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173 Ga. App. 602 (1985) 327 S.E.2d 569 PARNELL v. CITY OF ATLANTA. 69313. Court of Appeals of Georgia. Decided February 28, 1985. Ronald W. Parnell, for appellant. Louise T. Norwood, Solicitor, J. Stratton Leedy III, Michael White, Assistant Solicitors, for appellee. BIRDSONG, Presiding Judge. The defendant, Virginia V. Parnell, appeals her conviction of the traffic offense of failure to yield at a stop sign. Held: The City of Atlanta contends that jurisdiction of this appeal lies with the Fulton County Superior Court. We agree. The City Court of Atlanta is a constitutional city court. See Georgia Constitution of 1945, Art. VI, Sec. I, Par. I (Code Ann. § 2-3601 (now Art. VI, Sec. I, Par. I, Georgia Constitution of 1983)); and Ga. L. 1967, pp. 3360, 3361. Appeals from a constitutional city court can be within the jurisdiction of the Court of Appeals. OCGA § 5-6-34 (a). However, although this traffic offense was originally charged using the Uniform Traffic Citation and Complaint Form (see OCGA Title 40, Chapter 13), following a motion to dismiss by the defendant, the Solicitor amended the complaint form to allege a violation of a city ordinance. This court held, in Williams v. City of Atlanta, 135 Ga. App. 765, *603 766 (219 SE2d 17), where the prosecution in the City Court of Atlanta was not under the Traffic Violations Bureau Act but was a conviction of an ordinance "certiorari in the superior court was the proper remedy, and the appeal must be dismissed." Appeal dismissed. Beasley, J. concurs. Carley, J., concurs in the judgment only.

85 Cal.App.3d 255 (1978) 149 Cal. Rptr. 416 In re CARL LEE GRAY on Habeas Corpus. Docket No. 18071. Court of Appeals of California, First District, Division Four. October 2, 1978. *256 COUNSEL Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, John *257 T. Murphy and Kenneth C. Young, Deputy Attorneys General, for Appellant. Frank W. Dice, Public Defender, Miguel A. Hernandez, Deputy Public Defender, Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Assistant State Public Defender, Philip A. Schnayerson and Mark Fogelman, Deputy State Public Defenders, for Respondent. OPINION CALDECOTT, P.J. The question presented on this appeal is whether the Community Release Board may, pursuant to Penal Code section 1170.2, subdivision (b), impose additional penalty for multiple offenses when the trial court, pursuant to the Indeterminate Sentence Law, had ordered the sentences to be served concurrently. We hold that the board may impose the additional penalty. In April 1975, petitioner Carl Lee Gray, pleaded guilty to robbery in the first degree in case No. CR-31247. It was alleged in the information that his codefendant was armed with and did use a deadly weapon, to wit, a handgun, in the commission of the offense. Petitioner, on the same day, also pleaded guilty to a second charge of robbery in the first degree in case No. CR-31543. The information alleged that petitioner was armed with and did use a deadly weapon, to wit, a pistol, in the commission of the offense. In each of these cases petitioner was sentenced to state prison for the term prescribed by law, sentences to run concurrently. Under the Indeterminate Sentence Law (ISL), first degree robbery was punishable by imprisonment in the state prison for a term of five years to life. (Former Pen. Code, § 213.) On August 16, 1977, the Community Release Board (CRB) determined that a term longer than that specified in the retroactive application of the Determinate Sentencing Act (DSA) (Pen. Code, § 1170.2, subd. (a)) would be appropriate. Therefore a serious offender hearing was ordered pursuant to Penal Code section 1170.2, subdivision (b). As a result of that hearing the base term for robbery under the DSA in case No. CR-31247 was enhanced by 12 months because petitioner's crime partner was armed with a firearm in the commission of that offense. An additional 12-month period was added to the base term *258 because of petitioner's second conviction for robbery in the first degree in case No. CR-31543. With respect to the latter enhancement, the CRB explained: "The prisoner has been convicted of multiple offenses and has been given a term to be served concurrently with the term for the base offense. The Community Release Board has determined that crimes for which a serious offender was sentenced concurrently shall be treated as consecutively [sic] as provided in Penal Code § 1170.1 consistent with the intent of the Legislature expressed in Penal Code section 1170.2." Petitioner's indeterminate sentence parole date had been set at January 13, 1980, with a primary discharge date of November 13, 2001. Under Penal Code section 1170.2, subdivision (b), petitioner was given a determinate sentence release date tentatively set at January 28, 1979.[1] In January 1978, petitioner filed a petition for writ of habeas corpus challenging the CRB's calculation of a term parole date pursuant to Penal Code section 1170.2, subdivision (b). The matter came on for hearing in February 1978. The court ruled that with respect to the additional 12 months imposed for arming, the petition was denied. However, with respect to the additional 12 months imposed as a consecutive sentence for the second robbery conviction, the provision of section 1170.2, subdivision (b), of the Penal Code authorizing the CRB to impose an additional period of time due to the number of crimes for which the prisoner was convicted, "does not allow the Board to completely disregard a judicial determination especially where such a determination is an act of leniency by the sentencing Court." Accordingly, the CRB was directed to conduct a second serious offender hearing pursuant to Penal Code section 1170.2, subdivision (b), to redetermine petitioner's term under guidelines which are not inconsistent with the court's decision. The People have appealed from the order granting writ of habeas corpus. (1a) The People contend that, in computing the term of imprisonment pursuant to Penal Code section 1170.2, for a prisoner sentenced under the ISL, the CRB may impose an additional period of time due to the number of crimes for which the prisoner was convicted, notwithstanding the fact that the trial court ordered the sentences to run concurrently. *259 Under the ISL, adopted in 1917, the Legislature prescribed both the minimum and maximum terms for each offense punishable by imprisonment in the state prison. The trial court did not specify the length of imprisonment, but simply sentenced the defendant for the term "prescribed by law." (Former Pen. Code, § 1168.) This sentence was deemed to be a sentence for the maximum term. (In re Lee (1918) 177 Cal. 690, 693 [171 P. 958].) The Adult Authority or its predecessor agencies determined and redetermined within those very wide statutory ranges, the length of term the offender would actually be required to serve. (In re Lynch (1972) 8 Cal.3d 410, 415, 417 [105 Cal. Rptr. 217, 503 P.2d 921].) In making such a determination, the authority exercised a broad discretion (In re Troglin (1975) 51 Cal. App.3d 434, 440 [124 Cal. Rptr. 234]); taking into consideration such factors as the nature of the prisoner's offense, his felony conviction record, the probability of his reformation, and the interests of public security. (Id.) Any release date earlier than the maximum sentence was supposed to reflect a recognition of the prisoner's efforts at rehabilitation. (People v. Superior Court (Gonzales) (1978) 78 Cal. App.3d 134, 141 [144 Cal. Rptr. 89].) The Supreme Court consistently sustained the constitutionality of the ISL against challenges that it infringed the doctrine of separation of powers. (In re Lee, supra, 177 Cal. 690 at p. 693; see also In re Wells (1950) 35 Cal.2d 889, 893 [221 P.2d 947]; In re Larsen (1955) 44 Cal.2d 642, 647-648 [283 P.2d 1043]; In re Lynch, supra, 8 Cal.3d 410 at p. 417.) Effective July 1, 1977, California repealed its indeterminate sentencing law. On that date, the Uniform Determinate Sentencing Act of 1976, as amended by statutes in 1977, became operative. The DSA returns the sentencing power to the courts, but requires sentencing judges to impose the "middle" of three statutorily determined lengths of incarceration for a crime, unless there are "circumstances in aggravation or mitigation," in which case the longer or shorter period will be imposed. (Pen. Code, § 1170.2, subd. (b); see Way v. Superior Court (1977) 74 Cal. App.3d 165, 170 [141 Cal. Rptr. 383].) A sentence may also be increased if consecutive sentences are imposed (Pen. Code, § 1170.1, subd. (a)),[2] or if certain "enhancements" are pleaded and proved. (See Pen. Code, §§ 667.5, 12022, subds. (a) and (b); 12022.5; 12022.6, subds. (a) and (b); 12022.7.) Certain limitations in the number of enhancements and the total sentence which may be imposed are specified in Penal Code seciton 1170.1. *260 In order to achieve total uniformity, the Legislature instructed the CRB, the successor to the Adult Authority, to fix terms for those indeterminately sentenced in accordance with guidelines set forth in Penal Code section 1170.2. (See Way v. Superior Court, supra, 74 Cal. App.3d at p. 169.) Subdivision (a) of section 1170.2 directs the CRB to determine what sentence an ISL offender would have received had he been sentenced under the DSA (disregarding good time credits but including enhancements).[3] Subdivision (b) then states that if this calculation results in a term which would end before a parole release date already set by the Adult Authority, or if a parole release date has not yet been set, the CRB "shall establish the prisoner's parole date ... on the date calculated under subdivision (a) unless at least two of the members of the Community Release Board ... determine that ... the prisoner should serve a term longer than that calculated in subdivision (a)...."[4] *261 Section 1170.2, subdivision (b), requires that a longer term be justified on the basis of certain objective facts: (1) the number of crimes of which the prisoner was convicted; (2) the number of prior convictions; (3) the fact that the prisoner was armed; or (4) that he used a deadly weapon; or (5) that he inflicted great bodily harm on the victim. That objective justification is required is further implied by the due process guarantees written into the law, including an inmate's right to counsel, and to be "`informed in writing of the extraordinary factors specifically considered determinative and on what basis the release date has been calculated.'" (Way v. Superior Court, supra, 74 Cal. App.3d 165, 173.) "But having thus seemingly narrowed the board's discretion, the Legislature ends on a broad discretionary note: `In fixing a term under this section the board shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977, and further, the board shall be guided by the following finding and declaration hereby made by the Legislature: that the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration.'" (Id.) Given the discretion granted by this latter clause, and in view of the legislatively expressed desire for uniformity in the treatment of offenders, it is apparent that the Legislature did not intend to prevent the CRB from taking into consideration the number of convictions suffered by a defendant in computing the length of an indeterminate sentence, even *262 where such sentences were ordered to run concurrently. Under the DSA, discretion as to whether to increase the base term for multiple convictions is addressed to the trial court, rather than, as under the ISL, the Adult Authority. Thus, any attempt by the CRB to recalculate an indeterminate sentence by reference to the DSA requires that the CRB consider the fact of multiple convictions, which under the DSA would be considered by the trial court. Any other method would result in a windfall to the inmate. Furthermore, section 1170.2, subdivision (b), specifically authorizes the CRB to increase the base term due to the number of crimes of which the defendant was convicted. At the same time, subdivision (a) of section 1170.2, provides that the CRB shall include in the base term any enhancement justified by any consecutive sentence imposed by the court at the time of sentencing. In view of this requirement in subdivision (a), the provision in subdivision (b) regarding multiple convictions would be mere surplusage if limited to cases in which indeterminate sentences for multiple convictions were ordered to run consecutively. (2) It is a fundamental rule that construction of a statute making some words surplusage is to be avoided. (Van Nuis v. Los Angeles Soap Co. (1973) 36 Cal. App.3d 222, 228-229 [111 Cal. Rptr. 398].) (1b) Petitioner, however, argues that determination by the CRB increasing the base term due to multiple convictions would violate the separation of powers doctrine set forth in article III, section 3, of the California Constitution. He points out that the CRB, like the Adult Authority, is an administrative agency which cannot exercise judicial authority. (See In re Fain (1976) 65 Cal. App.3d 376, 389 [135 Cal. Rptr. 543].) Since determination of whether a second sentence shall be consecutive or concurrent is a judicial function (Pen. Code, § 669), he argues that the CRB exceeded its jurisdiction by increasing his base term due to multiple convictions. (See In re Sandel (1966) 64 Cal.2d 412, 416 [50 Cal. Rptr. 462, 412 P.2d 806].) This contention ignores the fact that recalculation by the CRB of an ISL offender's term of imprisonment pursuant to Penal Code section 1170.2, is not a resentencing. The original indeterminate sentence "for the term provided by law" remains valid. (In re Brown (1978) 78 Cal. App.3d 647, 652 [143 Cal. Rptr. 549].) The only difference is that under section 1170.2, the CRB, in deciding whether to reduce a defendant's term below the maximum, may consider ameliorative effects of the DSA on length of sentences generally and the express legislative objective of uniform treatment of offenders. As the court observed in People v. Superior Court *263 (Gonzales), supra, 78 Cal. App.3d at pages 141-142: "This alternation in the factors to be considered by the administrative body charged with fixing and enforcing legislatively circumscribed and judicially imposed sentences is insufficient to render unconstitutional as to those defendants still falling within its purview a system which has been sustained by the courts for over 60 years." Allowing CRB to fix length of sentences for defendants indeterminately sentenced to state prison after July 1, 1977, for an offense committed prior to that date, does not constitute an unlawful delegation of judicial function to the executive branch of government. We therefore hold that, in fixing the term of imprisonment for an ISL offender pursuant to Penal Code section 1170.2, the CRB may impose an additional period due to the number of crimes of which the prisoner was convicted, even though the trial court ordered such sentence to run concurrently. Moreover, in assessing an additional period due to multiple convictions, it is reasonable for the CRB to use the formula set forth in Penal Code section 1170.2, subdivision (a), regarding consecutive sentences. This procedure accords with the legislative mandate that, in fixing the term of those indeterminately sentenced, the CRB shall be guided by the term which reasonably could be imposed under the DSA on a person committing a similar crime under similar circumstances. The order of February 28, 1978, granting the writ of habeas corpus, is reversed. Rattigan, J., and Christian, J., concurred. A petition for a rehearing was denied November 1, 1978, and respondent's petition for a hearing by the Supreme Court was denied November 30, 1978. NOTES [1] The base term of 36 months for one of the robbery convictions was increased by 24 months as discussed above. A credit of 5 months and 18 days was deducted, giving a maximum determinate sentence release date of November 13, 1979. Possible good time credits (289 days) were then deducted to arrive at the January 28, 1979 minimum release date. [2] One-third of the middle term of each additional offense is added to the sentence; more if violent offenses are involved. [3] Penal Code section 1170.2, subdivision (a) provides: "(a) In the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he had committed it after July 1, 1977, the Community Release Board shall determine what the length of time of imprisonment would have been under Section 1170 without consideration of good-time credit and utilizing the middle term of the offense bearing the longest term of imprisonment of which the prisoner was convicted increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony. Such matters include: being armed with a deadly or dangerous weapon as specified in Section 211a, 460, 3024, or 12022 prior to July 1, 1977, which may result in a one-year enhancement pursuant to the provisions of Section 12022; using a firearm as specified in Section 12022.5 prior to July 1, 1977, which may result in a two-year enhancement pursuant to the provisions of Section 12022.5; infliction of great bodily injury as specified in Section 213, 264, or 461 prior to July 1, 1977, which may result in a three-year enhancement pursuant to the provisions of Section 12022.7; any prior felony conviction as specified in any statute prior to July 1, 1977, which prior felony conviction is the equivalent of a prior prison term as defined in Section 667.5, which may result in the appropriate enhancement pursuant to the provisions of Section 667.5; and any consecutive sentence." [4] Penal Code section 1170.2, subdivision (b) provides: "(b) If the calculation required under subdivision (a) is less than the time to be served prior to a release date set prior to July 1, 1977, or if a release date had not been set, the Community Release Board shall establish the prisoner's parole date, subject to subdivision (d), on the date calculated under subdivision (a) unless at least two of the members of the Community Release Board after reviewing the prisoner's file, determine that due to the number of crimes of which the prisoner was convicted, or due to the number of prior convictions suffered by the prisoner, or due to the fact that the prisoner was armed with a deadly weapon when the crime was committed, or used a deadly weapon during the commission of the crime, or inflicted or attempted to inflict great bodily injury on the victim of the crime, the prisoner should serve a term longer than that calculated in subdivision (a), in which event the prisoner shall be entitled to a hearing before a panel consisting of at least two members of the Community Release Board as provided for in Section 3041.5. The Community Release Board shall notify each prisoner who is scheduled for such a hearing within 90 days of July 1, 1977, or within 90 days of the date the prisoner is received by or returned to the custody of the Department of Corrections, whichever is later. The hearing shall be held before April 1, 1978, or within 120 days of receipt of the prisoner, whichever is later. The board may by resolution extend this period an additional 90 days. However, such resolution shall have no force or effect if vetoed by resolution of either house of the Legislature. It is the intent of the Legislature that the hearings provided for in this subdivision shall be accomplished in the most expeditious manner possible. At such hearing the prisoner shall be entitled to be represented by legal counsel, a release date shall be set, and the prisoner shall be informed in writing of the extraordinary factors specifically considered determinative and on what basis the release date has been calculated. In fixing a term under this section the board shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977, and further, the board shall be guided by the following finding and declaration hereby made by the Legislature: that the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration." Subdivision (c) of section 1170.2, however, provides: "(c) Nothing in this section shall be deemed to keep an inmate in the custody of the Department of Corrections for a period of time longer than he would have been kept in its custody under the provisions of law applicable to him prior to July 1, 1977. Nothing in this section shall be deemed to require the release of an inmate sentenced to consecutive sentences under the provisions of law applicable to him prior to July 1, 1977, earlier than if he had been sentenced to concurrent sentences."

United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-2135 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Thomas Bryan Riehl lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Ft. Dodge ____________ Submitted: February 9, 2015 Filed: March 5, 2015 [Published] ____________ Before BYE, BRIGHT, and BENTON, Circuit Judges. ____________ PER CURIAM. Thomas Riehl pleaded guilty to one count of conspiring to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of actual (pure) methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The district court1 sentenced him to 214 months' imprisonment and 5 years' supervised release. Riehl argues the district court erred in denying his motion for a downward variance. We affirm. During late 2012 and early 2013, Riehl distributed large quantities of methamphetamine in northern Iowa. In August 2013, he was charged with one count of conspiring to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of actual (pure) methamphetamine. He pleaded guilty to the charge pursuant to a plea agreement. The district court calculated Riehl's sentencing guidelines range to be 292 to 365 months and sentenced him to 214 months' imprisonment, after an uncontested departure motion for a thirty-five percent reduction in the guidelines range. At the sentencing hearing on May 8, 2014, both parties argued for a downward variance by two levels in anticipation of Amendment 782 to the United States Sentencing Guidelines.2 The district court recognized it had the authority to vary downward but declined to do so, explaining the then-proposed amendment was not guaranteed to take effect. On appeal, Riehl argues (1) the district court erred in denying the motion to vary downward by two levels from the correctly calculated guidelines range in anticipation of Amendment 782; (2) the district court should have given weight to the policy reasons behind Amendment 782; and (3) the district court "failed [to] permit argument" on the issue. As to the first issue, our case law is clear: "[T]he district court was not required to consider the pending guidelines amendment. Consideration 1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. 2 Amendment 782 became effective November 1, 2014, and applies retroactively to reduce most drug quantity base offense levels by two levels. See United States v. Thomas, 775 F.3d 982, 982 (8th Cir. 2014). -2- of the pending amendment is merely permissible, not required." United States v. Allebach, 526 F.3d 385, 389 (8th Cir. 2008); United States v. Davis, 276 F. App'x 527, 528 (8th Cir. 2008) (rejecting the argument that "the district court imposed an unreasonable sentence because it failed to consider a proposed amendment to the Guidelines that would have lowered the advisory Guidelines imprisonment range"); United States v. Harris, 74 F.3d 1244 (8th Cir. 1996). The district court considered the motion and fully explained its reasons for not prospectively applying Amendment 782. It committed no error. Without any supporting authority, the dissent attempts to distinguish our case law on the basis that this case involves a different amendment and states that "[t]he applicability of the cases [above] . . . may be questionable." However, our holdings were not limited to any specific amendment. Moreover, they follow the firmly-established principle that the court must apply the Sentencing Guidelines in effect at the time of sentencing unless doing so would violate the ex post facto clause of the United States Constitution. See, e.g., United States v. Adams, 509 F.3d 929, 932 n.4 (8th Cir. 2007). As to the second issue, this is not an argument we can consider on appeal. See United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) ("Whatever the district court's views as to the Sentencing Commission's policy judgment underlying a particular guidelines provision, our proper role on appeal is only to determine whether the court abused its discretion by imposing a substantively unreasonable sentence on a particular offender."). Riehl does not argue the district court erred in considering the 18 U.S.C. § 3553(a) factors, and we find his sentence substantively reasonable. On the final issue presented by Riehl, the transcript of the sentencing hearing demonstrates both parties argued for a downward variance and made their record on the issue. At no time did the district court deny a request by either party to provide further argument. Rather, after each party presented the issue and stated its argument, the district court advised the parties they need not further pursue the request because it would be a waste of time. Riehl's assertion that he was not permitted to argue the issue is wholly without merit. -3-  To address the dissent's concern, we note that Riehl has not been deprived of the opportunity to pursue the benefit of Amendment 782. See 18 U.S.C. § 3582(c)(2) ("[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."). The dissent believes the opportunity to pursue relief under § 3582(c)(2) renders the issues on appeal moot because Riehl is "entitled to the relief he now seeks regardless of the outcome of this appeal." However, Riehl has neither received the relief he seeks in this appeal nor is he guaranteed to receive it under § 3582(c)(2). See United States v. Hasan, 245 F.3d 682, 684 (8th Cir. 2001) (en banc) ("[T]he district court retains the discretion to determine whether to resentence the defendant within the new lower range. It is not required to do so, and a new lesser sentence is not to be automatically awarded."). Moreover, whether Riehl is entitled to a reduction in his sentence based on § 3582(c)(2) is a separate question from whether the district court erred in denying his motions. Finally, the dissent asserts remand is appropriate so as not to "delay any further the remedy that [Riehl] deserves." However, it acknowledges "the district court may immediately hold a hearing to rule on [Riehl's] eligibility for a sentence reduction and determine that reduction." We do not believe our holding causes any delay or deprives Riehl of a benefit he may be entitled to, nor do we perceive any material benefit in remanding. Cf. United States v. Yanez-Estrada, No. 14-2989, 2015 WL 508862, at *1 (8th Cir. Feb. 9, 2015) ("This court notes that any claim for a sentence reduction based on Guidelines Amendment 782 . . . should be raised in a sentence-reduction motion filed in the district court."); United States v. Hayden, 775 F.3d 847, 850 (7th Cir. 2014) ("[Appellant] may ask the district court for a sentence -4- reduction based on Amendment 782 . . . but he has not yet done so and we do not consider that argument here."); United States v. Ergonis, 587 F. App'x 431, 432 (9th Cir. 2014) ("Any motion respecting the applicability of Amendment 782 to the Guidelines should be brought in the sentencing court in the first instance."); United States v. Moreno, No. 13-41019, 2015 WL 394450, at *2 (5th Cir. Jan. 30, 2015). Accordingly, we affirm. BRIGHT, Circuit Judge, dissenting. For the reasons set forth in my dissenting opinion in United States v. Lawin, No. 14-2577, __ F.3d __, __ (8th Cir. 2015) (Bright, J., dissenting), I would neither affirm nor reverse this case. As a practical matter, the issue on appeal is moot. Since Riehl was sentenced on May 8, 2014, the reduction in the base offense levels for most drug quantity offenses under U.S.S.G. § 2D1.1 (Amendment 782) has become effective and retroactive. See U.S.S.G. § 1B1.10(d) and (e)(1); United States v. Thomas, No. 14-3801, 2014 WL 7359580, at *1 (8th Cir. Dec. 29, 2014). Therefore, Riehl is entitled to the relief he now seeks (the benefit of the Amendment) regardless of the outcome of this appeal. See 18 U.S.C. § 3582 (c)(2). Consistent with our precedent, we should remand with instructions for the district court to consider whether Riehl is entitled to a sentence reduction in light of Amendment 782.3 ______________________________ 3 As far as the dissent is concerned, the only relief to which Riehl is entitled on remand is a consideration under 18 U.S.C. § 3582(c)(2) by the district court of whether his sentence should be reduced in light of Amendment 782. This judge appreciates the majority calling attention to the fact that Riehl is now entitled to such consideration. The majority recognizes that this consideration can be immediate on a timely motion. -5- 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6818 In Re: ALVON ALLEN THOMAS, Petitioner. On Petition for Writ of Mandamus. (6:97-cr-00118-NCT; 1:06-cv-00032-NCT) Submitted: September 26, 2007 Decided: October 9, 2007 Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Alvon Allen Thomas, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alvon Allen Thomas petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion filed in the district court. He seeks an order from this court directing the government to file a response in the district court or directing the district court to act. Our review of the docket sheet reveals that the district court dismissed Thomas’ motion as a second or successive 28 U.S.C. § 2255 (2000) motion for which authorization from this court had not been granted. See 28 U.S.C. § 2244 (2000). Accordingly, because the district court has recently decided Thomas’ case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis and we deny Thomas’ motion for immediate release. 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. PETITION DENIED - 2 - 

618 F.2d 783 Spradleyv.State of Florida 79-2580 UNITED STATES COURT OF APPEALS Fifth Circuit 5/14/80 1 M.D.Fla. AFFIRMED

228 Cal.App.2d 391 (1964) SALVADORE LOSCALZO et al., Plaintiffs and Appellants, v. FEDERAL MUTUAL INSURANCE CO., Defendant and Respondent. Civ. No. 21765. California Court of Appeals. First Dist., Div. One. July 9, 1964. Rea, Frasse, Anastasi, Clark & Lewis and Alan A. Rubnitz for Plaintiffs and Appellants. Woodrow W. Kitchel and D. W. Brobst for Defendant and Respondent. SULLIVAN, J. This is an appeal from an order denying a petition to compel arbitration. [fn. 1] The petition of Salvadore Loscalzo and Bertha Loscalzo, filed in the court below, alleges in substance as follows: [fn. 2] That petitioners entered into a contract of insurance with respondent Federal Mutual Insurance Co. which provided for uninsured motorists' coverage; that said contract contained a provision to settle by arbitration any controversy relating to liability or damages arising under the uninsured motorists' coverage; that a controversy had arisen, but respondent maintained that there was no arbitrable controversy; that petitioners requested that arbitration proceed but that the *393 appointed arbitrator in the American Arbitration Association refused to do so without a court order compelling arbitration. The petition further alleges that the controversy arose as follows: On December 10, 1960, while driving and riding in their automobile, petitioners were involved in an accident and suffered injuries "due to the actions of an automobile driven by George Matsunaga, and of an automobile owned by Connie Guardiola, driven by Miguel Guardiola." Since none of the last three persons were covered by automobile insurance, petitioners sought recovery under the uninsured motorists' clause of their own policy. Under the above-mentioned clause, which is attached to the petition, respondent agrees "[t]o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration." The attachment also contains the following provisions under the heading of "arbitration": "If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part." Petitioners sought an order of the court below "directing that such arbitration proceed in the manner provided for in said written insurance contract." *394 Respondent thereupon filed a memorandum in opposition to the petition, signed by its counsel, stating inter alia the following: "This matter" was before the arbitrator on January 16, 1963, and "at that time was put off calendar, because by jury verdict in the case of Cunningham v. Loscalzo et al, petitioner Loscalzo was found negligent, and a verdict was returned in favor of the plaintiff Cunningham." The latter suit involved the same accident which was the basis of petitioners' claim for arbitration. The judgment on the verdict in the Cunningham case was final and therefore a bar to any claim of right to arbitration, since that action determined that responsibility for the accident rested with Loscalzo and therefore did not permit relitigation of that issue in court or arbitration. Furthermore, "counsel for Loscalzo agreed at the arbitration hearing when the matter was continued, that if the Cunningham judgment became final it would be a bar to any further arbitration." In support of such memorandum respondent filed the affidavit of its counsel D. W. Brobst. Said affidavit states that he attended the arbitration hearing in the matter involving petitioners and respondent in San Jose on January 16, 1963, before the arbitrator; that he moved that the matter be continued because any award in favor of Loscalzo would be void if the judgment theretofore rendered in the Cunningham case adverse to Loscalzo became final; that counsel for Loscalzo agreed that if the judgment in the Cunningham case became final it would defeat the Loscalzo claim; and that thereupon the hearing was continued. Petitioners filed no counteraffidavit but filed a memorandum in support of the petition. [fn. 3] This memorandum states the following: That in the so-called Cunningham case, Cunningham brought an action against Loscalzo, Matsunaga and Guardiola and obtained a judgment against all three. Matsunaga and Guardiola were not insured. The resulting judgment however, so the memorandum urges, does not prevent the matter from going to arbitration since the doctrines of res judicata or collateral estoppel are inapplicable to such proceedings which are contractual rather than judicial. Furthermore, even if the doctrines were applicable in arbitration proceedings, they would not be operative here since the parties *395 involved were not adversaries in the Cunningham case but only codefendants. The positions of the parties in this court may be summarized as follows: Petitioners contend (1) that in the light of the provisions of Code of Civil Procedure section 1281.2 they are clearly entitled to an order directing the arbitration to proceed; (2) that the judgment in the Cunningham case is not res judicata of petitioners' right to seek relief against the two uninsured motorists above mentioned and even if it were as to petitioner Salvadore Loscalzo, it would not be as to petitioner Bertha Loscalzo who was a guest in the automobile; and (3) that the doctrine of res judicata does not preclude the continuance of the arbitration proceedings since its applicability is to be determined by the arbitrator. Respondent on the other hand contends (1) that there was a waiver of the arbitration proceedings when the judgment in the Cunningham case became final; and (2) such judgment is res judicata of petitioners' negligence. Section 1281.2 of the Code of Civil Procedure provides in relevant part: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:" "(a) The right to compel arbitration has been waived by the petitioner; or" "(b) Grounds exist for the revocation of the agreement." "If the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate such controversy may not be refused on the ground that the petitioner's contentions lack substantive merit." [1] The petition filed in the instant case alleges, as pointed out above, (a) the existence of a written agreement to arbitrate a controversy, (b) the controversy, and (c) at least the implied refusal of respondent to arbitrate such controversy by maintaining that no arbitrable controversy exists. It is not clear whether respondent's memorandum in opposition was intended to be a response as permitted by Code of Civil Procedure section 1290. [fn. 4] Assuming it may be so considered, *396 nevertheless it is notable that nowhere does it, or for that matter its supporting affidavit, contain any denial of the allegations of the petition outlined above. It is clear therefore that the petition contained all the allegations required by the statute. (Cf. Weiman v. Superior Court (1959) 51 Cal.2d 710, 712-713 [336 P.2d 489]; Myers v. Richfield Oil Corp. (1950) 98 Cal.App.2d 667, 670 [220 P.2d 973], both decided under the former statute.) Manifestly on this state of the record the trial court was required to order the parties to arbitrate unless it determined that petitioners had waived their right to compel arbitration or that grounds existed for the revocation of the agreement. (See 1281.2, supra.) [2] The record before us does not disclose the basis of the court's order denying the petition. [fn. 5] Nor does it disclose that any contention was made urging the existence of grounds for the revocation of the agreement. It must be assumed then that the court based its order denying the petition on the ground that petitioners waived the right to compel arbitration. Indeed respondent devotes most of its brief on this appeal to urging waiver. [3] Waiver is the intentional relinquishment of a known right after knowledge of the facts. (Alden v. Mayfield (1912) 164 Cal. 6, 11 [127 P. 45]; Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].) It therefore rests upon intent. (Roesch v. De Mota, supra.) [4] A party to an agreement providing for arbitration may waive his right to arbitrate. (Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 339 [182 P.2d 182]; Case v. Kadota Fig Assn. (1950) 35 Cal.2d 596, 606 [220 P.2d 912]; Tas-T-Nut Co. v. Continental Nut Co. (1954) 125 Cal.App.2d 351, 354-355 [270 P.2d 43]; Grunwald-Marx, Inc. v. Los Angeles Joint Board, Amalgamated Clothing Workers (1961) 192 Cal.App.2d 268, 277 [13 Cal.Rptr. 446]. [5] Whether or not there has been a waiver is ordinarily a question of fact. (Local 659, I.A.T.S.E. v. Color Corp. of America (1956) 47 Cal.2d 189, *397 196 [302 P.2d 294]; Tas- T-Nut Co. v. Continental Nut Co., supra; Grunwald- Marx, Inc. v. Los Angeles Joint Board, Amalgamated Clothing Workers, supra; Bertero v. Superior Court (1963) 216 Cal.App.2d 213, 219 [30 Cal.Rptr. 719].) So far as the record before us shows, the sole evidence before the court below was the verified petition and the affidavit of Mr. Brobst filed by respondent. [fn. 6] [6] It appears that the matter was determined on affidavits. Upon such a trial of an issue, if there is a substantial conflict in the facts stated, a determination by the trial court of the controverted facts may not be disturbed on appeal. (Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 508 [289 P.2d 476, 47 A.L.R.2d 1349]; Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 699 [321 P.2d 749].) In such instances we are bound by the same rule which governs our review of oral testimony. (See Lundblade v. Phoenix (1963) 213 Cal.App.2d 108, 110-111 [28 Cal.Rptr. 660] and cases there cited.) [7] An examination of the petition and respondent's affidavit reveals that the only evidence which can be construed as reasonably referring to a waiver is the statement in Mr. Brobst's affidavit that "counsel for Loscalzo agreed that if the judgment in the Cunningham case became final it would defeat the Loscalzo claim, ..." Respondent here argues that "[t]his was a clear waiver of the right to arbitrate when the Cunningham judgment became final, thus defeating any right of appellants to an order directing arbitration." [fn. 7] We disagree. Neither the above quoted allegation relied upon by respondent nor any other part of Mr. Brobst's affidavit states that petitioners' counsel waived their right to arbitrate or to continue with the arbitration then pending or to terminate or abandon such proceedings. [fn. 8] Express language to this effect is notably absent. The terms "waiver," "relinquishment," "arbitration" or other expressions synonymous therewith nowhere appear. [fn. 9] As we read the affidavit it says this: That Mr. Brobst moved that *398 the arbitration hearing be continued on the ground that any award therein would be void if the Cunningham judgment became final and petitioners' counsel agreed that such event would defeat the Loscalzo claim. At best, and assuming it was authorized, this statement ascribed to petitioners' counsel merely referred to the internal conduct of the arbitration proceedings themselves and not to the termination or abandonment of such proceedings. This contruction of the allegation is fortified by the statement that the arbitration hearing was continued presumably for the purpose of having the arbitrator then consider the effect of the finality of the judgment. If the statement of petitioners' counsel has any effect at all on petitioners' entitlement to an award, this bears upon the merits of the matter to be arbitrated which is to be determined by the arbitrator and with which we are not concerned. (Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 189 [14 Cal.Rptr. 297, 363 P.2d 313]; O'Malley v. Petroleum Maintenance Co. (1957) 48 Cal.2d 107, 111 [308 P.2d 9] and cases there collected.) We therefore are not called upon to determine whether or not the Cunningham judgment is res judicata as to these petitioners. Even assuming that the developments related in respondent's affidavit cause petitioners' contentions to lack substantive merit, such fact does not justify the order appealed from. (Code Civ. Proc., 1281.2; Bertero v. Superior Court, supra, 216 Cal.App.2d 213, 221.) "The parties have contracted for an arbitrator's decision and not for that of the courts." (Posner v. Grunwald-Marx, Inc., supra, 56 Cal.2d 169, 175.) [8] The policy of California law is to recognize and give the utmost effect to arbitration agreements. (Grunwald-Marx, Inc. v. Los Angeles Joint Board, Amalgamated Clothing Workers, supra, 192 Cal.App.2d 268, 276-277; Homestead Savings & Loan Assn. v. Superior Court (1961) 195 Cal.App.2d 697, 700 [16 Cal.Rptr. 121]; Myers v. Richfield Oil Corp., supra, 98 Cal.App.2d 667, 671.) Respondent further claims that the arbitrator's ruling that petitioners had no claim under the uninsured motorists' coverage of their policy by reason of the adverse finding in the Cunningham case constituted an award. The claim is utterly without merit. The record is barren of any evidence that the arbitrator made any ruling whatsoever except to continue the proceedings. We therefore conclude that the record does not support a conclusion that petitioners waived their right to compel arbitration *399 and we hold that it was therefore an abuse of discretion for the trial court to deny the petition. The order appealed from is reversed. Bray, P. J., and Molinari, J., concurred. If we assume no response was filed, then of course respondent admitted all of the allegations of the petition. NOTES [fn. 1] 1. Section 1294 of the Code of Civil Procedure provides in part: "An aggrieved party may appeal from: (a) An order dismissing or denying a petition to compel arbitration. ..." Section 1290 provides in part: "A proceeding under this title in the courts of this State is commenced by filing a petition. ..." Here the document filed by plaintiffs is labeled "Motion for Order" rather than "Petition for Order." The "motion" will be hereafter referred to as "petition" to conform to the statutory terminology. [fn. 2] 2. The statements of the petition are made under penalty of perjury. (Code Civ. Proc., 2015.5.) [fn. 3] 3. The record shows: The petition was noticed for hearing on October 4, 1963. Respondent's memorandum in opposition was filed on October 1, 1963, and petitioners' memorandum in support on October 2, 1963. The petition was denied on October 10, 1963. [fn. 4] 4. Code of Civil Procedure, section 1290 provides: "A proceeding under this title in the courts of this State is commenced by filing a petition. Any person named as a respondent in a petition may file a response thereto. The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed. The allegations of a response are deemed controverted or avoided." [fn. 5] 5. The order states: "The motion of Salvador Loscalzo and Bertha Loscalzo for an order directing arbitration to proceed is hereby denied." [fn. 6] 6. A petition such as the instant one "shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions. ..." (Code Civ. Proc., 1290.2.) [fn. 7] 7. The parties concede before us that the Cunningham judgment did become and is final. [fn. 8] 8. We deem it unnecessary to discuss whether the statement of counsel was within his authority. [fn. 9] 9. It is also significant that they are absent from respondent's memorandum in opposition filed in the court below.

21 Cal.App.4th 655 (1993) 26 Cal. Rptr.2d 703 CAL-AIR CONDITIONING, INC., Plaintiff and Respondent, v. AUBURN UNION SCHOOL DISTRICT, Defendant; M.P. ALLEN GENERAL CONTRACTORS, Real Party in Interest and Appellant. Docket No. C015569. Court of Appeals of California, Third District. December 29, 1993. *660 COUNSEL Downey, Brand, Seymour, & Rohwer, Thomas N. Cooper and Robin R. Raff for Real Party in Interest and Appellant. Diepenbrock, Wulff, Plant & Hannegan, D. Michael Schoenfeld and Charity Kenyon for Plaintiff and Respondent. OPINION DAVIS, J. In this action, we interpret certain provisions of the "Subletting and Subcontracting Fair Practices Act" (hereinafter, the Act) found in the Public Contract Code. (Pub. Contract Code, § 4100 et seq.; all subsequent references to sections are to this code unless otherwise specified.) The Act addresses the practices of bid shopping by a general contractor and bid peddling by a subcontractor on public improvements. (§ 4101; Southern Cal. Acoustics Co. v. C.V. Holder, Inc. (1969) 71 Cal.2d 719, 725-726 [79 *661 Cal. Rptr. 319, 456 P.2d 975].) These practices often result in financial difficulties for subcontractors and poor workmanship on public improvements. (§ 4101.)[1] The statutory provisions at issue in this case cover a prime contractor's attempt to substitute one subcontractor for another based on an "inadvertent clerical error" in the prime contractor's winning bid proposal. (§§ 4107, subd. (a)(5); 4107.5.) Section 4107.5 specifies that within two working days after the awarding authority opens the prime bids, the prime contractor, as a condition to assert a claim of inadvertent clerical error, shall give written notice of the error to the awarding authority and a copy of that notice to the subcontractor allegedly listed in error. Here, the prime contractor gave the awarding authority the required written notice but orally notified by phone the allegedly erroneously listed subcontractor the day after the prime bids were opened by the awarding authority; the prime contractor then sent written notice to the erroneously listed subcontractor on the fourth working day after the bid opening. Section 4107.5 also specifies that the awarding authority shall investigate disputed claims of the parties regarding the issue of the error and shall hold a public hearing to determine the validity of those claims. This determination is to be based on the facts contained in affidavits or in declarations submitted by the parties and on sworn testimony at the hearing. None of the parties in this case submitted affidavits or declarations and no sworn testimony was taken. At the hearing, the prime contractor provided the awarding authority with copies of its bid sheets and explained how the error occurred. The only specific issue raised by the allegedly erroneously listed subcontractor in these administrative proceedings concerned the prime contractor's failure to provide the required two-day written notice. Both sides were given the opportunity at the hearing to present any other evidence. The subcontractor allegedly listed in error never claimed in the administrative proceedings that it was denied a full and fair opportunity to present its case and it never objected to the lack of affidavits or declarations. And in the administrative proceedings, this subcontractor never disputed that the prime contractor had in fact made the claimed inadvertent clerical error. *662 Under these circumstances, we conclude the trial court erred in determining that the awarding authority could not consent to the substitution of subcontractors. The trial court's legal determination was based on the prime contractor's failure to provide the two-day written notice and failure to submit an affidavit or declaration. We hold that the doctrine of substantial compliance applies to the two-day written notice provision and that the affidavit provision is to be accorded "directory" rather than "mandatory" effect. Accordingly, we reverse. BACKGROUND The relevant facts are undisputed. On May 26, 1992, Auburn Union School District (District) solicited bids for an addition to the Skyridge School. The prime contractors had to submit their bids to the District by 3 p.m. on May 26, 1992. M.P. Allen (MPA), a general contractor, was submitting a prime bid on the Skyridge project. At 2:35 p.m. on May 26, Bangar Contractors Corp. (Bangar), a subcontractor, submitted to MPA a bid of $140,990 to do the heating, ventilation and air conditioning (HVAC) work for the project. Bangar's bid contained a qualification that it had to be confirmed if it was at least 10 percent lower than the next lowest bid. At 2:45 p.m. on May 26, Cal-Air Conditioning, Inc. (Cal-Air) submitted a bid to MPA for the HVAC subcontracting work at Skyridge. Cal-Air's bid, which apparently was the next lowest bid to Bangar's, was for $190,680; Bangar's bid was more than 10 percent lower than Cal-Air's, triggering Bangar's qualification. Shortly after the prime bids were opened at 3 p.m. on May 26, MPA's prime bid of $2,213,000, which listed Cal-Air as the HVAC subcontractor, was determined to be the low bid. Subsequently, MPA was awarded the Skyridge contract. At 8:45 a.m. on the morning after the prime bids were opened by the District (May 27), MPA's project manager "faxed" a letter to the District's representative (the District's architect on the Skyridge project), which stated in part: "This is to confirm my telephone notice to you late yesterday afternoon whereby I advised you of a minor clerical error in our bid. In the last minute flurry of receiving subcontractor bids, we received the bid of Bangar Contractors Corp. for the HVAC work. Their bid was approximately $50,000 lower than that of Cal-Air Conditioning Company, whose name we had already entered on the Subcontractor Listing. The monetary change was effected in our bid, but the change of company on the Listing was not. *663 "We are available to meet with you and/or the Owner, at your respective convenience, to show you the evidence which demonstrates how the above error occurred." Also on May 27, MPA telephoned Cal-Air. MPA explained that it had inadvertently listed Cal-Air as the HVAC subcontractor on the prime bid and requested that Cal-Air withdraw its HVAC bid. Cal-Air refused. In a letter from MPA dated June 1, 1992, but received by Cal-Air on June 2, MPA enclosed a copy of the May 27 letter it had sent to the District's representative and informed Cal-Air as follows: "Reference is made to our several telephone conversations since Thursday [May 28] regarding our disclosure to you that we had made an Inadvertent Clerical Error on our Subcontractor Listing in the submission of our bid. "Pursuant to the above, we enclose copies of our notice to the School District's architect advising of the error and the particulars thereto." The second of June was five working days after the District had opened the prime bids on May 26. In timely fashion, on June 2, Cal-Air sent a written objection to the District regarding MPA's proposed substitution of Bangar for the HVAC work. This objection stated in part: "If [MPA] is alleging that this is a clerical error in the listing of subcontractors, [MPA] must comply with the substitution requirements listed in Public Contract Code 4107.5. We will insist that the District enforce and follow the requirement strictly and not deviate from the requirements for the benefit of a lower bid. If any actions are taken deviating from the requirements in Public Contract Code 4107.5 it may be necessary for Cal-Air to request a written mandate under the CCP 1094.5, challenging local agency's decision. Regardless of the reason for the substitution or assignment and subletting changes being requested, the two working day written notice requirement to both subcontractors and the owner did not occur. We have only received written notice, today June 2, 1992. We look forward to completing a successful project with [MPA]." On July 14, 1992, the District's Board of Trustees held a noticed public hearing to decide whether MPA could replace Cal-Air with Bangar. The minutes of that hearing recite in pertinent part: "Board President Erwin Stark opened the Public Hearing: ... "Representatives from M.P. Allen - Mike Allen and John Soul provided the board with copies of their bid sheets and explained how the error occurred. *664 "Mike Christensen, a representative from Cal-Air, addressed the board stating that the process used did not comply with Public Contract Code 4107.5 because M.P. Allen did not send them a written notice of the error within two (2) working days after the bids were opened. "President Stark stated that the district had received a letter from Richard Wyatt concerning a clerical error. [Wyatt is the District's architect on the Skyridge project to whom MPA had `faxed' its May 27 letter.] "President Stark asked if there was any other evidence. No other evidence was presented. ".... .... .... .... .... .... .... "Trustee LaBouff stated that he felt there were two different parts to the conflict, i.e. (1) Was there a clerical error? and (2) Can the two day notice be waived? "The trustees were provided with copies of the correspondence between the parties with regard to the error." The trustees then approved the substitution. Neither MPA nor Bangar nor Cal-Air ever submitted an affidavit or a declaration for this hearing. Nor was any testimony taken at the hearing. In August of 1992, Cal-Air filed a petition for administrative writ of mandate pursuant to Code of Civil Procedure section 1094.5. In that petition, Cal-Air alleged that MPA failed to notify Cal-Air in writing of its claimed inadvertent clerical error within two working days and failed to submit affidavits to the District in support of its claimed error. These failures, Cal-Air alleged, constituted violations of section 4107.5 and precluded the District from lawfully consenting to the substitution of Bangar for Cal-Air. The trial court agreed with Cal-Air and granted the writ of administrative mandate, reasoning: "Not only did the prime contractor not comply with the 2-day written notice requirement of Public Contract Code 4107.5, but more importantly, there is nothing in the Administrative Record to show that the contractor and the alleged intended subcontractor complied with the requirement that affidavits be filed to support the claim of inadvertent clerical error. This is not just an issue of substantial compliance; there is nothing in the record to indicate that this was complied with at all. Per 4107.5, this is a prerequisite to the consent by the District to the substitution." *665 DISCUSSION 1. The Statutes and the Standard of Review The two statutes at issue in this case are Public Contract Code sections 4107, subdivision (a)(5), and 4107.5 (both of which were formerly in the Government Code under the same section designations). Section 4107, subdivision (a)(5), provides: "No prime contractor whose bid is accepted shall: "(a) Substitute any person as subcontractor in place of the subcontractor listed in the original bid, except that the awarding authority, or its duly authorized officer, may, except as otherwise provided in Section 4107.5, consent to the substitution of another person as a subcontractor in any of the following situations: ".... .... .... .... .... .... .... "(5) When the prime contractor demonstrates to the awarding authority, or its duly authorized officer, subject to the further provisions set forth in Section 4107.5, that the name of the subcontractor was listed as the result of an inadvertent clerical error. ".... .... .... .... .... .... .... "Prior to approval of the prime contractor's request for the substitution the awarding authority, or its duly authorized officer, shall give notice in writing to the listed subcontractor of the prime contractor's request to substitute and of the reasons for the request.... "If written objections are filed [by the listed subcontractor], the awarding authority shall give notice in writing of at least five working days to the listed subcontractor of a hearing by the awarding authority on the prime contractor's request for substitution." Section 4107.5 specifies: "The prime contractor as a condition to assert a claim of inadvertent clerical error in the listing of a subcontractor shall within two working days *666 after the time of the prime bid opening by the awarding authority give written notice to the awarding authority and copies of that notice to both the subcontractor he or she claims to have listed in error and the intended subcontractor who had bid to the prime contractor prior to bid opening. "Any listed subcontractor who has been notified by the prime contractor in accordance with this section as to an inadvertent clerical error shall be allowed six working days from the time of the prime bid opening within which to submit to the awarding authority and to the prime contractor written objection to the prime contractor's claim of inadvertent clerical error. Failure of the listed subcontractor to file the written notice within the six working days shall be primary evidence of his or her agreement that an inadvertent clerical error was made. "The awarding authority shall, after a public hearing as provided in Section 4107 and in the absence of compelling reasons to the contrary, consent to the substitution of the intended subcontractor: "(a) If (1) the prime contractor, (2) the subcontractor listed in error, and (3) the intended subcontractor each submit an affidavit to the awarding authority along with such additional evidence as the parties may wish to submit that an inadvertent clerical error was in fact made, provided that the affidavits from each of the three parties are filed within eight working days from the time of the prime bid opening, or "(b) If the affidavits are filed by both the prime contractor and the intended subcontractor within the specified time but the subcontractor whom the prime contractor claims to have listed in error does not submit within six working days, to the awarding authority and to the prime contractor, written objection to the prime contractor's claim of inadvertent clerical error as provided in this section. "If the affidavits are filed by both the prime contractor and the intended subcontractor but the listed subcontractor has, within six working days from the time of the prime bid opening, submitted to the awarding authority and to the prime contractor written objection to the prime contractor's claim of inadvertent clerical error, the awarding authority shall investigate the claims of the parties and shall hold a public hearing as provided in Section 4107 to determine the validity of those claims. Any determination made shall be based on the facts contained in the declarations submitted under penalty of perjury by all three parties and supported by testimony under oath and subject to cross-examination. The awarding authority may, on its own motion or that of any other party, admit testimony of other contractors, any *667 bid registries or depositories, or any other party in possession of facts which may have a bearing on the decision of the awarding authority." (1) The relevant facts in this case are undisputed. "It is well settled that the interpretation and application of a statutory scheme to an undisputed set of facts is a question of law ... which is subject to de novo review on appeal...." (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal. App.3d 948, 951 [268 Cal. Rptr. 624], citations omitted.) We first turn to MPA's failure to give written notice to Cal-Air within two working days after the prime bids were opened by District. 2. The Two-day Written Notice MPA's failure to provide this notice, as specified in section 4107.5, formed the crux of Cal-Air's claim in the administrative proceedings. (See the first two paragraphs of § 4107.5, quoted ante, p. 666.) (2) Preliminarily, we reject any argument that the District was without the jurisdiction or lawful authority to entertain MPA's claim of error because MPA failed to give Cal-Air the section 4107.5-specified two-day written notice. The District's jurisdiction or authority to hear MPA's claim is derived from the grant of hearing authority set forth in sections 4107 and 4107.5, and is not destroyed if the claiming party fails to give two-day written notice but instead provides a notice that satisfies all of the statutory objectives of the two-day notice provision. (See Crane v. Board of Supervisors (1936) 17 Cal. App.2d 360, 367-370 [62 P.2d 189].) MPA's "failure to comply" with the two-day written notice requirement of section 4107.5 raises the issues of whether the requirement is an obligatory or permissive one and whether the requirement can be met through substantial compliance. As we shall explain, the requirement is an obligatory one that can be met through substantial compliance, and MPA's notice to Cal-Air did substantially comply with the requirement. (3) The term "obligatory" refers to an obligatory procedure which a governmental entity or a private person is required to follow as opposed to a permissive procedure which such an entity or person may follow or not as it chooses. (See People v. McGee (1977) 19 Cal.3d 948, 958-959 [140 Cal. Rptr. 657, 568 P.2d 382]; Morris v. County of Marin (1977) 18 Cal.3d 901, 908 [136 Cal. Rptr. 251, 559 P.2d 606]; see also 3 Sutherland, Statutory Construction (5th ed. 1992) § 57.14, 57.15, pp. 36-42.) The pertinent language of section 4107.5 — "The prime contractor as a condition to assert a claim of inadvertent clerical error ... shall within two working days ... *668 give written notice" — is obligatory in nature: it sets forth a requirement that must be followed rather than followed at one's choosing. (4a) Therefore, we turn to the issues regarding substantial compliance. The court in A & A Electric, Inc. v. City of King (1976) 54 Cal. App.3d 457 [126 Cal. Rptr. 585] applied the doctrine of substantial compliance to a statutory provision similar to section 4107.5 — Government Code former section 4203 (now Gov. Code, § 5103). Former section 4203 specified procedures for bidders on public projects to follow to be relieved of their bids. The provision at issue in A & A Electric, Inc. stated as follows: "`The bidder shall establish to the satisfaction of the court that: ... (b) He gave the public entity written notice within five days after the opening of the bids of the mistake, specifying in the notice in detail how the mistake occurred.'" (54 Cal. App.3d at p. 464.) In applying the doctrine of substantial compliance to this statute, the court ultimately held that A & A did not substantially comply because it "did nothing within five days after the bid opening (or at any other later time prior to trial), to apprise the city of how the mistake occurred...." (54 Cal. App.3d at pp. 464-465.) (5) "`Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute.' [Citation.] Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form. When the plaintiff embarks [on a course of substantial compliance], every reasonable objective of [the statute at issue] has been satisfied." (Southern Pac. Transportation Co. v. State Bd. of Equalization (1985) 175 Cal. App.3d 438, 442 [221 Cal. Rptr. 12].) (6) The central purpose of the Act is to protect both the public and subcontractors from the practices of bid shopping and bid peddling in connection with public works projects. (§ 4101; Southern Cal. Acoustics Co. v. C.V. Holder, Inc., supra, 71 Cal.2d at pp. 725-726; Bay Cities Paving & Grading, Inc. v. Hensel Phelps Constr. Co. (1976) 56 Cal. App.3d 361, 365 [128 Cal. Rptr. 632]; R.M. Sherman Co. v. W.R. Thomason, Inc. (1987) 191 Cal. App.3d 559, 567 [236 Cal. Rptr. 577].) The two-day written notice provision of section 4107.5 fosters this purpose by forcing the prime contractor to assert its error in short order, and on the record, thus minimizing the time in which that contractor can shop for lower bids and limiting the room for deceptive maneuver. (4b) The notice provided by MPA in this case satisfied these statutory objectives. On the morning following the District's 3 p.m. prime bid opening — that is, on the morning of May 27 — MPA "faxed" a letter to the *669 District's representative (the District's architect on the Skyridge project) explaining that it (MPA) had inadvertently listed Cal-Air as the HVAC subcontractor on the project but noting that it had used Bangar's bid amount in its prime bid proposal. This letter explained that the error arose "[i]n the last minute flurry of receiving subcontractor bids," and that the "monetary change was effected in [MPA's] bid, but the change of company on the Listing was not." According to this letter, MPA had notified the District's representative about the error in a phone call on the day the prime bids were opened. MPA telephoned Cal-Air the day after the prime bid opening and explained that it had inadvertently listed Cal-Air as the HVAC subcontractor on the Skyridge project. Cal-Air refused MPA's request to consent to Bangar's substitution. Under these facts, MPA had little time to go bid shopping. On the fifth working day after the District had opened the prime bids (June 2, 1992), Cal-Air received a letter from MPA dated June 1. This letter referenced several telephone conversations over a number of days between the two companies regarding MPA's alleged inadvertent clerical error. Enclosed in this letter was a copy of MPA's May 27 letter to the District's architect; MPA explained to Cal-Air that this May 27 missive "advis[ed] of the error and the particulars thereto." In its letter to the District's architect, MPA specified how the error occurred. MPA sent a copy of this letter to Cal-Air in time for Cal-Air to submit a timely written objection to the claim of error. (§ 4107.5.) Although MPA did not send a copy of this letter to Cal-Air until the fourth or fifth working day after the District had opened the prime bids, MPA and Cal-Air maintained telephone contact during this time. Cal-Air, apparently, had no trouble submitting a timely written objection to MPA's proposed substitution. And Cal-Air can hardly claim any sort of detrimental reliance since it was notified the day after the prime bids were opened that MPA did not consider it the HVAC subcontractor on the Skyridge project. Under these facts, notice to Cal-Air was completely effected and no real injury could have resulted to it by MPA's failure to provide written notice within two working days. Under these circumstances, every reasonable statutory objective has been met. Cal-Air argues that the facts of this case align with those in Coast Pump Associates v. Stephen Tyler Corp. (1976) 62 Cal. App.3d 421 [133 Cal. Rptr. 88] (Coast Pump), where the court denied relief to a prime contractor *670 because the record did not show compliance with the section 4107.5 two-day written notice requirement. The decision in Coast Pump does not help Cal-Air. In Coast Pump, the prime bids were due at 2 p.m. on July 31, 1974. At 1:40 p.m. on that day, the prime contractor learned that subcontractor No. 2 had submitted a lower bid than subcontractor No. 1. The prime contractor used subcontractor No. 2's figures in computing its own final bid, but kept the name and the figures of subcontractor No. 1 on the bid form. To account for the savings afforded by subcontractor No. 2's lower bid, the prime contractor merely put down a figure for an unrelated bogus item of work which reflected these savings. Then on September 27, 1974, presumably a significant time after the prime bids had been opened and the prime contractor's bid had been accepted, the prime contractor wrote to the awarding authority requesting permission to use subcontractor No. 2 so as not to cause "financial hardship." The awarding authority consented to the change and then the prime contractor notified subcontractor No. 1, by phone, that its subcontract bid had not been accepted. (62 Cal. App.3d at pp. 423-424.) The facts in Coast Pump in no way mirror the facts here. The prime contractor in Coast Pump first notified the displaced subcontractor about the substitution after it was a done deal. The reasons for providing notice were completely thwarted in Coast Pump rather than completely effected: the displaced subcontractor was kept in the dark for months and was never given a chance to present its side of the story or to submit an objection. The prime contractor, moreover, engaged in an array of manipulative bid practices and apparently did not even claim inadvertent clerical error. In light of these facts, it is no wonder the court in Coast Pump concluded that the prime contractor failed to satisfy the two-day written notice requirement of section 4107.5. We conclude that the doctrine of substantial compliance applies to the two-day written notice requirement of section 4107.5 and that MPA substantially complied with that requirement. The parties also raise the question whether section 4107.5's two-day written notice requirement is to be accorded "directory" or "mandatory" effect. (7a) "`[T]he "directory" or "mandatory" designation does not refer to whether a particular statutory requirement is "permissive" or "obligatory," but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the ... action to which the procedural requirement relates.'" (People v. *671 McGee, supra, 19 Cal.3d at p. 959, quoting Morris v. County of Marin, supra, 18 Cal.3d at p. 908.) (4c) Since we have concluded that MPA substantially complied with the two-day written requirement (i.e., actually complied in respect to the substance essential to every reasonable objective of the statute), there has been no "failure to comply" and it is unnecessary to address this issue. To the extent that Cal-Air raises this "mandatory" issue as one of "literal compliance" rather than "substantial compliance," we reject the argument. Mandating literal compliance is not necessary to effectuate the statutory objective. (See 3 Sutherland, Statutory Construction, supra, § 57.01, pp. 2-3, § 57.26, pp. 66-67; McGee, supra, 19 Cal.3d at p. 958.) 3. The Affidavit/Declaration Provision of Section 4107.5 (8a) In its petition for administrative mandate Cal-Air alleged, for the first time, that MPA and Bangar failed to file affidavits as required by section 4107.5. The pertinent language in section 4107.5 provides as follows: "The awarding authority shall, after a public hearing as provided in Section 4107 and in the absence of compelling reasons to the contrary, consent to the substitution of the intended subcontractor: "(a) If (1) the prime contractor, (2) the subcontractor listed in error, and (3) the intended subcontractor each submit an affidavit to the awarding authority along with such additional evidence as the parties may wish to submit that an inadvertent clerical error was in fact made, provided that the affidavits from each of the three parties are filed within eight working days from the time of the prime bid opening, or "(b) If the affidavits are filed by both the prime contractor and the intended subcontractor within the specified time but the subcontractor whom the prime contractor claims to have listed in error does not submit within six working days, to the awarding authority and to the prime contractor, written objection to the prime contractor's claim of inadvertent clerical error as provided in this section. "If the affidavits are filed by both the prime contractor and the intended subcontractor but the listed subcontractor has, within six working days from the time of the prime bid opening, submitted to the awarding authority and to the prime contractor written objection to the prime contractor's claim of *672 inadvertent clerical error, the awarding authority shall investigate the claims of the parties and shall hold a public hearing as provided in Section 4107 to determine the validity of those claims. Any determination made shall be based on the facts contained in the declarations submitted under penalty of perjury by all three parties and supported by testimony under oath and subject to cross-examination. The awarding authority may, on its own motion or that of any other party, admit testimony of other contractors, any bid registries or depositories, or any other party in possession of facts which may have a bearing on the decision of the awarding authority." Cal-Air never specifically raised this affidavit issue in the administrative proceedings before the District. Instead, Cal-Air focused on MPA's failure to meet the two-day written notice requirement. The affidavit issue could easily have been handled at the administrative level and Cal-Air could have been afforded full relief there. (9) "It is a well-recognized rule in this state that if an administrative remedy is provided by statute, relief must be sought from the administrative body and such remedy must be exhausted before judicial review of the administrative action is available.... The rule is not a matter of discretion; compliance is a jurisdictional prerequisite to judicial review." (Alta Loma School Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981) 124 Cal. App.3d 542, 554 [177 Cal. Rptr. 506], citations omitted; see also Hampson v. Superior Court (1977) 67 Cal. App.3d 472, 477 [136 Cal. Rptr. 722] ["defendant must first exhaust his administrative remedies by presenting his claim ... to the (administrative body) as a condition of raising the claim in the trial court"].) (10a), (11a) Nevertheless, if MPA must file an affidavit to present a claim of inadvertent clerical error to the District and for the District to have the power to hear that claim, then Cal-Air's failure to raise this issue at the administrative level is immaterial. In other words, issues are again raised regarding the obligatory-permissive and mandatory-directory dichotomies. (10b) As for the obligatory-permissive dichotomy, we note that the language of section 4107.5 is not as specific in requiring affidavits as it is in requiring the two-day written notice. In fact, there is no language in that section explicitly requiring affidavits, although it is strongly implied. Instead, the provisions regarding affidavits in section 4107.5 focus on the awarding authority's procedure for resolving claims. Nevertheless, it does not appear that the prime contractor is free to ignore the affidavit provision. In that sense, this provision can be considered obligatory. (11b) Assuming that this provision is obligatory, it cannot be said that *673 MPA complied or substantially complied with it. MPA did not file an affidavit and no sworn testimony was taken at the hearing before the District's board of trustees. Thus, we assume there has been a failure to comply with the particular procedural step of section 4107.5 involving affidavits. The question is whether this failure, under the mandatory-directory dichotomy, invalidates the action to which the procedural requirement relates (i.e., the District's approval of the substitution of Bangar). (People v. McGee, supra, 19 Cal.3d at p. 959.) In California, "`[m]any statutory provisions which are [deemed obligatory] are accorded only "directory" effect.'" (Ibid.; Morris v. County of Marin, supra, 18 Cal.3d at p. 908, fn. 4.) We conclude that the affidavit provision of section 4107.5 is one such measure. (7b) In evaluating whether a statutory procedure is to be accorded mandatory or directory effect, courts look to the procedure's purpose or function. If the procedure is essential to promote the statutory design, it is "mandatory" and noncompliance has an invalidating effect. If not, it is directory. (People v. McGee, supra, 19 Cal.3d at p. 908; 3 Sutherland, Statutory Construction, supra, § 57.01, p. 2; Estate of Mitchell (1942) 20 Cal.2d 48, 51-52 [123 P.2d 503].) If a statutory directive does not go to "`the essence' of the particular object sought to be obtained, or the purpose to be accomplished" and a "departure from the statute will cause no injury to any person affected by it," the provision will be deemed directory. (Crane v. Board of Supervisors, supra, 17 Cal. App.2d at pp. 367-368.) (11c) As noted, the affidavit provisions in section 4107.5 focus on the awarding authority's procedure for resolving claims. (7c) Along these lines, it has been said that "... provisions defining time and mode in which public officials shall discharge their duties and which are obviously designed merely to secure order, uniformity, system and dispatch in the public bureaucracy are generally held to be directory." (3 Sutherland, Statutory Construction, supra, § 57.14, p. 37; see also Edwards v. Steele (1979) 25 Cal.3d 406, 409-410 [158 Cal. Rptr. 662, 599 P.2d 1365]; People v. McGee, supra, 19 Cal.3d at pp. 958-959.) (11d) Section 4107.5 specifies a progressive three-level process by which the awarding authority is to consider the affidavits and determine the issue of substitution. In level one, the awarding authority shall consent to the substitution if all of the parties agree in affidavits (and any other evidence they wish to present) that an inadvertent clerical error was in fact made. (§ 4107.5, subd. (a).) In level two, the awarding authority shall consent to the substitution if the prime contractor *674 and the intended subcontractor have filed affidavits claiming that an inadvertent clerical error was made and the erroneously listed subcontractor has failed to object to that claim. (§ 4107.5, subd. (b).) Finally, in level three, the prime contractor and the intended subcontractor have filed affidavits and the listed subcontractor has objected to their claim of inadvertent clerical error. In this situation, the awarding authority is to investigate the dispute and hold a public hearing to resolve it. This determination is to be based on the affidavits and testimony at the hearing. From the perspective of the awarding authority (here, the District), this three-level process appears "obviously designed ... to secure order, uniformity, system and dispatch in the public bureaucracy." From this perspective, then, these statutory provisions can be considered "directory." But section 4107.5 encompasses statutory directions to both public officers and private persons. Adding the perspective of MPA, Cal-Air, and Bangar to the mix invokes the general principles cited above on statutory purpose and essence. The affidavit provision, from both the District's perspective and that of the parties, cannot be regarded "as of the essence" to the object or purpose of the statute. The affidavit provision commits a claimant to a particular position and prescribes a certain evidentiary mode, thereby furthering the integrity of the factfinding process; however, this is not the only road to truth. An affidavit may also provide notice to the erroneously-listed subcontractor (although we note that under the terms of section 4107.5 the deadline for filing an affidavit is after the deadline for filing an objection to the claim of inadvertent clerical error). Like the factfinding process, though, sufficient notice is not exclusively dependent upon an affidavit. (8b) As we explain, "`the essence of the thing to be done'" under this part of section 4107.5 — namely, to provide notice and a full, fair, and accurate hearing — was completely effected without affidavits and no possible injury to Cal-Air could have resulted from the lack of affidavits. (Crane v. Board of Supervisors, supra, 17 Cal. App.2d at pp. 368-369, quoting from State v. Bird (1922) 295 Mo. 344, 351 [244 S.W. 938].) "`Under this state of facts, there is little ground for the holding that the [affidavit provisions] should be construed as mandatory.'" (17 Cal. App.2d at p. 369) As for the notice aspect, MPA telephoned Cal-Air the day after the prime bids were opened and explained the predicament. MPA then maintained telephone contact with Cal-Air regarding this issue. On the fifth working day after the prime bids were opened, MPA sent Cal-Air a copy of the letter it (MPA) had sent to the District the morning after the bids were opened *675 explaining how the error occurred. In fact, MPA had notified the District's representative about the error in a phone call on the day the prime bids were opened. In this way, Cal-Air was not only promptly and specifically notified but MPA was squarely "on the record." As for the integrity of the factfinding process, each side presented its case to the District based on the positions it had taken in correspondence and other communications prior to the hearing. These communications, which the District had before it at the hearing and which occurred in short order, afforded MPA little time or room to maneuver deceptively. At the hearing, each side was allowed the opportunity to present any other evidence. Neither side chose to do so. Cal-Air never maintained in the administrative proceedings that the hearing procedure was unfair or that it was denied the opportunity for a full hearing or that it was given inadequate notice or that the District could not base its decision on the evidence presented. In fact, the record of the administrative proceedings indicates that Cal-Air never disputed that MPA actually made an inadvertent clerical error. (11e), (8c) Since the affidavit provisions of section 4107.5 were not essential to promote the statutory design, these provisions should be construed as directory rather than mandatory. Accordingly, Cal-Air's failure to raise in the administrative proceedings the issue of the lack of affidavits forecloses it from raising this issue in the court proceedings. (Alta Loma School Dist. v. San Bernardino County Com. on School Dist. Reorganization, supra, 124 Cal. App.3d at p. 554; Hampson v. Superior Court, supra, 67 Cal. App.3d at p. 477.)[2] (12) Finally, it is not clear whether Cal-Air, in its petition for administrative mandate, raises the legal contention that the evidence is insufficient to support a finding of inadvertent clerical error. To the extent that Cal-Air poses this question of law, we conclude, based on a review of the administrative record, that there is sufficient evidence to support this finding. (Code Civ. Proc., § 1094.5; see Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal. Rptr. 162, 479 P.2d 362].) *676 DISPOSITION The judgment is reversed. MPA is awarded its costs on appeal. Sparks, Acting P.J., and Sims, J., concurred. NOTES [1] "Bid shopping is the use of the low bid already received by the general contractor to pressure other subcontractors into submitting even lower bids. Bid peddling, conversely, is an attempt by a subcontractor to undercut known bids already submitted to the general contractor in order to procure the job. The statute is designed to prevent only bid shopping and peddling that takes place after the award of the prime contract.... Bid peddling and shopping prior to the award of the prime contract foster the same evils, but at least have the effect of passing the reduced costs on to the public in the form of lower prime contract bids." (Southern Cal. Acoustics Co. v. C.V. Holder, Inc., supra, 71 Cal.2d at p. 726, fn. 7, citations omitted.) [2] Had Cal-Air objected to the lack of affidavits in the administrative proceedings and had the District elected to proceed in their absence, an issue of substantial compliance likely would have arisen. As for the notice function of an affidavit, it could be argued that MPA substantially complied with this aspect for the reasons already set forth. The same cannot be said for the "evidentiary mode" aspect of an affidavit since there was no "actual compliance" in this respect. (See Southern Pac. Transportation Co. v. State Bd. of Equalization, supra, 175 Cal. App.3d at p. 442.)

348 F.3d 1289 Donna BARGER, Plaintiff-Appellant,v.CITY OF CARTERSVILLE, GEORGIA, Sam Grove, in his official Capacity as Cartersville City Manager, Defendants-Appellees. No. 02-14820. United States Court of Appeals, Eleventh Circuit. October 28, 2003. 1 A. Lee Parks, Parks, Chesin & Miller, P.C., Alysa Beth-Ann Freeman, Parks, Chesin, Walbert & Miller, Atlanta, GA, for Plaintiff-Appellant. 2 E. Keith Lovell, David G. Archer, Office of David G. Archer, Cartersville, GA, Benton J. Mathis, Jr., William H. Buechner, Jr., Freeman, Mathis & Gary, LLP, Atlanta, GA, for Defendants-Appellees. 3 Appeal from the United States District Court for the Northern District of Georgia. 4 Before BARKETT and MARCUS, Circuit Judges, and MILLS,* District Judge. MILLS, District Judge: FACTS 5 Donna Barger began working for the City of Cartersville, Georgia, in January 1978. She rose to the position of Personnel Director in 1997. 6 In November 2000, Barger underwent back surgery to repair a ruptured disc. On January 8, 2001, shortly after Barger returned to work, City Manager Sam Grove demoted Barger from her $42,000.00 per year Personnel Director position to a $14.62 per hour customer service representative. She reacted by filing a discrimination charge with the Equal Employment Opportunities Commission (the "EEOC") on January 22, 2001, alleging that her demotion violated the Family Medical Leave Act, the Americans With Disabilities Act, and the Age Discrimination in Employment Act. 7 The EEOC issued Barger a right to sue letter on June 11, 2001. On July 18, 2001, Barger sued Grove and the City in district court to win back the Personnel Director position from which she had been demoted. 8 Because Barger's demotion resulted in less pay, she decided to seek Chapter 7 bankruptcy protection. Her bankruptcy attorney prepared a Chapter 7 petition which, among other things, stated that Barger had not been a party to any suit or administrative proceeding in the year preceding her petition. On August 27, 2001, Barger signed a Statement of Financial Affairs which declared under penalty of perjury that she read the bankruptcy petition and that its contents were true and accurate. She filed her bankruptcy petition on September 4, 2001, and the bankruptcy schedule she filed with her petition did not list her discrimination suit as an asset. On September 5, Barger's employment discrimination attorney sent a letter to Grove and the City which sought to negotiate a settlement in a way that would benefit Barger and not her creditors. Specifically, the attorney proposed that Barger be allowed to retire approximately two years early at the City's expense. 9 On November 5, 2001, about three months after the failed settlement proposal, Barger filed a motion to amend her discrimination suit by adding claims for compensatory and punitive damages. The District court allowed the motion on November 7, 2001. The next day, Barger attended a creditors' meeting as part of her bankruptcy petition. Barger told her bankruptcy attorney that she had a discrimination suit pending and she orally informed the bankruptcy trustee about the case's existence during the creditors meeting. However, when the trustee asked Barger about the case, she told him that the discrimination suit merely sought reinstatement of her position as Personnel Director. 10 As Barger's discrimination suit continued to proceed in the District court, Grove and the City served her with discovery requests. In an interrogatory dated October 31, 2001, Sam Grove asked Barger to list any legal proceedings to which she was or had been a party and to describe the nature of the proceedings. On December 10, 2001, Barger responded by stating that she had gotten divorced in 1976. She did not mention anything about her pending bankruptcy petition. 11 On January 12, 2002, the bankruptcy court granted Barger a complete discharge of her debts, a figure which amounted to $58,664. Since it was a "no asset discharge", no assets were distributed and the trustee was relieved of all further duties. 12 On February 7, 2002, Barger sent Grove and the City documents relating to their discovery requests. Included in these documents was a copy of the bankruptcy court's discharge order and its one page explanation of the order. Upon receiving these materials, Grove and the City moved for summary judgment on the basis of judicial estoppel. 13 Barger tried to thwart Grove and the City's efforts by reopening her bankruptcy petition and listing her discrimination claim as an asset. She moved the bankruptcy court to reopen her case and on June 5, 2002, the bankruptcy court held a hearing to address the issue. Barger, Grove, and the City all argued at the hearing. Ruling from the bench, the bankruptcy judge allowed Barger to reopen her case. 14 A week later, on June 12, 2002, the District court dismissed Barger's discrimination case by entering summary judgment against her. The District court's order determined that Barger was estopped from bringing suit and, alternatively, she lacked standing to sue. Subsequently, the bankruptcy court issued a June 18, 2002, written order finding that Barger "did not conceal the [discrimination] claim or attempt to obtain a financial advantage for herself". In the bankruptcy court's estimation, the failure to list the discrimination suit in Barger's Statement of Financial Affairs was caused by her bankruptcy attorney's "inadvertence" and had no substantive effect on the bankruptcy petition. 15 On June 24, 2002, Barger, with the bankruptcy court's decision in hand, moved the District court for reconsideration of its summary judgment order. The District court denied Barger's motion on August 7, 2002, and she timely filed a Notice of Appeal on September 3, 2002. ANALYSIS A. Standing 16 A plaintiff has standing to assert a claim if: (1) she can show that she has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely speculative, that the injury will be redressed by a favorable decision. See Kelly v. Harris, 331 F.3d 817, 819-20 (11th Cir.2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (additional citations omitted)). It is undisputed that Barger's employment discrimination claims satisfy all of these requirements. The issue is really about who can litigate the claim, Barger or the Trustee. 17 Determining the identity of the party who can properly assert the employment discrimination claims begins with Federal Rule of Civil Procedure 17(a). Rule 17(a) states that "[e]very action shall be prosecuted in the name of the real party in interest." Id. It also provides that "[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." Id. Because Barger filed her bankruptcy petition after she filed her discrimination claims her discrimination claims are the property of the bankruptcy estate. See 11 U.S.C. § 541(a) (property of bankruptcy estate includes all potential causes of action that exist at the time petitioner files for bankruptcy). Accordingly, the Trustee is the real party in interest and it has exclusive standing to assert any discrimination claims. See Wieburg v. GTE Southwest Incorporated, 272 F.3d 302, 306 (5th Cir.2001) (finding that a trustee is the real party in interest with exclusive standing to assert claims which are property of the bankruptcy estate) (citations omitted). 18 Although it was Barger who pursued the discrimination claims in the district court and it was she who filed this appeal, the Trustee may succeed her position from this point forward by virtue of Federal Rule of Civil Procedure 25(c). Rule 25(c) states that "[i]n case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom interest is transferred to be substituted in the action or joined with the original party." Id. Since the district court never directed the Trustee to substitute for Barger or join her in this suit, the Trustee simply takes Barger's place from hereon. B. Collateral Estoppel 19 Barger argues that the bankruptcy court's oral ruling on June 5 collaterally estopped the district court's June 12 written decision. Barger did not raise this issue in the district court. Thus, she is barred from raising the issue on appeal. See McGinnis v. Ingram Equip. Co. Inc., 918 F.2d 1491, 1495 (11th Cir.1990) (en banc) ("A general principle of appellate review is that an appellate court will not consider issues not presented to the trial court."). 20 Even if Barger had raised and argued collateral estoppel in the district court, her argument would have failed there as it would here. To successfully invoke collateral estoppel, a party must demonstrate that: (1) the issue at stake in a pending action is identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding. See In re McWhorter, 887 F.2d 1564 (11th Cir.1989) (citation omitted). 21 A court's decision does not become an entry of judgment until the date it is entered as a written order. See Fed. R.Civ.P. 58. Although the bankruptcy court orally ruled in Barger's favor during its June 5 hearing on the judicial estoppel issue, it did not enter a written order until June 18. The district court entered a written summary judgment order against Barger on June 12. Since the district court's written order preceded the bankruptcy court's written order, the district court's decision was controlling. Id. More importantly, as neither the City nor Grove were creditors of Barger, it appears that they lacked standing to litigate the judicial estoppel issue in the bankruptcy court. Absent standing to participate in the bankruptcy hearing, it is as if neither the City nor Grove ever argued before the bankruptcy court. As such, Barger could not show that the City or Grove had a full and fair opportunity to litigate the judicial estoppel issue in an earlier proceeding. See In re McWhorter, 887 F.2d 1564. C. Judicial Estoppel 22 Judicial estoppel is an equitable doctrine that precludes a party from "asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding." See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 (11th Cir.2002). The doctrine exists "to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment." Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968 (2001)). We review a district court's application of judicial estoppel for abuse of discretion. See id. at 1284. 23 The applicability of judicial estoppel largely turns on two factors. Id. First, a party's allegedly inconsistent positions must have been "made under oath in a prior proceeding." Id. (quoting Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir.2001), cert. granted and judgment vacated, 537 U.S. 1085, 123 S.Ct. 718, 154 L.Ed.2d 629 (2002)). Second, the "inconsistencies must be shown to have been calculated to make a mockery of the judicial system." Id. (quoting Salomon Smith Barney, Inc., 260 F.3d at 1308). "[T]hese two enumerated factors are not inflexible or exhaustive; rather, courts must always give due consideration to all of the circumstances of a particular case when considering the applicability of this doctrine." Id. at 1286. 24 1) Application of Judicial Estoppel to Barger's Monetary Claims 25 There is no debate that Barger submitted her Statement of Financial Affairs under oath to the bankruptcy court. Therefore, the issue here is intent. For purposes of judicial estoppel, intent is a purposeful contradiction — not simple error or inadvertence. Id. "[D]eliberate or intentional manipulation can be inferred from the record," where the debtor has knowledge of the undisclosed claims and has motive for concealment. See id. at 1287. 26 In Burnes, the Court found that the record "contain[ed] sufficient evidence from which to infer intentional manipulation by" the debtor. Id. at 1287. In that case, the debtor had a lawyer for the entirety of his bankruptcy proceedings. Id. at 1284. At the time the debtor filed his Chapter 13 petition, he was not participating in a lawsuit and indicated that fact on his schedule of assets and statement of financial affairs forms. Id. Six months after filing bankruptcy, he filed an employment discrimination charge against his employer and subsequently filed an employment discrimination suit. Id. He never amended his Chapter 13 schedule of assets or statement of financial affairs to include his discrimination lawsuit. Id. Later, he converted his Chapter 13 petition to a Chapter 7 bankruptcy. As part of the conversion, he was ordered to file amended or updated schedules to the Chapter 7 trustee reflecting any financial changes since he first filed schedules with the bankruptcy court. He did not report the pending lawsuit against his employer, and when he filed the amended schedules, he certified to the bankruptcy court that the schedules were true and accurate. He then received a "no asset," complete discharge of his debts. The bankruptcy court, the bankruptcy trustee, and his creditors never knew about the pending lawsuit. Id. 27 Based on these facts, the district court determined that the debtor was judicially estopped from asserting his discrimination claims. Id. at 1287-88. Upon reviewing the district court's decision, this Court found that the debtor filed and pursued his claims during the pendency of his Chapter 13 case and, at the time he petitioned to convert to Chapter 7, he had already filed and was pursuing the employment claims. Thus, the Court held that it was clear that the debtor knew of his claims during the bankruptcy proceeding. Id. Moreover, the Court also found that the debtor stood to gain an advantage by concealing his discrimination claims from the bankruptcy court. Id. at 1288. It was "unlikely [the debtor] would have received the benefit of a conversion to Chapter 7 followed by a no asset, complete discharge had his creditors, the trustee, or the bankruptcy court known of a lawsuit claiming millions of dollars in damages." Id. The debtor implicitly acknowledged "that disclosing this information would have likely changed the result of his bankruptcy because he now seeks to re-open his bankruptcy to include the undisclosed claims." Id. That evidence was sufficient for the Court to conclude that the debtor intended to mislead the bankruptcy court. Id. 28 Like the plaintiff-appellant in Burnes, Barger had already filed and was pursuing her employment discrimination claim at the time she filed her bankruptcy petition. Despite this fact, neither Barger nor her attorney ever listed the discrimination claim as an asset. And Barger did not lack an opportunity to disclose the lawsuit. In a Statement of Financial Affairs which asked debtors to list all lawsuits to which they had been parties in the year preceding their bankruptcy petition, Barger omitted any reference to her discrimination claim and then — under penalty of perjury — signed her name to indicate that she had read the statement and that it was true and correct. The statement, of course, was false. 29 Nevertheless, Barger argues that several facts suggest that she did not engage in any intentional manipulation. She contends that her disclosure of the employment discrimination claim to her attorney and the bankruptcy trustee, as well as the fact that she sought and was granted permission to re-open her bankruptcy proceedings, all militate against a finding of intentional manipulation. The Court disagrees. 30 Although it is undisputed that Barger's attorney failed to list Barger's discrimination suit on the schedule of assets despite the fact that Barger specifically told him about the suit, the attorney's omission is no panacea. As the Supreme Court stated in Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1386, 8 L.Ed.2d 734 (1962), "[t]here is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent." Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1386, 8 L.Ed.2d 734 (1962). "[I]f an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant." Id. at 634 n. 10, 82 S.Ct. 1386 n. 10 (citations omitted). 31 Even if Barger's failure to disclose could be blamed on her attorney, the nondisclosure could not in any event be considered inadvertent. The failure to comply with the Bankruptcy Code's disclosure duty is "inadvertent" only when a party either lacks knowledge of the undisclosed claim or has no motive for their concealment. See In re Coastal Plains, 179 F.3d 197, 210 (5th Cir.1999). In Coastal, the debtor, Coastal Plains Inc., sued a lender shortly after it filed bankruptcy for turnover of property and damages arising from the lender's prepetition possession of the property. The bankruptcy court ordered that the lender turn over the property, but did not adjudicate Coastal's damages claim. Subsequently, Coastal's claim against the lender was sold, along with all of its assets, to Coastal's largest creditor. The creditor, in turn, pursued the damages claim against the lender and eventually obtained a multi-million dollar verdict against the lender. 179 F.3d at 202-03. The lender appealed the verdict, arguing that the purchaser of the claim, as Coastal's successor, was judicially estopped from pursuing the claim because Coastal had failed to list the claim on its bankruptcy schedules. Judicial estoppel was rejected by both the bankruptcy court and district court based on the reasoning that Coastal's failure to list the claim had been inadvertent. 32 The Fifth Circuit reversed and held that the bankruptcy court abused its discretion in failing to apply judicial estoppel to bar the claim. 179 F.3d at 204. The court noted that its "review of the jurisprudence convinces us that, in considering judicial estoppel for bankruptcy cases, the debtor's failure to satisfy its statutory disclosure duty is `inadvertent' only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment." Id. at 210. The court found that Coastal both knew of the facts giving rise to the inconsistent positions and had a motive to conceal the claims. Id. at 212 (noting that had the claims, believed to be worth over $10 million, been disclosed, Coastal's unsecured creditors might have opposed lifting the stay, and the bankruptcy court might have reached a different decision). Coastal's CEO, who signed Coastal's schedules, relied on its attorneys to provide the appropriate information in the schedules, and concluded that the omission of the claim had probably been an oversight. Id. In the face of this argument, the Fifth Circuit concluded that "Coastal's claimed `inadvertence' is not the type that precludes judicial estoppel because Coastal knew of the facts giving rise to its inconsistent positions and had a motive to conceal the claims." Id. 33 This Circuit relied on Coastal when it decided Burnes. The Court quoted Coastal's conclusion that "the debtor's failure to satisfy its statutory disclosure duty is `inadvertent' only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment." Burnes, 291 F.3d at 1287. Furthermore, the recent opinion in De Leon confirmed that Burnes established the rule for this Circuit (as taken from Coastal) "that judicial estoppel bars a plaintiff from asserting claims previously undisclosed to the bankruptcy court where the plaintiff both knew about the undisclosed claims and had a motive to conceal them from the bankruptcy court...." 321 F.3d at 1291 (extending that rule to Chapter 13 bankruptcy cases). 34 In light of Burnes and DeLeon, it is difficult to argue that Barger should not be judicially estopped from asserting the discrimination claims she failed to disclose in her bankruptcy petition. Barger appeared to gain an advantage when she failed to list her discrimination claims on her schedule of assets. Omitting the discrimination claims from the schedule of assets appeared to benefit her because, by omitting the claims, she could keep any proceeds for herself and not have them become part of the bankruptcy estate. Thus, Barger's knowledge of her discrimination claims and motive to conceal them are sufficient evidence from which to infer her intentional manipulation. See Burnes at 1287. 35 The fact that Barger informed the trustee about her discrimination suit during the creditor's meeting does not aid her cause. When the bankruptcy trustee asked Barger for the monetary value of the lawsuit, she informed him that she only sought reinstatement of her previous position with the City of Cartersville. Barger did not tell the trustee that she was also seeking backpay, liquidated damages, compensatory damages, and punitive damages. She did not inform the trustee about these additional damages even though she added them to her prayer for relief a mere two days before the creditors meeting. Thus, it seems clear that Barger deceived the trustee. The bankruptcy court reasoned away Barger's conduct by concluding that it was ultimately the trustee's responsibility to investigate the lawsuit as property of the estate. The Court is not persuaded by the bankruptcy court's reasoning. The foremost responsibility in this matter was for Barger to fully disclose her assets. She did not satisfy her duty. Instead, she dissembled to the trustee and indicated that her discrimination claim had no monetary value. As such, the trustee can hardly be faulted for not further investigating Barger's discrimination suit. 36 Finally, Barger's attempt to reopen the bankruptcy estate to include her discrimination claim hardly casts her in the good light she would like. She only sought to reopen the bankruptcy estate after the defendants moved the district court to enter summary judgment against her on judicial estoppel grounds. "Allowing [a debtor] to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them. This so-called remedy would only diminish the necessary incentive to provide the bankruptcy court with a truthful disclosure of the debtor's assets." Burnes at 1288 (citation omitted). As such, Barger's disclosure upon re-opening the bankruptcy estate deserves no favor. 37 2) Application of Judicial Estoppel to Barger's Injunctive Relief Claims 38 In Burnes, the Court decided that while judicial estoppel barred the plaintiff-appellant from pursuing claims for monetary damages, the doctrine did not prohibit him from pursuing claims which add no monetary value to the bankruptcy estate. Id. at 1289. Thus, the Court allowed the plaintiff-appellant to proceed on his claims for injunctive relief. 39 Barger's claim for injunctive relief (i.e. her request for reinstatement) would have added nothing of value to the bankruptcy estate even if she properly disclosed it. Therefore, like the plaintiff-appellant in Burnes, judicial estoppel does not prohibit Barger from pursuing any claims for injunctive relief that she may have. CONCLUSION 40 Accordingly, we AFFIRM the district court's judgment insofar as it dismissed Barger's claims for monetary damages. However, we REVERSE the district court's decision to the extent that it prohibits Barger from seeking injunctive relief. 41 AFFIRMED in part and REVERSED in part. Notes: * Honorable Richard Mills, United States District Judge of the Central District of Illinois, sitting by designation BARKETT, Circuit Judge, dissenting: 42 I dissent because I believe that the circumstances of this case quite plainly militate against application of the doctrine of judicial estoppel. Donna Barger not only revealed her pending lawsuit to her bankruptcy attorney, who admitted he simply neglected to list the suit on Barger's bankruptcy schedule due to an oversight, but she also specifically announced the suit at an open creditors' meeting to the bankruptcy trustee. 43 The majority cites the appropriate standards for judicial estoppel under Eleventh Circuit law: a party must have taken inconsistent positions under oath, and these inconsistencies "must be shown to have been calculated to make a mockery of the judicial system." Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1284 (11th Cir. 2002). As the majority also notes, these two factors "are not inflexible," and courts must "always give due consideration to all of the circumstances of a particular case." Id. Because Barger's actions clearly were not "calculated to make a mockery of the judicial system," id., I believe the district court abused its discretion in applying the doctrine. 44 After filing for Chapter Seven protection, Barger signed several bankruptcy forms prepared by her attorney, one of which failed to list her pending lawsuit against the city. However, at a meeting of creditors two months later, Barger orally informed the bankruptcy trustee of her discrimination lawsuit. Although she described her suit as one for reinstatement of her prior position and did not specifically mention the other damages sought,1 this voluntary disclosure undermines any suggestion that she intended to hide the suit from the trustee or the creditors. Moreover, had she listed the suit on the bankruptcy schedule, she would have been able to pursue the litigation after it was abandoned by the trustee.2 45 I cannot agree with the majority that relief under these facts is foreclosed by Burnes, 291 F.3d at 1287-88, and De Leon v. Comcar Industries, 321 F.3d 1289 (11th Cir.2003). The debtors in those two cases never disclosed their pending lawsuits to their respective bankruptcy trustees. See De Leon, 321 F.3d at 1291-92 ("Despite De Leon's continuing duty to disclose all assets or potential assets to the bankruptcy court, he did not amend his bankruptcy documents...."); Burnes, 291 F.3d at 1288 ("Nevertheless, he once again failed to disclose the pending lawsuit to the bankruptcy court."). Barger, by contrast, did disclose her claim, even if not in the legally appropriate way. 46 The majority correctly notes that under our case law, a plaintiff may not show "inadvertence" when she knew of the facts giving rise to the inconsistency in her positions and had a motive to conceal the inconsistency. However, Burnes and De Leon do not hold that the failure to meet the specific "inadvertence criteria" automatically implies an intent to "make a mockery of the judicial system." Although a finding of inadvertence completely precludes judicial estoppel under Burnes, failure to meet the specific inadvertence criteria does not mean that judicial estoppel must apply.3 Rather, a party should be able to use "all of the circumstances" of her particular case in order to show that a court should not apply the equitable doctrine of judicial estoppel against her. I believe that Barger has made such a showing in this case, and I would reverse the district court. Notes: 1 Barger is not an attorney, and her description could simply reflect how a non-lawyer might have perceived the lawsuit. There is certainly no indication of intentional deception on her part 2 Although the majority infers that Barger benefitted from non-disclosure, one might equally infer that the trustee's decision not to pursue the claim after it was brought to his attention (and his failure to act upon it subsequently) implied that the outcome in Barger's bankruptcy case would not have changedSee also In re Barger, 279 B.R. 900, 907 (Bkrtcy.N.D.Ga.2002) (drawing this conclusion). 3 Although theDeLeon court recast the holding in Burnes as triggering judicial estoppel whenever the plaintiff had knowledge of the undisclosed claim and motive to conceal it, 321 F.3d at 1291, the DeLeon court specifically inferred an "intent to make a mockery of the judicial system" in the case before it. Id. at 1292 (internal quotation marks omitted).

72 Cal.App.3d 494 (1977) 140 Cal. Rptr. 225 THE PEOPLE, Plaintiff and Appellant, v. LAVERNE CALHOUN, Defendant and Appellant. Docket Nos. 28852, 29023. Court of Appeals of California, Second District, Division Five. August 8, 1977. *495 COUNSEL John K. Van de Kamp, District Attorney, Harry B. Sondheim and Arnold T. Guminski, Deputy District Attorneys, for Plaintiff and Appellant. *496 Wilber F. Littlefield, Public Defender, Harold E. Shabo, Jon Chambers and Leighton A. Nugent, Deputy Public Defenders, for Defendant and Appellant. OPINION STEPHENS, J. The People appeal from a judgment resentencing defendant to the California Institution for Women but retaining jurisdiction under section 1168 of the Penal Code to recall the sentence and grant probation. (2d Crim. No. 28852.) Defendant appeals from a subsequent order rescinding the latter portion of the prior sentence. (2d Crim. No. 29023.) The primary question facing us in these appeals is the scope of the trial court's power under section 1168 of the Penal Code to recall and modify a sentence. We affirm the order striking out 1168 jurisdiction, rendering the People's appeal from the earlier judgment moot. The factual prologue to the instant rulings is undisputed. Defendant was convicted of second degree murder (Pen. Code, § 187) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and as to both counts was found to have used a firearm. After referral for a presentence diagnostic study under section 1203.03, she was sentenced to the California Institution for Women on October 2, 1975. The court requested further diagnostic study under section 1168 so that it might consider whether to recall the sentence and grant probation. The second diagnostic study, unlike the first, recommended probation. Consequently, the court held a limited hearing on the matter and recalled defendant's commitment. On March 19, 1976, a hearing was held to determine defendant's suitability for probation. At the conclusion of the hearing the court resentenced defendant to state prison, again invoking the provisions of section 1168 so that it might further consider defendant's suitability for probation. Two months later the People interposed their appeal and immediately thereafter moved to annul that portion of the sentence retaining 1168 jurisdiction. On June 22, 1976, the court heard the People's motion and, agreeing that it had acted in excess of its jurisdiction, struck the offending language from the March 19 sentence. Defendant's appeal followed. Discussion At common law a trial court could revise any sentence during the term at which it was imposed as long as the sentence remained unexecuted. *497 (See, e.g., State v. Westlake 76 Ohio L.Abs. 102 [145 N.E.2d 501, 502]. See generally, 21 Am.Jur.2d, Criminal Law, §§ 569, 571, pp. 537, 538-539; Wharton, Criminal Procedure (12th ed. 1976) § 611, p. 221.) (1) But the general rule in California, as in many other states, is that the trial court loses jurisdiction to reconsider a denial of probation once it has relinquished control of the defendant and execution of sentence has begun. (Holder v. Superior Court, 1 Cal.3d 779, 783 [83 Cal. Rptr. 353, 463 P.2d 705]; In re Black, 66 Cal.2d 881, 888 [59 Cal. Rptr. 429, 428 P.2d 293].) Section 1168 of the Penal Code creates a specific exception to this rule by authorizing the court to recall a sentence and commitment previously ordered within 120 days of the date of commitment "if it is deemed warranted by the diagnostic study and recommendations approved pursuant to section 5079 [of the Penal Code]...." The court may then resentence the defendant "in the same manner as if he had not previously been sentenced."[1] The 120-day limitation upon the exercise of the recall power was added to section 1168 in 1969. (Stats. 1969, ch. 990, § 1.) (2) It is defendant's contention that section 1168 permits successive invocations of the recall and sentencing power and that under the peculiar circumstances of the instant case the trial court's retention of 1168 jurisdiction was effectual. Such a proffered construction ignores the statutory language and would subvert the clear legislative purpose. The obvious danger posed by the perpetuation of a court's jurisdiction to recall a sentence long after it has been executed is that it works an infringement upon the power of the executive branch, under the auspices of the Department of Corrections, to fix sentences and grant parole. (See Holder v. Superior Court, supra, at p. 781; see also United States v. Stollings (4th Cir.1975) 516 F.2d 1287, 1289 (interpreting rule 35 of the Fed. Rules Crim. Proc.).) True, section 1168 affords the trial court a chance to remedy an initial sentence erroneously imposed by granting probation (Holder v. Superior Court, supra, at p. 782), but the clear import of the language is that the remedy can only be invoked within 120 days of the original commitment. Obviously, the trial court felt it was faced with a perplexing decision in ascertaining whether or not defendant was a suitable subject for probation. After receiving a second diagnostic report on defendant, the court recalled the initial commitment and held a full hearing on the matter. Still ambivalent about the case, the court resentenced defendant, *498 again invoking sentence 1168 to ascertain "what the defendant's conduct is up there when she's returned under this sentence." Recognizing later that it had exceeded its authority in again invoking section 1168, the court properly voided the offending language in its new sentence.[2] Defendant also argues that because the People failed to contest the offensive ruling at the March 19 hearing they are now estopped from raising its legality on appeal. However, the court was empowered to and did correct a sentence which was in excess of its jurisdiction. The judgment (order rescinding retention of jurisdiction) is affirmed. The People's appeal is dismissed as moot. Kaus, P.J., and Hastings, J., concurred. Appellant's petition for a hearing by the Supreme Court was denied October 6, 1977. NOTES [1] The new determinate sentencing law (Pen. Code, § 1170 et seq., Stats. 1976, ch. 1139) now contains a similar resentencing provision. (Pen. Code, § 1170, subd. (c).) [2] The People's appeal (filed first) did not restrain the trial court from correcting a sentence void on its face. (People v. Massengale, 10 Cal. App.3d 689, 693 [89 Cal. Rptr. 237].) Though there may be some question as to whether the sentence here was "void on its face" — as distinguished from merely being "voidable" — the result we reach precludes the necessity of jousting with what is now but a legal windmill.

432 N.E.2d 18 (1982) Timothy Edgar MARTS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 1280S438. Supreme Court of Indiana. March 10, 1982. *20 Philip H. Hayes, Richard L. Young, John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for appellant. Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee. PRENTICE, Justice. Defendant (Appellant) was convicted after trial by jury of Dealing in a Narcotic Drug, Ind. Code § 35-48-4-1(1) (Burns Supp. 1981), and sentenced to thirty (30) years imprisonment. This direct appeal presents the following issues: (1) Whether the trial court erred in allowing the State to amend the information after arraignment. (2) Whether the trial court erred in overruling Defendant's challenge to the jurisdiction of the special judge. (3) Whether cocaine is properly classified as a narcotic drug and whether the penalty for dealing in cocaine constitutes cruel and unusual punishment. (4) Whether Defendant's conviction is the result of police entrapment. (5) Whether the trial court erred in excluding corroborative testimony. The evidence most favorable to the State discloses that on January 9, 1980 Defendant sold cocaine to an undercover police officer. ISSUE I The information filed in this cause reads as follows: "* * * on or about the 9th day of January A.D., 1980 at said County and State as affiant verily believes did knowingly deliver to Douglas Sheets a Narcotic Drug classified in Schedule II of Indiana Code 35-48-2, to wit: Cocaine, of aggregate weight of more than ten (10) grams all in violation of I.C. XX-XX-X-X and I.C. XX-XX-X-X(1)." After Defendant was arraigned, the State moved to amend the information to read as follows: "* * * on or about the 9th day of January A.D., 1980 at said County and State as affiant verily believes did knowingly deliver to Douglas Sheets a Controlled Substance classified in Schedule II of Indiana Code 35-48-2, to wit: Cocaine, of aggregate weight of more than three (3) grams all in violation of I.C. XX-XX-X-X and I.C. XX-XX-X-X(1)." (Emphasis added). The trial court granted the motion over Defendant's timely objection. Defendant contends that the trial court violated Ind. Code § 35-3.1-1-5 (Burns 1979) in two respects. He notes that a change in the information, which renders a defense to the original information unavailable under the amended information, affects his substantial rights. Ind. Code § 35-3.1-1-5(a)(9); (c); Johnson v. State, (1972) 258 Ind. 383, 387, 281 N.E.2d 473, 476. He argues that a "narcotic drug" as defined in Ind. Code § 35-48-1-1 (Burns 1979) does not include cocaine and therefore, that he lost the defense that the substance he delivered was not a narcotic drug as charged in the information. However, the State is not required to show that cocaine is a narcotic drug, as the statute prohibits the delivery of cocaine as well as narcotic drugs, see Hall v. State, (1980) Ind., 403 N.E.2d 1382, 1389; and the addition of the term "narcotic drug" was mere surplusage, which was not detrimental to the defense. Doss v. State, (1971) 256 Ind. 174, 179, 267 N.E.2d 385, 388. Defendant also argues that the amendment violated Ind. Code § 35-3.1-1-5(e) because the original information did not state an offense with sufficient certainty: "The defendant therefore was charged with two offenses, delivery of a narcotic drug and delivery of cocaine, or it was impossible to tell which offense he was charged with, if any." We do not agree. The gravamen of the offense charged is the delivery of cocaine in the amount of three grams or more. Both before and after the amendment Defendant was charged with the delivery of cocaine in the amount of three *21 grams or more. The amendment did not alter the potential penalty, the offense charged, or the available defenses, and the trial court committed no error in allowing it. See Utterback v. State, (1974) 261 Ind. 685, 689, 310 N.E.2d 552, 554; Kolb v. State, (1972) 258 Ind. 469, 473, 282 N.E.2d 541, 544; Dudley v. State, (1970) 255 Ind. 176, 178, 263 N.E.2d 161, 162. ISSUE II On February 1, 1980, Defendant moved for a change of judge. Judge Miller appointed a panel consisting of the Honorable Andrew Jacobs, Sr., the Honorable Steve C. Bach, and Maurice C. O'Connor, Master Commissioner of the Vanderburgh Circuit Court. The parties struck and Special Judge Jacobs assumed jurisdiction of the case. On February 12, 1980 Special Judge Jacobs entered the following order: "Counsel will file, and notify the Special Judge, of any request for any ruling which could possibly affect the trial date no later than February 25, 1980." Thereafter Defendant made several pretrial motions upon some of which the trial court made adverse rulings. The trial court also ruled adversely with respect to the State's motion to amend the information discussed in Issue I. On April 28, 1980 defense counsel withdrew, and new counsel entered their appearances, and moved the trial judge to disqualify himself and to remand the case to the regular judge in order to name a proper panel of persons qualified to serve as special judge. Defendant contended that under Ind.R.Crim.P. 13(2) Maurice O'Connor, Master Commissioner of the Vanderburgh Circuit Court, was by virtue of the rule and the office he held, ineligible to serve as special judge. Defendant repeated this contention prior to trial as part of his "Objections To Being Placed On Trial." The trial court overruled both the motion and the objections. Ind.R.Crim.P. 13(2) provides: "Any regular judge of a circuit, superior, criminal, probate or juvenile court and any member of the bar in this state shall be eligible for appointment in any of such courts as a special judge in any case pending in which he has not sat as judge or been named on a previous panel, unless he is disqualified by interest or relationship or is then serving as bailiff, reporter, probate commissioner, referee, or other such appointed official of the court in which the case is pending. In courts other than those named, a special judge shall be selected from judges of courts having the same or similar jurisdiction or from members of the bar." Defendant argues that since Mr. O'Connor was not eligible to serve as special judge under Criminal Rule 13(2), the trial court should have remanded the case to the regular judge to appoint a panel of three persons eligible to serve. Defendant cites Shaw v. State, (1978) Ind. App., 381 N.E.2d 883 where the court recognized that a defendant must make a timely objection to the process used to select a special judge. Id. at 885. We recognized this principle in Gears v. State, (1932) 203 Ind. 400, 180 N.E. 592 where we stated: "Instead of naming Mr. McDonald as special judge, the regular judge should have nominated three competent and disinterested persons and submitted their names to the prosecuting attorney and defendant for striking. (citation omitted). The method of selecting the special judge was irregular, and, if the defendant had objected and asked that the regular judge submit a list of three competent and disinterested persons, it would have been reversible error to have refused his request. But defendant made no objection to Mr. McDonald's appointment and recognized his jurisdiction by appearing and making a motion to quash, a verified motion for change of venue from the county and an oral motion for continuance. We see no reason why a defendant may not waive an irregularity in the method of taking a change of venue from the regular judge, or in the manner of selecting a special judge, if he should choose to do so with full knowledge of the extent and nature of the irregularity." Id. at 405, 180 N.E.2d at 593-94. *22 Assuming, arguendo, that the panel did not comply with Criminal Rule 13(2), the defendant's objections, though pretrial, came after he had, without protest, participated in the selection and had submitted himself to the jurisdiction of the special judge by obtaining rulings upon his motions. Upon this record, Defendant must be held to have acquiesced in any irregularity in the selection of the special judge. ISSUE III Defendant next contends that the inclusion of cocaine in the same statutory classification as more dangerous drugs violates the Due Process and Equal Protection guarantees of the State and Federal Constitutions. He also contends that the sentence for possession or distribution of cocaine constitutes Cruel and Unusual Punishment in violation of the State and Federal Constitutions. Defendant acknowledges that we answered these issues in the negative in Hall v. State, (1980) Ind., 403 N.E.2d 1382, 1384-89, but raises them in order to preserve them for federal review and to urge us to reconsider our position. We decline to do so. With respect to the Eighth Amendment Cruel and Unusual Punishment claim, our position is buttressed by the recent decision in Hutto v. Davis, (1982) ___ U.S. ___, 102 S.Ct. 703, 70 L.Ed.2d 556, (per curiam), where the Court upon the authority of Rummel v. Estelle, (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, reversed the granting of habeas corpus relief upon the grounds that the sentence constituted Cruel and Unusual Punishment. The defendant had been sentenced to consecutive terms of twenty (20) years imprisonment and a $10,000 fine upon a count of possession with intent to distribute marijuana and a count of distribution of marijuana. ISSUE IV Defendant contends that his conviction is the result of entrapment by the police and their agents. The defense of entrapment is governed by Ind. Code § 35-41-3-9 (Burns 1979) which provides: "(a) It is a defense that: (1) The prohibited conduct of the person was the product of a law-enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and (2) The person was not predisposed to commit the offense. "(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment." When the defense of entrapment has been raised, the successful prosecution of the case depends upon whether the State proves that the prohibited conduct of the accused was not the product of the efforts of the law enforcement official(s) and/or agent(s) involved or that the accused was predisposed to engage in such conduct anyway. Williams v. State, (1980) Ind., 412 N.E.2d 1211, 1214-15. Defendant argues as follows: "Therefore, even though evidence may exist showing the defendant's predisposition to deliver small amounts of cocaine, there is no evidence showing that he was in any way predisposed or even able to deliver quantities constituting a Class A felony prior to the urging and involvement of the police and their agents." Whether Defendant was entrapped was a question for the jury. On appeal, we review this issue using the same standard that we apply to other challenges to the sufficiency of the evidence. Williams v. State, (1980) Ind., 409 N.E.2d 571, 574. "Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. (citation omitted). In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." *23 Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Defendant's argument disregards the evidence favorable to the verdict. One Dan Smith, an undercover informant and admitted drug user, testified that he had purchased cocaine from Defendant prior to becoming a police informant. In the summer of 1979 Smith and one, Fentris, went to Defendant's home and purchased "narcotics." Smith charged his purchase on a line of credit that he maintained with Defendant for the purpose of buying narcotics. The evidence also discloses that the January 9, 1980 transaction was the culmination of a series of cocaine purchases made by Sergeant Sheets, an undercover officer. Sheets testified that at Defendant's home he had purchased two (2) grams of cocaine on November 20, 1979, two (2) grams on November 27, 1979, and three (3) grams on January 3, 1980. Sheets related the January 3, 1980 transaction: "Q. What conversation took place on the 3rd relating to the purchase of 3 ounces of cocaine from the defendant? "A. After I had purchased State's Exhibit 16 I asked Mr. Marts if it was possible to get two or three ounces of cocaine later in the week and he told me that he didn't see any problem that he would just have to contact his people." The deal was arranged for consummation on January 7, 1980; however, Defendant did not complete the sale, because he was wary of the circumstances. Sheets telephoned Defendant on January 8, 1980 and while trying to allay Defendant's fears that someone named "Dan", referring to informant Smith, had been working for the police, Sheets stated: "Uh, Uh, you know, if you wanna do it, fine. If you don't wanna do it, hey, that's fine. I got the bucks. I can find somebody up in Indianapolis. The only reason I been comin' down there is 'cause that's the best stuff I've ever seen." This excerpt appears in State's Exhibit No. 18, which is a transcription of the tape recording of that phone conversation. Sheets again talked with Defendant by phone on January 9, 1980. The transcription of the tape recording of this conversation reveals that Sheets and Defendant could not agree on where to meet in Evansville after Sheets had learned that no rooms were available at the Ramada Inn, the place upon which they had agreed. The transcription contains the following: "SHEETS: Uh-uh. What you suggest? I mean, I'm not going to move here with the money. "MARTS: Yeah, hu-h-h, but you've got everything there to test and weigh? "SHEETS: You got it. It's sitting right here on the table waiting on you. "MARTS: Alright. Well, I'll hafta trust you, I suppose. "SHEETS: Okay, I mean, I'd more than gladly come up to your place but, you know, what you heard was the whores, maybe, but, you know, you and I don't know that for a fact. "MARTS: Yeah, Well, that's why I was suggesting another place. "SHEETS: Well, this place, this is where I got the money, this is where I'm gonna stay. I'm just not gonna run around with it like I did the other night and ... "MARTS: Uh-uh. Alright. Hu-m-m-m. I'm thinking right now, man. I guess I'll hafta come out there. "SHEETS: Okay, uh, you got a time or — 'cause I just ain't answering the door to anybody. "MARTS: Yeah, okay, well, uh, be about forty minutes." (R. at 375) This record contains ample evidence from which the jury could find, beyond a reasonable doubt, that Defendant was predisposed to sell three ounces of cocaine to Sergeant Sheets on January 9, 1980. Stewart v. State, (1979) Ind., 390 N.E.2d 1018, 1021; Cyrus v. State, (1978) 269 Ind. 461, 464-65, 381 N.E.2d 472, 474, cert. denied, (1979) 441 U.S. 935, 99 S.Ct. 2058, 60 *24 L.Ed.2d 664; Silva v. State, (1980) Ind. App., 410 N.E.2d 1342, 1344-45. ISSUE V Defendant had presented a defense of duress and had testified that he had been attacked by an unidentified assailant with a rifle but had succeeded in repelling him and had sustained a slight injury in the struggle with him. Subsequently, he offered the testimony of his witness to the effect that he had told the witness of the attack and had displayed his wound to him. The court permitted the witness to testify that he had conversed with the defendant upon the occasion, and that Defendant had displayed the wound and appeared to be very disturbed. However, he sustained an objection, premised upon hearsay, to the witness' relating what the defendant had told him upon that occasion. It is the defendant's argument that the rejected testimony was admissible under the Patterson exception to the hearsay rule and that he was harmed in that he was denied the benefit of testimony which corroborated his own, citing Espenlaub v. State, (1936) 210 Ind. 687, 2 N.E.2d 979, appeal dismissed, (1937) 301 U.S. 665, 57 S.Ct. 791, 81 L.Ed. 1331. It is unnecessary for us to determine the validity of Defendant's "Patterson" argument. The witness' testimony that Defendant appeared disturbed and had a slight injury was corroborative of Defendant's testimony, and it was admitted. Only the self-serving declarations of the defendant were rejected. Self-serving declarations are generally not admissible. Keener School Township et al. v. Eudaly, (1931) 93 Ind. App. 627, 175 N.E. 363; Wilson v. Reynolds, (1938) 213 Ind. 436, 13 N.E.2d 218. An obvious reason for the rule is that a litigant should not be permitted to enhance his credibility by such method. We find no reversible error. The judgment of the trial court is affirmed. GIVAN, C.J., and DeBRULER, HUNTER and PIVARNIK, JJ., concur.

Order entered November 8, 2019 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01164-CV DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH AND HOSPITAL SYSTEM, Appellant V. FRANCISCO SOSA, Appellee On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-19-02681-E ORDER Before the Court is the parties’ November 6, 2019 agreed motion to extend the time to file appellee’s brief and appellant’s reply brief. We GRANT the motion. Appellee shall file his brief by November 26, 2019 and appellant shall file its reply brief by December 16, 2019. /s/ ERIN A. NOWELL JUSTICE 

782 F.2d 1045 Sidwell Co.v.JE & Associates, Inc. 85-1664 United States Court of Appeals,Seventh Circuit. 12/17/85 1 N.D.Ill. AFFIRMED

773 F.2d 1237 *Arringtonv.Ryder Truck Lines 85-7259 United States Court of Appeals,Eleventh Circuit. 9/10/85 1 N.D.Ala. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 11th Cir.R. 23.

543 U.S. 892 MENDOZA-CABALLERO ET AL.v.ASHCROFT, ATTORNEY GENERAL. No. 04-5294. Supreme Court of United States. October 4, 2004. 1 C. A. 9th Cir. Certiorari denied. Reported below: 91 Fed. Appx. 543.

52 N.Y.2d 746 (1980) Charles J. Schampier, Appellant, v. Office of General Services of the State of New York et al., Respondents. Court of Appeals of the State of New York. Argued November 12, 1980. Decided December 16, 1980. William F. Reynolds for appellant. Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondent. C. Roger Lunden for Division of Military and Naval Affairs, amicus curiae. Concur: Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Chief Judge COOKE. Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 1011).

Order entered July 10, 2019 In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01032-CR WILLIAM TRAVIS HENDRIX, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-82878-2017 ORDER We REINSTATE this appeal. We abated the appeal for the appointment of counsel. On July 3, 2019, the supplemental clerk’s record with the appointment was filed. We DIRECT the Clerk to list Hunter Biederman as appellate counsel. If counsel decides to adopt the Anders brief filed on April 11, 2019, he may do so by filing a letter by August 19, 2019 stating his intent to rely on the existing Anders brief along with a motion to withdraw as counsel. Any amended brief filed in place of the Anders brief is DUE by August 19, 2019. /s/ BILL PEDERSEN, III JUSTICE 

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 31 2018, 9:51 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane H. Ruemmele Curtis T. Hill, Jr. Hayes Ruemmele, LLC Attorney General of Indiana Indianapolis, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Donald G. Karr, Jr., January 31, 2018 Appellant-Defendant/Petitioner, Court of Appeals Case No. 29A02-1707-CR-1502 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Appellee-Plaintiff/Respondent. William J. Hughes, Judge The Honorable Wayne A. Sturtevant, Judge Trial Court Cause Nos. 29D03-1505-F6-4047 29D05-1703-PC-1576 Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 1 of 34 [1] Following a jury trial, Donald G. Karr, Jr. (“Karr”) was convicted of Level 6 felony domestic battery committed in the presence of a child less than sixteen years of age1 and two counts of Level 3 felony rape.2 The trial court sentenced Karr to two and one-half years for the battery conviction. For the two rape convictions, the trial court imposed concurrent fifteen-year sentences, with five years suspended on each, and ordered the rape sentences to be served consecutive to the battery sentence, for an aggregate executed sentence of twelve and one-half years. Karr filed a motion for a new trial, alleging ineffective assistance of trial counsel, and the trial court denied his motion. Karr appealed, but then sought a remand to the trial court in order to pursue post-conviction relief. We granted his request and dismissed his appeal without prejudice pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977) and Hatton v. State, 626 N.E.2d 442 (Ind. 1993), allowing Karr to later file a new notice of appeal and raise both the issues that he would have raised in the original appeal along with new issues created by the post-conviction court’s ruling on the petition for post-conviction relief.3 Appellant’s App. Vol. II at 33. 1 See Ind. Code § 35-42-2-1.3. 2 See Ind. Code § 35-42-4-1(a)(1). 3 This procedure is referred to by Indiana courts as a Davis/Hatton procedure and involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. Talley v. State, 51 N.E.3d 300, 302 (Ind. Ct. App. 2016), trans. denied; see also Ind. Appellate Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court . . . for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 2 of 34 [2] Karr filed a petition for post-conviction relief, alleging claims of ineffective assistance of trial counsel, and the trial court denied Karr’s petition, finding that it was barred by res judicata. Karr initiated this consolidated appeal and presents the following reordered and restated issues: I. Whether sufficient evidence supports Karr’s domestic battery conviction and two rape convictions; II. Whether the trial court abused its discretion in sentencing Karr; III. Whether the trial court erred when it found that Karr received effective assistance from trial counsel and, therefore, denied Karr’s request for a new trial; and IV. Whether the post-conviction court erred when, by summary denial, it denied Karr’s petition for post-conviction relief on the basis that his claims of ineffective assistance of counsel were barred by res judicata. [3] We affirm. Facts and Procedural History [4] In May 2015, Karr and his then-girlfriend, A.P., along with her three children (“Children”), ages six, five, and three years old, were living in a residence that administration of justice.”). The procedure is useful where a defendant needs to develop an evidentiary record to support a claim of ineffective assistance of trial counsel. Talley, 51 N.E.3d at 303. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 3 of 34  Karr and A.P. leased. Karr and A.P. shared a bedroom that was located off the same hallway as a bedroom that the three Children shared. On the evening of May 5, 2015, A.P. was home with the Children, and she put them to bed around 8:00 p.m. As A.P. left the Children’s room and closed the door behind her, Karr came home from work. He was “agitated” and asked her what she was doing. Tr. Vol. II at 35. He walked from the front door to the back door and looked outside, and he accused her of having someone in the house before he got home. She told him that was not the case, and he became angry and took her phone from her as she sat on the living room couch, which according to A.P. was positioned right next to the opening to the hallway, leading to the Children’s bedroom. Karr believed that A.P. was lying, and his voice got louder as he accused her. He asked her “to deny it again[,]” and when she did, he hit her across the cheek with an open hand. Id. at 38. He pulled her off the couch by her hair, and she fell to the floor. Karr then told A.P. to get up, saying that she was going to “suck his dick” every day and every night. Id. at 39. [5] At some point, A.P.’s oldest child (“Child”) came out of her bedroom, and as she opened the door, Karr went into the hallway and confronted her. Child said she needed to go to the bathroom, and Karr told her “no” and to go back to bed. A.P. heard Child begin to cry as she went back into the bedroom, and Karr closed the door. He returned to A.P., who had gotten herself up from the floor and was on the couch. He unbuckled his pants, and A.P. put her feet up “and tried to kick him away” from her. Id. at 40. At that point, A.P. began to Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 4 of 34  have abdominal pains from a preexisting ovarian cyst condition, so A.P. told Karr that she needed to call her doctor. [6] He initially refused, but he eventually agreed to let her call her doctor or go to the emergency room. After A.P. vomited in the bathroom, Karr woke the Children and told them they were all leaving and taking A.P. to the hospital. At A.P.’s request, they dropped the Children off at A.P.’s parents’ home on the way. When A.P. was asked at trial if, when they dropped off the Children at her parents’ house, she had told her parents that Karr had beaten her and pulled her hair, A.P. explained that she did not, because at that time her “main focus was getting the kids away from [Karr] and . . . getting them someplace safe.” Id. at 42. She feared that saying anything would put herself and the Children in “more danger.” Id. Once at the hospital, she and Karr walked to the registration area, and A.P. suggested to him that he go and park the car, and when she “felt he was out of earshot,” she told the nurse, “I need you to get a police officer because he’s hitting me.” Id. at 43-44. Karr returned, and they sat together in an examination room, but then the nurse told Karr that A.P. needed an ultrasound and he could not go, so she left and went to an ultrasound room, where Officer Craig Denison (“Officer Denison”) of the Noblesville Police Department (“NPD”) was waiting for her. [7] A.P. told Officer Denison what had happened, and he took some pictures. She also removed from her pocket and showed Officer Denison hairs that had come loose and fallen out of her head when she was on the couch and Karr was telling the Child to go back to bed. Officer Denison advised A.P. that he did Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 5 of 34  not believe he could make an arrest of Karr at that time because there was no immediate bleeding or bruising, but he offered to speak to Karr and to drive A.P. home or wherever she needed to go. Believing that Karr had calmed, and deciding “it would be better to just go home and . . . deal with everything the next morning[,]” A.P. went back home with Karr. Id. at 48-49. A.P. called her parents to let them know “what was going on” with her trip to the emergency room,4 and because it was so late, after midnight, the Children stayed with A.P.’s parents. Id. at 49. [8] When A.P. and Karr arrived home, she went into the bathroom to get ready for bed and put on pajamas, and he went to the kitchen. He became angry that she had purchased “the wrong orange juice” and told her that she “needed to be doing what he told [her] to do.” Id. at 51. He hit her across her face, and she fell on the hallway floor. Karr took off his pants and underwear and told her she was going to “suck his dick.” Id. at 52. He forced himself into her mouth, but at some point stopped and “lectured” her about the rules he was setting for her. Id. at 53. Eventually, Karr said he wanted to go to bed, so A.P. got into bed. When he came into bed, he said he needed to masturbate. According to A.P., he searched his phone for a pornographic video and told her to put her hand on his penis. She complied because “every time I told him no[,] I was either hit or forced to do something anyway[.]” Id. at 54. He later asked her to 4 We note that, after talking to Officer Denison, but before leaving the hospital, A.P. received an ultrasound associated with the cysts. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 6 of 34  perform oral sex, which she did “[o]ut of fear of what would happen if I said no.” Id. During this time, she saw a light behind her; she turned her head and saw it was his cell phone “so I assumed he was taking a video.” Id. at 55. Karr ejaculated on A.P., and both of them fell asleep. [9] Karr went to work the next day, and, after she showered, A.P. went to a doctor’s appointment. At her appointment, the doctor had already received record of A.P.’s emergency room visit. The doctor asked A.P. to tell her “what had happened,” referring to the situation with Karr. Officer Michael Boudreau (“Officer Boudreau”) of NPD came and met A.P. at the doctor’s office, and at A.P.’s request, an advocate from Prevail, a victim’s assistance agency, also met with A.P. to help her prepare a request for a protective order. A.P did not go home after the appointment because she was admitted to the hospital for pain associated with the ovarian cysts. A.P. called her parents and asked her mother to take the Children “someplace away from the house” and asked her father to pick up her car from the hospital. Id. at 58. Meanwhile, Karr and A.P. exchanged some casual text messages throughout the day. However, Karr became angry when A.P. stopped responding to him. Officer Boudreau prepared a probable cause affidavit, and Karr was arrested during a traffic stop. [10] Before being released from the hospital, A.P. met with a forensic nurse, who examined her, and took pictures of areas where Karr had hit A.P. and pulled her hair. After being discharged, A.P. met with Detective Michael Haskett (“Detective Haskett”) of NPD. Within the next week or two, A.P. and her Children were interviewed by Indiana Department of Child Services (“DCS”). Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 7 of 34 [11] On May 28, 2015, the State filed an amended information charging Karr with Counts 1 through 5, as follows: Count 1, Level 6 felony domestic battery; Count 2, Level 3 felony rape; Count 3, Level 3 felony rape; Count 4, Level 6 felony strangulation; and Count 5, Level 6 felony intimidation. A jury trial was conducted on the charges in August 2016. [12] A.P. was the first witness. She described the layout of the home where she, Karr, and the Children resided. She said that the bedroom she shared with Karr and the Children’s bedroom were both located off “a very small hallway,” were “maybe six feet apart” in the hall, and, generally, she would be able to hear the Children talking in their room after she put them to bed in the evenings. Tr. Vol. II at 34. As to the night in question, she described that Karr believed she had secretly had someone else in the house right before he got home and sent the person out the front door as he came in the back. He became very angry at her, and, after he first hit her, he “continued to hit [her] several times again, both with an open hand and with a closed fist” on both sides of her face and on her head. Id. at 39. She said that when he pulled her off the couch by her hair, “It hurt a lot. I could feel and hear hair ripping out of my head.” Id. A.P. said that she was on the floor, kneeling in front of the couch, when her oldest Child came out of her room, and Karr went and told Child to go back to bed. A.P. described that Child’s voice sounded “timid and a little scared.” Id. at 40. A.P. explained that she went home from the hospital later that night with Karr because “I was looking for some kind of protection and if he wasn’t going to be arrested at that point then I felt that my only other Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 8 of 34  course of action would be to file for a protective order and I wasn’t going to be able to do that until the next morning[.]” Id. at 49. [13] A.P. stated that the trip home from the hospital was uneventful, but that, when they got home, Karr became angry that she got the wrong juice and demanded that she perform oral sex on him. When she tried to avoid it, he threatened to carve “C-U-N-T” into her forehead. Id. at 52. She described that she was crying and choking and gagging when he forced his penis in her mouth. Id. [14] On cross examination, defense counsel asked A.P. why she went home with Karr that night from the hospital after he had beaten her and why she did not leave once he fell asleep. She explained that she went home with him so that he would not know she had told her story at the hospital or to a police officer and that she planned to seek a protective order the next day. She said she did not leave after he fell asleep because she was afraid of waking him or of him following her. She did not go to a neighbor’s house because she did not know her neighbors. She was asked, and denied, that at any time she removed her hair from either the shower drain or her hair brush. [15] Among other witnesses, Officers Denison and Boudreau also testified for the State. Officer Denison testified to meeting with A.P. at the hospital when she was in the E.R. He did not observe any injuries to her at that time, but noted that “sometimes bruises, scratches, abrasions, swelling doesn’t show up until a later date.” Id. at 154. Officer Denison characterized her demeanor as serious, but she was “not frantic or crying.” Id. at 147. According to Officer Denison, Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 9 of 34  A.P. did not want him to speak with Karr or her Children, telling him that she “didn’t believe that her kids had witnessed any of the actual assault that occurred,” and “it was just the verbal part that they had witnessed or heard.” Id. at 150. He stated that A.P. seemed fearful or had concerns about possessing the Prevail documents that he had given her, which he found was not unusual in cases of domestic abuse. A.P. told Officer Denison she planned to obtain a protective order the next day. [16] Officer Boudreau testified that he was dispatched to the hospital on May 6, 2015, to take a report of a sexual assault. A Prevail representative was also present during his interview with A.P. He did not observe any injuries to A.P. and did not collect evidence from her. He was aware of a sexual assault examination being conducted later in the day, and the following day, Officer Boudreau wrote a probable cause affidavit for Karr’s arrest. [17] Forensic nurse examiner Nakia Bowens (“Bowens”) testified that she examined A.P. on May 7, 2015. She described A.P. as calm at times, but “tearful” at other times. Id. at 182. She observed “redness and tenderness” in A.P.’s scalp area and tenderness on her jawbone and redness to her chin, and an injury to the inside of her lip. Id. at 185-86, 190-91, 203. She also had petechiae, or “small red dots that indicate blood has burst,” on the roof of her mouth. Id. at 191. One of the causes of petechiae is blunt force trauma. Id. at 191-92. Bowens testified that a penis striking the roof of the mouth could cause petechiae. Pictures taken of A.P. by Bowens were admitted into evidence. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 10 of 34 [18] Detective Haskett met with A.P. on May 8 at the police station to get a formal statement from her. He described her demeanor as “collected and matter-of- fact,” but tearful at times. Id. at 215. He did not observe any injuries to her at that time. Id. at 221. Sergeant Matt McGovern (“Officer McGovern”) of NPD testified that, pursuant to a search warrant, he conducted a forensic analysis of Karr’s cell phone. Officer McGovern testified that “sometimes” law enforcement is able to retrieve deleted content, but it depends on the make and model of the cell phone. Id. at 226. [19] At the conclusion of the presentation of the State’s evidence, Karr moved for and was granted a directed verdict on Count 5, Level 6 felony intimidation. Id. at 242. Thereafter, the defense presented the testimony of DCS employee Marshall Despain (“Despain”). In May 2015, Despain was an assessment worker, who was assigned to investigate allegations of domestic violence between A.P. and Karr and determine “how it affected the [C]hildren.” Tr. Vol. III at 3. Despain testified to interviewing A.P. in May 2015, then consulting with law enforcement, reviewing reports, and interviewing the Children. He also tried to contact Karr for an interview. DCS ultimately determined that the report “was unsubstantiated against both [A.P.] and [] Karr[,]]” meaning that there was no evidence that the Children were affected or had “any knowledge of anything every happening between them[.]” Id. at 2-3. He explained that his purpose was not to determine if something happened between the parents; he was to assess if the Children were affected and to make sure they were safe. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 11 of 34 [20] At the conclusion of the trial, the jury returned verdicts of guilty on Count 1, Level 6 felony domestic battery, Count 2, Level 3 felony rape, and Count 3, Level 3 felony rape; it returned a verdict of not guilty on Count 4, strangulation. [21] The parties appeared on September 2, 2016, for a sentencing hearing, but by that point, Karr’s trial counsel, Joshua Taylor (“Taylor”), had filed a motion to withdraw. Karr appeared in person at the September 2 hearing, along with Taylor and replacement defense attorney Jane Ruemmele (“Ruemmele”), who sought leave to file an appearance for Karr and a continuance of the sentencing hearing. Id. at 78. The trial court granted both Taylor’s request to withdraw and Karr’s request to continue the sentencing hearing. [22] The day before the scheduled September 2 sentencing hearing, Karr also had filed a motion for a new trial based upon ineffective assistance of trial counsel. Ruemmele noted to the court at the September 2 hearing that Karr’s ineffective assistance claims were still preliminary and would later be supplemented because Karr did not yet have a copy of the trial transcript or A.P.’s medical records, including any medications A.P. was taking or had received at the E.R., which information Ruemmele argued would have been relevant to A.P.’s memory of the alleged incidents, and thus, the ineffective assistance claims would be supplemented upon review of those materials. On September 2, Karr proceeded to present Taylor’s testimony relative to Karr’s ineffective assistance of counsel claims as alleged in his motion for a new trial. Among other things, Taylor testified as to what medical records he requested or did not request, what witnesses he called or did not call, and why he did not explore alleged Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 12 of 34  drug use by A.P., explaining that his actions were based upon strategic decisions and assessments. He also discussed having made a motion in limine, making certain objections, and his decision not to request a mistrial at one point because he believed “things were going about as well as they could have at that point,” and Taylor believed “there was a decent chance the jury would find Mr. Karr not guilty[.]” Id. at 97. Taylor testified that, both before and during trial, Karr and Taylor had discussed whether to have Karr testify and the risks associated with him doing so, noting his concern that having Karr testify would provide a chance for “fairly harmful” evidence to come into evidence. Id. at 99. In closing the hearing, the trial court directed that a trial transcript be prepared for Karr’s use and review in preparing for the hearing on a motion for a new trial, and took the motion for a new trial under advisement. [23] On September 19, 2016, the trial court conducted an additional evidentiary hearing on Karr’s ineffective assistance of trial counsel claims, as alleged in his motion for a new trial, presenting testimony of: A.P.; a male neighbor; Officer McGovern; and Taylor. A.P. was questioned about what prescriptions she had filled on or before May 5, the night in question, and if she received intravenous medications while at the E.R. During her testimony, A.P. stated that she was not impaired before or during the incident and any medications taken did not affect her ability to recall the events. Id. at 135. When on cross-examination Karr’s counsel asked A.P. why she showered before being examined by the forensic nurse, A.P. explained, “I was trying to carry on with the day as if it was normal. Also had no expectation of being examined by anyone for Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 13 of 34  anything. At that time my understanding was that nothing was going to be done and my only plan for the day was to file for a protective order.” Id. at 132. Officer McGovern, who had conducted a forensic analysis of Karr’s cell phone and recovered videos, searches, texts and other information from it, testified that he did not find any evidence of searches or viewing of pornographic videos, as A.P. had testified to at trial, and he found no videos of A.P. performing sex acts, contrary to A.P.’s testimony that she thought Karr was videotaping her when she saw his cell phone light behind her. Upon cross- examination by the State, Officer McGovern testified that he is not always able to recover deleted content from a phone. Id. at 141. [24] At the conclusion of the hearing, the trial court denied Karr’s motion for a new trial, and it also issued a written order, stating, “The Court being duly advised finds that the Defendant, has failed to establish that trial counsel Joshua Taylor was ineffective at trial by either error or omission or commission and has further failed to establish that any conduct by Mr. Taylor prejudiced the case of the Defendant.” Appellant’s App. Vol. III at 7. [25] In November 2016, the trial court held a sentencing hearing, sentenced Karr to two and one-half years on the battery conviction and to fifteen years with five years suspended for each rape conviction, and ordered the sentences for the rape convictions to run concurrent with one another and consecutive to the term imposed on the battery conviction. Karr timely filed a notice of appeal. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 14 of 34 [26] On January 6, 2017, Karr filed a Davis/Hatton petition with this court, seeking to suspend his initial appeal and pursue post-conviction remedies. We granted his request, and, on March 3, 2017, Karr filed a petition for post-conviction relief, alleging that Taylor, his trial counsel, was ineffective by: (1) failing to use phone records that showed that Karr’s phone did not contain photos or videos of A.P. performing oral sex, although A.P. testified that Karr may have been photographing or videotaping her; (2) failing to use phone records that showed that Karr’s phone did not contain evidence that he accessed pornographic sites, although A.P. had testified that he searched for pornography when she told him she did not want to engage in oral sex; (3) failing to obtain medical records of A.P. to discover whether she had been administered anesthesia at the E.R. in the hours prior to the alleged acts that formed the basis of the rape charges; (4) failing to obtain A.P.’s prescription records to determine if she had filled a prescription for narcotics the same day as the alleged battery; (5) failing to offer during trial text messages showing conversations between Karr and A.P. that indicated A.P had filled a prescription for Narco on May 5, 2015; (6) failing to offer at trial a text message sent by A.P. to someone, in which she stated that she had received an IV and felt better, which Karr asserted “establish[es] that she was under the influence of narcotics.” Appellant’s App. Vol. IV at 3-4. [27] After filing his motion for post-conviction relief, Karr filed a motion for change of judge, which was granted on March 20, 2017. In May 2017, the State filed a Motion for Summary Denial of Karr’s petition for post-conviction relief, asserting that the claims raised in Karr’s petition had already been litigated and Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 15 of 34 adjudicated by the trial court pursuant to Karr’s motion for new trial. Id. at 18- 22. Following briefing, the post-conviction court granted the State’s request and issued an order on June 13, 2017. The order stated that evidence was heard during two hearings on Karr’s motion for a new trial that alleged ineffective assistance of counsel, and the post-conviction court’s order further stated, in part: 13. Although the Petitioner has abandoned two grounds of alleged ineffectiveness of counsel originally raised in the trial court, the allegations now raised in the Petitioner’s Petition for Post-Conviction Relief are otherwise the same. All of the grounds alleged in the pending Petition were directly argued, were available to be argued from the evidence and/or were available to be raised at the time of the hearing on Petitioner’s Motion for a New Trial. 14. In his Motion for a New Trial, the Petitioner sought to have his convictions for Domestic Battery and Rape vacated based upon the alleged ineffective assistance of counsel. This is the exact same relief requested in the Petitioner’s Petition for Post- Conviction Relief, and that relief is sought based upon the exact same grounds that were raised or could have been raised and determined under Petitioner’s Motion for a New Trial. 15. Finally, and most obviously, the parties to the controversy in the current matter are the same as those who were the parties to the original criminal case. 16. A court may grant a motion by either party for summary disposition of a petition for post-conviction relief when it appears that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 16 of 34  17. In this case, there is no genuine issue of material fact because the evidentiary issues now raised by the Petitioner have already been heard and decided against Petitioner in the original trial court. Id. at 129-132. Karr filed a motion to reconsider, which the post-conviction court denied. Karr now appeals. Discussion and Decision I. Sufficiency of the Evidence [28] Karr contends that the State presented insufficient evidence for the jury to conclude that he was guilty of domestic battery and two counts of rape.5 Our standard of review is deferential to the factfinder, and we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility. Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017). We will reverse only if no reasonable factfinder could find the defendant guilty. Id. at 164. The evidence is not required to overcome every reasonable hypothesis of innocence and is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). 5 We note that in both his issue statement and his argument section, Karr claims that his “conviction” (singular) is not supported by sufficient evidence, which suggests to us that he is appealing only one conviction. Appellant’s Br. at 2, 41. However, Karr later urges in his brief that, for the reasons argued, we vacate his “convictions” (plural). Id. at 44. We thus infer that he is challenging the sufficiency of the evidence as to all three of his convictions. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 17 of 34 [29] To prove Karr committed Level 3 felony rape, the State was required to present sufficient evidence that he caused A.P. to “perform or submit to other sexual conduct” when she was “compelled by force or imminent threat of force[.]” Ind. Code § 35-42-4-1(a)(1). Indiana Code section 35-31.5-2-221.5 defines “other sexual conduct” as “an act involving ... a sex organ of one person and the mouth or anus of another person.” Karr argues, “There was no forensic evidence establishing that a sex act occurred[,]” noting that officers did not observe physical injuries, Officer McGovern did not find pornographic videos on Karr’s phone, nor any videos or pictures of A.P. performing oral sex. Appellant’s Br. at 20. [30] We reject Karr’s argument. First, it ignores that nurse Bowens found evidence of physical injuries to A.P., including an injury to the inside of her lip and petechiae on the roof of A.P.’s mouth, and Bowens testified that a penis striking the roof of the mouth could cause petechiae. Second, there does not need to be “forensic evidence establishing that a sex act occurred” to support the convictions. “A rape conviction may rest solely on the uncorroborated testimony of the victim.” Carter v. State, 44 N.E.3d 47, 54 (Ind. Ct. App. 2015) (citing Potter v. State, 684 N.E.2d 1127, 1136 (Ind. 1997)). [31] Karr also contends that, as to the Level 6 felony domestic battery conviction, there was no evidence that any battery occurred within the presence of a child.6 6 Pursuant to the version of Indiana Code section 35-42-2-1.3, under which Karr was charged and convicted, the offense of domestic battery is a Class A misdemeanor, but becomes a Level 6 felony, “if the person who Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 18 of 34  Indiana courts have recognized, “[T]he critical question in determining whether a child is ‘present’ for purposes of the statute is whether a reasonable person would conclude that the child might see or hear the offense; not whether the child is in the same room as where the offense is taking place.” Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012); see also True v. State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011) (“presence” for purposes of Indiana Code section 35-42-2-1.3(b)(2) is “defined as knowingly being within either the possible sight or hearing of a child”). [32] In support of his position, Karr points to the fact that A.P. had already put the Children to bed in their own bedroom by the time he came home on the night in question. Karr also notes that A.P. told Officer Denison that she did not think that the Children had witnessed the battery. Tr. Vol. II at 150. However, the inquiry is not whether any of the Children witnessed the battery; it is whether it was committed in their presence, including within their possible hearing. Here, Officer Denison’s testimony was that A.P. told him that she “didn’t believe that her kids had witnessed any of the actual assault that occurred,” and “it was just the verbal part that they had witnessed or heard.” Id. Further, the State presented evidence that (1) the couch was positioned next to the “very small hallway” off of which the Children’s bedroom was located, and (2) A.P. generally could hear the Children talking after she put them to bed in the committed the offense . . . committed [it] in the physical presence of a child less than sixteen years of age, knowing that the child was present and might be able to see or hear the offense.” Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 19 of 34  evenings, allowing the inference that they, too, could hear what was happening outside of their room. Id. at 34. Evidence was also presented that, during the time that Karr was yelling at A.P. and telling her to “suck his dick,” the oldest Child opened her bedroom door. Karr confronted Child at her door and told her to go back to bed, at which point A.P. heard Child begin to cry and go back into her own bedroom. Id. at 39. Based on the record before us, we find that the State presented sufficient evidence from which the jury could reasonably infer that the battery was committed within the presence of a child. [33] Karr also argues that A.P.’s testimony as to the battery and the rape allegations is not to be believed because she was questioned about, but could not recall, certain details before, during, and after, the incidents, including whether she was taking pain medication(s), if she had filled a certain prescription, or for what period of time the incidents lasted. Appellant’s Br. at 41-42. Karr asserts, “Her lack of memory could have been that she consumed drugs that day, was administered drugs that day, or both, or was simply fabricating the events.” Id. at 43. He argues that her testimony showed that “she had significant deficiencies in her ability to recall the details of her allegations,” and her testimony was incredibly dubious and should not be believed. Id. [34] The incredible dubiosity rule allows an appellate court to impinge upon the fact- finder’s assessment of witness credibility when the testimony at trial was so “unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.” Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). Incredible dubiosity is a difficult standard to Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 20 of 34  meet, requiring ambiguous, inconsistent testimony that “runs counter to human experience.” Carter, 44 N.E.3d at 52. Our Supreme Court has reiterated the limited scope of the rule and set out three requirements for its application: (1) a sole testifying witness; (2) testimony that is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Moore, 27 N.E.3d at 756. [35] Here, A.P. related her version of events to at least the following: Officer Denison at the E.R., her doctor the next day, Officer Boudreau, a victim’s advocate from Prevail, Detective Haskett, and nurse Bowens. Her testimony was not inherently contradictory or equivocal, and there is no evidence or assertion that it was the result of coercion. Thus, the incredible dubiosity rule is inapplicable. Further, the rule requires a complete absence of circumstantial evidence. In this case, Bowens testified to the injuries that she observed to A.P.’s scalp, lip, and mouth, which were consistent with A.P.’s description of what happened with Karr. Karr’s claim that A.P.’s testimony was not credible is a request for us to reweigh the evidence, which we cannot do on appeal. Carter, 44 N.E.3d at 54. The State presented sufficient evidence to sustain Karr’s three convictions. II. Sentencing [36] Karr challenges his sentence of an executed twelve and one-half years, claiming it is excessive, and he asks us to remand for a new sentencing hearing or, alternatively, reduce it. Initially, we note that Karr makes the assertion that his sentence “is inappropriate in light of the nature of the offense and [his] Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 21 of 34  character[,]” Appellant’s Br. at 46, but he does not specifically make any argument or analysis as to either the nature of the offense or the character of the offender. Thus, he has waived any inappropriateness argument under Indiana Appellate Rule 7(B). Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010) (failure to make cogent argument regarding the nature of defendant’s offense and defendant’s character results in waiver of appropriateness claim). [37] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal for an abuse of discretion. Kubina v. State, 997 N.E.2d 1134, 1137 (Ind. Ct. App. 2013). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Anglemyer v. State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court may be found to have abused its discretion by failing to enter a sentencing statement at all; entering a sentencing statement that explains its reasons for imposing a sentence where such reasons are not supported by the record or are improper as a matter of law; or entering a sentencing statement that omits reasons which are clearly supported by the record and advanced for consideration. Id. at 490-91. “[R]egardless of the presence or absence of aggravating or mitigating circumstances, a trial court may impose any sentence authorized by statute and permissible under the Indiana Constitution.” Kubina, 997 N.E.2d at 1137 (citing Indiana Code section 35-38-1-7.1, providing non-exhaustive list of aggravating and mitigating circumstances court may consider). Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 22 of 34 [38] The range of penalties for a Level 6 felony is a fixed term of between six months and two and one-half years, with the advisory sentence being one year. Ind. Code § 35-50-2-7. The range of penalties for a Level 3 felony is a fixed term of between three and sixteen years, with the advisory sentence being nine years. Ind. Code § 35-50-2-5. Here, Karr received two and one-half years on the domestic battery conviction and fifteen years, with five years suspended, on each of the rape convictions. In sentencing Karr, the trial court found as aggravating factors that Karr had a history of criminal behavior and that his record reflected that he engaged in what the trial court termed a “pattern” of similar behavior, committing a battery after a breakup or as a relationship was ending. Tr. Vol. III at 232-33. The trial court recognized as mitigating that his incarceration would result in unusual circumstances and hardship for his parents, who relied on him for financial support. [39] On appeal, Karr argues that the trial court should also have recognized as a mitigating circumstance that he suffered multiple concussions in his life. The record reflects that, at the sentencing hearing, Karr’s parents testified that Karr suffered a concussion on four occasions, and they described that he had resulting dizziness, memory issues, and increased agitation or frustration. No medical evidence was presented, nor any suggested connection as to how those concussions affected his actions on the day in question. It is well recognized that a trial court is not obligated to find a circumstance mitigating because it is advanced as such by the defendant. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied. Karr also takes issue with the fact that the trial Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 23 of 34  court stated, “[Y]ou are guilty of having raped . . . [A.P.] . . . and having battered her rather severely in the presence, physical presence of her daughter. These are serious crimes.” Tr. Vol. II at 233. He urges that there was no evidence of “severely” beating A.P., and the trial court erred when it used that circumstance as an aggravator. Upon review of the record, we find that, contrary to Karr’s claim, the trial court did not use this as an aggravator, and, rather, as the State suggests, it was a comment that was part of the court’s discussion of the jury’s verdict. The trial court did not rely on the severity of the battery as an aggravating circumstance. Karr has failed to establish that the trial court abused its discretion when it sentenced him. III. Ineffective Assistance of Trial Counsel [40] Karr claims that the trial court erred when it determined that he did not receive ineffective assistance of trial counsel and, so finding, denied his motion for a new trial, which sought relief on that basis. To succeed on a claim of ineffective assistance of counsel, a petitioner must show not only that his trial counsel’s representation fell below an objective standard of reasonableness, but also that the deficient performance resulted in prejudice. Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)) (quotations omitted), trans. denied, cert. denied 135 S. Ct. 2376 (2015). To establish prejudice, a petitioner must show that counsel’s errors were so serious as to deprive him of a fair trial because of a reasonable probability that, but for counsel’s unprofessional errors, the result would have Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 24 of 34  been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. [41] There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. at 325-26. We do not second guess counsel’s strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant’s interests. Elisea v. State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002). If it is easier to dispose of an ineffectiveness claim by analyzing the prejudice prong alone, that course should be followed. Manzano, 12 N.E.3d at 326. [42] Karr asserts that, at trial, “defense counsel’s theory was that the allegations were fabricated[,]” and “Thus, it was incumbent on trial counsel to present all readily available sources of evidence to prove that these event[s] did not occur.” Appellant’s Br. at 31. Karr maintains that Taylor should have but failed to present evidence of drug consumption by A.P. at or near the time of the incidents, through investigation and discovery of medical information such as A.P.’s prescriptions that she was taking or had been prescribed or the E.R. records on the night in question. He suggests that if the jury knew of A.P.’s prescribed pain and anxiety medication, trial counsel could have effectively Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 25 of 34  impeached her regarding her ability to remember and recount the events in question. [43] At the hearing on Karr’s motion for a new trial, Taylor was asked about why he “did not explore [A.P.’s] drug use prior to or during the first offense[,]” and he replied that Karr would be the only person who would have been able to testify to that, and Karr did not testify. Tr. Vol. II at 97. Karr argues that Taylor could have requested her prescription medication or “asked A.P. when she testified.” Appellant’s Br. at 33. A pharmacy bag was admitted during the hearing on Karr’s motion for a new trial indicating that A.P. filled a prescription for Narco on May 5, 2015. Also admitted at the hearing were medical records from A.P.’s doctor’s visit on May 7, 2015, which reflected that A.P. reported taking hydrocodone. Tr. Vol. III at 122; Ex. Vol. IV at 122. Karr urges that “[t]he jury never heard this evidence because trial counsel did not present it.” Appellant’s Br. at 34. [44] Effective representation requires adequate pretrial investigation and preparation, but we resist judging an attorney’s performance with the benefit of hindsight. McKnight v. State, 1 N.E.3d 193, 200 (Ind. Ct. App. 2013). Accordingly, when deciding a claim of ineffective assistance for failure to investigate, we give a great deal of deference to counsel’s judgments. Id. at 201. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitation on investigation. Id. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 26 of 34  In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Id. [45] Here, A.P. testified at the hearing that she may have filled a prescription earlier in the day, but did not recall for certain if or where she did so, and she testified that she was not impaired due to drug consumption and her memory was not affected by any medication. A.P.’s testimony was clear and detailed, and there was no evidence suggesting she did not remember the events in question. She was consistent with what she told Officer Denison at the E.R. that night, and there was no evidence that she exhibited signs of impairment. Karr has failed to show that he was prejudiced by Taylor’s decision not to obtain and present medical records evidence concerning any drugs A.P. may have consumed prior to the domestic battery. [46] Karr also asserts that trial counsel should have obtained medical records from the E.R. as to what medications she received at the hospital, as that would have affected her memory of what happened thereafter, including the forced oral sex supporting the rape charges. He argues, “Whether she was under the influence of anesthesia and dreaming or imagining the events was important to explore” and “had trial counsel properly impeached her with her drug consumption of opiates and anesthesia administered at the ER . . . the outcome would have been different.” Appellant’s Br at 33, 43. Initially, we note that there is no evidence in this record that A.P. was given “anesthesia” at any point. Upon Karr’s questioning at the hearing on his motion for a new trial, A.P. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 27 of 34  acknowledged that she sent a text while at, or before leaving, the hospital to someone, stating “I got an IV for meds so I’m feeling a lot better.” Tr. Vol. III at 124. However, she also stated, “I'm not sure whether I actually received the IV medications or if I just told him that.” Id. Furthermore, A.P. testified that at no time was she impaired, and she had no issues with remembering what Karr did to her. As the State observes, “[T]he totality of the evidence . . . supports only that A.P. was clear of thought and speech at all relevant times[,]” including in her interviews with nurse Bowens, who characterized A.P. as calm but tearful at times, with Officer Denison, who described her as calm and composed but concerned, and Detective Hackett, who said she was “matter of fact” but sometimes would “tear up” while describing what happened. Appellee’s Br. at 30; Tr. Vol. II at 146-47, 160, 182, 214-15. Furthermore, Taylor testified at the hearing that it was his strategic decision not to obtain the records. Tr. Vol. III at 124. Karr has failed to show that Taylor’s tactical decision to not try to obtain A.P.’s prescription and medical records, which may or may not have been discoverable or admissible, 7 was unreasonable or that Karr was prejudiced by trial counsel’s choice. [47] On appeal, Karr also contends that Taylor was ineffective for failing to present to the jury that Officer McGovern conducted a forensic analysis of Karr’s 7 “To make a sufficient showing that [rape victim’s] prescription drug records were discoverable, [the defendant] must demonstrate that his request was particular and material.” Williams v. State, 819 N.E.2d 381, 386 (Ind. Ct. App. 2004), trans. denied. “[W]hile generally evidence of drug use may be excluded at trial, evidence of drug use affecting a witness’s ability to recall underlying events is admissible.” Id. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 28 of 34  phone, but did not find any evidence that Karr (1) had accessed pornographic videos, as A.P. had stated in her testimony, and (2) had photographed or videotaped A.P., as she suspected when she saw the light of his phone behind her. He argues, “Trial counsel never presented this affirmative evidence to the jury[,]” which “was in the possession of the State and readily available,” and it “showed that A.P.’s story could not be corroborated.” Appellant’s Br. at 38. [48] As an initial matter, we disagree that A.P.’s story “could not be corroborated”; as discussed above, the injuries and redness observed by nurse Bowens were consistent with the reports that A.P. made to police. Regardless, even if the trial counsel had presented the evidence, and the jury was persuaded that A.P. was incorrect when she said that Karr was viewing pornography and recording her acts with his cell phone, such evidence would not necessarily undermine her account of the incidents, i.e., Karr has not established that he was prejudiced by the failure to present the cell phone evidence. [49] We further note that Karr was charged with five counts. Taylor successfully argued for and received a directed verdict on one count and successfully received an acquittal on one of the remaining counts. Several pieces of evidence were excluded from evidence based upon Taylor’s objections, and he thoroughly cross-examined witnesses, including A.P. We conclude that Karr has not established either deficient performance or prejudice stemming from trial counsel’s representation. The trial court correctly determined that Taylor had not provided ineffective assistance and, therefore, appropriately denied Karr’s motion for a new trial. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 29 of 34  IV. Denial of Post-Conviction Relief [50] After the trial court denied his motion for a new trial, Karr filed a notice of appeal with this court, which pursuant to his request, we dismissed without prejudice, allowing him to file a petition for post-conviction relief, which he did, also requesting and receiving a change of judge. The State filed a motion for summary denial of Karr’s petition for post-conviction relief, which motion the trial court granted on the basis that Karr was raising the same ineffective assistance of counsel claims that that he had asserted in his motion for a new trial – which had already been heard and decided – such that his post- conviction claims were barred by res judicata. Karr asserts that the post- conviction court’s denial of his petition was erroneous and asks us to vacate the decision and remand to the post-conviction court for a hearing. [51] A petitioner seeking post-conviction relief bears the burden of establishing grounds for relief by a preponderance of the evidence. Post-Conviction Rule 1(5). A post-conviction court is permitted to summarily deny a petition for post-conviction relief if the pleadings conclusively show the petitioner is entitled to no relief. P-C.R. 1(4)(f). “‘An evidentiary hearing is not necessary when the pleadings show only issues of law; [t]he need for a hearing is not avoided, however, when a determination of the issues hinges, in whole or in part, upon facts not resolved.’” Kuhn v. State, 901 N.E.2d 10, 13 (Ind. Ct. App. 2009) (quoting Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied). On appeal, “A petitioner who is denied post-conviction relief appeals from a negative judgment, which may be reversed only if the evidence as a whole leads Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 30 of 34  unerringly and unmistakably to a decision opposite that reached by the post- conviction court.” Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App. 2014). [52] Karr’s petition for post-conviction relief asserted that Taylor provided ineffective assistance in the following summarized ways: (1) he failed to offer at trial phone records showing that Karr’s phone (a) did not contain photos or videos of A.P. during the oral sex and (b) did not contain evidence that he accessed pornographic sites; (2) he failed to obtain medical records of A.P. to discover whether she had been administered anesthesia at the E.R. and failed to obtain A.P.’s prescription records to determine if she had filled a prescription for narcotics the same day as the alleged battery; and (3) he failed to offer at trial a text message written by A.P. showing that (a) she filled a prescription for Narco on May 5, 2015, and (b) she sent a text message to someone from the hospital before leaving the E.R. stating that she had received an IV and felt better. Appellant’s App. Vol. IV at 3-4. [53] The post-conviction court determined that these issues were litigated at the two hearings on Karr’s motion for a new trial and were barred by claim preclusion. Id. at 130. We agree. “‘Res judicata, whether in the form of claim preclusion or issue preclusion (also called collateral estoppel), aims to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies.’” M.G. v. V.P., 74 N.E.3d 259, 264 (Ind. Ct. App. 2017) (quoting Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)). “‘Claim preclusion applies when the following four factors are present: (1) the former judgment was rendered by a court of Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 31 of 34  competent jurisdiction; (2) the former judgment was rendered on the merits; (3) the matter now at issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action was between parties to the present suit or their privies.’” Id. (quoting Dawson v. Estate of Ott, 796 N.E.2d 1190, 1195 (Ind. Ct. App. 2003)). When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. Id. [54] Here, the record reflects that, at the first hearing on Karr’s motion for a new trial, held on September 2, 2016, Karr presented testimony from trial counsel, Taylor, and, among other things, Taylor testified as to what medical records he requested or did not request, what witnesses he called or did not call, and why he did not explore alleged drug use by A.P., explaining that his actions were based upon strategic decisions and assessments. Understanding that Karr’s counsel, Ruemmele, needed a trial transcript to further explore ineffectiveness issues, the trial court scheduled a second hearing, and it directed that a trial transcript be prepared promptly for Ruemmele’s use. The second hearing was held September 19, at which Karr presented the testimony of four witnesses, including A.P., who testified that she was not impaired and her memory was not affected by any medications. Officer McGovern testified that, while his forensic analysis of Karr’s cell phone did not show that Karr accessed pornographic sites or had taken pictures or video of A.P., he also testified that it is not always possible to recover deleted material from a phone. Karr also presented seven exhibits, including a prescription bag from CVS pharmacy for a Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 32 of 34  hydrocodone-acetaminophen prescription for A.P. and medical records from Community North from her E.R. visit. Ex. Vol. IV at 119, 121-22 (Def. Exs. D, E). [55] Karr refers us to the recognized principle that “[a]n issue previously considered and determined in a defendant’s direct appeal is barred for post-conviction review on grounds of prior adjudication - res judicata[,]” and urges that, here, “Because Karr has not challenged the adequacy of his trial representation on direct appeal, his ineffective assistance claims are not waived.” Appellant’s Br. at 26-27 (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S. 829 (2000), and Overstreet v. State, 877 N.E.2d 144, 178 (Ind. 2007), cert. denied, 555 U.S. 972 (2008)). We do not find that Karr’s claims are waived; we find that his claims of ineffective assistance of counsel have already been raised, heard, and decided. To the extent that Karr is arguing that only those claims of ineffective assistance of counsel that were raised on direct appeal may be barred by res judicata, we disagree with his suggestion that direct appeal is the exclusive basis for rendering the ineffectiveness assistance claims barred. We find that, in the unique posture and context of this case,8 it was not error for the post- conviction court to find that Karr was not entitled to relitigate the claims, and 8 The State suggests that Karr’s petition for post-conviction relief was the functional equivalent to a successive petition “because it raised only the same claims previously presented to the trial court for adjudication[,]” and our Supreme Court has explained that, “[A] defendant is entitled to one post-conviction hearing and one post-conviction opportunity to raise the issue of ineffective assistance of trial counsel in the absence of newly discovered evidence or a Brady violation.” Appellee’s Br. at 27 (citing Daniels v. State, 741 N.E.2d 1177, 1184-85 (Ind. 2001)). Our holding today is consistent with the Supreme Court’s reasoning. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 33 of 34  we find no error with its decision to grant the State’s request for summary denial of Karr’s petition for post-conviction relief.9 [56] Affirmed. [57] Bailey, J., and Pyle, J., concur. 9 We also reject Karr’s claim that – due to trial counsel’s alleged ineffectiveness, combined with the trial court’s comment during the hearing on the motion for a new trial, where the trial court stated that it was “pretty certain” that it would not have granted any request by trial counsel for A.P.’s prescription records, Tr. Vol. III at 102 – he was denied his right to explore bias and motive, was thereby denied his right to confrontation and a fair trial, and was entitled to post-conviction relief. Reply Br. at 14. Court of Appeals of Indiana | Memorandum Decision 29A02-1707-CR-1502 | January 31, 2018 Page 34 of 34 

992 F.2d 1450 Robert Dale HICKS (92-5105), Plaintiff-Appellee/Cross-Appellant,v.Chief Richard A. FREY (92-5063); Carol Locke (92-5035),Defendants-Appellants,ARA Health Services, Inc., doing business as CorrectionalMedical Systems, Defendant-Cross-Appellee. Nos. 92-5035, 92-5063, 92-5105. United States Court of Appeals,Sixth Circuit. Argued Jan. 28, 1993.Decided May 13, 1993.Rehearing and Rehearing En BancDenied July 1, 1993. Theodore H. Amshoff, Jr. (briefed and argued), Amshoff, Amshoff & Searcy, Louisville, KY, for plaintiff-appellant Robert Dale Hicks. Jeanne R. Clemens (briefed and argued), Gregory J. Bubalo, Ogden, Newell & Welch, R. Allen McCartney (argued), McCartney & Swicegood, Louisville, KY, for defendant-appellee ARA Health Services, Inc. Before: RYAN and SILER, Circuit Judges; and LIVELY, Senior Circuit Judge. LIVELY, Senior Circuit Judge. 1 This is an appeal from a judgment on jury verdicts awarding damages pursuant to 42 U.S.C. § 1983 to a jail inmate who claimed Eighth and Fourteenth Amendment violations by jail officials and by a corporation that provided medical services at the jail, and its employees. The plaintiff, Hicks, charged that the defendants were deliberately indifferent to his serious medical needs while he was an inmate of the Jefferson County, Kentucky, Detention Center (the jail). The complaint, as amended, named nineteen defendants, but the jury returned verdicts against only three. The other defendants were dismissed either on directed verdicts or verdicts of the jury. The district court awarded judgment notwithstanding the verdict (JNOV) to one defendant. The two defendants found liable by the jury, and whose motions for JNOV were denied, appealed and the plaintiff cross-appealed the JNOV in favor of the third defendant. The plaintiff did not appeal the dismissal of the remaining defendants. I. 2 Because sufficiency of the evidence is the critical issue in both direct appeals, it is necessary to set out the facts and the disputed claims in some detail. A. 3 The defendant Frey was the officer in charge of the jail. The Jefferson County Fiscal Court had contracted with the defendant ARA Health Services, Inc., doing business as Correctional Medical Systems (CMS) to provide medical services to the inmates of the jail. The defendant Locke was the nurse employed by CMS who was in charge of medical services at the jail. The jury returned verdicts in favor of Hicks against Frey for $10,000, against CMS for $60,000, and against Locke for $1,000. The district court refused to disturb the verdicts against Frey and Locke, but set aside the verdict against CMS on its motion for JNOV. Before the trial began the district court dismissed four jail "sergeants," or guards. At the conclusion of all proof, the district court directed verdicts in favor of twelve nurses employed by CMS who worked under the supervision of Locke, and the jury rendered verdicts in favor of four other such nurses. B. 4 Hicks entered the jail in early 1987. On August 9, 1987, Hicks attempted to escape by rappelling down the side of the building. The rope broke and Hicks fell to the sidewalk. The fall resulted in serious injuries. Hicks suffered various fractures and a severe spinal injury that resulted in paraplegia. Hicks remained in a local hospital until September 22, 1987, when he returned to the jail. While at the hospital, he had various surgeries and was also placed in a Hoffman device to hold his pelvis together. 5 When he returned to the jail, Hicks was bedridden and paraplegic. His left leg was still in a cast and the Hoffman device was still in place. The jail had converted the dentist's office in the basement of the jail into a special room designed for Hicks. A Care Plan was also established for Hicks. It was a detailed list of specific actions to be taken that ranged from skin care needs to bowel training. It also provided for frequent turning to prevent development of new bedsores and physical therapy as prescribed by doctors at the hospital. Hicks voiced no complaints about his treatment in this converted cell. In late November of 1987, however, Hicks was moved to the Medical Walk on the sixth floor of the jail. Hicks testified that he was placed in an isolation cell and that the door was shut for twenty-three hours a day. The evidence at trial established that Hicks was placed in this isolation cell as punishment for his August escape attempt. This "lock down" was ordered despite the fact that Hicks could not walk and was bedridden. Hicks claimed his constitutional rights were violated while he was confined in this cell. 6 Witnesses for the defendants testified that CMS and jail employees followed the Care Plan and that Hicks' medical needs were not neglected. They pointed out that Hicks made a good recovery, considering the seriousness of his injuries, that his bedsores cleared up, and he was able to leave in a wheelchair when transferred to a State reformatory in February 1988. The evidence for Hicks presented a strikingly different story. 7 Hicks' evidence at trial included his testimony and that of fellow inmates Odie Swift, James Logsdon, and Tracey Wilson. Swift, Logsdon, and Wilson's testimony corroborated different parts of Hicks' testimony. Hicks testified that the defendants intentionally deprived him of drinking and bathing water, proper physical therapy, proper kidney stone treatment, and proper hygiene by allowing him to lie in his own vomit and feces for hours. The plaintiff and his witnesses also testified that: (1) the jail guards kicked on Hicks' door in the middle of the night and would intentionally withhold his food tray for up to thirty minutes; (2) he could not reach the emergency button in the isolation cell and actually had to bang on the wall to call for help; (3) for over two months the defendants failed to turn Hicks and that he had to get a fellow prisoner who had AIDS, Odie Swift to turn him, which resulted in great pain; (4) he was denied his wheelchair while in the isolation cell; (5) his linens became soiled and were not changed; and (6) he was denied prompt procurement of prescribed prosthetic devices. In addition to the eye witness testimony, a videotape that had been filmed by a local TV station was shown at the trial. This tape showed the towels tied on Hicks' bed that he claimed were used by inmate Swift to turn him. 8 Hicks' treating physician, Dr. Stephen Henry, also testified. Dr. Henry stated that on November 5, 1987, physical therapy in the form of a gentle range of motion for both lower extremities was recommended to be administered at least three times a week. On that date as well, AFO splints were recommended to be obtained for Hicks. These splints would stabilize Hicks' feet. Dr. Henry stated that "to some degree" these stabilizers were a serious medical need and that they should have been procured within two to three weeks. 9 Dr. Henry confirmed that on December 10th, physical therapy was still needed. On that date an oyster shell brace was prescribed as well. This brace would permit Hicks to sit in a wheelchair. Dr. Henry testified that it was important to get a paraplegic patient in a wheelchair for various medical reasons. He stated that the reasonable prescription time for the oyster shell brace was also two to three weeks. The splints and the oyster shell brace were provided to Hicks on January 21, 1988. 10 Dr. Henry could not state whether physical therapy had actually been administered at the jail. He did testify, however, that if physical therapy had been administered it would have reduced the likelihood of the development of the contractures on Hicks' foot. After Hicks was transferred to the reformatory on February 12, 1988, Dr. Henry continued to treat Hicks. The doctor decided in April to operate in order to correct the contractures in his left foot. 11 Hicks testified, and was supported by other witnesses, that he constantly complained of the deficiencies in his care and that Nurse Locke always promised to take care of the problems. He also testified that he complained to the prison guards about numerous deficiencies. In addition, Hicks testified, and the documentary evidence supports, that he filed seven grievances. At least two of these were seen by Locke. These grievances dealt with his placement in administrative segregation, the lack of water, failure to clean linens, the guards not having the proper keys to his cell, and the passing of medication by another inmate. II. 12 CMS, Frey, and Locke all moved to alter or amend the verdicts, for judgment notwithstanding the verdict, or in the alternative, a new trial. The district court granted CMS's motion for judgment notwithstanding the verdict and denied the motions of Locke and Frey. The trial court found that "[t]he record supports Hicks position that Frey and Nurse Locke were personally involved in the unconstitutional conduct. There were questions of fact which allowed the jury to conclude that both defendants were deliberately indifferent to Hicks' serious medical needs." We consider the direct appeals first. A. 13 Frey argues on appeal that he was entitled to a directed verdict, or to JNOV, because there was no evidence that he personally violated any constitutional rights or knowingly acquiesced in such violations. He points to Hicks' testimony that Frey apparently never saw his grievances. No nurse or other employee ever reported to Frey that Hicks was being mistreated or neglected, and when Frey was in the area where Hicks was confined, Frey neither saw nor heard anything to indicate that Hicks' serious medical needs were being neglected. None of the inmates who testified for Hicks identified Frey as being involved in the alleged neglect of Hicks. Finally, Hicks' mother testified that she complained of conditions surrounding her son after a visit, but she did not report these conditions to Frey. 14 Frey argues that the fact he is the supervising official at the jail with the right to control jail employees, and employees of CMS, is not enough to support a judgment against him. Established case law requires that a person in his position either be directly involved in the unconstitutional acts or at least have implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending employees. He further contends that the fiscal court is the policymaking body for the jail, and that Hicks produced no proof that the fiscal court had delegated its policy-making role with respect to medical care of inmates to Frey. B. 15 Locke contends that she, too, was entitled to have the verdict set aside pursuant to her motion for JNOV. She points out that Hicks made no complaints about his treatment during the entire time he spent in the specially converted cell in the basement of the jail. The evidence shows that the bedsores had healed and the cast had been removed before Hicks was transferred to the sixth floor Medical Walk cell. She contends that the Care Plan was followed and emphasizes that Hicks was taken to the hospital four times for consultations and follow-up treatment while at the jail. 16 Locke argues that Hicks' claims of constitutional deprivation allege that his medical needs were neglected in three areas--hygiene, physical therapy, and delay in obtaining the oyster shell brace and AFO splints. She makes much of the fact that Hicks' condition improved throughout his stay at the jail. He was able to sit up in a wheelchair with the oyster shell brace and had AFO splints when he was transferred to the reformatory. She contends that she acted promptly to obtain these orthopedic devices after they were prescribed and that the delay in receiving them was not unreasonable. 17 Locke also argues that it is absurd to hold her liable for alleged neglect of Hicks by other nurses under her supervision when all of these nurses were exonerated either by directed verdicts or jury verdicts. Much of Hicks' testimony described alleged refusal by other nurses or guards to care for his sanitary and medical needs or to transmit his pleas for help to their supervisors. For all these reasons, Locke maintains she was entitled to JNOV. 18 Locke also contends that the district court erred in denying her alternative motion for a new trial. She argues that the district court admitted improper testimony of alleged neglect of Hicks by unidentified nurses and that she was prejudiced by her inability to counter such evidence. She also complains about the district court's jury instructions. She asserts that one instruction permitted the jury to find her liable as the CMS policy maker, when in fact she merely implemented corporate policy at the jail. III. 19 Both Frey and Locke argue that they were entitled to judgment as a matter of law because the evidence did not satisfy the requirements for holding persons in their positions liable for alleged constitutional violations. A. 20 In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court established that a State (or political subdivision) has a constitutional obligation, under the Eighth and Fourteenth Amendments, to provide adequate medical care to those whom it has incarcerated. The Eighth Amendment prohibition against " 'unnecessary and wanton infliction of pain,' " is violated when there is "deliberate indifference to serious medical needs of prisoners." Estelle, 429 U.S. at 104, 97 S.Ct. at 291 (citation omitted). This court stated in Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir.1988), cert. denied, 489 U.S. 1068, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989), that to sustain a claim of deliberate indifference "it is not necessary that the prison officials consciously sought to inflict pain by withholding treatment...." Mere negligence is not sufficient, however. The official's conduct "must demonstrate deliberateness tantamount to an intent to punish." Id. We held in Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982), interpreting Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), that even though an official is not directly involved in alleged unconstitutional acts, the official may be held liable for failure to supervise and control his subordinates upon a showing that the official "either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." (citation omitted). It is clear, however, that liability cannot be based solely on the right to control employees. Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir.1989), cert. denied, 495 U.S. 932, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990). 21 With these holdings in mind we examine the claims of Frey and Locke that they should have been granted judgments as a matter of law. B. 22 There is no evidence that Frey personally observed the conditions that Hicks complained of and certainly none that he ordered subordinates to deny Hicks the care and treatment required by the Care Plan or his condition. Frey acknowledged that he had daily reports from the medical department concerning Hicks, but he could not recall that any complaints about Hicks' health care reached him. He stated that Hicks was a "topic of conversation on almost a daily basis for almost a year," and that he received a statement of Hicks' condition from the health administrator at a briefing every morning. He testified that this was a general statement that did not deal specifically with the prisoner's disability. 23 Frey acknowledged that he was aware of "a lot of complaints" made by Hicks, through "our normal process of communications." On redirect, Frey was asked and answered as follows: 24 3-104--Q. You told us that you were daily aware of Mr. Hicks and some of the complaints that he was making, is that right? A. As I testified yesterday, Mr. Hicks' condition, his complaints then, the problems we were having with his condition within the facility were daily topic of conversation. 25 There were inconsistencies in Frey's answers regarding his knowledge of Hicks' complaints. Further, some of his answers of the "I don't remember" type when asked about his knowledge of the substance of the complaints could have led a rational jury to doubt his credibility. After all, Hicks and his complaints were discussed at daily staff meetings. The jury could well have found from all the evidence that Frey had more knowledge of the condition of Hicks' confinement, and of his complaints, than he admitted. 26 All of Hicks' complaints related to the time he was confined in the isolation cell in Med Walk on the sixth floor. In passing through Med Walk Frey saw Hicks "on a number of occasions, but didn't speak to him." These observations were made by looking into the cell from a distance of five to ten feet. Frey acknowledged knowing that when Hicks was transferred to the Med Walk cell there was no longer a special bed like the one Hicks had in the basement. Instead, there was either a steel or concrete bunk with a mattress. It was this arrangement that Hicks claimed made it difficult for him to turn and exercise his limbs. Frey also knew that the isolation cell could not accommodate a wheelchair, and that Hicks did not have daily access to a shower, although a general directive of the jail requires such access.C. 27 Although Locke did not personally carry out the daily care of Hicks, she had supervisory authority over the nurses who were required to provide that care. Moreover, she had frequent contact with Hicks and knew of his complaints. There was an abundance of evidence from which the jury could have determined, and apparently did determine, that Hicks' serious medical needs were not attended to. Hicks and the other inmate witnesses all testified that Hicks was left lying in his own waste for hours at a time, was not turned on his bunk as frequently as the Care Plan required, and that he made numerous complaints, some of them to Locke directly. In addition, Hicks testified that he did not receive the prescribed physical therapy or attention to his kidney stones. Locke denied that these conditions existed or that Hicks' complaints were ignored, and maintained that she responded to all complaints, that Hicks did receive physical therapy, and that Hicks had "gravel" in his bladder, which did not require the treatment he demanded for kidney stones. The jury clearly believed Hicks and his witnesses. 28 The jury instruction to which Locke objected read as follows: 29 A corporation may act only through natural persons as its agents or employees and in general any agent or employee of a corporation may bind the corporation by his or her acts and declarations made by acting within the scope of his or her authority delegated to him or her by the corporation, or within the scope of his duties as an employee of the corporation. 30 You're instructed that C M S may be liable where you find that the plaintiff has been deprived of his constitutional rights and such deprivation was done pursuant to a final policy making authority with respect to a directive, guideline or decision promulgated by the corporation. When the plaintiff is injured as a result of corporate policy, regulation or decision, whether made by its board of directors or by those officials whose edicts or acts may fairly be said to represent official final policy making authority, the corporation itself may be responsible for the injury that it caused. Mrs. Locke was an official whose acts constituted the final official policy of C M S in this incidence. Therefore, if you find the acts of Mrs. Locke deprived plaintiff of such constitutional rights C M S may be liable for such deprivation. IV. 31 The requirements and standards for a district court considering a motion for JNOV and an appellate court in reviewing the decision on such a motion are clear. Judge Bailey Brown stated them succinctly for the court in Ratliff v. Wellington Exempted Village Schools Bd. of Ed., 820 F.2d 792, 795 (6th Cir.1987): 32 The issue raised by a motion for a judgment notwithstanding the verdict is whether there is sufficient evidence to raise a question of fact for the jury. In determining whether the evidence is sufficient, the trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor. If, after thus viewing the evidence, the trial court is of the opinion that it points so strongly in favor of the movant that reasonable minds could not come to a different conclusion, then the motion should be granted. An appellate court when reviewing the trial court's decision is bound by the same standard. Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979). 33 Our review is de novo. Hill v. Marshall, 962 F.2d 1209, 1217 (6th Cir.1992). A. 34 Upon review of the record and after oral argument, we conclude that the district court properly submitted the claims against Frey and Locke to the jury, and properly denied their motions for JNOV. Viewing the evidence in the light most favorable to Hicks, and drawing all reasonable inferences in his favor we cannot say that the evidence "points so strongly in favor of the movant[s] that reasonable minds could not come to a different conclusion." 35 The jury could have believed that Locke displayed deliberate indifference to Hicks' serious medical needs both by failing to address them herself and by implicitly authorizing, approving, or knowingly acquiescing in unconstitutional conduct of others over whom she had supervisory authority. This is not equivalent to finding Locke liable under a respondeat superior theory. In Hays we recognized that respondeat superior may not be the basis for liability of a supervisory officer in a § 1983 action, but we described the circumstances in which a supervisor can be held liable for the misconduct of subordinates. We believe the evidence in this case supports the jury's verdict against Locke. 36 Locke also appears to argue that the improvement in Hicks' medical condition while at the jail rules out any finding that he was subjected to deliberate indifference. We held in Parrish v. Johnson, 800 F.2d 600, 610-11 (6th Cir.1986), that no physical injury is required for a prisoner to recover on an Eighth Amendment claim of deliberate indifference to medical needs. Extreme conduct by custodians that causes severe emotional distress is sufficient. The plaintiff in Parrish was a paraplegic whose claims of deliberate indifference were similar to those of Hicks. And, in Boretti v. Wiscomb, 930 F.2d 1150, 1154 (6th Cir.1991), we held the fact that a wound eventually healed did not mean that a plaintiff suffered no pain that could constitute cruel and unusual punishment from interruption in a prescribed plan of treatment. An actual injury is not required for a finding of an Eighth Amendment violation. Id. at 1155. 37 The case with respect to Frey is much closer because he had little direct, personal contact with Hicks. The jury could reasonably have inferred from the evidence, however, that the daily communications Frey acknowledged receiving about "Hicks' condition, his complaints then, the problems ... with his condition within the facility," required further inquiry and action by Frey. In the absence of inquiry or at least some show of concern about Hicks' condition and the problems with that condition, the jury reasonably could have found that Frey at least acquiesced in the mistreatment of Hicks that the jury found occurred. 38 There is another basis on which the jury could have found Frey deliberately indifferent. Hicks was a paraplegic who was completely dependent upon a wheelchair for any mobility. Yet he was placed in a cell too small to accommodate his wheelchair, and thus for about three months was confined to a bunk with no opportunity to move about or exercise his injured limbs. Further, the Care Plan recognized that as a paraplegic Hicks had problems controlling urination and bowel movements. Yet, Frey acknowledged knowing that Hicks had no access to a shower while in the isolation cell. Regardless of whether Frey ordered Hicks' confinement in lock down, he admitted knowing Hicks was so confined and that his treatment was different from that of other prisoners on the Med Walk. B. 39 We believe that the district court properly denied Locke's motion for a new trial. It was not reversible error to permit testimony about misconduct by nurses whom the witnesses could not identify by name. The instructions correctly advised the jury of the facts it had to find in order to render a verdict against Locke. That witnesses could not identify by name some of the subordinates whose acts she was charged with authorizing or condoning was irrelevant. 40 Locke's argument that the quoted jury instruction concerning CMS prejudiced her is totally without merit. In the first place, the instruction complained of told the jury the basis upon which it could find CMS liable. It did not authorize a verdict against Locke. The fact that the instruction erroneously described Locke as a policymaker did not prejudice her. The district court described Locke in this way as a limitation on CMS's potential liability, not as a basis for finding Locke liable. 41 We do not look at a portion of a court's jury charge in isolation. Rather, we consider the instructions as a whole. We have held that "even where a portion of the charge is erroneous, if the point is explained and corrected in other parts of the charge so that the jury will not be misled, the jury's verdict should be affirmed." Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1324 (6th Cir.1992); Clarksville-Montgomery County School System v. United States Gypsum Co., 925 F.2d 993, 1003-04 (6th Cir.1991). When the instruction on the required findings in order to hold Locke liable to Hicks is read in context it is clear that the jury would not have been misled by the description of her corporate position in the separate instruction on the possible basis of CMS liability. V. 42 Hicks filed a cross-appeal from the order granting the defendant CMS judgment notwithstanding the verdict. He contends that, as the corporation providing medical services at the jail under contract with the fiscal court, CMS was properly found liable by the jury as a private entity performing state functions. Hicks argues that Locke acted on behalf of CMS and was the person in charge of the corporation's operations at the jail. Since a corporation can act only through natural persons, Hicks argues, when Locke deprived him of his constitutional right to be free from cruel and unusual punishment, CMS was responsible. 43 It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates may be sued under § 1983 as one acting "under color of state law." West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988). In granting JNOV, the district court recognized the fact that CMS was a proper defendant, but rested its decision upon the finding that there was no evidence of direct involvement by CMS in any decision to deny proper medical care to Hicks and that Locke was not clothed with authority "to make final decisions regarding medical services at the Jefferson County Jail." 44 We held in Johnson v. Hardin County, Ky., 908 F.2d 1280, 1287 (6th Cir.1990), that Kentucky statutes make the fiscal court of each county the final authority over medical services at the county jail. In the absence of proof that this final authority has been delegated to another person or entity, an officer such as the jailer may not render the county liable for his acts under a respondeat superior theory. 45 Although the fiscal court contracted with CMS to provide medical services at the jail, there is no evidence that it delegated its final decision-making authority to CMS or its employees. In fact, the evidence is to the contrary. When Hicks' doctors prescribed the oyster shell brace and AFO splints, Locke could not order them on her own or CMS's authority; she requested the fiscal court to authorize the order and provide the funds. The same appears to have been the case with respect to physical therapy treatments. Locke's job was to see that CMS provided medical services in accordance with policies established by the fiscal court, following programs prescribed by her employer. Locke had authority to deviate from prescribed programs only upon application to and approval by her corporate superior at company headquarters in St. Louis. Neither she nor CMS was the final policymaker. 46 Hicks made no attempt to demonstrate that Locke was following a policy or custom of CMS in her acts and omissions toward Hicks that resulted in the jury finding her liable. She was sued both in her individual capacity and as CMS administrator at the jail. Hicks charged her with deprivation of his constitutional rights for her departures from the Care Plan and general health requirements, not for following a faulty plan prescribed by CMS. We conclude that the district court properly granted JNOV to CMS. 47 If we were the finders of fact it is quite possible that we might have viewed the evidence as advocated by the dissent. That is not the case, however. We remain convinced that there was sufficient evidence for the district court to submit the claims against Frey to the jury and that a proper application of the standards set forth in Ratliff supports both the district court's denial of the JNOV motion and our affirmance. 48 The judgment of the district court is affirmed on appeal and cross-appeal. Hicks will recover his costs on appeal from Frey and Locke. The defendants Frey and Locke will bear their own costs. The defendant CMS will recover its costs on appeal from the plaintiff Hicks. 49 RYAN, Circuit Judge, concurring in part and dissenting in part. 50 Although I agree in large part with the majority opinion, I am constrained to register my respectful disagreement with that part of the opinion upholding the judgment against Richard Frey. I therefore write separately. 51 In concluding that there was sufficient evidence that Frey was deliberately indifferent to Hicks's serious medical needs, the majority opinion relies, appropriately to be sure, on Hays v. Jefferson County, 668 F.2d 869 (6th Cir.), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982), in which this court held that in order for liability to lie in this type of case, a plaintiff must show that a prison official "either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official ... implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct...." Id. at 874 (emphasis added). The majority opinion nonetheless postulates, despite acknowledging that "[t]he case with respect to Frey is much closer because he had little direct, personal contact with Hicks," op. at 1457, that a jury could have concluded Frey was required to act and inquire into Hicks's condition in order to avoid a constitutional violation. I, however, find no basis in existing law for imposing this type of affirmative obligation on a prison official. It resonates, in fact, of the type of negligence standard which courts are prohibited from imposing. 52 Hicks produced no evidence that Frey was aware of the violations Hicks asserts were occurring. The only evidence of knowledge that the majority opinion identifies is one statement by Frey that Hicks's condition and complaints "were daily topics of conversation." This statement certainly raises suspicions about the nature and extent of Frey's knowledge about Hicks's condition.1 However, it requires a considerable leap to conclude that the complaints to which Frey referred were complaints concerning acts or omissions amounting to unconstitutional conduct. Thus, even considering this statement, I do not think that Hicks met his burden. The law, in my view, requires, at the very least, that a plaintiff produce, for example, the testimony of even one guard that Frey was informed of Hicks's problems, or evidence that Hicks had complained to Frey, or any evidence at all tending to show that Frey had specific knowledge of constitutional violations. 53 This Hicks entirely failed to do. I therefore must respectfully dissent only from that portion of the majority opinion in which it affirms the judgment with regard to Frey. 1 I note that Hicks apparently did not consider it to be so, since he did not include this section of the transcript in the joint appendix and did not refer to it in the brief

940 F.2d 660 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.Kenneth B. HALL, Plaintiff-Appellant,v.COCKE COUNTY, TENNESSEE, and Cocke County HighwayDepartment, Defendants-Appellees. No. 90-6060. United States Court of Appeals, Sixth Circuit. Aug. 8, 1991. Before KRUPANSKY and BOGGS, Circuit Judges, and COHN,* District Judge. PER CURIAM. 1 Kenneth Hall brought suit against his former employer, Cocke County, Tennessee, and the Cocke County Highway Department, for uncompensated overtime and liquidated damages under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. Sec. 201 et seq. After a bench trial, the district court found (1) that plaintiff's compensation for the forty-eight hours of overtime he worked every weekend was not reasonable, (2) that Cocke County's violation of the FLSA through its agent Tom O'Dell was willful, thereby establishing three years as the applicable period of limitation for recovering damages, and (3) that plaintiff was entitled to liquidated damages because of defendant's willful violation. The court awarded the plaintiff $29,338.88 for overtime compensation and the same amount for liquidated damages. This timely appeal follows. We vacate the judgment of the district court and remand the case for further proceedings. 2 * The Cocke County Highway Department maintained a garage at the end of a dead-end road near by a stone quarry. Hall was hired to be a watchman for that facility. During the week, he worked from 4:00 p.m. until 7:00 a.m. every day. This was the period when the regular garage employees were absent from the facility. His duties were not onerous. From 4:00 p.m. until 10:00 p.m., the garage was open to police cruisers coming in to fill up. Hall was required to open the gate for them, but he did not have to pump the gas. His only responsibility was to make sure that the appropriate chit was filled out and filed in the proper place. After ten o'clock on weekdays, Hall's only duty was to keep an eye on the place and to summon the sheriff's department if there were any trouble. At times, fire department trucks would come after the ten p.m. closing time. It was Hall's responsibility to see that they were admitted and that they submitted a chit after taking on fuel. After ten o'clock on weekdays, Hall's sleep was rarely disturbed. 3 Hall was also required to be on the premises for forty-eight hours during the weekend, i.e., all day Saturday and Sunday. His duties were largely confined to safeguarding the county's property. He was permitted to leave the premises on the weekend, but a replacement had to be found. This happened only occasionally. Hall's compensation was not reduced when he was absent from the premises on the weekend. 4 The county maintained a trailer on the premises. Hall's brief describes it as a shack; the county's brief speaks of it as a three-bedroom mobile home. Whatever it was, soon after taking the job, Hall fixed it up and moved his family in. The trailer became his permanent residence. When he was on duty on the weekend, Hall had ample time for private pursuits. He played basketball, entertained friends, played cards with his family, and so on. 5 When Hall was hired in May 1985, his bi-weekly salary was $336.58. When he "resigned" in February 1989 to begin serving a prison sentence after conviction on a drug-dealing charge, his bi-weekly pay was $387.79. During the week, he worked from 4 p.m. to 10 p.m., five days per week, for a total of thirty hours per week of weekday work. If we assume, as the court did below, that he was compensated for weekday work only, and that weekend work was uncompensated, his starting salary was $5.60 per hour and his ending salary was $6.45 per hour. II 6 The FLSA prohibits an employer from employing workers for more than forty hours per week without compensating them at a higher rate for overtime. 29 U.S.C. Secs. 207(a) & (f). Under certain circumstances, the time that employees spend waiting to go to work must be compensated. See Skidmore v. Swift & Co., 323 U.S. 138, 140, 65 S.Ct. 161, 164 (1941), reh'g denied, 320 U.S. 812 (1943). On the other hand, 7 An employee who resides on his employer's premises on a permanent basis for extended periods of time is not considered as working all the time he is on the premises.... It is, of course, difficult to determine the exact hours of work under these circumstances and any reasonable agreement by all the parties which takes into consideration all the pertinent facts will be accepted. 8 29 C.F.R. Sec. 785.23. 9 In determining that Hall's salary was unreasonable, the court below said: 10 [A]lthough the plaintiff's salary was reasonable for his hours from Monday through Friday, ... plaintiff's compensation was not reasonable for the 48 hours that he was on duty each weekend. [G]iven the totality of the circumstances, ... as a whole ... the plaintiff's salary was not reasonable, and ... he is entitled to overtime compensation at least for the 48 hours of duty less sleep time [of sixteen hours per weekend] he was required to remain on the premises each weekend. 11 The record of the proceedings below gives us no grounds for determining how the district court was able to conclude that Hall's salary was for weekday work only. We do not know why the compensation was considered reasonable for weekday work only, but inadequate once Hall's weekend obligations were considered. Nor do we know why the court concluded that Hall was entitled to compensation for every waking hour he spent on county property on the weekends. In Skidmore v. Swift & Co., the plaintiffs were firemen who were required to spend nights at the firehouse; they were held to be entitled to compensation for the time spent waiting. Hall's situation was quite different from theirs. On the weekends, Hall "waited" in his home. 12 Since we are unable to understand the foundation on which the district court's determination rests, we are cannot review its judgment and must remand the case for a more adequate exposition of the district court's finding that Hall's weekend compensation was unreasonable and that he was entitled to 32 hours per weekend of overtime pay. See Glover v. Johnson, 855 F.2d 277, 285 (6th Cir.1988) (case remanded because of district court's insufficiently specific findings of fact); Poe v. Haydon, 853 F.2d 418, 426 (6th Cir.1988), cert. denied, 488 U.S. 1007 (1989) (remand required when the district court neglected to state more fully the basis for its conclusions). II 13 The FLSA statute of limitations is normally two years. However, if an employer acts willfully, this period is three years. 29 U.S.C. Sec. 255(a). The district court found that the county highway department, acting through its agent O'Dell, willfully violated the statute in setting Hall's compensation. Applying the three-year statute of limitations, the district court awarded Hall backpay for the period August 7, 1986 until February 28, 1989, the day he resigned. If the two-year statute of limitations had been applied, he would have been awarded backpay for the period August 7, 1987 until February 28, 1989 only. 14 In applying the statute of limitation, the district court employed the standard of willfulness found in Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir.), cert. denied, 409 U.S. 948 (1972). The holding of that case was that an employer acts willfully for FLSA purposes if he knew or suspected that his actions might violate the act. Id. at 1142. The district court in this case was able to find bad faith under the Jiffy June Farms standard because O'Dell had attended a seminar in which he was made aware of the possible application of the FLSA to Hall's employment. 15 In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134, 108 S.Ct. 1677, 1681-82 (1988), the Supreme Court rejected Jiffy June Farms and held that an even an employer who acts unreasonably towards an employee in violating the FLSA does not act willfully, unless his conduct is reckless. Since the court did not use this standard in determining the statute of limitations applicable to this case, we must remand this case for consideration of that issue under the appropriate standards. III 16 An employer who violates the FLSA is liable not only for compensatory damages but also for liquidated damages equal to compensatory damages. 29 U.S.C. Sec. 216(b). However, a court may, in its discretion, award a lesser sum, or deny liquidated damages altogether, if the employer satisfies the court that the act or omission giving rise to liability was in good faith and that he had reasonable grounds for believing that the act or omission was not a violation of the FLSA. Id. Sec. 260. The court below awarded liquidated damages equal to compensatory damages but did not support this award with an appropriate inquiry into the bona fides of the defendants or the reasonableness of their belief that they were not violating the FLSA. Accordingly, we must remand the case for proper findings of fact on these issues. 17 The judgment is VACATED, and the case is REMANDED for proceedings consistent with this opinion. * The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation

492 F.Supp. 1 (1980) UNITED STEEL WORKERS OF AMERICA, LOCAL NO. 1330 et al., Plaintiffs, v. UNITED STATES STEEL CORPORATION, Defendant. No. C 79-2337 Y. United States District Court, N. D. Ohio, E. D. Order February 29, 1980. On Injunctive and Declaratory Relief March 21, 1980. On Violation of Antitrust Laws April 14, 1980. *2 ORDER LAMBROS, District Judge. Now this Court considers plaintiffs' motion for injunctive relief pendente lite. On February 28, 1980, a pretrial conference took place to consider plaintiffs' motion for preliminary relief and to discuss the question of this Court's jurisdiction. The conference lasted the full day and both plaintiffs and defendant were given ample opportunity to adduce their arguments on the matters of irreparability of harm and likelihood of success on the merits. This Court has grave doubts about the propriety of this Court's exercise of jurisdiction over the merits of this case. Undoubtedly, however, this Court has jurisdiction to determine the question of its jurisdiction. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938). Pursuant to this jurisdiction, this Court grants plaintiffs' motion for preliminary injunction based on this Court's determination that there is a probability of irreparable harm to plaintiffs if the status quo is not maintained. Particularly, this Court finds that defendant's announced plan of February 4, 1980, that the shutdown of the plants would be accelerated over previous representations, if put into effect, would hinder the orderly consideration of the important matters involved in this action. Therefore, defendant is enjoined from proceeding with such plans as it might have to close any of its Youngstown District facilities pending the ultimate disposition of this cause by the Court. No bond will be required. IT IS SO ORDERED. ON INJUNCTIVE AND DECLARATORY RELIEF The evidence of this action having been fully presented by plaintiffs and defendant in a five-day trial to this Court sitting in its equity power to consider the propriety of injunctive relief, the Court now turns to the task of finding the facts of the allegations and concluding how the law is properly to be applied. In this action, the workers at the Mahoning Valley, Ohio, plants of United States *3 Steel Corporation seek to enforce the alleged promise of the company to keep those plants open so long as they remain profitable. This suit was precipitated by the announced plan of the company to shut down the steel mills. On February 28, 1980, this Court temporarily enjoined the company from closing the plants; trial on the merits was advanced to March 17, 1980, so that the important issues embodied in this action might be given full and prompt consideration. I. This nation is in the throes of growing pains of similar intensity to the traumatic changes brought by the advent of the steam engine and the Industrial Revolution. From the turn of the century until the decade prior to this, the United States has been in an expansionary period brought on by plentiful energy and raw materials, technological leadership, and the insatiable maw of four major wars. Steel was the backbone of this expansion, and the dominance of the automobile in this period was a major source of support to the burgeoning steel industry. In the 1960's it appeared that this expansion and economic dominance had no limiting factor and that a rising gross national product and standard of living could be expected to become a permanent part of American Life. The 1970's, however, were a time of serious reappraisal. The country's energy supplies were limited and controlled by a foreign cartel. The technological success of our allies, especially the Federal Republic of Germany and Japan, although welcome from the standpoint of the strengthening of the free world, made it clear that economic cooperation and not coercion would be the order of the new decade. This shift in economic power had a particularly strong effect in the automotive industry, and the influx of foreign cars meant the influx of foreign steel. Perhaps most importantly, the advent of peace after the conflict in Vietnam and the continuation from that period of a foreign policy of detente and non-interference have required a massive reallocation of capital, labor and technological research. The beating of swords into ploughshares is and will be a painful process of relocation and restructuring, though the prospect of a more permanent peace suggests that the changes must be made. This lawsuit is a symptom of the changes discussed above. The Environmental Protection Agency, in considering an exemption for the Mahoning Valley region of Eastern Ohio from several environmental quality guidelines, extensively reviewed the plight of steel in the Mahoning Valley. Its conclusions, in the form of interim final regulations, were these: Tentative analysis of the available data leads to the conclusion that conditions in the Mahoning River Valley region are unique with respect to the physical and geographical characteristics of the region, physical and operating characteristics of the facilities located therein, and the importance of the facilities to the economy of the region. Tentative analysis of the available data and the consultant's evaluation thereof appears to support the contention that mandatory compliance with effluent limitations guidelines which do not take into account these factors is likely to result in severe economic dislocation within the Mahoning River Valley region . . .. In addition to similar economic disadvantages resulting from age and size characteristics, facilities in the region appear to share economic disadvantages caused by locational characteristics. These include the movement of markets away from the region, constrained access to raw materials due to the unavailability of waterborne transportation and required transshipment by rail, and space limitations which prohibit major expansion of existing facilities. [40 Fed.Reg. 12994.] United States Steel decided to close its plants in the Mahoning Valley, and approximately 3500 workers became victims of the economic shifts forced on this nation by recent events. The workers asked this Court for injunctive relief to keep the plants operating and *4 their jobs intact. United States Steel answered that lack of profitability forced it to close and that it had a right to make this management decision, and the issues were thereby joined. II. On December 21, 1979, plaintiffs filed this action and asked for a temporary restraining order. At a pretrial conference on January 22, 1980, it was determined that if a hearing on the merits could be had before the end of March, 1980, no immediate action by the Court was necessary. Based on this representation, the Court scheduled a pretrial conference for February 28, 1980, and set trial on the merits for March 17, 1980. By letter of February 4, 1980, the Court was informed by counsel for defendant that the shutdown schedule for the Youngstown plants had been advanced. It became apparent that this Court would have to grant preliminary relief prior to trial on the merits in order to preserve its own jurisdiction. Consequently, this Court heard oral argument on the preliminary relief at the February 28, 1980, pretrial conference. At that time, the Court and both parties discussed the theories of the case and the possibility of irreparable harm. After a full day of thoughtful argument from both plaintiffs and defendant, this Court granted a temporary restraining order to preserve the status quo and thereby its own jurisdiction, and confirmed plans to proceed with trial on the merits on March 17, 1980. A written Order journalizing these proceedings was filed by the Court on February 29, 1980. Defendant then sought a stay of the enforcement of the February 29, 1980, Order pending an emergency appeal to the United States Court of Appeals for the Sixth Circuit. The stay was denied. Defendant then sought a stay on the appellate level and a reversal of this Court's February 29th Order in the Sixth Circuit. On March 12, 1980, the Sixth Circuit denied the motion for stay and affirmed this Court's injunctive Order while modifying that Order to a temporary restraining order of definite period. The Sixth Circuit viewed the restraining order as of ten-day duration with an additional ten-day extension. On March 19, 1980, this Court granted a preliminary injunction to maintain the status quo for the few remaining days of trial, with the promise of a prompt decision at the conclusion of the evidence. III. The Second Amended Complaint suggests four theories in support of injunctive relief — breach of contract, promissory estoppel, violation of anti-trust statutes and property right. The breach of contract and detrimental reliance claims are based on a series of communications by employees of defendant to the workers at the Mahoning Valley plants. Plaintiffs allege these communications constitute a promise by the company to keep the mills operating if and so long as the workers made the mills profitable. These statements are set forth in paragraph ten of the Complaint. From the standpoint of Ohio contract law, the alleged contract must be either unilateral or bilateral — that is, parties must either exchange a promise for a promise or a promise for an act. In the action at bar, plaintiffs' allegations can be simplified to this: the company promised to keep the plants operational as long as they remained profitable, and the workers did in fact make the plants profitable. Plaintiffs never allege in the Complaint or show in the evidence that the workers, either individually or through their union, promised the company that they would make the plants profitable. Therefore, the contract must be of the unilateral, promise-exchanged-for-an-act, variety. Peizer v. Bergeon, 111 Ohio App. 205, 14 O.Ops.2d 124, 83 O.L.Abs. 45, 164 N.E.2d 790. However, at the time the alleged promise was made by the company, the workers did not immediately execute the contract in full — profitability would have to be achieved over a long period of hard work. This means that the contract would not come into existence until the workers had fully performed their side of *5 the contract by making the plant profitable. "[A unilateral] contract does not come into existence until one party to it has done all that is necessary on his part." 17 O.Jur.3d Contracts, § 8. The promissory estoppel argument requires that a promise that the promissor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promissee and that does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise. Restatement, Contracts, § 90. The statements by employees of the company to the workers are crucial to the contract and estoppel claims because they are at the heart of the two basic issues the Court must decide: were the statements offers to enter into a unilateral contract that were binding on the corporation? and, should the company reasonably have expected the workers to rely on those statements? Clearly, the formation of a proper contract requires that the employee of the corporation who makes a promise must have the authority to enter into the contract. The Supreme Court of Ohio has held that unless express authority is conferred upon an officer or agent of the corporation or there appears to be a clear course of dealing with the world implying authority in an officer or agent, the corporation can be bound only by its board of directors. Bradford Belting Company v. Gibson, 68 Ohio Sup. 442, 67 N.E. 888. Plaintiffs have offered no evidence to show such an express or implied authority in any of the corporation's officers to make the promise to keep the plants open if the workers made the plants profitable. Defendant has repeatedly made clear that no such authority existed. There is no basis for the claim in contract. Promissory estoppel, however, is a less rigid concept, being part of the equity powers of the Court. The lack of a technical power of agency in any of the company's spokesmen does not relieve the company from a binding promise if it should reasonably have expected the statements of the spokesmen to be relied upon detrimentally by the workers. This is a more subtle point and requires an examination of the particulars of the statements and a judgment by this Court of the reasonableness of reliance. Many of the statements were messages communicated to the employees by an internal telephone network called the "hot-line." William Kirwin, Manager of the Youngstown facilities, explained in testimony that various members of the management and public relations sectors of the company would record a short tape message. That message would then be connected to a system of in-plant telephones so that a worker could pick up a special hot-line telephone receiver and hear the recorded message. The message could not be heard on conventional telephones outside the plant. The hot-line messages never make clear a promise to remain open if the workers made the plant profitable. A September 1, 1977, message said there were "no immediate plans to permanently shut down" and that "the continued operation of these plants is absolutely dependent upon their being profit-makers." However, the statement that lack of profitability would close the plants does not imply the converse, that the plants will not close if they are profitable. William Kirwin's numerous hot-line remarks (on January 4, 1978, January 11, 1978, April 7, 1978, November 8, 1978 and December 21, 1978) come close to embodying the promise alleged by plaintiffs, especially such comments as these: "With your help, this effort will continue and if and when there will be a phase-out depends on the plants' profitability, but no timetable has been set." "Our future is what we make it." "I am asking each of you to consider how you may help in keeping Youngstown the going plant it is today." Mr. Kirwin's remarks, however, must be considered in the context of their delivery. The hot-line was begun, according to Kirwin, as a mechanism for communicating safety tips to the workers, and was later expanded into a tool for correcting false *6 rumors that might be spread through the plant and appear in the media. This Court has carefully read and reread Mr. Kirwin's messages, attempting to put itself in the place of a steelworker hearing those messages during 1977, 1978 and 1979. The Court concludes that the reasonable understanding to be drawn from those messages is this: The United States Steel plants in the Mahoning Valley are in trouble and a shutdown is imminent; the board of directors of the corporation will base the shutdown decision largely on profitability; if the plants become profitable it may affect management's shutdown decision; therefore, the most effective thing the workers can do to save their jobs is to work efficiently to help the profitability picture. It is clear to this Court that Mr. Kirwin was dedicated to his job and to the employees of the steel plants. He believed that steel could be effectively produced in the Mahoning Valley. He wanted desperately to save the mills. Toward that goal he embarked on a "morale" program to attempt to get the workers in Youngstown to make steel profitable. Although this speaks highly of Mr. Kirwin's ability and dedication, it also suggests that his statements were not necessarily those of the national company management. For example, on January 3, 1978, Edgar Speer, then Chairman of the Board of Directors of United States Steel, affirmed that at some point the Ohio and McDonald Works would have to be closed. Mr. Kirwin's hot-line remarks of January 4, 1978 and January 11, 1978, were directed toward explaining Mr. Speer's remark. It was at this point that Mr. Kirwin stated "if and when there will be a phase-out depends on the plant's profitability." The other remarks alleged in paragraph ten of the Complaint are less troubling. Remarks made to the media by various employees of the company cannot reasonably be construed as embodying a promise made to the workers, especially when the statements were made by public relations people and not company officers [see the statements of Frederick Foote and Randall Walthius]. It is this Court's considered opinion that a reasonable understanding of all of the statements alleged in paragraph ten of the Complaint would suggest that national company management wanted to close the plant for lack of profitability and that the call for increased worker productivity was a plan William Kirwin was presenting as a final effort for the workers to sway national management opinion. Mr. Kirwin's plan was courageous and well conceived, but it did not represent a promise made by the corporation on which the workers should reasonably have relied. IV. There is a second, independent ground for denying relief under the contract and detrimental reliance theories, and that is the failure of the condition precedent to defendant's liability — the profitability of the Mahoning Valley plants. Plaintiffs attempted to demonstrate profitability by defining minimum profitability as the "gross profit margin", which William R. Roesch, President and Chief Operating Officer of United States Steel, described as "the revenues minus the variable costs of performing the operation to produce the product." [Transcript, page 148.] He admitted that "technically, if you are losing money at the gross margin operation, there is no way to make that operation profitable." [Transcript, page 149.] Plaintiffs then turned to their exhibits 32 through 37, which were summary sheets of operating profitability for the Youngstown facilities for 1977, 1978, 1979, and 1980. These exhibits revealed that the gross profit margin for 1977 was $24,899,000.00, that for 1978 was $41,770,000.00, that for 1979 was $32,571,000.00 and that the projected gross profit margin for 1980, as of November 20, 1979, was $32,396,000.00. [Plaintiffs' Exhibit 72.] These figures do indicate that at the variable-cost margin, the plant was, in a sense, profitable. It should be remembered, however, that even with the projected $32,396,000.00 gross profit margin projected for *7 1980, the over-all projection for the year was a loss of $9,387,000.00. This suggests that with a different definition of profit, especially one that would include fixed costs, the outcome of an accounting analysis could be made to be non-profitability. Mr. Roesch testified that the gross profit margin "does not represent the profit of the operation." [Transcript, page 182], nor does it represent that the operation is necessarily profitable, considered as a whole [Transcript, page 183]. He explained that "[t]here are other factors involved because, once you have the gross margin, you have to subtract the depreciation for the equipment which was involved and depreciate it over a period of time; you have to subtract the selling expenses which are necessary; and you have to subtract the administrative charges, the taxes, and so forth." [Transcript, page 183.] He also explained that, because of the integrated system of the national corporation, many of the unseen costs of the Youngstown Works were absorbed by other plants and operations in the steel company. [Transcript, page 183.] Mr. Roesch testified that it was primarily the obsolescence of the plant facilities that made the plant unprofitable. [Transcript, pages 185-193.] The testimony of David Roderick, Chairman of the Board of Directors and Chief Executive Officer of United States Steel, confirmed Mr. Roesch's opinion. In answer to the question "And through the end of October, 1979, Youngstown [sic] the performance of that year was in the area of about the break even, was it not?" Mr. Roderick replied ". . . the actual number was about a $300 thousand loss, as of the end of October, cumulative for the year. And further, as I recall, they had lost money three out of the four months preceding it." [Transcript, pages 226-227.] Further, Mr. Roderick explained the opinion of the Board of Directors on the trend of the loss in this way: Well, what I really mean by an irreversible loss is based on our best judgment, or my best judgment, the loss would be incurred and there was nothing the plant could do to avoid that loss, that the market was working negatively and that it was our projection that the plant would lose money in five out of six months of the second half, that the loss for the year would be quite substantial in 1979, and with all the facts that we could see on the horizon for 1980, plus the actual performance for the second half of 1979, we felt there was no way that the loss trend could be reversed for the calendar year of 1980. [Transcript, page 229.] This Court is loathe to exchange its own view of the parameters of profitability for that of the corporation. It is clear that there is little argument as to the production figures for the Youngstown mills — the controversy surrounds the interpretation of those figures. Plaintiffs read the figures in light of a gross profit margin analysis of minimum profitability. Defendant sees capital expenditure, fixed costs and technical obsolescence as essential ingredients of the notion of profitability. Perhaps if this Court were being asked to interpret the word "profit" in a written contract between plaintiffs and defendant, some choice would have to be made. Given the oral nature of the alleged promises in the case at bar and the obvious ambiguity of the statements made, this Court finds that there is a very reasonable basis on which it can be said that Youngstown facilities were not profitable. Further, plaintiffs have made no showing of bad faith on the part of the Board of Directors in the Board's determination of profitability, nor have they given any grounds to suggest that defendant's definition of profitability is an unrealistic or unreasonable one. The condition precedent of the alleged contract and promise — profitability of the Youngstown facilities — was never fulfilled, and the actions in contract and for detrimental reliance cannot be found for plaintiffs. There was a great deal of testimony at trial concerning the various acts of forbearance allegedly taken by the plaintiffs on the basis of the statements made to them by company management. Those acts are set forth in paragraph eleven of the Complaint. *8 The testimony of union officials Vasquez and DePetro highlight the allegations of the Complaint. There is no doubt that the workers made a sincere and forceful effort to increase productivity, or "yield", primarily by waiving those formal technicalities of their labor contract that contributed to easier working conditions, but detracted from productivity. Normal procedures for handling the steel, adopted by the union to protect the workers from abusive corporate practices were sometimes circumvented in the interests of efficiency. Mr. DePetro's testimony summarized the efforts of the workers well: [Mr. DePetro, at a workers' meeting, made the following suggestions, which were later acted upon by the workers:] `I feel we can talk about attitudes, including management; we can talk about cooperation, including management; we can talk about setting up the mills efficiently: The rougher can tell if there is shearing on bars and make it known for correction; pulpit operators can tell if bars are being pulled; there can be better cooperation between the furnace crew and the roll crew; and there can be better cooperation between the roller and the crew. We can learn other jobs, just in case you might be needed; we can be more efficient on our own jobs. We can strive for better quality, so as to stop our customers from filing claims. We can make sure that our orders are getting to our customers on time, so as not to lose those customers.' [Transcript, pages 581-582.] This Court is mindful of the efforts taken by the workers to increase productivity, and has applauded these efforts in the preceding paragraphs. In view of the fact, however, that this Court has found that no contract or enforceable promise was entered into by the company and that, additionally, there is clear evidence to support the company's decision that the plants were not profitable, the various acts of forbearance taken by the plaintiffs do not give them the basis for relief against defendant. V. The testimony of all witnesses has made it clear to this Court that the United States Steel facilities at Youngstown were a model of worker productivity, labor/management cooperation and dedicated leadership. Obsolescence, however, has forced even this admirable example of American industry to close its operations. This is not to suggest, however, that labor and management gave in to the inexorable results of obsolescence without a struggle. On the contrary, the story of the attempts by the workers under the leadership of William Kirwin to fight back the effects of obsolescence demonstrates the basic values of the American economic system. William Kirwin became General Superintendent of the Ohio and McDonald Works on the first day of February, 1978, having had thirty years of experience at the Youngstown Works in positions ranging from Junior Industrial Engineer to Assistant General Superintendent. In August of 1977, the national management drafted, but never sent, a letter to the Youngstown employees to this effect: "It is with extreme regret that I inform you that most of the operations at the Youngstown Works will be phased out over the coming months." [Plaintiffs' Exhibits 77 and 78.] That letter was never sent, apparently because Mr. Kirwin and the then Superintendent, Mr. Ashton, had gone to Pittsburgh to ask for another chance to keep the mills alive. National management was persuaded not to send the letter and Mr. Ashton and Mr. Kirwin devised a plan of increased productivity as a means of keeping the plants operating. [Transcript, pages 284-286.] Mr. Kirwin began recording hotline messages urging worker cooperation in an attempt to increase employee moral and raise productivity. A little later in 1978, Mr. Kirwin initiated the "Beat Texas" campaign. The United States Steel plant at Bay Town, Texas, is the newest plant in the corporation, and Mr. Kirwin thought a slogan asking the Youngstown plant to beat the Bay Town productivity figures would "get the spirit *9 going and motivation up and so forth." The campaign was successful and the Youngstown productivity outstripped that of the Bay Town plant. In recognition, a ten-foot high cow sporting the slogan "We Beat Texas" was driven from the plant to the Playhouse in town on the occasion of a Management Appreciation dinner in December of 1978. [Transcript page 303.] The national management praised Mr. Kirwin's activities on numerous occasions, and remarked on the excellent work record of labor in the Mahoning Valley plants. There is no doubt in this Court's mind that if any group of hardworking American citizens could have kept these plants going profitably, the men and women of the Youngstown area could have done it. But the realities of shifts in the economy, technological obsolescence, environmental demands and foreign competition dictated that this was not to be. The hard work of labor should also not go unnoticed. William Kirwin enlisted the aid of the employees in his crusade to save the mills and they responded by finding ways of contributing to increased productivity. Paragraph eleven of the complaint sets forth the sacrifices of the workers in the cause of increased productivity. At a meeting Mr. Kirwin had with labor representatives, referred to in testimony as a "Beer with the Boss", Mr. Kirwin reiterated his plan to save the Youngstown Mills. He describes his speech in this way: ... I said at the time ... the next six months could be the most critical six months in the period of the Youngstown Works, and I wanted to get everybody there to see if we couldn't elicit maximum effort in order to try and hold where we were, and I will tell you why — to give me an opportunity to try and sell one more step for Youngstown. [Transcript, page 319.] It was Mr. Kirwin's untiring search for excellence and pride in the making of steel that prompted him to spearhead the worker's efforts to save their jobs. As he explained "And this was all my hot-lines, what I was trying to do, because I believe so strongly that you should be proud of any job that you have to do, and you should strive your best to do it." [Transcript, page 392.] VI. The possibility of the relationships between the steel industry and surrounding community generating a property right was suggested by this Court sua sponte at the pretrial conference on February 28, 1980. As this Court explained then: Everything that has happened in the Mahoning Valley has been happening for many years because of steel. Schools have been built, roads have been built. Expansion that has taken place is because of steel. And to accommodate that industry, lives and destinies of the inhabitants of that community were based and planned on the basis of that institution: Steel. [Transcript, pages 6-7.] The Court suggested this theory and asked that it be considered and argued by the parties out of a deep sense of concern for the Mahoning Valley community. This Court does not see itself possessed only of the limited function of applying blackletter law to facts in a mechanical way. The function of the legal system since its origin in Grecian antiquity has been the resolution of human conflicts. Without laws and courts, injustice would lead to vengeance and revenge, feud and the vigilante. It is the job of our courts to air grievances and bitterness and to resolve disputes without violence and hatred. In a sense, the court must adjust human relationships. In pursuit of that goal — adjusting human relationships — this Court has actively sought settlement and resolution throughout the pendency of this action. As this Court emphasized at the February 28, 1980, hearing: ... we ought to seek a resolution of the dispute, exploring, perhaps some way of rehabilitation, explore perhaps an opportunity of the steelworkers, of the community, or some other alternatives for the acquisition of those steel works at the Youngstown area, or perhaps some negotiations *10 along the line of U. S. Steel coming up with a formula or a plan in conjunction with the steelworkers for the community for some economic redress to aid their rehabilitation. [Transcript, page 14.] This Court has spent many hours searching for a way to cut to the heart of the economic reality — that obsolescence and market forces demand the close of the Mahoning Valley plants, and yet the lives of 3500 workers and their families and the supporting Youngstown community cannot be dismissed as inconsequential. United States Steel should not be permitted to leave the Youngstown area devastated after drawing from the lifeblood of the community for so many years. Unfortunately, the mechanism to reach this ideal settlement, to recognize this new property right, is not now in existence in the code of laws of our nation. At this moment, proposals for legislative redress of economic relocation like the situation before us are pending on Capitol Hill. Perhaps labor unions, now more aware of the importance of this problem, will begin to bargain for relocation adjustment funds and mechanisms and will make such measures part of the written labor contract. However, this Court is not a legislative body and can not make laws where none exist — only those remedies prescribed in the statutes or by virtue of precedent of prior case law can be given cognizance. In these terms this Court can determine no legal basis for the finding of a property right. Charland v. Norge Division, Borg-Warner Corporation, 407 F.2d 1062 (6th Cir., 1969). Having disposed of the contract, detrimental reliance and property claims, I now turn to the prayer for relief. I will not order United States Steel to keep the plants open, and the preliminary injunction is hereby vacated. VII. Although I will not order United States Steel to operate the mills, I do order United States Steel to keep the mills operable until the steelworkers have an opportunity to explore purchase possibilities by themselves or by others. Plaintiffs' final argument is based on an allegation of a violation of the anti-trust laws, 15 U.S.C. §§ 2, 4, 15 and 26. The allegation is based on a proposal by the workers to join together to buy and operate the mills themselves. David Roderick, United States Steel Board Chairman, has made it plain in testimony that he will not sell the plants to any federally subsidized competitor. Since plaintiffs intend to obtain a federal subsidy to aid in the purchase of the plants, Roderick's statements appear to be a refusal to deal. Parties have largely ignored this aspect of the case, and yet it seems to this Court that there may be some merit to the allegations. It was obvious at trial that neither party was prepared to present substantial evidence on the matter and defendant ignored the claim in its Motion for Judgment at the Close of Plaintiffs' case filed March 20, 1980. Plaintiffs' own counsel admitted in final argument that he felt the Court had not had a chance to hear and consider fully the anti-trust claim. This Court feels at a loss to deal with this important issue on such a meager record. Therefore, this Court sets the date sixty days from this Order as the time for an evidentiary hearing on the merits of this allegation so as to give parties minimum adequate time to prepare the evidence and brief the law. Until that time, this Court orders that defendant be preliminarily enjoined from causing or allowing the closed facilities to become inoperable. This Court can not order the plants to continue to operate, but it can order that the plants remain operable. In simple terms, the facilities are to be put in mothballs for 60 days. Since the plants will be allowed to close, defendants will not suffer the economic harm they have previously alleged, while there would be irrevocable harm to plaintiffs if the plants were dismantled. This, coupled with a showing on the evidence so far presented of a likelihood of success on the merits provides the basis for the preliminary injunction. Rule 65(a), Federal Rules of Civil Procedure. *11 Fifty days from the date of this Order, parties will appear at a pretrial conference to discuss the status of the anti-trust claims at that point and legal briefs should be filed prior to that time. Additionally, this Court sees no just cause for delay in entering final judgment on the allegations of contract, estoppel and property right. These theories are based on facts [the promises of the company] different from those that are the basis for the antitrust claim [the refusal to sell]. Final judgment is, therefore, entered for defendant on the allegations of contract breach, detrimental reliance and property right, and the relief prayed for in relation to those allegations relating to the closing of the plant is denied. Rule 54(b), Federal Rules of Civil Procedure. VIII. The Court has extensively presented its findings and commented on the evidence and the law in the preceding sections, so as to give parties an insight into the factors the Court considered in weighing the evidence and reaching its legal conclusions. Now follow the formal findings of fact and conclusions of law: Findings of Fact 1. Plaintiffs are all residents of the State of Ohio. Defendant is a corporation with principal place of business in Pennsylvania that does business in Ohio by owning and operating steel mills in Youngstown and McDonald, Ohio. 2. Defendant never entered into a contract through authorized agents promising to continue operating the Ohio steel mills so long as the plants remained profitable. 3. Although managerial employees of defendant on occasion throughout 1977, 1978, 1979 and 1980 urged plaintiff workers to increase their productivity and also indicated that productivity would be a central factor in deciding if and when the steel mills would be closed, the corporation never promised to keep the mills operating so long as the workers made the mills profitable. 4. It was not reasonable for the workers to interpret the above-mentioned statements of the managerial employees of the corporation as embodying a promise to keep the steel mills open so long as the workers made the mills profitable. 5. It was not reasonable for the workers to construe statements made by public relations employees or other employees of the corporation to the news media as binding on the corporation. 6. The corporation's appraisal of the steel mills as unprofitable has a reasonable basis in the economic evidence and this Court finds that the mills are not profitable to the corporation. 7. Not enough evidence has been presented to reach a conclusion as to the merits of the claims under the Sherman and Clayton Acts. Conclusions of Law 1. Defendant has not breached a contract with plaintiffs by taking action to close the Youngstown and Ohio steel mills. 2. Plaintiff has no claim under the theory of detrimental reliance to ask that the corporation be estopped from denying such a contract right. 3. The claim of plaintiffs that they possess a property right in the nature of an easement fails to state a claim on which relief can be based. Therefore, plaintiffs' prayer for declaratory and injunctive relief related to the closing of the plants is denied. Judgment on plaintiffs' prayers in paragraph 2, 3b, 3c, 3d, 3e, 3f, 3g, 3h, 3i, 4, 5, 6 and 7 is reserved until the hearing 60 days from this date, as set forth above. IT IS SO ORDERED. ON VIOLATION OF ANTITRUST LAWS The only issue remaining before this Court is the allegation that United States Steel has violated federal antitrust laws by refusing to sell the closed Mahoning Valley steel plants to the plaintiffs. At the close of trial on the merits, this Court believed that there had been insufficient discussion *12 of this antitrust allegation by either party to allow the Court to render an informed judgment. Of course, failure to establish fully an allegation normally results in judgment for the defense; however, this Court believed that plaintiffs' meager presentation was occasioned not by acedia, inattentiveness or, necessarily, a lack of a colorable claim, but rather by the sensitive and tentative nature of the negotiations still being conducted at that time that were directly related to the antitrust issues. The Court felt that if more time were given plaintiffs to develop those allegations, the case could be put in a better posture for complete decision. Further, the trial had proceeded on an accelerated basis and, given the fact of partial final judgment on the contract, detrimental reliance and property claims, and the removal of the harsh preliminary injunction associated therewith, this Court decided that the final claim could be allowed to develop at a slower, more contemplative, pace. Trial of the antitrust claim was set for 60 days after the Order of Partial Final Judgment. Following trial, defendant moved for amendment of judgment pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure. As this Court began to consider the specific nature of the antitrust claims being asserted, it began to entertain serious doubts about the ripeness of this allegation for consideration. Oral argument was set for Thursday, April 3, 1980, on the motion of the defense and an unrelated motion by plaintiffs. At that oral argument, this Court made it clear that the issue of ripeness weighed heavily on its mind, and plaintiff was asked to proffer its intended evidence and to discuss the current state of purchase negotiations. No evidence was required of plaintiff, merely a proffer of planned testimony. [Counsel for plaintiff protested that he had been promised by the Court's Clerk that no evidence would be taken — this was a non sequitur given the Court's assurances that no evidence was required; plaintiffs' counsel also suggested that he was not prepared to speak on the subject at that time — this was either the product of unnecessary modesty or of a fear that the Court had uncovered a central problem in plaintiffs' case since Ray Sawyer, the attorney for plaintiffs who was orchestrating the proces of obtaining federal funding for the proposed employee purchase, was present in the courtroom, and, along with Mr. Lynd, was allowed to address the Court directly. In any event, given the fact that this Court could have compelled plaintiff to present all its evidence during the March trial in Youngstown, it was not unreasonable to ask merely that the Court be advised as to the current status of the action; and, in fact, Mr. Lynd and Mr. Sawyer were able to give a detailed factual presentation. This Court should note here its appreciation of Mr. Sawyer's candor and helpfulness in getting to the bottom line of the purchase negotiations.] Having considered the new details of the current status of the case, the Court has concluded that its initial presentiment was correct — this final claim is not ripe for adjudication and must be dismissed. The doctrine referred to as `ripeness' is one of the most evanescent of the threshold issues to be considered by a Court before reaching the merits. Professors Wright, Miller and Cooper explain The most general theme in denying adjudication is that the plaintiff's control means that the future events that would raise the offered questions may never happen. A major component of such determinations inevitably must be a uniquely case oriented evaluation of the practical probabilities, as near as the court's common sense and knowledge of human nature can make out. Wright, Miller and Cooper, 13 Federal Practice and Procedure § 3532 (1975). Based on plaintiffs' proffer on April 3, 1980, the current status of the employee attempt to purchase the mills is this: one hundred million dollars in loan guarantees has been set aside by the Economic Development Administration to support a viable steel project in the Mahoning Valley at the suggestion of the Undersecretary of the *13 Treasury. The workers, under the aegis of the Ecumenical Coalition, applied for this money and were rejected. More recently, the workers have incorporated under the name "Community Steel, Incorporated," and they have reapplied for those loan guarantees. There has been no final or preliminary commitment from EDA, although plaintiffs believe they can meet EDA's guidelines. Plaintiffs admit that, in all probability, they need the loan guarantees to buy the mills. Further, the most probable use for the guarantees would be to obtain an Urban Development Action Grant, a method of using local public or private financing to purchase or rebuild, where the local financing is obtained on the strength of the federal government's loan guarantee. Thus, even if federal agency action is favorable, plaintiff, doing business as Community Steel, Inc., would have to secure independent local financing. No such local financing was suggested in plaintiffs' proffer. This creates a number of possibilities: plaintiff might secure the federal guarantee and the local financing, make an offer to U. S. Steel, and be refused in favor of another purchaser of the steel facilities; plaintiff might secure all of the necessary funding and guarantees, make an offer to U. S. Steel, and be refused in favor of a purchaser, not of the steel facilities, but of the land and buildings for reasons unrelated to steel production; plaintiff might secure all the necessary funding and guarantees only to find that U. S. Steel will sell to no one; plaintiff might find that no government funding is necessary, in which case Mr. Roderick, the Chairman of the Board, has indicated he would sell the plant to plaintiffs [although the plant may not be for sale, or Mr. Roderick may have changed his mind since testifying]; plaintiff might be unable to obtain financing. All of these combinations are possible and the Court is at a loss to order the choices in terms of probability. In some cases, there would be no liability, in others, liability is arguable. Finally plaintiff, has not suggested that a declaratory judgment from this Court would affect the obtaining of a letter of intent from EDA, which would be essential to any closer clarification of the ambiguities presented above. One final consideration is that this antitrust issue would require an analysis of specific intent to monopolize on the part of defendant. Byars v. Bluff City News Co., Inc., 609 F.2d 843 (6th Cir. 1979). Also, there would be a need for consideration of possible valid business purposes as a defense. Id. These two issues could hardly be seriously entertained when the defendant is unsure as to the nature of the offer it is alleged to refuse. An offer to buy is not just the final money amount — it is a package of financing, as every home buyer knows. Defendant must be aware of the financing package made by the workers, and must reject that offer before any court can seriously deal with allegations of specific intent to monopolize. The case is not ripe to be heard and is therefore dismissed. Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). IT IS SO ORDERED.

651 So.2d 195 (1995) ABOVE ALL DRYWALL and FACCA, Appellants, v. James SHEARER, Appellee. No. 93-0124. District Court of Appeal of Florida, First District. February 24, 1995. Rehearing Denied March 27, 1995. H. George Kagan and Helene H. Morris, of Miller, Kagan and Chait, West Palm Beach, and John E. McLain, III and Mark S. Spangler of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for appellants. Frederick Daniels, Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellee. BARFIELD, Judge. Above All Drywall and Florida Air Conditioning Contractors Association (E/SA) have appealed an order of the judge of compensation claims (JCC) in which the JCC found the claimant's Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig's disease) condition to be compensable. We reverse and remand for further proceedings. The claimant had worked for the employer for several years as a drywall finisher. On June 14, 1990, he felt a sharp pain in his back as he bent over to pick up a scaffold board. The claimant saw a chiropractor on two occasions. When his discomfort did not improve, the claimant began treatment in September of 1990 with Dr. Bloome, an osteopath. At this time, his symptoms had progressed to include atrophy of the right arm and a peculiar *196 rash. After testing and consultations with Dr. Farber, a neurologist, the claimant was diagnosed in December of 1990 as suffering from ALS. When the claimant initially reported a minor back injury on September 21, 1990, the E/SA accepted the injury as compensable. The E/SA discontinued benefits after the diagnosis of ALS and the claimant filed claims for certain benefits, which included temporary partial disability from June 17, 1990 to the date of the hearing, wage loss benefits post maximum medical improvement, continued treatment by Dr. Bloome, and attendant care. The JCC accepted the testimony of Dr. Bloome, the treating osteopath, and Dr. Sabow, a neurologist with a general practice in South Dakota, whose depositions were introduced. Dr. Bloome and Dr. Sabow each stated that with all probability, the low back injury that claimant suffered at work while lifting the scaffold was most likely the cause of the onset of the ALS. Both Dr. Sabow and Dr. Bloome stated that their opinions were based on their experience of seeing trauma which is followed by what turns out to be ALS and on epidemiological studies which show a significant percentage of injuries preceding ALS. The JCC noted that Dr. Sabow's explanation of the trauma/ALS relationship is well reasoned, and did not contradict the testimony of Drs. Tandan, Robert, or Farber, all of whom are also neurologists. Each of these neurologists, however, testified that no one knows what causes ALS. Although each of these neurologists noted that one theory of causation is trauma, they also testified that studies regarding this theory involve severe trauma, such as having a hand caught in machinery or being struck by lightning, not the type of trauma incurred by the claimant. Dr. Robert testified that ALS is "a disease that we do not understand regarding what is the mechanism, but certainly we do not associate this condition with any type of trauma or injuries." He was not aware of any scientific evidence which links trauma to ALS. Each of these neurologists also noted that epidemiological studies indicate an association rather than causation;[1] because ALS is a degenerative disease which causes weakness, it is not uncommon for a person to experience some type of trauma due to weakness before a diagnosis of ALS is made. The E/SA presented the testimony of Dr. Munsat, a neurologist who has studied ALS, including causation of the disease, for approximately thirty years and who sees approximately 250 ALS patients each year. Dr. Munsat testified that there is only one known cause of ALS, which is genetic. He stated that in ninety percent of the cases, there is no known cause. Dr. Munsat noted that there were two active theories as to the cause of ALS. One theory is that it is caused by an immunologic event and the second is that it is caused by a toxin in the blood called glutamate. He stated that beyond those two active hypotheses, there are a number of other speculations regarding causation, including trauma, but that there was little, if any, scientific support for these theories. Dr. Munsat expressed the opinion that there is no scientific evidence that trauma is a causative factor in ALS. The opinions relied upon by the JCC to support the finding of causation, expressed by the treating osteopath and the neurologist with a general practice in South Dakota, appear incredible in light of substantial evidence that except for those cases in which the disease is genetic there is no known cause of ALS. The E/SA essentially argue that the opinions relied upon by the JCC are not supported by or based on credible evidence. The E/SA, however, made no objections to, or motions to strike, the testimony for lack of competency. The competency issue, therefore, has not been properly preserved for appellate review. Roose & Griffin Landscape Contractors v. Weiss, 558 So.2d 102 (Fla. 1st DCA 1990). The E/SA ask this court to reject the opinions relied upon by the JCC notwithstanding the failure to object because those opinions amount to no more than junk science, i.e., they are so insubstantial as to provide no evidentiary support for *197 the JCC's finding of causation. See De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957). It is not yet necessary for this court to weigh into this determination because we are sending the case back to the JCC who will have another opportunity to weigh the evidence. We conclude that it is necessary to remand this matter for further proceedings. The JCC rejected the testimony of Dr. Munsat for several reasons, none of which are legally sound. The JCC first noted that Dr. Munsat was called by the E/SA and it was therefore not surprising that his testimony was that there was no causal relationship between trauma and ALS. Dr. Bloome, however, was called by the claimant and Dr. Sabow's deposition was taken and submitted by the claimant. The JCC also noted that the circumstances of Dr. Munsat's payment (four hundred dollars per hour fee, portal to portal from Boston, including his time asleep, which equates to approximately $12,000) led him to place less reliance on his testimony than his credentials would otherwise dictate. The JCC made no mention, however, of the fact that Dr. Bloome was owed approximately $48,000. Dr. Bloome had also made attempts to get financial assistance for the claimant from various entities. There is no apparent source from which this bill can be paid if the claim is not approved. Another reason asserted by the JCC for rejecting Dr. Munsat's opinion was that his opinion conflicted with that of Dr. Tandan. During Dr. Munsat's testimony, the JCC inquired if he disagreed with Dr. Tandan regarding severe trauma such as electrical shock being a causative factor. Dr. Munsat replied that he thought that he and Dr. Tandan had no basic disagreement and that there was a big difference between trauma as described in the literature compared to the injury in the present case. Dr. Munsat knew of no support for the theory that persons could injure themselves by picking up an object and that such an injury would cause ALS, and he stated that the relationship between trauma and ALS was nothing more than a hypothesis, not yet proved as scientific fact. Dr. Munsat's testimony did not conflict with the testimony of Dr Tandan in any material respect. Dr. Tandan testified that there is no scientific evidence which conclusively shows that trauma causes ALS. Dr. Tandan also stated that it is impossible to be certain whether trauma plays a part in the genesis of the disease; the only way one could be certain an event is responsible for a motor neuron disease like syndrome is if there is local trauma of a severe magnitude such as being struck by a bolt of lightning in the arm and then developing symptoms within a month. Both Dr. Munsat and Dr. Tandan were of the opinion that the type of injury the claimant suffered would not cause or contribute to the onset of ALS. It is not clear from the record, and the JCC does not adequately explain, why the opinions of an osteopath and a neurologist with a general practice would be accepted over the opinions of other experts, including those who study the causation and treatment of ALS. It is clear from the record that the claimant, who has since died, presented a compelling portrait for sympathy, and the medical expense for treating ALS is staggering. Visiting this expense on the employer must be supported by evidence which is both competent and substantial. The order on appeal is reversed and the matter is remanded for further proceedings. WOLF, J., concurs. ERVIN, J., dissents, with written opinion. ERVIN, Judge, dissenting. I respectively dissent and would affirm the order because I do not find, on this record, any need for remand to the judge of compensation claims (JCC) for further findings. The right of an appellate court to reverse and remand a compensation order so that it may be clarified is derived from section 440.25(3)(e), Florida Statutes (1989), providing in part: The order making an award or rejecting the claim, referred to in this chapter as a "compensation order," shall set forth the findings of ultimate facts and the mandate; and the order need not include any *198 other reason or justification for such mandate. (Emphasis added.) In Brown v. Griffin, 229 So.2d 225 (Fla. 1969), the Florida Supreme Court construed the above provision,[1] which had been amended in 1967. Among other things, the court noted that the legislature had added the word "ultimate" before the word "facts" and eliminated the prior provision requiring a compensation order to set forth "other matters pertinent to the questions at issue." Id. at 226. It continued that in enacting the amended statute, the legislature intended to reduce the unnecessary length of compensation orders "to a concise but complete statement of the findings of fact ... on all factual issues in the case," but still required "sufficient detail to permit application of the substantial competent evidence rule but without undue elaboration." Id. at 228. In Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla. 1973), cert. denied, 292 So.2d 19 (Fla. 1974), after the Industrial Relations Commission was reorganized, the court modified Brown to require even less detail, stating: "We now hold the Judge of Industrial Claims need make only such findings of ultimate material fact upon which he relies, as are sufficient justification to show the basis of an award or a denial of a claim." Id. at 284.[2] Based upon my examination of the JCC's findings, I conclude that the JCC did all that he was required to do by the statute: he set forth findings of ultimate facts which were supported by competent, substantial evidence (CSE). The CSE rule means that a compensation order will be upheld if there is any CSE to support the judge's decision. See Trujillo v. Southern Wine & Spirits, 525 So.2d 481 (Fla. 1st DCA 1988). Obviously, there was some evidence undergirding the order on review, based upon the conflicting opinion testimony of Drs. Bloome and Sabow. The rule is clear, of course, that a JCC has the authority to accept the opinion of one physician over that of others, and generally a judge need not explain why he or she has accepted the testimony of one doctor and rejected that of another. Buro v. Dino's Southland Meats, 354 So.2d 874 (Fla. 1978); Ate Fixture Fab v. Wagner, 559 So.2d 635 (Fla. 1st DCA 1990). A recognized exception to the above rule is that the JCC should give reasons for such rejection if the reason is either not apparent from the record or it appears that the JCC has ignored or overlooked critical evidence in the record. Allied Parcel Delivery v. Dixon, 466 So.2d 439 (Fla. 1st DCA 1985); Poorman v. Muncey & Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983). In my judgment, neither situation applies to the order now on review. The majority's opinion directing remand focuses largely on the JCC's findings rejecting Dr. Munsat's medical opinion that there was no causal relationship between claimant's industrial injury and his ALS. If I were to confine my examination only to the majority's description of the explanation given in the order, i.e., the E/SA had paid Dr. Munsat a substantial amount of money to testify in its behalf, I could agree that such findings are insufficient, for the reasons outlined in the majority's opinion. The JCC, however, also found that Dr. Munsat was evasive and that his testimony conflicted with that of Dr. Tandan, an expert also called by the E/SA. As Dr. Munsat testified in person, the JCC's vantage point in making such a finding is clearly superior to our own in that he, as trier-of-fact, was in a position to assess the demeanor and candor of the witness. The record moreover supports the JCC's characterization of Dr. Munsat's testimony as evasive. The JCC first made such comment during Dr. Munsat's cross-examination, when the doctor discussed studies that had failed to establish a causal link between trauma and ALS, yet refused to concede that any study established that trauma is not a causative factor. In making his observation regarding Dr. Munsat's candor, the JCC had before *199 him the deposition testimony of another witness, Dr. Rup Tandan, who, like Dr. Munsat, is a neurologist. Unlike Dr. Munsat, Dr. Tandan stated that research exists which supports the view that there is a causal relationship between severe trauma and ALS. Clearly, then, Dr. Tandan's testimony in that regard conflicted with Dr. Munsat's. Indeed, Dr. Tandan stated that a muscular soft tissue strain of the back — the condition for which claimant was diagnosed — could constitute a severe strain or trauma, depending on how much pain or discomfort the patient suffers, but it was his understanding that the back injury which claimant had sustained did not involve severe trauma. Dr. Tandan's perception of claimant's injury, however, had no supporting factual foundation; therefore, the JCC could properly reject that portion of his testimony. The rule is firmly established that an expert witness's opinion must be based on facts or inferences supported by the record, otherwise the opinion will be rejected as speculative. See Urling v. Helms Exterminators, Inc., 468 So.2d 451, 456 (Fla. 1st DCA 1985). Dr. Tandan based his opinion regarding the nature of claimant's injury on a letter written by Dr. Haselden — the chiropractic physician who had treated Shearer during the first three months following his injury — describing claimant's condition as "lumbosacral discomfort," which responded well to treatment. Dr. Haselden's characterization apparently caused Dr. Tandan to conclude that Shearer experienced only mild to moderate trauma. The letter, however, described claimant's back condition before claimant suffered his industrial injury of June 14, 1990. Moreover, the letter was the only evidence of claimant's back affliction which Dr. Tandan could have conceivably relied on, as all of Dr. Haselden's remaining records pertaining to claimant were destroyed by a fire in October 1991. Consequently, the description of lumbosacral discomfort, on which Dr. Tandan relied, did not relate to claimant's compensable injury. Moreover, Dr. Tandan's understanding of the pain claimant endured following his industrial injury is not supported by other evidence in the record. For example, in a "Statement of Injured" for Executive Risk Consultants, claimant wrote that while lifting a scaffold board "something happened in my back that caused a lot of pain that felt like my spine was pushed together." Dr. Bloome, an osteopath, who began treating claimant in September of 1990, recounted that claimant had informed him that when he sprained his back he "felt he had a shock go up his spine." The JCC gave additional reasons why he accepted the opinion testimony of Drs. Bloome and Sabow over the contrary opinions of the other physicians. For instance, Dr. Bloome, who testified to the causal link, actively treated claimant and stated that everything he had read pointed to injury as being a predominant cause of ALS, and there appeared to be no other causative factor other than the injury. Dr. Sabow, who linked claimant's ALS with his lifting incident, treats patients both before and after they have developed ALS, whereas Dr. Munsat sees them only after they have contracted it. Dr. Sabow testified that he arrived at his opinion from his own experience, and that he has been practicing 20 years in the field of neurology. He explained that he and Dr. Munsat come from two different perspectives in the practice of medicine. He is in the field treating the acute cases, and is frequently the first neurologist seen by patients with this condition, whereas Dr. Munsat practices and conducts research within a university setting on patients already diagnosed. The majority correctly notes that the E/SA did not preserve for appellate review the issue of the competency of claimant's experts to offer their opinion on causation.[3] Nevertheless, there appears to be an underlying sentiment in the majority's opinion implying that the testimony offered by the claimant's experts lacks the substantial character of that introduced by the E/SA, and therefore provides questionable evidentiary support for *200 the JCC's finding of causation. I note specifically that the majority states, ante at 197: "It is not yet necessary for this court to weigh into this determination because we are sending the case back to the JCC who will have another opportunity to weigh the evidence." I consider that it would be inappropriate for this court, either at this stage or at any time following remand, to weigh the substantiality of the evidence presented in the case below, which is, of course, exclusively the province of the JCC. See Batka v. Duff's Smorgasbord, 560 So.2d 377 (Fla. 1st DCA 1990). The question of the substantial character of the evidence might be different if the issue of claimant's experts' competency had been preserved, but it has not, and, although the E/SA argues in much of its brief regarding their lack of qualifications,[4] these arguments should now be conclusively deemed to be waived. Roose & Griffin Landscape Contractors v. Weiss, 558 So.2d 102 (Fla. 1st DCA 1990). Because there is clearly CSE to support the JCC's findings, I would simply affirm the order. NOTES [1] In fact, Dr. Bloome continually referred to the fact that the epidemiological studies showed a high correlation between trauma and later onset of ALS. [1] Then section 440.25(3)(c), Florida Statutes. [2] The supreme court's interpretation of the statute has been restated by this court in a number of different ways. See, e.g., Grace v. Collier County Sch. Bd., 552 So.2d 961, 963 (Fla. 1st DCA 1989); Taylor v. Stanley Indus. Corp., 528 So.2d 1292, 1293 (Fla. 1st DCA 1988); Curry v. Miami Dolphins, Ltd., 522 So.2d 1010, 1011-12 (Fla. 1st DCA 1988). [3] As all of claimant's medical testimony was submitted by deposition, without objection, we are required to assume that both of claimant's experts are fully qualified to testify about the causative link between trauma and ALS. Cf. Clair v. Glades County Bd. of Comm'rs, 649 So.2d 224 (Fla. 1995). [4] See, for example, "[c]laimant's superficially credentialed experts"; the E/SA's "internationally known expert with `50 or 60' articles specifically related to ALS"; and extensive references to their own experts' qualifications.

482 S.E.2d 396 (1997) 225 Ga. App. 29 WOODS et al. v. DEPARTMENT OF TRANSPORTATION. No. A96A2412. Court of Appeals of Georgia. February 14, 1997. Reconsideration Denied March 3, 1997. Certiorari Granted June 6, 1997. Vinson, Talley, Richardson & Cable, James G. Richardson, Michael R. Wing, Dallas, for Appellants. Michael J. Bowers, Attorney General, George P. Shingler, Daniel M. Formby, Deputy Attorneys General, Charles A. Evans, for Appellee. BEASLEY, Judge. Pursuant to OCGA § 32-3-1 et seq., the Department of Transportation (DOT) filed this condemnation petition for the property of Woods and others. Woods' professional corporation was added as a party. These condemnees were dissatisfied with the $76,000 deposited into the court registry by the condemnor as just and adequate compensation, so they appealed pursuant to OCGA § 32-3-14. A jury awarded $162,000, and final judgment was entered. The condemnees then moved for attorney fees under OCGA § 9-15-14, which the court denied on the ground that this section is inapplicable in eminent domain cases. We granted the condemnees' application for discretionary appeal. 1. In DeKalb County v. Trustees, Decatur Lodge, etc., 242 Ga. 707, 251 S.E.2d 243 (1978), as here, the condemnee's position was that it was entitled to an award of attorney fees to compensate it for the expenses it had to incur in obtaining the fair *397 market value of the property taken, in that the factfinder had awarded more for the property than the condemnor had offered. The question was whether the words "just and adequate compensation" contained in Art. I, Sec. III, Par. I of the 1976 Georgia Constitution were to be judicially interpreted to include the condemnee's attorney fees and litigation expenses. Overruling prior decisions, the Supreme Court answered that question in the negative, reasoning that a proper construction of our Constitution does not require such award and this is a public policy matter for legislative determination. The constitutional provision interpreted in DeKalb County was carried forward in subsection (a) of Art. I, Sec. III, Par. I of the 1983 Constitution. Subsection (d) was added: "The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney's fees, incurred by the condemnee in determining just and adequate compensation." Cobb County v. Sevani, 196 Ga.App. 247, 395 S.E.2d 572 (1990). The General Assembly has not enacted a specific law on that subject. But "[i]n 1986, the General Assembly enacted OCGA § 9-15-14 which provides that, under certain circumstances, a trial court is authorized to award attorney's fees in `any civil action....'" Id. The meaning of "any civil action" has been given wide berth. See Contract Harvesters v. Clark, 211 Ga. App. 297, 299(2), 439 S.E.2d 30 (1993); DeKalb County v. Gerard, 207 Ga.App. 43, 427 S.E.2d 36 (1993) (distinguishing as excluded only criminal and quasi-criminal proceedings). This is for the reason that "[i]n all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter ...." OCGA § 1-3-1(b). Subsection (a) of OCGA § 9-15-14 mandates attorney fees for "any party against whom another party has asserted a claim, defense or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position." Subsection (b) of OCGA § 9-15-14 allows a discretionary award of attorney fees if the court finds "that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures...." In both Sevani and Dept. of Transp. v. Franco's Pizza, etc., 200 Ga.App. 723, 726(5), 409 S.E.2d 281 (1991), the question of whether OCGA § 9-15-14 applies in state-initiated condemnation proceedings was raised but not decided. We reversed the award of attorney fees in Sevani because it was for pre-litigation activities, to which § 9-15-14 by its plain language is inapplicable. In Franco's Pizza, the trial court awarded attorney fees based on actions by the condemnor before this Court. We reversed, holding among other things that implicit in the statutory language is that a court may impose attorney fees and litigation expenses for proceedings before that court. Id. at 728, 409 S.E.2d 281. In this case, the trial court reasoned that the General Assembly did not intend OCGA § 9-15-14 to apply in eminent domain cases, because the 1983 Constitution specifically authorizes the General Assembly to provide by law for the payment of attorney fees by the condemnor in such cases, and no specific law has been enacted. But § 9-15-14 applies "in any civil action," and a condemnation proceeding is a civil action. Griffin v. State of Ga., 211 Ga.App. 750, 440 S.E.2d 483 (1994). The plain and clear language of the statute establishes the intent of the General Assembly that it apply in condemnation proceedings. See OCGA § 1-3-1(a). The term is all inclusive. The designation is one relating to type of action, not to character or identity of party. Thus, its application to the DOT as condemnor is authorized. See OCGA § 1-3-8. 2. The condemnees sought mandatory attorney fees under subsection (a) of OCGA § 9-15-14 because of the condemnor's failure to tender additional sums into the court registry after its appraiser increased his appraisal *398 to $90,000 during litigation but before trial, and on a discretionary basis under subsection (b) because of the jury's award of substantially more money than the condemnor offered. If the condemnees were dissatisfied with the amount deposited, they could have utilized OCGA § 32-3-15 to file a petition for interlocutory hearing before a special master on the issue of whether that amount was sufficient compensation. For this reason, if for no other, they are not entitled to attorney fees under subsection (a) based on the amount deposited. However, they did exercise their right of appeal to a jury pursuant to OCGA § 32-3-14. The trial court can award attorney fees to the condemnees in its discretion under subsection (b) on the ground that the condemnor, by offering less than half the amount found by the jury to represent just and adequate compensation, unnecessarily expanded the proceedings by improper conduct. The judgment is reversed and the case remanded for the trial court to decide whether condemnees are entitled to an award of attorney fees under subsection (b). See generally Childs v. Catlin, 134 Ga.App. 778, 782, 216 S.E.2d 360 (1975). Judgment reversed. BIRDSONG, P.J., and BLACKBURN, J., concur.

450 N.W.2d 145 (1990) David C. WARTHAN, et al., individually and on behalf of themselves as stockholders of Midwest Consolidated Insurance Agencies, Inc., Appellants, v. MIDWEST CONSOLIDATED INSURANCE AGENCIES, INC., et al., Respondents. No. C1-89-925. Court of Appeals of Minnesota. January 9, 1990. *146 John L. Tambornino, Sahr, Kunert & Tambornino, Minneapolis, for appellants. Susan E. Barnes, Curtin & Barnes, Minneapolis, for respondents. Heard, considered and decided by PARKER, P.J., and FOLEY and SCHUMACHER, JJ. OPINION PARKER, Judge. David Warthan and Mary Knettel brought this action seeking involuntary dissolution and an accounting of a closely held corporation. They complained that individual respondents misappropriated the assets of Midwest Consolidated Insurance Agencies, Inc. (MCIA). They appeal the trial court's finding that MCIA was not a corporation and therefore not subject to the dissolution proceedings under the Minnesota Business Corporation Act (MBCA). We reverse and remand to the trial court for an accounting and involuntary dissolution of the corporation. FACTS Appellants David Warthan and Mary Knettel (St. Cloud group) and respondents Clifford Koltes, James McMahill and Thomas Kellin (Minnetonka group) agreed to combine their respective property casualty insurance agencies into one entity, MCIA. Each group contributed $6,000 and agreed each would own 50 percent of the new agency. Each group agreed to transfer its book of business (policies written and serviced by the agency) into the new corporation, to write renewal policies in the MCIA name, and to seek new business for MCIA. Articles of incorporation were filed and the secretary of state issued a corporate charter for MCIA. Although several contracts to purchase the books of business of other agencies were entered into on behalf of MCIA, the parties had difficulty combining their original operations. No stock was ever issued and no formal meetings were held. Although proposed bylaws were drafted, none were approved. There was considerable friction between the two groups, and eventually they agreed to maintain separate operations. The St. Cloud group serviced their original book of business out of the St. Cloud office, and the Minnetonka group serviced their original book of business out of the Minnetonka office. The several agencies which MCIA had contracted to purchase were serviced out of the Minnetonka office. The St. Cloud group has received no information concerning the operation of MCIA since several months after the separation. The Minnetonka group attempted to buy the St. Cloud group's share of one of the purchased agencies, Homebeck. Warthan refused this offer because he did not want to dissolve MCIA. The Minnetonka group then formed MCI, Inc. The book of property casualty business which was owned by MCIA was transferred to MCI. That transfer included the books of business that were purchased from Homebeck and two other agencies. The St. Cloud group did not agree to this transfer. The St. Cloud group filed this action after the Minnetonka group, by their attorney, informed Warthan and Knettel that *147 they were severing their "joint venture" relationship. The Minnetonka group responded to this suit by claiming that MCIA was not a corporation, that Warthan was paid for his services in negotiating the purchase of other agencies, and that the St. Cloud group never contributed to the operating expenses of MCIA. The case was tried without a jury and judgment was ordered in favor of the Minnetonka group. ISSUE Did the trial court err in finding that MCIA is not a corporation, and does the evidence support the court's refusal to order an accounting and involuntary dissolution of MCIA? DISCUSSION The scope of review of a case heard by the trial court sitting without a jury is limited to a determination of whether the trial court's findings are clearly erroneous, either without substantial evidentiary support or based on an erroneous conclusion of law.[1]Reserve Mining Co. v. State, 310 N.W.2d 487, 490 (Minn.1981). This court does not defer to the trial court's ultimate conclusions of law. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 354 (Minn. 1977). The St. Cloud group briefed only one issue: whether the trial court erred in concluding that MCIA is not a corporation. The Minnetonka group argues that even if the trial court erred in concluding that MCIA is not a corporation, its decision must be sustained because it rests on independent findings of fact and conclusions of law. Liebsch v. Abbott, 265 Minn. 447, 457, 122 N.W.2d 578, 585 (1963). We conclude, however, that the trial court's decision is dependent on resolution of the issue of MCIA's corporate status. To support its denial of an order for accounting and involuntary dissolution of MCIA, the trial court made the following conclusions of law: 1. MCIA was not a closely held corporation in law or fact because it did not conform to MSA § 302A.171, subd. 2, et seq. 2. Because the corporate formalities required by MSA § 302A et seq. were not observed, defendants Kellin, Koltes and McMahill did not violate any fiduciary duties as officers and directors of MCIA in transferring its assets to MCI Inc. 3. The defendants Kellin, Koltes and McMahill did not violate MSA § 302A.751, subd. 3a, nor MSA § 302A.751, subd. 1(b)(2), in relation to plaintiffs Warthan and Knettel. The defendants did not act fraudulently, illegally or prejudicial in their manner towards plaintiffs. 4. MCIA was a defectively formed corporation lacking the formalities both practical and theoretical which define a corporation and neither plaintiff or defendant were unjustly enriched in any manner or form upon the split up of MCIA. In determining that MCIA is not a corporation, the trial court looked beyond the statutory requirements for registering the existence of a corporation and determined that MCIA is neither a de jure nor a de facto corporation. The "corporate existence begins when the articles of incorporation are filed with the secretary of state accompanied by a payment" of the incorporation and filing fees. Minn.Stat. § 302A.153 (1982). [I]t [is] clear that the filing creates an irrefutable presumption, except as against the attorney general under section 302A.757, that the corporation is and has been incorporated in this state. Minn.Stat.Ann. § 302A.155, Reporter's Notes (West 1985). Further, unless the articles of incorporation express otherwise, the effective date coincides with filing so that there can be no doubt that all subsequent corporate acts are the acts of a de jure corporation. This is important *148 because the doctrine of de facto corporations is inapplicable in this state after enactment of this act. Minn.Stat.Ann. § 302A.153, Reporter's Notes (West 1985); see also Minn.Stat.Ann. ch. 302A Advisory Committee Report, at XXIV (West 1985) (noting the end of de facto corporations after enactment of the new corporations act).[2] Articles of incorporation were filed and the required fee paid on behalf of MCIA; as a matter of law, MCIA is a corporation and the trial court erred in concluding otherwise. The trial court determined that because MCIA failed to follow certain organizational formalities listed in Minn.Stat. § 302A.171, subd. 2 (1982), it was a defectively formed corporation. Because of this defect, the court found that other provisions of the MBCA did not apply to MCIA and its officers and shareholders. Minn.Stat. § 302A.171, subd. 2, requires that the governing body of a corporation take actions necessary to complete the organization of the business. No specific time requirements are required and no penalty is imposed for failure to complete the organization of the corporation. The trial court has read a penalty provision into this section where none exists. It has penalized certain owners of MCIA by refusing to apply the MBCA. Moe v. Harris, 142 Minn. 442, 172 N.W. 494 (1919), presents a similar fact situation. There the court found that a de jure corporation existed even though no bylaws were adopted, no meetings were held, no officers were elected, no books were kept and no stock was issued. Id. at 444, 172 N.W. at 495. This case is still applicable today under the MBCA. The MBCA provides that "[a] corporation may, but need not, have bylaws." Minn.Stat. § 302A.181 (1988). Annual or otherwise regular meetings of the shareholders need only be held if required by the articles or bylaws or by demand. Minn.Stat. § 302A.431 (1988). Unless provided for in the articles or bylaws, meetings of the board are not required unless called by a board member. Minn. Stat. § 302A.231 (1988). MCIA's articles do not require regular meetings. There is no evidence that any shareholder or director demanded or called a meeting. Therefore, the trial court erred in finding a deficiency in MCIA's failure to follow these particular organization guidelines. Further, the trial court's findings of fact demonstrate that MCIA was more than a corporation in name only. Among other things, it entered into contracts to service and purchase the books of business of three insurance agencies, paid certain salaries and maintained an office in Minnetonka. On similar facts, the Virginia Supreme Court found a de jure corporation and affirmed an order for an accounting. Hill v. Hill, 227 Va. 569, 318 S.E.2d 292, 297 (1984). The trial court's second conclusion of law is expressly based on its determination that MCIA is not a corporation; because erroneous, it must fail. This second conclusion concerns the fiduciary duties owed by the Minnetonka group to the St. Cloud group. As these parties were partners in a closely held corporation, they had a fiduciary duty to deal "openly, honestly and fairly" with each other. Evans v. Blesi, 345 N.W.2d 775, 779 (Minn.Ct.App.1984). Although conclusion number three is not expressly predicated on MCIA's corporate status, it necessarily follows from that conclusion. The evidence does not otherwise support the conclusion that the Minnetonka group "did not violate section 302A.751" of the MBCA. Minn.Stat. § 302A.751 (1988) provides for involuntary dissolution or equitable relief in an action by a shareholder when it is established that *149 those in control of the corporation have acted fraudulently, illegally, or in a manner unfairly prejudicial toward one or more shareholders in their capacities as shareholders, directors, or officers * * *. Id., subd. 1(b)(2). In determining whether to order equitable relief or dissolution involving a closely held corporation, the court shall take into consideration the duty which all shareholders in a closely held corporation owe one another to act in an honest, fair and reasonable manner in the operation of the corporation and the reasonable expectations of the shareholders as they exist at the inception and development during the course of the shareholders' relationship with the corporation and each other. Id., subd. 3a. Warthan, on behalf of MCIA, negotiated the purchase of the books of business of several insurance agencies. The Minnetonka group then unilaterally severed its relationship with Warthan and the St. Cloud group in respect to the operation of these newly acquired assets. The Minnetonka group controlled the operation of these assets and eventually transferred them from MCIA to another corporation (owned by the Minnetonka group) without consent of the St. Cloud group. This was in violation of Minn.Stat. § 302A.661, subd. 2 (1988) (a corporation can transfer all or substantially all of its assets, not in the usual course of business, only with stockholder approval). The Minnetonka group also controlled the books and records of MCIA and denied the St. Cloud group access to them in violation of Minn.Stat. § 302A.461, subd. 4 (1988).[3] The Minnetonka group therefore acted illegally and prejudicially toward the St. Cloud group, the co-owners of MCIA. Finally, the trial court's conclusion number four, that the Minnetonka group was not unjustly enriched by the split-up of MCIA, is premature. Unjust enrichment cannot be determined until there has been an accounting. DECISION We reverse and remand to the trial court for an accounting and such other equitable relief the trial court deems just and reasonable. Reversed and remanded. NOTES [1] On the facts of this case, we reach the same result regardless of the scope of our review; because there is some dispute on the scope of review, we apply the narrower standard applicable to appeals from a judgment. [2] The use of advisory committee reports is recognized in this state as a tool for ascertaining legislative intent. State v. Adams, 295 N.W.2d 527, 537 (Minn.1980) (Wahl, J., dissenting). The reporter's notes to these sections were written in conjunction with enactment of the MBCA and the advisory committee expressly recognized that "all the provisions of the proposed new business corporation act * * * is analyzed in our Reporter's section-by-section analysis." Advisory Committee Report, at XXI. [3] We note that these sections of the MBCA refer to shareholders. When a corporation has not issued shares and ownership is established by other facts, the owners are nevertheless entitled to proportionate control of the corporation, a proportionate share of the benefits of its operations and an accounting for wrongful denial of these interests. Hill v. Hill, 227 Va. 569, 318 S.E.2d 292, 297 (1984). The Hill court looked at the formation of the corporation in determining ownership interest. The trial court in this case found that the two groups intended a 50/50 ownership of MCIA and each initially contributed $6,000 to MCIA. We note that in Hill the Virginia statute governing formation of corporations is based on the Model Business Corporation Act, and there is no substantive difference between the Model Act and Minn.Stat. §§ 302A.153; 302A.155.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6603 WILLIAM LESTER HOLDEN, Petitioner - Appellant, versus MARCUS HUGHES, Superintendent for Craggy Cor- rectional Institution, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Robert D. Potter, Senior District Judge. (CA-97-185-1-P) Submitted: September 10, 1998 Decided: September 29, 1998 Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. David Grant Belser, BELSER & PARKE, Asheville, North Carolina, for Appellant. Clarence Joe DelForge, III, OFFICE OF THE ATTORNEY GEN- ERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant seeks to appeal the district court’s order denying his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). We have reviewed the record and find that Appellant’s petition was not timely filed in the district court. See Brown v. Angelone, ___ F.3d ___, 1998 WL 389030, at *6 (4th Cir. July 14, 1998). Accordingly, we deny a certificate of appealability and dis- miss the appeal. 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. DISMISSED 2 

                                                             11th Court of Appeals                                                                   Eastland, Texas                                                                         Opinion   Aric Danyl White Appellant Vs.                   No. 11-03-00026-CR -- Appeal from Collin County State of Texas Appellee   After the trial court denied his motion to suppress evidence, Aric Danyl White pleaded guilty to the state jail felony offense of possession of more than 4 ounces but less than 5 pounds of marihuana.  The trial court deferred the adjudication of guilt and placed appellant on community supervision for 5 years.  The terms of his community supervision required appellant to serve 120 hours of community service, complete the substance abuse felony program, and obtain his college degree within 6 months of his release from the substance abuse felony program.  We affirm. In his three issues on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence because:  (1) the officer had no reasonable suspicion to stop appellant=s vehicle; (2) the officer was not engaged in the community caretaking function when he stopped appellant; and (3) the officer had no probable cause to detain appellant once the officer determined that he was not going to arrest appellant on unconfirmed warrants.  The State contends that it is not relying on the community caretaking exception; therefore, we need not address that as a reason for the officer stopping appellant.                                                                 Standard of Review We review a trial court=s denial of a motion to suppress for abuse of discretion.  Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App.1999).  In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical fact as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997).  We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Guzman v. State, supra at 89.  Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category.  Guzman v. State, supra.  When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling Aturns@ on an evaluation of credibility and demeanor.  Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998).  A question Aturns@ on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.  Loserth v. State, supra.  We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case.  Guzman v. State, supra.                                                      Reasonable Suspicion for the Stop A routine traffic stop closely resembles an investigative detention.  Berkemer v. McCarty, 468 U.S. 420 (1984).  Law enforcement officers may stop and briefly detain a person for investigative purposes on less information than would be required to support a probable cause determination.  Terry v. Ohio, 392 U.S. 1, 21-22 (1968).  The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex.Cr.App.1997).  The only witness at the hearing on appellant=s motion to suppress, Sergeant Investigator Andrew Hawkes with the Collin County Sheriff=s Office, testified that when he stopped appellant he was in a marked patrol vehicle.  Sergeant Hawkes stopped appellant on U.S. Highway 75 northbound near the Foster Crossing Exit in Collin County.  Sergeant Hawkes said: I observed the vehicle crossing over the B both solid white lines on the right side and the center dividing lines and traveling at a decreased speed for the speed limit there.   Sergeant Hawkes testified that appellant was traveling at 45-50 miles per hour in a 60 mile per hour zone.  Sergeant Hawkes also stated that he had been a certified peace officer for 102  years and that he had observed A[t]housands of cars on that highway.@ Much of appellant=s argument concentrates on the portion of the stop that was recorded by the camera in Sergeant Hawkes=s vehicle.  However, Sergeant Hawkes said early in his testimony: The initial reason for the stop probably wasn=t on [the film], but as soon as I had probable cause then I activated my camera.[1]   Sergeant Hawkes testified that he stopped appellant for Afailing to maintain a single lane and driving on the shoulder.@  Citing Bass v. State, 64 S.W.3d 646, 648 (Tex.App. - Texarkana 2001, pet=n ref=d), State v. Cerny, 28 S.W.3d 796, 800 (Tex.App. - Corpus Christi 2000, no pet=n), and Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App. B Austin 1998, pet=n ref=d), appellant argues that his failure to drive within a single lane did not constitute a violation of TEX. TRANSP. CODE ANN. ' 545.060(a) (Vernon 1999) because there was no evidence that his driving was unsafe.  Section 545.060(a) requires an operator on a roadway divided into two or more clearly-marked lanes for traffic to (1) drive, as nearly as practical, entirely within a single lane and (2) not move from the lane unless that movement can be made safely. The court in Bass held that the State had not presented evidence that Bass=s one lane change occurred in an unsafe manner; the court noted that the officer did not testify that, based on his experience, he subjectively suspected Bass of being intoxicated.   Hernandez involved a police officer stopping the driver after observing him swerve once 18 to 24 inches from the right lane into the adjacent left lane of traffic going the same direction.  The swerve in question was characterized as a slow drift over and back and was not a problem for any other vehicle.  The court in Cerny affirmed the trial court=s granting of the motion to suppress, expressly deferring to the trial court=s determination of the historical facts concerning the driver=s actions.  As in Cerny, we believe that the trial court was in a better position to determine the credibility and demeanor of Sergeant Hawkes, and we must defer to the trial court=s determination of the historical facts concerning the stop of appellant.  Guzman v. State, supra at 87.  As to whether there was anything unsafe about appellant=s weaving, Sergeant Hawkes testified: Sure there was.  He wasn=t maintaining a single lane and in a police officer=s standpoint, that=s not safe.  From my standpoint that=s not safe.   Sergeant Hawkes said that he was concerned about appellant=s driving:   If he was falling asleep, if he was intoxicated, if he was eating a hamburger and it was falling in his lap and he wasn=t paying attention.   The tape reflected that, after the stop, Sergeant Hawkes asked appellant:   Have you had any alcohol to drink?  You were weaving on the road, that=s why I stopped you.   Sergeant Hawkes did not recall how many times that appellant crossed over the center stripe between the two lanes.  Appellant points out that, during cross-examination, Sergeant Hawkes conceded that he did not think that appellant was intoxicated; however, Sergeant Hawkes apparently based this statement on his observations of appellant after the stop. The court in Cook v. State, 63 S.W.3d 924, 928-31 (Tex.App. - Houston [14th Dist.] 2002, pet=n ref=d), considered a motion to suppress similar to the one before us.  There, the court held that the officer was justified in stopping the defendant based on a reasonable suspicion that he was in violation of Section 545.060(a); the officer was also justified in stopping appellant based on a reasonable suspicion that appellant was driving while intoxicated.  We agree with  Cook that Section 545.060(a) does not permit a driver to weave across lanes of traffic so long as no other vehicles are in the vicinity.  Id. at 928; Gajewski v. State, 944 S.W.2d 450, 453 (Tex.App. B Houston [14th Dist.] 1997, no pet=n).  Weaving can be unsafe even if the driver does not come close to hitting another car while the officer is observing the driver.  U.S. Highway 75 is a major highway connecting Dallas and Tulsa, and the video showed a number of cars passing the scene of the stop.  The trial court believed Sergeant Hawkes=s testimony that appellant=s weaving was unsafe, and we defer to that finding.  We find that, based on the totality of Sergeant Hawkes=s testimony as to the facts and the rational inferences to be drawn from those facts, appellant=s driving behavior was sufficient to justify the officer in stopping appellant based on a reasonable suspicion that he was in violation of Section 545.060(a) and to raise a reasonable suspicion in the mind of a reasonable police officer that appellant was driving while intoxicated.  Appellant=s first issue is overruled.                                                       The Detention Was Reasonable Although appellant agreed that he consented to Sergeant  Hawkes=s request to search his car, appellant contends in his third issue that, even if the detention was appropriate, the purpose of the detention ended when Sergeant Hawkes made the determination that he was not going to arrest appellant on unconfirmed warrants.  Therefore, according to appellant, he should have been released, and no subsequent search should have taken place. Under Terry v. Ohio, supra, an investigative detention is reasonable if the officer=s action was justified at its inception and was reasonable related in scope to the circumstances that justified the detention.  Terry v. Ohio, supra at 19-20.  Thus, a traffic stop must last no longer than is necessary to carry out the purpose of the stop.  Florida v. Royer, 460 U.S. 491, 500 (1983); Davis v. State, 947 S.W.2d 240, 245 (Tex.Cr.App.1997).  However, once the purpose of the original detention has been effectuated, a continued detention may be supported by some additional reasonable suspicion.  Davis v. State, supra at 244-45. The detention lasted approximately 18 minutes before appellant consented to the search.  Sergeant Hawkes first asked appellant to step to the back of the car.  After asking to see appellant=s driver=s license, Sergeant Hawkes then asked appellant where he was going, and appellant replied that he had visited his mother in Dallas and was heading back to Muskogee, Oklahoma.  The passenger told Sergeant Hawkes that they were going to Haskell, Oklahoma.  Sergeant Hawkes then returned to his patrol unit to run a routine driver=s license and warrants check on appellant.  The check showed that appellant had some outstanding warrants out of the Dallas Police Department.  On the video, Sergeant Hawkes said that he A[felt] like he smells marihuana.@  Sergeant Hawkes called for a back-up unit.  Although at the hearing Sergeant Hawkes denied that he had requested a canine unit as his backup, the trial court correctly remembered that the video reflected that he had.  Sergeant Hawkes asked appellant for consent to search the car, and appellant gave his consent.  The officers found an assault rifle with a collapsible stock in the trunk and two pounds of marihuana, $11,100 in cash, and a .45 automatic handgun under the backseat of appellant=s car.  Appellant and his passenger were arrested. Officer Hawkes testified that the conflicting answers of appellant and his passenger and their behavior made him suspicious; the video reflected that he thought he smelled marihuana.  In Freeman v. State, 62 S.W.3d 883, 888 (Tex.App. B Texarkana 2001, pet=n ref=d), the court found that the  inconsistent answers between driver and passenger along with the odor of marihuana justified a continued detention.  Here, it is not even clear that the purpose of the original detention had been effectuated by Sergeant Hawkes when he asked appellant for consent to search the vehicle.  Even if it had been, Sergeant Hawkes did not have to have additional reasonable suspicion to request a consent to search.  Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); James v. State, 102 S.W.3d 162, 173 (Tex.App. - Fort Worth 2003, pet=n ref=d).  Compare Davis v. State, supra, where the defendant twice refused to give consent to search after the purpose of the detention had been effectuated and the court held that a continued detention of the defendant until the drug dogs arrived was unreasonable. We cannot say that the trial court abused its discretion in denying appellant=s motion to suppress.  Appellant=s third issue is overruled.                                                                 This Court=s Ruling The judgment of the trial court is affirmed.   TERRY McCALL JUSTICE   February 19, 2004 Do not publish.  See TEX.R.APP.P. 47.2(b). Panel consists of:  Arnot, C.J., and Wright, J., and McCall, J. [1]During cross-examination, Sergeant Hawkes again said that he turned his camera on after he observed Aprobable cause of a traffic violation.@ 

124 F.3d 186 Todd Elliott, Tracey Elliott, Minors, by Theodore J.Elliott, Frances M. Elliottv.U.S. NO. 96-7598 United States Court of Appeals,Third Circuit. July 29, 1997 1 Appeal From: M.D.Pa. ,No.90cv01072 ; Appealing after remand 55 F.3d 827 2 Affirmed.

983 F.Supp. 715 (1997) Owen McCAFFERTY, et al., Plaintiffs, v. CENTERIOR SERVICE COMPANY, et al., Defendants. No. 1:95-CV-1732. United States District Court, N.D. Ohio, Eastern Division. October 9, 1997. *716 *717 Steven D. Bell, Ulmer & Berne, Cleveland, OH, for Plaintiffs. Robin G. Weaver, Paula Beth Christ, Squire, Sanders & Dempsey, Cleveland, OH, Donald E. Jose, David Wiedis, Jose & Wiedis, Westchester, PA, for Defendants. MEMORANDUM OPINION AND ORDER NUGENT, District Judge. This matter comes before the Court upon the Report and Recommendation of a Magistrate Judge of this Court submitted on June 19, 1997 (Document # 49) regarding Plaintiffs' Motion for Partial Summary Judgment (Document # 30) and Defendants' Cross-Motion for Summary Judgment (Document # 35). The named Report is hereby ADOPTED in part and NOT ADOPTED in part. On August 7, 1995, Plaintiffs, insulating contractors, filed a Complaint in this Court alleging injury from exposure to radiation while removing insulation at the Davis-Besse Nuclear Power Station in October of 1994. Defendants Centerior Service Company ("Centerior") and Toledo Edison Company ("Toledo") are jointly licensed to operate the Plant by the Nuclear Regulatory Commission ("NRC"). Plaintiffs brought this action as a public liability action under the Price-Anderson Act, 42 U.S.C. § 2210, as amended, asserting state tort theories of negligence, strict liability, intentional infliction of emotional distress, reckless and wanton misconduct, negligent infliction of emotional distress, and negligent infliction of severe and debilitating emotional distress. Plaintiffs also included a claim for medical monitoring. In March 1997, the matter was referred to Magistrate Judge David S. Perelman for a Report and Recommendation on the parties' cross-motions for summary judgment. On June 19, 1997, the Magistrate Judge issued a Report and Recommendation. The Magistrate Judge recommended that Plaintiffs' Motion for Partial Summary Judgment be denied and that Defendants' Cross-Motion for Summary Judgment be granted. Relying on the language of 42 U.S.C. § 2014(hh) and relevant case law, the Magistrate Judge concluded that state law causes of action for injuries relating to nuclear incidents are preempted by the Price-Anderson Act, but that the elements of the state law causes of action, to the extent they are consistent with federal law, represent the elements of a public liability action. With respect to the negligence and reckless and wanton misconduct claims, the Magistrate Judge found that the standard of care applicable to Defendants is set by the numerical occupational dose limits contained in 10 C.F.R. § 20.1201, rather than the requirement in 10 C.F.R. § 20.1101 that licensees employ "procedures and engineering controls" designed "to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)."[1] 10 C.F.R. § 20.1101 *718 (emphasis added). Because the amount of radiation to which Plaintiffs were exposed was less than the numerical occupational dose limits contained in 10 C.F.R. § 20.1201, the Magistrate Judge ruled that Defendants did not breach their duty of care as a matter of law. With respect to the emotional distress claims, the Magistrate Judge found that these claims failed because Plaintiffs did not present sufficient evidence supporting the requisite level of emotional distress. Finally, the Magistrate Judge deemed waived Plaintiffs' strict liability claim, and held that Plaintiffs' claim for medical monitoring failed as it was dependent on the substantive causes of action. Plaintiffs filed objections to the Report on June 26, 1997, and Defendants filed objections on July 1, 1997. Plaintiffs argue that the Magistrate Judge erred by: (1) failing to consider an alternative standard of care proposed by Plaintiffs; (2) failing to properly apply the elements of the emotional distress claims; and, (3) improperly weighing the evidence presented by both sides as to the Plaintiffs' reasonable fear of contracting cancer. For their part, Defendants challenge the Magistrate Judge's characterization of Defendants' legal argument as "disingenuous" (Report at 12) and argue that the Magistrate Judge's analysis, while reaching the correct result, was incomplete. The Report and Recommendation of the Magistrate Judge, along with the objections of Plaintiffs and Defendants, are herein reviewed by this Court. Standard of Review for Magistrate Judge's Report and Recommendation The applicable district court standard of review for a magistrate judge's report and recommendation depends upon whether objections were made to that report. When objections are made to a report and recommendation of a magistrate judge, the district court reviews the case de novo. FED. R.CIV.P. 72(b) provides this standard of review; it states, in pertinent part, that: [t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Accordingly, this Court will review the Report and Recommendation, to which timely objections have been filed, de novo. See Massey v. City of Ferndale, 7 F.3d 506 (6th Cir.1993). Conclusion The Court has reviewed the Report and Recommendation of the instant case de novo. See Massey, 7 F.3d 506. The Court has also considered all of the pleadings, motions and filings of the parties. After careful evaluation of the record, the Report and Recommendation, Defendants' Objections, and Plaintiffs' Objections, the Court is not in complete agreement with some of the conclusions reached by the Magistrate Judge. A public liability action allows recovery for damages resulting from a "nuclear incident."[2] Section 2014(hh) of the Price-Anderson Act specifically provides that the "substantive rules for decision in such [public liability] action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of [section 2210, titled "Indemnification and limitation of liability"]." 42 U.S.C. § 2014(hh). The Court finds that Magistrate Judge Perelman correctly determined that the elements of state law, to the extent they are consistent with section 2210, form the public liability cause of action. The Court's point of departure, however, is with the determination that the occupational dose limits contained in 10 *719 C.F.R. § 20.1201 represent the only relevant standard of care for the negligence claims in this public liability action. The parties and the Magistrate Judge correctly recognized that federal law provides the applicable standard of care for Defendants in this case, since nuclear safety is controlled by federal regulation and a state standard regulating radiation exposure would thus be inconsistent with specific federal regulations. See In re TMI, 67 F.3d 1103, 1106-07 (3rd Cir.1995) ("federal law determines the standard of care and preempts state tort law") (citing O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir.), cert. denied, 512 U.S. 1222, 114 S.Ct. 2711, 129 L.Ed.2d 838 (1994)), cert. denied, ___ U.S. ___, 116 S.Ct. 1034, 134 L.Ed.2d 111 (1996). Relying on ALARA's characterization by the NRC as a flexible operational principle and Congress' intent that federal law govern nuclear safety, the Magistrate Judge concluded that ALARA did not provide the requisite standard of care. This conclusion is not without support. In In re TMI, the Third Circuit recently declined to use the ALARA regulation contained in 10 C.F.R. § 50.34a(a) as a standard of care in public liability actions, primarily because the regulation itself states that the guidelines set forth in an Appendix to Part 50 regarding the ALARA regulations "`are not to be construed as radiation protection standards.'" In re TMI, 67 F.3d at 1114 (quoting 10 C.F.R. § 50.34a(a)). The Third Circuit also relied on comments in the Federal Register made over 20 years ago indicating that the standards in Part 20 continued to provide protection to public health. It also reasoned that "[a]dopting ALARA as part of the standard of care would put juries in charge of deciding the permissible levels of radiation exposure and, more generally, the adequacy of safety procedures at nuclear plants — issues that have explicitly been reserved to the federal government in general and the NRC specifically." 67 F.3d at 1115 (citing Pacific Gas and Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752 (1983)). As the Magistrate Judge recognized, however, the ALARA regulation interpreted in In re TMI was amended in 1991, and the Third Circuit's opinion concerns the pre-1991 regulation. The regulation interpreted by the Third Circuit was (and still is) contained in Part 50, which deals with licensing of production and utilization facilities. The 1991 amendment, however, inserted the ALARA principle into Part 20, which is labeled "Standards for Protection Against Radiation." Part 20 also contains the numerical occupational dose limits relied upon by the Magistrate Judge as setting the applicable standard of care in this case. The ALARA regulation in Part 20 appears in newly created subpart B, labeled "Radiation Protection Programs" and provides that "[t]he licencee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." 10 C.F.R. § 20.1101(b) (emphasis added). Without the 1991 amendment, the Court would be in agreement with the Magistrate Judge's conclusion. Inclusion of the ALARA principle within Part 20's "Standards for Protection Against Radiation," however, demonstrates an intention to have the ALARA principle — i.e. efforts to have occupational doses and doses to the public "as low as is reasonably achievable" — act as a standard for radiation protection. It is true that an ALARA regulation remains in part 50 and, as the Third Circuit emphasized in In re TMI, it cautions that the guidelines in the related appendix shall not "be construed as radiation protection standards." 10 C.F.R. § 50.34(a). But the ALARA principle contained in Part 20 makes no mention of the Appendix to Part 50 and contains no such cautionary statement. Moreover, applying ALARA as a standard of care would be consistent with the settled rule that issues of nuclear safety are "reserved to the federal government in general and the NRC specifically." In re TMI, 67 F.3d at 1115. In this public liability action, the jury will be bound to apply ALARA, a federal regulation dealing with the issue of nuclear safety. *720 In short, both the ALARA regulation and the numerical occupational dose limits expressed in Part 20 (10 C.F.R. §§ 20.1101 and 20.1201, specifically) set forth the applicable standard of care in this public liability action[3] Accordingly, Plaintiffs' negligence and reckless and wanton misconduct claims are inappropriate for summary judgment and are matters for trial. With respect to Plaintiffs' claim for negligent infliction of emotional distress, this claim similarly presents a question for the jury. Under their negligent infliction of emotional distress theory, Plaintiffs may recover for "reasonable apprehension" of contracting cancer if their exposure to radiation constitutes a physical impact, and the decision in Lavelle v. Owens-Corning Fiberglas Corp., 30 Ohio Misc.2d 11, 507 N.E.2d 476, 480 (Cuyahoga County Common Pleas 1987), indicates that it does. The Lavelle decision represents the relevant law of Ohio on this subject and thus governs the instant case, making Plaintiffs' exposure to radiation the requisite physical impact.[4] In Brown v. Centerior Energy Corp., 1992 WL 694453 (N.D.Ohio 1992), a case also under the Price-Anderson Act, the Court held that an individual exposed to radiation while doing work at a nuclear power plant could not recover for his emotional injuries resulting from that exposure, because exposure alone, without "objective evidence that the exposure caused some actual damage," did not constitute the requisite physical injury. Id. at *6. That decision is not controlling here, however, as it failed to acknowledge or distinguish Lavelle. While the Brown Court did cite a case applying Ohio tort law, see id. (citing Kesecker v. United States Dept. of Energy, 679 F.Supp. 726 (S.D.Ohio 1988)), that case concerned the law of Ohio regarding intentional torts, not negligence. Accordingly, the decision in Brown will not be followed here. Moreover, application of the Lavelle rule in a Public Liability Action is consistent with federal law. As explained above, the occupational dose limits do not represent the only standard of care in such an action. A defendant may be liable for mere exposure if it does not comply with the ALARA standard of care by keeping radiation levels "as low as is reasonably achievable." This is what Plaintiffs contend in the instant case, and, if it is proven, Plaintiffs will be entitled to recover. The Court disagrees with the Magistrate Judge's determination that no genuine issue of material fact existed for trial with respect to whether Plaintiffs have a reasonable fear of contracting cancer or suffered serious emotional distress. Plaintiffs and Defendants offered expert evidence regarding the statistical likelihood of developing cancer. The evidence presented is conflicting and must be resolved at trial. With respect to Plaintiffs' claim for intentional infliction of emotional distress, the recent decision of the Sixth Circuit in Debevec v. General Elec. Co., 1997 WL 461486 (6th Cir.1997), renders it meritless. In that case, which involved a Public Liability Action by an employee against General Electric Company, the Sixth Circuit held that the employee could not recover for exposure to radiation under an intentional tort theory. As the Sixth Circuit held, "[i]n the context of an employment intentional tort, such failure to monitor, warn or test becomes legally significant only if some agent (e.g. radiation or thorium) in fact was introduced into the employee's work environment in quantities substantially certain to cause injury." Id. at *3 (emphasis added). Without such a demonstration, the employer cannot be said to have the requisite intent. Although the instant case is more appropriately characterized as an occupational tort case, rather than an employment tort case, the reasoning in *721 Debevec compels the conclusion that Plaintiffs must demonstrate exposure in amounts "substantially certain to cause injury" before they can recover for an intentional tort. Because Plaintiffs have not demonstrated such exposure, their claim for intentional infliction of emotional distress fails. Plaintiffs' medical monitoring claim is, as the Magistrate Judge found, dependent upon their other tort claims. To the extent those claims remain viable, so does the claim for medical monitoring. Plaintiffs' strict liability claim is dismissed for the reasons stated by Magistrate Judge Perelman. Accordingly, Plaintiffs' Motion for Partial Summary Judgment is DENIED and Defendants' Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. IT IS SO ORDERED. ORDER This matter is before the Court on the Plaintiffs' Motion for Partial Summary Judgment and the Defendants' Cross-Motion for Summary Judgment. For the reasons stated in the Memorandum Opinion issued with this Order, the Plaintiffs' motion is hereby DENIED, and the Defendants' cross-motion is hereby GRANTED IN PART and DENIED IN PART. Plaintiffs' claim in Count Four for intentional infliction of emotional distress is dismissed for failure to state a claim on which relief can be granted. Plaintiffs' claim in Count Three for strict liability is dismissed as waived by the Plaintiffs. Plaintiffs' remaining claims are appropriate for resolution at trial, which is set for January 13, 1998, at 8:30 a.m. Trial Order mailed contemporaneously with this Order. IT IS SO ORDERED. REPORT & RECOMMENDATION PERELMAN, United States Magistrate Judge. Plaintiffs, Owen McCafferty, Dennis Maloney, Terry McLaughlin, Sean McCafferty, Robert Prohaska and Sean Kibane, are insulators who allege injury as a result of having been exposed to radiation while removing insulation at the Davis-Besse Nuclear Power Station (hereinafter "the Plant") in october 1994. Defendants, Centerior Service Company (hereinafter Centerior) and Toledo Edison Company, are jointly licensed by the Nuclear Regulatory Commission (hereinafter NRC) as the operators of the Plant. The events giving rise to this action are as follows. On October 7, 1994 Plaintiffs were assigned to remove mirror insulation panels from a steam generator during a refueling outage at the Plant.[1] Because the area in which they were to work was a radiologically restricted work area the radiation protection staff conducted a radiation survey prior to Plaintiffs' entry into the area. Although the radiation protection staff conducted an adequate survey prior to Plaintiff's commencement of work they failed to resurvey the area after the first set of insulation panels was removed and, consequently, failed to discover the presence of airborne radioactive particles. plaintiffs, who were prohibited from wearing respirators while performing the insulation removal, inhaled some of the radiated particles.[2] The total doses of radiation to each individual Plaintiff ranged between 3 millirems and 212 millirems. As a result of this unplanned exposure the Nuclear Regulatory Commission (hereinafter NRC) issues a notice of violation to Centerior in which the following findings were made: On October 7, 1994, the licensee did not perform surveys to assure compliance with 10 C.F.R. 20.1701, which requires that licensees use process or other engineering *722 controls to control the concentration of radioactive material in air. Specifically, an evaluation of the contamination levels underneath insulation on the east once through steam generator hot leg was not performed to determine if engineering controls were required to control the concentration of radioactive material in air. On August 7, 1995, Plaintiffs initiated this action alleging jurisdiction under the Price-Anderson Act, 42 U.S.C. § 2210, as amended in 1988, (hereinafter the Amendments Act) and advancing claims under state law theories of negligence, strict liability, intentional infliction of emotional distress, reckless and wanton misconduct, negligent infliction of emotional distress, and negligent infliction of severe and debilitating emotional distress. The complaint includes a claim seeking medical monitoring. Subsequent to the filing of the complaint Centerior issued an edict prohibiting Plaintiffs from working in any Centerior facility including the Perry Nuclear Power Plant[3] as well as the Davis-Besse Plant. Plaintiffs responded by filing an administrative complaint with the United States Department of Labor alleging that their ouster from Centerior facilities was in retaliation for filing their complaint and was in violation of Section 211 of the Energy Reorganization Act. Defendants offered as a defense to that administrative complaint that the ban against Plaintiffs was due to Plaintiffs' assertion in the district court complaint that they were suffering from severe and debilitating emotional distress and that Defendants were concerned that it would be dangerous to have workers in a nuclear plant who were suffering from such emotional upset. After a hearing the Administrative Law Judge (hereinafter ALJ) found in favor of Plaintiffs stating: Accordingly, it is determined that the complainants have met their burden of showing that Centerior's proffered reasons for the firing of Maloney and banning of the other complainants are pretextual. They have shown by the clear preponderance of the evidence that Centerior's actions terminating Maloney and banning the other five complainants were a deliberate retaliation for their filing the civil complaint under the Atomic Energy Act. On October 30, 1995 Plaintiffs amended their claim for intentional infliction of emotional distress to add allegations of retaliatory conduct. On October 28, 1996 Plaintiffs moved for partial summary judgment seeking judgment as to Defendants' liability on their claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants responded with a cross-motion seeking summary judgment on all of Plaintiffs' claims. The disposition of a motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides for the granting of such motion where, "[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court succinctly stated the standard for granting a motion for summary judgment as follows: the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552. Such showing by the nonmovant must consist of more than a mere "scintilla" of evidence, or the hope that the court will disbelieve the movant's denial of a disputed fact. The non-moving party must present plausible evidence in support the facts which are deemed material under the substantive law applicable to the cause of action. Street v. *723 J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (discussing the "new era" of summary judgment practice established in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Although the court's function under such a motion is to determine whether a genuine issue of material fact exists, as opposed to endeavoring to resolve any such factual issues, Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974); 6 Moore's Federal Practice ¶ 56.15 [1.-0]., the court has discretion in weighing the evidence offered by the non-moving party, considered in light of the record as a whole, to determine whether that party's evidence does "more than simply show that there is some metaphysical doubt as to the material facts" or whether it demonstrates that the non-moving party's claims are "implausible." Street, 886 F.2d at 1479-1480. Further, in making that determination the court has no duty to independently search the record for the existence of genuine issues of material fact. Id. at 1479. Plaintiffs contend that their complaint constitutes a "public liability action" (hereinafter PLA) governed by the Amendments Act. "Public liability" is defined in 42 U.S.C. § 2014(w) as "any legal liability arising out of or resulting from a nuclear incident." "Nuclear incident" is in turn defined as "any occurrence ... causing ... bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material." 42 U.S.C. § 2014(q). Plaintiffs maintain that their state claims constitute the substantive law underlying a PLA action pursuant to 42 U.S.C. § 2014(hh) which provides: The term "public liability action", as used in section 2210 of this title, means any suit asserting public liability. A public liability action shall be deemed to be an action arising under section 2210 of this title, and the substantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section. In response and in support of their motion for summary judgment Defendants assert that the Amendments Act does not contemplate adoption of state substantive law and that Plaintiffs' claims fail to satisfy the federal common law elements of a PLA. In the alternative, Defendants argue that even if Ohio's substantive law were to be employed Plaintiffs cannot satisfy the elements of those causes of action. The first issue placed before this Court relates to the basic question of what kind of animal a PLA is. Some legislative chronology provides background and puts the Amendments Act in its proper context. Congress' regulation of nuclear power began in 1946 with the Atomic Energy Act which gave the federal government a monopoly on nuclear energy. Duke Power Co. v. Carolina Env. Study Gp., 438 U.S. 59, 63, 98 S.Ct. 2620, 2625, 57 L.Ed.2d 595 (1978). Finding that the exploitation of nuclear power would be better served by participation by the private sector, in 1954 Congress established the Atomic Energy Commission which had the authority to license and regulate nuclear facilities. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1095 (7th Cir.), cert. denied, 512 U.S. 1222, 114 S.Ct. 2711, 129 L.Ed.2d 838 (1994). In a further attempt to spur private development of nuclear energy Congress enacted the Price-Anderson Act in 1957, 42 U.S.C. § 2210, which provided for limitations on potential liability of private actors in the nuclear energy field and offered indemnification by the federal government for liability over a specified amount. Id. The Price-Anderson Act was extended and expanded in 1966 mandating that those who sought federal indemnification for extraordinary nuclear occurrences (hereinafter ENO)[4] give up certain common *724 law defenses, thereby creating a strict liability action. The amendment also allowed for removal to federal court of any claims arising out of an ENO. Corcoran v. New York Power Authority, 935 F.Supp. 376, 384 (S.D.N.Y. 1996). In 1988 the Price-Anderson Act was again amended by the Amendments Act which created "public liability actions" and provided: With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place,... shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the commission, or the Secretary, as appropriate, any such action pending in any State court ... shall be removed ... to the United States district court having venue under this subsection. 42 U.S.C. § 2210(n)(2).[5] A primary area of contention between the parties relates to the significance of the mandate of § 2014(hh) regarding the use of rules of the state as the substantive rules of decision in a PLA in the district court. Defendants attempt to limit the language to procedural and administrative state rules such as statutes of limitations (to the extent that they are procedural), venue, privileges, joinder, and damages. Defendants assert that a PLA is a federal common law action in which a plaintiff must prove that he/she was exposed to amounts of radiation higher than those found in 10 C.F.R. § 20.1201 "Occupational Dose Limits"[6] and that the defendant caused such exposure. Defendants argue that Plaintiffs' exposures, ranging from 3 millirems to 212 millirems are, by definition, noncompensable as the occupational dose limits found in the foregoing regulations allow annual exposure of 5000 millirems. Plaintiffs contend that the language of § 2014(hh) requires application of the substantive law of Ohio, and, while agreeing that federal standards apply in a negligence action, argue that it is not the occupational dose limits which set the standard but, rather, the duty of care found in 10 C.F.R. § 20.1101 which provides in part: "The licensee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." Interpretation of the language of § 2014(hh) is problematic. At first blush the Amendments Act may appear to be a jurisdictional grant which does nothing more than move state tort claims to a federal forum. Because such result is prohibited by Article III, § 2, of the United States Constitution, however, circuit courts addressing the issue have uniformly interpreted the Amendments Act as "relying for definition upon state law elements, [while still] contain[ing] the federal components necessary to survive the constitutional challenge mounted." In re TMI Litigation Cases Consol. II, 940 F.2d 832, 857 (3rd Cir.1991), (hereinafter TMI II) cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992).[7]See also, O'Conner, 13 F.3d at 1100. Although the present action does not challenge the constitutionality of the Amendments Act the analysis of that issue involves discussion of the interaction of state and *725 federal law within its parameters and is, therefore, relevant to the issue presented herein. In TMI II, 940 F.2d at 832, the Third Circuit court reviewed a decision by the district court remanding certain PLAs to the state courts on the basis that the Amendments Act overstepped the bounds of Article III. Recognizing substantial ground for disagreement with its decision the district court certified the jurisdictional question to the circuit court. The Third Circuit reiterated the concept that in order to "arise under" the laws of the United States a statute must do more than confer federal jurisdiction and went on to determine to what extent the laws of the state were to govern a PLA. The court began its analysis with the definition of PLA as encompassing "`any legal liability' of any `person who may be liable' on account of a nuclear accident," id. at 854, and went on to the proposition that the Amendments Act completely did away with state causes of action for nuclear incidents, stating that "A claim growing out of any nuclear incident is compensable under the terms of the Amendments Act or it is not compensable at all." Id. (emphasis in original). Contrary to signifying that state substantive tort law was thereby rendered irrelevant, however, the court determined that, as in the case of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(a)(2)(A), which specifies that the laws of the adjacent states are "to be the law of the United States," the Amendments Act "refers to substantive rules for decision as `derived from state law.'" Id. at 856. The court went on to state that "[w]e believe that the language adopted in the Amendments Act supports our view that Congress intended that the [state] rules of decision constitute federal law." Id. The court concluded that once the factual predicate of a PLA is met all state causes of action based upon the nuclear incident giving rise to the PLA become federal law which, where inconsistencies exist, are shaped by the provisions of the Amendments Act. The same issue was addressed by the Seventh Circuit in O'Conner, 13 F.3d at 1090, in which the plaintiff, a pipefitter who worked at a nuclear facility, brought an action in state court alleging that he had been negligently exposed to radiation, causing him to develop cataracts. The action was removed to federal court as one under federal law and a constitutional challenge to the court's jurisdiction was launched by the plaintiff seeking to have the action remanded to state court. The Seventh Circuit began its constitutional analysis finding that the Act contained federal components such as provisions relating to statute of limitations, venue, punitive damages, and waiver of defenses, which made it more than just a jurisdiction conferring enactment. The court further stated that "[state] law serves as the basis for the cause of action only as long as state law is consistent with the other parts of the Act. Congress desired that state law provide the content for and operate as federal law; however, Congress recognized that state law would operate in the context of a complex federal scheme which would mold and shape any cause of action grounded in state law." Id. at 1100. The Sixth Circuit recently joined the Third and Seventh Circuits in addressing the constitutionality of the Amendments Act and, specifically adopting the reasoning of TMI II and O'Conner, found that the legislation relies on state law elements for definition but contains the federal components necessary to survive constitutional challenge. Nieman v. NLO, Inc., 108 F.3d 1546, 1549 (6th Cir.1997) (quoting TMI II, 940 F.2d at 857.) In that opinion the court reiterated dictum from Day v. NLO. Inc., 3 F.3d 153, 154 n. 1 (6th Cir.1993) that "[t]he amendment was not intended to alter the state law nature of the underlying tort claims." Nieman, 108 F.3d at 1549. Having found that state and federal law function in tandem the court in Nieman went on to address preemption of state law by the Amendments Act. Historically, the Price-Anderson Act has been held to preempt all state causes of action regulating nuclear safety while leaving intact state laws only indirectly relating to nuclear safety or which constitute economic regulation rather than safety regulation, even though there may be an indirect effect on safety standards. Silkwood *726 v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).[8] Acknowledging the change in the Price-Anderson Act promulgated in 1988 the court found that the Amendments Act resulted in any cause of action arising out of a nuclear incident being supplanted by federal law. Speaking to this issue the court concluded: Because the Price-Anderson Act, as amended in 1988, specifically dictates that state law applied only to the extent it is not inconsistent with federal law and because we agree with the analyses of preemption in O'Conner and TMI II, we hold that Price-Anderson Act preempts Nieman's state law claims; the state law claims cannot stand as separate causes of action. Nieman can sue under the Price-Anderson Act, as amended, or not at all. His federal claim will be derived from state law, as mandated by § 2014(hh), to the extent it is not inconsistent with federal law. Therefore, our present task, in the posture of review of the district court's grant of defendants' motion to dismiss, is limited to considering whether, viewing the well-pleaded allegations in the complaint in the light most favorable to Nieman, his continuing trespass claim is timely under the Price-Anderson Act. Id. at 1552. Contrary to Defendants' position, this ruling did not destroy the plaintiff's claim for continuing trespass, but, rather, placed it (largely intact) in the context of federal law, with the court engaging in an extensive analysis of Ohio law concerning what constitutes continuing trespass for statute of limitations purposes. That this analysis was deemed appropriate belies Defendants' contention that Congress intended that PLAs be uniform without regard to the law of the state in which the incident took place. While it may be assumed that all states do not have the same continuing trespass laws (i.e. some may require continuing malfeasance, others may require only continuing damages caused by a singular act of malfeasance, while still others may require failure to remove trespass as constituting a necessary element where the act of malfeasance was discreet), the Nieman court was not concerned with the fact that a PLA for continuing trespass in Ohio would differ from a PLA for continuing trespass in another state. This Court finds Defendants' position as to the elements of a PLA to be disingenuous at best.[9] The language lifted from cases cited in support of their contention that a PLA has two elements without regard to state law are taken out of context and even a cursory reading of the precedents, both circuit court and district court, reveals virtual unanimity on the issue of whether state substantive law, to the extent that inconsistencies are absent, makes up the elements of a PLA. See, e.g., Bohrmann v. Maine Yankee Atomic Power Co., 926 F.Supp. 211, 218 (D.Me.1996) ("state law substantive rules of decision apply, and only those theories of relief that are inconsistent with federal law need be dismissed."); Corcoran v. New York Power Authority, 935 F.Supp. 376, 385 (S.D.N.Y.1996) ("the mere fact that all causes of action arising out of a `nuclear incident' are federal in nature does not eliminate plaintiffs ability to assert claims the rules of decision of which are derived from state law."); Coley v. Commonwealth Edison Co., 768 F.Supp. 625 (N.D.Ill. 1991); In re Hanford Nuclear Reservation Litigation, 780 F.Supp. 1551, 1570 (E.D.Wash.1991) ("it appears to the court that its primary purpose was not to alter, in *727 the main, that state law which (but for this Act) would be controlling in this area, but rather to enhance its effect.") The conclusion thus mandated is that a PLA preempts state claims which arise out of a nuclear incident, the resulting cause of action, however, being the same as the claim would have been in state court except to the extent that there may exist a conflict between state and federal law in which case federal law prevails. Under this reasoning, all of Plaintiffs' claims which arise as a result of their unintended exposure to radiated materials are preempted by the Amendments Act, and must be analyzed for inconsistencies with that legislation.[10] With this precept in mind this Court must first determine the elements of Plaintiffs' PLA claims as dictated by the adaptation of state causes of action to the federal nuclear field, and then determine whether there are genuine issues of material fact which preclude summary judgment. Ohio's law of negligence consists of four elements: (1) duty of care; (2) breach of that duty; (3) proximate causation; and (4) injury. Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989). The parties agree that federal law governs the duty of care, in that federal regulations specifically delineate amounts of radiation to which a worker may be exposed and any more stringent standard imposed by Ohio law would amount to regulation of nuclear safety, an area wholly controlled by federal regulation. Despite agreement over this basic principle the parties disagree as to the correct federal standard to apply — should it be the occupational dose limits found in 10 C.F.R. § 20.1201, as Defendants contend, or the ALARA standard found in 10 C.F.R. § 20.1101, as advocated by Plaintiffs. Review of the federal regulations governing safety and licensing standards, as well as case precedent analyzing the issue, leads this Court to conclude that the ALARA standard is relevant to licensing requirements but that the occupational dose limits govern the federal safety standards shaping a defendant's duty of care in a negligence action. Although both the occupational dose limits and the ALARA standard have the ultimate goal of reducing radiation exposure of employees and the public the NRC, in answer to the concern that the concept of ALARA is a philosophical principle which should not be made into a regulatory requirement, stated that ALARA is "an operating principle rather than an absolute minimization of exposures." 56 Fed. Reg. 23366 (1991). The NRC emphasized "the importance of the ALARA concept to an adequate radiation protection program. In order to strengthen this concept, the Commission has adopted a requirement that all licensees include provisions for maintaining radiation doses and intakes of radioactive materials as low as is reasonably achievable as part of their radiation protection programs.... It is expressly intended that the level of this program and efforts to document it are commensurate with the size of the licensed facility and the potential hazards from radiation exposure and the intake of radioactive materials." 56 Fed. Reg. 23367 (1991). Thus, ALARA may mean different things in different facilities and strict compliance with ALARA specifications may be suspended to allow for "operational flexibility." 10 C.F.R. § 50.36a(b). This issue of the correct federal standard was addressed more fully by the Third Circuit in In re TMI, 67 F.3d 1103 (3rd Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1034, 134 L.Ed.2d 111 (1996), wherein the parties took an interlocutory appeal on the issues of "[w]hether 10 C.F.R. § 20.105 and 20.106,[11] and not ALARA, constitute the standard of care to be applied in these actions." The court reaffirmed its holding in TMI II that federal standards apply as the standard of care, and rejected use of ALARA as setting that standard. In so doing the court discussed the legislative background of *728 both the occupational dose limits and ALARA and determined that the occupational dose limits "represent the considered judgment of the relevant regulatory bodies — the Federal Radiation Council, EPA, AEC, and NRC — on the appropriate levels of radiation to which the general public may be exposed." Id. at 1113-14. ALARA, on the other hand, having no specific values attached to it, would permit a jury to assign safety standards, a result specifically rejected by Congress in regulating nuclear safety. The court also was persuaded against use of ALARA as the standard by which to judge the defendant's duty of care by the language of 10 C.F.R. § 50.34a, which relates to licensing of private nuclear facilities, which provides as to ALARA that "[t]hese numerical guides for design objectives and limiting conditions for operation are not to be construed as radiation protection standards." The court in O'Conner reached a similar conclusion, finding that Illinois law of negligence would apply the federal standards for maximum allowable dosages as the standard of care, and stating that even if Illinois would not apply that standard any other state imposed duty of care would conflict with federal regulation and the federal standard would prevail.[12]See, also, McLandrich v. Southern California Edison Co., 942 F.Supp. 457, 466 (S.D.Cal.1996) ("this Court, like the courts in TMI and O'Conner, finds that it should defer to the expert judgment of Congress and the NRC who, in passing the Price-Anderson Act and promulgating the regulatory guidelines, have carefully crafted a balance between developing nuclear energy and providing safety for workers and the public."); Bohrmann, 926 F.Supp. at 220 ("adopting the ALARA standard would result in an ordinary negligence standard and would allow juries to decide issues explicitly reserved to the federal government."); Coley v. Commonwealth Edison Co., 768 F.Supp. 625, 629 (N.D.Ill.1991). Plaintiffs correctly note that the court in In re TMI addressed the regulations as they stood in 1979, at which time the ALARA provision considered was the one contained (then and now) in 10 C.F.R. Part 50, "Domestic Licensing of Production and Utilization Facilities." The 1991 amendments to 10 C.F.R. Part 20, "Standards for Protection Against Radiation," added Subpart B, "Radiation Protection Programs," which provides in part, "The licensee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." This Court recognizes that the 1991 inclusion of ALARA in Part 20 lends support to Plaintiffs' position but does not find this consideration persuasive in light of other factors, such as ALARA's status as a flexible principle of operation as opposed to the specific numerical standards set forth in 10 C.F.R. § 20.1201, and Congress' clear intent that the federal government rather than the states regulate nuclear safety. Thus this Court concludes that the standard of care to which a defendant may be held for purposes of a PLA for negligence is that of the occupational dose limits found at 10 C.F.R. § 20.1201. Applying this standard, this Court believes that Plaintiffs' claims for negligence and for reckless and wanton misconduct[13] fail, for the reason that Defendants did not breach their duty of care. Plaintiffs seek recovery for negligent infliction of emotional distress under the theories that if they suffered a physical injury, however slight, for which they are entitled to compensation recovery for their resulting emotional distress is warranted, or, alternatively, in the event that no actual physical injury is found that Defendants' conduct caused them to develop a real fear of future injury which gives rise to compensable severe and debilitating emotional distress. Plaintiffs also *729 seek compensation for Defendants' alleged intentional infliction of emotional distress based upon their prohibition of respirator use, and also upon Defendants' alleged retaliatory conduct. In a case for intentional infliction of emotional distress a plaintiff must prove (1) that the defendant intended to cause the plaintiff serious emotional distress; (2) that the defendant's conduct was extreme and outrageous; and (3) that the defendant's conduct was the proximate cause of plaintiffs serious emotional distress. Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 644 N.E.2d 286 (1994). The mental anguish must be of a degree that no reasonable person could be expected to endure. Yeager v. Local Union 20, 6 Ohio St.3d 369, 374-75, 453 N.E.2d 666 (1983); Retterer v. Whirlpool Corp., 111 Ohio App.3d 847, 855, 677 N.E.2d 417 (1996). Although historically a plaintiff could not recover for negligent infliction of emotional distress in the absence of physical injury, Miller v. Baltimore & Ohio S. W. R. Co., 78 Ohio St. 309, 85 N.E. 499 (1908), Ohio now recognizes such a claim "in such instances as where one was a bystander to an accident or was in fear of physical consequences to his own person" High v. Howard, 64 Ohio St.3d 82, 85-86, 592 N.E.2d 818 (1992). Fear of physical consequences must be based upon a real physical peril rather than an imagined or non-existent one. Heiner v. Moretuzzo, 73 Ohio St.3d 80, 85, 652 N.E.2d 664 (1995). In those instances the emotional distress must meet the higher standard of being severe and debilitating. Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759, syllabus 3a, (1983). Where, as in this case, a claim involves negligent infliction of emotional distress with allegations of a concomitant physical injury, such as exposure to a harmful substance, a plaintiff may recover for his/her reasonable fear of contracting cancer. In Lavelle v. Owens-Corning Fiberglas Corp., 30 Ohio. Misc.2d 11 (1987) the court stated that "Ohio courts have not specifically addressed the issue presented here but the general policy of this state has been to permit recovery for reasonable apprehension of a potential harm flowing from a present injury." Id. at 14. In Lavelle the plaintiff suffered from asbestosis and advanced a claim for emotional distress based upon his fear of contracting cancer. The court permitted the plaintiff to introduce evidence at trial on the statistical likelihood of developing cancer and his reasonable fear of that consequence. Accepting for the sake of decision that Lavelle represents the current Ohio law on this subject, this Court finds that Plaintiffs have failed to demonstrate the existence of facts which would support their claims for negligent and intentional infliction of emotional distress under Ohio law.[14] With respect to Plaintiffs' allegation that they have a reasonable fear of contracting cancer this Court finds their evidence lacking. Plaintiffs submitted an affidavit from Oddvar F. Nygaard, Ph.D., President Emeritus in the Department of Radiology/Radiation Biology at Case Western Reserve University School of Medicine, who averred that "It is my opinion that the Plaintiffs in the instant action were subjected to an unwarranted increased risk of potential adverse health effects, however small, due to the internal deposition of radiation from the October 7, 1994 exposure incident." This Court finds that this averment addresses only a theoretical likelihood of contracting an illness of unspecified nature and does not contradict the counter averment of Defendants' expert, Dr. Richard R. Monson, that "[t]he science of epidemiology is unable to prove that low doses of radiation, such as doses of 2,000 millirem (2 rem) or less, have any harmful effect on persons so exposed." Even if Plaintiffs could show that their radiation exposure increased the risk of contracting cancer they have failed to present *730 evidence that they have suffered serious emotional distress as a result of that increased risk (or as a result of any other conduct of Defendants). Plaintiffs contend that they are relieved of the need to offer proof of their severe emotional distress by reason of admissions made by Defendants during and after the Labor Board hearing in which Defendants offered as their non-retaliatory reason for black-balling Plaintiffs the fear of having someone suffering from severe debilitating emotional distress working in a nuclear plant,[15] arguing that Defendants' position at the administrative hearing is res judicata in this matter. This Court disagrees on two counts. The estoppel doctrine advocated by plaintiffs provides that a federal court shall accord a state court judgment the same preclusive effect it would be given under the law of the state in which the judgment was rendered. Spence v. TRW, Inc., 92 F.3d 380, 382 (6th Cir.1996); In re Bursack, 65 F.3d 51, 53 (6th Cir.1995). Ohio law dictates that such estoppel only exists in the presence of four elements: (1) the party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. Anderson v. Lorain Cty. Title Co., 88 Ohio App.3d 367, 371-72, 623 N.E.2d 1318 (1993). "[A]n absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action." Goodson v. McDonough Power Equipment, Inc., 2 Ohio St.3d 193, 201, 443 N.E.2d 978 (1983). To the extent that the question of Plaintiffs' alleged emotional distress was pertinent to the issues presented at the administrative hearing the ALJ found that Defendants' alleged belief of Plaintiffs' allegations of emotional distress did not form the basis for Defendants' decision to blackball them. Thus, there was no judicial finding, which could be binding in this action, that Plaintiffs actually suffered from such distress. Second, Plaintiffs have offered little proof of any emotional distress from which this Court could conclude that the elements of a claim for negligent or intentional infliction of emotional distress are satisfied. The only evidence that Plaintiffs present in support of their contention that they suffered severe and debilitating emotional distress is the following excerpt from Mr. Maloney's testimony at the administrative hearing: Q. And in your complaint when you say that you've had emotional distress does the fact that you set off every alarm in the plant for a month after this incident have anything to do with your emotional distress? A. Yes, that's where the emotional distress is. I mean it goes to bed with you at night. You think of your family. You think of everything that it possibly could be doing inside of you no matter what they tell you. You don't know. Especially if you're setting monitors off before you even walk in them. That's not something they teach in those classes. No Plaintiff has presented evidence of a need for, or seeking, psychiatric or psychological counseling, or of physical effects of their extreme distress, such as headaches, nausea, or any other manifestation of emotional upset. It is uncontroverted that Plaintiffs continued to work at nuclear facilities until they were either laid off or blackballed. This being so, in this Court's opinion Mr. Maloney's statement at best reflects increased concern with respect to the effects of radiation exposure, an emotional reaction with which this Court might sympathize but one which is plainly insufficient to sustain an *731 action for intentional or negligent infliction of emotional distress. In their motion Defendants claim entitlement to judgment on Plaintiffs' claim for strict liability on the basis that such claim is inconsistent with federal law. In their brief in opposition to Defendants' motion for Plaintiffs do not address Defendants' contention regarding the claim of strict liability. This Court, therefore, deems the claim to be waived. Plaintiffs' claim for medical monitoring is dependent upon a finding of liability for a substantive cause of action. Having found no genuine issue of material fact as to any of Plaintiffs' claims, this remedial claim must also fail. In conclusion, it is recommended that Plaintiffs' motion for partial summary judgment be denied, and the Defendants' motion for summary judgment be granted. June 19, 1997. NOTES [1] The parties agreed that federal law would govern the standard of care element in this public liability action. [2] A "nuclear incident" is defined in the Price-Anderson Act as "any occurrence * * * within the United States causing[] * * * bodily injury, sickness, disease, or death[] * * * arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material." 42 U.S.C. § 2014(q). [3] Defendants rely on the recent decision of the Sixth Circuit in Debevec v. General Elec. Co., 1997 WL 461486 (6th Cir.1997), as support for the Magistrate Judge's determination that occupational dose levels represent the proper standard of care. But Debevec did not involve the question whether ALARA sets forth a standard of care in public liability actions and, therefore, does not govern this case. [4] Alternatively, Plaintiffs may recover for negligent infliction of emotional distress in the absence of a physical injury if the distress is serious. See Lavelle, 507 N.E.2d at 480-81. [1] A refueling outage is a planned shut-down of a nuclear plant which occurs approximately every two years during which time various maintenance work is performed. [2] The record offers as a reason for a prohibition against the use of respirators that it is believed that workers are often more efficient without them and that, on balance, the increased efficiency lessens overall radiation exposure even though it may increase internal vs external exposure. [3] Centerior is co-licensee with the Cleveland Electric Illuminating Co. as operators of the Perry Nuclear Power Plant. [4] An ENO "means any event causing a discharge or dispersal of source ... material from its intended place of confinement in amounts offsite, or causing radiation levels offsite, which the [NRC] ... determines to be substantial, and which the [NRC] ... determines has resulted or will probably result in substantial damages to persons offsite or property offsite." 42 U.S.C. § 2014(j). [5] That amendment also added the language of § 2014(hh) previously alluded to concerning derivation of the rules of the state in which the incident occurred as the substantive rules of decision in the federal court. [6] The occupational dose limits found in the regulations provide: (a) The licensee shall control the occupational dose to individual adults, except for planned special exposures under § 20.1206, to the following dose limits. (1) An annual limit, which is the more limiting of — (I) The total effective dose equivalent being equal to 5 rems (0.05 Sv) [7] The 1979 Three Mile Island incident in Pennsylvania spawned a number of cases which called for analysis of various aspects of the Amendments Act. [8] In Silkwood, the Supreme Court upheld an award of punitive damages against the defendant despite the knowledge that such award would likely have the effect of altering safety standards within the nuclear industry in the state of California. The Court found that "Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted." Silkwood, 464 U.S. at 251, 104 S.Ct. at 622-623. [9] This is particularly so in light of the fact that when representing the plaintiff in Northeast Ohio Regional Sewer District v. Advanced Medical System, Inc., 106 Ohio App.3d 542, 666 N.E.2d 612 (1995) Ohio Eighth Appellate District, defendants' counsel espoused the viewpoint which they now attack, treating with a fair degree of incredulity the stance advanced by the defendant in that action which was reflective of the arguments they now make on behalf of their defendant clients in this action. See, e.g. Reply Brief of Appellant Northeast Ohio Regional Sewer District, filed June 20, 1995, pp. 2-5. [10] To the extent that Plaintiffs raise a claim for intentional infliction of emotional distress based upon Defendants' retaliatory conduct, rather than their exposure to radiation, those allegations do not state a PLA claim and would be deemed a pendent state claim. [11] 10 C.F.R. §§ 20.105 and 20.106 were the provisions governing permissible exposure to people off-premises in 1979, the time the incident in TMI occurred. [12] Plaintiffs use the holding of O'Conner in support of their argument that the ALARA standard is applicable as the duty of care in a PLA negligence action in Ohio. In reading that case, however, it is clear that the O'Conner court did not apply the ALARA standard of care. [13] As in a negligence action, an action for reckless and wanton misconduct requires that the defendant breach a duty of care. Sicard v. Univ. of Dayton, 104 Ohio App.3d 27, 660 N.E.2d 1241 (1995). [14] Defendant argues that Plaintiffs' emotional distress claims must fail because the radiation to which they were exposed did not violate Defendants' duty of care. Although this Court can conceive of instances in which a defendant's conduct would meet the elements of an Ohio emotional distress claim even though the conduct was otherwise legal, the effect of this Court's finding that Defendant did not breach its duty of care need not be decided here as Plaintiffs have failed to present evidence of the serious emotional distress necessary to support those claims under Ohio law. [15] Plaintiffs specifically rely upon Defendants' comment to a Plain Dealer reporter after the hearing that "We don't want someone with serious emotional distress working inside our plant."

230 F.Supp.2d 1313 (2002) Earle SMITH, et al. Plaintiffs, v. COBB COUNTY BOARD OF ELECTIONS AND REGISTRATIONS, et al. Defendants. Andy Perry, et al. Plaintiffs, v. Cobb County Board of Elections and Registrations, et al. Defendants, v. Mark A. Bell and David L. Wilkerson Defendants Intervenors. No. CIV.A. 102CV1093JEC. No. CIV.A. 102CV1206JEC. United States District Court, N.D. Georgia, Atlanta Division. May 31, 2002. D. Glen Brock, Ernest Linwood Gunn, IV, Carlton LaTain Kell, Brock Clay Calhoun Wilson & Rogers, Joseph Blackshear Atkins, Dorothy Hemmer Bishop, Deborah L. Dance, Office of Cobb County Attorney, Law Department, Marietta, for Plaintiff. Gregg Earl Litchfield, Herbert Scott Gregory, Jr., Haynie Litchfield & Crane, Marietta, for Defendant. Allan Leroy Parks, Jr., David F. Walbert, Parks Chesin Walbert & Miller, Atlanta, for Defendant Intervenors. ORDER CARNES, District Judge. In the above-captioned actions, the plaintiffs allege a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, arising out of the failure of the Georgia General Assembly (hereinafter "the Legislature") to pass legislation reapportioning the electoral districts for the Cobb County Board of Education (hereinafter, "the Board") and the electoral districts for the Cobb County Commission (hereinafter, "the Commission"), respectively. The plaintiffs, Cobb County voters and members of the Board and the Commission, have filed these two related actions against the Cobb County Board of Elections and Registration to enjoin all future elections of the Board and Commission under the current electoral districts. The current districts for the Board and the Commission reflect the distribution of the county population as of the 1990 Census, *1314 but, according to the plaintiffs, the 2000 Census revealed significant changes in the distribution of the county population. The plaintiffs argue that the legislature's failure to draw new districts following completion of the 2000 Census has thus created substantial population deviations among the existing districts for both the Board and the Commission. These deviations, according to the plaintiffs, severely dilute the voting strength of individual voters in some districts and disproportionately increase the strength of votes in other districts, thereby resulting in a violation of the well-established one-person, one-vote principle established by the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs request that this Court declare the existing districts to be unconstitutional and enjoin defendants from certifying or approving any election held in the districts as presently configured. The plaintiffs further request that this Court establish a remedial plan to be used for the upcoming election. Plaintiffs have also presented the Court with a copy of the redistricting plan approved by the Board and the Commission, respectively. These plans were approved by the Cobb County delegation to the State House and, accordingly, were approved by the Georgia House of Representatives. These plans also received the requisite number of signatures by the Cobb County delegation to the State Senate to allow them to be approved by the State Senate. Because the Senate committee to which the plans were initially sent refused to allow the plans out of committee to be voted on by the Senate, however, the State Senate was never in a position to review or approve these plans. Accordingly, the 2002 Session of the Georgia General Assembly expired with the above plans still languishing in a committee of the State Senate. Plaintiffs argue that this Court should give deference to the plans that were approved by the Board and Commission and approved by the local delegation. David L. Wilkerson and Mark A. Bell have moved to intervene as defendants in both the Board and Commission litigation.[1] The Commission did not object to intervention and the Court agrees that intervention is appropriate in the Commission case. The Board, however, has objected to intervention by these parties. The Court has not yet ruled on the motions to intervene, as both the Board and the putative intervenors present colorable arguments in support of their position. Nevertheless, the Court allowed these putative intervenors to participate fully in the hearing and oral argument held on May 24, 2002, just as if they had been granted intervenor status. Further, the Court allowed these individuals to present proposed redistricting plans for both the Board and the Commission, which proposed plans[2] the Court has considered fully in arriving at the remedial redistricting plan established through this Order. The putative intervenors[3] and intervenors argue that the respective redistricting plans proposed by the Board and the Commission are not entitled to any deference from this Court, and have insisted that, to avoid running afoul of the preclearance requirements of Section 5 of the *1315 Voting Rights Act, this Court must devise its own remedial plan. For the purposes of this Order and for purposes of drafting a remedial plan, this Court has accepted as meritorious the intervenors' argument. Accordingly, while there may be strong similarities to different components of the four proposed plans, the ultimate remedial plan set out herein by the Court is the Court's own plan, arrived at after several days of painstaking work by the undersigned herself, with the assistance of the Court's expert, Ms. Linda Meggers, Director of Legislative Reapportionment Services for the Georgia General Assembly.[4] The Court has concluded that the existing districting plans for the Board and the Commission are unconstitutional under the one-person, one-vote principle. Therefore, it enjoins the defendant Board of Elections from conducting elections in accordance with these existing districts. Further, as it is undisputed that the Georgia Legislature will not be reconvening prior to the upcoming election, the parties and intervenors agree that an impasse has occurred that warrants the imposition of a remedial plan to be used only for the upcoming election. Thereafter, this Court will ask the legislature to complete the work it should have done in the last session and to reapportion the electoral districts for the Cobb Board and County Commission. If it fails to do so, this Court will be required to hold a full trial and thereafter to impose a permanent remedial districting plan. Attached hereto as Exhibits 1-A, B, and C are the Court redistricting map for the Cobb Board of Education, entitled FEDCTCOBBSB, statistical data relevant to the plan, and a technical description of the districting changes. Attached hereto as Exhibits 2-A, B, and C are the Court's plan for the Cobb County Commission, entitled FEDCTCOBBCC, along with its statistical data and description. In fashioning these plans, the Court has been mindful of the requirements of the Voting Rights Act, traditional redistricting principles applicable to the drafting of a remedial plan, and the need to arrive at the lowest deviation from the ideal population for each district. The Court has attempted to balance all of these considerations. To the extent that there are small deviations in each plan from the ideal population figure, these deviations have been necessary to comply with other principles applicable to the drafting of a remedial plan. The Court concludes that any deviations are de minimis and justified by the need to comply with the other dictates applicable to this endeavor. Because of the extreme time exigencies in this case,[5] the Court has issued this summary order establishing the interim plans so that the Board of Elections may begin the time-consuming work that will be required to prepare itself for the upcoming *1316 qualifying period in mid-June. The Court will endeavor to issue a more detailed Order explaining the rationale behind these plans by June 17, 2002. CONCLUSION The Court hereby declares unconstitutional the existing electoral districts for the Cobb County Board of Education and the Cobb County Board of Commissioners and enjoins their use in the upcoming election. The Court establishes, as its own remedial, interim plans, the attached district maps for each body. *1317 *1318 Plan Name: FEDCTCOBBCC Plan Type: Local User: Linda Administrator: Cobb % % BLACK TOTAL %TOTAL | HISP.OR DISTRICT POPULATION DEVIATION DEVIATION BLACK BLACK COMBO BLACK BLACK | LATINO %HISP. ------------------------------------------------------------------------------------|--------------- 001 152,843 905 0.60% 19,474 12.74% 730 20,204 13.22% | 9,411 6.16% VAP 109,455 13,251 12.11% 327 13,578 12.41% | 6,493 5.93% | 002 150,548 -1,390 -0.91% 30,519 20.27% 1,158 31,677 21.04% | 13,738 9.13% VAP 121,109 22,744 18.78% 659 23,403 19.32% | 9,986 8.25% | 003 151,878 -60 -0.04% 11,919 7.85% 673 12,592 8.29% | 6,811 4.48% VAP 108,769 7,957 7.32% 302 8,259 7.59% | 4,649 4.27% | 004 152,482 544 0.36% 52,321 34.31% 1,435 53,756 35.25% | 17,004 11.15% VAP 110,012 33,832 30.75% 645 34,477 31.34% | 11,239 10.22% ---------------------------------------------------------------------------------------------------- Total Population: 607,751 Ideal Value: 151,938 Summary Population Range: 150,548 to 152,843 Absolute Range: -1,390 to 905 Absolute Overall Range: 2,295 Relative Range: -0.91% to 0.60% Relative Overall Range: 1.51% *1319 Plan Name: FEDCTCOBBCC Plan Type: Local User: Linda Administrator: Cobb Redistricting Plan Components Report District 001 Cobb County Tract: 301.01 Tract: 301.02 BG: 1 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1999 BG: 2 Tract: 301.03 Tract: 302.05 BG: 1 1000 1001 1003 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1998 1999 Tract: 302.08 Tract: 302.09 Tract: 302.10 Tract: 302.11 BG: 1 1002 1003 1004 1005 1006 1007 1008 1009 1010 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 BG: 2 BG: 3 Tract: 302.13 Tract: 302.14 Tract: 302.15 Tract: 302.16 Tract: 302.17 Tract: 305.01 BG: 4 4060 4061 4063 4065 4068 4069 4070 4071 4072 4073 4074 4075 Tract: 306 BG: 1 1001 1002 1004 1006 1009 1010 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 *1320 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 BG: 2 BG: 3 BG: 4 BG: 5 5006 5007 5008 5009 5010 5011 5012 5013 5014 5025 5026 5027 5028 5029 5030 5031 5032 5033 5034 5035 5036 5037 5038 5039 5040 5041 5042 5043 5044 5045 5046 5047 5048 5049 5050 5051 5052 5054 5055 Tract: 307 BG: 1 1004 1006 1007 1008 1009 1010 1011 1012 1014 1015 BG: 3 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3025 3026 3027 3028 3029 3030 3031 3032 3033 3042 3043 3044 3045 BG: 4 4000 4001 4002 4003 4004 4005 4017 4018 4019 4020 4021 4022 4023 4024 4025 4026 4027 Tract: 308 BG: 3 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3030 3031 3032 3033 3034 3035 3036 3037 3038 3039 3040 3041 3042 Tract: 309.01 Tract: 309.02 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2023 2024 2025 2026 2027 2028 2029 BG: 3 BG: 4 Tract: 309.04 Tract: 309.05 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Tract: 310.02 BG: 1 1000 1002 BG: 2 2000 2001 2002 2003 2004 2005 2006 2009 2010 2011 District 002 Cobb County Tract: 303.18 Tract: 303.19 Tract: 303.20 Tract: 303.32 BG: 2 2008 2009 2010 Tract: 303.33 Tract: 303.34 Tract: 303.36 BG: 2 2004 *1321 BG: 3 Tract: 303.37 BG: 2 Tract: 303.38 BG: 1 BG: 2 BG: 3 3000 3001 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 BG: 4 4000 4001 4002 4003 4005 4006 4008 4009 4010 4011 4012 4013 4014 4015 4016 4017 4018 4019 4020 4021 4022 4023 4024 4025 Tract: 303.39 Tract: 304.01 Tract: 304.02 Tract: 304.04 BG: 1 1000 1001 1002 1007 1009 1010 1011 1012 1013 BG: 2 BG: 3 Tract: 304.05 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1030 1031 1032 BG: 2 Tract: 304.06 BG: 2 2000 2001 2002 BG: 3 BG: 4 BG: 5 Tract: 305.05 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1012 BG: 2 2000 2001 2002 2003 2004 2007 2008 2009 2010 2011 2012 2013 2014 2016 2017 2018 2019 2021 2022 2023 2024 Tract: 308 BG: 1 1000 1001 1024 1025 1026 BG: 2 2000 2001 2002 2004 2010 2011 Tract: 310.01 BG: 2 2018 2020 2030 2031 2033 BG: 9 9046 Tract: 310.02 BG: 1 1016 Tract: 310.04 BG: 1 1000 1001 1002 Tract: 311.01 Tract: 311.05 BG: 1 1000 1001 1002 1004 1005 1006 1007 1008 1009 1010 1011 1030 1035 1036 1037 1038 1039 1040 1043 1044 1045 1047 1048 1049 1050 1052 1054 1055 1058 1059 1060 1061 Tract: 311.07 *1322 BG: 2 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3025 3026 3027 3028 3029 3030 3031 3032 3033 3036 3037 3038 3039 3040 3041 3042 3043 3044 3045 3046 3047 3048 3049 3050 3051 3052 3053 3999 BG: 4 4000 4001 4002 4005 4006 4028 4029 Tract: 311.08 BG: 1 BG: 2 2000 2001 2002 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 BG: 3 3000 3001 3002 3033 3034 BG: 4 4000 4001 4002 4003 4004 4007 4008 4009 4010 4011 4012 4013 4014 4015 4016 4017 4018 4019 Tract: 311.09 BG: 1 1000 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 BG: 2 2006 Tract: 311.10 Tract: 311.11 Tract: 311.12 Tract: 312.02 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3029 3030 3031 3032 3033 3034 3035 3036 3037 3038 3997 3998 3999 BG: 4 BG: 5 BG: 6 6000 6001 6002 6003 6004 6005 6006 6007 6008 6009 6010 6011 6012 6013 6014 6015 6016 6017 6018 6019 6020 6021 6022 6025 6026 6027 6028 6029 6030 6031 6032 6033 6034 6035 6036 6037 6038 6039 6040 6041 6042 6043 6044 6045 6047 6999 Tract: 312.03 Tract: 312.04 Tract: 313.02 BG: 4 4001 4002 4003 4004 4005 4006 4007 4008 4009 4010 4011 4013 Tract: 313.07 BG: 1 1001 1002 1003 1004 BG: 3 3000 3030 3032 3033 District 003 Cobb County Tract: 301.02 BG: 1 1000 1001 1002 1003 1054 1055 1056 1057 *1323 Tract: 302.05 BG: 1 1002 1004 1005 1024 1025 BG: 2 Tract: 302.11 BG: 1 1000 1001 1011 1012 Tract: 302.12 Tract: 303.10 Tract: 303.11 Tract: 303.12 Tract: 303.13 Tract: 303.14 Tract: 303.22 Tract: 303.23 Tract: 303.24 Tract: 303.25 Tract: 303.26 Tract: 303.27 Tract: 303.28 Tract: 303.29 Tract: 303.30 Tract: 303.31 Tract: 303.32 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2998 2999 Tract: 303.35 Tract: 303.36 BG: 1 BG: 2 2000 2001 2002 2003 2005 2006 2007 2999 Tract: 303.37 BG: 1 Tract: 304.05 BG: 1 1029 Tract: 305.01 BG: 1 BG: 2 BG: 3 BG: 4 4000 4001 4002 4003 4004 4005 4006 4007 4008 4009 4010 4011 4012 4013 4014 4015 4016 4017 4018 4019 4020 4021 4022 4023 4024 4025 4026 4027 4028 4029 4030 4031 4032 4033 4034 4035 4036 4037 4038 4039 4040 4041 4042 4043 4044 4045 4046 4047 4048 4049 4050 4051 4052 4053 4054 4055 4056 4057 4058 4059 4062 4064 4066 4067 4076 4077 4078 4079 4080 4081 4082 4083 4084 4085 4086 Tract: 305.02 Tract: 305.04 Tract: 305.05 BG: 1 1010 1011 1013 1014 1015 1016 1017 BG: 2 2005 2006 2015 2020 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 2038 Tract: 306 BG: 1 1000 1003 1005 1007 1008 1011 *1324 BG: 5 5000 5001 5002 5003 5004 5005 5015 5016 5017 5018 5019 5020 5021 5022 5023 5024 5053 5056 5057 5997 5998 5999 Tract: 307 BG: 1 1000 1001 1002 1003 1005 1013 1016 1017 1018 1019 1020 1021 1022 BG: 2 2001 BG: 4 4006 4007 4008 4009 4010 4011 4012 4013 4014 4015 4016 District 004 Cobb County Tract: 303.38 BG: 3 3002 BG: 4 4004 4007 Tract: 304.04 BG: 1 1003 1004 1005 1006 1008 Tract: 304.06 BG: 1 BG: 2 2003 Tract: 307 BG: 2 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 BG: 3 3000 3001 3002 3003 3034 3035 3036 3037 3038 3039 3040 3041 Tract: 308 BG: 1 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1027 BG: 2 2003 2005 2006 2007 2008 2009 2012 2013 2014 2015 2016 2017 2018 2019 BG: 3 3000 3001 3002 3003 3004 3025 3026 3027 3028 3029 3043 Tract: 309.02 BG: 2 2020 2021 2022 Tract: 309.05 BG: 2 2016 2017 BG: 3 Tract: 310.01 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2019 2021 2022 2023 2024 2025 2026 2027 2028 2029 2032 BG: 9 9000 9001 9002 9003 9004 9005 9006 9007 9008 9009 9010 9011 9012 9013 9014 9015 9016 9017 9018 9019 9020 9021 9022 9023 9024 9025 9026 9027 9028 9029 9030 9031 9032 9033 9034 9035 9036 9037 9038 9039 9040 9041 9042 9043 9044 9045 9047 9048 *1325 9049 9050 Tract: 310.02 BG: 1 1001 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1017 1018 1019 1020 1021 1022 1023 BG: 2 2007 2008 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 Tract: 310.04 BG: 1 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 BG: 2 BG: 3 Tract: 310.05 Tract: 311.05 BG: 1 1003 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1031 1032 1033 1034 1041 1042 1046 1051 1053 1056 1057 BG: 2 Tract: 311.06 Tract: 311.07 BG: 3 3034 3035 BG: 4 4003 4004 4007 4008 4009 4010 4011 4012 4013 4014 4015 4016 4017 4018 4019 4020 4021 4022 4023 4024 4025 4026 4027 4030 4031 4032 4033 4034 4035 4036 4037 4038 4039 4040 4041 4042 4043 4044 4045 4046 4047 4048 4999 Tract: 311.08 BG: 2 2003 2004 BG: 3 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3025 3026 3027 3028 3029 3030 3031 3032 BG: 4 4005 4006 Tract: 311.09 BG: 1 1001 BG: 2 2000 2001 2002 2003 2004 2005 Tract: 312.02 BG: 3 3024 3025 3026 3027 3028 3996 BG: 6 6023 6024 6046 Tract: 313.02 BG: 1 BG: 2 BG: 3 BG: 4 4000 4012 4014 4015 4016 4017 4018 4019 4020 4021 4022 4023 4024 4025 4026 4027 4028 4029 4030 4031 4032 4033 BG: 5 BG: 9 Tract: 313.06 Tract: 313.07 *1326 BG: 1 1000 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 BG: 2 BG: 3 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3025 3026 3027 3028 3029 3031 Tract: 313.08 Tract: 313.09 Tract: 313.10 Tract: 313.11 Tract: 314.04 Tract: 314.05 Tract: 314.06 Tract: 314.07 Tract: 315.01 Tract: 315.03 Tract: 315.04 Tract: 315.05 *1327 *1328 Plan Name: FEDCTCOBBSB Plan Type: User: staff Administrator: % % BLACK TOTAL %TOTAL | HISP.OR DISTRICT POPULATION DEVIATION DEVIATION BLACK BLACK COMBO BLACK BLACK | LATINO %HISP. ------------------------------------------------------------------------------------------------------------- 001 78,253 -176 -0.22% 4,954 6.33% 242 5,196 6.64% | 2,772 3.54% VAP 53,936 3,187 5.91% 84 3,271 6.06% | 1,747 3.24% 002 78,349 -80 -0.10% 19,423 24.79% 653 20,076 25.62% | 7,562 9.65% VAP 64,027 14,159 22.11% 356 14,515 22.67% | 5,398 8.43% 003 77,737 -692 -0.88% 29,078 37.41% 668 29,746 38.26% | 6,048 7.78% VAP 55,584 18,768 33.77% 300 19,068 34.30% | 3,928 7.07% 004 79,716 1,287 1.64% 7,751 9.72% 443 8,194 10.28% | 4,044 5.07% VAP 57,788 5,249 9.08% 207 5,456 9.44% | 2,730 4.72% 005 77,803 -626 -0.80% 3,971 5.10% 255 4,226 5.43% | 2,146 2.76% VAP 54,947 2,675 4.87% 115 2,790 5.08% | 1,427 2.60% 006 79,704 1,275 1.63% 8,981 11.27% 453 9,434 11.84% | 3,729 4.68% VAP 61,481 6,579 10.70% 246 6,825 11.10% | 2,690 4.38% 007 77,441 -988 -1.26% 22,745 29.37% 699 23,444 30.27% | 10,716 13.84% VAP 55,992 14,939 26.68% 315 15,254 27.24% | 7,135 12.74% ------------------------------------------------------------------------------------------------------------- Total Population: 549,003 Ideal Value: 78,429 Summary Population Range: 77,441 to 79,716 Absolute Range: -988 to 1,287 Absolute Overall Range: 2,275 Relative Range: -1.26% to 1.64% Relative Overall Range: 2.90% *1329 Plan Name: FEDCTCOBBSB Plan Type: Local User: Linda Administrator: Cobb Redistricting Plan Components Report District 001 Cobb County Tract: 301.01 Tract: 301.02 BG: 1 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1041 1063 1064 1066 1067 1068 1073 1074 BG: 2 Tract: 301.03 BG: 1 BG: 2 2000 2001 2002 2003 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2017 2020 2021 2022 2023 2024 2025 2026 2028 2029 BG: 3 Tract: 302.05 BG: 1 1074 1075 1076 1077 1078 1079 1082 1083 1086 1087 1088 1089 Tract: 302.08 Tract: 302.09 BG: 2 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2999 Tract: 302.11 BG: 1 1053 1073 1074 1076 1077 1078 1084 1085 1086 1087 1095 1096 1097 1098 1099 1100 BG: 3 3030 3060 3061 Tract: 302.13 Tract: 302.14 Tract: 302.15 Tract: 302.16 Tract: 302.17 BG: 1 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1027 1028 1029 1030 1034 1049 1051 1052 1053 1054 1055 1056 1057 1058 1059 1061 1063 1064 1065 1066 1067 1069 1070 1071 1072 1075 1077 1078 1079 1080 1081 1082 1083 1085 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1101 1105 1108 1109 1111 1995 1996 1998 1999 BG: 2 BG: 3 Tract: 306 BG: 4 4002 4003 4015 4016 4018 4021 4022 District 002 Cobb County Tract: 303.38 BG: 4 4000 4001 4002 4003 4004 4005 4006 4011 4012 4013 4014 4015 *1330 4016 4017 4018 4019 4020 4021 4022 4023 4024 4025 Tract: 303.39 BG: 1 Tract: 304.04 BG: 1 1003 1006 1009 1010 1012 1013 BG: 2 2004 Tract: 304.06 BG: 1 1006 1008 1009 1010 1013 Tract: 308 BG: 2 2013 2017 2019 BG: 3 3040 3041 3043 Tract: 310.01 BG: 2 2018 2020 2030 2031 2033 BG: 9 9002 9003 9004 9005 9006 9008 9009 9010 9011 9012 9013 9014 9015 9016 9017 9018 9019 9020 9021 9022 9023 9024 9026 9027 9028 9029 9030 9031 9032 9033 9034 9035 9036 9037 9038 9039 9040 9041 9042 9043 9044 9045 9046 9047 9048 9049 9050 Tract: 310.02 BG: 1 1016 Tract: 310.04 BG: 1 1000 1001 1002 Tract: 311.01 Tract: 311.05 BG: 1 1000 1001 1002 1004 1005 1006 1007 1008 1009 1010 1011 1016 1017 1018 1019 1029 1030 1035 1036 1037 1038 1039 1040 1043 1044 1045 1047 1048 1049 1050 1051 1052 1053 1054 1055 1058 1060 1061 BG: 2 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 Tract: 311.06 BG: 4 4020 Tract: 311.07 BG: 2 BG: 3 BG: 4 4000 4001 4002 4003 4004 4005 4006 4007 4008 4009 4023 4024 4025 4026 4027 4028 4029 4030 4031 4032 4033 4034 4035 4036 4037 4038 4039 4040 4041 4042 4043 4044 4045 Tract: 311.08 Tract: 311.09 BG: 1 1000 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 BG: 2 2006 Tract: 311.10 Tract: 311.11 Tract: 311.12 Tract: 312.02 Tract: 312.03 *1331 Tract: 312.04 Tract: 313.02 BG: 4 4000 4001 4002 4003 4004 4005 4006 4007 4008 4009 4010 4011 4013 4014 4015 4016 4017 4018 4019 4020 4021 4022 4023 4024 4025 4026 4027 4028 4029 4030 4031 4032 4033 BG: 5 Tract: 313.06 BG: 1 1019 Tract: 313.07 BG: 1 1000 1001 1002 1003 1004 1006 BG: 2 BG: 3 District 003 Cobb County Tract: 313.02 BG: 1 BG: 2 BG: 3 BG: 4 4012 BG: 9 Tract: 313.06 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1020 1021 1022 1023 1024 1025 1026 BG: 2 Tract: 313.07 BG: 1 1005 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 Tract: 313.08 Tract: 313.09 Tract: 313.10 Tract: 313.11 Tract: 314.04 Tract: 314.05 BG: 2 2018 BG: 4 Tract: 314.06 Tract: 314.07 Tract: 315.01 Tract: 315.03 BG: 2 2018 2019 Tract: 315.04 BG: 1 1007 1009 1010 1011 1013 1014 1999 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2030 2031 2033 2034 2035 2036 2037 2038 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3027 3029 3031 3032 3033 BG: 4 *1332 Tract: 315.05 District 004 Cobb County Tract: 301.02 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1035 1036 1037 1038 1039 1040 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1065 1069 1070 1071 1072 1999 Tract: 301.03 BG: 2 2004 2016 2018 2019 2027 Tract: 302.05 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1080 1081 1084 1085 1090 1091 1092 1093 1998 1999 BG: 2 Tract: 302.11 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1075 1079 1080 1081 1082 1083 1088 1089 1090 1091 1092 1093 1094 BG: 2 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3025 3026 3027 3028 3029 3031 3032 3033 3034 3035 3036 3037 3038 3039 3040 3041 3042 3043 3044 3045 3046 3047 3048 3049 3050 3051 3052 3053 3054 3055 3056 3057 3058 3059 3062 3063 3064 3065 Tract: 302.12 Tract: 302.17 BG: 1 1000 1001 1026 1031 1032 1033 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1050 1060 1062 Tract: 303.10 Tract: 303.11 BG: 1 1000 1001 1002 1003 1004 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1999 BG: 2 BG: 3 BG: 4 Tract: 303.12 BG: 1 1002 BG: 3 BG: 4 4000 4001 4002 4003 4004 4005 4006 4007 4008 4009 4010 4011 4012 Tract: 303.13 *1333 Tract: 303.14 BG: 1 1006 1007 1016 1017 1018 1019 1020 1021 1022 BG: 2 Tract: 303.24 Tract: 305.01 BG: 3 3027 3029 3031 3032 3033 BG: 4 4000 4001 4002 4003 4004 4005 4006 4007 4008 4009 4010 4011 4012 4053 4054 4055 4056 4060 4061 4063 4065 4068 4069 4070 4073 4074 4075 Tract: 306 BG: 1 1001 1002 1004 1006 1009 1010 1013 1014 1015 1017 1019 1021 1024 1025 1028 1029 1030 1031 1032 1033 1034 1035 1036 1038 1039 1040 1043 1044 1053 1060 1061 1063 BG: 2 2005 2006 2007 2008 2009 2010 2011 2012 2013 2017 2019 2020 2023 2028 2034 BG: 4 4000 4001 4009 4010 4011 4012 BG: 5 5000 5001 5002 5003 5004 5005 5006 5007 5008 5009 5010 5011 5014 5015 5016 5024 5025 5027 5029 5030 5031 5032 5033 5035 5039 5040 5042 5043 5044 5045 5046 5047 5048 5049 5050 5054 5055 5056 5057 5997 5998 5999 Tract: 307 BG: 1 1004 District 005 Cobb County Tract: 303.11 BG: 1 1005 1006 1007 1008 1024 1025 Tract: 303.12 BG: 1 1000 1001 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 BG: 2 BG: 4 4013 4014 4015 4016 4017 4018 4019 4020 4021 4022 4023 BG: 5 Tract: 303.14 BG: 1 1000 1001 1002 1003 1004 1005 1008 1009 1010 1011 1012 1013 1014 1015 BG: 3 Tract: 303.22 Tract: 303.23 Tract: 303.25 Tract: 303.26 Tract: 303.27 Tract: 303.28 Tract: 303.29 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2007 2008 2013 2014 Tract: 303.30 BG: 1 BG: 2 *1334 Tract: 303.31 Tract: 303.35 Tract: 303.36 BG: 1 Tract: 305.01 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2024 2025 2028 2030 2031 2035 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3012 3013 3014 3015 3016 3017 3018 3019 3020 3021 3022 3023 3024 3025 3026 3028 3030 BG: 4 4018 4019 4020 4022 4024 4026 4030 4031 4034 4035 4036 4037 4039 4040 4043 4044 4047 4048 4049 4051 4059 4079 4080 4082 4085 4086 Tract: 305.02 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1023 BG: 2 2000 2007 2008 2011 2012 2015 2019 2053 2054 2055 2056 2057 2058 2059 BG: 3 District 006 Cobb County Tract: 303.18 Tract: 303.19 Tract: 303.20 Tract: 303.29 BG: 2 2006 2009 2010 2011 2012 2999 Tract: 303.30 BG: 3 Tract: 303.32 Tract: 303.33 Tract: 303.34 Tract: 303.36 BG: 2 BG: 3 Tract: 303.37 Tract: 303.38 BG: 1 BG: 2 BG: 3 3000 3001 3003 3004 3005 3006 3007 3008 3009 3010 3011 BG: 4 4008 4009 4010 Tract: 303.39 BG: 2 Tract: 304.01 BG: 1 BG: 2 BG: 3 3000 3001 3002 3003 3007 3008 3009 3010 3012 3014 3015 3016 3017 3018 3019 3021 3022 3023 3024 3025 3026 3027 3028 3029 3030 3031 Tract: 304.02 BG: 1 BG: 2 *1335 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3014 3015 3016 3017 3018 3019 3020 3021 3022 BG: 4 Tract: 304.05 BG: 1 1001 1002 1003 1004 1005 1008 1009 1010 1012 1013 1014 1023 BG: 2 2000 2001 2002 2003 2004 2006 2010 2013 2014 2016 2017 2018 2022 2023 2025 2028 2029 2032 2033 2034 2035 2036 2037 2038 2039 2040 2041 2042 2043 2045 2046 2047 Tract: 304.06 BG: 1 1001 BG: 2 2001 2002 BG: 3 3000 3001 3002 3003 3004 3005 3008 3009 BG: 4 4001 4002 BG: 5 5000 5002 5003 5004 5005 5007 5008 Tract: 305.02 BG: 1 1019 BG: 2 2013 2014 2017 2022 2023 2024 2026 2027 2028 2029 2033 2034 2035 2036 2050 2051 2052 Tract: 305.04 BG: 2 2003 2004 2007 2008 2009 2010 2011 2012 2013 2016 2017 BG: 3 3000 3001 3002 3003 3004 3005 3006 3007 3008 3009 3010 3011 3014 3015 3016 3018 3019 3020 3024 3025 Tract: 305.05 BG: 1 1000 1001 1002 1003 1004 1005 1006 1009 BG: 2 2001 2002 2003 2007 2008 2009 2010 2011 2012 2013 2014 2016 2017 2018 2019 2022 2023 2024 District 007 Cobb County Tract: 302.09 BG: 1 BG: 2 2000 Tract: 302.10 Tract: 308 BG: 3 3042 Tract: 309.01 BG: 1 1005 1006 1007 BG: 2 2001 2004 2005 2006 2007 2008 2009 2010 2011 2023 2024 2025 2027 2028 2030 2031 2999 BG: 3 3003 3004 3005 3006 BG: 4 4004 4006 4007 4011 4014 Tract: 309.02 BG: 1 *1336 1024 BG: 2 2000 2004 2005 2006 2010 2011 2012 2015 2016 2017 2018 2019 2020 2021 2022 2023 2025 2026 2027 2028 2029 Tract: 309.04 BG: 1 1006 1007 1009 1012 1013 BG: 2 2000 2006 2010 2012 2013 BG: 3 3003 3006 3007 3008 BG: 4 4001 4002 4003 4004 4005 4006 4007 4008 4009 4012 Tract: 309.05 BG: 1 1000 1003 1004 1005 1006 1007 1008 1009 1010 1011 BG: 2 BG: 3 Tract: 310.01 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2019 2021 2022 2023 2024 2025 2026 2027 2028 2029 2032 Tract: 310.02 BG: 1 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1017 1018 1019 1020 1021 1022 1023 BG: 2 2000 2002 2004 2005 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 Tract: 310.04 BG: 1 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 BG: 2 BG: 3 Tract: 310.05 Tract: 311.05 BG: 1 1003 1012 1013 1014 1015 1020 1021 1022 1023 1024 1025 1026 1027 1028 1031 1032 1033 1034 1041 1042 1046 1056 1057 1059 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2037 2038 2039 2040 2041 2042 2043 2044 2045 2046 Tract: 311.06 BG: 4 4000 4001 4002 4003 4004 4005 4006 4007 4008 4009 4010 4011 4012 4013 4014 4015 4016 4017 4018 4019 4021 4022 4023 4024 4025 4026 4027 4028 4029 4030 4031 4032 4999 BG: 5 Tract: 311.07 BG: 4 4010 4011 4012 4013 4014 4015 4016 4017 4018 4019 4020 4021 4022 4046 4047 4048 4999 Tract: 314.07 BG: 1 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2019 2020 2021 BG: 3 Tract: 315.03 BG: 1 *1337 BG: 2 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2020 2999 BG: 3 Tract: 315.04 BG: 1 1000 1001 1002 1003 1004 1005 1006 1008 1012 BG: 2 2029 2032 BG: 3 3025 3026 3028 3030 NOTES [1] The Democratic Party of Georgia has also moved to appear as an amicus curiae, which motion the Court orally granted. The Democratic Party echoes the arguments made by the intervenors in both actions and is represented by the same counsel. [2] The Court also considered, and ultimately adopted, to a large extent, an alternate suggestion made at the hearing by counsel for the intervenors with regard to the redistricting of Commission District 4. [3] The Court hereinafter uses the term "intervenors" throughout the rest of this Order to refer to the intervenors and putative intervenors. The Court will rule on the latter's Motion to Intervene in its forthcoming order. [4] All parties agreed to the Court's appointment of Ms. Meggers as its technical expert in assisting with the drafting of the Court's plan. [5] The defendant Board of Elections initially insisted that this Court must release any interim plan by May 31, 2002 in order for the Board of Elections to make the necessary adjustments to districts prior to the beginning of the qualifying period. When this Court expressed a concern at the May 24th hearing that it might not be able to make such a deadline, the defendant indicated that the last conceivable date for the order to be issued in time for qualifying would be June 7, 2002, but that, for obvious reasons, an earlier release of the order was desirable. Accordingly, the Court has endeavored to release its interim plan by the requested date. Moreover, the Court is sympathetic to the time constraints facing the defendant Board of Elections. Indeed, the parties and intervenors agree that Cobb County finds itself in this extremely difficult position not out of any failing on its part—after all, Cobb County and its local delegations completed their redistricting plans, as they were supposed to do. Instead, the Court, the parties, and the taxpayers of Cobb County have been placed in this untenable situation because the State Senate decided to shirk its responsibilities.

506 S.E.2d 685 (1998) 234 Ga. App. 332 MOORE v. The STATE. No. A98A1109. Court of Appeals of Georgia. September 14, 1998. *686 Clark & Rogers, Douglas C. Rogers, Thomasville, for appellant. J. David Miller, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee. HAROLD R. BANKE, Senior Appellate Judge. Alfonzo Moore was convicted of terroristic threats, felony obstruction of a law enforcement officer, interference with government property, driving under the influence, reckless driving, driving with a suspended license, failure to provide proof of insurance, lane violations under OCGA § 40-6-48, and two counts of failure to use a turn signal. He enumerates three errors on appeal. This case arose during the early morning hours when the arresting officer received a radio dispatch that shots had been fired in his vicinity. The only vehicle he observed was a white pickup truck driving through the area. The officer's investigation intensified after he received a report of additional shots and a pedestrian informed him that the shots had been fired from a white Ford *687 pickup truck. When the officer spotted the white pickup lane weaving across the road and turning without signaling, he turned on his lights and siren. At that, the pickup accelerated, made a second turn without signaling, veered onto the wrong side of the road, and pulled up a nearby driveway. The officer followed the truck into the driveway and ordered the approaching driver and passenger back into the pickup. Instead of obeying, the passenger fled and Moore, the driver, continued toward the officer, yelling profanity. When the officer reiterated his order, Moore again ignored him. At that point, the officer told Moore he was under arrest and grabbed him. Moore flailed, swung at the officer and pushed him. When pepper spray did not subdue Moore, the officer radioed for backup, which arrived as Moore was fleeing into his residence. Eventually four officers managed to handcuff Moore and force him into the back of a patrol car. Moore continued to swear and threatened to kill the arresting officer. Experiencing the effects of the pepper spray, Moore asked for air, and an officer cracked a window and wiped secretions from Moore's face. Moore then kicked out the cruiser's left rear window. Moore was unable to produce a driver's license or insurance card and refused to take a breathalyzer test. Held: 1. Moore maintains the trial court's refusal to give a justification instruction relating to the interference with government property charge requires reversal. Guest v. State, 229 Ga.App. 627, 628(1), 494 S.E.2d 523 (1997) (appellants may not enlarge their enumerations through their briefs). We agree. The requested charge stated, "If you find that the defendant's conduct was justified, this is a defense for prosecution for any crime based on that conduct." This language tracks the pattern charge and OCGA § 16-3-20, which sets forth the circumstances where the defense of justification can be claimed. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 43 (2nd ed. 1991). It is undisputed Moore had high blood pressure and allergies and the pepper spray caused Moore acute respiratory distress. While seated in the cruiser he screamed for air, gagged, and bodily secretions streamed down his face. Although an officer cracked one window a few inches, this brought Moore no relief, and he kicked out the window to ease his symptoms. See OCGA § 16-3-20(5). Because Moore presented no other defense to this charge and the evidence supported it, he was entitled to the instruction as it related to the interference with government property charge. Tarvestad v. State, 261 Ga. 605, 606, 409 S.E.2d 513 (1991). Having reviewed the instructions as a whole, we cannot say that they fairly presented this defense to the jury. Thus, the conviction on Count 3 must be reversed. Jones v. State, 220 Ga.App. 784, 785-786, 470 S.E.2d 326 (1996). 2. The trial court properly denied Moore's motion for directed verdict of acquittal on the no proof of insurance charge. Notwithstanding Moore's contention to the contrary, OCGA § 40-6-10 does not require that an officer "request" an insurance card in order to prosecute a driver for no proof of insurance. That statute simply requires owners and operators of motor vehicles to "keep proof or evidence of required minimum insurance coverage in the vehicle at all times." OCGA § 40-6-10(a)(1). The record shows that no such proof was found in Moore's pickup truck. 3. The evidence, when viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements of each crime. Jackson v. Virginia, 443 U.S. 307, 319-320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In analyzing the sufficiency of the evidence, this Court may not reweigh the evidence or determine witness credibility. Pardo v. State, 215 Ga.App. 317(1), 450 S.E.2d 440 (1994). (a) The arresting officer testified that Moore threatened to find him and kill him. OCGA § 16-11-37(a). Several of the back-up officers corroborated this evidence with testimony of Moore's threat. This evidence is sufficient to support the terroristic threats conviction. See Sampson v. State, 209 Ga. App. 213, 215(1), 433 S.E.2d 136 (1993). *688 (b) After the officer lawfully placed Moore under arrest and attempted to seize him, Moore flailed, swung at the officer and pushed him.[1] This evidence fully supported the verdict on the felony obstruction charge. See Miller v. State, 226 Ga.App. 133, 134(2), 486 S.E.2d 368 (1997). (c) The evidence was likewise sufficient to establish a violation of OCGA § 40-6-391(a)(1). While subduing Moore, the arresting officer noticed Moore's slurred speech, red, glassy eyes, his loudness and boisterousness, and the odor of an alcoholic beverage. The officer also testified that he believed Moore was driving under the influence of alcohol to a point that it was less safe to drive. Walker v. State, 230 Ga.App. 376, 377, 497 S.E.2d 12 (1998). Notwithstanding Moore's contention to the contrary, no documentary evidence of intoxication was required. See id. (d) We also find the arresting officer's testimony that he observed Moore weave across the road was sufficient to sustain the conviction for lane violations under OCGA § 40-6-48. The evidence that Moore drove after consuming alcohol to the extent he was less safe to drive, swerved and veered onto the wrong side of the road due to the excessive speed in which he turned the truck and accelerated after the officer activated his lights and siren showed a sufficient disregard for the safety of the passenger and the arresting officer to support the reckless driving conviction. See Duggan v. State, 225 Ga. App. 291, 294(1), 483 S.E.2d 373 (1997); State v. Wright, 221 Ga.App. 202, 206(3), 470 S.E.2d 916 (1996); Hill v. State, 207 Ga.App. 65, 66(1), 426 S.E.2d 915 (1993). We find, however, that the evidence was insufficient to sustain the convictions for failure to signal due to the lack of evidence that a turn signal was required to alert other drivers in the area to Moore's turn. OCGA § 40-6-123(a), (b); Bowers v. State, 221 Ga.App. 886, 887, 473 S.E.2d 201 (1996) (physical precedent only). Judgments affirmed in part and reversed in part. JOHNSON, P.J., and SMITH, J., concur. NOTES [1] The officer had probable cause to arrest Moore for either the traffic violations or misdemeanor obstruction. Compare Woodward v. State, 219 Ga.App. 329, 330(1), 465 S.E.2d 511 (1995).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-2185 RANDY L. THOMAS, and as Father, Next of Friend, Natural Guardian, and on behalf of A.T.T., Plaintiff - Appellant, v. RONALD L. CHAPMAN, In his Official and Personal Capacity; CHRISTY T. MANN, In her Official and Personal Capacity; GEORGE E. BATTLE, III, In his Official and Personal Capacity; BARRY BOWE, In his Official and Personal Capacity; UNITED STATES DEPARTMENT OF EDUCATION; MCDOWELL STREET CENTER FOR FAMILY LAW INC.; DONNA J. JACKSON, In her Official and Personal Capacity; AIDA CORREA, a/k/a Aida Correa Vazquez, a/k/a Aida Correa Velez; GRAHAM C. MULLEN, In his Official and Personal Capacity; JOHN AND JANE DOES 1-50, In their Official and Personal Capacity; STATE OF NORTH CAROLINA; CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:11-cv-00694-BR) Submitted: January 18, 2018 Decided: January 22, 2018 Before GREGORY, Chief Judge, and SHEDD and HARRIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Randy L. Thomas, Appellant Pro Se. Daniel William Clark, THARRINGTON SMITH LLP, Raleigh, North Carolina; G. Norman Acker, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Randy L. Thomas seeks to appeal the district court’s order denying his motion “Vacating/Denial/Dismissal/Discharge of IV-D case.” We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than 60 days after the entry of the district court’s final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court’s order was entered on the docket on August 7, 2017. The notice of appeal was filed on October 10, 2017. Because Thomas failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3 

49 So.3d 763 (2011) PARKER v. STATE. No. 4D09-2822. District Court of Appeal of Florida, Fourth District. January 5, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.

919 N.E.2d 554 (2009) STATE v. RICHARDSON. Supreme Court of Indiana. October 1, 2009. Transfer granted.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1259V Filed: April 4, 2016 * * * * * * * * * * * * * * * * UNPUBLISHED JAMES D. ELLIS, * * Special Master Gowen Petitioner, * * Decision on Attorneys’ v. * Fees and Costs. * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner. Christine M. Becer, United States Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On October 27, 2015, James D. Ellis (“petitioner”) filed a petition pro se pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged that as a result of receiving a trivalent influenza (“flu”) vaccine or a pneumococcal vaccine on October 24, 2012, he suffered meningitis and left arm cellulitis. Petition at ¶ 5, filed Oct. 27, 2015. On December 3, 2015, petitioner’s counsel entered an appearance in this case. On February 4, 2016, I dismissed this petition upon respondent’s motion to dismiss as the claims were barred under section 300aa-16(a)(2) and section 300aa-11(c)(1)(D)(i) of the Vaccine Act. See Decision, 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. 1 docket no. 12, filed Feb. 4, 2016. On March 31, 2016, petitioner filed an unopposed motion for attorneys’ fees and costs. Petitioner requests a total amount of $5,807.11 for attorneys’ fees and costs. Motion for Fees and Costs at ¶ 1, filed Mar. 31, 2016. “Respondent has no objection.” Id. at ¶ 2. In accordance with General Order #9, petitioner represents that he did not incur any reimbursable costs in pursuit of this claim. Id. at ¶ 3. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). I have reviewed the time records and costs submitted by the petitioner and they appear reasonable. Based on the reasonableness of petitioner’s application, the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs. Accordingly, an award should be made as follows: (1) in the form of a check jointly payable to petitioner and to petitioner’s attorney, Andrew D. Downing, of Van Cott & Talamante, PLLC, in the amount of $5,807.11. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance herewith.3 IT IS SO ORDERED. s/ Thomas L. Gowen Thomas L. Gowen Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 

729 So.2d 1141 (1999) STATE of Louisiana v. Theresa MORRIS. No. 98-K-2684. Court of Appeal of Louisiana, Fourth Circuit. March 10, 1999. Harry F. Connick, District Attorney, Eli Nelson, Assistant District Attorney, Norman Comeaux, Assistant District Attorney, Orleans Parish, New Orleans, Louisiana for Plaintiff/Relator. Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MIRIAM G. WALTZER. ARMSTRONG, Judge. We grant the State's application for supervisory writs to consider the correctness of a trial court ruling granting the defendant Theresa Morris' motion to withdraw the guilty plea. For the following reasons, we affirm the ruling of the trial court. On November 25, 1996, the defendant was charged with one count of distribution of marijuana, a charge to which she originally pled not guilty. However, on July 1, 1998, she withdrew this plea and pled guilty as charged. The court reset sentencing, and on September 18, 1998, new counsel filed a motion to withdraw the guilty plea. A hearing was held on this motion on September 21, 1998 and at that time the court noted it was not going to rule on the motion until after sentencing. Sentencing was reset to September 22, 1998 when the defendant reurged the motion. Again, the court deferred ruling on the motion, and it sentenced the defendant to serve ten years at hard labor as per the plea bargain agreement. On October 2, 1998 the court again considered the motion to withdraw the guilty plea, and on October 6th the court granted the motion and set a trial date of December 2, 1998. The State sought relief in this court in mid-November 1998, and at that time this court stayed the trial pending resolution of this matter. In compliance with orders from this court, the State has supplemented its application with the transcripts of the September 21, September 22, and October 2, 1998 hearings, and the trial court filed a per curiam. In its application, the State argues that the trial court should not have allowed the defendant to withdraw her guilty plea because she *1142 had already been sentenced. A reading of the supplemental transcripts reveals the defendant filed the motion to withdraw the guilty plea prior to sentencing and repeatedly attempted to have the court rule on the motion prior to sentencing. However, the court refused to do so, noting the plea was taken many months prior to the hearings. It is equally clear that the trial court did not grant the motion based upon the reason set forth in the motion to withdraw, that the plea was not knowingly given because there was an actual conflict between her interests and those of her codefendant, who was also represented by the defendant's counsel at the time the defendant pled guilty. Instead, the per curiam and the transcripts indicate the trial court granted the motion based upon the defendant's showing that the court failed to advise her of her right to conflict-free counsel, as set forth in La.C.Cr.P. art. 517. The standard of review in determining whether a trial court erred in its ruling on a motion to withdraw a guilty plea, filed and ruled upon prior to sentencing, is whether the trial court's discretion is abused or arbitrarily exercised. See State v. Pichon, 96-0886 (La.App. 4 Cir. 11/20/96), 684 So.2d 501.[1] Although La.C.Cr.P. art. 559 authorizes the trial court to grant a motion to withdraw only prior to sentencing, this authority has been extended in a limited fashion to cases where the motion is filed after sentencing. In those cases, a trial court is authorized to allow a defendant to withdraw his guilty plea if it finds the plea was not freely or voluntarily entered or that the plea is unconstitutionally infirm. See State v. Lewis, 421 So.2d 224 (La.1982); State v. Smith, 406 So.2d 1314 (La.1981); State v. King, 93-2146 (La.App. 4 Cir. 6/30/94), 639 So.2d 1231.[2] In the instant case, the motion was filed prior to sentencing, but over defense objection the trial court refused to rule until after sentencing. In light of these facts, we find the "pre-sentence" abuse of discretion standard applies. Indeed, the defendant should not be penalized, in that a stricter standard would be required to grant her motion, simply because the trial court refused to rule on the motion prior to sentencing. Under an abuse of discretion standard, we uphold the trial court's ruling. As noted in the court's per curiam, La.C.Cr.P. art. 517 mandates that jointly-represented defendants be advised of their rights to conflict-free representation. Art. 517 provides: A. Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial, and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law, the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation. B. Unless it appears that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel. In the present case, defense counsel submitted affidavits from prior counsel and from the court's own court reporters that the court failed to advise the defendant of her right to conflict-free counsel prior to accepting her plea of guilty. Given the court's failure to comply with the mandates of art. 517, we find that the trial court did not abuse its discretion by finding such failure rendered the plea involuntary. Even if we were to employ the stricter standard used to determine if a plea should be set aside where the motion to do so is filed after sentencing, it still appears the trial court did not err. The court stated that by failing to advise the defendant of her right to conflict-free counsel, it could not find that her plea was knowingly given, which is a basis for granting a motion to withdraw a guilty plea which is filed after sentencing. Thus, it appears the trial court did not err even if the stricter standard is employed. *1143 CONCLUSION Because the defendant filed her motion to withdraw her guilty plea prior to sentencing and objected to the imposition of sentence prior to the ruling on the motion, we should not "penalize" her by employing a stricter standard of review of the trial court's ruling. The facts of the case indicate the trial court did not abuse its discretion by granting the motion. Accordingly, we grant the application for supervisory writs, and affirm the ruling of the trial court. WRIT GRANTED; AFFIRMED. NOTES [1] Writ den. 97-0520 (La.9/5/97), 700 So.2d 504. [2] Overruled on other grounds, State v. Green, 93-1432 (La.App. 4 Cir. 4/17/96), 673 So.2d 262.

566 P.2d 445 (1977) Bobby D. CHRISTIAN, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, an Insurance Company, Appellee. No. 46892. Supreme Court of Oklahoma. July 5, 1977. Clyde A. Muchmore, Loyal J. Roach, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for appellee. Bill A. Pipkin, Moore, for appellant. *446 DOOLIN, Justice. Bobby Christian filed a petition in district court against Metropolitan Life Insurance (Company) asking for a declaratory judgment pursuant to 12 O.S. 1971 § 1651. He sought a determination of the amount of benefits due to him under a long term disability insurance policy issued by Company. The group policy, insuring employees of the Dowell division of Dow Chemical Company (Dow), provided for monthly payments of 50% of an employee's monthly salary in the event an employee became permanently disabled. The payments would commence six months after the injury causing the disability occurred. The policy was non-contributory in that all premiums were paid by Dow. On May 5, 1970, Christian was injured in the course of his employment resulting in permanent disability from that date. At that time his monthly salary was $700.00 per month. These facts are not contested. The master policy issued, in the fall of 1967, provided in pertinent part: 1. The amount of monthly benefits shall be an amount equal to 50% of employee's base monthly earnings as determined by the employer, not to exceed $2,500.00 2. When it was shown that employee's disability had existed for a period of six months, company would pay employee his monthly benefit for an initial period of 24 months. 3. The payment of monthly benefits was made subject to certain reductions. Two of these reductions are relevant. "(b) The amount of any weekly or monthly benefits paid or payable to the Employee for time lost from work under any workmen's compensation or occupational *447 disease law, or from any fund, other insurance, or other arrangement, provided or established in conformity with any state or other governmental disability or cash sickness benefit law, and "(c) The amount of Social Security Benefits to which the Employee is (or upon making timely and proper request and submitting due proof would be) entitled by reason of his disability." The policy also provided that in no event would the rate of monthly benefits after these adjustments be less than $50.00 monthly. In January of 1970, Dow and Company entered into negotiations to revise this master policy of insurance. On January 22, 1971, the modification was finally executed by Company and Dow. The modification was made retroactive to January 1, 1970 and eliminated the $50.00 minimum payment. Christian had petitioned the Oklahoma Industrial Court for workmen's compensation benefits and was awarded compensation for 200 weeks at $42.50 per week. Thereafter a joint petition was entered into commuting this award to a lump sum of $15,000.00. Christian also received monthly social security benefits commencing six months after his injury. In his petition for a declaratory judgment, Christian claimed that beginning November 5, 1970, Company was liable to pay him $350.00 per month less any benefit received from workmen's compensation or social security, but not less than $50.00 per month. He further alleges because he was awarded his workmen's compensation in a lump sum, and did not receive the social security payments until six months after his injury, there should be no reduction of his benefits under the policy. Company answered denying it was liable to Christian in any amount and counterclaimed for reimbursement of payments it had already made to Christian before being informed of his workmen's compensation award. The trial court fixed the amount to be deducted from his benefits of $350.00, as $184.17 for workmen's compensation and $161.00 per month for social security, leaving a total of $4.83 owed to Christian each month. The trial court further found there was no minimum monthly liability due to him under the policy, and granted judgment to Company on its counterclaim. Christian is appealing the trial court's judgment on the three following propositions. 1. Company may not deduct from his monthly payments workmen's compensation award because it was paid to him in a lump sum rather than monthly, thus monthly deduction called for in policy does not apply. 2. Company may not deduct from his monthly payments the social security benefits he receives. He submits the social security benefits were not payable until six months after his injury, thus he was not "entitled" to payments as required by the policy provision above quoted. 3. In the event the court finds against him on the above two propositions he is still entitled to a minimum payment of $50.00 per month, because modification of policy was not in effect at time the insurance accrued. Propositions I and II are without merit. Workmen's compensation benefits except death and disfigurement are weekly benefits. 85 O.S. 1971 § 22 allows the Industrial Court in its discretion to commute a weekly award to a lump sum. Christian was granted a weekly workmen's compensation award. He should not be able to defeat the provisions of the policy by commuting his award to a lump sum payment. Social security benefits by federal statute did not commence until six months after his injury. Christian contends there should not be any deduction for these benefits because on the date of the commencement of his disability (May 5, 1970) he was not "entitled" to receive the benefits because of the waiting period set forth in the social security act. We do not agree. At *448 the time of his disability he was "entitled" to receive the benefits in six months. Any other interpretation would make the social security reduction provision a nullity. Under Christian's view, the payments would never in any circumstances be deductible despite the manifested intent of the policy. For these reasons we affirm that portion of the trial court's order pertaining to the reduction of his benefits under the policy. We come then to the question whether Christian is entitled to a minimum payment of $50.00 per month from Company. The answer depends on whether the modification eliminating the minimum payment became effective before liability under the policy attached. It is stipulated Christian became totally disabled from date of his injury, May 5, 1970. However, under the terms of the policy, payments were not to commence for six months. Company relies heavily on Kingsland v. Missouri State Life Ins. Co., 228 Mo. App. 198, 66 S.W.2d 959 (1934) which found liability of an insurance company did not attach until payments started six months after injury. In that case the court held, under a policy requiring six months period of total and permanent disability before insured employee was entitled to benefits, insurer was not liable where policy was terminated less than four months after injury. This reliance is misplaced in that Kingsland was expressly overruled by the same court in Schuerman v. General American Life Ins. Co., 232 Mo. App. 352, 106 S.W.2d 920 (1937). The court there held insurance matured on the date of disability even though the payments were not to commence for six months. This view is in accord with other jurisdictions and we believe it to be the better view.[1] Modification of insurance contracts is governed by rules applicable to contracts generally.[2] Relations of parties to an insurance policy are contractual and where proceeds are payable to a third person a third party beneficiary contract exists.[3] No change in manner of payment of benefits after Christian's disability occurred would be binding as to him. A contract made for the benefit of a third person cannot be materially modified or changed by the other parties thereto where the event insured against has already happened.[4] Liability under a long term disability policy such as this attaches at the time an employee is permanently disabled regardless of the date payments will commence. Accordingly we hold insurance policy matured and liability attached on date Christian was permanently disabled, May 5, 1970. Under Oklahoma law an employer has no right to modify a group insurance policy without the knowledge and consent of the covered employee where such employee has contributed a portion of the premium and thus has become a party to the contract.[5] Some courts take the view that in the case of non-contributory group policies *449 such as this, such policies being mere gratuities, an employer may modify the policy without the consent of the employee.[6] Where the modification occurs before liability under the policy attaches, the insurer may be released. But if the modification occurs after liability has attached, a beneficiary may not be deprived of his rights under the policy.[7] To defeat Christian's claim, it must be shown the modification was made before May 5, 1970. Company and Dow had been negotiating a modification of the policy since December of 1969. The parties stipulated that the modification was not completed and executed until January of 1971. Company in its brief states final approval of the modification occurred July 27, 1970. Either of these dates is subsequent to the onset of Christian's disability in May of 1970. Rights of parties become fixed at time liability attaches under an insurance policy. Christian is a third party beneficiary of the insurance policy and after liability of Company attached at time he became disabled, neither Company nor Christian could do anything which would alter his rights as a third party beneficiary of the policy.[8] When Christian became permanently disabled at the time of his injury, Company became liable to pay him his benefits if the disability continued for six months. The attempt to make the modification retroactive to January 1, 1970 fails and cannot affect the rights of Christian which had already vested. If a third party beneficiary meets the conditions prescribed by the contract so as to entitle him to the benefits created by the same, then the parties cannot modify or change the terms in a manner that will affect the rights of the beneficiary.[9] Company had no right to cut off Christian's vested right to payment by retroactively modifying the policy to eliminate his right to minimum payment. We therefore hold Christian is entitled to payment of a minimum of $50.00 per month from Company under the terms of the insurance policy. The trial court is affirmed in part and reversed in part and remanded to trial court for a determination of the amounts owed to Christian not inconsistent with the views herein expressed. All the Justices concur. NOTES [1] For example see Potts v. Travelers Ins. Co., 75 Ohio App. 401, 62 N.E.2d 583 (1944) where the court held an insurer's attempt at cancellation of employee's group life policy, providing for total permanent disability benefits, after employee became totally and permanently disabled but before insurer received proof of such disability did not necessarily remove its liability. The court in General American Life Ins. Co. v. Rios, 154 S.W.2d 191 (Tex.Civ.App. 1941) held an insured's right to benefits became vested upon beginning of total and permanent disability while policy was in force. He was not divested of that right by fact policy did not remain in force until expiration of six months waiting period. The court categorized the six months waiting period as merely a testing period as to character of disability as to its permanency. [2] American Building Maintenance Co. v. Indemnity Ins. Co. of North America, 214 Cal. 608, 7 P.2d 305 (1932); Taylor v. New York Life Ins. Co., 324 F.2d 768 (10th Cir.1963). [3] See Shaw v. John Hancock Mutual Life Ins. Co., 120 Conn. 633, 182 A. 472 (1936); Ericson v. Hill, 109 Ga. App. 759, 137 S.E.2d 374 (1964). [4] See Wright v. Prudential Ins. Co. of America, 27 Cal. App.2d 195, 80 P.2d 752 (1938); see also Liner v. Travelers' Ins. Co., 50 Ga. App. 643, 180 S.E. 383 (1935). [5] Aetna Life Ins. Co. v. Wilson, 190 Okl. 363. 123 P.2d 656 (1942). [6] Phillips v. Great Nat. Life Ins. Co., 226 S.W.2d 660 (Tex.Civ.App. 1948). Oklahoma however has recently taken a different view of employees rights under employee benefits plans, Graham v. Hudgins, Thompson, Ball and Associates, Inc., 540 P.2d 1161 (Okl. 1975) and Dangott v. ASG Industries, Inc., 558 P.2d 379 (Okl. 1976) this Court gave recognition to the gradual trend away from the gratuity theory of benefit plans. [7] See Curtis v. Zurich General Accident & Liability Ins. Co., Limited, of Zurich, Switzerland, 108 Mont. 275, 89 P.2d 1038 (1939); Myers v. Kitsap Physicians Service, 78 Wash.2d 286, 474 P.2d 109 (1970). [8] Worthan v. Ohio Casualty Insurance Company, 535 P.2d 1025 (Okl.Ct.App. 1974); In accord Mid-Continent Life Ins. Co. v. Christian, 164 Okl. 161, 23 P.2d 672 (1932). [9] In accord Donaldson & Yahn v. Benight, 105 Okl. 108, 232 P. 116 (1924); Plunkett v. Atkins, 371 P.2d 727 (Okl. 1962). Also see Safeco Ins. Co. v. Dairyland Mutual Ins. Co., 74 Wash.2d 669, 446 P.2d 568 (1968).

601 F.Supp.2d 756 (2009) Gary P. JONES, et al., Plaintiffs, v. DOMINION RESOURCES SERVICES, INC., et al., Defendants. Civil Action No. 2:06-cv-00671. United States District Court, S.D. West Virginia, Charleston Division. March 6, 2009. *757 David J. Romano, Law Offices of David J. Romano, Clarksburg, WV, George M. Scott, Spencer, WV, Mark R. Staun, Scott S. Segal, The Segal Law Firm, Marvin W. Masters, The Masters Law Firm, Michael W. Carey, Robert E. Douglas, Carey Scott & Douglas, Charleston, WV, Thomas W. Pettit, Barboursville, WV, for Plaintiffs. Amy M. Smith, Tiffany A. Swiger, W. Henry Lawrence, IV, Susan L. Deniker, Steptoe & Johnson, Jacqueline A. Wilson, Thomas J. Allen, Dominion Resources Services, Inc., Clarksburg, WV, Bridget D. Furbee, Dominion Resources Services, Inc., Jane Lew, WV, for Defendants. ORDER JOSEPH R. GOODWIN, Chief Judge. Pending before the court is Class Counsel's Motion for Award of Attorney Fees and Reimbursement of Expenses [Docket 180]. Class Counsel[1] seeks a fee award equivalent to 25% of the Settlement Fund of approximately $50 million. Class Counsel also seeks $91,883.50 for out-of-pocket expenses and a $25,000 incentive award for each named Class Representative. I. Background On January 30, 2009, I granted final approval to a Settlement Agreement in this action [Docket 188]. Pursuant to the Settlement Agreement, all Participating Subclass Members, that is, Class Members who have not opted out of the Settlement Agreement, are entitled to claim a Settlement Payment. The Settlement Payment owed to each Class Member is determined by a formula set out in the Settlement Agreement. That formula includes a deduction for court approved attorneys' fees and costs. The Settlement Agreement also provides for Class Counsel to apply for a fee award "in an amount not to exceed 25% of the Gross Owner's Totals for Participating Subclass Members, plus Costs of Litigation." The defendants agreed not to object to Class Counsels' fee application. In accordance with the Settlement Agreement, Class Counsel have requested a fee award equivalent to 25% of the Settlement Fund, or more precisely, 25% of the Gross Owner's Totals for Participating Subclass Members. The estimated Settlement Fund is between $40 and $50 million dollars.[2] If approved, Class Counsel will *758 receive 25% of that amount, which is an estimated $10 to $12.5 million dollars. As agreed, the defendants have not objected to the Class Counsels' fee application. One class member, however, Ann Shreve Norris, objected to the Settlement Agreement's fee provision. In my January 30, 2009 Order, I overruled Ms. Norris' objection, but advised that I would take her concerns into consideration when addressing Class Counsels' fee request. II. Method for Determining Reasonable Attorneys' Fees Award When a class settlement results in the creation of a common fund for the benefit of the class members, reasonable attorneys' fees may be awarded from the common fund. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (explaining the common fund doctrine); see Fed.R.Civ.P. 23(h) (authorizing the award of reasonable attorneys' fees in class actions). In calculating such fees, courts have generally employed two different methods: the "lodestar" method and the "percentage of fund" method. Under the "lodestar" method, a district court identifies a lodestar figure by multiplying the number of hours expended by class counsel by a reasonable hourly rate. The court may then adjust the lodestar figure using a "mulitplier" derived from a number of factors, such as the benefit achieved for the class and the complexity of the case. See In re Microstrategy, Inc. Sec. Litig, 172 F.Supp.2d 778, 786 (E.D.Va. 2001). Under the "percentage of fund" method, the court awards the fee as a percentage of the common fund. Id. The percentage of fund method operates similarly to a contingency fee arrangement in that the attorneys receive a percentage of the final monetary value obtained for their clients. Unlike contingency fees, however, the percentage fee award is determined ex post, at the end of the litigation, rather than by an ex ante arrangement. In making this ex post determination of a reasonable percentage, courts consider many of the same factors used to adjust the lodestar figure. Id. The percentage method has overwhelmingly become the preferred method for calculating attorneys' fees in common fund cases. See Muhammad v. Nat'l City Mortgage, Inc., Civil Action No. 2:07-0423, 2008 WL 5377783, at *7 (S.D.W.Va. Dec. 19, 2008) (Copenhaver, J.); see also Strang et al. v. JHM Mortgage Sec. Ltd. P'ship et al., 890 F.Supp. 499, 502 (E.D.Va.1995); MANUAL FOR COMPLEX LITIGATION (FOURTH) § 14.121 at 187; Third Circuit Task Force Report, Selection of Class Counsel, 208 F.R.D. 340, 355 (January 15, 2002) ("A percentage fee, tailored to the realities of a particular case, remains superior to any other means of determining a reasonable *759 fee for class counsel."). One of the reasons that courts prefer the percentage method is that the percentage method better aligns the interests of class counsel and class members because it ties the attorneys' award to the overall result achieved rather than the hours expended by the attorneys. See Task Force on Contingent Fees, 25 REV. LITIG. at 469 ("Like percentage fees for individual plaintiffs, the percentage fee for class actions ties the lawyer's fee directly to the success of the litigation."); see also In re Cardinal Health, 528 F.Supp.2d 752, 753 (S.D.Ohio 2007). In contrast, when the lodestar method is applied, class counsel has an incentive to "over-litigate" or draw out cases in an effort to increase the number of hours used to calculate their fees. In re Microstrategy, 172 F.Supp.2d at 787; In re Merrill Lynch Tyco Research Sec. Litig., 249 F.R.D. 124, 136 (S.D.N.Y.2008). Also, the percentage method allows district courts more flexibility to award attorneys for the efficient settlement of a case. See In re Cardinal Health, 528 F.Supp.2d at 762. Courts applying the percentage method have not, however, completely discarded the lodestar method. The lodestar method, when applied together with the percentage method, can neutralize the drawbacks of the percentage method. For instance, the lodestar method can counteract the anchoring effect of a percentage fee request. Id. at 763. Because courts tend to deviate only slightly from the requested percentage amount, plaintiffs' counsel can effectively "manipulate the fee award they are likely to receive by simply requesting a higher percentage." Id. The lodestar method, however, provides courts with an objective fee amount with which to compare the requested fee. The lodestar method can also guard against attorney windfalls. A court's use of the percentage method "can result in a windfall for the plaintiffs' attorneys because the size of the settlement does not necessarily reflect the skill, efficiency, and hard-work of counsel." Id. "[A] large settlement could result from the mere happenstance that the class is large, even though the liability issue would be the same regardless of whether there were 8,000 or 80,000 class members." Id.; see also In re Cendant, 243 F.3d 722, 736 (3d Cir.2001) (explaining that the basis for reducing the percentage fee awarded as the size of the common fund increases is that "in many instances the increase [in recovery] is merely a factor of the size of the class and has no direct relationship to the efforts of counsel." (internal quotations omitted)). An application of the lodestar method ensures that "the fee award is still roughly aligned with the amount of work the attorneys contributed." In re Cardinal Health, 528 F.Supp.2d at 764. Courts incorporate the lodestar method into the percentage method in two ways. First, as discussed above, courts often apply lodestar factors when assessing the reasonableness of attorneys' fees under the percentage method. See In re Microstrategy, 172 F.Supp.2d at 786-87 (explaining that courts using the percentage method "reference the same case-specific factors many courts use to adjust, or determine a multiplier for, a lodestar figure."). Many courts have also incorporated a "lodestar cross-check" into their review of a percentage-based attorneys' fee. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 14.121 at 191; In re Royal Ahold N.V. Securities & ERISA Litig., 461 F.Supp.2d 383, 385 (D.Md.2006); see also Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 436 (2d Cir.2007); In re AT & T Corp., 455 F.3d 160, 164 (3d Cir.2006); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir.2002); In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F.Supp.2d 732, 778 *760 (S.D.Tex.2008); In re Cardinal Health, 528 F.Supp.2d at 764; Smith v. Krispy Kreme Doughnut Corp., No. 1:05-C00187, 2007 WL 119157, at *3 (M.D.N.C. Jan. 10, 2007). By using the percentage of fund method and supplementing it with the lodestar cross-check, a court can take advantage of the benefits of both methods. See In re Microstrategy, 172 F.Supp.2d at 787. The Fourth Circuit has neither announced a preferred method for determining the reasonableness of attorneys' fees in common fund class actions nor identified factors for district courts to apply when using the percentage method.[3] I therefore have complete discretion "to determine the appropriate method for calculating attorneys' fees in light of the unique characteristics of class actions in general, and the particular circumstances of the [instant matter]." In re Cardinal Health, 528 F.Supp.2d at 761 (quoting Bowling v. Pfizer, Inc., 102 F.3d 777, 779 (6th Cir.1996)). In light of the consensus among courts that the percentage method is the superior method for calculating attorneys' fees from a common fund, and with special concern for the perverse incentives associated with the lodestar method, I find that the percentage method is the appropriate method for determining reasonable attorneys' fees in this case. I will also apply the lodestar cross-check as an element of objectivity in my analysis.[4] I note, however, that with regard to both the percentage of fund factors and the lodestar cross-check, "there is no specific formula for analyzing these factors. `Each case is different, and in certain cases, one factor may outweigh the rest.'" Muhammad, 2008 WL 5377783, at *8 (quoting Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n. 1 (3d Cir.2000)). III. Reasonableness Determination In order to determine a reasonable attorneys' fee for Class Counsel in this case, I have considered the following factors commonly used by courts in the application of the percentage method: (1) the results obtained for the class, (2) the quality, skill, and efficiency of the attorneys involved, (3) the complexity and duration of the case, (4) the risk of nonpayment, (5) awards in similar cases, (6) objections, and (7) public policy. See In re Cendant, 243 F.3d at 733; Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir.2000); Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir.1974); see also Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir.1978) (adopting similar factors for consideration under the lodestar method). As discussed above, I will also apply a lodestar cross-check. I FIND that the following factors all weigh in favor of the reasonableness of the requested fee award: the significant benefit obtained for the class; the quality, skill and efficiency of Class Counsel; the proximity of the requested award to awards in similar cases; and, the low incidence of objections to the *761 award. I FIND that the following factors weigh against the reasonableness of the requested fee award and in favor of a reduced fee award: the non-complex nature of the case; the low risk of nonpayment; public policy; and, the high lodestar multiplier resulting from the requested fee award. Balancing all of these factors, I FIND that a fee award in the amount of 20% of the Settlement Fund is a reasonable fee for Class Counsels' work in this case. A. The Results Obtained for the Class The result achieved by the attorneys for the class is often cited as one of the most significant factors in determining the reasonableness of a fee award. See Teague, 213 F.Supp.2d at 583 ("In the Fourth Circuit, `the most critical factor in calculating a reasonable fee award is the degree of success obtained.'") (quoting McKnight v. Circuit City Stores, Inc., 14 Fed.Appx. 147, 149 (4th Cir.2001)); see also In re Cardinal Health, 528 F.Supp.2d at 764; Fed.R.Civ.P. 23(h) advisory committee notes to 2003 amendments (explaining that the "fundamental focus" in determining a common fund attorneys' fee award "is the result actually achieved for class members."). In this case, Class Counsels' efforts have led to the creation of an estimated $40 to $50 million common fund that will be disbursed to class members who claim compensation. The size of this fund is significant and the fund will be disbursed according to the individualized value of the settlement to each class member. Also, the virtual absence objections among a large class, almost all of whom were individually notified, suggests that the class members are pleased with the settlement result. I FIND that Class Counsel have obtained a significant and valuable benefit for the class. B. Quality, Skill and Efficiency of the Attorneys Involved Class Counsel are experienced in class action litigation, particularly in the area of oil and gas royalties. In fact, several of the Class Counsel were involved in Tawney et al. v. Columbia Natural Resources, LLC et al., Civil Action No. 03-C-10E (Circuit Court of Roane County). (Mem. Supp. Mot. Award Attorney Fees, Ex. B.) Tawney was a West Virginia state court case involving legal issues similar to the issues in this case and led to a landmark West Virginia gas and oil royalties decision by the Supreme Court of Appeals of West Virginia. Not only did Class Counsel bring significant experience to this case but their participation in eight mediation sessions over the course of a year indicates that they thoroughly advocated on behalf of the class. Also, the achievement of settlement for the class within two years of commencing litigation demonstrates Class Counsels' efficiency. One of the primary benefits of the percentage method over the lodestar method is its allowance for rewards to attorneys for efficient work and these attorneys should be rewarded accordingly. See In re Cardinal Health, 528 F.Supp.2d at 762. I FIND that Class Counsel were highly qualified, skilled, and efficient. C. Complexity and Duration of Litigation In evaluating the complexity and duration of the litigation, courts consider not only the time between filing the complaint and reaching settlement, but also the amount of motions practice prior to settlement and the amount and nature of discovery. In re Cendant, 243 F.3d at 735-36. Where discovery is informal and does not involve conflicts over privilege or access to documents, the case is less complex and time consuming. In re Merrill Lynch, 249 *762 F.R.D. at 137-38. The case is more complex when the applicable laws are new, changing, or unclear. See id. at 139; Goldenberg, 33 F.Supp.2d 434, 439 (D.Md. 1998) (finding that the case was "fairly complex, requiring analysis of several complicated financing arrangements and tax shelter opportunities in the context of a business and regulatory climate in flux."). In a settlement context, courts may look to whether negotiations were "hard fought," "complex," or "arduous." In re Merrill Lynch, 249 F.R.D. at 138. The duration of the litigation is also compared to "the amount of time expended in most other large class actions." In re Cendant, 243 F.3d at 736. The duration of this litigation was typical of other large class actions, see In re Cardinal Health, 528 F.Supp.2d at 756 (litigation lasting three years); Goldenberg, 33 F.Supp.2d at 436 (litigation lasting two years between filing and settlement), but it was also less complex than other class actions. The discovery in this case was straightforward—Class Counsel reviewed over 118,000 pages of documents but there is no evidence that they had to fight for access to these documents. Motions practice in this case was minimal— the parties only briefed two motions over the course of one year. Though oil and gas royalties law in West Virginia is complicated and unsettled, Class Counsel were not required to litigate these issues nor the difficult preliminary issues involved with class certification. On the other hand, negotiations in this case were time-intensive and hard-fought and required great attention to detail. Class Counsel met with the defendants in eight separate mediation sessions, and the comprehensive Settlement Agreement is a testament to Class Counsels' thorough efforts. Overall, I FIND that this case was less complex than other class actions but that Class Counsel performed their duties zealously and collegially. The cooperative spirit that pervaded this settlement process mitigates the lack of conflict and complexity in its proceedings. Mitigation is warranted because excessive emphasis on the absence of complexity in the case could, like the lodestar method, create an incentive for class counsel to behave uncooperatively in settlement negotiations. D. Risk of Non-Payment In determining the reasonableness of an attorneys' fee award, courts consider the relative risk involved in litigating the specific matter compared to the general risks incurred by attorneys taking on class actions on a contingency basis. See In re Cardinal Health, 528 F.Supp.2d at 766. The risk undertaken by class counsel is measured by, among other things, the presence of government action preceding the suit, the ease of proving claims and damages, and, if the case resulted in settlement, the relative speed at which the case was settled. See In re Merrill Lynch, 249 F.R.D. at 139-40; In re Cardinal Health, 528 F.Supp.2d at 766 (finding that class counsel faced "less risk than in other securities cases because it piggybacked on the success of a prior SEC investigation" and because the defendant had conceded some liability); id. (finding that class counsel faced lower risk because public events precipitated the litigation); Strang, 890 F.Supp. at 503 (finding that risks to plaintiffs' counsel were minimized by early settlement and reducing the percentage award from 30% to 25% of the Settlement Fund accordingly). Certainly, attorneys undertaking class actions bear substantial risks that the litigation will not result in payment. The attorneys risk defeat at several stages of litigation: class certification, dispositive motions, and finally, trial. There is no evidence, however, that Class Counsel undertook greater risk in this case than in any other typical class action. Further, *763 the usual risks of nonpayment associated with class actions were largely dissipated once the parties entered settlement negotiations. Cf. Goldenberg, 33 F.Supp.2d at 436 (awarding fees in an "intensely adversarial litigation" where litigation proceeded at least through class certification stage). Also, the record in this case indicates that the parties entered early mediation and started discussing settlement with an eye toward early resolution. (See Mem. Supp. Mot. Award Attorney Fees 3.) The likelihood of settlement, though not a certainty, greatly reduced the risk of nonpayment experienced by Class Counsel. I FIND that Class Counsel experienced lower risk in the pursuit of this case than the risk present in other class actions. E. Awards in Similar Cases Class Counsel has noted that "25% is a very common `benchmark' percentage that is presumptively correct," and that "[i]t has become virtually routine for courts to use between 20% and 33% as the `benchmark' for a percentage fee award." (Mem. Supp. Mot. Award Attorney Fees 7.) Indeed, "[a]ttorney fees awarded under the percentage method are often between 25% and 30% of the fund." MANUAL FOR COMPLEX LITIGATION (FOURTH) § 14.121 at 188. I am not bound, however, by benchmarks. See Third Circuit Task Force Report, 208 F.R.D. at 355 ("In setting a percentage fee, the court should avoid rigid adherence to a `benchmark.'"). On the contrary, "a district court may not rely on a formulaic application of the appropriate range in awarding fees but must consider the relevant circumstances of the particular case." In re Cendant, 243 F.3d at 736. I FIND that 25% fee awards are often granted in class actions and will accord this factor due weight relative to the other factors discussed above and below. F. Objections The high success of the class notification in this case, coupled with the extremely low number of objections, support the reasonableness of the requested fee. The notice plan approved in this case provided direct, individual notice to more than 95% of the 25,000 member class. This is a remarkably high success rate, especially compared to class actions in which class members are unknown, direct notice is impossible, and notice is instead provided through public outlets. Following the successful notification of the class, only three class members objected to the Settlement Agreement.[5] Two of those class members eventually withdrew their objections.[6] As discussed above, this very low incidence of objections, especially in light of the success of the direct notification, not only demonstrates the Class Members' satisfaction with the settlement result, but also shows their implicit approval of its terms, including the attorneys' fee provision. Because such a high percentage of the class was directly notified of the attorneys' fee provision, and almost none of them objected to that provision, I consider the Class Members to have demonstrated approval of the instant fee request and agreement to pay such an amount. I FIND that the "clients'" approval of the attorneys' fee request supports the reasonableness of the requested fee award. G. Public Policy Only one class member objected to the requested fee award in this matter. Ms. Ann Shreve Norris objected to the provision of the settlement agreement allowing *764 plaintiffs' counsel to file an unopposed petition for a fee award in the amount of 25% of the settlement fund. She wrote to this court: I object to the amount to be awarded to attorneys in this case. Twenty-five percent plus expenses is an exorbitant amount requested by attorneys. This, again, points out the atitude [sic] of attorneys handling this type of classaction law suits. It is exhibited over and over in our Court Rooms. They are not doing this for the public good but only as a way to increase their wealth. Objection by Ann Shreve Norris [Docket 131]. Ms. Norris is not alone in her concerns. "The most frequent complaint surrounding class action fees is that they are artificially high, with the result (among others) that plaintiffs' lawyers receive too much of the funds set aside to compensate victims." Id. at 466. As the Third Circuit Task Force noted, "there is a perception among a significant part of the non-lawyer population and even among lawyers and judges that the risk premium is too high in class action cases and that class action plaintiffs' lawyers are overcompensated for the work that they do." Third Circuit Task Force Report, 208 F.R.D. at 344. Such perceptions are not only harmful to the legal profession, but undermine the integrity of the entire legal system.[7] Perceptions such as those expressed by Ms. Norris strike at the very core of the ethics of the legal profession, specifically, the lawyer's ethical duty to safeguard the legal system. The Code of Professional Conduct in every state explains the relationship of lawyers to the legal system. For example, the West Virginia Rules of Professional Conduct state that: "A lawyer is ... an officer of the legal system and a public citizen having a special responsibility for the quality of justice." WEST VIRGINIA STATE BAR, RULES OF PROFESSIONAL CONDUCT, Preamble. In addition, "[l]awyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system." Id. As charged by the rules of legal ethics, lawyers and judges are guardians of the legal system and have a special duty to ensure that their conduct promotes the integrity of that system. The same rules that charge the legal profession with safeguarding the nation's judicial system demand that attorneys limit their fee to what is reasonable. See, e.g., West Virginia State Bar, Rules of Professional Conduct, Rule 1.5.[8] Indeed, several *765 courts have recognized the connection between reasonable attorneys' fees and the strength of the legal system and have reduced attorneys' fees on the basis of that relationship. See, e.g., In re Sumitomo Copper Litig., 74 F.Supp.2d 393, 396 (S.D.N.Y.1999) ("[I]t is the Court's duty to avoid any sense of vicarious generosity or to permit [attorneys' fees] to be enhanced without restraint above a fair and reasonable amount under all the facts and circumstances, precluding any notion that there are no decent limits to compensation for services of an attorney serving another's interests."); Florida v. Am. Tobacco Co. et al., No. CL 95-14566 (Fla. 15th Cir.Ct. Nov. 12, 1997) ("[The attorneys] are officers of the Court and the people's advocate in this case. What may have seemed to be a reasonable and ordinary contract when this case began has now developed into an unconscionable one."); Wade v. Clemmons, 84 Misc.2d 822, 377 N.Y.S.2d 415, 420 (N.Y.App.Div.1975) (reducing fee award "where its retention would expose the attorney to the reproach of overreaching. He is an officer of the court, and is judged as such, and technical contractual rights must yield to his duty as officer." (internal quotations omitted)). Without a doubt, "the fairness of [attorneys' fee] terms reflects directly on the court and its bar." Rosquist v. Soo Line R.R., 692 F.2d 1107, 1111 (7th Cir.1982). Because of the damage caused by perceptions such as those of Ms. Norris, lawyers requesting attorneys' fees and judges reviewing those requests must exercise heightened vigilance to ensure the fees are in fact reasonable beyond reproach and worthy of our justice system. Competing with the public policy against excessive fee awards, however, is the policy encouraging "counsel to accept worthy engagements." In re Cardinal Health, 528 F.Supp.2d at 765 (internal quotations omitted). At the heart of the class action lies the belief "that the interests of justice are well served by class actions that vindicate rights that might otherwise go unprotected and that spare courts the burden of handling numerous lawsuits, some small and some not so small, arising from a common set of facts." Third Circuit Task Force Report, 208 F.R.D. at 342. Therefore, public policy generally favors attorneys' fees that will induce attorneys to act and protect individuals who may not be able to act for themselves but also will not create an incentive to bring unmeritorious actions. See In re Merrill Lynch, 249 F.R.D. at 142; In re Microstrategy, 172 F.Supp.2d at 789 n. 36. Attorneys' fees must be sufficient "to ensure that competent, experienced counsel will be encouraged to undertake the often risky and arduous task of representing a class...." In re Microstrategy, 172 F.Supp.2d at 788. I share Ms. Norris' concerns about the trend towards excessive attorneys' fees in class actions. I can easily understand that fees deemed reasonable by the bar and the judiciary appear unseemly to the general public. I will keep the implications of such an effect in mind as I make a final determination as to the fee awards. H. Lodestar Cross-Check Because, I am using the lodestar method as a cross-check, I need not apply the "exhaustive scrutiny" normally required by that method. Goldberger, 209 F.3d at 50 *766 ("[W]here used as a mere cross-check, the hours documented by counsel need not be exhaustively scrutinized by the district court. Instead, the reasonableness of the claimed lodestar can be tested by the court's familiarity with the case."); see also In re Rite Aid Corp., 396 F.3d 294, 306-07 (2005). Instead, I may use Class Counsels' estimate of the hours they have spent working on this case. By the end of the administration of this settlement, Class Counsel will have expended an estimated 4,694.40 hours in this litigation. (Mem. Supp. Mot. Award Attorney Fees 4.) Though Class Counsel have not submitted the rate at which they would have billed these hours, I will calculate the lodestar figure assuming they could bill all of these hours at the top end of the market rate which is approximately $500 per hour. The resulting lodestar figure is $2,347,200. The requested award in this case, approximately $10 to $12.5 million, yields a lodestar multiplier in this case of 4.2 to 5.3 and an hourly rate of $2,130.20 to $2,662.75. I must be cautious of placing too much weight on these numbers lest I "re-introduce[] the problems of the lodestar method." Task Force on Contingent Fees, 25 REV. LITIG. at 471. Also, the cross-check results do not "supplant the court's detailed inquiry into the attorneys' skill and efficiency in recovering the settlement...." In re Cardinal Health, 528 F.Supp.2d at 764. Nevertheless, the lodestar figure and multiplier reveal that the requested fee rewards Class Counsel more than generously relative to the time expended on this matter. Courts have generally held that lodestar multipliers falling between 2 and 4.5 demonstrate a reasonable attorneys' fee. See Goldenberg, 33 F.Supp.2d at 439 n. 6; see also In re Microstrategy, Inc., 172 F.Supp.2d at 789 (reducing fee award from a requested percentage, which would have resulted in an award approximately four times the lodestar figure, to a percentage that resulted in an award 2.6 times the lodestar figure); In re Cendant, 243 F.3d at 742 ("[M]ultiples ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied.") (internal quotations and citations omitted); but see In re Cardinal Health, 528 F.Supp.2d at 768 (finding that requested fee amount with a lodestar multiplier of 7.89 was not unreasonable "[g]iven the outstanding settlement in this case and the noticeable skill of counsel."). The lowest potential multiplier in this case is at the high end of the reasonableness range. A fee resulting in such a high relative multiplier is unreasonable in light of the lesser complexity and risk of this action. Further, the hourly rate of $2,130.20, which is significantly above the market rate, suggests that the attorneys would experience a windfall with the receipt of such an award. This windfall is especially high considering that the estimated hours expended includes one thousand future hours spent on the risk-free administration of the Settlement Agreement. I. An Attorneys' Fee Award of 20% of the Common Fund is Reasonable Having considered the factors discussed above in light of the totality of the circumstances of this case, I FIND that a fee award of 20% of the Settlement Fund is reasonable compensation for Class Counsel. This very large fee is supported by Class Counsels' effort, efficiency, collegial spirit, and, very importantly, by the achievement of a sizable benefit for the class. It is further supported by the minimal objections by Class Members to the Settlement Agreement, all but one of which were withdrawn. Also, this fee returns a lodestar multiplier between 3.4 and 4.3 which is closer to the middle of the range considered reasonable by courts. This reduction also reflects the one thousand *767 hours expended in this case for the administration of the approved settlement. Such work does not involve the same risk as litigation or settlement negotiation and therefore a higher rate of payment designed to compensate such risks is not warranted. As to public policy, the fee remains high enough to encourage future class action representation and efficient and collegial conduct by attorneys. It is also likely that this fee, though reduced from the requested amount, will appear excessive to nonlawyers and encourage negative public perceptions about the legal profession. A 20% fee, though not ideal, strikes a closer balance between the public policies implicated by attorneys' fee awards in class actions. The most significant factor affecting my determination, however, is the high incidence of actual, direct notification in this case and the resulting near-unanimous approval of the attorneys' fee provision by the Class Members. The rest of the factors alone, as relevant as they are to the determination of a reasonable attorneys' fee, are not enough to convince me that a fee of this magnitude is "reasonable." Even reduced, the fee that I approve in this case remains extremely high. Nevertheless, I am reluctant to deviate too greatly from a fee amount approved by virtually all of Class Counsels' clients. Such approval shows that at least from the Class Members' perspective, the requested fee is reasonable for the services provided and the benefits achieved by Class Counsel. The Class Members' implicit agreement to pay the requested fee, together with the other factors above, support the conclusion that a 20% fee award is reasonable in this case. IV. Costs Class Counsel have also requested reimbursement of $91,883.50 in out-of pocket expenses. Costs that are "reasonable in nature and amount, may be reimbursed from the common fund." In re Microstrategy, 172 F.Supp.2d at 791. Costs should "reflect a reasonable amount of expenditures for a case of [its] magnitude," Strang, 890 F.Supp. at 503, and also "bear a reasonable relationship to the time and effort expended and the result achieved." In re Microstrategy, 172 F.Supp.2d at 791. "[C]osts should be borne equally by the beneficiaries of the class action." Strang, 890 F.Supp. at 503. A large portion of the costs in this case were incurred in the retention and compensation of experts and consultants who assisted the evaluation of the leases and the defendants' accounting practices. Such experts were necessary to the thorough development and effective settlement of the Class Claims, especially in light of the complicated subject matter underlying this case. Other expenses in this case included the expenses routinely charged to legal clients. I FIND that costs in the amount of $91,883.50 reflect a reasonable amount of expenditures for a case of this magnitude and bear a reasonable relationship to the time and effort expended in this matter. V. Incentive Award Class Counsel have also requested awards in the amount of $25,000 for each of the Class Representatives: Gary P. Jones and Shirley Jones; H. Dotson Cather, Trustee of Diana Goff Cather Trusts, and McDowell Pocahontas Coal Company, Inc. Incentive awards are routinely approved in class actions to "encourage socially beneficial litigation by compensating named plaintiffs for their expenses on travel and other incidental costs, as well as their personal time spent advancing the litigation on behalf of the class and for any personal risk they undertook." Muhammad, *768 2008 WL 5377783, at *9. For example, in In re Lorazepam & Clorazepate Antitrust Litigation, 205 F.R.D. 369, 400 (D.D.C.2002), the court approved $25,000 to each of three class representatives. Those representatives "provided in-house counsel, fraud investigators, and pharmacy benefits managers to aid in the prosecution of this case, whose efforts included investigating, negotiating, responding to discovery demands, attending meetings, coordinating with other in-house counsel, and directing class counsel in settling the case." Id. Incentive awards were also granted in Cullen v. Whitman Medical Corporation, 197 F.R.D. 136 (E.D.Pa.2000), which was a case brought by a class of students against a vocational school that fraudulently misrepresented the education they would provide to their students. The class representatives sought an incentive award in the amount of tuition paid, which ranged from $2,000 to $10,000. Cullen, 197 F.R.D. at 145, 152. In that case, two of the class representatives had initiated individual law suits which led to the filing of the class action, and one intervened on behalf of an entire subclass. Other representatives produced materials, helped prepare documents, and actively participated in discovery. Id. at 145-46. In Muhammad, the court awarded a $5,000 incentive award to the class representative out of the settlement proceeds of $700,000. 2008 WL 5377783, at *10. The court noted that the class representative "attended numerous meetings with counsel and counsel's staff .... assisted in drafting discovery responses, and consulted with counsel regarding critical aspects of the settlement." Id. at *9. Serving as a class representative is a burdensome task and it is true that without class representatives, the entire class would receive nothing. In this case, however, the court has received no evidence of the class representatives' participation in this case. The record in this case does not indicate that the class representatives were deposed or produced any personal documents. Cf. In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 357-58 (N.D.Ga.1993). Furthermore, Class Counsels' history of the case suggests that the damages and claims were developed through the efforts of Class Counsel and experts analyzing extensive records provided by the defendants rather than with the participation of the class representatives. Accordingly, I FIND that the requested incentive award overcompensates the plaintiff representatives. An award of $15,000 is sufficient to reward the class representatives in this case for enabling the pursuit of this matter on behalf of the class. VI. Method of Payment The parties in this case have requested that the Costs of Litigation, including the incentive awards, be assessed as a percentage rather than a lump sum amount. A percentage, the parties explain, will be easier to deduct from the Settlement Payments provided to each class member. A percentage assessment for this money, however, poses its own difficulties. For instance, the precise amount in the settlement fund is not available and therefore any percentage award will also be imprecise and may result in an assessment of costs that is greater or less than the amount identified by Class Counsel. Nevertheless, because a percentage deduction for costs will be more convenient than a lump sum, and because both parties agree that a percentage assessment is preferable, I will comply with the parties' request. As discussed above, $91,883.50 in litigation costs and $45,000 aggregate incentive awards are reasonable and should *769 be deducted from the Settlement Fund and Payments. The total amount, $136,883.50, is about 0.33 % of the low estimate of the Settlement Fund, $41,740,031.00. I FIND that an assessment of 0.35% of the Settlement Fund will be a close approximation of the calculated costs. Further, because the amount of the assessment will not precisely reflect the Costs of Litigation, including the incentive awards, the assessment should first reimburse the attorneys' litigation expenses, and the remainder should be equally divided among the three Class Representatives. VII. Conclusion Based on the foregoing, I ORDER: 1. Attorneys' fees in the amount of twenty (20) percent of the Settlement Fund be paid to Class Counsel. 2. Costs of Litigation in the amount of 0.35% of the Settlement Fund be paid as follows: a. $91,833.50 to be paid to Class Counsel as reimbursement for litigation expenses; b. the remainder to be distributed equally among the three Class Representatives, Gary P. And Shirley Jones; H. Dotson Cather, Trustee of Diana Goff Cather Trusts; and, McDowell Pocahontas Coal Company, Inc. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. NOTES [1] On July 16, 2008, this court entered an Order Conditionally Certifying Temporary Settlement Class and Preliminarily Approving Settlement in which I appointed as Class Counsel Marvin W. Masters, The Masters Law Firm, LC, Charleston, West Virginia; Michael W. Carey, Carey Scoot & Douglas, PLLC, Charleston, West Virginia; Thomas W. Pettit, Thomas W. Pettit, L.C., Barboursville, West Virginia; Scott S. Segal, The Segal Law Firm, Charleston, West Virginia; and, David J. Romano, Romano Law Offices, Clarksburg, West Virginia. (July 16, 2008 Order ¶ 4 [Docket 107]). [2] The defendants will contribute to the Settlement Fund an amount equal to the Gross Owner's Totals for Participating Subclass Members. The Settlement Agreement does not precisely explain the method for calculating this contribution. By definition, the Gross Owner's Total for Participating Subclass Members is equal to the total amount owed to every class member, in both the One-Eighth and Flat Rate Subclasses, that did not opt out of the Settlement Agreement. But the amount owed to each One-Eighth Subclass Member depends on the Settlement Option selected by each of those Subclass Members. Consequently, there remains some ambiguity as to the defendants' contribution obligation for One-Eighth Subclass Members that did not opt out but also do not claim payment and select a specific Settlement Option. The parties did estimate the defendants' maximum contribution obligation to the Settlement Fund assuming that no class members would opt out. In the event that all One-Eighth Subclass Members elect Settlement Option A, the defendants' estimated contribution for those subclass members is equal to $38,713,093.00. In the event that all One-Eighth Subclass Members select Settlement Option B, the defendants' estimated contribution for those subclass members is equal to $29,971,426.00. The defendants' estimated contribution for Flat Rate Subclass Members, who do not have Settlement Options, is equal to $11,768,605.00. Therefore, the defendants' contribution, without considering the amounts deducted for class members who opted out, could range from $41,740,031.00 to $50,481,698.00. Though defendants' actual contribution will be some amount lower than these estimates after the amount owed to opt-out members is deducted, the parties have not provided this court with a more accurate estimate of that actual contribution. At the fairness hearing, the parties estimated that the Settlement Fund would contain close to $40 million. But in their Motion for Award of Attorneys Fees, Class Counsel estimated a Settlement Fund of $50 million. In the absence of more accurate information, the best estimate of the benefit to the class and the baseline for calculating the attorneys' fee award appears to be a range between $40 and $50 million. [3] Several district courts in this circuit have, however, elected to use the percentage method instead of the lodestar method. See Muhammad, 2008 WL 5377783, at *7; In re Ahold, 461 F.Supp.2d at 385; Teague v. Bakker, 213 F.Supp.2d 571, 583 (W.D.N.C.2002); Goldenberg v. Marriott PLP Corp., 33 F.Supp.2d 434, 438 (D.Md.1998); Strang, 890 F.Supp. at 502. [4] Several courts in this circuit have applied the lodestar cross-check in conjunction with the percentage method. See Order on Fee Petition of Class Counsel at 2, In re Serzone Products Liability Litig., No. 2:02-md-01477 (S.D.W.Va. May 16, 2007); Teague, 213 F.Supp.2d at 585 (conducting a general reasonableness analysis and then assessing the fee award under the lodestar method); Goldenberg, 33 F.Supp.2d 434, 439 n. 6 (D.Md. 1998) (applying the percentage method but finding that the fee award was reasonable even under the lodestar approach). [5] Objections were filed by Ann Shreve Norris [Docket 131], Hunter M. Bennett [Docket 149], and Doris Weaver Griffith [Docket 156]. [6] Mr. Bennett withdrew his objection in a letter dated January 16, 2009 [Docket 186] and Ms. Griffith withdrew her objection in a letter dated January 29, 2009 [Docket 190]. [7] The RAND Institute for Civil Justice summarized the criticism of class actions seeking money damages as follows: "Critics argue that lawyers seek out opportunities to bring these large-scale suits in the expectation that they will receive large fees, whether or not the suit has underlying merit and whether or not the individuals on whose behalf the suit is brought benefit significantly from its resolution. The critics argue that such class actions impose unnecessary costs on manufacturers and service providers, which are passed on to consumers in the form of higher prices, and that such litigation deters innovation, impairs financial markets, and threatens U.S. economic competitiveness. They also argue that misuse of class actions has brought the legal system into disrepute." Deborah Hensler et al., RAND Institute for Civil Justice, CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN 4 (2000). [8] This rule establishes a list of factors for use in determining a reasonable attorneys' fee that closely resembles the percentage of fund fee factors discussed above: "(1) the time and labor required, the novelty and difficulty of the questions involved, and skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and the length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent." West Virginia State Bar, Rules of Professional Conduct, Rule 1.5(a).

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm No. 00-363 IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT 36 STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT M. RADFORD, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas M. McKittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: Roland B. Durocher; Hartelius, Ferguson, Baker & Kazda, Great Falls, Montana For Respondent: David Gliko, City Attorney, Great Falls, Montana Submitted on Briefs: September 21, 2000 Decided: February 27, 2001 Filed: __________________________________________ file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm (1 of 5)12/20/2006 11:22:41 AM  file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm Clerk Chief Justice Karla M. Gray delivered the Opinion of the Court. ¶1 Scott Radford (Radford) appeals, on constitutional grounds, a decision of the Eighth Judicial District Court, Cascade County, which affirmed his conviction of the misdemeanor offense of failure to obtain a Safety Inspection Certificate for his law office. We affirm. ¶2 The sole issue on appeal is whether the City of Great Falls (Great Falls), Montana, ordinance requiring Radford to obtain a Safety Inspection Certificate for his law office unconstitutionally impinges on this Court's power to regulate attorneys. ¶3 In 1995, Great Falls adopted a city ordinance requiring each business in the city to obtain an annual Safety Inspection Certificate (Certificate) "to ensure that the building, store, or office complies with uniform safety codes and other ordinances and regulations enacted for the purpose of protecting the health, safety, and welfare of the public." Great Falls City Code § 5.02.100. The ordinance further authorizes a Certificate fee. ¶4 Radford is a licensed attorney who has a business office in Great Falls. In February of 1998, he was cited for failure to obtain a Certificate for his law office. Radford moved to dismiss the charge in the Great Falls Municipal Court (Municipal Court) on the basis that attorneys are licensed and regulated by the Montana Supreme Court and the Certificate requirement impermissibly subjected him to city licensing. The Municipal Court denied Radford's motion to dismiss and found him guilty of failure to obtain the Certificate. Radford was fined $105 plus a $15 surcharge. ¶5 Radford appealed the denial of his motion to dismiss to the District Court. The District Court also denied the motion. Radford appeals. Discussion ¶6 Does the Great Falls ordinance requiring Radford to obtain a Certificate for his law office unconstitutionally impinge on this Court's power to regulate attorneys? ¶7 Because the motion to dismiss was denied as a matter of constitutional law, our file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm (2 of 5)12/20/2006 11:22:41 AM  file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm standard of review is whether the District Court's decision was correct. State v. Butler, 1999 MT 70, ¶ 7, 294 Mont. 17, ¶ 7, 977 P.2d 1000, ¶ 7. ¶8 Radford points out that this Court possesses the constitutional authority to regulate Montana attorneys in their profession. See Art. VII, § 2, Mont. Const. He argues the Certificate requirement is unconstitutional as applied to attorneys under Harlen v. City of Helena (1984), 208 Mont. 45, 676 P.2d 191. ¶9 In Harlen, we concluded that an ordinance enacted by the City of Helena, Montana, which required attorneys, along with other businesspeople, to obtain an annual city business license was invalid because it infringed on our constitutional authority to supervise and regulate attorneys and the practice of law under Article VII, Section 2 of Montana's Constitution. Harlen, 208 Mont. at 49, 676 P.2d at 193. We noted several problems with the Helena ordinance: [T]he language of the ordinance goes much further than the City probably intended. Section 18, for example, makes it abundantly clear that a person or persons may not carry on a profession or occupation without procuring the license and paying the appropriate fee. Section 11 broadly defines the scope of the City's police powers, such that attorneys could theoretically be subjected to future ordinances affecting standards of practice. Finally, Section 7 provides for revocation of the license for "a violation of any of the provisions of [the Helena City Code] . . . or any State or Federal Statute." When read in conjunction with Section 18, it is clear that the City could prohibit an attorney from practicing his profession if his license was revoked for any reason mentioned in Section 7. Harlen, 208 Mont. at 50-51, 676 P.2d at 193-94. Based on these problems, we held that, "[d]espite its original intent, the City has adopted an ordinance which conditions an attorney's access to the practice of law. As such, the ordinance intrudes upon this Court's constitutional authority." Harlen, 208 Mont. at 51, 676 P.2d at 194. ¶10 The problems with the Helena ordinance at issue in Harlen are not present here. The penalty for failure to renew a Certificate is authorized at Great Falls City Code § 5.01.070: Late charge. A. Failure to renew the certificate or special license shall result in a delinquent charge as determined by resolution. B. Each day that any violation of this chapter occurs or continues may constitute a file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm (3 of 5)12/20/2006 11:22:41 AM  file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm separate offense and may be punishable as a separate violation. (Emphasis added.) Great Falls concedes that the penalty for violation of its ordinance is limited to a fine or up to six months in jail. The Great Falls City Code additionally directs: "Safety Inspection Certificate" is a certificate for a premise or occupation at a specific premise acknowledging inspection for uniform safety codes or other ordinances and regulations enacted for the purpose of protecting health, safety, and welfare of the public. The certificate is not intended, and shall not be used, to regulate or infringe upon the conduct of a business or profession[.] Section 5.01.010(H), Great Falls City Code. Clearly, under its ordinance, Great Falls could not prohibit an attorney from practicing his or her profession as a result of violating the Certificate requirement. ¶11 Moreover, we have clearly recognized since Harlen that "the fact that this Court has the exclusive authority to regulate the practice of law does not mean that the legislature cannot, in certain limited circumstances, act in this area." Kradolfer v. Smith (1990), 246 Mont. 210, 214, 805 P.2d 1266, 1269. There, we determined that an annual $25 state license tax on attorneys was a reasonable amount to cover the costs of processing licenses for attorneys and maintaining the list of attorneys licensed to practice law in this State, and was a "minimal and inoffensive intrusion upon this Court's constitutional prerogative." Kradolfer, 246 Mont. at 215, 805 P.2d at 1269. ¶12 Similarly, the amount required to obtain the Great Falls Certificate pursuant to City of Great Falls License and Certificate Fee Resolution 8762, which varies according to the square footage of the business, represents a reasonable amount in relation to the safety inspection services as authorized by § 7-1-4123(7), MCA. On this record, we conclude that application of the Certificate requirement to Great Falls law offices represents a minimal and inoffensive intrusion on this Court's constitutional prerogative to regulate attorneys. ¶13 We hold Radford has not established that the Great Falls Certificate requirement unconstitutionally impinges upon this Court's power to regulate attorneys. ¶14 Affirmed. file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm (4 of 5)12/20/2006 11:22:41 AM file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm /S/ KARLA M. GRAY We concur: /S/ JAMES C. NELSON /S/ TERRY N. TRIEWEILER /S/ JIM REGNIER /S/ W. WILLIAM LEAPHART file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-363%20Opinion.htm (5 of 5)12/20/2006 11:22:41 AM 

58 Cal.App.3d 691 (1976) 130 Cal. Rptr. 64 DEBTOR REORGANIZERS, INC., Plaintiff and Appellant, v. STATE BOARD OF EQUALIZATION, Defendant and Respondent. Docket No. 46855. Court of Appeals of California, Second District, Division Three. May 26, 1976. *692 COUNSEL Gendel, Raskoff, Shapiro & Quittner and B.J. Adelson for Plaintiff and Appellant. Evelle J. Younger, Attorney General, Philip C. Griffin and Herbert A. Levin, Deputy Attorneys General, for Defendant and Respondent. *693 OPINION POTTER, J. Plaintiff Debtor Reorganizers, Inc. appeals from a summary judgment in favor of defendant in plaintiff's action to recover use taxes in the sum of $27,905.60 paid by plaintiff's assignor Fat Jones Stables, Inc. (hereinafter referred to as "Stables"), in respect of which a claim for refund was made by Stables and denied by defendant board. The taxes in question were for the period January 1, 1966 through October 12, 1969, during which period Stables was engaged in the business of selling and leasing equipment and livestock which had been purchased from a trustee in bankruptcy in the course of liquidation of a bankrupt estate pursuant to an order of the United States District Court. Stables collected and remitted sales taxes on all outright sales of such livestock and equipment each quarter as the sales were made. It did not pay sales or use taxes in respect of the rental receipts of livestock and equipment leased by it. Defendant board served a notice of determination requiring payment of "use tax applied to rental receipts derived from petitioner's leases of livestock and equipment purchased from the trustee in bankruptcy...." Payment was made by Stables in accordance with the notice of redetermination and a claim for refund was filed. Both plaintiff and defendant moved for summary judgment. There was no dispute as to the facts and the trial court concluded therefrom that use tax was payable based upon such rental receipts. Contentions Plaintiff contends that the sale of the livestock and equipment to Stables by the bankruptcy trustee, and the use by Stables of such property were not subject to sales or use tax because the imposition of a tax would be an unauthorized burden on the process of liquidation and that the use tax collected "is only imposed in lieu of the tax" which "the State is prohibited from collecting." Defendant board contends that the claimed exemption of the sale by the trustee to Stables and of Stables' use is of questionable validity and that in any event the tax upon the rental receipts is not a tax in lieu of such sales or use tax. *694 Discussion (1a) We conclude that the application of the use tax found proper in the trial court does not constitute an unlawful interference with the process of the bankruptcy court, and we therefore affirm. Plaintiff's claim that both the original liquidation sale from the trustee to Stables and Stables' subsequent use of the property purchased are exempt from taxation is based upon the decisions of the United States Court of Appeals for the Ninth Circuit in California State Board of Equalization v. Goggin (9th Cir.1951) 191 F.2d 726 [27 A.L.R.2d 1211] [Goggin I] cert. den., 342 U.S. 909 [96 L.Ed. 680, 72 S.Ct. 302], and California State Board of Equalization v. Goggin (9th Cir.1957) 245 F.2d 44 [Goggin II] cert. den., 353 U.S. 961 [1 L.Ed.2d 910, 77 S.Ct. 863]. In Goggin I, the Ninth Circuit held the district court acted properly in affirming a referee's order enjoining the board from enforcing a claim of sales tax liability based upon liquidation sales made by the trustee in bankruptcy. The sales were made by the trustee without adding sales tax to the purchase price and the board made an additional determination of taxes for which demand for payment was made. The court stated the issue as follows: "The question remains whether or not the California sales tax applies to liquidation sales of personal property made by a trustee in bankruptcy pursuant to court order." (191 F.2d at p. 729.) The California Sales Tax Law was construed by the court as applying only to a seller who is "conducting a retail business." (Id.) The court said: "`[T]he sale was not made in the course of conducting a business but in the process of putting an end to a business.'" (Id.) Such interpretation of the California statute was found to make it consistent with the federal statute "making officers appointed by United States courts liable for state taxes if they `conduct any business.' [Fn. omitted.]" (191 F.2d at p. 730.) Judge Fee, then a district judge, concurred but upon the basis that the state had no power to thus tax the process of liquidation. Judge Fee said in this respect (Id.): "A tax on this transaction, whatever form it takes, is a tax on the process of the Court liquidating assets in accordance with constitutional power. In another aspect, it may be considered as a license fee required of a federal officer to make liquidation. In either event, it is void. A tax may be levied upon specific property in the hands of a trustee in bankruptcy. [Citation.] But no state is empowered to levy taxes upon the process of the courts of the United States or to impede the officers of court in an essential judicial function. [Citation.] The District Court held as a fact that the transaction was in the nature of liquidation and was not *695 a state tax upon the business of constructing and selling cabinets conducted by the trustee, who was authorized thereto by the United States Court. [Citation.] This finding of fact is binding unless clearly erroneous. [Citation.] Under such conditions, neither enactments of the State of California nor decisions of state courts nor practices of state administrative bodies can burden or impede administration of acts relating to bankruptcies. [Citation.]" In Goggin II, Judge Fee, as a regular member of the court, authored the opinion. The board had again attempted to tax a liquidation sale of bankruptcy assets, seeking to avoid the effect of the first decision by calling it a use tax upon the purchaser which the trustee was required to collect. This distinction was held irrelevant. Reference was again made to the federal statute "permitting officers of the bankruptcy court to pay taxes to the state for acts done in the conduct of the business" (245 F.2d at p. 45) as excluding taxability of acts done in liquidation, and the court said (id.): "In practice, if the sales tax were levied upon the Trustee, he would necessarily have passed the tax on to the purchaser. The same result is attained by taxing the purchaser and requiring the Trustee to collect or collecting the impost from the purchaser. All these devices are proscribed as to liquidating sales in bankruptcy. [Fns. omitted.]" A contrary conclusion has been reached by the United States Court of Appeals for the Fifth Circuit in a more recent case, In re Hatfield Construction Company (5th Cir.1974) 494 F.2d 1179. In that case, the Commissioner of Revenue of the State of Georgia was held entitled to require payment of sales tax upon liquidation sales made by a trustee in bankruptcy. The court observed that "the liability for sales tax under the Georgia Act is imposed primarily on the purchaser with secondary liability on the seller to collect and remit the tax." (494 F.2d at p. 1180.) The situation was, therefore, indistinguishable from that presented in the Goggin II decision. Referring to the federal statute cited in the Goggin decisions, the court said (494 F.2d at p. 1181): "We do not read this statute as precluding or limiting the state taxing process in the circumstances obtaining here. Indeed, it has been long settled that property in the hands of a trustee in bankruptcy is not thereby exempt from state and local taxes, absent a clear expression from Congress to the contrary. Swarts v. Hammer, 1904, 194 U.S. 441, 24 S.Ct. 695, 48 L.Ed. 1060. Section 960 is not such a clear expression, at least where the tax on *696 the liquidating function is imposed on the purchaser in liquidation. This was the view of the Second Circuit in Leavy, supra, and it is a view tangentially supported by Missouri v. Gleick, 8 Cir., 1943, 135 F.2d 134, where a liquidation trustee was held liable for Missouri unemployment tax. See also In re Mid America Co., S.D.Ill., 1939, 31 F. Supp. 601, 606; In re Loehr, E.D.Wis., 1950, 98 F. Supp. 402; Note, State Taxation of Bankruptcy Liquidation: Federalism Misconceived, 67 Yale L.J. 335 (1957); Wurzel, Taxation During Bankruptcy Liquidation, 55 Harv.L. Rev. 1141, 1166 (1942). Contra: 4A Collier on Bankruptcy, ¶ 70.97 [4]; Paskay, Handbook for Trustees and Receivers in Bankruptcy, § 14.005; Note, Bankruptcy Sale as a Judicial Sale Free from Taxation, 1 Journal of Public Law 504 (1952); Maclachlan, Bankruptcy 349 (1956). Collier recognizes an exception based on the Leavy case where the trustee is merely a collecting agent of the sales tax. 4A Collier, p. 1145, n. 41. "It may be true that although, in its legal incidence, the sales tax is on the purchaser, it has an indirect economic effect upon the bankrupt estate in that the purchaser, assumedly, would have been willing to pay more had he not been obliged to satisfy the tax. Such an indirect economic detriment is not an impermissible burden even were the estate a government instrumentality. Cf. Graves v. New York ex rel. O'Keefe, 1939, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927. Here, however, those ultimately affected are but creditors of the bankrupt. The only burden on the trustee is the collection and remission of the tax, which we could not consider consequential." (Italics added.) (2) The decisions of the lower federal courts, even on federal questions, are not binding upon this court. (People v. Bradley, 1 Cal.3d 80, 86 [81 Cal. Rptr. 457, 460 P.2d 129]; People v. Estrada, 234 Cal. App.2d 136, 145 [44 Cal. Rptr. 165, 11 A.L.R.3d 1307].) "However, they are persuasive and entitled to great weight." (1 Cal.3d at p. 86.) As between the decisions of the Ninth Circuit and that of the Fifth Circuit, no primacy inheres in the former, so the persuasiveness of the conflicting views must depend upon the validity of the arguments made therein. The more recent decision of the Fifth Circuit in Hatfield clearly states better reasons and is persuasive authority that even a direct sales tax upon the trustee's sale or a use tax upon Stables' use of the liquidated livestock and equipment would not constitute an unlawful tax on the process of the bankruptcy court. We need not, however, rest our decision upon such holding. (1b) As applied in the case at bench, the tax resulted in an even more "indirect economic detriment" than the court found permissible *697 in Hatfield and imposed no burden whatever upon the trustee in "collection and remission of the tax." In Hatfield, the court found that the indirect economic detriment to the bankrupt estate, arising from the assumption that a purchaser would be willing to pay more at a liquidation sale if not obliged to satisfy the tax, did not constitute an "impermissible burden." The detriment here involved is even more remote — it arises from the assumed willingness of a purchaser to pay more by virtue of his ability to relieve his lessee of the obligation to satisfy the tax. The burden on the trustee of the collection and remission of the tax which the Hatfield court did "not consider consequential" is totally absent under the facts of this case. The party who was obliged to collect and remit the taxes was Stables, not the trustee who had no responsibility of any kind in connection therewith. Any claim that the tax constitutes "a license fee required of a federal officer to make liquidation," or "is a tax on the process of the court liquidating assets" (as argued in Judge Fee's concurring opinion in Goggin I) is, therefore, wholly untenable. It is thus clear that under the facts here presented, the collection of the tax presents no real burden upon the liquidation process. Moreover, plaintiff's argument that taxation of the rental receipts is the equivalent of sales or use taxes upon the trustee's sale to Stables because it is "in lieu thereof" is not persuasive. Plaintiff concedes the taxability of, and has paid sales tax upon, its outright sales of livestock and equipment purchased from the trustee. Revenue and Taxation Code section 6006, subdivision (g), defines "sale" to include: "Any lease of tangible personal property in any manner or by any means whatsoever, for a consideration, except a lease of: ".... .... .... .... ... "(5) Tangible personal property leased in substantially the same form as acquired by the lessor or leased in substantially the same form as acquired by a transferor, as to which the lessor or transferor has paid sales tax reimbursement pursuant to Section 6052 or has paid use tax measured by the purchase price of the property...." *698 The tax payable upon a lease which is deemed a sale is not imposed in lieu of any other tax. It is payable because a lease, like an outright sale, creates a new use that is equated with that incident to a new ownership. Revenue and Taxation Code section 6009 provides in this respect: "`Use' includes the exercise of any right or power over tangible personal property incident to the ownership of that property, and also includes the possession of, or the exercise of any right or power over, tangible personal property by a lessee under a lease, except that it does not include the sale of that property in the regular course of business." It is for that reason that the rentals payable are included within the measure of use tax and are exempt from the measure of sales tax. This was pointed out in Ladd v. State Bd. of Equalization, 31 Cal. App.3d 35, 39 [106 Cal. Rptr. 885], where the court said: "While a lease of tangible personal property has, since August 1, 1965, been included within the definition of a sale (Rev. & Tax. Code §§ 6006, subd. (g)(5), and 6010, subd. (e)(5)), the order of taxation is the inverse of that present in ordinary sales. Rentals payable under a lease of tangible personal property are exempted from the measure of sales tax (Rev. & Tax. Code, § 6390), but are included within the measure of use tax. (Rev. & Tax. Code, § 6401.) Rental receipts from a lease of tangible personal property, which would otherwise be so includable, are excluded if the property is leased in substantially the same form as acquired by the lessor and if the lessor has himself paid sales tax reimbursement or use tax measured by the purchase price to him of the property. (Rev. & Tax. Code, §§ 6006, subd. (g)(5), and 6010, subd. (e)(5).)" (3) The effect of the exemption provided in Revenue and Taxation Code section 6006, subdivision (g)(5), is to afford the lessor of personal property (leased in substantially the same form as acquired by him) an option whereby the incidence of use tax upon the lease rentals may be diminished in effect by prepayment of the lesser sales or use tax which would have been applicable on account of the lessor's original purchase and storage if the property had not been acquired and stored for resale. (Cf. Rev. & Tax. Code, §§ 6007, 6008.) In Action Trailer Sales, Inc. v. State Bd. of Equal., 54 Cal. App.3d 125 [126 Cal. Rptr. 339], this court validated Regulation 1660 (c)(2) of defendant board requiring the lessor to make a timely exercise of the option. In so doing, we stated (54 Cal. App.3d at pp. 131-132): *699 "Revenue and Taxation Code section 6006, subdivision (g)(5), allows a lessor of tangible personal property leased in substantially the same form as acquired to pay sales tax reimbursement pursuant to section 6052 or use tax measured by the purchase price of the property if the lessor desires to do so rather than to collect sales tax from his lessee.... ".... .... .... .... ... "The option of paying sales tax reimbursement pursuant to section 6052 by definition must be exercised with respect to the original acquisition of the property by the lessor by paying sales tax to the transferor of the property. The next option is that of paying use tax measured by the purchase price of the property.... ".... .... .... .... ... "The two options embodied in section 6006, subdivision (g)(5), which take a lease out of the category of a sale are couched in the past tense. If the lessor has failed to either pay sales tax reimbursement to the transferor at the time of the transfer of the property or has not timely reported and paid use tax based on the purchase price of the property at the time the property is first placed in rental service, the lease of the property is considered a sale and the lessor is either required to collect use tax from the lessee of the property or pay the amount he should have so collected." It is apparent from the foregoing that the taxable event is the creation of the lessee's use, and that the primary tax is the use tax upon such lessee's use, measured by the rental receipts. So far as there is any tax payable in lieu of another tax, the sales or use tax measured by the purchase price of the lessor's original purchase is the substitute tax which a lessor may at his option make applicable if timely action is taken by him. In the absence of such timely exercise of the option, the primary tax remains payable. It does not thereby become a tax payable in lieu of the sales and use taxes. Plaintiff's argument that it should not be required to pay a sales or use tax not legally enforceable against it in order to achieve such benefit overlooks the fact that no lessor who has purchased for resale by leasing is obligated to pay either sales or use tax on account of the original purchase or his storage prior to leasing. Normal operation of the options afforded by section 6006, subdivision (g)(5), is that the lessor pays the *700 lesser tax which was not obligatory in order to avoid the use tax upon the lessee's use based upon the full lease rental. We, therefore, conclude that even if Stables' original purchase of the livestock and equipment from the trustee in bankruptcy and its use thereof prior to leasing was exempt under the rule stated in the Goggin cases, that circumstance would not require exemption from the use tax upon the lessee's use. The judgment is affirmed. Ford, P.J., and Allport, J., concurred.

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Gffice of tbc Zlttorncp Q&mral &arc of crs&35 DAN MORALES March 30, 1992 ~TTOHX\C~ GEXtx\L. Mr. James L Pledger Opinion No. DM-99 Commissioner Texas Savings and Loan Department Re: Whether certain governmental 2601 North Lamar, Suite 201 entities may lawfully deposit funds in Austin, Texas 78705 the demand accounts of state and federal savings and loan associations and savings banks (RQ-220) Dear Commissioner Pledger: You have requested an opinion regarding whether certain governmental entities organized under the laws of the State of Texas may lawfully deposit funds in the demand accounts of “state and federal savings and loan associations and savings banks,” which you refer to collectively as “savings associations.“l In particular, you ask about the authority of municipalities, counties, independent public school districts, and institutions of higher learning. The authority of these governmental entities to deposit funds is governed by statute. Chapter 105 of the Local Government Code authorizes municipalities to deposit municipal funds in banks. Section 105.001 defines the term “bank” as,“a banking corporation or association or an individual banker.” Chapter 116 of the Local Government Code authorizes county commissioners courts to contract with banks for the deposit of county funds. Local Gov’t Code 8 116.021.’ Like section 105.001, section 116.001 defines the term “bank” as “a banking corporation or association or an individual banker.” This office has repeatedly stated that the statutory definition of “bank” found in these sections does not include savings and loan associations, and that savings and loan associations do not qualify as depositories for these and other governmental entities without further statutory ‘In your brief, you appear to use the term “savings association” as defined by federal law, which includes state savings and loans and federally chartered savings banks. 12 U.S.C. 9 1813(b). You state, however, that ‘[qor purposes of analyzing authorized deposit-taking activities, these thrift institutions should be considered collectively.” We use the term “savings association” only in characterizing your contentions, and refer to and continc our analysis to “savings and loan associations.” P. 501 Mr. James L. Pledger - Page 2 (DM-99) authorization. Sre Attorney General Opinions MW-531 (19X2) (concluding thar savings and loan associations may not serve as hospital district deposirories because statutory terms “banking corporation, association or individual bank[s]” do not embrace such entities); M-22 (1967) (concluding that former article 2549, V.T.C.S.. one of the predecessor statutes to chapter 116 of the Local Government Code, did not qualify a savings and loan corporation as a depository for county funds); see ~1x0 Attorney General Opinions H-1013 (1977); H-723 (1975). Subchapter E of chapter 23 of the Education Code, the School Depository Act, authorizes independent school districts to establish depositories for the deposit of school funds. Section 23.71 mandates that “[a] school depository. shall be a bank located in the State of Tesas.“’ Subchapter A of chapter 5 I of the Education Code governs the control of funds by certain state institutions of higher learning. including the University of Texas and the Texas A & M University systems. See Educ. Code $9: 51.001 (setting forth the institutions to which subchapter A applies), 61.003 (same). Section 51.003 of that subchapter provides that the governing boards of such institutions may select “one or more depositories as places of deposit” for certain school funds and shall deposit such funds “in tke depository hank or hanks.” In Attorney General Opinion MW-272 (19SO). this office concluded that the term “bank” in section 23.71 of the Education Code does not embrace sa\.ings and loan associations. See uko Attorney General Opinion JM-42 (10%) at I (credit unions may not serve as school district depositories). The same rationale appears to apply to the terms “depository” and “depository hank” in section 5 1.003. Ser Attorney General Opinion MW-272 (“savings and loan associations do not qualify as depositories for political subdivisions without statutory authorization”) (emphasis added). You contend that the foregoin g attorney general opinions were written before “the considerable expansion of the powers of savirigs and loans that occurred after 1982” and imply that they should he overruled. In support of your contenrion. you assert that savings associations are now insured by the Federal Deposit Insurance Corporation pursuant to the federal Financial institutions Reform. ‘Section 23.73 ddincs a “hunk” as: P. 502 Mr. James L Pledger - Page 3 (DM-99) Recovery and Enforcement Act of 1989, and that federal and state law now authorize federal savings associations and state savings and loan associations to accept demand deposits from any person, see 12 USC. $1464(b); 12 C.F.R. Q 545.12; see aLso V.T.C.S. art. 852a, 5 5.05 (providing that a state savings and loan association may engage in any activity that is permissible for a federal savings and loan association). You also assert that a federal court has “recognized that a savings and loan association chartered in Texas is the functional equivalent of a Texas state bank,” citing State of Texas v. Clarke, 690 F. Supp. 573 (W.D. Tex. 1988).3 In 1982, this office considered an argument almost identical to the one asserted here. In Attorney General Opinion MW-534, the requestor contended that “recent changes in laws governing savings and loan associations.. . might affect prior opinions of this office regarding the eligibility of such associations. . . to serve as county depositories.” Attorney General Opinion MW-534 at 2. We rejected this argument, holding that [allthough these changes provide the authority for.. . savings and loan associations to perform some of the same functions as banks, this alone’ does not provide the. . . requisite statutory authority that would permit them to serve as county depositories within the ambit of articles 2544 through 2558a, V.T.C.S. [the predecessor statutes to chapter 116 of the Local Government Code]. Id. As is clear from the foregoing, our prior opinions rely on the fundamental principle that express legislative authorization is necessary to allow governmental entities to deposit funds in savings and loan associations. Since 1982, the Texas legislature has not seen fit to amend the applicable provisions of the Local Government Code or the Education Code to authorize municipalities, counties, school districts and institutions of higher learning to deposit funds in savings and loan associations.4 Recent changes in statutes and regulations governing savings 3Another brief submitted in support of the Savings and LOan Department’s position suggests that the Texas Savings and Loan Act, V.T.C.S. art. 852a, 5 6.14, authorizes governmental entities to deposit funds in savings and loan associations. In Attorney General Opinion H-723, this office held that that provision, standing alone, does not give any political subdivision the authority “to make investments unaffected by legal restrictions found elsewhere in the law of this State.” Attorney General Opinion H-723 at 4; see also Attorney General Opinion MW-534. 41ndced, a recent attempt to pass such legislation failed. See H.B. 1572, 72d Leg. (lW1) (would have amended Local Government Code, chapter 105, to change the detinition of the ‘term P. 503 Mr. James L. Pledger - Page 4 (DM-99) associations. while they may affect the activities in which such associations may engage, do not provide the requisite statutory authority that would permit these governmental entities to deposit funds in savings and loan associations, and therefore do not affect the continued validity of our prior opinions. SUMMARY Municipalities, counties, independent school districts, and institutions of higher learning are not authorized to deposit funds in the demand accounts of savings and loan associations. Very truly yours. DAN MORALES Attorney General of Texas WILL PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General MADELEINE B. JOHNSON Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General P. 504 

537 U.S. 920 BERTHELv.NEW HAMPSHIRE. No. 02-5507. Supreme Court of United States. October 7, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. 2 C. A. 1st Cir. Certiorari denied.

644 P.2d 643 (1982) 57 Or.App. 372 STATE of Oregon, Respondent, v. Chester Bruce ROMEL, Appellant. Nos. 80-10-194, 80-10-196; CA A20152. Court of Appeals of Oregon. Argued and Submitted October 23, 1981. Decided May 12, 1982. *644 Alice D. Ellis, Oregon City, argued the cause for appellant. On the brief was S. Lynn Parkinson and Parkinson, Fontana, Schumann & Jones, Oregon City. Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. Before RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ. VAN HOOMISSEN, Judge. Defendant appeals his jury convictions of attempted rape in the first degree, ORS 163.375 and ORS 161.405, and sodomy in the first degree. ORS 163.405. He contends that the trial court erred (1) in holding a closed competency hearing over his objection, (2) in denying his motion for a mistrial, (3) in finding that the complaining witness was competent to testify, (4) in refusing his proffered instruction on the testimony of children and (5) in committing such an accumulation of errors as to require reversal. Defendant first complains that his right to a public trial and due process were violated when the trial court conducted a closed pretrial hearing to determine the competency of the five-year-old complainant.[1] The court conducted the hearing pursuant to former ORS 44.030(2),[2] which provided in relevant part: "* * * Whenever a child under the age of 10 years is produced as a witness, the court shall, by an examination made by itself, publicly or separate and apart with counsel present, ascertain to its own satisfaction whether the child has sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify." The guarantee of a public trial embodied in the state and federal constitutions is not absolute. Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 284, 613 P.2d 23 (1980); State v. Blake, 53 Or. App. 906, 911, 633 P.2d *645 831 (1981), appeal dismissed 292 Or. 486, 640 P.2d 605 (1982). In some situations, countervailing policy concerns dictate that the right of the public and the defendant to an openly adjudicated proceeding must give way to other considerations. We addressed a right to public trial issue closely analogous to the present one in State v. Blake, supra. There the defendant challenged the constitutionality of a closed pretrial hearing on the admissibility of evidence relating to the alleged victim's prior sexual conduct. See ORS 163.475 (repealed effective January 1, 1982, Or. Laws 1981, chapter 892, section 98.) We held that excluding the public during the pretrial hearing did not violate the defendant's right to a public trial. 53 Or. App. at 920, 633 P.2d 831. We reasoned that the period of public exclusion authorized in the statute was narrowly circumscribed and that the protection of the victim's privacy constituted a justifiable concern of the legislature. 53 Or. App. at 918. Here, equal or even more persuasive policy reasons exist for giving the judge discretion to determine in private the victim's competency to testify. Under former ORS 44.030(2), the trial judge was given the discretion to decide whether to conduct a public or private competency hearing. It is eminently reasonable to conclude that, when the prospective witness was of a tender age and the subject matter of the proceeding was of a private and emotional nature, it was constitutionally permissible for the competency hearing to be closed. As in Blake, the period of public exclusion here did not exceed that necessary to achieve the proper public concern for the crime victim's privacy and to provide an atmosphere most conducive to determining the child's competency. A record of the hearing was made to permit appellate review, and defendant has failed to demonstrate that the procedure employed by the trial court prejudiced his public trial rights. See State v. Blake, supra, 292 Or. at 489, 640 P.2d 605 (dismissing appeal when the defendant had not demonstrated likely prejudice resulting from victim's sexual history being first reviewed in camera.) In exercising its discretion to conduct the competency hearing in private, the trial court did not violate defendant's constitutional right to due process and a public trial. Defendant next contends that the court erred in denying his motion for a mistrial, which was made during the testimony of the state's sexual abuse expert, who testified on direct examination about the changes occuring in the victim's attitude in comparison to those of children experiencing similar sexual abuse. On cross-examination, defense counsel questioned the witness about the possibility of "unfounded" sex abuse claims: "Q. And are all the allegations founded? "A. No, not totally. "Q. There are those, in other words, that you investigate and reach some decision about a case? "A. Yes, that's right. "Q. And have you ever been wrong? "A. Oh, I'm sure I have." On redirect, the prosecutor asked, "In your opinion, were [the victim's] allegations founded?" Counsel objected, and the court sustained the objection. Immediately after the court sustained the objection, however, the witness answered, "Yes, in my opinion." Whereupon the court stated: "You can't answer the question. I sustained the objection. The jury will disregard the answer." After denying the motion for mistrial, the court again instructed the jury to disregard the answer, emphasizing that "[o]ur law does not recognize nor allow people to give personal opinions about the truthfulness of somebody * * *." The state concedes that the witness' answer was inadmissible but contends that under the circumstances the error was not so egregious as to mandate the extreme remedy of mistrial. The decision to grant a motion for mistrial rests in the sound discretion of the trial court. State v. Blake, supra, 53 Or. App. at 909, 633 P.2d 831; Kashmir v. Patterson, 43 Or. App. 45, 50, 602 P.2d 294 (1979), aff'd 289 Or. 589, 616 P.2d 468 *646 (1980). Given the court's cautionary instructions, we cannot say it abused its discretion in denying the motion. Defendant also contends that the trial court erred in finding that the victim was competent to testify. Under former ORS 44.030(2) the court was required to determine whether the child, under ten years of age, possessed "sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify." The decision to permit a child to testify is within the discretion of the trial court, and that decision ordinarily will not be disturbed. State v. Holland, 48 Or. App. 367, 370, 616 P.2d 1211 (1980); see State v. Herrera, 236 Or. 1, 10, 386 P.2d 448 (1963); State v. Griffin, 19 Or. App. 822, 529 P.2d 399 (1974). Here, as the trial court acknowledged, some of the child's answers to the court's questions were inconsistent. More importantly, however, the record supports the court's finding that the victim was "capable of receiving impressions of the facts respecting which she is to be examined about at least regarding these incidents with [the defendant]." The record also supports the court's finding that she understood her obligation to tell the truth. The trial court did not abuse its discretion in finding the child competent to testify. Defendant also complains that the court erred in refusing to give a requested instruction on how to evaluate a child's testimony. At trial, the defense theory was based on the alleged inability of the child accurately to perceive, recall and relate the events at issue because of her age and susceptibility to influence. The requested instruction stated: "You are instructed that you should evaluate the testimony of a five year old witness in the same manner as you would evaluate the testimony of any witness, giving it only such weight and credit as you think her age and manner of testimony justify. You are cautioned that children are easily influenced by adults." The trial court refused the instruction, thinking that it improperly commented on the evidence. Defendant contends that the Supreme Court approved a similar instruction in State of Oregon v. Doud, 190 Or. 218, 230, 225 P.2d 400 (1950). The propriety of the present instruction, however, was not at issue in Doud. There the instruction merely "pointed out that a child may be led and misled." 190 Or. at 230, 225 P.2d 400. The Doud court did not specifically approve the instruction, but merely observed in passing that it was given without objection. Even assuming that the instruction requested was proper, defendant must demonstrate that the court abused its discretion in refusing to give it. State v. Harwood, 45 Or. App. 931, 941, 609 P.2d 1312, rev. den. 289 Or. 337 (1980); see State v. Yates, 239 Or. 596, 599, 399 P.2d 161 (1965). Merely because a proposed instruction correctly states the law does not of itself compel that it be given. State v. Rovles, 41 Or. App. 653, 658, 598 P.2d 1249 (1979). The trial court otherwise instructed the jury extensively on its role in evaluating the testimony of witnesses, and it adequately presented defendant's theory of the case on the victim's credibility. See State v. McWilliams, 29 Or. App. 101, 106, 562 P.2d 577, rev. den. 279 Or. 1 (1977). The court did not abuse its discretion in refusing to give the requested instruction. Defendant last contends that if we find no single error to require reversal, an accumulation of errors warrants reversal. See United States v. McLister, 608 F.2d 785 (9th Cir.1979). The assignments of error individually and accumulatively do not warrant reversal. Affirmed. NOTES [1] Article I, section 10, of the Oregon Constitution provides: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation. — " Article I, section 11, of the Oregon Constitution provides, in part: "In all criminal prosecutions, the accused shall have the right to public trial * * *." [2] Repealed by Or. Laws 1981, ch. 892, § 98, effective January 1, 1982.

4 F.3d 987 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.UNITED STATES of America, Plaintiff-Appellee,v.Terrence Lee HOGGARD, a/k/a Chuck, Defendant-Appellant. No. 92-5737.United States Court of Appeals,Fourth Circuit. Argued: June 11, 1993.Decided: August 26, 1993. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. (CR-92-73-N) Darlene T. Rockwell, Phillips, Webb & Wallerstein, Richmond, Virginia, for Appellant. Charles Anthony O'Reilly, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Keith L. Phillips, Phillips, Webb & Wallerstein, Richmond, Virginia, for Appellant. Richard Cullen, United States Attorney, Alexandria, Virginia, for Appellee. E.D.N.C. AFFIRMED. Before WIDENER and WILKINSON, Circuit Judges, and BRITT, United States District Judge for the Eastern District of North Carolina, sitting by designation. PER CURIAM: OPINION 1 After a two-day jury trial, Terrence Lee Hoggard was convicted of possession with the intent to distribute five or more grams of crack cocaine in violation of 21 U.S.C. Section 841(a)(1). He appeals on grounds that the district court abused its discretion by refusing to instruct on the lesser included offense of simple possession and by instructing the jury to disregard inadmissible hearsay testimony instead of granting a mistrial, and on the grounds that there was insufficient evidence to sustain his conviction of possession with intent to distribute. We affirm. 2 On 23 April 1992, police received notice that drugs were hidden in an area of Suffolk, Virginia known as the "old fairgrounds." Officers searched the area and found a footpath branching off a vehicular path that ran through the area. At the end of the path, officers found a gray case hidden in the brush. Inside the case, and enclosed within a white plastic trash bag, were over 800 grams of crack cocaine, packaged in thirty-seven (37) individual packages. Six police officers were positioned at the site to conduct surveillance. 3 Several hours later, a Chevrolet Blazer approached and stopped near the footpath. Defendant Hoggard exited from the car and ran down the vehicular path to the footpath, and then to the cocaine stash. He knelt down, hesitated briefly, stood up, and then began running back to the Blazer. No officer saw Hoggard reach into the bag to retrieve cocaine. After a short chase, investigators tackled Hoggard. A plastic bag of crack cocaine was found in the dirt within 15 feet of where Hoggard was tackled. One bag of crack cocaine was missing from the stash. 4 Officers also arrested the other occupants of the Blazer. The driver, Mary Gatling, testified at Hoggard's trial under a plea agreement with the government. Gatling testified that she had met with Hoggard on the morning of 23 April and had asked to buy one quarter-ounce of crack cocaine. She testified that Hoggard instructed her to drive him to the footpath at the old fairgrounds. She also testified that she had purchased crack cocaine from him on two previous occasions and that she had driven him to the old fairgrounds once before for a crack cocaine purchase. 5 The defendant offered evidence that the footpath at the old fairgrounds was a shortcut from Hoggard's residence to his sister's home in Lake Kennedy. The defendant also presented evidence that Hoggard was to have traveled to Lake Kennedy on that day to help his niece with her car. In its case-in-chief, the government had offered evidence that the footpath ended in a dead end. I. 6 A district court's refusal to instruct the jury as to the elements of a lesser included offense is reviewed for abuse of discretion. United States v. Levy, 703 F.2d 791, 794 (4th Cir. 1983). A lesser included offense instruction is appropriate where conviction of the greater offense would require the jury to find a disputed factual element which is not required for conviction of the lesser included offense. Levy, 703 F.2d at 793 (quoting Sansone v. United States, 380 U.S. 343, 350 (1965)). Appellant disputes his intent to distribute and argues that a lesser included offense instruction therefore was necessary. However, a lesser included offense instruction is proper only if the question of intent is capable of two answers. Levy, 703 F.2d at 793. 7 Hoggard theorizes that the jury could have chosen to disbelieve the government's immunized witness and could then have reasonably found him without intent to distribute. Specifically, Hoggard contends that the jury could have found that he happened upon the cocaine as he traveled to his sister's home, or that he knew of the stash and was retrieving an ounce for personal consumption, or that all of the occupants of the Blazer jointly possessed the cocaine, each possessing an amount consistent with personal consumption. 8 At trial, Hoggard's only witnesses were his brother and sister. His sister testified that she had been expecting him on 23 April to work on her daughter's car, and his brother testified that people use the shortcut through the old fairgrounds to get to Lake Kennedy. The defendant offered these witnesses presumably to support his theory that Hoggard was en route to his sister's home when he stumbled upon the cocaine. The defendant offered no evidence to support either of his other simple possession theories, nor does the government's evidence support them. We cannot say that the question of intent was genuinely capable of two answers. 9 Appellant relies heavily on Levy, 703 F.2d 791, in which we found reversible error in the lower court's failure to instruct on the lesser included offense of simple possession. Levy, however, is distinguishable. In Levy there was no evidence of a negotiated sale, the drugs were not packaged for street sale, and the presence of drug paraphernalia at the defendant's home supported the inference that the defendant possessed the cocaine for his own personal consumption. In this case defendant Hoggard cannot point to any comparable indications of an intent to retain the cocaine for personal use. 10 Reversal is required if the evidence would permit a jury to rationally find the defendant guilty of only the lesser offense. Keeble v. United States, 412 U.S. 205, 208 (1973). The district court properly concluded that no reasonable view of the evidence would support the lesser included offense of simple possession and not possession with the intent to distribute. We find no abuse of discretion. II. 11 A district court's refusal to grant a mistrial also is reviewed for abuse of discretion. United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992). The decision to grant or deny a motion for mistrial is within the discretion of the trial judge, and the court's decision will not be overturned except for clear abuse of discretion. United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir. 1984). 12 Immediately following opening statements, the government's first witness, an investigator, testified that he had received information that the defendant "had been seen going in and out of" the wooded area. Appellant objected and moved for a mistrial on the grounds that the statement was hearsay and that its matter was not subject to cross-examination, thereby violating appellant's sixth amendment right of confrontation. Appellant also argues that the statement could imply his knowledge of the drugs prior to entering the woods, which he contends is the "heart of the matter." (Appellant's Brief at 14). 13 To determine the extent of prejudice resulting from evidence improperly brought before the jury, we must look to the closeness of the case, the centrality of the issue affected by the error, and the steps taken by the court to mitigate the effects of the error. United States v. Nyman, 649 F.2d 208, 212 (4th Cir. 1980) (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)). The case does not appear to have been close, as the evidence against appellant was substantial. Moreover, while relevant, the investigator's statement was not central to the case. We note also that the testimony of the defendant's own witnesses tended to place him in the area for the entirely innocuous purpose of going to his sister's house. Finally, the court gave a curative instruction. Indeed, the court informed the jury that an evidentiary point had arisen and the trial, since it was only minutes old, would "start over." 14 Reversal is required if there is a "reasonable possibility that the jury's verdict was influenced" by the improper material. United States v. Seeright, 978 F.2d at 849 (quoting United States v. Barnes, 747 F.2d 246, 250 (4th Cir. 1984)). It is highly improbable that the jury's verdict was swayed by the improper testimony. The trial court did not abuse its discretion in denying the motion for a mistrial. III. 15 Finally, appellant contends that there was insufficient evidence to support his conviction. We review the sufficiency of the evidence in the light most favorable to the government. United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989). The government offered evidence that a sale had been arranged between Hoggard and a customer, and that he had brought the customer to the site for the purpose of consummating the sale. Evidence also showed that appellant was in possession of the cocaine, and appellant concedes that testimony indicated a sale was "about to occur." (Appellant's Brief at 18). This evidence is sufficient to support conviction of possession of cocaine with intent to distribute. 16 For the reasons given, the conviction of Hoggard is hereby AFFIRMED

986 S.W.2d 407 (1999) 336 Ark. 580 Eugene Issac PITTS, Petitioner, v. STATE of Arkansas, Respondent. No. CR 80-40. Supreme Court of Arkansas. March 11, 1999. *408 Appellant, pro se. Winston Bryant, Atty. Gen. by Kent G. Holt, Asst. Atty. Gen., for appellee. PER CURIAM. Eugene Issac Pitts was found guilty by a jury of felony murder in 1979 and sentenced to life imprisonment without parole. In the decision affirming the judgment, we noted that petitioner kidnapped Bernard Jones from his home and killed him and that the Jones's wife positively identified Pitts, whom she knew well, as her husband's assailant. We further noted that an expert forensic witness had testified that hairs found on the victim's body were like Pitts's hair. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981). Pitts subsequently filed in this court a petition pursuant to Criminal Procedure Rule 37 *409 seeking postconviction relief. The petition was denied on its merits. Pitts v. State, CR 80-40 (February 1, 1982). Pitts now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, citing United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition on the ground that newly developed methods of scientific testing, namely DNA analysis, are now available to test the hair sample which was entered into evidence by the prosecution at his trial in 1979. He contends that the new tests would refute the testimony of an expert witness at petitioner's trial that hair found on the victim was like that of petitioner. The ground raised by petitioner is insufficient to warrant granting leave to proceed in the trial court with a petition for writ of error coram nobis. We said in Larimore, supra, that the writ was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or, as added by Penn, supra, a third-party confession to the crime during the time between conviction and appeal. See Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). See also Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). We further said in Larimore, citing Troglin, supra, that the following guidelines are applicable when considering a petition for writ of error coram nobis: (1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment; (2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition; (3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and (4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relief upon and not merely state conclusions as to the nature of such facts. 257 Ark. at 645-46, 519 S.W.2d at 741. Where there was no fundamental error at the time of trial, newly discovered evidence is not a cause to issue a writ of error coram nobis. Smith v. State, supra. The mere fact that over time a scientific test may have been developed which did not exist at the time of a petitioner's trial is not in itself cause to issue the writ because the development in scientific testing cannot establish a fundamental error made at trial. A petitioner who contends that newly developed scientific testing can exonerate him *410 should submit the allegation to the executive branch in a clemency proceeding.[1] Petitioner next contends that he was improperly convicted of felony murder as that charge was interpreted by two decisions of this court rendered after the judgment in his case was affirmed. The State argues that neither case is apposite to petitioner's case, but the core issue is whether there was some fundamental error at petitioner's trial which was extrinsic to the record and could not have been raised at that time. Clearly, petitioner was aware at the time of trial of the charge against him and could have challenged the felony information at that time. Petition denied. NOTES [1] Petitioner states that he has filed two unsuccessful petitions for clemency, presumably raising the issue raised herein.

676 F.2d 690 Alstonv.Kelly 81-6489 UNITED STATES COURT OF APPEALS Fourth Circuit 3/15/82 1 E.D.Va. VACATED AND REMANDED

United States Court of Appeals, Eleventh Circuit. No. 95-6123. Walter McMILLIAN, Plaintiff-Appellee, v. W.E. JOHNSON, Tommy Herring, Tom Allen, in their individual capacities, et al., Defendants, Thomas Tate, Simon Benson, Larry Ikner, in their individual capacities, Defendants-Appellants, Association of County Commissioners of Alabama Liability Self Insurance Fund, Intervenor-Defendant. Dec. 3, 1996. Appeals from the United States District Court for the Middle District of Alabama. (No. CV-93-A-6990N), W. Harold Albritton, III, Judge. ON PETITION FOR PANEL REHEARING AND SUGGESTION OF REHEARING EN BANC Before COX and BARKETT, Circuit Judges, and PROPST*, Senior District Judge. PER CURIAM: The opinion reported at 88 F.3d 1554 (11th Cir.1996), is amended by substituting the following for section "F", under part IV of the opinion, pages 1571-73. IV. Discussion F. Tate's Sovereign Immunity From State Law Claims The district court found that McMillian had presented sufficient evidence to create a genuine issue of material fact on three state law claims against Tate, Ikner, and Benson: malicious prosecution (Count Twenty); abuse of process (Count Twenty-One); * Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation. and outrage (Count Twenty-Six). In addition, the court found that a genuine issue exists as to a state law outrage claim against Tate and the DOC defendants (Count Twenty-Five). The court rejected Tate's state law sovereign immunity and state law discretionary immunity defenses, holding that neither form of state law immunity shields officials sued for intentional or malicious wrongdoing in their individual capacities. On appeal,1 Tate contends that Alabama sheriffs are protected by sovereign immunity under § 14 of the Alabama Constitution, even when they are sued in their individual capacities for malicious or intentional wrongdoing. According to Tate, a suit may be maintained against a sheriff only if it falls within one of five limited categories.2 It is undisputed that McMillian's claims do not fall within any of the five categories. We find in decisions by Alabama's appellate courts no clear answer to the question presented. Some Alabama decisions, including the most recent ones, seem to support Tate's position. Karrick v. Johnson, 659 So.2d 77 (Ala.1995)(deputy sheriff immune 1 We have jurisdiction over this appeal from the district court's denial of state law immunity because the state law immunity asserted is an immunity against suit. See Griesel v. Hamlin, 963 F.2d 338, 340-41 (11th Cir.1992). 2 Quoting Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987), Tate argues that a sheriff is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of the duties of his office, except for actions brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute. from suit for malicious prosecution and false imprisonment); Drain v. Odom, 631 So.2d 971 (Ala.1994)(sheriff is immune from suit in his official capacity for negligent performance of his statutory duties); Parker v. Amerson, 519 So.2d 442 (Ala.1987)(sheriff is an executive officer of State of Alabama and is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of duties of his office); Alexander v. Hatfield, 652 So.2d 1142 (Ala.1994)(deputy sheriffs are immune from suit to the same extent as sheriffs). Some Alabama decisions point in the other direction. Phillips v. Thomas, 555 So.2d 81 (Ala.1989)(Clearly, a state officer or employee is not protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of law); Unzicker v. State, 346 So.2d 931 (Ala.1977)(State immune when impleaded as defendant, but governor, commissioner of conservation, and state highway director, in their respective capacities, were not also immune where it was alleged that those officers acted fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law); Milton v. Espey, 356 So.2d 1201 (Ala.1978)(Section 14 does not necessarily immunize State officers or agents from individual civil liability); DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1982)(defense of sovereign immunity afforded university and its president did not extend to employee whose alleged tortious act was the basis of the claim); Lumpkin v. Cofield, 536 So.2d 62 (Ala.1988)(defense of sovereign immunity does not bar suits against state officers and employees for torts committed willfully, maliciously, and outside the scope of their authority); See also Gill v. Sewell, 356 So.2d 1196 (Ala.1978). But a recent decision by this court, Tinney v. Shores, 77 F.3d 378 (11th Cir.1996), holds that under Alabama law a sheriff and deputy sheriff are shielded by sovereign immunity against claims based upon intentional torts. Some of the language in Tinney is confusing; the court says that "[u]nder Alabama law, sheriffs and deputy sheriffs, in their official capacities and individually, are absolutely immune from suit when the action is, in effect, one against the state." Id. at 383. The claim under consideration in Tinney was against the sheriff and deputy sheriff in their individual capacities. However, no consideration was given to whether the action was, in effect, one against the state. Federal law controls a determination relative to whether a state is the real party-in-interest to the action, and under federal law the claim in Tinney was not one against the state. See Kentucky v. Graham, 473 U.S. 159, 167-68, 105 S.Ct. 3099, 3106-07, 87 L.Ed.2d 114 (1985); and Jackson v. Georgia Dep't of Transp., 16 F.3d 1573, 1577 (11th Cir.1994). Notwithstanding this confusing language in Tinney, the holding of the case is clear: under Alabama law, a claim against an Alabama sheriff in his individual capacity is barred by the doctrine of sovereign immunity. We are bound to follow Tinney, and do so. We hold that the district court erred in rejecting Tate's sovereign immunity defense to the state law claims. The petition for panel rehearing is, except as granted hereby, DENIED, and no member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED. PROPST, Senior District Judge, specially concurring: I join the court's opinion on petition for rehearing. I write separately to address broader issues relating to qualified immunity. At a recent Eleventh Circuit Judges' Workshop, a speaker remarked that "Keeping up with qualified immunity law is a full-time job." As a trial judge, I can well see how one might reach that conclusion. I concur in the denial of rehearing as to federal qualified immunity asserted by the defendants in their individual capacities. In doing so, I humbly make some suggestions which may reduce the workload of the followers of this still developing law. Although I, as a trial judge, granted qualified immunity to the two individual defendants in Jenkins v. Talladega City Board of Education, 95 F.3d 1036 (11th Cir.1996), and later concurred in the denial of qualified immunity in this case, I submit that there is no inconsistency.1 Our holding in this case is premised on the holding in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Bell clearly holds that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance 1 Ironically, the majority in Jenkins partially relied upon this case in arriving at its holding. That opinion has now been vacated because of the granting of an en banc rehearing by the court. with due process of law." Id., 441 U.S. at 535, 99 S.Ct. at 1872. Having held that punishment of pretrial detainees violates the Due Process Clause, the Court proceeded to determine what factors are considered in determining whether conduct constitutes "punishment." The Court, after stating that factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963), "[provide] useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word," concluded that, "A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.... Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination will generally turn "on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].' Kennedy v. Mendoza-Martinez, supra, at 168-69, 83 S.Ct. at 567-68 ...." (emphasis added). Id., 441 U.S. at 538, 99 S.Ct. at 1874. The Court added, Thus, if a particular condition or restriction is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees (emphasis added). Id., 441 U.S. at 539, 99 S.Ct. at 1874. Whether discussed in the context of "expressed intent" to punish, or in the context of determining the existence of a legitimate governmental goal, the purpose of the conduct is significant, and the purpose may be inferred from the total evidence. Both purpose and intent are fact related and it is difficult for me to see how such issues can be determined as a matter of law; particularly when the claim is that it was necessary to place a pretrial detainee on death row in order to protect him. Such is the issue in this case.2 On the other hand, Jenkins, supra, is not a case involving the Due Process Clause nor the subjective intent or purpose of the alleged violators. The Jenkins claims are Fourth Amendment claims which are properly analyzed under the Fourth Amendment's "objective reasonableness" standard rather than under a subjective due process standard. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). While the Bell Due Process Clause analysis requires, as an essential element, proof of expressed intent or at least circumstantial evidence of an unlawful purpose, the Fourth Amendment analysis does not require any inquiry into subjective state of mind or purpose. Graham, supra, 490 U.S. at 398, 109 S.Ct. at 1873. Having noted this distinction, I further suggest that the holding in Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150 (11th Cir.1994) (en banc), that "Courts must not permit plaintiffs to discharge their burden by referring to general rules and to the 2 In this case, the underlying issue is intentional or purposeful punishment, vel non. The means of punishment, if it occurred, would appear to be incidental. While perhaps not raised by the plaintiff as a Fifth Amendment claim, one could argue that the purpose of the death row placement was to induce a confession. I will leave it to others to determine if a Fifth Amendment inquiry is purely objective. violation of "abstract rights,' " is more easily applied in cases, such as Fourth Amendment cases, where the underlying inquiry is one of objective reasonableness. I thus distinguish the facts and issues of this case from those in Jenkins. In Jenkins the issue is whether reasonable officials would know that their conduct was objectively unreasonable.3 Such inquiries require more than an abstract consideration of Fourth Amendment law. If the inquiry in Jenkins had involved an element of intent or purpose, the intent or purpose, not the specific conduct, may have been the appropriate issue to focus upon if the inappropriateness of such intent or purpose had been clearly established. The Jenkins majority relied upon a Supreme Court case which states that searches must be reasonable under the circumstances.4 This is little more direction 3 See Foy v. Holston, 94 F.3d 1528 where the Court stated: To prevail on a claim about family privacy, parents need to prove that a state actor interfered with a protected liberty interest without sufficient justification. This constitutional tort requires no element of intent.... Violations of the right to family association are determined by a balancing of competing interests ... so, state officials who act to investigate or to protect children where there are allegations of abuse almost never act within the contours of "clearly established law." The Jenkins majority would apparently require the defendants, in the acknowledged absence of clearly established Eleventh Circuit law, to, by inductive consideration of a factually distinct Supreme Court case and one Associate Justice's dicta, decide what the Eleventh Circuit would likely hold. 4 "[w]hether there was a reasonable relationship between the scope of the search (the measures adopted and the objectives of the search"). than the insight that the Fourth Amendment itself provides.5 Apparently, the Jenkins majority would hold that public officials must determine whether a controlling appellate court will determine that certain conduct is egregious enough to qualify as being unreasonable even though none has specifically so held. Perhaps no case provides a better example of the requirement of prior concrete law in Fourth Amendment cases that does Wright v. Whiddon, 951 F.2d 297 (11th Cir.1992). Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) clearly established that the use of deadly force to apprehend a fleeing, non-dangerous felony suspect is a constitutionally unreasonable seizure under the Fourth Amendment.6 Garner was decided six months before the incident in Wright. In Wright, a person who had been arrested on a charge of armed robbery and had confessed to the crime ran from a courthouse while awaiting a probation revocation hearing. The escapee was admittedly unarmed, but was fatally wounded as he ran down an alley. The court held that Garner did not clearly establish that deadly force cannot be used against a fleeing, previously arrested, non-dangerous felon. Thus, the police officer who shot the fleeing felon was entitled to qualified immunity.7 Since this case, unlike Jenkins and Wright, implicates 5 "The right of the people to be secure in their persons ... against unreasonable search and seizures...." 6 See also Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985). 7 Of interest as it relates to the facts of this case is the following dictum in Wright: "At a minimum, "[i]t is clear ... that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.' Graham, 109 S.Ct. at 1871 n. 10." This dictum clearly distinguishes the appropriate analysis here from that in Jenkins. subjective intent or motive, the issue remains as to how such intent claims are to be considered during the course of a qualified immunity analysis. In Ratliff v. DeKalb County, Ga., 62 F.3d 338, 341 (11th Cir.1995), the court stated, "We are bound by our earlier holding that, in qualified immunity cases, intent is a relevant inquiry if discriminatory intent is a specific element of the constitutional tort; and, we follow that rule here." Compare, however, Hansen v. Soldenwagner, 19 F.3d 573, 578 (11th Cir.1994)("For qualified immunity purposes, the subjective motivation of the defendant official is immaterial ... Harlow 's objective standard would be rendered meaningless if a plaintiff could overcome a summary judgment motion based on qualified immunity by injecting the defendant's state of mind into the pleadings.")8 In the recent case of Foy v. Holston, cited supra, the court attempted to strike a balance in cases in which intent is an element of the underlying claim. The court in Foy stated, One trigger to the doctrine's application depends upon whether the record establishes that the defendant, in fact, did possess a substantial lawful motive for acting as he did act. At least when an adequate lawful motive is present, that a discriminatory motive might also exist does not sweep qualified immunity from the field even at the summary judgment stage. Unless it, as a legal matter, is plain under the specific facts and circumstances of the case that the defendant's conduct—despite his having adequate lawful reasons to support the act—was the result of his unlawful motive, the defendant is entitled to immunity. Where the facts assumed 8 This holding was made in even a First Amendment case where an element of the Mt. Healthy analysis includes a determination of whether the defendant's conduct was substantially motivated by a consideration of the plaintiff's protected speech. See Mt. Healthy v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Compare Hansen's holding to that in Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir.1996).  for summary judgment purposes in a case involving qualified immunity show mixed motives (lawful and unlawful motivations) and pre-existing law does not dictate that the merits of the case must be decided in plaintiff's favor, the defendant is entitled to immunity. In note 9, the court added: We know that matters of intent are often jury questions. But, even at summary judgment, "where the defendant's justification evidence completely overcomes any inference to be drawn from the evidence submitted by the plaintiff the [ ] court may properly acknowledge that fact...." Young v. General Foods Corp., 840 F.2d 825, 830 (11th Cir.1988)(quoting Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir.1987)).... Here the record, in fact, shows substantial lawful intent, while not ruling out some unlawful intent, too. Unlike McMillian and Ratliff (which involved pointed district court fact findings—that we did not review—about the intent of the defendants and in which the Mt. Healthy doctrine was not discussed), we are deciding the qualified immunity question based on circumstances which include indisputable and sufficient lawful motivations on the part of Defendants. Crawford-El v. Britton, 93 F.3d 813 (D.C.Cir.1996) (en banc), proposes another solution, in cases involving the intent or motive of public officials, to preserving the holding in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) that requires some protection to such officials from the costs of lawsuits that unduly chill their exercise of discretion in the performance of their public duties. The apparent majority of the court held that when motive or intent is an essential element of a constitutional tort claim, the plaintiff, in opposition to a motion for summary judgment based on qualified immunity, has to present clear and convincing evidence that the defendant acted with an unconstitutional motive. The court split with regard to the amount of discovery to be allowed to plaintiffs on the intent or motive issue before the trial court rules on such motions. While the number of concurring opinions makes it difficult to ascertain the holdings of the court, at least one commentator has stated that while Judge Williams' "opinion for the court" adopted the clear and convincing standard, Judge Ginsburg's opinion prevailed as to the amount of discovery allowed. Judge Ginsburg wrote that "a plaintiff [should be allowed] to pursue limited discovery only upon a showing that he has a reasonable likelihood of turning up evidence that a jury could consider clear and convincing proof of the defendant's unconstitutional motive...." It appears that Judge Silberman apparently stood alone in his view that there should be only an objective inquiry into the pretext of an asserted legitimate motive. Judge Silberman would apparently hold that if a defendant articulates any reasonable motive for his actions, he is entitled to summary judgment unless a jury might find that such a suggested motive, whether true or false, would be unreasonable. Apparently a jury would not be allowed to determine the true motive. Judge Silberman's view is close to the holding in Foy. In note 5 of Foy, the court remarked on the difference between constitutional torts which require proof of intent or motive and those that don't. The court stated: But, many constitutional torts do not require the plaintiff to prove that the defendant possessed discriminatory intent in acting. For qualified immunity in such cases, no court doubts that Harlow's test of objective reasonableness applies: The subjective intent of the government actor is unimportant to the resolution of the qualified immunity issue. The sole question is whether any reasonable official (regardless of subjective motive) could have acted as the defendant acted without violating clearly established law. Jenkins involves the type case discussed in note 5 in Foy. Our instant case does implicate the subjective intent of the defendant. An issue is whether claims involving subjective intent are appropriate for summary judgment based upon qualified immunity if a legitimate motive is simply posited. I find it difficult to see how such cases can be determined at the summary judgment stage if there is any substantial evidence of an illegal motive in view of the established law which precludes a trial court's making credibility determinations, weighing the evidence, and interfering with a jury's drawing of legitimate inferences from the evidence. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). I fully agree with the concerns expressed by various judges about the exponential growth of such claims against public officials.9 I am simply concerned that the rules be "clearly established" so that neither parties nor trial courts will have to continue to play panel roulette and can avoid unnecessary and costly appeals. For an indication of the difficulty facing trial courts, compare the holding in Foy, supra, with that in Ratliff, supra, and the vacated Jenkins majority opinion with the opinion in Wright. Also consider the above quoted statement in Hansen. While our holding in this case appears to be consistent with that in Ratliff, it may be somewhat inconsistent with that in Foy, although Foy purports to distinguish our holding. I suggest that the qualified immunity issues cry out for further en banc consideration, especially as to the claims involving intent or motive as an element vis a vis those which do not.10 9 See Judge Silberman's opinion in Crawford-El, supra, for a historical and statistical analysis. 10 Crawford-El, supra, recognizes that trial courts are caught in a "vortex of changing standards." 

493 F.3d 893 (2007) Yorli P. HUFF, Plaintiff-Appellant, v. Michael F. SHEAHAN, in his official capacity as Sheriff of Cook County, Defendant-Appellee. No. 05-1310. United States Court of Appeals, Seventh Circuit. Argued December 1, 2006. Decided July 16, 2007. *894 Jeffrey I. Cummings (argued), Sharon K. Legenza, Miner, Barnhill & Galland, Chicago, IL, for Plaintiff-Appellant. Donald R. Hallsten, Jr., (argued), Office of the Cook County State's Attorney, Chicago, IL, for Defendant-Appellee. Before EASTERBROOK, Chief Judge, and RIPPLE and MANION, Circuit Judges. RIPPLE, Circuit Judge. Yorli Huff brought this action for damages for race and sex discrimination that she claimed to have suffered during her employment with the Sheriff's Department of Cook County, Illinois. She named various defendants in their individual and personal capacities. A jury trial resulted in a verdict in favor of all the defendants on all claims. The district court later denied a Rule 59(e) motion for a new trial and a renewed motion for judgment as a matter of law. Ms. Huff timely appealed the denial of this motion and the underlying judgment against her. She seeks review only of her Title VII claim against her former *895 employer, Cook County Sheriff Michael Sheahan ("the Sheriff"). For the reasons stated in this opinion, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. I BACKGROUND A. Facts Ms. Huff was employed by the Cook County Sheriff's Department and was assigned to the Metropolitan Enforcement Group ("MEG"), a separate, multi-jurisdictional narcotics task force staffed by personnel of multiple law enforcement agencies including the Sheriff's Department. Ms. Huff began working in MEG in 1992 and remained there until 1997. For a period of several years, while detailed to MEG, Ms. Huff worked under the supervision of Andrew Douvris and Fred Guerra, who were also Sheriff's Department personnel. Ms. Huff alleged a variety of serious claims of discrimination on the part of her supervisors at MEG: using, on a regular basis, racial and gender epithets in reference to her and to other African-Americans;[1] providing her with inferior equipment and assignments; frustrating her request for a transfer to another department; harassing her by paging her and checking on her location at all times; denying her requests to use flex-time benefits available to others; isolating her from other African-Americans in the office with explicit instructions that she not socialize with them;[2] and marginalizing her to such a degree that she eventually lost her position in the Sheriff's Department. Ms. Huff claims that, during this time, she documented some of the incidents, spoke to Mr. Guerra and Mr. Douvris about the harassment and reported the discrimination to her MEG supervisor, all to no avail. She, and several other employees assigned to MEG, stated that the Sheriff's Department never informed them about proper procedures for reporting harassment; she also testified that, when she did learn of the procedures, she availed herself of these options and made a complaint to the Sheriff's equal employment opportunity officer. She stated that, after her reports of the conduct, she was further harassed by MEG staff members, including fellow employees. Ms. Huff also sought a transfer to another unit and, although the Sheriff's chief of police approved her request, Mr. Douvris apparently blocked it. She was assigned to desk duty, and, in August 1997, her MEG supervisors removed her from that office; she returned to an office of the Sheriff's Department. She learned that the Sheriff had no alternate assignment for her, at which point her employment with the Sheriff ended. Despite being subject to a distinct command structure within MEG, all Sheriff's *896 Department personnel assigned there apparently continued to be subject to the Sheriff's chain of command and personnel rules; notably, the Sheriff was obligated by contract[3] to determine "work-place rules of conduct" applicable to his employees detailed to MEG and, "if necessary, [to] institute disciplinary actions for [his] employees." Plaintiff's Ex.8 at 2. Mr. Guerra and Mr. Douvris ultimately were disciplined in Sheriff's Department disciplinary proceedings for their use of the racial slurs set forth in Ms. Huff's 1997 report. Mr. Douvris was demoted in rank from commander to sergeant. Mr. Guerra was removed from MEG and placed on patrol for the Sheriff's Department.[4] B. District Court Proceedings 1. Pretrial Proceedings Ms. Huff brought this action in the district court for the Northern District of Illinois. Her complaint set forth a variety of claims, including Title VII disparate treatment and hostile work environment harassment claims against her employer, the Sheriff. 42 U.S.C. § 2000e et seq. It also set forth claims under 42 U.S.C. §§ 1981 and 1983 against the Sheriff in his official capacity and against Mr. Guerra and Mr. Douvris in their personal capacities.[5] The parties engaged in lengthy discovery and, in 2001, all remaining defendants moved for summary judgment. The district court granted the motions in part and denied them in part. First, the court granted summary judgment to all defendants on the § 1981 claims, based on its conclusion that Ms. Huff, as an at-will employee, could not state a claim under § 1981. The district court also entered judgment for Mr. Guerra on one of the § 1983 claims after concluding that the record did not support the allegation that he had created a hostile work environment. In this ruling, the district court relied on the absence of evidence that the slurs admittedly used by Mr. Guerra ever had been used in a language understandable to Ms. Huff and in her presence.[6] However, the disparate treatment claims, alleging that Mr. Guerra denied her the opportunity to act as group supervisor, denied flex-time, paged her excessively, *897 denied leads on cases, evaluated her unfairly and restricted her break-time reading materials, were allowed to stand. As to Mr. Douvris, the court granted summary judgment on Ms. Huff's § 1983 disparate treatment claim that alleged that he had assigned Ms. Huff an inferior vehicle as time-barred. It denied summary judgment on her claim that he wrongfully had denied Ms. Huff's requested transfer and that he had ordered her not to socialize with J.D. Lewis, the unit's other African-American staff member. The court also denied summary judgment on Ms. Huff's § 1983 hostile work environment claim against Mr. Douvris. Finally, the district court held that Ms. Huff had created a genuine factual issue as to the Sheriff's liability under Title VII for any harassment Ms. Huff had suffered at MEG. 2. The Jury Instructions The parties proceeded to trial on the remaining § 1983 claims against the individual defendants, including the hostile work environment claim against Mr. Douvris and the Title VII hostile work environment claim against the Sheriff. The jury instruction conference was protracted and is difficult to follow on the record before us. The Title VII instruction that is the subject of this appeal was a particular source of conflict between the parties. The parties submitted multiple rounds of proposed Title VII instructions, some of which appear only by transcript reference in the record on appeal. For present purposes, it will suffice to note that Ms. Huff consistently maintained an objection to the Sheriff's proposed Title VII harassment jury instruction. Specifically, Ms. Huff insisted that, before the Ellerth/Faragher affirmative defense could be presented to the jury, the jury first had to be asked whether Ms. Huff had proved that the harassment she suffered culminated in a tangible employment action. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Ms. Huff contended that, if she had proved a tangible employment action, the Ellerth/Faragher defense was not available to the Sheriff and that a proper instruction would so indicate. At the Sheriff's urging, the district court rejected Ms. Huff's repeated contention that the absence of a tangible employment action was a necessary precursor to the jury's consideration of the Sheriff's affirmative defense. See R.388-13 at 2324. The court reasoned that hostile work environment claims essentially state that, because of the harassment, employment conditions became so unbearable that they were equivalent to a tangible action. The question of whether the work environment resulted in a tangible action, it determined, unnecessarily muddled the burdens in a hostile work environment claim with claims that allege an independently actionable adverse employment action. Instead, the court concluded that the availability of an instruction on Ellerth/Faragher turned only on the supervisory level of the harasser, and whether, because that person was so high within the employer's structure, the victim effectively would have had no recourse. The court concluded—indeed, made a determination of law—that Mr. Douvris and Mr. Guerra were not such high-level employees, and, therefore, the affirmative defense was available to the Sheriff.[7]Id. at 2324. Ms. Huff's counsel *898 again objected for the record and, to preserve her objection, filed a subsequent motion for judgment as a matter of law that the affirmative defense was unavailable on the facts.[8] Ultimately, on the Title VII claim, the court instructed the jury on the elements of the claim, largely drawn from the Sheriff's proposed instruction. After stating the elements, the instruction directed the jury: If you find [that] the plaintiff proved each of the six elements of her claim, then you should consider whether the defendant Cook County Sheriff's Department has proved the following affirmative defense: Did the defendant Cook County Sheriff's Department prove by a preponderance of the evidence that it had policies that prohibit discrimination on the basis of race and gender, and procedures that allow employees to report discriminatory treatment, but the plaintiff unreasonably failed to take advantage of those preventative or corrective opportunities? If you find that the evidence established the affirmative defense put forth by defendant Cook County Sheriff's Department, you should cease deliberation on the issue of hostile work environment and sign a verdict form in favor of defendant Cook County Sheriff's Department on that claim. If you find that defendant has not proved its affirmative defense, you should sign a verdict form in favor of plaintiff Huff on her hostile work environment claim. R.349 at 31-32; see also R.390-1 at 4414-15.[9] There was no mention of tangible employment actions in the Title VII instruction. The jury returned its verdict for all defendants on all claims. 3. Post-trial Proceedings Ms. Huff filed a motion for a new trial on the Title VII harassment claim. She argued that she had been prejudiced by erroneous jury instructions. In that motion, Ms. Huff restated and expanded the objections that she had made in her March 5th motion for judgment as a matter of law. She included her objection that the instruction given failed to recognize that, when hostile work environment harassment leads to a tangible employment action, the Ellerth/Faragher defense becomes unavailable. See R.353, 359 at 9-11. On January 26, 2005, the district court denied that motion. The court concluded that Ms. Huff had failed to prove that Douvris and Guerra were supervisors of Huff within the Sheriff's Department. All the evidence indicated that they were supervisors of Huff within MEG, a separate governmental entity, although they were employees of the Sheriff's Department and detailed by the Sheriff's Department to MEG. Because there was no evidence that the alleged harassers were supervisory *899 employees within the Sheriff's Department, the Sheriff was entitled to have the jury instructed on its affirmative Ellerth defense. R.381 at 2. Ms. Huff timely appealed the judgment entered against her on this claim and the denial of her motion for a new trial to this court. II DISCUSSION On appeal, Ms. Huff contends that the jury instruction is fraught with legal error and that the errors were sufficiently prejudicial to warrant reversal of the judgment against her on the Title VII harassment claim. She raises each of the claims of error presented in her new trial motion, namely: (1) that the jury erroneously was instructed according to the negligence-based liability standard applicable to co-worker harassment claims; (2) that the jury could have applied the affirmative defense without first finding that no tangible employment action occurred; and (3) that the phrasing of the affirmative defense instruction itself erroneously lowered the Sheriff's burden below the standards established by the Supreme Court. Ms. Huff now adds that the instruction also stated incorrectly that she must prove that the harassment she suffered was both severe and pervasive. The multiple rounds of proposed instructions and the shifting positions of the parties create difficult questions of waiver and forfeiture on the majority of Ms. Huff's challenges to the Title VII instruction. As the record makes clear and the Sheriff acknowledges, however, Ms. Huff adequately preserved her objection to the inclusion of the affirmative defense without an accompanying inquiry into whether the harassment resulted in a tangible employment action. Because we agree with Ms. Huff that this portion of the instruction did not apprise the jury of the applicable law and that the error was prejudicial, we need not untangle the confusion that attends the district court's rulings on her other contentions. A. The Affirmative Defense Instruction We review jury instructions de novo to determine whether, taken as a whole, they correctly and completely informed the jury of the applicable law. Schmitz v. Canadian Pac. Ry. Co., 454 F.3d 678, 681-82 (7th Cir.2006); see also Boyd v. Illinois State Police, 384 F.3d 888, 894 (7th Cir.2004). We defer to the district court's phrasing of an instruction that accurately states the law, Schmitz, 454 F.3d at 682; however, we shall reverse when the instructions "misstate the law or fail to convey the relevant legal principles in full" and when those shortcomings confuse or mislead the jury and prejudice the objecting litigant. Byrd v. Illinois Dep't of Pub. Health, 423 F.3d 696, 705 (7th Cir.2005). We review a district court's decision on a motion for a new trial for an abuse of discretion. Schobert v. Illinois Dep't of Transp., 304 F.3d 725, 729 (7th Cir.2002). However, if the district court committed legal error in instructing the jury, the decision to deny the new trial was itself an abuse of discretion. See Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.2007), cert. denied, ___ U.S. ___, 127 S.Ct. 2988, ___ L.Ed.2d ___ (2007), (noting that a court categorically abuses its discretion when a decision rests on legal error). In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), decided the same day, the Supreme Court considered the contours of employer liability under Title VII for workplace harassment by supervisors. In Ellerth, the Court began with the statutory text, which makes it unlawful for an employer to discriminate *900 based on sex, race or other protected characteristics and defines an employer to include its "agent[s]." 42 U.S.C. §§ 2000e-2(a)(1), 2000e(b). Noting the general principle that agency liability will attach when an agent commits a tort within the scope of his employment, the Court concluded that harassment is not generally such an act. Burlington Indus., 524 U.S. at 756-57, 118 S.Ct. 2257. The Court further noted that an employer can also be liable, consistent with principles of agency law, for acts outside the scope of employment when committed by a servant who was "aided in accomplishing the tort by the existence of the agency relation." Id. at 758, 118 S.Ct. 2257 (quoting Restatement of Agency § 219(2)(d)). To be aided in the agency relation, the Court continued, meant more than simply that the existence of an employment relationship provided the proximity and regular contact that facilitated harassment. That rule would be too broad, the Court concluded, because it would obliterate the distinction between employer liability for coworker harassment and for supervisor harassment recognized in the regulations and the case law. Id. at 760, 118 S.Ct. 2257. Although the Court declined to define with precision when this standard—that a supervisor was aided in accomplishing the tort by the agency relation—would be satisfied, the Court held that, at minimum, it was satisfied in that class of cases in which a supervisor "takes a tangible employment action against the subordinate." Id. Such a rule was appropriate because "[w]hen a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation." Id. at 761-62, 118 S.Ct. 2257. A supervisor whose harassment of a subordinate culminates in a tangible employment action has acted as an agent of the employer and thus has created liability for the employer. Id. at 762, 118 S.Ct. 2257. The Supreme Court then announced the following rule: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id. at 765, 118 S.Ct. 2257 (emphasis added); Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275 (emphasis added). In Faragher, the Court noted that this approach appropriately held employers liable for certain specific misuses of supervisory authority; at the same time, however, it encourages all parties involved to take appropriate steps to avoid harm, consistent with the purposes of the statute. 524 U.S. at 805-06, 118 S.Ct. 2275. In both Ellerth and Faragher, however, the Supreme Court explicitly conditioned the availability of the affirmative defense on the absence of a tangible employment action. In recent years, the Supreme Court has confirmed that the presence or absence of a tangible employment action is the critical issue in determining whether, in a supervisory *901 harassment claim, an employer may raise the Ellerth/ Faragher affirmative defense. See Pennsylvania State Police v. Suders, 542 U.S. 129, 143, 148-50, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (holding that constructive discharge was not a "tangible employment action" within the meaning of Ellerth and Faragher unless it was precipitated by some official act of the enterprise for which it was a certainty that the harassing supervisor was "aided by the agency relation"). Our own cases consistently have applied this standard. See, e.g., Jackson v. County of Racine, 474 F.3d 493, 501 (7th Cir.2007) (noting that liability is "strict" when the supervisor harassment is accompanied by an official action such "as discharge, demotion, or undesirable reassignment"); Robinson v. Sappington, 351 F.3d 317, 337 (7th Cir.2003) (holding that, when a constructive discharge was precipitated by the official action of a transfer to what the employee claimed would be an unbearable situation, no affirmative defense was available). In Ms. Huff's case, at the instruction conference, the district court ruled that the absence of a tangible employment action is not a necessary precondition to the availability of an affirmative defense. That view cannot be reconciled, as a matter of law, with the standard set forth in Ellerth and Faragher and elaborated upon in Suders. On the contrary, if Ms. Huff can demonstrate that a supervisor's harassment culminated in a tangible employment action, the Sheriff may not raise an affirmative defense; his liability will be strict.[10] We note that the record contains evidence that would support submitting potential tangible employment actions to the jury, including denial of case leads critical to career advancement and denial of a transfer.[11] We also note that, at trial, the Sheriff repeatedly contended that Mr. Guerra and Mr. Douvris did not supervise Ms. Huff for the Sheriff's Department, and that, therefore, Ms. Huff could only establish the Sheriff's liability by satisfying the more rigorous burdens applicable in claims of co-worker harassment. This argument is not one the Sheriff has pressed to this court on appeal. In any event, we note that the Sheriff's claim in the district court that the individual defendants were not supervisors for the Sheriff as a matter of law lacks support in the record before us.[12]*902 If the individual defendants indeed were authorized to take tangible employment actions against Ms. Huff, affecting her employment relationship with the Sheriff, this authority in and of itself is sufficient evidence from which a jury could conclude that Mr. Guerra and Mr. Douvris were supervising Ms. Huff on behalf of the Sheriff's Department. As the Supreme Court has noted, tangible employment actions fall within the special province of the supervisor. Burlington Indus., 524 U.S. at 762, 118 S.Ct. 2257; see also Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1034 (7th Cir.1998) ("[T]he essence of supervisory status is the authority to affect the terms and conditions of the victim's employment."). Ms. Huff, therefore, was entitled to an instruction that properly placed the elements of a supervisory harassment claim before the jury. B. Prejudice With regard to the affirmative defense in the Title VII instruction, the Sheriff submits that any error in the jury instruction was harmless. The harmlessness is evident, the Sheriff continues, because the verdicts rendered in favor of the individual defendants on the § 1983 hostile work environment claims conclusively demonstrate that the jury decided that no harassment in fact had occurred. The jury similarly must have concluded that a failure of proof of harassment was dispositive on Ms. Huff's Title VII claim as well, and, therefore could not have reached the issue of the affirmative defense, whether or not erroneously presented. We now examine the Sheriff's claim that the § 1983 verdict tells us all we need to know about the jury's consideration of the Title VII claim. We have stated, as the Sheriff concedes, that because the Constitution prohibits intentional discrimination by state actors, § 1983 relief is available to a plaintiff claiming a hostile work environment only when she can demonstrate that the defendant acted with discriminatory intent. Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir.1990); see also Valentine v. City of Chicago, 452 F.3d 670, 683 (7th Cir. 2006) (noting the requirement of intentional discrimination). The same is not true of a Title VII plaintiff claiming hostile work environment harassment. See King v. Bd. of Regents of Univ. of Wisconsin Sys., 898 F.2d 533, 537-38 (7th Cir.1990) ("One difference between sexual harassment under equal protection and under Title VII, however, is that the defendant must intend to harass under equal protection . . . but not under Title VII, where the inquiry is solely from the plaintiff's perspective." (internal citation omitted)); Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1187 (7th Cir.1986) ("[T]he ultimate inquiry [in a § 1983 hostile work environment equal protection claim] is whether the sexual harassment constitutes intentional discrimination. This focus differs from the inquiry under Title VII as to whether the sexual harassment altered the conditions of the victim's employment."); see generally Valentine, 452 F.3d 670, 677-85 (examining Title VII and § 1983 claims separately and considering discriminatory intent only in the context of the § 1983 claim). Of course, "[s]exual harassment under Title VII presupposes intentional conduct." Burlington Indus., 524 U.S. at 756, 118 S.Ct. 2257. But the supposition that harassing conduct is intentional in the tort liability sense, as opposed to negligent, does not mean that a hostile work environment *903 is actionable under Title VII only when the perpetrator acts with a purpose to discriminate. Indeed, this court has acknowledged that sexual harassment may be actionable under Title VII by a plaintiff who was not the direct target of workplace conduct if the plaintiff is within the protected class the conduct targets generally. See, e.g., Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir.2007) (noting that there need not be "an intention of causing distress or offense" and that women in a workplace may state a claim for harassment even though "[t]he darts were aimed elsewhere, and hit the women by accident"). This distinction could be of paramount importance in Ms. Huff's own case, where certain of her allegations of harassment could be read as lacking discriminatory intent and evincing a kind of extreme workplace "insensitivity." Id. For example, Ms. Huff claims that explicit racially and sexually charged language was directed to her, or was used in her presence but directed at others. The jury might have interpreted this conduct as sufficiently severe and pervasive[13] to have created an actionable hostile work environment. However, the jury may have concluded that the basis for the behavior was stupidity and uncouthness on the part of the individual defendants—sufficient for Title VII liability, but not evincing the discriminatory intent required for liability under § 1983. The Sheriff accepts that this difference in the elements of the two types of claims would prevent us, in the ordinary case, from viewing a general verdict for a defendant on a § 1983 sexual harassment claim as dispositive on a Title VII claim. Nonetheless, the Sheriff claims that, in this case, the § 1983 hostile work environment jury instruction actually given contained a fortuitous error: It omitted the element of intent. Whatever value the Sheriff's contention might have in a case where the intent element truly was omitted from the instruction, we conclude that it is unsupported by the record. In examining the impact of a jury instruction, it is firmly established that we must evaluate the instructions given to the jury in their entirety. Schmitz, 454 F.3d at 681-82. The district court began the instructions by explaining that Ms. Huff had alleged both disparate treatment and hostile work environment claims under § 1983. The court then read aloud the first substantive legal instruction, which stated: To establish a claim under Section 1983 against defendants Guerra and Douvris, plaintiffs must establish by a preponderance of the evidence each of the following six elements: First. That the conduct complained of was committed by a person acting under color of state law. Second. That plaintiffs are members of a protected class. Third. That defendants treated plaintiffs differently from similarly-situated agents who were not members of a protected class. Fourth. That plaintiff sustained an "adverse employment action" as a result of being treated differently. Fifth. That in treating plaintiffs differently, defendants acted with discriminatory intent. Sixth. That defendants' acts were the proximate cause of the adverse employment *904 action or subjected plaintiffs to a hostile work environment and consequent damages sustained by the plaintiffs. I'll now examine each of these elements in more detail for you. R.390-1 at 4401-02 (emphasis added). The district court then proceeded to discuss the relevant legal definitions of each of the above terms. See id. at 4402-03 ("When I say members of a protected class, I mean. . . . When I say similarly-situated agents, I mean. . . ."). Within this discussion, the court defined discriminatory intent: "When I say acted with discriminatory intent, I mean that plaintiffs must show that defendant Guerra and/or defendant Douvris intentionally and purposefully engaged in the misconduct alleged by plaintiffs because of plaintiffs' membership in a protected class." Id. at 4403. The court then defined the concept of proximate cause, after which it proceeded to state the following instruction: To prove her hostile environment claim under Section 1983, plaintiff Huff must prove each of the following elements: 1. That she was continuously and repeatedly subjected to racially and/or sexually offensive acts or statements or for different treatment based on race and/or sex. For purposes of a Section 1983 hostile work environment claim, conduct that only amounts to ordinary socializing in the workplace, such as occasional horseplay, sexual flirtation, sporadic or occasional use of abusive language, does not constitute a hostile work environment. 2. That such treatment or acts or statements were unwelcome and not invited or solicited by the employee['s] own acts or statements. 3. That such treatment or such acts or statements resulted in a work environment that was permeated with discriminatory intimidation, ridicule, or insult of sufficient severity or pervasiveness that it materially altered the conditions of plaintiff['s] employment. 4. That a reasonable person would have found the workplace to be hostile. For purposes of a Section 1983 hostile work environment claim, in determining whether a hostile work environment existed, you must consider the evidence from the perspective of a reasonable person. This is an objective standard and requires you to look at the evidence from the perspective of a reasonable person's reaction to a similar environment under similar circumstances. 5. That plaintiff personally experienced the workplace as hostile. And 6. That some act contributing to the hostile environment occurred after June 26, 1995. R.390-1 at 4403-05. The Sheriff invites the attention of this court only to this final portion of the instruction. He is correct that this particular portion of the instruction says nothing about intent. Reading the § 1983 instructions as a whole, however, we think a reasonable jury would have understood that this section merely defined the element of hostile work environment as one piece of plaintiff's burden to establish liability under § 1983. The court's full § 1983 instruction clearly did require the jury to find that the defendants acted with discriminatory intent. Therefore, absent a special verdict[14]*905 on either the Title VII or the § 1983 claims, we do not know that the jury's verdict on each claim rested on a single conclusion that Ms. Huff failed to demonstrate a hostile work environment. The jury may have concluded, operating within the instructions given, that the working environment to which Ms. Huff was subjected was actionably hostile, but that the individual defendants were not liable under § 1983 because they had not acted with discriminatory intent. Accordingly, we cannot read the jury's verdict on the § 1983 claim as embodying a conclusion that Ms. Huff was not harassed. Therefore, in determining the Sheriff's Title VII liability, the jury may have reached and relied on the Sheriff's affirmative defense. That defense, as we have noted, was not available to the Sheriff if Ms. Huff proved her claims that her harassment culminated in a tangible employment action. The error in submitting the issue to the jury without the accompanying predicate inquiry of whether there was a tangible employment action, therefore, did prejudice Ms. Huff's claims. Conclusion Because we have concluded that the district court committed reversible error in instructing the jury on the affirmative defense portion of Ms. Huff's Title VII claim, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. Ms. Huff may recover her costs in this court. REVERSED and REMANDED NOTES [1] Some of the testimony at trial suggested that Mr. Guerra and Mr. Douvris used the terms "nigger" and "bitch" to refer to Ms. Huff in the workplace, along with English and Spanish variants and combinations. Mr. Douvris apparently said that "more black men should beat black women," R.388-14 at 2647; see also R.388-9 at 1579-80, and "black women need to be kept in their place," R.388-10 at 1939; see also R.388-7 at 1243. Mr. Douvris also apparently spoke in stereotypical racial slang on some occasions when recounting things said to him by Ms. Huff. He did not exaggerate a stereotypical linguistic feature or accent of any other race or ethnicity when referring to an officer of that background. See R.388-7 at 1235-39. [2] At trial, another MEG officer testified that Mr. Douvris separated black agents because "being black, he thought that they would be lazy together and they wouldn't do any work." R.388-2 at 202; see also R.388-5 at 877. [3] Although the contract is reproduced only in part in the record on appeal, it appears to have been an intergovernmental agreement between Cook County and the Village of Broadview "as Implementing Agency on behalf of the Metropolitan Group of Cook County." Plaintiff's Ex.8 at 5. The portions of the short agreement included in the record define the responsibilities of the parties in administering the joint program. [4] Following an investigation and the final report of the Inspector General of the Sheriff's Department, the Sheriff made his own decisions regarding these intermediate levels of disciplinary action. Because both officers are merit-protected employees, the Sheriff also forwarded a formal complaint against the officers to the Merit Protection Board, which alone had the right to take more severe action up to and including termination. The Inspector General's report and the Sheriff's decision to take disciplinary action and to seek further disciplinary action demonstrate that the Sheriff's Department retained certain disciplinary authority over officers assigned to MEG such that actions taken by officers in the course of their duties at MEG subjected them to possible disciplinary action by the Sheriff. Indeed, the Sheriff supported the introduction of the reports into evidence as part of his affirmative defense, and the fact of disciplinary action by the Sheriff was among the limited purposes for which the district court deemed the documents admissible. See R.388-1 at 61-68. [5] Certain claims were dismissed on the defendants' motion under Rule 12(b)(6), including the § 1983 claims against the Sheriff and Title VII claims against Mr. Guerra and Mr. Douvris. [6] Mr. Guerra apparently used racial slurs in Spanish, which Ms. Huff did not understand. See R.143 at 14; see also R.388-16 at 3271-73. [7] On the objection of Mr. Douvris' counsel, his name, originally part of plaintiff's proposed hostile work environment Title VII jury instruction, was stricken by the court. The court ruled that Ms. Huff could rely on any evidence relating to the severity and pervasiveness of any harassment while at MEG. Counsel for the Sheriff objected that this opened new liability for the Sheriff that was closed by the summary judgment ruling in favor of Mr. Guerra on the hostile work environment claim. This argument is not pressed on appeal, and, therefore, we shall consider claims in the context of the environment of MEG as a whole, not simply the harassment for which Mr. Douvris is alleged to be responsible. [8] That motion also raised a series of objections that Ms. Huff repeats in this appeal, but that were not raised previously in the jury instruction proceedings before the district court. [9] We set forth the affirmative defense instruction in its entirety to assist the reader in understanding the context in which the issue before us arose in the district court. Our setting out the instruction does not indicate our approval of its content as a correct statement of the law. See infra at 899 & n. 13. [10] At oral argument, counsel for the Sheriff told this court that the Sheriff did not concede error in the instruction. However, we do not discern from his brief to this court any concrete suggestion that the Ellerth/Faragher defense correctly was presented to the jury or that, for any other reason, Ms. Huff was not entitled to a jury instruction that couched her claims in the context of the standards for supervisor harassment culminating in a tangible employment action. [11] See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir.2002) (collecting cases in which the standard for a tangible employment action is satisfied by "a nominally lateral transfer with no change in financial terms," which simultaneously "significantly reduces the employee's career prospects by preventing him from using the skills in which he is trained and experienced, so that . . . his career is likely to be stunted," or by other official action that "change[s the employee's job] in a way that injures his career," even if unaccompanied by a transfer); Molnar v. Booth, 229 F.3d 593, 600 (7th Cir.2000) (holding that removing resources necessary for the plaintiff-employee to do her job constituted a tangible employment action). Under this precedent, either of these actions could satisfy the tangible employment action. Both are decisions within the scope of the individual defendants' supervisory authority. [12] In ruling on the post-trial motion, the district court concluded that none of the evidence demonstrated that the individual defendants were supervisors for the Sheriff. The district court went on to conclude that because the defendants were not supervisors, the affirmative defense was available. This is incorrect. The affirmative defense comes into play, as Ellerth makes clear, when the employer would otherwise be held vicariously liable for supervisor harassment. See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758-65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). [13] The district court instructed the jury that conduct must be severe and pervasive to give rise to an actionable hostile work environment. Although we do not reach this error in our disposition of this case to avoid issues of waiver, we note for the sake of clarity that the use of the conjunctive misstates the legal standard for harassment. See Cerros v. Steel Techs., Inc., 398 F.3d 944, 950 (7th Cir.2005) ("We reiterate now that conduct that is either pervasive or severe may give rise to a hostile work environment." (emphasis in original)). [14] In closing, we note that the Sheriff would have been in a better position to argue an absence of prejudice had the parties insisted upon special interrogatories. Special interrogatories are particularly advisable in cases such as this, where multiple complicated and interrelated claims are submitted to a jury after a five week trial.

355 F.Supp.2d 668 (2005) Leonard DAVIS, Plaintiff, v. The COUNTY OF NASSAU, Nassau County Correctional Center, Nassau County Department of Corrections, Nassau County Sheriff Edward Reilly, and James Neal, M.D., Defendants. No. 03-CV-148 (DRH)(WDW). United States District Court, E.D. New York. February 7, 2005. *672 Andrew J. Schatkin, Esq., Jericho, NY, for Plaintiff. Troy & Troy, P.C by Alexander Sansone, Esq., Lake Ronkonkoma, NY, for Defendant James Neal. Nassau County Attorney's Office by Bethany Bresnaider O'Neill, Esq., Mineola, NY, for Nassau County Defendants. MEMORANDUM OF DECISION & ORDER HURLEY, District Judge. INTRODUCTION Plaintiff Leonard Davis has brought the present Section 1983 claim against the above-captioned defendants, alleging that they failed to provide him with timely and sufficient medical treatments during his seven-day confinement in the Nassau County Correctional Center ("NCCC"). The Defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. For the reasons discussed below, the complaint will be dismissed without prejudice to amend. BACKGROUND According to the facts stated in the complaint, Davis was sentenced on November 4, 2002 to seven days' confinement at the NCCC for contempt of court. Upon his arrival at the NCCC, Davis informed the authorities that he suffers from asthma, migraine headaches, and sleep apnea. Davis also indicated at that time that he was feeling shortness of breath, wheezing, and sweating. He asked for the medicines "Singular" and "Advair" as well as a nebulizer to control his asthma, "Imitrex" for his migraines, and a CPAP machine for his sleep apnea. Davis was instead given only "Motrin," an over-the-counter medicine, *673 for his migraines. At 1:00 PM on November 6, Davis told several corrections officers that he needed to see a doctor, but was told to wait until sick call at 8:00 PM that evening. According to Davis, it was only on November 7 that he was given his "essential medication." As a result of this delay and his inadequate treatment while at the NCCC overall, Davis alleges, he has since required treatment for "a serious exacerbation of his asthma" and "continuous migraine headaches," and has additionally "suffered from serious depression, anxiety, and sleeplessness." Davis filed suit pursuant to 42 U.S.C. § 1983 against Nassau County, the Nassau County Department of Corrections, the NCCC, and Sheriff Edward Reilly ("the person having executive authority" over the NCCC) (collectively, the "Nassau County Defendants"), as well as Dr. James Neal (who "is and was at all times relevant responsible for the care and well being of prisoners" at the NCCC). According to Davis, the Defendants were "on full notice" of his medical conditions and complaints, as well as those of "similarly situated prisoners," yet "failed to properly treat a condition which is life threatening." Davis accuses the Defendants, "individually and collectively," of having acted "with arbitrary, capricious, and deliberate disregard and indifference," in violation of his right to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution. Davis also complains that although the Defendants "were aware of a previous pattern of deliberate and callous indifference to the medical needs of county prisoners resulting in misdiagnosis, and resulting physical and emotional harm," they "failed to train their employees in the proper mode of diagnosis and treatment" and "in the necessity for quick and exact action, in attending to the medical needs of county prisoners." Davis seeks compensatory damages in the sum of $12,000,000, and punitive damages in the sum of $5,000,000, as well as costs and fees. DISCUSSION I. Dismissal Motions: Legal Standard In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). The court must accept the factual allegations contained in the complaint as true, and view the pleadings in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994). Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim entitling him to relief. Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 79 (2d Cir.2003). This rule applies with particular force where the plaintiff alleges civil rights violations. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998). However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002) (internal quotation omitted). II. Under Either the Eighth or Fourteenth Amendment, the Same Legal Standards Govern Davis's Claims. The complaint alleges "cruel and unusual punishment" under the "deliberate indifference" standard of the Eighth and Fourteenth Amendments, and Davis insists that both provisions are applicable. The Nassau *674 County Defendants argue that Davis's claims should be analyzed under the Eighth Amendment only, because "[i]t is well established that if a constitutional claim is covered by a specific constitutional provision, ... [it] must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." Both sides are partially correct. It is true that where the Eighth Amendment applies, it generally renders similar Fourteenth Amendment claims superfluous. See, e.g., Howard v. Goord, No. 98 Civ. 7471, 2001 WL 739244, at *2 n. 1 (E.D.N.Y. June 6, 2001) (citing County of Sacramento v. Lewis, 523 U.S. 833, 849-51, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). But because the Eighth Amendment prohibits "cruel and unusual punishment," it has been held applicable only to those individuals who have been criminally convicted and sentenced—and are thus being "punished" for something. By contrast, cruelty toward a pre-trial detainee awaiting criminal proceedings (and not yet punished for any underlying criminal charge) is properly classified as a violation of the Fourteenth Amendment right to due process. See Benjamin v. Fraser, 343 F.3d 35, 49-50 (2d Cir.2003). It is unclear which amendment covers Davis, as his claim arises from events that occurred while he was being civilly punished for contempt, and was thus neither a criminal convict nor a pre-trial detainee. See Gabbay v. Gales, No. 97 Civ. 7605, 2000 WL 28156 (S.D.N.Y. Jan. 14, 2000) (Buchwald, J.) (noting that civil rights plaintiff in custody due to civil contempt "may fall somewhere between," and that "research has not disclosed any authority on point."). The issue of which constitutional amendment governs Davis's case is academic, however. The Fourteenth Amendment has been held to afford pre-trial detainees at least as much protection from cruel detention conditions as the Eighth Amendment affords postconviction prisoners from cruel punishment.[1]City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). Both Amendments proscribe "deliberate indifference to serious medical needs" of prisoners or detainees, see id. at. 243-44, 103 S.Ct. 2979, and Section 1983 allows lawsuits for violations of either Amendment. See, e.g., Benjamin v. Malcolm, 803 F.2d 46, 48 (2d Cir.1986). Accordingly, it is not necessary to determine the particular Amendment under which Davis's claims are to be analyzed; the substantive underlying standard is the same.[2] *675 III. Davis's "Deliberate Indifference" Claims Must Be Dismissed. Assuming without deciding that Davis has adequately alleged that his right to non-deliberately indifferent treatment of his serious medical needs was violated by someone, the key question at this juncture is whether Davis's complaint also adequately indicates why the defendants should be liable for the violation. For the reasons that follow, this question is answered in the negative. A. Because Davis has insufficiently pleaded the "personal involvement" of Sheriff Reilly and Doctor Neal in the alleged constitutional violations, his Eighth or Fourteenth Amendment claims against them must fail. 1. It is assumed that Davis's complaint implicates Reilly and Neal in their personal, not official, capacities. Davis has brought suit against both Nassau County governmental entities, and against two individual defendants: Edward Reilly, the Nassau County Sheriff; and Dr. James Neal, the NCCC's medical supervisor. However, his complaint does not specify whether Reilly and Neal are being sued in their personal, or their official capacities. The Supreme Court has explained that "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law," whereas "[o]fficial-capacity suits, in contrast, `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. New York City Dep't of Soc. Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "[T]o establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id. at 166, 105 S.Ct. 3099. But "[m]ore is required in an official-capacity action," because a governmental entity may be held liable under Section 1983 only when found to be a "moving force" behind a constitutional deprivation; that is, the entity's "policy or custom" must have played a part in the violation of federal law. Id. Additionally, punitive damages (which Davis seeks) are unrecoverable under Section 1983 from a municipality (or, therefore, a municipal official sued in his official capacity), but are available in a suit against an official sued in his personal capacity. See id. at 166 n. 13, 105 S.Ct. 3099. Unsurprisingly, the Defendants suggest that Davis's complaint states only official-capacity claims, while Davis's memorandum opposing dismissal suggests that Reilly and Neal have been sued in their personal capacities. In some federal jurisdictions, where a complaint fails to indicate the capacity in which the defendants are named, the court assumes that they are being sued in their official capacity. See, e.g., Moore v. City of Harriman, 272 F.3d 769, 781 (6th Cir.2001). Other jurisdictions reject this assumption, and instead assume that where (as here) the plaintiff "alleges tortious conduct of an individual acting under color of state law" and seeks punitive damages as a remedy, the defendant has been sued in his individual capacity. See Miller v. Smith, 220 F.3d 491, 494 (7th Cir.2000). Although the Second Circuit does not seem to have ruled definitively on this issue, it has followed the latter assumption on at least one occasion.[3]See *676 Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir.1988) ("Notwithstanding the complaint's ambiguous language ..., Shabazz's request for punitive and compensatory damages, coupled with the defendants' summary judgment motion on qualified immunity but not Eleventh Amendment grounds, suggests that the parties believed that this action is a personal capacity suit") (citing Hadi v. Horn, 830 F.2d 779, 783 (7th Cir.1987) (finding that "[t]he totality of circumstances ... suggests that the plaintiffs did seek to sue the defendants in their individual capacities.")). Accordingly, Davis is assumed to have sued Reilly and Neal in their personal capacities. 2. Davis has insufficiently pleaded the "personal involvement" of Sheriff Reilly and Doctor Neal in the alleged constitutional violations. The doctrine of respondeat superior cannot be used to establish liability under Section 1983, Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999), and "a defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Rather, Section 1983 imposes liability "only upon those who actually cause a deprivation of rights," and the "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). A supervisor or high official's "personal involvement" in a constitutional violation can take any of the following five forms: (1) direct participation in the alleged violation, (2) failure to remedy the violation after being informed of it, (3) creation or tolerance of a policy or custom under which the violation occurred, (4) gross negligence in supervising subordinates who committed the violation, or (5) failure to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Davis's complaint states that Reilly and Neal (along with the other Defendants): (1) were "on full notice of the plaintiff's serious complaints, and `on notice of [the] failure to treat and failed to properly act on and treat the plaintiffs condition'"; (2) were on notice of, but had a "policy and custom of encouraging, tolerating, permitting, and ratifying prior acts and actions of such arbitrary and deliberate indifference to the proper medical care and treatment of similarly situated inmates in the Nassau County Correctional System"; and (3) failed to "instruct, train and supervise" their employees in the proper mode of diagnosis and treatment involving prisoners, despite their awareness of "a previous pattern of deliberate and callous indifference to the medical needs of county prisoners." While these allegations on their face seem adequate to state a claim against Reilly and Neal under the "personal involvement" standard, they in fact fall short. As already noted, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002) (internal quotation omitted). Even under the liberal "notice *677 pleading standard" discussed in Part I, supra, a Section 1983-based complaint must still allege particular facts indicating that an individual defendant was personally involved in the deprivation of the plaintiffs constitutional rights; mere "bald assertions and conclusions of law" do not suffice. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996). A complaint that essentially regurgitates the relevant "personal involvement" standard, without offering any facts indicating that, or how, an individual defendant in a supervisory role was personally involved in a constitutional violation, cannot withstand dismissal. See, e.g., Houghton v. Cardone, 295 F.Supp.2d 268, 276 (W.D.N.Y.2003) (dismissing complaint containing conclusory allegations that county sheriff "(1) failed to adequately train or supervise the officers; (2) knew about and tolerated the officers' allegedly unlawful behavior; and (3) `failed to institute a proper system of review and reprimand' of his deputies so as to prevent the types of unlawful acts alleged here"—but offering no factual basis demonstrating sheriff's personal involvement); and Pravda v. City of Albany, N.Y., 956 F.Supp. 174, 182 (N.D.N.Y.1997) (granting defendants' motion for judgment on the pleadings, where pro se plaintiff's "conclusory allegations" that county jail superintendent and county sheriff were responsible for setting county policy and supervising corrections officers involved in abuse were "insufficient to establish the personal involvement of these individual Defendants in Plaintiffs alleged constitutional deprivations"). In the present case, Davis offers no specific facts at all that indicate whether Reilly and Neal directly participated in treating or refusing to treat Davis; were informed of Davis's purportedly inadequate treatment but failed to remedy it; created or tolerated a policy or custom of inadequately treating sick or diseased prisoners; were grossly negligent in their supervision of the medical or correctional personnel who were directly involved in the questionable treatment of Davis; or had some actual indication that Davis was being mistreated but failed to act. In sum, Davis's complaint fails to state a valid claim against these defendants. B. Because Davis has insufficiently pleaded a "municipal custom or policy" of constitutional violations on the part of the Nassau County Defendants, his Eighth or Fourteenth Amendment claims against them must fail. As suggested in Part II.A.1, supra, a municipal entity may be held liable under Section 1983 only when its "policy or custom" played a part in a constitutional violation, and not under the respondeat superior doctrine. See Leonhard v. U.S., 633 F.2d 599, 622 (2d Cir. 1980) (citing Monell v. Dep't of Soc. Services, 436 U.S. 658, 663 n. 7, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). That does not mean that a plaintiff must show that the municipality had an explicitly stated rule or regulation; a policy or custom may be "inferred from acts or omissions of a municipality's supervisory officials serious enough to amount to gross negligence or deliberate indifference to the constitutional rights of the plaintiff." Villante v. Dep't of Corr., 786 F.2d 516, 519 (2d Cir. 1986). And where a municipality has notice of "a pattern of constitutionally offensive acts" by its employees, but fails to take any remedial steps in response, the municipality may be held liable for similar subsequent acts, if the inaction is determined to have been the result of "deliberate indifference" or "tacit authorization" of the offensive acts—in effect, an "unlawful municipal policy of ratification of unconstitutional conduct." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (emphasis *678 added); Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980). However, mere assertions that a municipality has a custom or policy of violating constitutional rights are insufficient to state a Section 1983 claim "in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993). A single incident involving an employee below the policymaking level will generally not suffice to support an inference of a municipal custom or policy, Vann v. City of New York, 72 F.3d 1040, 1050 (2d Cir.1995) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)), absent factual allegations "tending to support, at least circumstantially, such an inference." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995).[4] In particular, a plaintiff alleging that a municipality was "deliberately indifferent" to the need to train, monitor, or supervise its employees, but not alleging any facts beyond the specific instance giving rise to his complaint, generally fails to adequately to plead a custom or policy on the part of the municipality. See Dwares, 985 F.2d at 101; Sarus v. Rotundo, 831 F.2d 397, 402 (2d Cir.1987). This pleading standard is quite similar to the one imposed upon plaintiffs claiming that individual supervisory officials were "personally involved" in their lower-level employees' constitutional violations (under which Davis has failed to plead the personal involvement of Reilly and Neal in the allegedly unconstitutional behavior of the NCCC employees). See Part II.A.2, supra. The complaint falls equally short in its attempts to pin a municipal custom or policy on the Nassau County Defendants. Davis has simply failed to allege any facts beyond the specific instance that gave rise to his complaint. IV. Davis's Equal Protection Claim Must Be Dismissed. Davis's complaint notes without elaboration that the Defendants' conduct also violated the "Equal Protection Clause of the U.S. Constitution." The Nassau County Defendants' Memorandum in support of dismissal argues that Davis's complaint fails to state any form of equal protection claim. Davis argues in opposition simply that "[t]his is not so. Rabbi Davis, an observant Jewish person, was selected for this special disparate treatment. If anything, what happened here points to National Origin Discrimination and a clear violation of Equal Protection." As an initial matter, the Defendants' reply memorandum argues, without citing any authority, that Davis's "broad assertion" of religious discrimination for the first time in his briefings is "improper." There appears to be no Second Circuit authority indicating whether the new factual assertions in Davis's memorandum may be considered in deciding the Defendants' motion. Other jurisdictions appear to be divided: compare Haas v. Quest Recovery Servs., Inc., 338 F.Supp.2d 797, 799 (N.D.Ohio 2004) (refusing to consider "additional facts" asserted in memorandum opposing dismissal motion, because "such memoranda do not constitute a pleading under Rule 7(a).") (citing 2 JAMES WM. *679 MOORE, ET AL., MOORE'S FEDERAL PRACTICE § 12.34[2] (3d ed.2002)); with Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1185 (10th Cir.2003) (assuming without deciding that arguments not included in initial or amended complaint and raised for first time in memorandum opposing dismissal motion were properly considered); and Dausch v. Rykse, 52 F.3d 1425, 1428 n. 3 (7th Cir.1994) (holding facts asserted in memorandum opposing dismissal motion but not contained in complaint relevant to extent they can be proved consistent with allegations in complaint). The propriety or impropriety of Davis's factual assertions need not be resolved here, however. Even after assuming that the fact raised in Davis's memorandum may be considered, and considering it, Davis's equal protection claim is nevertheless as insufficiently pleaded as his other claims. As twice stated previously, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002) (internal quotation omitted). In the equal protection context, a complaint that merely alleges that the plaintiff was "singled out," without additional allegations of fact must be dismissed. See, e.g., Al-Charles, Inc. v. Heintz, 620 F.Supp. 327, 334 (D.Conn. 1985). Davis fails to offer any specific facts suggesting that any sort of anti-Semitic motive is behind the mistreatment he allegedly suffered while detained. In fact, Davis's "selected for special disparate treatment" equal protection claim is fundamentally at tension with his complaint's suggestion that the mistreatment of other "similarly situated inmates" demonstrates the Defendants' deliberate indifference, or some sort of ongoing practice or municipal policy. (Unless, of course, Davis is trying to say that all of the other similarly situated inmates that he refers to are "observant Jewish persons.") This claim accordingly need not be considered further. V. Davis May Move To Amend His Complaint. Because Davis has failed to adequately state a claim under the Eighth or Fourteenth Amendments, the Defendants' dismissal motions must be granted.[5] It is the usual practice upon granting a motion to dismiss to allow the plaintiff to replead. Cortec Indus, v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991). Accordingly, Davis may move for leave to amend his complaint, so long as the proposed amended complaint would not be futile. See Van Buskirk v. The New York Times Co., 325 F.3d 87, 92 (2d Cir.2003). CONCLUSION For all of the above reasons, the Defendants' motion is GRANTED, and Davis's complaint is hereby DISMISSED in its entirety, without prejudice to amend. If Davis desires to move to amend his complaint, he must submit a letter to the Court stating so (with copies served upon all other parties' counsel), on or before March 11, 2005. If Davis fails to submit and serve such a letter by that date, this case will be closed. SO ORDERED. NOTES [1] This opinion accordingly uses the terms "prisoner" and "detainee" interchangeably, and the terms "jail," "correctional facility," and "prison" interchangeably. See, e.g., McGrath v. Scott, 250 F.Supp.2d 1218, 1225 (D.Ariz.2003). [2] In order to establish a claim for inadequate medical care under either amendment, a prisoner must show that a defendant prison official acted with "deliberate indifference" to his "serious medical needs." See Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.2003). This standard incorporates both an objective element (the severity of the medical need), and a subjective element (the official's state of mind). Id. at 183-84. An objectively "serious medical need" means a "serious illness or injury" that "result[s] in the infliction of unnecessary pain and suffering." Id. at 184. And under the subjective requirement, the defendant must have "know[n] of and disregarded] an excessive risk to the inmate's health or safety." Id. Were Davis suing the actual NCCC personnel alleged to have denied him adequate medical care, the allegations in his complaint might sufficiently state a claim under this standard. However, because Davis's complaint only implicates the individuals and municipal entities that supervised the NCCC—and is insufficiently pleaded on other grounds—this opinion does not need to apply the deliberate indifference standard. [3] The district courts in this Circuit seem to have uniformly followed the latter assumption as well. See Davis v. City of New York, 2000 WL 1877045, at *8 n. 18 (S.D.N.Y.2000); Marino v. Mobilia, No. 94 Civ. 5003, 1996 WL 748353, at *2 n. 2 (E.D.N.Y. Dec. 11, 1996); Ortiz v. Court Officers of Westchester County, No. 95 Civ. 1194, 1996 WL 531877, at *4 (S.D.N.Y. Sept. 19, 1996) (citing Hafer v. Melo, 502 U.S. 21, 25-28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)); Dawkins v. Hudacs, No. 94 Civ.1655, 1996 WL 12032 at *2 (N.D.N.Y. Jan. 5, 1996) (citing Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir.1991)); and Green v. Brown, No. 94 Civ. 186, 1995 WL 451020, at *1 (E.D.N.Y. July 19, 1995). [4] In some exceptional cases, the single event giving rise to litigation may, by itself, suffice to show a "policy." Turpin, 619 F.2d at 202. But a municipality cannot be liable for such an event unless it is "so severe as to reach the level of `gross negligence.'" Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.1979) (single "brutal and premeditated" beating of inmate by group of county jail guards of varying ranks, one of whom admitted to using "show of force" to control disobedient inmates, warrants inferring policy of inadequate training or supervision). Davis's allegations do not suggest that this is such a case. [5] There is accordingly no need to address the Defendants' arguments as to the frivolousness of Davis's claim, or the appropriateness of any damages.

340 F.Supp. 1356 (1972) Alton J. LEMON et al. v. Grace SLOAN, State Treasurer of the Commonwealth of Pennsylvania. Jose Diaz and Enilda Diaz, his wife, et al., Interveners. Civ. A. No. 71-2223. United States District Court, E. D. Pennsylvania. April 6, 1972. *1357 *1358 Theodore R. Mann, Philadelphia, Pa., Leo Pfeffer, New York City, for plaintiffs. J. Shane Creamer, Atty. Gen., J. Justin Blewitt, Jr., Deputy Atty. Gen., Harrisburg, Pa., for defendant Sloan. William B. Ball, Harrisburg, Pa., for defendant interveners Diaz and Watson. Joseph G. Skelly, Harrisburg, Pa., for defendant interveners Zimmerspitz and Harvey. James E. Gallagher, Jr., Philadelphia, Pa., for defendant intervener, Powell. C. Clark Hodgson, Jr., Philadelphia, Pa., for defendant intervener Kretzmann. Henry T. Reath, Robert L. Pratter, Duane, Morris & Heckscher, Philadelphia, Pa., for defendant intervener Crouter and for Pennsylvania Ass'n. of Independent Schools, amicus curiae in support of defendants. John D. Killian, Harrisburg, Pa., for Pennsylvania Council of Churches, amicus curiae in support of plaintiffs. Thomas B. Harvey, Jr., Philadelphia, Pa., for American Civil Liberties Foundation of Pa., amicus curiae in support of plaintiffs. Joseph B. Meranze, Harvey B. Levin, Philadelphia, Pa., for Pennsylvania Jewish Community Relations Conference, amicus curiae in support of plaintiffs. John M. Elliott, Edward F. Mannino, Dilworth, Paxson, Kalish, Levy & Coleman, Philadelphia, Pa., for Benjamin Banneker Urban Center, amicus curiae in support of defendants. James L. J. Pie, Philadelphia, Pa., for Pennsylvania Federation Citizens for Educational Freedom, amicus curiae in support of defendants. Before HASTIE, Senior Circuit Judge, JOSEPH S. LORD, III, Chief District Judge, and HANNUM, District Judge. OPINION JOSEPH S. LORD, III, Chief District Judge. Plaintiffs brought this suit to declare the Pennsylvania Parent Reimbursement Act for Nonpublic Education[1] (the "Act") unconstitutional and to enjoin its operation. The Act is challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. This court has jurisdiction of the controversy pursuant to 28 U.S.C. §§ 1331, 1343(3), 2281 and 2284. Presently before the court are motions of defendant and intervening defendants to dismiss the complaint for lack of standing and failure to state a claim upon which relief can be granted. The plaintiffs are citizens, residents and taxpayers of the Commonwealth of Pennsylvania who have paid the Pennsylvania cigarette tax which finances the Act. Plaintiff Lemon is also the parent of a Negro child attending a public school in Pennsylvania. Defendant Sloan is State Treasurer of the Commonwealth of Pennsylvania and is sued in that capacity. Intervening defendants are citizens, residents and taxpayers of the Commonwealth of Pennsylvania. Interveners are parents of one or more students who are enrolled in nonpublic schools in Pennsylvania and interveners are eligible for tuition reimbursement payments under the Act. The Act provides for the reimbursement of tuition payments to parents whose children have completed the school year in a nonpublic school located in Pennsylvania which fulfills the compulsory school attendance requirements under Pennsylvania law and the requirements of Title VI of the Civil Rights Act of 1964.[2] In its legislative findings and *1359 declaration of policy, the Pennsylvania General Assembly determined that parents who send their children to nonpublic schools assist the state in reducing the rising cost of public education. The General Assembly found that if inflation and rising costs of education force parents of children now enrolled in non-public schools to transfer a substantial number of their children to public schools, "an enormous added financial, educational and administrative burden would be placed upon the public schools and upon the taxpayers of the state."[3] Therefore, in order to insure that parents can continue to aid the state by sending their children to nonpublic schools and in order to foster educational opportunity for all children, the General Assembly established the tuition reimbursement program. The first ground of defendants' motion to dismiss is that the complaint fails to state a claim under the Establishment Clause of the First Amendment upon which relief can be granted.[4] Plaintiffs allege that the Act authorizes payment for the tuition of students in educational institutions which "* * * (1) are controlled by churches or religious organizations, (2) have as their purpose the teaching, propagation and promotion of a particular religious faith, (3) conduct their operations, curriculums [sic] and programs to fulfill that purpose, (4) impose religious restrictions on admissions, (5) require attendance at instruction in theology and religious doctrine, (6) require attendance at or participation in religious worship, (7) are an integral part of the religious mission of the sponsoring church, (8) have as a substantial or dominant purpose the inculcation of religious values, (9) impose religious restrictions on faculty appointments, or (10) impose religious restrictions on what the faculty may teach." ¶ 10 Complaint.[5] For the purpose of considering the motion to dismiss, we must accept these allegations as true. Therefore, the issue before us is whether the Establishment Clause prohibits the state from reimbursing parents for the tuition costs of sending their children to church-related elementary and secondary schools. The Establishment Clause was intended to protect against "sponsorship, financial support, and active involvement of the sovereign in religious activity." *1360 Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). See also Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). "Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper which can be used to measure the precise degree to which these three factors are present or absent. Instead, our analysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause." Tilton v. Richardson, 403 U.S. 672, 677-678, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790, 798 (1971). In Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755 (1971), the Supreme Court restated the three tests it has developed for determining whether a particular program offends the Establishment Clause. "* * * First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060, 1065 (1968); finally, the statute must not foster `an excessive government entanglement with religion.' Walz, supra, at 674, 90 S.Ct. at 1414, 25 L.Ed.2d at 704." The stated legislative purpose of the Act is to aid parents to continue to send their children to nonpublic schools thereby fostering educational opportunities for both public and nonpublic school children. The legislative findings and declaration of policy indicate that the General Assembly is concerned with maintaining the present standards of public education which it finds would be seriously jeopardized if parents of nonpublic school children could no longer afford tuition costs and were forced to send their children to public schools. "A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate." Lemon, supra, 403 U.S. at 613, 91 S.Ct. at 2111. Therefore, according the stated legislative intent appropriate deference, we conclude that the Act expresses a legitimate secular objective consistent with the Establishment Clause. See Allen, supra, 392 U.S. at 243, 88 S.Ct. at 1926; Lemon, supra, 403 U.S. at 613, 91 S.Ct. at 2111; Tilton, supra, 403 U.S. at 678-679, 91 S.Ct. at 2096. We must next determine whether the Act has the primary effect of advancing religion. The very existence of this "test" reflects the Court's determination that there may be some forms of aid to church-related activities which do not involve that sponsorship, financial support or the active involvement of the state in religious activity which the Establishment Clause was intended to prevent. Although the Court "can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication," Tilton, supra, 403 U.S. at 678, 91 S.Ct. at 2095, the Court has readily acknowledged that the test is not whether a religious institution derives some benefit from the government program. In upholding the constitutionality of federal aid for construction of buildings to be used for secular education at church-related colleges and universities, the Court stated: "* * * Construction grants surely aid these institutions in the sense that the construction of buildings will assist them to perform their various functions. But bus transportation, textbooks and tax exemptions all give aid in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services. Yet all of these forms of governmental assistance have been upheld. [Everson, supra, Allen, supra, Walz, supra] * * * The crucial question is not whether some benefit *1361 accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion." Tilton, supra, 403 U.S. at 679, 91 S.Ct. at 2096. See also Walz, supra, 397 U. S. at 671-672, 90 S.Ct. at 1412-1413. In order to determine what factors distinguish permissible from prohibited aid, it is necessary to review briefly the Supreme Court decisions which have considered forms of aid to church-related schools under the primary effect test. In Everson, the Supreme Court upheld a state law which authorized the use of tax-raised funds to reimburse parents for the costs of transporting students to and from public and private schools. The Court held that the state could extend the benefits of public welfare legislation to all citizens despite the fact that such aid helped children to get to church-related schools and that there was the possibility that some children might not have been sent to church-related schools if their parents were required to pay transportation costs. The Court found that the purpose and effect of the law was to promote general public welfare by helping parents get their children safely to and from accredited schools. The Court concluded that the First Amendment does not require that the state cut off sectarian schools from general services "so separate and so indisputably marked off from the religious function." Everson, supra, 330 U.S. at 18, 67 S.Ct. 504, at 513-514. In Allen, the Supreme Court upheld a New York law which required local public school authorities to lend textbooks free of charge to all students in grades 7 through 12 including students attending private schools. The Court found no violation of the primary effect test for although the Court recognized that books can have an inherent religious significance which bus rides do not, the law provided that only secular books could be loaned and each book had to be approved by the public school authorities. The Court noted that the state has a legitimate interest in the manner in which private schools perform their secular education function. On the basis of the "meager record" in the case, the Court could not conclude that "* * * either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion." 392 U.S. at 248, 88 S.Ct. 1923, at 1929. Therefore, the Court upheld the law as providing a general service to all students which was consistent with the state's interest in promoting secular education in all schools. In Lemon, the Court held that a Pennsylvania law which reimbursed private schools for the cost of teachers' salaries, textbooks and instructional materials in certain specified secular subjects and a Rhode Island law which supplemented the salaries of teachers of secular subjects in private elementary schools violated the Establishment Clause because the programs involved excessive government entanglement with religion. Although the Court found it unnecessary to apply the primary effect test, the Court's analysis of the statutes in terms of this test is instructive. The Court reaffirmed its agreement in principle with the holding in Allen that "secular and religious education are identifiable and separable." However, the Court noted that both the Pennsylvania and Rhode Island legislatures recognized that "church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities are religiously oriented." Therefore, in order to guarantee that state financial aid supports only secular education in these schools, the two legislatures imposed statutory restrictions on their aid programs. Although the Court did not reach the question of whether these restrictions effectively prevented the aid programs from having a primary effect which violated the Establishment Clause, it is clear from the opinion that the Court agreed that given the nature of the *1362 proposed aid and the character of the school, the state was required to impose restrictions to insure that the aid benefited only secular education in order to comply with the Establishment Clause. "* * * The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion — indeed the State here has undertaken to do so." Lemon, supra, 403 U.S. at 619, 91 S.Ct. 2105, at 2114 (emphasis added). Finally, in Tilton, the Court upheld the constitutionality of federal aid to church-related colleges and universities for construction of buildings and facilities used exclusively for secular educational purposes. In evaluating the statute in terms of its effect, the Court first reviewed the provisions of the law and found that it was carefully drafted to insure that federally subsidized buildings would be devoted to secular and not religious functions. However, the Court concluded that a provision of the law which permitted unrestricted use of the buildings after 20 years violated the Establishment Clause primary effect test. This decision represents the first instance in which the Court has invalidated legislation under that test. "* * * It cannot be assumed that a substantial structure has no value after that period and hence the unrestricted use of a valuable property is in effect a contribution of some value to a religious body. * * * If, at the end of 20 years the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing religion." Tilton, supra, 403 U.S. at 683, 91 S.Ct. 2091, at 2098. The Court next examined the administration of the law and found that the restrictions on use had been complied with by the recipient institutions. Finally, on the basis of the record before it, the Court refused to conclude that religion so permeated the secular education provided by church-related colleges and universities that their religious and secular education functions were inseparable and that therefore government support of any activity of these institutions necessarily involved impermissible support of religion.[6] These cases establish the following points of reference for any application of the primary effect test. First, absent any evidence to the contrary, the Supreme Court accepts the principle that secular and religious education in church-related schools are identifiable and separable. Second, the state has a legitimate interest in promoting the general welfare and the secular education of all school children. Third, the state may enact programs to promote the general welfare which include sectarian school students among the recipients provided the aid given has no inherent religious significance (e. g., bus rides, public health services), even though the aid may facilitate the operation of sectarian schools. Fourth, the state may enact programs to promote secular education in accredited schools, including church-related schools, provided the state can be certain from the nature of the aid granted or the restrictions placed upon its use that the programs will assist only secular education in church-related schools and provided further that the restrictions required to insure secular use do not give rise to excessive government entanglement with religion in the administration of the aid program. Finally, in order for a court to conclude that a statute has the constitutionally impermissible effect of advancing religion, the court is not required to conclude that the scheme of assistance will necessarily *1363 aid religion; the court can conclude that the statute has the effect of advancing religion if the terms of the statute fail to preclude a possible use of government funds to promote religious exercises. The Act under review reimburses parents who have expended money for tuition at nonpublic schools. The legislative findings and declaration of policy underscore the legislative judgment that this type of aid will have the effect of enabling nonpublic schools, which include church-related schools, to continue to operate in Pennsylvania. The cases are clear that the state cannot directly support religious education in church-related schools although in some circumstances the state may provide sectarian schools with "secular, neutral or non-ideological services, facilities, or materials." Lemon, supra, 403 U.S. at 616, 91 S.Ct. 2105, at 2113. The present Act contains no provisions to insure that state funds are restricted to such purposes. Clearly an unrestricted grant of funds by the state directly to church-related schools would constitute state support of religious instruction and worship in violation of the Establishment Clause. "* * * General subsidies of religious activities would, of course, constitute impermissible state involvement with religion." Walz, supra, 397 U.S. at 690, 90 S.Ct. 1409, at 1422 (Brennan, J. concurring). Recognizing this, defendants maintain that the Act is constitutional because the Act aids the parents and not the schools. The state enters into no direct relationship with nonpublic schools because funds are paid directly to parents who have paid tuition to nonpublic schools. Once the parents receive the funds, the state has no control over their use.[7] Furthermore, defendants argue that in Everson and Allen the Supreme Court distinguished between aid to parents and students and aid to institutions and held that state aid to parents and students does not have the primary effect of advancing religion even though sectarian schools benefit from transportation services and non-religious textbook loans. First, we disagree with defendants' reading of Everson and Allen. The critical factor in both cases was that the subsidized school activities were nonideological or secular and therefore the public grants did not directly support religious education in the sectarian schools, although the aid did support the operation of the schools. But the fact that aid is given to parents in itself does not prevent the subsidy from having a primary effect of supporting religious instruction and worship in church-related schools. In Allen, the fact that the Court *1364 considered the parents and students as the beneficiaries of the aid would not have prevented the Court from striking down the law if it provided for loans of religious books to the schools. The school aid cases emphasize that the court must examine the character of the aided activity rather than the manner in which aid is given in order to determine whether the state subsidy has the primary effect of advancing religion. Second, we conclude that the effect of the Act is to aid the schools and therefore the failure of the state to insure that the funds are restricted to secular education or general welfare services renders the Act unconstitutional.[8] Parents are eligible to receive payments under the Act because they have paid tuition at a nonpublic school. Tuitions are the "very life blood" of private educational institutions, Almond v. Day, 197 Va. 419, 427, 89 S.E.2d 851, 857 (1955), because they are the source from which many educational services, secular as well as religious, are funded. If parents cannot afford to pay the tuition, they must take their child out of the nonpublic schools and if enough parents are unable to pay these costs, the schools will be forced to close. It was precisely this possibility that led the Pennsylvania General Assembly to pass the Act under review. By providing parents with additional funds because they have paid tuition at nonpublic schools, the Commonwealth is trying to insure the continued ability of the parents to afford tuition costs and therefore the continued existence of nonpublic schools, including sectarian schools. The necessary effect of such a program, if it is to succeed, is that the schools will be aided by state funds. The state cannot maintain that the Act has the purpose of promoting education by supporting nonpublic schools and then deny that the effect of the Act is to aid these schools. Defendants argue that we cannot ascertain that parents will be encouraged to send their child to church-related schools because of the state aid program. Parents may send their child to a sectarian school one year and despite the reimbursement payment decide to enroll their child in another type of school the next year. Therefore defendants argue that we cannot conclude that the Act has the necessary effect of advancing religion. However, Tilton established that a government aid program can be invalidated on the basis of a significant risk that the aid may serve to support religious activity at some future time. In Tilton, there was no evidence that the colleges receiving construction grants planned to convert the buildings into chapels or otherwise use them for religious activities after twenty years had passed. Nevertheless, the Court found the possibility of such use enough to strike down the provision of the statute which permitted unrestricted use of the buildings after twenty years. It is clear that a possible and quite likely use of the aid under review is to enable parents to continue to pay tuition at sectarian schools. Tuition payments support both religious and secular education at these schools. The mere fact that the Act does not require that parents use the funds to pay tuition at church-related schools does not relieve the state of its duty to preclude the use of its funds to support religious activities. State courts have held that tuition grant programs in which the state channeled funds through the parents or students to the schools violate the First Amendment and state constitutional provisions.[9] Almond v. Day, supra, *1365 Hartness v. Patterson, 179 S.E.2d 907 (S. Carolina 1971), Opinion of the Justices, 259 N.E.2d 564 (Mass.1970). Defendants argue that unlike the "conduit" plans, the Pennsylvania Act does not make payments to parents in a form that can only be used at an educational institution. Therefore, it cannot be established that the dollar used to pay tuition is the dollar the parents received from the state. However, we do not perceive any constitutional significance in the fact that payments are made in the form of reimbursement to the parents, a conduit plan or directly to the school. The economic consequences are the same for the church-related school whether it receives funds through a direct grant, a conduit plan or because the state increases family incomes through a reimbursement program which enables the parents to continue to pay tuition. In each case, tax-raised funds are being used to subsidize religious education. Finally, even if we held that the Act does not aid sectarian schools, we must still conclude that the Act supports religion because it aids parents in providing a religious education for their children. It would seem indisputable that at least one, if not the main, purpose of a parent's sending his child to a religious school is to insure the early inculcation of religion. See Walz, supra, 397 U.S. at 671, 90 S.Ct. 1409, at 1412. Assuming equal secular educational standards as between public and religious schools, it is an almost inescapable sequitur that the statutory reimbursement is solely to enable the parents to augment the public school secular education with religious training. If parents cannot afford to provide religious education for their children in sectarian schools without state aid, then by providing a program for aiding the parents, the state is plainly advancing religious education. The state has no more power to subsidize parents in providing a religious education for their child than it has to subsidize church-related schools to do so. See Brusca v. State of Missouri ex rel. State Bd. of Ed., 332 F.Supp. 275 (E.D. Mo.1971). Having concluded that the Establishment Clause precludes state reimbursement of sums that parents have paid as tuition to schools that provide religious education, we need not consider defendants' arguments that the complaint should be dismissed for lack of standing and failure to state a claim under the Free Exercise and Equal Protection Clauses. We therefore deny defendants' motion to dismiss the complaint. APPENDIX A PARENT REIMBURSEMENT ACT FOR NONPUBLIC EDUCATION ACT NO. 92[10] H. B. NO. 1379 An Act creating an authority for the purpose of avoiding increased costs of public education by providing partial reimbursement for nonpublic education and defining its powers and duties. The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Short Title This act shall be known and may be cited as the "Parent Reimbursement Act for Nonpublic Education." Section 2. Legislative Finding; Declaration of Policy It is hereby determined and declared as a matter of legislative finding: (1) That parents who send their children to nonpublic schools assist the State in reducing the rising costs of public education. *1366 (2) The welfare of the Commonwealth requires that this and future generations of school age children be assured ample opportunity to develop to the fullest their intellectual capacities. To further this objective the Commonwealth has had in force for many years a compulsory school attendance law. (3) In the exercise of their constitutional right to choose nonpublic education for their children, parents who support such education make a major contribution to the public welfare. However, the immense impact of inflation, plus sharply rising costs of education, now combine to place in jeopardy the ability of such parents fully to carry this burden. (4) Should parents of children now enrolled in nonpublic schools be forced by economic circumstances to transfer any substantial number of their children to public schools, an enormous added financial, educational and administrative burden would be placed upon the public schools and upon the taxpayers of the State. Without allowance for inflationary increase, the annual operating cost of educating in public schools, the five hundred thousand students now enrolled in Pennsylvania's nonpublic schools would be an additional four hundred million dollars ($400,000,000). Necessarily added capital costs to construct new facilities or acquire existing facilities would be in excess of one billion dollars ($1,000,000,000). Any substantial portion of these operating and capital costs would be an intolerable public burden and present standards of public education would be seriously jeopardized. Therefore, parents who maintain students in nonpublic schools provide a vital service to the Commonwealth. Wherefore, it is declared to be the public policy of the Commonwealth: That, in order to reimburse parents partially for this service so vitally needed by the Commonwealth, and in order to foster educational opportunity for all children, a program of Parent Reimbursement for Nonpublic Education is hereby established. Section 3. Definitions The following terms, whenever used or referred to in this act, shall have the following meanings, except in those instances where the context clearly indicates otherwise: (1) "Parent" means a resident of the Commonwealth of Pennsylvania who is a parent of a child enrolled in a nonpublic school or a person standing in loco parentis to such child. (2) "Nonpublic school" means any school, other than a public school, within the Commonwealth of Pennsylvania, wherein a resident of the Commonwealth may legally fulfill the compulsory school attendance requirements of law and which meets the requirements of Title VI of the Civil Rights Act of 1964 (Public Law 88-352). (3) "Student" means a resident of the Commonwealth of Pennsylvania who is enrolled in a nonpublic school. (4) "Parent Reimbursement Fund" means the fund created by this act. Section 4. Pennsylvania Assistance Authority There is hereby created a body corporate and politic to be known as the Pennsylvania Parent Assistance Authority, which shall consist of five members appointed by the Governor and which shall have responsibility for the administration of the program created by this act. All members shall be of full age, citizens of the United States, and residents of the Commonwealth and shall be appointed for terms of five years each. The members of the authority shall select from among themselves a chairman and a vice-chairman. The authority may employ a secretary and such other employes as it may require. Three members of the authority shall constitute a quorum for its meetings. Members shall receive no compensation for their services but shall be reimbursed for their expenses actually and necessarily incurred by them in the performance of their duties under this act. The authority shall have power to make and promulgate rules and regulations for the administration of *1367 this act: Provided, however, That it shall exercise no direction, supervision or control over the policy determinations, personnel, curriculum, program of instruction or any other aspect of the administration or operation of any nonpublic school or schools. The authority shall have no power, at any time or in any manner to pledge the credit or taxing power of the Commonwealth, nor shall any of its obligations or debts be deemed to be obligations of the Commonwealth, and all contracts between the authority and parents or other persons in loco parentis shall be satisfied solely from funds provided under this act. Section 5. Parent Reimbursement Fund There is hereby created for the special purpose of this act, a Parent Reimbursement Fund. Beginning July 1, 1971, twenty-three per cent of the tax revenue collected by the Department of Revenue, pursuant to the act of July 22, 1970 (P. L. 513), known as the "Pennsylvania Cigarette Tax Act," shall be paid into the State Treasury to the credit of the Parent Reimbursement Fund. Moneys in the Parent Reimbursement Fund are hereby appropriated to the Pennsylvania Parent Assistance Authority, to be used solely for the purposes of this act. All expenses incurred in connection with the administration of this act shall be paid solely out of the Parent Reimbursement Fund. Section 6. Eligibility In order to be eligible for tuition reimbursement hereunder, the parent of a student shall, at the completion of the school year but not later than July fifteenth, file with the Parent Assistance Authority a verified statement that the student has completed the school year in a nonpublic school or schools and, in addition, the following information: (i) the name and address of the parent; (ii) the name, address and birth date of the student; (iii) the name and address of the nonpublic school or schools in which the student completed the school year and (iv) a receipted tuition bill or copy of the executed contract under which the student attended the nonpublic school or schools. Section 7. Tuition Reimbursement Payments to Parents Upon the filing by a parent of the verified statement as required by section 6, the Parent Assistance Authority shall make a tuition reimbursement payment to such parent in the amount of (i) seventy-five dollars ($75) for each elementary school student to whom the parent bears a parental relationship and one hundred fifty dollars ($150) for each secondary student to whom the parent bears a parental relationship, or (ii) the actual amount of tuition paid or contracted to be paid by a parent, whichever is lesser. Reimbursement payments to parents hereunder shall be made not later than September fifteenth in the school year following the school year for which tuition reimbursement payments are being made. Section 8. Penalties The Parent Assistance Authority shall have power to employ means reasonably necessary to determine the accuracy of all statements submitted by parents in connection with reimbursement payments hereunder. Any person who, by means of a wilfully false statement, secures or attempts to secure or aids or abets any person in securing reimbursement payment hereunder, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine of not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding one year, or both, and shall also be sentenced to make restitution of any moneys he has received by reason of any false statement. Section 9. Insufficient Moneys in Fund In the event that, in any fiscal year, the total amount of moneys which were actually paid into the Parent Reimbursement Fund shall be insufficient to pay *1368 the total number of claims submitted by parents to the Parent Assistance Authority, the reimbursement payments provided for in section 7 shall be proportionate in amount to the per cent which the total amount of moneys in the Parent Reimbursement Fund bears to the total amount of claims. Section 10. Severability If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid, in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. Section 11. Effective Date This act shall take effect immediately. Approved the 27th day of August A.D. 1971. NOTES [1] Act 92 of the Pennsylvania General Assembly, August 27, 1971. Appendix A, infra. [2] Title VI prohibits discrimination on the ground of race, color, or national origin in programs receiving federal financial assistance. 42 U.S.C. § 2000d et seq. [3] Section 2(4), Act 92, Appendix A. [4] Defendants concede and we find that plaintiffs have standing to sue under the Establishment Clause. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). [5] Defendant intervener Crouter has moved under F.R.Civ.P. 12(f) to strike paragraph 10 of plaintiff's complaint as immaterial and as requiring inquiry into the religious practices and character of schools to which parents choose to send their children in violation of the parents' rights of free exercise of religion, privacy, and freedom of expression. F.R.Civ.P. 12(f) provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Defendant maintains that the allegations of paragraph 10 concerning the religious character of non-public schools are constitutionally irrelevant because the Act does not give aid to schools, but to parents. However, the issue of whether the Act aids religious schools or aids parents to provide a religious education for their children is one of the issues in dispute in this litigation, and the allegations of paragraph 10 are certainly relevant to the plaintiffs' claims. "* * * The motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy." Brown and Williamson Tobacco Corp. v. U. S., 201 F.2d 819, 822 (C.A.6, 1953). See also Augustus v. Bd. of Public Instruction, 306 F.2d 862, 868 (C.A.5, 1962), 2A J. Moore, Federal Practice ¶ 12.21 [2] (2d ed. 1968). Defendant's further objection concerning the constitutionality of inquiring into the religious character of the schools is premature and should be raised once such information is actually sought. We therefore deny defendant intervener's motion to strike paragraph 10. [6] The Court also found that the legislation did not foster excessive government entanglement with religion. [7] Defendants cite Hysong v. Gallitzin Borough School District, 164 Pa. 629, 30 A. 482, 26 L.R.A. 203 (1894), for the proposition that payment of state funds is not unconstitutional because the recipients may use these funds for religious purposes. Hysong involved the question of whether a public school could employ Catholic nuns to teach secular subjects. One argument raised by plaintiffs was the fact that the nuns had taken a vow of poverty and turned over their salaries to their church and therefore state salary payments were being used to support religion. The Pennsylvania Supreme Court rejected this argument on the grounds that "American men and women of sound mind and 21 years of age, can make such disposition of their surplus earnings as suits their own notions." Hysong, supra, 164 Pa. at 656, 30 A. at 484 (emphasis added). Hysong is clearly distinguishable from the case before us because there is no question that individuals are free to dispose of money earned by them in the course of their employment for whatever purposes they choose, including support of religion. In fact the principle of government neutrality in religious affairs is premised on the belief that religions should be supported solely by the voluntary contributions of their members. In determining whether state payments under the Act are constitutional, we must examine the criteria which qualify an individual for receipt of the funds. Certainly there can be no objection to state payments to state employees for secular teaching services in the public schools. The issue before this court is whether individuals may receive state funds solely because they have paid tuition at a church-related school. [8] If the Act did include restrictions on the use of the funds, the Act would also have to avoid excessive government entanglement with religion in its administration of these restrictions. See Lemon and Tilton. The combination of the primary effect and entanglement tests clearly restricts the scope of permissible government aid to religious schools. [9] "The parent or guardian to whom the tuition fees are paid is merely the conduit or channel through whom the aid from the State to the school is transmitted." Almond v. Day, supra, 89 S.E. 2d at 857. "We reject the argument that the tuition grants provided under the Act do not constitute aid to the participating schools. Students must pay tuition fees to attend institutions of higher learning and the institutions depend upon the payment of such fees to aid in financing their operations. While it is true that the tuition grant aids the student, it is also of material aid to the institution to which it is paid." Hartness v. Patterson, 255 S.C. 503, supra, 179 S.E.2d 907 at 909. [10] 24 P.S. §§ 5701 to 5711.

537 U.S. 953 WRIGHTv.KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTER. No. 02-5646. Supreme Court of United States. October 15, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 2 C. A. 8th Cir. Certiorari denied.

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ JOHN A. GERACE, Claimant-Appellant v. DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2017-1562 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 15-491, Judge Coral Wong Pi- etsch. ______________________ JUDGMENT ______________________ JOSHUA SIBBLE, Baker Botts, LLP, New York, NY, ar- gued for claimant-appellant. RENEE BURBANK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent-appellee. Also represent- ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE; BRIAN D. GRIFFIN, AMANDA BLACKMON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (LOURIE, O’MALLEY, and REYNA, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT February 7, 2018 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court 

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT GIBRALTOR REALTY HOLDINGS, LLC, Trustee of the BFA FLORIDA LAND TRUST #28 DATED JANUARY 1, 2017, Appellant, v. WACHOVIA MORTGAGE FSB; DENNIS CASTIGIONE; and CHAPEL TRAIL OWNERS ASSOCIATION, INC., et al, Appellees. No. 4D18-1831 [April 11, 2019] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Senior Judge; L.T. Case No. 09-004851 CACE (11). Jerome L. Tepps of Jerome L. Tepps, P.A., Sunrise, for appellant. Sara F. Holladay-Tobias, Emily Y. Rottmann and C.H. Houston III of McGuireWoods LLP, Jacksonville, for appellee Wachovia Mortgage FSB. PER CURIAM. Affirmed. TAYLOR, CIKLIN and LEVINE, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 

2016 IL App (2d) 151053 No. 2-15-1053 Opinion filed September 21, 2016 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ CARLA BURKHART, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant, ) ) v. ) No. 14-AR-707 ) WOLF MOTORS OF NAPERVILLE, INC., ) d/b/a Toyota of Naperville, ) Honorable ) Brian R. McKillip, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion. OPINION ¶1 The defendant, Wolf Motors of Naperville, made a mistake in advertising one of its cars for sale. The plaintiff, Carla Burkhart, tried to purchase the car at the advertised price. After the defendant refused to honor its advertisement on the ground that the advertised price was an error, the plaintiff filed a complaint alleging that the defendant’s actions constituted breach of contract and consumer fraud. The trial court granted the defendant’s motion for summary judgment. The plaintiff appeals from that order. We affirm. ¶2 BACKGROUND ¶3 On May 5, 2014, the plaintiff filed a two-count complaint against the defendant, alleging breach of contract and violation of the Illinois Consumer Fraud and Deceptive Business Practices 2016 IL App (2d) 151053 Act (Act) (815 ILCS 505/2 (West 2014)). The complaint alleged that on September 23, 2013, the plaintiff saw that the defendant was advertising online, at www.toyotacertified.com, a 2011 Toyota 4Runner for $19,991. The plaintiff contacted the defendant and indicated that she was interested in purchasing the vehicle. After the plaintiff test-drove the vehicle, she informed the defendant that she wanted to purchase the vehicle. The defendant’s representative informed her that the price of the vehicle was $36,991. The plaintiff responded that she wanted the advertised price of $19,991. The defendant’s representative confirmed that the vehicle had been advertised for $19,991 but explained that the advertisement was a mistake. The defendant’s manager subsequently offered to sell the plaintiff the vehicle “at cost”—$35,000. The plaintiff refused to purchase the vehicle at that price. ¶4 The complaint alleged that the parties had a valid and enforceable contract for the vehicle at the advertised price of $19,991 and that the defendant breached the agreement when it refused to sell the vehicle to the plaintiff at that price. Alternatively, the complaint alleged that the defendant committed consumer fraud and injured the plaintiff when it advertised the vehicle at a price for which it did not intend to sell. The defendant filed an answer to the plaintiff’s complaint, denying all material allegations. ¶5 On May 22, 2015, the defendant filed a motion for summary judgment. The defendant argued that the erroneous advertisement did not constitute an offer that could be accepted so as to form a contract. The defendant further argued that its actions did not constitute consumer fraud, because (1) it did not commit a deceptive act or practice, (2) it did not intend for the plaintiff to rely on any deceptive act or practice, and (3) the plaintiff did not incur any actual damages. ¶6 In support of its motion for summary judgment, the defendant submitted the deposition of its Internet director, Thomas Gregg. Gregg testified that the $19,991 advertised price for the -2- 2016 IL App (2d) 151053 subject vehicle was a clerical error and that the correct price for the subject vehicle was $36,991. He explained that the clerical error occurred with the entry of the subject vehicle into the Dealer Daily system. He testified that the person who had entered the vehicle into the Dealer Daily system was not very familiar with the process and was in training. The person had mistakenly entered the price of a different vehicle. After Gregg discovered on September 23, 2013, that the price was incorrectly displayed, he immediately updated the price in the dealership DMS system, which then updated the listing on Dealer Daily. He did not realize that the update in the system took approximately four days to appear on the Internet. ¶7 The defendant also submitted the deposition of its used-car sales manager, Bryan Lieser. Lieser testified that, as of September 24, 2013, the appraised value of the vehicle in question was between $32,000 and $33,000. ¶8 On July 9, 2015, the plaintiff filed a cross-motion for summary judgment. The plaintiff argued that she was entitled to summary judgment because (1) the defendant admitted that it refused to sell the vehicle to the plaintiff as advertised and, alternatively, (2) the defendant admitted advertising a vehicle for sale without an intention of selling the vehicle as advertised. ¶9 On September 24, 2015, the trial court granted the defendant’s motion for summary judgment and denied the plaintiff’s motion. The trial court found that, due to a clerical error, the car had been listed at an erroneous price. The trial court then explained that there was no contract formed between the parties because there was no mutual assent, as the “plaintiff believed she was purchasing a car for $19,991 [while] the defendant’s salesman believed he was selling the same car for $36,991.” Further, the trial court found that there was no consumer fraud because “the defendant did not intend the plaintiff to rely on a deceptive practice in which the defendant never intended to engage.” -3- 2016 IL App (2d) 151053 ¶ 10 On October 20, 2015, the plaintiff filed a timely notice of appeal. ¶ 11 ANALYSIS ¶ 12 On appeal, the plaintiff does not dispute the trial court’s finding that the subject vehicle was advertised at the wrong price. Nonetheless, she insists that she did have a contract with the defendant or, alternatively, that the defendants’ deceptive advertising constituted consumer fraud. She therefore argues that the trial court erred in granting the defendant’s motion for summary judgment and denying her motion for summary judgment. ¶ 13 The purpose of a motion for summary judgment is to determine whether a genuine issue of triable fact exists (People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d 226, 231 (2007)), and such a motion should be granted only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” (735 ILCS 5/2-1005(c) (West 2014)). An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment is incorrect as a matter of law. Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997). We review de novo the trial court’s grant of a motion for summary judgment. Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 395 (2008). ¶ 14 In order to establish a claim for breach of contract, a plaintiff must allege and prove the following elements: “(1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff.” Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d 15, 27 (2001). A valid and enforceable contract requires a manifestation of agreement or mutual assent by the parties to its terms, and the failure of the parties to agree upon or even discuss an essential term of a contract may indicate that the mutual assent required to make or modify a -4- 2016 IL App (2d) 151053 contract is lacking. Deacon Group., Inc. v. Northern Trust Corp., 187 Ill. App. 3d 635, 643 (1989). An advertisement is not an offer to a contract but rather constitutes an invitation to deal on the terms described in the advertisement. Steinburg v. Chicago Medical School, 69 Ill. 2d 320, 330 (1977); see also O’Keefe v. Lee Calon Imports, Inc., 128 Ill. App. 2d 410, 413 (1970). ¶ 15 In O’Keefe, the defendant advertised a 1964 Volvo station wagon for sale in the Chicago Sun-Times. The defendant instructed the newspaper to advertise the price of the car as $1795, but the newspaper erroneously advertised it as $1095. The plaintiff went to the defendant’s place of business and sought to purchase the car for $1095. After the defendant’s salesman refused to sell him the car at that price, the plaintiff filed a breach-of-contract claim against the defendant. The trial court subsequently granted the defendant summary judgment on the plaintiff’s complaint. O’Keefe, 128 Ill. App. 2d at 411. ¶ 16 On appeal, the plaintiff argued that the advertisement constituted an offer, which he accepted and which therefore served as the basis of a binding contract. The reviewing court rejected this argument, explaining: “We find that in the absence of special circumstances, a newspaper advertisement which contains an erroneous purchase price through no fault of the defendant advertiser and which contains no other terms, is not an offer which can be accepted so as to form a contract. We hold that such an advertisement amounts only to an invitation to make an offer. It seems apparent to us in the instant case, that there was no meeting of the minds nor the required mutual assent by the two parties to a precise proposition. There was no reference to several material matters relating to the purchase of an automobile, such as equipment to be furnished or warranties to be offered by defendant. Indeed the terms -5- 2016 IL App (2d) 151053 were so incomplete and so indefinite that they could not be regarded as a valid offer.” Id. at 413. ¶ 17 Here, as in O’Keefe, the erroneous advertisement could not in itself serve as the basis of a binding contract between the parties. The advertisement did not reflect a price for which the defendant ever intended to sell the vehicle. As such, the advertisement did not constitute an offer, and the plaintiff’s “acceptance” of that advertisement did not establish a contract. ¶ 18 The plaintiff argues that O’Keefe is distinguishable because this case implicates the “special circumstances” that O’Keefe referred to. Specifically, the plaintiff points out that, unlike in O’Keefe, here (1) the plaintiff promised to pay the amount that was requested in the advertisement, (2) the advertisement referred to all of the equipment to be provided and the warranties offered, and (3) the defendant tried to use the advertisement to its advantage. We find the plaintiff’s attempt to distinguish O’Keefe unpersuasive. Although the advertisement in the instant case included more information than the advertisement in O’Keefe, the advertisements were sufficiently similar because they both contained the wrong information about an essential term: the price. Here, although the defendant’s manager did offer the car for a lower price after he learned that the plaintiff wanted it for the advertised price, the plaintiff never indicated a desire to purchase the car for anything other than $19,991. Accordingly, as there was never a meeting of the minds as to the price the plaintiff was willing to pay for the car and the price the defendant was willing to accept, there was no contract between the parties. See Delcon Group., Inc., 187 Ill. App. 3d at 643. ¶ 19 Alternatively, relying on Williams v. Bruno Appliance & Furniture Mart, Inc., 62 Ill. App. 3d 219, 221 (1978), the plaintiff argues that O’Keefe is no longer good law because it conflicts with the mandate of the Act that advertisements must be viewed as bona fide offers for -6- 2016 IL App (2d) 151053 sale. As this issue ties directly into the plaintiff’s second contention, we will address it in that context. ¶ 20 The plaintiff’s second contention on appeal is that the defendant committed consumer fraud when it advertised the vehicle without intending to sell it at the advertised price. The plaintiff insists that the defendant’s advertisement constituted a per se violation of the Act because the defendant refused to sell her the vehicle at the price that was listed in the advertisement. The plaintiff maintains that it is irrelevant whether the advertised price was correct. ¶ 21 “To establish a claim under the [Act], a plaintiff must prove: (1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the plaintiff that is (5) a result of the deception.” Martinez v. River Park Place, LLC, 2012 IL App (1st) 111478, ¶ 34. Recovery may be had for unfair as well as deceptive conduct. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417 (2002). In measuring unfairness, courts consider: “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers.” Id. at 417-18. Further, “in a cause of action for fraudulent misrepresentation brought under the [Act], a plaintiff must prove that he or she was actually deceived by the misrepresentation in order to establish the elements of proximate causation.” Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 199 (2005). ¶ 22 Although the record in this case reveals evidence as to some of the elements of a cause of action for consumer fraud, it is clear that plaintiff cannot prove all of them. Specifically, there is no evidence that the plaintiff suffered any damages. The plaintiff argues that her damages were -7- 2016 IL App (2d) 151053 at least $12,009: the difference between the price at which the car was advertised ($19,991) and the appraised value of the car (at least $32,000). However, only a person who suffers actual damages as a result of a violation of the Act may bring a private action. 815 ILCS 505/10a(a) (West 2014); Mulligan v. QVC, Inc., 382 Ill. App. 3d 620, 626-27 (2008). The Act provides remedies for purely economic injuries. White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278, 287 (2006). Actual damages must be calculable and “measured by the plaintiff’s loss.” (Internal quotation marks omitted.) Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009). The failure to allege specific, actual damages precludes a claim brought under the Act. White, 368 Ill. App. 3d at 287. The purpose of awarding damages to a consumer-fraud victim is not to punish the defendant or bestow a windfall upon the plaintiff, but rather to make the plaintiff whole. Mulligan, 382 Ill. App. 3d at 629. ¶ 23 Here, the plaintiff is in the same position she was in before she saw the advertisement. The alleged damages she seeks would not compensate her for any actual loss but instead would constitute an improper windfall. See id. Accordingly, as the plaintiff suffered no damages, the trial court properly granted the defendant’s motion for summary judgment. See Martinez, 2012 IL App (1st) 111478, ¶ 34. We note that this is not the basis on which the trial court granted the defendant’s motion for summary judgment; however, it is well settled that we may affirm on any basis appearing in the record. Benson v. Stafford, 407 Ill. App. 3d 902, 912 (2010). ¶ 24 In so ruling, we reject the plaintiff’s argument that the defendant’s advertising the vehicle at a price that it did not intend to honor was a “per se violation of the Illinois Consumer Fraud Act” that entitles her to relief. Although even negligent or innocent misrepresentations are actionable under the Act, that still does not alleviate a plaintiff’s obligation to prove her damages. See Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1039 (1992) (explaining -8- 2016 IL App (2d) 151053 that because innocent misrepresentations are actionable under the Act, damages will not be presumed). ¶ 25 Further, we find the plaintiff’s reliance on Garcia v. Overland Bond & Investment Co., 282 Ill. App. 3d 486, 493-94 (1996), Affrunti v. Village Ford Sales, Inc., 232 Ill. App. 3d 704, 707 (1992), and Bruno Appliance, 62 Ill. App. 3d at 222, to be misplaced. All of those cases involve deceptive “bait and switch” situations. A “bait and switch” occurs when a seller makes an alluring but insincere offer to sell a product or service, which the advertiser in truth does not intend or want to sell. Its purpose is to switch customers from buying the advertised merchandise to buying something else, usually at a higher price or on a basis more advantageous to the advertiser. Martinez, 2012 IL App (1st) 111478, ¶ 35. Here, the defendant did not engage in any “bait and switch,” as it did not try to induce the plaintiff to buy a vehicle other than the one that was advertised. ¶ 26 The plaintiff nonetheless insists that the defendant “employed tactics shadily similar to a ‘bait and switch’ in attempt to draw [the plaintiff] in.” In support of this accusation, the plaintiff points to the defendant’s offer to sell her the car “at cost” for a price that was actually higher than the defendant’s cost. We reject this argument. The fact remains that there is no evidence that the plaintiff actually suffered any damages due to the defendant’s deceptive advertisement. ¶ 27 Finally, we also find the plaintiff’s reliance on Montgomery Ward & Co. v. Federal Trade Comm’n, 379 F.2d 666, 668-71 (7th Cir. 1967), to be misplaced. That case addressed whether Montgomery Ward had engaged in deceptive advertising when its advertised guarantees for some of its products conflicted with its written guarantees. However, as that case did not discuss damages that any customers might have suffered—something that our courts have -9- 2016 IL App (2d) 151053 consistently found is necessary in order for a plaintiff to maintain a consumer-fraud claim— Montgomery Ward does not require us to reach a different decision. ¶ 28 CONCLUSION ¶ 29 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County. ¶ 30 Affirmed. - 10 - 

388 B.R. 610 (2008) In re Marilyn C. KINCAID, Debtor. No. 07-15890DWS. United States Bankruptcy Court, E.D. Pennsylvania. June 2, 2008. *612 David A. Scholl, Law Office of David A. Scholl, Newtown Square, PA, for Debtor. OPINION DIANE WEISS SIGMUND, Bankruptcy Judge. Before the Court are the Debtor's Objections to (1) Claim # 10 and #11 filed by eCast Settlement Corporation ("eCast") and (2) Claim # 17 and # 18 filed by Real LLC ("B-Real") (together with eCast, "Claimants"). Each of the disputed claims represents amounts due in connection with credit card accounts which allegedly were acquired by Claimants through assignment. Debtor objects to the allowance of these claims on the grounds that Claimants have not established that they are the assignees entitled to payment on account of these debts. Briefs have now been filed as contemplated and the matters are ripe for decision. BACKGROUND eCast filed Claim # 10 in the amount of $1,473.99 as assignee of GE Money Bank/Home Shopping Network. In support of the unsecured claim, it attached a computer generated "account summary" which also identifies the final four digits of an account number (0107) and the account type as "credit card." Proof of claim #11 in the amount of $1,236.65 was filed on behalf of eCast as assignee of GE Money Bank/Lord & Taylor and is supported by the same type of summary sheet evidencing the last four digits of an account number (0153) and the designation "credit card." There are no other documents annexed to either of the proofs of claim but rather an explanation (the "Explanation") on the bottom of each account summary which reads: Pursuant to paragraph 7 Official Bankruptcy Form 10, Proof of Claim, in lieu of attaching voluminous account documents, a summary of the account compiled from the information contained in the database of GE Money Bank, Home Shopping Network [GE Money Bank/Lord & Taylor], and their agents, if any, is provided (See instructions to Official Form 10). This debt arises from the use of a credit/charge card account or other money loaned, the supporting documents for which were provided by GE Money Bank/Home Shopping Network [GE Money Bank/Lord & Taylor], to the *613 debtor pre-petition. For further information about this claim call 1-800-962-6030 and ask to speak to the Claims Servicing Supervisor. Some documents may no longer be available. The Debtor testified that she never heard of eCast nor GE Money Bank and had no obligation to either.[1] However, her Schedule F identifies an undisputed credit card claim in the amount of $1,473.99 due Home Shopping Network and a $1,236.65 credit card debt to Lord & Taylor, neither of whom have filed a proof of claim in this case. Indeed while the Schedule F does not indicate an account number for the Home Shopping Network claim, the account number she identifies for the Lord & Taylor claim matches the last four digits in the proof of claim summary sheet for claim #11. B-Real filed Claim # 17 in the amount of $3,392.04 as assignee of Chase Bank USA, N.A. In support of the claim "based on an unsecured account acquired from Assignor [identified as Chase Bank USA, N.A."], it attached a document purporting to be a "redacted version of the information contained in the computer files documenting the account." It shows the last four digits of the account number (9692) and the basis of the claim as credit card. The second B-Real unsecured claim # 18 is in the amount of $4,569.40 and is supported by the same type of account information. It identifies the assignor as Chase Bank USA, N.A. and the last four digits (3075) of an account number. Debtor testified that she had no contract with B-Real, had never heard from B-Real and indeed did not know who it was. However, she did acknowledge debts in the same amount listed on her Schedule F as owed to Chase Card Services, P.O. Box 15153, Wilmington, DE and Chase Coldwater Creek, P.O. Box 15298, Wilmington, DE, neither of whom have filed a proof of claim in this case. The account numbers she identifies for each match the last four digits of accounts identified in the proof of claim summary for claims # 17 and 18. Debtor does not dispute the amounts owed but only the claimant seeking payment. Debtor also objects to the B-Real claims as being duplicative, contending that Debtor only had one account with Chase. DISCUSSION The general burdens of proof in proof of claim litigation are well established. Bankruptcy Rule of Procedure 3001(f) provides that a proof of claim executed and filed in accordance with the rules of procedure constitutes prima facie evidence of the validity and amount of the claim. Amatex Corporation v. Aetna Casualty & Surety Co., et al, 107 B.R. 856, 870 (E.D.Pa.1989); In re Wall to Wall Sound & Video, Inc., 151 B.R. 700, 701 (Bankr.E.D.Pa.1993). Even if there is an objection filed to the claim, the evidentiary effect of Rule 3001(f) remains in force. In re Wells, 51 B.R. 563, 566 (Bankr.D.Col. 1985). The objecting party carries the burden of going forward with evidence in support of its objection which must be of probative force equal to that of the allegations of the creditor's proof of claim. Id. "[T]he objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim's legal sufficiency." In re Allegheny *614 International, Inc., 954 F.2d 167, 173-74 (3d Cir.1992). If the objecting party succeeds in overcoming the prima facie effect of the proof of claim, the ultimate burden of persuasion then rests on the Claimant. Id. at 174. Debtor contends that all of the challenged proofs of claim should be disallowed as failing to attach documentation of the claimed assignments. Rule 3001(c) states that "when a claim ... is based on a writing, the original or duplicate shall be filed with the proof of claim." Rule 3001(a) further provides that a proof of claim shall conform substantially to the appropriate Official Form and such Official Form requires the attachment of documents when a claim is based on a writing.[2] There is no question that neither eCast nor B-Real have established a documentary link from the original merchant creditors to whom Debtor admits an obligation to themselves as present assignees who have filed the proofs of claim.[3] There is no evidence that Debtor has made any request for further documentation from either creditor. The law is well settled that failure to attach supporting documentation as required by a rule of procedure is not grounds for disallowance of a claim as § 502(b) supplies the exclusive basis for claim disallowance. Rather where the proof of claim does not adhere to the requirements of Rule 3001 by providing the facts and documents necessary to support the claim, it is not entitled to the presumption of prima facie validity. E.g., Heath v. American Express Travel Related Services (In re Heath), 331 B.R. 424, 433 (9th Cir. BAP 2005); Dove-Nation v. eCast Settlement Corp. (In re Dove-Nation), 318 B.R. 147, 152 (8th Cir. BAP 2004); In re Moreno, 341 B.R. 813, 817 (Bankr.S.D.Fla. 2006) (citing cases); In re Shank, 315 B.R. 799, 810 (Bankr.N.D.Ga.2004) (quoting In re Stoecker, 5 F.3d 1022, 1028 (7th Cir. 1993)). Absent the application of the presumption, the burden of going forward and proving its claim by a preponderance of the evidence remains on the claimant. In re Porter, 374 B.R. 471, 483 (Bankr. D.Conn.2007); In re Tran, 369 B.R. 312, 317-18 (S.D.Tex.2007). Whether this evidentiary consequence attaches to the proofs of claim filed by Claimants is the first issue I turn to. A. In In re Hughes, 313 B.R. 205 (Bankr.E.D.Mich.2004), the Court considered the precise form of Account Summary filed by eCast here in an objection to an eCast proof of claim. Finding the Explanation quoted above to be insufficient to comply with the requirement of Rule 3001(c) for filing a copy of the writing on which the claim is based, the Court held: Because there is no evidence of a written agreement between eCast and the Debtor, the Court concludes that eCast's *615 Claim No. 4 and Claim No. 5, as originally filed, are not sufficient to be afforded prima facie validity pursuant to Fed.R.Bankr.P. 3001(f). Id. at 210 (emphasis in original). Only when eCast responded to the objection by filing additional documents demonstrating an assignment from Chase Mastercard and Associates to eCast did the creditor meet its burden.[4] Likewise in In re Armstrong, 320 B.R. 97, 106 (Bankr.N.D.Tex.2005), the Court held that a transferee has an obligation to document its ownership of the claim under Rule 3001 and that failure to attach the transfer documents will result in the loss of the claim's prima facie validity. See also In re Povey, 2008 WL 1376271 (Bankr.E.D.Okla. April 9, 2008). Other than the reference in its Account Information attachment to Chase Bank USA, Inc. as assignor, B-Real has not provided any support for its claim of ownership. eCast, as noted, has filed the amended claim after receiving the Objection. While eCast's amendment now includes the Bill of Sale by which it has acquired its interest, Debtor still argues that the eCast documentation is insufficient since the Bill of Sale evidences the acquisition by eCast of the receivables from GE Money Bank but there is no documentation of any contractual relationship between GE Money Bank and Lord & Taylor or Home Shopping Network.[5] Debtor cites no authority for this proposition although it may be implied from the cases that require some linkage to be demonstrated between the original credit card account holder and the assignee.[6] The flaw in this argument is that Rule 3001(c) only requires the writing by which the claimant acquired its claim. Accepting Debtor's assumption that the GE Money Bank acquired the credit card accounts from Lord & Taylor and Home Shopping *616 Network, I find that a per se requirement that the document by which its seller acquired ownership of the claim goes beyond the express language of the Rule. I would therefore not hold the assignee to that requirement provided that the claims can otherwise be identified.[7] For example, if the Bill of Sale were supported by the schedule that evidenced the inclusion of claims against the Debtor, it would not be necessary to have the initial transfer documents. It also might be sufficient to support the filed claim by other documents that evidence that the assignee was in the business of purchasing claims from the seller. However, there must be some documentation that evidences that Claimant has the right to assert a claim for the credit card debt for the presumption to apply. There is none here. As noted, Claimants respond by arguing that Bankruptcy Rule 3001(e)[8] simply obviates this showing. Their rationale is that since assignment documents are expressly required when an assignment occurs after the filing of the proof of claim and are not required as here when the transfer occurs before the claim is filed, it follows that no evidence of the assignment need be attached to the proof of claim. The Claimants cites cases that have so held. While I am not persuaded that they all are on point,[9] I agree that the some *617 courts have found this argument persuasive. See, e.g., In re Cox, 2007 WL 4219407 (Bankr.W.D.Tex. Nov. 28.2007); Relford, on reconsideration, 323 B.R. at 681. I respectively disagree, aligning myself with those courts that view Rule 3001(e)(3) as merely establishing who is entitled to file a proof of claim and not what evidence is necessary to prove its ownership. Kendall, 380 B.R. at 46 n. 1; Povey, 2008 WL 1376271, at *6. It is counterintuitive to conclude that an assignee has less of a burden to establish its claim than a direct creditor. Rule 3001(e)(3) has a purpose separate and apart from the establishment of a claim. It is intended to make clear that disputed prepetition claim transfers are not an issue for the court's concern. That is not the point of requiring evidence of ownership for claims allowance. By demanding the identification of the owner of a claim to ensure that Debtor has an obligation to pay that creditor and, in exchange, will receive a discharge of its debt, Debtor is not seeking to challenge the transfer but merely to confirm that one has taken place. Based on the foregoing, I find that the B-Real proofs of claim provide no support for the assignments and the eCast amended claims provide insufficient linkage to the original credit card claims and as such, are not entitled to the presumption of validity. B. Having found that all the challenged proofs of claim are deprived of the presumption does not mean that the claims should be disallowed. Armstrong, 320 B.R. at 106. Rather, as noted above, the burden shifts to the Claimants to establish their claim.[10] Most courts appear to allow the claimants to amend their claims to provide the necessary documentation if they are able to do so. E.g., In re Taylor, 363 B.R. 303, 310 (Bankr.M.D.Fla.2007); Shank, 315 B.R. at 813-14. However, in the final analysis, the preponderance of the evidence must support allowance of the claim as filed. Where as here, the creditor asks the Court to take judicial notice of the schedules as additional evidence for its claim, that proof is supplied where the debtor's schedules are consistent with the amount set forth in the deficient claim and do not indicate that the debt is "disputed," "unliquidated" or "contingent." In re Jorczak, 314 B.R. 474, 483 (Bankr.D.Conn. 2004) (quoting In re Bohrer, 266 B.R. 200, 201 (Bankr.N.D.Cal.2001) ("statements in bankruptcy schedules are executed under penalty of perjury and when offered against a debtor are eligible for treatment as judicial admissions")). See also Leverett, 378 B.R. at 804; Relford, 323 B.R. at 676. Both eCast and B-Real have offered the Debtor's Schedule F as additional evidence of their asserted ownership of the disputed claims. I find this evidence *618 to be compelling. First, each scheduled claim is identical to the penny to the amount contained in the proofs of claim. Moreover, eCast's proof of claim #11 and both B-Real's proofs of claim identify the last four digit of an account number identified by the Debtor that matches the last four digits of the account number associated with the original credit card claims. I do, however, note that there is a discrepancy between B-Real's identification of the original creditor on claim #17 as Chase Bank USA, NA versus Debtor's identification of the claimant as Chase Coldwater Creek but given the precise identity of the amount and account number, I do not find that to be, as Debtor suggests, a duplicate Chase claim. Debtor provided no testimony to refute the obligation or any basis to conclude that the claims, arising as they do from distinct accounts, are duplicative.[11] I find Debtor's objection to be without merit. Given this proof and the absence of any evidence by the Debtor that refutes the foregoing, I will allow the claims as filed. No claims have been filed by the scheduled credit card merchant creditors and when Debtor completes her Chapter 13 plan, she will receive a discharge of these claims. To hold otherwise would result in a windfall to the Debtor who has readily acknowledged her obligation for these credit card debts. I believe the foregoing under the facts of these contested matters appropriately balances the duties of the respective parties consistent with the legislative objectives of the Code and evidentiary burdens established by the Bankruptcy Rules. It recognizes that unsecured claims have become an "economic commodity bought and sold in the open market," In re Chalakee, 385 B.R. 771, 772 (Bankr.N.D.Oka.2008), but achieves "[t]he fundamental purpose of the claims allowance process and the various rules for filing proofs of claim and allocating burdens of proof [which] is to provide a fair and inexpensive procedure for the proper determination of claims on the merits." Shank, 315 B.R. at 814. Creditors are not given leave to file proofs of claim with little or no documentation nor are debtors encouraged to object to claims they admittedly owe based on perceived evidentiary advantages. Objections under Rule 3001 thus serve a legitimate purpose and are not used to frustrate creditors or waste time while creditors are required to be mindful of the process if they wish to participate in a distribution from the estate. An Order consistent with this Opinion shall issue. ORDER AND NOW, this 2nd day of June 2008 upon consideration of the Debtor's Objections to (1) Claim # 10 and # 11 filed by eCast Settlement Corporation and (2) Claim # 17 and # 18 filed by B-Real LLC, after notice and hearing and for the reasons stated in the accompanying Opinion; It is hereby ORDERED and DECREED that the Objections are OVERRULED. Claims # 10, 11, 17, and 18 are allowed as filed.[1] NOTES [1] In recognition of the nature of the Objection, eCast subsequently attached executed copies of a Bill of Sale reflecting a transfer of unidentified Receivables from GE Money Bank to eCast on November 28, 2007. The document, which was proffered to Debtor's counsel with the hope that the Objection would be withdrawn, was not presented as part of the record. However, on May 7, 2008, eCast filed an amendment to both Claim #10 and #11 attaching the Bill of Sale as evidence of the assignment of certain unidentified receivables from, inter alia, GE Money Bank to eCast on November 28, 2007. [2] What constitutes a sufficient writing for the purposes of establishing a credit card claim has been the subject of a plethora of published bankruptcy decisions, many involving the Claimants herein. Since Debtor's documentation objection relates only to evidence of the Claimants' assignments, I need not address the differing views regarding sufficient documentation of the underlying claim. See, e.g., In re Kemmer, 315 B.R. 706, 714-15 (Bankr. E.D.Tenn.2004); In re Cluff, 313 B.R. 323, 332-36 (Bankr.D.Utah 2004). [3] B-Real has not filed any supporting documentation regarding the assignment from Chase Bank USA, N.A. to it. While eCast has filed a Bill of Sale that evidences the assignment of receivables from GE Money Bank to it, it has not supplied any evidence of a link between Lord & Taylor and Home Shopping Network and GE Money Bank and the assignment it has provided does not identify Debtor or her accounts specifically. [4] Most courts will provide the claimant an opportunity to supplement its documentary support as eCast did here. Given the volume of claims filed by entities such as eCast and B-Real, it is arguably an unnecessary burden on the claimants and courts to have the extra documentation filed when the debtor does not object to the claim. Heath, 331 B.R. at 435-36 (citing cases). However, upon request of a debtor and assuming the debtor has a good faith basis for claiming the debt is not properly owed, an assignee should be prepared to provide the additional documentation or suffer the loss of the presumption afforded its claim. For example, in Heath, the Court explained that the burden was shifted when a document request made prior to the objection being lodged was ignored by the creditor or demonstrated a basis to object to the claim. [5] Debtor does not object on the grounds that the Bill of Sale fails to identify the Debtor or her accounts specifically. In In re Tran, 369 B.R. 312 (S.D.Tex.2007), the district court affirmed the bankruptcy court's conclusion that supplying the general assignment agreements between eCast and three banks from which they contend the debtor's credit cards were issued was insufficient where the agreements did not specifically identify the debtor of her respective accounts. On the other hand, the Hughes Court found this level of documentation unnecessary and burdensome on creditors without any benefit conferred on the debtor. Where, however, duplicate claims are filed or where there is a material discrepancy in the amount scheduled by a debtor and the claim filed by the creditor, additional evidence may be required. Hughes, 313 B.R. at 212. This issue is not presented here. [6] The one case I have identified that so holds was vacated on reconsideration when the bankruptcy judge accepted the argument made by Claimants here that Rule 3001(e) dictates that evidence of the assignment not be required. Before so concluding, the Court in In re Relford, 323 B.R. 669, 675 (Bankr. S.D.Ind.2004), refused to accord prima facie validity to a proof of claim supported by a Bill of Sale that did not link the claimant with the original creditor. The Bill of Sale merely documented eCast's acquisition of the receivables from its seller (GE Capital) but not the assignment from the original credit card merchant (i.e., J.C. Penney to GE Capital). [7] Indeed it may be that GE Money Bank was the original issuer of the Lord & Taylor and Home Shopping Network credit cards, a possibility that B-Real's attorneys could have readily established. However, from the many cases I have now read, it appears that the Claimants' approach is to provide bare bones information with the filed proof of claim. The level of effort made supplementing is somewhat uneven. It is hard to discern whether it is actually burdensome to document these claims or claims purchasers just cannot be bothered. While their "account summaries'' intone the burden of producing voluminous documentation on these many and small claims, they appear to be able to come up with the "evidence" when pressed to their proof. Balancing the debtor's right to be able to verify that the claimant is the owner and the claimant's right not to be harassed with pro forma documentation objections that have no underlying basis is the objective of this and related contested matters. [8] Rule 3001(e) states in pertinent part: (1) Transfer of Claim Other Than for Security Before Proof Filed. If a claim has been transferred other than for security before proof of claim has been filed, the proof of claim may be filed only by the transferee or an indenture trustee. (2) Transfer of Claim Other Than for security After Proof Filed. If a claim other than [exceptions not applicable] has been transferred other than for security after the proof of claim has been filed, evidence of the transfer shall be filed by the transferee.... [9] Both cite Resurgent Capital Servs. v. Burnett (In re Burnett), 306 B.R. 313, 318-19 (9th Cir. BAP 2004) as support. However, that case held solely that there is no requirement to disclose the consideration for the transfer, an issue distinct from ownership of the claim. Indeed in that case, the creditor had filed sufficient documentation of the transfer. Accord, In re Kendall, 380 B.R. 37, 46 n. 1 (Bankr.N.D.Okla.2007). eCast cites to the decision of my colleague Chief Judge Stephen Raslavich in In re Peck, 2008 WL 416927, at *4 (Bankr.E.D.Pa. Feb. 13, 2008), for support for its position that no evidence of an assignment is required to present a prima facie valid claim. However, in Peck, the Court found other evidence that the claim was assigned to eCast. Specifically, the original claim was filed as an agent of FIA with a statement that its interest might change if FIA charged off the account which it subsequently did. The Court took note of eCast's Transfer of Claim other than for Security (the "Transfer") to itself which identified FIA as the transferor and eCast as transferee as well as the amount of the claim, the last four digits of the account number and the date that the original claim was filed. Other than the debtor's listing the claim as disputed, the information was consistent with the debtor's Schedule F. After being served with the Transfer, FIA did not object and eCast amended its claim as assignee. The Court found that the debtor's objection was a "thinly disguised challenge to the claim assignment" which he had no standing to assert. Id. at *5. [10] Some courts look to the debtor's schedules and conclude that if the claim is scheduled by the debtor as undisputed and in an amount equal to or greater than the amount of the proof of claim, little if any documentation is necessary, and the claim is prima facie valid. In re Leverett, 378 B.R. 793, 801 (Bankr. E.D.Tex.2007); In re Moreno, 341 B.R. 813, 818 (Bankr.M.D.Fla.2006); In re Burkett, 329 B.R. 820, 829 (Bankr.S.D.Ohio 2005) . While I concur with the ultimate claim allowance decision as discussed below, I believe the proper application of the evidentiary burdens requires that I not look outside the proof of claim to determine its prima facie validity. However, once the burden shifts, the schedules are additional evidence that may corroborate the claim without the necessity of additional documentation. See p. 618 infra. [11] I take judicial notice that Coldwater Creek is a woman's apparel store which participates in a preferred visa credit card program provided by Chase, www.coldwatercreek.com/CustServ/Chaselnfo.aspx. [1] Confirmation of Debtor's Chapter 13 plan has been adjourned until June 5, 2008 pending

Cite as 2015 Ark. 456 SUPREME COURT OF ARKANSAS No. CR-13-415 Opinion Delivered December 3, 2015 RODNEY STEVEN FLETCHER PETITIONER PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL V. COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [FULTON COUNTY CIRCUIT COURT, STATE OF ARKANSAS NO. 25CR-10-77] RESPONDENT PETITION DENIED. PER CURIAM In 2012, petitioner Rodney Fletcher was found guilty by a jury of commercial burglary, theft of property, and fraud. Fletcher was sentenced as a habitual offender to an aggregate term of 1,200 months’ imprisonment, and a fine of $35,000 was imposed. The Arkansas Court of Appeals affirmed. Fletcher v. State, 2014 Ark. App. 50. Subsequently, Fletcher timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012). A hearing was held on the petition, and the trial court denied the relief sought. We affirmed the order. Fletcher v. State, 2015 Ark. 106, 458 S.W.3d 234 (per curiam). Now before us is Fletcher’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61.  Cite as 2015 Ark. 456 We need not discuss the scope of a coram-nobis proceeding because Fletcher does not argue in his petition that there is any ground on which the writ should, or could, issue in his case. When a petitioner does not so much as raise a claim for relief, there is no basis on which this court can grant leave to proceed in the trial court. It is axiomatic that a petitioner must state a basis for the writ supported by specific facts that demonstrate that there is merit to the claim raised.1 See State v. Larimore, 341 Ark. 397, 407, 17 S.W.3d 87, 93 (2000). Petition denied. 1 After the State filed its response to Fletcher’s coram-nobis petition, he tendered a response to the State’s response to which he appended a copy of a coram-nobis petition that he had filed in the trial court on April 27, 2015. We do not consider that trial-court petition as an attachment to the petition filed here because it was not appended to the original petition, and there is no provision in the prevailing rules of procedure to file a response to a response. 2 

44 F.3d 558 148 L.R.R.M. (BNA) 2199, 129 Lab.Cas. P 11,253 MIRON CONSTRUCTION CO., INC., Plaintiff-Appellant,v.INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139,Defendant-Appellee, Cross-Appellee,andWisconsin Laborers District Council, Defendant-Appellee,Cross-Appellant. Nos. 94-1546, 94-1646. United States Court of Appeals,Seventh Circuit. Argued Sept. 20, 1994.Decided Jan. 6, 1995. Paul D. Lawent, Association of General Contractors of Wisconsin, Madison, WI, for Miron Const. Co., Inc. Hugh B. Arnold, Arnold & Kadjan, Chicago, IL, Warren Kaston (argued), International Union of Operating Engineers, Pewaukee, WI, for Intern. Union of Operating Engineers, Local 139 in No. 94-1546. John J. Toomey (argued), Hugh B. Arnold, Steven F. McDowell, Arnold & Kadjan, Chicago, IL, Warren Kaston, Intern. Union of Operating Engineers, Pewaukee, WI, for Wisconsin Laborers District Council, in No. 94-1546. Warren Kaston (argued), International Union of Operating Engineers, Pewaukee, WI, for International Union of Operating Engineers, Local 139, in No. 94-1646. John J. Toomey (argued), Hugh B. Arnold, Steven F. McDowell, Arnold & Kadjan, Chicago, IL, for Wisconsin Laborers Dist. Council, in No. 94-1646. Before ESCHBACH, RIPPLE and ROVNER, Circuit Judges. ESCHBACH, Circuit Judge. 1 Miron Construction Company ("Miron") filed a complaint under Section 301 of the National Labor Relations Act, 29 U.S.C. Sec. 185, requesting the district court to compel tripartite arbitration of two sets of grievances brought against it by the International Union of Operating Engineers, Local 139 ("Operators") and the Wisconsin Laborers District Council ("Laborers"). The Operators filed a counterclaim asking the district court to compel bipartite arbitration with Miron. The Laborers, in support of Miron's motion for tripartite arbitration, filed a motion to intervene in the Operators' counterclaim and to dismiss it for want of a necessary party. The district court ordered Miron and the Operators to submit to bipartite arbitration and denied Miron's motion for tripartite arbitration and the Laborers' motions to dismiss and to intervene in the counterclaim.1 We affirm. I. Background 2 Miron is a general construction contractor and a member of a multi-employer bargaining association, the Wisconsin Chapter of Associated General Contractors, Inc., which negotiates collective bargaining agreements with a variety of construction trade unions on behalf of the member employers. By virtue of its membership in this organization, Miron was signatory to a collective bargaining agreement with the Operators ("Area II Agreement"), which granted the Operators the exclusive right to operate forklift trucks in construction jobsites in most of Wisconsin.2 Miron agreed to subcontract all work covered by the terms of the Area II Agreement to signatories to the Agreement.3 Should any unresolvable grievances, disputes or complaints arise under the terms of the Agreement, Miron and the Operators agreed to submit all such disputes to final and binding bipartite arbitration.4 The Agreement excepted no dispute from this mandatory bipartite arbitration procedure.5 3 Miron had bound itself to a similar collective bargaining agreement with the Laborers ("Laborers Collective Bargaining Agreement"), which covers the operation of mason-tending forklifts.6 Like the Area II Agreement, the Laborers' Agreement requires all work covered under the Agreement to be subcontracted to a signatory to the Agreement.7 Although it is obvious that the Laborers' Collective Bargaining Agreement conflicts with the Area II Agreement over the assignment of mason-tending forklift work, this conflict, unfortunately, is neither uncommon in the industry, nor unknown to this court.8 4 In December 1991, Miron was awarded the contract to construct an addition to the American Club in Kohler, Wisconsin. Miron subcontracted the masonry work to Bill Dentinger, Inc. Dentinger was a signatory to the Laborers' Collective Bargaining Agreement, but, according to the Operators, was not a signatory to the Area II Agreement.9 Pursuant to its contract with the Laborers, Dentinger assigned members of that union to man a masonry forklift used to supply the bricklayer employees with material. 5 Claiming mason-tending forklift work was covered under the Area II Agreement, the Operators filed a grievance on March 19, 1992 seeking pay in lieu of work for violation of the union signatory subcontracting clause and requested bipartite arbitration of the dispute. The Laborers filed a similar grievance under its Agreement to determine the work was properly assigned to its workers and for pay in lieu of work in the event it was reassigned. Miron refused to submit its dispute with the Operators to bipartite arbitration on the ground that the dispute was jurisdictional in nature. On June 4, 1992, Miron filed a complaint seeking tripartite arbitration among all three parties. 6 In the meantime, the Laborers threatened to strike if the work was reassigned. On June 12, 1992, Miron filed a Sec. 8(b)(4)(ii)(D) unfair labor practice charge against the Laborers with the National Labor Relations Board ("NLRB").10 These two actions formed the necessary predicate for Miron and the Laborers to petition the NLRB for a Sec. 10(k) hearing.11 The NLRB held a Sec. 10(k) hearing on August 18, 1992 and awarded the work at the Kohler jobsite to the Laborers.12 Wisconsin Laborers District Council, 309 N.L.R.B. 756 (1992). 7 During this same summer, the aforementioned set of events repeated themselves at a different jobsite. Miron was awarded the contract to construct the Kettle Moraine Correctional Institute in Sheboygan County, Wisconsin. Miron subcontracted the masonry work to Par Construction Company. Par was not a signatory to the Area II Agreement and employed members of the Laborers to operate the mason-tending forklifts. The Operators again filed a grievance seeking pay in lieu of work. The Laborers promptly responded with its own grievance. Miron again refused to submit to bipartite arbitration with the Operators and, on January 19, 1993, amended its complaint filed in the district court on June 4, 1992 to include the two new grievances. Miron also filed for an NLRB determination of this second dispute and the parties are still awaiting the Board's ruling. In February 1994, the district court granted summary judgment in favor of the Operators on its counterclaim and against Miron's complaint and ordered Miron to submit to bipartite arbitration with the Operators. The district court also denied the Laborers' motion to intervene and motion to dismiss the Operators' counterclaim for want of a necessary party because it failed to show how it would be prejudiced by such arbitration. II. Analysis 8 Relying primarily on common law and policy justifications from other circuits, Miron and the Laborers argue on appeal that the jurisdictional nature of their dispute with the Operators authorizes this court to order the parties to submit to tripartite arbitration. Alternatively, they contend that the Operators' demand for bipartite arbitration for a violation of the subcontracting clause should be dismissed because it is in direct conflict with the NLRB's award of the work to the Laborers. Finally, to the extent that this circuit's precedent to the contrary on both of these arguments applies and cannot be distinguished, Miron and the Laborers invite this court to overrule such precedent. 9 We review the district court's grant of summary judgment de novo. Colip v. Clare, 26 F.3d 712, 714 (7th Cir.1994); International Union of Operating Eng'rs, Local 103 v. Indiana Constr. Corp., 910 F.2d 450, 452 (7th Cir.1990). All facts and reasonable inferences to be drawn therefrom are viewed in the light most favorable to the non-movant party. International Union of Operating Eng'rs v. Associated Gen. Contractors, 845 F.2d 704, 705 (7th Cir.1988). The Operators will prevail only if there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Indiana Constr., 910 F.2d at 452; Fed.R.Civ.P. 56(c). A. 10 All parties to this case have offered to submit to some form of arbitration to resolve their respective disputes. However, this court will not rely on that general willingness to arbitrate as authority for ordering the three parties to come together and arbitrate any dispute which has arisen. "[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting Steelworkers v. Warrior Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)). The contract determines which disputes will be arbitrated as well as the method of arbitration. We show "strong deference to the grievance procedures established by the parties to a collective bargaining agreement." Laborers Int'l Union, Local 309 v. W.W. Bennett Constr. Co., 686 F.2d 1267, 1271 (7th Cir.1982). Finally, "[t]he duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." AT & T Technologies, Inc., 475 U.S. at 649, 106 S.Ct. at 1419 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912-13, 11 L.Ed.2d 898 (1964)). Our task, therefore, is to examine the Area II Agreement and determine whether the dispute between Miron and the Operators is subject to bipartite arbitration, or whether the jurisdictional character of the underlying dispute requires Miron and the Operators to join with the Laborers and submit to tripartite arbitration. 11 While many collective bargaining agreements do exclude jurisdictional disputes from the normal arbitration procedures,13 the Area II Agreement in the case at bar required bipartite arbitration for all disputes between Miron and the Operators. Unlike past versions of the Agreement, there was no requirement that the two parties submit jurisdictional disputes to tripartite arbitration. Thus, the collective bargaining agreement provides no authority for us to order tripartite arbitration among the parties. 12 Miron and the Laborers insist that we should follow the examples of other cases which have considered tripartite arbitration. However these cases are distinguished by the ability of the parties to point to a contractual mechanism authorizing tripartite arbitration. See, e.g., Alberici-Eby, 992 F.2d at 730; Local 416, Sheet Metal Workers Int'l Assoc. v. Helgesteel Corp., 507 F.2d 1053, 1056-57 (7th Cir.1974); Local 513, Int'l Union of Operating Eng'rs v. J.S. Alberici Construction Co., 936 F.2d 390, 391 (8th Cir.1991) (in each case, the union had bound itself in the collective bargaining agreement to submit jurisdictional disputes to the multiparty arbitration procedure adopted by the AFL-CIO). Although some courts have considered tripartite arbitration without a contractual mechanism, these cases have been carefully limited to classic one-on-one jurisdictional disputes where each union explicitly claims the work is covered under the terms of its agreement. The only claimed violation of each union's respective collective bargaining agreement was the work jurisdiction provision. See United States Postal Serv. v. National Rural Letter Carriers' Ass'n, 959 F.2d 283, 286 (D.C.Cir.1992); Retail, Wholesale and Dep't Store Union, Local 390 v. Kroger Co., 927 F.2d 275, 277 (6th Cir.1991); United States Postal Serv. v. American Postal Workers Union, 893 F.2d 1117, 1120 (9th Cir.1990); Local No. 850, Int'l Ass'n of Machinists & Aerospace Workers v. T.I.M.E.-DC, Inc., 705 F.2d 1275, 1277-78 (10th Cir.1983); W.W. Bennett Constr. Co., 686 F.2d at 1274; Columbia Broadcasting System, Inc. v. American Recording & Broadcasting Ass'n, 414 F.2d 1326, 1328-29 (2d Cir.1969); International Union of Operating Eng'rs v. Allied Constr. Employers, No. 81-C-864, slip op. at 3 (E.D.Wis. April 18, 1983). Such disputes are thus identical to Sec. 10(k) proceedings before the NLRB except that neither party has engaged in a strike nor threatened to strike to force the employer to reassign the job. Each union has employed the grievance mechanisms in its collective bargaining agreements. Tripartite arbitration, therefore, may be appropriate since we would not want to force unions to engage in coercive behavior in order to get the multiparty forum that a Sec. 10(k) hearing provides to resolve the work assignment issue. National labor policy strongly favors the voluntary private arbitration of disputes where possible. International Union of Operating Eng'rs, Local 150, 755 F.2d at 86. 13 However, no case has ordered the parties to submit to tripartite arbitration to resolve two distinct contractual grievances arising from the same set of facts. The instant case thus lacks the "requisite contractual nexus" to order tripartite arbitration since the parties have not agreed to arbitrate the merits of the same dispute. National Rural Letter Carriers' Ass'n, 959 F.2d at 287. Miron and the Laborers agreed to arbitrate the question of who should be assigned the work, while the Operators agreed to arbitrate the subcontracting clause dispute. 14 Furthermore, our decision in Hutter Constr. Co. v. International Union of Operating Eng'rs, Local 139, 862 F.2d 641, 645 (7th Cir.1988), forecloses any possibility that the subcontracting dispute and the jurisdictional dispute could be classified as the same contractual grievance. Not only are the facts in Hutter almost identical to the case at bar, but the parties are almost identical as well. Hutter Construction Company ("Hutter") was a signatory to the Area II Agreement with the Operators. Hutter subcontracted certain masonry work to Bill Dentinger, Inc., who, as in this case, was a signatory to the Laborers' Collective Bargaining Agreement, but not to the Area II Agreement. The Operators filed a grievance against Hutter for violating the subcontracting clause. Unlike Miron, Hutter did submit to bipartite arbitration. The arbitrator ruled the dispute was contractual and ordered Hutter to provide backpay to the Operators in lieu of work. The Laborers staged a work stoppage and was awarded the forklift work on jurisdictional grounds at the resulting Sec. 10(k) NLRB proceeding. In the meantime, Hutter refused to comply with the arbitrator's award and brought an action to have the award vacated on the ground that the dispute was jurisdictional, and thus subject to tripartite rather than bipartite arbitration. At the time, the Area II Agreement called for tripartite arbitration in resolving jurisdictional disputes. We held that the contractual dispute could be separated from the jurisdictional dispute. Two considerations prompted this result: First, since the breach arose immediately upon subcontracting to a non-signatory, it was irrelevant which union eventually was assigned the work; Second, characterizing the dispute as jurisdictional would unfairly avoid the agreed upon penalty for breach of the subcontracting clause. Id. at 644-45. The fact that Hutter would thus be obligated to pay two unions for the identical job was admittedly harsh, but one "solely attributable to Hutter's decision to enter into conflicting bargaining agreements." Id. at 645 n. 16. 15 Miron and the Laborers urge us to overrule Hutter and adopt the reasoning of the Eighth Circuit in Local 513, Int'l Union of Operating Eng'rs v. J.S. Alberici Constr. Co., 936 F.2d 390, 391 (8th Cir.1991), where the jurisdictional and subcontracting disputes were found "so intertwined as to be one conflict." Id., at 392. We decline to do this. In Alberici, the subcontracting dispute was nothing more than a cover for the jurisdictional dispute. The court emphasized that "six other nonsignatory subcontractors have performed work on the project without objection by Local 513." Id. Moreover, the court found that Local 513's initial complaints made to Alberici were confined exclusively to the work assignment issue. Only after those complaints "proved unavailing," did the union invoke the subcontracting clause. Id., at 390-91. By contrast, in the instant case, the Operators have consistently enforced the subcontracting clause in the Area II Agreement, and the union raised the issue of the clause's violation in its first grievance filed with Miron. 16 Thus, we conclude that the district court's decision to order Miron and the Operators to submit to bipartite arbitration was well-grounded in the terms of the Area II Agreement. The subcontracting dispute between Miron and the Operators is separable from any jurisdictional dispute which might exist between the Operators and the Laborers. B. 17 Miron and the Laborers contend that even if bipartite arbitration is proper under the Area II Agreement, the NLRB's decision to award the American Club work to the Laborers in the Sec. 10(k) hearing precludes the Operators from filing a grievance under the subcontracting clause. This assumes that the arbitrator's award will be inconsistent with the NLRB decision. When an arbitration award is in conflict with the decision of the NLRB in a Sec. 10(k) proceeding, the NLRB decision takes precedence. Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); Hutter, 862 F.2d at 645. 18 This court in Hutter held that an arbitrator's award of backpay to one union is not inconsistent with the NLRB's decision to award the work to a different union. Id., 862 F.2d at 645. Miron and the Laborers attempt to distinguish this decision on procedural grounds. In Hutter, the arbitrator's award preceded the Sec. 10(k) hearing whereas here the NLRB decision has come first. It is not clear why this distinction should alter our conclusion. The Laborers offer two possibilities which are easily dismissed. The first suggested distinction is that the NLRB determined that the Operators' grievance over the subcontracting clause was not meritorious and was really a claim for work. This, they suggest, should serve to bar any further adjudication of the grievance. However, the NLRB made no such factual finding. The Board relied solely on Laborers Local 731 (Slattery Assoc.), 298 N.L.R.B. No. 111, 1990 NLRB LEXIS 615 (1990) for its legal conclusion that a grievance seeking payment in lieu of work is sufficient to constitute a "claim for work" and place the dispute within the NLRB's jurisdiction. Wisconsin Laborers' District Council, 309 N.L.R.B. 756 (1992).14 This standard is designed to meet the Board's decidedly low threshold requirement that it find reasonable cause to believe that Sec. 8(b)(4)(D) has been violated. See Slattery Assoc., 1990 NLRB LEXIS 615, at * 9-10. Thus, even the factual underpinnings of this legal conclusion do not bind us in this proceeding. The second suggested distinction offered by the Laborers is that Hutter merely stands for the proposition that the arbitrator's award went unopposed for ninety days and therefore had to be upheld by the court as a matter of law. This is a bold mischaracterization considering that Hutter never once mentioned any mandatory period within which to oppose the arbitrator's award. Hutter's two main holdings, that the subcontracting grievance was separable from the jurisdictional claim, and that the arbitrator's and NLRB's awards did not conflict, are the only rationales offered. Id., 862 F.2d at 644-45. We therefore find neither of these proposed distinctions persuasive. Regardless of the order of the proceedings, the arbitrator will continue to consider only the legitimacy of the Operators' contractual claim, while the NLRB will consider the legitimacy of each parties' overall claims to the work, including a variety of contractual and non-contractual factors. See Hutter, 862 F.2d at 645. Thus, Hutter's determination that an arbitrator's award of backpay to one union does not conflict with the award of work to another union in the Sec. 10(k) proceeding is not distinguishable. 19 In the alternative, Miron and the Laborers invite us to overrule or harmonize Hutter with other cases. Their argument is that only the union who has the superior claim to the work is entitled to compensation. Since the Laborers were awarded the work, an arbitrator's decision to award pay in lieu of the work to another union would effectively undermine the Sec. 10(k) decision. They ask us to adopt the reasoning of the Third Circuit in Local 30, United Slate, Tile & Composition Roofers v. NLRB, 1 F.3d 1419 (3d Cir.1993), where continued maintenance of a suit to enforce an arbitration award contrary to a Sec. 10(k) result was held to be an unfair labor practice. Id. at 1428. We decline this invitation for two reasons. 20 First, the NLRB itself agrees that its decision to award work to one union does not preclude the losing union from pursuing its contractual remedies against the general contractor.15 See Local Union 33 (Blount Brothers), 289 N.L.R.B. 1482 (1988). The Board in Slattery Assoc., 298 N.L.R.B. No. 111, 1990 NLRB LEXIS 615 (1990), emphasized this point when it ruled that a subcontracting grievance constituted a demand for work for purposes of determining NLRB jurisdiction: 21 Blount makes it clear that a 10(k) award does not block a union's access to 22 its contractual remedies for breach of a union signatory subcontracting clause. Subsequent to the instant 10(k) proceeding, Iron Workers is free to continue to seek redress under its contract with Ambridge for alleged breach of contract, if Iron Workers limits its conduct to pursuing its grievance against Ambridge. Under Blount, such conduct is not coercive, and any charge filed with the Board concerning that conduct will be dismissed. 23 Slattery Assoc., 1990 NLRB LEXIS 615 at * 10-11. The right to pursue contractual remedies also includes the right to ask for monetary damages, including pay in lieu of work. Blount Brothers, 289 N.L.R.B. 1482 (1988).16 This comports with the fundamental purposes underlying a Sec. 10(k) proceeding. In 1947, Congress responded to the labor unrest caused by jurisdictional strikes by establishing the Sec. 10(k) proceeding to provide a quick and final resolution of who was entitled to perform the work. International Tel. & Tel. Corp. v. Local 134, Int'l Bhd. of Elec. Workers, 419 U.S. 428, 430, 95 S.Ct. 600, 603, 42 L.Ed.2d 558 (1975). These provisions were specifically designed "to protect employers from being 'the helpless victims of quarrels that do not concern them at all.' " NLRB v. Radio & Television Broadcast Eng'rs Union, Local 1212, 364 U.S. 573, 580-81, 81 S.Ct. 330, 335, 5 L.Ed.2d 302 (1961). However, a Sec. 10(k) award is not designed to serve as "a safe haven for those who breach union signatory subcontracting clauses." Slattery Assoc., 1990 NLRB LEXIS 615 at * 11. A breach of the subcontracting clause results in a dispute between the general contractor and one union only. The identity of the employees who ultimately perform the work is irrelevant to the union's cause of action. See Hutter, 862 F.2d at 644. As such, it does not fit the classic model of a jurisdictional dispute "between two or more groups of employees over which is entitled to do certain work." Radio Eng'rs, 364 U.S. at 579, 81 S.Ct. at 334. Moreover, it is a dispute which a general contractor is not "helpless" to prevent. Therefore, it is entirely consistent with the purposes and practices of the NLRB to allow the losing union in a Sec. 10(k) hearing to pursue its contractual remedies against the general contractor. 24 Second, a union's mere pursuit of its contractual remedies against the general contractor, absent a demand that the subcontractor reassign the work, does not amount to coercion in contravention of the Sec. 10(k) award. Since the subcontractor has complete control over which union actually performs the work, maintenance of an action against the general contractor cannot be viewed as a veiled attempt to force a reassignment of the work. The element of coercion is what distinguishes the instant case from Local 30, United Slate, Tile & Composition Roofers v. NLRB, 1 F.3d 1419 (3d Cir.1993). In Local 30, there was no subcontractor. The employer, Gundle Construction, was responsible both for the work assignment and for the breach of certain terms of the union's collective bargaining agreement. Thus, any action taken against Gundle, even for an unrelated breach of contract, could be interpreted as an attempt to coerce Gundle to reassign the work in contravention of the Sec. 10(k) award. The NLRB ruling, upheld by the court in Local 30, thus distinguished this case from the dispute over a violation of the subcontracting clause in Blount. See Local 30 (Gundle Lining Constr. Corp.), 307 N.L.R.B. 1429, 1992 NLRB LEXIS 900 (1992), enforced, 1 F.3d 1419 (3d Cir.1993). In Blount Brothers, the general contractor against whom the action was brought had no responsibility for the assignment of the work, whereas "Gundle itself is the employer of the employees to whom the work was awarded. The court action is therefore a collateral attack on the award itself." Gundle Lining Constr. Corp., 1992 NLRB LEXIS 900 at * 6 n. 4. 25 This distinction between an arbitration award against a general contractor and an arbitration award against the employer responsible for work assignment was recognized by the First Circuit in J.F. White Contracting Co. v. Local 103 Int'l Bhd. of Elec. Workers, 890 F.2d 528, 530 (1st Cir.1989). Circuit Judge (now Justice) Breyer, writing for the court, agreed that Hutter' § finding of no conflict made sense on its facts: "We can understand how a court might have found no significant conflict on these facts, for the company could obey the arbitrators' award without interfering with the subcontractor's duty to assign forklifting work to the Laborers." J.F. White Contracting Co., 890 F.2d at 530. However, in the case before them, a conflict did exist since the employer was subject to completely conflicting awards. Id., 890 F.2d at 529. 26 Thus, we conclude that the Sec. 10(k) award does not preclude the Operators from pursuing its subcontracting clause grievance in bipartite arbitration. An arbitrator's award of backpay to one union in a subcontracting dispute is not inconsistent with the NLRB's prior award of the work to a different union in a Sec. 10(k) proceeding. Hutter controls this case despite the difference in the sequence of the collateral proceedings. The NLRB itself recognizes that the losing party in a Sec. 10(k) award may continue to pursue its contractual remedies against the general contractor. This is not coercive behavior in contravention of the Sec. 10(k) award because it is aimed at Miron rather than the subcontractor who is ultimately responsible for assigning the work. Since the Operators only seek relief under the subcontracting clause, Miron is not incapable of complying with the orders of both proceedings. III. 27 For all of the reasons given above, we AFFIRM the district court's decision ordering Miron and the Operators to submit to bipartite arbitration to resolve the Operators' grievance. 1 The denial of the Laborers' petition to intervene and of its motion to dismiss the Operators' counterclaim for want of a necessary party provided the basis of appeal No. 94-1646, which was consolidated with No. 94-1546 for purposes of this decision. However, the Laborers completely failed to brief these issues on appeal, instead limiting its argument to the scope of Miron's appeal. Apparently, it believes that resolution of Miron's appeal will resolve its own appeal as well. Therefore, we need not consider this second subject of appeal. See Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 230 (7th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 1641, 128 L.Ed.2d 362 (1994) 2 According to section 7.8 of the Area II Agreement: The operation of elevator or forklift trucks on construction jobsites (excluding warehouse and storage yards as per Teamster Operating Engineers International Agreement) is exclusively the craft work of the Operating Engineers, and assignment of said operation shall be made to an Operating Engineer, dispatched and covered by the terms and conditions of this Agreement. 3 Section 4.1 of the Area II Agreement provided, in pertinent part: The Contractor agrees that, when subletting or contracting out work covered by this Agreement ... he will sublet or contract out such work only to a subcontractor who has signed, or is otherwise bound by, a written labor agreement entered into with the Union. 4 Section 8.2 of the Area II Agreement provided, in pertinent part: "All grievances, disputes or complaints of violations of any provisions of this Agreement shall be submitted to final and binding arbitration by an arbitrator from the Federal Mediation and Conciliation Service." 5 Prior to 1987, the Area II agreement mandated tripartite arbitration for jurisdictional disputes. This exception was removed under the 1987 Amendments to the Agreement and was not reintroduced when the Agreement was again amended in 1990 6 See Exhibit A, Jurisdictional Claims, of the Laborers' Collective Bargaining Agreement 7 Section 9.10.1 of the Laborers' Collective Bargaining Agreement provided that It is agreed that any work sublet and to be done at the site of the construction alteration, painting or repair of a building, structure, or other work, and when a portion of said work to be sublet is under jurisdiction of this Agreement, the work shall be sublet to a subcontractor signatory to this Agreement. 8 We have encountered the dispute between the Laborers and the Operators over the assignment of forklift work on a number of occasions. See International Union of Operating Eng'rs, Local 103 v. Indiana Constr. Corp., 13 F.3d 253 (7th Cir.1994); Alberici-Eby v. Local 520, Int'l Union of Operating Eng'rs, 992 F.2d 727 (7th Cir.1993); International Union of Operating Eng'rs, Local 103 v. Indiana Constr. Corp., 910 F.2d 450 (7th Cir.1990); Hutter Constr. Co. v. International Union of Operating Eng'rs, Local 139, 862 F.2d 641 (7th Cir.1988); International Union of Operating Eng'rs, Local 150 v. N.L.R.B., 755 F.2d 78 (7th Cir.1985) 9 There appears to be some dispute as to whether Dentinger is a signatory to the Area II Agreement. This dispute is not relevant to the question of whether bipartite arbitration is appropriate. Rather, it is precisely the type of issue which can be resolved before the arbitrator 10 Under Sec. 8(b)(4)(ii)(D) of the National Labor Relations Act, labor organizations are prohibited from threatening to strike in order to force an employer to assign work to members of one union rather than members of another union 11 A Sec. 10(k) proceeding is a hearing conducted by the NLRB subsequent to a Sec. 8(b)(4)(ii)(D) claim to determine which union has the superior claim to "work in dispute." Before the NLRB may proceed with a determination of the dispute, it must be satisfied that there is reasonable cause to believe that Sec. (8)(b)(4)(ii)(D) has been violated and work is actually "in dispute," and that the parties have not agreed on a method for a voluntary adjustment of the dispute 12 According to the Board, several factors are relevant to the NLRB's determination of the dispute, including the collective bargaining agreements, company preference and practice, area practice, relative skills, and economy and efficiency of operations. See Wisconsin Laborers District Council, 309 N.L.R.B. 756 (1992). "The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors involved in a particular case." Machinists Lodge 1743 (J.A. Jones Construction Co.), 135 N.L.R.B. 1402 (1962) 13 The collective bargaining agreements in Alberici-Eby, 992 F.2d at 729; Indiana Constr., 910 F.2d at 451; Hutter Constr., 862 F.2d at 642; and Operating Eng'rs, Local 150, 755 F.2d at 79 all expressly excluded jurisdictional disputes from the bipartite arbitration procedure 14 The Laborers rely on the Sec. 10(k) hearing's concurrence for its allegation that the NLRB made a finding that the Operators' claim was not arguably meritorious. Such reliance is obviously misplaced 15 In fact, the NLRB summarily dismissed charges that the Operators were engaging in an unfair labor practice by maintaining its grievance after the Sec. 10(k) award. See letter from Joseph A. Szabo, Regional Director, NLRB re cases 30-CC-521 and 30-D-154 dated Dec. 15, 1993. (Operators' supplemental appendix at A-21). An appeal of this decision is pending. See letter from Yvonne T. Dixon, Director, Office of Appeals, NLRB re cases 30-CC-521 and 30-CD-154 dated June 16, 1994. (Laborers' supplemental appendix at A-1) 16 Iron Workers Local 433 (Swinerton & Walberg Co.), 308 N.L.R.B. No. 105, 1992 NLRB LEXIS 1060 (1992), contrary to the Laborers' assertions, supports the Board's position that the losing union in a Sec. 10(k) proceeding may pursue a subcontracting clause grievance against the general contractor. In Swinerton & Walberg, the Board found that Local 433 alleged no violation of the subcontracting clause in its grievance. Furthermore, its petition to compel arbitration did not mention the subcontracting clause. Id., 1992 NLRB LEXIS 1060 at * 3-4. According to the district court, "[Local] 433 contorts the history of this case in its attempt to transform it into a subcontracting clause dispute." Id., 1992 NLRB LEXIS 1060 at * 4 n. 2. The Board found that "S & W, the general contractor, assigns the disputed work and is the employer against whom Iron Workers Local 433 filed a grievance." Id., 1992 NLRB LEXIS 1060 at 4. Thus, the Board properly held that the maintenance of an action to compel arbitration was in contravention of its Sec. 10(k) award. It cited Blount Brothers with approval, but found it inapplicable on these facts

841 F.2d 1128 Department of Navy, Marine Corps Exchange, Pearl Harborv.Federal Labor Relations Authority NOS. 87-7220, 87-7276 United States Court of Appeals,Ninth Circuit. FEB 26, 1988 1 Appeal From: F.L.R.A. 2 REMANDED.

38 B.R. 818 (1984) In re MECHANICAL UNLIMITED, INC., Debtor. Bankruptcy No. 83-00542. United States Bankruptcy Court, D. Hawaii. March 12, 1984. Gregory Conlan, Honolulu, Hawaii, for debtor. Mervyn W. Lee, Honolulu, Hawaii, for creditor. FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER LIFTING STAY JON J. CHINEN, Bankruptcy Judge. On January 10, 1984, a hearing was held on the motion of L.R.K. Holdings, Inc., hereafter "LRK", to vacate the automatic stay to enable enforcement of a Writ of Possession against Mechanical Unlimited, Inc., hereafter "Debtor". Testimony was received at the hearing from Lionel Ribellia, the vice president and secretary of Debtor, and Lauren Peiterson of 1st Stop *819 Realty, the agent for LRK. At the end of the hearing, the Court requested further memoranda on the questions of whether the landlord by its actions had waived its right to enforce the Writ of Possession issued by the District Court of the First Circuit, State of Hawaii, on August 12, 1983; whether LRK was estopped from enforcing the Writ of Possession; and whether there was a new lease between the parties. Additional memoranda were filed by LRK and Debtor. Based upon the evidence adduced, memoranda filed, the record herein and arguments of counsel, Mervyn W. Lee for LRK and Gregory Conlan for Debtor, the Court enters the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Debtor and LRK entered into a lease for the subject premises on May 5, 1981, said premises constituting Debtor's place of business. Debtor has continued uninterrupted occupancy of the premises since May 1981. On August 12, 1983, because of Debtor's failure to pay rent according to the terms of the lease, LRK obtained a Writ of Possession pursuant to Chapter 666 of the Hawaii Revised Statute (hereafter "HRS"), from the District Court of the First Circuit. LRK had not executed the Writ by service or removal of Debtor from the premises when Debtor filed its Chapter 11 bankruptcy petition on November 8, 1983. After issuance of the Writ of Possession on August 12, 1983, 1st Stop Realty, LRK's property management agent, permitted Debtor to remain on the premises because of Debtor's promise to pay the arrearages and to remain current on its rent. Relying on such promise, 1st Stop Realty billed Debtor for rent in the amount specified in the May 1981 lease and Debtor made certain payments in response to those invoices. However, Debtor failed to keep its promise to pay the arrearages and instead filed its Petition in bankruptcy. On several occasions, Mr. Peiterson of 1st Stop Realty requested Debtor to vacate the premises. However, when he was advised by Debtor that it had no place to relocate, Mr. Peiterson did not press the issue informally or by enforcing the Writ of Possession. At the hearing, Mr. Peiterson testified: The reason, the only reason that the sheriff wasn't contacted and the tenant booted out was because we had hopes and promises from the tenant that they would bring those rents current. (TR. at 15). During this period, and before the Writ was issued, Debtor added approximately $120,000.00 worth of improvements to the premises. Though Debtor had promised after issuance of the Writ to cure all of the defaults, Debtor has paid rent for only the months of November and December of 1983. As of January, 1984, Debtor was in arrears for at least three months of rent. CONCLUSIONS OF LAW I. Did LRK waive its right to enforce the Writ of Possession? 1. Sections 666-13 and 666-14 of the Hawaii Revised Statutes read as follows: § 666-13 Effect of writ. Whenever a writ is issued for the removal of any tenant, the contract for the use of the premises, if any exists, and the relation of landlord and tenant between the parties, shall be deemed to be canceled and annulled. § 666-14 Writ stayed how, in proceedings for nonpayment of rent. The issuing of the writ of possession shall be stayed in the case of a proceeding for the nonpayment of rent, if the person owing the rent, before the writ is actually issued, pays the rent due and interest thereon at the rate of eight per cent a year and all costs and charges of the proceedings, and all expenses incurred by plaintiff, including a reasonable fee for his attorney. 2. Debtor could have stayed the issuance of the Writ of Possession by complying with Section 666-14. Or debtor *820 could have appealed the issuance. Debtor took neither of these actions. Therefore the issuance of the Writ of Possession on August 17, 1983 terminated the landlord-tenant relationship between LRK and Debtor under the May 5, 1981 Lease Agreement. 3. The fact that, subsequent to the issuance of the Writ of Possession, LRK permitted Debtor to remain on the premises does not alter the fact that there was no written lease in existence between LRK and Debtor. 5. Debtor's contention that LRK waived its right under the Writ of Possession by subsequently allowing Debtor to remain on the premises is without merit. LRK did not relinquish its rights under the Writ, but merely delayed enforcing its rights because of Debtor's promises and Debtor's claim that it had no place to relocate. LRK should not now be penalized for accommodating Debtor by granting a grace period to cure the arrearages. 6. In discussing waiver of a right, the Hawaii Supreme Court in Robinson v. McWayne, 35 Haw. 689 (1940) stated: [W]aiver is generally defined as "the intentional relinquishment of a known right", "a voluntary relinquishment of some rights" and "the relinquishment or refusal to use a right" (at page 719). At page 724, the Court added: It is elementary that a waiver can take place only by the intention of the party, and such intention must be clearly made to appear. 7. In the instant case, as the testimony of Mr. Peiterson shows, there was not an intentional relinquishment of the right under the Writ of Possession but merely an intent to delay its execution based on Debtor's promise to cure the default. Thus, the Court finds no waiver. II. Is LRK estopped from enforcing the Writ of Possession? 8. The Court also finds no merit in Debtor's contention that LRK is estopped from enforcing the Writ because of its subsequent dealing with Debtor regarding the lease and rental arrangement. Debtor was not "misled" by LRK's actions. In fact, it was Debtor, not LRK, who did the misleading, by indicating it would pay not only the rents as they became due, but also the arrearages. To induce LRK to believe that the rents would be paid as promised, Debtor even gave LRK a check that was rejected by the bank for lack of funds. 9. In discussing estoppel, the Hawaii Supreme Court in Molokai Ranch Ltd. v. Morris, 36 Haw. 219, 223 (1942), held as follows: The rule of law is clear that where one by his words, or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is precluded from averring against the latter a different state of things as existing at the same time. (Emphasis added.) Thus, by definition, to claim estoppel, Debtor must show that there was a representation and reliance on such representation. 10. In the instant case, there was no representation concerning the Writ of Possession. In fact, Mr. Lionel Ribella, who testified on behalf of Debtor, stated that he was never advised by anyone about a Writ of Possession. Therefore, there having been no representation, there could not have been reliance thereon. 11. The elements of estoppel not having been established herein, LRK should not be estopped from enforcing the Writ. III. Is there a new lease between the parties? 12. Finally, the Court also finds no merit to Debtor's contention that, even though the written lease was extinguished by the issuance of the Writ, an unwritten lease between the parties was in existence at the date of the bankruptcy filing. 13. No evidence was introduced to show that LRK and Debtor had adopted the terms of the original lease in a new lease. The evidence shows only that LRK continued *821 to charge Debtor rent as set forth in the May 1981 lease for occupancy of the premises following the issuance of the Writ of Possession. Without proper documentation of incorporation by reference, the continued payment of rent is not sufficient to revive the May 1981 lease. No such documentation was presented. 15. In fact, Mr. Ribellia who testified on behalf of Debtor, admitted that there was no agreement between LRK and Debtor concerning a new lease. He stated that the May 1981 lease was the only lease he was aware of and that there was no oral lease. (Transcripts of Proceedings held January 10, 1984, hereafter "TR" at 30, 31). 16. HRS § 656-1(4) provides that no action shall be brought upon a real property lease unless there is a written document signed by the party to be charged therewith, in this case, the Debtor. Young v. McQuerrey, 54 Haw. 433, 508 P.2d 1051 (1973), cited by debtor in support of his "new lease" theory does not support this contention. In Young, a memorandum in writing was signed by the party to be charged therewith. In the instant case, there has been no evidence presented as to a memorandum or note in writing signed by Debtor after the Writ was issued which could arguably constitute a written memorandum satisfying the provisions of HRS § 656-1(4). IV. Was the cancellation of the lease pursuant to the Writ of Possession a Fraudulent Conveyance? 17. In its Memorandum filed on January 23, 1984, Debtor for the first time contended that the termination of the lease which resulted from the issuance of the Writ of Possession was a fraudulent conveyance avoidable under Sec. 548 of the Bankruptcy Code and that as such the Writ of Possession should be set aside. 18. The Court requested and received on February 29, 1984 a supplemental memorandum from LRK in which it is persuasively argued with case precedent from the 9th Circuit that the transfer in question is not voidable as a fraudulent conveyance.[1] 19. This Court, however, does not find it necessary to reach that decision in resolving the instant motion to lift stay. Pursuant to Rule 7001 of the Bankruptcy Rules, an action to avoid transfers under Section 548 of the Bankruptcy Code must be an adversary proceeding. Rule 7003 of the Bankruptcy Rules, by incorporation of Rule 3 of the Federal Rules of Civil Procedure, directs that an adversary action be commenced by the filing of a complaint. 20. In the instant case, Debtor has not filed a complaint to set aside the Writ of Possession. Consequently, at this expedited hearing on LRK's motion to lift stay, this Court declines to consider the matter of setting aside the Writ of Possession as being a fraudulent conveyance under Sec. 548. 21. Based on the foregoing, the court finds that the Writ of Possession issued by the State District court prior to Debtor's bankruptcy had cancelled and annulled the lease between LRK and Debtor. Thus, at the time of the filing of the instant bankruptcy proceeding, there was no lease in existence and Debtor was at most a tenant at sufferance. Where there is no executory lease to assume, to permit Debtor to remain on the premises would be tantamount to the creation of a new lease agreement involuntarily imposed upon LRK. By instituting these proceedings for relief from the stay, LRK reinforced its desire not to revive a lease agreement with Debtor and requested relief from the stay. The Court finds it only proper that the stay be lifted and it so orders. NOTES [1] LRK cites the decision of the 9th Circuit Bankruptcy Appellate Panel, In Re Madrid, 21 B.R. 424 (Bkrtcy.B.A.P., 9th Cir., 1984), and a 9th Circuit District Court decision, In Re Gilmore, 31 B.R. 615 (D.C.E.D.Wash., 1983).

369 So.2d 687 (1979) Andre Keith LANCASTER, Appellant, v. STATE of Florida, Appellee. No. KK-73. District Court of Appeal of Florida, First District. April 19, 1979. *688 Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant. Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee. ROBERT P. SMITH, Jr., Judge. Lancaster appeals his conviction under Section 812.019, Florida Statutes (1977), pursuant to a plea of nolo contendere reserving the right to appeal the denial of his motion to dismiss the information on the ground that there were no material disputed facts and that the undisputed facts did not establish a prima facie case. Fla.R. Crim.P. 3.190(c)(4). Lancaster urges that he could not properly be convicted under Section 812.019 because the undisputed evidence, established by affidavit, lacked a prima facie showing that Lancaster, who was in possession of property he knew or should have known was stolen, intended to sell, transfer, distribute, dispense, or otherwise dispose of that property. Sections 812.012(7)(b), .019, Florida Statutes (1977). The state, on appeal, agrees with Lancaster's interpretation of the statute. We also agree. Lancaster was charged pursuant to Section 812.019(1) which states: Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084. Section 812.012(7) defines "traffic" to mean: (a) To sell, transfer, distribute, dispense, or otherwise dispose of property. (b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property. The undisputed facts, as established for purposes of this decision, are that Lancaster purchased and received an engine which he knew or reasonably should have known was stolen, and placed the engine in his van. The trial court held that Section 812.019 applied to the conduct of buying property, knowing it to be stolen, and maintaining possession of it. The trial court also held that the defendant "disposed" of the engine, or evidenced an intention to "dispose" of it, by placing the engine in his van. The offense proscribed by Section 812.019(1) is trafficking in stolen property. In Section 812.012(7)(b) the qualifying words "with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property," modify not only the word "use" but also the words "buy, receive, possess, [or] obtain control of". Therefore one does not "traffic" in stolen property merely by receiving it. Nor does one evidence an intent to "dispose" of stolen property merely by putting it in his vehicle. An intent to traffic in the stolen property, as by disposing of it by transfer to another, is essential. Contrast Section 812.014, Florida Statutes (1977). The judgment is REVERSED and the information is DISMISSED. MILLS, Acting C.J., and BOOTH, J., concur.

ORHffi$NAI rJrtW @nfreu sttutts @owt of felersl ,,"J1.11;f!3l,o,o HIEO AUG 2I Zon COURT OF RENIECE L.W. KABANDO, -US. FEDERAI 28 u.s.c. g l4el.ruckerA"rs$JUls Plaintiff, Matter Jurisdiction. Rules of the Court of Federal Claims 12(b)(1), Money- mandating, District Court Jurisdiction THE TINITED STATES OF AMERICA, Defendant. Reniece L.W. Kabando, Woodbridge, VA, Plaintiff, pro se. Martin M. Tomlinson, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washinglon, D.C., for defendant. With him were Stuart F. Delery, Assistant Attomey General, Robert E. Kirschman, -Ir., Director, Steven J. Gillingham, Assistant Director. OPINION AND ORDER On July 1,2014, plaintiff, Reniece L.W. Kabando, appearing p1q se, frled a complaint, an application to proceed in forma pggpggig, and an ex palte motion for declaratory and injunctive relief.' Plaintiff contends that she is entitled to $99,333,720,368,547,800.00 from the government pursuant to 18 U.S.C. $$ 1831-1839 (2012) and 15 U.S.C. $$ 631-657s (2012), and 15 U.S.C. g 6aa(gX1) because she is the sole owner ofa small business concem and is also a socially and economically disadvantaged woman and minority. On July 15, 2014, plaintiff filed a motion for leave to file an order to show cause as to "why the United States is now refusing and why the court should not grant the official order as previously mandated by Congress" and expressed her hope that "as Congress officially orders to do something, the Court of Federal Claims will order to do the same." Mot. for Leave to File Proposed Order to Show Cause, ECF No.5. ' Plaintiff s complaint in this action is virtually identical to an earlier complaint filed by plaintiff before Judge Margaret M. Sweeney of this court. Kabando v. United States, No. l4-286C,2014 U.S. Claims LEXIS 265, 2014 WL 1577047 (Fed. Cl. April 21, 2014). That case was dismissed for lack ofjurisdiction and plaintiff s motion for reconsideration ofthe order of dismissal was denied.  The government has moved to dismiss the case for lack ofsubject matter jurisdiction.2 For the reasons discussed below, the Court concludes that it lacks jurisdiction to address plaintiffs claims. Accordingly, the govemment's motion to dismiss is GRANTED. The Court ofFederal Claims has jurisdiction under the Tucker Act to hear "any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $ la91(a)(1) (2012), The Tucker Act waives the sovereign immunity of the United States to allow a suit for money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does not confer any substantive rights. United States v. Testan,424U.5.392,398 (1976). Therefore, a plaintiffseeking to invoke the court's Tucker Act jurisdiction must identify an independent source ofa substantive right to money damages from the United States arising out ofa contract, statute, regulation or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). "Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act." Mitchell, 463 U.S. at 216. "[T]he claimant must demonstrate that the source of substantive law he relies upon 'can fairly be interpreted as mandating compensationbytheFederalGovemmentforthedamagessustained."'Id.at216-17(1983) (quoting Testan, 424 U.S. at 400). While p1q se plaintiffs' pleadings are held to "less stringent standards than formal pleadings drafted by lawyers," (Haines v. Kemer,404 U.S. 519, 520 (1972)), even pro se plaintiffs must persuade the Court that jurisdictional requirements have been met. Bemard v. United States, 59 Fed. Cl. 497, 500 (2004), aff d,98 F. App'x 860 (Fed. Cir. 2004). Ifthe statute upon which plaintiff s claim rests is not money-mandating, the court must dismiss the action because "the absence ofa money-mandating source [is] fatal to the court's jurisdiction under the Tucker Act." Fisherv. United States,402F.3d1167,1173 (2005). Reading plaintiff s complaint in the light most favorable to the plaintiff, the complaint fails to plead any claims sufficient to invoke the jurisdiction of the Court of Federal Claims. The statutes identified by plaintiff-l8 U.S.C. $$ 1831-1839, 15 U.S.C. $$ 631- 657s, and l5 U.S.C. $ 64a(g)(1)-are not money-mandating. The Economic Espionage Act, 18 U.S.C. $$ 1831- 1839, is a criminal statute that prohibits theft of trade secrets and applies to foreign conductif "an act in furtherance of the offense was committed in the United States." i8 U.S.C. $ 1837. The Small Business Act, l5 U.S.C. $ 631-657s, states Congress' small business policy and outlines a framework for small businesses to compete for govemment contracts. These statutes, read together or alone, cannot be fairly interpreted to mandate the payment ofmoney, and consequently this Court lacks jurisdiction to consider plaintiffs claims. Plaintiff also cites 15 U.S.C. $$ l-2, the Sherman Antitrust Act. The Court does not have jurisdiction over claims arising under the Sherman Antitrust Act. l5 U.S.C. $ 4 ("The several district courts . . . are hereby invested with jurisdiction to prevent and restrain violations of sections 1 to 7 of this title."). See also 28 U.S.C. $ 1337(a) (stating that the district courts have 2 The plaintiffhas not responded to the motion to dismiss or requested an extension of time to do so. original jurisdiction over "any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restaints and monopolies"); Hufford v. United States, 87 Fed. Cl.696,703 (2009) (holding that violations ofthe Sherman Antitrust Act axe within the exclusive jurisdiction of the district courts). Plaintiff also filed a request to proceed in forma oauperis. To proceed in forma pauperis, a plaintiffmust submit an affidavit that includes a list of all of their assets, a declaration that they are unable to pay the fees or give the security for an attomey, and a statement ofthe nature of theiractionandtheirbeliefthattheyareentitledtojudgment.28U.S.C.$1915(aX1)(2012). Here, plaintiff satisfied these requirements, and the Court therefore grants her application to proceed in forma pauperis. For the reasons stated above, the Court GRANTS plaintiff s motion to proceed in forma pauperis and DISMISSES plaintiff s complaint for lack of jurisdiction. PlaintifP s motion for leave to file an order for the defendant to show cause is DENIED AS MOOT. The Clerk of the Court is directed to enter judgnent accordingly. The Clerk ofthe Court shall retum to plaintiff the following documents: "Response to Defendant's 'No' Answer to the 'Motion For Leave to File Proposed Order to Show Cause"' and "Motion for Leave to File Response to Defendant's 'No' Answer for the 'Motion for Leave to File In Forma Pauperis,"' both received on August 25,2014 IT IS SO ORDERED. ELAINE D. KAPLAN Judge 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6089 CLYDE OWEN DAY, JR., Petitioner - Appellant, v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Chief District Judge. (2:11-cv-00079-RBS-DEM) Submitted: February 23, 2012 Decided: February 28, 2012 Before MOTZ, DAVIS, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Clyde Owen Day, Jr., Appellant Pro Se. Kathleen Beatty Martin, Senior Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clyde Owen Day, Jr., seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying his Fed. R. Civ. P. 60(b) motion for reconsideration of the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Day has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss 2 the appeal. 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. DISMISSED 3 

483 So.2d 759 (1986) Jack REED, Appellant, v. CITY OF HOLLYWOOD, a Municipal Corporation, Appellee. No. 84-2403. District Court of Appeal of Florida, Fourth District. February 5, 1986. Rehearing Denied March 24, 1986. Bernard Berman of Bernard Berman, P.A. Fort Lauderdale, for appellant. Andrew DeGraffenreidt, III, City Atty., and Saul Smolar, Asst. City Atty., Hollywood, for appellee. PER CURIAM. Jack Reed appeals from an order of the trial court dismissing with prejudice his *760 suit to enjoin the demolition of his house as ordered by the City of Hollywood Unsafe Structures and Housing Appeals Board (the Board). The dismissal was based on the trial court's finding that it lacked subject matter jurisdiction because Reed failed to exhaust legal and administrative remedies available to him under Section 202.12 of the South Florida Building Code. We affirm the dismissal of the suit insofar as it sought injunctive relief; however, we remand the cause with directions to the trial court to treat Reed's suit as one seeking certiorari review of the Board's action. Section 202.12 of the South Florida Building Code provides that "[a]ny person aggrieved by a decision of the Unsafe Structures Board may seek judicial review of that decision in accordance with the Florida Appellate Rules." Florida Rules of Appellate Procedure 9.030(c) and 9.100(c) (1977 Revision) provide that the jurisdiction of the circuit court may be invoked to review administrative action when provided by law through petition for common law certiorari filed within thirty days of rendition of the order to be reviewed. Ten days after the Board ordered Reed's house destroyed, he filed his suit for injunction in the circuit court alleging, inter alia, that the Board had acted without due process of law. Thus, Reed sought judicial review within the thirty-day period prescribed by the appellate rules,[1] although the remedy he selected — injunctive relief — was incorrect. Historically, appellate courts have treated improperly filed petitions and writs as if they were denominated correctly rather than barring judicial review. See, e.g., Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942); Radio Communications Corporation v. Oki Electronics of America, Inc., 277 So.2d 289 (Fla. 4th DCA 1973). This practice was formalized with the adoption of Florida Rule of Appellate Procedure 9.040(c): REMEDY. If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy. The Committee Notes to Rule 9.040(c) contain the following instructive language: The Advisory Committee does not consider it to be the responsibility of the court to seek the proper remedy for any party, but a court may not deny relief because a different remedy is proper. Under these provisions a party will not automatically have his case dismissed because he seeks an improper remedy or invokes the jurisdiction of the wrong court. The court must instead treat the case as if the proper remedy had been sought and transfer it to the court having jurisdiction. Rule 9.040(c) has been interpreted as requiring the circuit court to consider as timely a petition for certiorari filed more than thirty days after the challenged administrative decision where the party had previously filed a petition for writ of mandamus within the thirty-day period. See Pridgen v. Board of County Commissioners of Orange County 389 So.2d 259 (Fla. 5th DCA 1980). Allowing Reed to now invoke the certiorari jurisdiction of the circuit court is not prohibited, as the City of Hollywood urges, by the case of State ex rel. Soodhalter v. Baker, 248 So.2d 468 (Fla. 1971). In Soodhalter, the court was concerned only with the propriety of transferring a matter from one court to another. Here no transfer is required. The circuit court in which Reed sought injunctive relief is the appropriate court to review by certiorari the Board's action.[2] *761 AFFIRMED IN PART; REMANDED WITH DIRECTIONS. ANSTEAD, C.J., WALDEN, J., and FREDRICKA G. SMITH, Associate Judge, concur. NOTES [1] Compare City of Hollywood v. Litteral, 446 So.2d 1152 (Fla. 4th DCA 1984), wherein Litteral sought injunctive relief more than two years following her discharge by the Civil Service Board as a community service officer. [2] If a court has for its own administrative convenience created an appellate division, the matter may, of course, be transferred there. That, however, is not a transfer from one court to another.

212 B.R. 511 (1997) In re DELRAY ASSOCIATES LIMITED PARTNERSHIP, Debtor. Bankruptcy No. 97-1-3542-DK. United States Bankruptcy Court, D. Maryland. September 16, 1997. *512 *513 Stephen E. Leach, Washington, DC, for Debtor. Lawrence S. Jacobs, Rockville, MD, for Movant. MEMORANDUM OF DECISION DUNCAN W. KEIR, Bankruptcy Judge. Before the court is a Motion to Dismiss this Chapter 11 case filed by the holders of a note ("Movants") which is secured by a first deed of trust upon the sole significant asset of this debtor. Debtor's business and asset is an office building. This case, Case No. 97-1-3542 (herein after "Case No. 2"), was commenced on April 2, 1997, by the filing of an involuntary petition "against" the debtor by three petitioners. At the time of the filing of the involuntary petition and today, there was and is an outstanding Chapter 11 case filed by this debtor on July 3, 1991. In that case, Case No. 91-4-3233 (hereinafter "Case No. 1"), a confirmation of a Chapter 11 Plan ("Plan No. 1") was entered by the court on October 19, 1993. Plan No. 1 has not been fully performed, particularly as to the treatment of the Movants' claim, although the plan is substantially consummated. Movants seek the dismissal of Case No. 2 on the basis that it is a serial filing on behalf of the debtor and that it is filed in bad faith. In order to decide the issues raised, the court must examine in detail the facts and circumstances of the filing of Case No. 2, as reflected by the evidence introduced during two days of evidentiary hearings. Case No. 1 was filed by the debtor to prevent a foreclosure by the Movants of their first deed of trust. Treatment of Movants' claim under Plan No. 1 provided that the Movants would receive interest only for a period of approximately three and 1/2 years and then would be paid in full in March of 1997. Initially, the interest amount to be paid was less than the interest rate accrual called for under Plan No. 1, thus the balance due actually increased during the first part of the plan. This treatment is sometimes referred to as a negative amortization. Having averted foreclosure and provided in Plan No. 1 for an extension of the defaulted loan upon such favorable terms, the debtor made the interest payments called for under the plan until March of 1997. However, debtor defaulted upon payment of real estate taxes as they became due on the property in 1996. From the testimony of Gerald Wade, general partner of the debtor (hereinafter "Wade"), it was shown that the reason for the tax default was insufficient income from the property. Although in questioning Wade, counsel for the debtor suggested in his questions that the fortunes of the debtor improved sufficiently to allow the debtor to cure the tax default, upon questioning by the court, Wade testified that the debtor accumulated the funds to pay the open taxes and avert foreclosure by defaulting upon payments due to the second trust holder on the property. Thus, the court must find that as late as 1996, the property was not consistently cash flowing in an amount to pay current bills plus plan payments. In March of 1997, the debtor defaulted on the last interest payment due to Movants under Plan No. 1. Debtor also failed to pay the full balance when it became due. The Movants instituted a foreclosure proceeding and again a bankruptcy was filed to stay the foreclosure. The petition filed was an involuntary petition signed by three entities purporting to be creditors and purporting to hold claims in conformity with the requirements of Section 303 of the Bankruptcy Code.[1] During the immediate post-petition period in Case No. 2 and before an order for relief was entered, the debtor did not make payments to the Movants and as a consequence amassed sufficient funds to advance a retainer to its bankruptcy counsel.[2] The *514 debtor then filed a voluntary consent to an order for relief thus curing defects which existed in the involuntary petition. In Case No. 2, the debtor has filed a plan ("Plan No. 2") which is virtually identical to Plan No. 1, with the exception that the due date for the balance of the Movants' claim is extended to the year 2004. Counsel for the debtor in his closing argument acknowledged that the plans were identical in substance, except for this one change. Debtor argues that Case No. 2 cannot be considered a serial filing by a Chapter 11 debtor, as the petition was involuntary. This court disagrees. It is clear from the evidence, taking into account the demeanor and credibility of the witnesses, that the filing of Case No. 2 was completely orchestrated by the debtor. Further, it is clear that the reason for orchestrating an involuntary filing was for the purpose of creating the misleading and erroneous impression that Case No. 2 was not a voluntary entry into a serial filing by this debtor. Debtor attempts to portray the involuntary filing as one in which the debtor had no part. This court finds nothing could be further from the truth and the attempt to portray such a scenario is disingenuous. Two of the three petitioning "creditors", Beta Construction ("Beta") and ARC Water Treatment Co. ("ARC"), were entities which had provided goods and services to the Delray project and to other projects managed by Pinnacle Realty ("Pinnacle"), the management company for this property. Beta and ARC were telephoned by a representative of Pinnacle and informed that the property might be sold at foreclosure. It was suggested to each that they would get a call from either counsel for the debtor or counsel for the second trust holder (the third petitioning creditor) and that participating in an involuntary bankruptcy petition might be in petitioners' best interest. Neither Beta nor ARC held an account receivable from the debtor which was in default at the time of these phone calls. Beta, a roofing contractor which had done work upon the property, held an outstanding invoice which was not overdue and indeed was paid in full by Pinnacle shortly after Beta signed the proffered involuntary petition forms which were sent to it. At the time of the filing of the involuntary petition, Beta was not owed any money by the debtor. As to ARC, it is shown by exhibits that its monthly payments for water treatment bills were up to date when it was called by Pinnacle. Mr. Eric Hagen at ARC dug through old files involving Case No. 1 and from a copy of a ballot submitted upon Plan No. 1, inferred that there might be some historical unpaid amount that could be used as the pretext to claim creditor status on the involuntary petition. Mr. Hagen testified that he had no knowledge as to whether there was actually any outstanding unpaid balance. These facts completely belie the canned question to Mr. Hagen on cross examination by counsel for the debtor, and response to the effect that ARC participated in the involuntary for the purposes of protecting its interests as a creditor. At the time of the filing of the petition, ARC did not even know whether it was a creditor, and if it was a creditor it was for a minuscule balance which had been owed years prior to the petition date. Although Mr. Jeremy Brown, for Beta, gave a similar response to the same question posed by debtor's counsel, Beta was not even a creditor when the petition was filed. Counsel for the debtor also asked Messrs. Hagen and Brown whether they had received any telephone calls or had conversations with Wade. They responded that they had neither spoken with nor met Wade. This exchange was obviously intended to create an impression that the debtor had not participated in the communications soliciting the involuntary petition. Similarly, counsel for the debtor asked Wade whether or not he had ever called or spoken to anyone at either Beta or ARC concerning filing an involuntary petition and Wade's response to this question was no. However, upon questioning by the court, Wade candidly admitted that he had called Pinnacle and prevailed upon Pinnacle to research its files, attempt to identify creditors which might hold claims, and canvas such creditors in an attempt to get them to file an involuntary petition against Mr. Wade's partnership. Even more illuminating is the testimony of Mr. Rizzo, the Delray Building Manager *515 employed by Pinnacle, introduced by excerpts from transcripts of his deposition.[3] Mr. Rizzo testified: "I was asked [by Jerry Wade] to contact some contractors to see if they may be willing to participate in this in relation to the Chapter 11." Thus, the narrow questions addressed to Wade and Messrs. Hagen and Brown were clearly intended by the debtor to create an erroneous impression upon the court. The court notes that Wade is not a stranger to the realm of Chapter 11 cases. He testified that he has held interests in a number of entities, some of which have filed cases before this court. This debtor, as already stated, has been here before and Wade has also been a debtor in a prior case. After the calls from Pinnacle were made, attorney Helf on behalf of the second trust holder circulated the involuntary petition forms through correspondence which is also part of the evidence in this matter.[4] An interesting item appears at the bottom of those letters. The letters circulating the involuntary petition were copied to attorney Stephen Leach by attorney Helf. Mr. Leach is one of the attorneys for the debtor in both Cases No. 1 and No. 2. Whereas, normally an involuntary petition is a hostile act by creditors against a debtor, it is clear that the debtor both instigated this involuntary petition against itself, and its counsel was kept informed as to the circulation of the necessary forms instituting the strategy. At most, debtor's assertion that this was an involuntary case and therefore should not be counted as a second effort by the debtor is pretextual and would elevate form over substance, which this court will not do. Under what circumstances should such a serial filing of a Chapter 11 case be dismissed and creditors allowed to exercise their non-bankruptcy legal rights? Some jurisdictions apply a per se rule against serial filings by debtors at a time when a prior case remains open. See, for example, In re Caperoads Plaza Ltd., Partnership, 154 B.R. 614, 615 (Bankr.D.Mass.1993), stating "[t]here is nothing in the Bankruptcy Code expressly prohibiting a debtor from having two cases pending at the same time. However, ever since Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), it has generally been held that simultaneous cases are prohibited."[5] Other courts have rejected a per se rule.[6] This court also believes that a per se rule in Chapter 11 cases is not called for. The court finds most persuasive the reasoning of the U.S. Court of Appeals for the Fifth Circuit in the case of In re Elmwood Development Co., 964 F.2d 508 (5th Cir.1992). The court has also looked to the decision in the case of In re Jartran, Inc., 886 F.2d 859 (7th Cir.1989).[7] A serial filing is not per se grounds for dismissal, but unless such a filing is for a legitimate purpose, it is made in bad faith and should be dismissed. Legitimate purposes for a second case include an orderly liquidation of a debtor which has failed to reorganize under its confirmed plan and is simply attempting to wind up its affairs in a manner most advantageous to its creditors. Jartran, 886 F.2d at 868-69. A second plan also may be legitimate if it results from events which were not anticipated, nor reasonably could have been anticipated at the time of the confirmation of the first plan. Elmwood, 964 F.2d at 511-12. "Where a debtor requests Chapter 11 relief for a second time, the good faith inquiry must focus on whether the second petition was filed to contradict the initial bankruptcy proceedings." Id. at 511. "[U]nanticipated changed circumstances may justify a valid successive *516 request for Chapter 11 relief," because in such case the plan would be introduced to achieve new and distinct goals. Id. Plan No. 2 is neither a liquidating plan nor results from events which were not anticipated by Plan No. 1. Indeed Plan No. 2 attempts to keep an impecunious single asset real estate project alive on an interest-only basis, in the hope that by the time year 2004 rolls around some economic salvation will have occurred which will allow a sale or refinancing of the property. In Plan No. 1, the debtor assumed the risk that it would be able to refinance or sell the property creating a fund to payoff the first trust loan by March of 1997. If not paid, foreclosure rights could be exercised by the first trust holder. This anticipated circumstance, while not what the debtor hoped for, has occurred and the debtor now wishes to change the plan in retrospect. Plan No. 2 is an improper modification of Plan No. 1. Because substantial consummation of Plan No. 1 has occurred, that plan cannot be modified in Case No. 1. 11 U.S.C. § 1127(b).[8] 11 U.S.C. § 1101(2) defines substantial consummation as the occurrence of three events: "1) transfer of all or substantially all of the property proposed by the plan to be transferred; 2) assumption by the debtor . . . of the business or of the management of all or substantially all of the property dealt with by the plan; and 3)commencement of distribution under the plan." All have occurred in the plan in Case No. 1. This court refuses to allow the debtor to elude the restrictions of § 1127(b) by a successive Chapter 11 filing under these circumstances. "[The] `filing of a successive Chapter 11 . . . after substantial consummation of a previously confirmed Chapter 11 case for the sole purpose of renegotiating previously agreed upon plan treatment is an impermissible motive for filing the successive case.'" Elmwood, 964 F.2d at 511 n. 9 (quoting In re Miller, 122 B.R. 360 (Bankr.N.D.Iowa 1990)). The debtor argues that the only grounds for dismissal of a Chapter 11 for bad faith in this circuit is under the reasoning and holding of Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir.1989). In that decision the Fourth Circuit held that in order to dismiss a Chapter 11 on the basis of a bad faith filing, subjective bad faith and objective futility must be shown. The debtor argues that its second plan will succeed, is not objectively futile, and therefore, even if the court were to find subjective bad faith, it should not dismiss this case. The court is not convinced by the debtor's arguments. The facts of Carolin did not include a serial filing. It appears to this court that, for the reasons set forth in the Elmwood decision, the Fourth Circuit would agree that this court in the exercise of its equitable powers may dismiss a serial Chapter 11 case which was filed in bad faith. Even if the debtor is correct, that the Carolin Corp. decision controls all Chapter 11 bad faith dismissals, this court finds both subjective bad faith and objective futility. The subjective bad faith is demonstrated by the impermissible serial filing, the duplicitous scheme to cloak a serial filing in an involuntary mantle, and the attempt to portray the filing as acts done by creditors independent of the debtor. As to objective futility, the court finds completely without credibility the naked projections made by the appraiser called to testify by the debtor. Mr. Donnelly was qualified to testify as to the value of the subject property. He was not qualified, nor did he testify to any credentials which gave weight to his projection that this property was and would continue to increase its revenues to the point that such projected profitability, which had not been achieved on any annual basis historically, would support values and cash flows that would make a sale or refinance possible within the extended period of the new plan. The debtor created the cash necessary to cure a tax default in 1996 by defaulting on the second trust payments. The debtor created the cash to pay a retainer to its counsel for this case by defaulting on payments to the first *517 trust. These events clearly show the debtor's cash poor position. In addition, in order to confirm Plan No. 2, the debtor would be required to demonstrate that it was "proposed in good faith and not by any means forbidden by law." 11 U.S.C. § 1129(a)(3). For the reasons already enunciated, this court cannot find that Plan No. 2 was filed in good faith and must find it improperly modifies the Plan No. 1. In looking at the facts and circumstances, this court has taken into consideration the legitimate interests of other creditors. Evidence concerning only the claims of those creditors discussed in this opinion was introduced. It has been shown that Beta and ARC have no real creditor interest to be protected in this case. The third petitioning creditor, the second trust holder, is subordinate to Movants. The fact that the second trust lien may be wiped out by a foreclosure of the first trust is a business risk assumed ab initio by the second trust holder. State law and rules provide a mechanism under which this second trust holder could protect itself. The second trust holder may attend the foreclosure sale and make a bid large enough to protect its interest. Of course, this means that the second trust holder must risk additional funds in the project. It may not be willing to risk its funds, as opposed to the first trust holders' funds upon the future promises of the debtor. Accordingly, because this court finds that this is an improper serial filing of a Chapter 11 by this debtor and under the reasoning of the Carolin Corp. decision, this court shall enter an order dismissing this case. NOTES [1] 11 U.S.C. § 303(b) states in part: "An involuntary case against a person is commenced by the filing of a petition under chapter 7 or 11 of this title (1) by three or more entities, each of which is a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute . . . if such claims aggregate at least $10,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims. . . ." [2] Although the stay imposed by 11 U.S.C. § 302(a) begins upon the filing of the petition, restrictions upon use of cash collateral take effect upon entry of the order for relief (unless imposed earlier by court order). 11 U.S.C. § 363. [3] Movants' Exhibit No. 3, at pg. 18 (labeled June 12, 1997 deposition of Michael Rizzo of Pinnacle Management Company). [4] See Movants' Deposition Exhibit No. 11, part of Movants' Exhibit No. 7 (labeled June 12, 1997 deposition of Eric Hagen of ARC Water Treatment Company of Maryland, Inc.) [5] See also In re Bono, 70 B.R. 339, 341 n. 2 (Bankr.E.D.N.Y.1987); In re Fountain, 142 B.R. 135, 137 (Bankr.E.D.Va.1992); In re Smith, 85 B.R. 872, 874 (Bankr.W.D.Okla.1988); In re Belmore, 68 B.R. 889 (Bankr.M.D.Pa.1987). [6] See In re Bullock, 206 B.R. 389, 393 (Bankr. E.D.Va.1997); In re Peia, 204 B.R. 310, 313 (Bankr.D.Conn.1996). [7] See also In re Jamesway Corp., 202 B.R. 697, 705-06 (Bankr.S.D.N.Y.1996); In the Matter of Bouy, Hall & Howard Assoc., 208 B.R. 737, 743 (Bankr.S.D.Ga.1995). [8] 11 U.S.C. § 1127(b) states in part: "The proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan. . . ." (emphasis added).

258 Ga. 207 (1988) 367 S.E.2d 230 BURT v. UNDERWOOD. 45378. Supreme Court of Georgia. Decided April 27, 1988. Donald D. Smith, Albert E. Jones, for appellant. Gray, Gilliland & Gold, T. Cullen Gilliland, John B. Austin, for appellee. HUNT, Justice. We granted certiorari to the Court of Appeals to answer the question whether a supervisor of a borrowed servant is "an employee of the same employer" under OCGA § 34-9-11, allowing an injured employee "to bring an action against any third-party tortfeasor, other than an employee of the same employer." (Emphasis supplied.) The Court of Appeals held that when the servant is borrowed and under the direct supervision of the borrowing employer, the negligent employee of the borrowing employer is an "employee of the same employer" under this code section, even where the borrowing employer did not provide workers' compensation benefits. Having heard the arguments and considered the record and briefs on this issue, we find no error in the Court of Appeals' opinion, and affirm. Judgment affirmed. All the Justices concur.

United States Court of Appeals For the First Circuit No. 14-1710 JONATHAN HERICAR LEDESMA-SÁNCHEZ, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States,* Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Torruella, Thompson, and Barron, Circuit Judges. Lawrence Gatei and Immigration & Business Law Group, LLP on brief for petitioner. Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Joyce R. Branda, Acting Assistant Attorney General, Civil Division, and Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, on brief for respondent. August 14, 2015 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch has been substituted for former Attorney General Eric H. Holder, Jr. as respondent.  BARRON, Circuit Judge. This case concerns the requirement that an alien facing removal keep immigration authorities apprised of the alien's current address. Here, the alien failed to do so, and, on that basis, the Board of Immigration Appeals (BIA) denied his motion to reopen the removal proceedings, which were held in absentia. We deny the petition for review. I. Jonathan Ledesma-Sánchez was born in the Dominican Republic and admitted to the United States on a nonimmigrant visa. He allegedly overstayed that visa. In March of 2010, a federal official personally served Ledesma with what is known as a Notice to Appear. That document charged Ledesma with being removable from the United States for overstaying a nonimmigrant visa. See 8 U.S.C. § 1227(a)(1)(B). And the Notice to Appear ordered Ledesma to appear before an immigration judge in Boston to adjudicate his removability, at a date and time to be set. The Notice to Appear informed Ledesma, as required by statute, that he was obliged to provide immigration authorities with his mailing address and telephone number. See id. § 1229(a)(1)(F)(i). The notice also explained that Ledesma was required to update that information whenever his address or phone number should change. See id. § 1229(a)(1)(F)(ii). And, finally, the notice informed Ledesma that, if he did not comply with these requirements, the immigration court would not have to tell him - 2 - about the date and time of his removal hearing once it was set, and that he might then be ordered removed in absentia. See id. §§ 1229(a)(2)(B), 1229a(b)(5)(B). After being served with the Notice to Appear, Ledesma resided for a time -- as immigration officials were informed1 -- at an address in the Roxbury neighborhood of Boston, Massachusetts. But in October of 2010, Ledesma moved to a new address in the Dorchester neighborhood of Boston without updating his address with immigration officials.2 In February of 2011, the Department of Homeland Security filed Ledesma's Notice to Appear with the immigration court in Boston. The court then scheduled removal proceedings for March 1, 2011. The immigration court sent notice of the hearing to Ledesma's old address in Roxbury.3 Ledesma claims, and the 1 It is not entirely clear from the record how the government obtained Ledesma's Roxbury address and thus whether Ledesma provided it. But neither the Immigration Judge nor the BIA denied Ledesma relief on the ground that he had failed to provide any address at any point. Accordingly, as we explain below, we decide the case solely on the basis of Ledesma's failure to update his address when he moved from Roxbury to Dorchester. 2 Ledesma does not claim to have continued to use his old Roxbury physical address as a mailing address after moving away. See Renaut v. Lynch, ___ F.3d ___, No. 14-1766, 2015 WL 3486688, at *2 (1st Cir. June 3, 2015). 3 The notice was mailed using zip code 02119, and Ledesma claims, for the first time on appeal, that the correct zip code for the Roxbury address is 02121. But the record does not indicate that the letter was returned as undeliverable. Indeed, Ledesma's argument to the Immigration Judge and the BIA was that the notice of hearing was mailed to Ledesma's old Roxbury address. - 3 - government does not dispute, he did not actually receive notice of the hearing because none was sent to his Dorchester address. Ledesma did not appear at the hearing. He was ordered removed in absentia. See id. § 1229a(b)(5). Over a year later, in August of 2012,4 Ledesma moved to reopen his removal proceedings. See id. § 1229a(b)(5)(C)(ii). He argued that he had not received notice of the hearing and that the proceedings should be reopened on that basis. The Immigration Judge denied the motion because Ledesma had failed to inform the immigration authorities of his change of address when he moved from Roxbury to Dorchester. And the Immigration Judge found that the consequences of such failure had been explained to him in his native Spanish language when he was personally served with the Notice to Appear.5 4 Ledesma claims that he had only then become aware of the in absentia removal order after his counsel discovered it while pursuing an adjustment of status for Ledesma. 5 Ledesma, in his brief on appeal as well as his briefing to the BIA below, at times at least appears to assert that he was not fully informed of the consequences of failing to provide and update his address. But even if that is his intended argument, he provides us with no reason to conclude that the Immigration Judge's determination to the contrary was clearly erroneous. Ledesma concedes that he was personally served with the Notice to Appear. And the official serving the Notice to Appear on Ledesma indicated on that form that Ledesma was provided with "oral notice in the Spanish language." - 4 -  Ledesma appealed to the BIA, which affirmed the Immigration Judge's ruling. Ledesma now petitions for review of the BIA's decision. II. An in absentia removal order, like the one that Ledesma received when he did not appear at his scheduled removal hearing, may be "rescinded . . . if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title." 8 U.S.C. § 1229a(b)(5)(C).6 Ledesma argues that he demonstrated that he did not actually receive notice that his hearing had been scheduled and, therefore, that the BIA erred by denying his motion to reopen the proceedings. But, as the statute makes clear, the key issue is not whether Ledesma actually was informed of the time and place of the hearing. The key issue is whether he "receive[d] notice in accordance with paragraph (1) or (2) of section 1229(a)." Id. (emphasis added). Only if he did not would he have a ground for reopening. But Ledesma cannot make that showing. Ledesma did not inform immigration authorities of his new address in Dorchester, and the government did provide notice to the last address that it had for him in Roxbury. Ledesma makes 6 We note that there are other potential bases for reopening removal hearings provided under the statute that have nothing to do with nonreceipt of notice, see 8 U.S.C. § 1229a(b)(5)(C), but Ledesma does not invoke any of them in this appeal. - 5 - no argument -- and we can see no basis for one -- that the statute could possibly be read to require the government to provide notice at an alien's new address when the alien has never apprised the government of it. See id. § 1229(a)(2)(A) (providing that that an alien must be notified "of any change or postponement in the time and place of [removal] proceedings"); id. § 1229(a)(2)(B) (providing that "[i]n the case of an alien not in detention, a written notice shall not be required under this paragraph if the alien has failed to provide the address required under paragraph (1)(F)."). And so Ledesma cannot show that he did not "receive notice in accordance with paragraph (1) or (2) of section 1229(a)." Id. § 1229a(b)(5)(C) (emphasis added). See Renaut v. Lynch, ___ F.3d ___, No. 14-1766, 2015 WL 3486688, at *3 (1st Cir. June 3, 2015) ("[A]n alien's case could be reopened if he failed to receive notice, so long as he complied with the statute's address requirements."); see also Velásquez-Escovar v. Holder, 768 F.3d 1000, 1004 (9th Cir. 2014); Domínguez v. U.S. Atty. Gen., 284 F.3d 1258, 1260-61 & n.4 (11th Cir. 2002); Mecaj v. Mukasey, 263 F. App'x 449, 451 (6th Cir. 2008) (unpublished); Jiang v. Gonzales, 239 F. App'x 62, 64 (5th Cir. 2007) (per curiam) (unpublished). Ledesma does argue that his duty to update his address "had not yet attached" when he moved to Dorchester in October of 2010. He contends that is the case because the Department of Homeland Security did not file Ledesma's Notice to Appear with the - 6 - immigration court in Boston -- and thus initiate removal proceedings against him in that court -- until months later, in February of 2011. But he cites no authority for the proposition that the government's lodging of the Notice to Appear with the immigration court is a precondition to an alien's duty to keep immigration officials apprised of any updates to his address. And "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citation omitted). And we note, in any event, that nothing in the statute -- or the written notice provided to aliens on the Notice to Appear form -- indicates there is such a precondition to the address-updating duty. Indeed, the immigration courts -- whom the written warnings in the Notice to Appear state should be the recipient of aliens' required change-of-address forms -- had published docketing rules at the time relevant to Ledesma's proceedings indicating that the immigration courts accept change- of-address forms "even if no Notice to Appear has been filed" with the immigration court. Office of the Chief Immigration Judge, U.S. Dep't of Justice, Uniform Docketing System Manual, at II-7, II-10 (Apr. 2009), https://www.hsdl.org/?view&did=10761. - 7 -  We thus hold that Ledesma is not entitled to reopen in absentia removal proceedings on the basis of not having received the notice Congress required. And so we deny the petition for review. - 8 - 

05-6566-cv Rivkin v. Century 21 Teran Realty LLC 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 ------------- 6 7 August Term 2006 8 9 Argued: March 27, 2007 Decided: July 23, 2008 10 11 (Question certified to New York Court of Appeals: July 12 12, 2007. 13 Question answered by New York Court of Appeals: April 14 24, 2008.) 15 16 Docket No. 05-6566-cv 17 18 --------------------------------------------------X 19 20 OLEG RIVKIN, 21 22 Plaintiff-Appellant, 23 24 - against - 25 26 CENTURY 21 TERAN REALTY LLC, ANDREW PECK, CHLOE DRESSER and 27 JOSHUA LUBORSKY, 28 29 Defendants-Appellees, 30 31 SUSANNE MARTIN and ROBERT MARTIN, 32 33 Defendants. 34 35 --------------------------------------------------X 36 37 Before: FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges. 38 39 Plaintiff-Appellant Oleg Rivkin appeals from an oral decision and 40 order of the United States District Court for the Northern 41 District of New York (Sharpe, J.) granting Defendants-Appellees’ 42 motion for summary judgment and dismissing all of Rivkin’s 43 claims. This Court certified to the New York Court of Appeals the 44 question whether Defendants-Appellees, acting as buyer’s agents, 45 breached a fiduciary duty to Plaintiff-Appellant by failing to -1-  1 disclose the representation of a competing bidder for the 2 property Plaintiff-Appellant sought to purchase. The Court of 3 Appeals having answered that question in the negative, the 4 decision of the district court is now affirmed. 5 6 7 ROBERT J. TOLCHIN, New York, NY, for Plaintiff- 8 Appellant. 9 10 STEPHEN H. VOLKHEIMER, Hiscock & Barclay, LLP, Albany, 11 NY, for Defendants-Appellees. 12 13 14 FEINBERG, Circuit Judge: 15 Plaintiff-Appellant Oleg Rivkin appeals from an oral 16 decision and order of the United States District Court for the 17 Northern District of New York (Sharpe, J.). The district court 18 (1) granted summary judgment to Defendants-Appellees Century 21 19 Teran Realty LLC (hereafter “Teran”), its owners, Andrew Peck and 20 Chloe Dresser, and Joshua Luborsky, a real estate broker 21 associated with Teran, and (2) dismissed Rivkin’s complaint. 22 Plaintiff-Appellant argues that we should reverse the district 23 court and remand. We assume the parties’ familiarity with the 24 underlying facts and procedural history of this case, as set 25 forth in our prior opinion, see Rivkin v. Century 21 Teran Realty 26 LLC, 494 F.3d 99, 100-103 (2d Cir. 2007) (“Rivkin I”). 27 In July 2007, we decided in Rivkin I that this case raised 28 a significant issue of New York law regarding the nature of the 29 fiduciary duty a real estate buyer’s agent owes to the buyer. 30 Since the issue had public policy implications for the State of -2-  1 New York and there was no direct state law precedent on that 2 question, we certified to the New York Court of Appeals the 3 following question: “Did any or all of Defendants-Appellees 4 breach a fiduciary duty to Plaintiff-Appellant Rivkin by failing 5 to disclose, in any form, Defendants-Appellees’ representation of 6 a competing buyer for the property Rivkin sought to buy?” Id. at 7 108. 8 The New York Court of Appeals accepted certification and in 9 a unanimous opinion, filed in April 2008, answered the certified 10 question “in the negative.” See Rivkin v. Century 21 Teran Realty 11 LLC, 10 N.Y.3d 344, 357 (2008) (“Rivkin II”). The Court of 12 Appeals upheld a buyer’s agent’s duties of “undivided loyalty . . 13 . [and] full disclosure” owed to the buyer under the common law 14 of agency, id. at 355 (quoting Real Property Law § 443(3)(c) & 15 (4)(a)), but the court ruled that only “the buyer’s individual 16 agent” is subject to these fiduciary duties -- not “the agent’s 17 firm,” id. at 356 (emphasis in the original). The court reasoned 18 that, when two or more real estate brokers, affiliated with the 19 same firm, represent different bidders on the same property, they 20 “have every reason to negotiate in their clients’ best interest,” 21 consistent with their fiduciary duties, because they “only earn 22 commissions for sales to their own clients.” Id. Therefore, 23 although the court acknowledged that “[a]n individual agent . . . 24 may not represent multiple buyers bidding on the same property -3-  1 without making disclosure and obtaining consent” from the 2 multiple prospective buyers involved, id. at 357, it concluded 3 that “unless a real estate brokerage firm and principal 4 specifically agree otherwise, the firm is not obligated to insure 5 that its affiliated licensees forgo making offers on behalf of 6 other buyers for property on which the principal has already 7 bid.” Id. at 356. It was clear from the record that Rivkin’s 8 individual agent (Luborsky) did not represent multiple buyers in 9 the transaction, thus fully complying with his duties to 10 Plaintiff-Appellant. Id. at 350-51. 11 Thereafter, we gave the parties an opportunity to comment 12 in letter briefs on the opinion in Rivkin II. Plaintiff- 13 Appellant, in his letter-brief, argued that we should still 14 reverse the district court’s ruling and remand. He claimed that, 15 even though Teran owed him no fiduciary duty of loyalty and full 16 disclosure under New York law, as defined by the New York Court 17 of Appeals in Rivkin II, Teran had assumed such duties by 18 contract. In Plaintiff-Appellant’s view, Rivkin II did not 19 address his theory of a contract-based fiduciary relationship 20 between Teran and himself. Consequently, Plaintiff-Appellant 21 argues, the New York Court of Appeals’ opinion is not dispositive 22 of all the issues on appeal. Plaintiff-Appellant reiterates his 23 claim, originally made to us in his appeal from the district 24 court, that apart from the legal duties to which Teran’s -4-  1 employees are subject on an individual basis a number of 2 circumstances in this case indicate the existence of a 3 contractually-created fiduciary duty of loyalty and disclosure 4 owed by Teran itself. 1 At the very least, Plaintiff-Appellant 5 urges us to find that triable issues of fact remained as to the 6 existence and scope of such a contractually-created duty, 7 warranting reversal of the district judge’s grant of summary 8 judgment for Defendant-Appellees. 9 We are unpersuaded by Plaintiff-Appellant’s arguments 10 before us now and decline his invitation to remand the case to 11 the district court. We remind Plaintiff-Appellant that the 12 certified question specifically asked whether “any or all of 13 Defendants-Appellees breach[ed] a fiduciary duty to Rivkin.” 14 Rivkin I, 494 F.3d at 108 (emphasis added). Our framing the 15 question in this broad manner allowed the Court of Appeals to 16 explore different theories pursuant to which a fiduciary 17 relationship might have existed under the facts of the case. When 18 certifying, we explicitly stated that “the certified question may 19 be deemed expanded to cover any further pertinent question of New 1 In his original brief to us, Plaintiff-Appellant raised the issue of the voluntary assumption by Teran of fiduciary duties by agreement. We note that his brief, as well as the entire record of the case filed with this Court, was transmitted to the New York Court of Appeals, along with our certification opinion. See Rivkin I, 494 F.3d at 108. The New York Court of Appeals was therefore aware of the parties’ arguments to this Court leading to our decision in Rivkin I. If Plaintiff-Appellant had any doubts about the completeness of the New York Court of Appeals’ review of his arguments, he could certainly have petitioned that court for a rehearing of the case, but apparently did not do so. -5-  1 York law involved in this appeal that the Court of Appeals 2 chooses to answer.” Id. In the end, that court clearly answered 3 the certified question in the negative, thus finding that Teran 4 (1) had no fiduciary duty to Rivkin; and (2) did not commit any 5 fiduciary breach by failing to disclose the representation by a 6 different agent of the firm of a competing buyer for the property 7 Rivkin sought to buy. Rivkin II, 10 N.Y.3d at 357. 8 The New York Court of Appeals expressly recognized that 9 there could be an agreement between a real estate brokerage firm 10 and a prospective buyer, through which the firm could undertake 11 fiduciary duties otherwise not imposed by law. Id. at 356 12 (“unless a real estate brokerage firm and principal specifically 13 agree otherwise, the firm is not obligated to insure that its 14 affiliated licensees forgo making offers on behalf of other 15 buyers”)(emphasis added). The New York Court of Appeals also took 16 into account and quoted the statutorily-mandated terms of the 17 disclosure form entitled “Disclosure Regarding Real Estate Agency 18 Relationship” which Defendant Luborsky, as Rivkin’s buyer’s 19 broker, presented to his client and which Rivkin himself signed. 20 Rivkin II, 10 N.Y.3d at 353 (quoting former N.Y. Real Property 21 Law § 443(4) which prescribed the content of the disclosure 22 form). Accordingly, in deciding that there was no fiduciary 23 breach by Teran, the court was obviously not satisfied that this 24 form was tantamount to an agreement giving rise to contractual -6-  1 duties not prescribed by the common law of agency. Rivkin 2 additionally relies on the language in the Buyer Agency Agreement 3 form published on Teran’s website. But that model agreement, as 4 Rivkin himself concedes, was never signed by either Luborsky or 5 Rivkin; his reliance is, therefore, misplaced. Before responding 6 to the certified question in the negative, the New York Court of 7 Appeals assessed the parties’ allegations against the factual 8 record and in the most categorical terms concluded that Teran’s 9 conduct did not amount to violation of any duty, legal or 10 contractual, owed to Rivkin. 11 We cannot revisit the conclusions of the New York Court of 12 Appeals. Plaintiff asks us to disregard the decision of New 13 York’s highest court on a determinative substantive issue that 14 requires us to interpret and apply New York law. This we cannot 15 do. “[T]he interpretation placed by the highest court of the 16 state upon its statutes is conclusive here.” Smiley v. Kansas, 17 196 U.S. 447, 455 (1905). 18 For the foregoing reasons, we AFFIRM the ruling of the 19 district court. -7- 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ARACELY MARINELARENA, No. 14-72003 Petitioner, Agency No. v. A095-731-273 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued April 6, 2016 Resubmitted August 4, 2017 Pasadena, California Filed August 23, 2017 Before: A. Wallace Tashima, Barry G. Silverman, and Susan P. Graber, Circuit Judges. Opinion by Judge Graber; Dissent by Judge Tashima 2 MARINELARENA V. SESSIONS SUMMARY* Immigration The panel denied in part and dismissed in part Aracely Marinelarena’s petition for review of the Board of Immigration Appeals’ decision finding her ineligible for cancellation of removal because she had failed to meet her burden of proof to show that her conviction was not for a disqualifying controlled substance offense. The panel held that the conspiracy statute under which Marinelarena was convicted, California Penal Code § 182(a)(1), is overbroad but divisible as to the target crime. The panel further held that the target crime, sale and transport of a controlled substance under California Health and Safety Code § 11352, is overbroad and divisible as to the specific controlled substance. Accordingly, the panel applied the modified categorical approach and concluded that the record was inconclusive because Marinelarena’s guilty plea could have rested on an overt act that did not relate to heroin. Addressing the effect of the inconclusive record, the panel further held that Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), which held that a petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, remains good law because it is not irreconcilable with the later Supreme Court cases of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013). * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  MARINELARENA V. SESSIONS 3 Therefore, the panel concluded that Marinelarena is ineligible for cancellation because, with respect to eligibility for relief, she bears the burden of proof to show that her conviction did not relate to a controlled substance, and she could not meet this burden on an inconclusive record. The panel also concluded that it lacked jurisdiction to consider Marinelarena’s unexhausted claim that the expungement of her conviction removes it from the definition of conviction under the immigration laws. Dissenting, Judge Tashima disagreed with the majority’s conclusion that Moncrieffe does not abrogate Young, concluding that the decisions are irreconcilable. Judge Tashima would grant the petition for review. COUNSEL Andrew Knapp (argued), Supervising Attorney; Laura Free (argued), Isis Miranda (argued), Lilit Arabyan, and Eric M. Sowatsky, Certified Law Students; Southwestern Law School, Los Angeles, California; for Petitioner. Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior Litigation Counsel; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. Brian Goldman (argued), Orrick Herrington & Sutcliffe LLP, San Francisco, California; Manuel Vargas and Andrew Wachtenheim, Immigrant Defense Project, New York, New York; Jayashri Srikantiah and Lisa Weissman-Ward, 4 MARINELARENA V. SESSIONS Immigrants’ Rights Clinic, Mills Legal Clinic, Stanford Law School, Stanford, California; for Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, Asian Americans Advancing Justice-Asian Law Caucus, Community Legal Services in East Palo Alto, Detention Watch Network, Florence Immigrant and Refugee Rights Project, Heartland Alliance’s National Immigrant Justice Center, Immigrant Legal Resource Center, National Immigration Law Center, National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Public Counsel, and U.C. Davis Immigration Law Clinic. OPINION GRABER, Circuit Judge: Petitioner Aracely Marinelarena, a native and citizen of Mexico, stands convicted of conspiring to sell and transport a controlled substance in violation of California Penal Code section 182(a)(1). After the federal government initiated removal proceedings, she conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b). The immigration judge (“IJ”) denied relief. The Board of Immigration Appeals (“BIA”) held that Petitioner had fallen short of meeting her burden of proof, by failing to show that her conviction was not for a disqualifying controlled substance offense, and dismissed the appeal. We hold that the conspiracy statute under which Petitioner was convicted is overbroad but divisible, that Petitioner failed to carry her burden of proof to demonstrate that her conviction did not involve a federally controlled substance, and that she has failed to exhaust the argument that expungement of her  MARINELARENA V. SESSIONS 5 conviction erases its immigration consequences. Accordingly, we deny the petition for review in part and dismiss it in part. FACTUAL AND PROCEDURAL BACKGROUND Petitioner first entered the United States in 1992 without admission or inspection. In 2000, she was convicted of false personation of a public officer, in violation of California Penal Code section 529. In 2006, the State of California filed a criminal complaint against Petitioner that charged her with one count of conspiring to commit a felony, in violation of California Penal Code section 182(a)(1). Specifically, it charged Petitioner with conspiring to sell and transport a controlled substance in violation of California Health and Safety Code section 11352. The criminal complaint alleged several overt acts in furtherance of the conspiracy, one of which—the transportation of three bags containing heroin—referred to a particular controlled substance. On March 26, 2007, pursuant to a plea of guilty, Petitioner was convicted of violating California Penal Code section 182(a)(1). The state court sentenced her to 136 days’ imprisonment and three years’ probation.1 Two days later, the government served Petitioner with a notice to appear for removal proceedings. The notice charged Petitioner with removability as an alien who had remained in 1 At her removal hearings, Petitioner submitted the complaint to the IJ and admitted that she was “convicted solely of Count 1 of the Complaint,” which alleged that she had committed “the crime of CONSPIRACY TO COMMIT A CRIME, in violation of PENAL CODE SECTION 182(a)(1),” specifically, conspiring “to commit the crime of SELL AND TRANSPORT, in violation of Section 11352 of the HEALTH AND SAFETY Code.” 6 MARINELARENA V. SESSIONS the United States longer than permitted, in violation of 8 U.S.C. § 1227(a)(1)(B). Petitioner conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b). Around the same time, Petitioner filed separate motions in state court to vacate her false personation and conspiracy convictions under California Penal Code section 1203.4. In 2009, California courts granted Petitioner’s motions and vacated those convictions. At a removal hearing in 2011, Petitioner argued that her conspiracy conviction did not constitute a controlled substance offense as defined by the Controlled Substances Act, 21 U.S.C. § 802, because the conviction documents do not specify the controlled substance. Petitioner also argued that she was eligible for cancellation of removal because her convictions had been vacated. In 2012, the IJ held that Petitioner had failed to meet her burden to demonstrate eligibility for cancellation of removal and ordered her removed to Mexico. The IJ reasoned that Petitioner had failed to show that she was eligible for relief despite her convictions for false personation and conspiracy to sell and transport a controlled substance. The IJ noted that Petitioner’s false personation conviction under California Penal Code section 529 appeared to qualify as a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ also noted that Petitioner’s conspiracy conviction under California Penal Code section 182(a)(1) “for conspiracy to distribute heroin” barred her from relief because it was a disqualifying controlled substance offense. Lastly, although both convictions had been vacated, the IJ held that, because the convictions were not vacated on the merits, they remained valid for immigration purposes.  MARINELARENA V. SESSIONS 7 On appeal, the BIA held that Petitioner had failed to establish that her conspiracy conviction did not qualify as a controlled substance offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II). The BIA explained that, although California Health and Safety Code section 11352 is broader than the Federal Controlled Substances Act, 21 U.S.C. § 802, because the state law covers more drugs than the federal definition, Petitioner submitted no evidence identifying the controlled substance and, therefore, did not meet her burden of proof. The BIA did not reach the IJ’s additional ruling that Petitioner’s false personation conviction was a crime involving moral turpitude. Nor did it reach the expungement question, because Petitioner did not raise it in her briefing to the BIA. Petitioner timely petitions for review. We also granted a motion by a group of interested entities to file a joint amicus brief. STANDARD OF REVIEW We review de novo questions of law and constitutional claims. Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). DISCUSSION A. Controlled Substance Offense To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b), a petitioner must meet the following requirements: (1) have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of application; (2) have been 8 MARINELARENA V. SESSIONS a person of good moral character during that period; (3) not have been convicted of, as applicable here, a controlled substance offense; and (4) show that removal would cause “exceptional and extremely unusual hardship” to a family member who is a citizen of the United States or an alien lawfully admitted for permanent residence. Our analysis concerns the third requirement—that the petitioner not have been convicted of a controlled substance offense. To determine whether a state conviction qualifies as an offense relating to a controlled substance as defined under federal law, we employ the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575 (1990). “First, we ask whether the state law is a categorical match with a federal [controlled substance] offense,” looking “only to the ‘statutory definitions’ of the corresponding offenses.” United States v. Martinez-Lopez, No. 14-50014, 2017 WL 3203552, at *3 (9th Cir. July 28, 2017) (en banc) (quoting Taylor, 495 U.S. at 600). “If a state law proscribes the same amount of or less conduct than that qualifying as a federal [controlled substance] offense, then the two offenses are a categorical match.” Id. (internal quotation marks omitted). That result would end our analysis. But if the offenses are not a categorical match, we proceed to a second step, asking whether the overbroad portion of the statute of conviction is “divisible,” meaning that it “sets out one or more elements of the offense in the alternative.” Id. at *4 (quoting Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)). We will “consult ‘authoritative sources of state law’ to determine whether a statute contains alternative elements defining multiple crimes or alternative means by which a defendant might commit the  MARINELARENA V. SESSIONS 9 same crime.” Id. (quoting Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)). Elements are “those circumstances on which the jury must unanimously agree.” United States v. Vega-Ortiz, 822 F.3d 1031, 1035 (9th Cir. 2016). If the statute is divisible, “then we may proceed to the third step in our analysis and apply the modified categorical approach.” Martinez-Lopez, 2017 WL 3203552, at *4. Under the modified categorical approach, “we examine judicially noticeable documents of conviction ‘to determine which statutory phrase was the basis for the conviction.’” Id. (quoting Descamps, 133 S. Ct. at 2285). In short, only when a state statute is both overbroad and divisible do we employ the modified categorical approach. We do so by examining certain conviction-related documents, including “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” United States v. Leal-Vega, 680 F.3d 1160, 1168 (9th Cir. 2012) (internal quotation marks omitted). We agree with Petitioner that California Penal Code section 182(a)(1) is overbroad, meaning that the categorical approach does not apply. But Petitioner also contends that the statute is indivisible, precluding the modified categorical approach, and therefore cannot qualify as a controlled substance offense. We disagree. 1. Categorical Approach California Penal Code section 182(a)(1) punishes a broader range of conduct than either 8 U.S.C. 10 MARINELARENA V. SESSIONS § 1182(a)(2)(A)(i)(II) or § 1227(a)(2)(B)(i). A defendant could be convicted under section 182(a)(1) for any criminal conspiracy, whether or not it relates to a controlled substance. A conviction under section 182(a)(1), therefore, cannot count as a controlled substance offense under the categorical approach. See, e.g., United States v. Trent, 767 F.3d 1046, 1052 (10th Cir. 2014) (holding that a conspiracy conviction under Okla. Stat. Ann. tit. 21, § 421(A)—a statute with text similar to the text of Cal. Penal Code § 182(a)(1)—is not a serious drug offense under the categorical approach because “the statute could be violated in many ways that have nothing to do with drugs”), cert. denied, 135 S. Ct. 1447 (2015), abrogated on other grounds by Mathis, 136 S. Ct. at 2251. 2. Divisibility Section 182(a) criminalizes the act of “two or more persons [who] conspire: (1) To commit any crime.” (Emphasis added.) Here, we must consider whether the conspiracy statute is divisible as to the target crime.2 Faced with a statute that incorporates “any” California crime by reference, we must “consult ‘authoritative sources of state law’ to determine whether [the] statute contains alternative elements defining multiple crimes or alternative means by 2 United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014), does not affect our analysis of whether the conspiracy statute, California Penal Code section 182(a)(1), is divisible. Garcia-Santana held that Nevada’s conspiracy statute, Nev. Rev. Stat. § 199.480, is overbroad because it does not contain, as an element, an overt act. Garcia-Santana, 774 F.3d at 534. In a footnote, the opinion conveys that the omission of an overt act requirement cannot be cured by resort to the modified categorical approach to show that an overt act was proved in a given case. Id. at 534 n.3. As we discuss below in text, an overt act is a requirement for a conspiracy conviction under California law.  MARINELARENA V. SESSIONS 11 which a defendant might commit the same crime.” Martinez- Lopez, 2017 WL 3203552, at *4 (quoting Mathis, 136 S. Ct. at 2256). The key question is whether a jury must find the purported element specifically. Here, the California Supreme Court has supplied the answer. California law requires jurors to agree unanimously on the object crime of the conspiracy. “Under Penal Code section 182 the jury must also determine which felony defendants conspired to commit, and if that felony is divided into degrees, which degree of the felony they conspired to commit.” People v. Horn, 524 P.2d 1300, 1304 (Cal. 1974) (emphasis added); see also People v. Smith, 337 P.3d 1159, 1168 (Cal. 2014) (“A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act . . . in furtherance of the conspiracy.” (emphasis added) (internal quotation marks omitted)). Petitioner relies on a California Court of Appeal case, People v. Vargas, 110 Cal. Rptr. 2d 210 (Ct. App. 2001), to argue that section 182(a)(1) is indivisible. In Vargas, the court considered whether jurors must agree unanimously on all the object crimes of a multipurpose conspiracy, or if it is enough for the jurors to agree that crime, generally, was the object of the conspiracy. Id. at 244–47. The opinion has caused uncertainty as to the jury unanimity requirement for multipurpose conspiracy convictions in California. See, e.g., Trent, 767 F.3d at 1061 (citing Vargas for the proposition that some jurisdictions “may” not require that “the jury agree unanimously on what crime the conspirators agreed to commit”). 12 MARINELARENA V. SESSIONS Whatever the California Court of Appeal intended to convey in Vargas, the California Supreme Court has never recognized a jury unanimity exception for multipurpose conspiracies. Our task, when answering a question of state law, is to follow the precedents of the state’s highest court. See United Bhd. of Carpenters & Joiners of Am. Local 586 v. NLRB, 540 F.3d 957, 963 (9th Cir. 2008) (“In analyzing questions of state law, we are bound by the decisions of the state’s highest court.”); Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001) (“[F]ederal courts are bound by the pronouncements of the state’s highest court on applicable state law. . . . In assessing how a state’s highest court would resolve a state law question—absent controlling state authority—federal courts look to existing state law without predicting potential changes in that law.” (internal quotation marks omitted)). Because the California Supreme Court requires that jurors agree on a specified object crime in order to convict a person of conspiracy, California Penal Code section 182(a)(1) is divisible. 3. Modified Categorical Approach Because California Penal Code section 182(a)(1) is both overbroad and divisible, we proceed to the modified categorical approach, in which we examine the specifics of Petitioner’s conviction. The only document in the record relating to a controlled substance is the criminal complaint, which shows that the target offense of the conspiracy was a violation of California Health and Safety Code section 11352. That target offense adds an additional layer to our analysis, because California Health and Safety Code section 11352 is, with respect to the specific controlled substance, itself an overbroad but divisible statute to which the modified  MARINELARENA V. SESSIONS 13 categorical approach applies. Martinez-Lopez, 2017 WL 3203552, at *4–7. The criminal complaint identifies transportation of heroin in describing one of the overt acts alleged as part of the charged conspiracy; no other drug is mentioned in the criminal complaint. Heroin is a controlled substance under federal law. See 21 U.S.C. § 802(6) (defining “controlled substance” by reference to statutory schedule); 21 U.S.C. § 812, Schedule I (b)(10) (listing heroin on Schedule I). Even so, the record in this case is inconclusive. The conspiracy count to which Petitioner pleaded guilty does not identify the particular controlled substance except in the list of overt acts. But there is no plea agreement, plea colloquy, judgment, or other document in the record that reveals the factual basis for Petitioner’s guilty plea. Because Petitioner’s guilty plea could have rested on an overt act that did not relate to heroin, we cannot conclusively connect the transportation of heroin with her conviction. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003) (noting that “[c]harging papers alone are never sufficient” to establish the elements of conviction (internal quotation marks omitted)); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (noting that a charging document “contain[s] the elements of the crime the government set[s] out to prove; it [does] not establish the elements to which [the petitioner] admitted in his guilty plea”). On an inconclusive record, Petitioner is ineligible for relief because, with respect to eligibility for relief, she bears the burden of proof to show that her conviction did not relate to a federally controlled substance. “If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the 14 MARINELARENA V. SESSIONS burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d) (emphasis added). In Young v. Holder, 697 F.3d 976, 990 (9th Cir. 2012) (en banc), we held that a “petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record of conviction.” Petitioner argues that we must overrule that aspect of Young because it is irreconcilable with a later United States Supreme Court case, Moncrieffe v. Holder, 133 S. Ct. 1678, 1687 (2013). We turn to that pivotal issue. B. Burden of Proof If Young remains good law, Petitioner is ineligible for cancellation of removal because the ambiguity in the record prevents her from proving that her conviction did not relate to a controlled substance as defined by federal law. A three- judge panel may “reject [a] prior opinion of this court” if an intervening and inconsistent Supreme Court decision has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller, 335 F.3d at 900. Petitioner and Amici contend that this standard is met because, under Moncrieffe, the inquiry under the categorical approach is whether “a conviction of the state offense necessarily involved [the] facts equating to the generic federal offense.” 133 S. Ct. at 1684 (emphasis added) (internal quotation marks and brackets omitted). That inquiry, they assert, is purely a question of law—not fact—as to which the burden of proof is irrelevant. We disagree both as to the relevance of Moncrieffe and as to the nature of the inquiry in the present context.  MARINELARENA V. SESSIONS 15 In Young, the petitioner was removable and was found ineligible for cancellation of removal on account of his conviction for “sale/transportation/offer[ing] to sell” cocaine base, an aggravated felony. 697 F.3d at 980–81. The record of his conviction was inconclusive concerning the aggravated felony designation.3 Because, in the REAL ID Act, Congress “place[d] the burden of demonstrating eligibility for cancellation of removal squarely on the noncitizen,” id. at 988, we held that the petitioner had the burden to establish that he had not committed an aggravated felony, id. at 989; see also 8 U.S.C. § 1229a(c)(4) (“An alien applying for relief or protection from removal has the burden of proof . . . .”). The petitioner failed to satisfy his burden and, therefore, was ineligible for relief from removal because the record was inconclusive on this point. Young, 697 F.3d at 990. In the later Supreme Court case, the petitioner had pleaded guilty to possession with intent to distribute marijuana in violation of a Georgia state law. Moncrieffe, 133 S. Ct. at 1683. The BIA found the petitioner removable for having committed a drug-trafficking crime that is punishable as a felony under the federal Controlled Substances Act, thus making it an aggravated felony. Id.; see also Moncrieffe v. Holder, 662 F.3d 387, 389–90 (5th Cir. 2011) (explaining the issue in the case as being whether the petitioner was removable as charged for having committed this crime). The Supreme Court asked and answered the question whether the petitioner’s conviction could be considered categorically an aggravated felony when the 3 The petitioner had pleaded guilty to a charging document that alleged 14 different theories of how he could have committed the offense, some of which were aggravated felonies and some of which were not. Young, 697 F.3d at 990. 16 MARINELARENA V. SESSIONS Controlled Substances Act punishes the analogous offense as both a felony and a misdemeanor. 133 S. Ct. at 1684–85. The Court held that the petitioner was not removable because he had not been convicted of an aggravated felony; applying the categorical approach, the Controlled Substances Act did not “necessarily” punish as a felony all the conduct proscribed under the Georgia statute. Id. at 1686–87. Moncrieffe differs from Young because, among other reasons, the two cases address entirely different legal issues. Moncrieffe addressed the question whether the petitioner was removable, a question as to which the government bears the burden of proof. Young Sun Shin v. Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008). By contrast, the relevant portion of Young addressed only the question whether the petitioner was eligible for cancellation of removal. As to that question, the noncitizen, not the government, bears the burden of proof. 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d). Thus it is Congress, not the Supreme Court, that assigned the burden of proof to a noncitizen who seeks relief in the form of cancellation of removal. See 8 U.S.C. § 1229a(c)(4) (“An alien applying for relief or protection from removal has the burden of proof to establish that the alien” is eligible.). The Moncrieffe opinion does not cite that statute anywhere, and for good reason. As noted, the issue before the Court concerned removability, not relief from removal. It is well established that the party who bears the burden of proof loses if the record is inconclusive on the crucial point. See, e.g., Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005) (holding that, under the Individuals with Disabilities Education Act, whichever party seeks relief must carry the burden of persuasion, whether it be the parents or the school district); Dir., Office of Workers’ Comp. Programs  MARINELARENA V. SESSIONS 17 v. Greenwich Collieries, 512 U.S. 267, 272–81 (1994) (holding that, under the Administrative Procedure Act, the burden of proof encompasses the burden of persuasion; when the evidence is evenly balanced, the party with the burden must lose). Moncrieffe did not cite, let alone overrule, those and similar cases recognizing the effect of the burden of proof when the relevant evidence is in equipoise. That is because, as discussed below, Moncrieffe is not about the burden of proof. Under Supreme Court law, when evidence is in equipoise, the burden of persuasion determines the outcome. Nor is it problematic that the same inconclusive evidence can result in a favorable decision on removability (Moncrieffe) yet an unfavorable decision on cancellation (Young). See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1164–65 (11th Cir. 2008) (noting that two factual findings were not inconsistent given that “it is logically possible for the losing side to have varied with, because it depended on, the burden of proof”); cf. United States v. Meza-Soria, 935 F.2d 166, 169 (9th Cir. 1991) (noting that “courts have made it quite clear that because different standards of proof are involved, acquittal in a criminal action does not bar a civil suit based on the same facts” (internal quotation marks and brackets omitted)). In Young, we joined the Fourth and Tenth Circuits in recognizing that, when the burden of persuasion rests on the noncitizen to show eligibility for cancellation of removal, an inconclusive record fails to satisfy that burden. 697 F.3d at 989 (citing Salem v. Holder, 647 F.3d 111, 115–16 (4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288, 1289–90 (10th Cir. 2009)); see also Syblis v. Att’y Gen. of U.S., 763 F.3d 348, 356–57 (3d Cir. 2014) (reaching the same conclusion, post-Moncrieffe); Sanchez v. Holder, 757 F.3d 712, 720 n.6 (7th Cir. 2014) (same). But see Sauceda v. 18 MARINELARENA V. SESSIONS Lynch, 819 F.3d 526, 531, 532 & n.10 (1st Cir. 2016) (rejecting Young and holding that Moncrieffe creates a presumption that a defendant committed the “least of the acts” that goes unrebutted when Shepard documents “shed no light on the nature of the offense or conviction,” even in the cancellation-of-removal context).4 To be sure, Moncrieffe acknowledged that its analysis for determining whether a particular crime of conviction is categorically a crime involving moral turpitude “is the same in both” the removal and cancellation contexts. 133 S. Ct. at 1685 n.4 (citing Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), which considered whether the petitioner was eligible for cancellation of removal after having committed two simple possession offenses under Texas state law). And that is true, so far as the discussion in Moncrieffe goes: “[c]onviction is the relevant statutory hook” whether determining removability or eligibility for relief from removal. Id. at 1685 (internal quotation marks omitted). But Moncrieffe did not discuss the differences in the burden of proof in those two contexts; it had no reason to. To the contrary, the Court limited its rejection of the government’s suggestion that a noncitizen should have an opportunity to disprove the misdemeanor version of the Georgia statute to the categorical context: “This solution is entirely 4 In Le v. Lynch, 819 F.3d 98, 108 (5th Cir. 2016), the court held that, “[n]otwithstanding the inconclusive evidence in the instant case, . . . the burden remains on [the petitioner] to prove eligibility for relief from removal.” But there, the ambiguity did not rest on a divisible statute, and the court declined to decide “whether Moncrieffe affected how courts should apply the modified categorical approach to determine whether a prior conviction disqualifies a noncitizen from relief from removal when the record of conviction is ambiguous as to whether the elements of the crime correspond to a disqualifying offense.” Id. at 107 n.5.  MARINELARENA V. SESSIONS 19 inconsistent with both the INA’s text [8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3)] and the categorical approach.” Moncrieffe, 133 S. Ct. at 1690 (emphasis added). Moncrieffe therefore cannot be read to inform the relevant dispute in Young, which pertained only to the operation of the burden of proof when the modified categorical approach applies.5 For all these reasons, Moncrieffe and Young are not clearly irreconcilable. We are equally unpersuaded by Petitioner and Amici’s argument that the modified categorical approach involves only a legal inquiry and that the burden of proof is irrelevant after Moncrieffe and Descamps. As noted, Moncrieffe did not decide or even suggest anything about the burden of proof. Descamps, for its part, did not intimate that every inquiry under the modified categorical approach is a question of law; it simply held that the modified categorical approach was “a tool for implementing the categorical approach” and, therefore, could not be applied to indivisible statutes. 133 S. Ct. at 2284, 2286–87. 5 Amici also contend that Young is clearly irreconcilable with Moncrieffe because of the latter’s statement that “[t]he categorical approach was designed to avoid” inconsistent treatment of “two noncitizens . . . ‘convicted of’ the same offense.” Moncrieffe, 133 S. Ct. at 1690. The Court made that comment in the context of applying the categorical approach, not the modified categorical approach. And Amici’s proposed solution—overruling Young and allowing relief when the record of conviction is ambiguous—would not eliminate the prospect of inconsistent results: The opportunity for individuals, convicted of a given offense, to obtain relief would still vary depending on the record’s clarity, as only the default rule would change. Such a rule therefore would not ameliorate Amici’s concern about inconsistent treatment of similarly situated persons. 20 MARINELARENA V. SESSIONS Although the modified categorical approach, like the categorical approach, involves some strictly legal issues—such as a statute’s divisibility—the inquiry into which part of a divisible statute underlies the petitioner’s crime of conviction is, if not factual, at least a mixed question of law and fact.6 “[M]ixed questions of law and fact” are those in which “the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard.” Pullman- Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). The modified categorical approach squarely fits within that definition. See Descamps, 133 S. Ct. at 2284–85 (explaining that, under the modified categorical approach, courts may review approved “extra-statutory materials . . . [to] discover which statutory phrase contained within a statute listing several different crimes[] covered a prior conviction.” (internal quotation marks omitted)); Taylor, 495 U.S. at 600 (holding that, under the categorical approach, courts “look only to the fact that the defendant had been convicted of” certain crimes (emphasis added)); see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)). 6 At least one other circuit has held that the determination of the offense of conviction is a purely factual inquiry. See Le, 819 F.3d at 105 (“[T]he alien has the burden of proof to establish that he satisfies the applicable eligibility requirements in order to prove that any grounds for denial do not apply. When an alien’s prior conviction is at issue, the offense of conviction itself is a factual determination, not a legal one. However, determining whether that conviction is a particular type of generic offense is a legal question.” (emphasis added) (citations omitted)).  MARINELARENA V. SESSIONS 21 When reviewing mixed questions of law and fact, we regularly consider the burden of persuasion. See, e.g., Dorrance v. United States, 809 F.3d 479, 484 (9th Cir. 2015) (stating that the question whether taxpayers had a cost basis in assets that they later sold, but for which they paid nothing, “is a mixed question of law and fact” as to which the taxpayers bear the burden of persuasion); United States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013) (noting that “[t]he issue of whether a person has actual or apparent authority to consent to a search is a mixed question of law and fact” and that “the government has the burden of establishing the effectiveness of a third party’s consent to a search”); United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995) (stating that we review de novo the district court’s rulings on the scope of the attorney-client privilege because they involve “mixed questions of law and fact” and that the burden of persuasion is on the party seeking to establish that the privilege applies); United States v. Lingenfelter, 997 F.2d 632, 636, 637 (9th Cir. 1993) (stating that whether police conduct amounts to a “search” within the meaning of the Fourth Amendment is “a mixed question of law and fact” and that the defendant bears the burden of demonstrating that he or she had a legitimate expectation of privacy in the place searched). To summarize, Moncrieffe is about removal; by contrast, Young is about cancellation of removal. Moncrieffe discusses how the categorical approach works when defining a crime involving moral turpitude and says nothing at all about operation of the burden of proof, which was not an issue in that case. Young discusses the burden of proof when applying the modified categorical approach. Although Descamps makes clear that the modified categorical approach is “a tool for implementing the categorical approach,” 133 S. 22 MARINELARENA V. SESSIONS Ct. at 2284, it is a tool that requires the consideration of factual documents within the context of the law and, by that process, makes the burden of proof relevant. Thus, neither Moncrieffe nor Descamps requires us to overrule Young. The decisions are not clearly irreconcilable. C. Expungement Finally, Petitioner argues that the expungement of her conspiracy conviction removes it from the definition of “conviction” under 8 U.S.C. § 1101(a)(48)(A).7 Specifically, she challenges our deference to the BIA’s interpretation of § 1101(a)(48)(A). See Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001) (adopting the BIA’s interpretation of § 1101(a)(48)(A) in In re Roldan, 22 I. & N. Dec. 512 (B.I.A. 1999) (en banc), as “preclud[ing] the recognition of subsequent state rehabilitative expungements of convictions”). Petitioner did not present that claim to the BIA, and it is not exhausted. We lack jurisdiction over an unexhausted claim. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (holding that 8 U.S.C. § 1252(d)(1) “mandates 7 Section 1101(a)(48)(A) provides: The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.  MARINELARENA V. SESSIONS 23 exhaustion and therefore generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below”). Accordingly, we must dismiss the expungement claim.8 Petition DENIED IN PART and DISMISSED IN PART. TASHIMA, Circuit Judge, dissenting: The majority holds that Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), remains good law because it is not clearly irreconcilable with Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Maj. Op. at 19. Under Young, Marinelarena must prove that she was not convicted of a controlled substance offense in order to establish her eligibility for cancellation of removal. Because the record is ambiguous on this point, the majority reasons, Marinelarena cannot satisfy her burden of proof and is thus ineligible for relief. Id. at 13. I disagree with the majority’s conclusion that Moncrieffe does not abrogate Young. Under Moncrieffe, the ambiguity in the record as to Marinelarena’s offense of conviction means that 8 Even if we agreed with Petitioner that this claim qualifies for an exception to the exhaustion requirement, we have rejected a similar argument on the merits. See Reyes v. Lynch, 834 F.3d 1104, 1108 (9th Cir. 2016) (holding that, even though a California court set aside a petitioner’s earlier nolo contendere plea, a “state conviction expunged under state law is still a conviction for purposes of eligibility for cancellation of removal and adjustment of status,” even when the petitioner was never incarcerated, because “the alien was punished or his liberty was restrained by the terms of his probation”). 24 MARINELARENA V. SESSIONS she has not committed an offense disqualifying her from relief. I respectfully dissent. In Moncrieffe, the Supreme Court explained the framework for applying the categorical approach to determine whether a noncitizen has committed an aggravated felony, as defined by the Immigration and Nationality Act. 133 S. Ct. at 1684–85. In cases applying the categorical approach, courts compare the elements of a noncitizen’s offense of conviction to those of a generic federal offense that would disqualify her from relief. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). The Court in Moncrieffe specified that, under the categorical approach, courts should “look ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe, 133 S. Ct. at 1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). “[A] state offense is a categorical match with a general federal offense only if a conviction of the state offense ‘necessarily involved . . . facts equating to [the] general [federal offense].’” Id. (emphasis added) (quoting Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opinion)). “Whether the noncitizen’s actual conduct involved such facts is ‘quite irrelevant.’” Id. (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)). The Court further stated that, if a statute contains multiple, alternative versions of a crime (that is, if the modified categorical approach applies), “a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or ‘some comparable judicial  MARINELARENA V. SESSIONS 25 record of the factual basis for the plea.’” Id. (emphasis added) (quoting Nijhawan v. Holder, 557 U.S. 29, 35 (2009)). The Court labeled this inquiry as a whole “the categorical approach,” as opposed to distinguishing between the categorical and modified categorical approaches. Id. at 1685. In Moncrieffe, the government argued that the petitioner had committed a “felony punishable under the Controlled Substances Act” (“CSA”), which qualifies as an aggravated felony that would allow the petitioner to be deported. Moncrieffe, 133 S. Ct. at 1683. The Court disagreed. Id. at 1684. The record established that Moncrieffe had been convicted under a state statute proscribing conduct that constitutes an offense under the CSA, but the record was ambiguous as to whether the CSA would “‘necessarily’ prescribe felony punishment for that conduct.” Id. at 1685 (emphasis added). The Supreme Court held that “[a]mbiguity on this point means that the conviction did not ‘necessarily’ involve facts that correspond to an offense punishable as a felony under the CSA.” Id. at 1687. “Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony” allowing him to be deported. Id. This analysis is clearly irreconcilable with Young. Young holds that ambiguity in the record as to whether the noncitizen committed an aggravated felony means that she was convicted of the offense for purposes of the immigration statutes. Young, 697 F.3d at 988–99. Moncrieffe holds the opposite: If the record does not conclusively establish that the noncitizen committed the offense, then she was not convicted of the offense for purposes of the immigration statutes. Moncrieffe, 133 S. Ct. at 1687. 26 MARINELARENA V. SESSIONS The majority’s arguments to the contrary are unpersuasive. The majority first contends that Moncrieffe does not control because it “addressed the question whether the petitioner was removable, a question as to which the government bears the burden of proof,” while this case concerns cancellation of removal, for which an applicant bears the burden of proving eligibility. Maj. Op. at 16. But Moncrieffe itself explicitly forecloses this distinction, explaining that the categorical “analysis is the same in both [the removal and cancellation of removal] contexts.” Moncrieffe, 133 S. Ct. at 1685 n.4 (emphasis added). Under Moncrieffe, the framework for applying the categorical and modified categorical approaches does not depend on which party bears the burden of proof in a particular kind of immigration proceeding. The majority sidesteps this explicit instruction by arguing that Moncrieffe “limited” its holding “to the categorical context.” Maj. Op. at 18–19. Per the majority, “Moncrieffe therefore cannot be read to inform the relevant dispute in Young, which pertained only to the operation of the burden of proof when the modified categorical approach applies.” Maj. Op. at 19 (footnote omitted). This purported distinction overstates the difference between the categorical and modified categorical approaches. As the Supreme Court has noted, the modified categorical approach is “a tool for implementing the categorical approach” that allows a court “to examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps v. United States, 133 S. Ct. 2276, 2284 (2013). Thus, in Moncrieffe, the Court outlined both what we have called the “categorical” step of the analysis and the  MARINELARENA V. SESSIONS 27 “modified categorical” step of the analysis, and then labeled the inquiry as a whole “the categorical approach.” Moncrieffe, 133 S. Ct. at 1684–85 (outlining the categorical and modified categorical analysis and stating that “[t]his categorical approach has a long pedigree in our Nation’s immigration law”). That is because the relevant inquiry in both categorical and modified categorical cases is the same: A court must compare the elements of the offense of which the noncitizen was convicted to the elements of a generic federal offense disqualifying her from relief, and then determine what facts are necessarily established by that conviction. The only difference between the two approaches is that, in modified categorical cases, a statute lists “multiple, alternative versions of [a] crime,” Descamps, 133 S. Ct. at 2284, so the court must look to the record of conviction to determine “which particular offense the noncitizen was convicted of.” Moncrieffe, 133 S. Ct. at 1684. Once that determination is made, the relevant question is the same as that in categorical cases: A court must ask what the noncitizen’s conviction necessarily involved, “not what acts [the noncitizen] committed.” Id. at 1685. In Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court reaffirmed that the categorical and modified categorical approaches involve the same analysis. The Court stated that, “when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime,” a court should “line[] up that crime’s elements alongside those of the generic offense and see[] if they match.” Id. at 2248. “Some statutes, however, have a more complicated (sometimes called ‘divisible’) structure, making the comparison of elements harder.” Id. at 2249. Cases involving such statutes apply the modified categorical approach. Under this approach, “a sentencing court looks to a limited class of documents (for 28 MARINELARENA V. SESSIONS example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. “The court can then compare that crime, as the categorical approach commands, with the relevant generic offense.” Id. (emphasis added).1 In other words, whether a case applies what we have called the “categorical” or the “modified categorical” approach, the analysis is the same: The court asks whether the noncitizen was necessarily convicted of an offense disqualifying her from relief. If the record of conviction is ambiguous on this point – as it is in this case – then her “conviction did not ‘necessarily’ involve facts that correspond to” a disqualifying offense. Moncrieffe, 133 S. Ct. at 1687 (emphasis added). Thus, under the modified categorical approach, Marinelarena was not convicted of a controlled substance offense under federal law.2 1 The majority contends that “the inquiry into which part of a divisible statute underlies the petitioner’s crime of conviction is, if not factual, at least a mixed question of law and fact” because the inquiry requires the court to examine certain documents in the record of conviction. Maj. Op. at 20. This argument misses the mark. The relevant point is that, under the modified categorical approach, the court looks at those documents only to determine which crime the petitioner was convicted of, and whether that crime’s elements match those of a disqualifying generic offense. This is a purely legal inquiry. See Descamps, 133 S. Ct. at 2293 (“The modified approach does not authorize a sentencing court to substitute . . . a facts-based inquiry for an elements-based one.”). 2 Although this is an open question in our circuit, another panel recently has characterized Moncrieffe, 133 S. Ct. at 1678, as “suggest[ing] an inconclusive record works to a petitioner’s advantage, regardless of which party bears the burden of proof.” Lozano-Arredondo v. Sessions, 2017 WL 3393454, at *4 (9th Cir. Aug. 8, 2017) (citing Almanza-Arenas v. Lynch, 815 F.3d 469, 488–89 (9th Cir. 2016) (en banc) (Watford, J., concurring in the judgment). In Almanza-Arenas, Judge Watford noted  MARINELARENA V. SESSIONS 29 I would grant the petition and respectfully dissent. that “our decision in Young [is] fundamentally incompatible with the categorical approach, especially after Descamps and Moncrieffe clarified the elements-focused nature of the inquiry.” Almanza-Arenas, 815 F.3d at 489. 

Order entered August 22, 2014 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00274-CR No. 05-14-00275-CR MICHAEL WAYNE JACKSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F10-57228-V, F13-70043-MV ORDER In his brief, appellant cites to, and includes as an appendix, the reporter’s record of an April 16, 2013 hearing. The reporter’s record of the hearing, however, was not filed with the rest of the reporter’s record in the appeals. Accordingly, we ORDER Robin Benton, official court reporter of the 292nd Judicial District Court, to file, within FIFTEEN DAYS of the date of this order, the reporter’s record of the April 16, 2013 hearing. We DIRECT the Clerk to send copies of this order, by electronic transmission, to Robin Benton, official court reporter, 292nd Judicial District Court, and to counsel for all parties. /s/ LANA MYERS JUSTICE 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-08-422-CV THOMAS MCBARRON APPELLANT V. BRANDI POPE, CW TELEVISION NETWORK, APPELLEES NBC UNIVERSAL INC., MAURICE POVICH, AND MOPO PRODUCTIONS INC. ---------- FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY ---------- MEMORANDUM OPINION 1 AND JUDGMENT ---------- We have considered the “Stipulation to Dismiss Appeal” filed by appellant Thomas McBarron and appellees Maurice R. Povich and MoPo Productions, Inc. In accordance with the agreement signed by the parties, we dismiss appellant’s appeal against Maurice R. Povich and MoPo Productions, Inc. See Tex. R. App. P. 42.1(a)(2), 43.2(f). Furthermore, because these parties have agreed to dismiss this appeal, we dismiss as moot appellees Maurice R. Povich and MoPo Productions, Inc.’s motion to dismiss the appeal filed January 2, 2009. 1 … See Tex. R. App. P. 47.4.  Finally, appellant also requests dismissal of his appeal as to all other parties. We therefore dismiss the appeal in its entirety. See Tex. R. App. P. 42.1(a)(1), 43.2(f). PER CURIAM PANEL: MCCOY, J.; CAYCE, C.J.; and MEIER, J. DELIVERED: March 12, 2009 

772 F.Supp. 395 (1991) Paul Joseph ABRAMSON, Plaintiff, v. Floyd ABRAMSON and Jane Abramson, individually, Defendants. No. 90 C 7450. United States District Court, N.D. Illinois, E.D. August 12, 1991. *396 Paul Joseph Abramson, pro se. Royal B. Martin, Jr., Locke E. Bowman, III, Silets & Martin, Ltd., Chicago, Ill., for defendants. MEMORANDUM OPINION AND ORDER ANN C. WILLIAMS, District Judge. This matter is before the court on defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court grants defendant's motion as plaintiff's law suit is barred under the applicable statute of limitations. Background Plaintiff, Paul Joseph Abramson, brings this action against his parents, the defendants, Floyd and Jane Abramson ("Abramsons"), alleging in Count I, that on two separate occasions they caused him to be "incarcerated" in mental institutions without justification when he was a minor. Plaintiff alleges that he was abused and neglected in these institutions and, that as a result, he has suffered, and continues to suffer, from emotional and physical disabilities. Plaintiff alleges that he was first "incarcerated" on or about June 7, 1967, when he was approximately six years old. Defendants placed plaintiff in the University of Chicago affiliated Pritzker Mental Health Center where he resided for approximately three years, until he was discharged on June 27, 1970. Until September 14, 1970, plaintiff was treated at the health center on an out-patient basis. On December 5, 1975, plaintiff was "incarcerated" a second time in the Wilson Center, a residential treatment center in the Minneapolis, Minnesota area, and was not released until 1978. Plaintiff claims that the defendants, his legal guardians, caused him to be placed in these institutions even though they knew that the plaintiff was never evaluated for any mental, emotional or psychiatric problems which would justify his detainment. Plaintiff further claims that while he was "incarcerated" he was neglected and emotionally abused by the treatment staff, involuntarily and wrongfully kept in the institution against his will, and separated from friends and family without any justification in law or fact. Two years after his release from the Wilson Center, plaintiff suffered from emotional problems. In 1980, he began seeing Dr. Helen Warren Ross, Ph.D. on a weekly basis until 1984, and with less frequency after 1984. Beginning in 1980, Dr. Ross attempted to procure plaintiff's medical records from his two periods of incarceration as a child. Affidavit of Dr. Ross ¶ 2. Plaintiff and his doctors obtained the records from the two mental health centers in late 1988 and learned the facts surrounding his treatment and alleged injuries on December 22 or 23, 1988.[1]Id. at ¶ 6, 7. *397 Plaintiff claims that on that date he learned the cause of the physical and emotional injuries which continue to affect him to this day. Finally, it is important to note that the plaintiff was born on August 5, 1961, and thus turned eighteen on August 5, 1979. This complaint was filed on December 24, 1990, more than eleven years after the plaintiff reached the age of majority and at least the same number of years after the events alleged in Count I of the Complaint occurred. Motion to Dismiss Count I of the complaint asserts a claim under the common law of Illinois to recover for plaintiff's alleged "physical and emotional injuries" as a result of his incarcerations. Thus, Count I is governed by Illinois' two-year statute of limitations applicable to claims for damages for injury to the person.[2] The matters alleged in Count I all occurred during the plaintiff's childhood. The statute of limitations governing these injuries would not begin running until the plaintiff turned eighteen on August 5, 1979. Ill.Rev.Stat. Ch. 110, ¶ 13-211. By applying these statutes, the plaintiff's suit would have had to have been commenced within two years of August 5, 1979 to be allowed under the statute of limitations.[3] Since this action was not filed for more then nine years following the expiration of the limitations period on August 5, 1981, Count I fails to state a claim upon which relief can be granted. See Sports Bar, Inc. v. Village of Downers Grove, Ill., 129 F.R.D. 161, 162 (N.D.Ill.1989). There is no conceivable basis pled in Count I for tolling the statute of limitations or excusing the plaintiff's failure to have commenced the suit within the applicable limitations period. Plaintiff suggests that for the past 18 years he has been emotionally scarred in some way, however, there is no allegation that plaintiff was under a legal disability at any time after he reached eighteen. A showing of legal disability would be required to toll the running of the statute once he reached eighteen. See Ill. Rev.Stat. Ch. 110, ¶ 13-211.[4] Plaintiff suggests that the statute of limitations should be tolled in this case under the "discovery rule" because he was not aware of the cause of his injury until he received his medical records in 1988. The discovery rule means that "[t]he statute [of limitations] starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused." Witherell v. Weimer, 85 Ill.2d 146, 156, 52 Ill.Dec. 6, 10, 421 N.E.2d 869, 874 (1981). This rule only applies in cases where the plaintiff was not consciously aware of an injury and, not consciously aware that the injury was caused by wrongful conduct. See e.g., Franke v. Geyer, 209 Ill.App.3d 1009, ____, 154 Ill. Dec. 710, 712, 568 N.E.2d 931, 933 (3d Dist., 1991). The injured person does not need to be completely informed about the *398 circumstances regarding his injury, nor does he need to know that the wrong is legally actionable. Under the discovery rule, the statute of limitations begins to run when "the injured person becomes possessed of sufficient information concerning his injury ... to put a reasonable person on inquiry to determine whether actionable conduct is involved...." Knox College v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976 (1981). See also Franke, 209 Ill.App.3d at ___, 154 Ill.Dec. at 711-12, 568 N.E.2d at 932-33 (a plaintiff need not know all of the facts or circumstances in order for the statute of limitations to begin running); Bates v. Little Co. of Mary Hosp., 108 Ill.App.3d 137, 140-41, 63 Ill.Dec. 887, 890, 438 N.E.2d 1250, 1253 (1st Dist.1982); Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 171, 52 Ill.Dec. 1, 4-5, 421 N.E.2d 864, 869 (1981); Witherell, 85 Ill.2d 146, 156, 52 Ill.Dec. 6, 11, 421 N.E.2d 869, 874 (the burden is on the injured party to investigate a cause of action).[5] The determination of whether one is possessed of sufficient information about the injury to investigate whether actionable conduct was involved "is usually a question of fact unless the facts are undisputed and only one conclusion may be drawn from them." Bates v. Little Co. of Mary Hosp., 108 Ill.App.3d 137, 141, 63 Ill.Dec. 887, 890, 438 N.E.2d 1250, 1253 (1st Dist.1982). In the instant case, the only inference which can be drawn from the undisputed facts is that the plaintiff had sufficient information to put a reasonable person on inquiry and, therefore, the statute of limitations has run. Although plaintiff asserts that he did not, and could not, have "discovered" his cause of action against the Abramsons until December, 1988, when he obtained and reviewed his childhood medical records, the facts discussed below reveal that the plaintiff knew, or should have known, of his injury many years prior to the initiation of this case. First, the plaintiff's two periods of "incarceration" and the alleged abuse and neglect which followed are the sort of "sudden, traumatic event[s] which should prompt some investigation by the injured party" and start the running of the statute of limitations. Lutes v. Farley, 113 Ill. App.3d 113, 115, 68 Ill.Dec. 695, 697, 446 N.E.2d 866, 868 (3d Dist.1983). Furthermore, the allegations in the Complaint establish that the plaintiff was consciously aware of having suffered an injury. The Complaint specifically states that the plaintiff has suffered and continues to suffer from emotional and physical injuries as a proximate result of his incarcerations. Complaint, ¶¶ 8, 11, 13. The plaintiff states in his brief that he was "aware of the symptoms of what he was suffering which includ[es] to date, extreme depression, paranoia, compulsive obsessiveness, eating and sleeping disorders, and complete isolation from frien[d]s and family. Plaintiff has had these feelings for so many years to date including [the] incarceration periods." Plaintiff's brief at 6. Finally, in 1980 plaintiff became Dr. Ross' patient "to resolve his feelings and to find out what happened to him." Plaintiff's brief at 6. Therefore, as of 1980 plaintiff is viewed as having knowledge that he was injured and must be charged with a duty to investigate whether he had an actionable complaint involving his two periods of incarceration as a child. Having received weekly medical treatment for more than four years, it is "inconceivable to us that a reasonable person would not *399 have realized" that he was wrongfully injured by the alleged treatment plaintiff suffered in the health centers. Lesko v. Zuffante, 165 Ill.App.3d 823, 829, 117 Ill.Dec. 459, 463, 520 N.E.2d 810, 814 (1st Dist. 1987); see also Witherell v. Weimer, 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d 869. Through due diligence and reasonable investigative efforts the plaintiff would have made himself aware that his injuries were caused by wrongful conduct and that he had an actionable complaint prior to December, 1988. Similarly, plaintiff's assertion that he did not really know that he had been wrongfully injured until he received his medical records in 1988, does not persuade the court. Plaintiff certainly knew that he suffered from physical abuse long before 1988, and plaintiff knew that he suffered from neglect long before 1988. "The fact that plaintiff may not have discovered the full extent of her injuries (or that she had a cause of action) until some [11 years] later is not the test. A plaintiff need not know all of the facts or circumstances [surrounding his injury] in order for the statute of limitations to begin running." Franke, 209 Ill.App.3d at ___, 154 Ill.Dec. at 712, 568 N.E.2d at 933. The fact that plaintiff actually did approach a psychiatrist to help him investigate these traumatic occurrences further supports the court's view that the discovery rule does not apply in this case. The law is well settled that, where it is apparent from the face of the pleading that no application of the discovery rule would permit the asserted cause of action to continue, the Complaint should be dismissed upon the appropriate motion. See Witherell, 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d 869; Franke v. Geyer, 209 Ill.App.3d 1009, 154 Ill.Dec. 710, 568 N.E.2d 931 (Ill.App., 3d Dist., March 6, 1991). It is apparent from the face of the pleadings in the instant case that no application of the discovery rule would permit this action to continue. "Whatever the plaintiff may have learned from the medical records ... in December 1988 cannot affect the running of the statute of limitations. The plaintiff had the information which commenced the running of the statute — knowledge that he had been injured and knowledge of wrongful conduct — at or about the time of the events themselves." Defendants Memo in Support of the Motion at 6. Further, the plaintiff must be charged with concrete knowledge of the injury when he sought medical help from Dr. Ross in 1980 which, if not sooner, would have started the running of the statute of limitations. For the foregoing reasons, this court grants defendant's motion to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, for failing to comply with the statute of limitations. Count II of plaintiff's complaint is also dismissed since it is based on a state law and the court lacks independent jurisdiction over the claim. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Conclusion For the foregoing reasons the defendants' motion to dismiss is granted. The date of entry of this order is the date which will be utilized for purposes of an appeal. NOTES [1] The Complaint, ¶ 11, indicated that "On December 22, 1988, Plaintiff obtained a photocopy of his childhood medical records and became aware of the source of his physical and emotional injuries which continue to effect Plaintiff' (emphasis added). In plaintiff's memorandum in support of his motion, pp. 3, 4 and 6, December 23 is identified as the date of knowledge. [2] Ill.Rev.Stat. Ch. 110, ¶ 13-202. Personal injury. "Actions for damages for an injury to the person, or for false imprisonment ... shall be commenced within 2 years next after the cause of action accrued." [3] The plaintiff also asserts that Ill.Rev.Stat. Ch. 110 ¶ 13-202.2, which legislates a "discovery rule" statute of limitations for claims based upon childhood sexual abuse, subject to a period of repose commencing on the plaintiff's eighteenth birthday, governs his complaint. This statute is entirely irrelevant. Count I does not contain any reference to childhood sexual abuse. The plaintiff attempts to remedy this problem by asserting, in his memorandum, that he was sexually abused during his treatment. This argument is unavailing. Whatever the plaintiff now claims may have occurred during his treatment, he nowhere contends or remotely intimates that the Abramsons sexually abused him, which would be the only factual situation to which ¶ 13-202.2 applies. [4] Ill.Rev.Stat. Ch. 110, ¶ 13-211. "Minors and persons under legal disability. If the person entitled to bring an action, at the time the cause of action accrued, is under the age of 18 years, or is under a legal disability, then he or she may bring the action within 2 years after the person attains the age of 18 years, or the disability is removed." [5] None of the cases cited by the plaintiff's memorandum suggest any different analysis. Plaintiff relies on cases from jurisdictions other than Illinois. See Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (1987); Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986). Of the Illinois cases, one (Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988)) concerns a repressed memory of childhood sexual abuse and, therefore, is factually inapplicable to the instant case. Two of the other Illinois cases (Estate of Riha v. Christ Hospital, 187 Ill.App.3d 752, 135 Ill.Dec. 907, 544 N.E.2d 403 (1st Dist.1989), and Haas v. Westlake Community Hospital, 82 Ill.App.3d 347, 37 Ill.Dec. 881, 402 N.E.2d 883 (1st Dist.1980)) pertain to tolling the statute of limitations as the result of the plaintiff's legal incompetency, a doctrine which is not pleaded in the Complaint, argued in the plaintiff's memorandum or supported by any of the plaintiff's factual assertions. The remaining Illinois cases are either addressed in this opinion or are simply irrelevant to the issues which are dispositive of Count I.

82 F.3d 411 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Michael KOKOSKI, Defendant-Appellant. No. 94-5700. United States Court of Appeals, Fourth Circuit. Argued Feb. 2, 1996.Decided April 17, 1996. COUNSEL: David L. White, BRUMFIELD & WATSON, Bluefield, West Virginia, for Appellant. Miller Allison Bushong, III, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney, John C. Parr, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Before WIDENER, WILKINS, and MICHAEL, Circuit Judges. OPINION PER CURIAM: 1 Michael Kokoski conditionally pled guilty to knowingly and intentionally employing a person under age 18 to distribute lysergic acid diethylamide (LSD). See 21 U.S.C. §§ 841(a)(1), 861(a)(1). He was sentenced to 144 months imprisonment. On appeal Kokoski argues that (1) the determination that he was competent to stand trial was clearly erroneous, (2) the procedures used to determine his competency violated due process, and (3) the denial of a three-level reduction under USSG § 3E1.1 for acceptance of responsibility was erroneous. Finding no error, we affirm. I. 2 On July 14, 1992, Kokoski was indicted for conspiracy to distribute and possession with intent to distribute LSD and marijuana, see 21 U.S.C. § 846, two counts of distributing LSD to an individual under age 21, see 21 U.S.C. §§ 841(a)(1), 859, and employing a person under age 18 to distribute LSD, see 21 U.S.C. §§ 841(a)(1), 861(a)(1). 3 On September 8, 1992, Kokoski's counsel moved for a pretrial mental competency evaluation. The court granted the motion and Kokoski was sent to the Federal Correctional Institution at Butner ("Butner") for a thirty-day evaluation. Byron Herbel, M.D. and Rushton A. Backer, Ph.D. staff psychologist, completed a report concluding that Kokoski was suffering from an unspecified psychotic disorder that rendered him incompetent. However, they said there was a "substantial probability that Mr. Kokoski's competency can be restored with treatment," including administration of antipsychotic drugs. 4 On November 5, 1992, the district court held a competency hearing and, based on the Butner staff conclusions, committed Kokoski to Butner for a four-month treatment period. In February 1993 Butner began administering Kokoski antipsychotic medication. On March 1, 1993, the court granted Butner's request to extend the treatment period an additional four months based upon the facility's representation that Kokoski would attain competency. On June 7, 1993, Dr. Herbel and Dr. Backer completed another report. Although it again concluded that Kokoski was not yet competent, it opined that there remained a "substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed." On July 11, 1993, the court held another competency hearing and ordered Kokoski returned to Butner for further treatment. 5 Butner certified Kokoski as competent on September 24, 1993. The treatment team stated that "the antipsychotic medication that he is currently taking appears to be helpful to him." It also said that "the primary diagnosis is now listed as Malingering." Counsel for Kokoski challenged the competency finding and requested the opportunity to depose Dr. Herbel and Dr. Backer. The district court granted the request. 6 On November 18, 1993, the district court reviewed the deposition transcripts and conducted another competency hearing. The court determined that the depositions were "inconclusive and not very helpful because it was unclear whether the defendant's competency was restored as a result of the antipsychotic drugs and whether he would be competent to stand trial without the benefit of the drugs." Because it was unable to reach a decision, the court again ordered Kokoski to be evaluated, this time with a "clean slate." He was committed to the Federal Medical Camp Rochester where he was evaluated by M.A. Conroy, Ph.D., who was not furnished with Kokoski's records from Butner. Dr. Conroy found evidence of a long-standing thought disorder and evidence of malingering. Dr. Conroy concluded that the weight of the evidence supported genuine mental illness and declared Kokoski incompetent. 7 At still another competency hearing on January 28, 1994, the court approved the United States' request to have the case reviewed by an expert in the field of malingering. The court invited Kokoski to select his own expert, but he did not do so. The government's expert, Rich ard Rogers, Ph.D., rendered an opinion that Kokoski was competent to stand trial and that he was malingering. 8 On March 30, 1994, the court conducted its final competency hearing at which all doctors who had evaluated Kokoski since September 1992 testified. Dr. Herbel testified that Kokoski had been malingering. Dr. Backer said that Kokoski was competent to stand trial, with or without medication, and that Kokoski's malingering had fooled the Butner team for some time. Dr. Conroy testified that she found evidence of incompetency and malingering, but that the preponderance of the evidence suggested incompetence. Finally, Dr. Rogers concluded that Kokoski was malingering and that if Kokoski suffered from a coexisting psychological disorder, it was not significant enough to impair his ability to stand trial. He also concluded that Kokoski was competent without medication. 9 In a thorough opinion, the district court concluded that Kokoski was competent and that he was malingering. United States v. Kokoski, 865 F.Supp. 325, 330-36 (S.D.W.Va.1994). The court believed that Kokoski's behavior was a "scheme devised by him to avoid going to trial or accepting responsibility for his conduct." Id. at 338. 10 On the day of trial, Kokoski conditionally pled guilty to knowingly and intentionally employing a person under age 18 to distribute LSD. At Kokoski's sentencing the court concluded that Kokoski had not accepted responsibility for his actions. The court found that Kokoski had intentionally faked his illness in order to avoid responsibility for his crimes and that he had shown no remorse. The court sentenced him to 144 months imprisonment. This appeal followed. II. 11 Kokoski first contends that the district court erred in finding him competent to stand trial. He insists that the court failed to appreciate that malingering and mental disorders can and do coexist. Thus, despite evidence of malingering, Kokoski says he was nonetheless incompetent to stand trial. We disagree. 12 A defendant is competent to stand trial if "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and [ ] has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960).1 The district court's competency finding will not be disturbed unless clearly erroneous. United States v. Hogan, 986 F.2d 1364, 1372 (11th Cir.1993). 13 Here, all four doctors who testified at the final hearing offered evidence of malingering. Dr. Backer and Dr. Rogers testified that they believed Kokoski was competent without medication. And Dr. Rogers testified that even if Kokoski suffered from a mental disorder that coexisted with his malingering, the disorder was not substantial enough to render him incompetent to stand trial. We think this testimony amply supports the district court's competency finding. III. 14 Kokoski argues that the district court's failure to adhere to 18 U.S.C. § 4241 and related statutory provisions denied him due process of law. Section 4241 prescribes procedures for determining a defendant's competency to stand trial.2 Kokoski cites four errors which we address in turn. 15 He first argues that § 4241(d) limits the time he may be hospitalized to eight months: "a reasonable period of time, not to exceed four months" and "an additional reasonable period of time," which he says is also limited to four months. See # 8E8E # 4241(d)(1) & (2). We reject this argument. We think "an additional reasonable period of time" means some reasonable, but statutorily undefined, period of time. United States v. Ecker, 30 F.3d 966, 969 (8th Cir.) cert. denied, 115 S.Ct. 679 (1994). Here, we find that Kokoski's eighteen-month confinement was reasonable. Every report issued before the Butner staff declared Kokoski competent indicated that he was likely to regain competency. The final six months of his confinement were necessary to challenge and clarify Butner's conclusion. In light of the district court's careful adherence to statutory procedures, we believe that Kokoski's confinement was reasonable. See id. (confinement during seven competency evaluations spanning nearly four years not unreasonable). 16 Kokoski next argues that the district court failed to make findings, prior to several confinements, that "there [was] a substantial probability that ... he [would] attain" competency. § 4241(d)(2)(A). The findings that were made, he says, lacked factual support. He also argues that he was entitled to a § 4246 hearing because no forensic report stated that his condition was improving. We reject these arguments. Each time the district judge committed Kokoski, she relied on forensic reports written by qualified personnel stating that there was a substantial probability of future competency. In addition, the Butner reports indicated that Kokoski's condition was improving. The requirements of the statute were therefore satisfied. 17 Next, Kokoski argues that § 4241(e) requires issuance of a certificate of competency. He claims that the certificate Butner issued was "invalid" because the competency finding was contingent upon Kokoski's treatment with antipsychotic drugs. We reject this argument because at the final competency hearing, the Butner doctors testified that Kokoski was competent with or without medication. Moreover, based on all of the evidence at the final hearing, the district court issued a written order that Kokoski was competent. That was sufficient to allow the case against Kokoski to proceed. 18 Finally, Kokoski argues that the court had no authority to authorize the government to hire an expert in the field of malingering because the examiner "shall be designated by the court." § 4247(b). This argument is meritless. The statute does not require the judge to personally select the examiner. In any event, Kokoski was not prejudiced since the court authorized him to select his own expert. 19 In short, we conclude that the district court adhered to statutory procedures and that those procedures afforded Kokoski due process. See Ecker, 30 F.3d at 969-70. IV. 20 Finally, Kokoski argues that the district court improperly denied him a three-level reduction of his offense level for accepting responsi bility for his offense. See USSG § 3E1.1(b). He insists that the district court's finding that he faked mental illness is unsupported by the evidence. We disagree. 21 A court may reduce by two levels the offense level of a defendant who "clearly demonstrates acceptance of responsibility for his offense." USSG § 3E1.1(a). Certain defendants may receive an additional one-level reduction if they "assisted authorities in the investigation or prosecution of [their] own misconduct." USSG § 3E1.1(b). The district court's denial of a reduction under § 3E1.1 cannot be disturbed unless clearly erroneous. United States v. Cusack, 901 F.2d 29, 31 (4th Cir.1990). In this case, Dr. Herbel testified that Kokoski's malingering was an effort to avoid going to trial and receiving "a potentially long sentence." In addition, the district judge found that Kokoski had shown no remorse. At the sentencing hearing, Kokoski adhered to his belief that LSD in any amount is nontoxic, nonaddictive and nonlethal. The district judge concluded that "these beliefs are certainly not indicative of a person who recognizes that he committed a wrongful act and must be punished." The record simply does not establish that the district judge's decision to deny an offense level reduction was clearly erroneous. See United States v. Kerr, 13 F.3d 203, 205 (7th Cir.1993), cert. denied, 114 S.Ct. 1629 (1994). V. 22 The district court's judgment is affirmed. 23 AFFIRMED. 1 This is also the standard for competency to enter a guilty plea. Godinez v. Moran, 113 S.Ct. 2680, 2685 (1993) 2 The statute reads in pertinent part: § 4241. Determination of mental competency to stand trial * * * (d) Determination and disposition.--If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility--(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed; and (2) for an additional reasonable period of time until-- (A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the trial to proceed; or (B) the pending charges against him are disposed according to law; whichever is earlier. If, at the end of the time period specified, it is determined that the defendant's mental condition has not so improved as to permit the trial to proceed, the defendant is subject to the provisions of section 4246 [which prescribes steps to be taken if a defendant has not been found competent]. (e) Discharge.--When the director of the facility in which a defendant is hospitalized pursuant to subsection (d) determines that the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment....

371 F.Supp.2d 115 (2005) THE BRIDGEPORT GUARDIANS, et al. Plaintiffs, v. Arthur J. DELMONTE, et al., Defendants. No. CIV. 5:78CV175(JBA). United States District Court, D. Connecticut. April 27, 2005. *116 Angela Carol Robinson, Antonio Ponvert, III, Joan C. Harrington, Michael P. Koskoff, Vincent M. Musto, Koskoff, Koskoff *117 & Bieder, P.C., Thomas D. Flynn, Bridgeport, CT, Joel Thomas Faxon, Stratton Faxon, New Haven, CT, Richard Herlihy Shelton, CT, Carolyn Roberts Linsey, Owens, Schine & Nicola, Trumbull, CT, Raymond W. Ganim, II, Law Offices of Raymond W. Ganim, Stratford, CT, H. Jeffrey Beck, Bridgeport, CT, William B. Barnes, Rosenstein & Barnes, Fairfield, CT, for Plaintiffs. Arthur C. Laske, III, Mark T. Anastasi, City of Bridgeport Office of the City Attorney, Raymond B. Rubens, Thomas K. Jackson, Thomas F. Maxwell, Jr., Pullman & Comley, Melanie J. Howlett, City of Bridgeport Office of the City Attorney, Bridgeport, CT, Bernard E. Jacques, Pepe & Hazard Goodwin Square, Donald C. Mahoney, Updike, Kelly & Spellacy, P.C., Hartford, CT, Dana R. Baughns, Shipman & Goodwin, Stamford, CT, Sandra P. Lax, Fairfield, CT, Stephen F. Donahue, Kleban & Samor, PC, Southport, CT John Patrick Bohannon, Jr., Fairfield, CT, Diane Benevides, Rhode Island Office of the Attorney General, Providence, RI, John J. Kelly, Jr., Cantor, Floman, Gross, Kelly, Amendola & Sacramone, Orange, CT, for Defendants. Ruling On Special Master's Recommended Ruling Re: Slur and Harassment Policies [Doc. # 1294] ARTERTON, District Judge. Before the Court is Defendants' Objection [Doc. # 1306] to the Recommended Ruling of the Special Master Regarding Slur and Harassment Policies [Doc. # 1294] at the Bridgeport Police Department. For the reasons that follow, the implicit conclusion of the Recommended Ruling that the Department is in contempt will be approved and adopted. As directed in open court on April 27, 2005, the Department will be given another opportunity to present evidence to the Special Master on its financial resources and the potential burden of the recommended sanction. I. Factual Background As the Recommended Ruling details, defendant Bridgeport Police Department ("BPD" or "Department") has a long history of foot-dragging and non-enforcement of its racial, ethnic and sexual slur and harassment policies: Under Paragraph 10(b) of the 1983 Remedy Order, this Court empowered the Special Master to "[r]eceive, investigate, and remedy all complaints of discriminatory treatment, racial harassment or slurs within the B.P.D., and, in appropriate cases, to bring disciplinary charges against those responsible and/or those supervisors who foster or permit such racial harassment to occur in violation of departmental rules." Bridgeport Guardians, Inc. v. Delmonte, 553 F.Supp. 601, 619 (D.Conn.1982). Since at least 1986, the Department has maintained a policy and procedure on racial, ethnic and sexist slurs. In 1990, the Department revised those policies, "to ensure that each employee of the Department is fully cognizant of his/her responsibilities [under the policy and] ... that all incidents will be treated similarly in a swift and efficacious manner." Recommended Ruling, dated March 21, 1990 (approved, adopted & affirmed May 11, 1990 (Daly, J.)). The Department's enforcement of its slur policy waned in the ensuing years and on March 25, 1997, this Court directed the Department to review and revise its 1990 policy on racist, ethnic and sexist slurs and harassment. In ordering revisions to the policy, the Court wanted "to ensure that all employees know and understand their responsibilities." See Recommended Ruling re: Complaint of Detective *118 Raymond Sherwood, dated March 25, 1997 (approved & adopted March 30, 1998 (Arterton, J.)). After hearings the Court disapproved the Department's "fourth draft" of a new policy covering racial, ethnic and sexist slurs and graffiti, ordering the parties to revise it before November 26, 1997 so that it covered harassment as well as slurs and graffiti. Recommended Ruling Concerning Slur and Graffiti Policy, dated October 28, 1997 (approved and adopted August 28, 1998 (Arterton, J.)) [Docs. #858-1, 903]. The Special Master instructed the Department to include separate definitions of key terms and to determine whether the Office of Internal Affairs ("OIA") could and should investigate all complaints of policy violations. Id. Eighteen months later, after repeated requests for the revised slur and harassment policy, the Department submitted a "new policy" in April 1999 that did not contain any of the changes outlined in the Special Master's 1997 ruling. At a hearing in June 1999, the Department provided what it again characterized as two "new" policies: one concerning racial, ethnic or sexist slurs or graffiti, and the second concerning harassment. Again those policies were woefully deficient and essentially identical to earlier submissions. In June 1999, the Equal Employment Opportunity Commission (EEOC) issued "Enforcement Guidance," describing in detail elements that must be included in an anti-harassment policy and complaint procedure. Therefore, on July 8, 1999, the Special Master recommended disapproval of the revised policies submitted by the Department in June, both because they did not correct deficiencies identified by the Court in earlier rulings, and because they did not conform with EEOC's "Enforcement Guidance." Recommended Ruling Re: Slur and Harassment Policies, dated July 8, 1999 (approved and adopted on August 16, 1999 (Arterton, J.)) [Doc. # 979]. The Court ordered that the defendants' "final revisions shall be filed with the Court, in compliance with EEOC Guideline, not later than September 10, 1999." Endorsement Order, dated August 16, 1999 (Arterton, J.). [Doc. # 989]. The Department revised the policies and resubmitted the three policies now at issue: (1) Sexual Harassment in the Workplace; (2) Threats, Intimidation and Harassment; and (3) Racial Ethnic or Sexist Slurs and/or Graffiti. On December 20, 1999, the Special Master recommended approval of the policies, with noted corrections and additions. Observing that all three policies provided for training of supervisors as mandated by Connecticut regulations,[1] and for annual distribution to each employee, with employees signing forms to acknowledge receipt of the policies, the Special Master instructed the Department to distribute the policies and begin training sessions once the policies were corrected. Recommended Ruling Re: Slur and Harassment Policies, dated December 20, 1999 (approved and adopted on June 6, 2001 (Arterton, J.)). [Doc. # 1015]. The Department admits that for nearly three years, between June 6, 2001, when the Recommended Ruling was approved and adopted, and April 7, 2004, the date of the hearing on this issue before the Special Master, "the required implementation of policies did not occur...." Objection at 3. *119 The Department represents that "[a]s of April 30, 2004, the retraining of 420 of 442 Police Officers had occurred.... Training for the twenty two (22) officers who are on extended sick leaves will commence the week each one returns to work on an individual basis." Id. The Department further argues that its failure to implement the policies was an "unintentional, inadvertent and harmless error in that it did not result in any discrimination within the Department." Id. II. Discussion In the face of the BPD's pattern of disregard for court orders concerning the slur and harassment policy between 1986 and the present, as recited above, the Court does not credit the BPD's claim that its noncompliance was merely "unintentional" or "inadvertent."[2] The BPD's continuing noncompliance relates to the heart of the civil rights violations found by Judge Daly in his 1982 post-trial opinion: "The evidence introduced at trial indicates that racial slurs and disparaging remarks directed against blacks, as well as racial harassment of black officers are frequent occurrences in the B.P.D., and that they are not only tolerated, but engaged in by supervisory personnel as well as the rank and file, including the head of the department.... The evidence thus indicates a pattern of racially insulting and humiliating behavior which apparently has been condoned by supervisory officers.... This constitutes discrimination in the `terms, conditions, and privileges' of black officers' employment, and consequently, a violation of Title VII of the 1964 Civil Rights Act." Bridgeport Guardians v. Delmonte, 553 F.Supp. 601, 614-15 (D.Conn.1982). In 1983, Judge Daly empowered the Special Master to "[r]eceive, investigate, and remedy all complaints of discriminatory treatment, racial harassment or slurs within the B.P.D. and, in appropriate cases, to bring disciplinary charges against those responsible and/or those supervisors who foster or permit such racial harassment to occur in violation of departmental rules." Id. at 619. The BPD was well aware of its responsibility to remedy and prevent a recurrence of the hostility and harassment found to exist in the Department twenty-two years ago but obviously came to assign little priority to fulfilling it, even in the face of court orders. "A court's inherent power to hold a party in civil contempt may be exercised only when (1) the order the party allegedly failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply." N.Y. State Nat'l Org. for Women v. Terry (Terry I), 886 F.2d 1339, 1351 (2d Cir.1989). Here, the series of orders issued between 1983 and 1999 were clear and unambiguous, and BPD makes no claim to the contrary. Given the Department's admission that they understood their duty under those orders to create, enforce, and disseminate policies concerning racist, ethnic and sexist slurs and harassment, but that they made little or no effort to fulfill their obligations between 2001 and 2004, a finding of civil contempt of court is warranted, and it is so found. *120 The remaining question is the sanction to be imposed. A criminal contempt sanction is "imposed to punish for an offense against the public and to vindicate the authority of the court...," and it only may be imposed after a jury trial. N.Y. State Nat'l Org. for Women v. Terry (Terry V), 159 F.3d 86, 93 (2d Cir.1998). A civil contempt sanction serves two purposes: compensation for the effects of prior wrongdoing, and coercion of future compliance. United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) ("Most [civil] contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender's future obedience."). The hallmark of civil contempt is that the defendant must have an opportunity to purge the contempt. Id. at 829, 114 S.Ct. 2552 ("Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge."). When determining the nature or amount of a civil contempt sanction, a district court "is obliged to use the least possible power adequate to the end proposed." Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990). The court "should consider (1) the character and magnitude of the harm threatened by the continued contumacy, (2) the probable effectiveness of the sanction in bringing about compliance, and (3) the contemnor's financial resources and the consequent seriousness of the sanction's burden." Terry I, 886 F.2d at 1353 (citing Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 110 (2d Cir.1987)). The need for an effective sanction is readily evident from the defendant's contumacy on the very important subject matter at the heart of the Remedy Order — racial slurs and harassment — and the absence of efforts to comply for almost three years. This conclusion is underscored by the record of past situations in which defendants have otherwise disregarded the authority of the Court to implement its Remedy Order. On September 27, 2001, the Court found the Board of Police Commissioners in contempt for failure to follow clear directives in reporting and resolving disciplinary matters within the Department. See Endorsement Order [Doc. # 1146]. In December 2001, the BPD was fined $39,500 ($250/day) for failure to comply with the Court's ruling on investigation of disciplinary incidents. See Recommended Ruling Re: Investigation of Discipline, dated Dec. 10, 2001 [Doc. # 1156] (approved and adopted with modifications, Dec. 27, 2001 [Doc. # 1160]). On January 14, 2004, the Court again found the BPD in contempt for failing to provide reports required by the "Stipulated Amendment to Remedy Order: Rotations," dated May 31, 2001. Endorsement Order [Doc. # 1256]. These prior contempt findings and sanctions were apparently inadequate to impress on the Department's officials that serious attention to compliance with court orders implementing the Remedy Order is required. Although the Department represents that it has now initiated training on the revised policies and has re-trained the active officers, the Department's repeated contempt suggests a likelihood of continued future noncompliance of some sort, undermining the goal of institutionalizing non-discrimination in employment at the Bridgeport Police Department. While logic would dictate that avoidance of burdensome financial sanctions would impel municipal officials to give punctilious attention to court remedy orders, if only to protect scarce budgetary resources, the pattern of inattention and inaction by the BPD belies this logic. At a time when the Court has made clear its objective of stepping out of its prolonged role of overseeing BPD operations, *121 the BPD's unwillingness to implement even the most basic changes to the slur and harassment policies demonstrates why expenditure of judicial resources will continue to be required to enforce the remedies ordered 22 years ago. As ordered at the April 27, 2005 hearing, the Special Master is to take further evidence concerning the magnitude of the financial sanction to be imposed. In addition, as specified in the Recommended Ruling,[3] within 30 days of the date of this ruling, the Compliance Officer shall submit a written report to the Court certifying that all employees have acknowledged receipt of the three current policies and any amendments, and that the current policies are posted in prominent places as provided in the policies. The report shall also contain a certification that all current supervisors have received training satisfying both the policies and the requirements of Conn. Agencies Regs. § 46a-54-204. Notwithstanding the provisions of Conn. Agencies Regs. § 46a-54-206,[4] the trainers shall be qualified independent trainers not employed by the BPD. No later than January 31, 2006, and on or before January 31 for each year thereafter, the Department shall submit a report including: (1) the names of all current supervisors; (2) the dates they became supervisors; (3) the dates they received training and retraining under applicable state and federal regulations on the three slur and harassment policies; (4) the dates training is planned for the ensuing year; and (5) a certification that all employees were given the current policies and amendments in the applicable year. If any of these reports is materially inaccurate, incomplete or is untimely without extreme good cause, the Department and responsible city officials[5] will be assessed $1000/day. III. Conclusion Accordingly, the Bridgeport Police Department is found to be in civil contempt for noncompliance with court orders concerning its slur and harassment policies, and this matter is remanded to the Special Master for further proceedings concerning the sanction to be assessed. IT IS SO ORDERED. NOTES [1] See Conn. Agencies Regs. § 46a-54-204. See also Conn. Gen.Stat. § 46a-54. [Footnote in original]. [2] The BPD's view that there was no ill result from its noncompliance also appears undermined by the CCHRO complaint of Deputy Chief Karen Krasicky, which alleges repeated discriminatory treatment and sexual harassment by the then-Chief of Police from 2000 through 2004. See Recommended Ruling Re: Deputy Chief Karen Krasicky and Enforcement of Slur and Harassment Policies [Doc. # 1356] (approved and adopted April 21, 2005 [Doc. # 1366]). [3] The BPD does not object to this portion of the Recommended Ruling. See Objection at 4. [4] "An employer required to provide training by these regulations may utilize individuals employed by the employer or other persons who agree to provide the required training, with or without reimbursement." Conn. Agencies Regs. § 46a-54-206. [5] Although the city officials bearing responsibility for current BPD operations were not named as defendants in the original 1978 lawsuit, a non-party "who knowingly assists a defendant in violating an injunction" or who is "legally identified with" a defendant who violates an injunction "subjects himself to civil as well as criminal proceedings for contempt." Backo v. Local 281, United Bhd. of Carpenters, 438 F.2d 176, 180-181 (2d Cir.1970), quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir.1930). Under the Federal Rules of Civil Procedure, injunctions and equitable relief such as the 1983 Remedy Order in this case are binding on the parties as well as "their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them..." Fed.R.Civ.P. 65(d); see also Elec. Workers Pension Trust Fund v. Gary's Elec. Serv. Co., 340 F.3d 373, 381 (6th Cir.2003), Chicago Truck Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 507 (8th Cir.2000). Thus "[i]t is well-settled that a court's contempt power extends to non-parties who have notice of the court's order and the responsibility to comply with it." Chicago Truck Drivers, 207 F.3d at 507.

348 Mich. 206 (1957) 82 N.W.2d 475 PRETTYMAN v. PRETTYMAN. Docket No. 64, Calendar No. 46,788. Supreme Court of Michigan. Decided April 22, 1957. Sigler, Anderson & Carr, for plaintiff. Ford, Hinga & Schmiege (Frank F. Ford, of counsel), for defendant. *208 SHARPE, J. The parties to this cause were divorced January 28, 1954. The divorce decree provided that plaintiff have custody of the 2 minor children and that defendant contribute the sum of $25 per week for their support. The decree also provided for visitation rights for the father of the children. At the time the divorce case was pending defendant was employed at the Percy Jones Hospital at a salary of $6,100 per year. It also appears that before the divorce decree was granted defendant was transferred to a hospital at Waukegan, Illinois, where his salary was $4,330 per year. About a week after the entry of the decree defendant remarried and about 3 months after the entry of the decree plaintiff moved to Houston, Texas. During the 3 months after the entry of the decree plaintiff failed and refused to grant to defendant the visitation rights provided in the decree and defendant failed to pay the support and maintenance of $100 per month as provided in the decree, but defendant did pay approximately the sum of $100 during the 3-month period following the entry of the decree. On May 6, 1954, plaintiff and the children left Michigan and went to Texas where she is now employed doing secretarial work and receives therefrom the sum of $400 per month. On June 21, 1955, defendant filed a petition to modify the decree and for an order compelling plaintiff to produce the minor children in court. The petition also prayed for a reduction in the support order payments. In answer to the petition filed by defendant, plaintiff states: "In answer to the allegations contained in paragraph 8 of said petition, plaintiff admits that it became necessary for her to take the children of the parties to her mother's home in the State of Texas, which situation occurred in part because of defendant's *209 delinquency in the payment of his support order and in part by plaintiff's loss of employment subsequent to the entry of said decree. Plaintiff denies that she gave no notice to the clerk of the court as alleged; denies that her action was motivated by the intent to deprive defendant of his rights of visitation and denies that any action on her part could be deemed contempt of the decree of this court. * * * "By way of further answer to said petition, plaintiff alleges that immediately after the granting of the decree of divorce as hereinbefore set forth, defendant appeared at her home for the purpose of taking said children with him overnight and at the time was accompanied by another woman with whom said children and defendant, at least on 1 occasion, spent the week end together, a situation wholly reprehensible and intolerable under any conditions and especially so by reason of the interlocutory provisions of the said decree. Plaintiff states that she objected to such visitation as not being in the best interests of the children. Further answering, plaintiff alleges upon information and belief that defendant entered into his second marriage some time in advance of the date that said decree of divorce became final and further alleges upon information and belief that 2 months following the date said decree became final, defendant's second wife gave birth to a child. Plaintiff shows that by reason thereof, defendant is not entitled to relief at the hands of the court." The cause came on for trial and at its conclusion the trial court entered a decree which provided that defendant be relieved and discharged from paying accrued support payments in the sum of $1,295, but should pay the sum of $200 in lieu thereof and in full payment and satisfaction of all the said arrears; that defendant was to pay $7.50 per week for the support of each of the 2 minor children until they reach the age of 18; that plaintiff should have the care and custody of the 2 minor children, with the *210 exception that defendant have the care and custody of the children each year from July 15th to September 1st; that plaintiff pay the transportation of the children from Texas to Illinois and defendant pay the transportation for the return passage. In an opinion the trial court stated: "Of course, both parties have taken the law in their own hands. Of course, in this decree we are more interested in the children than we are in anyone else. Mrs. Prettyman took the law in her hands in leaving the State of Michigan without coming in and asking a change to allow her that privilege. She was represented by a competent attorney and so was Mr. Prettyman. Mr. Prettyman took it upon himself to pay what he saw fit, and he couldn't pay more because his salary was cut down. Maybe he couldn't have paid more, but he should have come in and asked that the amount be reduced — presented the matter to the court. * * * "Now after she violated the decree and took the children out of the State, I think any alimony that his (has) accrued over and above the amount he has paid, should be canceled. I think the evidence in this case shows that possibly he hasn't been able to pay all those payments. I realize that the taking on of another family isn't any argument for not paying for his first family. I realize that. I think that the alimony payments probably were a little bit high and they should be cut to $7.50 per child each week, which would be on an average of about $60 a month, or a little better, if you take the full 52 weeks in a year. And that he should pay that regularly from now on. I think that in view of the fact that circumstances have required Mrs. Prettyman to move to Texas to the home of her mother and where she is employed — she has to earn a living for herself and earn a good share of the living for the children — that the decree should be changed to allow — cut off all of Mr. Prettyman's rights to the children except 6 weeks each year during the summer vacation, and *211 that for that vacation Mrs. Prettyman should prepare the children and pay their transportation to Michigan, and Mr. Prettyman at the end of the 6 weeks should prepare the children and pay their transportation back to Texas." Plaintiff appeals and urges that the trial court was in error in canceling the amount by which defendant was in arrears in the sum of $1,295 and reducing the weekly payments to the sum of $7.50 per child each week as well as requiring plaintiff to send the children to the defendant for a period of 6 weeks out of each year and paying their passage from Texas to Illinois. The general rule is that there must be a change of circumstances to justify the modification of a divorce decree. In the case at bar we find that subsequent to the granting of the divorce decree, plaintiff and the children moved to Texas, thus making it difficult if not impossible for the father to visit his children; that when plaintiff went to Texas she became employed at a salary of $400 per month, out of which she has to support her children. It is also a fact that defendant's salary has been reduced from what he was earning when the divorce was started to what it is at the present time, although there is some evidence that at the time the decree was entered defendant was then receiving his reduced salary. Defendant also breached the conditions of the divorce decree by failing to make the payments required by the decree. Chancery courts have broad discretionary powers to adjudicate as to the custody of children, the amount of support and maintenance required for such children, and may increase or reduce the amount of support required. In proper cases such courts may also cancel unpaid support money. We are not in accord with the judgment of the trial court in the cancellation of unpaid support and maintenance. *212 We are of the opinion that defendant should pay the sum of $10 per week until all back payments are fully paid. We are also of the opinion that the decree providing for the time that defendant may have the children as well as the transportation costs is equitable and just. The decree is also affirmed to the extent that defendant shall pay the sum of $15 per week for the support of such children. A decree in conformity with this opinion will be entered in the circuit court of Calhoun county. No costs as neither party has fully prevailed. DETHMERS, C.J., and SMITH, EDWARDS, VOELKER, KELLY, and BLACK, JJ., concurred. CARR, J., did not sit.

357 F.2d 283 123 U.S.App.D.C. 92 William KAUFMAN, Appellant,v.The McLAUGHLIN COMPANY et al., Appellees. No. 19341. United States Court of Appeals District of Columbia Circuit. Argued Nov. 5, 1965.Decided Feb. 10, 1966. Mr. Mark P. Friedlander. Washington, D.C., with whom Messrs. Mark P. Friedlander, Jr., Blaine P. Friedlander, Washington, D.C., Harry P. Friedlander, Arlington, Va., and Milford F. Schwartz, Washington, D.C., were on the brief, for appellant. Mr. Albert E. Brault, Washington, D.C., with whom Mr. Bernard I. Nordlinger was on the brief, for appellee McLaughlin Co. Mr. Thomas H. McGrail, Washington, D.C., with whom Messrs. J. Roy Thompson, Jr., and John Jude O'Donnell, Washington, D.C., were on the brief, for appellee National Surety Corp. Mr. Francis J. Ford, Washington, D.C., entered an appearance for appellee Queen Ins. Co. Mr. John F. Cooney, Washington, D.C., entered an appearance for appellee Maryland Cas. Co. Before: PRETTYMAN, Senior Circuit Judge, and BURGER and LEVENTHAL, Circuit Judges. LEVENTHAL, Circuit Judge: 1 Appellant, hereafter plaintiff, appeals from a judgment on a verdict directed for defendants at the close of plaintiff's case. We affirm. 2 On November 19, 1958, plaintiff bought from one Karnell the hotel building at 2400 Sixteenth Street, Northwest, Washington, D.C. The contract of November 19, 1958, for this sale of premises, also contained an agreement whereby, simultaneously with transfer of title to plaintiff, plaintiff leased the hotel to Karbud Operating Corporation (Karbud) wholly owned by Karnell. 3 The lease provided that the tenant was to keep the buildings fully insured for the benefit of both landlord and tenant. It also provided that the premiums should be apportioned between landlord and tenant in case of expiration or termination of the term of the lease. Karnell had in 1958, through defendant McLaughlin Company (McLaughlin) as general agent, obtained policies of insurance with the other defendants, all insurance companies, for casualty, liability and boiler insurance pertaining to the building. 4 At the closing of title in January 1959, Karnell represented that all the policies had been paid for in full for the terms of the policies. This statement was accepted by plaintiff's representative. In fact, Karnell had paid those premiums with money borrowed from a corporation known as AFCO. The loan agreement required him to make certain repayments at periodic intervals, and assigned to AFCO as security all return premiums which might become payable under the policies listed therein. 5 Tenant Karbud failed to pay rentals due on October 1, 1959, and on October 13, plaintiff sent a five-day notice of termination of lease. Subsequently plaintiff learned for the first time, from McLaughlin, that the insurance premiums had been financed by AFCO and further learned that because Karnell's payments on the loan had not been met AFCO was about to exercise its right to cancel the policies and obtain the return of the excess premium. Plaintiff avoided cancelation by making the payment due in October. The next instalment due AFCO on November 19, 1959, was not paid and on that date notices of cancelation executed by McLaughlin in behalf of the other defendants were sent to plaintiff and Karbud. 6 The unearned premiums, sometimes called return premiums, amounting to $28,890.64, were refunded by the insurers to McLaughlin, which applied the bulk of it to the balance due on AFCO's loan.1 7 * We put to one side consideration of any right of action plaintiff may have against those not before us, either Karnell, who apparently cannot be found, or Karbud. We see no merit in plaintiff's alleged action against the insurers for the return premiums, based on provision in the policies for return of unearned premiums. We discuss the problem by reference to the National Surety Corporation comprehensive liability policy, which accounts for the bulk of the return premiums.2 It was issued October 16, 1958, for a three-year term, the named insured being identified as Karbud, lessee of the hotel. Clause 19, Cancelation, provides that the policy may be canceled either by the named insured, with earned premiums computed on the short rate table, or by the company on notice of at least ten days, with earned premiums computed pro rata. 8 Plaintiff leans heavily on the endorsement of January 1, 1959, identifying him as 'Additional Insured-- Lessor,' and providing that he was entitled to ten days' notice of cancelation. This endorsement undoubtedly gave plaintiff rights of considerable value while the policy was in force. In effect he became what in a casualty policy is referred to as a loss insured, covered against loss as his interest might appear. The policy insured him against loss arising out of claims against lessor based on ownership, maintenance or use of the hotel building-- but only while leased to the named insured.3 We have no occasion here to consider whether or to what extent plaintiff acquired protection through the endorsement against unilateral cancelation by the lessee. In this case there was cancelation by the company,4 which accordingly retained a lesser amount of earned premiums than is applicable in the case of cancelation by the insured. Plaintiff was entitled to and received notice of such cancelation. 9 In the absence of clear provision to the contrary we think the insurer was entitled under its contract to refund the return premium through its general agent even assuming, as we think we must in the stance of the directed verdict, that it knew or was chargeable with knowledge that the refund would be transmitted to AFCO. A premium financing plan is valid so long as there is no connection between the insurer and financing company. Annotation,115 A.L.R. 1212, 1213. The insurer is under a general duty to make refunds to the persons who procured and paid for the policies or their assignees. There is no basis here for holding that such refunds marked a breach of any contract or other duty to the plaintiff given protection as an additional insured. II 10 The action against McLaughlin was in two counts, both based on the failure to inform plaintiff that the premiums were financed by AFCO, the first count alleging negligence, the second count alleging fraudulent concealment. Plaintiff's proof showed that in May 1959, after transfer of title and execution of the lease, the mortgagee requested evidence of payment of premium on the fire insurance policy and in turn plaintiff asked McLaughlin whether payment of the premiums had been paid on all the policies. On June 19, 1959, McLaughlin Company's vice-president replied: 'Please accept this letter as our indication that all premiums have been paid for the full term of all policies issued from this office covering the above location.' 11 The vice-president testified that he assumed the letter was merely an inquiry as to the status of protection of insurance policies, i.e., the existence of insurance in force. It stands against plaintiff that he did not put his May inquiry into the record. However, since a verdict was directed for defendants, we assume that a jury might have found intentional concealment of the financing plan.5 12 The District Court ruled that although defendant's letter was at the very least unfortunate in failing to disclose that the payments had been made with borrowed money, there was no showing that plaintiff changed position to his detriment and only speculation offered that he might have canceled the lease. We agree, and add the abservation that he would not have had the right to terminate the lease even if the fact of the financing had been disclosed. 13 The lease, which ran for a twenty-one year term, did not specify that term or any other term for the insurance coverage. It specified that the tenant should keep the building insured, for the benefit of landlord, tenant and mortgagees as their interest might appear, against loss by fire or other hazard. It further required the tenant to provide and keep in force comprehensive public liability insurance in companies satisfactory to landlord and in standard form, and provided that 'such policies, with receipts evidencing payment of the premiums thereon, shall be delivered to and held by landlord.' 14 We see no prohibition, for example, against a tenant's obtaining only oneyear insurance policies. After eleven months, the landlord would have left only one month's insurance protection. The pertinent lease provision specified only that the tenant was to pay the renewal premiums at least fifteen days prior to the expiration of each policy. 15 Plaintiff's case is essentially based on the assumption that under the lease he is entitled to a three-year term in the policy and to prepayment of premium thereon. The landlord is entitled to an assurance of insurance that is reasonable in terms of commercial practice and the understanding of the parties. However, in the absence of express provision, or some basis for implication of an obligation beyond anything here shown, we do not consider that a lease agreement may be canceled as against a lessee keeping currently in force all types of insurance coverage specified in the lease, merely because of lack of advance rentals through prepayment of insurance. That conclusion is underscored where, as here the insurance obligation was 'additional rent' under a 'net rent' lease which required basic rentals to be paid in advance only monthly. A tenant usually takes a liability policy with a three-year term, since the total premium thereon is traditionally only 2 1/2 times the cost of a one-year premium. That does not give rise to a legal duty to contract for a three-year term. Certainly it does not prohibit borrowing part of the three-year premium. It is indeed commonplace for an insured to borrow a substantial part of the premium cost. The saving in premiums more than compensates for the interest cost. 16 The lessor has a right to monitor the existence of insurance in force, to see the policies and evidence of payment and renewal, to be informed of cancelation. Here plaintiff had sent a notice terminating the lease for failure to pay monthly rental before he received the first notice threatening termination of the insurance policy. Plaintiff has proved no legal detriment from the omission in McLaughlin's letter. 17 Affirmed. 1 McLaughlin applied approximately $1000 as an offset against an amount advanced by McLaughlin to Karnell and Karbud for payment of a previous instalment to AFCO. Plaintiff did not make any special claim that this amount stood in a special category because the person financing the insured stood in a dual position. We do not speculate on the merits of such a contention 2 This is the only policy in the printed record, and apparently paragraphs 7-13 were omitted from printing 3 This appears from the original policy clause, identifying Karnell as the 'additional insured-lessor.' The endorsement merely substitutes plaintiff for Karnell 4 Plaintiff protested that the cancelation notice was defective since it stated: Reason Non-payment. While it is true that the 'non-payment' was in the loan to AFCO, rather than the premium to the insurer, this does not vitiate the cancelation by the company 5 There were marginal factors in the case, quite probably innocent, that might have contributed to an adverse jury finding: Item: defendant failed to notify AFCO of the additional insured. Item: even after plaintiff's inquiry, defendant advanced a monthly instalment on behalf of Karbud without notifying plaintiff. See note 1, supra However, there was no allegation or claim of collusion between McLaughlin and Karbud. Nor was any claim made that even though no action could be based on the June letter, plaintiff suffered additional damage because of McLaughlin's payment of premiums in September without notice to plaintiff.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs March 12, 2002 STATE OF TENNESSEE v. RANDY G. McDANIEL Direct Appeal from the Circuit Court for Henry County No. 13086 Julian P. Guinn, Judge No. W2001-01501-CCA-R3-CD - Filed April 2, 2002 The defendant entered pleas of guilty to two counts of manufacturing a Schedule II controlled substance and was sentenced to concurrent three-year sentences. The trial court further ordered that the defendant have split confinement, with supervised probation after serving one year in the Tennessee Department of Correction. The defendant appeals this sentence, arguing that he should be eligible for parole after service of 30% of the sentence, that his sentence should be served at the county workhouse, and that he should receive sentence credits. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA MCGEE OGLE, J., joined. Steven L. West, McKenzie, Tennessee, for the appellant, Randy G. McDaniel. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant was sentenced to two concurrent three-year sentences for violation of Tennessee Code Annotated section 39-17-417(a)(1)(C)(2), manufacturing a Schedule II controlled substance. According to the judgments, he was sentenced as a “Standard 30%” offender and was to be placed on “Supervised Probation after 1 year confinement.” I. Place of Confinement As to the place of his confinement, the defendant argues that, pursuant to Tennessee Code Annotated section 40-35-104(b)(1), his sentence should be served at the county workhouse rather than in the Tennessee Department of Correction because “[t]he Henry County Jail has contracted with the department to house such felons.” Tennessee Code Annotated section 40-35-104(b)(1) provides as follows: A defendant who is convicted of a felony after November 1, 1989, and who is sentenced to a total sentence of at least one (1) year, but not more than three (3) years, shall not be sentenced to serve such sentence in the department of correction, if the legislative body for the county from which the defendant is being sentenced has either contracted with the department, or has passed a resolution which expresses an intent to contract for the purpose of housing convicted felons with such sentences. If the sentencing court concludes that incarceration is the appropriate sentencing alternative, such defendant must be sentenced to the local jail or workhouse and not to the department. Tenn. Code Ann. § 40-35-104(b)(1) (1997). We agree with the State that the record on appeal contains evidence neither of a contract between Henry County and the Tennessee Department of Correction, nor a resolution of its appropriate legislative body that convicted felons be housed in the Henry County Jail. Accordingly, there is no basis for our concluding that the defendant’s sentence should not be served in the Tennessee Department of Correction, as ordered by the trial court. II. Parole Eligibility/Sentence Credits Next, the defendant argues that, pursuant to Tennessee Code Annotated section 40-35-501(c), he is eligible for parole after serving 10.8 months of his sentence but that the judgments, providing for probation “after 1 year confinement,” do not so allow. The judgments require that the defendant serve “1 year confinement,” but do not order that he not receive sentence credits during this year. We note that this court has previously determined that a “day for day” confinement cannot deny a defendant sentence credits. State v. Clark, ___S.W.3d___ (Tenn. Crim. App.), perm. to appeal denied (Tenn. 2001); State v. James Hall Schlegel, No. W2000-02597-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 77, at *20 n.1 (Tenn. Crim. App. Jan. 28, 2002). Accordingly, the defendant is entitled to receive sentence credits as he serves his sentence in the Tennessee Department of Correction. -2-  CONCLUSION Based upon the foregoing authorities and reasoning, the judgment of the trial court is affirmed. ___________________________________ ALAN E. GLENN, JUDGE -3- 

2 Mass. App. Ct. 530 (1974) 316 N.E.2d 765 FIDELINA TOPALIS vs. NICHOLAS J. TOPALIS. Appeals Court of Massachusetts, Middlesex. January 15, 1974. September 26, 1974. Present: HALE, C.J., ROSE, GOODMAN, GRANT, & ARMSTRONG, JJ. Robert H. Clewell for the libellee. Margaret S. Travers for the libellant. *531 GOODMAN, J. The libellee, Nicholas Topalis, appeals from that portion of a divorce decree nisi which required him to convey to the libellant, Fidelina Topalis, all his interest in certain real estate as alimony for the support of the libellant and their four children. The children range in age from two years to twelve years. The trial judge filed a report of material facts in accordance with G.L.c. 215, § 11; the evidence is not reported. See Abrain v. Pereira, 336 Mass. 460, 461-462 (1957). From the judge's report of material facts it appears that the real estate, valued at about $35,000 subject to a mortgage of about $15,000, consists of a three-family house, a single-room cottage and a two-car garage, all located on a single lot. At the time of the hearing the libellant occupied one of the apartments in the three-family house. The other two were rented for a total of $280 monthly; mortgage payments for principal, interest and taxes were $271. The cottage, occupied by the libellee, could be rented for $135 a month. The judge found that the libellee had contributed nothing to the support of the libellant or the minor children for eighteen months prior to the date of the hearing; they were "on welfare." He "had received a retroactive unemployment check for $900 but did not give the libellant or minor children any part of it." The libellee was engaged in an export-import business "with uncertain results" and previous to that had also been a welfare recipient. The judge found that "with ownership of the real estate the libellant will be able to assure a home for herself and minor children, operate a day care center for children" and become totally or substantially self-sufficient. The judge also found that the libellee "would be unable to adequately support them [his wife and children] in the foreseeable future." In these circumstances, in the light of the libellee's past performance and prospects, the alimony provision in the decree is well within the scope of the discretion lodged in the Probate Court and is eminently sensible. "The power of the *532 Probate Court over alimony is extremely broad under our alimony statute, G.L.c. 208, §§ 34-37." Surabian v. Surabian, 362 Mass. 342, 348 (1972). Nor are there, as the libellee contends, any legal obstacles to this disposition. "The Probate Court may order alimony paid in a gross sum or in installments ... [citing cases]. Specific property may be ordered transferred as payment of alimony ... [citing cases]." Surabian v. Surabian, supra, at 348. And this may include the transfer of real property. Klar v. Klar, 322 Mass. 59, 60 (1947). Kahn v. Kahn, 353 Mass. 771 (1968). Contrast Gould v. Gould, 359 Mass. 29, 32 (1971) ("a separate support proceeding ... [in which] `the court may not ... provide for a division ... of the property of the husband'"). DiMarzio v. DiMarzio, ante, 174, 177 (1974). There is nothing in the libellee's contention that the judge was required to make support provisions for the children distinct from those for the libellant and in a separate proceeding. Alimony may include an allowance for the wife for the support of the children. Klar v. Klar, supra. Whitney v. Whitney, 325 Mass. 28, 29-31 (1949). England v. England, 329 Mass. 763, 764 (1952). It is immaterial that the report of material facts does not set out whether the property was held in a tenancy by the entirety or owned outright by the libellee. In either event the decree was proper. Costs and expenses of this appeal may be allowed to the libellant or her counsel in the discretion of the Probate Court. G.L.c. 208, § 38, as appearing in St. 1933, c. 288. Whitney v. Whitney, 325 Mass. 28, 33 (1949). Decree affirmed.

12 Wn. App. 152 (1974) 528 P.2d 1006 WOODROW WILSON, Respondent, v. THE CITY OF WALLA WALLA, Defendant, PAYLESS DRUG STORES, INC., Appellant. No. 914-3. The Court of Appeals of Washington, Division Three. November 25, 1974. *153 James B. Mitchell (of Reese & Mitchell), for appellant. Madison R. Jones, for respondent. MUNSON, J. Woodrow Wilson commenced an action against Payless Drug Stores, Inc., hereafter referred to as Payless, claiming damages for false arrest. Mr. Wilson was detained in the parking lot of Payless by store detectives who inquired whether payment had been made for certain items he had just placed on the rear seat of his car. Mr. Wilson refused to discuss the matter or to disclose whether he possessed a receipt for the items. After a police officer arrived, Mr. Wilson ultimately disclosed his receipt; he was then allowed to enter his car and leave. The total time of detention was approximately 45 minutes. A jury returned a verdict for Mr. Wilson in the sum of $5,000. Payless appeals. Payless first contends the court erred in refusing to give its proposed instruction No. 1,[1]i.e., that Mr. Wilson was under a duty to submit to the inquiries of the store detectives, to mitigate damages. Payless further contends that the proximate cause of compensable injury to Mr. Wilson was his refusal to submit to these inquiries. We disagree. [1, 2] A party injured by conduct that is either intentional or reckless is entitled to compensatory damages and is under no duty to mitigate such damages. Desimone v. Mutual Materials Co., 23 Wn.2d 876, 162 P.2d 808 (1945); Champa v. Washington Compressed Gas Co., 146 Wash. 190, *154 262 P. 228 (1927); Theis v. Federal Fin. Co., 4 Wn. App. 146, 480 P.2d 244 (1971). False arrest is an intentional tort; the court properly refused to submit proposed instruction No. 1. W. Prosser, Torts § 11 (4th ed. 1971). Instruction No. 9 sets forth a statutory defense permitting limited detention by a mercantile establishment; however, the element of mitigation is not mentioned in the statute. RCW 4.24.220.[2] [3] It is not error to refuse a requested instruction when a party's theory of the case may be adequately argued within the given instructions. Lucas v. Velikanje, 2 Wn. App. 888, 471 P.2d 103 (1970). The theories urged by Payless could be adequately argued within instruction No. 3.[3] Secondly, Payless contends the $5,000 verdict was excessive and unmistakably the result of passion or prejudice on the part of the jury. We are constrained to disagree. [4] Instruction No. 14 provided in part: "The law has not furnished us with any fixed standards by which to measure pain, suffering, anguish of mind, sense of shame, humiliation and loss of social reputation." Payless has not assigned error to this instruction. In considering the entirety *155 of the evidence, we are unable to conclude that the verdict was unmistakably the result of passion or prejudice. We may have "gasped" at the verdict, but we are not "shocked" by it. Neff v. United Pac. Ins. Co., 58 Wn.2d 618, 364 P.2d 515 (1961); Carlos v. Cain, 4 Wn. App. 475, 481 P.2d 945 (1971); Hanson v. Newberry Renton Corp., 3 Wn. App. 546, 475 P.2d 893 (1970). Judgment affirmed. GREEN, C.J., and McINTURFF, J., concur. NOTES [1] "If you find for the plaintiff, in arriving at the amount of money which will reasonably and fairly compensate him, you are to consider that a person who claims damage to his person or reputation must exercise ordinary care to minimize existing damages and to prevent further damage. If any loss is proximately caused by a failure to exercise such care, damages cannot be recovered for such loss." [2] "In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer or by the owner of the mercantile establishment, his authorized employee or agent, and that such peace officer, owner, employee or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise." [3] "Third, that the action of defendants was a proximate cause of the damage to plaintiff."

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, Appellee, v. KINYATTA SHANTELLE PERKINS, Appellant. No. 1 CA-CR 17-0755 FILED 7-17-2018 Appeal from the Superior Court in Maricopa County No. CR2016-158542-001 The Honorable George H. Foster, Judge AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender’s Office, Phoenix By Jeffrey L. Force Counsel for Appellant  STATE v. PERKINS Decision of the Court MEMORANDUM DECISION Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Michael J. Brown and Judge Jon W. Thompson joined. J O N E S, Judge: ¶1 Kinyatta Perkins appeals her convictions and sentences for two counts of disorderly conduct and one count of criminal damage. After searching the entire record, Perkins’s defense counsel identified no arguable question of law that is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asked this Court to search the record for fundamental error. Perkins was granted an opportunity to file a supplemental brief in propria persona but did not do so. After reviewing the entire record, we find no fundamental error. Accordingly, Perkins’s convictions and sentences are affirmed. FACTS AND PROCEDURAL HISTORY ¶2 On December 3, 2016, Perkins called the victim, T.G., asking to come over to T.G.’s apartment.1 T.G. told Perkins no, but Perkins arrived anyway and forced her way into the apartment. Perkins then pushed T.G. down onto the bed and began choking her in front of her nine-year-old son. T.G.’s seven-year-old son was in another room but heard the commotion and saw Perkins choking her. T.G. hit Perkins over the head with a vase and was eventually able to push Perkins out of the apartment, but not before Perkins knocked over T.G.’s television and broke a lamp. ¶3 After Perkins had left the apartment, both the nine-year-old son and T.G. called 9-1-1. T.G. was examined by a forensic nurse, who documented scratches on T.G.’s throat and recommended she go to the emergency room to have her swollen neck examined. 1 “We view the facts in the light most favorable to sustaining the convictions with all reasonable inferences resolved against the defendant.” State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495 (App. 1996)). 2  STATE v. PERKINS Decision of the Court ¶4 The State charged Perkins with one count of aggravated assault, a domestic violence offense; two counts of disorderly conduct — one for each of the children present; and one count of criminal damage, a domestic violence offense. At a six-day trial, the State presented testimony from T.G., both children, the forensic nurse, and the officers involved in the case. It also played the nine-year-old’s 9-1-1 call to the jury. The State stipulated the damage to T.G.’s property was less than $250. Perkins moved unsuccessfully for judgment of acquittal on the first three counts and then testified in her defense. The jury acquitted Perkins of aggravated assault but convicted her of both counts of disorderly conduct and criminal damage. The jury did not find the criminal damage count was a domestic violence offense. ¶5 At sentencing, the trial court found Perkins was a non- dangerous, non-repetitive offender, suspended her sentence, and placed her on two years of supervised probation. Perkins timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12- 120.21(A)(1),2 13-4031, and -4033(A)(1). DISCUSSION ¶6 Our review of the record reveals no fundamental error. See Leon, 104 Ariz. at 300 (“An exhaustive search of the record has failed to produce any prejudicial error.”). As relevant here, a person commits disorderly conduct, a class one misdemeanor, “if, with intent to disturb the peace or quiet of a . . . family or person, or with knowledge of doing so, such person . . . [e]ngages in fighting, violent or seriously disruptive behavior.” A.R.S. § 13-2904(A)(1). “A person commits criminal damage by . . . [r]ecklessly defacing or damaging property of another person.” A.R.S. § 13-1602(A)(1). Criminal damage is a class 2 misdemeanor if the person causes less than $250 in damage. A.R.S. § 13-1602(B)(6). The record contains sufficient evidence upon which the jury could determine beyond a reasonable doubt that Perkins was guilty of the charged offenses. ¶7 All the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Perkins was represented by counsel at all stages of the proceedings and was present at all critical stages, including the entire trial and verdict. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages) (citations 2 Absent material changes from the relevant date, we cite a statute’s current version. 3  STATE v. PERKINS Decision of the Court omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). The jury was properly comprised of eight jurors, and the record shows no evidence of jury misconduct. See Ariz. Const. art. 2, § 23; A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the jury on the elements of the charged offenses, the State’s burden of proof, and Perkins’s presumption of innocence. At sentencing, Perkins was given an opportunity to speak, and the court stated upon the record the evidence and materials it considered in sentencing. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the sentences are within the statutory limits. See A.R.S. § 13- 707(A). CONCLUSION ¶8 Perkins’s convictions and sentences are affirmed. ¶9 Defense counsel’s obligations pertaining to Perkins’s representation in this appeal have ended. Defense counsel need do no more than inform Perkins of the outcome of this appeal and her future options, unless, upon review, counsel finds an issue appropriate for submission to our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). ¶10 Perkins has thirty days from the date of this decision to proceed, if she wishes, with an in propria persona petition for review. See Ariz. R. Crim. P. 31.21. Upon the Court’s own motion, we also grant Perkins thirty days from the date of this decision to file an in propria persona motion for reconsideration. AMY M. WOOD • Clerk of the Court FILED: AA 4 

722 F.2d 1483 Eldon STAMPER and Sonya Stamper (dba Chezmyrae Walkers), RonH. Fox, Respondents and Appellants,v.SECRETARY OF AGRICULTURE, United States Department ofAgriculture, Complainants and Appellees. No. 83-7063. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 13, 1983.Decided Jan. 4, 1984. George E. Murphy, Bolling, Walter & Gawthrop, Sacramento, Cal., for respondents and appellants. Raymond W. Fullerton, Aaron B. Kahn, Washington, D.C., for complainants and appellees. Appeal from an Order of the United States Department of Agriculture. Before WALLACE, ALARCON and BOOCHEVER, Circuit Judges. BOOCHEVER, Circuit Judge. 1 This appeal arises under the Horse Protection Act (the Act), 15 U.S.C. Secs. 1821-31 (1976). Mr. and Mrs. Stamper (the Stampers) were the owners, and Ross Fox (Fox) was the trainer, of Red Bluff's Playboy (Playboy), a Tennessee Walking Horse. At a horse show on September 22, 1979, inspectors of the United States Department of Agriculture (the Department) found Playboy to be "sore" within the meaning of the Act. The Stampers and Fox appeal from the Department Judicial Officer's reversal of the ALJ's dismissal of the subsequent charges. The Judicial Officer found all three respondents in violation of the Act, and imposed fines and suspensions. 2 We find that substantial evidence in the record supports the Judicial Officer's reversal, and that the imposed penalties were not an abuse of discretion. We further hold that the Department need not establish intent in order to find a violation of the Act. It is unnecessary to decide whether an owner, without knowledge of soreness, may be liable when the horse is exhibited contrary to orders, because the Stampers have failed to show that they ordered Fox not to exhibit Playboy if the horse were sore. BACKGROUND 3 Tennessee Walking Horses have a high-stepping gait or "walk," achieved through selective breeding and training with equipment called "action devices." Unfortunately, the "walk" also can be created artificially in less talented horses by making the horse's forelimbs sore. The resulting pain causes the horse quickly to lift his feet when he walks, producing the desired gait. The sores can be produced by use of nails, tacks, injections, blistering agents or misuse of action devices. These practices are cruel to the animal and threaten the Walking Horse industry and the breed itself, because winning horses are highly valued as studs. 4 To end this cruelty and to protect the breed's natural ability to "walk" in its distinctive fashion, Congress enacted the 1970 Horse Protection Act, which imposes penalties for showing or exhibiting sore horses. See H.R.Rep. No. 91-1597, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 4870, 4871-72. In 1976, continuing reports of horse-soring prompted Congress to amend the Act to expand the Department's enforcement authority. See H.R.Rep. No. 94-1174, 94th Cong., 2d Sess. (1974) at 4-5, 6, reprinted in 1976 U.S.Code Cong. & Admin.News 1696, 1699, 1701. Most relevant here, Congress revised the definition of "sore" to eliminate requirements that the soring be done with the intent to affect the horse's gait, H.R.Rep. No. 94-1174 at 2, reprinted in 1976 U.S.Code Cong. & Admin.News 1696, and it added a statutory presumption that a horse is sore if it manifests abnormal sensitivity or inflammation in both of its forelimbs or hindlimbs. Id. See 15 U.S.C. Secs. 1821(3), 1825(d)(5) (1976). FACTS 5 On September 22, 1979, Playboy was shown at a Tennessee Walking Horse show (the show) in Sacramento, California. Twenty to thirty minutes prior to his exhibition, Playboy was examined and passed by William Hartmann (Hartmann), a nonveterinarian Designated Qualified Person (DQP) assigned to inspect horses for violations of the Act. After the examination, trainer Fox warmed up Playboy for a disputed time period of from ten to thirty minutes.1 6 After the show, Departmental inspectors selected Playboy for a second examination because he appeared in distress. Playboy was examined by Dr. Fenno, a Departmental veterinarian, who observed extensive loss of hair, callus formation, and raw abrasions in the pastern area of both of Playboy's forelimbs. Dr. Fenno palpated both front pasterns, using a dabbing motion with about as much pressure as used to feel a person's pulse, and found both forelimbs abnormally sensitive. Dr. Fenno concluded that Playboy was sore, in violation of the Act. 7 Subsequently, Dr. Derlicke, a Departmental trainee, examined Playboy in the same manner, and obtained the same reaction. Dr. Gay, the veterinarian in charge, next examined Playboy and noted seepage of blood-tinged serum from the posterior and anterior aspects of the pasterns, and a bilateral condition that suggested misuse of action devices. Dr. Fenno then reexamined Playboy with essentially the same results as earlier, except that he found greater sensitivity in the pasterns, and more oozing serum. 8 John Gunn, Playboy's co-trainer, next examined the horse. According to Fox's testimony, Playboy showed no reaction to Gunn's examination. Gunn himself did not testify at the hearing. 9 The final examination was by Hartmann, the DQP. In response to Hartmann's palpation of the first pastern, Playboy violently jerked back, hitting the stall wall. Hartmann also observed the abrasions, and concluded that the injuries were caused by overuse of action devices. 10 A hearing was held on June 2-3, 1981. The Department's ALJ concluded in her initial opinion that Playboy's abrasions and reactions were caused by factors not prohibited by the Act. Nevertheless, she found the respondents in violation on the theory that the statutory presumption of soreness2 was irrebuttable. The ALJ fined each respondent $100. The Department's Judicial Officer, however, subsequently remanded, on grounds that the statutory presumption was rebuttable. On remand, the ALJ held that the statutory presumption of soreness was rebutted, and that Playboy was not "sore" within the meaning of the Act. The ALJ held Playboy's reactions may have been caused by the number and manner of examinations by Departmental inspectors, sand and grit from the arena rubbing on the pasterns, Playboy's striking himself, the presence of a tail brace, or stretching of the leather bands holding the action devices in place. 11 The Judicial Officer reversed. He held Playboy's injuries stemmed from the use of action devices at the show, coupled with a preexisting callus buildup on the pasterns. The Judicial Officer further held that the owner and exhibitor are "absolute guarantors" of the horse's condition, so that even if other factors exacerbated the injuries, the respondents should have considered those factors before using action devices. Finally, the Judicial Officer held that the owner need not know of the sores to be held liable under the Act. He imposed fines of $2,000 on the Stampers and $750 on Fox, and suspended all three from showing horses for one year. 12 Fox and the Stampers contend the Judicial Officer's inferences are unsupported by substantial evidence on the record, his holdings with regard to intent or knowledge are erroneous as a matter of law, and the Judicial Officer abused his discretion by imposing a greater penalty than the ALJ originally imposed. I. Standard of Review 13 The statute provides that decisions of the Secretary shall be set aside if unsupported by "substantial evidence." 15 U.S.C. Sec. 1825(b)(2) (1976). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); City of Oakland v. Donovan, 703 F.2d 1104, 1106 (9th Cir.1983). Where an administrative agency disagrees with the conclusions of its ALJ, the standard does not change; the ALJ's findings are simply part of the record to be weighed against other evidence supporting the agency. Saavedra v. Donovan, 700 F.2d 496, 498 (9th Cir.1983); NLRB v. Brooks Cameras, Inc., 691 F.2d 912, 915 (9th Cir.1982). The weight we accord the ALJ's findings, however, is greatest where credibility based on witness demeanor is at issue. Brooks Cameras, 691 F.2d at 915; Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-79 (9th Cir.1977). As to derivative inferences, our deference is to the agency, not to the ALJ. Brooks Cameras, 691 F.2d at 915; Penasquitos Village, 565 F.2d at 1079. II. The Finding of Soreness 14 The only important testimonial conflict involved the time and manner of Playboy's warmup by Fox. Fox testified he rode the horse from five to ten minutes prior to the show. Dr. Gay testified that he observed the horse being ridden thirty minutes before the show, although the horse was not ridden all the times he saw it. The ALJ credited Fox's version. 15 Stamper's counsel later asked Dr. Fenno whether, based on a hypothetical warmup similar to that described by Fox, Playboy would have been sore within the meaning of the Act when he entered the ring. Dr. Fenno stated he doubted it, unless other factors intervened such as the horse's kicking himself. Similarly, Hartmann testified that, based on a warmup as described by Fox, it was highly unlikely that Playboy was unsound when he entered the arena, but that sand or grit from the arena might have increased the friction from the action devices Playboy wore, or that some unknown factor could have caused the injuries. Based on these hypothetical answers, and Fox's version of the warmup credited by the ALJ, the Stampers and Fox argue that no evidence shows Playboy was sore when he entered the ring, or that his injuries were caused by use of the action devices. 16 The Stampers and Fox admitted in their Trial Brief that Playboy exhibited pain in both forelimbs when examined by the veterinarians, thereby raising the statutory presumption of soreness. 15 U.S.C. Sec. 1825(d)(5) (1976). The presumption was reinforced by the veterinarians' examination results and the supporting photographs. Nor did the Stampers or Fox offer evidence rebutting Playboy's abnormal sensitivity. 17 We find substantial evidence on the record supports the Judicial Officer's conclusions that Playboy was sore within the meaning of the Act, and that the examinations by the veterinarians played no significant part in Playboy's reactions.3 In so holding, we find it unnecessary to resolve the credibility issue of how long Fox exercised Playboy prior to the show. The testimony of the Department's inspectors established that Playboy exhibited abnormal sensitivity in both forelimbs and visible abrasions oozing serum. This was sufficient to raise the statutory presumption of soreness. 15 U.S.C. Sec. 1825(d)(5) (1976). Even if we accept Fox's version of the pre-show warmup, his testimony does not rebut the inspectors' findings. 18 Relying on the veterinarians' testimony, and the fact that no other horse was affected by arena conditions, the Judicial Officer concluded sand or grit from the arena was not a major cause of Playboy's injuries. Nor could the type of abrasions Playboy exhibited have been caused by the horse's striking himself, according to testimony by Dr. Fenno and Mr. Hartmann. Dr. Fenno also testified that he examined Playboy's chains and found them properly placed, negating this as a possible cause. Finally, the Judicial Officer rejected the tail brace as a possible cause, relying on Hartmann's direct denial of such a possibility. We find substantial evidence supports each of these conclusions. 19 Drs. Gay and Fenno and Mr. Hartmann testified that excessive use of action devices prior to the show had caused an extensive buildup of callus on both of Playboy's front pasterns, more severe than on other horses of similar age. All three further testified that Playboy was sore because of excessive use of action devices. From this, the Judicial Officer inferred that the use of action devices on the preexisting callus buildup caused Playboy's injuries.4 20 No other explanation of the injuries seems consistent with the veterinarians' observations. Fox and Stamper testified that one examining doctor improperly used excessive pressure in palpating Playboy. The only additional contrary testimony was hypothetical, based on Fox's description of the warmup. The Judicial Officer properly accorded these contentions and hypothetical answers lesser weight than the inspectors' testimony, which was based on direct examination of Playboy by three veterinarians and a DQP. We find substantial evidence supports the Judicial Officer's conclusions.5 III. Intent 21 The Judicial Officer found that neither the Stampers nor Fox intended to sore Playboy. The Department, however, consistently has interpreted the Act as making owners and exhibitors "absolute guarantors" of the horse's condition, without regard to their knowledge or intent. See In re Thornton, 41 Agric.Dec. 870, 887-88 (1982), affirmed, 715 F.2d 1508 (11th Cir.1983); In re Rowland, 40 Agric.Dec. 1934, 1943 (1981), affirmed sub nom. Fleming v. United States Department of Agriculture, 713 F.2d 179 (6th Cir.1983). See also, 9 C.F.R. Sec. 11.2(a) (1983) (prohibiting use of any chain or other device if it causes a horse to be sored). The Department contends that an exhibitor must not use devices that injure the horse, regardless of whether the exhibitor intended the injury. If the horse, like Playboy, is unusually sensitive because of its extensive calluses, the owner or exhibitor must take this into account when deciding whether to use action devices at a show. 22 The construction of this Act is a matter of first impression before the Ninth Circuit. Two other circuits construe the Act as not requiring intent. Thornton v. United States Department of Agriculture, 715 F.2d 1508, at 1512 (11th Cir.1983); Fleming v. United States Department of Agriculture, 713 F.2d 179, 186 n. 10 (6th Cir.1983). In addition, the Eighth Circuit apparently does not require intent, although it does require knowledge under some circumstances. See Burton v. United States Department of Agriculture, 683 F.2d 280, 283 (8th Cir.1982). 23 In 1976, Congress amended the Horse Protection Act in order to facilitate enforcement. One change was the deletion of the requirement that the sore be inflicted "for the purpose of affecting [the horse's] gait."6 The House Report stated that the new statutory language was intended to eliminate any requirement that the horse be sored with the intent to affect the horse's gait. See H.R.Rep. No. 94-1174, 94th Cong., 2d Sess. at 2 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 1696. Consistent with the congressional purpose, section 1824 prohibits the showing of a sore horse or allowing a sore horse to be shown; it contains no express element of intent. 15 U.S.C. Sec. 1824(2) (1976). Further, the 1976 substitution of "sore" for "sored" implies that the offense focuses on the condition of the horse, not on the actions of the owner or exhibitor. 24 We accord great deference to the construction of a statute by the agency charged with its administration. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980); Horizon Mutual Savings Bank v. Federal Savings & Loan Ins. Corp., 674 F.2d 1312, 1316 (9th Cir.1982). Here, the Department's regulations and interpretations are in line with the thrust of the 1976 amendments. We therefore hold that a person need not intend to sore a horse in order to violate the Act. IV. Knowledge Section 1824 prohibits: 25 (2) The (A) showing or exhibiting, in any horse show or horse exhibition, of any horse which is sore ... and (D) allowing any activity described in clause (A) ... respecting a horse which is sore by the owner of such horse. 26 15 U.S.C. Secs. 1824(2)(A) and (D) (1976) (emphasis added). The Stampers, Playboy's owners, argue that they can "allow" a sore horse to be shown only if they know the horse is sore. 27 The Eighth Circuit recently set forth a three-part test for determination of this requirement. That court held that an owner does not "allow" a sore horse to be shown where (1) the owner had no knowledge the horse was sore, (2) a DQP had examined and approved the horse before the show, and (3) the owner had directed the trainer not to show a sore horse. Burton v. United States Department of Agriculture, 683 F.2d 280, 283 (8th Cir.1982). 28 The Department argues that Burton focuses on erroneous factors: Knowledge is difficult to prove or infer, and all horses shown while sore have passed a pre-show examination by a DQP. Further, the Department contends, trainers will not testify against the owners of horses, because such testimony would not negate the trainers' own violations of the Act and would limit the trainers' future employment. 29 The Department consistently has held knowledge of the sores is not required for owner liability. See, e.g., In re Crowder, 40 Agric.Dec. 33, 41 (1981); In re Purvis, 38 Agric.Dec. 1271, 1278-79 (1979) (1974 violation); In re Whaley, 35 Agric.Dec. 1519, 1526 n. 16, 1527 (1976) (1972 violation). Also of significance, Congress left out an express knowledge requirement in 15 U.S.C. Sec. 1825(b)(1), but expressly included the requirement in other portions of the Act. See, e.g., 15 U.S.C. Secs. 1824(1), (5), (6), 1825(a)(1), (a)(2)(A), (a)(2)(B), and (c) (1976). The legislative history of the Act, however, does not clarify whether the omission of a knowledge requirement from section 1825(b)(1) was intentional. See generally H.R.Rep. No. 91-1597, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 4870; H.R.Rep. No. 94-1174, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 1696. 30 We find it unnecessary in this case to resolve whether Burton correctly construed the Act, because the Stampers have failed to satisfy the third factor of the Burton test. We have not found, and the parties have not cited, any testimony indicating that the Stampers expressly ordered Fox not to show Playboy if he were sore.7 At most, the testimony indicates that the Stampers did not affirmatively order Fox to show Playboy with knowledge that he was sore. We agree with the Eleventh Circuit that this factual difference from Burton is legally significant. See Thornton, at 1512 n. 5. There is no question that the Stampers permitted Playboy to be shown. Under these circumstances, the absence of the Stampers' knowledge of the horse's soreness is insufficient to negate the Stampers' civil liability under the Act. Even under the Burton test the Stampers may be held liable. We need not decide whether a more stringent test is applicable. V. Severity of the Penalty 31 The Department imposed a fine of $2,000 on the Stampers and $750 on Fox, and suspended all three from Tennessee Walking Horse competitions for one year. The Stampers and Fox argue that the fines and suspensions constitute an abuse of the Judicial Officer's discretion. They urge reinstatement of the $100 fines originally imposed by the ALJ. 32 The scope of our review in this area is limited. "Only if the remedy chosen is unwarranted in law or is without justification in fact should a court attempt to intervene in the matter." Nees v. Securities & Exchange Commission, 414 F.2d 211, 217 (9th Cir.1969), quoting American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 112-13, 67 S.Ct. 133, 146, 91 L.Ed. 103 (1946). 33 The sanctions imposed here are within the range authorized by the statute. 15 U.S.C. Secs. 1825(b)(1) and (c) (1976). The suspensions are for the minimum time period authorized, and the fines are less than the maximum possible. 34 Fox and the Stampers point out they had neither intent to injure nor knowledge of Playboy's injuries. The Department, however, argues it uniformly imposes severe penalties, especially suspensions, in order to offset the great profits owners of sore horses may make. A suspension prohibits the showing or exhibiting of horses, but not owning or training them. The Judicial Officer, as required by the Act, considered the severity of Playboy's injuries, and the ability of each respondent to pay, in assessing the penalties. See 15 U.S.C. Sec. 1825(b)(1) (1976). We find the penalties he imposed were not an abuse of discretion.CONCLUSION 35 The findings and penalties of the Department's Judicial Officer are affirmed. 36 AFFIRMED. 1 Mr. Stamper was present when Fox and a co-trainer put action devices on Playboy prior to Hartmann's examination. He accompanied Fox and Playboy to the pre-show examination and remained in the warmup area while Fox exercised Playboy. On at least one occasion during the warmup, Fox brought Playboy to a stop beside Mr. Stamper 2 15 U.S.C. Sec. 1825(d)(5) provides: (5) In any civil or criminal action to enforce this chapter ... a horse shall be presumed to be a horse which is sore if it manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hindlimbs. 3 The Stampers and Fox object to the Judicial Officer's supposed consideration of evidence not on the record, regarding sound horses' ability to undergo palpation without pain, the absence of any other case alleging the examiners caused the injuries, and the possibility of masking sores in pre-show examinations by use of short-term anesthetics. The Judicial Officer denied that any of these facts were considered as evidence for findings here, they merely served as one of the reasons for drawing his inferences. In any event, there is substantial evidence to support the inferences apart from the disputed facts 4 The Stampers and Fox characterize this inference as an "expert opinion" by the Judicial Officer, and they contend he was not qualified to render an expert opinion as to the cause of the injuries. The Judicial Officer's opinion, however, makes clear that this finding is an inference of fact from the testimony of the veterinarians and other evidence on the record 5 The Stampers and Fox argue that their use of action devices on Playboy was legal, and therefore cannot be a basis for liability under the Act. In accordance with section 1828 of the Act, the Secretary has issued regulations for use of action devices at horse shows. 9 C.F.R. Sec. 11.2(b) (1983). The devices used on Playboy were of types permitted by those regulations. Nevertheless, the regulations also prohibit the use of even those otherwise legal devices if they cause a horse to be sore. 9 C.F.R. Sec. 11.2(a) (1983). We find this prohibition to be in accord with 15 U.S.C. Sec. 1821(3)(D), which defines "sore" as physical pain, distress, inflammation or lameness caused by "any other substance or device." The respondents' argument that Playboy's action devices were legal despite their soring of Playboy is without merit 6 15 U.S.C. Sec. 1821 currently provides in relevant part: (3) The term "sore" when used to describe a horse means that--... (D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse, and, as a result of such ... use or practice, such horse suffers ... physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving ... (emphasis added). In 1976, the current definition of "sore" replaced an earlier statutory definition of "sored." The older statute provided: (a) A horse shall be considered sored if, for the purpose of affecting its gait -- * * * (4) any other cruel or inhumane device has been used ... Pub.L. No. 91-540, Sec. 2(a), 84 Stat. 1404 (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 1638 (emphasis added). 7 The ALJ, generally citing Fox's testimony, found only that the Stampers had not instructed Fox to show a sore horse. Fox's testimony, however, does not reveal what instructions, if any, he received from the Stampers. On appeal, the Judicial Officer, citing no testimony, held that the Stampers had instructed their trainers not to sore their horses or show a sore horse. We find no support in the record for the Judicial Officer's conclusion. Neither Mr. Stamper nor Fox testified that the Stampers gave their trainers such instructions

792 So.2d 146 (2001) STATE of Louisiana v. Ronny WHITE. No. 01-KA-134. Court of Appeal of Louisiana, Fifth Circuit. July 30, 2001. *148 Harry J. Morel, Jr., District Attorney, Kim K. McEwee, Assistant District Attorney, Hahnville, LA, Counsel for State. Bertha M. Hillman, Hillman Law Firm, Thibodaux, LA, Counsel for defendant-appellant. Court composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and CLARENCE E. McMANUS. McMANUS, Judge. In this matter, Defendant Ronny White appeals his conviction and sentence for armed robbery. Finding no merit to either of White's assignments of error, and having found no patent error, we affirm the conviction and sentence. STATEMENT OF THE CASE On September 27, 1999, Ronny White[1] was indicted for the September 9, 1999, armed robbery of the Hibernia National Bank in Norco, Louisiana. LSA 14:64. The bill was amended on May 9, 2000, to add the name of the individual employee of the bank who was robbed. Defendant entered a plea of not guilty on May 11, 2000. On October 5, 1999, Defendant moved for a sanity hearing. The hearing was conducted on November 3, 1999, and the Defendant was found sane and competent to stand trial. On May 31, 2000, following a two-day trial, a 12 person jury found the Defendant guilty as charged, by a vote of 11 to 1. On June 6, 2000, White filed a motion for post verdict judgment of acquittal and a motion for a new trial. The motion for a new trial was grounded upon a Batson claim. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Both post trial motions were denied on July 24, 2000. *149 On July 2, 2000, the court ordered a pre-sentence investigation. A sentencing hearing was held August 15, 2000, during which testimony in mitigation was taken. Aided by the testimony and a pre-sentence report, the judge sentenced the Defendant to imprisonment for 49½ years in the Department of Corrections, with credit for time served, but without benefit of parole, probation or suspension of sentence. Defendant filed a motion for reconsideration of sentence on August 7, 2000. The motion was denied August 21, 2000. Defendant filed a motion for appeal on August 17, 2000, which was granted November 21, 2000. FACTS On September 9, 1999, at approximately 9:30 a.m., Ronny White and Bryan Loper asked Charles Holmes to go for a ride with them in Loper's girlfriend's white Toyota 4 Runner. While riding, they passed the Hibernia Bank in Norco several times before parking at a location which was two to three blocks away from the bank. White and Loper exited the vehicle and they told Holmes that they would return shortly. At the time, White was wearing a blue and white stripped shirt and blue pants. Loper had on a long-sleeved shirt and blue pants. Each man wore a cap. On that day, at approximately 10:15 a.m., Scott Adams was working as the branch manager at the Hibernia Bank in Norco. He noticed two black men enter the bank through the front door. The men each brandished a gun and demanded money. One man had a revolver and the other an automatic weapon. Both men had on ski masks, baseball caps and sunglasses. The man in the blue and white striped shirt had on white garden gloves. This gunman was later described as being approximately 6' to 6' 2" and stocky. The gunmen ordered the bank employees to get down on the floor. As the central teller descended to the floor, she set off the bank's alarm. The assailant in the striped shirt went behind the counter and removed money from one of the teller's drawers. He demanded more money. The branch manager, Scott Adams, opened two more teller drawers and the money was taken. Adams estimated that the amount of money taken was $36,000.00. The gunmen ran out the front door and through an open field located next to the bank and between St. Charles Street and Goodhope Street. As the gunmen ran from the bank, they were observed by an employee and customer of the Dollar General Store, located across the street from the bank. The employee, Donna Victor, heard a bomb-like sound and saw red powder. One suspect dropped the bag when the dye bomb exploded and the other suspect ran to retrieve it. Ms. Victor called 911. When the two assailants returned to the 4 Runner, Holmes saw the red dye and asked what had happened. White told him that he and Loper had just robbed the bank. White had changed clothes. Loper removed his long-sleeved shirt to reveal a T-shirt. Loper got into the front driver's seat and White sat behind him in the vehicle. They drove off headed to Holmes's house to drop him off. A delivery worker, Lynn Dufrene, was working between Goodhope and Apple Streets, on River Road, on that day. She saw two men run out of a field and get into a white Toyota 4 Runner, which was parked on the sidewalk. One of the men was wearing white gloves. Ms. Dufrene pulled into the bank's lot, saw the sign in the bank, and knew there had been a robbery. She told a policeman, in the *150 bank's parking lot, what she had seen. He radioed the dispatcher with a description of the men and the vehicle. Within five minutes of the radio broadcast, Lt. Edward Nowell of the St. John the Baptist Sheriff's Office spotted the white 4 Runner with the black male occupants traveling on Highway 61 towards the St. Charles Parish line. The vehicle was stopped and the three black male occupants were removed, arrested and placed in two police cars. Scott Adams, the bank manager, was transported to the scene where the vehicle was located. He looked in the vehicle and was able to identify the striped shirt and a baseball cap. The vehicle was inventoried by crime scene technician, Sgt. Billy LeBlanc, of the St. Charles Sheriff's Office. He removed a Smith and Wesson, Model 15.38 special, with 6 rounds of live ammunition from the floor of the vehicle. He also removed a Lorcin Model L. 9mm semiautomatic, with 13 rounds of live ammunition from the floor of the 4 Runner. Clothing removed from the vehicle included a white T-shirt, a striped shirt stained with red dye, a long-sleeved white shirt, sunglasses, two baseball caps, a camouflaged mask and garden gloves. Documents and credit cards bearing the names of Ronny White and Bryan Loper were also removed from the interior of the vehicle. The vehicle contained red dye on the left door handle. The vehicle was photographed and dusted for prints.[2] Money was recovered in an area covered with red dye located in the vacant lot to the east of the bank. ASSIGNMENT OF ERROR NUMBER ONE As his first assignment of error, Defendant maintains that the trial court erred in failing to grant his Batson challenge regarding Louis Coleman. Defendant contends that the facts establish a pattern of discrimination by the State in its exercise of peremptory challenges in the selection of the petit jury. Specifically, Defendant contends that the trial court erred in finding the State presented race-neutral reasons for the exercise of its challenges. He further contends the trial court erred in refusing to grant his Batson challenge to potential juror, Louis Coleman. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State argues that the Defendant failed to present a prima facie case of discrimination. In the alternative, the State claims that it provided race-neutral reasons for the challenges it exercised, and, therefore, the trial court correctly denied defendant's Batson challenge. The right to a trial by jury in criminal cases is such a fundamental feature of the American justice system that it is protected against state action by the Due Process Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. at 79, 87, 106 S.Ct. 1712. Although a defendant does not have a right to a petit jury composed in whole or in part of persons of his own race, he does have the right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria. Batson v. Kentucky, 476 U.S. at 79, 86, 106 S.Ct. 1712. Therefore, although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential *151 jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. Batson v. Kentucky, 476 U.S. at 79, 89, 106 S.Ct. 1712. In State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 278, the Louisiana Supreme Court discussed the three-step test required to prove a Batson claim: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. In this case, the racial composition of the general venire is unknown from the record. Likewise, the record does not clearly establish the racial composition of the petit jury in this case. The record does establish that the State exercised peremptory challenges against four persons who were known to be black: John Grimes, Alandra Anderson, Louis Coleman, and Barbara Smith. The State also exercised a peremptory challenge against one person whose race could not be identified (without directly asking), i.e., Pernoll Dinvaut. The State's first peremptory challenge was exercised against Pernoll Dinvaut. At the time of the challenge, the Defendant commented that this potential juror was black. However, the court made a finding that Dinvaut did not "appear to be" black. Out of an abundance of caution, the State recited, for the record, its race-neutral grounds for exclusion. The State said that Mr. Dinvaut was excluded because he acknowledged that he would have serious reservations in accepting the testimony of former Co-Defendant and State's witness, Charles Holmes. The State also rejected Mr. Dinvaut because the prosecutor did not believe his truthfulness on voir dire. The State's next peremptory challenge was exercised against John Grimes. The Defendant noted for the record that Grimes was a black male. In addressing the State, the court advised, "It's probably best that you state your reasons." The State said that John Grimes was excluded because his mind was made up that he would not accept the testimony to be given by former Co Defendant and State witness Charles Holmes. The court sustained the peremptory challenge. Alandra Anderson was the third juror challenged peremptorily by the State. The Defendant noted that Ms. Anderson was a black female. Defendant next stated that the State had exercised three peremptory challenges and they were all against blacks. The court corrected that statement and noted that only two of the challenged jurors were black. In giving the race-neutral reasons for the exclusion of Ms. Anderson, the State noted that Ms. Anderson showed disrespect for the court by wearing a hat and it was also recognized that she was the only potential juror with a tattoo. The prosecutor further explained that Ms. Anderson had expressed a long-standing religious belief that she could not judge people. According to the prosecutor, Ms. Anderson reluctantly admitted that she could find Defendant guilty if the evidence suggested it; however, the prosecutor did not believe her. Finally, the prosecutor stated that Ms. Anderson admitted reading a newspaper article about the robbery, but she stated that it occurred in March, which made her appear untruthful to the State. The court also noted that this potential juror *152 felt her brother had been wrongfully convicted of armed robbery. The trial court granted the challenge. The State exercised a peremptory challenge against Louis Coleman. The Defendant stated that Mr. Coleman was a black male and asked for the State's race-neutral reasons for exclusion. The State responded that Mr. Coleman had expressed hesitation regarding a deal struck between the State and former Co Defendant and State's witness, Charles Holmes. Mr. Coleman said he would need to hear Mr. Holmes's background and this information was not going to be provided at trial. The court granted the peremptory challenge. On appeal, the Defendant specifically complains about the exclusion of potential juror Louis Coleman. He argues that since Mr. Coleman indicated that he could be open-minded in listening to State's witness Charles Holmes, there was no reason for his exclusion. The State indicated that Mr. Coleman had expressed hesitation regarding the deal struck between the State and former Co Defendant Charles Holmes. It is apparent that the State did not believe Mr. Coleman when he stated that he thought he could be open minded in dealing with the testimony of Charles Holmes. Moreover, Mr. Coleman indicated that he would need to hear the background of this witness and the State indicated that this information was not going to be provided at trial. Under these circumstances the trial court correctly sustained the State's peremptory challenge to Louis Coleman. Finally, the State exercised a peremptory challenge against Barbara Smith. The Defendant commented that she was a black female and that the State was "clearly establishing a pattern." As the race-neutral reasons for exclusion, the State found Ms. Smith had great doubts about State witness Charles Holmes and the deal he entered with the State. Furthermore, she said she would need to see Holmes's school records and these were not going to be produced. Additionally, when questioned about the burden of proof needed to find the Defendant guilty, this juror kept shaking her head no. Therefore, the State felt she was already in line with the defense. The State initially contends that the trial court ruling was correct because the Defendant failed to establish a prima facie case of discrimination. The Defendant may satisfy the initial burden of establishing a prima facie case by offering any relevant facts on the issue, including, but not limited to, a pattern of strikes, statements or actions which support an inference of impermissible motivation, the composition of the jury finally impaneled, and any other facts which show a disparate impact on the alleged victim class. State v. Green, supra, at 288. Our review of the record indicates that the Defendant merely noted each time a black person was the subject of a peremptory challenge and commented once that a pattern of discrimination was being established. Though Defendant's statements would marginally satisfy this burden, we also note that the trial court did not rule on whether the Defendant met his burden to establish a prima facie case. A similar situation occurred in State v. Green, supra. In Green, 655 So.2d at 288, the Louisiana Supreme Court stated: We agree with the court of appeal that a trial judge's demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory *153 purpose. In any case, once a prosecutor has offered a race neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. (citation deleted). Under these circumstances we now look at the second step of the Batson analysis and find that the State gave race-neutral reasons for each of his challenges. Unless discriminatory intent is inherent in the prosecutor's explanation, the reason offered is deemed to be race-neutral. State v. Touissant, 98-1214 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, writ denied, 99-K-1789, 750 So.2d 980 (La.11/24/99), citing State v. Green, supra, at 289. None of the reasons for exclusion expressed by the prosecutor indicated a discriminatory intent, rather they were directed at effective trial strategy. During the third step of the Batson analysis, the inquiry for the trial court is whether the defendant's proof, when weighed against the prosecutor's "race-neutral" reasons, is strong enough to persuade the trier of fact that such discriminatory intent is present. State v. Green, supra, at 290. In this case the trial court found that the Defendant's proof was not strong enough, when weighed against the prosecutor's race-neutral reasons to convince the court that the prosecutor was acting with a discriminatory intent in the exercise of his peremptory exceptions. Whether there has been intentional racial discrimination is a question of fact. State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939, 942, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999), reh'g denied, 526 U.S. 1166, 119 S.Ct. 2066, 144 L.Ed.2d 230 (1999). A reviewing court should afford great deference to the trial judge's evaluation of discriminatory intent and should not reverse unless the evaluation is erroneous. Id. at 942. We find that the trial court's actions in sustaining the State's peremptory challenges against the named jurors were correct. It is apparent from the race-neutral reasons supplied by the State that its actions were motivated by trial strategy and not racial discrimination. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER TWO As his second assignment of error, Defendant argues that the trial court committed error in imposing a constitutionally excessive sentence. Defendant contends that the court did not give adequate consideration to the total sentencing guidelines in particularizing the sentence. He alleges that there were sufficient mitigating circumstances to warrant a lesser sentence and that the aggravating circumstances did not warrant imposition of a sentence of 49½ years. The State counters that the trial judge has wide discretion in sentencing and the Defendant failed to prove abuse of discretion. A motion for reconsideration of sentence was filed August 7, 2000, wherein Defendant alleged that his sentence was excessive. A sentence is excessive and in violation of the Louisiana Constitution if the sentence is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. La. Const. of 1974, art. I, § 20. State v. Bonanno, 384 So.2d *154 355 (La.1980). A sentence is grossly disproportionate to the severity of the offense, if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock the sense of justice. Id. In determining whether a sentence is excessive, the test imposed on the reviewing court is two-pronged. First, the record must show that the trial court took cognizance of the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Sepulvado, 367 So.2d 762, 769 (La.1979). While the trial court need not articulate every aggravating and mitigating circumstance outlined in the sentencing guidelines, the record must reflect that the court adequately considered those guidelines in particularizing the sentence to the defendant. State v. Nealy, 450 So.2d 634, 640 (La.1984). The articulation of the factual basis for a sentence is the goal of LSA C.Cr.P. art. 894.1; hence, there need not be rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even though there has not been full compliance with the statute. State v. Lanclos, 419 So.2d 475, 478 (La.1982). Important elements, which should be considered, are the defendant's personal history, prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051 (La.1981). After determining whether the provisions of LSA-C.Cr.P. art. 894.1 have been complied with by the trial court, the reviewing court must then determine whether the sentence imposed is too severe given the circumstance of the case and the background of the defendant. The sentencing court is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing court. State v. Square, 433 So.2d 104, 110 (La.1983); State v. Lanclos, supra. The sentencing range statutorily prescribed for the offense of armed robbery is imprisonment, at hard labor, without benefit of parole, probation or suspension of sentence for not less than ten nor more than 99 years. LSA R.S. 14:64. In this case the court sentenced the Defendant to imprisonment in the Department of Corrections for 49½ years, without benefit of parole, probation or suspension of sentence but with credit for time served. The trial court, in this case, ordered a pre-sentence investigation report and heard testimony from three witnesses in mitigation before imposing sentence. The Defendant's mother, Debra White, testified. She stated that she had raised three children as a single parent. Her son, Ronny, was the youngest. His father was killed in an automobile accident when the Defendant was a baby. She stated that the Defendant dropped out of school when he was in the third grade because he was a slow learner. She also testified that Ronny was the father of two beautiful children, ages 2 and 3. The Defendant's brother, Clarence Jefferson, also testified. He stated that he and the Defendant had parted for a couple of years, but were now back together. He advised the court that the Defendant's entire family was in the courtroom. Brenda Bush testified that Ronny was her nephew. She stated that he was a sweet person and that since she has known him, he has never been violent. In sentencing the Defendant, the trial court gave extensive reasons. The judge *155 stated for the record that he was considering the information in the pre-sentence report including the victims' statements and family statements. He also considered the trial testimony and documents, as well as psychological reports and medical reports of the Defendant. In general, the judge stated that he felt that the Defendant needed a custodial environment and that there was an undue risk that he would commit another crime if not institutionalized. The judge remarked that a lesser sentence would deprecate the seriousness of the offense. The trial judge enumerated both aggravating and mitigating factors as applied to this Defendant. In particular, the court took into account the fact that the crime was deliberately cruel, as illustrated by the order given by Defendant to the female employees of the bank: "F...... B..... get down on the floor." He also considered that since a sum in excess of $35,000.00 was taken, that this was a major economic offense. The Defendant endangered more than one person. White pointed a loaded gun at the victims; the court noted the use of the gun as an independent aggravating circumstance. The court also took into account the fact that Defendant was on probation at the time of this offense and he had been previously arrested for seven offenses. In mitigation, the court took into account the fact that the Defendant had a learning disability and was mildly mentally retarded. The court also considered the statements in the pre-sentence report, letters from family and friends. In summary, the trial judge stressed the fact that he was impressed by the victims' statements regarding how fearful they were that they might be shot during the commission of the crime. Additionally, the judge took into account that the Defendant had no convictions for violent offenses. He was, nonetheless, aware of the Defendant's criminal record, especially an arrest for the crime of accessory to murder. According to the trial judge, the Defendant had had the opportunity to reform since 1995, and had not availed himself of the opportunity. It is clear from the record that the trial court took into account the sentencing guidelines and he recited the aggravating and mitigating factors for the record. Thus, he particularized the sentence to the offender and the offense. Moreover, in sentencing the Defendant to one-half of the maximum sentence possible for the offense of armed robbery, the trial judge did not abuse his wide discretion. The circumstances of the case clearly justify the sentence imposed. This assignment of error is likewise without merit. ERROR PATENT DISCUSSION The record was reviewed for errors patent, according to LSA C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case. Therefore, for the above reasons, we affirm both the conviction and sentence herein. AFFIRMED. NOTES [1] White was indicted with Co Defendants Bryan Loper and Charles Holmes. Loper was tried separately. Holmes entered a negotiated plea of guilty. [2] The camera broke and these photos were lost. No identifiable prints were found.

374 Pa. Superior Ct. 184 (1988) 542 A.2d 557 Frances G. HOLDEN, Appellee, v. Diane HOLDEN, Appellant. Supreme Court of Pennsylvania. Argued December 18, 1987. Filed May 10, 1988. *185 James F. Geddes, Jr., Wilkes-Barre, for appellant. Steven A. Bergstein, Allentown, for appellee. Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ. CAVANAUGH, Judge: The issue in this case is whether a court in Pennsylvania may exercise in personam jurisdiction over the appellant, Diane Holden, in a civil action where all of the conduct by the appellant took place in Texas. If such jurisdiction does not exist, the court below erred in refusing to open a *186 default judgment entered against the appellant and the complaint against her must be dismissed. The appellee, Frances G. Holden, and Dr. Stanley Holden, who is not a party to this litigation, were divorced in Luzerne County, Pennsylvania, following extended and complex proceedings. A property settlement agreement was entered into between the parties to the divorce action which provided inter alia for alimony for Frances G. Holden during her lifetime. Subsequently, Dr. Holden married Diane Holden, the appellant herein, who has been a resident of the State of Texas at all times relevant to this action. The appellee commenced the present action in Luzerne County. The complaint was served on Diane Holden at her residence in Humble, Texas on November 6, 1985. She did not file a responsive pleading and on December 18, 1985 a notice of intention to take default judgment was sent to her. On January 13, 1986 default judgment as to liability was entered against the appellant who filed a petition to open the default judgment on May 7, 1986. The petition to open alleged lack of personal jurisdiction over the appellant. The court below denied the petition and this appeal followed.[1] The basis for jurisdiction over Diane Holden, if it exists, would be found in the Pennsylvania Long Arm Statute which provides in part at 42 Pa.C.S. § 5322(a)(4): (a) General rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person: ..... *187 (4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth. The appellant has had no contact with Pennsylvania at all. The settlement agreement was reached in Pennsylvania between the appellee and Stanley Holden, but Diane Holden was not a party to the divorce proceedings or the settlement agreement. The complaint alleges factually that "Defendant [Diane Holden] has induced Stanley J. Holden to breach said contract by threatening to dissolve her marriage to Stanley J. Holden if he complied with said contract." The other allegations are that the appellant "induced" Stanley Holden to breach his contract and prevented him from complying with the terms of the settlement agreement, and has "interfered with the contractual relationship" between Stanley Holden and Frances Holden. The complaint also alleges that appellant has negligently inflicted emotional distress upon the appellee. None of the allegations set forth any activities by the appellant in Pennsylvania. The Pennsylvania Long Arm Statute does not permit our courts to extend their jurisdiction to persons beyond the boundaries of this Commonwealth except in limited circumstances. Beginning with International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), innumerable cases have stated that in order for a state to fulfill the requirement of due process, it may exercise personal jurisdiction over a non-resident defendant only if there are "minimum contacts" between the defendant and the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. The defendant's conduct must be such that it is reasonable and fair to require him to defend his actions in a foreign state. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Supreme Court of the United States has noted that there are "territorial limitations on the power of the respective states." Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958). *188 In the case before us, the appellant performed no acts in Pennsylvania, but it is alleged that she interfered in Texas with performance of a contract made in Pennsylvania. The complaint seeks to embroil the appellant in the long continued and bitter dispute between appellee and her former husband, Dr. Stanley Holden. The predecessor to the current Long Arm Statute was found at 42 Pa.C.S. § 8305, (Purdon Supp. 1974-75), which was repealed in 1976. Chief Justice Nix discussed conduct by a defendant occurring outside of the state which has a harmful effect upon one within Pennsylvania in the context of 42 Pa.C.S. § 8305 in Kenny v. Alexson Equipment Company, 495 Pa. 107, 116-117, 432 A.2d 974, 979 (1981) stating: Section 8305 ". . . requires that (1) the non-resident [shall] have acted outside of Pennsylvania, (2) his action [shall] have caused `any harm' within Pennsylvania, and (3) the cause of action [shall] have arisen out of the conduct causing the harm" B.J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1098 (E.D.Pa. 1977). This section is a formulation of what has been termed the "effects test" of extra-territorial jurisdiction. Under the "effects test," derived from the American Law Institute's Restatement (Second) of Conflict of Laws § 37 (1971): A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual's relationship to the state make the exercise of such jurisdiction unreasonable. In Kenny v. Alexson Equipment Company, supra, the Supreme Court dismissed a complaint by a Pennsylvania resident against a non-resident individual, Mr. Piracci, Sr., who never did business nor maintained an office in Pennsylvania. Mr. Piracci sold a hoist in Maryland which was eventually used in Philadelphia, Pennsylvania. Allegedly, the hoist caused injuries because of a defect in it. The court stated at 495 Pa. at 117, 432 A.2d at 980: *189 . . . the issue of whether Piracci, Sr. can be subjected to the jurisdiction of the courts of this Commonwealth does not end with a finding that his activities allegedly come within the literal language of the Long-Arm Statute. The analysis of whether a state may exercise jurisdiction over a non-resident individual must be tested against both statutory and constitutional standards. The due process clause of the Fourteenth Amendment imposes a limit on the state's exercise of jurisdiction over a non-resident defendant. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).[2] As noted above, the due process requirements as set forth in International Shoe Company v. Washington, supra are that there must be minimum contacts with the forum state and this necessitates an examination of the facts in each case. Vacu-Maid, Inc. v. Covington, 530 P.2d 137 (Oklahoma Appellate Division 1974). In the instant case, the acts complained of occurred in Texas and consisted principally of the appellant threatening to leave her husband if he complied with the terms of the agreement between her husband and his former wife. The appellant, at most, only indirectly harmed the appellee. It was the *190 appellant's husband who caused direct harm, if any, to the appellee by not carrying out the terms of the settlement agreement. In any event, the alleged conduct by the appellant set forth in the complaint is too tenuous to invoke the jurisdiction of our courts under the Long-Arm Statute as the appellant had no contact with the Commonwealth of Pennsylvania.[3] Our case is analogous to DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986) in which the plaintiff brought suit against a New Jersey defendant, alleging negligence in an automobile accident which occurred in New Jersey. The plaintiff suffered pain while recuperating in Pennsylvania. The defendant, though served, did not file a responsive pleading and default judgment was entered against him. A petition to open the judgment was denied and an appeal was taken to this court. We stated at 352 Pa.Super. at 411, 508 A.2d at 325: Before considering the merit of appellant's argument in favor of opening the default judgment, we must necessarily address appellant's contention that the court lacks personal jurisdiction over him because he is a New Jersey resident and the automobile accident occurred in New Jersey. We further stated at 352 Pa.Super. 413, 508 A.2d 326: *191 [plaintiff's] suffering of residual harm in [Pennsylvania was] not sufficient to satisfy the constitutional requirement of minimum contacts. The default judgment in DeFay, supra, was vacated for lack of jurisdiction. In the case before us, the harm alleged is residual and not direct.[4] Similarly, in McDaniel v. Joseph, 409 F.Supp. 1003 (W.D.Pa. 1976) it was determined that a Pennsylvania court did not have jurisdiction over an Ohio resident who was alleged to have engaged in a meretricious relationship with the plaintiff's husband outside of Pennsylvania. The court concluded that the exercise of jurisdiction over the individual alleged to have been interfering with the spousal relationship would confer jurisdiction beyond constitutional limits as "The record in this case does not establish any contact by the defendant with the Commonwealth of Pennsylvania on which jurisdiction can be based." 409 F.Supp. at 1004. The dissenting opinion's and appellant's reliance on Rusack v. Harsha, 470 F.Supp. 285 (M.D.Pa. 1978) to establish jurisdiction over the appellant, is misplaced. In Rusack, supra, the defendant who resided outside of Pennsylvania, sent defamatory letters to the plaintiff's employer in Mechanicsburg, Pennsylvania. It was alleged that the publication of the defamatory material caused the plaintiff harm in Pennsylvania. The court held that there was a sufficient minimum contact to allow the exercise of jurisdiction, but stated at footnote 5, page 290: "This is a different situation from that where harm is caused outside the state and residual effects are felt inside the state." The court further stated at 470 F.Supp. 290-291: The "minimum contacts" test does not allow for mechanical application. Also, since International Shoe involved the issue of under what circumstances a state could assert personal jurisdiction over an out-of-state *192 corporation and since many of the subsequent cases dealt with a commercial setting, it is somewhat difficult to apply the reasoning of many of the cases considering the "minimum contacts" test to the case currently before the court. Nevertheless, the "minimum contacts" test is the standard to be applied here. See Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). It is true today that the vast majority of long-arm statute cases in Pennsylvania deal with commercial transactions or involve a non-resident defendant who transacts business or otherwise acts in Pennsylvania. Hester J. summarized this in Pecot, Inc. v. Sirianni, 295 Pa.Super. 462, 467, 441 A.2d 1324, 1327 (1982): Long-arm statutes were designed to provide an effective and convenient means of redress for resident plaintiffs who happen to experience the adverse effects of a non-resident defendant's interstate activities; they were designed to warn non-resident defendants that they could not escape the consequences of litigation in a jurisdiction where they voluntarily chose to act. (Emphasis added.) Nevertheless, our courts may not reach out and extend jurisdiction over a defendant who has no contact with Pennsylvania and whose acts at best have a residual effect upon one in Pennsylvania. The concepts of fair play and substantial justice would be subverted if we allowed a Pennsylvania court to exercise jurisdiction over a Texas resident in circumstances such as those before us. The dissenting opinion focuses on the domicile of the plaintiff rather than on the defendant's non-resident status and lack of meaningful contacts with Pennsylvania. The minimum contact requirement with the forum state also guarantees that individual states do not exceed the limits placed on them by their status as co-equal sovereigns under our federal system. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). *193 As noted above, most cases dealing with the Pennsylvania Long Arm Statute are in a commercial context, and contacts or lack thereof, with the forum state, are readily discernible. We are dealing in this case with a complaint that alleges a psychological tort involving a family relationship. A plaintiff may not create a cause of action by alleging tortious interference with a contract arising from a settlement agreement in a divorce case, where the facts establish that the defendant is not subject to the jurisdiction of the court. Untold mischief could be caused by drawing a party into a dispute that is before the courts of this Commonwealth, where that party is outside the Commonwealth and has no contact with Pennsylvania. In this case before us, a prolonged and bitter dispute has ensued between Frances G. Holden and her former husband, Dr. Stanley Holden. We may not extend the jurisdiction of our courts to embroil Diane Holden in this dispute. Order of the court below is set aside and the judgment is opened. CIRILLO, President Judge, files concurring opinion joined by ROWLEY, MONTEMURO and JOHNSON, JJ. BROSKY, J. files dissenting opinion. CIRILLO, President Judge, concurring: Because I disagree with the majority's disposition of this case, I respectfully concur. As this court held in DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986), a procedurally identical case, where a Pennsylvania court lacks personal jurisdiction over an out-of-state defendant, a default judgment entered against such a defendant is a nullity and, therefore, we need not reach the merits of appellant's argument in support of opening the default judgment. Id., 352 Pa.Superior Ct. at 413, 508 A.2d at 326. When a court is powerless to enter a judgment, any judgment entered by that court is invalid at its inception and a subsequent petition to open that judgment is similarly outside the jurisdiction of that *194 court. See In re Patterson's Estate, 341 Pa. 177, 19 A.2d 165 (1941) (an adjudication of a court without jurisdiction is void). The majority correctly finds that Pennsylvania does not have personal jurisdiction over Diane Holden and that, therefore, the chancellor had no power to enter a default judgment against her. It then resolves this case by opening that judgment. When this court reverses the denial of a petition seeking to open a judgment, we are, in essence, saying that the chancellor erred in not having granted it. We cannot say both that there was no jurisdiction for him to act and that he should have granted the relief sought. Opening the judgment is clearly an exercise of the jurisdiction over this defendant which we have said the court below lacked. The majority's disposition tacitly acknowledges the jurisdiction of our courts over Diane Holden even while declaring that no such jurisdiction existed. This is logically inconsistent. For the foregoing reasons, I would vacate the default judgment for lack of jurisdiction, set aside the order denying the petition to open that judgment as moot, and dismiss the underlying complaint. ROWLEY, MONTEMURO and JOHNSON, JJ., join. BROSKY, Judge, dissenting: I respectfully dissent. I would affirm the order denying appellant's petition to open default judgment. Initially, I cannot concur in the majority's determination that "the alleged conduct by the appellant set forth in the complaint is too tenuous to invoke the jurisdiction of our courts under the Long-Arm Statute." This conclusion involves a misunderstanding of both the nature of the tortious conduct alleged, as well as the situs of the harm flowing from the alleged conduct. The majority begins its analysis by asserting that Frances Holden's complaint does not allege any contact with Pennsylvania, or activities in Pennsylvania, by Diane Holden *195 that would make it fair or reasonable to subject her to suit in a foreign forum. This ignores the clear gravamen of what Frances Holden is pleading: a tortious interference by Diane Holden with the contractual relationship between Frances and Stanley G. Holden forged in Pennsylvania. To set forth a cause of action in Pennsylvania for intentional interference with a contractual relationship, four elements must be pled: (1) the existence of a contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct. See Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1343 (1987); see also Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979). The Restatement (Second) of Torts defines "actual damages" for interference with a contract as follows, at § 774A: § 774A. Damages. (1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for (a) the pecuniary loss of the benefits of the contract or the prospective relation; (b) consequential losses for which the interference is a legal cause; and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference. . . . An even cursory glance at Frances Holden's allegations indicates that a cause of action for intentional interference with a contract is precisely what she has pled: she is alleging that Diane Holden took purposeful action, in the *196 form of threats of marital dissolution, with the specific intent of inducing Stanley Holden to breach his Pennsylvania settlement agreement with Frances Holden, thereby causing Frances Holden actual legal damage, including pecuniary loss and emotional distress. This, clearly, is a contact of sorts with Pennsylvania. It therefore remains to be determined whether the allegations, if presumed true, permit our courts to assert jurisdiction over Diane Holden, under the "minimum contacts" test established by International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. As noted by the majority, the "minimum contacts" test is not to be applied mechanically, but requires an examination of the facts in each case. In its discussion, the majority places reliance upon, primarily, three Pennsylvania decisions, and concludes that Diane Holden's actions, at best, have caused "indirect" or "residual" harm to Frances Holden, thereby making any exercise of jurisdiction by Pennsylvania a subversion of fair play and substantial justice. As I find all three decisions relied upon by the majority to be distinguishable, I disagree. The first, Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981), concerns an elevator hoist, which was originally sold in Maryland, to a New Jersey retailer, and eventually shipped to Pennsylvania, where it injured a Pennsylvania resident. The Pennsylvania resident brought suit against the New Jersey retailer, who then attempted to join the Maryland seller as an additional defendant, based upon the predecessor statute to the current Long Arm Statute.[1] The Supreme Court held that in personam jurisdiction could not be extended to subject the Maryland seller to suit in Pennsylvania. In its analysis of Kenny, the majority focuses upon the Maryland manufacturer's failure to maintain an office or do business in Pennsylvania, and analogizes this to Diane Holden's commission of the complained of interference exclusively within Texas, and concludes that, under Kenny, *197 her behavior has at best resulted in indirect extra-territorial harm too attenuated to invoke Pennsylvania jurisdiction. This, however, ignores a crucial part of the Kenny holding: We therefore hold that when an individual seller, not doing business within the Commonwealth, transacts an isolated sale outside the Commonwealth to an unrelated buyer, the causing of a harmful effect in itself, within the Commonwealth or the mere entry of that single product into the stream of commerce within the Commonwealth, in the absence of purposeful participation by the seller in a continuous distributive chain of such product is insufficient to satisfy the minimum contacts requirement of due process and such seller cannot be found amenable to in personam jurisdiction pursuant to Pennsylvania's Long-Arm Statute. . . . Id., at p. 984. (Emphasis supplied.) In holding the Maryland seller beyond the jurisdiction of the forum state, the Supreme Court, in its analysis of the seller's contacts with Pennsylvania, did not rely solely upon the number of contacts (one), or the location of the seller and his business activities (Maryland): it was the lack of any purposeful activity, calculated to impact upon the forum, that was the key to the Court's holding that the transaction in question had been too attenuated to justify an assertion of jurisdiction. The issue of purposeful, as opposed to chance or random, activity, is not of little consequence. As our Court noted in Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616, 621 (1986): . . . if the efforts of [an actor] are "purposefully directed toward residents of the forum state, the absence of the actor's physical contacts with the forum cannot defeat an assertion of personal jurisdiction in that state. (cite omitted). Indeed, even a single act by a foreign defendant within the forum state may support jurisdiction, though that act will not be sufficient if its nature and the quality of the circumstances of its commission create only an "attenuated" affiliation with the forum. (cite omitted) *198 Once it has been decided that a defendant purposefully established minimum contacts with the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with "fair play and substantial justice." (cite omitted). Factors to be considered include "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental substantive social policies." (cites omitted). These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. . . ." Id., citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (Emphasis supplied.) In the matter sub judice, Frances Holden is alleging very purposeful activity on the part of Diane Holden, calculated to have a direct impact upon a Pennsylvania resident. She is not averring that, by mere chance or happenstance, Diane's threats indirectly caused Stanley to harm Frances, but that Diane deliberately made those threats with the specific intent of inducing Stanley to neglect his Pennsylvania contractual obligations, and that the harm to Frances directly resulted from Diane's purposeful interference. As the Kenny holding is conditioned in part upon a finding of non-purposeful activity, it would not appear controlling in this case, in the absence of any meaningful evaluation of other factors pertinent to a determination of personal jurisdiction, such as the policy considerations delineated *199 in Skinner, supra.[2] As I am of the view that the complaint alleges purposeful activity, in the form of an intentional tort, I believe the remaining question of pertinence to a finding of "minimum contacts" is a determination of the situs of the harm resulting from the intentional tort. It is at this point that a discussion of the latter two decisions relied upon by the majority, is warranted. The majority cites as analogous to the matter before us, the case of DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986). In DeFay, a Pennsylvania resident was injured in a New Jersey automobile accident. The other driver was a New Jersey resident. Upon returning home to recuperate, the Pennsylvania resident filed a negligence suit against the New Jersey resident. In holding that the New Jersey resident did not have sufficient "minimum contacts" with Pennsylvania for our courts to exercise jurisdiction, our Court, citing to Hilferty v. Neesan, 506 F.Supp. 218 (E.D.Pa. 1980), noted the following: . . . the mere fact that a plaintiff may have some residual pain and suffering while recuperating in the forum state from an accident which occurred entirely out of the state is not the type of harm `caused in the Commonwealth' which is contemplated by the long arm statute. . . . * * * * * * . . . . The sole contact appellant has with the forum in the instant action is appellee's suffering of residual harm in the forum. This is not sufficient to satisfy the constitutional requirement of minimal contacts. Thus, under both *200 statutory and constitutional analysis, the court did not have personal jurisdiction over appellant at the outset of this action. DeFay, supra, at p. 326. DeFay is clearly distinguishable, and in fact supports a finding that the harm to Frances Holden was not residual to the forum, but actually suffered in the forum. In DeFay, the harm to the plaintiff was inflicted by the accident in New Jersey, at the situs of the accident; upon returning home to recuperate, she merely "carried her harm", so to speak, back to the forum state. Such harm, clearly, was at best residual harm within the borders of Pennsylvania. By contrast, the harm suffered by Frances Holden did not occur at the situs of the tort. While Diane Holden's alleged tortious behavior took place in Texas, the resultant harm included, as set forth in the complaint: (1) the termination of utility services to Frances Holden's home; (2) the incurring of loan and legal expenses; (3) the loss of alimony; (4) the interruption of the children's college educations; (5) the loss of insurance protection; and (6) emotional pain and suffering, including harm to reputation. These harms did not take place in Texas; they were incurred by Frances Holden and her children within Pennsylvania. They were not merely "carried home" to Pennsylvania, as were the plaintiff's injuries in DeFay. Hence, contrary to the majority's reading, I find DeFay supportive of an extension of in personam jurisdiction in this matter: the case defines residual harm, inter alia, to be that harm which is incurred by a complainant in one state, and brought into the forum solely due to the complainant's residency in the forum. The harm pled by Frances Holden simply does not fall within the parameters of this definition. The majority finds another analogous decision in McDaniel v. Joseph, 409 F.Supp. 1003 (W.D.Pa. 1976), in which the district court granted a motion to dismiss due to a lack of in personam jurisdiction over the defendant. In that case, a Pennsylvania plaintiff filed suit against an Ohio defendant, alleging that the defendant had engaged in meretricious *201 relations with the plaintiff's husband. The plaintiff conceded that the relations had occurred in Ohio and West Virginia, and not in Pennsylvania. However, in holding that the defendant had no "minimum contacts" with Pennsylvania, the court neglected to discuss the nature or situs of the harm alleged in its rationale. In point of fact, the decision is, at best, sketchy on its recounting of the operative facts. In the absence of a more detailed rationale in support of its decision, I fail to find the district court's disposition in McDaniel to be even marginally persuasive, and find the majority's reliance upon its holding to be misplaced.[3] A more persuasive opinion is that of Rusack v. Harsha, 470 F.Supp. 285 (M.D.Pa. 1978), which the majority has found inapplicable sub judice. In Rusack, a Washington, D.C. resident had sent defamatory letters to the plaintiff's employer in Pennsylvania. In upholding the long-arm jurisdiction of Pennsylvania over the defendant, the court noted that the harm to plaintiff had occurred upon publication of the letters in Pennsylvania, and was thus distinguishable from those situations "where harm is caused outside the state and residual effects are felt inside the state." Id., at p. 290. I find Rusack to be directly on point. In both Rusack and the matter before us, the precipitating tortious conduct occurred outside the forum state: the defamatory letters in Rusack were written in, and mailed from, Washington, D.C., while the contractual interference of Diane Holden took place in Texas. In both cases, however, the conduct did not result in harm until its fruits came to rest in Pennsylvania. Rusack was not harmed by the defamatory letters until they reached Pennsylvania, and Frances Holden did not have a cause of action until she failed to receive *202 the appropriate payments, and suffered pecuniary and emotional hardships in Pennsylvania. Unlike the majority, I do not find appellant's reliance upon the well-reasoned Rusack to be so misplaced. Based on the foregoing, I feel that Frances Holden has alleged purposeful tortious activity on the part of Diane Holden, intended to disrupt a Pennsylvania contract, and resultingly cause direct harm to a Pennsylvania resident, and has thus satisfied the "minimum contacts" test of International Shoe so as to permit our courts to assert in personam jurisdiction over Diane Holden. Having resolved the jurisdictional question in appellee's favor, it is necessary to determine whether appellant has satisfied the criteria for the opening of default judgment. Those criteria are well settled, and require a petitioner to demonstrate: (1) that the petition to open was timely filed; (2) that there exists a reasonable explanation or excuse for default; and (3) that there exists a meritorious defense to the allegations of the complaint. Wolfskill v. Egan, 350 Pa.Super. 223, 504 A.2d 326, 327 (1986). Upon review of the record below, I am in accord with the trial court's finding that the criteria have not been satisfied, most notably the second criterion pertaining to the excuse for default. Both below and on appeal, Diane Holden's excuse for default has been that she relied upon her husband's attorney to handle the matter for her. However, it has previously been held that a defendant's belief that his interests are being protected ceases to be justifiable when the defendant is somehow alerted to a possible problem, such as in the receipt of a Rule 237.1 ten-day notice letter. See Autologic, Inc. v. Christinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362, 1363 (1984) (held: purpose of Rule 237.1 requirement of service of ten-day notice letter upon party as well as counsel, is to alert party to potential problem, and permit party to take appropriate action prior to entry of default). In the matter sub judice, appellant has admitted to both receiving the ten-day notice letter, and to making no attempt to protect her interests prior to the entry of default. *203 She cannot now be heard to cry that her deliberate inaction was "reasonable". As I find no abuse of discretion in the trial court's finding that the second criterion for opening default has not been met, I would affirm the trial court's denial of appellant's petition to open. Hence, I respectfully dissent. NOTES [1] In footnote 1, the dissenting opinion posits that we are deciding a question not before this court in ruling on the sufficiency of the complaint. When the appeal is from an order refusing to open judgment, we must rule on the sufficiency of the complaint as to appellant to determine if the court below had jurisdiction over the appellant and if it did not, then the default judgment was a nullity and must be set aside. DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986). [2] The dissenting opinion interprets Kenny v. Alexson Equipment Company, supra, in a manner to support its theory that the court had jurisdiction over the appellant in our case. The dissent overlooks the basic principle that our courts do not have jurisdiction over persons beyond the boundaries of our Commonwealth, except where it is granted by statute. The dissent would seek to extend rather than restrict jurisdiction. In Kenny, which dealt with a commercial rather than a family matter, the court refused to extend jurisdiction even where the injury occurred in Pennsylvania. As noted in the dissenting opinion in our case, the Supreme Court stated in Kenny at 495 Pa. 126, 432 A.2d 984, that jurisdiction would not be extended over a non-resident seller "in the absence of purposeful participation by the seller in a continuous distributive chain of such product . . ." The dissent reasons that the appellant engaged in purposeful activity calculated to cause harm in Pennsylvania. In order to be subject to in personam jurisdiction, one outside the state must have some minimum contact with Pennsylvania. In our case, the appellant's conduct was directed toward her husband. What he did might impact on his former wife in Pennsylvania, but the harm to plaintiff by appellant would have been indirect at best. Kenny, supra, would appear to be a stronger case for imposing jurisdiction than our own. [3] The dissenting opinion relies on Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986) to support its proposition that Pennsylvania has a compelling interest in extending jurisdiction over the appellant. In Skinner, supra, the plaintiff was injured in Pennsylvania by a rotary lawn mower which had been certified by the defendant, a non-resident, as meeting certain standards. We held that Pennsylvania courts had no jurisdiction over defendant. We stated at 351 Pa.Super. 240, 505 A.2d 619, 620: The critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant's activities would have an injurious effect in the forum state, but whether the defendant's conduct and his connection with the forum state were such that he could reasonably anticipate being "haled" into court there. (Citing cases). This question, in turn, must be resolved by examining the defendant's contacts with the forum state. (Emphasis added.) Again, we are directed, as we must be, to the contacts, if any, which defendant had with the forum state. [4] The dissenting opinion finds DeFay v. McMeekin, supra, distinguishable from the instant case. Certainly, the facts are different, but DeFay focused on the point that although the plaintiff endured pain and suffering in Pennsylvania, the tort occurred in New Jersey and the effect in Pennsylvania was residual. [1] 42 Pa.C.S. § 8305. [2] Provided a showing of "minimum contacts" is made, this situation would appear one in which, under Skinner, Pennsylvania has compelling policy interests in resolving the controversy. Taking the complaint as true, Diane Holden has thoroughly disrupted the performance of a Pennsylvania agreement, intended to resolve matters of alimony, property, and educational support of the Holden children, in a Pennsylvania divorce, thereby bringing financial and emotional hardship upon a Pennsylvania resident. It cannot be seriously averred that Pennsylvania would have no significant interests in assuring that the behavior of non-residents does not nullify Pennsylvania contracts. To aver otherwise would be the equivalent of implying that legally enforceable Pennsylvania contracts may be disregarded at will, as meaningless verbiage, by non-residents. [3] Moreover, had the McDaniel court chosen to delineate its rationale, it would not necessarily be dispositive. Decisions of lower federal courts, albeit instructive, are not binding on state courts, even though a federal question is involved. See Cianfrani v. John-Manville Corp., 331 Pa.Super. 1, 482 A.2d 1049, 1051 (1984); Commonwealth v. Rundle, 203 Pa.Super. 419, 201 A.2d 615, 623 (1964).

[Cite as Blevins v. Blevins, 2019-Ohio-297.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY DIANE L. BLEVINS : : Plaintiff-Appellee : Appellate Case No. 2018-CA-23 : v. : Trial Court Case No. 2017-DR-43 : JOHN D. BLEVINS : (Domestic Relations Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 1st day of February, 2019. ........... MICHELLE M. MACIOROWSKI, Atty. Reg. No. 0067692, 7333 Paragon Road, Suite 170, Dayton, Ohio 45459 Attorney for Plaintiff-Appellee KERI E. FARLEY, Atty. Reg. No. 0076881, 4031 Colonel Glenn Highway, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant .............  -2- FROELICH, J. {¶ 1} John D. Blevins (“John”) appeals from a final judgment and decree of divorce entered by the Greene County Common Pleas Court, Domestic Relations Division. The judgment of the trial court will be affirmed. Factual and Procedural Background {¶ 2} John D. and Diane L. (“Diane”) Blevins were married on June 13, 1992, and had three children together. When the couple separated in June 2017, one son was a 20- year-old college student and their daughter was a 15-year-old high school student. Their oldest son died in 2011, at the age of 16. {¶ 3} John is a senior materials engineer in the Air Force research laboratory at Wright-Patterson Air Force Base. He travels “20 to 25 percent of the time” for his job, primarily on weekdays. His annual salary in 2018 was $143,193. {¶ 4} Diane holds a bachelor’s degree in elementary education and a master’s degree in early childhood education. She previously worked full-time as a public school teacher, but beginning in 2003 did only substitute teaching, in order to be at home with the couple’s children. Her full-time teaching license expired a number of years ago. In 2017, she earned a total of $3,069 as a substitute teacher. On August 1, 2018, Diane began a full-time position teaching at an early childcare and education center in Beavercreek, earning $24,900 per year at a rate of $12.00 per hour. {¶ 5} Diane filed for divorce on February 16, 2017. Both parties testified at a hearing held a year later, on February 20, 2018. (See Transcript (“Tr.”), Vol. I). During that hearing, John also presented the deposition testimony of a vocational expert who offered his opinion as to Diane’s “employability” and earning potential (id., pp. 38-60; see  -3- 2/20/18 Deposition of John Finch, Ph.D. (“Finch Depos.”)), and Diane presented the testimony of an expert witness regarding the reasonableness of the fees charged by Diane’s attorney. (Tr., Vol. II, pp. 5-15). In addition, the trial court conducted a private interview on that date with the parties’ minor daughter (see id., pp. 4, 217); (see also Tr., Vol I, pp. 6-7, 81), which is not part of the record. {¶ 6} On May 25, 2018, the trial court issued a final judgment and decree of divorce that, among other things, awarded spousal support to Diane in the amount of $2,650 per month for 120 months; 1 denied John’s request for an award of one-half of Diane’s earnings from January to June 2017; ordered John to pay $20,000 of Diane’s attorney’s fees; and awarded Diane child support in the amount of $873.21 per month. (See Trial Court Docket (“Doc.”) #103, Final Judgment and Decree of Divorce, pp. 5-6, 12, and attached Shared Parenting Plan, p. 3). {¶ 7} John filed a timely appeal from that judgment entry, raising five assignments of error: 1) The trial court lost its way in determining [Diane’s] earning ability for purposes of calculating spousal support. 2) The trial court abused its discretion in not imputing income to [Diane] for purposes of calculating child support. 3) The trial court abused its discretion in not permitting [John] to pursue one- half of [Diane’s] first half earnings [for 2017]. 1 John asserts that the trial court awarded Diane spousal support “for an indefinite time period, although [Diane] only requested [such support] for 10 years.” (Brief of the Appellant, “Statement of the Case”). To the contrary, the trial court limited the spousal support award to “a term of 120 months” (i.e., 10 years). (See Doc. #103, Final Judgment and Decree of Divorce, p. 6).  -4- 4) The trial court abused its discretion in awarding [Diane] $20,000 in attorney fees. 5) The trial court deprived [John] of due process when it would not permit him to present his own case or cross-examine [Diane] on contested issues. Assignment of Error #1 – Spousal Support {¶ 8} A trial court “enjoys broad discretion” with regard to awards of spousal support. Morgan v. Morgan, 2d Dist. Montgomery No. 27164, 2017-Ohio-402, ¶ 47. An abuse of discretion occurs when the trial court’s decision regarding spousal support is “unreasonable, arbitrary or unconscionable.” Hagar v. Sabry, 2d Dist. Montgomery No. 27967, 2018-Ohio-4230, ¶ 10, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 9} In determining whether spousal support is appropriate and reasonable, as well as its amount, nature, and duration, a trial court must consider a variety of factors. Baskin v. Baskin, 2d Dist. Montgomery No. 27373, 2017-Ohio-7632, ¶ 10. These factors include: 1) the parties’ income from all sources; 2) their relative earning abilities; 3) their ages and physical, mental, and emotional conditions; 4) the retirement benefits of the parties; 5) the duration of the marriage; 6) the extent to which it would be inappropriate for a party to seek employment outside the home (particularly if a custodian of a minor child of the marriage); 7) the parties’ standard of living during the marriage; 8) their relative educations; 9) the parties’ relative assets and liabilities; 10) the contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party; 11) the time and expense necessary for the spouse who is seeking spousal support to acquire  -5- education, training, or job experience so that the spouse will be qualified to obtain appropriate employment; 12) the tax consequences, for each party, of an award of spousal support; and 13) the lost income production capacity of either party that resulted from that party’s marital responsibilities. R.C. 3105.18(C)(1). The court also may consider any other factor that it expressly finds to be relevant and equitable. R.C. 3105.18(C)(1)(n). {¶ 10} “When considering the relative earning abilities of the parties in connection with an award of spousal support, Ohio courts do not restrict their inquiry to the amount of money actually earned, but may also hold a person accountable for the amount of money [that] a ‘person could have earned if he [or she] made the effort.’ ” Kraft v. Kraft, 2d Dist. Montgomery No. 25982, 2014-Ohio-4852, ¶ 21, quoting Miller v. Miller, 2d Dist. Montgomery No. 14540, 1994 WL 730560, *4 (Dec. 28, 1994). “Because R.C. 3105.18(C) permits inquiry into a party’s earning potential, Ohio courts often impute income to parties who are voluntarily underemployed or otherwise not working up to their full earning potential.” Miller at *4, citing, inter alia, Frost v. Frost, 84 Ohio App.3d 699, 618 N.E.2d 198 (10th Dist.1992). {¶ 11} John argues that the trial court erred by failing to impute additional earning potential to Diane for purposes of calculating the amount and duration2 of the spousal support she was to receive. Having reviewed the record, we cannot conclude that the trial court abused its discretion with respect to the amount of spousal support awarded in this instance. John’s vocational expert did opine that Diane’s “optimal vocational option” would be to return to school to complete the coursework necessary to reinstate her Ohio full- 2 See fn.1, above. Because John raises no challenge to paying spousal support for 10 years, we will not address that aspect of the trial court’s judgment.  -6- time teaching license, and that doing so would give her an earning potential of $62,893 per year. (Fink Depos., pp. 31-32, 34). However, Diane testified that “it would be a terrible struggle” for her to complete the necessary courses while also parenting their daughter and working full-time in her current job. (Tr., Vol. I, pp. 98-99). She further testified that she felt disadvantaged in seeking a full-time teaching position by her lack of familiarity with modern technology and due to competing against more recent college graduates with more “up-to-date thoughts on education.” (Id., pp. 99-100). She expressed doubt that she would be capable of earning the $62,000 a year projected by John’s expert. (Id.). {¶ 12} The judgment entry shows that the trial court did not wholly disregard the vocational expert’s testimony. Based on Diane’s “education and job experience,” the court “agree[d] that [Diane] may be capable for earning more than [her current income of] $24,000.” (Doc. #103, Final Judgment and Decree of Divorce, p. 5). Nevertheless, the court observed that Diane “has not had a [full-time] teaching license since 2011,” “has not consistently worked full-time for many years,” and “will need to enroll and complete 9 credit hours as required by the Ohio Board of Education” in order to become eligible for a full-time teaching license. (Id.). In light of Diane’s “current work schedule, parenting responsibilities, and financial responsibilities,” the trial court found “it reasonable that [Diane] shall complete the required courses within three years” after the February 20, 2018 hearing. (Id.). The court further signaled its willingness to consider modifying the amount of spousal support “if [Diane] fails to renew her professional teaching license or fails to obtain employment paying a higher wage” within those three years. (Id.). {¶ 13} The record reflects that the trial court considered the relevant factors under R.C. 3105.18(C)(1) in reaching its decision. The court highlighted specifically the parties’  -7- disparate current incomes, Diane’s reduced earning capacity due to leaving the full-time workforce in order to raise their children, and the need for Diane to complete further educational requirements in order to qualify for a higher-paying position. Weighing conflicting evidence is a matter entrusted to the trial court, which was in the best position to evaluate the evidence and assess the credibility of the witnesses. See Greene v. Greene, 2d Dist. Montgomery No. 12051, 1990 WL 107857, *3 (July 23, 1990). Furthermore, the trial court was not required to explain why it weighed some factors or testimony more heavily than others, and an appellate court should not second-guess a trial court’s factual determination unless there has been an abuse of discretion. Aldo v. Angle, 2d Dist. Clark No. 09-CA-103, 2010-Ohio-2008, ¶ 33, citing Rock v. Cabral, 67 Ohio St.3d 108, 112, 616 N.E.2d 218 (1993). {¶ 14} In addition, the record supports the trial court’s rejection of John’s argument that Diane deliberately sought to avoid obtaining a better paid position, content to rely on spousal support. The case law he advances as support for denying “altogether” an award of spousal support to a “voluntarily underemployed” spouse is inapposite. See Croucher v. Croucher, 2d Dist. Greene No. 2014-CA-43, 2016-Ohio-726. In Croucher, the appellant former husband had a master’s degree in business administration, but still was working only part-time nearly five years after being involuntarily let go from his former employment. Id. at ¶ 4-6, 17. Mr. Croucher also was not the residential parent of the couple’s minor children. Id. at ¶ 19. There, we found that the trial court did not abuse its discretion in determining, based on the testimony of a vocational expert, that Mr. Croucher was “voluntarily underemployed.” Id. at ¶ 17-18. Under the facts of the current case, we find that the trial court did not abuse its discretion in declining to find that Diane, who was  -8- employed full-time and had primary day-to-day responsibility for the couple’s minor child, was voluntarily underemployed. {¶ 15} Finding no abuse of discretion in the trial court’s assessment of the spousal support issue, we overrule John’s first assignment of error. Assignment of Error #2 – Child Support {¶ 16} Like spousal support calculations, calculations of child support are reviewed for an abuse of discretion. See Payne v. Payne, 2d Dist. Montgomery No. 27584, 2017- Ohio-8912, ¶ 6, citing Abrams v. Abrams, 2d Dist. Montgomery No. 27345, 2017-Ohio- 4319, ¶ 39. {¶ 17} The Ohio Revised Code provides a basic child support schedule and a child support computation worksheet to be used when calculating the amount of child support to be paid pursuant to a child support order. R.C. 3119.021 and R.C. 3119.022. The basic child support schedule and computation worksheet apply when the parents’ combined gross income is between $6,600 and $150,000 per year. As to combined incomes exceeding $150,000, the applicable statute provides in pertinent part as follows: If the combined gross income of both parents is greater than one hundred fifty thousand dollars per year, the court, with respect to a court child support order, * * * shall determine the amount of the obligor’s child support obligation on a case-by-case basis and shall consider the needs and the standard of living of the children who are the subject of the child support order and of the parents. The court * * * shall compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule and applicable  -9- worksheet for a combined gross income of one hundred fifty thousand dollars, unless the court * * * determines that it would be unjust or inappropriate and would not be in the best interest of the child, obligor, or obligee to order that amount. If the court * * * makes such a determination, it shall enter in the journal the figure, determination, and findings. R.C. 3119.04(B). {¶ 18} “The starting point [for calculating child support] is parental income: either gross income (for those employed to full capacity) or gross income plus potential income (for those not employed to full capacity).” Morrow v. Becker, 138 Ohio St.3d 11, 2013- Ohio-4542, 3 N.E.3d 144, ¶ 11, citing R.C. 3119.01(C)(5). Factors to be considered in determining what a voluntarily-underemployed parent would earn if fully employed include: (i) The parent’s prior employment experience; (ii) The parent’s education; (iii) The parent’s physical and mental disabilities, if any; (iv) The availability of employment in the geographic area in which the parent resides; (v) The prevailing wage and salary levels in the geographic area in which the parent resides; (vi) The parent’s special skills and training; (vii) Whether there is evidence that the parent has the ability to earn the imputed income; (viii) The age and special needs of the child for whom child support is being  -10- calculated under this section; (ix) The parent’s increased earning capacity because of experience; (x) The parent’s decreased earning capacity because of a felony conviction; (xi) Any other relevant factor. R.C. 3119.01(C)(11)(a). {¶ 19} As he did with respect to the trial court’s spousal support award, John contends that the trial court erred by failing to impute to Diane the additional potential income to which the vocational expert testified. Having concluded above that the trial court did not abuse its discretion by failing to find that Diane was voluntarily underemployed, however, we likewise find no abuse of discretion in the trial court’s failure to impute additional income to Diane in calculating the child support award for their daughter. {¶ 20} John’s second assignment of error is overruled. Assignment of Error #3 –Wife’s Early 2017 Earnings {¶ 21} John argues that the trial court erred by refusing to designate as marital property Diane’s earnings for the first half of 2017, while the parties were cohabiting. During her hearing testimony, Diane confirmed that she did not contribute to the joint household expenses from January through June 2017, but instead had her paychecks from that timespan deposited directly into a bank account in her name alone. (Tr., Vol. I, pp. 127-128, 131-132, 133, 134-137). When John’s attorney attempted to pursue further John’s “request for reimbursement of [Diane’s] income from January through June of 2017, because she was depositing all of her earnings into a separate account,” the trial court refused to permit that line of inquiry to continue. (See id., pp. 151-153). After alluding  -11- to placing a value on “the clothes [Diane] washed, and the dishes she did, and the shopping she did, and all those things that we know stay-at-home parents do for the household,” the court asserted that John’s request for half of Diane’s earnings was a waste of your time and my time, and I have never heard of anybody trying to get half of somebody’s salary for a time when they were together. I mean, I guess [Diane’s] * * * counsel would agree, that if you want to turn over half of [John’s] salary, they’ll turn over half of hers for that same period of time. (Id., p. 152). {¶ 22} In the final judgment entry, the trial court expressly denied John’s request for reimbursement from Diane’s earnings during that period. (Doc. #103, Final Judgment and Decree of Divorce, p. 6). Although acknowledging that Diane’s testimony confirmed that John “paid the mortgage, groceries, auto loan, utilities, and insurance during these months,” the court cited to its March 24, 2017 order directing the parties “to continue paying household bills as customary during the marriage,” and concluded “that it was customary during the marriage for [John] to pay the household expenses.” (Id.). {¶ 23} We review property distributions in divorce proceedings for an abuse of discretion. Payne, 2d Dist. Montgomery No. 27584, 2017-Ohio-8912, at ¶ 6, citing Loughman v. Loughman, 2d Dist. Montgomery No. 25835, 2014-Ohio-2449, ¶ 22. Under R.C. 3105.171(A)(3)(a), “* * * wages paid during the marriage are marital property.” McKenzie v. McKenzie, 2d Dist. Greene No. 2006-CA-34, 2006-Ohio-6841, ¶ 15. To the extent that deposits into Diane’s individual bank account represented her earnings from substitute teaching between January and June 2017, while the parties remained in the same household, those earnings do constitute marital property.  -12- {¶ 24} That conclusion does not end our analysis, however. On February 16, 2018 – prior to the hearing date – the parties filed certain joint stipulations with the trial court. (See Doc. #92). Among those, under the heading “Financial Accounts,” was this stipulation: “Wife has an individual account with Wright-Patterson Credit Union and shall retain that account free of any claim by Husband.” (Emphasis added.) (Id., p. 3). John thereby waived “any claim” against Diane’s individual bank account, including her earnings deposited into that account while the parties still resided together. That alone warrants overruling John’s third assignment of error. {¶ 25} Irrespective of that stipulation, the record does not establish that the trial court abused its discretion in refusing to distribute one-half of Diane’s early 2017 earnings to John. While the division of marital property generally “shall be equal,” there are exceptions. R.C. 3105.171(C)(1). “If an equal division of the marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable.” Id. {¶ 26} In refusing to award half of Diane’s January through June 2017 earnings to John, the trial court specified that “[t]he monthly household expenses listed on the parties’ Affidavits exceed [Diane’s] annual income,” and thus concluded that “it was customary during the marriage for [John] to pay the household expenses.” (Doc. #103, Final Judgment and Decree of Divorce, p. 6). Given the parties’ income disparity and the trial court’s additional allusion to the value of the services Diane provided to the household (see Tr., Vol. I, p. 152), we cannot conclude that the trial court abused its discretion by determining that allowing Diane to retain all of her nominal earnings from the first half of 2017 would be more equitable than requiring her to share that amount equally with John.  -13- {¶ 27} John’s third assignment of error is overruled. Assignment of Error #4 – Attorney’s Fees {¶ 28} Pursuant to R.C. 3105.73(A), the court in a divorce action “may award all or part of reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable.” In determining whether such an award is equitable, “the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.” Id. An award of attorney’s fees is committed to the sound discretion of the trial court, and will not be disturbed absent a clear abuse of discretion. Ulliman v. Ulliman, 2d Dist. Montgomery No. 22560, 2008-Ohio-3876, ¶ 24, citing Layne v. Layne, 83 Ohio App.3d 559, 568, 615 N.E.2d 332 (2d Dist.1992). {¶ 29} At the hearing, Diane produced copies of her fee agreement with her attorney and itemized billing statements recording the time expended by her attorney on this matter. (See Tr., Vol. I, pp. 117-120). She also presented the expert testimony of an attorney who regularly practices in the Greene County Domestic Relations Court and who opined that the $275 hourly rate and the total of about $30,000 in fees charged by Diane’s attorney were reasonable and necessary. (See Tr., Vol. II, pp. 7-11). Moreover, John did not contest the reasonableness or necessity of the fees charged. (Id., p. 12). 3 His challenge thus is limited to the requirement that he pay $20,000 of those fees. {¶ 30} Upon review, we find nothing to suggest that the trial court abused its 3 Given the opportunity to cross-examine Diane’s attorney’s fees expert, John’s attorney stated, “I don’t think that we have an issue with the amount necessarily of the fees or [Diane’s attorney]’s hourly rate * * * so much as the equity of requesting a full reimbursement of fees.”  -14- discretion by requiring John to pay that portion of Diane’s attorney’s fees. Although Diane had requested that John cover the full amount of her fees (see Tr., Vol. I, pp. 160-61), the trial court awarded her only about two-thirds of the requested amount. In so doing, the court stated, “Taking into account the fees incurred by both parties during the litigation, the Court finds it reasonable and necessary for [John] to pay $20,000 of [Diane’s] attorney fees.” (Doc. #103, p. 12). As detailed above, the court elsewhere made findings regarding the parties’ income disparity, which was a relevant factor for the court to consider in making a fee award. R.C. 3105.73(A). Moreover, the record reflects that John “switch[ed] attorneys” during the divorce proceedings (Tr., Vol. I, p .168), “conduct” that the trial court could have considered as likely to have contributed to an increase in the amount of Diane’s attorney’s fees. See R.C. 3105.73(A). {¶ 31} While John contends that the trial court erred by failing to recognize that “there’s really not much of a discrepancy” in the parties’ relative incomes if John’s child and spousal support payments to Diane and Diane’s “potential income” are included in the calculation, we already have determined that the trial court did not err by failing to consider Diane’s “potential income” for the purpose of calculating spousal and child support. That determination applies as to this issue as well. Additionally, for purposes of calculating child support, “Ohio appellate courts have held that spousal support paid from one party to the other party * * * is not to be considered as gross income,” (Citations omitted.) Goffinet v. Goffinet, 12th Dist. Butler Nos. CA94-11-197, CA95-02-028, 1996 WL 19287, *2 (Jan. 22, 1996), and a trial court also “may not consider as income the amount of child support a residential part receives from the nonresidential parent.” Calvaruso v. Calvaruso, 9th Dist. Summit No. 21392, 2003-Ohio-4906, ¶12. See R.C.  -15- 3119.23(C) (“[o]ther court-order payments” to be excluded from child support calculation). Given that spousal support and child support payments are excluded for that purpose, we cannot say that the trial court abused its discretion by failing to consider such payments for purposes of awarding attorney’s fees in the parties’ divorce action. {¶ 32} Lastly, John suggests that the trial court erred by prohibiting him from inquiring into whether Diane’s attorney’s fees already had been paid, and by whom, information that John deems relevant to the issue of whether Diane was able to pay her own fees. We do not agree. The trial court sustained an objection to the relevancy of one cross-examination question asking Diane to show where “payment to your attorneys [for fees] were [sic] reflected” (Tr., Vol. I, p. 161). The court did not abuse its discretion in so ruling. {¶ 33} John’s fourth assignment of error is overruled. Assignment of Error #5 – Due Process {¶ 34} In his final assignment of error, John raises a due process challenge to the manner in which the trial court conducted the February 18, 2018 hearing. He argues that the trial court denied him procedural due process by “stymie[ing] [John] from inquiring into contested issues on a number of occasions,” which he details in his appellate brief. {¶ 35} “The due process clause of the Fourteenth Amendment requires an opportunity to be heard before an impartial observer, and provides the right to confront and cross-examine witnesses prior to the deprivation of life, liberty, or property interest.” Hall v. Hall, 2017-Ohio-580, 85 N.E.3d 244, ¶ 16 (5th Dist.), citing Shimko v. Lobe, 124 Ohio App.3d 336, 706 N.E.2d 354 (10th Dist.1997). That right attaches in divorce proceedings. See, e.g., Council v. Council, 2d Dist. Montgomery No. 23514, 2010-Ohio-  -16- 3445, ¶ 29. A party may be denied due process when the parties are “given different degrees of latitude to develop testimony * * *” regarding the matters at issue. Hall at ¶ 18, citing Cohen v. Cohen, 5th Dist. Fairfield No. 99CA52, 2001 WL 61081 (Jan. 22, 2001). {¶ 36} We find no merit to the due process challenge. “Trial courts are given great deference in controlling their dockets.” Matthewson v. Matthewson, 2d Dist. Greene No. 05-CA-035, 2007-Ohio-574, ¶ 26, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). Indeed, Evid.R. 611(A) expressly authorizes trial courts to “exercise reasonable control over the mode * * * of interrogating witnesses and presenting evidence so as to * * * avoid needless consumption of time.” Id. {¶ 37} “[I]t is well-established that the admission or exclusion of relevant evidence rests within the trial court’s sound discretion.” Heath v. Heath, 12th Dist. Fayette No. CA2016-08-011, 2017-Ohio-5506, ¶ 24, citing Fox v. Fox, 12th Dist. Clermont No. CA2013-08-066, 2014-Ohio-1887, ¶ 13. A trial court does not err by excluding irrelevant evidence, nor may an error be predicated on the exclusion of evidence that the proponent failed to proffer. See Day, Ketterer, Raley, Wright & Rybolt, Ltd. v. Hamrick, 5th Dist. Stark No. 2002CA0043, 2002-Ohio-5493, ¶ 29. There also is no error in a trial court’s exclusion of evidence that is “merely cumulative.” See Ross v. Ross, 4th Dist. Jackson No. 507, 1985 WL 9387, *2 (Jul. 10, 1985). Moreover, to constitute error, the exclusion of evidence must affect “a substantial right of the party.” Heath at ¶ 26, citing Evid.R. 103(A)(2); see also First Natl. Bank of Pandora v. Plott, 6th Dist. Wood No. WD-95-096, 1996 WL 465396, at *7 (Aug. 16, 1996) (“appellant’s due process rights were not violated [where] she suffered no prejudice from the exclusion of evidence * * *”). {¶ 38} None of the examples cited by John constitute an abuse of the trial court’s  -17- discretion regarding the admission of evidence. Given our determinations above, the trial court did not err by refusing to allow John to adduce evidence about earnings deposited into Diane’s bank account that John had stipulated was to be treated as her separate property, or by refusing to allow John to question Diane about payment of her attorney’s fees. Absent a proffer of evidence regarding Diane’s alleged conduct during a settlement conference, we also cannot conclude on this record that the court erred by excluding such evidence. See Day, Ketterer, Raley, Wright & Rybolt, Ltd. at ¶ 29. While the trial court rebuffed John’s attempt to offer his own testimony on the topic of Diane’s alleged “underemployment,” the record already contained the testimony of John’s expert witness, as well as his counsel’s cross-examination of Diane. Any testimony from John on that subject would have been redundant, and excluding it was not an abuse of discretion. Notwithstanding the trial court’s acknowledgment about “taking over” questioning of witnesses (see Tr., Vol. I, p. 203), the trial did not so curtail John’s ability to present evidence as to create an incomplete record, to John’s prejudice. And, again, without a proffer, we cannot conclude on the record that John was prejudiced. {¶ 39} John’s fifth assignment of error is overruled. Conclusion {¶ 40} The judgment of the trial court will be affirmed. ............. WELBAUM, P.J. and TUCKER, J., concur. Copies sent to: Michelle M. Maciorowski  -18- Keri E. Farley Hon. Steven L. Hurley 

905 F.2d 549 30 Fed. R. Evid. Serv. 596 William BELBER, Plaintiff, Appellee,v.Charles S. LIPSON, M.D., d/b/a Metromedic Walk In MedicalCenter, Defendant, Appellee.Appeal of W. Robert FELIX, Jr., M.D., Defendant. No. 89-2010. United States Court of Appeals,First Circuit. Heard May 10, 1990.Decided June 14, 1990. Judith Farris Bowman, with whom Gitlin, Emmer & Kaplan, Boston, Mass., were on brief, for appellant. Philip F. Mulvey, Jr., Boston, Mass., for plaintiff, appellee, William Belber. Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge. BOWNES, Senior Circuit Judge. 1 Dr. W. Robert Felix appeals from evidentiary rulings made by the district court in a case where he was found by a jury to have committed medical malpractice. We affirm. 2 William Belber's wrist was injured while he was on a commercial fishing voyage from a port on Long Island, New York. Felix treated Belber for a fractured wrist at the Metromedic Walk In Medical Clinic (Metromedic) in New Bedford, Massachusetts. The wrist did not heal correctly and is permanently injured. Belber sued Felix and Metromedic. By pretrial stipulation Metromedic agreed that if Felix was found liable, it was liable under the doctrine of respondeat superior. A jury determined that Felix had negligently repaired the fracture. Metromedic has paid the verdict including interests and costs. 3 During the trial Dr. Felix represented himself. Metromedic was represented by a lawyer with whom Felix was able to consult throughout the trial. Most of Felix's and Metromedic's interests were identical. 4 One issue at the trial and the major one on appeal was whether Felix had properly repositioned the fracture and applied an appropriate cast. Felix claimed that he had provided competent emergency medical treatment. He testified that he told Belber to have the fracture examined by a specialist once Belber returned to Long Island. Felix also claimed that Belber might have contributed to his disability by using his injured hand for fishing too early in the healing process, thus putting too much pressure on the wrist, or by taking the cast off too early. A Dr. Joseph A. Spinzia examined and treated Belber after Felix and eventually removed the cast. Both parties tried to obtain Spinzia's records during pretrial discovery but were told that the records had been destroyed in an accident. 5 At trial, to the surprise of both parties, a witness, Dr. Conway, stated that he had additional records on Belber in his possession. Felix asserts that these additional records were Spinzia's, which Conway received from Belber's prior attorney in order to evaluate Belber's injury for an insurance company. Felix alleged that the attorney received them from Spinzia. Felix believes that the records would support his claim that Belber's cast was removed too early and/or that Belber returned to fishing too early and that either or both caused the permanent injury to his wrist. In that respect, Felix alleges that the records would contradict previous statements made by Belber. 6 When the records were first mentioned during the trial, Felix and Metromedic asked that they be admitted into evidence. Belber objected. The trial transcript is somewhat enigmatic about exactly what transpired. The record is bare as to the theory for admission of the documents or the grounds claimed for the objection. The judge asked Metromedic's attorney for a citation or rule of evidence that would support the admission of the records. The attorney replied that he could not give one. Felix then stated that he thought the records were admissible because they were part of Conway's records but could not cite a case or rule to support his position. The records were not admitted. I. 7 Felix now argues that the documents should have been admitted because they were sufficiently authentic to meet the requirements of Fed.R.Evid. 901 and that they were not hearsay because they were the business records of either Spinzia or Conway. Fed.R.Evid. 803(6).1 8 A ruling on the admission of evidence is within the discretion of the district court. Kissinger v. Lofgren, 836 F.2d 678, 683 (1st Cir.1988). We review these rulings only for an abuse of discretion. United States v. Garcia, 818 F.2d 136, 144 (1st Cir.1987); United States v. Drougas, 748 F.2d 8, 24 (1st Cir.1984); Harrington v. United States, 504 F.2d 1306, 1313 (1st Cir.1974). 9 Our review of the trial record reveals problems with both the authenticity and the admissibility of the records. For a document to be considered for admission there must be sufficient evidence to support a finding that the document is what its proponent claims it to be. Fed.R.Evid. 901(a). In this case there was no testimony about the records by Conway or anyone else. There is no evidence in the trial record that these documents were in fact the medical records of Dr. Spinzia's treatment of Belber's wrist, nor was there evidence of how the records came into Conway's hands. 10 Authentication is a necessary but not sufficient condition for the admission of evidence. The district court could have determined that the documents were sufficiently authentic to allow the jury to determine if they were really what Felix claimed them to be but still ruled them inadmissible. See generally, United States v. Sliker, 751 F.2d 477, 496-500 (2d Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). 11 Felix argues that the documents were admissible under the business records exception to the hearsay rule. Fed.R.Evid. 803(6). In this area, as with other areas of evidentiary law, we give great latitude to trial judges' on-the-spot rulings. United States v. Veytia-Bravo, 603 F.2d 1187 (5th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980) ("The primary emphasis of rule 803(6) is on the reliability and trustworthiness of the records sought to be introduced, and the trial judge exercises broad discretion in determining the inadmissibility."). Rulings of the district court are only reversed for abuse of discretion. Capital Marine Supply, Inc. v. M/V Roland Thomas, II, 719 F.2d 104 (5th Cir.1983). 12 Admission as a business record requires "the testimony of the custodian or other qualified witness." Fed.R.Evid. 803(6). This testimony is essential. NLRB v. First Termite Control Corp., 646 F.2d 424, 427 (9th Cir.1981). Without such a witness the writing must be excluded. Liner v. J.B. Talley & Co., 618 F.2d 327 (5th Cir.1980). "Obviously a writing is not admissible ... merely because it may appear upon its face to be a writing made by a physician in the regular course of his practice. It must first be shown that the writing was actually made by or under the direction of the physician at or near the time of his examination of the individual in question and also that it was his custom in the regular course of his professional practice to make such a record." Masterson v. Pennsylvania R. Co., 182 F.2d 793, 797 (3d Cir.1950) (decided under the Federal Business Records Act). The mere custody by Conway of the medical records of another doctor does not incorporate them into Conway's business records. See United States v. Davis, 571 F.2d 1354 (5th Cir.1978). 13 Conway had no personal knowledge about the records. He neither created the records nor did he testify about the circumstances of their composition. He allegedly received them from an attorney who represented Belber prior to Belber's trial counsel. Conway was not competent to testify that these were business records. For this reason, the court could properly determine that the records should not be admitted as either Spinza's or Conway's business records. See, e.g., Petrocelli v. Gallison, 679 F.2d 286, 289 90 (1st Cir.1982). 14 In sum, based on the trial record before us, we cannot say that the district court abused its discretion in refusing to admit the alleged medical records of Dr. Spinzia. II. 15 Felix also argues that he was cross-examined improperly concerning evidence of prior bad acts. Because there was no objection during the trial, we refuse to consider the issue on appeal. See Fed.R.Evid. 103(a)(1). In any event, we do not believe that the testimony substantially affected Felix's rights. 16 Finally, Felix claims that the evidence was not sufficient to support a jury verdict and asks us to grant a new trial. As Felix admits, he filed neither a motion for a directed verdict nor a motion for judgment notwithstanding the verdict. See Fed.R.Civ.P. 50. Failure to make such motions prohibits us from considering a motion for a new trial because the trial court is in a better position to decide such motions initially and must be given an opportunity to do so. See e.g., Sears v. Pauly, 261 F.2d 304, 307 (1st Cir.1958). 17 Felix argues that because he is a pro se defendant failure to object should not be fatal. As a general rule, we look with disfavor on requests by pro se litigants for special consideration. See, e.g., Andrews v. Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir.1985), cert. denied, 476 U.S. 1172, 106 S.Ct. 2896, 90 L.Ed.2d 983 (1986) (quoting Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975)) ("It is impossible for an appellate court to review a non-existent district court ruling. This rule cannot be bent for pro se plaintiffs. The right of self-representation is not 'a license not to comply with the relevant rules of procedural and substantive law.' ") In this case we have two additional responses. First, because Metromedic's lawyer did not preserve the issues, we are not convinced that Felix would be in a different position if he had been represented personally by an attorney. In this respect the position of Felix and Metromedic were very similar, and our reading of the trial record indicates that it is unlikely that even if the proper procedure had been followed, such an appeal would be successful. This is especially true in light of our discussion of "Dr. Spinzia's" records, the claimed error that formed the basis for the motion for the new trial. 18 AFFIRMED. 1 Felix has moved under Fed.R.App.P. 10(e) to expand the record on appeal by adding copies of the records that were in Conway's files and pages from Belber's deposition. We grant the motion as to the medical records because they were before the district court, but we deny the motion as to the deposition transcript because it was not presented at trial. In doing so, we are compelled to make a few comments. Counsel could have avoided this motion by marking the documents for identification so that they would have been included in the record. In addition, a clear offer of proof would have made the district court more clearly aware of the issues that Felix claims are at stake here and made our review of this case much easier. See Fed.R.Evid. 103. In granting part of the motion, we want to emphasize that we are not giving any special consideration to Felix because he was pro se during trial. Rather, we are exercising our discretion to consider documents that the district court had an opportunity to examine, and although the trial record is not clear, in all likelihood did examine. We deny the motion as to the deposition because it is brought up for the first time before us. A 10(e) motion is designed to only supplement the record on appeal so that it accurately reflects what occurred before the district court. It is not a procedure for putting additional information, no matter how relevant, before the court of appeals that was not before the district court

242 F.3d 131 (3rd Cir. 2001) LYNNE BERKE; DAVID ABDINOOR; LEONARD ACCARDO; JEFF ADAMS; ARNOLD ADICOFF, M.D.; MARY ELLEN ANDERSON; KERMETH G. ANDERSON; PABLO ARIAS; PAUL ARIAS; KURT ARNST; OSCAR ASCURRA; STEWARD AUSTIN; ROBERT BALBACH, JR.; PHILIP BANKS, JR.; PASQUALE BARISCIANO; LYNDA BATTLE; ARTHUR BEEBE; MR. AND MRS. DAVID BEVERLY; JOSEPH BIRES; JOHN BOHMKE; RANDOLF BOOKER; CARL BOULAY; SCOTT BOYER; RICHARD BRADLEY; ANNA BRODYCZ; MELVIN BURKHARDT; ROSEMARY CAMPERLENGO; JOSEPH CARDELLA; JOHN CAREY; KEN CARPENTER; SAMUEL CASTRO; FRANK CHAN; YOUNG CHANG; VICTOR CHEUK; E. NORMAN CHOINIERE; EUGENE CHRISKE; RAYMOND CLARK; CRAIG CLERF; MRS. RAYMOND CODY; DONALD COLEMAN; EDUARDO CONSOLE; WILLIAM COOTE; SHIRLEY CORBETT; DAVID CORNELL; AIDA CORTES; ELIZABETH CRAIG; DIANA DAPONTE; ANGELA DAVIE; LOUIS DEBLASIO; LOUIS DEMARCO; ANTHONY DIBATTISTA; CHARLES DIGRIGOLI; JAMES DOW; DANNY K. & DOROTHY M. DUNBAR; JANET DUNN; DONALD DYER; EASTERN ANALYTICAL SERVICES, INC., C/O PAUL STASCAVAGE; JAMES EDWARDS; DIANE EVANS; HARLOW F ARMER, III; JOSEPH FAVALE; HAROLD FERIOLI; F.L. FICKS; ALICE FIRGAU; HELEN FREEMONDE; PETER FRIEL; STUART FRIES; ELIZABETH FUSS; FLOYD GALLEGOS, SR.; IRA GELBER; KATHLEEN GIACOMO; EDWARD GILMORE; LAWRENCE GIUSTINIANI; DAVID GLICKMAN; KENNETH GLOYESKE; THEODORE GOLDMAN; DOYLE GROSS; HENRY GROSSMAN; GUARDIAN INVESTMENT CLUB, C/O DENNIS MCCULLOUGH; JABIR GULAMHUSSEIN; MARLENE HALLMAN; DENNIS HANCOCK; TYSON HARPER; JOHN HARRISON; MARTIN HAYES; EDWARD HEIMRICH; VICTOR HIMEL; BRYAN HODGKINS; BRIAN HOFF; CHARLES HORVATH; HANS HUNZIKER; GLORIANNE JACKSON; RICHARD JEFFERSON; KENNETH JENKINS; PHILLIP JENSEN; CLARE JOHNSON; ERIC JOHNSON; ROSS JOHNSON; WILFRED JOHNSON; WILLIAM JONES; HENRY KARPIK; MARK KESSLER; FRAZIN KHIABANI; DANIEL KILFOYLE; JOSEPH KOLODZEJ, JR.; JOSEPH KILIDZEJ, SR.; CHESTER KOZLOWSKI; JOAN KUJAWSKI; FRED LACROIX; ARRON LEHMANN; ROBERT LESINSKI; HOWARD LITTLE; ROBERT LOSHBOUGH; BRUCE LOUGHRIDGE; YVONNE LUMB; LUCILLE LUSTICA; HUBERT MAEHR; MARIE MARCHESE; H. STEVEN MARELIA; RALPH MARICONDA; JAMES MASONE; DOUGLAS MCFADDEN-BLANK; JAMES C. MCCANN; WILLIAM MCGOWAN; DENNIS MCIVOR; WILLIAM MCPHILLIPS; JOSEPH MECCA; THOMAS MERWIN; GREGORY MERYAM; JOHN MOONEY; JESSIE MOONEY-GRIFFIN; ISABEL MOUNTBATTEN; ROTHER MURRAY; JOHN NAYLOR; FRANK NEDELKA; ANN NEWMAN; FARSHID NIKFAR; BRENDAN O'CONNOR; DALE OBERLY; GARRETT OCKERT; EDW ARD OLSON; DAVID OWEN; MARGARET OXENDINE; ANTHONY PANNELLA; WILLIAM PARKER; GEORGE P ATTEN, JR.; BOBBY PAYNE; VINCENT PERO; NADJA PETRIZZO; L. GORDON PFEFFERKORN; HARRY PINKMAN; NICOLETTE PISCATELLI; ALVIN POLLEX; JEFFREY POPE;MICHAEL POTTER; FREDDIE PRESSLEY; RICHARD PRESIOSI; GRACE RADONICIC; FRANK RECCA; STUART REIN; JASON REIN; GARY RIEMER; BRADLEY RITZ; ANTHONY RIZZIO; LUCIEN RIZZO; THOMAS ROOF; WILLIAM ROTHE; ONOFRIO RUSSO; RALPH RUSSO, JR.; JOHN RYERSON; SERG SAINT-PRIX; SANDRA SANTIAGO; LARRY SCARINGELLI; LYNN SCHEELER; ROBERT SCHELICH; RICHARD SCHINDLER; F. THOMAS SENIOR; JOSEPH R SHARPLES; RONALD SHEN; ROBERT SHIFMAN; HERBERT SIEH; NICHOLAS SITINAS; LESLEY M. SMITH; LYDIA SMITH; FRANKLIN SMITH; DORIS SOAPE; JAMES SOCKMAN; WILLIAM SOCKMAN; PATRICIA SOFRAN; PAUL ST. JEAN; MICHAEL STAFFORD; ISREAL STEIN; JOHN STEVENS; DOUGLAS STROHL; RONALD SULLO; JOSEPH SWINTON; HAROLD TAPSCOTT; JULIA TAYLOR; SANDRA THOMAS; FRANCINE TINDONA; JOSEPH TOMAINO; KATHLEEN TOTH; RICHARD ROWNSEND; LARRY TRAUB; ALEXANDER TRENTO; MICHAEL TRONOLONE; GEORGE TURNER; DOLORES TUSS; EDWIN UTLEY; RONALD VACCA; ADELE VECCHIONE; ARCENIO VELEZ; FRANK VIOLA; INEZ WALSH; JOSEPH WEHNER; JOSEPH WEINBERGER; JANET WESTLAKE; CHARLES WILLIAMS; ROSE ZAPPOLI; ABE ZYMAN, APPELLANTS AND ALICE O'DONNELLv.PAUL H. BLOCH; STEVEN E. WEIGNER; INDEPENDENT BROADCASTERS NETWORK, INC.; BROADCAST MANAGEMENT CORPORATION; BROADCAST RADIO GRP; BUCKLEY BROADCASTING CORPORATION, D/B/A WOR RADIO; FUTURE VISION DIRECT MARKETING, INC.; NATIONWIDE WIRELESS CORPORATION; JAMES BARSCHOW; RICHARD HORNE; MARK EDDINGER; MARK FREEDMAN; PHILIP JAMES CARATOZZOLA; PHILIP FORMA, SR.; DANIEL KELLY; HERBERT HERR; IRA COHEN; WILLIAM GERONIMO; RAY FILLWEBER; JOHN FORMA; SCOTT LAGROSSA; JOHN GNOLFO; NEIL SLAVIN; TOM FASANO; PIONEER NUMISMA TICS, INC.; JOHN WRUBLEWSKI; MICHAEL SCHWAN; KEVIN SCHWAN; ADAM CRUM; DAVID CAMIRE; JOHN DOES, 1-25 (NAMES BEING FICTITIOUS AND UNKNOWN BUT DESCRIBED AS SALESPEOPLE AND/OR BUSINESS ENTITIES SELLING INVESTMENT IN THE GREAT COLUMBIA BASIN LIMITED COMPANY); HARR Y I. "SONNY" BLOCH; BLOCH BROADCASTING; BRUCE SCHROEDER; JOSEPH GLENSKI; CARDIFF BROADCASTING; CARDIFF PARTNERS "A" No. 00-2078 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Submitted Under Third Circuit LAR 34.1(a) on January 22, 2001Filed February 27, 2001 ON APPEAL FROM THE UNITED STATES District Court FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 94-cv-05999) District Judge: The Honorable Nicholas H. PolitanBefore: Nygaard, Alito, and Rosenn, Circuit Judges. OPINION OF THE COURT Nygaard, Circuit Judge. 1 Before us is Appellee Buckley Broadcasting's motion to dismiss this appeal for lack of jurisdiction. The Appellants have filed a memorandum in opposition. Buckley Broadcasting argues that we lack jurisdiction because the Appellants did not file their notice of appeal within thirty (30) days of the date the District Court's judgment became final, as required by F.R.A.P. 4(2)(1)(A). The Appellants maintain that such finality was not achieved until June 8, 2000, and that their notice of appeal -- filed on June 21, 2000 -- was therefore timely. I. Background 2 On December 19, 1999, two hundred and eighty-eight (288) plaintiffs filed a complaint alleging that several named defendants fraudulently solicited their investment in units of the Greater Columbia Basin Limited Liability Company. The purpose of this solicitation was to raise money for a wireless cable television system. Appellants (plaintiffs below) claimed that these investments were worthless and that the revenue generated was fraudulently diverted and has never been located or returned to them. 3 Buckley Broadcasting was one of the named defendants. The only federal claim against Buckley Broadcasting was that it sold an unregistered security, as defined by section 12(1) of the Securities Exchange Act of 1933. On December 14, 1999, the District Court granted Buckley Broadcasting's motion for summary judgment. The District Court found no genuine issue as to whether Buckley Broadcasting was a "seller" of securities within the meaning of the statute. The District Court declined to exercise supplemental jurisdiction with regard to the remaining state law claims and dismissed them. 4 On January 13, 2000, the Appellants filed a notice of appeal contesting the December 14, 1999 order. Because their cause of action remained active as to several other defendants, the Appellants later voluntarily withdrew the appeal, indicating that they reserved the right "to refile said appeal at such time as the Order of December 14, 1999 becomes final within the meaning of 28 U.S.C. § 1291 or is certified as such by Judge Politan."1 5 On March 1, 2000, the District Court filed an order dismissing the action with respect to the remaining defendants, expressing its belief that the matter had been settled with the two remaining defendants, William Geronimo and Raymond Fillweber. The District Court dismissed the action "without costs and without prejudice to the right, upon good cause shown, within 60 days, to reopen the action if the settlement is not consummated." The order further instructed that "this case is now CLOSED." (emphasis in the original). That is to say, the Appellants had until Monday, May 1, 2000, to re-open their case if the settlement fell through. 6 The docket indicates that the Appellants undertook no action within the prescribed sixty (60) day period following entry of the District Court's order. It was not until May 4, 2000, that the Appellants returned to the District Court and requested the entry of a "stipulation of dismissal with prejudice" as to Fillweber. On June 8, 2000, the Appellants requested a final stipulation of dismissal from the District Court for Geronimo. The Appellants filed a notice of appeal on June 21, 2000. 7 II. Jurisdiction and Final, Appealable Orders 8 For purposes of appellate jurisdiction, we must determine first whether there was a final order entered in this case and, if so, when it became appealable. Federal law provides that we shall have jurisdiction over appeals from "all final decisions of the District Courts of the United States." 28 U.S.C. S 1291. A decision is considered final for purposes of section 1291 when the District Court's decision "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710-11, 116 S.Ct. 1712, 1718 (1996); see also Van Cauwenberghe v. Biard, 482 U.S. 517, 521, 108 S.Ct. 1945, 1949 (1988); Aluminum Com. of America v. Beazer East Inc., 124 F.3d 551, 557 (3d Cir. 1997); Christy v. Horn, 115 F.3d 201,203 (3d Cir. 1997). Conversely, if the order specifically contemplates further activity by the District Court, it is not considered final. If the order contemplates only ministerial actions by the District Court however, finality may exist. See Paiewonsky Assoc. Inc. v. Sharp Props. Inc. 998 F.2d 145, 150 (3d Cir. 1990). 9 An order dismissing a case outright is, of course, final and appealable. Trent v. Dial Med. of Florida et al., 33 F.3d 217, 220 (3d Cir. 1994) (citing Ingersoll-Rand Fin. Corp. v. Callison, 844 F.2d 133, 134-35 & n.1 (3d Cir. 1988)). We have even indicated that dismissals "without prejudice" may be final and appealable if the District Court believes its ruling ends the litigation. See id. (citing United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n.1, 69 S.Ct. 824, 825 n.1 (1949)). We have cautioned, however, that such dismissals could not be appealable until the party seeking relief renounces any intention to reinstate litigation. Id.; see also Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991). III. The March 1, 2000 Order 10 Buckley Broadcasting initially argues that the March 1, 2000, order required no further action by the District Court and was therefore final and appealable on that date. Buckley Broadcasting points out that the March 1, 2000 order dismissed the case, leaving it open only so that the District Court may, upon a showing of good cause, retain jurisdiction if a settlement was not consummated. Additionally, they suggest that the March 1st order did not reserve for the District Court the jurisdiction to re-examine the case on the merits, or the ability to enter any further substantive orders; the Court expressly closed the case. 11 However, the District Court dismissed all claims without prejudice, giving the Appellants sixty (60) days to reinstate their action if a settlement was not reached. This condition is problematic. When a District Court dismisses a case pending settlement, and grants the Appellants leave to re-file within a set period of time, the order cannot be considered final for the purposes of appeal on the date it was entered. Typically, conditional dismissals based on imminent settlement include a fixed period of time to reach settlement terms. While these types of dismissals may keep the parties' "feet to the fire" by giving them a deadline to conclude settlement, they cannot be considered final. Instead, if terms are reached, and/or the plaintiff makes no attempt to re-open the litigation, the order ripens into a final, appealable order upon the expiration of the fixed time period. 12 It is a "well-settled principle" in this circuit that an order dismissing a complaint without prejudice is not a final and appealable order unless, for example, the plaintiff no longer can amend the complaint because the statute of limitations has run or if the plaintiff has elected to stand on their pleadings. In re Westinghouse Secs. Litig., 90 F.3d 696, 705 (3d Cir. 1996); see also Bethel v. McAllister Bros. Inc., 81 F.3d 376, 381 (3d Cir. 1996); Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995); Presbytery of N.J. Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461 & n.6 (3d Cir. 1994); Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992); Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991); Newark Branch, N.A.A.C.P. v. Harrison, N.J., 907 F.2d 1408, 1416-17 (3d Cir. 1990). While the order of dismissal in this case was not final and appealable when it was entered, we find the Appellants' failure to do anything in the subsequent sixty (60) day period akin to standing on their complaint, thereby making the order both final and appealable on May 1, 2000. 13 Federal Rule of Appellate Procedure 4 instructs that "in a civil case... the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." F.R.C.P. 4(a)(1)(A). An untimely appeal does not vest an appellate court with jurisdiction. See Browder v. Director, Dep't of Corr., 434 U.S. 257, 264 (1978); Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91 (3d Cir. 1995). Since the order became final and appealable on May 1, 2000, the notice of appeal filed by the Appellants on June 21, 2000, was not timely. We lack jurisdiction to review this case and will, therefore, dismiss. 14 The Appellants argue that their filing and communications with the District Court clearly indicated that the litigation was not to be considered final until the filing of stipulations of dismissal with prejudice. As evidence of this intention, they refer to an ex parte letter sent to the District Court on March 1, 2000, in which the Appellants outlined their plans to achieve settlement with the remaining defendants, Geronimo and Fillweber. We are not persuaded. The judicial process works best when orders mean what they say. See Adams v. Lever Bros. Co., 874 F.2d 393, 395 (7th Cir. 1989). The District Court's order is clear and unambiguous. Just as parol evidence is excluded in contracts cases when the plain language is clear, so too this type of ex parte evidence about a party's intentions must be considered irrelevant to an unequivocal and final order. 15 Finally, the filing of "stipulations of voluntary dismissal with prejudice" on May 4, 2000, and on June 8, 2000, do nothing to rescue the untimely notice of appeal. We view them as superfluous. Geronimo and Fillweber were already dismissed from this case on March 1, 2000. IV. Conclusion 16 The March 1, 2000, dismissal order in this case is final and became appealable on May 1, 2000. Because the Appellants did not file their notice of appeal until June 21, 2000, we lack the requisite jurisdiction to adjudicate this appeal. Consequently, this appeal is dismissed. NOTE: 1 We note that although they voluntarily withdrew their appeal, Appellants did not seek to reinstate it. The fact that they "reserved the right to refile said appeal at such time as the Order of December 14, 1999, becomes final within the meaning of 29 U.S.C. S 1291 or is certified by Judge Politan" is irrelevant. The requirements of F.R.A.P. are not discretionary. Such limitations are "mandatory and jurisdictional," and parties filing notices of appeal cannot reserve the right to refile them more than thirty (30) days after a final judgment. Krebs Chrysler-Plymouth, Inc., v. Valley Motors, Inc., 141 F.3d 490, 495 (3d Cir. 1998).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1211 RUDY RICE, Plaintiff - Appellant, v. HOWARD COUNTY GOVERNMENT, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Albert David Copperthite, Magistrate Judge. (1:16-cv-03498-ADC) Submitted: November 30, 2018 Decided: December 13, 2018 Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Denise M. Clark, Jeremy D. Greenberg, CLARK LAW GROUP, PLLC, Washington, D.C., for Appellants. Gary W. Kuc, County Solicitor, Cynthia G. Peltzman, Senior Assistant County Solicitor, Louis P. Ruzzi, Senior Assistant County Solicitor, Melissa E. Goldmeier, Assistant County Solicitor, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rudy Rice appeals the magistrate judge’s order granting Howard County Government (the County) summary judgment on Rice’s hostile work environment and retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e-2000e-17 (West 2012 & Supp. 2017), and the Maryland Human Relations Act, also referred to as the Maryland Fair Employment Practices Act, Md. Code Ann., State Gov’t §§ 20-601 to 20-609 (West 2014). * Rice asserts on appeal that the magistrate judge erred in granting the County summary judgment because he presented sufficient evidence on both his claims to present his case to a jury. We discern no reversible error and affirm. We have reviewed the record and have considered the parties’ arguments. As to Rice’s claim of a hostile work environment, we agree with the magistrate judge that a reasonable jury could not conclude that the alleged unwelcome conduct was imputable to the County. The alleged offenders were not Rice’s supervisors, and the County’s remedial actions were legally sufficient to eliminate any hostile work environment. See Strothers v. City of Laurel, Md., 895 F.3d 317, 328, 332-33 (4th Cir. 2018) (setting forth elements of hostile work environment claim and differentiating between supervisor and coworker in determining if harasser’s actions were imputable to employer); EEOC v. Xerxes Corp., 639 F.3d 658, 670 (4th Cir. 2011) (“A remedial action that effectively * Pursuant to 28 U.S.C. § 636(c) (2012), the parties consented to the jurisdiction of the magistrate judge. 2 stops the harassment will be deemed adequate as a matter of law.” (internal quotation marks omitted)). Turning to Rice’s retaliation claim, we also agree with the magistrate judge that Rice failed to meet his burden of demonstrating that the County’s nonretaliatory reason for Rice’s termination was mere pretext and that his protected activity was the “but-for” cause of his termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). Accordingly, we affirm the magistrate judge’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

983 F.2d 1049 Aydin Corporationv.RGB Sales, White (Ronald, Georgeanna) NO. 92-1411 United States Court of Appeals,Third Circuit. Dec 15, 1992 Appeal From: E.D.Pa., DuBois, J. 1 AFFIRMED.

915 N.E.2d 977 (2009) GARCIA v. STATE. Supreme Court of Indiana. January 8, 2009. Transfer denied. All Justices concur.

481 U.S. 851 (1987) INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, ET AL. v. HECHLER No. 85-1360. Supreme Court of United States. Argued January 20, 1987 Decided May 26, 1987 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT *852 Laurence Gold argued the cause for petitioners. With him on the briefs were David M. Silberman, Laurence J. Cohen, Elihu I. Leifer, and Richard M. Resnick. Joel S. Perwin argued the cause for respondent. With him on the brief was Sheldon J. Schlesinger. JUSTICE BLACKMUN delivered the opinion of the Court. In Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), this Court held that "when resolution of a state-law claim is substantially dependent upon analysis of the terms of *853 an agreement made between the parties in a labor contract," the plaintiff's claim is pre-empted by § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185. 471 U. S., at 220. The question presented by this case is whether a state-law tort claim that a union has breached its duty of care to provide a union member with a safe workplace is sufficiently independent of the collective-bargaining agreement to withstand the pre-emptive force of § 301. I At all times relevant to this case, plaintiff-respondent Sally Hechler was employed by Florida Power and Light Company (Florida Power) as an electrical apprentice. Petitioners, the International Brotherhood of Electrical Workers and its Local 759 (collectively referred to as the Union), are the exclusive bargaining representatives for the bargaining unit in which respondent was employed. On January 11, 1982, Florida Power assigned respondent to a job in an electrical substation that required her to perform tasks she alleges were beyond the scope of her training and experience. Shortly after commencing her new assignment, respondent was injured when she came into contact with highly energized components at the substation. Two years later, respondent sued the Union in state court in Broward County, Fla. In her complaint, she alleged that "pursuant to contracts and agreements entered into by and between" the Union and Florida Power, and "pursuant to the relationship by and between" the Union and respondent, the Union had a duty to ensure that respondent "was provided safety in her work place and a safe work place," and to ensure that respondent "would not be required or allowed to take undue risks in the performance of her duties which were not commensurate with her training and experience." App. 4. The Union, pursuant to 28 U. S. C. § 1441, removed the lawsuit to the United States District Court for the Southern District of Florida on the grounds that the "alleged duty arises *854 solely from the alleged collective bargaining agreement between [the Union] and Florida Power," and therefore that any breach of this duty was actionable under § 301. 1 Record 3. Respondent at that time raised no objection to the removal. In federal court, the Union moved to dismiss the complaint. It argued that respondent's claim arose solely under federal labor law and was untimely under the applicable federal statute of limitations. Id., at 66-70. Respondent conceded: "The nature and scope of the duty of care owed [her] is determined by reference to the collective bargaining agreement." Id., at 98. She argued, however, that the basic nature of her action was a state common-law "suit in tort" for the Union's negligence in failing to provide her a safe workplace. Id., at 100-102. Respondent prayed that the case be remanded to the state court. The District Court granted the Union's motion to dismiss. The court observed that the gravamen of the complaint was that the Union had breached a duty of care to respondent to provide her a safe workplace. "Significantly, the duty allegedly owed to [Hechler] flows from the collective bargaining agreement, which imposes a duty on the [Union] to monitor the safety and training of its members." App. to Pet. for Cert. 3a. The court concluded that because respondent had failed "to demonstrate that the [Union's] allegedly negligent activity was unrelated to the collective bargaining agreement or beyond the scope of the employee-union fiduciary relationship," her claim was pre-empted by federal labor law. Id., at 4a. Having found that respondent's suit was governed by federal law, the court then held that the 6-month statute of limitations adopted in DelCostello v. Teamsters, 462 U. S. 151 (1983), applied to Hechler's case, and dismissed the suit as untimely. The Court of Appeals for the Eleventh Circuit reversed. 772 F. 2d 788 (1985). It ruled that the complaint "on its face states a common law negligence claim that may be cognizable *855 in state court and is not preempted by the federal labor laws." Id., at 790-791. The court concluded: "Though the [collective-bargaining] contract may be of use in defining the scope of the duty owed, liability will turn on basic negligence principles as developed by state law." Id., at 794. Finding that "federal labor law was not invoked in plaintiff's complaint," id., at 799, the court directed that the District Court remand the case to the state court for adjudication on the merits. Because the Eleventh Circuit's decision appeared to conflict with the decision of the Sixth Circuit in Michigan Mutual Ins. Co. v. Steelworkers, 774 F. 2d 104 (1985), we granted certiorari. 476 U. S. 1113 (1986). II A In Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), we reviewed the pre-emptive scope of § 301.[1] We think it useful, at the outset, to repeat briefly the background outlined in the opinion in Allis-Chalmers. In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), the Court held that § 301 does more than simply confer jurisdiction on federal courts to hear suits charging violations of collective-bargaining agreements. Id., at 450-451. The Court concluded that Congress, through § 301, had authorized federal courts to create a body of federal law for the enforcement of collective-bargaining agreements — law "which the courts must fashion from the policy of our national labor laws." Id., at 456. It was explained in Allis-Chalmers, 471 U. S., at *856 209, that the Court in Lincoln Mills "understood § 301 as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts." Not long after Lincoln Mills was decided, the Court held that state courts have concurrent jurisdiction over § 301 claims. Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). Although the Court in Dowd proceeded upon the hypothesis that state courts would apply federal law when they exercised jurisdiction over § 301 claims,[2] it was in another case that same Term, Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), that the Court expressly held that federal law, and not state law, must be used in adjudicating § 301 claims. There the Court observed: "The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute." 369 U. S., at 103. The need for this uniformity was clearly explained: "The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems *857 would tend to stimulate and prolong disputes as to its interpretation." Id., at 103-104. The Court thus concluded that "in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Id., at 104. While the Court in Lucas Flour observed that federal law was paramount in "the area covered by" § 301, 369 U. S., at 103, in Allis-Chalmers the Court defined the range of claims that should be considered as coming within that coverage. The ordinary § 301 case is a contract claim in which a party to the collective-bargaining agreement expressly asserts that a provision of the agreement has been violated. See, e. g., Lucas Flour, 369 U. S., at 104 (claim by employer that strike by union violated provision of collective-bargaining agreement). In Allis-Chalmers, however, the Court considered an employee's state-law tort action against his employer for bad-faith handling of disability-benefit payments due under a collective-bargaining agreement, and concluded that the interests supporting the uniform interpretation of collective-bargaining agreements under federal common law apply equally in the context of certain state-law tort claims. The Court set forth this basic principle: "The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation. Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as *858 claims for tortious breach of contract." 471 U. S., at 211. The Court pointed out that if state law, in the context of a tort action, were allowed to determine the meaning of particular contract phrases or terms in a collective-bargaining agreement, "all the evils addressed in Lucas Flour would recur"; the "parties would be uncertain as to what they were binding themselves to" in a collective-bargaining agreement, and, as a result, "it would be more difficult to reach agreement, and disputes as to the nature of the agreement would proliferate." Ibid. In Allis-Chalmers, the Court applied the rule that a tort claim "inextricably intertwined with consideration of the terms of the labor contract" is pre-empted under § 301, 471 U. S., at 213, and concluded that the claim in Allis-Chalmers fell within that category. The employee's allegation there was that his employer and its insurance company intentionally had failed to make required disability payments under a plan negotiated in a collective-bargaining agreement, and that, in so doing, they had breached a state-law insurance duty to act "in good faith" in paying disability benefits. Id., at 206. The Court observed that any attempt to assess liability on the part of the employer would inevitably involve interpretation of the underlying collective-bargaining contract. First, the disability plan adopted in the collective-bargaining agreement might itself have included an implied requirement of good faith that the employer breached by its conduct. The Court explained: "[I]t is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers' conduct breached that implied contract provision." Id., at 215. Second, under the relevant state law, the duty of "good faith" on which the plaintiff relied "intrinsically relate[d] to the nature and existence of the contract." Id., at 216. The concept of "good faith" meant "being faithful to one's duty or obligation,' " *859 ibid., quoting Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 13, 235 N. W. 413, 414 (1931), and, under state law, that duty was determined primarily by analyzing the responsibilities agreed to by the insurer in the written contract. The Court reasoned: "Because the right asserted not only derives from the contract, but is defined by the contractual obligation of good faith, any attempt to assess liability here inevitably will involve contract interpretation." 471 U. S., at 218. Inasmuch as federal law must control the uniform meaning given to contract terms in a collective-bargaining agreement, however, an employee's state-law tort action that necessarily rests on an interpretation of those terms is pre-empted by § 301. Id., at 218-219.[3] B Under the principle set forth in Allis-Chalmers, we must determine if respondent's claim is sufficiently independent of the collective-bargaining agreement to withstand the pre-emptive force of § 301. Respondent's state-law tort claim is based on her allegation that the Union owed a duty of care to provide her with a safe workplace and to monitor her work assignments to ensure that they were commensurate with her skills and experience. Under the common law, however, it is the employer, not a labor union, that owes employees a duty to exercise reasonable care in providing a safe workplace. See, e. g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on The Law of Torts 569 (5th ed. *860 1984); White v. Consolidated Freight Lines, 192 Wash. 146, 148, 73 P. 2d 358, 359 (1937). Under Florida case law, as under the general common law, the employer "owes a duty to his employees to furnish a reasonably safe place to work, and must use ordinary care and diligence to keep it safe." 2 Fla. Jur. 2d, Agency and Employment § 154, p. 343 (1977) (footnote omitted); see, e. g., Putnam Lumber Co. v. Berry, 146 Fla. 595, 604-607, 2 So. 2d 133, 137-138 (1941). See also Fla. Stat. § 440.56(1) (1981) ("Every employer . . . shall furnish employment which shall be safe for the employees therein, furnish and use safety devices and safeguards . . . and do every other thing reasonably necessary to protect the life, health, and safety of such employees"). Another party, such as a labor union, of course, may assume a responsibility towards employees by accepting a duty of care through a contractual arrangement. If a party breaches a contractual duty, the settled rule under Florida law is that the aggrieved party may bring either an action for breach of contract or a tort action for the injuries suffered as a result of the contractual breach. See, e. g., Banfield v. Addington, 104 Fla. 661, 669-670, 140 So. 893, 897 (1932); Parrish v. Clark, 107 Fla. 598, 603, 145 So. 848, 850 (1933) ("[A]n action may arise for the breach of the contract, or for the positive tort committed by the violation of a duty arising out of the assumption of the contractual relation"); Safeco Title Ins. Co. v. Reynolds, 452 So. 2d 45, 48 (Fla. App. 1984) (it is a "long-established general principle that injuries caused by the allegedly negligent performance of a contractual duty may be redressed through a tort action"). The threshold inquiry for determining if a cause of action exists is an examination of the contract to ascertain what duties were accepted by each of the parties and the scope of those duties. See 38 Fla. Jur. 2d, Negligence § 17, p. 29 (1982); Vorndran v. Wright, 367 So. 2d 1070 (Fla. App. 1979) (architect's contract did not include a duty to ensure compliance with safety regulations and thus employee injured on the job had no cause of action *861 against the architect); Schauer v. Blair Construction Co., 374 So. 2d 1160, 1161 (Fla. App. 1979) (summary judgment in favor of architect improperly granted when genuine issue of material fact existed regarding architect's alleged contractual obligation to supervise construction). In her complaint, respondent alleges precisely this type of tortious breach-of-contract claim. She asserts that "pursuant to contracts and agreements" between the Union and Florida Power, "to which contracts and agreements the Plaintiff was a third-party beneficiary," the Union owed respondent a duty of care to ensure her a safe working environment. App. 4. Having assumed this duty under the collective-bargaining agreement, the Union — according to the complaint — was then negligent "by allowing [Hechler] to be assigned to work in . . . a dangerous location and environment and by failing to provide her with or ascertaining that she had the necessary training, experience, background, and education to work in such a dangerous environment," and was further negligent in failing to "provid[e] and/or enforc[e] safety rules, regulations and requirements which would preclude such persons with inadequate and insufficient background, training, education, and experience, such as the Plaintiff, . . . from being placed in such an inherently dangerous working environment." Id., at 5. Respondent's allegations of negligence assume significance if — and only if — the Union, in fact, had assumed the duty of care that the complaint alleges the Union breached. The collective-bargaining agreement between the Union and Florida Power, and ancillary agreements between those parties, contain provisions on safety and working requirements for electrical apprentices on which Hechler could try to base an argument that the Union assumed an implied duty of care.[4]*862 In order to determine the Union's tort liability, however, a court would have to ascertain, first, whether the collective-bargaining agreement in fact placed an implied duty of care on the Union to ensure that Hechler was provided a safe workplace, and, second, the nature and scope of that duty, that is, whether, and to what extent, the Union's duty extended to the particular responsibilities alleged by respondent in her complaint. Thus, in this case, as in Allis-Chalmers, it is clear that "questions of contract interpretation. . . underlie any finding of tort liability." 471 U. S., at 218. The need for federal uniformity in the interpretation of contract terms therefore mandates that here, as in Allis-Chalmers, respondent is precluded from evading the pre-emptive force of § 301 by casting her claim as a state-law tort action.[5] *863 III If respondent's suit is treated as a § 301 claim, a court must determine whether her claim is time barred by the applicable *864 statute of limitations under federal law. The Union argues that respondent's claim can be characterized only as a "duty of fair representation" claim against the Union for failing properly to represent Hechler's interests before the employer, and that her claim must therefore be governed by the 6-month period of limitations prescribed by DelCostello v. Teamsters, 462 U. S. 151 (1983).[6] Respondent argues, however, that her suit is not a "duty of fair representation" claim, but is simply a § 301 claim, on the basis of her status as a third-party beneficiary of the collective-bargaining agreement *865 and the Union's breach of duties assumed under that agreement.[7] The Court of Appeals did not review the District Court's holding that the 6-month period of limitations adopted in DelCostello governs Hechler's suit, because it concluded that respondent's claim was not pre-empted under federal labor law. We believe it appropriate for the Court of Appeals to consider, in the first instance, whether the period of limitations adopted in DelCostello is applicable to Hechler's claim. The judgment of the Court of Appeals for the Eleventh Circuit therefore is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part and dissenting in part. Respondent has alleged nothing more than a breach of the Union's federal duty of fair representation. She has not alleged that the Union breached any specific promise made to her, and her argument that Florida law has augmented the Union's representational duties is plainly pre-empted by federal law. The suggestion that she is a "third-party beneficiary" of the collective-bargaining agreement that the Union negotiated and executed on her behalf is a concept I simply do not understand. Whatever rights she has under that contract are rights against her employer, not against the party that represented her in its negotiation. Since her claim *866 against the Union is a duty-of-fair-representation claim, her complaint is barred by the 6-month period of limitations prescribed by this Court's decision in DelCostello v. Teamsters, 462 U. S. 151 (1983).[*] Remanding the case to the Court of Appeals is therefore unnecessary. I would simply reverse the judgment of the Court of Appeals and reinstate the District Court's order dismissing the complaint. NOTES [1] Section 301 of the Labor Management Relations Act, 1947 (LMRA) states: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, 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." 29 U. S. C. § 185(a). [2] See Teamsters v. Lucas Flour Co., 369 U. S. 95, 102 (1962), discussing Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). In Dowd, the Court impliedly referred to state courts as working with the federal courts "as there evolves in this field of labor management relations that body of federal common law of which Lincoln Mills spoke." Id., at 514. [3] The Court took care in Allis-Chalmers to define the precise limits of its holding. The rule there set forth is that, when a state-law claim is substantially dependent on analysis of a collective-bargaining agreement, a plaintiff may not evade the pre-emptive force of § 301 of the LMRA by casting the suit as a state-law claim. 471 U. S., at 220. The Court emphasized, however: "In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Id., at 212. [4] The provision on "Safety" in the collective-bargaining agreement reads: "The safety of the employees is a matter of paramount importance, shall receive first consideration, and no employee shall be allowed or required to take any undue risk in the performance of his duties which he or his Foreman or Supervisor consider unsafe to himself or to his fellow workers. Supervisors and Foreman will be held strictly responsible for the enforcement of safe working rules." App. 13-14. The provision also establishes a labor-management "Joint Safety Committee" which is "responsible for developing and recommending an effective safety program for all employees covered by this Agreement, including changes or additions to present safety rules, conducting investigations of accidents when deemed necessary." Id., at 14. A second provision, present in a side agreement entitled "The Manner An Electrical Apprentice Will Work" states: "It is recognized that an Electrical Apprentice is in training under Journeymen to become a qualified Journeyman. It is also recognized that as he progresses in his apprenticeship, he becomes qualified to perform productive work, and will be expected to perform all the duties of a Journeyman which he has become qualified to do. It is not the intention of the Company to use an Apprentice on any type of work which the Apprentice has not become qualified to perform through experience and training. In this regard, the Company will not require an Apprentice to work on, climb through or work above energized conductors carrying more than 500 volts during his first year of apprenticeship." Id., at 17. [5] In her brief to this Court, respondent argues, for the first time, that her claim is not dependent on an interpretation of the collective-bargaining agreement, because the Union's duty of care to her may arise through independent state-law responsibilities placed upon the Union simply by virtue of its relationship with its members, rather than as a result of the collective-bargaining agreement. Brief for Respondent 15-19. Respondent points out that she alleged that the Union owed her a duty of care "pursuant to contracts and agreements" entered into between the Union and Florida Power "and pursuant to the relationship by and between" the Union and Hechler. App. 4 (emphasis added). Even assuming that respondent's pleadings may be construed liberally as stating that various, unenumerated Florida laws place a duty of care on a union to provide a safe workplace for its members, respondent effectively abandoned that theory in the lower courts and we decline to consider the argument here. Hechler argued below simply that the Union's duty of care arose from and was determined by the collective-bargaining agreement to which she was a third-party beneficiary. In opposing the Union's motion to dismiss in the District Court, Hechler conceded: "The nature and scope of the duty of care owed Plaintiff is determined by reference to the collective bargaining agreement." 1 Record 98. She made no reference to an alternative theory that the "nature and scope" of the Union's duty of care also may be determined by reference to state law operating independently of the collective-bargaining agreement. Although she repeated her statement that the duty of care owed her by the Union arose "by virtue of the parties [sic] relationship and the collective bargaining agreement," ibid., she never suggested that the "relationship" between the parties gave rise to a duty of care distinct from the duty created by the collective-bargaining agreement. Not surprisingly, the District Court, relying on Hechler's formulation of her claim, observed: "Significantly, the duty allegedly owed to plaintiff flows from the collective bargaining agreement." App. to Pet. for Cert. 3a. On appeal to the Court of Appeals, Hechler continued to characterize the Union's duty of care as grounded in the collective-bargaining agreement. She described the issue presented as "whether the federal labor laws pre-empt a worker's state common-law action against her union for negligence in breaching its duty — created by the union's contract with the employer — to insure that the plaintiff was properly trained for her work assignment." Brief for Appellant in No. 84-5799 (CA11), p. ii (emphasis added). See also id., at 1, 45, n. 47. Again, there was no mention by Hechler of the existence of other state law that might form an alternative source of the Union's duty. The Court of Appeals accepted the proposition that the Union's duty of care would arise from the collective-bargaining agreement, but agreed with Hechler that, "[t]hough the contract may be of use in defining the scope of the duty owed," the suit essentially remained a state-law claim of negligence. 772 F. 2d 788, 794 (1985). Respondent repeated the theory adopted by the Court of Appeals in her opposition to the Union's certiorari petition in this Court. Brief in Opposition 4, 8-9. In her brief on the merits to this Court, she argued for the first time that the Union possibly was subject to an independent state-law duty of care, unconnected to the collective-bargaining agreement, and arising simply from the relationship of a union to its members. Even if such a state-law obligation, which would directly regulate the responsibility of a union in a workplace, could survive the pre-emptive power of federal labor law, we conclude that it is too late in the day for respondent to present to the Court this newfound legal theory. We decline to rule on the impact of hypothetical state law when the relevance of such law was neither presented to or passed on by the courts below, nor presented to us in the response to the petition for certiorari. [6] In DelCostello, the Court concluded that a hybrid suit, consisting of a § 301 claim against an employer and a duty-of-fair-representation claim against a union, is similar to an unfair labor practices charge, and that federal courts should therefore borrow the 6-month limitations period established in § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b), for such charges. A duty-of-fair-representation claim arises when a union that represents an employee in a grievance or arbitration procedure acts in a "discriminatory, dishonest, arbitrary, or perfunctory" fashion. 462 U. S., at 164. See Vaca v. Sipes, 386 U. S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976). The Court in DelCostello expressly distinguished the hybrid § 301/duty-of-fair-representation claim before it from "a straightforward breach-of-contract suit under § 301." 462 U. S., at 165. [7] An individual employee may bring a § 301 claim against an employer for violation of the collective-bargaining agreement between the union and the employer. Smith v. Evening News Assn., 371 U. S. 195 (1962). Although employees usually bring duty-of-fair-representation claims against their union rather than § 301 claims, see, e. g., Vaca v. Sipes, supra, third-party beneficiaries to a contract ordinarily have the right to bring a claim based on the contract. The Union has not contested respondent's right to bring a § 301 claim against it based on her status as a third-party beneficiary to the collective-bargaining agreement, although it has attempted to recast her suit as a duty-of-fair-representation claim. [*] The District Court found that respondent had sued the union "over two years after she sustained her injury." App. to Pet. for Cert. 5a.

Filed 11/26/13 Vasquez v. Superior Court CA4/3 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 FOURTH APPELLATE DISTRICT DIVISION THREE OFELIA VASQUEZ, Petitioner, v. G048890 THE SUPERIOR COURT OF ORANGE (Super. Ct. No. 30-2012-00583703) COUNTY, OPINION Respondent; BMW of NORTH AMERICA, LLC, Real Party in Interest. Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, William M. Monroe, Judge. Petition granted. The Law Office of John Derrick, John Derrick; The Bickel Law Firm and Erika Kavicky for Petitioner. Rogan Lehrman, Kate S. Lehrman for Real Party in Interest. * * * THE COURT:* Petitioner Ofelia Vasquez, the plaintiff below in a lemon law action filed against real party in interest, BMW of North America, seeks a writ of mandate compelling the recusal or disqualification of Judge William M. Monroe from presiding over her case. She filed a statement of disqualification against him contending that a person aware of the facts might reasonably entertain a doubt that he would be able to impartially rule on the matter. (Code Civ. Proc., §§ 170.3, subd. (c)(5) and 170.1, subd. (a)(6)(A)(iii).) 1 We grant petitioner’s request for relief, specifically that her objection to Judge Monroe hearing her case be considered by another judge pursuant to section 170.3, subdivision (c)(5). 2 * Before Moore, Acting P.J., Aronson, J., and Thompson, J. 1 Statutory references are to the Code of Civil Procedure. 2 Petitioner indicates in her petition she is not requesting that this court adjudicate the issue of whether a reasonable person could doubt Judge Monroe’s ability to be impartial. Rather, petitioner’s request is that this court order her objection to Judge Monroe be reinstated, so that the statement of disqualification can be assessed on its merits by another judge of the superior court pursuant to section 170.3, subdivision (c)(5). Section 170.3, subdivision (c)(5) provides in effect that: “A judge who refuses to recuse himself or herself shall not pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party. In that case, the question of disqualification shall be heard and determined by another judge agreed upon by all parties who have appeared or, in the event they are unable to agree within five days of notification of the judge’s answer, by a judge selected by the chairperson of the Judicial Council, or if the chairperson is unable to act, the vice chairperson. . . . [¶] (6) The judge deciding the question of disqualification may decide the question on the basis of the statement of disqualification and answer and any written arguments as the judge requests, or the judge may set the matter for hearing as promptly as practicable. If a hearing is ordered, the judge shall permit the parties and the judge alleged to be disqualified to argue the question of disqualification and shall for good cause shown hear evidence on any disputed issue of fact. If the judge deciding the question of disqualification determines that the judge is disqualified, the judge hearing the question shall notify the presiding judge or the person having authority to appoint a replacement of the disqualified judge as provided in subdivision (a).” 2  I Statement of Facts and Proceedings In July 2012, petitioner filed a complaint against BMW of North America. (BMW) The complaint involved a single cause of action alleging that real party violated California’s lemon law, the Song-Beverly Consumer Warrant Act (Civ. Code, § 1790 et seq.). The essence of petitioner’s claim is that the 2006 BMW 750 Li she leased from BMW had defective brakes, and other systemic problems. The matter was assigned to Judge Monroe. Shortly thereafter, petitioner’s counsel was advised by a plaintiff’s attorney who was involved in an unrelated lemon law case that Judge Monroe had made comments at a case management conference suggesting he was hostile to, or cynical about, lemon law litigation. As an exhibit to her petition for a writ of mandate, petitioner provides a certified copy of the reporter’s transcript of Judge Monroe’s comments at the unrelated case. “The Court: Both sides are asking for a jury. This is a lemon law case? [¶] . . . [¶] Get ‘em settled, Get ‘em settled. I find more of these lemon law cases are more about attorneys’ fees than they are about the merits of the case. [¶] . . . [¶] . . . I cannot urge you strongly enough to get this case settled. If nobody gets greedy, we all get rich.” After receiving the transcript of Judge Monroe’s case, petitioner filed a verified statement of disqualification pursuant to sections 170.3, subdivision (c) and 170.1, subdivision (a)(6)(A)(iii), the latter which provides in effect that a judge shall be disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. . . .” The court struck petitioner’s challenge on the grounds that it disclosed no legal basis for disqualification. In its order striking the statement of disqualification, which included an alternative verified answer, the court responded that the challenge disclosed no legal basis because “encouraging settlement is not grounds for disqualification. It is appropriate for the court to suggest and encourage settlement. . . . 3 The role of a judge from an inactive referee to a case manager has brought many changes to the face of litigation, including requirements that trial judges aggressively monitor and manage litigation from the filing of the first pleading until final disposition. [Citation.] Nor is it grounds for disqualification that the court commented on the nature of the case. Code of Civil Procedure section 170.2, subdivision (b) specifically states that it is not grounds for disqualification that the judge has in any capacity expressed a view on a legal or factual issue presented in the proceeding, except as provided in section 170.1, subdivisions (a)(2), (b), or (c). [Citation.] It is well settled that the expressions of opinion uttered by a judge, in what the judge perceives to be a discharge of his or her official duties, are not evidence of bias or prejudice under the disqualification statutes. [Citations.]” The court also found petitioner’s challenge to be untimely. “Code of Civil Procedure section 170.3, subdivision (c)(1) requires that the statement requesting disqualification ‘be presented at the earliest practicable opportunity.’ The declaration of Erika Kavicky in support of the motion states that she first learned of the facts giving rise to this challenge on June 19, 2013. While Ms. Kavicky states that she did not receive the transcripts or declaration of Ms. Turnage [the attorney in the unrelated lemon law case who first apprised Kavicky of the statements made by the court] until July 25, 2013, she does not offer any explanation as to why it took five weeks from the discovery of the facts to obtain this evidence. The challenge is therefore stricken as untimely.” We conclude the court erred on both accounts. II Discussion Section 170.3, subdivision (c)(1) sets out the procedures under which a party may seek disqualification of a judge. Where a judge fails to voluntarily disqualify him or herself, a party may object to that hearing or trial before that judge by filing a 4 verified statement, objecting to, and setting forth grounds for the disqualification of the judge. The statement must be filed at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. Under section 170.3, subdivision (c)(3), the judge may file a consent to disqualification in which case he or she shall notify the presiding judge or the person authorized to appoint a replacement of his or her recusal as provided in subdivision (a), or may, as did the court here, file a written verified answer admitting or denying any or all of the allegations contained in the party’s statement and setting forth any additional facts material or relevant to the question of disqualification. The court may also, notwithstanding section 170.3, subdivision (c)(5), strike the statement of disqualification under section 170.4, subdivision (b), as the court did here, if it finds the statement was untimely filed, or if on its face it discloses no legal grounds for disqualification. Under the facts of this case, the court’s decision to strike petitioner’s statement of disqualification instead of allowing another judge to hear and determine the matter was mistaken. First, the statement filed by petitioner’s counsel was timely. The hearing in the unrelated lemon law case wherein the court made its comments occurred on June 19, 2013; petitioner’s counsel learned about it the same day. On July 24, 2013, petitioner’s counsel received the transcript of the June 19, 2013, hearing. On July 25, 2013, counsel received the declaration of counsel in the unrelated hearing. On July 30, 2013, petitioner’s counsel filed her objection challenging Judge Monroe. The statement of disqualification must be filed at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification. (§170.3, subd. (c)(1).) In Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, the court found a delay of seven months before asserting a ground for disqualification was untimely. The court explained, “The purpose of the requirement that alleged grounds for disqualification be asserted at the earliest practicable opportunity is that ‘“‘[i]t would seem . . . intolerable to permit a party to play fast and loose with the 5 administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. [Citations.]’”’” (Id. at p. 1337.) Even though the facts indicate there was a gap of about five weeks from when counsel first became aware of Judge Monroe’s statements to when she filed the statement of disqualification, this amount of time was not unreasonable. Petitioner’s counsel learned about Judge Monroe’s comments the same day they were made. She ordered the reporter’s transcript of the hearing and received it on July 24, 2013. On July 25, 2013, counsel received the declaration of counsel in the unrelated hearing. On July 30, 2013, petitioner filed her statement of disqualification. These dates indicate that that counsel worked diligently to prepare her statement of disqualification. Nowhere in the record does it appear to us that counsel was attempting to delay or to play fast and loose with the system. Secondly, the statement of disqualification stated a valid legal ground for disqualification, i.e., that a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge’s impartiality. (§170.1, subd. (a)(6)(A)(iii).) After our initial review of petitioner’s petition for a writ of mandate we notified the parties and the respondent court that we were considering granting the petition and issuing a peremptory writ of mandate in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171; Lewis v. Superior Court (1999) 19 Cal.4th 1232.) The real party advised this court that it did not object to the relief sought by petitioner, or for allowing petitioner’s objection to the trial judge to be considered by another judge pursuant to section 170.3, subdivision (c)(5). 6  III Disposition Accordingly, let a peremptory writ of mandate issue commanding the court to vacate its order striking petitioner’s challenge pursuant to Code of Civil Procedure section 170.4, subdivision (b), and to enter a new order requiring the matter to be heard by another judge. Each side shall bear its own costs. 7 

Case: 11-41265 Document: 00511872957 Page: 1 Date Filed: 05/31/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 31, 2012 No. 11-41265 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ELIGIO ROJAS-VALDEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-679-1 Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Eligio Rojas-Valdez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Rojas-Valdez has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, * 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: 11-41265 Document: 00511872957 Page: 2 Date Filed: 05/31/2012 No. 11-41265 counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6740 WILLIAM LEE ANDERSON, II, Petitioner – Appellant, v. DIRECTOR OF VDOC, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, District Judge. (7:14-cv-00202-JPJ-RSB) Submitted: October 2, 2014 Decided: October 10, 2014 Before WILKINSON, MOTZ, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. William Lee Anderson, II, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Lee Anderson, II, seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Anderson has not made the requisite showing. Moreover, Anderson’s informal brief fails to address the district court’s reasons for denying relief, so he has waived appellate review. 4th Cir. R. 34(b). Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, deny 2 Anderson’s motion to amend, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 3 

T.C. Memo. 1997-215 UNITED STATES TAX COURT JOE NATHAN BRYANT, JR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 12420-95. Filed May 7, 1997. Joe Nathan Bryant, Jr., pro se. Horace Crump, for respondent. MEMORANDUM OPINION KÖRNER, Judge: Respondent determined deficiencies in and penalties on petitioner's Federal income taxes for the years and in the amounts as follows:  - 2 - Penalty Year Deficiency Sec. 6662(a) 1992 $8,376 $1,675 1993 8,137 1,627 All section references are to the Internal Revenue Code in effect for the years in issue. All Rule references are to the Tax Court Rules of Practice and Procedure. At the time the petition herein was filed, petitioner was a resident of Birmingham, Alabama. He filed his income tax returns for the years 1992 and 1993 on the basis of married filing separately. In the years in issue, petitioner was employed as a policeman for the Fairfield Police Department. He also provided private security service and was a member of the Coast Guard Reserve during these years. At trial herein, petitioner appeared on behalf of himself. Although he testified, he produced no other witnesses, and no documentary evidence of any sort was offered in support of his position. He admitted at trial that he failed to substantiate any of the business expenses claimed on Schedule C of his 1992 and 1993 tax returns, and he also admitted that he did not substantiate any of the claimed deductions on Schedule A of his 1992 and 1993 tax returns. The adjustments made by respondent to petitioner's taxable returns were as follows:  - 3 - 1. Respondent determined that petitioner had received State income tax refunds in the amounts of $424 and $464 in 1992 and 1993, which petitioner failed to report. 2. Respondent disallowed $16,449 and $16,439, respectively, for the years 1992 and 1993 on account of Schedule C business- related deductions by petitioner. 3. With respect to petitioner's itemized deductions under Schedule A on the returns in issue, respondent disallowed $28,985 for 1992 and $28,526 for 1993 on account of deductions other than State income taxes paid by petitioner in those years, which respondent allowed. Where the Commissioner has made a determination of deficiency in income tax against a taxpayer, such as here, regarding his income for a given year, the burden of proof on each issue determined by the Commissioner is on the taxpayer. The Commissioner's determination of the deficiencies is presumably correct. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933). Furthermore, deductions from income are strictly a matter of legislative grace, and the taxpayer bears the burden of proving entitlement to all deductions claimed. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435 (1934). So far as respondent's determination of deficiencies is concerned, based upon income and deductions as reported and/or  - 4 - claimed by petitioner, there is nothing in this record except petitioner's naked testimony to dispute respondent's determinations. Petitioner's testimony, standing alone, is not to be taken as gospel, and it does not carry petitioner's burden of proof. Halle v. Commissioner, 7 T.C. 245 (1946), affd. 175 F.2d 500 (2d Cir. 1949). Therefore, so far as respondent's determinations are based upon income and deductions as reported by petitioner, we must sustain respondent. There remain, however, several discrepancies between respondent's determinations herein and the record regarding petitioner's reported deductions. Specifically: 1. For the year 1992, respondent's notice of deficiency purported to disallow $16,449 of business-related deductions under Schedule C, whereas petitioner actually reported $8,011 of such deductions. Respondent's explanation for this discrepancy is that this was an "error" that respondent had corrected; how or at what time this correction was made we do not know, but it apparently is not in accordance with the income and deductions as reported by petitioner, and we do not see what statutory basis respondent has for making a determination of deficiency based on a "correction". Sec. 6212. Likewise for the year 1993, respondent disallowed $16,439 of petitioner's business expenses under Schedule C, whereas the record herein shows that petitioner actually claimed only $16,119. We will take the figures as  - 5 - reported by petitioner's returns, which are stipulated in evidence herein. 2. With respect to the itemized deductions (Schedule A) on petitioner's return for the year 1992, respondent disallowed the amount of $28,985 as deductions; petitioner, however, claimed only $29,495 in itemized deductions on that return, of which respondent has conceded $1,306. We know of no basis for respondent's determination of a disallowed deduction in excess of petitioner's claim, after allowing for respondent's concession. 3. With respect to the year 1993, respondent disallowed $28,526 of itemized deductions; petitioner had claimed $29,870, and after respondent's concession of $1,344, the net disallowance by respondent of $28,526 appears correct in accordance with the present record. The above discrepancies with respect to the disallowances by respondent as compared to the deductions as claimed by petitioner in the 2 years in question will have to be reconciled in the necessary computation herein under Rule 155. With regard to the penalties in tax for the years 1992 and 1993, determined herein by respondent, section 6662(a) imposes a penalty in the amount of 20 percent of the portion of the underpayment attributable to negligence. Petitioner is liable for an accuracy-related penalty for negligence in the preparation and filing of his 1992 and 1993 tax returns. Petitioner failed to substantiate any of the deductions taken on the 1992 and 1993  - 6 - tax returns except for the State income taxes previously mentioned herein. Therefore, he is liable for the accuracy- related penalty pursuant to section 6662(c), which defines negligence as the failure to make a reasonable attempt to comply with the tax law. Hamdi v. Commissioner, T.C. Memo. 1993-38, affd. without published opinion 23 F.3d 407 (6th Cir. 1994); Dillon v. Commissioner, T.C. Memo. 1993-11. Decision will be entered under Rule 155. 

484 F.Supp. 138 (1980) UNITED STATES of America, Plaintiff, v. MIDWEST SOLVENT RECOVERY, INC.; Midwest Industrial Waste Disposal Company, Inc.; Industrial Tectonics, Inc.; V & E Corporation; Ernest de Hart; Edward D. Conley; Helga C. Conley; Lovie de Hart; Charles A. Licht; David E. Licht; Delores Licht; Eugene Klisiak; Jeanette Klisiak; Luther G. Bloomberg; Robert J. Dawson, Jr.; Victor Kirsch; John Kirsch; Eva Kirsch; John Miletich; and Mary Miletich, Defendants. Civ. No. H 79-556. United States District Court, N. D. Indiana, Hammond Division. January 31, 1980. *139 Erica L. Dolgin, Atty., Hazardous Waste Section, Land and Natural Resources Div., Dept. of Justice, Washington, D. C., Michael R. Berman, Atty., U. S. Environmental Protection Agency, Region V, Chicago, Ill., Andrew B. Baker, Jr., Asst. U. S. Atty., Hammond, Ind., for the U. S. David E. Licht, New York City, for defendants David Licht, Charles A. Licht, Delores Licht and Industrial Tectonics, Inc. Melvin Morris, East Chicago, Ind., for defendant Robert J. Dawson, Jr. Leo A. Ostrowski, Griffith, Ind., for defendants Eugene and Jeanette Klisiak. William J. O'Connor, Hammond, Ind., for defendants V & E Corp., Victor Kirsch, John Kirsch and Eva Kirsch. Lowell E. Enslen, Gary K. Matthews, Hammond, Ind., for defendant Luther Bloomberg. ORDER McNAGNY, District Judge. Insisting that immediate relief is mandated by Section 7003 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6973, the government brings this matter before the Court by motion for a preliminary injunction. Jurisdiction over this cause, the government asserts, is vested in the Court both by 42 U.S.C. § 6973 and by 28 U.S.C. § 1345. The government questions the propriety of the waste storage and disposal activities that either previously have been carried on or presently are being conducted at two localities within the territorial jurisdiction of the Court. The Court is urged to find that conduct on the part of defendants amounts to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste, that such conduct is presently an imminent and substantial endangerment to health or the environment, and that as a consequence equitable relief should be immediately forthcoming. On December 27, 1979, the government obtained a temporary restraining order against the defendants V & E Corporation, Victor Kirsch, and Eva Kirsch, by the terms of which said defendants were enjoined from moving certain drums and containers containing chemical residues which were located on or adjacent to property owned by defendant V & E Corporation. The temporary restraining order was issued by Judge Grant of the Northern District of Indiana. This Court heard oral argument on the government's motion on January 7, 8 and 9 of 1980. No effectual service has yet been made on defendants Earnest de Hart, Lovie de Hart, Edward D. Conley, and Helga G. Conley. I. Findings of Fact The facts are these: 1. Some time before December 1976, defendant Midwest Solvent Recovery, Inc. began to do business at 7400 West 15th Avenue in Gary, Indiana (a site hereinafter termed "Midco # 1"). *140 2. Midco # 1 is located in an area in which a number of light industrial concerns operate. Relatively near the Midco # 1 site to the east, however, is a Gary residential area. 3. Midwest Solvent is engaged in the business of reclaiming solvents and in the business of storing and disposing of various solid and hazardous wastes. Defendant Earnest de Hart was and apparently still is a director of as well as the president of Midwest Solvent. Defendants Edward D. Conley and Helga G. Conley were and apparently still are directors of the company. 4. In the course of conducting its business, Midwest Solvent accumulated and stored thousands of 55-gallon drums on the Midco # 1 property. Many of these drums contained chemicals that were both poisonous and highly flammable. 5. Chemical waste that Midwest Solvent received was processed in simple fashion. The waste was taken onto Midco # 1, first dumped into a pit beneath a loading dock, and then dumped into a large "sludge pit," approximately 8 feet deep, 20 feet wide, and 75 feet to 100 feet long. Certain components of the waste were burned off. Much of the non-combustible portions of the waste was either stored in drums, placed in a pit, or sent to a landfill. The bulk of the remainder of the non-combustible waste was dumped onto the ground at Midco # 1. 6. In the course of operating its business, Midwest Solvent placed a large number of drums on properties adjacent to the Midco # 1 site without the permission of the properties' owners. Drums were placed without permission on the properties of Eugene and Jeanette Klisiak, of Luther G. Bloomberg, of Robert J. Dawson, Jr., and of V & E Corporation. The government presented no evidence indicating that the Klisiaks knew of the existence of the drums upon the Klisiak property before mid-1978. At that time Mr. Klisiak hotly protested the placement of drums on his property to Mr. Dale Robinson, then plant manager at Midco # 1. Similarly, the government did not present evidence that defendant Bloomberg, defendant Dawson, or defendant V & E Corporation learned of the existence of drums on their properties until on or about the time the government filed its complaint. 7. On December 21, 1976, a fire of tremendous size broke out on Midco # 1 and in the course of the succeeding week ravaged the site. The fire consumed much of the chemical waste materials stored in the thousands of drums stacked on the ground and on each other. The fire caused the generation of toxic fumes and caused a large number of the 55-gallon drums to rocket up to 250 feet in the air. A number of Gary (Indiana) Fire Department members were injured and/or made ill in the course of fighting the fire. 8. Shortly after the fire at Midco # 1, Earnest de Hart relocated his chemical waste storage and disposal operation to a tract of land located at 5900 Industrial Highway (a site hereinafter termed "Midco # 2"). The operation was there conducted under the name of Midwest Industrial Waste Disposal Company, Inc. The Midco # 2 site was and is owned by defendants John and Mary Miletich. Mr. de Hart left Midco # 1 in the state in which the fire had left it, littered and covered with thousands of burned out drums and with chemical wastes. de Hart conducted his business operations at Midco # 2 in much the same fashion in which he had done business at Midco # 1. Chemical wastes when received were placed in two pits near a loading dock. After the wastes congealed in the pits, the sludge product was scooped up with an earth-mover and dumped in an open pit, one of the two pits at the back of Midco # 2. This open pit became the resting place of the paint sludge. The second of the two pits at the back of Midco # 2 was a closed pit in which acids, cyanides, pesticides and other poisons were placed. Spanning the overture of the closed pit is a cover that can be easily lifted. At the rear of Midco # 2, a short distance north of the two rear pits, is a drainage ditch with a tributary channel which flows into the Grand Calumet River. *141 9. Defendant Lovie de Hart was and apparently still is the secretary of Midwest Industrial Waste Disposal Company, Inc. For purposes of this action, she has neither been served nor found. 10. Between the time de Hart began operations at Midco # 2 and August 16, 1977, thousands of 55-gallon drums of chemical wastes were taken onto Midco # 2 and there stored on the ground or on top of each other. On August 16, 1977, a spectacular fire erupted at Midco # 2 and fed for a number of days upon the chemical wastes stored in the thousands of drums. After the fire ran its course and eventually burned to a halt, de Hart discontinued his Midco # 2 operation, left the site, and did nothing to clean up or rehabilitate the site. de Hart moved his operation back to Midco # 1. 11. On October 19, 1977, defendant Industrial Tectonics, Inc. (hereinafter "Intec") leased for six months from Midwest Recovery Solvent, Inc. a portion of the Midco # 1 property. This lease was renewed for a second six month period on April 19, 1978. Also in the later part of 1977, Intec purchased the customer list, the logo and the telephone number of Midwest Recovery Solvent, as well as certain tanks, equipment, and vehicles. Each of these items was sold to Intec by Earnest de Hart or by one of the corporations he controlled. 12. Defendant Charles Licht is the president of Intec. Defendant David Licht is a vice-president, and a director of the company. Defendant Delores Licht is an officer and a director of the company. 13. Shortly after the acquisition of the lease, Intec began operations on Midco # 1. Chemical wastes were received and then placed in two pits. Wastes that were thought to be reclaimable were emptied into a tank beneath the loading dock and thereafter subjected to a solvent-reclaiming process. Heavy residuals were dumped into a second tank, allowed to congeal into a sludge, and then vacuummed out of the tank and taken to a large legal landfill in Calumet City, Illinois for ultimate disposition. In the course of its operation, Intec emptied a number of drums left at Midco # 1 by Midwest Solvent Recovery, Inc. These drums contained paint sludges. The sludges were properly processed and legal disposal was made. 14. On February 24, 1978, Judge Kaul of the Lake Circuit Court in Lake County, Indiana issued an injunction ordering Midwest Industrial Waste Disposal Company, Inc. to remove and properly dispose of fire-damaged drums of cyanide and other industrial wastes located at Midco # 1 and Midco # 2. This order was never obeyed. 15. In June, 1978, the Calumet City landfill to which Intec had been bringing poisonous wastes notified Intec that it would not receive such wastes. Although Intec did notify its customers that the landfill was closed, Intec continued to take drums of wastes from its customers and to store the drums at Midco # 1. In the course of Intec's tenure at Midco # 1, the number of 55-gallon drums stored on the site has swelled by at least 4,000. 16. The temporary restraining order issued by Judge Grant and directed to defendants V & E Corporation, Victor Kirsch, and Eva Kirsch expired on January 6, 1980 at 3:00 p. m. Shortly thereafter defendant V & E Corporation moved off of its property a number of drums and containers that had been placed on its property without its permission. V & E Corporation moved certain of these drums and containers onto Midco # 1 and others onto the properties of certain of the other defendants in this cause. 17. Defendants Victor Kirsch, John Kirsch, and Eva Kirsch are officers of V & E Corporation. 18. At the present time the perimeter of Midco # 1 is not fenced, there is easy access to the site, and the site is not otherwise secured or guarded. There are presently about 14,000 or so 55-gallon drums on the site. Drums are stacked on the ground or on top of each other, two, three or four drums high. The drums are not stored inside any buildings. Thousands of the *142 drums were damaged in the December 21, 1976 fire. Many other drums are rusted out and/or severely corroded. A number are in good condition. Large amounts of poisonous chemical wastes have permeated much of the topsoil at the site, whether because of purposeful dumping, spillage, or fire-induced or corrosion-induced seepage. Soil sampling done at Midco # 1 by the Indiana State Board of Health revealed that much of the Midco # 1 topsoil contained inordinately high amounts of chromium, arsenic, cyanide, lead and other poisonous materials. Topsoil at Midco # 1 contains the same materials in substantially the same concentrations as it did at the time of this sampling. In many of the drums at the site, one or several of a number of compounds are present. Among these compounds are: 2-methyldodecane, 2-methyltridecane, 2-methyltetradecane, pentadecane, undecane, xylene, methyl ethyl benzene, tetramethul-benzene, tolvene, m-cresol, and p-cresol. All of these compounds are quite flammable. Many are extremely flammable with dangerously low flashpoints. 19. Presently stacked on Midco # 2 in disarray are thousands of 55-gallon drums. The majority of these drums are fire-damaged. Other drums are badly corroded. Others are rusted to various degrees. Some drums are in good condition. At one time or another a fence has ringed the front and both sides of the Midco # 2 property. What fence that remains, however, is in such poor condition that it is not difficult for an individual to walk onto the Midco # 2 site. The site is not patrolled or otherwise secured. An underground tank dug into the ground at Midco # 2, presently filled with liquid and sludge and having a capacity of about 30,000 gallons, contains a number of dangerous nonorganic compounds in unsafely high concentrations. Among these compounds are cyanides, arsenic, cadmium, chromium, and lead. On inadvertently exposing his arm to the contents of the tank, an employee of the United States Environmental Protection Agency suffered a burning sensation and a discoloration of his arm. The burning subsided and the discoloration disappeared when his arm was washed with detergent. The drainage ditch running through the rear of Midco # 2 and eventually into the Grand Calumet River is polluted with arsenic and cadmium to a dangerous extent. In addition, many of the drums on the site contain cyanide residues in concentrations substantially exceeding levels that are safe. Dangerous wastes from many of these drums, moreover, are presently seeping through the drums and into and through the soil. 20. The chemical wastes that have entered and are entering the soil at Midco # 1 and at Midco # 2 and the nature of the soil at the two sites are such that the wastes have seeped and are seeping through the soil and have reached or will reach the water tables lying beneath the two sites. 21. Defendants Earnest de Hart and Lovie de Hart are both residents of Indiana. Neither de Hart can be found. II. Conclusions of Law A. Jurisdiction. A word must first be said about jurisdiction. Section 1345 of Title 28 of the United States Code is alone sufficient to permit in this cause exercise by the Court of subject matter jurisdiction. Jurisdiction over this action is also grounded, however, by § 7003 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6973. The Administrator of the United States Environmental Protection Agency has presented evidence that the chemical wastes present on Midco # 1 and on Midco # 2 are "solid wastes" or "hazardous wastes" as those terms are defined in § 1004 of the Act, 42 U.S.C. § 6903(5) and § 6903(27), that the chemical wastes so present are the objects of "storage" and "disposal" activity as those terms are defined in § 1004 of the Act, 42 U.S.C. § 6903(33) and § 6903(3), and that the storage and disposal of the wastes at the two sites presents an imminent and substantial endangerment to the health and the environment. By such presentation, the *143 Administrator demonstrated that he has standing to bring this action. He has met the evidentiary tests of jurisdiction established in § 7003 of the Act. B. Showing Necessary to the Granting of Preliminary Injunctive Relief. In determining whether the government should be afforded the preliminary injunctive relief it requests, the Court is guided by common law principles and by Rule 65 of the Federal Rules of Civil Procedure. The government insists that the issuance of a preliminary injunction in this case is also governed by the provisions of the Resource Conservation and Recovery Act and particularly by § 7003 of the Act. That statute provides: Notwithstanding any other provision of this chapter, upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste is presenting an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person for contributing to the alleged disposal to stop such handling, storage, treatment, transportation, or disposal or to take such other action as may be necessary. The Administrator shall provide notice to the affected State of any such suit. (42 U.S.C. § 6973). By brief, the government argues that § 7003 does more than simply in certain cases confer jurisdiction upon federal district courts and standing upon the Administrator. The government claims that the statute lays down certain tests. If these tests are met, so the argument goes, and if the government makes all of the showings deemed at common law to be prerequisites to preliminary injunctive relief, except the showing that the plaintiff would be irreparably harmed in the absence of such relief, then a preliminary injunction should issue. In effect, the government urges both that in petitions for preliminary injunctive relief jurisdictionally rooted in § 7003, a showing that activities present "an imminent and substantial endangerment to health or the environment" is sufficient and that irreparable harm to the plaintiff in the absence of preliminary injunctive relief need not be demonstrated. The Court disagrees. A number of factors make the construction of § 7003 more challenging than it otherwise might be. First, the legislature's explanation of the purpose and effect of § 7003 is quite sketchy. See H.R.Rep. No. 94-1491—Part I, 94th Cong., 2d Sess. 69 reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 6238, 6308. Nor does the legislative history of § 3004 of the Act, 42 U.S.C. § 6924, a provision prescribing performance standards for owners and operators of hazardous waste treatment, storage, and disposal facilities, identify the reasons why Congress enacted § 7003. Id. at 24, 27-29, 56-58. Second, to the knowledge of the Court, neither the function of § 7003 nor the identity of the groups of persons who may be subject to liability under this section is discussed in any reported decision. Third, Congress prescribed that regulations be promulgated pursuant to § 3004 of the Act by the Administrator of the Environmental Protection Agency not later than April 21, 1978. 42 U.S.C. § 6924. Unfortunately, these regulations, which might aid in the construction of § 7003 of the Act, have not yet been promulgated. Even so, the Court is persuaded for a number of reasons that § 7003 of the Act is in purpose only jurisdictional. First, § 7003 is not a part of Subchapter 2 of the Act, a group of provisions which sets down duties which must be discharged if liability under the Act is to be avoided. Rather, § 7003 is placed in Subchapter 7 of the Act and is described in the Act as a "miscellaneous" provision. Second, the section that immediately precedes § 7003 is a private attorney general provision that confers standing for purposes of enforcing the Act upon any "person," as that term is defined in § 1004(15) of the Act, 42 U.S.C. § 6903(15). Section 7002 does not, however, confer standing for this purpose upon the United *144 States. Because the drafters of the Act would have been impelled by logic to organize the Act so as to place provisions relating to standing and jurisdiction in the same portion of the Act, the placement of the provision entitled § 7003 in immediate proximity to the provision entitled § 7002 is further evidence that § 7003 was not meant to create substantive tests of liability under the Act. Third, because § 7003 is as broadly worded as it is, if it were intended to function as a liability-creating provision, it would appear to make liable even those who contribute to the handling, storage, treatment, transportation or disposal of solid or hazardous wastes in such a way that an imminent and substantial endangerment to health or the environment is created. Any provision that could logically be read so to expand the set of persons liable under the federal solid and hazardous waste regulatory scheme would surely be identified as such in the legislative history. Finally, the Act elsewhere establishes by regulations the standards of conduct that must be followed by those who generate, transport, or own or operate facilities that treat, store, or dispose of hazardous wastes. 42 U.S.C. §§ 6922, 6923, and 6924. In sum, the Court finds that the tests of when preliminary injunctive relief may issue in cases brought under the Act, are provided not by § 7003, but by Federal Rule of Civil Procedure 65 and by the common law. The tests identified in § 7003 are merely evidentiary tests which, if satisfied, permit the Administrator to petition in some situations for immediate injunctive relief. In the great majority of controversies that the Court can envision that involve the disposal, storage, treatment or handling of solid or hazardous wastes, if an endangerment of the sort described in § 7003 can be made out, the common law prerequisite to the issuance of preliminary injunctive relief will also be existent. But in those actions in which plaintiff shows a § 7003 endangerment but fails to demonstrate that in the absence of preliminary injunctive relief irreparable harm will result, a preliminary injunction cannot issue. The test to which petitions for preliminary injunctive relief must be put has been clearly enunciated. While ordinarily the function of a preliminary injunction is to preserve the status quo until a final determination upon the merits can be made, situations may arise which justify the issuance of those sorts of temporary injunctions that require the defendant to take affirmative actions. Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978). Whatever relief is requested, a preliminary injunction can issue only upon findings that: 1) the plaintiff has no adequate remedy at law and will be irreparably harmed if the injunction is not imposed, 2) the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant, 3) the plaintiff has at least a reasonable likelihood of success on the merits and 4) the granting of the preliminary injunction will not disserve the public interest. Burns v. Paddock, 503 F.2d 18, 28 (7th Cir. 1974); Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976). See Citizens Energy Coalition of Indiana v. Sendak, 594 F.2d 1158, 1162 (7th Cir. 1979). A preliminary injunction is an extraordinary remedy. The burden of persuasion as to each of these findings rests upon the plaintiff. Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d at 1097. C. Propriety of Preliminary Injunctive Relief in Case at Bar. The preliminary injunctive relief that the Court will now afford the government requires that Midco # 1 be secured and partially cleaned up and that no receptacles of chemical waste on Midco # 2 be moved. The record leaves no doubt of the shocking condition in which Midco # 1 and Midco # 2 now exist. Consequently, the Court has little difficulty in finding that the four common law prerequisites to preliminary injunctive relief are here satisfied. If no injunction issues, poisons at the two sites will continue to seep out of drums, into the soil, and into the underground water channels; plaintiff and its citizenry will be *145 irreparably harmed. Plaintiff and its citizenry presently face grave threats of injury from fire that may erupt at Midco # 1, from physical exposure to the contents of the open pit of poisons at Midco # 2, from physical exposure to the contents of the leaking drums at both sites, and from ingesting water contaminated by the wastes that have seeped and are seeping through the soil at the two sites. The Court is fully satisfied that these injuries with which certain of the citizens of plaintiff are threatened greatly outweigh the hardship that may be worked on the defendants by the relief the Court prescribes. Moreover, the Court specifically finds that the temporary relief here ordered will not disserve the public interest and that plaintiff has more than a reasonable likelihood of eventually prevailing on the merits. III. Preliminary Injunctive Relief Prescribed The Court, having read plaintiff's motion for preliminary injunctive relief and being duly advised in the premises hereby GRANTS plaintiff's motion IN PART. The Court ORDERS and ADJUDGES that: 1. Summons shall be served by publication in accordance with Indiana Trial Rule 4.13 upon defendants Lovie and Earnest de Hart. 2. Defendant Intec shall within one (1) week of this Order erect a fence on the eastern and northern boundaries of the Midco # 1 property. 3. No party shall move any drums, tanks, containers, cartons, chemicals, or chemical residues that are presently located on Midco # 1 or Midco # 2, except as permitted by section III (4) of this Order or by future written decree of the Court. 4. Defendant Intec shall proceed in good faith and with all due diligence to remove from Midco # 1 and to dispose of in a fashion consistent with law all drums, cartons, or other receptacles that contain or have contained chemical residues and that either are circled in red ink on Government Exhibit 8 or have been brought onto Midco # 1 since October 19, 1977 or contain a type of paint solvent that Intec has processed at some time at Midco # 1. In the course of removing said receptacles at Midco # 1, fire-damaged receptacles may be placed on top of fire-damaged receptacles but not on top of receptacles that are not fire-damaged. Intec shall engage in no receptacle removal activity without first giving reasonable notice to the United States Environmental Protection Agency. Intec shall permit a representative of the Environmental Protection Agency to be present as an observer on Midco # 1 during any removal activity. Moreover, after the filing of this Order, Intec shall make a thorough investigation of the condition of Midco # 1 once per week. Should Intec find at any time that the condition of the site or of the receptacles on the site has appreciably changed since January 9, 1980, Intec shall immediately report such change in condition to the Court. 5. When defendant Intec proceeds to remove receptacles from Midco # 1 in compliance with this Order, defendant V & E Corporation, by means of receptacle-removing equipment, shall make a way of ingress and egress on the part of Midco # 1 that lies near 15th Avenue. V & E Corporation shall maintain such way for a reasonable period of time to permit Intec to remove receptacles from Midco # 1. 6. Defendants Miletich shall report to the Court within one (1) week of the date of this Order the nature of the efforts they will make to remove from their property chemical wastes. 7. Defendants Vic Kirsch, John Kirsch, and Eva Kirsch shall be dismissed as party defendants to this cause.

Slip Op. 00-77 UNITED STATES COURT OF INTERNATIONAL TRADE ____________________________________ : POHANG IRON AND STEEL CO., LTD., : POHANG COATED STEEL CO., LTD., AND : POHANG STEEL INDUSTRIES CO., LTD., : : Plaintiffs, : : v. : : Consol. Court No. THE UNITED STATES, : 98-04-00906 : Defendant, : : and : : PUBLIC VERSION NATIONAL STEEL CORPORATION; U.S. STEEL : GROUP - A UNIT OF USX CORPORATION; : INLAND STEEL INDUSTRIES, INC.; : BETHLEHEM STEEL CORPORATION; AND LTV : STEEL CO., INC., : : Defendant-Intervenors. : : NATIONAL STEEL CORPORATION, et al., : : Plaintiffs, : : v. : : THE UNITED STATES, : : Defendant, : : and : : POHANG IRON AND STEEL CO., LTD., et al.,: : Defendant-Intervenors, : : and : : UNION STEEL MANUFACTURING CO. LTD., : : Defendant-Intervenor. : ________________________________________: CONSOL. COURT NO. 98-04-00906 PAGE 2 [Antidumping duty remand determination affirmed in part and remanded in part.] Dated: July 6, 2000 Akin, Gump, Strauss, Hauer & Feld, LLP (Sukhan Kim, Spencer S. Griffith, J. David Park, and Sydney H. Mintzer) for the POSCO Group. David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michele D. Lynch), Linda S. Chang, and Bernd G. Janzen, Office of the Chief Counsel for Import Administration, Department of Commerce, of counsel, for defendant. Dewey Ballantine LLP (Michael H. Stein, Bradford L. Ward, Jennifer Danner Riccardi and Andrew J. Conrad) for National Steel Corporation, et al. Kaye, Scholer, Fierman, Hays & Handler, LLP (Donald B. Cameron, Julie C. Mendoza and Paul J. McGarr) for Union Steel Manufacturing Co., Ltd. OPINION RESTANI, Judge: This matter is before the court following remand. See Final Results of Redetermination Pursuant to Court Remand: Pohang Iron and Steel Co., Ltd. v. United States, Consol. Ct. No. 98-04-00906 (Feb. 22, 2000) [hereinafter “Remand Results” or “RR”]. The court ordered the United States Department of Commerce (“Commerce” or “the Department”) to explain or reconsider (1) its determinations CONSOL. COURT NO. 98-04-00906 PAGE 3 that the Posco Group’s1 U.S. sales were constructed export price (“CEP”) sales as opposed to export price (“EP”) sales, (2) U.S. indirect selling expenses for the Posco Group, and (3) Union Steel Manufacturing Co., Ltd.’s (“Union”) claim of free U.S. warehousing for one verification observation. Pohang Iron and Steel Co. v. United States, No. 98-04-00906, 1999 WL 970743, at *19 (Ct. Int’l Trade Oct. 20, 1999) [hereinafter “Pohang I”]. Familiarity with the court’s prior opinion herein is presumed. See id. The issues will be addressed in reverse order. Jurisdiction and Standard of Review The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1994). In reviewing final determinations in antidumping duty investigations and reviews, the court will hold unlawful those agency determinations which are unsupported by substantial evidence on the record, or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1994). 1 The plaintiffs herein, Pohang Iron and Steel Co., Ltd. (“POSCO”), Pohang Coated Steel Co., Ltd. (“POCOS”) and Pohang Steel Industries Co., Ltd. (“PSI”) are collectively referred to as the “POSCO Group”. CONSOL. COURT NO. 98-04-00906 PAGE 4 Discussion I. Union Warehousing Expense Although Commerce complains mightily that the court has required an unreasonable amount of verification activity or evidentiary support for its conclusion that Union had no warehousing expense for a particular sale, the court disagrees. See RR at 17-20 & 46. The particular aspect of the verification at issue involved a very small sample. Pohang I, 1999 WL 970743, at *15. In such a situation, the individual observations are important. It was the verifiers’ obligation to state their conclusions accurately, whether based on oral statements or documentary evidence. Further, they needed to include in the record enough of a trail for the court to determine if their conclusions were supported. In this case, a domestic industry participant discovered a disconnect in the verification report. Id. at *16. It was up to the parties to resolve this issue by reference to the record the first time the issue was presented to the court. The explanation provided at that time was incomplete and partially incorrect. Id. at *18. On remand, review of the record revealed that a different Union sales contractual arrangement from the one originally discussed applied to the CONSOL. COURT NO. 98-04-00906 PAGE 5 observation at issue, Observation 83.2 RR at 45. Either the company’s statement to the verifier or the verifier’s report of it contained errors or ambiguities. Id. at 44-45. When the supporting documentation reveals contradictions or commercially nonsensical practices in a respondent’s explanations, the verifier cannot simply accept them and move on, as Commerce seems to assert. See Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (finding that substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). In any case the ambiguity has now been resolved by reference to sales information of record which is discussed in confidential footnote 2. As the court found no problems with the rest of the verification as to warehousing expenses, Commerce’s determination on this issue is now sustained. II. POSCO Group’s U.S. Indirect Selling Expenses Because the POSCO Group, adhering to its position that use of CEP information was not appropriate, specifically declined on at least two occasions to provide information on 2 The contract reviewed by Commerce with respect to observation 83 apparently was between [ ] and [ ], a Union customer. RR at 45. The Union sales contract terms were [ ]. Presumably Union would incur no warehousing expenses in such a situation. CONSOL. COURT NO. 98-04-00906 PAGE 6 U.S. indirect selling expenses, Commerce used facts available. Pohang I, 1999 WL 970743, at *14. The court has already approved the use of facts available for POSCO, if an adjustment is necessary in U.S. indirect selling expenses to account for an interest expense. See id. at *15. POSCO asserts that such an adjustment is neither necessary nor permissible. It states that Commerce improperly changed its methodology after the final results had issued to include the interest expense, and that Commerce did not simply correct a ministerial error. Id. at *14. The court found Commerce’s explanation wanting and remanded the issue. Id. at *15. Commerce has now embraced the suggestion from the court that perhaps its indirect selling expense calculation involved a partial adverse facts available selection. Id. at *15, see also Remand Results, at 14-17. Indeed, the court has no problem with that selection because there is no reason to believe POSCO could not have complied with Commerce’s request, and POSCO’s decision not to comply was purposeful. Accordingly, use of adverse facts available was permissible under 19 U.S.C. § 1677e(b) (1994). The threshold problem, however, is that Commerce is permitted to change the indirect expenses calculation after the final results are issued only if Commerce originally calculated such expenses incorrectly CONSOL. COURT NO. 98-04-00906 PAGE 7 because of ministerial error. See 19 U.S.C. § 1675(h) (1994) (ministerial errors to be corrected within a reasonable time after final determinations are issued). On remand, Commerce clarified that it intended to include a number of items in indirect expenses even though under normal circumstances it might exclude those items in order to avoid double counting of expenses already counted, e.g., as direct expenses. RR at 40-42. Because POSCO did not submit specific CEP indirect expense information, Commerce alleges that it cannot be certain that double counting would occur. Id. at 41-42. Therefore, this alleged uncertainty with respect to double counting caused Commerce, in fulfilling the adverse inference it had drawn, to include the interest expense at issue in indirect selling expenses. Id. Commerce, however, failed to program its computer accordingly. Id. The type of correction Commerce describes is a ministerial error correction. See 19 C.F.R. § 351.224(f) (1999) (noting that arithmetic function is ministerial error). As to a related adjustment, in its remand determination Commerce failed to clarify expressly, as instructed by the court, why it rejected POSCO’s own claim of ministerial error as to bank charges and commissions adjustments to indirect sales expenses. RR at 37. The court nevertheless surmises CONSOL. COURT NO. 98-04-00906 PAGE 8 from Commerce’s explanation as to interest that certain commissions and bank charges also were included in the original final results calculation because of Commerce’s belief that there was a lack of POSCO information demonstrating double counting. Thus, Commerce concluded no post-final results ministerial error change in POSCO’s favor was warranted.3 It is probably reasonable in a facts available situation, and clearly so in an adverse facts available setting, to put the risk of double counting on the delinquent party. This would be the normal result of drawing an adverse inference. POSCO alleges, however, that there was adequate data in the record to make clear that Commerce’s method double counted. Commerce cannot use information which is known to be incorrect. D & L Supply Co. v. United States, 113 F.3d 1220, 1223 (Fed. Cir. 1997). Thus, the question now presented to the court is whether the record demonstrates that Commerce 3 In Commerce’s supplemental brief, it confirms that the treatment in methodology as to claimed corrections for both interest and bank charges and commissions is consistent, as the court surmised. Commerce’s Supp. Br. at 2 (May 17, 2000). Because Commerce intended to include bank charges and commissions there was no ministerial error which could be corrected post-final results as to commissions and bank charges, and POSCO’s claim fails. Ministerial Analysis Memorandum (Apr. 15, 1998), at 3, P.R. Doc. 216, Def.’s Pohang I Public App., Ex. 18, at 2. CONSOL. COURT NO. 98-04-00906 PAGE 9 incorrectly included POSCO’s interest expenses in the U.S. indirect selling expenses figure.4 First, Commerce normally makes a direct selling expense adjustment based on an imputed credit expense for individual sales, which it did here. The imputed credit expense, which is not a separate actual expense figure, is excluded from the total interest expense figure used to calculate indirect selling expenses. New Minivans from Japan, 57 Fed. Reg. 21,937, 21,956-57 (Dep’t Commerce 1992) (final LTFV det.) (excluding imputed credit expense on individual sales as part of indirect selling expenses); see also Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, 56 Fed. Reg. 31,692, 31,721 (Dep’t. Commerce 1991) (final results of antidumping duty admin. rev.) (Commerce “reduced interest expense on the firm’s books for a portion of [imputed credit] expense . . . to avoid double-counting.”). The court sees no reason which would justify this known double counting here. No specific additional information from POSCO is necessary to eliminate this particular double counting. Nonetheless, the court 4 The court does not hold that such specific partial adverse facts available data must be used, but Commerce chose this method and must follow all facts available procedures that flow from its choice. CONSOL. COURT NO. 98-04-00906 PAGE 10 accepts Commerce’s explanation that it may make some indirect selling expense adjustment with respect to interest expenses because it lacks the information to determine if the imputed credit deduction covered all sales-related interest expenses. See RR at 42. Accordingly, while here the imputed credit figure must be subtracted from the total interest figure, interest expenses may generally be included in the indirect selling expense adjustment where the respondent has not provided full CEP expense data. Second, POSCO asserts that the interest figure largely relates to non-subject merchandise, that Commerce’s allocation of interest expenses between subject and non-subject is incorrect, and that interest expenses should be allocated based on the relationship that a specific non-subject merchandise business asset bears to total assets.5 Commerce is not required to use this method of allocation if it is already allocating interest expenses on another acceptable subject - non-subject merchandise basis. The problem is that the ratio of subject merchandise revenue to total revenue may not account for the revenue generated by the separate business asset because this figure 5 The specific business asset is [ ]. POSCO’s Comments on Remand at 11-16. CONSOL. COURT NO. 98-04-00906 PAGE 11 may not be included in the POSCO group’s balance sheets. See Commerce’s Supp. Br. at 12-13 (May 17, 2000). Commerce states it cannot tell which interest expenses are related to the separate business asset and cannot deduct such interest expenses from the total to be allocated. Thus, it implies that it accepts the possibility that its allocation may be distortive. Had POSCO submitted all the data required by Commerce, the court might be sympathetic to its arguments that Commerce does not need any more information because it can allocate on an asset basis, and that Commerce never requested the data. Had Commerce received all the information it requested, it might have been led to ask for this additional data. It also seems improper under adverse inference circumstances to require Commerce to abandon its normal allocation methods because POSCO’s methods might be better. AK Steel Corp. v. United States, 988 F. Supp. 594, 606 (Ct. Int’l Trade 1997) (“[T]he [c]ourt’s role is not to determine whether the information chosen was the ‘best’ actually available.” ) (quotation omitted), aff’d 1999 U.S. App. Lexis 15023 (Fed. Cir. 1999). Further, because of the odd financial structure at issue and POSCO’s lack of cooperation, the court cannot say that Commerce is incorrect in focusing on debt financing as CONSOL. COURT NO. 98-04-00906 PAGE 12 opposed to taking a broader view of financing. Accordingly, Commerce is not required to allocate the interest expense on the basis of the relationship of the separate business asset to total assets. Third, POSCO objected that the normal practice of deducting interest income from interest expenses was not followed. POSCO did not explain its objections in terms of specific calculations, clarify whether only short term interest was at issue or whether interest income was deducted from imputed credit. Despite Commerce’s lack of response on this point, the court finds POSCO’s objection insufficient.6 Finally, the court finds arguments with respect to freight expenses and other periods of review irrelevant to this matter. Accordingly, for purposes of the indirect selling expenses adjustment, Commerce shall adjust the interest expense figure removing previously deducted imputed credit expenses. III. Use of Constructed Export Price for POSCO Group’s U.S. Sales All parties agree that the Federal Circuit’s decision in 6 Only in its response to Commerce’s supplemental brief did POSCO make its objection to the remand results on this issue with any specificity. This was too late. CONSOL. COURT NO. 98-04-00906 PAGE 13 AK Steel Corp. v. United States impacts this case. 203 F.3d 1330 (Fed. Cir. 2000). It involves the same parties, the same product, and the same commercial patterns. In AK Steel, the Federal Circuit rejected Commerce’s longstanding three-part test for selecting EP versus CEP treatment for U.S. sales. Id. at 1339-40. The court held that the additional words of 19 U.S.C. § 1677a (1994), “outside the United States” and “by a seller affiliated with the producer” in the respective definitions of EP and CEP are significant. Id. at 1337. It found that the additional words invalidated the prior administrative practice; whereas this court, in the absence of contrary legislative history, had recognized the additional words to be mere clarification. Compare AK Steel, 203 F.3d at 1338-39, with AK Steel Corp. v. United States, 34 F. Supp.2d 756, 762 (Ct. Int’l Trade 1998), aff’d in part, rev’d in part by 203 F.3d 1330. The Court of Appeals declared the statute wholly unambiguous and unambiguously eliminated Commerce’s three-part test to determine whether sales by domestic affiliates rendered the sales subject to EP or CEP treatment. AK Steel, 203 F.3d at 1337-40. No one has asserted that the U.S. sales at issue were not made pursuant to contracts signed by the U.S. affiliates and the U.S. customers in the United States. Under AK Steel’s CONSOL. COURT NO. 98-04-00906 PAGE 14 geographic approach, the sales are subject to CEP treatment.7 That is all that remains of this issue and further remand, as the domestic parties request, would serve no purpose in this case. Conclusion This matter is remanded to correct the indirect selling expenses adjustment as stated in this opinion. Remand is due within 30 days. The parties may object within 11 days thereafter. ______________________ Jane A. Restani Judge Dated: New York, New York This 6th day of July, 2000. 7 The court does not mean to imply that a U.S. affiliate and a U.S. customer could sign a contract in the Barbados to avoid CEP treatment. If both contractual parties are U.S. entities operating in the U.S. under AK Steel, the sale will be a CEP sale. See AK Steel, 203 F.3d at 1339-40. 

868 F.2d 1267 Dwivediv.Vice Consul NO. 88-6222 United States Court of Appeals,Second Circuit. DEC 30, 1988 1 Appeal From: E.D.N.Y. 2 AFFIRMED.

78 U.S. 610 20 L.Ed. 223 11 Wall. 610 DUNPHYv.KLEINSMITH AND DUER. December Term, 1870 APPEAL from the Supreme Court of the Territory of Montana. The case was that of a creditor's bill filed by Kleinsmith, one appellee, against E. M. Dunphy, the appellant, and one Benajah Morse, surviving partner of Elkanah Morse, on behalf of himself and all other judgment creditors, to obtain satisfaction of a judgment recovered by Kleinsmith on the 12th of March, 1868, for $16,957. The bill alleged that an execution issued on the judgment was returned wholly unsatisfied, and that no part of the judgment had been paid. It then charged that on the 31st of October, 1867, Morse and his brother Elkanah (then living) executed to Dunphy a mortgage to secure the payment of $30,000 in one year from date, covering property to the amount of $70,000, including a ranch in the county of Gallatin, containing 640 acres of land, with two-thirds of the crops and all the stock thereon, embracing 225 head of cattle, and all the goods in their store at Gallatin, together with the lot and storehouse and all the book accounts and evidences of debt of E. & B. Morse. The bill stated that at the time of executing this mortgage the Morses were largely indebted to different persons, and charged that it was made to hinder, delay, and defraud the creditors of the firm, and was not accompanied by change of possession; but that the Morses continued in possession for several months, selling and disposing of the goods for their own benefit. It further charged that the Morses did not owe Dunphy any such amount as $30,000; did not, in fact, owe him more than $6000 or $7000, the balance being fictitious; and that both Dunphy and the Morses had acknowledged as much to different persons. The bill further charged that, by means of this fraudulent mortgage and fictitious debt, Dunphy had prevented the plaintiff and other judgment creditors of E. & B. Morse from collecting their just demands; that Dunphy had claimed title to the property under the mortgage, and had forbidden the sheriff to levy upon it, and that consequently the sheriff had refused to do so, and that Morse and Dunphy were engaged in disposing of the property, and that Dunphy had already got more than $30,000 therefrom. The bill prayed that the mortgage might be declared fraudulent and void; that a receiver should be appointed to hold the property, and that if what was left should not be sufficient to satisfy the complainant and other judgment creditors, Dunphy might be made personally liable for the deficiency. By an amended bill the complainant alleged that, on the 3d of January, 1868, Morse executed to Dunphy an assignment of all the property embraced in the mortgage, and authorized him to sell and dispose of it with due regard to his own interests and the interests of the creditors of E. & B. Morse; but that, notwithstanding the assignment, Morse still continued in possession and control of the property for several months, and to sell the same and collect the proceeds thereof; and that the assignment was fraudulent and void. To this bill Dunphy filed an answer, insisting on the bona fides of his debt, and setting forth that it consisted of $12,500 for a stock of goods sold to the Morses, and $10,000 for money lent to them at the date of the mortgage, the balance being for interest to accrue during the year the mortgage had to run, namely, one per cent. a month on the former sum, and five per cent. a month on the latter, which was allowed by the laws of the Territory. The appellee, Duer, recovered a judgment against Morse on the same day that Kleinsmith's was entered, failed to obtain satisfaction, and filed a petition to intervene as a co-complainant in the suit, and was admitted to intervene accordingly. The cause was put at issue and came on for trial in March, 1869. It appeared that by an act of the Territorial legislature of Montana, passed in December, 1867, it was declared: 'SEC. 1. That there shall be in this Territory but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs.' And, 'SEC. 155. That an issue of fact shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as provided in this act.' By another act, passed in January, 1869, it was provided: 'That in all civil cases, if three-fourths of the jurors agree upon a verdict, it shall stand and have the same force and effect as if agreed upon by the whole of the jurors.' The cause was tried in pursuance of these provisions of the Territorial law. In order to present distinct issues for trial the court framed a series of questions (twenty-two in number), and submitted them to the jury: as '1st. Did E. & B. Morse retain possession and control and continue to dispose of the property mortgaged after the execution of their mortgage to E. M. Dunphy on the 31st day of October, 1867? '2d. State whether B. Morse, after the 3d day of January, 1868, continued to remain in possession of the property assigned to Dunphy, and also to exercise control over it, and to sell and dispose of it? '4th. Did E. & B. Morse owe E. M. Dunphy $30,000 at the time of the execution of their mortgage to him on the 31st day of October 1867?'9th. Did the mortgage to Dunphy prevent the collection of the judgments of Kleinsmith and Duer? '17th. Was the mortgage to Dunphy executed and accepted for the purpose of covering up the property of E. & B. Morse, and delaying or preventing the collection of demands found against them or either of them?' &c., &c. To all these questions nine of the jury returned answers adverse to Dunphy and favorable to the complainants, and three dissented. This verdict was rendered on the 25th of March, and accepted by the court, and on the 3d of April a decree was made, which, after reciting the principal findings of the jury, proceeded as follows: 'It is therefore ordered, adjudged, and decreed that the said mortgage from E. & B. Morse to E. M. Dunphy for $30,000 be set aside as fraudulent and void, and of no effect, and that the said plaintiffs recover of the said E. M. Dunphy the sum of $35,737, the amount of plaintiffs' judgments, interest, and costs, together with the costs of this action, taxed at $7149; that the said judgments be credited by the money in the possession of the receiver in the above cause, and that plaintiffs have execution against the said Dunphy for the residue of said judgment after such credit has been entered.' This judgment was rendered in the District Court for the third judicial district of the Territory. It was taken to the Supreme Court and affirmed. An appeal was then taken to this court. The principal question presented by this case was whether these proceedings, conducted in the manner stated, could be sustained. By the organic act constituting the Territory of Montana, passed by Congress May 26th, 1864, section 6, the legislative power of the Territory was declared to extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of that act. By the 9th section provision was made for establishing various courts of the Territory, namely, a Supreme Court, District Courts, Probate Courts, and justices of the peace; and it was enacted that the Supreme and District Courts, respectively, should possess chancery as well as common-law jurisdiction. By the 13th section it was declared that the Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within the Territory as elsewhere in the United States. These were the only provisions of the organic law which were referred to in the argument. Mr. Lyman Trumbull, for the appellant; Messrs. F. A. Dick, J. O. Broadhead, and A. M. Woolfolk, contra. Mr. Justice BRADLEY, having stated the case, delivered the opinion of the court, as follows: 1 From the provisions of the organic law, which have been referred to in the argument, it is apparent that the Territorial legislature has no power to pass any law in contravention of the Constitution of the United States, or which shall deprive the Supreme and District Courts of the Territory of chancery as well as common-law jurisdiction. 2 This case was clearly a case of chancery jurisdiction, and one necessarily requiring equitable, as distinguished from legal, relief. The property, according to the charge of the complainant, had been put beyond the reach of the ordinary process of the law. It had been disposed of by the assistance and through the co-operation of Dunphy in such a manner that the judgment creditors could not find it to satisfy their claims, or, if found, it was held by Dunphy under cover of an assignment, which, prim a facie, gave him the legal title. This is what is charged by the judgment creditors. They further charge that this was a fraudulent contrivance to hinder and delay them in the recovery of their debts. In a country or territory where the systems of common law and chancery both substantially prevail, it is perfectly clear that chancery only could give adequate relief in such a case. And, then, the case was instituted and the pleadings were framed strictly in accordance with this view. The bill is strictly a bill in chancery praying for equitable relief. 3 Now, it is perfectly obvious that, with the exception of the verdict being rendered by nine jurors, the trial was altogether conducted as a trial at common law, and that the decree was rendered on the verdict precisely as a judgment is rendered on a verdict at common law. This was clearly an error. The case, being a chancery case, and being instituted as such, should have been tried as a chancery case by the modes of proceeding known to courts of equity. In those courts the judge or chancellor is responsible for the decree. If he refers any questions of fact to a jury, as he may do by a feigned issue, he is still to be satisfied in his own conscience that the finding is correct, and the decree must be made as the result of his own judgment, aided, it is true, by the finding of the jury. Here the judgment is pronounced as the mere conclusion of law upon the facts found by the jury. 4 Again: In an equitable proceeding of this kind, a decree in the nature of a judgment for damages cannot be rendered against the defendant who is alleged to have taken a fraudulent assignment of the property. The decree against him must be a decree for an account. He must be called to account for just what property has come into his hands, and no more; and he will be entitled, under ordinary circumstances, to a rebate for the amount that was justly and honestly his due. The mode of taking such an account is well known in equity proceedings. The defendant is to exhibit an account either in his answer or in the master's office, and if it is not satisfactory to the complainant, it may be surcharged or falsified; and, as the account is finally found to stand, so will the responsibility of the defendant be. But if the complainant wishes to make him answerable in damages, either for the waste of the property or for its disposal by the original proprietor by aid of the wrongful complicity of the defendant, he must sue for damages in an action at law. 5 No account of the kind, or in the maner indicated, seems to have been taken at all. The suit was tried like an action for damages, and the jury were left to say, in brief, whether or not the complainants could have made their money on execution had it not been for the mortgage and assignment to the defendant. The jury answered that they could, and the defendant was made personally liable for the whole amount. 6 Without attempting to decide whether the Territorial legislature had or had not the power to legalize a verdict rendered by three-fourths of a jury, we think the proceedings were erroneous, and the decree must be REVERSED and the cause remanded for further proceedings 7 IN CONFORMITY WITH THIS OPINION.

493 S.W.2d 509 (1973) W. J. ANDERSON et al., Petitioners, v. A. R. CASEBOLT, Respondent. No. B-3643. Supreme Court of Texas. January 17, 1973. *510 Elton M. Hyder, Fort Worth, for petitioners. Cantey, Hanger, Gooch, Cravens & Munn, Robert S. Travis, Fort Worth, for respondent. PER CURIAM. Anderson and another sued Casebolt to recover either the contract price or the fair market value of a boat house built by Anderson upon the property of Casebolt. The trial court rendered judgment for defendant Casebolt and the court of civil appeals affirmed. 484 S.W.2d 462. We conclude that the court of civil appeals was without jurisdiction to entertain the appeal because the cash deposit in lieu of a cost bond was not made within the thirty-day period required by Rule 356.[1] The judgment in this case was first signed by the trial judge on August 18, 1971. For purposes of timing the appellate steps, the judgment is deemed rendered that day. Rule 306a. The trial judge then attempted to set that judgment aside and render the same judgment a second time on September 20, 1971. Plaintiffs filed an original motion for new trial on September 30 and an amended motion for new trial on October 20. The trial court entered an order on December 8 purporting to overrule the amended motion for new trial, and a cash deposit in lieu of a cost bond was made on December 30, 1971. As we pointed out in A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853 (1952), the trial court may not make an order that simply affirms a former judgment and thereby enlarge the period for perfecting an appeal. See also Brown v. Vander Stucken, 435 S.W. 2d 609 (Tex.Civ.App.—San Antonio 1968, no writ); Chantre v. National Maritime Union P. & W. Plan, 425 S.W.2d 659 (Tex. Civ.App.—Beaumont 1968, no writ); Fireman's Fund Insurance Company v. Martinez, 387 S.W.2d 443 (Tex.Civ.App.—Austin 1965, writ ref'd n. r. e.); Bellmead State Bank v. Campbell, 386 S.W.2d 205 (Tex.Civ.App.—Waco 1964, no writ). Cf. City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971). The two judgments in this case are identical except for the date of entry, and the second judgment could serve no purpose other than to enlarge the time for appeal. This conclusion is supported by the trial judge's recital in the order of September 20: "WHEREAS, ... counsel for plaintiff did not discover such entry [of August 18] until too late to file a motion for new trial ...." *511 The signing of the second judgment on September 20 did not extend the time for perfecting the appeal, and it was necessary for the cost bond or deposit in lieu thereof to be filed within thirty days after the original judgment was rendered on August 18. The deposit on December 30 was too late, and the court of civil appeals did not acquire jurisdiction of the appeal. Under the provisions of Rule 483, the judgment of the court of civil appeals is reversed and the appeal is dismissed. See McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). NOTES [1] All references are to the Texas Rules of Civil Procedure.

540 U.S. 967 GEREMIAv.LAS VEGAS METROPOLITAN POLICE DEPARTMENT ET AL. No. 03-264. Supreme Court of United States. October 20, 2003. 1 Appeal from the C. A. 9th Cir. 2 Certiorari denied. Reported below: 45 Fed. Appx. 825.

STATE OF MICHIGAN COURT OF APPEALS ESTATE OF AURA ARGENTINA PEREZ, by UNPUBLISHED JENNY NASYELLY PEREZ, Personal December 4, 2018 Representative, and RUBEN PEREZ, Plaintiffs-Appellees/Cross- Appellants, v No. 340082 Wayne Circuit Court HENRY FORD HEALTH SYSTEM, LC No. 15-014697-NH Defendant-Appellant/Cross- Appellee, and DANIEL MORRIS,M.D., DR. FRANK MCGEORGE, DR. OLESYA KRIVOSPITSKAYA, DR. TAREK TOUBIA, DR. MICHELLE SLEZAK, DR. GREGORY HAYS, DR. HEATHER EVANSON, DR. E. JENKINS BROWN, DR. DENISE LEUNG, DR. LAURIE ROLLAND, VIVEK RAI, M.D., DR. ANDREW RUSSMAN, DR. SATHYAVANI RAMANUJAM, and DR. ASHA SHAJAHAN, Defendants. Before: SHAPIRO, P.J., and CAVANAGH and K. F. KELLY, JJ. PER CURIAM. Defendant appeals by leave granted an order denying its motion to strike plaintiffs’ expert witness, Dr. Chitra Venkatasubramanian, and for summary disposition under MCR 2.116(C)(10). We reverse in part and affirm in part. On cross-appeal, plaintiffs challenge an order denying their motion for leave to file a second amended witness list. We reverse. On November 13, 2010, plaintiff’s decedent Aura Perez went to defendant’s emergency room with complaints that included hand numbness, difficulty walking, headache, and shortness of breath. She died on November 18, 2010. In this medical malpractice action, plaintiffs -1- contend that Dr. Howard Feit, a board-certified general neurologist, failed to diagnose an acute peripheral or neuropathic disease process, likely botulism, which led to paralysis of breathing muscles, respiratory failure, and death. Plaintiffs’ complaint was filed on November 11, 2015, with an affidavit of merit by Dr. Venkatasubramanian. On February 27, 2017, a stipulated order was entered naming the parties’ expert witnesses and striking extraneous experts from their witness lists. On March 7, 2017, the deposition of Dr. Venkatasubramanian was taken. On May 1, 2017, defendant filed a motion to strike plaintiffs’ expert witness, Dr. Venkatasubramanian, under MCL 600.2169(1), and for summary disposition under MCR 2.116(C)(10). Defendant argued that Dr. Venkatasubramanian is not qualified to testify regarding whether general neurologist Dr. Feit met the standard of care. Relying on MCL 600.2169(1), defendant argued that Dr. Venkatasubramanian’s testimony showed that she did not spend a majority of her professional time practicing in the area of general neurology. In particular, defendant noted that Dr. Venkatasubramanian testified that she is board certified in neurology, neurocritical care, and vascular neurology; neurocritical care and vascular neurology are subspecialty board certifications of neurology. Dr. Venkatasubramanian also testified that she is a clinical associate professor of neurology. In the relevant time period, November 2009 through November 2010, about 20-25% of her professional time was spent in education and research, while 75-80% of her time was spent in clinical practice. Of her clinical practice, 60- 65% was spent as a “neurointensivist,” with the rest of her time split between general neurology and vascular neurology.1 As a neurointensivist, she saw patients in the emergency room and in the neurointensive care unit. More specifically, Dr. Venkatasubramanian testified: Q. . . . So 60 to 65 percent of your time was devoted to work as a neurointensivist, and we’re talking 2009-2010; is that accurate? A. So of my clinical time, 60 to 65 percent was as a neurointensivist. The rest of my clinical time was split between vascular neurology and general neurology. Q. Okay, so 20 percent vascular neurology, 20 percent neurology; is that accurate? A. Give or take. Later in her deposition, Dr. Venkatasubramanian agreed with the description that “approximately 20 percent general, 20 percent vascular, and 60 percent of your work was devoted to neurointensivist work,” and then she added, “I don’t know where to throw clinic in there, but clinic also gets mixed in.” Thus, defendant argued, because Dr. Feit is only board certified in general neurology, and his entire clinical practice is devoted to the treatment of general neurology patients, Dr. Venkatasubramanian, who devoted a majority of her professional practice to neurocritical care—and not general neurology—at the time of the alleged occurrence, is not qualified under MCL 600.2169(1) to provide standard of care testimony against Dr. Feit. 1 It appears from the evidence that work as a “neurointensivist” relates to the board certification in neurocritical care. -2- Further, because she is not qualified to offer testimony against Dr. Feit, plaintiffs are unable to satisfy their burden of proof that he was professionally negligent and, thus, defendant was entitled to summary disposition under MCR 2.116(C)(10). Plaintiffs responded to defendant’s motion, arguing that the majority of Dr. Venkatasubramanian’s time was spent practicing neurology even as a neurointensivist and she considered herself a neurologist first. That is, “the two titles ‘general neurology’ and ‘neurocritical care’ flow together.” Further, her additional knowledge made her more qualified to offer opinion testimony, not less qualified. Thus, defendant’s motion to strike plaintiffs’ expert witness and for summary disposition should be denied. Defendant replied to plaintiffs’ response, arguing that general neurology is the relevant specialty in this case and plaintiffs’ expert only devoted about 20% of her clinical practice to general neurology. Thus, she is not qualified under MCL 600.2169(1) to provide standard of care testimony in this case and defendant is entitled to summary disposition. Plaintiffs then filed a supplemental response which consisted of an affidavit from Dr. Venkatasubramanian. In the affidavit, she averred that 100% of her professional time as an associate professor is spent teaching in the specialty of general neurology. “This teaching takes place primarily in a clinical setting, but also in a didactic setting.” The affidavit is written in the present tense and does not refer to the 2009-2010 time period. She stated: Between my work on the general neurology floor, my continued treatment of patients in the ICU and Vascular Neurologic service for what includes their general neurologic needs and my teaching/academic work which is 100% devoted to general neurology, I am confident that I can accurately state under oath by way of this sworn affidavit, that well over 50% of my professional time involves practice in the field of general neurology. Defendant filed a supplemental reply to plaintiffs’ supplemental response, arguing that the affidavit was an attempt to create a genuine issue of fact in contrast to her harmful, but clear and unequivocal deposition testimony; thus, it may not be considered. Following oral arguments on defendant’s motion, the court ruled: The Court is going to deny the Motion to Strike. I do believe that, and I’ll make this clear, that the Affidavit does come in. I know, you are objecting. You can appeal me on that one. I think that Mr. Sanfield [plaintiffs’ counsel] is correct. I think that his [sic] just saying, “That’s only the deposition testimony and nothing else” could be considered. I think, that is not – not only is not fair, I don’t think that’s the law. She did sign an Affidavit indicating that her practice is 100% in General Neurology. She teaches. This is her field. I don’t – I don’t see a problem with her. I think that she is qualified to testify as an expert. The Court will respectfully deny your motion. On June 28, 2017, the court entered an order denying defendant’s motion. -3-  Defendant then moved for reconsideration. Defendant argued that even considering Dr. Venkatasubramanian’s time spent teaching she only spent 45% of her professional time in the clinical practice and instruction of general neurology. More specifically, she testified that she devoted 20% of her professional practice to general neurology and that she devoted 20-25% of her professional time to teaching and research; thus, she was not qualified under MCL 600.2169(1) to provide standard of care testimony against Dr. Feit, a board-certified general neurologist. Plaintiffs then filed a motion seeking relief from the previously entered stipulated order specifically naming the parties’ expert witnesses, and for leave to file a second amended witness list. Plaintiffs argued that, although Dr. Venkatasubramanian was extremely qualified to give standard of care expert testimony in this case, to avoid further delay plaintiffs retained another expert in general neurology, Dr. Michael Gold. Thus, plaintiffs sought leave to file an amended witness list naming Dr. Gold as their expert in general neurology. Plaintiffs averred that adding this expert witness would not cause undue delay or alter the theories and issues in this case because the substance of Dr. Gold’s testimony was to be similar to Dr. Venkatasubramanian’s testimony, and thus, defendant would not be prejudiced by the amendment. Defendant opposed this motion to amend plaintiffs’ witness list, arguing that the issue was moot since the court agreed that Dr. Venkatasubramanian was qualified to testify. Further, plaintiffs are bound by the stipulated order naming their expert witnesses and to permit the naming of a different witness, who was not on their witness list, would prejudice defendant and delay the proceedings. On August 18, 2017, the court heard oral argument on plaintiffs’ motion.2 Plaintiffs argued that the parties had agreed to limit their experts in the interest of reducing costs and streamlining the issues but, after they agreed to do so, defendant filed a motion to strike plaintiffs’ sole standard of care expert. And although the trial court denied the motion, defendant was seeking leave to appeal on the matter. In the interest of expediting this case so that it could be heard on its merits, plaintiffs sought leave to add a different standard of care expert to their witness list, Dr. Gold. Plaintiffs argued that trial was months away, Dr. Gold’s opinions were substantially the same as Dr. Venkatasubramanian’s, and that defendant could depose Dr. Gold without objection; thus, there was no prejudice to defendant. Defendant argued that plaintiffs entered into a stipulated order to limit their expert witness to Dr. Venkatasubramanian and they are bound by that order. The trial court denied plaintiffs’ motion to amend their witness list, apparently relying on its prior ruling that Dr. Venkatasubramanian is qualified to testify as a standard of care expert in this case. On August 23, 2017, orders denying defendant’s motion for reconsideration and denying plaintiffs’ motion were entered by the trial court. On September 11, 2017, defendant filed an application for leave to appeal the order denying its motion to strike plaintiffs’ expert witness, Dr. Venkatasubramanian, and for summary disposition under MCR 2.116(C)(10), as well as a motion to stay pending appeal. 2 Because the court had not ordered oral argument on defendant’s motion for reconsideration, arguments were not made in its regard but the court denied the motion on the record. -4-  On November 2, 2017, this Court entered an order granting defendant’s application for leave to appeal, limited to the issues raised in the application and supporting brief, and granting the motion to stay pending appeal. Estate of Aura Argentina Perez v Henry Ford Hosp, unpublished order of the Court of Appeals, entered November 2, 2017 (Docket No. 340082). On November 15, 2017, plaintiffs filed a claim of cross-appeal, challenging the trial court’s order denying plaintiffs’ motion to amend their witness list to add a different standard of care expert. On November 20, 2017, the trial court entered an order for stay of proceedings pending appeal. On appeal, defendant first argues that the trial court erred in denying its motion to strike plaintiffs’ expert witness, Dr. Venkatasubramanian, as unqualified under MCL 600.2169(1). We agree. The interpretation of MCL 600.2169(1) is reviewed de novo. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). The trial court’s decision whether Dr. Venkatasubramanian is qualified to render an expert opinion under MCL 600.2169(1) is reviewed for an abuse of discretion. Id. “An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes.” Id. When a court’s ruling is premised on an incorrect interpretation of the law, the ruling is necessarily an abuse of discretion. Gay v Select Specialty Hosp, 295 Mich App 284, 292; 813 NW2d 354 (2012). MCL 600.2169(1) sets forth the criteria a proposed expert must satisfy in order to testify regarding the appropriate standard of practice or care, Rock v Crocker, 499 Mich 247, 260; 884 NW2d 227 (2016), and states in pertinent part: In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. (ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is -5-  licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty. In Woodard, the Court explained that a “specialty” is “a particular branch of medicine or surgery in which one can potentially become board certified.” Woodard, 476 Mich at 561. A “subspecialty” is “a particular branch of medicine or surgery in which one can potentially become board certified that falls under a specialty or within the hierarchy of that specialty.” Id. at 562. A subspecialty is itself a “specialty” within the meaning of the statute. Id. In this case, there is no dispute that Dr. Feit is a board-certified neurologist who was practicing as a general neurologist at the time of the alleged malpractice. At issue here is whether Dr. Venkatasubramanian meets the qualifications set forth under § 2169(1)(b). While she is board certified in neurology, she was also board certified in neurocritical care and vascular neurology which are subspecialty board certifications of neurology. As our Supreme Court explained in Woodard: [I]n order to be qualified to testify under § 2169(1)(b), the plaintiff’s expert witness must have devoted a majority of his professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the specialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty. [Woodard, 476 Mich at 566 (footnote omitted).] In Kiefer v Markley, 283 Mich App 555, 559; 769 NW2d 271 (2009), this Court clarified that the word “majority” in the statute means that a proposed expert physician must have spent “greater than 50 percent of his or her professional time practicing the relevant specialty the year before the alleged malpractice.” In this case, because the specialty Dr. Feit was practicing at the time of the alleged malpractice was general neurology, a proposed standard of care expert testifying against Dr. Feit must have spent greater than 50% of her time practicing or instructing students in general neurology the year before the alleged malpractice. Dr. Venkatasubramanian testified in her deposition that during the relevant time, she spent about 75-80% of her professional time in clinical practice, and 20-25% in research and education. With regard to her clinical practice, she spent 60-65% of her professional time practicing as a neurointensivist, about 20% of her time practicing general neurology, and 20% of her time practicing vascular neurology. Clearly, then, Dr. Venkatasubramanian did not spend a majority of her professional time practicing general neurology during the relevant time. In Hamilton v Kuligowski, the companion case to Woodard, our Supreme Court was faced with a similar factual scenario as presents in this case, i.e., a plaintiff’s proposed expert witness who devoted a majority of time to a subspecialty rather than the general specialty at issue. Id. at 556. In that case, the defendant physician was board certified in general internal medicine, specialized in general internal medicine, and was practicing general internal medicine at the time of the alleged malpractice. Woodard, 476 Mich at 556, 577-578. The plaintiff’s proposed expert was also board certified in general internal medicine; however, he spent the -6- majority of his professional time treating infectious diseases, a subspecialty of internal medicine. Id. at 556, 578. Our Supreme Court concluded that because the plaintiff’s expert devoted a majority of his professional time to treating infectious diseases, the subspecialty, and not general internal medicine, he did “not satisfy the same practice/instruction requirement of § 2169(1)(b).” Woodard, 476 Mich at 578. Similarly, in this case, Dr. Venkatasubramanian was not qualified under § 2169(1)(b) because she did not spend the majority of her time practicing general neurology. In a supplemental response to defendant’s motion, plaintiff filed an affidavit from Dr. Venkatasubramanian which attempted to clarify her deposition testimony. Although defendant argued that the trial court was not permitted to consider this affidavit because it was an attempt to essentially rehabilitate damaging testimony, the trial court correctly rejected this argument. The affidavit did not contradict the deposition testimony as much as it clarified a point that was not explored—the subject area of Dr. Venkatasubramanian’s research and teaching. But even considering the affidavit, the conclusion remains the same—she did not spend a majority of her professional time during the year immediately preceding the alleged malpractice practicing or teaching general neurology. According to her affidavit, 100% of her teaching/academic work was devoted to general neurology. But, again, she testified that only 20-25% of her professional time was devoted to teaching/academic work. The other 75-80% of her time was devoted to clinical practice, but only 20% of her clinical practice was devoted to general neurology which, combined, still amounts to less than a majority of her time, i.e., less than 50 percent (20% of 80% = .2 x .80 = .16 or 16% plus teaching/academics at most 25% = 41%). In summary, Dr. Venkatasubramanian did not meet the requirements set forth under MCL 600.2169(1) because she did not spend a majority of her professional time practicing or instructing students in general neurology; thus, she was not qualified to render standard of practice or care testimony against Dr. Feit. Accordingly, the trial court abused its discretion in concluding that she was qualified to render such testimony and erred when it denied defendant’s motion to strike this expert witness. Next, defendant argues that, because plaintiff does not have an expert qualified under MCL 600.2169(1) to testify to the standard of care, defendant is entitled to summary disposition under MCR 2.116(C)(10). The trial court denied defendant’s motion for summary disposition after concluding that Dr. Venkatasubramanian was a qualified expert witness. Generally, a decision on a motion for summary disposition is reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). There are two issues relevant to defendant’s argument: plaintiffs’ cross-appeal and the stipulated order entered on February 27, 2017 naming the parties’ expert witnesses. We first address these matters. Plaintiffs argue on cross-appeal that if Dr. Venkatasubramanian is determined to be unqualified, they should be allowed to amend their witness list to add a substitute expert witness, Dr. Michael Gold. In fact, the only reason the trial court denied their motion to amend their witness list was because the court also believed Dr. Venkatasubramanian to be a qualified expert in this case. A trial court’s decision on a motion to amend a witness list is reviewed for an abuse of discretion. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1991). We agree that -7- plaintiffs’ motion for leave to file an amended witness list to add Dr. Gold as a standard of care expert should have been granted. MCR 2.401(I)(1) mandates that parties file and serve witness lists in the time directed by the trial court’s scheduling order. And if a witness is not listed in such a witness list, the court may prohibit that witness from testifying at trial except upon good cause shown. MCR 2.401(I)(2). However, before such a sanction is imposed—which may be equivalent to a dismissal—the trial court should consider a number of relevant factors, including but not limited to: “(1) whether the violation was wilful or accidental; (2) the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the defendant; (4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice; (5) whether there exists a history of plaintiff’s engaging in deliberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court’s order; (7) an attempt by the plaintiff to timely cure the defect[;] and (8) whether a lesser sanction would better serve the interests of justice.” Dean v Tucker, 182 Mich App 27, 32- 33; 451 NW2d 571 (1990) (footnotes omitted); see also Duray Dev, LLC v Perrin, 288 Mich App 143, 165; 792 NW2d 749 (2010). Further, the trial court should be mindful that the policy of this state favors the meritorious determination of issues. Tisbury, 194 Mich App at 21. In this case, plaintiffs moved for leave to file a second amended witness list after defendant’s motion to strike plaintiffs’ expert was denied by the trial court. Plaintiffs offered that, to avoid further delay, they retained another expert in general neurology, Dr. Gold, who they would call as an expert in the place of Dr. Venkatasubramanian. Plaintiffs averred that the substance of Dr. Gold’s testimony was the same or similar to Dr. Venkatasubramanian’s testimony, and thus, would not alter the theories or issues in this case and would not cause undue delay or prejudice. However, the trial court denied the motion because it deemed the substitution unnecessary—Dr. Venkatasubramanian was sufficiently qualified to testify. There was no evidence that plaintiffs’ negligently or wilfully retained an unqualified expert witness and, in fact, even the trial court believed the witness was qualified. See Dean, 182 Mich App at 32. Further, because of defendant’s challenge, plaintiffs almost immediately retained another expert witness who they identified by name and offered for deposition. Defendant did not argue that plaintiffs had a history of discovery violations or engaged in deliberate delay. Defendant did claim that it would be prejudiced because discovery was closed and trial was scheduled for a few months later. However, the delay that resulted from the pursuit of this appeal was far greater than would have been occasioned by an amendment to plaintiffs’ witness list and the taking of Dr. Gold’s deposition. Further, any prejudice to defendant would be minimal considering that, as argued by plaintiffs, Dr. Gold shared the same or similar opinions as Dr. Venkatasubramanian. Moreover, review of the lower court record shows that this case had been timely litigated up through the time that plaintiffs sought leave to amend their witness list. And the consequence of striking plaintiffs’ sole standard of care expert is that this case will be dismissed rather than decided on its merits, contrary to this state’s policy. See Tisbury, 194 Mich App at 21. Defendant argues, however, that the parties had stipulated to a reciprocal order limiting their experts and striking extraneous experts from their witness lists; thus, the trial court was prevented from granting plaintiffs’ motion for leave to file an amended witness list. It is true that stipulated orders that are entered by the trial court are generally construed under the same rules that apply to contracts, as an agreement reached by and between the parties. See Eaton Co Bd of -8- Co Rd Comm’rs v Schultz, 205 Mich App 371, 378-379; 521 NW2d 847 (1994). And in contract interpretation, the goal is to determine and then enforce the intent of the parties based on the plain language of the contract. St Clair Med, PC v Borgiel, 270 Mich App 260, 264; 715 NW2d 914 (2006). That is, the plain and unambiguous contract language must be enforced as written unless the contract is contrary to law or public policy. Rory v Continental Ins Co, 473 Mich 457, 468-470; 703 NW2d 23 (2005). The provision of the stipulated order at issue provides: “IT IS HEREBY STIPULATED, by and between counsel for the parties hereto, that Plaintiffs shall only utilize, at the time of trial, independent experts Dr. Chitra Venkatasubramanian (neurology), Dr. Daniel Spitz (forensic pathology), and Dr. Michael Thomson (economics)[.]” According the words their ordinary and plain meaning as we must, in relevant part, this provision states that the parties agreed that Dr. Venkatasubramanian was plaintiffs’ neurology expert who would testify at trial. The only way to “utilize” an expert witness “at the time of trial” is through the provision of testimony. But contrary to the parties’ agreement, this doctor may not testify at trial because she is not qualified as an expert witness. Because the parties’ contract in this regard is contrary to the law, it will not be enforced. See id. at 470. Further, this stipulated order in no way impaired the trial court’s discretion regarding plaintiffs’ motion for leave to file a second amended witness list. We conclude that, under all of the circumstances of this case, the trial court should have found that good cause existed to support plaintiffs’ motion for leave to file a second amended witness list to add Dr. Gold as an expert witness in general neurology. Therefore, the trial court abused its discretion by denying plaintiffs’ motion. In light of this holding, we also conclude that the trial court properly denied defendant’s motion for summary disposition under MCR 2.116(C)(10), premised on the claim that plaintiffs had no expert qualified to testify to the standard of care. At minimum, defendant’s motion is premature in light of our holding. In summary, the trial court’s order denying defendant’s motion to strike plaintiffs’ expert witness Dr. Venkatasubramanian is reversed, but we affirm the denial of defendant’s motion for summary disposition. We also reverse the trial court’s order denying plaintiffs’ motion for leave to file a second amended witness list. Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction. /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly -9- 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-6803 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MONSTSHO EUGENE VERNON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:01-cr-00239-HMH-3) Submitted: September 26, 2019 Decided: October 1, 2019 Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Monstsho Eugene Vernon, Appellant Pro Se. Carrie Fisher Sherard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Monstsho Eugene Vernon appeals the district court’s order denying his motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Vernon, No. 6:01-cr-00239-HMH-3 (D.S.C. May 23, 2019). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2