the sufficiency of the evidence, the admission of other acts evidence, the trial court's ruling on another, distinct motion to suppress, and alleged prosecutorial misconduct. Each claim was rejected and *452 Shaneberger's convictions were affirmed. Following the Michigan Supreme Court's refusal to accept his discretionary appeal, Shaneberger moved for relief from judgment in the trial court. In that motion, Shaneberger raised numerous issues, including the two issues presented before this court. Relief with respect to that motion was denied at all levels of state review. On November 4, 2003, Shaneberger filed his § 2254 petition in the district court. The petition was denied on September 6, 2007, and Shaneberger timely appealed. II. STANDARD OF REVIEW We conduct a de novo review of the district court's decision to grant or deny a habeas petition. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir.2009). Because Shaneberger filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), we may grant the writ "with respect to a `claim that was adjudicated on the merits in state court proceedings' if the state court's decision `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Murphy, 551 F.3d at 493 (quoting 28 U.S.C. § 2254(d)(1)). "A state-court decision is contrary to clearly established federal law `if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Id. at 493-94 (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alterations sic). "A state-court decision is an unreasonable application of clearly established federal law if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case, or if it either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context." Id. at 494 (quotation marks and citations omitted). Both of Shaneberger's claims turn upon his assertion that he received ineffective assistance from his appellate counsel. The Supreme Court has held that "the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim." Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783, (1982). Accordingly, ineffective assistance of appellate counsel claims are governed by the same Strickland standard as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). To prevail, Shaneberger must show that his counsel's performance was deficient and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, Shaneberger must demonstrate that, but for counsel's poor performance, "there is a reasonable probability" the result of his appeal would have been different. Id. at 694, 104 S.Ct. 2052. Appellate counsel cannot be found to be ineffective for "failure to raise an issue that lacks merit." Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.2001). Furthermore, the Strickland analysis "does not require an attorney to raise every non-frivolous issue on appeal." Caver v. Straub, 349 F.3d 340, 348-49 (6th Cir.2003). *453 III. LEGAL ANALYSIS A. Motion to Suppress Shaneberger asserts that his appellate counsel was ineffective for failing to challenge the trial court's denial of his motion to suppress his custodial statements. Shaneberger's primary contention focuses on his belief that detectives continued to interrogate him following his request for counsel, in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Shaneberger argues that the state court was incorrect in its evaluation of trial counsel's decision. We hold that the state court did not unreasonably apply existing law when evaluating this argument. In Edwards, the Supreme Court held that "an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85, 101 S.Ct. 1880. In denying Shaneberger relief, the state court concluded that he had initiated further conversations with the police, thereby negating any claim that Shaneberger's right to counsel had been violated. We find no error in that conclusion. The Supreme Court has found that "interrogation" refers "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted). The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. Id. at 301-02, 100 S.Ct. 1682 (footnotes omitted; emphasis sic). While we do not focus on the intent of the police, a practice that is subjectively intended to elicit an incriminating response will very likely produce a finding that the police should have known that such a result would occur. Id. at 301 n. 7, 100 S.Ct. 1682. Moreover, two Circuits have concluded that informing the accused that he had been implicated in a crime by a co-defendant constitutes interrogation under the Innis definition. See Nelson v. Fulcomer, 911 F.2d 928, 935 (3d Cir.1990); United States v. Szymaniak, 934 F.2d 434 (2d Cir.1991). Neither of these holdings supports reversal under the facts herein. In Nelson, the defendant responded immediately to his co-defendant when confronted with the fact that the co-defendant had confessed. In finding that interrogation had occurred, the Nelson panel concluded that "[t]he ploy of confronting a suspect with his or her alleged partner in crime and claiming that the partner has confessed is indistinguishable from the types of police practices explicitly criticized *454 in Miranda and Innis." Nelson, 911 F.2d at 935. In Szymaniak, the defendant confessed after being approached three or four times by a government agent and being provided with information gained from another interrogation. Concluding that a violation had occurred, the Second Circuit noted as follows: "If Szymaniak's statement was made during one of these encounters, it was in response to interrogation outside the presence of counsel and thus in violation of the fifth amendment in light of his refusal to waive his right to counsel." Id. at 439. There is little doubt that Detective Rau's actions tread near the line between what is acceptable and what violates Shaneberger's right to counsel. Without the specific portions of the statement discussed below, Detective Rau's comment would fit squarely within the category described by Innis as interrogation. However, Detective Rau did not simply inform Shaneberger that a co-defendant had implicated him in a crime, as occurred in Nelson. Instead, when Detective Rau informed Shaneberger that Rowe had implicated him in the crime, Rau specifically informed Shaneberger not to respond to him. Moreover, Rau left the room immediately after conveying the information to Shaneberger. While Detective Rau's statements create a close question, this court does not sit in independent judgment of the merits of Shaneberger's underlying Innis challenge. Instead, we must examine the merits of his claim under the AEDPA's "highly deferential" standard of review that "demands that state-court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (quotations omitted). Based upon the facts detailed herein, we cannot say that the state court unreasonably applied Strickland and Innis. We find that whether Detective Rau should have known that his comments would elicit an incriminating response is a close question—a question that could reasonably be answered by a state court in the negative. There is no dispute that Detective Rau informed Shaneberger that he had been implicated by a co-defendant. Detective Rau, however, gave Shaneberger no opportunity to respond and indeed directed him not to respond. Supporting the state court's decision is the fact that Detective Rau not only permitted no time for a response, but no response was immediate. The record does not disclose the exact time that elapsed between Detective Rau's statement and Shaneberger's subsequent decision to speak to another law enforcement official. The record, however, does clearly depict that Shaneberger chose to speak to an entirely different officer at a different location and time, and an officer who had no prior knowledge of Detective Rau's involvement with Shaneberger. Accordingly, we find that it was not unreasonable for the state court to conclude that these latter facts took Detective Rau's statement outside the realm of interrogation as defined by Innis. That is, it was reasonable to conclude that Detective Rau would not have known that his statement was likely to elicit an incriminating response. Based upon this conclusion, we cannot say that the state court was unreasonable in holding that Shaneberger had failed to demonstrate ineffective assistance of appellate counsel. This court, therefore, cannot reverse under the highly deferential AEDPA standard of review. B. Motion to Sever Shaneberger's argument for reversal on this ground is dependent upon a finding that his statements should have been suppressed. Having concluded that Shaneberger demonstrated no reversible error in *455 the district court's decision with respect to the suppression issue, we adopt the thorough and detailed harmless error analysis of the district court with respect to the severance issue. IV. CONCLUSION For the foregoing reasons, the district court's denial of the habeas petition is AFFIRMED. NOTES [*] The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by designation.

NUMBERS 13-14-00171-CR 13-14-00172-CR 13-14-00301-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG MICHAEL DAVID RAMIREZ, Appellant, a/k/a MICHAEL RAMIREZ a/k/a DAVID MICHAEL RAMIREZ v. THE STATE OF TEXAS, Appellee. On appeal from the 445th District Court of Cameron County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justice Benavides and Perkes Memorandum Opinion by Justice Benavides By seven issues, appellant, Michael David Ramirez, a/k/a Michael Ramirez, a/k/a David Michael Ramirez, challenges his conviction for robbery. He alleges there was jury charge error by the trial court and improper comments made by the State during closing argument. We affirm the conviction. I. BACKGROUND On June 12, 2013, at around 3:30 AM, Billy Bruce Gaubatz was awakened at his home by his dog barking. Gaubatz looked out his window and saw Ramirez entering his property through a gate. Gaubatz went outside to ask what Ramirez was doing. Ramirez responded to Gaubatz by saying “Don’t worry about it.” Ramirez proceeded into Gaubatz’s carport area and picked up a weedeater. Gaubatz testified at trial that the area was well-lit enough for him to be able to identify Ramirez. Gaubatz followed after Ramirez as Ramirez went towards his car, still carrying the weedeater. Ramirez told Gaubatz, “Don’t fuck with me” and reached behind him. Gaubatz stated he feared for his safety and told his dog to attack Ramirez. Ramirez hit the dog with the weedeater, got into his vehicle and sped off. The following morning, a neighboring businessman told Gaubatz that a car that matched the description of Ramirez’s vehicle was parked at a nearby home. Gaubatz proceeded to the home and saw a Jeep Liberty, which matched the vehicle he had seen leaving his home. He notified the Harlingen Police Department, and with the information provided by Gaubatz, they presented him with a photo lineup. Gaubatz positively identified Ramirez from the photo lineup. Ramirez was charged with robbery, a second degree felony. See TEX. PENAL CODE ANN. § 29.02 (West, Westlaw through Chapter 46 2015 R.S.). The case was tried before a jury and the jury charge contained both a count for robbery and a lesser included offense for theft. Id. § 29.02, 31.03. Ramirez was found 2 guilty and the trial court assessed his punishment at six years in the Texas Department of Criminal Justice—Institutional Division.1 This appeal followed. II. JURY CHARGE ERROR By his first three arguments, Ramirez contends the trial court committed error in the jury charge instructions. He alleges there was egregious harm by the instructions in the jury charge not requiring a unanimous verdict, failing to instruct the jury to convict of the lesser included offense if they were unsure of which offense Ramirez was guilty of, and there was reversible error by the trial court for adding the lesser included offense of theft over his objection. A. Standard of Review and Applicable Law In reviewing a challenge to a jury charge, we first must determine if the jury charge contained error. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error is found, we then ‘analyze the harm resulting from the error.” Id. If “an error is preserved with a timely objection…then the jury-charge error requires reversal if the appellant suffered some harm as a result of the error.” Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If the appellant “failed to preserve jury-charge error, then we would have reviewed the record for egregious harm.” Id. The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). 1 Ramirez also appealed his convictions on two motions to revoke: 13-14-172-CR and 13-14-301- CR where he was also sentenced to six years in the Texas Department of Criminal Justice. No independent issues were brought forward on appeal regarding those revocations. Those two revocations will be affirmed based on the decision to affirm the robbery conviction. 3  If the “error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of the defendant,’ which means no more than that there must be some harm to the accused from the error.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing Almanza, 686 S.W.2d at 171). When an “appellant d[oes] not object to the charge, the error does not result in reversal ‘unless it was so egregious and created such harm that appellant was denied a fair trial.’” Warner, 245 S.W.3d at 461 (citing Almanza, 686 S.W.2d at 171). “Egregious harm deprives appellant of a fair and impartial trial.” Trejo v. State, 313 S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Almanza, 686 S.W.2d at 171). “Errors that result in egregious harm are those that affect the ‘very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Warner, 245 S.W.3d at 461-62 (citing Hutch, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To determine harm, we consider four factors: (1) the charge itself, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. Trejo v. State, 313 S.W.3d at 871 (citing Hutch v. State, 922 S.W.2d at 171). To establish both egregious or “some” harm, the “appellant must have suffered actual, rather than theoretical, harm.” Warner, 245 S.W.3d at 461. Neither party bears the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d at 816. 4  B. Discussion By his first issue, Ramirez alleges that the inclusion of certain language in the jury charge constituted egregious harm by not instructing the jury its verdict must be unanimous. The complained of language was: In order to return a verdict, each juror must agree thereto, but jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. There was no objection by Ramirez during the trial regarding the language of this portion of the jury charge. If there was error by the charge, our analysis would fall under the “egregious harm” standard. Almanza, 686 S.W.2d at 171. In order to begin this analysis, we are to look at the entire jury charge. In reading the entire charge of the court, it is clear the trial court properly instructed the jury that its verdict must be unanimous. Additional paragraphs within the charge state: “It is the Presiding Juror’s duty to preside at your deliberations, vote with you, and when you have unanimously agreed upon a verdict, to certify to your verdict by using the appropriate form attached hereto, and signing the same as Presiding Juror” and “After you have reached a unanimous verdict, the Presiding Juror….” Based on the fact that the proper instruction was given to the jury in the trial court’s jury charge, we find there was no error. We overrule Ramirez’s first issue. By his second issue, Ramirez alleges the trial court committed reversible error by submitting the lesser included offense of theft in the jury charge over his objection. Ramirez claims that theft was not alleged in the indictment, so it was harm to include it as a lesser offense in the jury charge. During the trial, Ramirez’s trial counsel objected to 5 the State’s request to include theft as a lesser included offense in the jury charge. Ramirez claims that because the State had not indicted Ramirez for theft in the indictment, they had abandoned the ability to charge him with theft in the jury charge. However, including a lesser-included offense in a jury charge is proper when the requested offense is a lesser-included offense of the offense charged and “an instruction on a lesser- included offense [shows] the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense.” Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). In Ramirez’s case, in order to be convicted of robbery, the State had to prove a theft had occurred. See TEX. PENAL CODE ANN. § 29.02. The trial court found that sufficient evidence of theft and the value of the item stolen was presented by the trial testimony and the evidence was sufficient to send to the jury for the lesser-included offense. “Even if the prosecutor believes in a given case that he will secure a conviction on the charged offense if the only alternative is acquittal, he might also believe that the jury should be given the option to decide whether a conviction on the lesser offense is more appropriate.” Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009). “If the State proves the charged offense, it necessarily proves all lesser-included offenses. That is why the submission of a lesser-included offense does not violate the defendant’s constitutional due-process right to notice of the crime of which he is accused.” Wasylina v. State, 275 S.W.3d 908 (Tex. Crim. App. 2009). Theft is a lesser-included offense of robbery, and there was no error by the State asking for, and the trial court including, theft 6 in the jury charge. See TEX. PENAL CODE ANN. § 29.02, 31.03. We overrule Ramirez’s second issue. By Ramirez’s third issue, he alleges he suffered egregious harm by the trial court’s failure to include a “benefit of the doubt” instruction. Ramirez did not request a “benefit of the doubt” instruction from the trial court. The “general rule has been that, where greater and lesser grades or degrees of an offense are charged, the court must upon the defendant’s request give the jury a ‘benefit of the doubt’ instruction that, if the evidence leaves a reasonable doubt of the grade or degree of the offense, such doubt should be resolved in favor of the defendant.” Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, no pet.); Kihega v. State, 392 S.W.3d 828, 836-838 (Tex. App.—Texarkana 2013, no pet.). However, even in cases where the instruction had been requested and denied by the trial court, higher courts have found that while it was error, it was not harmful to the defendant. See Shelby v. State, 724 S.W.2d 138, 140 (Tex. App.—Dallas 1987), vacated on other ground, 761 S.W.2d 5 (Tex. Crim. App. 1988); Benavides, 763 S.W.2d at 589. Similarly, here as in Benavides, the charge given to the jury clearly instructs them that if they are not convinced beyond a reasonable doubt that Ramirez was guilty of robbery, they should acquit him of the greater offense before moving on to consider the lesser offense of theft. No further “benefit of the doubt” instruction is necessary. We overrule Ramirez’s third issue. III. CLOSING ARGUMENTS By his fourth, fifth, and sixth arguments, Ramirez alleges that the State’s closing argument violated his rights. 7  A. Standard of Review and Applicable Law We review a trial court’s ruling on an objection to improper jury argument for an abuse of discretion. Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San Antonio 2014, no pet.). “Such argument does not result in reversal ‘unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding.” Id. (citing Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)). “The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial.” Id. B. Discussion By his fourth issue, Ramirez claims the State’s closing argument concerning “community expectations” violated his rights. However, Ramirez has failed to provide a clear and concise argument with citations to the record and authority to support this issue. It is therefore inadequately briefed for our review. See TEX. R. APP. P. 38.1(i). We, therefore, overrule Ramirez’s fourth issue. By his fifth issue, Ramirez claims the State’s closing argument asked the jury to take the place of the victim and deprived him of his right to a fair trial. Ramirez claims that the prosecutor’s closing arguments asking the jurors to take the place of the victim violated the “golden rule.” The proper method of preserving error in cases of prosecutorial misconduct is to: (1) object on specific grounds, (2) request an instruction that the jury disregard the comment, and (3) move for a mistrial. Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Here, as in Hajjar, Ramirez made no objection on the basis of prosecutorial misconduct. Id. By failing to object on this theory 8 at trial, appellant has preserved nothing for our review. See TEX. R. APP. P. 33.1; Robison v. State, 456 S.W.3d 660, 673 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We overrule Ramirez’s fifth issue. By his sixth issue, Ramirez alleges that the State’s closing argument went outside the evidence. The State asked the jury to consider what would have happened if the “victim” in this case had not stopped his confrontation with Ramirez. Ramirez’s trial counsel objected to this line of argument as outside the record and the trial court overruled the objection. The State continued with the same hypothetical example and Ramirez’s trial counsel did not object a second time. The “purpose of closing argument is to facilitate the jury’s proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the admitted evidence alone.” Fant-Caughman v. State, 61 S.W.3d 25, 28 (Tex. App— Amarillo 2001, pet. refused). Jury argument must fall within one of four general areas: “(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law enforcement.” Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). If any argument does not fall into one of the four categories of proper argument, it is rather a plea for abandonment of objectivity.” Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985) (en banc). Even if here, the prosecutor’s comments fell outside the four areas allowed for argument, they would be harmless error. In evaluating the argument, we look to the factors established by the Court of Criminal Appeals in Mosley v. State. Franklin v. State, No. 06-14-00046-CR, ___ S.W.3d ___, 2015 WL 1043804, at *10 (Tex. App.—Texarkana March 10, 2015, no pet.) (citing Mosley, 983 S.W.2d 249 (Tex. Crim. App. 1998)). The 9 factors are: “(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).” Id. Here, the severity of the comments by the State was slight and the evidence supporting the conviction was strong. Ramirez’s sixth issue is overruled. IV. CODE OF CRIMINAL PROCEDURE ARTICLE 36.27 In his seventh point of error, Ramirez claims the trial court’s oral response to a jury note on the record constituted reversible or fundamental error. Ramirez specifically challenges the trial court’s actions under Article 36.27 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. § 36.27 (West, Westlaw through Chapter 46 2015 R.S). Article 36.27 governs how a jury may communicate with the trial court during deliberations, and states the trial court “must answer juror questions in writing.” Id. However, “even if communications are not carried out in strict accord with this article…there is no reversible error when such communications do not amount to additional instructions on the law or some phase of the case, such as communications regarding administrative matters.” Wood v. State, 87 S.W.3d 735, 739 (Tex. App.— Texarkana 2002, no pet.). Here, the trial court brought the jury into the courtroom to answer their note. The jury had requested exhibits not introduced into evidence and the court properly told them that “by law the Court is not allowed to answer your question nor is it allowed to provide to you the documents requested. You may only review the documents that have been admitted into evidence.” The trial court felt bringing the jury in and answering this question orally would be more time efficient. Trial counsel stated 10 he thought it would be faster to give the jury a written response, but made no specific objection. No additional instructions or improper comments occurred. Ramirez’s seventh issue is overruled. V. CONCLUSION We affirm the judgments of the trial court. GINA BENAVIDES, Justice Do Not Publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of July, 2015. 11 

888 F.2d 578 Robert REUTTER, Appellant,v.Herman SOLEM, Warden, South Dakota State Penitentiary, Appellee. No. 88-5475. United States Court of Appeals,Eighth Circuit. Submitted June 14, 1989.Decided Nov. 2, 1989. Mike Abourezk, Gregory, S.D., for appellant. Mark Smith, Asst. Atty. Gen., Pierre, S.D., for appellee. Before McMILLIAN and BOWMAN, Circuit Judges, and DUMBAULD, Senior District Judge.* BOWMAN, Circuit Judge. 1 Robert Reutter was tried in state court in South Dakota and convicted by a jury of two counts of aiding and abetting the distribution of cocaine and one count of conspiracy to distribute cocaine. These convictions were affirmed on appeal. State v. Reutter, 374 N.W.2d 617 (S.D.1985). After exhausting his state habeas corpus remedies, see Reutter v. Meierhenry, 405 N.W.2d 627 (S.D.1987), Reutter filed a petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 (1982) in the District Court. Reutter now appeals from the District Court's order dismissing his habeas claim with prejudice. Reutter argues that reversal is required for three reasons: (1) the state failed to disclose that when its key witness, a convicted felon, testified at petitioner's trial the witness already was scheduled to appear before the South Dakota Board of Pardons and Paroles a few days following the trial; (2) the prosecutor falsely argued to the jury in his closing statement that this witness had nothing to gain from cooperating with the state and testifying against petitioner; and (3) the trial court violated petitioner's Sixth Amendment right of confrontation when it improperly limited the scope of cross-examination of a state witness. Because we agree with petitioner on the first and second grounds, we reverse. I. 2 Petitioner and Dr. Michael Kotas were charged with aiding and abetting and conspiring with David Trygstad to distribute cocaine. Petitioner and Trygstad were former law partners and close friends. Trygstad had previously entered into a plea agreement with the state in which he pled guilty to two counts of conspiracy to distribute cocaine. Although the prosecution recommended that Trygstad's prison terms be served concurrently, Trygstad was sentenced to consecutive five-year prison terms on each count. Pursuant to his plea agreement, Trygstad testified for the state at petitioner's trial and named petitioner as his cocaine supplier. Trygstad was the principal witness for the state and his testimony is the critical evidence directly implicating petitioner in the cocaine offenses charged. 3 Prior to petitioner's trial, Trygstad filed a petition for a commutation of his sentence with the Board of Pardons and Paroles. His application for commutation was set to be heard by the board on January 27, 1984. On that date, Trygstad appeared before the board and his hearing was delayed for one month. At the February meeting, Trygstad appeared and requested another month's delay, which the board granted. Trygstad's commutation hearing finally took place on March 22, 1984, the same day the jury returned its verdict in petitioner's trial. 4 One of the members of the three-member parole board scheduled to hear Trygstad's petition was Assistant Attorney General Jon Erickson, a prosecutor at petitioner's trial. Whether Erickson voted on Trygstad's petition is disputed. It is undisputed that Erickson told the board that he still considered the recommendation of concurrent sentences made at Trygstad's sentencing hearing to be fair. The board decided Trygstad's petition favorably and recommended to the Governor that Trygstad's sentence be commuted to two five-year terms served concurrently. Attorney General Mark Meierhenry, lead prosecutor at petitioner's trial, also wrote to the Governor recommending that Trygstad's sentence be commuted because he had learned his lesson and had helped the state significantly in petitioner's case. In April 1984, the Governor commuted Trygstad's sentence in the manner recommended. This made Trygstad eligible for parole almost immediately and in June 1984, the Board granted his parole request and Trygstad was released from prison. 5 Before trial, petitioner's counsel made a motion for disclosure of all exculpatory evidence known to the state. The court granted the motion and ordered the state to disclose any such evidence by February 24, 1984. It was on that day, February 24, that the parole board agreed to postpone Trygstad's commutation hearing until March 22, after his testimony at petitioner's trial. The state did not disclose this information to petitioner. At the time of the petitioner's trial, which began March 12 and ended March 22, defense counsel was not aware that Trygstad had applied for a commutation of his sentence or that his hearing before the parole board was scheduled to take place on March 22. II. 6 The Supreme Court in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), "held that the suppression by the prosecution of evidence favorable to an accused upon request [for disclosure by the defendant] violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." It is clearly established that evidence that could be used to impeach a witness for the prosecution falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1984). Here, the prosecution failed to inform the defense that the state's key witness, Trygstad, had applied for sentence commutation and that when he gave his testimony at petitioner's trial he already had been scheduled to appear before the parole board a few days later. This information obviously could have been used by the defense to attack Trygstad's credibility. We have little difficulty in concluding that the prosecution's failure to disclose this information was a Brady violation. 7 The Brady rule requires that petitioner's conviction be reversed, however, only if the undisclosed impeachment evidence was material to the question of petitioner's guilt. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. 8 Petitioner's trial counsel was aware that Erickson was a member of the parole board, and questioned Trygstad about this on cross-examination. The cross-examination of Trygstad could have been significantly more effective, however, had defense counsel known that Trygstad's hearing had been rescheduled (without explanation) on two occasions and now was set to take place soon after Trygstad's appearance as the state's star witness at petitioner's trial. It is not difficult to discern that the disclosure of this information might have had a substantial impact on the jury. 9 The state argues that because Trygstad was a convicted felon his credibility already was suspect and the additional information regarding his petition for commutation and pending hearing thereon would not have affected the jury's judgment as to his truthfulness. Logic of this kind has been dismissed by the Supreme Court. "[T]he fact that the jury was apprised of other grounds for believing that the witness ... may have had an interest in testifying against petitioner [does not turn] what was otherwise a tainted trial into a fair one." Napue v. Illinois, 360 U.S. 264, 270, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). 10 An examination of the record in this case reveals that the state's case against petitioner depended almost entirely on Trygstad's testimony. Trygstad's credibility therefore was the central issue at trial. In light of this, we conclude there is a reasonable probability that the outcome of petitioner's trial would have been different if the jury had known that Trygstad was a candidate for commutation of sentence and that his commutation hearing was scheduled to take place soon after his appearance as state's witness at petitioner's trial. 11 Our conclusion does not depend on a finding of either an express or an implied agreement between Trygstad and the prosecution regarding the prosecution's favorable recommendation to the parole board. The District Court found there was no agreement and this finding is not clearly erroneous. The fact that there was no agreement, however, is not determinative of whether the prosecution's actions constituted a Brady violation requiring reversal under the Bagley standard. We hold that, viewed in the context of petitioner's trial, the fact of Trygstad's impending commutation hearing was material in the Bagley sense and that petitioner therefore is entitled to relief. 12 The materiality of the non-disclosed information becomes even more apparent in light of the prosecutor's closing remarks, which capitalized on defense counsel's ignorance by arguing to the jury that Trygstad had no possible reason to be untruthful in his testimony because he already had been sentenced and therefore had "nothing that he could gain" from cooperating with the state. Although we would have less problem with these remarks if the state had disclosed to the defense the fact of Trygstad's impending commutation hearing, in the circumstances of this case the remarks can be regarded only as misleading and highly improper. 13 The District Court characterized the prosecutor's remarks as only "marginally misleading" since it is generally understood that every prisoner hopes that cooperation with the state will lead to favorable treatment at some future time. We disagree with that generous assessment. The prosecutor here was not merely glossing over the widely understood fact that cooperation with the state eventually may be helpful to a prisoner. He instead was representing to the jury that Trygstad had no reason to expect any specific benefit from his testimony. In view of the pendency of Trygstad's commutation hearing, which had been rescheduled so that it came at the end of petitioner's trial, this was hardly the full truth and it is difficult for us to conclude there is not a reasonable probability that the prosecutor's remarks had an effect on the judgment of the jury. We do not, however, need to decide whether the prosecutor's deceptive remarks alone would require a new trial. Here, the prosecutor's misleading closing statements merely serve further to undermine our confidence in the outcome of the trial. We are convinced that if the fact of Trygstad's petition for commutation and upcoming hearing thereon had been disclosed to the defense there is a reasonable probability the result of the trial would have been different. Under Brady and Bagley, petitioner's conviction therefore must be reversed. III. 14 Petitioner's final argument is that the trial court improperly restricted his cross-examination of a state witness in violation of petitioner's Sixth Amendment right of confrontation. The "improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to ... harmless-error analysis." Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). Because we are granting petitioner's habeas petition on the grounds discussed above, we do not need to address the issue of whether excluding the impeachment evidence "was harmless beyond a reasonable doubt." Id. We comment on petitioner's argument, however, because the issue may arise again if the state elects to retry petitioner. 15 At trial, petitioner sought to refute Trygstad's testimony that petitioner was his source of cocaine by showing that Trygstad and a client of his who also pled guilty to cocaine charges, Richard Cole, had ties to a suspected drug dealer, Frank Island. When Cole testified at trial, the trial court prevented petitioner's counsel from questioning Cole regarding a statement he made to the police in a taped interview that "Island is cold-blooded, and you don't 'roll' on him." On cross-examination Cole admitted, however, among other things, that he had purchased marijuana from Island, that he had used cocaine with Island, that Island told Cole that he had good connections to drugs, and that in the same taped statement to the police Cole stated that he felt he had access to cocaine through Frank Island. In light of all this material before the jury concerning Cole's relationship with Island, the refusal of the trial court to allow petitioner to elicit testimony that Island was "cold-blooded" did not improperly limit petitioner's right to confront and cross-examine Cole. IV. 16 For the reasons stated in part II of this opinion, the order of the District Court dismissing the petition for habeas relief is reversed. The State of South Dakota shall retry petitioner on the charges underlying his convictions within ninety days from the filing date of this opinion, or the writ of habeas corpus shall issue. * The HONORABLE EDWARD DUMBAULD, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation

489 F.2d 753 U. S.v.Smith 73-2470 UNITED STATES COURT OF APPEALS Second Circuit 1/7/74 1 E.D.N.Y. AFFIRMED

167 A.2d 64 (1960) Willie Mae LIGHTBURN, Plaintiff, v. DELAWARE POWER & LIGHT COMPANY, a Delaware corporation, Edward F. La Fond, Delaware Coach Company, a Delaware corporation, Edward Gagnon, Bell Telephone Company of Pennsylvania, a Pennsylvania corporation, and Harold B. Short, Defendants. Superior Court of Delaware, New Castle. December 22, 1960. Henry A. Wise, Jr., of Wise & Suddard, Wilmington, for plaintiff. *65 Louis J. Finger, of Richards, Layton & Finger, Wilmington, for Delaware Power & Light Co., Delaware Coach Co., Edward Gagnon and Edward F. La Fond, defendants. C. W. Berl, Jr., of Berl, Potter & Anderson, Wilmington, for Bell Tel. Co. of Pennsylvania and Harold B. Short, defendants. STIFTEL, Judge. Plaintiff claims she was injured by reason of the negligence of drivers of vehicles of three corporate defendants while she was a passenger on a bus owned by defendant Delaware Coach Company, one of three vehicles involved in an intersection collision. The Delaware Coach Company (Coach), the Delaware Power & Light Company (Power), and their drivers, moved for summary judgment against plaintiff and against the defendant-cross-claimants, Bell Telephone Company of Pennsylvania (Bell) and its driver, Harold B. Short, on the ground that the undisputed facts show that the only negligence involved, if any, was that of Short, Bell's driver. The plaintiff moved for partial summary judgment against Bell and its driver claiming they were negligent and liable on the record as a matter of law. The facts on which these motions are based follow. On July 23, 1957, a bus owned by defendant Coach and being operated by its driver, defendant Edward Gagnon, was traveling east on Thirteenth Street in the City of Wilmington, and at the same time an automobile owned by defendant Power, and operated by its employee, defendant Edward F. La Fond, was traveling north on West Street toward the uncontrolled intersection where West Street intersects Thirteenth Street. Each driver saw the other approaching the intersection and each driver applied his brakes and brought his vehicle to a full stop. The bus, which was located to the left of the Power vehicle, proceeded to move into the intersection, and when it was approximately one-third through the intersection, it was struck on its right side, near its front door, by the Power vehicle, which itself had been involuntarily propelled into the intersection by a vehicle operated by defendant Harold B. Short, an employee of defendant Bell, when it ran into the rear of the Power vehicle, which had been completely stopped. As a result of the collision, a passenger on the bus was allegedly injured. At the time of the multiple accident, the streets were wet and there was some light rain. The Bell driver was traveling north on a downgrade on West Street, in back of the Power vehicle, in an area unfamiliar to him, at a speed between ten and fifteen miles per hour. The Bell driver's deposition indicates that he first saw the Power vehicle approximately forty to fifty feet "before the impact" and that after the Power vehicle came to a complete stop, the Bell vehicle was twenty to thirty feet to the rear of the Power vehicle. The Bell driver did not observe any signal given by the Power vehicle that it was going to stop but he knew there was an intersection ahead and realized the possibility that the car ahead of him would stop. Short, the Bell driver, further explained that he did not observe the type of stop the Power vehicle had made, but he stated that there was a sufficient distance between his car and the one ahead of him to allow a normal stop. He claims that the wet street condition was responsible for his inability to properly control his vehicle, in that when he applied his brakes, they tended to lock on a very slippery wet street, which caused his car "to go faster rather than slow up". There were cars parked on both sides of West Street, and Short was never aware of the presence of the bus until the time of impact. Plaintiff failed to argue her motion against Bell and its driver on the question of liability and indicated at oral argument that she was satisfied to abandon it. Plaintiff also conceded at oral argument that summary judgment should be entered against her by the Delaware Power & Light Company and its driver since she *66 could not see how its driver was in any way negligent. The Bell Company, however, seeks to keep the Power Company and its driver in the case for purposes of contribution. Bell claims that the conduct of Power's driver, La Fond, raises an issue of fact on the question of negligence in that "possibly [he] should have been able to control his vehicle after it had been struck in the rear, so as to avoid colliding with the trolley", and "the mere fact that he [Power's driver] was properly stopped at the intersection and was struck in the rear and driven into the intersection, does not relieve him of the duty of maintaining proper control of his vehicle (to whatever extent possible) and of sounding an audible warning." Bell and its driver then say that "the record is entirely bare of facts concerning these matters". Generally, issues of negligence are ordinarily not susceptible of summary adjudication. But when the moving party clearly establishes that there is no genuine issue of material fact, such judgment may be rendered. 6 Moore, Federal Practice, paragraph 56.17 [42] (2d Ed. 1953). This record contains no facts which demonstrate that the Power driver was in any way negligent. His car was struck in the rear and propelled forward. There is no evidence in the record to demonstrate that he could have done anything to prevent the accident. Bell and its driver, for the purpose of Power's motion, take on the role of plaintiffs. They cannot question the completeness of the summary judgment record by pointing to the absence of facts which their evidence before a jury might have shown, when they have made no attempt to present such evidence on this record. Berry v. Atlantic Coast Line R. Co., 4 Cir., 273 F.2d 572; Morris v. Prefabrication Engineering Co., 5 Cir., 181 F.2d 23; William J. Kelly Co. v. R. F. C., 1 Cir., 172 F.2d 865. Bell's argument that the record is entirely bare of facts concerning the maintaining of proper control by the Power driver is not adequate to resist the motion since Bell and its driver's case must be judged solely on the record they have made. Sparks Co. v. Huber Baking Co., 9 Terry 9, 96 A.2d 456; Colish v. Brandywine Raceway Ass'n, 10 Terry 493, 119 A.2d 887; Hart v. Miller, 10 Terry 477, 119 A.2d 751; Woodcock v. Udell, 9 Terry 69, 97 A.2d 878. In Bruce Const. Corp. v. United States, 5 Cir., 242 F.2d 873, 875, the Court said: "Consequently, when a movant makes out a convincing showing that genuine issues of fact are lacking, we require that the adversary adequately demonstrate by receivable facts that a real, not formal, controversy exists, and, of course, he does not do that by mere denial or holding back evidence." Further, in Zoby v. American Fidelity Co., 4 Cir., 242 F.2d 76, 80, the Court said: "It is well settled, however, that to resist a motion for summary judgment, the party against whom it is sought must present some evidence to indicate that the facts are in dispute, where the moving party's evidence has shown otherwise; * * * His bare contention that the issue is disputable will not suffice." I find no evidence in the record that any genuine issue remains for trial as to the negligence of the Power driver and, therefore, grant summary judgment in favor of the Delaware Power & Light Company and its driver, Edward V. La Fond. I now consider the Coach Company and its driver's motion for summary judgment. Plaintiff, defendant Bell and its driver argue that there is an issue of fact as to the negligence of Coach's driver. Plaintiff believes that since the Power vehicle was entering the intersection from the right of the bus, the bus should have yielded the right of way to the Power car. She argues further that the failure of the bus to yield the right of way and the failure of the driver of the Power vehicle to exert his right of way created the necessity for a *67 rapid stop by the Bell vehicle which struck the Power car. There is no evidence in the record which indicates that the Power driver was attempting to assert his right of way as against the Coach Company. In fact, the converse is true. The Power vehicle had stopped, and the record indicates that the driver had no intention of exercising his prerogative. He was forced into the intersection by the Bell vehicle, not by his attempt to assert his right, but against his will. The Power vehicle had the right to yield his right of way to the Coach vehicle, and Coach's bus was not bound to anticipate that the Bell automobile would skid into the Power automobile and drive it into the bus. The Bell Company argues that "there is no indication in the record that the Coach driver was unable to stop the trolley so as to avoid a collision," and further that there is nothing in the record to indicate that "it was necessary to bring the trolley to a sudden stop." Then Bell argues that these questions of fact must be fully developed before summary judgment can be granted in favor of the Coach Company and its driver. Again, Bell and its driver take on the role of plaintiffs for the purpose of resisting the summary judgment motion of Coach. They must show now, by counter-affidavits or other evidence, that there will be a genuine issue on the question of negligence to submit to the jury. Sparks Co. v. Huber Baking Co., supra; Colish v. Brandywine Raceway Ass'n, supra; Hart v. Miller, supra; Woodcock v. Udell, supra. There is no evidence in the record to show that the Coach driver was negligent in any way. Bell and its driver cannot rely on the possibility, or on hope or speculation, that evidence to support their position may develop at the trial. They must now come forward with any evidence that will show that the bus driver could have stopped the bus to avoid the collision or that it was unnecessary for the bus to stop suddenly. They have failed to produce any evidence in support of their position, and they have not brought themselves within the provisions of Rule 56(f), Del.C.Ann. On the record as made, even granting to plaintiff and defendants, Bell and its driver, Harold B. Short, every favorable intendment to which they might be entitled in the consideration of a motion for summary judgment, plaintiff and defendants Bell and its driver have failed to demonstrate any issue of negligence as to the Delaware Coach Company driver. I, therefore, grant summary judgment in favor of the Delaware Coach Company and its driver. Submit order on notice.

721 S.E.2d 749 (2012) KLINGSTUBBINS SOUTHEAST, INC., Plaintiff, v. 301 HILLSBOROUGH STREET PARTNERS, LLC and Theodore R. Reynolds, Defendants. No. COA11-549. Court of Appeals of North Carolina. January 17, 2012. Creech Law Firm, P.A., Raleigh, by Peter J. Sarda, for plaintiff-appellant. Harris Winfield Sarratt & Hodges LLP, Raleigh, by John Sarratt, for defendant-appellee Theodore R. Reynolds. *750 STROUD, Judge. Plaintiff appeals the trial court order allowing defendant Theodore R. Reynolds's motion to dismiss. For the following reasons, we reverse. I. Background On 13 August 2010, plaintiff filed a verified complaint against defendants requesting payment for "architectural services" which plaintiff performed for the design of a building for defendant 301 Hillsborough Street Partners, LCC ("Hillsborough"). Plaintiff also alleged a claim against defendant Theodore R. Reynolds ("Reynolds") as guarantor of defendant Hillsborough's obligation to plaintiff. Attached to plaintiff's complaint were two exhibits, both letters from defendant Reynolds, who plaintiff alleges is a principal of defendant Hillsborough. The letter dated 27 May 2009 read in pertinent part: I am writing at this time to formally acknowledge to you and your firm my awareness of the balance I currently owe you for architectural services on our Hillsborough Street Project. You and I are both fully aware of the events leadings to our project being stopped and also the fact that these events were totally uncontrollable by me and by you. However, these facts by no means are an indication of my intentions regarding my financial obligations to you. Throughout my career in this city I have answered all of my obligations and it is my sincere intent to do the same with regards to this one. As stated yesterday, I will make every effort to satisfy this account or make a serious reduction on or before the end of this year. Regardless of my success in doing this the indebtedness will be paid. The second letter, dated 8 December 2009, stated: I last corresponded with you on May 27, 2009, stating my intention regarding our account with your firm. At that time this was a serious thought, however, as the year has progressed financial conditions have worsened. The one thing that has not changed is my commitment to honor this obligation. .... I regret not being able to meet our projection, however, the obligation will be honored. On 21 October 2010, defendant Hillsborough filed an answer denying most of the substantive allegations in plaintiff's complaint and requesting that plaintiff's complaint be dismissed. Also on 21 October 2010, defendant Reynolds filed a motion to dismiss "pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure[.]" On 22 December 2010, plaintiff filed a motion for summary judgment. On 16 February 2011, the trial court allowed defendant Reynolds's motion to dismiss and allowed plaintiff's motion for summary judgment against defendant Hillsborough. Plaintiff appeals. II. Motion to Dismiss Plaintiff argues that the trial court erred in dismissing its claim against defendant Reynolds because "when a party promises to answer for the debt of another in writing, that person is bound to the debt if consideration supports the promise." (Original in all caps.) On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief. Block v. County of Person, 141 N.C.App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (citation and quotation marks omitted). Our Court has previously stated, A guaranty contract is supported by sufficient consideration if it is based on a benefit passing to the guarantor or a detriment to the guarantee. When the guaranty, as in this case, involves a pre-existing debt, it must be supported by some new consideration other than the original debt. .... *751 Although forbearance may constitute valid legal consideration, it must be based on a promise to forbear made at the time of the parties' contract. Plaintiff hereunder presented no evidence of an agreement that would have prevented plaintiff from bringing suit earlier. It is incumbent upon plaintiff to prove the consideration supporting a guaranty contract for a pre-existing debt; the law does not presume such consideration. Plaintiff, not having proved any agreement to forbear, failed to prove the consideration essential to the underlying contract. Carolina Eastern, Inc. v. Benson Agri Supply, 66 N.C.App. 180, 182-83, 310 S.E.2d 393, 395 (1984) (citations omitted). As defendant Reynolds concedes, "[t]he parties seem to agree" as to the law regarding a guaranty. However, the parties disagree as to the application of this law. Plaintiff contends that [t]he letters from a principal in the limited liability company were written to the Plaintiff and contained promises to pay the Plaintiff. In reliance on his promises, the Plaintiff took no action against the parties to collect the debt. Consideration that results from the forbearance to file a lawsuit is adequate consideration to support a contract. The letters of the Defendant Reynolds to stand for the debt of another are legally enforceable guaranties of Defendant Reynolds and the Court erred in dismissing the Complaint. Defendant Reynolds counters that the complaint and attached letters fail to show that plaintiff had threatened legal action against Hillsborough and thus that he had not sought to induce forebearance by plaintiff. Defendant Reynolds argues the letters written by Mr. Reynolds and attached to the complaint appear on their face to be unilateral and gratuitous undertakings, which do little more than acknowledge that a debt is due by the defendant 301 Partners. There is no indication either in these letters or in any allegation of the complaint that Mr. Reynolds was writing to induce any conduct on the part of Klingstubbins or in response to any threat by Klingstubbins. While the complaint alleges a forbearance to pursue collection activity against 301 Partners, there is no allegation to suggest that Mr. Reynolds' letters were written in response to any threat of such legal action or to induce any such forbearance. As such, forbearance cannot constitute consideration for any purported guaranty. We thus turn our attention to Supply Co. v. Person, 154 N.C. 456, 70 S.E. 745 (1911), a case which both parties cite as authority for their respective positions. In Supply, the "plaintiff, having an account for goods, sold and delivered, against S.H. Finch and W.R. Person for the amount of $611.46, sought to charge the defendant J.E. Person, the present appellant, as guarantor for a portion of said account." Id. at 456, 70 S.E. at 745. On 3 May 1906, defendant J.E. Person wrote a letter to the plaintiff stating that he would no longer be responsible for the drafts of Finch & Person. Id. at 457, 70 S.E. at 745. On 4 May 1906, plaintiff responded via letter and stated in pertinent part, Our extension of credit to Finch & Person has been on the basis of a letter received from you, in which you stated that you were supporting this firm with your finances. We have depended entirely upon your responsibility in making accounts with them, knowing that you are perfectly responsible for any amounts which they would probably make in their joint interest. We shall have to ask you to reconsider your determination not to accept a paper from these parties, as we know nothing of their responsibility and should not have credited them to the extent we have unless we had felt authorized so to do from your letters. We would be glad to have you say whether you will accept a paper from them to sign and forward you, and which we are perfectly willing to make on the basis of one-half and three months, if you so desire, or whether you are unwilling to do this. Id. at 457-58, 70 S.E. at 745-46. On 10 May 1906, defendant J.E. Person responded to plaintiff's letter in pertinent part: *752 Your letter of May 4th has been received. I am here at the mill of Finch & Person to see what progress they are making with their work. I find that the dry-kiln is not completed and when it is, which will be soon, I think you will get your money sooner than to sign a paper or papers for the time mentioned in your letter. Just as soon as the dry-kiln gets in operation I will see that your bill is paid. Id. at 458, 70 S.E. at 746. In response to the 10 May 1906 correspondence, on 11 May 1906, the plaintiff replied in pertinent part, Your letter of May 10th is before us, and entirely satisfactory. We presumed that the proposition to make a paper would probably be a greater accommodation to Messrs. Finch & Person than to wait on them for an early settlement; but it would appear from your letter that your preference which we presume is also theirs, is to have this paid in the ordinary way and after a short period. Id. A witness for plaintiff also testified [t]hat the letter of 11 May, 1906, was in reply to Dr. Person's letter to the company dated 10 May, 1906, and as a result of the letters referred to, the witness desisted from taking action with reference to collecting the account. That the plaintiff desisted from taking action to collect the account from Finch & Person because Dr. Person in his letter of 10 May led us to believe that he would see that our bill was paid as soon as the dry-kiln was in operation. That Dr. Person's letter of 10 May, 1906, was the cause or consideration which induced us to desist from taking any action looking to the collection of this account. That no part of this account which accrued prior to 10 May, 1906, has been paid. Id. at 459-60, 70 S.E. at 746 (quotation marks omitted). Considering the evidence noted above, our Supreme Court concluded judgment should be entered in favor of the plaintiff because on the question of consideration it is very generally held that a binding contract to forbear suit on a valid claim, for a definite time, or expressed in language that the law would interpret as a reasonable time, constitutes a sufficient consideration for a guaranty. And an agreement with the promisor to forbear, followed by forbearance, for such time, would uphold the contract. And by the weight of authority actual forbearance for such time without express agreement, but at the instance or request of the promisor, is sufficient. While the record in the former appeal left the matter in such uncertainty that the court did not feel justified in making a final decision of the case, and while there is some doubt even now as to whether the letter of plaintiff of date 11 May amounts to a distinct and definite agreement not to sue, there is no longer room for construction that the correspondence, taken in connection with the full and definite statements of the witness Burr, establishes the proposition that there was actual forbearance to sue the debtors, and that this was at the instance and request of the appellant [sic]. Id. at 461-62, 70 S.E. at 747 (emphasis added) (citations omitted). Thus, though none of the letters specifically reference a forbearance to sue, our Supreme Court concluded that the plaintiff had forborne from suing based upon defendant J.E. Person's request to forbear taking legal action and his promise to pay. Id. at 457-62, 70 S.E. at 745-47. As the complaint must be "liberally construed" for purposes of a motion to dismiss, and the complaint should not be dismissed "unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support" the claim for relief, Block, 141 N.C.App. at 277-78, 540 S.E.2d at 419, we believe that the complaint has sufficiently pled a claim upon the guarantee. Plaintiff's verified complaint alleged that "[i]n reliance on the requests by defendant Reynolds and his promises to be personally liable for the amounts owing to plaintiff, the plaintiff delayed collection action against 301 Partners for over one year" and "[i]n reliance on the promises of defendant Reynolds, the plaintiff has forborne its opportunities to seek legal redress against the defendant 301 Partners." While we do not find any specific "requests" *753 to forbear on the part of defendant Reynolds in his letters, the letters do tend to support the specific allegations of the plaintiff's complaint that defendant Reynolds requested forbearance and that plaintiff did actually forebear from collection against Hillsborough in reliance upon defendant Reynold's promise to pay. Defendant Reynolds's letters do unequivocally state that "the indebtedness will be paid" and that "the obligation will be honored." This is quite similar to J.E. Person's correspondence in Supply as his 10 May 1906 letter does not clearly request a forbearance to sue, but similarly states "I will see that your bill is paid." Id. at 458, 70 S.E. at 746. Furthermore, our Supreme Court interpreted J.E. Person's letters in Supply to be a request for the plaintiffs to forbear from suing: "there was actual forbearance to sue the debtors, and that this was at the instance and request of the appellant [sic]." Id. at 462, 70 S.E. at 747. Defendant Reynolds's letters may be interpreted as a request for plaintiff to forbear from taking legal action and a promise to pay, see id. at 457-62, 70 S.E. at 745-47, and plaintiff alleged that based upon these "requests" and "promises" it actually did forbear. Plaintiff's "reliance" upon the "requests" and "promises" is also evidenced by the fact that one of defendant Reynolds's letters dated 27 May of 2009 states that he will "make every effort to satisfy this account or make a serious reduction on or before the end of this year[,]" and plaintiff did not bring suit until August of 2010. We also note that the court in Supply was addressing an appeal after a full trial of the case, while we are considering whether granting a motion to dismiss was appropriate. See Supply, 154 N.C. 456, 70 S.E. 745. Even if defendant claims that he did not intend his letters to be "requests" for forbearance, the questions of his actual intent at the time of the letters and plaintiff's understanding of the letters are material facts which cannot be resolved under Rule 12(b)(6). We therefore conclude that plaintiff has "state[d] a claim upon which relief may be granted[.]" Block, 141 N.C.App. at 277, 540 S.E.2d at 419. III. Conclusion For the foregoing reasons, we reverse. REVERSED. Chief Judge MARTIN concurs. Judge GEER dissents in a separate opinion. GEER, Judge, dissenting. As the majority opinion points out, when a case involves a promise to guarantee an existing debt, in order for that promise to be enforceable, there must be some new consideration for that promise other than the original debt. Because I do not believe that plaintiff has pled consideration for defendant Theodore R. Reynolds' promise to pay the debt of 301 Hillsborough Street Partners ("301 Partners"), I would hold that the trial court properly granted defendant's motion to dismiss. I, therefore, respectfully dissent. The consideration for the guaranty promise must exist at the time that the promise is made. In Standard Supply Co. v. Person, 154 N.C. 456, 461, 70 S.E. 745, 747 (1911), the Supreme Court indicated that there are two ways that "forbearance" by the promisee can result in an enforceable guaranty contract as to the promisor. First, there can be an express agreement: "[I]t is very generally held that a binding contract to forbear suit on a valid claim, for a definite time, or expressed in language that the law would interpret as a reasonable time, constitutes a sufficient consideration for a guaranty. And an agreement with the promisor to forbear, followed by forbearance, for such time, would uphold the contract." Id. Second, however, there can be something less than an express agreement: "[B]y the weight of authority actual forbearance for such time without express agreement, but at the instance or request of the promisor is sufficient." Id. Plaintiff does not allege an express agreement. Instead, plaintiff seems to be relying on the second approach. There is no question that plaintiff alleges actual forbearance. The issue is whether the complaint alleges that the plaintiff's forbearance was at the request of defendant Reynolds. In ¶ 16 of the complaint, plaintiff alleges that in two letters, identified in the complaint as Exhibits A and B to the complaint, defendant *754 Reynolds "admitted to his personal liability for the amount owed"—or, in other words, Reynolds promised to pay the existing debt of defendant 301 Partners. In ¶ 17, plaintiff alleges that "[i]n reliance on the requests by defendant Reynolds and his promises to be personally liable for the amounts owing to plaintiff, the plaintiff delayed collection action against 301 Partners for over one year." ¶ 17 is the only paragraph including any reference to "requests" by Reynolds. While ¶ 17 does not specifically indicate what Reynolds was requesting, the paragraph can be construed as alleging that Reynolds requested that plaintiff delay any collection action on 301 Partners' debt. On the other hand, however, ¶¶ 16 and 17 allege that the only representations made by Reynolds are contained in Exhibits A and B to the complaint; the complaint references no other representations by Reynolds. This Court has held: "When reviewing pleadings with documentary attachments on a Rule 12(b)(6) motion, the actual content of the documents controls, not the allegations contained in the pleadings." Schlieper v. Johnson, 195 N.C.App. 257, 263, 672 S.E.2d 548, 552 (2009). Based on Schlieper, therefore, the issue is whether Exhibits A and B reflect a request by Reynolds that plaintiff forbear from pursuing collection action or other legal redress against 301 Partners. After reviewing the two exhibits, I see nothing in either letter that could possibly be construed as the necessary request. All that the letters do is state Reynolds' intent to pay plaintiff. The first letter, dated 27 May 2009, notes that the events leading to the 301 Partners' project being stopped "were totally uncontrollable by me and by you," but asserts that "these facts by no means are an indication of my intentions regarding my financial obligations to you." The letter continues: "Throughout my career in this city I have answered all of my obligations and it is my sincere intent to do the same with regards to this one." Reynolds then stated that he "will make every effort" to pay plaintiff by the end of the year, but promises that even if the payment is not made by the end of the year, the indebtedness will be paid. Nothing in the first letter makes any request that plaintiff take or refrain from taking any action or even references anything that plaintiff might or might not do. The letter contains not the slightest allusion to collection action. I believe that the letter contains only a promise to pay. The second letter dated 8 December 2009 does not seem to add anything more. It describes the May letter as "stating my intention regarding our account with your firm" (emphasis added) and promises that while financial conditions have worsened, "[t]he one thing that has not changed is my commitment to honor this obligation." The letter acknowledges that "we, like most others, are struggling" and expresses "regret" at not being able to pay by the projected end-of-the-year date. It still asserts that "the obligation will [b]e honored," although it provides no anticipated time frame. Again, I do not see even an implicit request that plaintiff do anything or refrain from doing anything. I cannot see how the letters—which control over the reference in the complaint to unspecified "requests" — can be read as providing the consideration necessary to render Reynolds' promise to pay an enforceable guaranty. I am concerned that reversing the order below that granted the motion to dismiss would allow a party to rely upon a bare promise to pay as an enforceable guaranty. With respect to Standard Supply Co. v. Person, discussed by the majority, I believe it is important to look at the Court's earlier opinion in that same case: Standard Supply Co. v. Finch, 147 N.C. 106, 60 S.E. 904 (1908). The Supreme Court, in its first opinion, considered whether evidence of (1) a letter setting out a promise by a third party to pay a partnership's existing account as soon as the partnership's dry kiln was in operation when combined with (2) a letter from the plaintiff to the third party suggesting that delay was acceptable was sufficient to prove an enforceable guaranty. The Court concluded that the letters did not, standing alone, establish the consideration necessary to make the promise to pay an enforceable guaranty. Id. at 110, 60 S.E. at 905 ("The defendant is not responsible for *755 the former portion of the account, for the lack of any valuable consideration for his promise."). The Court, however, awarded plaintiff a new trial because of concerns about the accuracy of the "case on appeal," which had been "made up by agreement of counsel." Id. In the appeal from the subsequent re-trial, the Court explained that, in the first appeal, because of uncertainty about the trial court's instructions to the jury and concerns about "the true and proper interpretation of the testimony of" plaintiff's main witness, "the Court decided that it was safer to award a new trial, that the facts might be more fully developed." Standard Supply Co., 154 N.C. at 459, 70 S.E. at 746. It appears, therefore, that there was a dispute in the first appeal regarding what plaintiff's witness had actually said at trial. The first opinion had, therefore, only addressed the sufficiency of the written correspondence to establish a guaranty. In contrast to the majority opinion, I do not believe that the Supreme Court, in its second opinion, concluded that there was adequate consideration based on the parties' letters standing alone. The first opinion established that the letters did not amount to an enforceable guaranty, and nothing in the second opinion revisits that holding. Instead, in the second opinion, the Court wrote: "While the record in the former appeal left the matter in such uncertainty that the Court did not feel justified in making a final decision of the case, and while there is some doubt even now as to whether the letter of plaintiff of date 11 May amounts to a distinct and definite agreement not to sue, there is no longer room for construction that the correspondence, taken in connection with the full and definite statements of the witness Burr, establishes the proposition that there was actual forbearance to sue the debtors, and that this was at the instance and request of the [defendant]." Id. at 461-62, 70 S.E. at 747 (emphasis added). It thus appears from the Supreme Court's second opinion that the testimony of Burr was critical in finding a request as well as actual forbearance—elements necessary for an enforceable guaranty. Plaintiff, in this case, could have included additional allegations in the complaint setting out any actual requests for forbearance— analogous to the Burr testimony in Standard Supply—but chose not to do so. The complaint contains no mention of any oral or other written representations by Reynolds relating to the promise to pay. We are, therefore, left only with the letters, which— like the letters in Standard Supply—cannot be construed as even implicitly seeking forbearance. If a letter promising to pay when a dry kiln was operational did not constitute an enforceable guaranty, then I do not see how letters promising to pay at the end of the year or at some unspecified later date could be sufficient. Accordingly, I would hold that the complaint failed to sufficiently allege consideration for Reynolds' promise to pay. I would, therefore, affirm.

792 S.W.2d 805 (1990) Murdock James KYLE & Ernest Davis, Appellants, v. WEST GULF MARITIME ASSOCIATION and International Longshoremen's Association No. 1525, Appellees. No. A14-89-00235-CV. Court of Appeals of Texas, Houston (14th Dist.). June 14, 1990. *806 Ross Asher, Tom M. White, Houston, for appellants. Eric H. Nelson, Houston, for appellees. Before J. CURTISS BROWN, C.J., and JUNELL and DRAUGHN, JJ. OPINION JUNELL, Justice. This is an appeal from a summary judgment in a suit for damages for breach of contract. Suit was brought by two union members (appellants or "members") against the union (appellee or "union") which had represented them in the negotiation of a collective bargaining agreement. Judgment was against the two members who now appeal by bringing points of error alleging: (1) the controlling law is the common law of contracts as applied in Texas and not federal labor law; and (2) there are genuine issues of material fact. We affirm. Appellants brought suit in 1979 against the union and an association which represented employers. The original petition *807 constitutes appellants' only pleadings in the record. The gist of these pleadings is a claim for damages arising under a contract between the union and appellants' employers. The breach of a collective bargaining agreement is alleged without more specificity. The pleadings assert that the terms of the contract cannot be set forth because the union and the employers refused to produce the contract for inspection. Damages sought were: $9,000 in "benefits"; $25,000 in exemplary damages; and $25,000 for mental pain and suffering. The union answered by pointing out that appellants had never filed grievances as provided for in the contract between the union and the employer, and that any necessary remedy would have resulted through arbitration if appellants had filed an appropriate grievance. The trial court granted a summary judgment against appellants which this court reversed and remanded on appeal in 1984,[1] upon which occasion this court also granted motion to dismiss the employer group, West Gulf Maritime Association. The union was the sole defendant at the second trial and is the only appellee now before us. In proof supporting a new motion for summary judgment filed after remand, the union showed the members had a grievance involving a collective bargaining agreement over which federal law applies; that the cause of action accrued not later than June 1, 1977; the members' suit was filed more than six months after the cause of action accrued; and the action was time barred by limitation under federal law. Summary judgment proof included a 1988 deposition of member Kyle (Davis was then deceased), and two contracts between the union and appellants' employer[2] properly supported by affidavit of the employer's representative who stated that no complaints or grievances had ever been filed by either of the two members concerning the supplemental benefits believed to be in dispute. Appellants responded to the motion for summary judgment only by unsworn rebuttal which asserts that the suit was brought to recover damages for failure by the union to perform on a contract between the union and its members, and that the contract between the union and the employer is a collateral issue, citing International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018 (1958), Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 445, 75 S.Ct. 489, 492-93, 99 L.Ed. 510 (1955), and Galveston Maritime Ass'n, Inc. v. South Atlantic and Gulf Coast Dist. Int'l Longshoremen's Ass'n, 234 F.Supp. 250, 252 (S.D. Tex.1964), in an attempt to persuade the court below that Texas law should be applied to an existing contract between the members and the union, in which case a four-year limitation would apply, and as a consequence, the lawsuit is not time-barred. The order granting summary judgment does not set out the grounds therefor. Under such circumstances appellants must show that each of the independent grounds alleged in the motion for summary judgment is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.—Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condominium Corp. N.V., 685 S.W.2d 755, 757 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.). The summary judgment will be affirmed on appeal if any of the theories advanced in the motion for summary judgment are meritorious. See Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140, 142 (Tex.App.— Amarillo 1984, writ ref'd n.r.e). A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. Unlike an appeal following a trial on the merits, when reviewing the grant of a summary judgment, the appellate court does not *808 view the evidence in the light most favorable to the judgment of the trial court. At either the trial or appellate level, the question is not simply whether the non-movant raised a material fact issue to defeat the motion. Unless the movant proved beyond question it was entitled to judgment as a matter of law, this court must remand the case for a trial on the merits. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-829 (Tex.1970). The standards that must be applied when reviewing a summary judgment have been clearly mandated by the Texas Supreme Court: 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-549 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Wilcox v. St. Mary's University of San Antonio, Inc., 531 S.W.2d 589, 592-93 (Tex.1975). Further, this court must not consider evidence that favors the movant unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). The judgment of the trial court cannot be affirmed on any grounds not specifically presented in the motion for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex.1979). A defendant who moves for summary judgment may show no material issue of fact exists by proving that at least one element of plaintiff's cause of action has been established conclusively against the plaintiff. Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex.1987); Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex.1983); Gibbs v. General Motors Corp., 450 S.W.2d at 828. A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Gibbs, 450 S.W.2d at 828; Dodson v. Kung, 717 S.W.2d 385, 390 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.). Appellants' pleadings complain of the breach of a contract between the employer and the union. The union's motion for summary judgment responds to those pleadings by showing the agreement brought into issue by the appellants' pleadings is controlled by federal law which has a six-month limitation on the filing of suit, that this lawsuit was time barred, and the trial court was without jurisdiction as a result. The movant for a summary judgment on the basis of the running of the statute of limitations assumes the burden of showing as a matter of law that the suit is barred by limitations. Delgado v. Burns, 656 S.W.2d 428 (Tex.1983). Viewing with favor, as we must, appellants' contention that the real issue before us is not the collective bargaining agreement itself, but another separate contract between the members and the union, and notwithstanding the lack of specific pleadings by appellants on such a second and separate contract, we find the following. It is undisputed that this action can be heard in state court. But there is an issue as to whether federal or state law applies. Appellants argue that the union renegotiated a contract with the members' employer without the consent, approval, or ratification of the union membership; that such an act is not an unfair labor practice under the National Labor Relations Act found in 29 U.S.C.A. § 158; and that state law controls a mere breach of contract controversy between the members and the union. *809 The trial court by necessity would have to review the collective bargaining agreement between the union and the employer in order to resolve the question brought by appellants on the alleged improper renegotiation of that agreement under which appellants are intended third party beneficiaries.[3] The Supreme Court of The United States has spoken a number of times over the years on the subject of proper choice of law under these circumstances. The broad authority of a union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367-68, 11 L.Ed.2d 370 (1964). A labor organization has a statutory duty of fair representation under the National Labor Relations Act to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967). The duty of fair representation has judicially evolved as part of federal labor law, pre-empting state law. See Amalgamated Ass'n of Street, Elec. Ry. and Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 1925, 29 L.Ed.2d 473 (1971). The duty of fair representation, unlike state tort and contract law, is part of federal labor policy. Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, ___ U.S. ___, 110 S.Ct. 424, 432, 107 L.Ed.2d 388 (1989). Suits involving violation of contracts between an employer and a labor organization are controlled by section 301 of the Labor Management Relations Act of 1947 ("§ 301"), codified at 29 U.S.C.A. § 185(a), which authorizes federal courts to fashion a uniform, consistent, and predictable body of federal law for the enforcement of those collective bargaining agreements. See Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957). Suits involving labor disputes under collective bargaining agreements, including actions under § 301, have been assigned the same statute of limitations as found in the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(b). See Del Costello v. International Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). No complaints shall issue based on occurrences more than six months prior to the filing thereof. 29 U.S.C.A. § 160(b). However, not every dispute tangentially involving a provision of a collective bargaining agreement is pre-empted by § 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985). Section 301 governs claims founded directly on rights created by collective bargaining agreements, and also claims "substantially dependent on analysis of a collective-bargaining agreement." Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987), quoting International Broth. of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 2166-67 n. 3, 95 L.Ed.2d 791 (1987). The application of state law is pre-empted by § 301 only if such application requires interpretation of the collective-bargaining agreement itself. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988). We hold in the case before us there is no way a trial court could examine the questions raised by the members without a substantial review, interpretation and construction of the collective bargaining agreement between the union and the employers, and for that reason the issue must be controlled by federal law, including the six month limitation invoked thereby. Because the cause of action is shown to be barred by the controlling federal statute of limitations, appellants have failed in *810 their burden and we overrule point of error number one. Without a viable cause of action for review there is no need to consider the existence of any material issues of fact. Point of error number two is moot. The judgment of the trial court is affirmed. NOTES [1] See Tex. App.—Houston 14th Dist. File No. B14-83-326-CV, April 5, 1984: [Reversal was for failure to file competent summary judgment proof.] [2] One contract is for the period October 1, 1974 through September 30, 1977. The second contract is for the period October 1, 1977 through September 30, 1980. [3] The Kyle deposition conclusively shows appellants are claiming a recovery of either guaranteed annual wages, vacation pay, sick pay, or unemployment benefits under the collective bargaining agreement between the union and appellants' employer.

12 Cal.Rptr.3d 506 (2004) 117 Cal.App.4th 1156 The GARMENT WORKERS CENTER, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Fashion 21, Inc., et al., Real Parties in Interest. No. B163168. Court of Appeal, Second District, Division Seven. April 21, 2004. ACLU Foundation of Southern California, Daniel P. Tokaji, Mark D. Rosenbaum, Peter Eliasberg, Los Angeles; Loeb & Loeb, Douglas E. Mirell and Orit H. Michiel, Los Angeles, for Petitioners. No appearance for Respondent. Latham & Watkins, Wayne S. Flick, Robin D. Dal Soglio, Anthony N. Luti, Brian T. Glennon and Yury Kapgan, Los Angeles, for Real Parties in Interest. *507 Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, and Ralph Lightstone, Deputy Attorney General, as Amicus Curiae on behalf of People of the State of California ex rel. Bill Lockyer, Attorney General. JOHNSON, J. As a general rule, once a SLAPP motion is filed all discovery proceedings in the action are stayed until the trial court rules on the motion. The trial court, however, may lift the discovery stay "for good cause shown."[1] In this petition for a writ of mandate defendants in an action for libel contend the trial court abused its discretion in permitting plaintiffs to conduct discovery on the issue of actual malice prior to the hearing on defendants' motion to strike plaintiffs' libel claim as a SLAPP.[2] Defendants contend they should not have been required to shoulder the expensive and time-consuming burden of complying with plaintiffs' discovery demands until the trial court first determined whether plaintiffs had a reasonable probability of establishing the other elements of a libel action, particularly the making and publishing of a defamatory statement. Plaintiffs contend limited discovery on the issue of actual malice is necessary in order for them to establish a reasonable likelihood of success on their libel cause of action. We conclude under the facts of this case the trial court abused its discretion in permitting discovery on the issue of actual malice before first determining, after briefing and argument, whether the plaintiffs had a reasonable probability of establishing the other elements of their libel cause of action. For this reason, we will issue a writ of mandate directing the trial court to vacate its discovery order and proceed to hear defendants' SLAPP motion on the merits. FACTS AND PROCEEDINGS BELOW Fashion 21, a retailer of women's apparel, and one of its owners, Do Won Chang, brought an action for libel and other torts against two non-profit organizations, The Garment Workers Center (GWC) and Sweatshop Watch, and two GWC employees, Joann Lo and Kimi Lee.[3] Defendants advocate on behalf of low-income immigrant workers, including garment workers employed in "sweatshops" in downtown Los Angeles. In 2001, GWC and another non-profit organization, the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) took up the cause of 19 garment workers who claimed they were being exploited by their employers who failed and refused to pay them minimum wage and overtime, denied them meal and rest breaks and required them to work in facilities which were poorly lit and ventilated, filled with *508 fabric dust, infested with rats and vermin and lacked accessible fire exits. The manufacturers who employed these workers were all located in Los Angeles and produced garments sold by Fashion 21. After unsuccessfully attempting to negotiate an agreement with Fashion 21 to accept responsibility for, and pay its proportionate share of, the wages allegedly due these workers GWC and CHIRLA went public with their concerns over the workers' treatment. This included staging demonstrations in front of Fashion 21's stores, issuing press releases and posting web site articles describing the workers' plight and calling on Fashion 21 to pay these workers. Fashion 21 brought an action against GWC and CHIRLA claiming, among other things, the defendants defamed it by proclaiming in their demonstrations, leafleting, press releases and web site postings Fashion 21 owed these workers substantial amounts of unpaid wages and other employment benefits for sewing clothes bearing its "Forever 21" clothing label. These statements were false and made with malice, Fashion 21 contended, because defendants were well aware none of the complaining garment workers were ever employed by Fashion 21. GWC and CHIRLA maintain their statements regarding Fashion 21's liability for the workers' wages are true based on the California Labor Commissioner's interpretation of sections 2671 and 2673.1 of the Labor Code which makes persons engaged in "garment manufacturing" liable for payment of wages to employees of the companies with whom they contract to have garment operations performed.[4] GWC and CHIRLA filed separate motions to strike Fashion 21's complaint as a SLAPP suit on the grounds the complaint arose from their exercise of their First Amendment right of free speech in connection with a public issue and Fashion 21 could not establish a reasonable probability of prevailing on the merits. Although both SLAPP motions essentially raised the same issues they took divergent paths. CHIRLA's motion proceeded directly to a hearing on the merits and was denied.[5] GWC's motion, however, was continued to permit Fashion 21 to conduct limited discovery on the issue of whether GWC made the allegedly defamatory statements with actual malice. The trial court's order allows Fashion 21 to depose GWC employees Lo and Lee for up to three hours each. GWC seeks a writ of mandate directing the trial court to vacate its discovery order. We issued an order to show cause and stayed further proceedings in the trial court. We now grant the petition for the reasons explained below. DISCUSSION "[T]he common features of SLAPP suits are their lack of merit and chilling of defendants' valid exercise of free speech and the right to petition the government for a redress of grievances.... Section 425.16 was intended to address those features by providing a fast and inexpensive unmasking and dismissal of SLAPP's."[6] At the same time, the anti-SLAPP procedures were designed so that legitimate claims were not dismissed merely because *509 they were tested at an early stage in the proceedings when the plaintiff had only a limited opportunity to conduct discovery.[7] Recognizing discovery is usually the most time-consuming and expensive aspect of pre-trial litigation, the Legislature sought to balance the need to protect defendants exercising their freedom of speech from having their personal and financial resources exhausted by SLAPPers' discovery demands with the need to permit legitimate plaintiffs to conduct necessary discovery before their suits were subjected to dismissal for failure to establish a prima facie case.[8] To these ends section 425.16, subdivision (g) automatically stays all discovery in the action as soon as a SLAPP motion is filed but permits the trial court to lift this ban upon a showing of good cause. In Lafayette Morehouse, Inc. v. Chronicle Publishing Co., a libel action, the court concluded good cause to lift the SLAPP statute's discovery ban exists "[i]f the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case[.]"[9] The court noted plaintiff's discovery in a libel suit "is of prime import" because the defendant "will generally be the principal, if not the only, source of evidence concerning such matters as whether the defendant knew the statement published was false, or published the statement in reckless disregard of whether the matter was false and defamatory, or acted negligently in failing to learn whether the matter published was false and defamatory."[10] The court's opinion suggests it would have found good cause to permit the plaintiff to engage in discovery on the issue of malice prior to the hearing on defendant's SLAPP motion had the plaintiff sought such permission. The plaintiff, however, did not seek to have the discovery ban lifted so Lafayette's discussion of good cause for discovery in libel actions is dictum. We are in general agreement, however, with the Lafayette court's analysis of good cause for lifting the ban on discovery while a SLAPP motion is pending. Surely the fact evidence necessary to establish the plaintiff's prima facie case is in the hands of the defendant or a third party goes a long way toward showing good cause for discovery. But it is not the only factor. The trial court should consider whether the information the plaintiff seeks to obtain through formal discovery proceedings is readily available from other sources or can be obtained through informal discovery.[11] The court should also consider the plaintiff's need for discovery in the context of the issues raised in the SLAPP motion. If, for example, the defendant contends the plaintiff cannot establish a probability of success on the merits because its complaint is legally deficient,[12] no amount of discovery will cure that defect. In a libel case, unless it appears on the face of the complaint the plaintiff will be required to establish actual malice, or the defendant makes such a contention in its SLAPP motion, there is no need for the plaintiff to *510 engage in discovery on that issue in order to show a reasonable probability of success on the merits. Even if it looks as if the defendant's actual malice may be an issue in the case, if it appears from the SLAPP motion there are significant issues as to falsity or publication — issues which the plaintiff should be able to establish without discovery — the court should consider resolving those issues before permitting what may otherwise turn out to be unnecessary, expensive and burdensome discovery proceedings. Turning to the cause before us, we conclude the trial court abused its discretion in permitting Fashion 21 to depose GWC's employees Lo and Lee for six hours on the issue of malice before determining whether there was a reasonable probability the court would ever reach that issue. Our conclusion is based on the following considerations. GWC raised a meritorious challenge to the pleadings, contending the complaint failed to state a cause of action for libel. In addition, there are serious questions about the falsity of the statements GWC is alleged to have made with respect to Fashion 21. These questions may be resolvable as a matter of law as they were in the companion case of Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles.[13] The only basis for requiring proof of actual malice in this case is GWC's characterization of the disagreement between it and Fashion 21 as a "labor dispute." Fashion 21 disputes this characterization. Again, this issue may be decided as a matter of law based on the evidence already in the record. If the trial court determines Fashion 21 and GWC are not engaged in a labor dispute then there would be no need for discovery on the issue of actual malice. Finally, we are mindful this case is the very kind of case the anti-SLAPP statute was designed to address: an action for defamation by a large, well-financed corporation acting in its corporate interest against a small, non-profit organization advocating for social justice on behalf of a disadvantaged class.[14] This does not necessarily mean Fashion 21's suit is a SLAPP. It does mean, however, the protection afforded the defendant by a freeze on discovery while a SLAPP motion is pending is particularly compelling in balancing the interests of the parties in this action.[15] DISPOSITION Let a peremptory writ of mandate issue directing the trial court to vacate its order granting plaintiff Fashion 21's motion to conduct limited discovery as to defendants Garment Workers Center, Sweatshop Watch, JoAnn Lo and Kimi Lee and to issue a new and different order denying the motion. If, after briefing and argument on the SLAPP motion, the trial court determines Fashion 21 otherwise has a reasonable probability of success on the merits of its libel cause of action and actual malice is an issue in that cause of action, the court may consider issuing a discovery order limited to that issue. Petitioners are awarded their costs. We concur: PERLUSS, P.J., and WOODS, J. NOTES [1] Code of Civil Procedure section 425.16, subdivision (g) states: "All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." [2] Code of Civil Procedure section 425.16, subdivision (b)(1) states: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." [3] Unless otherwise noted, "GWC" will refer to all four defendants. [4] We discuss Fashion 21's liability under these statutes in our companion decision Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, 117 Cal.App.4th 1138, 12 Cal.Rptr.3d 493, 2004 WL 843610 (2004). [5] We reversed the order denying CHIRLA's motion in Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, supra. [6] Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, 33 Cal.Rptr.2d 446. [7] Wilcox v. Superior Court, supra, 27 Cal.App.4th at page 823, 33 Cal.Rptr.2d 446. [8] Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1021, 5 Cal.Rptr.3d 668. [9] Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868, 44 Cal.Rptr.2d 46. [10] Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 37 Cal.App.4th at page 868, 44 Cal.Rptr.2d 46. [11] Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 191-192, 118 Cal.Rptr.2d 330. [12] See Wilcox v. Superior Court, supra, 27 Cal.App.4th at page 823, 33 Cal.Rptr.2d 446. [13] See footnote 4, ante. [14] See Wilcox v. Superior Court, supra, 27 Cal.App.4th at pages 815-816, 33 Cal.Rptr.2d 446. [15] See Slauson Partnership v. Ochoa, supra, 112 Cal.App.4th at page 1021, 5 Cal.Rptr.3d 668.

Order entered July 30, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00782-CV FRISCO SQUARE DEVELOPERS, L.L.C., Appellant V. GEARBOX SOFTWARE, L.L.C., Appellee On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-02307-2015 ORDER We GRANT appellant’s July 28, 2015 unopposed motion for an extension of time to file a brief. Appellant shall file a brief by AUGUST 20, 2015. We caution appellant that no further extension of time will be granted in this accelerated absent extraordinary circumstances. /s/ ELIZABETH LANG-MIERS JUSTICE 

79 So.3d 29 (2012) McCLAMMA v. McCLAMMA. No. 2D10-5838. District Court of Appeal of Florida, Second District. February 8, 2012. DECISION WITHOUT PUBLISHED OPINION Affirmed.

143 B.R. 917 (1992) In re James E. BORCHERT, Debtor. Bankruptcy No. 83-05518. United States Bankruptcy Court, D. North Dakota. July 15, 1992. *918 Phillip D. Armstrong, Chapter 7 Trustee. Max D. Rosenberg, Bismarck, N.D., for debtors. Brad A. Sinclair, Fargo, N.D., for Equitable Life. ORDER WILLIAM A. HILL, Bankruptcy Judge. This matter is before the court on motion for reconsideration filed on July 7, 1992, by Equitable Life Assurance Society of the United States (Equitable) and Guardian Life Insurance Company of America (Guardian). By the instant motion the movants ask the court to vacate both its order of contempt entered June 8, 1992, as well as its earlier order for turnover entered August 19, 1991. Although both orders were entered after notice and opportunity for hearing and although both movants acknowledge having received copies of the trustee's motion for turnover and later motion for contempt, neither filed a formal response with the court. Both claim not to have been aware of the Debtor's bankruptcy filing until receipt of the trustee's motion for turnover by which time neither was in actual possession of estate property. Before discussing the merits of these arguments, a brief history of the relevant facts will be recounted. The Debtor filed for relief under Chapter 7 on October 11, 1983. Schedules filed contemporaneously with the petition revealed IRA funds held by Equitable in the sum of $2,041.11 and by Guardian in the sum of $3,572.18. The predecessor trustee, William Daner, by letters dated February 25, 1985, and addressed to Equitable and Guardian respectively, advised them of the date of the Debtor's Chapter 7 filing, his status as trustee and formally demanded that they surrender possession of the respective sums to him pursuant to provisions of the United States Bankruptcy Code. The letters were copied to the Debtor's attorney, Ross H. Espeseth, who in turn sent identical letters to Equitable and Guardian again advising them of the date of the Debtor's bankruptcy filing but further advising them of a dispute between the Debtor and the trustee over rights to the IRA accounts. Mr. Espeseth asked that the funds not be turned over to the trustee until the dispute was resolved. Espeseth's letter was dated March 4, 1985. No further correspondence took place until Trustee Armstrong assumed control of the case as successor trustee. On November 20, 1990, he made another letter demand upon both Equitable and Guardian for turnover of the IRA funds. Both Equitable and Guardian responded to the letter advising Armstrong that the accounts were no longer active and that no funds were in their possession currently. These responses prompted a formal motion for order directing turnover which neither Equitable nor Guardian responded to. The ensuing order for turnover entered August 19, 1991, directed Equitable and Guardian to deliver to the trustee the IRA funds as revealed in the Debtor's schedules, for an accounting or for delivery of their value. No turnover occurred and on May 6, 1992, the trustee moved for a finding of contempt. Again no formal response was filed. Equitable did, however, submit a letter to the clerk's office advising that no account existed. No appearance by either Equitable or Guardian was made at a contempt hearing held on May 27, 1992. In defense of their failure to respond to the several motions, both movants assert that since they had no funds in their possession at the time Trustee Armstrong filed his motion for turnover, and having previously advised Armstrong of this fact, they felt a formal reply unnecessary. *919 According to Equitable's records, the Debtor did open an IRA account with Equitable but, unaware of any competing claim to the funds, Equitable asserts that it returned the IRA funds to the Debtor in 1987. Similarly, Guardian issued an IRA product to the Debtor in 1975 but also asserts that upon request made by the Debtor, it surrendered the funds to the Debtor in 1986 unaware of any competing claim. Both profess to not have received Trustee Daner's 1985 turnover demand nor Attorney Espeseth's follow up letter. Consequently, both claim not to have had knowledge of the pending Chapter 7 nor the trustee's claim to the IRA funds until Trustee Armstrong's involvement in the case. Equitable says it knew nothing of the Debtor's bankruptcy filing until receiving Armstrong's motion for turnover. Guardian claims it knew nothing until receiving Armstrong's November 1990 demand letter. Critical is whether Equitable and Guardian can be presumed to have had notice of the Debtor's Chapter 7 filing. It is upon this issue that all else turns. Once a petition in bankruptcy is filed, section 362 imposes an automatic stay which prevents anyone from "exercising control over property of the estate". 11 U.S.C. § 362(a)(3). Moreover, section 542 places an affirmative duty upon an entity in possession of property belonging to the estate to surrender the same to the trustee. See generally, In re Knaus, 889 F.2d 773 (8th Cir.1989) where the court, recounting the principles behind section 542, recalled the following language of Chief Bankruptcy Judge Dennis Stuart: "The principle is simply this: That a person holding property of a debtor who files bankruptcy proceedings becomes obligated, upon discovering the existence of the bankruptcy proceedings, to return that property to the debtor (in Chapter 11 or 13 proceedings) or his trustee (in Chapter 7 proceedings)." 889 F.2d at 775. Section 542, however, is more than a mere provision for turnover. Turnover is in essence a replevin type proceeding and obviously a person or party not in possession of property cannot return the property itself. There simply cannot be turnover of property that does not exist. Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948); In re Robertson, 105 B.R. 440 (Bankr. N.D.Ill.1989). The section provides for more than turnover of the actual property. It also provides that: ". . . an entity . . . in possession . . . during the case of property that the trustee may use, sell or lease under section 363 . . . shall deliver to the trustee, and account for, such property, or the value of such property. . . . " The foregoing is applicable to any entity that possessed property belonging to the debtor at any time during case pendency, whether or not it had possession at the time a demand for turnover was made. It means that such entity must account to the trustee for the property itself or be prepared to surrender its value if for some reason the property itself no longer exists. What this means in a Chapter 7 is that if an entity in possession of estate property receives notice of the bankruptcy filing but nonetheless transfers the property to anyone other than the trustee, it does so at its peril. In the absence of the property itself the trustee in such instance is entitled to recover the value of the estate property from the entity making the transfer. In the case at bar, Trustee Armstrong sought and obtained an order directing turnover of the property itself or delivery of the value of the property. The only exception to a trustee's right to recover the value of estate property wrongfully transferred is if at the time of the transfer the entity had neither actual notice nor actual knowledge of the commencement of the case and the transfer was made in good faith. 11 U.S.C. § 542(c); In re Gailey, 119 B.R. 504 (Bankr.W.D.Pa. 1990). Equitable and Guardian were under a duty to at least freeze the Debtor's IRA accounts and not permit the Debtor to gain control of them once they received notice of *920 knowledge of the pending bankruptcy case. The exculpatory provision of section 542(c) brings us back to the question of whether Equitable and Guardian can be presumed to have received notice. Recall in 1985 each was sent a letter by Trustee Daner as well as one by the Debtor's attorney, Mr. Espeseth. It is a long standing principle that mail that is properly addressed, stamped and deposited in the mails is presumed to be received by the addressee. Arkansas Motor Coaches v. Commissioner of Int. Rev., 198 F.2d 189 (8th Cir.1952); In re Bucknum, 951 F.2d 204 (9th Cir.1991). The presumption of receipt is a strong one not easily overcome by a mere affidavit to the contrary. It is entirely possible that one or the other of the movants might not have received one or the other of the 1985 letters but it is incredulous to think that four letters sent by two different people were not received by two different intended recipients. An affidavit suggesting non-receipt of a single letter by a single recipient might be worthy of belief but for two separate entities to both claim to have no record of receiving the letters is a rather convenient defense at this late date. Countering the movants' suggestion is Mr. Espeseth's testimony given at the May 24th hearing wherein he stated that he received a copy of Trustee Daner's demand letter. This would suggest that the letters were indeed mailed. This court is satisfied that Equitable and Guardian have failed to overcome the presumption of receipt and must therefore be regarded as having had notice and knowledge of the Debtor's October 11, 1983, bankruptcy petition when, in 1987 and 1986 they transferred to the Debtor IRA funds belonging to the estate and which, under section 542, they were obligated to surrender to the trustee. As a consequence, the section 542(c) exception does not relieve either of them from paying over to Trustee Armstrong the value of the IRA funds in their respective control as of October 11, 1983. For the foregoing reasons the motion for reconsideration and relief from the contempt order is DENIED. This court's order finding Equitable Life Assurance Society of the United States and Guardian Life Insurance Company of America in contempt stands as entered. SO ORDERED.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-8014 ___________ David Saab, on behalf of himself * and all others similarly situated, * * Petitioner, * Petition for Permission to * Appeal from the United States v. * District Court for the * Western District of Missouri. Home Depot U.S.A., Inc., a * Delaware corporation, * * Respondent. * ___________ Submitted: September 26, 2006 Filed: November 22, 2006 ___________ Before WOLLMAN, BRIGHT, and MELLOY, Circuit Judges. ___________ BRIGHT, Circuit Judge. David Saab filed a suit against Home Depot in Missouri state court on behalf of himself and others. Home Depot removed the putative class action to federal district court1, showing that the parties are diverse and the amount in controversy exceeded $75,000. See 28 U.S.C. §§ 1332(a) (traditional diversity jurisdiction), 1441 (describing removal). The district court then denied Saab’s motion to remand his case 1 The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri. to the Circuit Court of Jackson County, Missouri. Saab now petitions this court to accept an appeal, pursuant to 28 U.S.C. § 1453(c)(1), to review the district court’s decision. We determine, however, that § 1453(c)(1) does not permit us to accept an appeal from the denial of a motion to remand when a class action has been removed to federal court on the basis of traditional diversity jurisdiction, § 1332(a). Because we lack appellate jurisdiction, we dismiss Saab’s petition. Our authority to review the denial of a motion to remand is strictly limited. See 28 U.S.C. § 1447(d); Caterpillar, Inc., v. Lewis, 519 U.S. 61, 74 (1996) (order denying motion to remand generally not final order subject to review). Saab, however, attempts to avail himself of the review provisions contained in the Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005). CAFA vests original jurisdiction in the federal district courts if a class action meets several criteria.2 See 28 U.S.C. § 1332(d). In order to “develop a body of appellate law interpreting the legislation without unduly delaying the litigation of class actions,” S. Rep. No. 109-14, at 49 (2005), the Act permits our court to “accept an appeal from an order of a district court granting or denying a motion to remand a class action.” See 28 U.S.C. § 1453(c)(1). Saab urges us to interpret § 1453(c)(1) expansively and to give federal courts of appeal the jurisdiction to review the grant or denial of a motion to remand any class action. This argument does not differentiate between class actions removed pursuant to § 1332(a) (traditional diversity jurisdiction) or § 1332(d) (CAFA diversity jurisdiction). We reject this contention. 2 Home Depot made no assertion of jurisdiction under CAFA provisions under § 1332(d) where the sum in controversy must exceed $5,000,000 excessive of interest and costs. -2-  CAFA added section § 1453(c), “Review of remand orders,” which applies “to any removal of a case under this section.” See 28 U.S.C. § 1453(c)(1). Saab suggests that “this section” must refer to § 1453, which, according to petitioner, does not limit its scope to class actions removed under § 1332(d). Section 1453(a), however, defines “class”, “class action”, “class certification order”, and “class member” by reference to § 1332(d)(1), the diversity jurisdiction provision added by CAFA. See § 1453(a). Thus, we do not interpret “class action” as it is employed in § 1453(c) to encompass all class actions. Rather, we must limit § 1453(c)’s review provisions to those class actions brought under CAFA. Our reading is consistent with the legislative history of CAFA, which includes the observation that, “[n]ew subsection 1453(c) provides discretionary appellate review of remand orders under this legislation but also imposes time limits.” S. Rep. No. 109-14, at 49 (emphasis added). We therefore hold, joining our sister the Fifth Circuit, see Patterson v. Morris, 448 F.3d 736, 742 (5th Cir. 2006); Wallace v. Louisiana Citizens Prop. Ins. Corp., 444 F.3d 697, 700 (5th Cir. 2006), that the review provisions of 28 U.S.C. § 1453(c) are limited to class actions brought under CAFA, 28 U.S.C. § 1332(d). Accordingly, we dismiss the petition for permission to appeal. ______________________________ -3- 

688 S.E.2d 295 (2010) 55 Va. App. 637 Travis Wayne LAMM, a/k/a Travis Lamb v. COMMONWEALTH of Virginia. Record No. 0085-09-2. Court of Appeals of Virginia, Richmond. February 9, 2010. *296 Christopher C. Graham (Eustis & Graham, PC, on brief), Charlottesville, for appellant. Kathleen B. Martin, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee. Present: BEALES, POWELL and ALSTON, JJ. RANDOLPH A. BEALES, Judge. Travis Wayne Lamm (appellant) was convicted by a jury of aggravated malicious wounding, pursuant to Code § 18.2-51.2. He argues on appeal that the trial court erred by denying his motion for a new trial based on after-discovered evidence.[1] He claims that, after the trial, the victim's "permanent and significant physical impairment" disappeared.[2] We find the trial court did not err. I. BACKGROUND Appellant's girlfriend, Ms. S.[3], received a call from appellant asking her to pick him up from a bar. When Ms. S. arrived, appellant was "very intoxicated." Ms. S. first drove to her own house, then she drove appellant to his home. Rather than getting out of the car, appellant told Ms. S. that he wanted to have sexual intercourse with her. Ms. S. refused, and an argument ensued. Appellant then began assaulting Ms. S. During his assault, appellant attempted to strangle Ms. S. She eventually was able to get out of the car, but appellant caught her and hit her in the back of the head. He then began hitting Ms. S. numerous times in the face. At trial, Ms. S. could not say how many times he hit her because she passed out during the attack. When she came around, Ms. S.'s nose and face were bleeding. She tried to call for help on her cell phone, but appellant grabbed it and broke it. Ms. S. then told appellant that she needed to go to the hospital. Appellant apparently agreed. He gave his t-shirt to Ms. S. to hold against her nose, and he drove her to the hospital. When they arrived there, appellant parked the car, gave the keys to Ms. S., and walked away. Ms. S. went into the emergency room, where she received immediate attention. Eventually, Ms. S. had to have her nose reset and had "some metal plates" put in her forehead, *297 according to her surgeon. As a result of appellant's attack, Ms. S. lost her sense of smell and her sense of taste. In addition, a number of her teeth were "numb." Ms. S. testified at trial that she had not regained her sense of taste or smell, and her teeth were still numb. At trial, Ms. S.'s facial plastic surgeon, Dr. Stephen Park, explained to the jury that appellant broke "bones in her face" around her nose and eye sockets. He characterized it as a "complex fracture," rather than indicating the number of broken bones in her face, although he identified four areas of her face where the bone was broken. Dr. Park explained that during surgery he had to bring "these broken bones back into alignment, put some metal plates to hold them in position, [and] put some splints inside her nose to re-project it to give it its definition." He described these plates as "permanent" in the sense that they would not dissolve, but "not permanent" in the sense that they could perhaps eventually be removed. There was no evidence that the plates would ever be removed, given that Dr. Park testified that he anticipated no further surgery. Dr. Park also testified that Ms. S. had informed him that "she couldn't smell very well." When asked by the prosecutor if this condition was likely to be permanent, Dr. Park responded, "Unpredictable." He described Ms. S.'s prognosis as "good." After hearing this evidence, the jury convicted appellant of aggravated malicious wounding and recommended a sentence of twenty years. At the subsequent sentencing hearing before the trial court, the Commonwealth informed the trial court that Ms. S.'s sense of taste and of smell had returned, admitting that this development might justify a reduction in the jury's recommended sentence.[4] Appellant argued that this development was "more than just mitigating," contending that the trial court should grant him a new trial "pursuant to Rule 3A:15." The Commonwealth called Ms. S. as a witness during this hearing. She testified that she was now "able to taste and smell everything." She also explained that these senses returned after the jury trial, over the course of about a month. The trial court denied appellant's motion for a new trial and then sentenced appellant to twenty years in prison, with ten years of that sentence suspended. Appellant then appealed his conviction to this Court. II. ANALYSIS A. Standard of Review Rule 3A:15(c) allows a trial court to "grant a new trial if it sets aside the verdict" based on after-discovered evidence. A motion for a new trial based on after-discovered evidence "is a matter submitted to the sound discretion of the circuit court and will be granted only under unusual circumstances after particular care and caution has been given to the evidence presented." Orndorff v. Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006); see also Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983) ("Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance."). B. After-Discovered Evidence To establish that a trial court should grant a motion for a new trial based on after-discovered evidence, a defendant must prove four things: 1). that the evidence was discovered after the trial; 2). that the evidence could not have been discovered, through the exercise of due diligence, prior to the trial; 3). that the evidence is not merely cumulative, corroborative, or collateral; 4). that the evidence is material to the extent that it is likely to produce different results from a new trial. See Garnett v. Commonwealth, 275 Va. 397, 416-17, 657 S.E.2d 100, 112, cert. denied, ___ *298 U.S. ___, 129 S.Ct. 116, 172 L.Ed.2d 90 (2008); Orndorff, 271 Va. at 501, 628 S.E.2d at 352; Odum, 225 Va. at 130, 301 S.E.2d at 149. The Virginia courts have used this standard for over 100 years. See, e.g., Thompson v. Commonwealth, 49 Va. (8 Gratt.) 637, 641 (1851) ("[A]fter-discovered evidence in order to afford proper ground for a new trial, must be such as reasonable diligence on the part of the party offering it, could not have secured at the former trial: must be material in its object, and not merely cumulative and corroborative or collateral; and must be such as ought to be decisive, and productive, on another trial, of an opposite result on the merits."). Here, the first three prongs were clearly proven by appellant. On appeal, the Commonwealth argues only that the evidence of Ms. S.'s recovery was not material to the extent that the outcome of the trial would have been affected by the return of her sense of smell and of taste. The Commonwealth argues that the plates that remained in Ms. S.'s face would still require that a jury convict appellant of aggravated malicious wounding. Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923), Whittington v. Commonwealth, 5 Va.App. 212, 361 S.E.2d 449 (1987), and Gatling v. Commonwealth, 14 Va.App. 60, 414 S.E.2d 862 (1992), are three of the very few cases where our appellate courts have found that a motion for a new trial should have been granted. All of these cases involved evidence that, if believed credible, would clearly have resulted in an acquittal. For example, in Hines, the only evidence linking Hines to the murder of a police officer was a cap found at the scene that several people testified belonged to Hines. 136 Va. at 734, 117 S.E. at 844. After the trial, it was discovered that another man (who owned a similar cap, owned the same caliber gun as the one that killed the officer, did not have an alibi for that night, and was working as a bootlegger like Hines on the night of the murder and near the scene of the murder) had confessed to the murder of the officer and said that Hines was not guilty. Id. at 737, 117 S.E. at 845. The Supreme Court found, "this new evidence, if [the factfinder] had heard and believed it, would necessarily have produced a different result." Id. at 750-51, 117 S.E. at 849 (emphasis added). In Whittington, this Court concluded that, when the after-discovered evidence is a retraction of the testimony of the Commonwealth's key witness—who was the only other person there during the commission of the alleged crime—saying the crime never occurred, the defendant's motion for a retrial should be granted. 5 Va.App. at 216-17, 361 S.E.2d at 452. Similarly, in Gatling, this Court found that a trial court erred in denying a motion for a new trial where the newly discovered evidence indicated that the victim of a rape had told a friend that Gatling did not rape her. 14 Va.App. at 63, 414 S.E.2d at 864. Here, we are confronted with a situation in which the credibility of after-discovered evidence is unquestioned, unlike in Hines, Whittington, and Gatling (in fact, the Commonwealth concedes it is true), which makes appellant's argument initially appear to be strong for reversal and remand of his case. However, unlike in Hines, Whittington, and Gatling—where the after-discovered evidence, if believed, would clearly prove the defendants were not guilty—in the case before this Court, the new evidence would not definitively prove that appellant did not commit aggravated malicious wounding. Here, unlike in Hines, Whittington, and Gatling, the jury had evidence, in addition to the loss of taste and smell, to consider as proof of the "aggravated" element of appellant's conviction, which requires that the injury inflicted in the attack be permanent and significant. Code § 18.2-51.2. To be convicted of aggravated malicious wounding under Code § 18.2-51.2, the injuries inflicted on the victim must be both a "significant physical impairment" and "permanent." Case law defines "physical impairment" for purposes of this criminal statute as "`any physical condition, anatomic loss, or cosmetic disfigurement.'" Newton v. Commonwealth, 21 Va.App. 86, 90, 462 S.E.2d 117, 119 (1995) (quoting Code § 51.5-3) (emphasis omitted). To prove an injury is permanent, the Commonwealth need not present definitive testimony that a victim's injuries *299 will never improve, but instead can leave it to the common sense of the jury to determine if the injuries are permanent. Martinez v. Commonwealth, 42 Va.App. 9, 23-25, 590 S.E.2d 57, 64 (2003). Though the victim's injuries in the instant case are perhaps not as visible as the injuries discussed in cases like Cottee v. Commonwealth, 31 Va.App. 546, 556-57, 525 S.E.2d 25, 30-31 (2000), or Newton, 21 Va.App. at 90, 462 S.E.2d at 119, where the records included evidence of the victims' scarring on the day of trial, it would strain credulity here to hold as a matter of law that the insertion of permanent metal plates in Ms. S.'s face does not constitute a permanent physical injury, especially as the evidence proved that those plates remained in Ms. S.'s face at the time of trial and the surgeon said he did not intend to remove them. In addition, the after-discovered evidence that was presented during appellant's sentencing hearing did not indicate that Ms. S.'s numbness in her teeth had stopped. This numbness was before the jury for its consideration as part of the significant and permanent injury done to Ms. S. by appellant. The jury also examined pictures of Ms. S. taken fairly soon after appellant's attack, and they could observe her on the witness stand, which gave them additional evidence to consider in determining whether she was permanently and significantly injured. We also note that Dr. Park testified before the jury that he could not say if Ms. S.'s loss of smell and taste was permanent. He gave this trial testimony over five months after appellant's attack on Ms. S., when she still had not recovered her sense of smell and of taste. Thus, the jury had evidence before it that her sense of smell and taste might well return. Her eventual recovery of her sense of smell and taste, almost a year after appellant's brutal attack on Ms. S., did not require that the trial court grant appellant's motion for a new trial based on this evidence. The improvement in her taste and smell was foreseeable by the jury, and additional evidence before the jury—independent of her sense of taste and smell—proved that Ms. S. was significantly and permanently injured by appellant's attack even after the return of these senses. III. CONCLUSION Keeping in mind the steep burden imposed by the standard of review for motions requesting a new trial based on after-discovered evidence, we find the trial court did not err in denying appellant's motion for a new trial based on after-discovered evidence. Affirmed. NOTES [1] In his question presented, appellant also suggests that he made a motion to set aside the verdict pursuant to Rule 3A:15. However, on brief, he argues only that he is entitled to a new trial, not to dismissal of his conviction. Therefore, pursuant to Rule 5A:20(e), we do not consider this second contention in his question presented. See Mason v. Commonwealth, 49 Va. App. 39, 46 n. 2, 636 S.E.2d 480, 483 n. 2 (2006). [2] Under Code § 18.2-51.2(A), [i]f any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment. [3] We use this designation for the victim rather than her actual name so as to better protect her privacy. [4] This sentencing hearing was finally held almost eleven months after appellant's assault on Ms. S. and over five months after appellant's jury trial.

Filed 6/24/13 P. v. Rueda CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E052699 v. (Super.Ct.No. FVA800920) HECTOR MAURICE RUEDA III, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed with directions. Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendant, Hector Rueda, III, of voluntary manslaughter (Pen. Code, § 192, subd. (a)), during which he used a knife (§ 12022, subd. (b)(1)), attempted 1 voluntary manslaughter (§§ 664/192, subd. (a)), during which he used a knife and inflicted serious bodily injury (§ 12022.7, subd. (a)), and carrying a dirk or dagger (§ 12020, subd. (a)(4)). He was sentenced to prison for 12 years and appeals, claiming evidence was improperly excluded, the jury was misinstructed and the sentencing court erred in imposing certain fees. We reject his contentions, while directing the trial court to correct errors in the minutes of the sentencing hearing and the abstract of judgment. FACTS The manslaughter victim and Jennifer were involved in a three-year long serious romantic relationship. During this time, defendant and the manslaughter victim were good friends. Shortly after the couple broke up, defendant began dating Jennifer. The manslaughter victim wanted nothing to do with defendant. Jennifer came to consider herself to be defendant‘s wife, until they broke up nine months before trial. However, at the time of the trial, she still loved defendant. On May 16, 2008, defendant, Jennifer, Chris and Roberto attended a party that was also attended by the manslaughter victim, who, there, ran into his friend, Renee, Renee‘s sister and the attempted manslaughter victim. At 12:30 the next morning, the attempted manslaughter victim, Renee and Renee‘s sister left the party to go to Renee‘s house. The manslaughter victim and another companion also went to Renee‘s, but in a separate car. Jennifer testified that she, defendant, Chris and Roberto then went to a second party, during which she discovered that someone had scratched her car, writing the word, ―Bitches‖ on it. She was very upset and she and defendant assumed that Renee and his 2 sister had done it because she had had problems with them before. As defendant drove her car, she made a series of angry calls to the manslaughter victim‘s cell phone during which she asked him if they had done it. The manslaughter victim denied that he did it and first said he did not know if his friends had done it, adding that they did not do things like that, then later said that they did not. Jennifer testified that the manslaughter victim invited her to come to Renee‘s to discuss the matter. While defendant drove her car, she told him what the manslaughter victim had told her during their phone conversations. Defendant was possibly angry on the way to Renee‘s. At some point during the trip, Jennifer reached into the glove box to retrieve a can of beer and found, inside, a steak knife she kept there for protection. She wondered out loud if the knife was sharp enough to puncture someone‘s tires. Defendant felt the tip of the knife. She said if they discovered who scratched her car, they would scratch that person‘s car and slash the tires. Defendant agreed to do this with her.1 She either returned the knife to the glove box or defendant took it from her, but she did not see him put it in his pocket. Chris and Roberto said they should not go to Renee‘s—that they had no proof that anyone there had scratched Jennifer‘s car. Jennifer told defendant that they should not go, but defendant said it would be alright, as they were just going to talk. 1 Jennifer also variously testified that defendant agreed that she would damage the scratcher‘s car and that defendant never said he was going to do this. Because this appeal is so heavily fact-intensive, we have extensively and in great detail reported the facts adduced at trial. 3  Chris testified that both defendant and Jennifer were angry about her car getting scratched, they discussed who might have done it and assumed that it could be the manslaughter victim, in addition to others.2 According to Chris, Jennifer was upset when she called the manslaughter victim on his cell phone and she accused either he or his friends of scratching her car. Jennifer told the manslaughter victim that she was coming to Renee‘s. After Jennifer‘s phone conversation, she said that none of the people at Renee‘s had scratched her car, but defendant said, ―‗Let‘s go over there and talk to them.‘‖ Defendant and Jennifer said they were going to talk to the people at Renee‘s. Soon, their talk turned to how they were going to mess up a car when they got to Renee‘s. They were upset.3 Chris and Roberto said it wasn‘t a good idea for them to go—that they didn‘t know who had scratched Jennifer‘s car.4 Jennifer agreed, but defendant said they still should go. Roberto testified that he thought Jennifer had put the knife back in the glove box during the ride to Renee‘s. The attempted manslaughter victim testified that when the manslaughter victim arrived at Renee‘s, he told the attempted manslaughter victim that he had just gotten a call from Jennifer that someone had keyed her car and she thought it was the 2 Roberto testified similarly. 3 Roberto testified similarly. 4 Roberto testified similarly. 4 manslaughter victim or one of them that had done it.5 He said that they were coming over with a bunch of guys to settle matters or to retaliate. The attempted manslaughter victim testified that Jennifer‘s car drove down the cul-de-sac, turned around and stopped in the middle of the street in front of the house next door. With the car still running, Jennifer and defendant got out and Jennifer, with defendant following, angrily approached the manslaughter victim and accused him of scratching her car.6 Even though the manslaughter victim denied doing this, Jennifer kept shouting at him. The manslaughter victim told Jennifer and defendant to leave7 and not to continue disrespecting Renee‘s parents‘ house. After three to four minutes of this shouting, defendant, using expletives, told the manslaughter victim to admit that he or his friends had scratched Jennifer‘s car.8 The attempted manslaughter victim began slowly walking towards Jennifer and defendant because he saw that defendant had his hand balled up in his pant pocket. The manslaughter victim attempted to reassure defendant that he did nothing to Jennifer‘s car and defendant verbally rebuffed him. Defendant 5Renee‘s sister‘s testified similarly. She added that Jennifer was coming over to do something to Renee‘s car and the manslaughter victim told the people at Renee‘s that they should get baseball bats to scare them off. 6 Renee‘s sister testified that Jennifer also threatened to ―fuck up‖ Renee‘s car. Renee testified similarly. 7Renee and Renee‘s sister testified similarly. The sister added that the attempted manslaughter victim also told Jennifer and defendant to leave. 8 Renee testified similarly. 5 moved his hand up and down inside his pocket and the attempted manslaughter victim concluded that defendant had something in there.9 Defendant said to the manslaughter victim, ―What the fuck are you going to do about it‖ which the attempted manslaughter victim took as a challenge to fight. The attempted manslaughter victim took four steps towards Jennifer and defendant and told defendant to calm down and take Jennifer and leave ―before something bad goes down.‖ Defendant then turned his attention to the attempted manslaughter victim. He moved closer to the latter and aggressively said to him, ―What the fuck?‖ Defendant then pulled out whatever was in his pocket and brought his hand up to his waist or chest. The attempted manslaughter victim hit defendant in the chin, hoping defendant would drop whatever he had in his hand. Defendant shook off the punch, came at the attempted manslaughter victim, and the two began hitting each other, but the latter did not realize that defendant was stabbing him with a knife instead of hitting him with his fist. Defendant was erect during their fight.10 Jennifer, Chris and Roberto were eventually able to hold defendant back and the attempted manslaughter victim then realized that he had been stabbed. He stepped away from defendant11 and went into Renee‘s house and got towels, bandages and peroxide for his wounds. When the attempted manslaughter victim went back outside, the manslaughter victim was lying on the driveway, having already been fatally wounded. 9 Renee testified that defendant had his fist balled up in his pocket. 10 Renee testified similarly. 11 Renee and Renee‘s sister testified similarly. 6  Jennifer testified that while she was yelling at the manslaughter victim after arriving at Renee‘s, she accused Renee of scratching her car and he began yelling at her.12 She also testified that before the attempted manslaughter victim hit defendant, the manslaughter victim had said to her, in a very upset manner, that nothing mattered because she did not care about him anymore. She also testified that defendant tried to reassure the manslaughter victim that Jennifer still cared about him, then the attempted manslaughter victim ran up to defendant and punched him. She did not see defendant make an aggressive movement towards or threaten the attempted manslaughter victim before the latter punched defendant. She claimed that the manslaughter victim tried to get involved in the fight between defendant and the attempted manslaughter victim, she tried to restrain the manslaughter victim, but he broke away from her and the two victims together began hitting defendant. She claimed that defendant responded to them hitting him by swinging at them from side to side, near their waists, with his head down, while leaning forward. Then, her attention was drawn away from defendant and the victims by Renee and his sister approaching her and yelling at her. Chris testified that Renee and the victims each had had a bat in his hand when Jennifer‘s car had stopped in the street, but the victims had thrown theirs away towards the end of the verbal argument between the two groups.13 Argumentative words were 12 Renee testified similarly. 13 Renee‘s sister testified that Renee and the manslaughter victim had gotten baseball bats in response to the latter telling them that Jennifer and her companions were on the way to damage Renee‘s car and the baseball bats would be used to scare the latter. [footnote continued on next page] 7 exchanged between defendant and the manslaughter victim, then the attempted manslaughter victim began fighting defendant. According to Chris, defendant stood erect during his fight with the attempted manslaughter victim. After 12 or 13 seconds of fighting, the attempted manslaughter victim stopped and stepped away from defendant and, five seconds later, the manslaughter victim approached defendant and began fighting with him. Defendant stood erect while fighting the manslaughter victim. When, after six or seven seconds of fighting, it appeared that defendant was losing, Jennifer yelled for Chris to ―help [defendant]‖ and Chris stepped between them and pushed defendant away. Roberto testified that during the verbal argument, Renee told defendant and Jennifer to leave.14 He testified that the 15-20 second physical fight between defendant and the attempted manslaughter victim ended and the latter backed off, then, a few seconds later, the manslaughter victim stepped in and hit defendant, then, eventually, tripped over a utility box and tried to grab defendant.15 Defendant stood erect during his 10-20 second fight with the manslaughter victim, which ended when Jennifer told Chris [footnote continued from previous page] Renee testified that he got a bat to protect himself and his property, the manslaughter victim had one, too, and they had agreed to use them to scare off Jennifer and her companions. He added that when Jennifer‘s car arrived in the street, the headlights from the car lit them up as well as their baseball bats. He also said that the manslaughter victim dropped his baseball bat before he started to fight with defendant. 14 Renee testified similarly. 15Renee also testified that the manslaughter victim tripped over the box. He added that the manslaughter victim fell on his back onto the hood of a car parked in the driveway and defendant continued to stab him two to three times. 8 to break it up and Chris pushed defendant. He said only Renee and the manslaughter victim had had bats, but they had thrown them away and the bats were not used in the physical fights. He also said that before the attempted manslaughter victim threw the first punch at defendant, he told defendant that the latter had come to the wrong neighborhood16 and the two argued, with the former shouting, for less than 10 seconds. According to Roberto, the attempted manslaughter victim was arguing with defendant vehemently, while defendant was backing up and telling the former to calm down—that he just came there to talk. The attempted manslaughter victim had removed his shirt before his physical fight with defendant began. Renee‘s sister testified that while the attempted manslaughter victim and defendant were fighting in one area, she, the manslaughter victim and Renee were in another area. She also said that when she was in the house with the attempted manslaughter victim, after the latter had been stabbed, she called out to Renee to get more towels, and Renee entered the house and did so.17 Renee testified that the manslaughter victim began fighting with defendant 10-15 seconds after the fight between the attempted manslaughter victim and defendant ended. Defendant stood straight during both fights. Defendant testified that he attempted to be conciliatory towards the manslaughter victim at the end of the verbal argument, but the former was having none of it, and he 16 Renee‘s sister testified similarly. 17 Renee testified similarly. 9 spoke aggressively with foul language to defendant. Although the attempted manslaughter victim had removed his shirt and was pacing back and forth, no words were exchanged between him and defendant. Contrary to the version of events offered by any others of those present, defendant testified that the manslaughter victim ran up to him and punched him in the face. Defendant tried to pull back but the manslaughter victim grabbed him by the collar of his shirt, pulled him down and held him down, bent at the waist, while he and the attempted manslaughter victim, who similarly held onto defendant, hit him in the head. Defendant testified that he ―felt‖ Renee coming at him with a bat and he pulled the knife out of his pocket and swung wildly at both victims. The manslaughter victim had eight stab wounds including fatal ones to the front of his neck and his lung and liver. The attempted manslaughter victim had six stab wounds including ones to the back of his neck and his chest. 1. Exclusion of Evidence a. Evidence that the Manslaughter Victim Was Not Angry or Upset at Defendant Shortly Before the Crimes 1. Other Evidence Introduced at Trial on the Matter Jennifer testified that she had told an investigator that prior to May 17, 2008, defendant had repeatedly, on different occasions, tried to talk to the manslaughter victim, but the latter did not want anything to do with defendant and would walk away. She confirmed that after she broke up with the manslaughter victim, he wanted nothing to do with defendant and every time defendant wanted to talk to the manslaughter victim, the latter got away from him. She said that at the time of the crimes, defendant and the 10 manslaughter victim did not like each other because defendant was going out with Jennifer and the manslaughter victim still loved her. She said that even though defendant and the manslaughter victim saw each other at numerous parties for months leading up to the crimes, the manslaughter victim had tried to avoid defendant. During cross- examination by defense counsel, she testified, in response to leading questions by counsel, that as of May 2008, she believed that the manslaughter victim still cared for her and wanted to be with her, and that he was upset that she had started dating defendant. Also in response to leading questions by defense counsel, she said that the manslaughter victim told her three weeks before the crimes that he was cutting himself because he couldn‘t get over the fact that she was with defendant and he still loved her and wanted to be with her. She also answered a leading question by defense counsel that at a party attended by her, the manslaughter victim and defendant three weeks before the crimes, the manslaughter victim was sarcastically telling people to tell defendant to approach him and say hello to him. She also testified during cross-examination that she approached the manslaughter victim the night before the crimes at the first party and hugged him and shook his hand. At that time, defendant went up to the manslaughter victim and tried to shake his hand, saying ―‗Are we not friends anymore?‘‖ The manslaughter victim replied in the negative. Defendant asked him why and the manslaughter victim pointed to Jennifer and said, ―That‘s why.‖ Defendant asked the manslaughter victim if he and the latter were ―‗still cool‘‖ and the latter replied that they were not. Chris, who was friends with Jennifer, defendant and the manslaughter victim, testified that at the time of the crimes, defendant and the manslaughter victim ignored 11 each other. He said that at the first party, the manslaughter victim told him that he and defendant were no longer friends and he appeared to be upset with defendant. The manslaughter victim added that defendant had tried to shake his hand at the party, but he had told defendant that he did not like him. While still at the party, defendant told Chris that he was upset about this. During cross-examination by defense counsel, Chris testified that the manslaughter victim had told him at the first party that defendant had approached him and said, ―‗We‘re cool, right?‘‖ and the manslaughter victim had responded, ―‗No, we‘re not cool.‘‖ Defendant asked the manslaughter victim why and the latter replied that it was because of Jennifer, and the manslaughter victim seemed to be ―a little bothered‖ about seeing defendant and Jennifer together. Chris saw defendant approach the manslaughter victim and try to shake his hand, but the latter did not, and it was at this time that the conversation about being cool occurred. Roberto testified that he was more of a friend to defendant than he was to the manslaughter victim. He said that at the first party, defendant and the manslaughter victim ―had a little grudge going, . . . they weren‘t getting along.‖ The manslaughter victim had sarcastically said to defendant, ―‗I thought we were friends.‘‖ During the argument that led up to the physical fight(s) at Renee‘s, as the manslaughter victim got louder and started to cuss, defendant said, ―‗I haven‘t done anything to you.‘‖ The manslaughter victim replied, ―‗Oh, I thought we were friends.‘‖ Defendant replied that they were, which Roberto took as a sincere comment. According to Roberto, before the crimes, the two were not getting along. It was his impression that they were enemies. 12  Defendant testified that at the first party, the manslaughter victim gave him and Jennifer a hug and said hello.18 Ironically, he also testified on direct that when he told the manslaughter victim where he and Jennifer were working, the former replied sarcastically and when he asked the manslaughter victim if he and the manslaughter victim were cool, the latter replied that they were not. In fact, defendant testified on direct that when Jennifer asked him, on the way to Renee‘s, if he thought the manslaughter victim and his friends had scratched her car, he said he did not know, but he reminded her of what had taken place between him and the manslaughter victim at the first party.19 During cross-examination by the prosecutor, he also admitted that the manslaughter victim had refused to shake his hand at the first party and that the latter ―mad-dogged‖ defendant. On direct examination, defendant testified that after Jennifer began arguing with the manslaughter victim at Renee‘s, Renee and his sister joined the argument and began to curse, the manslaughter victim‘s friends were ―mad-dogging‖ defendant and the manslaughter victim told Jennifer that he knew he meant nothing to her. In response to this comment, defendant said to the manslaughter victim, ―‗Don‘t say that.‘‖20 The 18 He was the only witness to so testify. Even Jennifer said that the manslaughter victim gave only her a hug. 19 On cross-examination, defendant admitted that he told Jennifer on the way to Renee‘s that ―it had to be [the manslaughter victim] and his friends‖ who scratched her car. 20 The only other witness who testified to any exchange like this was Jennifer, who said that at some point during her argument with the manslaughter victim and [footnote continued on next page] 13 manslaughter victim then addressed defendant, saying, ―‗And you. You used to be my homie. Fuck you. Fuck you.‘‖21 Defendant asked the manslaughter victim what defendant had done to him. The manslaughter victim responded, ―‗Fuck you. What‘s up? What‘s up? What‘s up?‘‖ The manslaughter victim continued to say, ―‗ Fuck you‘‖ to defendant and ran up to him and began hitting him. During subsequent direct testimony, defendant added that when the manslaughter victim had said that he meant nothing to Jennifer, he also said that he meant nothing to ―you guys.‖ At that point, defendant testified, he felt compelled to interject himself into the argument between Jennifer, the manslaughter victim and Renee because, ―‗ . . . [I]t‘s not true. [¶] . . . [¶] That Jen[nifer] or me don‘t care about [the manslaughter victim]. [¶] . . . [¶] . . . I tried to tell him, we do care about you . . . . [¶] . . . [¶] . . . [I was j]ust letting him know that we do care.‘‖ At the beginning of cross-examination, defendant admitted that when he was first interviewed by the police, he told them that he and the manslaughter victim were friends, however, later, he admitted that when he and Jennifer saw the manslaughter victim [footnote continued from previous page] Renee, the manslaughter victim said to her, ―‗What does it matter? You don‘t care about me anymore anyways [sic].‘‖ Defendant then calmly responded to the manslaughter victim, ―‗Come on, Joe. You knew that she cares about you.‘‖ However, she did not testify that the manslaughter victim angrily accused defendant of betraying him, as defendant did in his testimony—rather, she said that at that point the attempted manslaughter victim ran up to defendant and punched him. 21During cross-examination by the prosecutor, defendant testified that the manslaughter victim called him a backstabber and was angry at him. The manslaughter victim also asked defendant, ―‗What are you going to do about it?‘‖ 14 around, the manslaughter victim never said hello. He also admitted that when the manslaughter victim found out that defendant was dating Jennifer, he was upset and hurt. 2. Motion to Admit Evidence and Trial Court’s Ruling After the prosecutor concluded her cross-examination of defendant, defense counsel filed a written motion to be allowed to introduce the testimony of a man who claimed to be best friends of both defendant and the manslaughter victim in May 2008. As an offer of proof, the defense asserted that this man would testify, inter alia,22 that he was at the first party on May 18th, and, while there, the manslaughter victim told him that he had only recently found out that Jennifer had begun dating defendant and, when asked if he was upset about this, the manslaughter victim said he was over it and had started a new life.23 22 The motion included other matters this witness would testify to, however, they do not appear to be relevant to the issue raised by defendant, and, therefore, will not be discussed here. 23 In their brief, the People assert that the conversation between the manslaughter victim and this man preceded the arrival of defendant and his companions at the party. However, the record is not clear in this regard. Defendant testified that at some point during the party, he called this man, who was not at the party, and asked him to come to it. Defendant did not testify when this man arrived at the party and certainly did not say whether the man‘s arrival preceded or happened after his interaction with the manslaughter victim. When first discussing this man‘s proposed testimony, defense counsel asserted that the manslaughter victim ―may have then, after he had this conversation [with the man], . . . seen [defendant] at the party with Jennifer . . . , and it bothered him more than what he had thought intellectually about it . . . . [¶] . . . [¶] Even if [the manslaughter victim] was . . . more bothered [about defendant being with Jennifer] than what . . . he was saying earlier that night, that‘s a lot different [than defendant and the manslaughter victim] being enemies.‖ However, there was no evidence about when the manslaughter victim‘s conversation with this man took place in relation to his interaction with defendant. [footnote continued on next page] 15  At the hearing on the motion, defense counsel stated that he wanted to introduce the evidence to show the manslaughter victim‘s state of mind. Specifically, he asserted that during the first 40 minutes of her cross-examination of defendant, the prosecutor had attempted to create the impression that at the time of the crimes, the manslaughter victim did not like defendant, that defendant had lied to the police about his relationship with the manslaughter victim when he claimed they were friends, and, ―they were actually friends.‖24 The prosecutor opposed the admission of this evidence, arguing that the manslaughter victim‘s state of mind was irrelevant. The trial court ruled that even though [footnote continued from previous page] Defendant below and here, and the People here, assert that defendant testified that things between him and the manslaughter victim were fine until a third person made a derogatory comment about the manslaughter victim. However, this misconstrues defendant‘s testimony. He stated that the manslaughter victim spoke sarcastically to him, then, a third person said to Jennifer in the presence of defendant and the manslaughter victim that her ex-boyfriend, meaning the manslaughter victim, was ―so lame.‖ Defendant apologized to the manslaughter victim for the comment, the manslaughter victim replied that it was ―all right‖ and ―cool,‖ then added, ―Just don‘t talk to me right now.‖ After that, defendant asked the manslaughter victim if they were cool and the latter said they were not. There is little basis, especially in light of the manslaughter victim‘s sarcastic comment to defendant before the third person said anything (in addition to all the other testimony by other witnesses about the relationship between defendant and the manslaughter victim before the party), to conclude that things between defendant and the manslaughter victim were fine until this third person made his comment. Defendant calls our attention to his testimony at trial that he did not believe the manslaughter victim would ever attack him. This evidence undermines his claim of self- defense, i.e., if he believed the manslaughter victim would never attack him, then he had no reasonable basis for believing that his life was in danger at the hands of the manslaughter victim to the point that he needed to use deadly force against him. 24 This precisely mirrors defense counsel‘s earlier remarks about the purpose for which he planned to introduce this evidence, before he temporarily abandoned his intention to do so. 16 defense counsel had described the proffered testimony as circumstantial evidence of the manslaughter victim‘s state of mind, it was really being offered for the truth of the matters asserted therein, and, therefore, was hearsay. If it was not, it was not relevant. Therefore, it was inadmissible. The court added that there had been a great deal of testimony about the relationship between defendant and the manslaughter victim, that relationship was somewhat fluid and what occurred at the first party was not necessarily the manslaughter victim‘s state of mind at the time of the crimes. The court concluded that the evidence would add nothing but length to this already lengthy trial. Defendant here contends this ruling was an abuse of discretion. (See People v. Rowland (1992) 4 Cal.4th 238, 264.) Defendant asserts that the manslaughter victim‘s statements to his friend were admissible to show the manslaughter victim‘s state of mind, which was relevant to defendant‘s claim that he acted in self-defense. Unfortunately for defendant, that was not the basis he asserted below for the admission of these statements.25 Therefore, he waived this basis. (See People v. Homick (2012) 55 Cal.4th 816, 867; Evid. Code, § 354.) Below, defendant sought introduction of the statements to contradict the implication created by the prosecutor‘s cross-examination of defendant that the manslaughter victim did not like defendant and that defendant had lied to the police when he said they were friends. Of course, as our summary of the other evidence introduced on this subject 25 We suspect this is the case because defendant‘s current position makes no sense. If, in fact, the manslaughter victim did not harbor any bad feelings towards defendant, this would make it less likely, not more likely, that he would behave aggressively towards defendant, causing defendant to have to protect himself. 17 stated above, some of it by defense counsel himself, shows the manslaughter victim did not like defendant. As stated before, even defendant, himself, admitted that the manslaughter victim was upset and hurt by the fact that defendant was dating Jennifer and the manslaughter victim exhibited his hostility towards defendant at the first party. As we have noted, defendant introduced evidence that defendant was not angry at the manslaughter victim in order to disprove the prosecution‘s theory that defendant was angry at the manslaughter victim when he went to Renee‘s and armed himself with the knife in order to use it on the manslaughter victim before getting out of the car. However, this was relevant to defendant’s state of mind, and had nothing whatsoever to do with the manslaughter victim’s state of mind. Defendant also asserts that the trial court abused its discretion in inferentially determining that the probative value of this evidence was outweighed by its prejudicial impact. Based on the theory advanced below by the defense for the admissibility of this evidence, which is the only theory we may examine on appeal, we disagree with defendant. As already stated, there was a wealth of evidence that the manslaughter victim was angry at or upset with defendant, some of it introduced by defense counsel, himself, and some of it admitted by defendant, himself. To introduce the evidence at issue would have contradicted this evidence. At the same time, defendant was able to introduce evidence that he was not angry at the manslaughter victim, which was the purpose of seeking admission of this evidence. Therefore, he was not deprived, by this ruling, of the opportunity to put on this defense. Finally, the evidence was of minimal impact in that it contradicted defendant‘s own testimony, and that of all the other 18 witnesses in attendance at the party, that the manslaughter victim behaved in a manner that was consistent with him not being friends with defendant. We agree with the trial court‘s implied finding that this evidence, under these circumstances, would have had minimal impact on the jury favorable to defendant, and it would have lengthened this already lengthy trial. b. Evidence of the Manslaughter Victim’s State of Intoxication Before trial began, while discussing what could and could not be addressed during opening statements, the prosecutor asserted that the manslaughter victim‘s alleged blood alcohol level of 0.18 percent was irrelevant. Defense counsel countered that it was relevant to the manslaughter victim‘s ability to accurately perceive events. He added that he did not think an expert‘s opinion was needed to show that someone with that level of alcohol ―may sometimes be more aggressive than the person may be‖ when they are sober—that this was within ―people‘s common experience.‖ The trial court observed that while ―there may be testimony that makes it relevant‖ it was not particularly so at that point, and, therefore, could not be mentioned during opening statements. However, the fact that the manslaughter victim had been drinking could be. Before the pathologist who performed the autopsy on the manslaughter victim‘s body testified, the People reasserted their belief that evidence of the manslaughter victim‘s blood alcohol level was irrelevant. Defense counsel countered that the fact that the prosecutor had asked Roberto, Chris and Jennifer how much they had had to drink and who they saw drinking just before the crimes suggested that the manslaughter victim‘s blood alcohol level was just as relevant. The trial court pointed out that those 19 three witnesses were testifying about their observations at the time of the crimes, therefore, their state of sobriety/intoxication was relevant to their ability to perceive, whereas the manslaughter victim would not be testifying. However, the court reiterated, the fact that the manslaughter victim was drinking shortly before the crimes was relevant. The defense sought to introduce expert testimony about the nature of the wounds inflicted on the manslaughter victim and the attempted manslaughter victim (to demonstrate that they were not defensive wounds, but were inflicted while they were attacking defendant). Included in this expert‘s report was a statement that the manslaughter victim‘s blood alcohol level was 0.18 percent. The prosecutor sought to exclude mention of this during this expert‘s anticipated testimony on the bases that there was no foundation for it and it was irrelevant to whether the wounds inflicted on the manslaughter victim were defensive or the result of the manslaughter victim attacking defendant. During an Evidence Code section 402 hearing, the expert stated that he obtained the manslaughter victim‘s blood alcohol level from the autopsy report and it was relevant to his opinion about the nature of the manslaughter victim‘s wounds only because ―it explains to me why somebody would be stupid enough to go up against somebody with a knife if all they have is their fist.‖ However, the expert added, it did not affect whether the wounds were defensive or the result of offensive action by the manslaughter victim. The trial court ruled that evidence of the manslaughter victim‘s blood alcohol level would be excluded. Defendant here contends that the trial court erred in so ruling. To the extent defendant‘s opposition to the People‘s three requests to have this evidence excluded may 20 be viewed as efforts by defendant to have this evidence admitted, we reiterate that defendant here is confined to the bases he advanced below for admission. We must determine whether the trial court abused its discretion by excluding the evidence. The first basis was that it was relevant to the manslaughter victim‘s ability to accurately perceive what was happening. Defendant did not explain below, and does not explain here, how this was relevant to anything and we fail to see any relevancy. Next, defendant asserted that it is ―common experience‖ that anyone with a blood alcohol level of 0.18 percent would be more aggressive than when sober. In other words, jurors could be told merely that the manslaughter victim had such a blood alcohol level, and, based on that fact, they could reasonably infer that he was more aggressive than he would have been had he been sober. There are two problems with this theory. First, it is not within the common understanding of a lay juror that anyone with a 0.18 percent blood alcohol level is more aggressive than the person would be when sober. It is, however, a fairly common experience that different people react differently to alcohol—some become friendly, others not and still others do not react either way at 0.18 percent.26 It also 26 Defendant‘s reliance on language in People v. Stitely (2005) 35 Cal.4th 514, 549 (Stitely), that expert testimony is not necessary for a jury to know that people under the influence of alcohol behave in ways they do not ordinarily is misplaced. In Stitely, the parties stipulated that the victim had a blood alcohol level of 0.26 percent and was intoxicated. (Id. at p. 548.) The defense wanted its expert to testify that the victim‘s level of intoxication lowered her sexual inhibitions, thus increasing the likelihood that she consented to sex. (Id. at p. 549.) In rejecting defendant‘s contention that the trial court abused its discretion in excluding this evidence, the California Supreme Court commented that it is common knowledge that people act under the influence of alcohol in ways they do not ordinarily behave and jurors could assess for themselves the effect of alcohol on the victim‘s impulse and inhibitions. (Id. at p. 550.) However, there is a great [footnote continued on next page] 21 depends on the person‘s tolerance for alcohol—alcoholics with a 0.18 percent may behave no differently than they would sober, and might, in fact, behave more peacefully then when sober. While these matters might have been ripe for expert opinion, defendant was not offering that—merely leaving the jury, on its own, to guess what effect a 0.18 percent blood alcohol level had on the manslaughter victim. The second problem is that even if some, most or all people behave more aggressively than when sober, the statement is meaningless without quantifying the extent of the aggressiveness and defendant was not prepared to do this , but, rather, leave it to the jury to figure out on its [footnote continued from previous page] difference between the common knowledge of the effect of alcohol on one‘s sexual impulses and inhibitions and whether alcohol makes any given person more aggressive than otherwise. There is also a great deal of difference between a woman‘s blood alcohol level of 0.26 percent and a man‘s 0.18 percent. Defendant also cites People v. Seaton (2001) 26 Cal.4th 598, which, like Stitely, does not support his position. In Seaton, the California Supreme Court observed that a layperson would know that a 0.13 percent blood alcohol level would impair, but not destroy, a man‘s ability to form the intent to kill. That is a far cry from the proposition than any person with a blood alcohol of 0.18 percent behaves more aggressively then when he or she is sober. Also distinguishable is People v. Wright (1985) 39 Cal.3d 576, 583, 584, in which the Supreme Court held that the trial court abused its discretion under Evidence Code section 352 by excluding evidence that the victim was under the influence of heroin where the defendant claimed that the victim behaved irrationally, requiring the defendant to kill him in self defense, and another witness testified that the victim had ingested no narcotics in the 24 hours preceding his death. In determining that the exclusion of this evidence did not require reversal of the defendant‘s conviction of first degree murder, however, the Supreme Court said the following, which is instructive here, ―Defendant‘s offer of proof did not . . . include any proposed testimony concerning the effects of heroin, or the level of morphine contained in the victim‘s urine, or the significance of any particular level of morphine. Although the excluded evidence would have allowed the jury to infer the victim was under the influence of heroin, this inference would have done little towards corroborating defendant‘s testimony that the victim was, as a result, irrational and aggressive.‖ (Wright at p. 585, italics added.) 22 own, without expert assistance. However, more telling on this subject was the testimony introduced at trial as to the manslaughter victim‘s actual conduct before and during the physical fight involving him. From this evidence, the jury could determine whether he was acting aggressively or not. There was no need to resort to the not necessarily helpful fact that he had a 0.18 percent blood alcohol. Finally, the opinion of the defense pathologist that the manslaughter victim‘s 0.18 percent blood alcohol would explain why he would be stupid enough to go up against defendant, who had a knife, when all the former had was his fist, is undermined by the testimony of all the witnesses to these crimes, including defendant, that the latter did not reveal the presence of the knife before he began using it on the victims, and all those present, except defendant, did not even know that defendant had a knife until after the latter had stopped stabbing the attempted manslaughter victim and they saw the blood on the latter‘s clothes.27 Defendant here asserts that he could have ―show[n] the general effect of a [0].18 [percent blood alcohol] through [the autopsy pathologist] or [the defense pathologist] or even another witness[.]‖ However, defendant made no such offer of proof below, and is, therefore, foreclosed from asserting that such evidence could have been produced. Defendant‘s assertion that the manslaughter victim‘s level of intoxication was relevant to defendant‘s state of mind, and thus to his claim of self-defense, is supportable only to the 27 For example, defendant testified that neither the attempted manslaughter victim nor the manslaughter victim knew he had a knife. 23 extent that defendant perceived that the manslaughter victim was intoxicated (and, perhaps, therefore more likely to be a danger to him), and this he could have testified to, but did not.28 Had he so testified, it is conceivable that the defense might have been able to introduce evidence of the manslaughter victim‘s actual blood alcohol level to bolster defendant‘s claim that the manslaughter victim appeared to him to be intoxicated or not in full command of his senses. However, defendant made no such claim. Having concluded that the trial court did not abuse its discretion in excluding evidence of the manslaughter victim‘s blood alcohol level, we necessarily reject his contentions that the court‘s ruling violated his state and federal constitutional rights to confrontation, present a defense, have a jury trial and to due process. 28 Defendant‘s assertion, in his opening brief, that ―several witnesses testified to the effect [the manslaughter victim‘s] intoxication had on the incident that resulted in his death‖ contains no citation to the record, nor is there any portion of defendant‘s statement of facts that supports such an assertion. Our review of the record also revealed no support for this assertion, as did the People‘s. In the paragraphs in defendant‘s opening brief following the one containing the sentence quoted above, defendant asserts, ―there was real time testimony from others‖ to ―show how the victim‘s [blood alcohol level] and intoxication ‗affected [his] judgment and behavior . . . .‘‖ followed by several citations to the record. However, these citations concern the attempted manslaughter victim‘s testimony that he (not the manslaughter victim) had a few beers while at the first party; Jennifer‘s testimony that at the first party she was drinking, she had been drinking all night and defendant might have been drinking; Chris‘s testimony that he, Jennifer and defendant were drinking at the first party; Roberto‘s testimony that he, Jennifer, Chris and perhaps defendant were drinking at the first party; Renee‘s sister‘s testimony that the attempted manslaughter victim was drinking a particular drink that night; Renee‘s testimony that he, and, possibly, the attempted manslaughter victim, drank at his house; defendant‘s testimony that he, and perhaps Jennifer, drank at the first party, and that Chris had been drinking beer before arriving at Renee‘s. These portions of the record had nothing whatsoever to do with the manslaughter victim. (Defendant‘s citation to an assertion made by defense counsel in a pretrial discovery motion is not support for his factual statement.) 24 2. Jury Instructions a. Arming With Bats The following is defendant‘s account of the incident as is relevant to a discussion of this issue:29 He saw that Renee had a bat when defendant, Jennifer, Chris and Roberto arrived outside Renee‘s home. He said that he saw no one else with a bat that night. When Jennifer was five feet from the manslaughter victim, and defendant was two to three yards behind her and to the left, he saw that Renee, who was standing near the manslaughter victim, was ―showing [the bat] in [an] intimidating fashion, hitting it against the heel of his foot like before batters . . . go up to bat‖ and ―mad-dogging‖ him.30 Everyone in the manslaughter victim‘s group was ―[m]ad dogging‖ defendant.31 Renee stepped in front of Jennifer and began arguing with her and cussing at her. The attempted manslaughter victim, whom defendant described as ―this big guy‖ took off his shirt and was pacing and starring defendant down. As the manslaughter victim and Jennifer continued to argue, defendant joined the exchange when the manslaughter victim said he 29 Chris also testified that Renee had a bat when Chris stepped in to stop the physical fight(s) between defendant and the victims, but the victims had discarded theirs before the physical fight(s) began and ―no [one] . . . used any [baseball] bats during any fight.‖ All the other witness testified that either there were no baseball bats at all at the time of the crimes or the baseball bats played no part whatsoever in the physical fight(s), having been discarded before it/they began. 30 However, defendant told a detective that while he and Jennifer were arguing with the manslaughter victim, Renee was standing over to the side being reserved. 31 However, defendant testified that he did not look at the attempted manslaughter victim as he approached the manslaughter victim‘s group because he did not want the attempted manslaughter victim to think that defendant was ―mad-dogging‖ him. As a consequence, he did not see the bat in the attempted manslaughter victim‘s hand. 25 knew that he meant nothing to Jennifer. There was a verbal exchange between the manslaughter victim and defendant, during which Renee and the attempted manslaughter victim stared at defendant. The manslaughter victim ran up to defendant and punched him on the left side of his face. Defendant tried to pull back, but the manslaughter victim grabbed him by the collar of his shirt, pulled him down and started hitting him on the side, top and back of his head. The manslaughter victim went to defendant‘s right side and held him by the shirt and defendant felt that the attempted manslaughter victim was grabbing him on the left side. Defendant was bent at the waist, his head was half way down to the ground and all he could see was the ground and feet. Defendant ―felt‖ Renee approaching because he ―felt everybody was crowding‖ him. Defendant tried unsuccessfully to lift his head up and back into the street. He pulled the knife out of his pocket with his left hand and swung wildly up and down, including above his head, and right and left, while punching with his right hand. He anticipated a hit in the head with the bat. The victims continued to hit defendant in the head and pulled him, then the manslaughter victim backed off.32 Defendant managed to break free from the attempted manslaughter victim and ran backwards into the street. When he looked up, Renee was restraining his sister. The attempted manslaughter victim came at defendant again, but 32 Defendant told a detective that the manslaughter victim backed off ―real quick‖ when defendant began swinging the knife, but the manslaughter victim was still ready to fight. He added, ―‗[T]hen the [attempted manslaughter victim] jumped in.‘‖ He went on to describe two separate attacks—the first one by the manslaughter victim and the second, after the manslaughter victim had backed off, by the attempted manslaughter victim. 26 stopped when defendant called his attention to the fact that the manslaughter victim had collapsed and the attempted manslaughter victim realized that he, himself, had also been stabbed. Defendant denied trying to kill anyone or wanting to kill the manslaughter victim. Defendant testified that the ―main thing‖ he was worried about during the fight was Renee—that some future harm would come to defendant, even though it was not happening as he was stabbing the victims.33 He said that when he plunged the knife into the manslaughter victim the eighth time, he believed he was going to die ―if certain things did happen.‖ He said he believed he was going to die when he was stabbing the manslaughter victim, then added, ―I believe . . . some bad stuff was going to happen.‖ When asked if when he stabbed the attempted manslaughter victim the last time, he believed he was going to die, defendant answered, ―Yes. That something bad was going to happened.‖ That something was that they were going to knock him out or break his jaw or seriously hurt him and the only way to stop the attempted manslaughter victim from beating him was to stab him with the knife. However, he conceded that he did not believe he was going to die from being hit by the victims with their fists, which he did not consider to be deadly force, but from Renee. He thought the bat was going to be used 33 Thus, we are puzzled by defendant‘s assertion, in his opening brief, that ―[t]he baseball bats . . . were not the main focus of [defendant‘s] defense.‖ While defense counsel was obvious in his attempt, during argument to the jury, to focus attention on the harm posed to defendant by the victims and to downplay Renee‘s possession of the bat (see text following fn. 44, post, pp. 37-38), we suspect that this is because Renee‘s potential use of the bat was so speculative and would probably have been rejected by the jury as the basis for defendant‘s claim of self-defense. However, defendant was still stuck with his own testimony that the main thing he was worried about at the time he was stabbing the victims was the possibility that Renee would use his bat on him. 27 on him—he thought it was coming at any moment while he was trying to get the victims off him by stabbing them.34 He thought this ―because he was being attacked.‖ In response to leading questions by his lawyer, defendant testified that he did not think before the physical fight(s) started that he would be able to defend himself against the victims if they attacked him because of their size.35 The following was read to the jury, ―This instruction is regarding only the acquisition of bats by the individuals that were at [Renee‘s house]: The owners or possessors of real property or personal property may use reasonable force to protect themselves, their guests and their property from imminent harm. They are also allowed under the law to use reasonable force to protect the property of family members or guests from immediate harm.‖ Of course, Renee never used any force with a bat (or anything else) on defendant. No other instructions given tied the notions conveyed in this instruction to any other instruction(s). In his argument to the jury, the prosecutor tied it only to the concept of perfect self-defense by saying that Renee had a right to arm himself with a bat because Jennifer said she and defendant were coming to Renee‘s to do damage to someone‘s 34 In light of this testimony, and defense counsel‘s argument to the jury (described infra), defendant‘s assertion that ―[t]he presence of the [baseball] bats at the scene required no explanation; it did not matter why they were there‖ is insupportable. 35The manslaughter victim was about the same height and weight as defendant. The attempted manslaughter victim is three to four inches taller than defendant and outweighs him by 100 pounds. 28 car.36 In part, because of this, argued the prosecutor, defendant could not rely on his claim that Renee had a bat as a basis for perfect self-defense. Defendant did not object below to this argument. For his part, defense counsel stated during his argument to the jury that the instruction correctly provided that Renee had a right to arm himself with a bat if he believed defendant and his companions were coming over to do something to Renee‘s house or to property there. However, Renee would not have been justified in using his bat just because he thought defendant and Jennifer might do something—that the harm to property or person had to be imminent or immediate. The fact that Renee did not use the baseball bat, he argued, suggested that Renee did not feel that defendant or Jennifer posed an imminent threat of harm to his property or the people there. He went on to argue that the fact that Renee had a baseball bat played a significant role in defendant‘s state of mind at the time he stabbed the victims because defendant believed the baseball bat was going to be used on him. Defendant now claims that the presence of this instruction requires reversal of his convictions of voluntary manslaughter and attempted voluntary manslaughter. First, defendant asserts that since the lawful reason for Renee to arm himself was not an issue in the case, the presence of this instruction distracted the jury from its primary purpose of weighing the reasonableness of defendant‘s actions in self-defense. Defendant has no basis for making this assertion. He can only speculate that the presence of this instruction 36 As already stated, Renee testified that he armed himself with a baseball bat to protect himself and his property. (See fn. 13, ante, pp.7-8.) 29 somehow prevented the jury from determining whether he acted in self-defense, either perfect or imperfect. Next, defendant asserts that the instruction was inappropriate because there was no unlawful conduct of his for the jury to consider before the attempted manslaughter victim attacked him without warning, nor was there an imminent threat to real or personal property or persons present at Renee‘s house. As to his first assertion, he criticizes the holding in People v. Watie (2002) 100 Cal.App.4th 866 (Watie). In Watie, the defendant, armed with a gun, went to the home of his stepfather to retrieve his step-siblings. (Id. at p. 873.) As defendant stood on the front porch, talking to his stepfather through a security screen door, the latter told him to leave. (Ibid.) They argued and the stepfather threatened to ―‗whip [the defendant‘s] ass.‘‖ (Ibid.) The defendant thought his stepfather had retrieved a gun and was about to shoot him, so he shot first, killing his stepfather. (Id. at p. 874.) The jury was instructed that a lawful occupant of a residence had the right to request that a trespasser leave, and if the trespasser does not comply within a reasonable time, to use reasonable force to eject the trespasser. (Id. at p. 876.) The jury was also told, inter alia, that an occupant may defend his or her home against anyone who manifestly intends or endeavors in a violent manner to enter the home or who appears to intend violence to anyone in the home, using the amount of force that reasonably appears necessary to resist the entry. (Id. at pp. 876- 877.) On appeal, the defendant asserted that the giving of these instructions was error because the stepfather‘s justification for a killing was irrelevant and the instructions allowed the jury to presume that the stepfather was acting in lawful defense of his home, 30 thus removing self-defense from the jury‘s consideration. (Id. at p. 876.) The appellate court rejected defendant‘s contentions, saying ―To be acquitted of responsibility for a person‘s death based on [perfect] self–defense, the defendant must have acted pursuant to an actual and reasonable belief in the need to defend himself under circumstances that would lead a reasonable person to fear the imminent infliction of death, or great bodily injury. [Citation.] ‗The justification of self-defense requires a . . . showing [that] defendant was actually in fear of his [or her] life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.‘ [Citation.] [¶] . . . [¶] . . . [T]he right of a victim to defend himself [or herself] and his [or her] property is a relevant consideration in determining whether a defendant may prevail when he seeks to negate malice aforethought by asserting the affirmative defense of imperfect self-defense. [¶] Here, the jury was confronted with the question of whether defendant‘s use of deadly force was justified as he confronted [his stepfather] on the front porch of [the latter‘s] home and whether defendant‘s unlawful conduct created the circumstances that legally justified [the stepfather‘s] use of force. If [the stepfather] had a right to use force on defendant himself in his home, then defendant had no right of self-defense, imperfect or otherwise.― (Id. at pp. 877-878, italics added.) Clearly, Watie supports the giving of this instruction here and completely undermines defendant‘s position. And what of defendant‘s contention that Watie ―stated the rule too broadly, then narrowed it . . . by going on to explain the underlying basis for allowing the victim the defense of property instructions [if] there was . . . unlawful conduct [on the part] of the 31 defendant claiming self-defense[?]‖ That basis, defendant asserts was the notion that ―‗if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he or she has first, in good faith, declined further combat, and second, has fairly notified the adversary that he or she has abandoned the combat.‘‖ (Waite, supra, 100 Cal.App.4th at p. 877.) Defendant misreads Watie. Watie cited this rule, which is the familiar notion that a person who is the initial aggressor cannot claim self-defense unless he or she stops fighting and notifies the other person that he or she has stopped fighting.37 However, the Watie court cited it as an introduction to 37 This notion was conveyed to the jury in another instruction given to it, which also included the concept that one engaged in mutual combat cannot claim self-defense unless certain conditions are met. Defense counsel below argued to the jury that this instruction, in part, had no relevance here because there was no evidence that defendant engaged in mutual combat with the victims and he correctly pointed out that the prosecutor did not argue that this was the case. However, he went on to set up a straw man by arguing that even though the prosecutor said that defendant was not entitled to either type of self-defense, in part, because he ―created the situation‖ and one cannot provoke a fight or quarrel with another with the intent of creating an excuse to use force (which was based on an entirely different jury instruction) ―the stronger prosecution argument is that [defendant] lost his right to self-defense because he . . . was the initial aggressor.‖ Defense counsel claimed the attempted manslaughter victim‘s testimony supported the notion that defendant was the initial aggressor. However, it did not. The attempted manslaughter victim testified that defendant had pulled his hand out of his pocket holding whatever was in the pocket and moved his hand up to his waist or chest when the former hit him the first time. Defense counsel‘s argument to the jury aside, the jury was never instructed that this evidence could be the basis for an inference that defendant was the initial aggressor or that it constituted an assault, which could form the basis for inferring that he was the initial aggressor. In fact, the instruction itself implies more the layperson‘s understanding of what an initial aggressor is, i.e., the person who hits first. Moreover, in her opening argument to the jury, the prosecutor never argued that defendant was the initial aggressor. It was not until after defense counsel spent a majority of his argument trying to refute the straw man that he, himself created, that, in [footnote continued on next page] 32 its explanation of one of the holdings in People v. Gleghorn (1987) 193 Cal. App. 3d 196 (Gleghorn), a holding38 which Waite was not relying on for its holding. Instead, Watie relied on the holding in Gleghorn that the Gleghorn trial court did not err in giving an instruction on the right of a resident to use deadly force on a trespasser, which instruction was identical to one of the ones at issue in Waite because ―‗the victim . . . ha[d] the right to defend himself against a violent attack in his own house . . . .‘ [Citation.]‖ (Watie, supra, 100 Cal.App.4th at pp. 876-878.) The Watie court also cited People v. Hardin (2000) 85 Cal.App.4th 625, commenting that it and Gleghorn establish that the right of a victim to defend him-or herself and his or her property is a relevant consideration in determining whether a defendant may prevail when the defendant seeks to negate malice aforethought by asserting the affirmative defense of imperfect self-defense. (Waite, supra, 100 Cal.App.4th at pp. 877-878.) It must also be remembered that Roberto, Renee and his sister,39 testified that Renee and his sister told defendant and Jennifer to leave several times before the physical [footnote continued from previous page] her closing argument, the prosecutor briefly asserted that defendant was the initial aggressor. Of course, defense counsel argued that there was insufficient evidence to prove beyond a reasonable doubt that defendant was the initial aggressor. 38That holding was whether when the original aggressor, in that case, the defendant, committed a simple assault on the victim, and the victim responded with deadly force, the defendant would be allowed to respond to that with deadly force. (Gleghorn, supra, 193 Cal.App.3d at pp. 200-201.) This had nothing whatsoever to do with the facts in either Watie or here. 39 The sister was also a resident of the house. 33 fight(s) and Renee called the police at that time and said he wanted them to leave.40 Therefore, there was evidence that defendant was a trespasser at the time of the fight(s). This, of course, refutes defendant‘s current claim that he was not engaged in unlawful conduct when he was first hit by the attempted manslaughter victim. By confining the jury‘s consideration of Renee arming himself with a baseball bat to the issue whether defendant acted in perfect self-defense, the prosecutor took a more conservative position than the court in Watie, which held that such a fact was also relevant to the defense of imperfect self-defense. As to defendant‘s remaining contention that there was no imminent threat to persons or property at Renee‘s, the evidence is otherwise.41 Defendant also contends that the instruction is an improper pinpoint instruction. An improper pinpoint instruction is one that ―invite[s] the jury to infer the existence of [a party‘s] version of the facts . . . .‖ (People v. Mincey (1992) 2 Cal.4th 408, 437.) The instruction at issue did not do this. It merely informed the jury that if it found that the people or property at Renee‘s were subject to imminent or immediate harm, the possessors or owners of real or personal property could use reasonable force to protect that property. This did not invite the jury to accept the People‘s version of the facts that 40 The attempted manslaughter victim, Renee and his sister all testified that defendant and Jennifer had been told to leave. Chris testified that the manslaughter victim and a male and female at the house did not want Jennifer and defendant to be there. Roberto and Renee‘s sister also testified that the attempted manslaughter victim told defendant that defendant had come to the wrong neighborhood. 41 See footnotes 5, 6, and 13, ante, pages 5, 7 and 8. 34 defendant and Jennifer, in fact, threatened personal property at Renee‘s house or posed a threat of immediate harm to the people there. Finally, as in Watie, the fact that this jury convicted defendant of voluntary manslaughter and attempted voluntary manslaughter suggests that they credited defendant‘s claim of imperfect self-defense, despite the presence of this instruction. (Watie, supra, 100 Cal.App.4th at pp. 878, 879.) Thus, defendant could not have possibly suffered any prejudice by its inclusion at this trial. b. Use of Hands or Fists The jury was instructed that if defendant acted in perfect self-defense, he was not guilty of any of the charged offenses, except possession of a dirk or dagger. Further, if defendant acted in imperfect self-defense, he would be guilty of voluntary manslaughter and attempted voluntary manslaughter, but not murder or attempted murder. For either type of self-defense, defendant must have believed he was in imminent danger of, inter alia, suffering great bodily injury. Great bodily injury was defined as ―significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.‖ Defendant unsuccessfully sought the following addition to this last sentence, ―Such injury may be inflicted by the hands or fists.‖ Defendant here claims that the trial court‘s failure to grant his request requires reversal of his convictions for voluntary manslaughter and attempted voluntary manslaughter. We disagree. The prosecutor correctly pointed out during his argument to the jury that defendant never said during direct examination by his attorney that he was in fear of great bodily injury at the hands of the victims at the time he stabbed them. In fact, it was not until 35 redirect examination, when defense counsel essentially ―fed‖ the words to defendant, that he claimed he was in such fear.42 The prosecutor then asserted that the only bodily injury defendant testified he feared was a hit to his face, which would have been impossible had he been in the bent over position he claimed he was.43 The prosecutor further pointed out that the fear had to be the only reason defendant used deadly force and she asserted that 42 During cross-examination, the prosecutor asked defendant if while he was stabbing the manslaughter victim, whether he felt the latter was going to kill him with his fists. He responded that he did not know what was going to happen. When asked if he felt, when he was stabbing the attempted manslaughter victim, that he was going to die, he responded that he did not know. Later during cross-examination, he testified that he felt ―some bad stuff was going to happen‖ to him while he was stabbing the manslaughter victim. The prosecutor asked defendant if, while defendant was stabbing the attempted manslaughter victim, defendant believed he was going to die. Defendant responded, ―Yes. That something bad was going to happen.‖ But, he added that he did not believe he was going to die from the victims beating him with their fists, but from Renee hitting him with the bat. He added that the force the victims used on him was not deadly force. However, he felt that he was taking a terrible beating by being punched repeatedly in the face and top and back of the head and on the back of his body. During redirect, defense counsel asked defendant what the ―something‖ was that he feared was going to happen while he was stabbing the victims and he testified it was ―[t]hat they were going to knock me out or break my jaw or seriously hurt me.‖ Counsel then asked defendant if he felt that something was going to happen to his face if he didn‘t do something. When asked what that was, defendant said they would break his jaw or his nose or seriously hurt him. However, on re-cross, he conceded that because his head was down, the victims were not hitting him in the face. He conceded that when he stabbed the manslaughter victim, he did not know if he was suffering great bodily injury. He said that at no point did he believe that he was going to die from the victim‘s hitting him, therefore, he had to kill them. Finally, on further re-direct, defense counsel asked defendant, ― . . . [D]id you feel that you were going to suffer serious bodily injury?‖ and defendant answered in the affirmative. He added that he stabbed them to stop them from beating him further. However, he conceded on further cross-examination, that he began stabbing the victims from the beginning, the inference being that this was before they inflicted so many blows that he feared serious bodily injury. 43 But see footnote 42, ante. 36 defendant‘s anger at the manslaughter victim was also a reason he fatally stabbed the latter. She also pointed out the defendant used deadly force immediately, instead of waiting until he had been hit several times by the victims. Finally, she asserted that his claim that he was being beaten severely by the victims was contradicted by his report to a detective that he was not injured and by his lack of wounds after the crimes. In other words, the prosecutor never claimed that the serious bodily injury, the fear of which could have created either perfect or imperfect self-defense, could not have resulted in the victims‘ use of their hands or fists. In fact, she appeared to concede the matter.44 As stated before, defense counsel essentially abandoned the claim that defendant stabbed the victims because he feared being hit with the bat by Renee. However, not surprisingly, defense counsel asserted that defendant‘s belief that if he had not used the knife, he 44 We do not agree with defendant that two remarks the prosecutor made during argument to the jury suggested that serious bodily injury could not be inflicted by hands or fists. The first was during the prosecutor‘s discussion of why the manslaughter victim began hitting defendant after defendant had stabbed the attempted manslaughter victim. The prosecutor said, ―[The manslaughter victim] steps over [to where defendant is] because he knows that what the [d]efendant has done to [the attempted manslaughter victim] is not appropriate. . . . [T]he reality of the matter is bringing a knife to a fist fight, everybody knows that‘s not right. That‘s not fair. That‘s just common sense.‖ Here, contrary to defendant‘s claim, the prosecutor was not attempting to undermine the notion that serious bodily injury could be inflicted by hands or fists. She was, rather, arguing that defendant‘s response to what the victims were doing to him was unreasonable because he was using lethal force and they were not. The prosecutor repeated this during her closing argument when she said, ―How about the [requirement that] you use [no] more force than necessary. . . . [I]t has to be reasonable force. [Defendant] brought a knife to a fist fight.‖ We also disagree with defendant that a jury question, during deliberations, revealed the jury‘s confusion over the matter. The jury asked, ―Does a person have a right to self-defense with a deadly weapon?‖ This has nothing to do with the concept that serious bodily injury can result from the application of hands or fists. 37 would have suffered ―a broken nose, a fractured orbital . . . , a broken jaw, get knocked out‖, ―[got] poun[d]ed into the ground‖, or suffered ―a totally bruised up face‖ was sufficient to support self-defense. As to this specific issue, defense counsel said, ―[T]here is nothing in [the instruction on self-defense] that suggests that great bodily injury cannot be caused by hands and fists. . . . And common sense dictates that it absolutely can be caused by hands and fists.‖ ―Great bodily injury can certainly be inflicted by hands or feet.‖ The prosecutor did not object to any of these remarks. We determine whether, in light of all the above, there is a reasonable likelihood that the jury understood that great bodily injury could not be inflicted by hands and fists. (See People v. Kelly (1992) 1 Cal.4th 495, 525.) The arguments of counsel are to be considered in making this determination. (Id. at p. 526.) If there was ever a doubt in the minds of jurors, under the instructions given, whether great bodily injury could be inflicted by hands and fists, that doubt was completely extinguished by the comments of both the prosecutor and defense counsel. Therefore, there is no reasonable likelihood that the jury believed that great bodily injury could not be inflicted by hands or fists. 3. Cumulative Error Having concluded there was no error in the exclusion of evidence or the giving of instructions, we necessarily reject defendant‘s contention that the cumulative effect of these errors requires reversal. 4. Imposition of Fees The sentencing court ordered defendant to reimburse the City of Rialto for booking fees in the amount of $79.86 and to pay ―court security fees‖ in the amount of 38 $70 per count, or $210, total. The minutes of the sentencing hearing show that the latter was for ―Criminal Assessment and Security‖ for counts 1, 2 and 4. The abstract of judgment, however, incorrectly adds to the list of counts count 3, for which defendant was not convicted. Therefore, the abstract must be corrected. It also omits the order that defendant reimburse the City of Rialto for booking fees in the amount of $79.86, and this must be corrected. Relying on People v. High (2004) 119 Cal.App.4th 1192, defendant asserts that the trial court is required to report in the abstract of judgment the statutory basis for each fee imposed. Defendant misreads High. Therein, the sentencing court, in its oral pronouncement of judgment, imposed ―a drug program fee, together with surcharges and penalties in the total sum of $1,530‖ and ―a clandestine drug lab fine, together with penalties, assessments and surcharges totaling $1,700.‖ (Id. at p. 1200, italics added.) The minute order stated that the $1530 was a drug program fee. The minute order and abstract of judgment stated that the $1700 was a clandestine drug lab fine. (Ibid.) The appellate court held, ―All fines and fees must be set forth in the abstract of judgment. [Citations.] . . . If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts.‖ (Ibid.) The High court never held that the statutory basis of each fee must be set forth in the abstract of judgment, or anywhere else. It merely held that the fees must be sufficiently identified so that the state and local agencies would know what to collect. In 39 its disposition, the appellate court in High ordered the trial court to ―separately list, with the statutory basis, all fines, fees and penalties imposed on each count . . . .‖ (Id. at p. 1201.) A dispositional order by an appellate court is not the holding of the case. Defendant cites no other authority for the proposition that the abstract must contain the statutory provisions for each fine or fee imposed. However, as the People concede, it is more accurate, in this case, for the $70 ―criminal assessment and security fees‖ to be designated as $40 for the court security fee and $30 for the criminal conviction fee, each per conviction. Therefore, we will order the trial court to amend both the minutes of the sentencing hearing and the abstract of judgment to reflect this. DISPOSITION The trial court is directed to amend the minutes of the sentencing hearing and the abstract of judgment to show that $30 per conviction was imposed as a criminal conviction fee and $40 per conviction was imposed as a court security fee. The trial court is further directed to amend the abstract to omit any reference to a fee being imposed for count 3 and to include the order that defendant reimburse the City of Rialto for its $79.86 booking fee. In all other respects, the judgment is affirmed. 40  NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur: HOLLENHORST J. RICHLI J. 41