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29 F.3d 645 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.BLAKE CONSTRUCTION COMPANY, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee. No. 93-5204. United States Court of Appeals, Federal Circuit. June 14, 1994. Before ARCHER, Chief Judge, RICH and SCHALL, Circuit Judges. JUDGMENT PER CURIAM. 1 AFFIRMED. See Fed.Cir.R. 36.

314 Md. 113 (1988) 549 A.2d 380 STATE OF MARYLAND v. ETHEL R. JOYNES. No. 86, September Term, 1987. Court of Appeals of Maryland. November 2, 1988. John S. Bainbridge, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant. Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellee. Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired) Specially Assigned. BLACKWELL, Judge. This case involves physical altercations among neighbors. The sole issue presented is whether the trial judge committed reversible error by refusing to admit evidence of a witness's prior criminal conviction for battery,[1] where the witness was earlier convicted in connection with the same incident. Here, the defendant sought to admit the witness's battery conviction in the subsequent trial on the grounds it constituted material evidence as to self-defense. We granted certiorari to consider the important issue raised. Pursuant to Maryland Rule 8-501(g), the parties have stipulated to the following facts. Respondent, Ethel R. Joynes (Joynes), was charged with battery and carrying a weapon openly with intent to injure. The charges arose out of an altercation that occurred on July 7, 1985, between Joynes, her husband and her son, and one of their neighbors, Oliver Handy. The fracas resulted in (1) a broken arm for Joynes, the result of a wound inflicted by Handy, (2) stab wounds to Handy inflicted by Joynes, and (3) a cut on Handy's forehead inflicted by Joynes' husband. At Joynes' trial, the evidence consisted primarily of the testimony of two combatants, Joynes and Handy, along with that of their respective family members and various neighbors. The testimony revealed a material inconsistency concerning who was the initial aggressor. According to Oliver Handy, his wife, Perrine Handy, and the latter's son, Wendell Mitchell, the incident ensued as a result of loud music emanating from the Joynes' property, which was cater-cornered to the Handy home. Handy's wife had retreated to the bedroom, closed the door, and turned the air conditioner on in an effort to avoid the noise. Handy further testified that he approached the Joynes' residence, and "hollered across the fence", asking them to turn the music down. After returning a second time, Handy "hollered across there again, [yelling] `turn the music down!'" According to Handy, Joynes told him to come into the Joynes' yard and, as he proceeded around the fence to the front of the house, he observed Joynes coming down the driveway with a knife in her hand. Handy then picked up a three-foot long two-by-four because he deemed it necessary "to protect myself." As Handy approached the Joynes' driveway, Joynes advanced "right out in the street and she whacked at me with this knife ... and I hit her with the two-by-four." Subsequently, Handy was attacked by Joynes' husband and son.[2] While lying in the street after falling backwards, Handy was struck twice, in the hip and knee, by Joynes who was wielding a knife. Contrary to the above factual assertions, Joynes steadfastly maintained that Handy was the aggressor and that she had acted in self-defense. The combined testimony of Joynes and her husband was that Handy approached the fence adjacent to their property, banging a six-foot two-by-four on the ground and swearing. The verbal altercation intensified as Handy demanded that Joynes confront him in the driveway area. Joynes attested that Handy swung the two-by-four in the direction of her head, and that "he was trying to kill me." Joynes raised her arm to ward off the impact of the blow and suffered a broken arm. Joynes retreated to her husband, who had a fish knife strapped to his side. As Joynes' son, Kevin, yelled and threatened Handy, Handy allegedly initiated another physical attack with the two-by-four. Joynes stated that she then grabbed the fish knife and attacked Handy in an effort to protect her son. At a point after the initial physical altercation, Joynes' husband, George Joynes, also armed himself with a piece of lumber. Mr. Joynes testified that he approached Handy with his own two-by-four, approximately eight-feet long, in an attempt to push Handy out of their property. Shortly after obtaining the knife, Joynes stabbed Handy. Both Joynes' husband and Phillip Cornish, a neighbor called as a defense witness, stated that Joynes had wounded Handy after he had fallen backward, although neither actually observed the stabbing. It is clear that the altercation involved a series of physical attacks with separate participants at different points in time. As a result of the incident, Oliver Handy was convicted of battery in an earlier criminal trial. Joynes was subsequently found guilty of both battery and carrying a weapon openly with intent to injure after a jury trial was held in the Circuit Court for Wicomico County. At trial, Joynes' counsel sought to introduce the evidence of Handy's conviction for battery, relating to the same series of events. Counsel expressly stated the purpose supporting admission of the conviction in a proffer: The defendant [Joynes] intends to present an exhibit and produce evidence that the complaining witness has already been convicted of assault and battery with regard to this exact altercation and, as the State has already pointed out, one of the ultimate issues in this case is who was the initial aggressor, who was it who initiated the confrontation, and that the conviction of Mr. Oliver Handy beyond a reasonable doubt that he is guilty of assault and battery is most relevant and material.... [T]his is being introduced, not to impeach Mr. Handy, not to do anything but to show that he was the original aggressor at some point in time (emphasis added). The trial judge refused to allow the fact of the battery conviction to be introduced as evidence. He stated, "I don't see how it is relevant in this case. It is not being offered for the purpose of impeachment." Joynes' counsel renewed the evidentiary motion for admission of the conviction of Handy at the close of the State's case. Again, the trial judge sustained the objection and further reasoned: Yet I don't feel that this jury would be bound by a finding of another jury. They have a right to effectively believe that there was no assault and battery by Mr. Handy if they believed that they could return findings of guilt against the defendants in this case. The evidence that Handy had been found guilty of assault and battery, I think it could perhaps confuse the jury as to their obligation in this case. Upon review of the above evidentiary rulings, the intermediate appellate court vacated the judgment against Joynes and remanded for a new trial. In an unreported opinion, the Court of Special Appeals held that the fact that Handy had earlier been convicted of battery in connection with the same incident was relevant to Joynes' claim that she had acted in self-defense against an aggressor. In this Court, the State's arguments are: (1) that the trial judge properly exercised his discretion in refusing to admit the prior conviction, (2) that the fact of a witness's battery conviction would be of no value for the trier of fact, and (3) that a jury's prior deliberations would neither prove nor disprove Joynes' guilt. Joynes' primary argument was that Handy's prior conviction was admissible under the provisions of the Maryland Code (1974, 1984 Repl.Vol.), Courts and Judicial Proceedings Article, § 10-904 and § 10-905(a), and under established evidentiary principles. The trial judge did not commit error. We explain. I. In Leeson v. State, 293 Md. 425, 433-34, 445 A.2d 21, 25 (1982), we reaffirmed the traditional test of admissibility of evidence in a criminal case as articulated in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976). The Dorsey court outlined the responsibility of a trial judge in determining the relevancy of proposed evidence. There, this Court stated: The real test of admissibility of evidence in a criminal case is `the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue.' . .. [O]ur predecessors stated it to be `an elementary rule that evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them.' [Citations omitted]. Id. 276 Md. at 643, 350 A.2d at 668-69 (emphasis added). See, e.g., MacEwen v. State, 194 Md. 492, 501, 71 A.2d 464, 468 (1950). There are two important components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. The second aspect of relevance is probative value, which is the tendency of evidence to establish the proposition that it is offered to prove. See McCormick on Evidence § 185, at 541 (E. Cleary 3d ed. 1984). Although the relevancy assessment is not susceptible to precise definition, it has been suggested that "the answer must lie in the judge's own experience, his general knowledge, and his understanding of human conduct and motivation." See McCormick on Evidence § 185, at 544 (E. Cleary 3d ed. 1984). Evidence which is thus not probative of the proposition at which it is directed is deemed "irrelevant." Dorsey, supra, 276 Md. at 643, 350 A.2d at 669; Wharton's Criminal Evidence § 151 (13th ed. 1972). The trial judge is usually in the best position to evaluate the probative value of the proferred evidence. Where evidence is utterly lacking in probative value, it may be condemned as "remote" or "speculative." See McCormick on Evidence § 185, at 542 (E. Cleary 3d ed. 1984). Although the specific issue raised is a matter of first impression, we are satisfied the trial judge's preclusion of the witness's battery conviction on relevancy grounds was not erroneous. The fact of Handy's battery conviction neither tends to establish nor disprove Joynes' claim of self-defense. It is also irrelevant with regard to any of the material facts at issue. Under the circumstances of this case, the fact that a separate jury found another participant guilty is not probative in the subsequent trial. To admit Handy's conviction as material evidence in Joynes' trial invites pure speculation by the jury as to what the conviction meant. Where distinct battery charges arise out of a progression of physical altercations, the decision of one jury should have no bearing upon the deliberations of another. The witness's battery conviction does not assist the jury in determining who was the aggressor in each phase of the fracas. It is reasonable to conclude that the incident involved at least two separate acts of physical force. Under these circumstances, the correct approach is to allow the jury to make its factual findings without any reference to the other participant's battery conviction stemming from a series of events. We find no error here. II. Our analysis shifts to the applicability of statutory bases for the admissibility of prior convictions. Section 10-904 provides, in full: § 10-904. Proof of crime committed by another. In a civil or criminal case in which a person is charged with commission of a crime or act, evidence is admissible by the defendant to show that another person has been convicted of committing the same crime or act. We interpreted the predecessor statute of § 10-904 in Gray v. State, 221 Md. 286, 157 A.2d 261 (1960).[3] In commenting on the legislative intent, this Court reasoned that the statute was necessary to "avoid the absurdity of convicting two persons" for a crime only one could commit. Id. 221 Md. at 290-91, 157 A.2d at 264 (quoting 1 Wigmore, Evidence (3d ed.) § 142). The Gray holding is limited to convictions of another person for the same crime, assuming further that it is predicated as the deed of one person and not of joint actors. The Gray decision also reasoned that the statute could not be construed to mean that a defendant's guilt could be proved by evidence of an accomplice's conviction, because such evidence "is universally held to be inadmissible, and [such a construction] would cause the statute to be so unreasonable as to cast serious doubt upon its validity." Id. 221 Md. at 289, 157 A.2d at 263 (citing 2 Wharton, Criminal Evidence (12th Ed.), § 439). Turning to the present case, it is evident that Joynes was not charged with the same crime as the witness, Oliver Handy. Because of the serial nature of the altercation, it is reasonable to conclude that each of the participants may be criminally responsible for his or her individual conduct. It is undisputed that Handy wounded Joynes with a two-by-four, and that Joynes stabbed Handy with a fishing knife. It is evident that there was a lapse of time between the two acts. Both defendants may have been aggressors at different points in time. At least one reasonable interpretation is that two separate acts of physical violence were committed. Therefore, the criminal responsibility of each defendant must be decided separately, based on the facts presented to the respective jury. Handy's conviction by itself would not assist the Joynes' jury in its deliberations. Therefore, Joynes' reliance on the above statute is misplaced. Second, Joynes argues that § 10-905 is supportive of its central position that the trial judge should have admitted Handy's prior conviction. Section 10-905 provides, in pertinent part: § 10-905. Proof of interest or conviction of infamous crime. (a) In general. — Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or reconviction. Recently, we addressed the scope of § 10-905, specifically as it relates to the introduction of prior convictions for impeachment purposes. See Prout v. State, 311 Md. 348, 535 A.2d 445 (1988); see also Watson v. State, 311 Md. 370, 535 A.2d 455 (1988); Wicks v. State, 311 Md. 376, 535 A.2d 459 (1988). We find no merit in this argument for two reasons. First, the fact of the witness's prior conviction was not offered for the purpose of impeachment. Here, Joynes' counsel specifically stated that he did not intend to introduce Handy's battery conviction for impeachment purposes. Consistent with Prout, Watson and Wicks, the application of § 10-905 is limited to the admission of convictions for impeachment purposes. Second, even had the battery conviction been offered for that purpose, it would clearly have been inadmissible. In State v. Duckett, 306 Md. 503, 510 A.2d 253 (1986), we held that there is no basis for the trial judge to determine whether a battery conviction impacts upon the witness's credibility. The fact of a battery conviction adds nothing concerning the probable veracity of a witness. Id. 306 Md. at 512, 510 A.2d at 258; see also Gordon v. United States, 127 U.S.App.D.C. 343, 347, 383 F.2d 936, 940 (1967), cert. denied 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). Joynes also cites several cases supporting the notion that a prior conviction may be admitted as substantive evidence to establish material facts contrary to a witness's testimony. See Zeller v. Mayson, 168 Md. 663, 179 A. 179 (1935); Green v. State, 161 Md. 75, 155 A. 164 (1931); Wilson Amusement Co. v. Spangler, 143 Md. 98, 121 A. 851 (1923). We find the above authorities to be inapplicable. In essence, these authorities may be viewed as impeachment cases, and should not be interpreted as broadening the use of prior convictions. In the context of the present case, we find no statutory basis for overturning the relevancy determination of the trial court. Furthermore, because we are convinced that Handy's battery conviction does not assist the jury in resolving the issue of self defense, or in determining the defendant's guilt in the subsequent trial, the witness's battery conviction arising out of a series of events was inadmissible. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY. COSTS TO BE PAID BY RESPONDENT. NOTES [1] Defendant's counsel referred to Handy's conviction as "assault and battery" during the evidentiary arguments. However, in State v. Duckett, 306 Md. 503, 510, 510 A.2d 253, 256-57 (1986), we explained that the term "assault and battery" is a misnomer since there is no single crime in Maryland under that description. When the term is used, it either describes two crimes, or it refers to the crime of battery, and the word "assault" is superfluous. See Woods v. State, 14 Md. App. 627, 632, 288 A.2d 215, 218 (1972); L. Hochheimer, The Law of Crimes and Criminal Procedure § 253 (2d ed. 1904). We shall hereinafter refer to Handy's prior conviction as a "battery." [2] State of Maryland v. Ethel R. Joynes, no. 86CR0354 and State of Maryland v. George A. Joynes, no. 86CR0461 were consolidated for trial. George Joynes was acquitted of all charges. [3] In Gray, this Court interpreted the former Md.Code (1957), Art. 35 § 11, which has been rewritten as Md.Code (1974, 1984 Repl.Vol.), Courts and Judicial Proceedings Article, § 10-904.

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS RICHARD M. WARD, LINDA K. WARD, and UNPUBLISHED WARD ENTERPRISES, INC., September 17, 2019 Plaintiffs-Appellees, v No. 340707 Genesee Circuit Court MICHAEL WESLEY FILARSKI, LC No. 13-100022-CZ Defendant-Appellant, and TROY WOOLLEY, Defendant. Before: MURRAY, C.J., and METER and FORT HOOD, JJ. PER CURIAM. Defendant, Michael Wesley Filarski, appeals as of right the trial court judgment awarding damages, including attorney fees, to plaintiffs, Richard M. Ward (Richard), Linda K. Ward (Linda), and Ward Enterprises, Inc., based on the trial court grant of summary disposition to plaintiffs on the issue of liability, in this dispute over the sale of land.1 For the reasons that follow, we affirm the trial court judgment, in part, regarding the grant of summary disposition to plaintiffs and the amount of attorney fees awarded to plaintiffs, but we reverse the trial court judgment, in part, with regard to the total amount of damages awarded based on the improper value of the plaza used to calculate the total net judgment. 1 Plaintiffs’ claims against defendant Troy Woolley were settled in bankruptcy proceedings, and he is not a party to this appeal. -1-  I. FACTS AND PROCEDURAL HISTORY In April 2011, plaintiffs entered a purchase agreement with defendant and Troy Woolley for the sale of property containing a small plaza (the plaza parcel), and the sale of adjoining property containing a restaurant (the restaurant parcel). The purchase agreement was executed contemporaneously with a land contract for the plaza parcel, a land contract for the restaurant parcel, and a management agreement that allowed defendant and Woolley to operate the restaurant before Ward Enterprises transferred its liquor license. In March 2013, plaintiffs filed a complaint, alleging breach of the plaza land contract because defendant and Woolley failed to make monthly principal, interest, and debt servicing payments. In their answer to the complaint, defendant and Woolley asserted that the plaza land contract was void because Richard and Linda lacked capacity to enter the contract in their individual capacities because they had quitclaimed their interest in the plaza parcel to Ward Enterprises in 2006. In May 2013, Richard and Linda assigned their rights and obligations under the plaza land contract to Ward Enterprises. All of the parties then filed motions for summary disposition under MCR 2.116(C)(10). The court granted summary disposition to plaintiffs regarding liability, and denied defendant and Woolley summary disposition. Thereafter, Woolley filed a petition for Chapter 13 bankruptcy, and plaintiffs’ claims against Woolley were resolved by bankruptcy court order. The bankruptcy court separated the plaza land contract and the restaurant land contract into two claims, and allowed Woolley to assume the restaurant land contract, and reject the plaza land contract. The court then held a bench trial on the issue of damages for breach of the plaza land contract. The court entered judgment in favor of plaintiffs in the amount of $245,101.39. This included the balance owed under the plaza land contract ($250,304.34), and attorney fees and costs accrued by plaintiffs’ previous counsel ($41,218.80) and plaintiffs’ current counsel ($16,578.25), totaling $308,101.39, minus the value of the plaza per the 2016 sheriff’s deed and appraisal ($63,000). II. ANALYSIS A. SUMMARY DISPOSITION Defendant first argues that the trial court erred in granting plaintiffs summary disposition because genuine issues of material fact exist regarding defendant and Woolley’s liability on plaintiffs’ breach-of-contract claim. “This Court reviews de novo a trial court’s decision on a motion for summary disposition.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). “A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim,” and granting the motion is appropriate when there is no genuine issue concerning any material fact. Universal Underwriters Group v Allstate Ins Co, 246 Mich App 713, 720; 635 NW2d 52 (2001). When deciding a motion for summary disposition under MCR 2.116(C)(10), this Court must consider all pleadings, affidavits, depositions, and other documentary evidence in the light most favorable to the nonmoving party. Cowles v Bank West, -2- 476 Mich 1, 32; 719 NW2d 94 (2006). “Whether a statute of frauds bars enforcement of a contract is a question of law that we review de novo.” Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 458; 733 NW2d 766 (2006). The interpretation of a contract is also a question of law reviewed de novo. Id. at 452. Defendant first argues that plaintiffs’ breach-of-contract claim was barred by the applicable statute of frauds. Specifically, defendant argues that Richard and Linda had no interest in the plaza property to sell. Defendant also argues that the subsequent assignment and assumption agreement was void because Richard and Linda had no interest in the plaza property to assign. In Zurcher v Herveat, 238 Mich App 267, 291; 605 NW2d 329 (1999), this Court defined a land contract: The term “land contract” is commonly used in Michigan as particularly referring to “agreements for the sale of an interest in real estate in which the purchase price is to be paid in installments (other than an earnest money deposit and a lump-sum payment at closing) and no promissory note or mortgage is involved between the seller and the buyer.” 1 Cameron, Michigan Real Property Law (2d ed), § 16.1, p 582. Under a land contract, the “vendor retains legal title until the contractual obligations have been fulfilled, the vendee is given equitable title, and that equitable title is a present interest in realty that may be sold, devised, or encumbered.” Graves v American Acceptance Mtg Corp (On Rehearing), 469 Mich 608, 614; 677 NW2d 829 (2004). Equitable title only passes to the vendee upon proper execution of the land contract. Zurcher, 238 Mich App at 291. The sale of land is governed by the statute of frauds, MCL 566.106 and MCL 566.108. Lakeside Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 524; 644 NW2d 765 (2002). MCL 566.106 provides: No estate or interest in lands, other than leases for a term not exceeding [one] year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing. MCL 566.108 provides, in relevant part: Every contract for the leasing for a longer period than [one] year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing . . . . -3- Thus, to satisfy a challenge under the statute of frauds, a contract for the sale of land must: “(1) be in writing and (2) be signed by the seller or someone lawfully authorized by the seller in writing.” Zurcher, 238 Mich App at 277. “The substance of a binding contract for the sale of land is a subject separate from its sufficiency under the statute of frauds and one that is governed by” general contract law. Id. at 279. Defendant’s challenge is made under the statute of frauds. The statute of frauds requires that the writing sufficiently set forth the essential terms of the agreement and render the contract enforceable. Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 369; 320 NW2d 836 (1982).2 There is no dispute that the plaza land contract set forth the essential terms of the agreement. The plaza land contract identified Richard and Linda as the sellers of the real property. Both Richard and Linda signed the land contract. Sufficient writings existed to satisfy the statute of frauds.3 Defendant also argues that the plaza land contract, when read in conjunction with the purchase agreement, is ambiguous and, therefore, summary disposition of the breach-of-contract claim was improper. This Court’s “primary goal in interpreting any contract is to give effect to the parties’ intentions at the time they entered into the contract.” Bank of America, NA v First American Title Ins Co, 499 Mich 74, 85; 878 NW2d 816 (2016). The parties’ intent is determined “by interpreting the language of the contract according to its plain and ordinary meaning.” Id. at 85- 86. “[U]nless a contract provision violates law or one of the traditional defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written.” Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005). “A contract is ambiguous if its words may reasonably be understood in different ways.” UAW- GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 491; 579 NW2d 411 (1998) (quotation marks and citation omitted). Defendant first argues that an ambiguity existed because the plaza land contract stated that the purchase price for the plaza parcel was $215,000, but the purchase agreement indicated that the purchase price for the real estate, which was defined in the purchase agreement as both the plaza parcel and the restaurant parcel, was $115,000. He maintains that “it is impossible to reconcile the plaza land contract with the purchase agreement.” Plaintiffs’ claim for breach of contract related to the plaza land contract. The plaza land contract clearly stated that “full consideration for the sale of the above described premises to the 2 Although this Court is not required to follow cases issued before November 1, 1990, MCR 7.215(B)(4), published decisions have precedential effect under the rule of stare decisis, MCR 7.215(C)(2). 3 To the extent that defendant is arguing that the plaza land contract was not valid because Ward Enterprises was not a party to the land contract, the record reveals that Ward Enterprises assumed the rights and obligations under the plaza land contract. -4- Purchasers is Two Hundred Fifteen Thousand and no/100 ($215,000) Dollars.” There is nothing ambiguous about the purchase price in the plaza land contract. Indeed, both defendant and Woolley testified that the purchase price of the plaza parcel was $215,000. Defendant also argues that the plaza land contract was ambiguous because a number of items set forth in the purchase agreement that related to “closing matters” never occurred. Defendant’s argument, which is difficult to discern, pertains to the purchase agreement. He has not pointed out any ambiguity within the plaza land contract. Lastly, defendant argues that Linda and Richard made fraudulent representations to defendant and Woolley to induce them into entering into the plaza land contract, thereby rendering the contract voidable, so defendant and Woolley chose to void the plaza land contract. Defendant raised the affirmative defenses of “fraud-actual and/or constructive,” misrepresentation of material facts, “including but not limited to ownership, tenants’ status and rental income,” and “misrepresentation of the rental income and the status of the tenants on April 12, 2011.” Although defendant did not raise fraudulent misrepresentation in his motion for summary disposition or in response to plaintiffs’ motion for summary disposition, defendant recited some of the above facts in the statement of the facts sections of his motion for summary disposition and his response to plaintiffs’ motion for summary disposition. Defendant did argue at the hearing on the cross-motions for summary disposition that plaintiffs’ attorney misrepresented to them that they needed to sign the plaza land contract to have the liquor license transferred to defendant, but did so in the context of arguing that defendant and Woolley did not intend to sign the land contract and be bound by its terms at the time they signed the purchase agreement. This argument is not properly preserved. Peterman v Dep’t of Natural Resources, 446 Mich 177, 182-183; 521 NW2d 499 (1994) (an issue is preserved if it is raised in the lower court and pursued on appeal). An unpreserved nonconstitutional claim of error is reviewed for plain error affecting substantial rights. Veltman v Detroit Edison Co, 261 Mich App 685, 690; 683 NW2d 707 (2004). The essential elements of a fraudulent misrepresentation claim are as follows: “(1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly, without knowledge of its truth as a positive assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage.” [M & D, Inc v McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998) (citations omitted).] Further, an action for fraud must be predicated upon a false statement relating to a past or existing fact; promises regarding the future are contractual and will not support a claim of fraud. Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). Additionally, to establish a claim of fraudulent misrepresentation, the plaintiff must have reasonably relied on the false representation. Nieves v Bell Industries, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994). “There can be no fraud where a person has the means to determine that a representation is not true.” Id. -5-  Defendant is asserting fraud as a defense to plaintiffs’ breach-of-contract action. He first argues that plaintiffs’ attorney falsely represented to Woolley that all four documents—the purchase agreement, the two land contracts, and the management agreement—needed to be signed so that the liquor license could transfer, and that the false representation was intended by the attorney to induce defendant and Woolley to sign the four documents. However, defendant had the means to determine whether the representation was true. This allegation of fraud is without merit. Id. at 464. Next, defendant argues that Linda falsely represented to Woolley that the liquor license transfer would take only one week when, in fact, it took several months. Again, defendant had the means to determine whether the representation was true. Further, an action for fraud must be predicated upon a false statement relating to a past or existing fact. Hi-Way Motor Co, 398 Mich at 336. Any representation regarding the amount of time that it might take for the Michigan Liquor Control Commission to process the transfer of the liquor license was not a statement relating to a past or existing fact. Means also existed for defendant to determine whether Linda falsely represented that there were several tenants in the plaza parcel with current and active leases, and that the lease payments would cover the payment for the plaza land contract and the property taxes. Woolley admitted that he failed to speak to any of the tenants before signing the land contract, he did “nothing” to determine whether the leases were active and current, he proceeded with signing the land contract despite his claim that he did not receive all of the documentation related to the tenants, and that even after signing the land contract, he failed to speak with the tenants. Defendant testified that he never asked plaintiffs about the terms of the tenant leases, he never asked plaintiffs about the tenants before signing the plaza land contract, he was not aware of any documents related to the tenants that he or Woolley asked for but did not receive, he never spoke with any of the tenants before signing the land contract, he failed to look at any financial information for the plaza parcel before signing the land contract, and it was merely a “bad business decision” to purchase the plaza parcel. Additionally, defendant’s allegation with respect to Linda’s representation that the tenants’ rent would cover defendant’s monthly payment on the plaza land contract does not pertain to an allegedly false statement relating to a past or existing fact, and does not support a claim of fraud. Id. Lastly, defendant alleges that Linda falsely represented to Woolley that she intended to purchase one of the businesses in the plaza after she learned that the business would be vacating the plaza. Again, this allegation does not pertain to an allegedly false statement relating to a past or existing fact, and does not support a claim of fraud. Id. In sum, defendant has failed to create a genuine issue of material fact with respect to his claim that the plaza land contract was void. Therefore, summary disposition in favor of plaintiffs was proper. B. DAMAGES AND ATTORNEY FEES Defendant next argues on appeal that should this Court affirm summary disposition in plaintiffs’ favor, the trial court erred in its calculation of damages against him. -6-  This Court reviews for clear error a trial court’s factual findings, including the calculation of damages. See Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). “A finding is clearly erroneous where, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has been made.” Id. The parties agree that the proper measure of damages in an action for breach of a land contract, where the seller did not tender the deed to the purchaser, as in this case, is the difference between the amount due on the land contract and the value of the property at the time of the breach. See McColl v Wardowski, 280 Mich 374, 376; 273 NW 736 (1937); St John v Richard, 272 Mich 670, 675; 262 NW 437 (1935). “[W]here a vendor seeks to recover damages from the vendee pursuant to a contract for the transfer of real property, the measure of damages is the difference between the contract price and the market value of the land.” In re Day Estate, 70 Mich App 242, 246; 245 NW2d 582 (1976), citing Calamarai and Perillo, Contracts, § 231, p 365. Market value means the market value as of the date of the breach as opposed to the price the vendor later obtained on resale. Id. at 246-247. “Where there is some evidence of the market value of the property around the time of the breach, the fact finder should weigh all the evidence in an effort to make a reasonable determination of market value and, hence, damages.” McNeal v Tuori, 107 Mich App 141, 147; 309 NW2d 588 (1981). However, if “evidence of resale price is the only evidence of market value, the plaintiff has the burden of establishing that resale occurred within a reasonable time, at the highest price obtainable, under terms as favorable as the original contract, and that there has not been a decline in market value.” Id. In In re Day Estate, 70 Mich App at 242, the defendants executed an offer to purchase real estate, and subsequently signed a land contract for the purchase of the real estate on May 15, 1973. Id. at 243. On June 8, 1973, the defendants informed the real estate broker that they did not intend to proceed with the purchase of the home. Id. at 244. Over a year later, on August 15, 1974, the home was sold for $40,000. Id. The plaintiff filed an action seeking to have the defendants held liable for the $10,000 difference between the contract price and the subsequent sale price, among other things. Id. The trial court found that the plaintiff had not failed to mitigate his damages, and was entitled to judgment against the defendants in the sum of $16,526.56, which included the $10,000 difference between the contract price and the subsequent sale price. Id. at 245. This Court found that the trial court erred in its calculation and its awarding of damages. Id. at 246. Specifically, this Court opined as follows: In the case at bar the trial judge apparently adopted the plaintiff’s calculations of damages which included the $10,000 difference between the contract price and the sale price of the property approximately one year after the breach, as well as consequential damages involving the maintenance of the property for the interim period. We hold that the trial judge properly considered consequential damages such as were incurred in the maintenance of the property since these damages were reasonably foreseeable as a consequence of the breach. The record is not clear, however, concerning whether the trial judge found as a fact that the difference between the fair market value and the contract price at the time of the breach was or was not $10,000. If the trial judge merely assessed damages for the difference in the sale price and the contract price, he was in error. The judge may properly consider a sale price, albeit one year later, as some evidence of the fair market value at the time of breach, but he would be required to take into account -7-  possible differences in the market as might be occasioned by intervening economic conditions. We are thus required to remand for further proceedings wherein the trial judge shall make findings of fact in support of his assessment of damages. The damages in the case at bar shall consist of the difference between the fair market value of the property at the time of the breach and the contract price as well as consequential damages reasonably foreseeable by the parties at that time. [Id. at 247.] Similarly, the trial court adopted plaintiffs’ calculation of damages, which incorporated the amortization schedule provided in the testimony of Scott Fraim, an attorney specializing in business-related matters. Plaintiffs’ calculation of damages made no mention of the date that the contract was allegedly breached. However, the amortization schedule applied the default interest rate of 6.5% as of June 1, 2011, which suggests that a breach of the contract occurred as of that date.4 Further, plaintiffs alleged in their complaint that the plaza land contract required defendant to pay $1,744 per month commencing June 1, 2011, and that defendant had not made the payments. Accordingly, the record suggests that plaintiffs were seeking damages for a breach of contract that occurred on June 1, 2011, and the parties agreed at oral argument that this was when the breach occurred. The trial court did not, however, specifically make findings regarding when the breach occurred. Further, Fraim’s calculation merely calculated the difference between the balance owed under the contract “as of August 16, 2016,” and the sale price of the property at a foreclosure sale on May 25, 2016. Fraim did not utilize the contract price in determining damages, but rather, utilized the contract price as a starting point in his amortization schedule. Fraim then subtracted the sale price of the property nearly five years after the breach from the “balanced owed under the contract.” Thus, it appears that the trial court, by adopting Fraim’s calculations, did not utilize the appropriate measure of damages—that is, the difference between the contract price and the market value of the land at the time of the breach. Nor did the court appear to take into consideration the evidence presented to establish fair market value at the time of the breach. While the court may properly consider a sale price as some evidence of the fair market value at the time of breach, there is no indication that the court took into account the passage of five years, or the evidence of intervening economic conditions, loss of tenants, and the fact that the sale occurred in the context of a foreclosure proceeding. Because the court failed to use the appropriate measure of damages, and failed to make findings of fact in support of its assessment of damages, the judgment of damages is reversed in part, and the case is remanded for a proper 4 Fraim’s amortization schedule calculated the amount due monthly, beginning with the loan amount of $215,000 on April 12, 2011; the schedule credited all payments on the restaurant land contract over $1,000 and rent received, and debited taxes and insurance paid by plaintiffs on behalf of defendant, and included interest at the nominal annual rate of 6.5%. The calculations were made through August 16, 2016, when Fraim applied an overpayment on the restaurant land contract to the plaza land contract. -8- calculation of damages. The damages should consist of the difference between the fair market value of the property at the time of the breach and the contract price, as well as consequential damages reasonably foreseeable by the parties at that time. Defendant also argues that the trial court erred in its award of attorney fees and costs. Specifically, defendant argues that the trial court awarded the total amount of fees and costs sought by plaintiffs without any inquiry or findings of fact with respect to whether the fees were reasonable in light of the services rendered. Plaintiffs maintain that the statements that they submitted from their prior and current counsel detailing the time and costs incurred relating to this matter were sufficient for the court to determine an award of attorney fees and costs without an evidentiary hearing. This Court reviews for an abuse of discretion a trial court’s award of attorney fees and costs. Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). “An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes.” Id. “As a general rule, attorney fees are not recoverable as an element of costs or damages absent an express legal exception.” Fleet Business Credit v Krapohl Ford Lincoln Mercury Co, 274 Mich App 584, 589; 735 NW2d 644 (2007). Attorney fees are recoverable if expressly provided for by a contract between the parties. Id. In this case, the purchase agreement constituted a contract between the parties. Under ¶ 12.1 of the purchase agreement, “In the event of default in any respect of this Agreement . . . , all actual attorney fees and costs incurred by the Sellers in enforcing its terms or pursuing damages shall be paid by the Purchasers.” We note that defendant fails to cite any authority indicating that Michigan courts should construe contract language providing for the recovery of “actual attorney fees” to mean “reasonable attorney fees.” Where a contract merely provides for the recovery of “attorney fees” or “legal fees,” without more, this language is construed to mean reasonable attorney fees. See Zeeland Farm Servs, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195-196; 555 NW2d 733 (1996); Papo v Aglo Restaurants of San Jose, Inc, 149 Mich App 285, 299; 386 NW2d 177 (1986). However, where, as here, the plain language of the contract unambiguously provides for the recovery of “actual attorney fees,” this contract language must be enforced as written. Mahnick v Bell Co, 256 Mich App 154, 158-159; 662 NW2d 830 (2003). Plaintiffs attached to their proposed judgment copies of the billing statements from their former and current counsel for the months of June 2016 through November 2016. Plaintiffs sought $41,218.80 in attorney fees and costs for their former counsel, and $16,578.25 in attorney fees and costs for their current counsel. In its written judgment, the trial court adopted plaintiffs’ “determination of damages,” including these exact amounts. Defendant argues on appeal that the trial court erred in accepting the figures that plaintiffs submitted, and found “plaintiffs’ submission to be correct,” without making findings to determine whether the costs were reasonable. However, because the purchase agreement explicitly provided for the award of “all actual attorney fees and costs incurred by the Sellers,” the court was not required to make findings regarding reasonableness, and did not abuse its discretion in making this award. Therefore, the judgment granting plaintiffs damages is affirmed, in part, in regard to the amount awarded to plaintiffs in attorney fees. -9-  III. CONCLUSION The trial court judgment is affirmed, in part, to the extent that it grants plaintiffs summary disposition and denies defendant summary disposition, and the amount of actual attorney fees awarded is affirmed. The trial court judgment is reversed, in part, regarding the value of the plaza used to calculate the total net judgment, and this matter is remanded for further proceedings regarding the correct amount of damages to be awarded plaintiffs. We do not retain jurisdiction. /s/ Christopher M. Murray /s/ Patrick M. Meter /s/ Karen M. Fort Hood -10- 

134 B.R. 868 (1991) In re The DECOR NOEL CORPORATION, Debtor-in-Possession. The DECOR NOEL CORPORATION, Plaintiff-Appellant, v. YULETIDE KREATIONS, INC., Defendant-Appellee. No. 86-2867-HA. United States District Court, W.D. Tennessee, W.D. May 31, 1991. William A. Carson, II, Lucion T. Pera, Memphis, Tenn., for plaintiff-appellant. Howard B. Hayden, Memphis, Tenn., for defendant-appellee. ORDER AFFIRMING THE DECISION OF THE BANKRUPTCY COURT HORTON, Chief Judge. The court must decide whether Decor Noel's payment made of $13,600.00 by *869 plaintiff to defendant Yuletide Kreations, Inc., was made in the ordinary course of business and not subject to § .547(b) avoidance. After a de novo review of the record, transcripts, exhibits, briefs and the Bankruptcy Court's order, this court AFFIRMS the Bankruptcy Court's ruling that Decor Noel's $13,600.00 payment to Yuletide Kreations was made in the ordinary course of business and thus excepted from avoidance under 11 U.S.C. § 547(c)(2). (YUL. Tr., p. 19). BACKGROUND Plaintiff-appellant [debtor in possession], The Decor Noel Corporation, (hereinafter "Decor Noel" or "the debtor") a corporation which manufactures and sells Christmas decorations, filed a Chapter 11 petition on February 6, 1985. On June 24, 1985, Decor Noel filed a Complaint to Avoid and Recover Preferential Transfers, asserting Decor Noel, while insolvent, paid on account of antecedent debt, the sum of $13,600.00, which Decor Noel asserts is proscribed by 11 U.S.C. § 547(b); and, after all due credits are given, Yuletide Kreations owed Decor Noel the amount of $13,600.00. On September 27, 1985, defendant-appellee Yuletide Kreations, Inc., a company doing business in New York, answered, asserting Decor Noel's payment was made in the ordinary course of business. On June 9, 1986, a trial on the merits was held before Bankruptcy Judge Leffler, who ruled the payment was a preferential transfer excepted from avoidance under the "ordinary course of business" exception. (YUL. Tr., p. 19). On October 17, 1986, an order of judgment was entered by the bankruptcy court in favor of Yuletide Kreations in the amount of $13,600.00. On October 24, 1986, Decor Noel filed a notice of appeal of the Bankruptcy Court's ruling pursuant to 11 U.S.C. § 547(b). That appeal presented one issue for review: Whether the Bankruptcy Court erred in ruling Decor Noel's payment of $13,600.00 to Yuletide Kreations, ninety (90) days before the filing of the bankruptcy petition, was in the ordinary course of business; and thus, excepted from avoidance as preferential transfers under 11 U.S.C. § 547(c)(2). On December 4, 1986, Decor Noel, filed its brief averring the payment was not made in the ordinary course of business. On December 24, 1986, Yuletide Kreations filed its brief asserting the payment was made in the ordinary course of Decor Noel's business. Yuletide Kreations also asserted classification as an avoidable preference would violate the clear policy of § 547, and that the $13,600.00 payment was a contemporaneous exchange. On January 8, 1987, Decor Noel filed its reply brief, asserting one issue; namely, whether the payment of $13,600.00 was tendered in the ordinary course of business. On February 27, 1987, a hearing was held on the ordinary course of business issue. There have been no other filings or hearings in this action. FACTS Decor Noel filed a voluntary petition in Chapter 11 bankruptcy, on February 6, 1985. (Alex.Tr. p. 17). Decor Noel's business required prompt servicing of its customers, prompt receipt of raw materials and prompt delivery of finished products. Yuletide Kreations, a company that procures bulk shipments of Christmas related merchandise from overseas manufacturers, acts as an agent, supplying merchandise to distributors throughout the United States. Yuletide Kreations profits by charging commissions on each sale. (Yuletide (hereinafter "YUL") brief filed December 24, 1986, p. 2) (citations omitted). Prior to filing, these parties had not done extensive business with each other. However, ninety (90) days before filing, Decor Noel paid Yuletide Kreations $13,600.00, which the Bankruptcy Court ruled was a payment in the ordinary course of business. Decor Noel, in essence, asserts the Bankruptcy Court erred in applying the § 547(c)(2) ordinary course of business exception. *870 Decor Noel also asserts that both the changes in the terms of what was available as collateral, and the fact that the bank agreed to grant an exception to the general lending agreement, were tantamount to Decor Noel not operating according to normal business terms. Hence, they are due the amount of $13,600.00. Yuletide Kreations relied on their brief and produced no witnesses in the bankruptcy proceeding. According to their brief, on or about July 31, 1984, Decor Noel contacted Yuletide Kreations to procure twenty thousand (20,000) Christmas light sets for its Memphis plant. (YUL brief filed December 24, 1986, p. 2) (citations omitted). In response, Yuletide Kreations sent a letter of confirmation on August 1, 1984. Yuletide Kreations acquired, and paid for, the lights which were delivered to Decor Noel on October 11, 1984. (YUL Brief, p. 2-3). Shortly thereafter, Yuletide Kreations received payment, i.e., check number 877, dated October 19, 1984, in the amount of $13,600.00, which cleared November 14, 1984, (33 days after receipt of merchandise and 44 days after invoice date). (YUL brief, p. 3). Decor Noel's chief financial officer and treasurer, Jack Harris, the primary witness questioned in the adversary proceeding, had direct supervisory authority over Decor Noel's affairs, including accounts payable, as well as the borrowing of all funds. Mr. Harris testified that Decor Noel received 100% of its working/operating capital from CitiCorp Industrial Credit, Inc. (hereinafter "CitiCorp") with all receivables, inventory and fixed assets pledged as collateral. (Alex.Tr. pp. 15-19, 25-26). Every day Mr. Harris computed the amount Decor Noel needed to operate. He then figured, on what he referred to as the "summary worksheet", Decor Noel's daily banking position. The daily banking position referred to the amount Decor Noel could borrow from CitiCorp on a particular day. The amount was determined by calculating the credit amount available, that is, the Pre-Approved loan ceiling (Decor Noel had one of $11,400,000.00) minus the outstanding loan balance due to CitiCorp. Decor Noel received the money via CitiCorp's disbursement account, maintained at First Tennessee Bank in Memphis, Tennessee. Mr. Harris testified the CitiCorp and Decor Noel agreement calculated "remaining debt" by adding the sum of eighty-five percent (85%) of the value of Decor Noel's receivables, less than 30 days past due, plus seventy-five percent (75%) of Decor Noel's inventory. This figure represented the maximum amount Decor Noel could borrow (not exceeding "the fixed loan ceiling" of $11,400,000.00). (Alex.Tr. p. 29, line 2-13). Decor Noel's former comptroller also testified that Decor Noel's ordinary course of collecting accounts receivables was to: 1. "Seasonally" date of all invoices; 2. have the majority of their invoices due on December 10 of the year of sale (in the instant case, 1984); 3. have all shipments delivered on or about the first of December. Mr. Harris testified he always tried to improve Decor Noel's operating situation, but bills were being paid some thirty (30) to forty (40) days after invoices were received. He next testified it was Decor Noel's policy, for about one year, to date checks ". . . as if they were going to be mailed and paid concurrently." Later Mr. Harris would check Decor Noel's loan availability with CitiCorp. If there were funds available he would pay the employees first from the oldest checks. (Alex.Tr. p. 32, lines 1-12). Continuing, Mr. Harris testified Decor Noel, prior to October 18, 1984, usually borrowed as they wanted and paid bills as they saw fit . . . according to availability. Decor Noel repaid CitiCorp by depositing money directly into CitiCorp's "accounts receivable" account at First Tennessee Bank. Mr. Harris clearly stated Decor Noel had no authority or control over the account. (Alex.Tr. p. 33, lines 4-20) (emphasis added). During September 1984, board chairman Mr. Kosberg's personal guarantee of $800,000.00 expired. In October of 1984, Decor Noel sought a new line of credit with CitiCorp guaranteed by new board president Mr. Kaplan in the amount of $500,000.00. *871 However, CitiCorp did not raise this troubled company's debt ceiling. Mr. Harris testified there was no semi-unlimited debt ceiling given to Decor Noel in response to the October guarantee. Decor Noel reacted by shifting disbursements, always paying payroll and payroll taxes. However, on October 18, 1984, Decor Noel's financial position changed drastically when the value of assets exceeded the credit ceiling. Mr. Harris testified that Decor Noel had effectively Borrowed $309,000.00 above their debt ceiling, causing a negative remaining debt figure. Mr. Harris testified two prerequisites were needed to keep Decor Noel "afloat" . . . the completion of product manufacturing and the shipping of orders. In response, Decor Noel air freighted raw materials for the order of it's biggest customer, KMART. Decor Noel only paid those suppliers of necessary raw materials in order to fulfill the balance of the majority of its sales. (Alex.Tr. p. 35, lines 12-24), i.e., Yuletide Kreations' light sets in this cause. See, (Decor brief, p. 6, filed December 4, 1986). Mr. Harris generally agreed with defense counsel Carson's statement that "prior to mid-October . . . you weren't at that time in a situation where you had negative debt availability and your normal procedure, which was to try to pay the oldest bills first attained; and after mid-October you had to change it because of those problems with getting additional funds[.]" (Alex.Tr. p. 36, lines 2-13). After mid-October Decor Noel would, on a daily basis, call CitiCorp and request daily money to operate with. During this period Decor Noel showed a $200,000.00 loss. Decor Noel also projected a one-half million dollar loss, as of September 1984. Mr. Harris also testified that on November 5, 1984, the debt ceiling was increased to $12.4 million. On November 6, 1984, Decor Noel was given additional lending authority allowing the acquisition of $384,000.00 of availability. (Alex.Tr. p. 38). Mr. Harris admitted that on November 30, 1984, the remaining debt available was $1,099,000.00, (Alex.Tr. p. 41, line 14), which implies that during November, the CitiCorp loan was paid below the amount of $11.4 million. It was also established that: 1. On October 17, 1984, the combined credit availability was $382,491.00; 2. Decor Noel's total debt amounted to $11,384,380.02; 3. Decor Noel's total debt ceiling was $11,400,000.00; 4. Theoretically, there was available for loan approximately $382,000.00; 5. Realistically, Decor's debt availability was $15,619.98; 6. On November 30, 1984, the remaining debt available was $1,099,000.00; and, 7. On said date the combined availability was a negative (-)$1,247,000.00. (Alex.Tr. pp. 40-44). Mr. Harris also testified the CitiCorp loan agreement cited three loan factors; and of the three, two were mainly used . . . availability versus loan ceiling. (Alex.Tr. p. 42, lines 18-21). Mr. Harris further testified, that on or about November 15, 1984, Decor Noel removed its inventory's value from the calculation of availability; and as a result, on November 19, 1984, they were $1,800,000.00 over the available line of credit. Not withstanding, CitiCorp continued to let Decor Noel borrow, even though there was a negative combined availability. Mr. Harris' testimony established that Decor Noel paid CitiCorp as collections were made from accounts receivable. Mr. Harris testified that in December of 1984, Decor Noel paid debt by borrowing funds from CitiCorp; creditors were paid selectively because Decor Noel had exceeded their credit availability limit. Finally, the parties have stipulated to all the elements of a preference, except the presence of an antecedent debt. (YUL Tr., p. 9). However, the court below found that all of the elements of a preference were satisfied. (Order entered October 17, 1986, p. 1). There have been no other filings in this cause. *872 APPLICABLE LAW AND CONCLUSIONS District courts have jurisdiction over appeals from decisions of bankruptcy courts. However, the Supreme Court's plurality opinion in Northern Pipeline Construction Company v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), expressed concern over the fact that: § 241(a) of the Bankruptcy Act of 1978 has impermissibly removed most, if no all, of "the essential attributes of the judicial power" from the Art. III district court, and has vested those attributes in a non-Art. III adjunct. Such a grant of jurisdiction cannot be sustained as an exercise of congress' power to create adjuncts to the Art. III courts. 458 U.S. at 88. Shortly thereafter, 28 U.S.C. § 157(b)(2) was enacted. § 157(b)(2) classifies bankruptcy proceedings as core or non-core. Bankruptcy judges may only enter final orders in core proceedings. The instant cause is classified, under § 157(b)(2)(F), as a core proceeding; and accordingly, a bankruptcy judge may enter a final order. Section 158(a) provides the jurisdictional basis for a district court to hear appeals of final orders. In the instant cause, the ruling of Judge Leffler is reviewable as a final decision and thus, jurisdiction is proper. There are two standards of review on appeals from bankruptcy court judgments, de novo and clearly erroneous. In the Sixth Circuit "[f]act findings of the bankruptcy court [in a core proceeding] are reviewed for clear error. But where the bankruptcy court's fact finding arises from a misunderstanding of the law is reviewed for plain error of law." In re Fulghum Construction Corp., 872 F.2d 739, 742 (6th Cir.1989) (citations omitted) (quoting, Morgan v. K.C. Machine & Tool Co., 816 F.2d 238, 244 (6th Cir.1987)). Decor Noel presented one issue for review: Whether the bankruptcy court erred in ruling Decor Noel's payment of $13,600.00 to Yuletide Kreations, within 90 days before the filing of the bankruptcy petition, was in the ordinary course of business; and thus, excepted from avoidance as a preferential transfer under 11 U.S.C. § 547(c)(2). Subsection (c) of § 547 lists preferential payments that are not avoidable by the trustee; here Decor Noel. In particular, § 547(c)(2)(B) and (C) reads as follows: The trustee may not avoid under this section a transfer . . . to the extent that such transfer was . . . (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms. The highly respected treatise, Collier on Bankruptcy has written, [t]o fall within the "ordinary course" of business exception, a transferee must show that: (i) the underlying debt of which payment was made was "incurred in the ordinary course of business or financial affairs" of both parties; (ii) the transfer was made "in the ordinary course of business or financial affairs" of both parties; and (iii) the transfer was made according to ordinary business terms. 4 Collier on Bankruptcy, § 547.10, pp. 547-50 (L. King & K. Klee 15th ed. 1990). Collier also states, courts testing the ordinariness of a transaction should generally focus on prior conduct of the parties, common industry practice and particularly, whether payment resulted from any unusual practice. 4 Collier, supra, at pp. 547-50. § 547.10 (citations omitted) (footnotes omitted). The Sixth Circuit recently held, in In re Fulghum Construction Corp., 872 F.2d 739 (6th Cir.1989), that ". . . [a] court's inquiry must be directed to an analysis of the business practices which were unique to the particular parties under consideration; and not to practices which generally prevailed in the industry of the parties." Id. at 743 (citations omitted). Courts must look to the record to see if there has been any unusual action by either debtor or creditor to collect or pay on the deal. In re *873 Colonial Discount Corp., 807 F.2d 594, 600 (7th Cir.1986). Collier also states, courts have denied the § 547(c)(2) ordinary course of business protection, to transfers commonly known as "Ponzi Schemes". 4 Collier, supra, at pp. 547-51, § 547.10 (footnote omitted). The instant record does not support the presence of a "Ponzi Scheme" which uses after acquired funds to pay off previous debt. Furthermore, courts have also given late payments ordinary course of business protection "when such payments were well-established between the parties." 4 Collier, supra, at pp. 547-51, § 547.10; see also, Yurika Foods Corp. v. United Parcel Service, 888 F.2d 42 (6th Cir.1989) (late payments fell within the ordinary course transfers based on evidence of late payment practice between the parties and the industry in general). 4 Collier, supra, at pp. 547-51, § 547.10, fn. 8. Of particular importance is a Sixth Circuit case, In re Finn, 909 F.2d 903 (6th Cir.1990). In Finn, a woman went to her credit union and borrowed a debt consolidation loan with her brother as a co-signer. As fate would have it, she was laid off within one year of receiving the loan. Notwithstanding the layoff, she continued to make payments until she filed a petition for relief. The trustee in Finn sought the return of $1,300.00 based on the cosigner's contingent liability. Id. at 905. The Finn court held ". . . as a general rule . . . a transaction can be in the ordinary course of financial affairs even if it is the first such transaction undertaken by the customer. This rule holds where the transaction would not be out of the ordinary for a person in the borrower's position." Id. at 908. Applying Finn, this court can not find Decor Noel's acquisition of Christmas lights from a company like Yuletide Kreations out of the ordinary. Payment after receipt is an ordinary business transaction. (YUL Tr. pp. 8-12). The receipt of payment 33 days after delivery of the goods, or 47 days after invoicing, is not out of the ordinary course of either company's business based on the record submitted in this cause. The preference period began on November 8, 1984, during this time $13,600.00 was paid to Yuletide Kreations. A recent Sixth Circuit case, In re Belknap, Inc., 909 F.2d 879 (6th Cir.1990), requires a closer look at the aforementioned payment. In Belknap, the court held a transfer, under the 1978 Bankruptcy Act, requires delivery, which occurs upon actual receipt of a check. Id. at 883-884. Applying Belknap, the date of payment of check # 877 provides the basis for the inference that the date of payment by the drawee bank was the date of receipt. The court also notes that the court below ruled Decor Noel's payment was a preference payment. (YUL Tr., p. 19). Accordingly, this court finds, based on the record, and the stipulation of the parties, that check # 877 was a preferential transfer within the meaning of § 547(b). The court also affirms the bankruptcy court ruling that the debt was incurred in the ordinary course of business. (YUL Tr. p. 6). Mr. Harris testified, in the MCS[1] proceeding, that after October 25, 1984, Decor Noel's payment lag time increased to between 43 and 61 days. (See MCS tr. p. 5, lines 5-9, 10-13). In still another proceeding reviewed by this court, it was found that Decor Noel paid defendant V. Alexander Company[2] in the following manner: *874 (Days after Invoice (DAI) No. of Times Late (freq) DAI freq DAI freq DAI freq 15 days — 2 times 16 days — 2 times 18 days — 3 times 20 days — 1 time 21 days — 1 time 22 days — 4 times 24 days — 2 times 27 days — 4 times 28 days — 7 times 29 days — 8 times 30 days — 2 times 31 days — 2 times 32 days — 1 time 33 days — 1 time 34 days — 2 times 35 days — 2 times 36 days — 2 times 39 days — 1 time (See Exhibit 1 filed with Alex.Tr.). These two proceedings serve as a "marker" of the delays, frequency of delays and practices of Decor Noel in paying creditors before and during their peak season. (See, MCS tr. p. 5, lines 5-9, 10-13). The record submitted in this cause, especially when reviewed in conjunction with two very similar causes filed and recently ruled on by this court involving Decor Noel, as well as, Mr. Harris' testimony, is illustrative of Decor Noel's payment philosophy. The above payment patterns buttress this court's finding that this payment, by Decor Noel, was in the ordinary course of business. Yuletide Kreations did not choose to send dunning letters, nor did they call. Yuletide Kreations accepted payment within its ordinary course of business. As the Finn court stated, when speaking of Ms. Finn's consolidation loan, "[t]he type of loan taken out by Finn . . . is, indeed the life blood of credit unions . . . and of commercial credit companies, and is an important part of the business of banks. Such a transaction can scarcely be "unusual" for every borrower." In re Finn, 909 F.2d 903, 908 (6th Cir. 1990). Although we are not faced with a credit union, Yuletide Kreations provided a useful service to Decor Noel. It can hardly be said that Decor Noel's use of Yuletide Kreations to acquire of the light sets was unusual. Finn also held, a transaction can be afforded ordinary course protection even if it is the first transaction between the parties as long as it would not be out of the ordinary for the borrower. The instant transaction was not out of the ordinary. The court also takes judicial notice of the seasonal nature of this business. Even the most joy filled Christmas shopper would have little use for these products beyond the holiday season. Accordingly, the court can fathom how Yuletide Kreations exercised good business judgment in assuming the payment was in the ordinary course of Decor Noel's business. Decor Noel's method of payment, between September and the end of 1984, was reasonable and according to its ordinary business terms. Just because the payment was late does not provide this court a sufficient basis to term it not in the ordinary course of Decor Noel's business. The record submitted provided an adequate basis for ruling the payment was made in the ordinary course of business. Mr. Harris testified that Decor Noel, a highly seasonal business, was only trying to keep the "doors" of their business open, the flow of products moving, and people working. Decor Noel paid those who were necessary to maintain its business. The record provides adequate support for the ruling below. The bankruptcy court did not err. As the Sixth Circuit held in In re Fulghum Construction Corp., 872 F.2d 739 (6th Cir.1989), business practices unique to Yuletide Kreations and Decor Noel, prior to the ninety (90) day preference period must be reviewed. These practices circumscribe the exclusion of the single payment made by Decor Noel from the avoidance powers granted in § 547(b). There is no evidence in this record of unusual action by the parties to facilitate payment or collection of the debt. Decor Noel prior to, and after filing, operated on a day to day basis. During mid-October Decor Noel borrowed from CitiCorp according to a formula that existed prior to the preference period. There was no change in *875 the manner or method used by Decor Noel to complete it's business transactions. Mr. Harris did testify that Decor Noel's financial position changed drastically. However, there was neither an increase in Decor Noel's debt ceiling, nor a change in the way Decor Noel acquired operating capital. (See Alex.Tr. pp. 29-35). Such a "change in financial condition" is not unusual for a company experiencing cash flow problems on one hand, and fighting bankruptcy's "slippery slope" with the other. Mr. Harris best articulated Decor Noel's state of affairs, [w]e were still manufacturing and we were running behind because one . . . we were late getting light sets out of Taiwan, and our largest customer was the primary purchaser . . . I had to make sure that I kept money used more appropriately for the payroll and the payroll taxes and to do these things, to keep merchandise coming in." (Alex.Tr., pp. 31-32, 33-36). The court below was correct. The policy considerations of §§ 547(c)(1)(2) and (4), are all designed to encourage creditors to deal with failing business and protect ordinary business transactions. The "ordinary course of business" exception encourages and facilitates rehabilitation, by encouraging creditors to continue to do business with the troubled enterprises. There was no change in the pattern of payments by Decor Noel. The payment was consistent with other payments made by Decor Noel to other creditors whom they deemed necessary to keep the company afloat. After a careful de novo review of the entire record of this appeal, this court AFFIRMS the decision of the Bankruptcy Court; and finds that the payment submitted by Decor Noel during the preference period was made in the ordinary course of business. It is so ORDERED. NOTES [1] Defendant-appellee Manufacturers Consolidation Services, Inc., (hereinafter "MCS"), is a company that acts as a "shipper's agent", doing business in Memphis, Tennessee. They were the subject of a recent opinion issued by this court in Civil docket # 86-2947. They had done business with Decor Noel for twelve years. [2] Decor Noel filed a similar appeal, Civil docket # 86-2868, recently ruled on by this court. Prior to the filing of the petition, for at least seven years, Alexander delivered and imported those raw materials necessary to make Decor Noel's product line.

510 U.S. 1120 Pattersonv.United States. No. 93-6534. Supreme Court of United States. February 22, 1994. 1 Appeal from the C. A. 5th Cir. 2 Certiorari denied. Reported below: 996 F. 2d 305.

ILLINOIS OFFICIAL REPORTS Appellate Court Country Insurance & Financial Services v. Roberts, 2011 IL App (1st) 103402 Appellate Court COUNTRY INSURANCE AND FINANCIAL SERVICES, Plaintiff- Caption Appellant, v. TIMOTHY B. ROBERTS, Defendant-Appellee. District & No. First District, Second Division Docket No. 1–10–3402 Filed June 30, 2011 Held Plaintiff’s complaint alleging acts of fraud by defendant in connection (Note: This syllabus with his workers’ compensation claim was properly dismissed for lack constitutes no part of the of jurisdiction, since the complaint presented questions of fact with opinion of the court but regard to defendant’s relationships with the company where he was has been prepared by the employed at the time of his injury and the company where he allegedly Reporter of Decisions for started working five months after his injury, the extent or existence of the convenience of the his injury, and his representations to medical personnel regarding his reader.) injury, and these questions involved matters within the scope of the Workers’ Compensation Commission’s special expertise; therefore, the case should be before the Commission, not the circuit court. Decision Under Appeal from the Circuit Court of Cook County, No. 10–L–004387; the Review Hon. Brigid Mary McGrath, Judge, presiding. Judgment Affirmed. Counsel on Brady, Connolly & Masuda, P.C., of Chicago (Andrew R. Makauskas Appeal and Lisa J. Vedral, of counsel), for appellant. Steinberg, Goodman & Kalish, of Chicago (Bradley Steinberg, of counsel), for appellee. Panel JUSTICE KARNEZIS delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion. OPINION ¶1 Plaintiff Country Insurance and Financial Services appeals from the circuit court’s order dismissing its complaint for lack of jurisdiction against defendant Timothy Roberts. On appeal, Country Insurance contends that the circuit court rather than the Illinois Workers’ Compensation Commission (Commission) has jurisdiction to hear its claim for fraud, which arose out of a workers’ compensation claim. For the following reasons, we affirm the judgment of the circuit court. ¶2 Background ¶3 On January 16, 2007, Roberts suffered a work-related injury while in the employ of Lakes Underground. Country Insurance is the workers’ compensation carrier for Lakes Underground. Between January 16, 2007 and August 10, 2007, Country Insurance paid Roberts approximately $16,000 in temporary total disability (TTD) benefits pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)). Country Insurance ceased payments to Roberts when it discovered Roberts had begun employment with Exceptional Plumbing Services in June 2007. ¶4 Roberts filed an application for adjustment of claim pursuant to the Act as to his January 16, 2007 injury. The application is not included in the record on appeal; however, Roberts represents in his brief that his claim remains pending before the Commission. ¶5 Country Insurance filed a four-count complaint against Roberts alleging various acts of fraud. The counts of fraud include fraudulent misrepresentation; insurance fraud; fraud pursuant to the Act; and fraudulent concealment. Country Insurance sought to recoup its costs including the TTD benefits it had paid to Roberts as well as the medical benefits Roberts received, and the attorney fees and costs of bringing the suit against Roberts. ¶6 Roberts filed a motion to dismiss the complaint alleging that the Commission rather than -2-  the circuit court had jurisdiction over the claim.1 The circuit court granted the motion to dismiss pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2006)), finding “all counts thereof are dismissed with prejudice, the court lacking primary jurisdiction as to the issues therein and *** primary jurisdiction being with the Illinois [Workers’ Compensation] Commission.” Country Insurance appeals from the court’s order. ¶7 Analysis ¶8 A section 2–619 motion to dismiss raises certain defects or defenses and questions whether a defendant is entitled to judgment as a matter of law. 735 ILCS 5/2–619 (West 2006). We review an order dismissing a cause pursuant to section 2–619 de novo. Ferguson v. City of Chicago, 213 Ill. 2d 94, 99 (2004). ¶9 In this appeal, we must determine whether the circuit court or the Commission has jurisdiction over the claims in Country Insurance’s complaint. The answer to this jurisdictional question lies in the nature of the action brought. ¶ 10 Illinois courts have original jurisdiction over all justiciable matters. Ill. Const. 1970, art. VI, § 9. However, section 18 of the Act also provides: “[a]ll questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission.” 820 ILCS 305/18 (West 2006). Our supreme court has determined that under certain circumstances, both the Commission and the circuit court have concurrent jurisdiction to decide a question raised in a workers’ compensation case. Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284, 288 (1994). ¶ 11 We find the cases of Employers Mutual Cos. v. Skilling, 163 Ill. 2d 284 (1994), and Hollywood Trucking, Inc. v. Watters, 385 Ill. App. 3d 237 (2008), instructive. ¶ 12 In Skilling, the workers’ compensation insurer filed a complaint for declaratory judgment in the circuit court against the defendants seeking a determination of its rights. Our supreme court found that because the case concerned insurance coverage, which presented a question of law, the case was properly before the circuit court rather than the Commission. The court stated: “It is the particular province of the courts to resolve questions of law such as the one presented in the instant declaratory judgment case. Administrative agencies are given wide latitude in resolving factual issues but not in resolving matters of law.” Skilling, 163 Ill. 2d at 289. The court further stated that “a matter should be referred to an administrative agency when it has a specialized or technical expertise that would help resolve the controversy, or when there is a need for uniform administrative standards.” Skilling, 163 Ill. 2d at 288-89. ¶ 13 In Hollywood Trucking, the employer filed a complaint in the circuit court against its employee alleging that the employee fraudulently misrepresented his medical history during a medical examination. The employer alleged that had it been aware of the employee’s 1 The motion to dismiss failed to specify whether it was brought pursuant to section 2–615 or 2–619 of the Code of Civil Procedure (735 ILCS 5/2–615, 2–619 (West 2006)). -3-  medical history, it would not have hired him and would not have subsequently become liable to provide him workers’ compensation benefits when he was injured. The circuit court dismissed the fraud count for lack of jurisdiction. This court on appeal affirmed the dismissal, finding that the allegations of fraud against the employee concerned the types of factual issues, such as the circumstances of the accident, the nature and extent of the injury and the employer’s potential defenses, which should be determined by the Commission rather than the circuit court. Hollywood Trucking, Inc., 385 Ill. App. 3d at 245. ¶ 14 Here, Country Insurance’s complaint seeks to recoup the benefits it paid to Roberts under the Act as well as the medical benefits, attorney fees and the costs of bringing the suit. Because Roberts’ application for adjustment of claim remains pending before the Commission, the Commission has not yet made any findings or rulings as to whether Roberts was entitled to receive any benefits under the Act. The complaint, premised on various theories of fraud, presents questions of fact such as the nature of Roberts’ employment relationship with Lakes Underground and Exceptional Plumbing Services, the extent or existence of his injury and his representations to medical personnel regarding his injury. As in Hollywood Trucking, these are questions of fact in which the Commission can draw on its special expertise to answer. Country Insurance’s complaint does not present a question of law as in Skilling. As such, the cause should be before the Commission rather than the circuit court. The circuit court properly dismissed Country Insurance’s complaint for lack of jurisdiction. ¶ 15 Accordingly, we affirm the judgment of the circuit court. ¶ 16 Affirmed. -4- 

896 F.Supp. 166 (1995) D.B., Plaintiff, v. Howard BLOOM, D.D.S., and Madison Dental Centre, Defendants. Civ. No. 93-2094. United States District Court, D. New Jersey. August 15, 1995. *167 John V. Jacobi, Crummy, Del Deo, Dolan, Griffinger & Vecchione, a Professional Corporation, Newark, NJ, on behalf of the American Civil Liberties Union of New Jersey, for plaintiff. Donald B. Mark, Law Office of Donald B. Mark, Stratford, NJ, for defendants (Withdrawn As Counsel). FINDINGS OF FACT AND CONCLUSIONS OF LAW BROTMAN, District Judge: INTRODUCTION This matter is before the court on plaintiff's motion for entry of default judgment *168 pursuant to Fed.R.Civ.P. 55(b)(2). For the reasons set forth below, plaintiff's motion is granted. I. PROCEDURAL HISTORY Plaintiff D.B.[1] filed a complaint in this matter on May 14, 1993, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the "NJLAD"), and the tort of intentional infliction of emotional distress. Plaintiff seeks compensatory and punitive damages, injunctive relief, and attorneys fees and costs. Defendants Dr. Bloom and Madison Dental Centre filed an answer on July 6, 1993. This court has jurisdiction over the claims by virtue of federal question jurisdiction and supplemental jurisdiction. 28 U.S.C. §§ 1331 and 1367(a), respectively. United States Magistrate Judge Robert B. Kugler entered numerous discovery and scheduling Orders in this matter, but defendants refused to comply with such orders even as the court granted repeated extensions prolonging the discovery period for ten months. Having received no discovery by July 1994, plaintiff filed a motion to compel discovery, for sanctions pursuant to Fed. R.Civ.P. 37(b), and specifically, for an Order striking defendants' answer and defenses pursuant to Rule 37(b)(2)(C). In a letter opinion resolving plaintiff's motion, dated August 29, 1994, Judge Kugler carefully discussed the six factors that the Third Circuit Court of Appeals, in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984), determined must be evaluated before default may be entered in an action. Letter Opinion, No. 93-2094, slip op. at pages 8-12 (D.N.J. August 29, 1994). The six Poulis factors are: 1) the extent of the party's personal responsibility; 2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; 3) a history of dilatoriness; 4) whether the conduct of the party or the attorney was willful or in bad faith; 5) the effectiveness of sanction other than dismissal; and 6) the meritoriousness of the claim or defense. Id. at 867. Judge Kugler correctly concluded that the factors weighed in plaintiff's favor, and Judge Kugler granted plaintiff's motion and struck defendants' answer and entered default as a sanction for defendants' wilful failure to comply with discovery. In addition, defendants' counsel, having been unable to maintain any contact with his clients, moved to be relieved as counsel. Judge Kugler deemed the motion to be granted upon the condition that defendants' counsel serve a copy of the letter opinion and order upon defendants at their last known addresses within twenty-one days of the order. Plaintiff then moved for default judgment. Although provided with advance notice of the proof hearing on the motion held on February 7, 1995, defendants did not appear or otherwise respond. II. FINDINGS OF FACT 1. Plaintiff D.B. is a resident of New Jersey who, in the fall of 1992, tested positive for the antibodies associated with HIV, the human immunodeficiency virus believed to be the causative agent of acquired immune deficiency syndrome ("AIDS"). (Transcript, 2/7/95 at 10). 2. Due to a car accident in August, 1992, D.B. suffered from a cracked tooth which caused pain and required dental treatment. (Tr. at 10-11). 3. D.B. decided to go to defendant Madison Dental Centre, having read a full page advertisement that appeared on the back of The Speedliner, a free publication distributed to mass transit passengers in the Philadelphia and South Jersey regions. (Tr. at 10). 4. Dr. Bloom, who practiced dentistry at and owned Madison Dental Centre located at 6500 Madison Ave., Pennsauken, New Jersey, first treated D.B. in November, 1992. D.B. returned to Dr. Bloom to have his cracked tooth extracted on December 1, 1992. (Tr. at 11). *169 5. The preliminary work for the tooth extraction had been completed and D.B. was sitting in the dental chair prepped and ready to proceed, when a conflict arose over whether D.B.'s functional heart murmur necessitated the administration of general anesthesia. (Tr. at 11). 6. When D.B. and Dr. Bloom were unable to agree on the need for general anesthesia, they decided to consult D.B.'s physician on the matter. D.B.'s physician was unavailable so they spoke with the medical director, who asked D.B. for permission to inform Dr. Bloom of D.B.'s HIV status. D.B., who had informed only four people of his HIV status, was reluctant to share this information with Dr. Bloom whom D.B. perceived as not "trustworthy" nor able to "handle" the information. D.B. acquiesced in the medical director's request, however, and handed the phone over to Dr. Bloom in order for the physician to inform Dr. Bloom of D.B.'s HIV status. (Tr. at 12-14). 7. Dr. Bloom was subsequently refused further treatment solely due to his HIV status as evidenced by defendants' sudden change in behavior upon learning of D.B.'s status. Dr. Bloom's face "went totally blank" when he received the information, and he left the room for a minute or two. During those minutes, D.B. returned to the dental chair to await the extraction. Dr. Bloom returned, and in the presence of a dental assistant, told D.B. that he could no longer offer him services, and that he would refer him to a "special clinic for HIV," that is, someone who was "better suited to take care of [his] needs." (Tr. at 15-16). 8. As he left the examination room, D.B. overheard Dr. Bloom engaged in a conversation with a Madison Dental Centre record clerk and another person not employed by the Centre. D.B. testified that Dr. Bloom was describing how he felt embarrassed that he had to go through a situation like that, and that he could not provide D.B. with services. (Tr. at 16). 9. Instead of the promised referral to a particular clinic possessing some alleged specific expertise in handling dental patients infected with HIV, the receptionist referred him to Camcare, a facility that provides services to the medically indigent and mentally ill. D.B. objected, indicating that the referral was inappropriate and that he had insurance and was able to pay Madison Dental Centre. (Tr. at 17-18). 10. The refusal of treatment, the doctor's open discussion of his medical condition, and the inappropriate referral to another provider caused D.B. great pain and emotional trauma. D.B. had only revealed his HIV status to four people because he dreaded what he anticipated would be negative ramifications stemming from the disclosure of his HIV status. And, in fact, his fears were realized when defendants refused to provide D.B. with medical services once they learned of his HIV status. (Tr. at 15). 11. After leaving Madison Dental Centre, D.B. went home and cried. He was "extremely angry, [and] embarrassed beyond belief." (Tr. at 19). As a result of his experience at Madison Dental Centre, D.B.'s physical and emotional health suffered. He stopped eating and exercising, and his weight dropped from 155 to 126 pounds. His consumption of alcoholic beverages increased, and he resumed drug therapy for depression. He experienced suicidal urges, which manifested themselves in reckless driving, and dangerous, aggressive behavior in his work with inmates in state prisons. (Tr. at 20-21). 12. In addition, D.B. testified that the experience caused his relationship with his partner to end, strained his relationship with his roommates, and caused him to argue with co-workers. (Tr. at 20-21). 13. D.B.'s state of emotional distress continued for approximately two years. More recently, through psychological therapy and an HIV support group, he has begun to recover. Nonetheless, this traumatic experience has left him permanently scarred and "absolutely terrified" that others will react to his HIV status as defendants did. (Tr. at 22). III. CONCLUSIONS OF LAW 1. Pursuant to Rule 55(b)(2), Fed. R.Civ.P., the court may enter judgment by default when a party has failed to plead or otherwise defend in the action. Although the *170 entry of a default judgment is an extreme sanction, the authority to do so is entrusted to the discretion of the trial court. Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 919 (3d Cir.1992); Poulis v. State Farm and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984). The court must be satisfied that the non-moving party has received notice of the motion and that the judgment and remedies applied for are justified by the pleadings and other information of record.[2] 2. Defendants in this matter were properly served notice of the motion for entry of default judgment, as evidenced by the Certification of Service filed by plaintiff. 3. The allegations of plaintiff's complaint and testimony, taken as true for the purposes of this motion,[3] set forth a prima facie case for discrimination under the ADA. The general rule of the ADA states: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). First, D.B. is, by virtue of his HIV status, a person with a disability.[4] Second, a dental services provider is a place of public accommodation by the terms of the ADA.[5] Since defendant Dr. Bloom owns defendant Madison Dental Centre which operates as a public accommodation, the statute applies. See Howe v. Hull, 873 F.Supp. 72, 77 (N.D.Ohio 1994) (hospital which operates as a public accommodation subject to the ADA and individual physician in hospital subject to personal liability under the ADA as well). Finally, plaintiff's pleadings and testimony conclusively establish that he was denied services and equal treatment by both defendants by virtue of his disability[6] in violation of 42 U.S.C. §§ 12182(b)(1)(A)(i) and (ii) and 28 C.F.R. §§ 36.202(a) and (b). See, generally, Morvant, supra. 4. The record in this matter similarly establishes the elements of a claim under the NJLAD. The NJLAD forbids "any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly *171 to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof. ..." NJLAD 10:5-12(f). All the provisions of the act shall be construed to prohibit any unlawful discrimination against any person who is or has been at any time handicapped. NJLAD 10:5-4.1. The three elements of an NJLAD claim are established. First, D.B. qualifies as handicapped due to his HIV infection.[7] Second, the Madison Dental Centre must be considered a public accommodation within the meaning of the NJLAD.[8] It has held itself out in an advertisement prominently displayed on the back cover of a free magazine as a health service provider which "caters to the public, and by advertising and other forms of invitation induces patronage generally." Evans v. Ross, 154 A.2d 441, 57 N.J.Super. 223, 231 (1959). According to Evans, the NJLAD was designed to "insure that all citizens of this State shall have equal rights as members of the public and not be subjected to the embarrassment and humiliation of being invited to an establishment, only to find its doors barred to them." Id. Third, plaintiff's pleadings and testimony conclusively establish that he was denied services and equal treatment by both defendants by virtue of his disability in violation of NJLAD 10:5-12(f). 5. Having found for plaintiff on his claims under the ADA and the NJLAD, the court need not reach his claim of intentional infliction of emotional distress. Even if liability were found under the tort of intentional infliction of emotional distress, his recovery would merely duplicate that which is available pursuant to the ADA and the NJLAD.[9] 6. For the reasons stated above, the court finds that judgment by default should be entered against defendants on plaintiff's claims under the ADA and the NJLAD. Remedies 7. Defendants' violation of the ADA and the NJLAD may be remedied by the entry of equitable relief where appropriate. 42 U.S.C. § 12188(a); 28 C.F.R. § 36.504(a)(1); N.J.S.A. 10:5-13. Accordingly, the court orders defendants to 1) no longer discriminate against persons who are HIV-positive; 2) institute and maintain a policy of non-discrimination on the basis of HIV-positive status; and 3) post this policy prominently in defendants' waiting room.[10] 8. Compensatory and punitive damages may be awarded under plaintiff's state law claims. N.J.S.A. 10:5-13. See Levinson v. Prentice-Hall, Inc., 868 F.2d 558, 562 (3d Cir.1989) (recognizes that NJLAD allows for reasonable punitive damages in addition to recovery for actual losses). D.B. suffered actual injury in the form of "delay in receiving treatment for his cracked tooth, and continues to experience feelings of humiliation, shame, anger, helplessness, rejection and depression." (Complaint, ¶ 14). Furthermore, the facts of the record reveal that defendants willfully and intentionally disregarded D.B.'s rights, which justifies the award of punitive damages for the purpose of deterring future similar egregious conduct. Smith v. Wade, 461 U.S. 30, 48-49, 103 S.Ct. 1625, 1636-37, *172 75 L.Ed.2d 632 (1983) (standard for punitive damages). The court finds defendants' actions to be particularly offensive in light of their status as licensed health care providers who ought to be aware of and practice universal precautions. In addition, defendants must recognize that such an experience could inhibit HIV-positive persons from seeking important medical services thus discouraging them from obtaining what they need even more than the average person — regular, careful health monitoring. In the best of circumstances, many people find receiving medical care, and dental care, in particular, to be an anxiety-producing experience. Certainly this is a case whereby D.B.'s experience of discrimination made receiving necessary medical services an even more traumatic ordeal. D.B. had already been treated once at this facility and returned expecting further treatment. Instead, while he was sitting in the dental chair, prepped with medical personnel present and ready to provide services, Dr. Bloom abruptly told him to leave and obtain services elsewhere due to his HIV status. Dr. Bloom then proceeded to further compound plaintiff's injuries by discussing highly confidential medical information with an employee and another person not employed at the Centre. The court finds that the significant harm suffered by plaintiff as a result of defendants' intentional acts justifies an award of $25,000 in compensation for plaintiff's pain, humiliation, and emotional distress, as well as an award of $25,000 in punitive damages. See Howe v. Hull, 873 F.Supp. 72, 74 (N.D.Ohio 1994) (jury awarded HIV-positive patient whom hospital refused treatment and inappropriately referred elsewhere $62,000 in compensatory damages and a total of $450,000 in punitive damages); Minnesota v. Clausen, 491 N.W.2d 662, 663 (Minn.Ct. of App.1992) (affirming award of $410,000 for mental anguish and suffering for refusal of dentist to treat HIV-positive patient, plus $5,000 civil penalty); United States v. Jack H. Castle, D.D.S., Inc., No. H93-3140 (S.D.Tx.1994), reprinted in 1994 AIDS Litigation Reporter 12602 (October 11, 1994) (Consent Order) (respondents agreed to payment of $80,000 in compensatory damages to dental patient allegedly denied services due to HIV-positive status, in addition to $20,000 in civil fines); Renee Allen v. Dr. Stanley Brottman, Case No. 9K-P-D-88-132330 (New York State Division of Human Rights, January 26, 1993) (dentist denied services to patient based on patient's sister's AIDS diagnosis, patient awarded $25,000 in compensatory damages); Moloney v. All County Transportation, Docket No. 91-216PA (New York City Commission on Human Rights, July 19, 1991) (damages of $15,000 awarded for invalid coach driver's refusal to assist HIV-positive patient). 9. Reasonable attorney's fees and costs may be awarded in this action pursuant to 42 U.S.C. § 12188(a)(1), 28 C.F.R. § 36.505, and N.J.S.A. 10:5-27.1. A careful review of the fee application reveals plaintiff's request for fees for time spent with the media regarding this matter. As a matter of law, this kind of activity attorneys generally do at their own expense. Gates v. Shinn, 60 F.3d 525, 1995 WL 346091, at *10 (9th Cir. June 9, 1995); see also United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032, 1049 (6th Cir.1994); Proffitt v. Municipal Auth. of Borough of Morrisville, 716 F.Supp. 845, 851 (E.D.Pa. 1989), aff'd, 897 F.2d 523 (3d Cir.1990). Therefore, to reflect the 7.40 hours plaintiff's attorneys spent with the media, the court will reduce the requested amount of $32,881.18 by $913.57.[11] However, the court finds the remaining fees and costs requested to be reasonable. Plaintiff's counsel billed at the market rate and saved costs by utilizing attorneys with a lower billable rate per hour for the majority of the work. The fees and costs were well-documented with the work completed and hours spent clearly set forth. Therefore, having eliminated the charges referring to media relations, the court finds the fee application to be reasonable and absent *173 any objections by the adverse party,[12] awards plaintiff's attorney $31,967.61 for fees and costs. ORDER FOR DEFAULT JUDGMENT This matter having come before the court on plaintiff D.B.'s motion for entry of default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2); This court having reviewed all submissions; It appearing that a default was entered on August 26, 1994 against defendants Dr. Howard Bloom and Madison Dental Centre for willful failure to comply with discovery; and The court having held a proof hearing on the motion for default judgment on February 7, 1995; and For good cause shown; IT IS on this 15th day of August, 1995 hereby: ORDERED that plaintiff's motion is GRANTED and a judgment by default is ENTERED against defendants; and IT IS FURTHER ORDERED that defendants shall: a) no longer discriminate against persons who are HIV-positive; b) institute and maintain a policy of non-discrimination on the basis of HIV-positive status; c) post this policy prominently in defendants' waiting room; d) pay plaintiff $25,000 in compensatory damages; e) pay plaintiff $25,000 in punitive damages; and f) pay $31,967.61 in plaintiff's reasonable attorneys fees and costs. NOTES [1] Due to the highly personal nature of this litigation, plaintiff appears only by initials in order to preserve his privacy. [2] "[P]laintiff, notwithstanding defendant's default, only [can] obtain a judgment in accordance with the merits of the case...." 10 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 2681 (2d ed. 1983). "[T]he court, in its discretion, may require some proof of the facts that must be established in order to determine liability." 10 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 2688 (2d ed. 1983). [3] "If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." 10 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 2688 (2d ed. 1983). [4] "Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.... The phrase physical or mental impairment includes ... HIV disease (whether symptomatic or asymptomatic)...." 28 C.F.R. § 36.104(1)(iii). [5] "The following private entities are considered public accommodations ... if the operations of such entities affect commerce, ... a professional office of a health care provider, hospital, or other service establishment." 42 U.S.C. § 12181(7)(f). See also United States v. Morvant, 1995 WL 131093 (E.D.La. March 22, 1995) (dental office constitutes a place of public accommodation). [6] Defendants would have the court believe that they refused treatment not based on D.B.'s HIV-positive status, but "because of the plaintiff's dishonest and intentional misrepresentation of his medical history." (Answer, Second Affirmative Defense). This does not constitute a complete defense on the face of the pleadings. Defendants might argue that their acts were defensible because they attempted to refer D.B. based on a bona fide medical reason, such as a lack of specialized skills to properly treat the patient. However, this explanation is unworthy of credence and merely a pretext for discrimination because no specialized skills are required to treat patients who are HIV-positive. "As a general dentist, [defendant] had sufficient expertise and training to provide general dental care to persons with HIV or AIDS." Morvant, 1995 WL 131093 at *6. Therefore, no medically justified reason existed for defendants' refusal to treat D.B. Had defendants contacted any number of experts on HIV, they would have learned "that an HIV-positive individual may be safely treated in a private dental office which utilizes universal precautions." State of Minnesota v. Clausen, 491 N.W.2d 662, 667 (Minn.Ct.App.1992). [7] One of the definitions of handicapped means "suffering from AIDS or HIV infection." NJLAD 10:5-5(q). [8] A place of public accommodation includes "any dispensary, clinic or hospital." NJLAD 10:5-5(l). [9] See Woolfolk v. Duncan, 872 F.Supp. 1381, 1391 (E.D.Pa.1995) (physician alleged to have provided HIV-positive patient with substandard care denied summary judgment on intentional infliction of emotional distress claim because court could not conclude as a matter of law that this behavior was not sufficiently extreme and outrageous); Miller v. Spicer, 822 F.Supp. 158, 169-70 (D.Del.1993) (physician who allegedly refused to treat patient whom he feared might have been HIV-positive denied summary judgment on claim of intentional infliction of emotional distress because court could not conclude that his actions were not extreme and outrageous). [10] Plaintiff also requested that defendants undergo regular in-service training and education on HIV-related treatment issues to all professional and staff employed by or providing services for defendants for a period of three years from the entry of the Order. The court denies this extensive request due to the impracticability of court supervision, and in light of defendants' history of non-compliance throughout this case, such a request would most likely be a futile one. [11] The court calculated this amount by multiplying the hours attorneys "JJ" and "EC" spent with the media, 2.60 and 4.80 hours respectively, by their hourly rate, $175.99 and $95.00 respectively, and then adding these two sums. [12] It is not the court's role to reduce the amount of the award unless the adverse party raises objections to the fee request. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990).

527 F.Supp. 1049 (1981) Joe Wheeler WADE, Individually, Margaret D. Wade, Individually, and as Administratrix of the Estate of Dennis W. Wade, Plaintiffs, v. David WATSON, David Watson Enterprises, Inc., Phillip Howard, Atlanta International Raceway, Inc., and National Association for Stock Car Auto Racing, Inc., Defendants. Civ. A. No. C81-479A. United States District Court, N. D. Georgia, Atlanta Division. December 14, 1981. Paul Oliver, Hansell, Post, Brandon & Dorsey, Atlanta, Ga., H. Park Helms, Lane & Helms, Charlotte, N. C., for plaintiffs. A. Paul Cadenhead, Paul M. Talmadge, Jr., Stephen E. O'Day, Hurt, Richardson, Garner, Todd & Cadenhead, Foy R. Devine, Atlanta, Ga., for defendants. ORDER ROBERT H. HALL, District Judge. This is a diversity case arising out of the death of an automobile mechanic, with all pertinent events occurring in Georgia. The suit is brought by deceased's mother, Mrs. Wade, as Administratrix of his estate, seeking *1050 to recover $500,000 for his pain and suffering; and by his mother and father, individually, seeking $5 million under Georgia's Wrongful Death Act (Ga.Code § 105-1301) for the full value of his life. Dennis W. Wade, the deceased, worked as a mechanic with a pit crew in certain racing events. The complaint alleges that defendant, Mr. Watson, was a driver entered in the Grand National Race at the Atlanta International Raceway, and Wade was a member of his pit crew. Watson entered the pit area to make a pit stop during the race at an unsafe and unreasonably high rate of speed, killing Wade. The complaint alleges gross negligence amounting to an intentional tort. Defendants rely heavily on releases of liability executed by Wade as a condition of access to the premises and participation in the race. Wade executed two documents indicating that he released NASCAR and Atlanta International Raceway and others from liability arising out of participation in the race. One document signed by Wade reads in part as follows: In consideration of receiving permission to enter the premises, being permitted and privileged to participate or assist others participating in said event, as evidenced by the Permit colored, coded and numbered as shown on this form, each of the undersigned, for himself, his heirs, next of kin, personal representatives and assigns, hereby RELEASES, REMISES AND FOREVER DISCHARGES AND AGREES TO SAVE AND HOLD HARMLESS AND INDEMNIFY NASCAR AND SANCTIONING BODY AND THE PROMOTORS PRESENTING SAID EVENT, THE OWNERS, AND LESSEES OF THE PREMISES, THE PARTICIPANTS THEREIN, THE OWNERS, SPONSORS AND MANUFACTURERS OF ALL RACING EQUIPMENT USED IN SAID EVENT AND THE OFFICERS, OFFICIALS, DIRECTORS, AGENTS, EMPLOYEES AND SERVANTS OF ALL OF THEM, OF AND FROM ALL LIABILITY CLAIMS, DEMANDS, CAUSES OF ACTION AND POSSIBLE CAUSES OF ACTION WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, DAMAGE OR INJURY (INCLUDING DEATH) THAT MAY BE SUSTAINED BY OUR RESPECTIVE PERSONS OR PROPERTY, THAT MAY OTHERWISE ACCRUE TO ANY OF US OR TO OUR RESPECTIVE HEIRS, NEXT OF KIN OR PERSONAL REPRESENTATIVES WHILE IN, ON, ENROUTE TO, FROM, OR OUT OF SAID PREMISES FROM ANY CAUSE WHATSOEVER INCLUDING NEGLIGENCE OF ANY OF THE FOREGOING. * * * * * * This RELEASE shall be binding upon each of the undersigned and their respective distributees, heirs, next of kin and personal representatives. That document was required to be signed by each pit crew member near the day of a NASCAR-sanctioned race. Additionally, Wade executed a "Pit Permit" stating in part that: "I hereby release speedway owner, operator, promoter, NASCAR (R) and any other person or persons connected with the racemeet for which this Pit Permit has been issued from all liability for personal injury or property damage while preparing, practicing, qualifying or participating in or attending said racemeet, * * * This permit issued subject to the terms and conditions of this `Release' executed by the undersigned to whom this permit is issued." The case now comes before the court on the motion for summary judgment of Atlanta International Raceway, Inc. and National Association for Stock Car Auto Racing, Inc. The motion rests on two grounds. First, movants argue that under the terms of the above-quoted releases, Wade would have had no cause of action even for gross negligence which was alleged in the complaint, in these circumstances; and secondly that his parents' wrongful death action must fall because Wade himself could not have maintained an action. *1051 In support of point 1 of their argument, movants argue that there is no reason why this court should not enforce the provisions of the release even against a claim of gross negligence. Movants concede the general rule in Georgia, which is that one may by careful language exculpate himself even from liability for his own negligence, but not from his own gross negligence or intentional act.[1] Movants urge that public policy as it affects carriers and landlords will prohibit them from contracting out of liability for their own gross negligence. However, they urge that there is no public policy which would forbid private individuals from agreeing by contract to give up whatever rights they choose, including the right to sue for gross negligence. The cases cited by movants for this proposition, however, fail to support it in fact situations involving gross negligence, as the following discussion will show. Cash v. Street and Trail, Inc., 136 Ga. App. 462, 221 S.E.2d 640 (1975), did involve the enforcement of a private exculpatory clause; but there was no claim of gross negligence in the case. The exculpatory provision was applied only against simple negligence. Similarly, in Doster v. C. V. Nalley, Inc., 95 Ga.App. 862, 866, 99 S.E.2d 432 (1957), the court considered a covenant not to sue a promoter and track operator. Plaintiff was a dragracer, who collided with a wrecker wrongfully on the track. The court enforced the covenant not to sue the promoter and the track operator, but there was no allegation of negligence as to them. Two additional cases cited by movants, namely Arnold v. Johnston, 84 Ga.App. 138, 65 S.E.2d 707 (1951), and Martin v. Monroe, 107 Ga. 330, 33 S.E. 62 (1898), are not helpful here because both involve covenants not to sue on a note, and naturally contained no gross negligence issues. Similarly, other cases cited by movants dealing with racing mishaps are not helpful on the issue of gross negligence. Gore v. Tri-County Raceway, Inc., 407 F.Supp. 489 (M.D.Ala.1974), involved no claim of gross negligence. In Seymour v. New Bremen Speedway, Inc., 287 N.E.2d 111, 31 Ohio App.2d 141 (1971), the court enforced a release prohibiting suit for negligence, and affirmed the trial court's denial of plaintiff's motion at the close of the trial to add for the first time allegations of wilful and wanton conduct. Trumbower v. Sports Car Club of America, 428 F.Supp. 1113 (W.D. Okla.1976), involved no claim of gross negligence. Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821 (1972), specifically recognized the rule that "exculpatory agreements otherwise valid are not construed to cover the more extreme forms of negligence — wilful, wanton, reckless or gross." 293 A.2d at 825. A release was enforced only in circumstances involving a claim of simple negligence. Finally, movants urge the recent case of Williams v. Cox Enterprises, Inc., 159 Ga. App. 333, 283 S.E.2d 367 (1981), involving a release executed by a runner in the Peachtree Road Race, who was hospitalized for heat stroke and other disorders as a result *1052 of the race. The court there noted that "the General Assembly has enacted no statute which either expressly or impliedly forbids contractual waivers of liability by participants in sporting or recreational events. Since the waiver was not otherwise contrary to law or morality, we therefore hold that it was valid." Id. at 335, 283 S.E.2d 367. However, that case cannot support the proposition that such a release could be effective against a claim of gross negligence. Gross negligence was not alleged in that case. The court concludes that the authority of Georgia and other jurisdictions is in agreement that one may exculpate himself for liability for his own simple negligence, but not for gross negligence — at least not in these circumstances. The court notes that the record contains no evidence of the fashion in which the fatal mishap occurred. We have no evidence of gross negligence; we have only allegations of it. But the ground of the movants' summary judgment motion is not the absence of evidence of gross negligence; instead, they urge that the release bars the entire case, gross as well as simple negligence. The court cannot agree, and the motion must be denied on this point. Turning to the second point of the motion, the court will consider the question whether plaintiffs may bring a wrongful death action or whether they are barred by the release. Plaintiffs argue that their cause of action for wrongful death is totally separate from any cause of action which Wade would have had had he lived, and therefore the release cannot bar them. The court disagrees. First, some attention should be paid the question whether this is a release or a covenant not to sue. It is true that a release normally does not relate to a future or contingent claim. "Where a `release' speaks in terms of a future or contingent claim ... it is more accurately denominated `a covenant not to sue.' ... Thus a covenant not to sue is appropriately described as an agreement not to sue, given in exchange for lawful consideration. At the time such an agreement is given, there is no claim in existence to be released. It speaks of the future, not of the present or past. Since no liability exists, none can be released." Cash v. Street and Trail, Inc., 136 Ga.App. 462, 464, 221 S.E.2d 640 (1975). It would thus appear that the document here in question is properly denominated a covenant not to sue; however, Ga.Code § 20-909, stating in part that "a covenant never to sue is equivalent to a release" in effect equates the two. The more pertinent issue is whether plaintiffs may bring a cause of action if deceased himself would have been barred by the covenant not to sue. The answer under Georgia law is plainly no. Although it is true that the action created by the wrongful death statute is different from the cause of action which Wade would have possessed had he lived, any defense which would have been good against Wade is good against his representatives in a wrongful death action. "Since the original statute of 1850 this court has consistently held that no recovery could be had unless the deceased in his lifetime could have maintained an action for damages for the injury to him, and that any defenses good as against the deceased would be good as against the action brought by the beneficiaries." Thompson v. Watson, 186 Ga. 396, 401, 197 S.E. 774 (1938). Accord, Morton v. Georgia Railway and Electric Co., 145 Ga. 516, 89 S.E. 488 (1916); Southern Bell Telephone & Telegraph Co. v. Cassin, 111 Ga. 575, 36 S.E. 881 (1899); Garvin v. Lovett, 131 Ga.App. 46, 205 S.E.2d 124 (1974); Rogers v. Johnson, 94 Ga.App. 666, 678, 96 S.E.2d 285 (1956); Bassett v. Calloway, 72 Ga.App. 97, 33 S.E.2d 112 (1945). Since the covenant not to sue would have barred deceased's cause of action for simple negligence, it will bar plaintiffs' cause of action for simple negligence under the Wrongful Death Act as well. But, the issue of gross negligence is not mooted by the covenant not to sue. Accordingly, the motion for summary judgment is DENIED. NOTES [1] This principle is stated in various ways. For example, "Except in cases prohibited by statute and cases where a public duty is owed, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by negligence; and the agreement is not void for contravening public policy. Code § 102-106; Hearn v. Central of Ga. R. Co., 22 Ga.App. 1, 3-7, 95 S.E. 368; King v. Smith, 47 Ga.App. 360, 364, 170 S.E. 546. The latter case is authority for the further proposition that an exculpatory provision like the one in this case does not relieve one from liability for wilful or wanton conduct. Brady v. Glosson, 87 Ga.App. 476, 478, 74 S.E.2d 253." Hawes v. Central of Georgia R. Co., 117 Ga. App. 771, 772, 162 S.E.2d 14 (1968). Also, "Provisions in rent and carriage contracts relieving the landlord or the carrier from liability for damages resulting from simple negligence on the part of such landlord or carrier have been upheld in Georgia as a legitimate matter for private contract and as not contravening the public policy of this State. King v. Smith, 47 Ga.App. 360, 364(2), 170 S.E. 546, and numerous cases therein cited. That case is authority for the further proposition that such a provision does not, however, relieve the landlord or carrier from liability for wanton and wilful conduct. See also Sinclair Refining Co. v. Reid, 60 Ga.App. 119, 122, 3 S.E.2d 121." Brady v. Glosson, 87 Ga.App. 476, 478, 74 S.E.2d 253 (1953).

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-385 CR ____________________ WILLIAM LARRY DOUCET, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 83680 MEMORANDUM OPINION (1) William Larry Doucet was convicted and sentenced on an indictment for aggravated robbery. Doucet filed a notice of appeal on August 13, 2003. The trial court entered a certification of the defendant's right to appeal in which the court certified that this is a plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P. 25.2(a)(2). The trial court's certification has been provided to the Court of Appeals by the district clerk. On August 22, 2003, we notified the parties that the appeal would be dismissed unless an amended certification was filed within thirty days of the date of the notice and made a part of the appellate record. See Tex. R. App. P. 37.1. The record has not been supplemented with an amended certification. Because a certification that shows the defendant has the right of appeal has not been made part of the record, the appeal must be dismissed. See Tex. R. App. P. 25.2(d). Accordingly, we dismiss the appeal for want of jurisdiction. APPEAL DISMISSED. PER CURIAM Opinion Delivered September 25, 2003 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Tex. R. App. P. 47.4.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0008n.06 No. 08-4384 FILED Jan 05, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT TIMOTHY D. DOTSON, Plaintiff-Appellant, ON APPEAL FROM THE UNITED STATES DISTRICT v. COURT FOR THE SOUTHERN DISTRICT OF OHIO N. EDWARD LANE, JR., et al., Defendants-Appellees. / Before: MARTIN and WHITE, Circuit Judges, and ZOUHARY, District Judge.* BOYCE F. MARTIN, JR., Circuit Judge. Timothy Dotson appeals a district court’s sua sponte dismissal of his claim against appellees Judge N. Edward Lane, Jr., Kevin Rings, and James W. Adams under 28 U.S.C. § 1985. As Dotson’s claims of civil rights violations resulting in his conviction would have required the district court to set aside his criminal conviction by the state of Ohio, the district court did not err in finding that his sole course of relief was that of a writ of habeas corpus. However, the district court did err by failing to give notice that it intended to treat Dotson’s civil rights claim as a habeas petition. We therefore AFFIRM the district court’s dismissal of Dotson’s civil rights claim and VACATE the district court’s order to the extent that it purports to address a habeas petition. I. * The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. No. 08-4384 Dotson v. N. Lane, Jr, et al. Page 2 On December 21, 1989, Dotson pled guilty to two counts of rape, two counts of sexual imposition, and two counts of gross sexual imposition and was sentenced to 10-25 years with an additional 5 years to run concurrent. Rings was the prosecuting attorney and Adams represented Dotson in his hearing before the Washington County Court of Common Pleas. He is presently incarcerated at the Chillicothe Correctional Institution in Ohio. On October 13, 1993, Judge Lane was assigned to preside over the case. On April 25, 2008, Dotson filed a 42 U.S.C. § 1985 case seeking substantial money damages against Judge Lane, Rings, and Adams for civil rights violations. Dotson’s first complaint alleges that, pursuant to 28 U.S.C. § 1983, “[b]y fraud and deception,” Judge Lane, Ring, and Adams “have held and convinced Dotson to serve time for a crime that never happened.” On May 8th, Dotson moved to correct a clerical error in the civil cover sheet which stated that the action was based on section 1983, rather than section 1985. On May 13th, United States Magistrate Judge Mark Abel filed his Report and Recommendation regarding Dotson’s district court case. In his report, Magistrate Judge Abel noted that the district court was treating Dotson’s civil rights complaint as a habeas petition under 42 U.S.C. § 2254. The Report and Recommendation stated that, although Dotson’s complaint requested only money damages, any decision in Dotson’s favor would invalidate his conviction and sentence. Magistrate Judge Abel concluded that Dotson’s sole remedy was habeas corpus. Magistrate Judge Abel further concluded that Dotson’s filing exceeded the one-year statute of limitations for habeas cases, 42 U.S.C. § 2254(d)(1), and should be summarily dismissed. No. 08-4384 Dotson v. N. Lane, Jr, et al. Page 3 On May 20th, Dotson filed an objection, taking issue with the court’s characterization of his case as having been brought under section 1983 rather than under section 1985. Dotson also objected to the court’s construing his filing as a habeas petition and argued that he was not a “state prisoner” within the meaning of section 2254 because he is in state custody pursuant to the judgment of a county court rather than a court exercising state-wide jurisdiction. On August 27th, upon de novo review of the Report and Recommendation, United States District Judge George Smith filed an order adopting the Report and Recommendation, stating that Dotson’s filing challenged his confinement and that, therefore, Dotson’s “sole federal remedy is habeas corpus.” As Dotson’s petition was filed over a year after AEDPA’s effective date, April 24, 1996, it appeared untimely, and the district court dismissed Dotson’s claims sua sponte. The district court filed its judgment order on August 28th. On September 3rd, Dotson filed a motion for relief from the district court’s judgment, repeating the arguments posed in the previous filing. The district court denied the motion on September 8th. The district court found Dotson’s argument that he is not a “state prisoner” unavailing as he is an inmate at the Chillicothe Correctional Institution, an Ohio state prison. Dotson timely filed a notice of appeal and a statement of indigence on September 9th. On September 24th, the district court entered an order denying Dotson’s application for leave to appeal in forma pauperis, reasoning that his appeal was frivolous. On April 6, 2009, we granted Dotson’s motion to proceed in forma pauperis when we granted his certificate of appealability. II. No. 08-4384 Dotson v. N. Lane, Jr, et al. Page 4 Dotson claims that the district court erred in construing his suit, filed under section 1985,1 as a habeas petition. We review questions of law de novo. United States v. Clark, 257 F. App’x 991, 992 (6th Cir. 2007) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). The district court held that the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), barred Dotson’s claims for damages under 42 U.S.C. § 1983. Under Heck and its progeny, a state prisoner cannot state a cognizable claim under sections 1983 or 1985 “if a ruling on his claim would necessarily imply the invalidity of his conviction and confinement until such time that the conviction is reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus.” Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003) (citing Heck, 512 U.S. at 486-87) (extending Heck to apply to claims under section 1985); Hunt v. Hutting, 187 F.3d 635 (Table), 1999 WL 623735, at *1 (6th Cir. Aug. 11,1999). Dotson seeks monetary damages arising out of his conviction and claims no injury distinct from his conviction. Since he essentially attacks the lawfulness of his conviction without first having that conviction set aside, his tendered complaint failed to state a claim under Heck. Thus, as Dotson could not bring a claim under either section 1983 or section 1 We must first note that the district court did err in referring to Dotson’s claim as a section 1983 claim rather than a section 1985 claim as he had previously filed a motion to correct the clerical error mis-classifying this claim. However, for the reasons below, this error was harmless as his claims fail whether they are classified under section 1983 or section 1985. No. 08-4384 Dotson v. N. Lane, Jr, et al. Page 5 19852 without first having his conviction set aside, Dotson’s sole avenue of relief is that of a writ of habeas corpus.3 Dotson argues that the district court failed to construe his complaint liberally in reading it as a request for a writ of habeas corpus with its attendant procedural restrictions. Dotson is correct that courts must liberally construe documents submitted by pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Here, the court did so by ascribing to Dotson his only viable claim: that of a habeas petition. 2 Even if he had been able to proceed with a claim under section 1985, Dotson’s claim was not filed within the relevant statute of limitations. For cases brought pursuant to section 1985, courts borrow the applicable state statute of limitations. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660–61 (1987) (directing federal courts to apply the most appropriate or analogous state statute of limitations in §§ 1981-1985 actions). A two-year statute of limitations applies to section 1985 cases brought in the state of Ohio. See, e.g., Ashiegbu v. Purviance, 74 F. Supp. 2d 740, 747 (S.D. Ohio 1998). While statutes of limitations and tolling principles are governed by state law, the question of when a federal civil rights claim accrues remains one of federal law. See LRL Prop. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1107 (6th Cir. 1995). In general, a civil rights claim for relief accrues when the plaintiff knows or has reason to know of the injury that is the basis of his action. Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991). “A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). Here, the wrongdoing complained of accrued in 1989 when Dotson pled guilty and was convicted. Dotson did not file his complaint in this case until April 25, 2008, more than sixteen years after the statute of limitations expired on his claim under section 1985. Dotson also failed to state a claim under section 1985 because he did not allege that the conspiracy was motivated by racial or other class-based invidiously discriminatory animus. See Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971); Dunn v. Tennessee, 697 F.2d 121, 124 (6th Cir. 1982), cert. denied, 460 U.S. 1086 (1983). 3 Dotson argues that, because he was sentenced by a county court rather than by a state court, he does not qualify as a “state prisoner” under section 2254 for habeas relief. However, as county courts are arms of the state courts and he was being held in state prison, Dotson is a state prisoner for the purposes of habeas relief. See, e.g., Brainwaite v. Eberlin, 2008 WL 2844712, at *3 (N.D. Ohio July 22, 2008) (stating that the petitioner was a state prisoner following his guilty plea and sentences in the Stark County Court of Common Pleas). No. 08-4384 Dotson v. N. Lane, Jr, et al. Page 6 However, the district court erred in not giving Dotson notice that it intended to treat his civil rights petition as a habeas claim. Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004). Because of the potential prejudice against a prisoner’s ability to bring “second or successive” section 2254 petitions, Dotson had a right to decide whether he wanted his civil action to be treated as a habeas petition or whether he wanted to preserve the opportunity to file an initial petition. Id. Though Dotson’s filing may have been untimely as a habeas petition, the record does not reveal when Dotson’s conviction became final, whether the limitation period was subject to statutory tolling, or whether there was any basis for equitable tolling. Most importantly, Dotson has not had the opportunity to argue the timeliness issue. See Day v. McDonough, 547 U.S. 198, 210 (2006) (before acting sua sponte to dismiss a petition based on the statute of limitations, a district court must afford the parties fair notice and an opportunity to respond). Thus, dismissal of Dotson’s claims as an untimely habeas petition was inappropriate. III. For the foregoing reasons, we AFFIRM the district court’s dismissal of Dotson’s civil rights claim and VACATE the district court’s order to the extent that it purports to address a habeas petition. 

964 So.2d 509 (2006) Tavaris VAUGHN, Appellant, v. STATE of Mississippi, Appellee. No. 2005-CA-01873-COA. Court of Appeals of Mississippi. November 14, 2006. Rehearing Denied April 10, 2007. John David Weddle, Tupelo, attorney for appellant. Office of the Attorney General by Deirdre McCrory, attorney for appellee. Before LEE, P.J., IRVING, and ISHEE, JJ. ISHEE, J., for the Court. ¶ 1. Tavaris Vaughn pled guilty to the charge of sale of cocaine before the Circuit Court of Lowndes County on August 31, 2000. On May 22, 2002, the court sentenced Vaughn to a term of thirty years in the custody of the Mississippi Department of Corrections and ordered him to pay a fine in the amount of $5,000. Vaughn's motion for post-conviction relief was denied by the circuit court. Aggrieved by *510 the trial court's decision Vaughn appeals. Finding no error, we affirm. FACTS ¶ 2. Prior to the entry of this denial of post-conviction relief, Vaughn pled guilty to a charge of grand larceny and was sentenced to three years in the custody of the Mississippi Department of Corrections, with three years suspended, three years probation, and a fine in the amount of $1,000. His probation was revoked on November 13, 1998, and he was ordered to serve in the Regimented Inmate Discipline Program. ¶ 3. On or about November 5, 1999, a two-count indictment was issued against Vaughn for the sale of a schedule II controlled substance. Vaughn entered an open plea of guilty to Count I of the indictment on August 31, 2000. As a result of the guilty plea to Count I of the indictment, the State moved to retire to the file Count II of the indictment. The State also agreed to retire to the file an aggravated assault charge that was unrelated to this matter. ¶ 4. During the sentencing hearing, the assistant district attorney sought to introduce a witness who would testify as to the specifics of the aggravated assault charge that had been retired to the file. The court asked the assistant district attorney to describe what that testimony would be and further stated that this charge was an unrelated matter. The judge also said that the rules of evidence do not apply to sentencing hearings. ¶ 5. Lastly, the Lowndes County Sheriff sent a letter to the circuit judge informing him of Vaughn's escape after having entered a guilty plea and of the injuries and damages that resulted thereof. He further outlined his discussion with the wife of a man who was injured when the car Vaughn was driving collided head-on with her husband's car while Vaughn was being chased by a Lowndes County deputy. The sheriff asked that Vaughn receive the maximum sentence. ¶ 6. On May 23, 2005, Vaughn filed a motion for post-conviction relief; it was denied without a hearing. Aggrieved by the court's decision he asserts the following issues for this Court's review: (1) whether the circuit court's sentence of thirty years was improper, (2) whether the district attorney's office made unsolicited, improper, and prejudicial comments to the court, (3) whether there was a factual basis to support his plea of guilty, and (4) whether the court erred in considering the letter submitted by the Lowndes County Sheriff. STANDARD OF REVIEW ¶ 7. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court's factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000). Questions of law, however, are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). ISSUES AND ANALYSIS I. Whether the circuit court's sentence of 30 years was improper. ¶ 8. Although there may be questions as to whether or not this sentence was appropriate, this Court is of the opinion that the trial court did not commit reversible error. This Court has noted that when sentencing, a trial judge acts with the broadest of discretion as long as the sentence is within the statutory guidelines. See Hoops v. State, 681 So.2d 521, 537 (Miss.1996). It is within the legislative purview to define crimes and to assign *511 punishment. Weaver v. State, 713 So.2d 860, 863(¶ 17) (Miss.1997). ¶ 9. The State correctly argues that the imposition of a sentence is within the discretion of the trial court. Holt v. State, 757 So.2d 1088, 1089(¶ 7) (Miss.Ct.App. 2000) (citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)). Vaughn's argument goes to the second prong of the proportionality analysis of Solem: a comparison of the sentence imposed with sentences that were imposed on others in the same jurisdiction. Vaughn points to similarly situated defendants who received less severe sentences and he uses this to assert that his sentence was disproportionate. In Womack v. State, 827 So.2d 55, 59(¶ 13) (Miss.Ct.App.2002), this Court stated that, "this fact alone does not prove that the sentences imposed here are grossly disproportionate to the crime committed." The fact that other criminal defendants in Lowndes County Circuit Court who were convicted or pled guilty to the sale of cocaine received shorter sentences than Vaughn has no decisive bearing on whether or not his sentence was disproportionate. Thus, the circuit court did not err in sentencing Vaughn to thirty years in the custody of the Mississippi Department of Corrections. This issue is without merit. II. Whether the district attorney's office made unsolicited, improper, and prejudicial comments to the court. III. Whether there was a factual basis to support the guilty plea. ¶ 10. Due to the similarity of these two issues, we will discuss them together. It is well settled that a defendant who pleads guilty waives his or her "privilege against self-incrimination, the right to confront and cross-examine the prosecution's witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt." Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). Thus, the comments that the district attorney's office made about the aggravated assault were not improper or prejudicial and the fact that cross-examination did not transpire has no bearing. Furthermore, the State was not required to prove each element of the offense since Vaughn was pleading guilty. ¶ 11. In Smith v. State, 636 So.2d 1220, 1225 (Miss.1994), the Court ruled, "it is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty." We believe Vaughn had such knowledge. ¶ 12. Uniform Circuit and County Court Rule 8.04(A)(4)(c) provides that where the defendant wishes to plead guilty the court has the duty to address the defendant and make the determination as to whether or not "the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses and the right against self-incrimination." Once the trial court completes its inquiry, having advised the defendant of the consequences of a guilty plea, the plea is considered voluntary. Reeder v. State, 783 So.2d 711, 719(¶ 30) (Miss.2001). We are of the opinion that the trial judge made such a determination and after reviewing the record this Court finds that there was a factual basis to support Vaughn's plea and that it was voluntarily made. These issues are without merit. IV. Whether the court erred in considering the letter submitted by the Lowndes County Sheriff. ¶ 13. Vaughn argues that the trial court was improperly influenced by a letter that *512 was sent to the court from the Lowndes County Sheriff. We disagree. There is nothing present that would suggest that the trial judge was improperly influenced or that the letter was even given credence. ¶ 14. Nevertheless, trial judges may consider all kinds of information when sentencing. In Summerall v. State, 734 So.2d 242, 246(¶ 21) (Miss.Ct.App.1999) (citing Evans v. State, 547 So.2d 38, 41 (Miss.1989)), the court stated that "the trial judge here, sitting without a jury, had broad discretion in the things he was able to consider. He may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come." Therefore, this issue is without merit. ¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY. KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. SOUTHWICK, J., CONCURS IN RESULT ONLY.

753 F.2d 1085 U.S.v.Riley 84-1022 United States Court of Appeals,Ninth Circuit. 12/21/84 D.Hawaii AFFIRMED

26 Cal.2d 519 (1945) EARL H. POLK, Respondent, v. CITY OF LOS ANGELES et al., Appellants. L. A. No. 19187. Supreme Court of California. In Bank. June 12, 1945. Ray L. Chesebro, City Attorney, S. B. Robinson, Assistant City Attorney, and Everard L. McMurrin, Deputy City Attorney, for Appellants. Samuel A. Rosenthal and Burton B. Crane for Respondent. CARTER, J. Plaintiff recovered a judgment for damages against defendants for personal injuries suffered by him as the result of a fall from a tree alleged to have been caused by the negligence of defendants in maintaining an electric power line in a dangerous condition through said tree. Rancho Street in defendant city of Los Angeles is an east-west street which at the place involved carried little traffic. Norman Levin owns a parcel of property on the north side of the street. There are growing along the south line of his property parallel to and near the street, six eucalyptus trees and one oak tree. The eucalyptus trees range from 60 to 70 feet in height and are 6 to 10 feet apart. Some of the branches spread over the street. Defendant city as a part of its business of distributing and selling electricity, mains a power line along the north line of the street right of way, consisting of poles 155 feet apart and cross-arms on the poles which support three laterally parallel wires about 3 feet apart and 42 to 45 feet above the ground. The wires carry 4,800 volts of electric energy. They pass through the branches and foliage of the above mentioned trees. The wires, except at the points where worn, as will presently appear, were insulated making their diameter about three-fourths of an inch, the wire itself *524 being about one-eighth of an inch in diameter. There are brisk winds prevailing in the vicinity during the spring months causing the trees to do "a good deal of swaying" with the result that insulation is worn off the wires at contact points. Plaintiff contracted with Levin to trim the above mentioned trees. In the performance of his contract he was working on March 29, 1942, equipped with ropes, ladder and two uninsulated pruning hooks measuring about 8 feet and 12 feet in length respectively. Before commencing work he examined the trees and wires from the ground, and also while in the trees, and "noticed they (the wires) were well insulated" and he did not see any bare places on them. He finished the oak tree and five of the eucalyptus trees. He had partially completed the sixth eucalyptus tree, having trimmed the portion of the tree above the wires. His ladder was leaning against the sixth tree. He was standing on it at the fourth or fifth rung from the top, 25 to 30 feet from the ground when he leaned out, extending the 12-foot pruning hook full length, to cut a branch about midway between the fifth and sixth trees. His hook apparently contacted the wires and the resulting electric shock dislodged him from the ladder. The fall caused the injuries here involved. The insulation on one wire was worn off at a point about half way between the fifth and sixth trees for a space of about three feet. The bare section had resulted from the wind moving a limb of the fifth eucalyptus tree against the wire causing the limb to be somewhat charred. The bare space on the wire could be seen from the ground as shown by an inspection after the accident. Defendants inspected their power lines twice a year. They had last inspected the wires here involved in October, 1941. However, nothing was done, even if the insulation was found worn, unless the condition existed at the same point on two parallel wires. Plaintiff knew of the dangerous character of wires carying electricity and observed a sign near the scene of the accident stating that the wires in question carried a high voltage. He did not insulate the pruning hook or wear rubber gloves. He had had experience trimming trees through which ran electrically charged wires and knew that the insulation was likely to be worn where rubbed by a limb. *525 Defendants contend that there is insufficient evidence to support the jury's implied finding of negligence; that plaintiff was contributively negligent as a matter of law; and that error was committed in giving instructions to the jury. [1] On the subject of negligence the standard of care is, that one maintaining wires carrying electricity is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. Among the circumstances are the well known dangerous character of electricity and the inherent risk of injury to persons or property if it escapes. Hence, the care used must be commensurate with and proportionate to that danger. (See Irelan-Yuba etc. Min. Co. v. Pacific G. & E. Co., 18 Cal.2d 557 [116 P.2d 611]; McCormick v. Great Western Power Co., 214 Cal. 658 [8 P.2d 145, 81 A.L.R. 678]; Smith v. San Joaquin Light & Power Corp., 59 Cal.App. 647 [211 P. 843]; Monroe v. San Joaquin L. & P. Corp., 42 Cal.App.2d 641 [109 P.2d 720]; 10 Cal.Jur. 184-185; 1 Joyce on Electric Law, 438-438b; Rest., Torts., 298.) [2] Specific application of that standard requires that wires carrying electricity must be carefully and properly insulated by those maintaining them at all places where there is a reasonable probability of injury to persons or property therefrom. (See Monroe v. San Joaquin L. & P. Corp., 42 Cal.App.2d 641 [109 P.2d 720]; Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182 [106 P. 587]; Anstead v. Pacific Gas & Elec. Co., 203 Cal. 634 [265 P. 487]; Royal Indemnity Co. v. Midland Counties Pub. Service Corp., 42 Cal.App. 628 [183 P. 960]; McCormick v. Great Western Power Co., 214 Cal. 658 [8 P.2d 145, 81 A.L.R. 678]; Stanley v. Lander, 3 Cal.App.2d 284 [39 P.2d 225]; 1 Joyce on Electric Law, 445; 29 C.J.S., Electricity, 44; 18 Am.Jur., Electricity, 93 et seq.) [3] Upon those controlling such instrumentality and force is imposed the duty of reasonable and prompt inspection of the wires and appliances and to be diligent therein. (See Stasulat v. Pacific Gas & Elec. Co., 8 Cal.2d 631 [67 P.2d 678]; Irelan-Yuba etc. Mini. Co. v. Pacific G. & E., 18 Cal.2d 557 [116 P.2d 611]; Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182 [106 P. 587].) And, in the places where there is a probability of injury, they must not only make the wires safe by proper insulation, but as stated in Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182, 186 [106 P. 587], "keep them so by vigilant oversight and repair." *526 [4] Unquestionably the jury was justified in finding that the place where the injury to plaintiff occurred was one requiring that the wires be insulated and that the inspection be diligent in order to keep them in repair. The wires ran through trees standing on private property in an area, which, although not heavily populated, was suburban. The prevailing and customary wind would probably, as apparently it did, cause the limbs of the tree to rub against the wires and impair the insulation thereon. A man of ordinary prudence should anticipate the occurrence of those events and also that the owner of the property would trim those trees. Defendants should have anticipated as a matter of common knowledge that the owner would trim the trees both for reasons of safety, that is, falling limbs, and of esthetics. As an incident of that work the trimmer would necessarily be near and about the wires. It may be that under some circumstances the height of the wires from the ground would satisfy defendants' duty but that is not true where the wires pass through trees which they should anticipate would be trimmed. An analogy to the probability that the trees would be trimmed, appears in Monroe v. San Joaquin L. & P. Corp., 42 Cal.App.2d 641 [109 P.2d 720], where an employee of a company using electricity furnished by defendant, was injured by coming into contact with an electrically charged wire which had been improperly installed by defendant, having insufficient insulation. The employer company, not defendant, owned and maintained the wires which were connected to a transformer in a transformer yard. The employee was engaged in cutting weeds in the yard at the order of the employer company. The court said at page 649: "In applying the test of forseeability, for the purpose of determining negligent conduct, it was not necessary that appellant have knowledge of the fact that employees might be required to clear out weeds within the transformer yard. A considerable portion of the transformer yard was left in its natural state, and the growth of weeds therein was simply a normal act of nature. The necessity of requiring employees to clear out the growth of weeds from time to time was one of the circumstances which an ordinarily prudent person should have anticipated." (Emphasis added.) On the issues here involved the case of Holden v. Cincinnati Gas & *527 Electric Co., 57 Ohio App. 488 [14 N.E.2d 943], is helpful. There, plaintiff, a worker on a federal relief project, was injured while trimming trees when his pruning hook contacted a bare spot on an insulated electrically charged wire running through the tree on which he was working. The court affirmed a judgment for him, stating at page 946 [14 N.E.2d]: "The last question is whether there is any substantial evidence of negligence on the part of the defendant. Appellant's counsel point out that there was no statute requiring these wires to be insulated. That is conceded, but that does not conclude the inquiry. There is a rule of universal application that wherever a person or corporation through his or its activities is brought into proximity with another, some care is required so that harm will not result to such person. The duty of care exists in the absence of any statute and if care is omitted and injury directly results therefrom, liability arises." "In this case the defendant was conscious of the danger of electricity escaping from these wires and for that reason had them insulated originally, but failed to see that the insulation was maintained. While these wires were about 20 feet above the street, they were directly over a row of trees and among the branches of some of them. A reasonable person would anticipate that these trees would be trimmed in course of time, and that to do so workmen would be required to climb thereon and get near these wires, and at the time have shears or saws with them." (See, also, Royal Indemnity Co. v. Midland Counties Pub. Service Corp., 42 Cal.App. 628 [183 P. 960].) [5] With reference to inspection of the wires by defendants, it was for the jury to determine whether the semiannual inspection which they made was sufficient, considering all of the circumstances and especially the fact that the wires passed through trees, the limbs of which swayed and contacted the wires. As stated in McCormick v. Great Western Power Co., 214 Cal. 658, 663 [8 P.2d 145, 81 A.L.R. 678], on the issue of negligence: " 'Either the wire must be insulated, or it must be so located as to be, comparatively speaking, harmless.' ... Such is the doctrine everywhere. ... 'The standard to be attained is that of ordinary and reasonable care, and this means such care as a reasonably careful and prudent person, having in view the dangers to be avoided and the likelihood of injury *528 therefrom, would exercise, under the circumstances, in order to prevent injury. ...' 'If,' therefore, says the court in Minter v. San Diego Consol. Gas etc. Co., 180 Cal. 723 [182 P. 749, 750], 'guided by those considerations which ordinarily regulate the conduct of human affairs, an ordinarily prudent person would have had reasonable ground to suspect that the wires so placed would cause injury, the plaintiff can be said to have proved a breach of duty.' And where the evidence is such that reasonable men might fairly differ as to the answer to the above question, the issue is one of fact for the jury to determine, and if it finds in favor of the plaintiff, its verdict will not be disturbed." We conclude therefore that there was sufficient evidence to support the jury's finding of negligence. There is nothing in Minter v. San Diego Consol. Gas etc. Co., 180 Cal. 723 [182 P. 749], contrary to the foregoing views. There a boy was killed when he contacted insulated wires running through a tree on his father's property. The boy's purpose is ascending the tree did not appear and the court pointed out that defendant, the owner of the wires, had trimmed the trees, the court stating at page 727: "By analogy, the defendant in the case at bar was bound to prevent its wires from interfering with any use of the highway and, in particular, of the eucalyptus tree which was reasonably to be anticipated. It affirmatively appears from the plaintiff's testimony that the trees were trimmed by the defendant's workmen. No evidence was adduced to show that the tree was used or needed for anything but shade or ornament or to show the existence of any custom with reference to the care of the tree of which the defendant would be reasonably expected to take notice and which would be likely at times to require the presence of the deceased or of any other person in the tree at a height of twenty-seven feet from the ground. In the absence of such evidence, we do not think that the existence of any such business or duty was fairly inferable under the circumstances here presented." (Emphasis added.) As we have seen the trimming of the trees under the circumstances here presented was an activity defendants should have anticipated. [6] Defendants point to evidence that insulation on wires carrying electricity passing through trees is not intended to protect persons from injury, but rather to insure continuous service and that their evidence showed that the wires were *529 maintained in accordance with the custom and practice in the industry. Suffice it to say that "Conformity by defendant to general custom of power companies with relation to the manner of maintaining power lines and rights of way does not excuse defendant unless the practice is consistent with due care. (Anstead v. Pacific Gas & Electric Co., 203 Cal. 634 [265 P. 487]; McCormick v. Great Western Power Co., 134 Cal.App. 705 [26 P.2d 322]; Lim Ben v. Pacific Gas & Electric Co., 101 Cal.App. 174 [281 P. 634].)" (Irelan-Yuba etc. Min. Co. v. Pacific G. & E. Co., 18 Cal.2d 557, 567 [116 P.2d 611].) If, as defendants aver, the purpose of insulation on wires running through trees under the circumstances here involved is not to protect persons from injury, then they confess that they took no precautions for the protection of persons whom they should anticipate might come in contact with the wires. (See Anstead v. Pacific Gas & Elec. Co., 203 Cal. 634 [265 P. 487].) [7] On the subject of contributory negligence, it will be recalled that plaintiff examined the trees and the wires running through them first as a whole, and then each tree before he commenced trimming it, and later examined the wires while in the trees when he was working in them. He testified that he did not see any bare spots on the wires and they appeared to him to be "well insulated." There were places where a view of the wires was obscured by the foliage on the trees, it being thick. At the time of the accident he was on the ladder on the north side of the tree, the side opposite from the street. The ladder was lashed to the tree. He had finished the top of the tree and was on the fourth or fifth rung from the top of the ladder. Inasmuch as the branches of the sixth tree on which he was working, and those of the fifth tree overlapped, he was trimming some of the branches of the latter tree. He wrapped his left leg around the tree. He was holding with both hands his long pruning hook fully extended when, as expressed by him, he "had occasion to use my long pruner on No. 5, and the last thing I remember I was reaching out to do some kind of work, I can't recall now, and the convulsions started, and I come in some way in contact with the live wire and I couldn't free myself. All it was, it was just a jerking, and I ... I couldn't let myself loose, and I prayed that something would help me or somebody would come to my rescue from the estate. And that is the last I remember." *530 The point of contact with the wire was probably 12 to 20 feet from him. He stated that he did not see the wires at the time of the accident. They were obscured by foliage. It is true that he had had many years' experience in trimming trees, including working near and about wires carrying electricity and knew of the danger, but he testified that he considered insulation as a protection against a shock; and that he did not know the amount of electricity flowing in the wires. Under all the circumstances it was a question for the jury whether plaintiff conducted himself as a man of ordinary prudence. Defendants refer to evidence that the bare spot on the wire and a charred place on the tree was visible from the ground, having been seen by defendants' lineman, and were also visible from the trees; that, therefore, plaintiff must have seen them, or if he had exercised proper care he would have seen them. That creates nothing more than a conflict in the evidence. Plaintiff may have, consistently with due care, failed to make an inspection of the wires from the same place that others did. From his position in the tree at the time of the accident his view may well have been obscured by foliage. Under all of the circumstances it was a question of fact whether plaintiff as a person of ordinary prudence should have observed the bare spots. [8] As recently stated by this court in Toschi v. Christian, 24 Cal.2d 354, 360 [149 P.2d 848]: "In other words, the actor's conduct must always be gauged in relation to all the other material circumstances surrounding it and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law." Defendants produced evidence that it was the custom among tree trimmers working near electric wires to use an insulated pruning hook and wear rubber gloves. However, plaintiff with years of experience as a tree trimmer, testified: "Q. Do you know whether tree trimmers do or do not use rubber gloves when they are working in close proximity to live wires? A. I never seen one yet that did, and I have not in all my years." In regard to the use of a non-electricity conducting rope on a pruning hook instead of a wire to operate the cutting blades, he testified: "Q. Now, then, do you know that had you used a pruner that was operated by a rope *531 that you would thereby have been insulated against the possibility of shock? ... A. Well, not altogether, no. There are several different ways you may receive a shock if you are up amongst the live limbs. Q. No; but I say if you had been using one of these pruners that have been described here, the blade of which was operated by the pulling of a rope, and you reached out with the pruner and contacted the electric line with the blade of the pruner, do you know whether the dry wood handle and the rope would have protected you against the possibility of shock? ... A. Well, that I think in my own opinion depends upon where my body was; that if my body was touching a live limb and that live limb should happen to be touching a bare spot in the wire or any place that would contact electricity, I would receive the shock just the same. Q. By Mr. McMurrin: No, but I am not asking you, Mr. Polk, if a live branch were in contact with the wire and then the branch is in turn in contact with you. Assume for the moment that you are not touching any branches at all, but you use one of these pruners with the dry wood pole and the rope, and by accident you place the blade of that pruner against the live electric wire, do you know whether you would be insulated from shock by reason of using that dry wood and that rope to pull the blade? ... A. Well, I don't know enough to say that I do know." Furthermore, from plaintiff's inspection he thought the wires were all well insulated and that he was safe because of the insulation. [9] As expressed in Royal Indemnity Co. v. Midland Counties Pub. Serv. Corp., 42 Cal.App. 628, 635 [183 P. 960]: "He had the right to assume that the guy wire was safe, either by reason of its strength or by reason of proper insulation. He was doing nothing unusual or foolhardy for a man charged with his duties and performing his work in assisting the horse in disentangling itself from the wires." [10] Moreover, in addition to the apparent lack of knowledge by plaintiff of any such custom or practice, and the province of the jury to find that none such existed, it is pertinent to observe that even though the actor's conduct is that customarily followed, he is not conclusively or as a matter of law absolved from the charge of negligence or contributory negligence. (19 Cal.Jur. 581.) Nor does a variation from the custom conclusively establish contributory negligence. [11] Whether *532 negligence or contributory negligence may be predicated upon departure from custom is a question for the jury. (Adamson v. San Francisco, 66 Cal.App. 256 [225 P. 875].) [12] Thus, whether plaintiff voluntarily chose the more dangerous of two courses of conduct or whether he was contributorily negligent was a question for the jury under all the circumstances of the case. Defendants cite many cases on the subject of contributory negligence. Each case depends upon its own circumstances and those cases do not have present the factors here involved. [13a] Defendants complain of a jury instruction requested by plaintiff and given by the trial judge, reading: "Applicable to the defense of contributory negligence, the rule is not that any degree of negligence, however slight, on the part of plaintiff, which directly concurs in producing the injury, will prevent his right to recover, but the rule is that if the negligence of the plaintiff amounting to the absence of ordinary care exercised by an ordinarily prudent person shall contribute proximately, in any degree, to the injury, it will prevent his right to recover." As an abstract proposition of law and when properly interpreted that instruction is a correct statement of the law. (Rush v. Lagomarsino, 196 Cal. 308 [237 P. 1066]; Robinson v. Western Pacific R. R. Co., 48 Cal. 409; Strong v. Sacramento & P. R. Co., 61 Cal. 326.) The first part of the instruction refers to the difference in degrees of negligence or care, and states, in effect, that slight negligence or a failure to exercise great care are not the tests for contributory negligence, but rather, as stated in the last part of the instruction, that the care must be ordinary or that exercised by a man of ordinary prudence. As indicated in Strong v. Sacramento & P. R. Co., supra, 328, after stating the rule: "A very timid or cautious person would not, perhaps, have driven in the direction of the railroad, knowing that a train might pass along the track, and that the warning bell might not be sounded. But the question is: Did the plaintiff exercise ordinary care and prudence in doing what he did? The degree of caution required is relative to the risk; but no person is bound to assume that another will abandon any reasonable precaution, or violate the obligation imposed upon him by the laws of the land." Or it may mean merely that plaintiff's negligence must have proximately contributed to the injury *533 rather than that he was negligent regardless of its proximity. (See Rush v. Lagomarsino, supra.) In Lufkin v. City of Bakersfield, 131 Cal.App. 21 [20 P.2d 788], we have a substantially similar situation. The court said at page 27: "Complaint [by defendant of an instruction on contributory negligence given at plaintiff's request] is next made of the following instruction: "You are further instructed that if you find that there was on the part of the plaintiff contributory negligence in this matter which concurred directly in producing the injury, then such negligence will not bar the right of recovery of the plaintiff if such negligence is so slight as not to amount to want of ordinary care.' "It is urged that this instruction permitted the jury to compare the negligence, if any, of the drivers of the two cars. While we do not think this instruction was necessary or to be recommended, it is true, as pointed out in Strong v. Sacramento & P. R. Co., 61 Cal. 326, that in a legal sense a person is not guilty of negligence unless the acts said to be negligent are sufficient to amount to a want of ordinary care. In effect this instruction told the jury that if the acts of the plaintiff do not amount to negligence, they could not amount to contributory negligence. In some half-dozen instructions the jury was told that it must not compare the negligence of the two drivers, that it must not attempt to determine which of the two was guilty of the most negligence, that if the respondent's husband failed to make reasonable use of all his faculties to make a safe crossing and avoid a collision, and if he failed to do all that a person of ordinary prudence would have done under the same or similar circumstances, he was negligent, and that if any such negligence contributed proximately to the happening of the accident, no matter how slightly, plaintiff could not recover. Under the circumstances shown by this record, we are of the opinion that no reversible error appears." And in Metcalfe v. Pacific Electric Ry. Co., 63 Cal.App. 331, 336 [218 P. 486]: "Another point made by appellants is that the trial court erred in several of its instructions upon the question of contributory negligence. These instructions, taking a composite view of them, were to the effect that Mrs. Metcalfe's negligence, 'however slight,' or 'no matter how slight,' or contributing 'in the slightest degree' to the accident, would preclude a recovery by appellants. In all, these and similar expressions *534 were employed eight times in the course of the instructions, and appellants' objection is not merely that they were used at all, but that they were used so often. There is some slight confusion in the decided cases upon the question whether such qualifying terms are proper in an instruction on the law of contributory negligence, but this confusion is more apparent than real and is thoroughly dispelled if due regard be paid to the difference between the terms 'care' and 'negligence' and the relation which one bears to the other under the law. In an early case the supreme court said that 'the law regards the plaintiff as innocent unless he has been guilty of what has been called (somewhat awkwardly) 'ordinary negligence'; that is, unless the evidence shows a want of ordinary care and prudence on his part. His failure to take great care is no defense. ... The formula is, not that any degree of negligence on the part of the plaintiff which directly concurs in producing the injury (however slight) will constitute a defense; but if the negligence of the plaintiff, which amounts to the absence of ordinary care, shall contribute, in any degree, proximately to the injury, the plaintiff shall not recover (Robinson v. Western Pac. R. R. Co., 48 Cal. 409). Due attention to this language will convince that it declares the law to be exactly as the trial judge stated it to the jury in the present case. Taking the excerpt as a whole it is plain that the Supreme Court, in saying 'not ... any degree of negligence on the part of the plaintiff ... will constitute a defense,' intended to convey the idea that no negligence consisting only of a failure to exercise great care will constitute a defense. No other construction of the language last quoted will harmonize with the final statement of the court, 'but if the negligence of the plaintiff, which amounts to the absence of ordinary care, shall contribute, in any degree, proximately to the injury, the plaintiff shall not recover.' The law thus declared has never been departed from in this state. (See Strong v. Sacramento & P. R. R. Co., 61 Cal. 326; Tobin v. Omnibus Cable Co., 4 Cal.Unrep. 214 [34 P. 124]; Sinclair v. Pioneer Truck Co., 51 Cal.App. 174 [196 P. 281].) It is true that in the case last cited the appellate court declined to reverse because the trial court had refused to use the qualifying words 'in any degree' in an instruction upon the law of contributory negligence. Nevertheless, the language of the court shows that it would have adopted the same attitude toward an objection to an instruction on the ground that it contained those *535 words. As to appellants' objections that the trial court so often used the qualifying words with which they find fault, it is enough to say that if it was right to use them once it was right to use them in every instance in which the court did use them. No harm was wrought by the repetitions found in the instructions." [14] It cannot be doubted that the standard of care required to relieve a plaintiff of a charge of contributory negligence is that exercised by a man of ordinary prudence under the circumstances, the same as the standard of care required to relieve a defendant of a charge of negligence. (19 Cal.Jur. 648-9; Rest. Torts, 464.) The cases of Meredith v. Key System Transit Co., 91 Cal.App. 448 [267 P. 164]; Markham v. Hancock Oil Co., 2 Cal.App.2d 392 [37 P.2d 1087]; Metcalfe v. Pacific Electric Ry. Co., 63 Cal.App. 331 [218 P. 486]; Kirchhof v. Morris, 29 Cal.App.2d 481 [84 P.2d 1053]; Cummins v. Yellow & Checker Cab Co., 127 Cal.App. 170 [15 P.2d 536]; Botti v. Savill, 97 Cal.App. 524 [275 P. 1029]; Creamer v. Cerrato, 1 Cal.App.2d 441 [36 P.2d 1094]; Watkins v. Nutting, 17 Cal.2d 490 [110 P.2d 384], cannot be said to announce a different rule. [13b] While it is probably not advisable to give the instruction here attacked because of its lack of clarity and possible confusing character, we are satisfied that in view of the complete and exhaustive instructions given on the subject of negligence and contributory negligence that no prejudicial error occurred. For illustration the instruction immediately preceding the attacked instruction reads: "You are instructed that the law does not concern itself with the relative degrees of negligence of the plaintiff and the defendants. Therefore, even if you should find that the defendants were negligent, still, if you further find that the plaintiff himself was negligent, and that his negligence proximately contributed to causing the injuries of which he complains, then you are not to concern yourself with the question as to whether the plaintiff's contributory negligence was equal to, or greater than, or less than, that of the defendants." "Contributory negligence, if a proximate cause of plaintiff's injury, is a bar to his recovery, regardless of its relative degree." And that directly following it stated: "You are instructed that the contributory negligence of the plaintiff, if proved, is a complete defense to this action; because it is the law of this state that if the plaintiff is guilty *536 of the slightest amount of negligence proximately contributing to his injuries, he cannot recover, regardless of how guilty of negligence the defendants may have been." [15] Defendants object to the following jury instruction: "It was the duty of defendants, in conducting their business of transmitting and furnishing electric power and maintaining their power lines, to consider carefully and anticipate all uses of the property and the eucalyptus trees upon, over and through which they maintain their power lines and to take reasonable precautions to prevent its wires from interfering therewith." "A failure to perform this duty constitutes negligence." (Emphasis added.) They contend that the instruction is faulty because it in effect makes them insurers; that they are not required to anticipate all uses by Levin of his property, and the trees, but only such uses as they should reasonably anticipate. This instruction is subject to that criticism. As has heretofore been pointed out, defendants were only required to take precaution against uses of the property which they should anticipate as persons of ordinary prudence. However, no prejudicial error has been suffered by defendants. The sole and only use of the property involved in the instant case was the trimming of the trees, and we have determined that defendants should have reasonably anticipated such use. With no other use of the property involved or shown by the record there is no reason to suppose that the jury was misled or based its verdict on improper grounds. Those factors, coupled with other instructions which clearly advised the jury correctly upon the law, negative the existence of any prejudice. The questioned instruction cannot be said to create such a conflict with other instructions as to have mislaid the jury in view of the situation that the only use of the property shown by the record was that which defendants should have anticipated. Moreover, the other instructions rather than being in conflict with the questioned instruction may be described more accurately as amplifications and explanations of it. [16] Defendants claim error in the following instruction: "If you believe from the evidence that plaintiff, before undertaking to perform his work of trimming the trees on the property of Norman Levin, exercised reasonable and ordinary care as a reasonable and prudent person in observing defendants' electric wires strung through the said trees, and that in so making his observations of said wires they appeared *537 to him insulated and in a reasonably safe condition so as to permit him to trim said trees without danger of an electric shock to his person, plaintiff was entitled to assume, and act upon this assumption, that defendants' wires were insulated throughout said trees, and he was not imposed with the duty to seek out concealed and hidden defects, if any, in the insulation of said wires, and he cannot be charged with negligence in failing to do so." They contend that it required that plaintiff make no inspection of the wires other than that made from the ground, excusing him from making an inspection while the trimming progressed, and that from the one inspection before he commenced work he could while working assume that the wires were properly insulated at all points. We do not so interpret the instruction. It left to the jury that determination of whether plaintiff exercised reasonable and ordinary care in making an inspection of the wires before commencing work, and that, if from such inspection the wires appeared safe, he could assume the wires were insulated throughout, even though there were sections of the wires concealed from his view. The jury were advised they could determine that such an inspection was not sufficient if it did not reveal defects in the insulation, that is to say, the inspection was to be measured by the standard of whether plaintiff acted as a reasonable and prudent person in making the inspection. Furthermore, the jury was instructed that: "... [T]he plaintiff owed a duty to use ordinary care for his own safety, and to that end to observe the conditions surrounding him while at work, and the structures reasonably near and about him, and the dangers, if any, which would be open and obvious to one using reasonable care and caution for his own safety, and thereupon to use the care of an ordinarily prudent workman so to carry on his work as to guard against injury to himself, so far as by such reasonable care he could protect himself." "In other words, plaintiff was under obligation to use for his own safety all such care and caution as an ordinarily prudent intelligent workman ordinarily uses under like circumstances. And it is for the jury to say whether in this case plaintiff used that degree of care." In connection with the foregoing instruction defendants argue the issues relative to the duty to insulate the wires, the height thereof and the place where they were strung. We *538 have discussed these subjects in the forepart of this opinion. [17a] Defendants contend that the court erroneously instructed the jury as to the provisions of certain rules promulgated by the Railroad Commission dealing with the maintenance of power lines. Those rules and the instructions relating to them are as follows: "Plaintiff's Instruction No. 11." "Said General Order No. 64-A of the California Railroad Commission provided further concerning the rules for overhead lines construction, as follows:" "31. Application." "These provisions apply to all classes of overhead electric lines under all conditions." "31.1. Design, Construction and Maintenance." "Electrical supply and communication systems shall be of suitable design and construction for their intended use, regard being given to the conditions under which they are to be operated, and shall be maintained in a condition which will enable the furnishing of safe, proper and adequate service." "The owners and employees of such systems shall at all times exercise due care to reduce to a minimum the hazard of accidental injury to their own or fellow employees, to the public and other utilities, due to the presence of overhead wires. ..." "Lines shall be inspected frequently and thoroughly for the purpose of insuring their maintenance in a good condition so as to conform with these rules. Any defects found shall be promptly rectified. Lines temporarily out of service shall be inspected and maintained in such condition as not to create a hazard." "A failure to inspect the lines frequently and thoroughly for the purpose of insuring their maintenance in good condition and to promptly rectify defects found, if any, constitutes negligence on the part of defendants." "Plaintiff's Instruction No. 11aa." "Said General Order No. 64-A of the California Railroad Commission provided further concerning the rules for overhead lines construction, as follows:" "31.2. Inspection of lines." "Lines shall be inspected frequently and thoroughly for the purpose of insuring their maintenance in a good condition *539 so as to conform with these rules. Any defects found shall be promptly rectified. Lines temporarily out of service shall be inspected and maintained in such condition as not to create a hazard." "A failure to inspect the lines frequently and thoroughly for the purpose of insuring their maintenance in good condition and to promptly rectify defects found, if any, constitutes negligence on the part of defendants." "Plaintiff's Instruction No. 11b." "Said General Order No. 64-A of the California Railroad Commission provided further concerning the rules for overhead lines construction, as follows:" "32. General Clearances." "These clearances shall apply to all overhead lines under the various conditions met." "33. Tree Trimming." "Where overhead wires pass through trees, safety and reliability of service demand that a reasonable amount of tree trimming be done in order that the wires may clear branches and foliage." "Trees so located that they can fall into a crossing span or into any span that could communicate the trouble to the crossing span shall be removed wherever practicable." Defendants offered instructions to the effect that the above orders were inapplicable to the case and should be disregarded by the jury. Their request was refused. It is defendants' position that the safety rules of the Railroad Commission are not binding upon a municipality operating an electric system inasmuch as it has no jurisdiction over municipally operated utilities. (Cases are cited which will be discussed presently.) The present Railroad Commission was created by an amendment to the Constitution on October 10, 1911. (Cal. Const., art. XII, 22.) Thereafter it was held that the powers conferred on the commission did not extend to the regulation of utilities operated by municipalities; that its power of regulation was limited to privately operated public utilities; and that the Legislature could not extend that power to embrace municipally operated utilities. (City of Pasadena v. Railroad Commission, 183 Cal. 526 [192 P. 25, 10 A.L.R. 1425].) The following cases held to the same effect. (Jochimsen v. *540 City of Los Angeles, 54 Cal.App. 715 [202 P. 902]; Water Users etc. Assn. v. Railroad Com., 188 Cal. 437 [205 P. 682]; Durant v. City of Beverly Hills, 39 Cal.App.2d 133 [102 P.2d 759].) And according to the same principle a municipal corporation is not required to obtain from the Railroad Commission a certificate of public convenience and necessity to maintain and operate a public utility. (Los Angeles Gas etc. Corp. v. Department of Pub. Serv., 52 Cal.App. 27 [197 P. 962].) However, there are two valid grounds for holding that the above rule does not render inapplicable to municipally operated utilities, in actions based upon the negligence of the municipality, the safety standards established by the Railroad Commission with reference to the maintenance of wires carrying electricity. First, a statute was adopted in 1911 which sets forth certain safety requirements for such electric equipment. (Stats. 1911, p. 1037; Deering's Gen. Laws, 1944, Act 2284.) That act by its express terms applies to municipalities. "No commission, officer, agent or employee of the State of California, or of any city and county or city or county or other political subdivision thereof, and no other person, firm or corporation shall ...," and then follow the various requirements. (Stats. 1911, p. 1037, 1.) A violation of the act is a misdemeanor ( 4). It is also provided in said act that: "The railroad commission of the state of California is hereby vested with authority and power, ... and is hereby instructed to inspect all work which is included in the provisions of this act, and to make such further additions or changes as said commission may deem necessary for the purpose of safety to employees and the general public, and the said railroad commission is hereby charged with the duty of seeing that all the provisions of this act are properly enforced." ( 8.) The rules embraced in the instructions to the jury in the instant case were promulgated pursuant to the foregoing statute. There can be no doubt that the Legislature was empowered to pass such a statute and make it applicable to municipally operated electric systems even though the municipality is chartered and has control over municipal affairs. The safety of overhead wire maintenance is a matter of state-wide, rather than local, concern, and the state law is paramount. *541 It has been held that the public liability act (Stats. 1923, p. 675; Deering's Gen. Laws, 1944, Act 5619) which imposes liability upon municipalities for dangerous or defective condition of public streets, highways, buildings, grounds, works and property embraces a subject of state-wide concern rather than municipal affairs. (Douglas v. City of Los Angeles, 5 Cal.2d 123 [53 P.2d 353]; Rafferty v. City of Marysville, 207 Cal. 657 [280 P. 118]; Helbach v. City of Long Beach, 50 Cal.App.2d 242 [123 P.2d 62].) And the requirements with respect to maintenance and elimination of grade crossings in a municipal corporation where the carrier is a private public utility, is not a municipal affair (City of San Mateo v. Railroad Commission, 9 Cal.2d 1 [68 P.2d 713]), because danger to the public is a matter of state concern. [18] Specifically, the rules of the Railroad Commission with reference to maintenance of pole lines are applicable to a city, although the commission has no authority to regulate or control city utilities. (See Sincerney v. City of Los Angeles, 53 Cal.App. 440, 445 [200 P. 380].) Such safety rules are in reality not regulations or the exercise of control by the commission of the municipally owned utility as considered in City of Pasadena v. Railroad Commission, supra, and the cited cases. Rather they are nothing more than safety requirements in which the entire state has an interest. The imposition of liability for dangerous condition of municipal property undoubtedly imposes upon the city the alternative of adopting safety measures or suffering the ensuing liability for failure in its duty. Likewise, the safety rules here involved impose the same alternative. [19] Furthermore, it is pertinent to observe that "If a state statute affects a municipal affair only incidentally in the accomplishment of a proper objective of state-wide concern, then the state law applies to charter cities. (Dept. of Water & Power v. Inyo Chem. Co., 16 Cal.2d 744 [108 P.2d 410].)" (Wilson v. Walters, 19 Cal.2d 111, 119 [119 P.2d 340].) The effect of the rules in the instant case is purely incidental. [17b] Even if it be assumed that the commission's authority is limited to the regulation of privately owned public utilities and that the commission had no authority to adopt rules and regulations applicable to defendants and none could be conferred upon it by the Legislature (see City of Pasadena v. *542 Railroad Commission, supra), yet the Legislature has conferred upon the commission the duty of making safety rules and regulations applicable to privately owned public utilities, and it is clear that such rules and regulations establish the standard of care required of such utilities. We can perceive of no reason why the same standard of care should not be applicable to all utilities whether publicly or privately owned. Hence, it was proper for the trial court to advise the jury that such rules and regulations had been adopted and promulgated by the Railroad Commission and that they could be considered in determining whether defendant had exercised the standard of care required of those maintaining electric power lines under the circumstances here presented. [20] Defendants further complain of instruction 11b in that part of the regulations are omitted and that there is no relation between the clearance of trees mentioned in section 32 and section 33 of General Order No. 64-A of the Railroad Commission concerning tree trimming. While the instructions are subject to criticism we do not believe prejudicial error was committed in view of the generality of the language used and the apparent propriety of the rules of care set forth. [21] Objection is made to an instruction reading: "The defendants in this case claim as a defense that the accident involved herein was an inevitable or unavoidable accident in so far as the said defendants are concerned. This is an affirmative defense and the burden of proving it rests entirely upon the defendants who allege the same. You are instructed that an inevitable or unavoidable accident is one that happens without negligence in any manner or degree contributing thereto; but if you find in this case that the defendants City of Los Angeles and Department of Water and Power were guilty of negligence, if any, no matter how slight, which was the sole proximate cause of the accident, or a contributing proximate cause, then it is said in law, and I so charge you, that the accident in which the plaintiff was involved and which is now being submitted to you, was not an inevitable or unavoidable accident as to the said defendants, City of Los Angeles and Department of Water and Power," on the ground that it erroneously imposes upon defendants the burden of proving an unavoidable accident in connection with the charge of negligence against it. That instruction is clearly eroneous inasmuch as the so-called defense of inevitable accident *543 is nothing more than a denial by defendant of negligence or a contention that his negligence, if any, was not the proximate cause of the injury. [22] It is not an affirmative defense and the burden of proof rests upon plaintiff to prove negligence and proximate cause by a preponderance of the evidence. (See Jolley v. Clemens, 28 Cal.App.2d 55 [82 P.2d 51], for a discussion of the matter and the cases bearing thereon.) [23] However, there was no prejudicial error in the instant case. It will be noted that the latter part of the questioned instruction left it for the jury to determine the issue of defendant's negligence. The jury were elsewhere comprehensively instructed that the burden of proof of negligence rested on plaintiff. On the issue of defendants' negligence, we believe the case, unlike Jolley v. Clemens, supra, is not a close one. The evidence clearly establishes defendants' negligence. For the foregoing reasons the judgment is affirmed. Gibson, C.J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred. EDMONDS, J. My associates hold that the rules and regulations promulgated by the Railroad Commission "could be considered in determining whether defendants had exercised the standard of care required of those maintaining power lines under the circumstances here presented," but the jury was instructed that a violation of any one of those rules constitutes negligence as a matter of law. For that reason, in my opinion, the giving of such instructions amounted to prejudicial error entitling the defendants to a new trial. Quoting specified rules of the Railroad Commission, the trial court twice instructed the jury: "A failure to inspect the lines frequently and thoroughly for the purpose of insuring their maintenance in good condition and to promptly rectify defects found, if any, constitutes negligence on the part of defendants." These instructions were immediately followed by one which reads: "However, in this action a violation of law is of no consequence unless it was a proximate cause of or contributed to some degree as a proximate cause to any injury found by you to have been suffered by the plaintiff." By this charge, the jury was told that the regulations of the Railroad Commission constituted the law binding upon the municipal utility, a violation of which would subject *544 it to liability yet the instructions are justified as going no further than stating a standard of care which might be considered by the jury in determining whether the defendants were guilty of negligence. The distinction between the proof relating to (1) the establishment of the standard of care and (2) the conduct of the party charged with negligence in failing to meet that standard was clearly made in Clinkscales v. Carver, 22 Cal.2d 72 [136 P.2d 777]. As the court there pointed out, "The decision as to what the civil standard should be ... rests with the court. ... In the absence of such a standard the case goes to the jury, which must determine whether the defendant ... acted as a reasonably prudent man would act in similar circumstances. The jury then has the burden of deciding not only what the facts are but what the unformulated standard is of reasonable conduct. ... When the court accepts the standard it rules in effect that defendant's conduct falls below that of a reasonable man as the court conceives it." In that case, the defendant failed to comply with a stop sign which had been erected at a highway intersection without legal authority. If the defendant failed to stop at that sign, the jury was instructed, he was guilty of negligence as a matter of law. A majority of this court affirmed the judgment for the plaintiff upon the ground that, although there was no violation of a traffic ordinance, the stop sign stood as a warning to drivers and constituted a standard of care the violation of which constituted negligence as a matter of law. The dissenting opinion of Justice Shenk, in which I joined, called attention to the fact that the cases cited in support of the decision "go no further than to hold that the jury may consider the existence of a so-called de facto stop sign in determining the question of the defendant's negligence. The withdrawal of that issue from the jury ... [therefore] was manifestly prejudicial." By the present decision, my associates have not held that the rules of the Railroad Commission were accepted by the trial court as fixing the standard of care, but the instructions to the jury are justified notwithstanding the lack of such a premise. Accordingly, in my opinion, even if it be assumed that the reasoning of the majority opinion in the Clinkscales case is correct, it is not authority for the present holding. *545 Summarizing the situation shown by the record now before the court, the instructions relating to the rules of the Railroad Commission are entirely inconsistent with the statement of Mr. Justice Carter concerning the effect to be given the rules. Clearly under such circumstances, it seems to me, the instructions were prejudicially erroneous and the judgment should be reversed.

Porges v Weitz (2019 NY Slip Op 08235) Porges v Weitz 2019 NY Slip Op 08235 Decided on November 13, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 13, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY BETSY BARROS, JJ. 2018-02275 2018-07189 (Index No. 8206/14) [*1]Matthew Porges, respondent, vMelani Weitz, defendant; Daniel Weitz, nonparty-appellant. Harvey Weitz, New York, NY, for nonparty-appellant. Law Office of Steven Cohn, P.C., Carle Place, NY (Peter Chatzinoff of counsel), for respondent. DECISION & ORDER In an action to recover damages for defamation, nonparty Daniel Weitz appeals from (1) an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered November 22, 2017, and (2) an order of the same court entered April 4, 2018. The order entered November 22, 2017, insofar as appealed from, granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to impose a sanction for the failure to respond to questions during a deposition held on August 15, 2017. The order entered April 4, 2018, insofar as appealed from, upon renewal and reargument, adhered to the original determination in the order entered November 22, 2017, granting that branch of the plaintiff's motion. ORDERED that the appeal from the order entered November 22, 2017, is dismissed, as the portion of the order appealed from was superseded by the order entered April 4, 2018, made upon renewal and reargument; and it is further, ORDERED that the order entered April 4, 2018, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The sanction imposed pursuant to CPLR 3126 was a provident exercise of the Supreme Court's discretion (see Polidori v Societe Generale Group, 57 AD3d 369, 369; Sutton v Cobb, 50 AD2d 995). DILLON, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

“x’lsr~ ATT~RNEP GENERAL QF TEXAS Mr. John L. Scott, Jr. Opinion No. C- 24 County Attorney Oldham County Re: Sale, at public sale, of real Vega, Texas estate purchased by a taxing unit at delinquent ad valorem tax foreclosure sale for less than its adjudged value with- out consent of the other taxing units for whom it also holds Dear Mr. Scott: title. You ask whether the City of Vega, Texas was authorized to sell certain lots, at public sale, which it had purchased at sale pursuant to judgment for delinquent ad valorem taxes,for less than its adjudged value , without the consent of the other taxing units. You have furnished us the following relevant facts. The City of Vega purchased these lots for itself and the other taxing units who also recovered judgment for their taxes in the suit. The amount paid was the adjudged value stated in the judgment. Subsequently, the city sold the property at public sale, within the redemption period, for a sum substantially less than the adjudged value stated In the judgment and without the consent of the other taxing units. All proceedings purport to follow the provisions of Article 73&b of Vernon's Civil Statutes of Texas. Our answer is thatthe City of Vega Is authorized by Section 9 of Article 73&b to sell the property at any time,at public sale, without the consent of the other taxing units, Er less than its adjudged value. The relevant portion of Section 9 immediately prior to its last amendment in 1947 read as follows: II . . . and such property shall not be sold by the taxing unit purchasing same for less than the adjudged value thereof or the amount of the judgments against the property in said suit, whichever Is lower, without the written consent of all taxing units which In said judgment have -96- Mr. John L. Scott, Jr., Page 2 (No. C-24 ) been found to have tax liens against such property; . . ." Both the amendment of 1947 and this Section 9 as It existed at the time of such amendment authorize six months after the redemption period expires upon @-F reques of x taxing unit which had obtained a judgment In the tax fore- closure suit. Prior to the 1947 amendment the land could not be sold at any time prior to six months after expiration of the redemp- tion period at either private or public sale for an amount less than its adjudged value or the amount of the judgment, whichever was lower, without the written consent of all taxing units who were parties to the judgment of foreclosure. The redemption period was two years from the date of the foreclosure sale. Under the 1947 amendment the redemption period is two years from the date of the filing for record of the purchaser's deed. In order to expedite sales of the property prior to this two-year and six-month span of time the 1947 amendment added the following new provision: 0 The taxing unit may sell and convey'said property so purchased by it, or which has heretofore been purchased in the name of any officer thereof, at any time In any manner determined to be most advantageous to said taxing unit or units either at public or private sale, subject to any then existing right of redemption; . . ." The amendment further changed the requirement for written consent of all taxing units to sales for less than the adjudged value, or of the judgment, so as to apply only to pri- vate sales. This provision now reads: 11 . . . but such property shall not be sold by the taxing unit purchasing the same, at private sale, for less than the adjudged value thereof, If any, as established in the tax judgment, or the total amount for which such judgment was rendered against the property in said suit, whichever is lower, without the written consent of all taxing units which in said judgment shall have been found to have tax liens against said property. . . .' (Underscoring added) -9-i- Mr. John L. Scott, Jr., Page 3 (No. C-24 ) These changes authorized the City of Vega to sell the property at any time at public sale for less than the adjudged value thereof, without the consent of the other taxing units. SUMMARY A taxing unit may sell real estate which it purchased at delinquent ad valorem tax fore- closure sale at any time at public sale and for less than the adjudged value of the property without consent of the other taxing units for whom It also holds title. Very truly yours, WAGGONER CARR Attorney General of Texas By: WEA:pw APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman F. R. Booth Jerry Brock Howard Fender Joe R. Long APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone -98- 

268 F.2d 105 Abraham J. GORDON andRuth F. Gordon, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 12821. United States Court of Appeals Third Circuit. Argued April 20, 1959. Decided June 29, 1959. Louis J. Finger, Wilmington, Del. (Aaron Finger, Wilmington, Del., on the brief), for petitioners. Charles B. E. Freeman, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Attorneys, Department of Justice, Washington, D. C., on the brief), for respondent. Before MARIS, GOODRICH and HASTIE, Circuit Judges. MARIS, Circuit Judge. 1 This is a petition to review a decision of the Tax Court. Petitioners are, and were during 1952, the taxable year involved, husband and wife and filed a joint income tax return for that year. 2 Prior to 1951, petitioners lived in New York where Gordon operated a printing plant and also had engaged in the sale of plastic products. About 1950, Gordon became interested in a method for the manufacture of plastic molding compounds known as urea formaldehyde molding compounds. The method was radically different from conventional manufacturing methods then in use. Urea and paraformaldehyde were the basic materials to be used, and the proposed method of manufacture was supposed to dispense with the need for certain expensive items of equipment used in conventional manufacturing methods of the material, with costs supposed to be far below those under the conventional manufacturing methods. One of the factors inducing Gordon to go into the business was the fact that the demand at that time for urea formaldehyde molding compounds was so great that manufacturers were rationing their products among their customers, and requiring them to wait twelve to sixteen weeks for deliveries. 3 Gordon's previous business had been conducted as a proprietorship and he therefore first considered operating this enterprise in the same manner. However, after conferring with friends and upon the advice of counsel, Gordon decided that in view of the hazardous nature of the proposed new manufacturing operation, he would form a corporation to conduct the manufacturing operation. Accordingly, in April 1951, before the business began, Gordon Chemicals, Inc., a Delaware corporation, was formed, and a selling organization was set up by Gordon individually under the name Gordon Chemical Co. The corporation was created to engage merely in manufacturing the material and selling its output to Gordon and Gordon was to develop a market for the product and sell the same to the trade. 4 Gordon's estimate of the corporation's capital requirements was $35,000 or $40,000. His entire resources amounted to $20,000, all of which he invested in capital stock of the corporation. He arranged to borrow the additional estimated funds and to lend that borrowed money to the corporation. 5 On April 28, 1951 the corporation and Gordon entered into a written contract whereby the corporation agreed to sell its entire output to Gordon at 107% of the corporation's manufacturing costs, the amount of those costs to be determined as set forth in the contract. This price was to be paid monthly on an estimated basis and within three months after the end of each calendar year the exact amount payable by Gordon in respect to purchases during the preceding year was to be computed, and the account settled between the corporation and Gordon. Under the contract Gordon assumed all financial and other responsibility for sales. 6 From the time the corporation and Gordon began business, and throughout the year 1952, both the corporation and Gordon functioned in accordance with the contract. Each had separate books of account. The books were kept by an accountant who was engaged on a part-time basis. The accountant was given a copy of the contract between the corporation and Gordon and he was instructed to keep the records in accordance with the contract. 7 Due to delays in delivery of certain portions of the equipment, the corporation did not begin operations for a number of months after the contract was signed. During the period of delay deliveries were made to the corporation of certain basic materials which had been ordered some time before, and those materials were stock-piled. Gordon borrowed money and loaned it to the corporation to enable payment to be made for those purchases. It was expected that these loans would be repaid within a short time. However, the corporation experienced unanticipated difficulties in making the new method work. Substantial additional amounts of money were found to be needed. When, finally, salable material was developed about the middle of 1952 the manufacturing costs were found to be higher than had been estimated, because the equipment did not perform with the anticipated efficiency. 8 The material manufactured and sold to Gordon during the second half of 1952 was marketed by Gordon for the total sum of $9,969.25, against which $2,219.95 was deducted for material returned and other credits in connection therewith, leaving net sales by Gordon of $7,749.30. His expenses for the year were $305.34, and discounts allowed to customers totalled $71.45. 9 The corporation's books show periodical debits during the year for sales to Gordon in the total amount of $9,969.25, and credits for merchandise returned of $2,219.95, and also an additional debit to Gordon in December of $21,720.93, explained on the corporation's books as follows: "This adj. to bring sales in line with contract". 10 The purchases account in the books of Gordon show, similarly, a December debit in the amount of $21,720.93, which entry, along with the other debits, was duly entered on the accounts payable. 11 The corporation's books also show credits to Gordon during 1952 amounting to about $3,000.00 on the amounts owed to the corporation for products purchased from it, so that, at the close of 1952, the books of the corporation showed an account receivable from Gordon of $25,904.23. Correspondingly, the books of Gordon showed the same amount owing by him to the corporation as an account payable. 12 By the end of 1952 Gordon had loaned $92,000.00 to the corporation, all but $3,000 of which had been borrowed by Gordon; and the respective payable and receivable accounts of the corporation and Gordon reflected this $92,000 of indebtedness from the corporation to Gordon. 13 In the petitioners' income tax return for 1952 Gordon deducted $22,097.72 as a loss sustained by him on the sale of products purchased by him from the corporation. He computed his loss as follows: 14 Price of products purchased from corporation $29,470.23 Selling expenses 305.34 __________ Total $29,775.57 Less sales 7,677.85 __________ Loss $22,097.72 15 The Commissioner disallowed the deduction. The Tax Court sustained the Commissioner's determination, holding that the petitioners had failed to establish that a loss of $22,097.72, or any other amount, was sustained by Gordon in 1952 in the conduct of his sales business. 16 In so holding, we think that the Tax Court arbitrarily disregarded unchallenged, competent and relevant evidence in the record which was inherently credible. Its decision must accordingly be reversed. Nichols v. Commissioner of Internal Revenue, 3 Cir., 1930, 44 F.2d 157; Whitney v. Commissioner of Internal Revenue, 3 Cir., 1934, 73 F. 2d 589; A. & A. Tool & Supply Co. v. Commissioner of Internal Revenue, 10 Cir., 1950, 182 F.2d 300, 304; Ansley v. Commissioner of Internal Revenue, 3 Cir., 1954, 217 F.2d 252, 257. 17 Paragraph 31 of the agreement of April 28, 1951 between the corporation and Gordon provided in detail for the price to be paid by Gordon to the corporation, for the manner of computing the price and for the manner of payment. It is quite clear under the terms of that paragraph that the amount due by Gordon to the corporation on account of his purchases was to be estimated currently and that later, within three months after the end of the calendar year, it was to be adjusted so as to reflect the exact cost plus 7%, the amount which was agreed to be paid under the contract. The uncontradicted evidence shows that this was exactly what was done by the parties in 1952. The price to be charged by the corporation to Gordon for the net sales made to him during that year was estimated at a total of $7,749.302 and subsequently at the end of the year a charge of $21,720.93 was made by the corporation against Gordon as an adjusting entry to bring the sales to him in line with the contract, i. e., to reflect the difference between the actual cost of the products sold plus 7% and the sale price previously estimated as amounting to $7,749.30. This is clearly shown by the summaries from the books of both the corporation and Gordon which were stipulated in evidence and which were in no way impeached or even challenged by any evidence produced by the Government. 18 As we have seen, however, the Tax Court refused to accept this uncontradicted unchallenged evidence. Its refusal appears to be predicated upon several grounds. The first is that the adjusting entry of $21,720.93 made in December, 1952, was not supported by evidence of the underlying computations or data upon which it was based. Such supporting evidence was quite unnecessary, however, in view of the fact that the existence of the entry itself in the books was stipulated and that its correctness was in no way challenged or attacked by the Government's evidence. Indeed, the stipulation of this and other book entries was made at the instance of the trial judge after the petitioners had come into court with their accountant and their books prepared to testify in detail with respect to them. If there had been a suggestion by the Government at the trial, which there was not, that the stipulated book entries were insufficient to show the corporation's cost the petitioners were ready to produce the underlying data. Compare Rowland v. Boyle, 1917, 244 U.S. 106, 108, 37 S.Ct. 577, 61 L.Ed. 1022. 19 The Tax Court also expressed doubt as to the competency of the petitioners' accountant and as to the accuracy of the books which he kept for the corporation and Gordon. We are unable to find in the evidence any suggestion of a basis upon which to predicate such a doubt, however. And, indeed, no such suggestion was made by the Government in argument to the Tax Court. The court suggests in its opinion that the accountant was not offered as a witness to explain the computation of the adjusting entry. However, as we have indicated, the parties did have the books and an accountant present in court available for that purpose when the trial judge himself suggested that the parties should stipulate these facts, as they thereupon did. 20 Further, the Tax Court points to a suggested conflict between Gordon's testimony that he was the corporation's only customer and the fact that the corporate tax return shows total net sales of $31,581.88 as against total sales of the corporation to Gordon of only $29,470.23. From this the court infers that the corporation must have made sales to others than Gordon. Gordon's testimony, however, related only to the sale of manufactured product and the difference may well have involved the sale of surplus raw material which would be entirely consistent with the testimony. 21 The Tax Court refers to an alleged discrepancy in the corporation's income tax return for 1952. The court states in its opinion: 22 "* * * The balance sheet at the beginning of 1952 shows as a liability `Accrued Rent' in the amount of $38,754.80. The balance sheet at the end of the year shows `Accrued Rent' in the amount of $14,400. Normally the foregoing would indicate that during 1952 the corporation had paid rent in at least the amount of the difference between those two amounts, or $24,354.80." 23 It is perfectly clear upon examining the opening balance sheet set out in the corporation's 1952 return which was placed in evidence by the Government, that it does not show a liability "Accrued Rent" in the amount of $38,754.80. On the contrary, the item "Accrued Rent" is actually in blank and the item of $38,754.80 represents a total of other liabilities which are specified in the balance sheet as notes payable. 24 It will thus be seen that the reasons given by the Tax Court for rejecting the uncontroverted evidence of the book entries are wholly without substance. 25 Finally the Tax Court comments on the fact that the record is silent as to the basis upon which the petitioners' income tax return for 1952 was prepared. We think it is clear, however, from the summaries of Gordon's books which are in evidence, as well as from the nature of his business, that the books were kept on an accrual basis. There is no suggestion that the return did not reflect the figures shown by the books. It follows that it was, as it should have been, prepared upon the accrual basis. 26 It is well settled that a taxpayer who keeps his accounts on the accrual basis should deduct from his gross income expenses which actually accrue in the taxable year, whether paid or not. Aluminum Castings Co. v. Routzahn, 1930, 282 U.S. 92, 99, 51 S.Ct. 11, 75 L. Ed. 234; Dixie Pine Products Co. v. Commissioner, 1944, 320 U.S. 516, 519, 64 S.Ct. 364, 88 L.Ed. 270. It follows that the $21,720.93 charge made in 1952 by the corporation against sales to Gordon, which was shown on the corporation's books as an account receivable from Gordon and which was reflected on Gordon's books as an account payable to the corporation, was a deductible expense item as additional cost of product sold, even though it was not paid in whole or in part in 1952. 27 The Government suggests that the corporation was merely Gordon's alter ego and that there was no bona fides in the transactions between them. The record, however, does not support this contention. It is true, of course, that Gordon controlled the corporation. But it is also true that a taxpayer may have transactions with his wholly-owned corporation which give rise to recognizable gain or deductible loss. Estate of Julius I. Byrne v. Commissioner, 1951, 16 T.C. 1234, 1244. See annotation 24 A.L.R.2d 470. It is clear that the case before us is such a case. For, as we have seen, the parties entered into a definite agreement regulating their future transactions before any business was conducted and the business which they subsequently transacted between themselves was carried out strictly in accordance with that agreement. There is no evidence in this case from which it could be found that Gordon was guilty of bad faith or of any manipulation with respect to the allocation between himself and the corporation of the overall loss resulting from their combined business transactions in 1952. 28 We conclude that the petitioners are entitled to the deduction of $22,097.72 which they claim for the year 1952 and that the Tax Court erred in holding to the contrary. 29 The decision of the Tax Court will be reversed and the cause will be remanded with directions to enter a decision for the petitioners. Notes: 1 Paragraph (3) of the agreement provides: "(3) The price to be paid by Gordon for his purchases from the Corporation shall be a sum equivalent to One Hundred Seven per cent (107%) of the Corporation's cost thereof, computed as follows, viz.: — costs to be computed under this agreement in accordance with generally accepted principles of accounting, but no item shall be included in costs for general and administrative expenses, selling expenses, depreciation, taxes based upon income or corporate franchise, capital stock or other analogous taxes, excepting, however, that real estate taxes and unemployment and social security taxes shall be included in costs. The Corporation shall submit statements of accounts regularly to Gordon for sales hereunder, estimating as nearly as may be the amounts payable in respect to current sales, and Gordon shall make payment on or before the fifteenth day of each month for all purchases by him during the preceding month. Within three months after the end of each calendar year the exact amount payable by Gordon in respect of purchases during the preceding year shall be computed as nearly as may be and any deficiency in the amount payable by Gordon as thus computed shall be paid by him to the Corporation, or if any overpayment shall thus have been ascertained, the amount of such over-payment shall be refunded or credited." 2 This estimated figure was based on Gordon's sale price

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 7 2001 TENTH CIRCUIT PATRICK FISHER Clerk ERVIN LEE McCOY, Plaintiff-Appellant, v. No. 01-6030 GARY DAMRON; M. CORY; JEFF (D.C. No. CIV-00-1811-R) WHITE; LT. DUGAN; LT. HOLT; J. (W.D.Okla.) CALLAGHAN, Defendants-Appellees. ORDER AND JUDGMENT* Before HENRY, BRISCOE and MURPHY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff Ervin Lee McCoy, appearing pro se, appeals the district court's * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. dismissal of his 42 U.S.C. § 1983 and state-law false imprisonment claims. We affirm. McCoy was arrested shortly after a shooting in downtown Oklahoma City on July 22, 1998. He was transported to the Oklahoma City detention center and booked on charges of shooting with intent to kill. On September 1, 1999, a jury found him not guilty of the charge. McCoy filed his § 1983 action in state court on August 28, 2000, against Gary Damron, M. Cory, Jeff White, Lt. Dugan, Lt. Holt (Holtz), and J. Callaghan, seeking $1,000,000 in punitive damages for wrongful incarceration, $500,000 for the “bogus charges,” and “all back pay that he would have earned and any other relief this Honorable Court deems appropriate.” Complaint at 6. The defendants removed the case to the United States District Court for the Western District of Oklahoma. Five of the defendants (Damron, Cory, White, Dugan, and Holtz) moved to dismiss, arguing the action was time-barred because it was filed more than two years after McCoy's arrest. On November 30, 2000, the district court dismissed McCoy's complaint as to Damron, Cory, White, Dugan, and Holtz as time-barred, rejecting McCoy's arguments that the statute of limitations should be equitably tolled until the state court charges were terminated and for the period he was without access to a law library while he was a state court pretrial detainee. On December 1, 2000, Callaghan also moved to dismiss the claim against him as time-barred and the district court granted the motion on January 4, 2001. McCoy filed his notice of appeal from the district court's November 2 30, 2000, ruling on December 28, 2000. We will treat this notice of appeal as a premature notice of appeal which became effective upon the court's dismissal of the remaining claim against Callaghan. Lewis v. B.F. Goodrich Co., 850 F. 2d 641, 645 (10th Cir. 1988) (en banc). On appeal, McCoy again argues the statute of limitations should be equitably tolled because of lack of access to legal materials and ignorance of the law. As his issues on appeal, McCoy asserts: Was Appellant entitled to a judicial probable cause determination hearing upon completion of administrative steps incident to his arrest? Was the on-the-scene assessment of a Police Officer's affidavit and signed by a Magistrate and/or judge constitutionally valid to restrain Appellant in jail for several months without affording him a judicial probable cause determination hearing when Appellant had no knowledge of such a Police Officer's affidavit signed by a Magistrate Judge? Is Appellant entitled to redress and/or “monetary” relief as a compensation for the 13 months and 10 days he spent in jail after he was found not guilty, unanimously, by a trial jury that lasted 3 ½ days and in less than an hour after their deliberation? Br. at 2-3. As appellees note, McCoy is raising the first two issues for the first time on appeal. “The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993). However, we need reach only the jurisdictional issue of whether McCoy's action is barred by the statute of limitations. “For section 1983 actions, state law determines the appropriate statute of 3 limitations and accompanying tolling provisions.” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). McCoy points to no Oklahoma authority that supports his argument that the statute of limitations should be tolled. Rather, he contends that his failure to file should be excused on the grounds of hardship and ignorance. In Oklahoma, “[e]xceptions to statutes of limitation are strictly construed and are not enlarged on consideration of apparent hardship or inconvenience.” Resolution Trust Corp. v. Grant, 901 P.2d 807, 813 (Okla. 1995) (emphasis added). Further, “it is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (internal citation omitted). Absent a litigant raising a convincing reason why the court should depart from this general rule, ignorance of the law is not grounds for tolling the statute of limitations. See id. AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge 4 

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 1, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-10154 BRUCE BURNEY, as Assignee of Tom Stevenson and Stevenson & Son’s Pest Control, doing business as “Bugs” Burney Pest Control Plaintiff - Appellant v. ODYSSEY Re (LONDON) LIMITED; SPHERE DRAKE INSURANCE COMPANY; SPHERE DRAKE INSURANCE LIMITED; SPHERE DRAKE INSURANCE COMPANY PLC Defendants - Appellees Appeal from the United States District Court for the Northern District of Texas, Amarillo No. 2:04-CV-32 Before KING, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Plaintiff-appellant Bruce Burney appeals the district court’s order granting summary judgment in favor of the defendants-appellees Odyssey Re (London) Limited and Sphere Drake Insurance (collectively, “Odyssey”). This litigation began in * 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. -1- Texas state court when Burney sued Tom Stevenson and Stevenson & Son’s Pest Control. The judgment entered by the state district court in favor of Burney on November 26, 2001 was vacated when the state court judge granted Stevenson’s motion for a new trial on February 6, 2002. See Long John Silver’s Inc. v. Martinez, 850 S.W.2d 773, 777 (Tex. App. 1993) (stating that “[t]he legal effect of the order granting the new trial was to vacate the original judgment and return the case to the trial court as if no previous trial or hearing had been had”). In a letter dated August 19, 2002, the state court judge attempted to amend his order to grant a new trial for the damages issues alone. This subsequent letter, which was outside of the seventy-five day period for granting a new trial prescribed by TEX. R. CIV. P. 329b(c), was ineffective, but it did evidence the judge’s concern with the damages assessed by the jury in the underlying judgment. See TEX. R. CIV. P. 329b(c) (“In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.”); see also Taack v. McFall, 661 S.W.2d 923, 923-24 (Tex. 1983) (“An order granting a motion for new trial is not effective unless signed within seventy-five days after the judgment is signed.”). On December 14, 2002, over one year after the original -2- judgment was entered, the state court attempted to amend the August 19 letter order to include a new trial as to both the liability and the damages issues. Because the court’s plenary power had long since passed, this December 14 order was overruled by operation of law. See TEX. R. CIV. P. 329b(c); see also Taack, 661 S.W.2d at 923-24. On August 25, 2003, after the new trial had begun, Burney and Stevenson entered into a settlement agreement. The parties’ agreement reinstated the November 26, 2001 final judgment and withdrew the court’s order granting the motion for a new trial. The agreement also assigned to Burney all of Stevenson’s rights under his insurance policies with Odyssey, including his indemnification rights against Odyssey. On August 27, 2003, the state court approved the settlement and entered an “agreed order” withdrawing the prior order granting the motion for a new trial and confirming the finality of the original judgment entered on November 26, 2001. This litigation ended up in federal district court after Burney sued Odyssey to recover the judgment rendered against Stevenson through the state court settlement agreement. We agree with the federal district court that there has been no full and fair adjudication, as contemplated by the Texas Supreme Court in State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996). In Gandy, the plaintiff and the insured- defendant settled the underlying lawsuit by agreeing to a judgment in the plaintiff’s favor and assigning to the plaintiff -3- all of the insured’s claims against his insurer. Id. at 698, 701-02. In refusing to enforce this kind of settlement agreement, the Texas Supreme Court concluded that “[i]n no event . . . is a judgment for plaintiff against defendant, rendered without a fully adversarial trial, binding on defendant’s insurer or admissible as evidence of damages in an action against defendant’s insurer by plaintiff as defendant’s assignee.” Id. at 714 (emphasis added). Here, whenever Burney and Stevenson attempted to withdraw the order granting the new trial and reinstate the November 26, 2001 original judgment, they confected the kind of sweetheart deal that Gandy prohibits. Given that the February 6, 2002 order vacated the original judgment and there has since been no “fully adversarial trial” as contemplated by Gandy, Burney cannot enforce against Odyssey his agreed-upon judgment with Stevenson. See id. Accordingly, the district court’s order is AFFIRMED. -4- 

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Opinion Number: _______________ Filing Date: October 2, 2013 Docket No. 31,023 STATE OF NEW MEXICO, Plaintiff-Appellee, v. ERIC FIERRO, Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY George P. Eichwald, District Judge Gary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellee Bennett J. Baur, Acting Chief Public Defender Will O’Connell, Assistant Appellate Defender Santa Fe, NM for Appellant OPINION HANISEE, Judge. {1} Defendant appeals his convictions for criminal sexual penetration (CSP) in the second degree, which resulted in Victim’s pregnancy. Defendant contends that he was denied his right to a speedy trial, the pretrial delay denied him due process, the district court lacked jurisdiction, the indictment should have been quashed, and there was insufficient evidence to support his conviction. We affirm on all grounds. 1 I. BACKGROUND {2} Between October 1, 1999, and November 30, 1999, Defendant impregnated his fourteen-year-old stepdaughter (Victim) when she was in the eighth grade. This occurred while she and her family were living in Rio Rancho with Defendant. Defendant perpetrated the sexual intercourse by threatening Victim that he would kill her and her family and by misuse of his status as an authority figure. Victim gave birth to the child that resulted from the CSP in July 2000. Forensic DNA evidence indicated that there was at least a 99.9 percent likelihood that Defendant fathered Victim’s daughter. {3} On June 24, 2004, Defendant was arrested for committing various sexual acts against Victim, including the CSP charge that resulted in her pregnancy and is at issue in this case. He was indicted on that same charge on July 8, 2004 in Bernalillo County. On June 7, 2007, Defendant for the first time brought a motion to dismiss for improper venue, arguing that the CSP that resulted in Victim’s pregnancy took place in Sandoval County. The State agreed and, in response, sought that only that charge be dismissed without prejudice so that it could be refiled in Sandoval County. The Bernalillo County District Court granted Defendant’s and the State’s requests, dismissing the charge without prejudice. Of the charged offenses remaining in Bernalillo County, Defendant was convicted of eight counts of first degree CSP, sixteen counts of second degree CSP, four counts of third degree criminal sexual contact (CSC), and two counts of bribery of a witness on January 7, 2009. We note that Defendant also appealed those convictions on speedy trial grounds, and we concluded that his rights were not violated since the reasons for the delay were mostly attributable to Defendant, and Defendant failed to demonstrate that he suffered any type of significant or individualized prejudice from the delay. State v. Fierro, 2012-NMCA-054, ¶ 61, 278 P.3d 541, cert. denied, 2012-NMCERT-004, 293 P.3d 886. {4} On December 4, 2008, Defendant was indicted in Sandoval County for six counts of CSP against Victim. Count one of the indictment charged Defendant with CSP resulting in Victim’s pregnancy. The district court subsequently dismissed the other five counts, which also alleged sexual misconduct against a minor, because they were duplicative of the Bernalillo County charges for which Defendant had been convicted. As to the count that related to the CSP resulting in Victim’s pregnancy, the district court concluded that it was properly charged in Sandoval County. Following Defendant’s waiver of trial by jury, Defendant’s bench trial commenced on November 30, 2010. {5} Defendant was represented by counsel prior to and during trial, but nonetheless filed numerous pro se motions that the district court entertained at intervals throughout the proceeding. In multiple such motions brought by both his counsel and himself, Defendant argued that his right to a speedy trial had been violated. The district court rejected Defendant’s speedy trial argument on the grounds that he had not shown prejudice, and subsequently convicted Defendant of CSP in the second degree. Defendant now appeals. II. DISCUSSION 2 A. Defendant’s Right to Speedy Trial Was Not Violated {6} Defendant first renews his contention that his right to a speedy trial was violated. “[T]he initial inquiry in speedy trial analysis is a determination as to whether the length of pretrial delay is presumptively prejudicial. A presumptively prejudicial length of delay is simply a triggering mechanism, requiring further inquiry into the [four] Barker factors.” State v. Montoya, 2011-NMCA-074, ¶ 10, 150 N.M. 415, 259 P.3d 820 (alteration, internal quotation marks, and citation omitted). If the delay is presumptively prejudicial, we balance these four factors to determine whether a speedy trial violation has occurred. The factors to be considered are “(1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant.” State v. Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522. “We are mindful of the fact that [a] speedy trial analysis is not mechanical and must take into account all . . . relevant circumstances.” State v. Stock, 2006-NMCA-140, ¶ 45, 140 N.M. 676, 147 P.3d 885 (internal quotation marks and citation omitted). “In considering each of these factors, we defer to the [district] court’s factual findings[,] but review de novo the question of whether [the d]efendant’s constitutional right [to a speedy trial] was violated.” State v. Brown, 2003-NMCA-110, ¶ 11, 134 N.M. 356, 76 P.3d 1113. {7} In this case, Defendant was brought to trial on November 30, 2010. Defendant argues that the delay amounted to six years because his right to a speedy trial attached when he was arrested on the Bernalillo County charges on June 24, 2004. The State responds that Defendant’s right to a speedy trial attached on December 4, 2008, when the indictment in Sandoval County was filed, and that the delay thus persisted for approximately twenty-three months. Regardless of the starting point, the delay was presumptively prejudicial because its length exceeded the limits for even a complex case. See State v. Garza, 2009-NMSC-038, ¶¶ 47-48, 146 N.M. 499, 212 P.3d 387 (holding that twelve months is presumptively prejudicial for simple cases, fifteen months is presumptively prejudicial for intermediate cases, and eighteen months is presumptively prejudicial for complex cases). As such, we must balance the four Barker factors, including the length of delay, to determine whether Defendant’s speedy trial right was violated. 1. Length of Delay {8} “Considering the length of delay as one of the four Barker factors, the greater the delay the more heavily it will potentially weigh against the State.” Garza, 2009-NMSC-038, ¶ 24. In determining the length of delay, the interval at which Defendant’s speedy trial right attached is the decisive starting point. “The speedy trial right attaches when the defendant becomes an accused, that is, by a filing of a formal indictment or information or arrest and holding to answer.” State v. Parrish, 2011-NMCA-033, ¶ 20, 149 N.M. 506, 252 P.3d 730 (internal quotation marks and citation omitted). In making this calculation, we take heed that “[t]he speedy trial guarantee is to prevent lengthy incarceration prior to trial, to reduce impaired liberty while an accused is released on bail, and to shorten the disruption of life caused by pending and unresolved criminal charges.” State v. McCrary, 1984-NMSC-005, 3 ¶ 22, 100 N.M. 671, 675 P.2d 120. As such, “once charges are dropped in good faith, the delay is not scrutinized by the speedy trial clause of the Sixth Amendment of the federal constitution.” Id. {9} In this case, Defendant was arrested on June 24, 2004, for impregnating Victim. On July 8, 2004, he was indicted on that charge in Bernalillo County. Nearly three years later, on June 7, 2007, Defendant brought a motion to dismiss for improper venue, successfully asserting that the CSP that resulted in Victim’s pregnancy took place in Sandoval County. Upon the State’s agreement, the Bernalillo County district court promptly dismissed that charge. On December 4, 2008, Defendant was indicted in Sandoval County for the CSP which resulted in Victim’s pregnancy. On November 30, 2010, Defendant’s trial on the merits for that CSP commenced. {10} Defendant argued below and reasserts on appeal that because he was arrested in June 2004 on charges for molesting and impregnating Victim, the lengthy delay before his November 2010 trial required the court to determine that his right to a speedy trial was violated. Defendant contends that the period of time between the initial arrest in Bernalillo County and his indictment in Sandoval County should be calculated within the speedy trial analysis. For support, Defendant cites cases that have concluded that the time between indictments is counted against the government where the government dismissed the charge and refiled it in another jurisdiction to gain a tactical advantage. See United States v. Lara, 520 F.2d 460, 465 (D.C. Cir. 1975) (holding that long and unnecessary delays caused by the deliberate act of government forum-shopping for a tactical advantage showed bad faith and, as such, the interim between the first indictment and the second counted under speedy trial analysis); United States v. Avalos, 541 F.2d 1100, 1108-09 (5th Cir. 1976) (ruling that the four-month tactical delay between the government’s dismissal of arrest warrants and its subsequent indictment before a different trial court would be counted in speedy trial analysis); United States v. Thomas, 527 F. Supp. 261, 262-63 (D.C.D.C. 1981) (holding that the period following the formal dismissal of charges before they were refiled counted for purposes of speedy trial analysis where the dismissal was attributable to government forum- shopping). Yet, Defendant does not argue here that the State acted in bad faith or with motivation to gain a tactical advantage, as the government did in those cases. Unlike those cases, Defendant himself sought the initial dismissal on the grounds of improper venue. Unlike those cases, the State does not appear to have dismissed and refiled the charges in order to benefit from the lapse in time or any change of venue. {11} Defendant also likens his case to State v. Talamante, 2003-NMCA-135, 134 N.M. 539, 80 P.3d 476. In Talamante, the State initially indicted the defendant on March 25, 1999, and then dismissed the case without prejudice on May 5, 2000. Id. ¶¶ 4-5. That same day, a second indictment was returned, charging the defendant with the same offenses in the same court. Id. ¶ 5. “On October 23, 2001, [the d]efendant conditionally pleaded no contest to reduced charges, reserving his right to appeal the denial of his motion to dismiss the indictment on speedy trial grounds.” Id. ¶ 7. There, we analyzed that “[d]uring this continuous period of time, a formal indictment was pending against [the defendant]. The fact 4 that the first indictment was dismissed is of no consequence because the second indictment was returned on the same day charging the identical offenses set forth in the first indictment.” Id. ¶ 8. We concluded that “the charges against [the d]efendant were never dismissed or discharged in any real sense, thus his speedy trial rights continued to apply.” Id. We also noted that numerous factors support[ed] the conclusion that both the [s]tate and the [district] court treated the two indictments as the same case: (1) the first indictment was dismissed, and the second indictment was returned on the same day with the conditions of release on the first indictment intact; . . . (3) both indictments were assigned to the same judge; (4) the same prosecutor handled both indictments; (5) orders filed under the first indictment to interview witnesses were deemed applicable to the second indictment; (6) the prosecutor treated both indictments as a single case for purposes of Rule 5- 604. . .; (7) the first Rule 5-604 petition filed by the [s]tate in the Supreme Court after the second indictment recites the extensions and deadlines obtained under the first indictment as the deadline to commence trial; (8) the Rule 5-604 petitions filed in the Supreme Court by the [s]tate after the second indictment are all filed under the case numbers of both indictments; and (9) the clerk of the [district] court filed all the Rule 5-604 pleadings under the case numbers of both indictments. Id. ¶ 9. {12} In contrast to Talamante, the present case commenced after a significant lapse in time following the initial indictment and dismissal. The charge related to Victim’s pregnancy was dismissed on Defendant’s motion. Had Defendant not been incarcerated as a result of his Bernalillo County trial, he presumably would have been released without restraints on his freedom as no charges had yet been brought in Sandoval County. See State v. Ross, 1999-NMCA-134, ¶ 15, 128 N.M. 222, 991 P.2d 507 (“[U]ntil the State files an information or indictment, the district court is without jurisdiction to try the defendant.”). Unlike Talamante, the case numbers, judges, defense attorneys, and prosecutors all differed between the Bernalillo County case and the Sandoval County case. And significantly, the Sandoval County district court did not assume the Bernalillo County district court’s evidentiary rulings would apply to the case before it. In fact, the court notified Defendant that he would need to seek exclusion of evidence anew and seek an evidentiary hearing if he again wished to exclude his confession despite the Bernalillo County district court’s prior suppression of it. Therefore, the collective facts attendant to the dismissal of the Bernalillo indictment and the filing of the Sandoval indictment are of significant consequence, and we accordingly treat the two matters as separate cases. {13} Because we see no evidence that the State acted in bad faith by dismissing the charge and subsequently refiling it in a proper venue, we conclude that the delay should be measured from the date Defendant was indicted in this case. As such, the delay amounts to 5 twenty-three months. We conclude that this period of time weighs in Defendant’s favor, although not heavily. See Garza, 2009-NMSC-038, ¶ 24 (citing United States v. Serna- Villarreal, 352 F.3d 225, 232 (5th Cir. 2003) for the proposition that a three-year and nine- month delay was too short to weigh heavily in the defendant’s favor). 2. The Reasons for Delay {14} “The reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay.” State v. Maddox, 2008-NMSC-062, ¶ 13, 145 N.M. 242, 195 P.3d 1254. “[A] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.” Garza, 2009- NMSC-038, ¶ 25 (internal quotation marks and citation omitted). Defendant “is more likely to prevail if [he can] show that the [g]overnment had intentionally held back in its prosecution of him to gain some impermissible advantage at trial.” Id. (internal quotation marks and citation omitted). Next, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. ¶ 26 (alteration in original) (internal quotation marks and citation omitted). The weight we assign for negligent delay is dependent on the length of delay. “[O]ur toleration of such negligence varies inversely with its protractedness, and its consequent threat to the fairness of the accused’s trial.” Id. (alteration in original) (internal quotation marks and citation omitted). Lastly, “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. ¶ 27 (internal quotation marks and citation omitted). {15} Defendant contends that “[b]ecause the lion’s share of the delay in this case occurred while the Sandoval County charge was lodged in the Bernalillo County court, . . . the enormous length of time the case was pending in Albuquerque was the fault of the State.” Defendant asserts that we wrongly decided his appeal in the Bernalillo County case by holding that his right to a speedy trial was not violated based on our conclusion that the delay was mostly attributable to Defendant, and Defendant failed to demonstrate that he suffered any type of significant or individualized prejudice. Fierro, 2012-NMCA-054, ¶ 61. {16} First and foremost, upon our Supreme Court’s denial of certiorari, our decision in the Bernalillo County case became final. See Fierro, 2012-NMCERT-004 separately, in this case, we have concluded that the delay is measured from the date of the Sandoval County indictment until the date Defendant was brought to trial. Defendant makes no arguments with regard to that time period. {17} Nonetheless, in our review of the Sandoval County district court record, Defendant appears to have caused a great deal of the delay in a manner that is unattributable to the State. While being simultaneously represented by counsel in that district court, Defendant filed numerous pro se motions that the district court entertained at intervals throughout the proceeding. On December 4, 2009, the district court compiled a list of fifteen motions 6 brought by Defendant beginning in February 2009. Of those, thirteen were filed pro se by Defendant himself. Even after December 4, 2009, Defendant filed numerous additional motions, including a motion to dismiss for lack of jurisdiction; a motion to dismiss for speedy trial and due process; a motion to dismiss for failure to observe the rules; five motions seeking hearings; a motion for pre-summary judgment; an objection to the court’s extension of time and motion to reconsider; a motion to dismiss; an addendum to his motion to dismiss for speedy trial and due process; and a motion to show cause. Defendant’s motions were repetitive and confusing and caused significant delays to the progression of his case to trial. We note that the first and third of the State’s requests for extensions of time were based on the fact that there were pending motions before the court that had to be resolved before trial commenced. {18} We therefore conclude that the delay in this case was not the product of intentional dilatory tactics by the State. Rather, it occurred in large part due to Defendant’s own pro se trial tactic of bombarding the court with frequent and redundant motion practice. Therefore, this factor does not weigh in Defendant’s favor. 3. Defendant’s Assertion of the Right {19} “Generally, we assess the timing of the defendant’s assertion and the manner in which the right was asserted. Thus, we accord weight to the ‘frequency and force’ of the defendant’s objections to the delay. We also analyze the defendant’s actions with regard to the delay.” Garza, 2009-NMSC-038, ¶ 32 (citations omitted) (explaining that the force of the defendant’s assertions of his speedy trial right was diminished where he filed numerous motions which would inevitably slow down the proceedings). {20} The State concedes that Defendant timely and frequently asserted his right to a speedy trial. Nonetheless, his assertion of this right was coupled with the filing of numerous motions (listed above) which served to slow the proceedings in the district court. See State v. Coffin, 1999-NMSC-038, ¶ 67, 128 N.M. 192, 991 P.2d 477 (concluding that the defendant’s assertion of his speedy trial right did not weigh in his favor where he simultaneously represented that he was not prepared for trial); United States v. Loud Hawk, 474 U.S. 302, 314-15 (1986) (according little weight to the defendants’ repeated motions to dismiss on speedy trial grounds when the defendants simultaneously “filled the [d]istrict [c]ourt’s docket with repetitive and unsuccessful motions”). It is inconsistent for Defendant to object to continuances and to assert his speedy trial rights, while concurrently inundating the district court with motions and requests for pretrial hearings. Based on the foregoing, the assertion of his speedy trial right weighs only slightly in Defendant’s favor. 4. Prejudice to Defendant {21} In Garza, our Supreme Court held that with regard to the Barker factors, “a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect.” Garza, 2009-NMSC-038, ¶ 39. “The United States Supreme Court 7 has identified three interests under which we analyze prejudice to the defendant: ([1]) to prevent oppressive pretrial incarceration; ([2]) to minimize anxiety and concern of the accused; and ([3]) to limit the possibility that the defense will be impaired.” Id. ¶ 35 (internal quotation marks and citation omitted). With regard to the oppressive pretrial incarceration and the anxiety and concern of the accused, “[s]ome degree of oppression and anxiety is inherent for ever[y] defendant who is jailed while awaiting trial.” Id. (alterations in original) (internal quotation marks and citation omitted). Therefore, we only weigh this factor in the defendant’s favor when the oppressiveness and anxiety suffered is undue. Id. Furthermore, “[t]he oppressive nature of the pretrial incarceration depends on the length of incarceration, whether the defendant obtained release prior to trial, and what prejudicial effects the defendant has shown as a result of the incarceration.” Id. {22} Defendant has the burden to demonstrate and substantiate prejudice. Id. ¶¶ 35-37. In the present case, Defendant asserts that he had been “incarcerated since 2004, mostly in solitary confinement, causing him to require medication for anxiety and depression, and that a defense witness, who would have testified that [Victim]’s mother had confessed to him that she had fabricated the charges [of long-term abuse,] had died while the case was pending.” {23} After reviewing the record, we conclude that Defendant did not suffer any pretrial incarceration in this, the Sandoval County case. Defendant had been in custody since 2004 based upon the Bernalillo County charges and continued to serve time in jail until he was convicted and imprisoned on those charges in 2009. Because Defendant was already in custody in what we have concluded to be a separate matter, his pretrial incarceration did not derive from the case that is the subject of this appeal. {24} Furthermore, Defendant failed to present any evidence that he suffered an unusual degree of anxiety and concern as a result of the pending charges in Sandoval County. Defendant solely made an assertion of prejudice through counsel and mere assertions are insufficient to prove this factor. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (stating that “[a]n assertion of prejudice is not a showing of prejudice”). {25} To the extent that Defendant claims his ability to present a defense was inhibited by the death of one of his witnesses, Defendant has failed to produce evidence to this effect. Defendant claims in the present case, as he did in the Bernalillo County case, that his witness, Aaron Chavez, died before he went to trial. See Fierro, 2012-NMCA-054, ¶¶ 59-60. Defendant provided no other evidence about this witness’s potential testimony. As such, we conclude that Defendant failed to make a particularized showing of prejudice that resulted from the asserted loss of this witness. See Coffin, 1999-NMSC-038, ¶ 71 (concluding that to prove prejudice resulting from the unavailability of a witness, the defendant must show that the witness’s testimony would have benefitted his case). {26} We note that a defendant is not required to make a particularized showing of prejudice where the other Barker factors weigh heavily in his favor. Garza, 2009-NMSC- 038, ¶ 39 (stating that “if the length of delay and the reasons for the delay weigh heavily in 8 [the] defendant’s favor and [the] defendant has asserted his right and not acquiesced to the delay, then the defendant need not show prejudice for a court to conclude that the defendant’s right has been violated”). However, in the instant case, neither the length of delay nor the reasons for it weigh heavily in Defendant’s favor, and Defendant himself has contributed to the delay. Pursuant to the Barker factors discussed above, we conclude that Defendant’s speedy trial right was not violated. B. The Pre-indictment Delay Did Not Violate Defendant’s Right to Due Process {27} Defendant asserts that he was subject to unconstitutionally long pre-indictment delay. “[T]he United States Supreme Court has held that the due process clause of the fifth amendment provides additional, albeit limited, protection against improper preaccusation delay.” Gonzales v. State, 1991-NMSC-015, ¶ 4, 111 N.M. 363, 805 P.2d 630. To establish whether a defendant has been denied procedural due process by pre-indictment delay, we utilize a two-part test. “First, the defendant must show prejudice to his or her defense as a result of the delay and, second, the defendant must show that the state intentionally caused the delay in order to gain a tactical advantage.” State v. Palmer, 1998-NMCA-052, ¶ 4, 125 N.M. 86, 957 P.2d 71. “In determining whether a pre[-]indictment delay denied [the d]efendant his right of procedural due process, we conduct an independent review of the record and the law.” Id. (internal quotation marks and citation omitted). {28} On appeal, Defendant solely argues that “the State’s lack of diligence in getting the case before a Sandoval County grand jury demonstrates an unacceptable indifference by the prosecution to its constitutional duty to make a diligent, good-faith effort to bring [D]efendant to trial.” On appeal, Defendant provides no evidence or even an argument about how he was prejudiced by the pre-indictment delay. Below, Defendant merely asserted that he suffered anxiety and concern over his case, that his defense had been impaired by the passage of time due to the faded memories of his witnesses, and that he had spent a significant amount of time in jail. Yet, mere assertions are insufficient in this context. Defendant “must establish prejudice by more than mere conjecture: vague and conclusory allegations of prejudice resulting from the passage of time and the absence of witnesses are insufficient . . . ; [D]efendant must be able to show definite and not speculative prejudice, and in what specific manner missing witnesses would have aided his defense.” Gonzales, 1991-NMSC-015, ¶ 8 (omission in original) (internal quotation marks and citation omitted). The prejudice must be more than nominal: it does not have to “rise to the level of severe prejudice, but must establish that the prejudice impacted the defense.” Id. {29} Defendant provided no proof or concrete explanations of how this delay impacted his defense. Additionally, Defendant failed to produce any evidence that the State intentionally delayed the indictment in order to gain a tactical advantage. As there is no evidence to support either element of the due process test, we conclude Defendant’s right to due process was not impaired by the pre-indictment delay. C. The Sandoval County District Court Had Jurisdiction to Hear This Case 9 {30} Pursuant to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1, Defendant argues that the Sandoval County District Court lacked jurisdiction to hear his case. Defendant argues that “the State’s decision to arrest him, charge him, and hold him in Albuquerque for several years on the allegation that he impregnated [Victim] required the State to follow through in that county, or else lose jurisdiction.” We disagree. {31} “[J]urisdiction is satisfied if the trier of fact can infer from the evidence that the crime occurred in New Mexico.” State v. Litteral, 1990-NMSC-059, ¶ 19, 110 N.M. 138, 793 P.2d 268. “One of the essential elements incumbent upon the [s]tate was to establish where the offense occurred, because the law is that a crime must be prosecuted in the jurisdiction where it was committed.” State v. Losolla, 1972-NMCA-085, ¶ 4, 84 N.M. 151, 500 P.2d 436. Here, Victim testified that the CSP took place while she was living with Defendant at an address on 12th Street in Rio Rancho within Sandoval County. A detective from the Sandoval County Sheriff’s Office also testified that Victim was living in Rio Rancho at a home in Defendant’s name and attended school in Rio Rancho at the time that the CSP in question occurred. Defendant’s father also testified that Defendant’s home at the time of the offense was located in Sandoval County. We conclude that the State presented sufficient evidence for the jury to infer that Defendant impregnated Victim in Sandoval County, New Mexico. As such, jurisdiction is satisfied. {32} Moreover, Defendant moved to dismiss this particular charge in Bernalillo County District Court on the ground that venue was improper. Defendant cannot now complain that this charge should have been tried in Bernalillo County. We thus affirm the district court’s jurisdiction. D. The District Court Properly Denied Defendant’s Motion to Quash the Indictment {33} Pursuant to Franklin, 1967-NMSC-151, ¶ 9, and Boyer, 1985-NMCA-029, ¶ 24, Defendant argues that the State impermissibly used evidence that was previously suppressed in Bernalillo County district court to obtain the indictment against Defendant in the Sandoval County case at issue here. Defendant contends that the district court should have quashed the indictment as a result of the improper evidence. Defendant’s argument is unavailing. This Court has reiterated in the past that the findings of [the] grand jury, when made by and through an indictment, duly returned into court, and regular upon its face, are, with respect to the kind and degree of evidence upon which it was returned, conclusive, and that the courts are without power or jurisdiction to inquire into the subject and review the testimony submitted to the grand jury to determine whether or not the required kind or degree of evidence was submitted. 10 State v. Stevens, 1979-NMCA-058, ¶ 3, 93 N.M. 434, 601 P.2d 67 (internal quotation marks and citation omitted). As such, “[w]hen inadmissible evidence is presented to the grand jury, the proper remedy is suppression at trial.” State v. Eder, 1985-NMCA-076, ¶ 9, 103 N.M. 211, 704 P.2d 465. This is because “the barring of prosecution altogether in such a circumstance, might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.” Id. (internal quotation marks and citation omitted). {34} In this case, the State provided the grand jury with evidence of Defendant’s confession, which was obtained during a custodial interrogation without Miranda warnings. The district court stated below that Defendant’s remedy would be suppression of the confession at trial if it determined that the evidence was inadmissible. The district court did in fact subsequently suppress the confession at issue here. Thus, we conclude that quashing the indictment was unnecessary. Defendant obtained the constitutionally proper relief warranted by the situation, and no further action was required by the district court. E. Defendant’s Conviction is Supported by Sufficient Evidence {35} Lastly, also pursuant to Franklin, 1967-NMSC-151, ¶ 9, and Boyer, 1985-NMCA-029, ¶ 24, Defendant asserts that there is insufficient evidence to support his conviction. “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC- 005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted), overruled on other grounds by State v. Montoya, 2013-NMSC-020, ¶ 54, ___ P.3d ___. We view the evidence “in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “Because an appellate tribunal does not enjoy the same exposure to the evidence and witnesses as the jury at trial, our review for sufficiency of the evidence is deferential to the jury’s findings.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057. {36} Here, Defendant was charged with CSP in the second degree by the use of force or coercion resulting in personal injury, pursuant to NMSA 1978, § 30-9-11 (D)(3) (2003, amended 2009). To convict Defendant of this charge, the State had to prove that Defendant caused Victim to engage in sexual intercourse with him through the use of threats of physical force or violence against her or her family and that Defendant’s acts resulted in Victim’s pregnancy. See UJI 14-947 NMRA. In the alternative, Defendant was charged with second degree CSP on a child thirteen to sixteen years of age when the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit to sexual abuse, pursuant to Section 30-9-11(D)(1). To convict Defendant of the alternative, the State had to prove that when Victim was fourteen years old, Defendant, as her stepfather, exercised undue influence over Victim to coerce her to submit to sexual intercourse with him. See UJI 14-945 NMRA. The State had to prove that the events constituting both CSP 11 violations occurred in Sandoval County, New Mexico sometime between October 1, 1999 and November 30, 1999. {37} At trial, the State presented testimony from Victim and a forensic DNA analyst demonstrating that the elements of either of these alternative crimes had been satisfied. Victim testified that Defendant, her stepfather, impregnated her when she was fourteen years old and in eighth grade, while she and her family were living in Rio Rancho with Defendant. Victim also testified that she felt compelled to have sex with Defendant because he was an authoritative figure and that the sex was not consensual. Victim stated that Defendant told her that if she reported the sexual intercourse he had with her to anyone, he would kill Victim, her mother, her brothers, and himself. Victim indicated that Defendant had been making this threat to her since she was a little girl. Victim explained that she believed Defendant’s threats because Defendant “always used to hurt us.” Victim further stated that she carried the child that resulted from the CSP to full term and gave birth to her in July 2000. {38} In addition, a forensic DNA analyst testified that she obtained DNA samples from Defendant, Victim, and Victim’s child. The analyst testified that upon her analysis of the samples, she was able to conclude that there was at least a 99.9 percent chance that Defendant fathered Victim’s daughter. {39} This evidence shows that Defendant threatened to kill Victim and her family in order to facilitate his plan to have sexual intercourse with Victim. The DNA tests demonstrate that the resulting child is Defendant’s offspring to a near certain probability. Moreover, the testimony also indicates that, as Victim’s stepfather, Defendant was in a position of power and authority over Victim and he used this authority to coerce Victim to have sexual intercourse with him when she was only fourteen years old. Viewing the evidence in the light most favorable to the verdict, we thus conclude that this evidence is sufficient to prove either CSP in the second degree (1) by the use of force or coercion resulting in personal injury under Section 30-9-11(D)(3), or (2) by coercion of a child thirteen to sixteen years of age, pursuant to Section 30-9-11(D)(1). {40} Defendant opines that the evidence was presented after a long delay and that some of the State’s testimony was not credible because he presented conflicting evidence. We emphasize that the finder of fact, not an appellate court, must reconcile any conflicts in the evidence and determine where truth and credibility lies. The fact finder can choose to believe the State’s testimony and disbelieve Defendant’s version of events. State v. Cabezuela, 2011- NMSC-041, ¶ 45, 150 N.M. 654, 265 P.3d 705. As there is sufficient evidence to prove each of the alternative charging methods for second degree CSP, we affirm Defendant’s conviction. IV. CONCLUSION {41} For the reasons stated above, we affirm Defendant’s conviction on all grounds. 12 {42} IT IS SO ORDERED. ____________________________________ J. MILES HANISEE, Judge WE CONCUR: ____________________________________ RODERICK T. KENNEDY, Chief Judge ____________________________________ LINDA M. VANZI, Judge 13 

501 F.2d 1 UNITED STATES of America, Appellee,v.Birdie Louise Joshua HARRIS, Appellant.UNITED STATES of America, Appellee,v.Billy Charles HARRIS, Appellant. Nos. 73-1923, 73-2163. United States Court of Appeals, Ninth Circuit. July 24, 1974, Rehearing Denied Sept. 25, 1974. Joseph T. Vodnoy, Los Angeles, Cal., for Birdie Harris. Morton Boren, Los Angeles, Cal., for Billy Harris. John K. Cameron, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, District Judge.* OPINION ELY, Circuit Judge: 1 The appealing defendants were tried together, each being charged with four counts of violating 21 U.S.C. 841(a)(1). Counts One and Two charged that, on January 22, 1973, both Birdie Harris and Billy Harris1 knowingly and intentionally possessed 19.05 grams of heroin with intent to distribute it, and that they knowingly and intentionally distributed that substance. Counts Three and Four similarly charged that, on February 8, 1973, both defendants possessed with the intent to distribute, and that they distributed, 352.1 grams of heroin. After pleading not guilty, both Birdie Harris and Billy Harris were convicted by a jury on all four counts. A brief summary of the facts, in the light most favorable to the Government, follows. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). 2 The prosecution's case was primarily based upon the testimony of an informant, John Durden. The first transaction was arranged by Durden in a telephone conversation with Billy Harris. Durden expressed a desire to purchase an ounce of heroin and was told to come to a house in Inglewood, California. Durden and John Jackson, an undercover agent of the Bureau of Narcotics and Dangerous Drugs (hereinafter 'BNDD'), drove to the Inglewood address. Although both Jackson and Durden entered the house, Jackson remained in the kitchen while Billy Harris and Durden proceeded to a rear bedroom. Birdie Harris, who was already present in the bedroom when Billy Harris and Durden arrived there, offered Durden one contraceptive full of heroin. Durden explained that his friend, Jackson, had the money, and he walked back to the kitchen. After obtaining the purchase money from Jackson, Durden returned to the bedroom and completed the purchase. 3 The second sale occurred on February 8, 1973, again being prearranged in a telephone conversation between Billy Harris and Durden. Since Durden had previously expressed an interest in purchasing a substantial amount of heroin, Billy Harris informed him on February 9th that a substantial sale could be effected on that day. Agent Mueller of the BNDD drove Durden to the Inglewood residence, but on this occasion Durden entered the house alone. Although there were six people in the house, the sale was conducted in the same manner as the first sale. Billy Harris first motioned Durden to accompany him to the rear bedroom. Again, once in the bedroom, Birdie Harris handed Durden the substance, although on this occasion the transaction involved the purchase of twenty contraceptives of heroin. Durden explained to Birdie Harris and Billy Harris that it would be necessary that he telephone a friend for the requisite purchase money, but instead, by means of a prearranged signal, he informed agents of the BNDD over the telephone that the heroin had been transferred. 4 Federal agents then approached the house and entered without first obtaining an arrest or search warrant. As the agents approached, Durden placed the contraband in a kitchen cabinet. All of the occupants of the house were arrested, including Durden. While being arrested, Durden informed one agent that the heroin was concealed in the kitchen.2 5 Later that evening, the agents procured a search warrant based on the affidavit of agent Jackson. The affidavit contained only such facts as were known to Jackson prior to the agents' entry into the house.3 During the subsequent search of the house, the agents discovered and seized from a kitchen cabinet approximately 352 grams of heroin. 6 At trial, John Durden was the principal government witness. His testimony was crucial to the prosecution's case since, although Durden was searched for contraband by federal agents prior to each transaction, he was the only government witness to both of the sales. Since Billy Harris testified that the money given to him by Durden was in payment for gambling debts and that the alleged heroin sales did not occur, Durden's credibility was a decisive issue.4 7 The first contention urged upon us here is that the trial court abused its discretion when it refused to grant Birdie Harris a continuance in order that her newly retained private counsel could prepare for trial. Originally, counsel for Birdie Harris was appointed from the Federal Public Defender's office, on February 9, 1973, at the time the complaint was filed. A trial date of April 17th was set, but the trial was postponed for one day when Billy Harris was not present on the 17th. Not until the morning of April 18th did Birdie Harris inform the court that she and her appointed counsel were incompatible.5 She informed the court that on the previous evening she had retained private counsel, a Mr. Gordon, and that she desired a short continuance. Since Birdie Harris had delayed, without a rational explanation, until the morning of trial to inform the court of her desire to retain private counsel, the court refused to grant her motion for a continuance. After the jury had been selected and impaneled, the trial was adjourned until the following morning. The court apprised Birdie Harris that Mr. Gordon could be substituted as her attorney if he were present the next morning. 8 On Thursday, April 19th, Birdie Harris repeated her objections to proceeding to trial with her appointed counsel after explaining that Mr. Gordon was no longer available. The court granted a half-hour recess, suggesting that another attorney could be provided from the Public Defender's office. After the recess, one Vodnoy appeared and stated that he had been retained as private counsel by Birdie Harris. The court permitted Vodnoy to be substituted as counsel for Birdie Harris, but clearly explained that it was allowing the substitution on the condition that the trial would not be further delayed. Because Mr. Vodnoy had a matter pending in the state court on that day, the trial court continued the trial until the next morning. When the trial recommenced on Friday, defense counsel moved for a further continuance until Monday so that he could have more time to prepare for trial. The motion was denied. Birdie Harris contends that she was denied effective assistance of counsel by the trial court's action. 9 The grant or denial of a motion for continuance rests within the sound discretion of the trial judge, and his decision will not be reversed absent a clear abuse of that discretion. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Daut v. United States, 405 F.2d 312 (9th Cir. 1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971); Torres v. United States, 270 F.2d 252 (9th Cir. 1959), cert. denied, 362 U.S. 921, 80 S.Ct. 675, 4 L.Ed.2d 741 (1960). This court has previously held that a trial court properly acts within its discretion when it refuses to allow substitution of counsel on the eve of trial. United States v. Price, 474 F.2d 1223 (9th Cir. 1973); Good v. United States, 378 F.2d 934 (9th Cir. 1967); cf. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970). In Bailey v. United States, 282 F.2d 421 (9th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961), we rejected a similar contention to that here urged. There, too, the trial court permitted substitution of counsel on the condition that no delay would result thereby. Although Birdie Harris was represented by an attorney from the Public Defender's office for approximately two months, she did not inform the court of any dissatisfaction until the day of trial. The trial court permitted substitution of counsel on Thursday but clearly explained that the trial would resume on Friday. Under these circimstances, we are not persuaded that the trial court abused its discretion. See United States v. Simmons, 457 F.2d 763 (9th Cir. 1972). 10 Next, appellants, although conceding that the affidavit in support of the search warrant was facially sufficient to establish probable cause, argue that the trial court improperly refused to conduct an evidentiary hearing to test the accuracy of the affidavit. At trial, during their motion to suppress, the appellants contended that the affidavit in support of the search warrant was misleading in that it failed to disclose material facts. They claimed that the agents initially entered the house to arrest the occupants without first announcing their authority and purpose, as required by 18 U.S.C. 3109.6 Appellants' contention is based on the premise that if the trial court had determined after a hearing that the appellants were illegally arrested, then the evidence subsequently seized pursuant to the search warrant would have been inadmissible. The trial court refused to conduct a hearing, ruling that it was impermissible for a trial court to inquire into the accuracy of a search warrant affidavit. 11 The Government stipulated that the agents had not procured arrest or search warrants prior to their initial entry into the Inglewood residence. It is clear that the criteria of section 3109 apply to forceful entries wherein the agents have not procured warrants in advance. Sabbath v. United States,391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Miller v. United States,357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974). 12 We think that the trial court erroneously ruled that it was never permissible to inquire as to the accuracy of a search warrant affidavit. In United States v. Bolton, 458 F.2d 377, 378 (9th Cir. 1972), we explained: 13 'As a general proposition, the legality of a search warrant depends upon the sufficiency of the underlying affidavit on its face and the question is whether the magistrate could determine the existence of probable cause upon the matter asserted in such affidavit.'In Bolton, 458 F.2d at 378 n. 6, we indicated, however, that when a defendant can make a substantial showing of falsehood or other imposition upon the magistrate, then the trial court is required to conduct a hearing concerning the truth of the facts asserted in the affidavit. Furthermore, we recently held in United States v. Damitz, 495 F.2d 50 (9th Cir. 1974) that under the facts there presented the trial court properly permitted a de novo determination of the veracity of the affidavit. See United States v. Carmichael, 489 F.2d 979 (7th Cir. 1973) (en banc);7 see also Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). 14 In the case at hand, however, we conclude that the appellants did not make the required initial showing. They neither asserted nor demonstrated that the alleged illegal conduct in any manner contributed to the subsequent discovery or seizure of evidence. When there has been illegal police conduct prior to the seizure of evidence, the admissibility of that evidence depends upon whether "the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficienty distinguishable to be purged of the primary taint." Wong Sun v. United States,371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); see Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); United States v. Cales, 493 F.2d 1215 (9th Cir. 1974); United States v. Bacall,443 F.2d 1050 (9th Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 965,30 L.Ed.2d 557 (1971). Even assuming arguendo that the officers violated section 3109 in arresting the appellants initially, under the doctrine of Wong Sun v. United States, supra, the evidence seized pursuant to the search warrant was admissible. In these circumstances, the trial court was justified in refusing to conduct a hearing concerning the accuracy of the affidavit. 15 The appellants' third contention is that the trial court erred when it refused to admit into evidence a written statement of one Patricia Hamlin. Her statement reported an alleged conversation between Hamlin and Durden. In that conversation Durden purportedly stated that he was attempting falsely to implicate Billy Harris because he owed Harris a substantial sum of money for gambling debts. 16 Appellants first attempted to obtain Hamlin's testimony in court as to the contents of the conversation. As she was interrogated concerning her relationship with Durden, she began to testify as to her purported transactions with him involving heroin. At that point, the trial judge interrupted her testimony and advised her of her privilege under the Fifth Amendment not to testify. After a short recess in which Hamlin consulted with an attorney, she exercised that privilege. Counsel for appellants then attempted to introduce the written statement prepared by Patricia Hamlin, but the trial court excluded it on the ground that defense counsel had not warned Hamlin of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) before obtaining the statement. Since the Miranda warning is only required when there is 'custodial interrogation,' however, Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. 1602; United States v. Bekowies, 432 F.2d 8, 12 (9th Cir. 1970), the trial court excluded the statement on an incorrect basis. Nevertheless, the statement properly could have been excluded as inadmissible hearsay evidence. 17 Appellants argue, however, that the written statement, which implicated Hamlin in illegal narcotic activity, qualified as a declaration against her penal interest.8 Under the current law of this Circuit, a statement is not admissible as an exception to the hearsay rule solely because it is against the penal interest of the declarant. United States v. Walling, 486 F.2d 229 (9th Cir. 1973); Scolari v. United States, 406 F.2d 563 (9th Cir.); cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969); see Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). Appellants, in apparent reliance on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), contend that the exception must be invoked in this case. We disagree. In Chambers, 'the hearsay statements involved . . . were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.' 410 U.S. at 300, 93 S.Ct. at 1048.9 Here, there were not sufficient guarantees of trustworthiness to render the statement admissible.10 See United States v. Walling, 486 F.2d 229, 238-239 (9th Cir. 1973); cf. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). 18 Appellants' forth contention is that the trial court denied them their right effectively to cross-examine the Government informant, Durden. They specifically point to the court's permitting Durden to refuse to answer questions regarding his resident address. Although Durden disclosed his name, occupation, and business address, the trial court sustained the Government's objection to a question regarding his residence.11 The Government, in challenging defense counsel's question, was silent as to the ground for its objection. Nor did the Government, at any time during trial, indicate that the informer believed he was in danger. Additionally, the trial court sustained objections to defense counsel's questions which attempted to demonstrate Durden's bias, prejudice, or motive.12 The record is barren as to the reason the court deemed these inquiries improper. 19 Manifestly, the right of an accused to cross-examine the witnesses against him is embodied in the confrontation clause of the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Indeed, 'cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.' Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. at 1110. In the present case, the cross-examination of the Government informant was of utmost importance since his reliability and credibility may well have determined the guilt or innocence of appellants. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Although we recognize that the trial judge has wide latitude in the control of cross-examination, 'this principle cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony.' Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); see United States v. Kartman, 417 F.2d 893 (9th Cir. 1969). 20 The Supreme Court, in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) and again in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748 (1968), has definitely established that the inquiry concerning the residence of a witness is not only proper but also essential to effective cross-examination. As the Court stated in Alford: 21 'The question 'Where do you live?' was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed.' 282 U.S. at 693, 51 S.Ct. at 220. 22 The Court reiterated the principle expressed in Alford almost 40 years later in Smith v. Illinois: 23 'When the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.' 390 U.S. at 131, 88 S.Ct. at 750. 24 We recognize that in some instances the trial court could legitimately permit the witness not to disclose his residence. If the answer may subject the witness to harassment, humiliation, or danger, then nondisclosure of the witness' home address may be justifiable. Alford, 282 U.S. at 694, 51 S.Ct. 218; Smith v. Illinois, 390 U.S. at 133-134 (Mr. Justice White, concurring); United States v. Marti, 421 F.2d 1263, 1266 (2d Cir. 1970). But here, neither the Government nor the witness indicated any reason for a desire to prevent the open-court disclosure of Durden's address.13 25 The trial court compounded its error by then restricting counsel's questions directed at Durden's motive for testifying and his possible bias or prejudice. See note 12, supra. The law has long recognized 'the force of a hostile emotion, as influencing the probability of truth telling . . .; and a partiality of mind is therefore always relevant as discrediting the witness and affecting the weight of his testimony.' 3A Wigmore, Evidence 940 at 775 (Chadbourn rev. 1970). It is essential, when the witness' credibility is critical to the Government's case, that defense counsel 'be given a maximum opportunity to test that credibility by exploring the witness' motivation for testifying.' United States v. Rodriguez, 439 F.2d 782, 783 (9th Cir. 1971); see United States v. Kartman, 417 F.2d at 897. In our view defense counsel in this case were unduly restricted in their attempts to expose any possible prejudice or bias on the part of Durden. 26 The Government argues that any restrictions placed upon the appellants' right to cross-examine Durden was harmless error. Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) declares, however, that the denial of the right to effective cross-examination is constitutional error and that the appellants need not demonstrate that they were prejudiced thereby. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. Moreover, we do not rest our ultimate conclusion on this ground alone. We must look also at the appellants' contention that they were denied a fair trial because of the trial court's active participation therein. A thorough review of the record convinces us that the trial judge overstepped the bounds of judicial propriety by excessively interjecting himself into the proceedings below. 27 Aside from the limitations that the court placed on defense counsel during the cross-examination, the trial judge often came to the aid of the prosecutor by interrupting defense counsel and by participating unduly in the trial. Without detailing each occasion in which the trial court interjected itself into the proceedings, we merely point to the instances when the court over the cross-examination of Billy Harris14 and of his wife,15 and of an instance when the court itself attempted to establish the expertise of a government witness.16 Substantially all of the trial court's interruptions, intentionally or otherwise, aided the prosecution.17 It is, of course, well settled that: 28 'A feferal trial judge . . . is more than a moderator or umpire. He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unencumbered by irrelevancies.' Smith v. United States, 305 F.2d 197, 205 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962). 29 See ABA Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge 1.1(a) (1972).18 Indeed, the trial court may properly participate in the examination of witnesses for the purpose of 'clarifying the evidence, controlling the orderly presentation of the evidence, confining counsel to evidentiary rulings, and preventing undue repetition of testimony.' United States v. Malcolm, 475 F.2d 420, 427 (9th Cir. 1973). But a trial court must be ever mindful of the sensitive role it plays in a jury trial and avoid even the appearance of advocacy or partiality. United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973); see ABA Code of Judicial Conduct Canon 3 (Adopted by the Judicial Conference of the United States, Apr. 1973); see also ABA Canons of Judicial Ethics No. 15.19 When the participation of the trial judge is designed to elicit answers favorable to the Government, 'it is far better for the trial judge to err on the side of abstention from intervention.' Blumberg v. United States, 222 F.2d 496, 501 (5th Cir. 1955); accord, United States v. Green, 429 F.2d 754 (D.C.Cir. 1970). 30 In conclusion therefore, we hold that the cumulative effect of the trial court's excessive participation in examining witnesses on behalf of the Government, coupled with unnecessarily severe restraints imposed upon defense counsel in their attempted cross-examination of Durden, could have influenced the jury adversely to the appellants. Even more critical, the court's conduct could have also created the erroneous impression that the court itself was not performing its impartial role. Cf. United States v. Foster, 500 F.2d 1241 (9th Cir. 1974). Reversed and remanded.20 31 KILKENNY, Circuit Judge (Concuring and dissenting): 32 The majority found no error as to appellants' first three contentions and I concur in this result. However, as to the last two contentions, I cannot agree with the majority's conclusions and accordingly dissent. DENIAL OF RIGHT TO CROSS-EXAMINATION 33 No principle of law is more firmly settled in this circuit than that which recognizes that the scope and extent of cross-examination generally lies within the sound discretion of the trial court. United States v. Coulter, 474 F.2d 1004 (CA9 1973), cert. denied 414 U.S. 833, 94 S.Ct. 172, 38 L.Ed.2d 68 (1973); United States v. Haili, 443 F.2d 1295 (CA9 1971); Viramontes-Medina v. United States, 411 F.2d 981 (CA9 1969); Harris v. United States, 371 F.2d 365 (CA9 1967). Only where the record firmly shows that the trial court committed an abuse of discretion will a reversal be required. Harris, supra. 34 There is no question that inquiry into motive and bias are permissible avenues of cross-examination. In the instant case, defense counsel was permitted to cross-examine the informant on the financial remuneration he received for testifying as an informant for the Government,1 the number of times for which he had testified in this capacity before,2 and whether he had any cases pending at the time of his appearance for the government in the instant case.3 There is little question that cross-examination on these subjects was directed to the elicitation of the informant's motive and possible bias for testifying. Absent a complete denial of this form of inquiry, reversal is not appropriate. Harris, supra, at 367. 35 On cross-examination of the informant, defense counsel attempted to elicit the informant's place of residence. The trial court sustained an objection to this inquiry, and the majority holds this to be error. 36 In Alford v. United States, 282 U.S. 687 (1931), as reaffirmed in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748 (1968), the Supreme Court held that an inquiry into the residence of a witness is a proper subject of cross-examination, indeed, a fundamental component of cross-examination. As with all general rules of law, however, there are exceptions. One exception recognizes that where such disclosure would 'tend merely to harass, annoy, or humiliate a witness', then such inquiry goes beyond the proper scope of cross-examination. Smith, supra, at 133-134, 88 S.Ct. at 751 (White, J. concurring). Here, the questions might well have been directed to the harassment or annoyance of the informer. The exhaustiveness of the cross-examination on all other subjects branded the witness as an informer of considerable experience. The disclosure of his address might lead only to harassment and annoyance by the criminal element. 37 It is critical to note that neither Smith nor Alford per se requires a reversal merely because the district court sustained an objection to a question directed at the elicitation of an informant's address. United States v. Teller, 412 F.2d 374 (CA7 1969), cert. denied 402 U.S. 949, 91 S.Ct. 1603, 29 L.Ed.2d 118 (1971). There, the court held: 38 'Smith requires reversal only where the lack of a witness's name and address denies a defendant an opportunity to effectively cross-examine a witness. When this happens, a defendant is denied his Sixth Amendment right to confrontation. However, the initial question is whether the defendant was denied effective cross-examination.' 412 F.2d at 380. 39 Teller represents the sound approach. The mere denial of a disclosure of a witness's address will not constitute a violation of the defendant's Sixth Amendment right to confrontation absent a showing that without such disclosure, the defendant was denied effective cross-examination. The record before us conveys a picture of a thorough cross-examination of the informant-- the cross-examination covering more than seventy-five pages of the transcript. It clearly shows that cross-examination was in no way inhibited by the court's disallowance of defense counsel's attempt to reveal the informant's address. Since there is absolutely nothing in the extended cross-examination which would in any way indicate that the address of the witness might have produced evidence of value to the appellant, the majority's desperate attempt to reconcile Teller completely misses the mark. Here, I repeat, the record is devoid of any showing on the part of appellant, or otherwise, that the absence of the witness's address effectively interfered with the cross-examination. TRIAL COURT'S EXAMINATION OF WITNESSES 40 The majority assigns as error the trial court's active participation in questioning several witnesses. In each instance, it concludes that this participation was an aid, whether intentional or otherwise, to the prosecution. I cannot agree. 41 It is axiomatic that 'in a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.' Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933). Needless to say, the trial court may participate in the examination of witness with a goal toward clarification of the evidence. United States v. Malcolm, 475 F.2d 420, 427 (CA9 1973). 42 The majority zeros in on what it considers to be numerous examples of erroneous trial court participation. One such instance involves the testimony of appellant, Billy Harris. The prosecution was cross-examining Harris in an attempt to clarify portions of a conversation (contained in a tape recording) to which Harris was a party. During cross-examination, the trial court intervened. This intervention was surely proper, for the trial court only commenced the examination after the appellant admitted that he was confused by counsel's questions. The trial court's questioning evinces nothing more than an attempt to elicit facts and clarify obscure testimony. Additionally, at the close of the trial court's examination, it specifically asked counsel for both sides whether they desired to question the witness further.4 The fact that defense counsel, at the close of the evidence, moved for a mistrial does not nullify his rejection of the court's offer to permit further examination. Beyond that, counsel cannot wait until the end of the trial and then challenge the conduct of the judge in an area where the judge has an admitted right of intervention. In my opinion, appellants have failed to show how this examination prejudiced them. The majority's other examples of purported impermissible participation by the trial court are no more convincing. 43 Further, at no time after the trial court's examination of any of the witnesses, did counsel for the defense object to the manner in which the trial court engaged in its examination. As this court stressed in McConney v. United States, 421 F.2d 248 (CA9 1970), cert. denied 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49, where the record shows that defense counsel registered no objection to the court's questions, this is an important indicia in finding no trial court error, especially where the record fails to establish any prejudice to the appellants arising from such examination. 44 This court, in Marshall v. United States, 409 F.2d 925 (CA9 1969), correctly observed that where an objection is not effered, the alleged error cannot be questioned on appeal unless the very exceptional situation arises whereby review is necessitated to prevent a miscarriage of justice. See United States v. Brooks, 473 F.2d 817 (CA9 1973), and Vitello v. United States, 425 F.2d 416 (CA9 1970), cert. denied 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50. While the trial judge may have participated more vigorously than most, the record, as a whole, does not portray an effort, whether by design or otherwise, to interfere with or impede counsel in the presentation of their cases. Active participation by the judge, standing alone, is not sufficient to warrant a reversal absent a showing that appellants were deprived of a fair trial by the participation. Smith v. United States, 305 F.2d 197 (CA9 1962), cert. denied 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124. It is there said at page 205: 45 '. . . During the stress of a criminal trial, few, if any judges can altogether avoid words or action, inadvertent or otherwise, which seem inappropriate when later examined in the calm cloisters of the appellate court.' 46 Be that as it may, in my view, the great majority of the court's rulings were proper and his interventions in the examination were prompted by the inability, or deliberate failure, of counsel to ask proper questions. (See questions and answers under majority footnote 20). 47 The majority's position is not strengthened by drawing attention to colloquies between the trial judge and counsel, and a discussion between the court and counsel on a motion for a continuance, all of which occurred outside the presence of the jury. The majority's manifest anxiety, in attempting to transform these non-prejudicial occurrences into purported trial court error, is clearly demonstrated by the massive footnotes, over twenty-five percent of which are non-prejudicial discourse. I had always thought that the judge and counsel, when outside the presence of the jury, could, in effect, choose their own weapons. In any event, the majority has failed to enlighten me on how, in these circumstances, the jury's verdict could be affected by the judge's conduct. 48 One prominent author has compared the trial judge to a 'traffic cop'-- one who is often required to make an 'immediate, forceful, and intimidating response' to varied situations and contingencies.5 This is perhaps a strained analogy, yet this court, in Robinson v. United States, 401 F.2d 248, 252 (CA9 1968), has recognized the often precarious position of the trial judge: 49 'The trial judge has a wide discretion in his management of the trial. Trial judges are human beings who are unique in their temperaments and intellectual qualities, and it is, of course impossible to man the benches with judges each of whom would fit into a common mold.' CONCLUSION 50 Finding no error which in any way affected the substantial rights of the appellants, Rule 52(a), F.R.Crim.P., I would affirm the judgments of the lower court. * Honorable William B. Enright, United States District Judge, San Diego, California, sitting by designation 1 The two appellants are not related 2 There was conflicting evidence over the manner in which Durden informed the federal agent that the heroin was in the kitchen. Durden testified that he vocally told the agent that the heroin was concealed in the kitchen. The agent testified, however, that Durden only indicated the kitchen area by a nod of his head and that Durden intentionally remained silent so as not to disclose to the other suspects his capacity as a government informant 3 The affidavit of agent Jackson contained the following: 'I have been informed by other BNDD agents as follows: 'They were informed of the following facts by a confidential reliable informant, who has provided information in the past which has led to at least ten separate prosecutions and convictions: 'On February 8, 1973, the informant had a conversation with Billy Charles Harris concerning the purchase by the informant from Harris of a quantity of heroin. About 8:00 P.M. this day Harris told the informant that a quantity of heroin was then inside a house whose address was 9712 11th Avenue, Inglewood, California. 'A BNDD agent then drove the informant to this house and waited by a telephone booth while the informant went inside. Shortly afterwards the informant telephoned the waiting agent and told him he had seen a quantity of heroin inside the house. I know that in at least three of the ten prior convictions which the informant has helped bring about he has identified material as heroin which later laboratory analysis has indeed shown to be heroin.' After a description of the premises, the affidavit concludes: 'As (a) Special Agent in the Bureau of Narcotics and Dangerous Drugs it is my experience that contraband substance (heroin) is usually moved during the late hours of the evening and early morning hours. Because of this I feel that the contraband should be secured by whatever means possible. 'I am also informed by a reliable informant that the contraband substance is in fact located in the residence . . ..' 4 Although a tape-recording of a telephone conversation between Durden and Billy Harris was introduced, that conversation did not include the term 'heroin.' Instead the term 'wigs' was utilized. Both Billy Harris and his wife testified that the conversation related only to the purchase of wigs from the store owned by Harris and his wife 5 Apparently Birdie Harris was of the opinion that her attorney desired that she plead guilty and that, therefore, he would not represent her effectively at trial 6 18 U.S.C. 3109 provides: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.' 7 The Seventh Circuit, en banc, has recently considered the issue of a defendant's right to a hearing for the purpose of testing the credibility of Government agents whose affidavits are before the magistrate. The court held, in United States v. Carmichael, 489 F.2d 979 (7th Cir. 1973), that a federal trial court is required to conduct an evidentiary hearing under certain circumstances: 'We now hold that a defendant is entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either of the following: (1) any misrepresentation by the government agent of a material fact, or (2) any intentional misrepresentation by the government agent, whether or not material.' 489 F.2d at 988. er or not material.' 489 F.2d at 988. The Seventh Circuit substantially adopted, with one modification, the proposal suggested in Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971). 8 Apparently the appellants intended to impeach Durden with the prior inconsistent statements allegedly made to Miss Hamlin. See McCormick, Law of Evidence, 34 (1954) 9 The Supreme Court specified four factors which provided assurance of reliability for the extrajudicial statements: (a) the declarant's out-of-court confessions were made spontaneously, shortly after the murder occurred; (b) the confessions were corroborated by other evidence; (c) the confessions were 'in a very real sense self-incriminatory and unquestionably against interest;' and (d) the declarant was present at the trial and available for cross-examination concerning the truthfulness of the extrajudicial statements. Chambers v. Mississippi, 410 U.S. at 300-301, 93 S.Ct. at 1048 10 In fact, it is not clear that the statement qualifies as a declaration against interest under the proposed Federal Rules of Evidence since the portion of Hamlin's statement which reports the conversation with Durden in no way subjects Patricia Hamlin to criminal liability. See Rule 804(b)(4), Proposed Rules of Evidence for United States Courts and Magistrates 11 As defense counsel for Birdie Harris began his cross-examination of John Durden, the following occurred: 'Q. What is your home address? MR. CAMERON: Objection, your Honor. That is irrelevant. MR. VODNOY: Smith vs. Illinois, your Honor. THE COURT: The objection is sustained. MR. VODNOY: Smith vs. Illinois. I move-- . . . .: S MR. VODNOY: Your Honor, I would move to strike this witness's testimony on the grounds I have been denied the right of confrontation of where he lived. THE COURT: The objection is overruled, the motion is denied.' (R.T. 171, 172.) 12 The court prevented defense counsel from asking the following questions: 'Q. Do you receive any consideration from the Government? A. Other than the expense, nothing. Q. In other words, the Government has not dismissed criminal charges against you in exchange for your assisting the Government, is that correct? MR. CAMERON: Objection, your Honor. THE COURT: The objection is sustained. . . . . Th Q. How come you are helping the Government? MR. CAMERON: Objection. THE COURT: The objection is sustained. MR. VODNOY: Your Honor, this goes to bias. THE COURT: The objection is sustained. MR. VODNOY: I move to strike the witness's testimony on the grounds of being denied the right of confrontation. THE COURT: The motion is denied. . . . . Th Q. Have you had any cases pending at any time that you have testified for the Government? MR. CAMERON: Objection. THE COURT: Sustained. Q. Are you appearing in this case as a good public spirited citizen ready to testify? MR. CAMERON: Objection. THE COURT: The objection is sustained. Q. Do you have anything to gain by testifying against these defendants? MR. CAMERON: Objection. THE COURT: The objection is sustained. MR. VODNOY: Your Honor, that goes to the very heart-- THE COURT: It does not, counsel. Now put a question which is proper. MR. VODNOY: I would move to strike this witness's testimony on the grounds (that) I am being denied the right of confrontation. THE COURT: That motion will be denied.' (R.T. 163, 174, 179-80.) 13 In United States v. Teller, 412 F.2d 374 (7th Cir. 1969), cited in the dissent, the trial court sustained the Government's objection to a question seeking the informant's address at the time of trial. The informant was permitted to testify, however, that he was presently residing in a motel at government expense. He also disclosed his previous address, which was his residence at the time the offense was committed. Additionally, the informant testified as to his prior convictions and his use of narcotics. He also explained that he expected to help himself by testifying in the Government's behalf. Since the trial court permitted wide cross-examination concerning the informant's past record, and since both the informant's previous residence and his present treatment by the Government were disclosed, the Seventh Circuit held that the defendant was not denied effective cross-examination In Teller, the disclosure of the informant's previous residence and the Government's treatment of him opened the 'countless avenues of in-court examination and out-of-court investigation.' Smith v. Illinois, 390 U.S. at 131, 88 S.Ct. at 750. Conversely, in the present appeal, these same opportunities of investigation and examination were not available to defendants, and no explanation was given for this foreclosure. In the context of the trial court's other restrictions on cross-examination and of its excessive participation in the trial, we think that the nondisclosure of Durden's address was of significant import. 14 During the Government's cross-examination of Billy Harris, the Assistant United States Attorney began to inquire about the terms used in the tape-recorded telephone conversation. The court apparently disapproved of the Government's questions because the court interrupted to ask its own questions concerning the tape-recording. The court proceeded to complete the cross-examination of Harris, this portion of the testimony covering four pages of the transcript. (R.T. 323, 323a, 324, 325.) 15 Billy Harris' wife testified and explained the operation of the wig business that she and her husband owned. After the Government completed its cross-examination, the court again began its own extensive questioning concerning the terms used in the recorded conversation. (R.T. 333-38.) 16 The Government introduced the testimony of an agent of the BNDD relating to certain materials found in the Inglewood residence. The agent testified that the materials were lactose and milk sugar and that these products were commonly used in the 'cutting' of certain narcotics. When one of the defense attorneys objected to the agent's testifying as to a matter requiring expertise, the trial court immediately interjected itself into the questioning to establish the agent's expertise for this purpose. (R.T. 251-52.) 17 Although the defendants did not object to each question or interruption of the trial court, at the close of the defendants' case, counsel for Billy Harris moved for a mistrial: 'Your Honor, I totally respectfully move the court for a mistrial on the grounds the court has invaded the province of the prosecution by taking over the Government's case, thereby hopelessly prejudicing the jury against the defendants. 'I understand that your Honor is allowed to interject himself in the case; however, I (feel) you have gone beyond the record.' (R.T. 344.) 18 Section 1.1(a) of the ABA Standards, The Function of the Trial Judge (1972) provides: 'The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.' 19 Canon 15 of the Canons of Judicial Ethics provides the following: 'A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but be should bear in mind that his undue interference, impatience, or participation in the examining of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. 'Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone. 'He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.' 20 Contrary to the conclusion expressed in the dissenting opinion, a thorough review of the entire record leaves us with no doubt that the appellants were denied a fair trial. The whole impact of the court's behavior cannot, of course, truly and accurately be reflected without reproducing the entire transcript so that the court's actions can be viewed in their proper context. Throughout the trial the court interrupted defense counsel, prevented defense counsel from pursuing evidentiary arguments, and abruptly ordered defense counsel to continue the interrogation of witnesses without explaining its various evidentiary rulings. The court's unusual manner created an atmosphere in which an objectively fair trial could not be conducted. A few examples of the court's comments and actions follow During the cross-examination of the informant, Durden, the court often interrupted defense counsel's questioning. '(MR. WYATT:) Have you ever used the name John Willard Durden? A. No I haven't. Q. Isn't it a fact that on September 18, 1969-- THE COURT: Come on, counsel, let's get to something relevant to this case. MR. WYATT: Your Honor, I think this is relevant. THE COURT: It is not relevant, Mr. Wyatt(.) What happened in 1969 is not relevant to what was happening in 1973. . . . . It Q. Do you recall saying to Mr. Harris, 'Okay. All right, now, how often--' THE COURT: Counsel, you are reading the transcript. You ought to play the tape now. MR. WYATT: No, your Honor. THE COURT: Then let's get to what is really evidence. MR. WYATT: Thank you. . . . . Th (MR. VODNOY:) Why was it that you were going to testify for the Government? THE COURT: Counsel, let's get to something relevant. MR. VODNOY: It goes to bias and prejudice of the witness. THE COURT: It does not. Get to something relevant. . . . . It Q. Mr. Durden, when was the next time you either testified or stood ready to testify against somebody on behalf of the Government? A. Maybe '70 or '71. I don't remember. Q. 1970 or '71? A. Yes. Q. Did you testify or were you ready to testify? A. No, I did not. Q. You did not testify? A. No. Q. What was that case in reference to? What kind of case was it? THE COURT: Get to something relevant. That has nothing to do with this lawsuit. MR. VODNOY: Your Honor, I will. THE COURT: Counsel, put a question. MR. VODNOY: May I state for the record-- THE COURT: Put a question. (MR. VODNOY:) You have testified on direct that you have testified in previous cases; is that correct? THE COURT: One case, counsel. MR. VODNOY: That is on cross(,) not on direct. THE COURT: All right. . . . . Al A. I handed her the money. She handed me the contraceptive with the package. Then she counted the money. Q. That is not what you testified. THE COURT: Just a moment, Mr. Vodnoy. MR. VODNOY: I would-- THE COURT: No, statements by counsel as to what was testified to or what was not isn't admissible. That is for the jury to determine. (MR. VODNOY:) Isn't it a fact, Mr. Durden, that on direct you testified as follows-- THE COURT: We are not here to test his memory of what he testified on direct, that is for the jury to determine, counsel. Put a question. . . . .tio Q. Tell the jury about this meeting in the wig shop. What was said by you and what was said by Mr. Harris? A. There was no meeting in the wig shop. Q. The meeting you had on Monday or Tuesday that set up the $40,000 sale? A. I said he told me to come out to the shop. It was not in the shop, it was across the street-- it was south of the next street on the west side of the corner from the shop. Q. Where was that? Was that a coffee shop or something? A. No, it is not. Q. What is it? A. It is a book. Q. It is a what? A. A book. Q. A book? A. A bookie operation. Q. A bookie operation? Whose bookie operation? A. Harris'. THE COURT: Counsel, let's get to something relevant. MR. VODNOY: What could be more relevant? THE COURT: Counsel, do not argue with me. Put a question.' (R.T. 156, 159, 177, 178-79, 189-90, 210-11.) Later in the trial, after the jury was excused from the courtroom, a dispute arose as to whether the defendants had stipulated that the seized material was heroin. Apparently Billy Harris' present counsel had not agreed to the stipulation, nor had either of the defendants. The trial judge rejused to allow defense counsel to discuss the merits of the validity of the stipulation. 'MR. VODNOY: Your Honor, at the bench just previously Mr. Cameron represented that both previous counsel, Mr. Isaacman and Mr. Wyatt, had signed the stipulation and therefore the matter was going to be put over to Monday as far as the chemist. THE COURT: That is right. When counsel do something I can expect to rely upon what counsel say to the court and to other counsel. If I cannot rely on that we might as well close the doors. MR. VODNOY: May I finish, your Honor? THE COURT: No. Mr. Isaacman is here, I see him in the courtroom. Mr. Isaacman, did you sign a stipulation with reference to the chemist's testimony in this case? MR. ISAACMAN: I signed the stipulation, your Honor, with the understanding that my client was going to sign the stipulation also. MR. WYATT: The same was my situation, your Honor. I signed it with the expectation (that) my client would. MR. VODNOY: Can Mr. Isaacman be heard more on this? THE COURT: No, that is all. He made that representation to the United States Attorney and that is sufficient. MR. VODNOY: Well, I understand-- THE COURT: If we cannot rely upon counsel then we better close the doors. MR. VODNOY: I want to say my client nor did Mr. Harris, neither two of the defendants agree to that. MR. WYATT: That is correct, your Honor. THE COURT: They are not going to be prejudiced by the ruling of the court in any event.' (R.T. 266-68.) Throughout the trial, during the interrogation of other witnesses, the court felt free to interrupt defense counsel. When Birdie Harris' counsel was questioning Billy Harris, the following occurred: '(MR. VODNOY:) I gather, Mr. Harris-- THE COURT: No, Mr. Vodnoy. Don't gather anything. Just ask questions.' (R.T. 309). The court also felt that it had a duty to intervene during the cross-examination of the government chemist. The interrogation concerned the chemist's qualifications and the method by which the chemist determined the chemical composition of the entire 352 grams of seized material by analyzing only 1.7 grams. 'Q. What is the statistical method (used) to test the representativeness of heroin samples? A. You take some from each part and then mix them up together and run it on the composite. Q. No. What I mean is if you are (taking) out of 352 grams just 1.7 grams how do I know that the other 350 grams has the same thing as the 1.7 grams? . . . .at Q. Is there some scientific principle upon which you form that conclusion? . . . .e § A. . . . That is a scientific assumption. Q. What scientific treatise? A. In other words-- Q. -- outlines that assumption? A. For analytical chemist to do anything he has to get a sample mixed. And then he gets a representative sample. Q. All right. A. Then make a composite and then run a test. Q. I understand that. I understand that. You can't take-- THE COURT: Mr. Vodnoy, he is using the statistical method of common sense. Now get to something relevant. MR. VODNOY: All right. That is what you say, your Honor. Is that what he is saying? THE COURT: Just a moment, counsel. Now put a question. MR. VODNOY: Your Honor, I would object-- THE COURT: Put a question. . . . . Pu (MR. VODNOY:) What (have) your academic qualifications to do with the comparisons you are making? Why can't I make the same comparison just by learning what color something is supposed to turn or what I am supposed to see on the chromatographer or what I am supposed to see on a crystal? THE COURT: Mr. Vodnoy, when you know that you are an expert. MR. VODNOY: I would like to know what his-- THE COURT: Just a moment, counsel. Put a question. That question does not need an answer. (MR. VODNOY:) Tell me about what relationship your academic credentials or qualifications have with what you do? MR. CAMERON: Objection, your Honor. THE COURT: The objection is sustained.' (R.T. 367, 369, 370-71.) Although we have concluded that the trial court acted within its discretion in denying Birdie Harris' motion for a continuance, we cannot condone the manner in which the motion was handled by the court. While Birdie Harris was still being represented by Mr. Isaacman of the Federal Public Defender's office, the following exchange transpired: 'MR. ISAACMAN: Your Honor, Mrs. Harris is not ready for trial and would seek a short continuance. She tells me she has retained private counsel, a gentleman by the name of Walter Gordon and that he will represent her, she tells me. THE COURT: When did you talk to Mr. Gordon? DEFENDANT BIRDIE HARRIS: Last night. THE COURT: That is too late. Start the trial with Mr. Isaacman who has been appointed for you. MR. ISAACMAN: I should indicate to the court that Mrs. Harris has not given me her version of the case. She has not cooperated with me and does not have confidence in me to represent her. Accordingly I am not prepared to present her defense. THE COURT: Well, she cannot just do that, just sit back and do that. She has been in this court house several times between the time she was arraigned and this matter came to trial. If she did not want to talk to you then she had plenty of time to advise this court. The motion to continue is denied.' (R.T. 12-14.) On Thursday, April 19th, after Mr. Vodnoy was substituted as counsel for Birdie Harris, the following colloquy occurred: '(MR. VODNOY:) I am satisfied that I have been given full discovery from the Government. I am in the process of looking at the material at this time. It is my belief, your Honor, that I would like to schedule a motion to suppress to reverse the warrant. I need time to research the law on that matter. Also, I believe in terms of representing this defendant appropriately if I could have the week end to prepare this case on Monday if it is a one-day jury trial I believe that I can be adequately prepared. I do not think any lawyer could possibly be prepared on a case of this magnitude in one day. THE COURT: Mr. Vodnoy, you probably have tried a hundred cases like this. This is not a complicated factual situation or legal situation, either one.' (R.T. 73-74). The next morning, defense counsel renewed his motion for a continuance and attempted to state his grounds for such motion. '(MR. VODNOY:) In this particular instance, your Honor, after the recess at 1:30 your Honor stated that the matter would go over to this morning. I would like to outline what I have done on the case. THE COURT: You do not have to do that, counsel. MR. VODNOY: I want to explain why I am not prepared for trial. I am only prepared for the motion to suppress. THE COURT: No, Mr. Vodnoy. The trial is going to go today. MR. VODNOY: I would like to make a record, your Honor. THE COURT: No, Mr. Vodnoy. MR. VODNOY: You are not allowing me to make a record? THE COURT: No. The answer is no. This is a very simple case. MR. VODNOY: It is a very simple case? THE COURT: It is a simple case, counsel. MR. VODNOY: Your Honor, the reason you silenced me yesterday when you said this was a very simple case, and I have tried hundreds of cases, was because I believed you at the time. However, after examining the case I believe it is not a very simple case. It is a very complicated case. I will explain to you in one moment exactly why. I have only worked on the motion to suppress and I will tell you what the grounds for the motion to suppress are. You will see the complexity of the motion to suppress and you will see why I have not had time to work on the trial of the case. THE COURT: Let's proceed with the motion to suppress, counsel.' (R.T. 80-81). After the hearing on defendants' motion to suppress was conducted. Mr. Vodnoy renewed his motion: 'MR. VODNOY: Your Honor, before you bring in the jury I would like to state for the record that I am not prepared for trial because I have devoted all my energies from 1:30 last night until 1:30 this morning to prepare for the motion to suppress. THE COURT: If you prepared the motion to suppress, Mr. Vodnoy,-- no, you have to be ready for trial because that is what this is all about. MR. VODNOY: If I may briefly state that a part of the trial is whether you put a defendant on the stand or not. I have had no opportunity other than one interview with the defendant to ascertain who she was. THE COURT: You will have time during the Government's case to do that.' (R.T. 107.) The court often summarily rejected defense counsel's requests before, or without, allowing counsel to present arguments. One such instance occurred when attorney Vodnoy attempted to challenge the veracity of the search warrant affidavit. '(MR. VODNOY:) I will state parenthetically that I have read the warrant. The warrant is good on its face(.) I will submit, and I will stipulate to that. THE COURT: Then that takes care of that. MR. VODNOY: I don't think that takes care of it, your Honor. THE COURT: You won't go behind the warrant. MR. VODNOY: May I make a record on that at least? THE COURT: No.' (R.T. 82.) Even though the court then permitted counsel to cite from other authorities before terminating counsel's argument, it is apparent from the record that the trial judge had pre-determined the merits of the warrant issue. Although none of the instances cited above, considered alone, would be of great signifiance, we are convinced that the cumulative effect of the court's attitude, rulings, and conduct was to deprive the defendants of a fair trial. When the court's conduct in respect to the defendants is considered with the restrictions the court imposed on cross-examination, 'such misadventures so persistently pervade the trial (and) are of such magnitude that a courtroom climate unfair to the defendant(s) is discernible from the cold record.' Smith v. United States, 305 F.2d 197, 205 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962). 1 * * * 'Q. In connection with your working as an informant are you paid? A. No. Q. Do you receive any consideration from the Government? A. Other than expense, nothing.' 'Q. How much did you make for testifying for the Government? MR. CAMERON: Asked and answered. THE COURT: Overruled. THE WITNESS: I am making nothing. MR. WYATT: I am sorry. THE COURT: 'I am making nothing.' BY MR. VODNOY: Q. Did you say something about expenses? A. Well, whatever the expense is, that is not a profit. Q. Tell me what your expenses are in relation to this case. A. Oh, I don't know. I haven't submitted them to my accountant yet.' (R.T., pp. 162, 163, 175). 2 * * * 'Q. How many times have you testified for the Government? A. I don't remember. Q. Tell me approximately. A. A couple of times. Q. Well, a couple of times, that means two times. A. That is right. Q. This is the third time or the-- A. The second time. Q. This is the third time? A. Second. Q. You have only testified-- A. Once before. Q. -- once before? A. Yes. 'Q. How many times have you been prepared to testify for the Government before? A. Several, three or four. Q. Three or four times. When was the first time that you were prepared or did testify for the Government? A. '69. Q. 1969? A. Yes.' (R.T., pp. 175, 176, 176a). 3 * * * 'Q. When was the next time you stood ready to testify or testified on behalf of the Government? A. '70 or '71. Q. Did you get paid for that? A. No, I did not. Q. When is the-- A. Witness fees. Q. Witness fees? A. That's right. Q. How much did you get paid in witness fees? A. The standard $20 a day. Q. $20? A. I guess. Q. Did you have a case pending at that time? A. No, I did not. Q. You do have a case pending at this time? A. No, I do not.' (R.T., p. 179). 4 * * * 'THE COURT: Anything further, gentlemen? MR. CAMERON: Nothing further. THE COURT: Anything further? MR. WYATT: Nothing further. MR. VODNOY: No, your Honor.' (R.T., pp. 325, 326). 5 Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Texas L.Rev. 629, 678 (1972)

NO. 07-11-0054-CR   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL E   AUGUST 16, 2011     THE STATE OF TEXAS,                                                                                              Appellant v.   ARTRAILE LEVILLE HILL,                                                                                             Appellee _____________________________   FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;   NO. 60,475-A; HONORABLE DAN L. SCHAAP, PRESIDING     Memorandum Opinion     Before QUINN, C.J., CAMPBELL, J. and BOYD, S.J.[1]             The State appeals from the trial court’s order granting the motion to suppress of Artraile Leville Hill, who was charged with possession of marijuana in an amount of five pounds or less but more than four ounces.  The State contends that appellee lacked standing to challenge the seized evidence and that there was probable cause to search appellee’s vehicle.  We affirm the order.             On March 24, 2010, police effected a traffic stop of appellee, and he was arrested and taken to jail.  The vehicle he was driving was impounded.  The next day, a woman named Janet or Jeanette Blair called police and gave information that her daughter dated appellee and that she believed appellee was selling drugs and that there were drugs in the vehicle in which he had been arrested.  She also stated the vehicle had a hidden compartment behind the driver’s side.  A search was conducted of the vehicle that same day but no drugs were found.  Another officer then called the telephone number left by Blair, and Blair described seeing appellee going to the trunk of his car on the driver’s side on a number of occasions when Blair went to pick up her daughter from appellee’s house.   She also relayed a conversation she overheard her daughter have with appellee’s mother.  In a second search, officers found marijuana in a void behind the carpet in the vehicle’s trunk.  Appellee’s Texas Offender Card was also found with the drugs.  The vehicle was not actually registered to appellee but was registered to Katrina Hardy.             Standing             Initially, the State argues that appellee did not have standing to contest the search because he did not own the car.  We disagree and overrule the issue.             The defendant has the burden to establish that he has standing once the State challenges it.  State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996); State v. Allen, 53 S.W.3d 731, 732 (Tex. App.–Houston [1st Dist.] 2001, no pet.).  Moreover, although we defer to the trial court’s factual findings, we review the issue of standing de novo because it is a question of law.  Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).               Next, a person has standing to challenge a search only when he has a legally protected right to the expectation of privacy.  Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006).  With respect to a vehicle that a person does not own, he has standing if he has gained possession of the car from the owner with the owner’s consent or from someone authorized to give permission to drive it.  Matthews v. State, 165 S.W.3d 104, 112 (Tex. App.–Fort Worth 2005, no pet.); Reyes v. State, 910 S.W.2d 585, 589 (Tex. App.–Amarillo 1995, pet. ref’d) (finding the defendant had standing when his former girlfriend testified that the car was hers even though her mother bought it and paid the insurance and that it was not unusual for the defendant to use the vehicle without express permission).   Appellee did not present any evidence at the suppression hearing.  The only evidence was presented by the State[2] and showed that appellee had been seen by the mother of appellee’s girlfriend on numerous occasions in possession of the vehicle, he went to the trunk of his vehicle to conduct some sort of transaction there on multiple occasions, and his Texas Offender Card was hidden in it.   Furthermore, both appellee and the informant relied upon by the police said the vehicle was appellee’s, despite it being registered to a third party.  According to one officer, appellee said that he alone utilized the vehicle.  Moreover, personal items belonging to appellee were found in the trunk.  So too did a police officer testify that appellee apparently believed in the safety and security of the hidden compartment.  Furthermore, there was no evidence in the record that the vehicle had been stolen.  The trial court also found that the evidence indicates appellee was “the sole occupant and driver of the vehicle in question, [and] was in peaceable possession of that vehicle at that time.”  This finding, incidentally, was supported by the record. The State relies upon Flores v. State, 871 S.W.2d 714 (Tex. Crim. App. 1993) and Green v. State, 682 S.W.2d 271 (Tex. Crim. App. 1984) in support of its position that there is no standing.  In the first case, the car was registered in the name of the defendant’s mother.  There was no other evidence of any kind showing an expectation of privacy.  Flores v. State, 871 S.W.2d at 719-20.  In the second case, the court found there was no standing to contest the search of a vehicle owned by defendant’s brother when there was once again no evidence of any expectation of privacy.  Green v. State, 682 S.W.2d at 293-94.   While the evidence on standing here is somewhat sparse, there is some evidence to support the inferences made by the trial court and we must defer to its factual findings.  In light of those findings, we agree there was standing to contest the search.  See Matthews v. State, 165 S.W.3d at 112 (holding there was standing when the trial court found that the defendant was driving his mother’s vehicle, they lived at the same address, the car was usually driven by appellant and his wife, and there was no evidence the vehicle was stolen); State v. Crisp, 74 S.W.3d 474, 481 (Tex. App.–Waco 2002, no pet.) (finding standing when there was testimony that the defendant had to get her mother’s car so she and her husband could take a friend to pick up a bed, and nothing in the record suggested she stole the car).   Finally, the State argues that appellee lacked standing because he had no expectation of privacy once the vehicle was in the custody of police after his arrest.  It relies upon Oles v. State, 993 S.W.2d 103 (Tex. Crim. App. 1999).  That case is inapposite for several reasons.  First, it dealt with the defendant’s clothing taken from him once he was arrested.  We are dealing with a car.  Next, and unlike the situation in Oles, no one contended here that the marijuana was found during an inventory search of the vehicle as part of an impoundment policy or that the evidence was in plain view after its impoundment.     More importantly, if we were to accept the State’s contention that impounding a vehicle alone vitiates standing to complain of any ensuing search, then we would effectively be nullifying all that authority regulating the manner in which the police may conduct inventory searches.  It would not matter whether there existed departmental policies as required by South Dakota v. Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 3098-99, 49 L.Ed.2d 1000 (1976).  Nor would it matter whether the items found were even catalogued.  See Richards v. State, 150 S.W.3d 762, 731 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (stating that the routine regulating inventory searches must be designed to produce an inventory).  This is so because no one would have standing to complain.  But, because law enforcement officials must comply with certain rules when performing such searches and evidence obtained in violation of those rules can be suppressed, see Stauder v. State, 264 S.W.3d 360, 364 (Tex. App.–Eastland 2008, pet. ref’d), impoundment does not put an end to all expectations of privacy.      Probable Cause Next, we address the contention that the trial court erred in concluding that the law enforcement officers lacked probable cause to search the impounded vehicle.  We overrule the issue. Probable cause involves a fair probability that contraband or evidence will be found, Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009), and depends on the content of the information obtained and its degree of reliability.  Hall v. State, 297 S.W.3d 294, 298 (Tex. Crim. App. 2009). Additionally, such cause determinations are made under the same standard as searches involving warrants.  Wiede v. State, 157 S.W.3d 87, 95 (Tex. App.–Austin 2005, pet. ref’d). As already stated, the police were told by an identified, yet previously unknown, citizen that she believed there were drugs in the vehicle in a hidden compartment on the driver’s side and that drugs were being sold out of the vehicle.  However, the woman did not state that she had ever actually seen any drugs or that she even knew what they looked like.  She never indicated what type of drug could be found.  She never stated that she had actually seen a drug transaction take place out of the trunk of the vehicle on any specific date.  Nor did she describe her experience with drugs, drug transactions, and those involved with them.  And, while there was also a vague reference to the woman having overheard a conversation between her daughter and appellee’s mother, no details of that conversation were provided.  Given this record, we find no fault with the trial court’s conclusion that the informant “provided little of substance to support the general suspicion she reported to the officers, and the officers lacked any other source of independent information that would otherwise bolster the information provided by the informant.”  Simply put, the data provided the officers arose to no more than an inarticulate hunch or suspicion that the vehicle was involved with criminal activity.  Yet, inarticulate hunches or suspicions are not the stuff of probable cause.  Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).  And, the trial court at bar did not err in sustaining the motion to suppress.  See Torres v. State, 182 S.W.3d 899, 903 (Tex. Crim. App. 2005) (stating that unexplained opinions that the defendant was intoxicated relayed by sheriff’s deputies to a state trooper did not give rise to probable cause for an arrest when they did not articulate supporting facts on which their opinions were based); Cardona v. State, 134 S.W.3d 854, 857-58 (Tex. App.–Amarillo 2004, pet. ref’d) (noting that the confidential informant who made a statement that appellant was going to “cook” that day failed to reveal how he came to have the knowledge, the extent of his knowledge, and his prior interactions with the drugs or its manufacture).  Accordingly, the order is affirmed.                                                               Per Curiam Do not publish.                                             [1]John T. Boyd, Senior Justice, sitting by assignment. [2]The State contends that the trial court erroneously put the burden of proof on it to establish appellee’s standing.  However, the State agreed on the record that an initial separate hearing on standing was not necessary and that standing was part of the defendant’s burden of proof in challenging the search.  While the burden was still on appellee, the evidence presented by the State in support of its warrantless search constituted just enough evidence to show standing.  If it had not, appellee would have had the burden to supplement the record with additional evidence.

919 F.Supp. 101 (1996) DYNAMIC MICROPROCESSOR ASSOCIATES, Plaintiff(s), v. EKD COMPUTER SALES, et al., Defendant(s). No. CV 92-2787 (FB). United States District Court, E.D. New York. February 2, 1996. *102 Kathryn J. Fritz, Fenwick & West, Palo Alto, CA, for plaintiffs. John T. Catterson, Reynolds, Caronia & Gianelli, Hauppauge, NY, for defendants. ORDER BOYLE, United States Magistrate Judge. By order dated November 9, 1995 discovery was certified as complete, however, the defendants, EKD Computer Sales & Supplies Corp. ("EKD") and Thomas Green ("Green"), were granted permission to proceed by formal motion to compel production of the source code relating to pcAnywhere, a software program that is the subject of this action. 1. BACKGROUND AND PLEADINGS The computer software programs pcAnywhere III and pcAnywhere IV are the subject matter of this action brought in June 1992 by the plaintiff, Dynamic Microprocessor Associates, Inc. ("Dynamic") based on claims (among others) of copyright infringement, violation of the Lanham Act, and breach of a licensing agreement. Dynamic seeks a permanent injunction and damages based on EKD's alleged unauthorized manufacture and sale of Dynamic's software program, pcAnywhere III. The district court (Wexler, J.) issued a preliminary injunction barring EKD from *103 manufacturing and selling pcAnywhere III pending the trial of this action. In the Third Amended Answer the defendants, EKD and Green, in addition to denying the essential allegations of the complaint, among other defenses, assert that the licensing agreement provided EKD with the exclusive right to manufacture and sublease pcAnywhere III (Third Affirmative Defense) and that Dynamic wrongfully terminated the agreement by falsely claiming that EKD was in default of its royalty obligations. As a Ninth Affirmative Defense, EKD and Green maintain that the alleged copyright is based on a "wholly functional computer program in which there are no copyrightable elements" and that the alleged copyright is void. Third Amended Answer paras. 22 to 24, annexed to defendants' moving papers at Exhibit 13 p. 10. As a counterclaim and Third-party complaint EKD requests an accounting of profits and declaratory judgment (28 U.S.C. § 2201) relating to sales of pcAnywhere III and IV, EKD alleges that it had a wrongfully terminated licensing agreement for pcAnywhere III which is "substantially the same program (with a "minor upgrade") as pcAnywhere IV and therefore within the purview of the licensing agreement which existed between the parties. Seventh Amended Claim, paras. 72-79, pp. 27 and 28, annexed to EKD's moving papers at Ex. 13. 2. EKD'S REQUESTS FOR PRODUCTION OF THE SOURCE CODES EKD has made repeated requests during this litigation for production of the source codes for pcAnywhere III and IV, going back to March 10, 1993. Dynamic has continually opposed production. A protective order was entered, on consent, on June 22, 1993 (Wexler, J.). Pursuant to that agreement the parties have produced a substantial volume of documents. The sole remaining issue is production of the source code[1] which plaintiff vehemently opposes on the ground of its high degree of confidentiality. EKD's present application is based in part on the joint affidavit, dated October 15, 1993[2], of independent computer software experts (Gerard Gress and Kenneth McKillop) retained by EKD for purposes of this litigation. The affidavit is an expert opinion, requested by EKD, on the following issues which are relevant to the motion to compel: 1) Is "Version 3 of pcAnywhere wholly functional? That is, is its code determined by the job it has to do and therefore not copyrightable because it lacks originality?" and 2) Is "Version 4 of pcAnywhere substantially the same as Version 3?" Affidavit of Messrs. Gress and McKillop, annexed to EKD's moving papers at Exhibit 3 at para. 3. The joint affidavit notes at para. 4 that the affidavit was prepared without access to the complete source code. Dynamic maintained that the questions could be answered based on "inspection of the release versions of the programs and their files." See para. 4, affidavit of Messrs. Gress and McKillop. The experts' affidavit sets forth, in detail, why the questions cannot be answered without examination of the full source code, and addresses the argument that Dynamic had raised that production was not necessary. The affidavit in relevant part states: b) Source Code The source of a program is what the developer worked with — it is comparable to the manuscript of a book or the score of a piece of music. However, while a musician with perfect pitch could listen *104 to a piece of music and write down the exact same score, we cannot look at the executable of a program or its user interface and reconstruct the source code. Often, a considerable amount of functionality is not obvious from the interface and information in the source has been lost or hidden in the executable. c) Why we cannot answer questions without source code: DMA has argued that we can determine pcAnywhere Version 3's functionality from its interface and compare its functionality with that of Version 4 by comparing interfaces. However, the nature of a remote access program is that it disappears into the background when performing its function. The interface of the program is purely for setting its configuration and starting operation. Once operating, the program has no visible interface. The purpose of the program is to connect the screens and keyboards of a host and remote. Since all remote access programs have the same result when operated, we cannot tell them apart by watching them operate. The apparent differences in the configuration user interfaces are actually quite superficial. The interface of Version 3 has simply been rearranged in Version 4. The function of the program remains identical regardless of superficial changes. Most of the apparent difference between the two interfaces actually lies in the third-party interface code used in Version 4. DMA has also argued that the differences in file sizes and numbers between Versions 3 and 4 make them obviously different. Version 4 has fewer executables and these files are much larger than in Version 3. However, these differences may not be meaningful. The change in the number of executables could have been achieved simply by moving around pieces of source code and recompiling the program. The change in the size of the executables may be entirely due to the third-party interface code used. Version 4 is based on a third-party interface library not used in Version 3. It is fairly common to find third-party interface libraries doubling or tripling the size of an executable program. The change in the number of executables and in their size may not reflect any significant change in the function of the program. It is still possible that the underlying function and even the source code are identical in both versions. We cannot decide the matter without access to the source code. 6. Conclusion We need the original source code for Versions 3 and 4 of pcAnywhere in order to render a professional opinion on the issues posed to us. Without the source, we can only speculate and the facts cannot be known with any certainty. In addition, since DMA (Dynamic) and any experts it engages will obviously have access to the source code, we would be placed at a considerable and unfair disadvantage in evaluating any opinions tendered by them. Affidavit of Messrs. Gress and McKillop, dated October 15, 1993, annexed to EKD's moving papers at Exhibit 3, para. 5a-6. 3. DISCUSSION A. Relevancy The joint affidavit of Messrs. Gress and McKillop responded to the plaintiff's position that EKD had not made an adequate showing of need. See Opposing Declaration of Kathryn J. Fritz, Esq. at paras. 15-22. The court notes that during the twenty-seven months since receipt of the affidavit from EKD's experts, describing the basis for their need to examine the source code, the plaintiff has never disputed the defendants' experts' statements by an independent computer expert of their own. Instead, plaintiff has relied on correspondence by its counsel (see two paragraph letter dated October 29, 1993 by Kathryn J. Fritz, Esq. annexed at Exhibit H to Dynamic's opposing papers) and on the affidavits of Stephen Hersh, a software developer employed by Dynamic, and Derek Witte, an attorney and officer of Dynamic, and the third-party defendant, Dynamic *105 Microprocessor Associates, Inc., and who additionally serves as General Counsel to Symantec, another third-party defendant herein. These persons are undoubtedly knowledgeable in the computer field and profess a "familiarity with the practices of software companies," Declaration of Derek Witte, dated December 19, 1995, however, they do not succeed in rebutting the need for the source code, on which EKD's experts have opined. Ironically, the affidavit of Mr. Hersh, the software developer of pcAnywhere III and IV, crystalizes the disability under which EKD is laboring without access to the source code. Mr. Hersh's declaration opines on the very issues of functionality and similarity which are critical to the prosecution and defense of claims relating to copyrightability and breach of contract. This affidavit crystalizes the substantial disadvantage that EKD will continue to work under in this litigation, if it is unable to adequately investigate and counter Dynamics' claims through its own experts. The areas of dispute herein are ones where the court clearly recognizes the value of assistance by experts. Computer Associates Intern., Inc. v. Altai, Inc., 775 F.Supp. 544, 549 (E.D.N.Y.1991) (Pratt, J.),[3]aff'd in part and vacated and remanded in part, 982 F.2d 693 (2d Cir.1992). Indeed, the use of experts is virtually essential to the trier of the facts in examining and evaluating the structural parts of a computer program, Computer Associates, supra, 982 F.2d at 714-15, of which the source code is a fundamental component. Plaintiff's counsel has acknowledged in its moving papers (see opposing declaration of Kathryn J. Fritz, Esq. dated December 21, 1995 at para. 26) that the dispositive motions to be filed before Judge Block will not be limited to judgment on the pleadings, but instead, will also seek relief in the form of summary judgment pursuant to Rule 56, Fed.R.Civ.P. The defendants are entitled to any relevant non-privileged evidence, Rule 26(b)(1), Fed.R.Civ.P., to defend against plaintiff's causes related to copyright infringement and to substantiate their asserted affirmative defense that the programs involved here are functional and, therefore, not copyrightable. See e.g., Lotus Development Corp. v. Borland International Inc., 49 F.3d 807 (1st Cir.1995), aff'd ___ U.S. ___, 116 S.Ct. 804, 133 L.Ed.2d 610 (Mem.) (decided January 16, 1996, affirming, without opinion, by an equally divided court). Similarly, the source code is relevant and non-privileged evidence with respect to EKD's counterclaim and third-party complaint seeking an accounting for profits and declaratory judgment relating to pcAnywhere IV which defendants allege is substantially similar to pcAnywhere III for which it held a valid licensing agreement. EKD's reliance on Bell Atlantic Business Systems Services, Inc. v. Hitachi Data Systems Corp., 1995 WL 13115, 1995 U.S.Dist. LEXIS 265 decided January 13, 1995 (S.D.N.Y.) (Knapp, J.) is misplaced. The defendant there, Hitachi Data Systems Corp. ("Hitachi") asserted a counterclaim that the plaintiff, Bell Atlantic Business Systems Services, Inc. ("Bell") infringed the copyright on Hitachi's INLINE microprogram. A defense to this counterclaim, asserted by Bell, was the claim that Hitachi's program had been illegally obtained from International Business Machines Corp. ("IBM") and accordingly Hitachi's copyright claim lacks the essential element of originality which is a pre-requisite for copyright infringement. Ibid. In an effort to establish its claim Bell moved to compel the production of the source code from IBM, pursuant to a third party subpoena issued under Rule 45 Fed.R.Civ.P. Although the district court was clearly concerned with protecting the highly sensitive nature of the information sought, Bell's motion to compel was denied not for that reason, but because Bell had failed to show that Hitachi ever had access to the program. Accordingly, the district court concluded that Bell had failed to establish that the documents were relevant to the litigation. For the reasons stated above, EKD has clearly *106 established the relevance of the source codes to the issues herein. The source code constitutes a trade secret, see, Softel Inc. v. Dragon Medical & Scientific Communications, Ltd., 891 F.Supp. 935 (S.D.N.Y.1995); Control Data Systems, Inc. v. Infoware, Inc., 903 F.Supp. 1316 (D.Minn.1995). As such, the source codes are clearly subject to the terms and conditions of a protective order issued pursuant to Rule 26(c), Fed.R.Civ.P. See e.g., Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.1992). The conditions under which discovery may take place and the protective conditions imposed depend on the facts of the particular case.[4]Ray v. Allied Chemical Corp., 34 F.R.D. 456, 457 (S.D.N.Y.1964) (Weinfeld, J.); Microwave Research Corp. v. Sanders, Associates, 110 F.R.D. 669, 672 (D.Mass. 1986) (Collings, M.J.). Accordingly, pursuant to Rule 26(c), the court directs the plaintiff to produce the source codes for pcAnywhere III and IV subject to the following conditions: 1. The source codes shall be produced pursuant to the terms and conditions set forth in the protective order, on consent, dated June 22, 1993 (Wexler, J.) (Annexed as Exhibit 1 to defendants' moving papers). 2. Pursuant to the terms of the order Dynamic shall be afforded an opportunity to review the background of EKD's expert and to make an objection and obtain a ruling from the court pursuant to section 2(d) and 3 of the Consent Order. 3. The source code shall be considered "CONFIDENTIAL: ATTORNEYS' EYES ONLY" pursuant to section 2 of the Consent Order, dated June 22, 1993; provided further however, that the source code may only be made available to defendants' designated expert(s) and attorneys representing the defendants. 4. The parties are requested to agree on whether the source codes should be turned over in a single written copy or in electronic form. In the absence of agreement, either party may file a motion addressed to this issue. There shall be no copies made of the source codes produced, nor shall they be otherwise duplicated in whole or in part. At the end of this litigation the source codes shall be returned to Dynamic together with an affidavit required by the terms of the protective order. 5. Any notes or other writings by EKD's experts arising from their examination of the source codes, shall be returned at the end of the litigation and an affidavit so attesting shall be provided to Dynamic at such time. 6. The written report by EKD's expert(s) shall be held and produced under the same conditions as set forth at three (3) above, and no more than two copies (in addition to the original) of such report shall be made. One copy shall be made available to Dynamic and one copy to EKD and its counsel. 7. EKD is directed to maintain a log of all authorized personnel who examine the source codes, and the times and dates of such inspection. 8. Any motion authorized pursuant to the terms of the protective order, dated June 22, 1993, or the within order, shall be filed on or before February 23, 1996. The parties are urged however, to make every effort to resolve such issues without court intervention. SO ORDERED. Dated: Uniondale, New York February 2, 1996 NOTES [1] The plaintiff in 1993 produced, pursuant to the terms of the protective order, twenty (20) pages to the source code for pcAnywhere III which are on file with the Copyright Office, as a representative source code sample which Dynamic had filed to obtain the copyright registration to pcAnywhere III. See Declaration of Kathryn J. Fritz, Esq., in Opposition to EKD's Motion to Compel, dated December 21, 1995 at para. 12. [2] This was originally submitted in support of a prior application in which the court did not address the merits. The application was denied without prejudice to renew pending a decision on plaintiff's then-pending motion for judgment on the pleadings. Plaintiff subsequently withdrew its motion, following defendants' submission of an amended answer. [3] Circuit judge sitting by designation. [4] In the Ray case, in the exercise of his discretion, the district court deferred discovery of certain secret processes to the trial judge who "would be in a better position to evaluate plaintiff's claim." That option is not available here in light of the motion for summary judgment and judgment on the pleadings which both sides anticipate making to the district court.

894 F.2d 408 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.William G. WALTON, Petitioner,v.The NATIONAL TRANSPORTATION SAFETY BOARD, and Administrator,Federal Aviation Administration, Respondents. No. 88-4087. United States Court of Appeals, Sixth Circuit. Jan. 26, 1990. Before KEITH, NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges. PER CURIAM. 1 Petitioner William G. Walton requests reversal of an order of the National Transportation Safety Board (NTSB) suspending his Airline Transport Pilot Certificate for a period of 90 days. For the following reasons, we affirm. I. 2 Walton owns and operates both Tomahawk Airways, Inc., an air taxi service which transports passengers and cargo, and W.W. Aircraft Co., an entity through which Walton leases planes to and provides sales and management for Tomahawk Airways. Walton was the holder of an Airline Transport Pilot Certificate and piloted one of his company's planes. On October 18, 1985, Tomahawk Airways' Air Taxi/Commercial Operator (ATCO) Certificate was suspended for a period of seven months as a result of inadequate recordkeeping. W.W. Aircraft Co. is not a holder of an ATCO certificate. In November 1985, Walton entered into a written agreement with John Flewellen, the president of Flewellen Aviation, whereby Walton leased a plane to Flewellen for 12 months beginning October 19, 1985. The written agreement further provided that Flewellen would act as subcontractor to W.W. Aircraft to service the latter company's contract with Pony Express Courier Corp. The two parties also orally agreed that Walton would be permitted to conduct certain other flights for compensation and hire, or charter flights under the aegis of Flewellen's ATCO certificate. 3 Flewellen testified that in late January 1986 Ted Cain, Flewellen's Director of Operations, Walton and he had a conversation during which Walton stated that he was not doing any on-demand charters and agreed that it was not necessary for him to be listed under Flewellen's ATCO certificate. It is not clear whether Walton subsequently was informed that he was being removed from the list of pilots operating under Flewellen's certificate. Thereafter, in a letter dated February 26, 1986, Cain informed the FAA that Flewellen was removing Walton's name from the list of pilots operating under its ATCO certificate. However, Walton was not sent a copy of this letter, and it was his belief that he could operate under Flewellen's certificate for the duration of the lease. On April 2 and 10, 1986, Walton was the pilot-in-command on two flights, which were conducted for compensation and hire. These flights were made pursuant to a contract entered into by W.W. Aircraft Co., which, as noted earlier, lacks an ATCO certificate. 4 On March 12, 1987, the Administrator of the Federal Aviation Administration (FAA), revoked Walton's Airline Transport Pilot Certificate for one year on the grounds that Walton violated Federal Aviation Regulation (FAR) Sec. 135.5, 14 C.F.R. Sec. 135.5,1 by operating an aircraft for compensation or hire without an ATCO certificate and appropriate operating specifications. Walton admitted making the alleged flights, but asserted that he was operating under the ATCO certificate of Flewellen Aviation d/b/a Chattanooga Jet Center. After an administrative hearing, the administrative law judge (ALJ) reasoned that "maybe this case turns on whether or not [Walton] had knowledge, actual knowledge, of the cancellation of his privileges," and concluded that Walton did not have full unequivocal notice that his right to operate under Flewellen's ATCO certificate had ended. However, the ALJ determined that Walton did not 5 act [ ] with the highest degree of responsibility, prudence and care, and particularly as an airline transport pilot, and particularly in view of the fact of the ordeal he went through last year where his company's operating certificate, was suspended. It [appeared to the ALJ] that he would have been more vigilant and would have done more than file a flight plan, particularly ... for these flights, and that he would have had some additional and earlier contact with Mr. Flewellen and with Flight Dispatch. 6 J.App. at 15. The ALJ therefore affirmed the Administrator's order of revocation of Walton's pilot license for violating 14 C.F.R. Sec. 135.5, but reduced the period of suspension from one year to 90 days. 7 On appeal, the full National Transportation Safety Board affirmed the ALJ's decision on June 27, 1988. The Board stated that it was in agreement with the ALJ "that the two flights cited in the complaint were conducted in violation of FAR Sec. 135.5, and that the 90-day suspension imposed by the law judge is compatible with the Board precedent." Because the parties entered into a verbal and informal agreement, the Board stated that it was incumbent upon Walton to insure that he was operating under an ATCO certificate. II. 8 Pursuant to 49 U.S.C. Sec. 1486(e), "[t]he findings of fact by the Board or Secretary of Transportation, if supported by substantial evidence, shall be conclusive." Further, because it is clear that this dispute centers upon the interpretation of an administrative regulation, the National Transportation Safety Board's interpretation of its own regulation is entitled to great deference unless it is plainly erroneous or inconsistent with the regulation. Hart v. McLucas, 535 F.2d 516, 520 (9th Cir.1976). This court sets aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Brown v. National Transportation Safety Board, 795 F.2d 576, 578 (6th Cir.1986). 9 Walton argues that he did not violate Sec. 135.5 because he did not receive notice of removal from the list of covered pilots. Walton maintains that the ALJ actually found no violation of Sec. 135.5. Walton quotes a portion of the decision which appears to indicate that he "did not violate Sec. 135.5" because at the time of the subject flights he believed he was operating under the aegis of Flewellen's ATCO certificate. (J.A. at 267-68.) Having found no violation of Sec. 135.5 to be present, Walton argues that the suspension must therefore have been premised on a violation of another regulation, FAR Sec. 135.7.2 A separate violation of Sec. 135.7 premised on failure to satisfy requirements concerning equipment, maintenance, and recordkeeping was alleged in the administrator's original order of revocation, but dropped in the amended order of revocation. Walton construes the ALJ's statements that "he should have done more than file a flight plan" and "he [should] have had some additional and earlier contact" as finding a violation of dispatch and recordkeeping requirements under Sec. 135.7. Therefore, Walton concludes that the suspension is in violation of due process because he did not receive notice of any charges under Sec. 135.7. 10 We find Walton's argument unavailing. Even though he did not receive actual notice of removal from the list of covered pilots, such notice is not necessary to state a violation of Sec. 135.5 under the circumstances of this case. Because Walton's own ATCO certificate was under suspension and because Walton knew other arrangements had to be made if he was to continue flying, affirmative steps on the part of the pilot were required to insure that his operations were legal. In Metro Air System, Inc. 2 N.T.S.B. 285 (1973), aff'd sub nom. Metro Air System, Inc. v. N.T.S.B., Nos. 73-1328/1536 (6th Cir. Nov. 15, 1974), an air carrier whose own ATCO certificate was under suspension continued operations by contracting to use the name and certificate of Bridges Aircraft Sales & Service, Inc. However, the ATCO certificate of Bridges was, by its terms, not transferrable. Metro Air contended that it was affirmatively misled by the Administrator's delay in taking action regarding this conduct until Metro Air's previous suspension had expired. The Board determined that Metro Air should have taken additional steps to assure that its operations were not in violation of the regulations. 11 We also find Walton's additional argument that the ALJ must have based its case on a violation of Sec. 135.7 to be frivolous. It is clear that the ALJ's discussion of what Walton was obligated to do was necessary to determine whether he violated Sec. 135.5. The administrator's prima facie case consisted of documentary evidence, Walton's admissions in his answer, and the testimony of the person who employed Walton to undertake the subject flights; it was Walton who raised the issue of compliance with Sec. 135.7 requirements in the belief that such evidence was relevant to the issue of whether Walton should have known that he was not on Flewellen's certificate. 12 In conclusion, the Board's apparently longstanding interpretation of its regulation not to require notice or knowledge under the proper circumstances is not plainly erroneous or inconsistent with the regulation. Deference is due to the agency's determination that, when an operator's own ATCO certificate is suspended and operations are continued under the auspices of another operator's ATCO certificate, affirmative obligations are placed on the operator to assure that he is not flying without an ATCO certificate. III. 13 For the foregoing reasons, the decision of the National Transportation Safety Board is AFFIRMED. 1 This regulation states: Sec. 135.5 Certificate and operations specifications required. No person may operate an aircraft under this part without, or in violation of, an air taxi/commercial operator (ATCO) operating certificate and appropriate operations specifications issued under this part, or, for operations with large aircraft having a maximum passenger seating configuration, excluding any pilot seat, of more than 30 seats, or a maximum payload capacity of more than 7,500 pounds, without, or in violation of, appropriate operations specifications issued under Part 121 of this chapter. 14 C.F.R. Sec. 135.5 2 Federal Aviation Regulation 135.7 states: Sec. 135.7 Applicability of rules to unauthorized operators. The rules in this part which apply to a person certificated under Sec. 135.5 also apply to a person who engages in any operation governed by this part without an appropriate certificate and operations specifications required by Sec. 135.5. 14 C.F.R. Sec. 135.7

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 24 2018, 10:04 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Andrew C. Abbott, July 24, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-670 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable David L. McCord, Appellee-Plaintiff. Judge Trial Court Cause No. 33C03-1702-F6-85 Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 1 of 8 [1] Andrew Abbott appeals his sentence for possession of methamphetamine as a level 6 felony. Abbott raises one issue which we revise and restate as whether his sentence is inappropriate in light of the nature of the offense and his character. We affirm Abbott’s sentence but remand with instructions that the trial court attach his habitual offender enhancement to his sentence for possession of methamphetamine as a level 6 felony. Facts and Procedural History [2] On February 27, 2017, Abbott knowingly and intentionally possessed methamphetamine in Henry County, Indiana. On that date, New Castle police officers were investigating a possible theft and stopped him. He allowed the officers to search him, and they found two baggies of a white substance and other paraphernalia in his pockets. Abbott admitted, and field testing showed, that the substance was methamphetamine. [3] The State charged Abbott with possession of methamphetamine as a level 6 felony under Count I and possession of paraphernalia as a class C misdemeanor under Count II, and it alleged that he was an habitual offender. Abbott and the State entered into a plea agreement which provided that the class C misdemeanor would be dismissed and that: In consideration of [Abbott] pleading guilty to the offense(s) of: Count I, Possession of Methamphetamine, Level 6 Felony, and admit to the Habitual Felony Offender Enhancement, the State agrees that if the Court accepts this agreement, the Court shall sentence defendant as follows: Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 2 of 8  Count I - Court costs. The state recommends [Abbott] be sentenced to two (2) years to the Indiana Department of Correction[s]. Habitual Felony Offender Enhancement - [Abbott] be sentenced to two (2) years to the Indiana Department of Correction[s]. The Court will be free to assess any sentence within the range of possibilities greater than the recommended sentence. The parties agree that the additional sentence over the recommended sentence will be suspended. [Abbott] will be free to advocate a lesser sentence and the Court will be free to impose a sentence lesser than the State’s recommended sentence; and may use any sentence options to include imprisonment, treatment as a Class A Misdemeanor, direct commitment to Community Corrections to include in- home detention or work release, or suspend any or all with formal probation. Appellant’s Appendix Volume II at 38. Abbott pled guilty to Count I and admitted to being an habitual offender pursuant to the plea agreement. [4] At sentencing on December 4, 2017, he testified that he was employed and was in a temporarily laid-off position. He presented a paystub showing his employment and a drug screen result form dated October 31, 2017, stating that the reason for the test was pre-employment and that the results were negative for all drugs tested. He indicated he received a certificate of completion of the New Castle IOP treatment program, and stated that, if the court found community corrections placement was appropriate, he had a place to live, and that, until his employer called him back, he was doing side work in Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 3 of 8  construction. Shannon Giselle, when asked about her connection with Abbott, testified “[w]e’ve been friends for four years and the last nine months, we’ve been hanging out again and I’ve been hiring him to help me do some remodeling work for the place I’m renting.” Transcript Volume II at 16. When asked how long the employment would continue, she replied “I have work for the next two years.” Id. at 17. [5] Abbott’s defense counsel requested that he be placed in community corrections. The prosecutor stated that, based on Abbott’s criminal history, the State was asking that he be sentenced to two years on Count I enhanced by two years due to being an habitual offender. Abbott apologized for breaking the law and stated that he never had a drug problem until he was forty years old, that he sought treatment, and that he no longer had a drug issue. [6] The trial court found Abbott’s criminal history and his high risk to reoffend to be aggravating circumstances. It also noted that Abbott signed a plea agreement with a somewhat open sentence and a cap. It sentenced him to two years for his conviction for possession of methamphetamine under Count I and to two years for being an habitual offender under Count III, and it ordered that the sentence under Count III be served consecutive to the sentence under Count I. Discussion [7] The issue is whether Abbott’s sentence is inappropriate in light of the nature of the offense and his character. Ind. Appellate Rule 7(B) provides that we “may Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 4 of 8  revise a sentence authorized by statute if, after due consideration of the trial court’s decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). [8] Abbott argues his sentence is inappropriate and the court failed to consider alternatives to incarceration. He argues that his guilty plea was an acceptance of responsibility and is indicative of his character. He also points to his employment history and substance abuse treatment. The State responds that the sentence was less than the maximum and was a sentence to which Abbott had agreed. It also points to Abbott’s multiple contacts with the criminal justice system over many years and his admission that the crime resulted from his substance abuse. [9] Ind. Code § 35-50-2-7 provides that a person who commits a level 6 felony shall be imprisoned for a fixed term of between six months and two and one-half years, with the advisory sentence being one year. Ind. Code § 35-50-2-8 provides in part that the court shall sentence a person convicted of a level 6 felony and found to be an habitual offender to an additional nonsuspendible fixed term between two years and six years. [10] Our review of the nature of the offense reveals that Abbott knowingly and intentionally possessed methamphetamine. Officers discovered two baggies of methamphetamine in his pockets. Our review of the character of the offender Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 5 of 8  reveals that Abbott, who was born in August 1976, pled guilty pursuant to the plea agreement to possession of methamphetamine as a level 6 felony under Count I and admitted to being an habitual offender, and in exchange the State dismissed the charge of possession of paraphernalia as a class C misdemeanor and recommended a sentence of two years on Count I and an enhancement of two years for being an habitual offender. The presentence investigation report (“PSI”) indicates that Abbott’s juvenile criminal history includes charges for burglary and resisting law enforcement in 1991 and delinquent adjudications for theft as a class C felony if committed by an adult and resisting law enforcement as a class D felony if committed by an adult in 1993. The PSI further indicates that his adult criminal history includes convictions for criminal mischief, resisting law enforcement and minor consuming alcohol in January 1995; trespass and minor consuming alcohol in May 1995; trespass, possession of marijuana, and possession of schedule I, II, III, or IV controlled substance in June 1995; burglary in October 1995 for which he was sentenced to eight years; four counts of burglary in May 2000 for which he was sentenced to an aggregate term of sixteen years; escape in July 2000; receiving stolen property and trespass in December 2010; and visiting a common nuisance in March 2016 and in September 2016. [11] In addition, the PSI indicates that Abbott was employed by a tree service, that he reported his first use of alcohol and marijuana was at the age of fifteen, his last use of marijuana was a couple of months ago, he had also used speed, methamphetamines, heroin, pain pills, and nerve pills and that his last use was Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 6 of 8  a couple of months ago, and that he reported using these drugs on a weekly basis. Abbott stated he was currently in IOP. The PSI also indicates that his overall risk assessment score using the Indiana risk assessment system places him in the high risk to reoffend category. After due consideration, we conclude that Abbott has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.1 [12] While we affirm Abbott’s aggregate sentence, we observe that the trial court erroneously entered a separate two-year sentence for the habitual offender finding to be served consecutive to the sentence for his conviction under Count I. An habitual offender finding does not constitute a separate crime, nor does it result in a separate sentence. See Ind. Code § 35-50-2-8. Rather, an habitual offender finding results in a sentence enhancement imposed upon the conviction of a subsequent felony. Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001). Pursuant to Ind. Code § 35-50-2-8, we remand with instructions that the trial court vacate the separate sentence on the habitual offender finding and attach the enhancement to Abbott’s sentence for possession of 1 To the extent Abbott argues the trial court abused its discretion in sentencing him, we need not address this issue because we find that his sentence is not inappropriate under Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate”), trans. denied), trans. denied. Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 7 of 8  methamphetamine as a level 6 felony under Count I and amend the sentencing order and abstract of judgment accordingly.2 Conclusion [13] For the foregoing reasons, we affirm Abbott’s sentence and remand for entry of an amended sentencing order and abstract of judgment. [14] Affirmed and remanded. Robb, J., and Altice, J., concur. 2 This will not impact the length of Abbott’s aggregate sentence. Court of Appeals of Indiana | Memorandum Decision 18A-CR-670 | July 24, 2018 Page 8 of 8 

Case: 19-40687 Document: 00515468579 Page: 1 Date Filed: 06/26/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-40687 June 26, 2020 Lyle W. Cayce JULIO E. LOZA, Clerk Plaintiff - Appellant v. SELECT PORTFOLIO SERVICING, INCORPORATED; DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan Stanley ABS Capitol 1 Inc. Trust 2005-HE7, Mortgage Pass-Through Certificates, Series 2005- HE7; POWER DEFAULT SERVICES, INCORPORATED, Defendants - Appellees Appeal from the United States District Court for the Southern District of Texas USDC No. 7:17-CV-430 Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge:* Pro se Plaintiff-Appellant Julio E. Loza obtained a loan secured with residential property in McAllen, Texas. He defaulted and brought the instant action challenging the resulting foreclosure proceedings. The day before the deadline for pretrial motions, defendants Deutsche Bank National Trust * 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: 19-40687 Document: 00515468579 Page: 2 Date Filed: 06/26/2020 No. 19-40687 Company (“Deutsche Bank”) and Select Portfolio Servicing, Incorporated (“SPS”) sent Loza new discovery documents. In response, Loza filed a motion to amend the scheduling order, arguing that he needed time to review the new documents and possibly request additional discovery before filing a motion for summary judgment. Deutsche Bank and SPS opposed the motion and filed their own motion for summary judgment. The district court denied Loza’s motion, granted Deutsche Bank and SPS’s motion, and sua sponte dismissed the remaining claims against defendant Power Default Services, Incorporated (“PDS”) with prejudice for failure to prosecute. Loza filed a timely notice of appeal. He argues that there was good cause for the district court to grant his motion to amend the scheduling order, and the district court erred in dismissing his remaining claims sua sponte. We AFFIRM in part, REVERSE in part, and REMAND. I First, Loza argues that the district court erred in denying his motion to amend the scheduling order. A scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). We review a district court’s enforcement of its scheduling order for an abuse of discretion. United States v. Hale, 685 F.3d 522, 532 (5th Cir. 2012). Deutsche Bank and SPS respond that Loza has waived this argument by failing to adequately brief it and, alternatively, the district court did not abuse its discretion. “[W]e liberally construe briefs of pro se litigants and apply less stringent standards to [them].” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). However, “pro se parties must still brief the issues and reasonably comply with the standards of [Fed. R. App. P. 28].” Id. For example, “an appellant [must] set forth his ‘contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.’” Arredondo v. Univ. of Tex. Med. Branch at Galveston, 950 F.3d 294, 298 (5th Cir. 2020) 2  Case: 19-40687 Document: 00515468579 Page: 3 Date Filed: 06/26/2020 No. 19-40687 (quoting Fed. R. App. P. 28(a)(8)(A)). Nevertheless, “we can consider a pro se litigant’s non-compliant brief when the non-compliance did not prejudice the opposing party.” Id. We have found that the opposing party was prejudiced when it was forced to “speculate as to the relevant issues” when preparing its own brief, Grant, 59 F.3d at 525, and when the pro se party’s brief was “confusing and layered with arguments that [were] not supported by the record,” Arredondo, 950 F.3d at 299. We have found that the opposing party was not prejudiced when it fully briefed the sole issue in the case, no disputed facts clouded the resolution of the legal issue, and all that remained was to apply well-settled law to the facts. Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988). Loza’s brief does not contain citations to relevant legal authority, but it does contain relevant record citations, including citations to the district court’s order which states the relevant legal standard and cites to relevant legal authority. Moreover, whether Loza demonstrated good cause is a fact-intensive issue about which the law is well-settled. Deutsche Bank and SPS adequately identified this issue and responded to Loza’s arguments in their brief. Therefore, we discern no prejudice and address this issue on the merits. We consider four factors in assessing good cause: (1) the explanation for the failure to comply with the scheduling order, (2) the importance of the modification, (3) potential prejudice in allowing the modification, and (4) the availability of a continuance to cure such prejudice. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Loza argues that he provided a reasonable explanation for his inability to comply with the existing scheduling order, but he does not challenge the district court’s finding that the modification was not important. The district court found that Loza’s claims against Deutsche Bank and SPS all fail as a matter of law such that no facts Loza could have discovered and no arguments 3  Case: 19-40687 Document: 00515468579 Page: 4 Date Filed: 06/26/2020 No. 19-40687 Loza could have made in his own motion for summary judgment would have altered the outcome of the case. A district court does not abuse its discretion by denying a motion to modify a scheduling order when that modification would be futile for the moving party. Therefore, we find no abuse of discretion. II Loza also argues that the district court should not have dismissed his remaining claims against PDS with prejudice for failure to prosecute. The district court has the inherent power to dismiss an action sua sponte for failure to prosecute. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). We review such dismissals for abuse of discretion. Id. “Dismissals with prejudice for failure to prosecute are proper only where (1) there is a clear record of delay or contumacious conduct by the plaintiff and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile.” Stearman v. Comm’r, 436 F.3d 533, 535 (5th Cir. 2006) (citing Tello v. Comm’r, 410 F.3d 743, 744 (5th Cir. 2005)); see also Coon v. Charles W. Bliven & Co., Inc., 534 F.2d 44, 48–49 (5th Cir. 1976) (“[D]ismissal of an action for failure to prosecute with reasonable diligence is . . . too harsh except in extreme circumstances.” (internal quotation omitted)). Loza brought this lawsuit on October 2, 2017. On February 7, 2018, he failed to appear for the initial pretrial and scheduling conference, and the district court ordered him to state, within ten days, whether he intended to prosecute his claims. Loza responded by apologizing to the court for missing the hearing and “reaffirm[ing] his intention to prosecute this case to the best of his ability.” Thereafter, it does not appear that Loza missed any other hearings or disobeyed any court orders. Nevertheless, on July 8, 2019, the district court, in a final paragraph, sua sponte dismissed Loza’s claims against 4  Case: 19-40687 Document: 00515468579 Page: 5 Date Filed: 06/26/2020 No. 19-40687 PDS. This dismissal was with prejudice. The district court noted that “[t]he docket does not reflect that [PDS] has been served, or that Plaintiff has made any attempt to prosecute his suit against it,” but it did not cite to any contumacious conduct by Loza or expressly consider any lesser sanctions. In McCullough, the only case cited by the district court in support of its sua sponte dismissal, we affirmed a dismissal without prejudice for lack of prosecution. 835 F.2d at 1127. Given the paucity of briefing and the circumstances surrounding the claims against PDS, it is likely that the district court intended to dismiss without prejudice. However, because the entered dismissal is with prejudice and the district court did not expressly consider or attempt to employ any lesser sanctions such as a warning or dismissal without prejudice, we are compelled to find an abuse of discretion. 1 *** For the foregoing reasons, we AFFIRM the district court’s denial of Loza’s motion to amend the scheduling order and its summary judgment dismissal of the claims against Deutsche Bank and SPS, we REVERSE the district court’s sua sponte dismissal with prejudice of Loza’s remaining claims against PDS, and we REMAND for further proceedings. 1 Indeed, Federal Rule of Civil Procedure 4(m), which provides the time limit for service in federal court, says that “[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” (emphasis added). 5 

909 F.2d 1114 30 Fed. R. Evid. Serv. 720 UNITED STATES of America, Appellee,v.Larry K. HILAND, Appellant.UNITED STATES of America, Appellee,v.CARTER-GLOGAU LABORATORIES, INC., now known as RETRAC, Inc.,Appellant.UNITED STATES of America, Appellee,v.Ronald M. CARTER, Sr., Appellant. Nos. 89-1222EM, to 89-1224EM. United States Court of Appeals,Eighth Circuit. Submitted Dec. 14, 1989.Decided July 19, 1990. Hamilton P. Fox, II, Washington, D.C., for appellant Hiland. Steven M. Kowal, Chicago, Ill., for appellant Carter. Eugene M. Thirolf, Jr., Washington, D.C., for appellee. Before ARNOLD, FAGG and MAGILL, Circuit Judges. MAGILL, Circuit Judge. 1 Carter-Glogau Laboratories, Inc., now known as Retrac, Inc., Ronald M. Carter, Sr. (Carter), and Larry K. Hiland appeal from judgments of conviction entered by the district court1 following a two-month jury trial. The convictions resulted from the manufacture and distribution of E-Ferol Aqueous Solution (E-Ferol), a pharmaceutical product administered intravenously to premature infants. Each of the appellants was convicted on one count of conspiracy to commit mail and wire fraud, and to violate the Federal Food, Drug, and Cosmetic Act (FDCA), in violation of 18 U.S.C. Sec. 371; six counts of introducing a new drug not approved by the Food and Drug Administration (FDA) into interstate commerce with the intent to defraud or mislead, in violation of 21 U.S.C. Secs. 331(d), 333(a)(2);2 and six counts of introducing a misbranded drug into interstate commerce with the intent to defraud or mislead, in violation of 21 U.S.C. Secs. 331(a), 333(a)(2). Hiland was also convicted on five counts of committing mail fraud, in violation of 18 U.S.C. Sec. 1341. Carter and Carter-Glogau were acquitted on these counts. All of the appellants were acquitted on seven counts of committing wire fraud, in violation of 18 U.S.C. Sec. 1343. 2 The other two defendants, O'Neal, Jones and Feldman, Inc. (OJF), now known as O'Neal, Inc., and James B. Madison, entered guilty pleas pursuant to plea agreements. On the first day of trial, OJF pled guilty to one count of conspiracy, four counts of mail fraud, and twelve FDCA felony counts.3 Midway through the trial, Madison pled guilty to two counts of wire fraud and one FDCA felony count.4 Madison subsequently testified for the government. OJF and Madison have not appealed their convictions or sentences. 3 The appellants allege numerous grounds for reversal of their convictions.5 They join in contending that (1) the jury was not properly instructed on the knowledge required for the FDCA offenses; (2) the district court erred in giving a willful blindness instruction; and (3) the court erred in admitting prejudicial medical testimony regarding the effects E-Ferol had on premature infants. Carter also argues that (1) FDA policy actively led him to believe E-Ferol could be lawfully marketed without a new drug approval; (2) this policy was so vague and indefinite that he lacked fair warning his conduct was illegal; and (3) a statement in the prosecutor's closing argument was improper.6 Hiland also argues that (1) the court's instruction on his theory of defense impermissibly shifted the burden of proof; (2) the court erred in allowing the government to cross-examine him about certain instances prior to E-Ferol in which OJF had marketed drugs without FDA approval; (3) the court had no authority to resubmit the misbranding counts against him to the jury, and doing so was both coercive and a violation of the double jeopardy clause; (4) the mail fraud verdict against him cannot stand because the court failed to poll the jurors individually on that verdict; and (5) the court erred in failing to give a specific unanimity instruction informing the jury that its verdict must be unanimous with respect to each defendant on each count. Carter and Hiland do not challenge their sentences.7 Carter-Glogau challenges the portion of its sentence requiring it to pay $100,000 toward the costs of prosecution.8 We vacate this part of Carter-Glogau's sentence and remand for a redetermination of taxable costs. We affirm all of the convictions. I. 4 Carter-Glogau, located in Glendale, Arizona, was a manufacturer of generic (or "me-too") injectable drugs. Carter was the corporation's president and chief operating officer. OJF, located in Maryland Heights, Missouri, was a distributor of prescription pharmaceutical products, primarily generic drugs. Hiland was OJF's president and Madison was its executive vice-president of operations. Almost all of the injectable drugs distributed by OJF were manufactured by Carter-Glogau. In most cases, the drugs manufactured by Carter-Glogau for OJF were generic copies of innovator (or "benchmark") drugs that were formulated by other companies and approved by the FDA. 5 Carter-Glogau began manufacturing E-Ferol for OJF in the fall of 1983. E-Ferol was a high potency vitamin E solution for intravenous administration to premature infants. It consisted of a type of vitamin E and two types of polysorbates, which are emulsifying agents. Carter-Glogau manufactured and shipped to OJF three commercial lots of E-Ferol, totaling approximately 40,000 vials. OJF distributed approximately 26,000 vials of the product from November 1983 to April 6, 1984, when the FDA requested that shipments of E-Ferol be ceased because of reports linking it to the illness and death of premature infants. OJF initiated a total recall of E-Ferol on April 11, 1984. A. Development of E-Ferol 6 The development of E-Ferol was prompted by the need for an intravenous form of vitamin E to combat retrolental fibroplasia (RLF), a disease that causes impaired vision or permanent blindness in premature infants. Many neonatologists, physicians specializing in the care of premature infants, considered vitamin E to be useful in reducing the incidence and severity of RLF. The two principal forms of vitamin E available to neonatologists in the early 1980's were an oral preparation and an intramuscular injection, both of which were sold as nutritional supplements and not represented as safe and effective for use in premature infants.9 For some years prior to the development of E-Ferol, Carter-Glogau had been manufacturing a vitamin E intramuscular product ("E-Ferol IM") for OJF. This product was labeled as a nutritional supplement and was not approved by the FDA. Although its labeling contained no reference to RLF, E-Ferol IM was used by some neonatologists to treat this disease.10 However, like the oral form of vitamin E, E-Ferol IM had drawbacks that made it difficult to administer to premature infants. 7 In April 1982, one of Carter-Glogau's customers wrote Carter to ask whether an intravenous form of vitamin E could be developed, noting that "[t]here must be a Hell of a market out there." Carter expressed a reluctance to develop such a product. In his responses to the customer's inquiry, he stated that the amount of polysorbates needed "may be detrimental," and pointed out that "fat emulsions for IV use ... are very tricky products and fraught with particular size problems." 8 In August 1982, Madison wrote Carter to see if he could develop for OJF a high potency intravenous form of vitamin E for use in premature infants. He informed Carter that Hoffmann-LaRoche, a large pharmaceutical company, was testing an injectable vitamin E product for the treatment of RLF in an effort to obtain FDA approval of the product. Madison wrote that he was "afraid that when Roche gets their Vitamin E approved, we will lose the business, unless you can come up with something." Madison's letter clearly indicated that the primary purpose of the product he was proposing would be to treat RLF, and stated, "We could always label it for Vitamin E supplementation." Hiland received a copy of this letter. Several weeks later, Madison sent Carter a follow-up letter recommending a dosage level sufficient to alleviate RLF. 9 In his responses to Madison's inquiries, Carter expressed serious safety concerns regarding the development of an intravenous vitamin E product, stating in part: "If we make some attempt to solubilize the Vitamin E and use the wrong proportions and kill a few infants, we'd have some serious problems." Carter was specifically concerned about developing such a product without proper clinical testing. He wrote Madison that: 10 The administration of this product intravenously in neonatals without appropriate clinical work concerning toxicity will undoubtedly lead to an exposure in terms of product liability which neither you nor we may wish to assume. 11 After all, one neonatal death is one too many. 12 Carter suggested to Madison that the best way to proceed would be to wait until Hoffmann-LaRoche came out with the "benchmark" product so that they could then copy its formulation, thereby taking advantage of Hoffman-LaRoche's toxicity studies. This was Carter-Glogau's usual mode of operation. 13 Carter and Madison resumed their dialogue about vitamin E early in the summer of 1983. Notwithstanding the strong safety concerns he had expressed less than a year earlier, Carter went ahead and developed a high potency intravenous vitamin E product (E-Ferol) for OJF. He did so despite knowledge that Hoffmann-LaRoche was still engaged in clinical testing of its intravenous vitamin E product and had not received approval from the FDA to market it. Carter personally made the final decisions as to E-Ferol's formulation, including the type of vitamin E and the types and proportions of polysorbate the product would contain. Carter admitted that at the time he made these decisions, he did not even know what level of polysorbates was safe for injection into premature infants. At no time did Carter do testing or research of any kind to determine whether E-Ferol's formulation would be safe and effective for use in premature infants. Nor did he ever request OJF to do any testing. Carter testified that he instead relied on Madison as the "expert" on E-Ferol, even though Madison had no formal scientific training. 14 In the summer of 1983, Madison requested and received authorization from Hiland to explore the possibility of having Carter-Glogau supply OJF with the high potency vitamin E intravenous product being formulated by Carter. Madison informed Hiland that its primary use would be for the treatment of RLF and that Hoffmann-LaRoche was testing a similar product under FDA guidelines. Hiland subsequently approved the addition of E-Ferol to OJF's product line. Only Hiland had the authority to authorize such an addition. OJF never did any testing to determine whether E-Ferol would be safe and effective for use in premature infants. Nor did Hiland or Madison ever ask Carter-Glogau to perform such testing. B. Labeling and Marketing of E-Ferol 15 In August 1983, Carter and Madison prepared the labeling for E-Ferol. Carter wrote the first draft of the package insert that was to accompany the product. He used the E-Ferol IM label as a model even though he knew the new product would have an intravenous route of administration. The "Indications" section of the insert set forth uses of E-Ferol as a nutritional supplement, but at Madison's request, Carter put a reference to RLF in the insert's "Clinical Pharmacology" section. Carter also accepted Madison's suggestion that the dosage recommendation in the label be the same as the E-Ferol IM dosage that Madison understood was being used by physicians to treat RLF (25 to 50 milligrams), and included that recommended dosage in the draft insert he sent Madison. 16 Madison made revisions to E-Ferol's package insert, including additional references to RLF, all of which he sent to Carter for comments. The reference to RLF in the clinical pharmacology section of the final draft of the insert read as follows: "Reports in the literature indicate that substantial doses of Vitamin E will reduce the severity of retrolental fibroplasia in neonatals, which are administered oxygen because of their low weight, under 1500 grams.* "11 The asterisk referred the reader to the insert's "References" section, in which Madison had placed a list of scientific articles pertaining to the use of vitamin E as a treatment for RLF. There was nothing in the labeling that indicated E-Ferol had never been tested for safety and effectiveness. 17 In a memorandum dated July 20, 1983, Madison advised Hiland that the new intravenous vitamin E product would be used for nutritional purposes and "[f]or Retrolental Fibroplasia (RLF) for which the dose is 25 mg. every day. (We cannot label it for this use--it would make it a New Drug)." Madison also forwarded Hiland an August 8, 1983 memorandum from Samuel Fainberg, OJF's technical and regulatory consultant, in which Fainberg stated, "I do not believe that legally we can make a claim that Vitamin E is effective against Retrolental Fibroplasia if given to infants. This will require a[n] NDA [new drug application] approval for the use of Vitamin E as a drug." On August 15, 1983, Madison sent Hiland a memorandum discussing the labeling for E-Ferol and a marketing plan for the product. In this memorandum, he told Hiland that the package insert made reference to the product's use for RLF. Madison then explained, "We have to be careful how we show the 'Indications' for RLF. See insert; we list it under Clinical Pharmacology." According to Madison's testimony, he included with the memorandum a copy of the draft insert for Hiland to review. Hiland claimed at trial that he did not read E-Ferol's package insert until January 1984. 18 In September 1983, Hiland approved the marketing campaign for E-Ferol, which consisted of a mass mailing of "Dear Doctor" letters accompanied by a brochure with a copy of the package insert on the reverse side. These promotional materials were mailed in late October 1983 and again in January 1984 to approximately one thousand directors of neonatal intensive care units. This group was chosen because they were involved in the treatment of RLF. Nothing in the promotional materials indicated that E-Ferol had never been tested to determine whether it was safe and effective for the treatment of RLF in premature infants. 19 At trial, physicians and pharmacists testified that based on E-Ferol's labeling, they believed the product was being promoted for the treatment of RLF in premature infants. In addition to the references to RLF, the high dosage recommended in the labeling was a clear indication to them that E-Ferol was to be used for RLF because the dosage was well above any possible nutritional needs of premature infants. Pharmacists and physicians also testified that they were led to believe E-Ferol had been tested and proven as safe for use in premature infants, especially because the labeling contained no warnings or suggestions to the contrary and it was extremely unusual to see a product specifically labeled and marketed for use in premature infants. They testified further that they assumed E-Ferol had been approved by the FDA because it was targeted for the treatment of RLF in premature infants and had an intravenous route of administration, which distinguished it from the other single-entity vitamin E products on the market. 20 C. Adverse Reaction Reports and Revision of Labeling 21 During the five months that E-Ferol was on the market, OJF received numerous inquiries about the product and three reports of severe adverse reactions associated with its use. Each of the reports related similar unusual symptoms, and two of them included infant deaths associated with E-Ferol. 22 Inquiries and complaints about OJF products were directed to Madison. In December 1983, he received a telephone call from Dr. David Easa, a neonatologist at Kapiolani Hospital in Honolulu, Hawaii, who reported that two premature infants under his care had developed unusual symptoms after receiving E-Ferol. Madison testified that he immediately advised Hiland of this report. Hiland denied this, claiming that he did not learn of the Hawaii report until after the recall of E-Ferol in April 1984. 23 On January 26, 1984, Dr. Carl Bodenstein, a neonatologist at Sacred Heart Medical Center in Spokane, Washington, telephoned Madison to report that E-Ferol may have caused the deaths of three premature infants and serious illness in a fourth. Bodenstein told Madison that the surviving infant's blood contained excessively high levels of vitamin E. Madison informed Hiland of Bodenstein's call and sent him a memorandum describing the report the next day. 24 Hiland halted the distribution of E-Ferol and took charge of the investigation into the validity of the Spokane report. He instructed Madison to notify Carter, consult with Fainberg, do a literature search on the safety of vitamin E and polysorbates, contact other neonatal units to see if they had experienced similar problems, and obtain more information from Bodenstein. No effort was made to advise hospitals to which E-Ferol had been distributed that OJF had received a report associating the product with the deaths of premature infants. The OJF sales force was instead instructed to tell customers that E-Ferol was unavailable because it was on back order. Madison testified that when he asked Hiland what he should say to hospitals inquiring about the product, Hiland told him not to mention the Spokane report. Hiland denied giving Madison such a directive. Twelve days after the distribution of E-Ferol had been suspended, Hiland made the decision to resume all shipments of the product. 25 The evidence at trial established that Madison's investigation into the Spokane incident was woefully inadequate, even when measured by the limited instructions Hiland had given him. For his part, Hiland knew when he ordered the resumption of shipments that Bodenstein had not in fact been successfully contacted for additional information. Hiland did not ask Madison for a written report of his investigation. Nor did he inquire into the extent of Madison's literature search, or ask him how many hospitals he had contacted. The Spokane report was far and away the most serious adverse reaction report Hiland had ever encountered. Yet, he assigned the investigative tasks to Madison despite knowing that Madison had no medical or other scientific training to evaluate such reports, aside from his experience in the pharmaceutical industry. Five months prior to the Spokane incident, Hiland wrote an evaluation criticizing Madison for jumping to conclusions, reaching conclusions or opinions without giving enough thought and consideration to the overall problem, and working on too many different areas without concluding on any one issue. 26 Carter was also informed by Madison on January 26, 1984 of the Spokane report. A few days later, Madison sent Carter a copy of the same memorandum he had given Hiland regarding the report. From this memorandum, Carter knew that Bodenstein was questioning both E-Ferol's dosage recommendation and its high polysorbate content. Madison informed Carter that OJF had temporarily stopped shipping E-Ferol while the Spokane report was being investigated. Carter did nothing to determine the accuracy of this report, even though it was the most serious adverse reaction report he had ever received, and was precisely the type of incident he had feared when he expressed serious concerns in the summer and fall of 1982 about the potential for infant deaths. Carter testified that he simply forgot the safety concerns he had previously put in writing. In late February, Carter asked Madison what he should do with the third lot of E-Ferol Carter-Glogau was holding. When Madison told him to ship the lot to OJF, Carter did so without asking for any details about OJF's investigation into the Spokane report. 27 On January 26 and 27, 1984, Hiland discussed the Spokane report with John Lemker, an attorney who represented OJF in food and drug matters. After reading E-Ferol's package insert, which he had not previously been asked to review, Lemker advised Hiland that the references to RLF made the product a drug and that the FDA would probably consider it to be a new drug. Lemker further advised that OJF stop shipping E-Ferol and contact experts for an evaluation of the drug. Fainberg also recommended to Hiland that shipments of E-Ferol be ceased. Hiland never informed Lemker and Fainberg of his subsequent decision to resume shipments of E-Ferol with its existing package insert. 28 After his discussions with Lemker and Fainberg, Hiland directed Madison to work with them and Carter to revise E-Ferol's labeling. After seeing one of the proposed insert revisions, Hiland returned it to Madison with a note stating, "This insert really reads as if it's a drug." With Hiland and Carter aware of the changes being made, Madison prepared a revised package insert that deleted all references to RLF, greatly reduced the recommended dosage so it conformed with nutritional dosages, and added a warning that levels of vitamin E in the blood should not exceed a certain amount. The revised labeling was finalized in March 1983, but was never included with any shipments of E-Ferol. Hiland testified that he allowed the shipments to resume before the revised insert was packaged because it had no "safety issues," but rather only "technical changes." 29 In a memorandum dated March 27, 1984, Madison advised Hiland of a third adverse reaction report. This report came from Melanie Sandlin, a pharmacist at the University of Tennessee Hospital, who informed Madison that the hospital had stopped administering E-Ferol because of four premature infant deaths associated with its use. Hiland testified he did not order that shipments of E-Ferol be stopped because he thought the manner in which OJF had received the report was unusual.12 Hiland's only response to the Tennessee report was to write Madison a note asking him to follow up with the hospital and make sure that the pharmacist had received some literature Madison had sent her. 30 Shipments of E-Ferol with the old package insert continued until April 6, 1984, when the FDA contacted OJF and requested that shipments be ceased because of reports associating the product with serious adverse reactions and deaths. Five days later, OJF initiated a total recall of E-Ferol, which resulted in its permanent removal from the market. D. Indictment 31 The grand jury indictment against the appellants and their codefendants was returned on July 9, 1987. Trial commenced before a jury on August 1, 1988 and concluded on September 30, 1988. 32 The mail fraud counts charged in the indictment were based primarily on promotional mailings sent by OJF to hospital neonatal units. The FDCA counts were based on six shipments of E-Ferol from OJF to hospitals after the defendants had received the Spokane adverse reaction report in late January 1984. Two of these shipments were made in February 1984; the other four were made in early April 1984, after OJF had received the adverse reaction report from Tennessee. 33 The FDCA counts charged that E-Ferol was an unapproved "new drug" and "misbranded" under the FDCA, and that the defendants introduced it into interstate commerce with the intent to defraud and mislead. E-Ferol was alleged to have been misbranded in five ways in that its labeling (1) omitted certain material facts; (2) failed to bear adequate directions for use; (3) failed to bear adequate warnings for when its use might be dangerous; (4) failed to bear adequate warnings against unsafe dosage, administration, and application; and (5) recommended and suggested conditions of use under which E-Ferol was dangerous to the health of premature infants.13 The essence of the fraud against neonatologists and other medical professionals alleged by the government was that the defendants intentionally represented E-Ferol as safe and effective for intravenous use in premature infants to treat RLF despite knowing no testing had been done to establish it as safe and effective for such use, and continued to do so after receiving reports associating E-Ferol with severe adverse reactions and deaths. II. A. Due Process 34 Carter argues that his conviction on the new drug counts violated due process because (1) FDA policy actively led him to believe that E-Ferol could be marketed lawfully without a new drug approval, and (2) this same policy was so vague and indefinite as to deprive him of fair warning that his conduct was illegal. Before addressing these arguments, we will set forth relevant provisions of the FDCA and briefly outline the legislative and regulatory background of the FDA policy on which Carter focuses his due process challenges. 35 A list of acts prohibited by the FDCA is set out in 21 U.S.C. Sec. 331. Section 331(d) prohibits "[t]he introduction or delivery for introduction into interstate commerce of any article in violation of section 344 or 355" of title 21. Section 355(a) states in turn that "[n]o person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed pursuant to subsection (b) or (j) of this section is effective with respect to such drug." An article is a drug if it is "intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man." 21 U.S.C. Sec. 321(g)(1)(B). The term "new drug" means "[a]ny drug ... the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof." Sec. 321(p)(1). The penalties for violations of Sec. 331 are contained in 21 U.S.C. Sec. 333. Section 333(a)(1) provides for misdemeanor punishment of "[a]ny person who violates a provision of section 331." Carter was convicted under Sec. 333(a)(2), which makes it a felony to "commit[ ] such a violation with the intent to defraud or mislead." 36 Regulation of the drug industry was first made a part of federal law by the Food and Drugs Act of 1906. That statute did not give the government authority to require manufacturers to obtain FDA approval before introducing a drug into the market. Instead, the government had to initiate legal action to remove a drug from the market if it was adulterated or misbranded. This scheme changed in 1938 with the enactment of the FDCA, which required manufacturers to obtain an approved new drug application (NDA) before marketing a new drug. The NDA had to contain data establishing that the drug was safe for its intended uses. If not rejected by the FDA within a certain period of time, an NDA was automatically deemed approved. Due to a grandfather clause, no approval was required for drugs marketed under the 1906 Act if their conditions of use remained unchanged. 37 The FDCA was amended in 1962 to require manufacturers to demonstrate that a new drug was not only safe, but also effective for its intended uses before it could be marketed. In addition, manufacturers now had to obtain affirmative FDA approval of an NDA. A narrow grandfather clause exempted certain drugs from the new effectiveness requirement. Because this requirement applied retroactively to all drugs for which an approved NDA had been obtained before 1962, the FDA had to evaluate all such products for effectiveness. With respect to prescription drug products, this review became known as the Drug Efficacy Study Implementation (DESI) program. 38 At the time E-Ferol was placed on the market, the FDA's compliance policy regarding the marketing of unapproved drug products covered by the DESI review was set forth in Compliance Policy Guide (CPG) 7132c.02, a publicly available document. CPG 7132c.02 established priorities for regulatory action on these products once final determinations were made as to their effectiveness. Under this CPG, the FDA deferred enforcement action against unapproved drugs marketed after 1962 that were identical, similar, or related to existing pre-1962 drugs of unresolved regulatory status, unless it received significant new information questioning the safety or effectiveness of a drug. [Hereinafter referred to as "ISR policy."] Although technically not covered by CPG 7132c.02, the FDA applied the same compliance policy to drug products that were not included in the DESI review, such as single-entity vitamin E products.14 39 Carter argues that the FDA's ISR policy affirmatively led him to believe that E-Ferol could be lawfully marketed without a new drug approval because it was similar or related to existing pre-1962 vitamin E products of unresolved regulatory status. Even assuming one could have reasonably considered E-Ferol to be similar or related to those products, we find no merit in Carter's argument. The district court allowed Carter to introduce extensive evidence concerning the FDA's policy and his alleged reliance on it, including testimony from Dr. Avrum Mark Novitch, acting FDA Commissioner from September 1983 to July 1984, as well as evidence that there were approximately 5,150 unapproved prescription drugs on the market as of June 1984. The court also instructed the jury on Carter's defense to the new drug counts.15 Carter does not contend that these instructions were inadequate, or that he was not permitted to fully present his defense. Under these circumstances, we can only conclude the jury rejected Carter's assertion that in marketing E-Ferol, he relied on and was misled by the FDA's ISR policy. This conclusion renders unavailing Carter's reliance on United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973) (PICCO ), the principal case upon which he bases his due process argument. In PICCO, the Supreme Court simply held it was error to deny a corporate criminal defendant the opportunity to present evidence that it was affirmatively misled by the responsible government agency into believing its actions were not a violation of statute. Id. at 673-75, 93 S.Ct. at 1816-17; see also Heckler v. Community Health Servs., 467 U.S. 51, 60 n. 12, 104 S.Ct. 2218, 2224 n. 12, 81 L.Ed.2d 42 (1984) (describing PICCO as holding that "criminal defendant may assert as a defense that the [g]overnment led him to believe that its [sic] conduct was legal"). The Ninth Circuit decisions cited by Carter also require a defendant to establish actual reliance on official representations before they can provide grounds for precluding or reversing a conviction. See United States v. Clegg, 846 F.2d 1221, 1224 (9th Cir.1988) (per curiam); United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir.1987). 40 There are additional reasons why Carter's argument must fail, aside from the jury's rejection of his defense. Unlike the agency regulations at issue in PICCO, 411 U.S. at 670-74, 93 S.Ct. at 1814-16, the FDA's ISR policy did not purport to modify existing statutory requirements. The policy in no way suggested that it was lawful under the FDCA to market a new drug without an approved NDA. It simply established a set of enforcement priorities in an effort to best allocate limited FDA resources. Indeed, CPG 7132c.02 was adopted by the FDA after a federal court decision overturned its prior policy of permitting certain classes of new drugs to be marketed without an approved NDA. See Hoffmann-LaRoche, Inc. v. Weinberger, 425 F.Supp. 890, 894 (D.D.C.1975) (holding that this policy contravened "the clear statutory requirement of preclearance mandated by 21 U.S.C. Sec. 355"). CPG 7132c.02 expressly recognized that "all drugs in the DESI review are 'new drugs' under the law," and stated further: 41 It has been decided to reaffirm that all products marketed as drugs under the DESI program are new drugs and therefore require an approved NDA or ANDA [abbreviated new drug application] for marketing. In view of this reaffirmation of this policy, it is necessary that the Agency proceed to remove from the market any current DESI-effective prescription products not subject of an approved NDA or ANDA, and to prevent in the future the marketing of any such unapproved products. 42 CPG 7132c.02 at 1 (April 1, 1981). Finally, we note that even if the ISR policy could somehow have been construed as making it legal to market certain new drugs without an approved NDA, it certainly could not have been read as making such action lawful when done with the intent to defraud or mislead. 43 We reject Carter's vagueness challenge on similar grounds. Carter argues that even if he was not affirmatively misled by the ISR policy, the policy was so vague and indefinite that he lacked adequate notice of the illegality of his conduct.16 Due process requires that "[p]enal statutes must define the criminal offense with sufficient clarity that ordinary people understand what conduct is prohibited." United States v. Ferguson, 776 F.2d 217, 223 (8th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). Vagueness challenges not involving first amendment rights "are to be evaluated in light of the particular facts of each case." United States v. Maull, 806 F.2d 1340, 1344 (8th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987). Carter does not allege the evidence in this case was insufficient to establish that E-Ferol was a new drug and that he acted with the intent to defraud or mislead. And as discussed above, nothing in the ISR policy even remotely suggested that it was lawful to market an unapproved new drug with such an intent. Under these circumstances, the statutory requirement of fraudulent intent strips Carter's vagueness argument of whatever merit it might have in the absence of such a mens rea requirement. See Hygrade Provision Co., Inc. v. Sherman, 266 U.S. 497, 501-03, 45 S.Ct. 141, 142-43, 69 L.Ed. 402 (1925); United States v. Peden, 556 F.2d 278, 280 (5th Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977); see also Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979) (noting Court's long-standing recognition that the constitutionality of a vague standard is "closely related to whether that standard incorporates a requirement of mens rea "). Even assuming the ISR policy made it unclear whether it was legal to market an unapproved new drug that was similar or related to a pre-1962 drug of unresolved regulatory status, we have no difficulty concluding Sec. 333(a)(2) provided Carter with ample warning that it was unlawful to do so with the intent to defraud or mislead.17 44 B. Instructions as to Knowledge Required for FDCA Offenses 45 Carter and Hiland contend that their convictions on the FDCA counts must be reversed because the district court denied their request to instruct the jury that (1) knowledge that E-Ferol was an unapproved "new drug" was an essential element of the new drug offense, and (2) knowledge that E-Ferol was "misbranded" was an essential element of the misbranding offense. The court instructed the jury that the essential elements of the new drug offense were (1) the defendants introduced E-Ferol into interstate commerce; (2) E-Ferol was an unapproved new drug; and (3) the defendants acted with the intent to defraud or mislead. The elements instruction for the misbranding offense was the same except that the court substituted the term "misbranded" for "unapproved new drug." 46 Under Sec. 333(a)(1), neither knowledge nor intent is required for a misdemeanor violation of Sec. 331. United States v. Park, 421 U.S. 658, 668-73, 95 S.Ct. 1903, 1909-12, 44 L.Ed.2d 489 (1975). On its face, the only additional element required by Sec. 333(a)(2) for a felony violation is "the intent to defraud or mislead." Based on the express statutory language, as well as policy considerations embodied in the FDCA, the government argues that Sec. 333(a)(2) does not require knowledge of the facts comprising the underlying misdemeanor violation of Sec. 331. In essence, this argument holds that a Sec. 333(a)(2) violation consists of a completed misdemeanor plus an intent to defraud or mislead that need not be connected to the predicate violation of Sec. 331. The government argues in the alternative that the court's instructions adequately directed the jury to find that the defendants had the knowledge necessary to form the requisite intent to defraud or mislead. 47 As is reflected in numerous mail fraud cases, knowledge of the essential nature of the alleged fraud is a component of the intent to defraud. See, e.g., United States v. Sedovic, 679 F.2d 1233, 1238-39 (8th Cir.1982); United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985); United States v. Pearlstein, 576 F.2d 531, 537 (3d Cir.1978). The only decision directly addressing the meaning of Sec. 333(a)(2)'s intent requirement adheres to this basic principle. See United States v. Industrial Laboratories Co., 456 F.2d 908, 909-11 (10th Cir.1972).18 Given the fraud that the government alleged and sought to prove in the instant case, we think it is quite clear that Carter and Hiland could not have acted with the intent to defraud or mislead absent (1) knowledge that E-Ferol was a "drug" which was not approved by the FDA and had not been established as safe and effective for use in premature infants to treat RLF (i.e., was an unapproved "new drug");19 and (2) knowledge that E-Ferol's labeling contained misrepresentations and misleading omissions (i.e., was "misbranded").20 Thus, we need not decide whether knowledge of the facts constituting the misdemeanor violation of Sec. 331 would be a separate and essential element of a Sec. 333(a)(2) violation in a case where the defendants could have acted with the intent to defraud or mislead without such knowledge. Our inquiry here is whether the court's instructions were adequate to prevent the jury from convicting Carter and Hiland on the FDCA counts without finding that they had the knowledge necessary for the intent required by Sec. 333(a)(2). 48 A district court is afforded broad discretion in choosing the form and language of jury instructions. United States v. Jerde, 841 F.2d 818, 820 (8th Cir.1988). In assessing the adequacy of instructions, we must consider them as a whole. United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3228, 110 L.Ed.2d 675 (1990). Moreover, the jury charge must be viewed in the context of the entire trial. Park, 421 U.S. at 674-75, 95 S.Ct. at 1912-13. In this respect, it is significant that much of the evidence presented at trial was directed at either establishing or refuting that the defendants knew E-Ferol was marketed as a drug, knew it could not be considered as having been established as safe for use in premature infants to treat RLF, and knew its labeling contained misrepresentations and misleading omissions. 49 Although not a model of clarity, we conclude that when viewed as a whole and in the context of the entire trial, the district court's instructions fairly advised the jury that Carter and Hiland could not have acted with the intent to defraud or mislead without knowledge that E-Ferol was an unapproved new drug and misbranded. In accordance with the definition of "drug" under Sec. 321(g)(1)(B), the court instructed the jury that E-Ferol was a drug if it was intended for use in the treatment or prevention of disease, including RLF. The obvious import of this instruction was that whether E-Ferol was a drug depended on the purposes for which the defendants intended it to be used, as evidenced by the product's labeling and marketing. See National Nutritional Foods Ass'n v. Mathews, 557 F.2d 325, 333 (2d Cir.1977) ("The vendors' intent in selling the product to the public is the key element in [Sec. 321(g)(1)(B)'s] definition."). The court instructed the jury that to act with the intent to defraud "means to act with the specific intent to deceive or cheat." Sept. 28 Tr. at 83. In light of the evidence and arguments presented at trial, the jury could not have failed to understand that the intentional deception concerned facts which Carter and Hiland knowingly misrepresented to or concealed from medical professionals. Cf. United States v. Huckaby, 698 F.2d 915, 919 (8th Cir.1982) (allegation in indictment that defendant acted with intent to defraud implied defendant "knew what she was concealing"), cert. denied, 460 U.S. 1070, 103 S.Ct. 1526, 75 L.Ed.2d 948 (1983). The same connection between intent and knowledge was communicated to the jury by the court's instruction that to act with the intent to mislead "means to act intentionally and to omit information from a statement, and thereby cause a portion of such statement to be misleading, or to intentionally conceal material facts and thereby create a false impression by such statement." Sept. 28 Tr. at 83. The misbranding charge in the indictment, which was read to the jury, specifically alleged that the defendants knew of the material facts they failed to reveal in E-Ferol's labeling. The court instructed the jury that as to the misbranding counts, Carter and Carter-Glogau "contend that they did not have knowledge of the information that was allegedly omitted from the product." Id. at 86. The court also informed the jury of Hiland's defense that he did not know E-Ferol was a new drug and misbranded. In addition, the court gave instructions on specific intent, stating that if a defendant believed he was acting properly with respect to the events alleged in the indictment, even if mistaken in that belief, he could not have formulated the specific intent to violate the law.21 Finally, the guilty verdict against Carter and Hiland on the conspiracy count is a clear indication the jury did find that both of them knowingly misrepresented E-Ferol as safe and effective for intravenous use in premature infants to treat RLF. C. Willful Blindness Instruction 50 Both Carter and Hiland allege that the district court committed reversible error in giving a willful blindness instruction.22 They contend that the instruction permitted the jury to employ a negligence standard and was not supported by the evidence. We disagree. 51 In essence, a willful blindness instruction "allows the jury to impute knowledge to [the defendant] of what should be obvious to him, if it found, beyond a reasonable doubt, a conscious purpose to avoid enlightment." United States v. Zimmerman, 832 F.2d 454, 458 (8th Cir.1987) (per curiam). As the First Circuit has noted, "[t]he purpose of the willful blindness theory is to impose criminal liability on people who, recognizing the likelihood of wrongdoing, nonetheless consciously refuse to take basic investigatory steps." United States v. Rothrock, 806 F.2d 318, 323 (1st Cir.1986). 52 We find no reversible error in the language used to instruct the jury on willful blindness. In United States v. Massa, 740 F.2d 629, 642-43 (8th Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985), we approved the giving of a willful blindness instruction essentially identical to the one given in this case. Viewed in the context of the entire jury charge, which included instructions on acts done knowingly, specific intent, and intent to defraud, the district court's willful blindness instruction did not permit the jury to convict the defendants on the basis of negligent conduct. We reject Carter's assertion that such an instruction must specifically state that a defendant has knowledge of a certain fact only if he is aware of a high probability of its existence, unless he actually believes that it does not exist. Although the Second Circuit has taken this position, see United States v. Feroz, 848 F.2d 359, 360 (2d Cir.1988) (per curiam), our decisions have not required the inclusion of such language in a willful blindness instruction. See Massa, 740 F.2d at 642-43; United States v. Graham, 739 F.2d 351, 352-53 (8th Cir.1984) (per curiam); United States v. Kershman, 555 F.2d 198, 200-01 (8th Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977); accord United States v. DeVeau, 734 F.2d 1023, 1028 (5th Cir.1984) (per curiam) (rejecting argument that willful blindness instruction must include "high probability" language), cert. denied sub nom. Drobny v. United States, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). In any event, Carter neither requested the additional language nor objected to its absence, and its omission certainly does not constitute plain error. See United States v. Martin, 815 F.2d 818, 824 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987). 53 Even if adequately worded, "[a] conscious avoidance instruction is 'properly given only when the defendant claims a lack of guilty knowledge and there are facts [in] evidence that support an inference of deliberate ignorance.' " United States v. White, 794 F.2d 367, 371 (8th Cir.1986) (quoting United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 76 (1985)). The first requirement is clearly met here because both Carter and Hiland claimed that they did not know E-Ferol was dangerous and falsely labeled. The point of contention is whether there was enough evidence to justify the instruction. If the evidence in a case points solely to either actual knowledge or no knowledge of the facts in question, a willful blindness instruction should not be given. See United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 487 U.S. 1222, 108 S.Ct. 2880, 101 L.Ed.2d 915, 488 U.S. 838, 109 S.Ct. 103, 102 L.Ed.2d 778 (1988); United States v. Manriquez Arbizo, 833 F.2d 244, 248-49 (10th Cir.1987). However, even where there is evidence of actual knowledge, as is the case here,23 a willful blindness instruction is proper if there is sufficient evidence to support an inference of deliberate ignorance. See United States v. Perez-Padilla, 846 F.2d 1182, 1183 (9th Cir.1988) (per curiam); Manriquez Arbizo, 833 F.2d at 249. We agree with the Seventh Circuit that in reviewing a district court's decision to give a willful blindness instruction, we must review the evidence and any reasonable inference from that evidence in the light most favorable to the government. United States v. Herrero, 893 F.2d 1512, 1538 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2623, 110 L.Ed.2d 644 (1990). 54 Applying this standard, we find there was sufficient evidence of deliberate ignorance on the part of both Carter and Hiland to support the willful blindness instruction. Although the evidence in this regard was not overwhelming, taken as a whole it provided the jury with a reasonable basis for inferring that if Carter and Hiland did not actually know E-Ferol was dangerous and falsely labeled, it was only because they consciously chose to be ignorant of those facts. This inference could reasonably be drawn from the evidence concerning their responses to serious indications that E-Ferol was associated with the illness and deaths of premature infants. See supra at 1122-23. Despite the prescient warnings he wrote in 1982, Carter personally took no action to investigate the Spokane adverse reaction report of January 1984, and did not inquire into the details of Madison's investigation. Instead, he went ahead and shipped the third and final lot of E-Ferol to OJF. Three weeks before the Spokane incident, Madison sent Carter a drug problem report from a pharmacist expressing concerns about the large amount of polysorbates in E-Ferol. And in March 1984, Madison sent Carter another drug problem report from a pharmacist concerning the fact that E-Ferol's labeling could be construed as representing the product to be appropriate for the treatment of RLF in premature infants without any studies to support this claim. As with the Spokane incident, Carter also did not follow up on either of these reports because he did not think a response from him was necessary. Yet, at trial he admitted the FDA had repeatedly told him prior to E-Ferol that as the manufacturer, he was responsible for products custom made for a specific distributor. 55 Hiland's responses to adverse reaction reports likewise provided a basis for inferring deliberate ignorance. There was evidence that he entrusted the entire investigation into the Spokane report to Madison knowing that Madison lacked the capacity to determine the report's validity. There was also evidence that Hiland had previously been informed of the adverse reaction report from Hawaii. Several weeks after the Spokane report, Hiland was told by OJF's national sales manager, albeit with doubts about the physician's competency, that Dr. Bodenstein was continuing to hold E-Ferol responsible for the infants' deaths. Most significant is the fact that Hiland took no action to investigate the March 1984 report of four infant deaths in Tennessee, which also shed light on his attitude in January 1984. Four of the six FDCA counts were based on shipments of E-Ferol made after OJF received the Tennessee report. 56 Finally, we think it is relevant that neither Carter nor Hiland ever consulted the FDA to find out if it was necessary to test E-Ferol for safety.24 Although Carter and Hiland were under no legal duty to make such an inquiry, we believe their decision not to consult the FDA constituted at least some evidence of deliberate ignorance. See United States v. Vesterso, 828 F.2d 1234, 1244-45 (8th Cir.1987). D. Burden of Proof 57 Hiland sought a theory of defense instruction informing the jury that it must acquit him on the FDCA counts if the government failed to prove beyond a reasonable doubt that he knew E-Ferol was an unapproved new drug or a misbranded drug. The district court instead instructed the jury that if Hiland "did not know that E-Ferol was an unapproved new drug or a misbranded drug, and had no intent to defraud or mislead, you must find Mr. Hiland not guilty of the charges." Sept. 28 Tr. at 81-82 (emphasis added).25 Hiland argues that reversal of his FDCA convictions is required because the court's alteration of his theory of defense instruction impermissibly shifted the burden of proof to him and permitted acquittal only if the jury found he lacked both knowledge and intent. We find no merit in these arguments. 58 First, the challenged instruction itself did not "speak directly or indirectly to burden of proof." Nelson v. Solem, 640 F.2d 133, 136 (8th Cir.1981). It did not state that Hiland had to disprove the presence of knowledge and intent in order to be acquitted. Second, any possibility that the jury would apply the instruction in this way was negated by other instructions which specifically addressed the burden of proof. The court instructed the jury that the government had the burden of proving the defendant's guilt beyond a reasonable doubt, bore this burden throughout the trial, and was required to prove each element of an offense beyond a reasonable doubt. The court also instructed the jury that the defendant was presumed innocent until proven guilty and never had the burden of calling any witness or producing any evidence. Viewed in light of the jury charge as a whole, the district court's instruction regarding Hiland's theory of defense clearly did not shift the burden of proof to him to prove his innocence.26 59 Contrary to Hiland's assertion, the instruction did not necessarily imply its converse; that is, it did not tell the jury that it should convict Hiland on the FDCA counts if he had the requisite knowledge but lacked the intent to defraud or mislead, and vice versa. To the extent such confusion could have been engendered by the court's use of the conjunctive, it was cured by the instructions as a whole, which adequately apprised the jury of the need to find both the intent to defraud or mislead and the knowledge necessary for that intent before it could convict Hiland. E. Cross-Examination of Hiland 60 Hiland alleges that the district court erred in allowing the government to cross-examine him regarding certain instances prior to E-Ferol in which OJF had marketed drugs without FDA approval. Given the district court's broad discretion in this area, we find that the challenged cross-examination was permissible under Fed.R.Evid. 611(b), which provides that "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness."27 61 The principles guiding our review are well settled. "If a defendant takes the stand, his credibility is placed in issue, and the [g]overnment is entitled to attack it by cross-examination." United States v. Wallace, 722 F.2d 415, 416 (8th Cir.1983). "Cross-examination may embrace any matter germane to direct examination, qualifying or destroying it, or tending to elucidate, modify, explain, contradict or rebut testimony given by the witness." Roberts v. Hollocher, 664 F.2d 200, 203 (8th Cir.1981). "The permissible extent of cross-examination is a matter within the broad discretion of the district court." United States v. Schepp, 746 F.2d 406, 410 (8th Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1190, 84 L.Ed.2d 336 (1985). Accordingly, we will reverse the court's ruling only for abuse of discretion. United States v. Brown, 794 F.2d 365, 366 (8th Cir.1986). 62 On direct examination, Hiland testified that he had very little involvement with regulatory matters at OJF and had little or no knowledge of when a product required FDA approval as a new drug. He repeatedly insisted that for these reasons he had relied on Madison's determination of whether FDA approval was needed for E-Ferol. The district court ruled that by so testifying, Hiland had opened the door to cross-examination about his participation in incidents prior to E-Ferol that tended to contradict his professed ignorance of when FDA approval for a product was necessary. The court accordingly permitted the government to question Hiland regarding the sale of Dalalone P.R., a combination steroid drug that was the subject of an FDA seizure action in 1981 because OJF had marketed it without approval. This part of the cross-examination centered on two documents. The first was a letter written by Hiland to his superior at OJF's parent company recommending that OJF defend the continued distribution of Dalalone P.R. by arguing that it was not a new drug. The second was a 1981 memorandum, written by Madison at Hiland's request, which discussed the history of Dalalone P.R. and stated that the company was taking a risk by marketing it without a new drug approval. The court also allowed the government to question Hiland about a 1981 memorandum regarding a telephone conversation he had with a manufacturer of some of OJF's injectable products. The conversation concerned the fact that some of the products did not have new drug approval. In the memorandum, Hiland described the potential loss to OJF if the FDA caused the manufacturer to stop making these products, and wrote that he doubted the manufacturer would succeed with its argument that the products did not require new drug approval.28 63 The line of inquiry permitted by the court was relevant to showing that Hiland was better informed than he claimed to be regarding OJF's regulatory affairs in general, and in particular about when a product would or might be considered a new drug by the FDA. The Dalalone P.R. example had special relevance in that it tended to show Hiland was aware prior to E-Ferol that a product comprised of two established and well-known ingredients might very well constitute a new drug.29 We do not accept Hiland's contention that his involvement in the controversy with the FDA over Dalalone P.R. was irrelevant since this product was not a single-entity vitamin product like E-Ferol. Despite this and related arguments, we cannot say that the district court abused its discretion in determining that the challenged cross-examination was within the scope of direct examination, relevant, and not unfairly prejudicial.30F. Prejudicial Medical Testimony 64 Both Carter and Hiland contend that the district court abused its discretion in admitting the testimony of several physicians and pharmacists regarding the effects E-Ferol had on premature infants. The challenged testimony consisted primarily of descriptions of the unusual pattern of symptoms observed in premature infants who had received the drug, and concerned adverse reaction episodes of which Carter and Hiland were not actually aware prior to the recall of E-Ferol.31 Carter and Hiland argue that (1) the court should have required the government to accept a stipulation they offered because it would have eliminated any need for the testimony, and (2) the testimony was inadmissible under Fed.R.Evid. 403 due to its limited relevance and prejudicial effect. Neither argument persuades us that the court committed error. 65 The challenged medical testimony helped to show that E-Ferol was dangerous when administered in accordance with dosage directions and other recommendations for use in its labeling. It was therefore plainly relevant to establishing that E-Ferol was both misbranded and a new drug, essential elements of the government's case.32 66 At trial, the defendants offered to stipulate "that at some time after April 9, 1984 it was determined by others that E-Ferol Aqueous Solution was dangerous to health in certain cases." The proposed stipulation said nothing about whether E-Ferol was dangerous when used as labeled. It is well established in this circuit that as a general rule, the government is not bound by a defendant's offer to stipulate. United States v. Bass, 794 F.2d 1305, 1312 n. 6 (8th Cir.), cert. denied sub nom. Price v. United States, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Ellison, 793 F.2d 942, 949 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986); United States v. Peltier, 585 F.2d 314, 324 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). The rationale for this rule is "to enable the government to present to the jury a complete picture of the events constituting the crime charged. 'To substitute for such a picture a naked admission might ... rob the evidence of much of its fair and legitimate weight.' " Ellison, 793 F.2d at 949 (quoting Peltier, 585 F.2d at 324). Nevertheless, the general rule is subject to the strictures of Rule 403. Id. Thus, "a proper [R]ule 403 balancing analysis will incorporate some assessment of the need for the allegedly prejudicial information in light of a valid stipulation." Bass, 794 F.2d at 1312 n. 6. A critical aspect of this assessment is whether the challenged evidence is probative of issues other than the one to which the defendants offered to stipulate. See id. In the instant case, acceptance of the defendants' proposed stipulation would not have satisfied the government's burden of proving that E-Ferol was not only dangerous, but dangerous when used as recommended in its labeling. Given this deficiency in the proposed stipulation and the rationale underlying the general rule regarding such offers, we conclude that the district court did not err in refusing to exclude the challenged medical testimony "merely because of [the defendants'] offer to stipulate." Peltier, 585 F.2d at 325. 67 As relevant evidence, this testimony was inherently prejudicial in the sense of being detrimental to the defendants' case. Rule 403 is not directed at this type of prejudice, but rather protects only against unfair prejudice. See Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Evidence is unfairly prejudicial to the extent it creates " 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.' " United States v. Weddell, 890 F.2d 106, 108 (8th Cir.1989) (quoting Rule 403 advisory committee's note). Testimony regarding the effects of E-Ferol undoubtedly presented the potential for such prejudice. However, Rule 403 permits the exclusion of evidence only if its probative value is "substantially outweighed" by the danger of unfair prejudice. United States v. Abodeely, 801 F.2d 1020, 1025 (8th Cir.1986). In reviewing a discretionary decision not to exclude evidence under Rule 403, "we give great deference to the trial judge who saw and heard the evidence." Peltier, 585 F.2d at 321. We will not reverse that decision absent a clear and prejudicial abuse of discretion. Abodeely, 801 F.2d at 1026. 68 Although Carter and Hiland make much of references in the medical testimony to "oozing," "bleeding," and abdominal "bloating," the record reveals that such terminology was used in only a few isolated instances. For the most part, the witnesses in question limited themselves to strictly clinical terms when describing the symptoms they had observed, and their testimony did not unduly emphasize E-Ferol's association with certain infant deaths. We are satisfied from the record that the medical testimony was carefully controlled and not presented in an inflammatory manner. We note also that to a certain extent, some of the challenged testimony was intertwined with other relevant testimony of the witnesses, such as their explanations of the purposes for which they had used E-Ferol based on its labeling. The fact that E-Ferol had been associated with infant deaths was disclosed to the jury by other properly admitted evidence. Indeed, it was Carter who introduced into evidence several documents containing a statement that E-Ferol had been associated with the deaths of thirty-eight infants. Finally, we are impressed by the diligent efforts of the district court to limit the potential for unfair prejudice. During the trial, the court twice cautioned the jury that the defendants were not being tried for harming or causing the death of infants. The court reiterated this same point in no uncertain terms in its final instructions to the jury.33 In sum, after a careful review of the challenged medical testimony, we cannot say the district court committed a clear abuse of discretion in determining that the danger of unfair prejudice presented by this testimony did not substantially outweigh its probative value. G. Prosecutorial Misconduct 69 Carter contends that the following statement made at the conclusion of the prosecution's closing argument was improper and requires reversal: 70 In sum, you've heard how Hoffman[n-]LaRoche was testing their product. They were doing animal studies and they were doing clinical studies. I submit that these defendants were testing their product too, on the babies in Spokane, Tennessee, in Cincinnati, and other places. 71 Although the final sentence of this statement was improper, defense counsel failed to object. Our review is therefore limited to determining whether the prosecutor's remark amounted to plain error. See Fed.R.Crim.P. 52(b); United States v. Skarda, 845 F.2d 1508, 1511 (8th Cir.1988). Under this standard, reversal is warranted only if the remark was "such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). As noted previously, the district court emphasized to the jury that the defendants were not on trial for injuring infants. The court also instructed the jury that the attorneys' closing arguments were not evidence. Moreover, the evidence admitted against Carter was substantial and persuasive. We are satisfied that, viewed in the context of the entire trial, the prosecutor's improper remark did not contribute to a miscarriage of justice. 72 H. Supplemental Charge, Jury Poll, and Unanimity of Verdict 73 The indictment alleged that E-Ferol had been misbranded in five different ways. The first was that the labeling for E-Ferol was "false and misleading" because it failed to reveal one or more of the "material facts" identified in the indictment.34 The jury instructions characterized these five grounds as options to be considered individually. The jury was told that, as to each defendant and each misbranding count, it had to specify at least one of the five options in order to return a guilty verdict. However, the final misbranding instructions described the first option as simply "false and misleading in any particular,"35 and did not require the jury to indicate which of the material facts listed in the indictment had not been revealed. During discussions with counsel while the jury deliberated, the district court recognized that a misbranding verdict specifying option one might not be sufficiently precise to ensure unanimity as to the way in which E-Ferol had been misbranded. Accordingly, the court informed counsel that it would direct the jury to deliberate further if such a verdict were returned. The jury subsequently returned with a misbranding verdict against Hiland that specified only option one.36 The court told the jury that its verdict was ambiguous due to the wording of the instructions, and directed it to retire to the jury room to see if it could unanimously agree on another misbranding option as to Hiland. The jury returned shortly thereafter with a verdict specifying another option.37 74 Before giving its supplemental charge on the misbranding counts against Hiland, the court read the other verdicts to the jury and asked it as a body whether the various verdicts were correct. The jury confirmed them by silence. After the second misbranding verdict was returned, the court polled the jurors individually but inadvertently omitted the mail fraud verdict against Hiland. Earlier, the court had neglected to augment its general unanimity instruction with the specific unanimity instruction requested by Hiland, which would have told the jury that its verdict must be unanimous with respect to each defendant on each count. 75 Hiland contends that the jury's second verdict on the misbranding counts cannot stand. He suggests that the district court had no authority to resubmit these counts to the jury and argues that doing so was both coercive and a violation of the fifth amendment's prohibition against double jeopardy. We are not persuaded by these arguments. 76 Under the sixth amendment, a federal criminal defendant has a non-waivable right to a unanimous jury verdict. United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 191, 98 L.Ed.2d 143 (1987). The district court was justified in its concern that the jury's first misbranding verdict against Hiland might not satisfy this constitutional requirement because of the possibility that the jurors did not agree on the particular way in which E-Ferol had been misbranded. See id. (sixth amendment requires that jurors be in "substantial agreement as to the nature of the defendant's guilty act"); McKoy v. North Carolina, --- U.S. ----, 110 S.Ct. 1227, 1237 n. 5, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring) (must be "unanimous agreement as to the nature of the defendant's violation, not simply the fact that a violation has occurred"). Indeed, Hiland asserts that the jury's first misbranding verdict was defective for this very reason.38 Nevertheless, Hiland suggests that the court had no authority to resubmit the misbranding counts to the jury in the absence of a jury poll indicating that the first verdict was not unanimous. A federal district court "has authority to require redeliberation in cases in which there is uncertainty, contingency, or ambiguity regarding the jury's verdict." United States v. Rastelli, 870 F.2d 822, 835 (2d Cir.), cert. denied sub nom. Agar v. United States, --- U.S. ----, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). Rule 31(d) of the Federal Rules of Criminal Procedure expressly authorizes the court to direct the jury to retire for further deliberation if a poll shows a lack of unanimity.39 However, "the language of [R]ule 31(d) does not delimit the only circumstance in which a trial judge may require redeliberation." Rastelli, 870 F.2d at 835; see also United States v. Mears, 614 F.2d 1175, 1179 (8th Cir.) (where verdict of "not guilty" read in open court and jury foreman then told court verdict was incorrectly signed, court did not err in directing jury to resume deliberations), cert. denied, 446 U.S. 945, 100 S.Ct. 2174, 64 L.Ed.2d 801 (1980). Furthermore, in all cases not provided for by rule, the district court may proceed "in any manner not inconsistent with" the Federal Rules or local rules. Fed.R.Crim.P. 57; see also United States v. Jerry, 487 F.2d 600, 604 (3d Cir.1973) ("[n]othing in the Rules limits the power of the court to correct mistakes made in its handling of a case so long as the court's jurisdiction continues"). We conclude that the district court had authority to direct the jury to deliberate further on the misbranding counts against Hiland even though the only ambiguity in the jury's first verdict was due to the court's instructions. 77 "Any criminal defendant ... being tried by a jury is entitled to the uncoerced verdict of that body." Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 552, 98 L.Ed.2d 568 (1988). Hiland argues that the second misbranding verdict was coerced because the jury received the court's supplemental charge late on a Friday afternoon after deliberating for two days, and then returned with its second verdict approximately ten minutes after receiving the charge. The fact that the jury returned so soon with its verdict "suggests the possibility of coercion." Id. at 240, 108 S.Ct. at 552; see also United States v. Webb, 816 F.2d 1263, 1267 (8th Cir.1987) (finding of coercive effect "supported by" fact that verdict returned only fifteen minutes after Allen charge). However, we are certainly not required to draw such an inference, as is shown by our decisions addressing supplemental Allen charges.40 See United States v. Dawkins, 562 F.2d 567, 570 n. 4 (8th Cir.1977) (per curiam) (citing cases). We consider it significant that defense counsel did not object to the supplemental charge.41 "[S]uch an omission indicates that the potential for coercion argued now was not apparent to one on the spot." Lowenfield, 484 U.S. at 240, 108 S.Ct. at 552; see also Amos v. United States, 496 F.2d 1269, 1273 (8th Cir.) (lack of objection by defense counsel to court's procedures in polling jury and directing jury to resume deliberations "permits an inference that the procedures utilized did not appear coercive at the time"), cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 140 (1974). The fact that the charge was not directed at jurors holding a minority view, if indeed there were any, further reduces the likelihood of coercion. See Lowenfield, 484 U.S. at 237-38, 108 S.Ct. at 550-51; United States v. Porter, 881 F.2d 878, 889 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). In instructing the jurors to resume deliberation on the misbranding counts against Hiland, the district court stressed that they were free to find no other misbranding option applied to Hiland. Having considered the district court's supplemental charge " 'in its context and under all the circumstances,' " Lowenfield, 484 U.S. at 237, 108 S.Ct. at 550 (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965) (per curiam)), we find that the jury's second misbranding verdict was not coerced. 78 Hiland argues that the double jeopardy clause prohibited resubmission of the misbranding counts to the jury because by specifying only option one, the jury's first verdict implicitly acquitted him of misbranding on the basis of any of the other four options. Hiland relies on Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957), which held that a verdict of guilty on a lesser included offense constituted an "implicit acquittal" of the defendant on the greater offense charged, barring retrial on that offense. We find Green inapposite because the misbranding options were equivalent in that they were simply presented as the various ways in which E-Ferol was alleged to have been misbranded. The jury was instructed that it need agree on only one of the options in order to find a defendant guilty of misbranding. It was not instructed that it had to indicate each of the options on which it unanimously agreed. Thus, there is no reason to conclude that the jury's first misbranding verdict necessarily reflected a refusal to find Hiland guilty of that offense on the basis of any of the options not designated by the jury. Furthermore, a verdict is not final for purposes of double jeopardy simply because it is announced by the jury foreman in open court. United States v. Love, 597 F.2d 81, 84-85 (6th Cir.1979). If not accepted by the trial court, a verdict is not final for purposes of double jeopardy. See United States v. Chinchic, 655 F.2d 547, 550 (4th Cir.1981). The record here establishes that the district court expressly refrained from accepting the verdicts until after the jury had returned from its redeliberation on the misbranding counts against Hiland. 79 Hiland contends that the district court's failure to poll the jurors individually on the mail fraud verdict against him requires automatic reversal of that verdict. The right to poll the jury is provided by Fed.R.Crim.P. 31(d), but is not of constitutional dimension. Government of the Virgin Islands v. Hercules, 875 F.2d 414, 417 (3d Cir.1989); United States v. Carter, 772 F.2d 66, 67 (4th Cir.1985); United States v. Beldin, 737 F.2d 450, 455 (5th Cir.), cert. denied, 469 U.S. 1075, 105 S.Ct. 572, 83 L.Ed.2d 512 (1984); United States v. Shepherd, 576 F.2d 719, 724 (7th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 155 (1978); Jaca Hernandez v. Delgado, 375 F.2d 584, 585 (1st Cir.1967). Denial of a timely request for a poll under Rule 31(d) is reversible error. Hercules, 875 F.2d at 417 n. 5, 419; Shepherd, 576 F.2d at 724. It is also reversible error not to allow the defendant a reasonable opportunity to make such a request. Miranda v. United States, 255 F.2d 9, 18 (1st Cir.1958). On the other hand, it is well settled that a poll under Rule 31(d) is not required unless requested and is waived if the request is not timely. Beldin, 737 F.2d at 455; United States v. Hockridge, 573 F.2d 752, 759 n. 19 (2d Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 112 (1978); United States v. Marr, 428 F.2d 614, 615 (7th Cir.1970); Mull v. United States, 402 F.2d 571, 574 (9th Cir.1968), cert. denied, 393 U.S. 1107, 89 S.Ct. 917, 21 L.Ed.2d 804 (1969); United States v. Neal, 365 F.2d 188, 190 (6th Cir.1966); Miranda, 255 F.2d at 17. Silence constitutes a waiver if adequate time is allowed for a request. Beldin, 737 F.2d at 455. 80 Hiland asserts that he specifically requested a poll, citing an exchange which took place after the court had asked the jury collectively whether its verdicts were correct and directed it to retire for further deliberation on the misbranding counts against Hiland: 81 A VOICE [presumably Hiland's counsel]: Your Honor, can I ask a question? 82 THE COURT: Yes. 83 A VOICE: Is that the way the Court customarily polls the jury-- 84 THE COURT: No, I still think the formal polling individually of the jury, but with so many different things here, we'd have to poll it 25 times 3, and that was too much, so I read that at first and I'm going to ask them to poll over again when they come back, individually to respond. 85 Sept. 30 Tr. at 9. Counsel's question can hardly be characterized as a request for a poll. More importantly, when the court later inadvertently omitted the mail fraud verdict against Hiland in polling each juror individually, Hiland neither objected nor brought the oversight to the court's attention. The record reveals that Hiland had ample time to do so. Although not at fault for the court's oversight, "counsel failed to take reasonable, available steps" to remedy the situation. Beldin, 737 F.2d at 455. "The time to protest has passed." Id. We hold that Hiland waived his right to a poll on the mail fraud verdict.42 86 Hiland proposed a specific instruction informing the jury that its verdict must be unanimous with respect to each defendant on each count. The district court expressed willingness to give this instruction in addition to its general unanimity instruction, but ultimately failed to do so despite several requests and a timely objection by Hiland.43 Hiland argues that the court's failure to give the requested specific unanimity instruction constitutes reversible error. Because the court did give such an instruction on the misbranding counts and in its supplemental charge to the jury, this allegation of error has no merit with respect to the second misbranding verdict. 87 It is well settled that a general unanimity instruction is usually sufficient to protect a defendant's sixth amendment right to a unanimous verdict. See, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1572 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); United States v. Phillips, 869 F.2d 1361, 1366-67 (10th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989); United States v. Murray, 618 F.2d 892, 898 (2d Cir.1980). As an exception to this rule, courts have held that a specific unanimity instruction is required in cases where there is a genuine risk of jury confusion. See, e.g., United States v. Bryan, 868 F.2d 1032, 1039 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 167, 107 L.Ed.2d 124 (1989); United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir.1988), cert. denied sub nom. Downing v. United States, --- U.S. ----, 110 S.Ct. 732, 107 L.Ed.2d 751 (1990).44 The only danger of confusion alleged by Hiland is that the jury may have believed it only needed to agree unanimously on a general verdict, but not on the individual counts. Citing no case law that supports his position, Hiland urges us to hold that a specific unanimity instruction such as he proposed must be given whenever it is requested in a case involving multiple defendants and counts. Although such a practice is preferable, we are not prepared to say that reversal is required whenever it is not followed. As we have emphasized in a related context, "[t]he mere fact ... that an instruction could conceivably permit a jury to reach a non-unanimous verdict is not sufficient to require reversal when the jury has been instructed that it must reach a unanimous verdict." Berrisford v. Wood, 826 F.2d 747, 754 (8th Cir.1987) (quoting Fryer v. Nix, 775 F.2d 979, 992 (8th Cir.1985)), cert. denied, 484 U.S. 1016, 108 S.Ct. 722, 98 L.Ed.2d 671 (1988). 88 Other courts have recognized a number of factors that may result in a genuine danger of jury confusion, necessitating a specific unanimity instruction. See, e.g., Duncan, 850 F.2d at 1114. The only one of these factors that Hiland suggests is present here is factual complexity of the evidence.45 The evidence in this case can indeed be characterized as complex, if only because of its volume. However, Hiland does not attempt to explain how this complexity translated into a genuine risk that the jury would be confused as to whether it had to agree unanimously with respect to each defendant on each count, or only on an overall verdict. We are therefore not inclined to hold that such a risk existed in this case. 89 We need not definitively decide this issue, however, because if the district court erred in failing to give Hiland's proposed unanimity instruction, the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Before polling the jurors individually, the court told them that it was doing so "[b]ecause a verdict must be the verdict of all the jury and on [sic] each individual juror." Sept. 30 Tr. at 10. The poll showed that the verdicts against Hiland were unanimous on the conspiracy and new drug counts, curing the alleged error as to those counts. See United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1351 (3d Cir.1972) (even if failure to instruct jury that unanimity required was plain error, error was harmless because subsequent jury poll indicated verdict was unanimous), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); cf. United States v. Flaherty, 668 F.2d 566, 600 (1st Cir.1981) (use of phrase "collective judgment" in reasonable doubt instruction not reversible error in light of other instructions and jury poll which confirmed verdict was unanimous). Additional circumstances support this conclusion, and convince us that the verdict against Hiland on the mail fraud counts was also unanimous. The court instructed the jurors that it was their duty to "give separate, personal consideration to the case of each individual defendant," and specifically told them that "[t]he fact that you may find one of the accused guilty or not guilty of one charge should not control your verdict as to another defendant or another charge." Sept. 28 Tr. at 15. The jury was given a separate verdict form for each defendant with a blank line to mark "guilty" or "not guilty" as to each count. That the jury gave individual consideration to Hiland with respect to the mail fraud counts is further evidenced by its acquittal of the other defendants on those charges. See Shepherd, 576 F.2d at 725 (jury "sophistication" evidenced by acquittal of one defendant and conviction of others reduced likelihood of non-unanimity). Moreover, when questioning the jury as a whole, the court indicated it would consider the jurors' silence as affirming that they had all found each defendant guilty as stated in the verdicts.46 After the jury returned from its final deliberation, the court informed the jurors that it would repeat these verdicts before polling them individually. Notwithstanding the court's ensuing failure to repeat the mail fraud verdict against Hiland, we consider it highly unlikely that the jurors did not think they were also confirming this verdict by their individual answers.47 Under these circumstances, we are satisfied beyond a reasonable doubt that the verdicts against Hiland were unanimous on each count. I. Costs of Prosecution 90 In addition to fining Carter-Glogau the maximum amount permitted by statute, $10,000 on each count for a total of $130,000, the district court ordered the corporation to pay $100,000 toward the costs of prosecution. The court later denied as moot Carter-Glogau's motion to vacate this portion of the sentence. Carter-Glogau contends that the court exceeded its authority to assess costs of prosecution. 91 Under 28 U.S.C. Sec. 1918(b),48 the district court has the discretionary authority to tax the costs of prosecution against the defendant in any non-capital case. United States v. Burchinal, 657 F.2d 985, 997 (8th Cir.), cert. denied, 454 U.S. 1086, 102 S.Ct. 646, 70 L.Ed.2d 622 (1981). Contrary to Carter-Glogau's assertion, Sec. 1918(b) permits the court to assess costs of prosecution in addition to the maximum fine permitted by the statute under which the defendant is convicted, even if that statute does not specifically provide for such an assessment. Id. at 998; see also United States v. Gering, 716 F.2d 615, 626 (9th Cir.1983) (following Burchinal ).49 The court may not, however, assess costs attributable solely to the prosecution of counts on which the defendant was acquitted. United States v. DeBrouse, 652 F.2d 383, 391 (4th Cir.1981); see also United States v. Palmer, 809 F.2d 1504, 1508-09 (11th Cir.1987) (applying 26 U.S.C. Sec. 7203). Nor may the court assess costs associated exclusively with the unsuccessful prosecution of a codefendant. See United States v. Fowler, 794 F.2d 1446, 1450 (9th Cir.1986) (applying Sec. 7203), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987). Generally, the district court's taxation of costs may be set aside only upon a finding of abuse of discretion. United States v. Dougherty, 810 F.2d 763, 773 (8th Cir.1987). 92 Section 1918(b) must be read in conjunction with 28 U.S.C. Sec. 1920, which lists the expenses that may be taxed as costs. Section 1920 applies not only in civil but also criminal cases. United States v. Procario, 361 F.2d 683, 684 (2d Cir.1966) (per curiam). Absent explicit statutory or contractual authorization to the contrary, federal district courts may tax as costs only those expenses listed in Sec. 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). Just as Fed.R.Civ.P. 54(d) does not provide such authorization, id. at 441-45, 107 S.Ct. at 2497-99, we find that the discretion granted by Sec. 1918(b) does not authorize federal district courts to order a criminal defendant to pay costs not enumerated in Sec. 1920. See Gering, 716 F.2d at 626 (taxation of items as costs under Sec. 1918(b) must be authorized by statute); United States v. Pommerening, 500 F.2d 92, 101-02 (10th Cir.) (taxable costs in criminal prosecutions dependent upon statutory provisions), cert. denied, 419 U.S. 1088, 95 S.Ct. 678, 42 L.Ed.2d 680 (1974). The Crawford Court concluded that Sec. 1920 defines the term "costs" as used in Rule 54(d). 482 U.S. at 441, 107 S.Ct. at 2497. We believe that Sec. 1920 likewise defines the term "costs of prosecution" as used in Sec. 1918(b). See 21 U.S.C. Sec. 844(a) (providing that person who violates this subsection "shall be fined the reasonable costs of the investigation and prosecution of the offense, including the costs of prosecution of an offense as defined in sections 1918 and 1920 of Title 28 ") (emphasis added); United States v. Vaughn, 636 F.2d 921, 922 (4th Cir.1980) ("costs of prosecution" referred to in 26 U.S.C. Sec. 7201 are those set forth in Sec. 1920). To conclude otherwise would render Sec. 1920 superfluous. See Crawford, 482 U.S. at 441, 107 S.Ct. at 2497. Therefore, since Sec. 1920 does not include the costs of investigation leading to indictment, Carter-Glogau is correct in contending that it may not be assessed those costs. See Vaughn, 636 F.2d at 922.50 93 Section 1920 states that "[a] bill of costs shall be filed in the case." This language is mandatory. See Mason v. Belieu, 543 F.2d 215, 222 (D.C.Cir.), cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976). In addition, 28 U.S.C. Sec. 1924 requires that cost items be verified by affidavit. See Wahl v. Carrier Mfg. Co., Inc., 511 F.2d 209, 216 (7th Cir.1975). The government did not file a verified bill of costs in this case. As a result, it is not possible to determine whether the $100,000 assessed by the district court includes costs of investigation, other costs not listed in Sec. 1920, or costs attributable solely to the unsuccessful prosecution of codefendants or to counts on which Carter-Glogau was acquitted. Accordingly, we find that the district court abused its discretion in ordering Carter-Glogau to pay $100,000 toward the costs of prosecution. III. 94 For the foregoing reasons, the convictions are affirmed. The district court's assessment of costs against Carter-Glogau is vacated and the case remanded for a redetermination of taxable costs in accordance with this opinion and subject to any valid objections or defenses asserted by Carter-Glogau. 1 The Honorable Clyde S. Cahill, United States District Judge for the Eastern District of Missouri 2 At the time of the defendants' indictment in 1987, the language of Sec. 333(a)(2) was set forth in Sec. 333(b). In 1988, Sec. 333(b) was redesignated as Sec. 333(a)(2), which is the citation we shall use throughout this opinion 3 The plea was placed under seal and not accepted by the court until the trial had concluded. OJF was fined $115,000 and ordered to pay $100,000 in costs 4 Madison was sentenced to eight years imprisonment, all but six months of which was suspended, and fined $12,000. In lieu of the fine, Madison could pay $10,000 to the neonatal intensive care units of certain hospitals victimized by the sale of E-Ferol 5 The appellants do not directly challenge their conspiracy convictions. They argue only that these convictions must also be overturned if the FDCA convictions are reversed 6 Carter-Glogau joins in all of the arguments made by Carter. To avoid undue repetition, we will refer only to Carter when discussing their arguments 7 Carter and Hiland were each sentenced to nine years imprisonment, all but six months of which was suspended, and fined $130,000. In lieu of the fine, each could pay $65,000 within one year of judgment to the neonatal intensive care units of certain hospitals victimized by the sale of E-Ferol. Both Carter and Hiland were denied release on bail pending appeal 8 Carter-Glogau was also fined $130,000 9 There was also a multivitamin intravenous injection, containing a small amount of vitamin E, that was used as a nutritional supplement 10 There was trial testimony indicating that it is not uncommon for physicians, in the exercise of their professional judgment, to use a prescription pharmaceutical product for uses other than those recommended or suggested in the product's labeling 11 The administration of oxygen to premature infants was thought to be the primary cause of RLF 12 The Tennessee hospital did not contact OJF directly, but rather reported the infant deaths to an OJF salesman, who then put Sandlin in contact with Madison 13 Specifically, the indictment charged that E-Ferol was misbranded: A. Under [21 U.S.C. Secs. 352(a), 321(n) ] in that the labeling for said drug was false and misleading in that said drug was recommended and suggested as appropriate for intravenous use in premature infants, when defendants knew of, and failed to reveal in the labeling, the following material facts: (1) The drug had been reported to defendants to be associated with serious, life threatening injuries to premature infants, even when E-Ferol was used under the conditions of use prescribed, recommended, and suggested in the labeling of the drug product; (2) No adequate investigation was conducted by the defendants to determine the validity of the associations of E-Ferol to said injuries that had been reported to them; (3) No scientifically adequate or well controlled studies existed that established that E-Ferol could be safely and effectively used under the conditions of use prescribed, recommended, and suggested in the labeling of the drug product; and (4) The safety and effectiveness of E-Ferol had not been established for use in premature infants. B. Under [Sec. 352(f)(1) ] in that said drug, a prescription drug subject to the requirements of 21 C.F.R. 201.100(c) and (d), failed to bear adequate directions for its use, including dosage and administration, contraindications, side effects, hazards, and precautions, under which medical professionals licensed by law to administer the drug could use it safely for the purposes for which defendants intended it. C. Under [Sec. 352(f)(2) ] in that the labeling of said drug failed to bear adequate warnings against use in premature infants, where its use might be dangerous to their health. D. Under [Sec. 352(f)(2) ] in that the labeling of said drug failed to bear adequate warnings against unsafe dosage and methods and duration of administration and application, in such manner and form, as was necessary for the protection of users of the drug. E. Under [Sec. 352(j) ] in that said drug, when used in the dosage, and with the frequency and duration prescribed, recommended, and suggested in the labeling was dangerous to the health of premature infants. 14 As a direct result of the E-Ferol incident, the FDA amended the ISR policy in September 1984 by restricting it to only identical drug products. Notice of Revised Compliance Policy Guide 7132c.02, 49 Fed.Reg. 38190-01 (Sept. 27, 1984). For discussions of the above legislative and regulatory background, see generally id.; Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 612-15, 623-24, 93 S.Ct. 2469, 2474-76, 2480, 37 L.Ed.2d 207 (1973); and United States v. Articles of Drug--Lannett Co., Inc., 585 F.2d 575, 577-79 (3d Cir.1978) 15 The court gave the following instructions: Carter-Glogau Laboratories, Incorporated and Mr. Carter have introduced evidence that the regulation policies and practices of the United States Food and Drug Administration led these defendants to believe that E-Ferol Aqueous Solution did not require an approved new drug application, an NDA, before it could be legally introduced into interstate commerce. There has been evidence that E-Ferol Aqueous Solution was a single entity vitamin drug which was similar or related to other vitamin products that themselves were not the subject of an approved new drug application, and that it [sic] had been marketed prior to 1938. Carter-Glogau Laboratories, Incorporated and Mr. Carter, [sic] they were led to believe that E-Ferol Aqueous Solution could be used on equal terms with these other unapproved Vitamin E products. Sept. 28 Tr. at 76-77. Later, the court again instructed the jury that as to the new drug counts, "these defendants contend that the policies and practices of FDA led them to believe that E-Ferol Aqueous Solution could be legally introduced in interstate commerce without an approved NDA." Id. at 85. 16 We question whether a vagueness attack can be based on an agency policy that sets enforcement priorities but does not purport to define illegal conduct. Cf. United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (vagueness doctrine presumes "a law that attempts to proscribe or prescribe conduct"). However, we need not resolve this issue given that there are other reasons why Carter's argument must fail 17 We find no merit in Carter's assertion that the district court's refusal to give certain tendered instructions denied him a fair determination of this due process issue by the jury. The issue whether the vagueness doctrine precluded conviction of Carter on the new drug counts presented a question of law for the court to decide, not the jury. See United States v. Gleason, 726 F.2d 385, 388 (8th Cir.1984) (per curiam) (it is "not the jury's duty to interpret the law"). The court did instruct the jury that Carter and Carter-Glogau "contend that the policy and practices concerning the introduction in commerce of a single entity vitamin product, such as E-Ferol Aqueous Solution, was [sic] so vague and indefinite that these defendants did not understand that an approved NDA was required." Sept. 28 Tr. at 85-86 18 We recognize that the Tenth Circuit's subsequent decision in United States v. Cattle King Packing Co., Inc., 793 F.2d 232 (10th Cir.), cert. denied sub nom. Stanko v. United States, 479 U.S. 985, 107 S.Ct. 573, 93 L.Ed.2d 577 (1986), might be read as conflicting with Industrial Laboratories. In affirming a felony conviction under 21 U.S.C. Sec. 676(a), a provision of the Federal Meat Inspection Act very similar to Sec. 333(a)(2), the Cattle King court found no reversible error in the giving of a "responsible relationship" instruction nearly identical to the one upheld in Park, a misdemeanor FDCA case, because the jury was also instructed that it had to find the intent to defraud as required by Sec. 676(a). Cattle King, 793 F.2d at 240-41. We are not convinced that Cattle King and Industrial Laboratories are necessarily irreconcilable. In any event, Cattle King is not directly applicable in this case because the district court did not give a Park instruction 19 The court instructed the jury that it could find E-Ferol was not generally recognized by qualified experts as safe and effective for use under the conditions prescribed, recommended, or suggested in its labeling, and therefore was a new drug under Sec. 321(p)(1), if there were no adequate and well-controlled scientific studies establishing it as safe and effective for such use. Carter and Hiland do not challenge these instructions 20 We therefore reject Carter's contention that under the principles discussed in Holdridge v. United States, 282 F.2d 302 (8th Cir.1960), the indictment violated due process because it was entirely devoid of any scienter element related to the facts comprising the alleged violations of the FDCA 21 The court did not, however, instruct the jury that the defendants had to know their actions violated particular provisions of the FDCA. Hiland concedes that such knowledge was not required, but Carter seems to suggest that it was. We reject this suggestion because there is nothing in Sec. 333(a)(2), or elsewhere in the FDCA, that evidences a congressional intent to create such an exception to "the general rule that ignorance of the law is no excuse." United States v. International Minerals & Chem. Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 1701, 29 L.Ed.2d 178 (1971) 22 The court instructed the jury as follows: The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes, which [sic] would have otherwise been obvious to him. A finding beyond a reasonable doubt with [sic] a conscious purpose to avoid in light [sic] would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact. It's entirely up to you as to whether you find any deliberate closing of the eyes and inferences to be drawn from any such evidence. The showing of negligence of a statement [sic] is not sufficient to support a finding of willfulness or knowledge. Sept. 28 Tr. at 83-84. 23 Neither Carter nor Hiland alleges the evidence was insufficient to prove that they possessed actual knowledge E-Ferol was dangerous and falsely labeled 24 Madison testified that it was OJF's policy to never call the FDA unless they knew what the answer would be 25 Immediately prior to this particular instruction, the court instructed the jury that: As to the [new drug counts], defendant Hiland contends that he had no knowledge that E-Ferol was an unapproved drug that required FDA approval, and had no intent to defraud or mislead. As to the [misbranding counts], defendant Hiland contends that he had no knowledge that E-Ferol was a misbranded drug, no intent to defraud or mislead. Sept. 30 Tr. at 81. 26 Hiland's reliance on Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979), is misplaced because it does not stand for the proposition that reversal is necessary whenever an instruction standing alone created any possibility that the jury misallocated the burden of proof 27 We need not address the government's argument that the testimony elicited from Hiland was also admissible under Fed.R.Evid. 404(b) as evidence of similar acts 28 The conversation was with Carter, but this was not disclosed to the jury in order to avoid prejudice to Carter and Carter-Glogau. In addition, no reference was made to the "seizure" of Dalalone P.R. to accommodate the concern of Hiland's counsel that this term was prejudicial. The court also sustained counsel's objections to the government's efforts to cross-examine Hiland regarding the level of his compensation at OJF 29 As this and other courts have recognized, even if the component parts of a drug are generally recognized as safe, the combination of those parts may not be safe. See International Nutrition, Inc. v. United States Dep't of Health & Human Servs., 676 F.2d 338, 341 (8th Cir.1982); United States v. Articles of Drug ... Promise Toothpaste, 826 F.2d 564, 566 (7th Cir.1987); United States v. An Article of Drug ... "Entrol-C Medicated", 513 F.2d 1127, 1129-30 (9th Cir.1975); see also 21 C.F.R. Sec. 310.3(h)(2) ("newness of a drug" may arise from "combination of two or more substances, none of which is a new drug") 30 Hiland asserts that the government's inquiries were particularly prejudicial because the court failed to give a limiting instruction. Under Fed.R.Evid. 105, the burden was on Hiland to request such an instruction. See United States v. Gilmore, 730 F.2d 550, 555 (8th Cir.1984). He failed to do so and has not demonstrated plain error on appeal. See Fed.R.Crim.P. 52(b) 31 The district court clearly did not abuse its discretion in admitting testimony concerning adverse reactions and deaths actually reported to the defendants prior to the recall. Such testimony was highly probative of their knowledge and intent. The suggestions in Carter's brief that testimony of this kind was unduly prejudicial are devoid of merit 32 Although a drug's status as a "new drug" under Sec. 321(p)(1) does not require evidence that it is actually unsafe, see, e.g., United States v. Undetermined Quantities of Various Articles of Drug ... Equidantin Nitrofurantoin Suspension, 675 F.2d 994, 1000 (8th Cir.1982), cert. denied sub nom. Performance Products, Inc. v. United States, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983), a drug certainly cannot be considered generally recognized as safe if it has never been tested and is in fact dangerous when used as recommended in its labeling 33 For example, the court told the jury: I don't want the jury to make a decision based on the babies. What the decision must be based on is the charge before you. Now I've tried to emphasize that in the clearest and most emphatic language I could use, because I don't want the defendants to be able to say they have not received a fair trial. I don't want the defendants to be blamed for something they are not charged with. Sept. 28 Tr. at 6-7. 34 See supra note 13 35 The government contended that this language was appropriate because it tracks that used in 21 U.S.C. Sec. 352(a) 36 With respect to both Carter and Carter-Glogau, the jury specified options two, four and five, which stated that: (2) "the labeling for E-Ferol failed to bear adequate directions for use"; (4) "the labeling for E-Ferol failed to bear adequate warnings against unsafe dosage and methods and duration of administration and application in such a manner and form as was necessary for the protection of users of the drug"; and (5) "E-Ferol when used in the dosage and with the frequency and duration prescribed, recommended and suggested in the labeling was dangerous to health." 37 The jury specified option three, which stated that "the labeling for E-Ferol failed to bear adequate warnings against its use in premature infants where its use might be dangerous to their health." 38 We need not decide this issue given our conclusions regarding the second misbranding verdict 39 Rule 31(d) reads as follows: Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. 40 So named after Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) 41 We reject Hiland's claim to the contrary. Although his counsel objected to the misbranding instructions preceding the first verdict on the ground that they would not ensure unanimity, the record shows that counsel did not object to resubmission of the misbranding counts or the language of the supplemental charge 42 Hiland does not argue that the court's initial questioning of the jury as a whole constituted a "poll" and that the court abused its discretion in employing this method of "polling" the jury. Even if we were to read Hiland's briefs as making such an argument, we would find no reversible error. See United States v. Dotson, 817 F.2d 1127, 1130 n. 1 (5th Cir.1987) (trial court's demand for a nodding of heads not reversible error because defendants did not object to this informal method of polling jury), modified in part on other grounds, 821 F.2d 1034 (5th Cir.1987) (per curiam); see also Carter, 772 F.2d at 67-68 (no reversible error where trial court polled jury by asking for show of hands, even though court denied defendant's subsequent request for an individual poll) 43 It appears from the record that the court misunderstood Hiland's requests for a specific unanimity instruction as relating only to the misbranding counts 44 Courts have also held that a specific unanimity instruction is required where a conviction may occur as a result of different jurors concluding that the defendant committed different acts. See United States v. Busacca, 863 F.2d 433, 437 (6th Cir.1988) (per curiam), cert. denied, --- U.S. ----, 109 S.Ct. 1640, 104 L.Ed.2d 156 (1989); United States v. Beros, 833 F.2d 455, 461 (3d Cir.1987). This exception to the general rule would only apply here, if at all, to the first misbranding verdict against Hiland 45 The other factors that courts have identified include a variance between the indictment and the proof at trial, and a tangible indication of jury confusion, such as a request for clarification. See United States v. Anguiano, 873 F.2d 1314, 1319-20 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 416, 107 L.Ed.2d 381 (1989); United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir.1987) 46 The court began this inquiry with the conspiracy verdict: "All of you have found all three of the [d]efendants guilty as to count one, which is conspiracy. That's the first group. Is there anyone here who did not find any of these defendants guilty of conspiracy?" Upon receiving no response, the court stated: "I take it by your silence, that all of you are confirming the fact that you have found each of the three defendants guilty, that is the corporation and Ronald Carter and Larry Hiland, guilty of conspiracy." Sept. 30 Tr. at 6. The court followed a similar pattern of inquiry with respect to the remaining counts 47 We note that the Third Circuit reached a similar conclusion under analogous circumstances. See United States v. Aimone, 715 F.2d 822, 833 (3d Cir.1983), aff'g United States v. Musto, 540 F.Supp. 318, 340 (D.N.J.1982), cert. denied, 468 U.S. 1217, 104 S.Ct. 3586, 82 L.Ed.2d 883 (1984) 48 Section 1918(b) provides that: Whenever any conviction for any offense not capital is obtained in a district court, the court may order that the defendant pay the costs of prosecution. 49 Carter-Glogau and the government disagree whether payment of the costs of prosecution may be imposed as a condition of probation. In United States v. Dougherty, 810 F.2d 763, 773-74 (8th Cir.1987), we concluded that the district court did not abuse its discretion in taxing costs to the defendant, an individual, as a special condition of probation. But see United States v. Interstate Cigar Co., Inc., 801 F.2d 555, 556-57 (1st Cir.1986) (holding that district court erred in ordering corporation convicted of mail fraud to serve probation in addition to paying maximum statutory fine). In any event, despite the implication of the parties' arguments, we can find nothing in the record indicating that the district court in fact placed Carter-Glogau on probation 50 The record seems to indicate that the district court chose the figure $100,000 in order to have Carter-Glogau bear a portion of the costs of the government's investigation in this case

364 F.Supp.2d 131 (2005) Herminio VALENTIN MUÑOZ, et al., Plaintiffs, v. ISLAND FINANCE CORP., et al., Defendants. No. CIV.04-1587(HL). United States District Court, D. Puerto Rico. March 28, 2005. *132 *133 Noel Aviles-Gonzalez, Aguadilla, PR, for Herminio Valentin-Munoz, Rosalia Gonzalez-Beniquez, Conjugal Partnership Valentin-Gonzalez, Plaintiffs. Seth Erbe, Indiano & Williams, PSC, Christian M. Echavarri-Junco, O'Neill & Borges, Edna E. Perez-Roman, O'Neill & Borges, San Juan, PR, for Island Finance Corp., c/o Elizabeth Ortiz Irizarry, Hartford Life and Accident Insurance Company, c/o Humberto Torres, Defendants. ORDER LAFFITTE, District Judge. Before the Court is plaintiffs' motion to remand this case back to the Commonwealth of Puerto Rico Court of First Instance Superior Court, Aguadilla Part. Co-defendant Hartford Life and Accident Insurance Company ("Hartford Life") opposes said motion and co-defendant Island Finance Corporation joins Hartford Life's opposition. For the reasons set forth below, the Court grants plaintiffs' motion to remand. FACTUAL BACKGROUND Plaintiff Herminio Valentin Muñoz (Valentin) and his wife, Rosalia González Beniquez, originally filed a complaint with the Commonwealth of Puerto Rico Court of First Instance Superior Court, Aguadilla Part. The complaint alleges that Valentin is a beneficiary of a long-term disability benefits program provided by his former employer, co-defendant Island Finance Corporation, and administered by co-defendant Hartford Life. The complaint further alleges that during an interview evaluating Valentin's continuing entitlement to long-term disability benefits under this program, Hartford Life employees Francisco Di Carlo and Fred Diggle knew of Valentin's mental and emotional disorders and intentionally and/or negligently inflicted *134 severe distress upon Valentin through their interviewing techniques. Specifically, plaintiffs allege that the interview was conducted in a hostile, humiliating, and threatening manner. Plaintiffs also claim that defendants knew that Valentin did not speak English and that as part of the interview Valentin was shown videos of himself while the interviewers mocked him in the English language. Plaintiffs submit that during the interview Valentin suffered a nervous breakdown and fainted as a result of the interview questions, video viewing, and intimidating and hostile conduct of the interviewers. While still unconscious, Valentin was taken to the San Francisco Clinic where he was diagnosed with syncope. Plaintiffs claim that after this incident Valentin's mental health has further declined. Plaintiffs seek medical expenses and damages for physical injuries, mental anguish and suffering. On June 21, 2004, co-defendant Hartford Life removed the case to this Court pursuant to 28 U.S.C. § 1441 and the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a). Plaintiffs move for remand for lack of subject matter jurisdiction on the grounds that their state tort claims are not preempted by ERISA. In the alternative, plaintiffs request that they be permitted to add federal civil rights claims to their complaint if the Court finds that removal was appropriate. In opposition, defendants argue that the case was properly removed to this Court because plaintiffs' claims (1) are preempted by ERISA and (2) are wholly or partially based on violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d, et seq. DISCUSSION I. Under the removal statute, "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties ..." 28 U.S.C. § 1441(b); see also 28 U.S.C. § 1331. Ordinarily, the determination of whether a particular case arises under federal law turns on the "well-pleaded complaint" rule. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Under the well-pleaded complaint rule, jurisdiction is ascertained from the face of the state court complaint that triggered the removal. Danca v. Private Health Care Systems, Inc., 185 F.3d 1, 4 (1st Cir.1999) (citing Franchise Tax Board, 463 U.S. at 9-10, 103 S.Ct. 2841.) However, there is an exception to the well-pleaded complaint rule. "Where a claim, though couched in the language of state law, implicates an area of federal law for which Congress intended a particularly powerful preemptive sweep, the cause is deemed federal no matter how pleaded." Id. (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). In other words, "`when a federal statute wholly displaces the state-law cause of action through complete pre-emption,' the state claim can be removed." Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 2495, 159 L.Ed.2d 312 (2004). ERISA is precisely one of these federal statutes. Id.; see also Hotz v. Blue Cross & Blue Shield of Mass., Inc., 292 F.3d 57, 59 (1st Cir.2002) (ERISA's civil enforcement provisions, ERISA § 502(a), have been interpreted to establish federal removal jurisdiction over any state law claims that in substance seek relief that is otherwise within the scope of those ERISA remedy provisions.) Aside from "complete" preemption, there is another type of preemption *135 known as "conflict" or "ordinary" preemption. Conflict preemption arises when a federal law conflicts with state law, thus providing a federal defense to a state law claim. Conflict preemption does not completely preempt the field of state law so as to provide a basis for federal jurisdiction. See Danca, 185 F.3d at 4-5. Therefore, the affirmative federal defense of ERISA § 514 is not relevant to the complete preemption analysis. In considering whether a state law claim is completely preempted by ERISA, and thus removable, courts look only to ERISA § 502(a). Id. ERISA § 502(a) provides for, inter alia, a cause of action by a plan participant or beneficiary "to recover benefits due ... under the terms of the plan, to enforce ... rights under the terms of the plan, or to clarify ... rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). "To establish complete preemption defendants must show that the state cause of action falls within the scope of ERISA § 502(a)," 29 U.S.C. § 1132(a). Danca, 185 F.3d at 5. In other words, for complete preemption to occur, the state law at issue "must be properly characterized as an `alternative enforcement mechanism' of ERISA § 502(a) or the terms of an ERISA plan." Id. This means that "if an individual at some point in time could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant's actions, then the individual's cause of action is completely pre-empted by ERISA." Aetna Health Inc., 124 S.Ct. at 2496. In the complaint at bar, plaintiffs seek to recover under a theory of negligence on the part of the insurance company representatives that conducted the interview to determine Valentin's continued eligibility for long-term disability benefits. Specifically, plaintiffs assert claims of intentional and/or negligent infliction of emotional distress. As discussed above, plaintiffs' complaint may be deemed to state a federal claim warranting removal pursuant to ERISA only if one or more of the claims is properly characterized as seeking to recover benefits due to Valentin under the terms of the long-term disability plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. See Lupo v. Human Affairs Intern., Inc., 28 F.3d 269, 272 (2nd Cir.1994). Here, plaintiffs allege that employees of co-defendant Hartford Life knew of Valentin's depression, anxiety, attention, concentration, and memory problems and intentionally or negligently interviewed him in an intimidating, hostile, humiliating, and threatening manner. Plaintiffs further submit that this conduct caused Valentin to suffer a nervous breakdown, temporarily lose consciousness, and subsequently experience a decline in mental and neurological health. On their face, plaintiffs' claims clearly do not "bear[] any significant resemblance" to those claims described in § 502(a). Id. Plaintiffs do not seek to recover benefits, enforce rights under the terms of the plan, or clarify rights to future benefits. The causes of action asserted in the complaint simply do not fall within the scope of an ERISA provision that plaintiff can enforce via § 502(a). Moreover, plaintiffs' state law claims arise from duties independent of the employee benefit plan and can be resolved without any interpretation of the plan. In view of the aforementioned, the Court finds that plaintiffs' state law negligence and infliction of emotion distress claims are not alternative enforcement mechanism of either ERISA § 502(a) or the terms of the employee benefit plan. Hence, these state law claims have not been displaced by § 502(a), and thus are *136 not completely preempted. See Danca, 185 F.3d at 5. Therefore, in the present case, ERISA does not provide an appropriate jurisdictional basis justifying removal of plaintiffs' action to this Court. II. Defendants also argue that the case was properly removed to this Court pursuant to 28 U.S.C. § 1441 because plaintiffs' claims are wholly or partially based on violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 42 U.S.C. §§ 1320d, et seq. As discussed above, "a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." Franchise Tax Bd., 463 U.S. at 2, 103 S.Ct. 2841. The United States Supreme Court has held that "a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private federal cause of action, does not state a claim" arising under federal law. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817, 106 S.Ct. 3229, 3237, 92 L.Ed.2d 650 (1986). HIPAA provides for civil and criminal penalties to be imposed on persons who improperly handle or disclose individually identifiable health information. See Logan v. Dept. of Veterans Affairs, 2004 WL 3168183 at *4 (D.D.C.2004); HIPAA § 262, 42 U.S.C. §§ 1320d to d-8. However, the law specifically indicates that only the Secretary of Health and Human Services or other authorized state authorities may bring forth a HIPAA enforcement action. See 42 U.S.C. § 300gg-22; Logan, 2004 WL 3168183 at *4 (citing O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F.Supp.2d 1176, 1180 (D.Wyo.2001)). Thus, HIPAA does not provide for an express private cause of action. Moreover, courts have consistently found that HIPAA does not provide an implied private cause of action. See e.g., id.; O'Donnell, 173 F.Supp.2d at 1180; Univ. of Colo. Hosp. v. Denver Publ'g Co., 340 F.Supp.2d 1142, 1144-45 (D.Colo.2004); Johnson v. Parker Hughes Clinics, 2005 WL 102968 at *2 (D.Minn.2005); Northwestern Memorial Hosp.; Assoc'n of Amer. Physicians & Surgeons, Inc., 224 F.Supp.2d 1115, 1129 (S.D.Tex.2002). Therefore, without reaching the issue of whether plaintiffs assert claims under HIPAA in the present case, the Court concludes that HIPAA cannot provide an appropriate basis for removal to this Court because federal jurisdiction cannot be based on a federal statute that does not provide a private cause of action. See Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 817, 106 S.Ct. 3229. CONCLUSION For the aforementioned reasons, the Court concludes that it lacks subject matter jurisdiction over plaintiffs' claims. Accordingly, pursuant to 28 U.S.C. § 1447(c), the Court hereby remands this case back to the Commonwealth of Puerto Rico Court of First Instance Superior Court, Aguadilla Part. IT IS SO ORDERED.

CHIEF JUSTICE CAROLYN WRIGHT LISA MATZ JUSTICES CLERK OF THE COURT DAVID L. BRIDGES (214) 712-3450 MOLLY FRANCIS lisa.matz@5th.txcourts.gov DOUGLAS S. LANG GAYLE HUMPA ELIZABETH LANG-MIERS ROBERT M. FILLMORE Court of Appeals BUSINESS ADMINISTRATOR (214) 712-3434 LANA MYERS DAVID EVANS Fifth District of Texas at Dallas gayle.humpa@5th.txcourts.gov DAVID LEWIS 600 COMMERCE STREET, SUITE 200 FACSIMILE ADA BROWN DALLAS, TEXAS 75202 (214) 745-1083 CRAIG STODDART (214) 712-3400 INTERNET BILL WHITEHILL HTTP://5TH.TXCOURTS.GOV DAVID J. SCHENCK February 25, 2015 Chase Matthew Oden No. 01926258 Coffield Unit 2661 F.M. 2054 Tennessee Colony, TX 75884 Re: 05-14-00447––00451-CR Chase Matthew Oden v. The State of Texas Dear Mr. Oden: Your attorney has filed a brief in which she states she has determined your appeals are frivolous and without merit. A copy of that brief is enclosed with this letter. You have a right, if you so desire, to file a pro se response. Counsel has informed the Court that a copy of the record has been mailed to you. Therefore, we will not separately order that the record be made available to you. If you desire to file a pro se response, you must file it by April 23, 2015. Otherwise, your cases will be submitted upon the brief of your attorney. Sincerely, /s/ Lisa Matz, Clerk Enclosure ltr:mrh 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00448-CV Javier Davila § From Criminal District Court No. 4 § of Tarrant County (1245988W) v. § November 15, 2012 The State of Texas § Per Curiam JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS PER CURIAM  COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00446-CV NO. 02-11-00447-CV NO. 02-11-00448-CV NO. 02-11-00449-CV NO. 02-11-00450-CV NO. 02-11-00451-CV NO. 02-11-00452-CV JAVIER DAVILA APPELLANT V. THE STATE OF TEXAS APPELLEE ---------- FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY ---------- MEMORANDUM OPINION1 ---------- On October 21, 2011, appellant Javier Davila filed a notice of appeal challenging the trial court’s orders to withdraw funds from his inmate trust 1 See Tex. R. App. P. 47.4. 2 account in seven separate trial court cause numbers. Because we were unable to determine whether appellant’s rights to due process had been satisfied based on the record before us, we abated the appeals on November 15, 2011 for 180 days so that appellant could obtain appealable orders from the trial court. See, e.g., Palomo v. State, 322 S.W.3d 304, 307–08 (Tex. App.––Amarillo 2010, order) (abating appeal to allow appellant time to file an appropriate motion to modify, correct, or rescind the withdrawal notification and obtain a final, appealable order addressing that motion), disp. on merits, 330 S.W.3d 920 (Tex. App.––Amarillo 2010, no pet.); see also Tex. R. App. P. 27.2. On June 13, 2012, we sent appellant a letter informing him that the appeals had been reinstated but that the trial court had not rendered any appealable orders. We told appellant that if we did not receive any written, appealable orders or a response indicating that appellant would obtain such orders on or before June 25, 2012, the appeals would be dismissed for want of jurisdiction. We have received no response, and no appealable orders have been rendered in the trial court. 3  Because there are no appealable orders for this court to review, we dismiss the appeals for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); Davis v. State, No. 02-11-00016-CV, 2011 WL 5247505, at *1 (Tex. App.––Fort Worth Nov. 3, 2011, no pet.) (mem. op.). PER CURIAM PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DELIVERED: November 15, 2012 4 

RENDERED: FEBRUARY 18, 2016 TO BE PUBLISHED oi5uprrnit Court of 3fitufurkv 2015-SC-000095-WC GLENN HAMPTON APPELLANT ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2014-CA-000409-WC WORKERS' COMPENSATION BOARD NO. 11-WC-98603 FLAV-O-RICH DAIRIES; HONORABLE WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES OPINION OF THE COURT BY JUSTICE KELLER REVERSING AND REMANDING The Administrative Law Judge (ALM found Glenn Hampton to be permanently totally disabled. Flav-O-Rich appealed to the Board arguing, in pertinent part, that the ALJ's opinion lacked sufficient findings to permit a meaningful review. The Board agreed, vacating the ALJ's opinion and remanding for additional findings of fact. Hampton filed a petition for review with the Court of Appeals, which the Court dismissed as prematurely filed from a non-final Board opinion. We disagree with the Court of Appeals that the Board's opinion was not final; therefore, we reverse and remand to the Court of Appeals for consideration of the merits of Hampton's appeal.  I. BACKGROUND. The parties stipulated that Hampton suffered a work-related injury on December 30, 2010. Following the presentation of evidence and a hearing, the ALJ awarded Hampton permanent total disability benefits. Flav-O-Rich filed a petition for reconsideration asking the ALJ to make 25 additional findings of fact to justify his award. The ALJ denied Flav-O-Rich's petition, stating that he had "thoroughly discuss[ed] the contested issues raised by the parties . . . ." Flav-O-Rich appealed to the Board arguing that: the AW failed to make sufficient findings of fact to permit meaningful appellate review; the ALJ did not consider all of the evidence; and the ALJ's opinion was not supported by evidence of substance. The Board summarized the evidence but only addressed the first issue, finding that the ALJ's summary of the evidence and findings of fact were not sufficient to permit the Board "to discern the basis of the ALJ's decision." Therefore, the Board vacated the ALJ's opinion and remanded the claim to him for additional findings of fact sufficient to inform the parties "of the basis for [his] decision and permit meaningful appellate review" and "for additional proceedings." Furthermore, the Board stated that, because it was remanding for additional fact finding and proceedings, "it would be premature to address Flav-O-Rich's additional arguments." Hampton filed a petition for review with the Court of Appeals, arguing, in pertinent part, that the ALJ had made sufficient findings of fact to support his finding of permanent total disability. Flav-O-Rich argued that the Board's opinion was not final and appealable and therefore asked the Court to dismiss 2 Hampton's appeal. The Court of Appeals agreed with Flav-O-Rich, finding that, because the Board's opinion did not divest Hampton of a vested right and it did not direct or authorize the ALJ to enter a different award on remand, it was not final. Hampton appeals, arguing that the Board's opinion was final and appealable. II. STANDARD OF REVIEW. Whether the Board's opinion is final and appealable is a question of law, and we review questions of law de novo. See Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky. 2013). III. ANALYSIS. As noted above, the sole issue before us is whether the Board's opinion is final and appealable. The Court of Appeals, relying on our holding in Whitaker v. Morgan, 52 S.W.3d 567 (Ky. 2001), held that the Board's opinion is not final and appealable because it simply required the ALJ to make sufficient findings of fact to permit a meaningful review. The Board did not, according to the Court, direct or authorize the ALJ to alter his ultimate finding of permanent total disability. We disagree. The seminal case involving the finality of a Board decision is Davis v. Island Creek Coal Co., 969 S.W.2d 712 (Ky. 1998). In Davis, the claimant was awarded retraining incentive benefits when the employer failed to timely contest his claim. Id. at 713. The Board reversed and remanded the claim to the ALJ with instructions to find whether the employer had asserted "good cause" for its failure to timely contest the claim. Id. The Court of Appeals held 3 that this decision by the Board was not final and appealable "because it did not finally dispose of the claim." Id. Citing to case law dealing with the finality of circuit court decisions in workers' compensation claims, we held that the test for determining finality is: (1) If the circuit court order either set aside the board's award or authorized the board to enter a different award, then the order deprived a party of a vested right and was final and appealable[;] [however,' (2) [i]f the circuit court order only remanded the case to the board with directions to comply with statutory requirements without authorizing the taking of additional proof or the entry of a different award, the order was interlocutory and not appealable. Davis, 969 S.W.2d at 713-14 (citations omitted). We cited the following as examples of non-final circuit court orders: 2 remanding for compliance with the requirement that opinions set forth separate findings of fact and conclusions of law, Green River Fuel Co. v. Sutton, 260 Ky. 288, 84 S.W.2d 79 (1935); and remanding for a finding of fact regarding the date of last injurious exposure, Wagoner v. Mills, 566 S.W.2d 159 (Ky. App. 1977). Applying the preceding to Davis's claim, we concluded that the Board's decision was final and appealable. Id. at 714. In doing so, we noted that: [T]he board's order set aside an award in favor of Appellant and remanded the case with directions to determine whether the employer's failure to file a timely notice of resistance was for "good cause," and, presumably, if so, to take additional proof and enter a new order. Since this order allowed the ALLI on remand to divest Appellant of his vested right to a RIB award, it was final and appealable to the Court of Appeals.  In Whittaker v. Morgan, 52 S.W.3d 567, 569 (Ky. 2001) we somewhat re- worded the rule from Davis as follows: [W]here a decision of the Board sets aside an ALJ's decision and either directs or authorizes the ALJ to enter a different award upon remand, it divests the party who prevailed before the ALJ of a vested right and, therefore, the decision is final and appealable to the Court of Appeals. Whittaker v. Morgan, 52 S.W.3d 567, 569 (Ky. 2001) (emphasis added). The Court of Appeals cited to the preceding language in support of its opinion. However, the Court of Appeals's reliance on Morgan is misplaced because the preceding language in Morgan is dicta. In Morgan, the claimant settled his coal workers' pneumoconiosis claim with the employer and the Special Fund for a 75% occupational disability. Id. at 568. Several years later, the claimant reopened his claim, and an ALJ made a total occupational disability award with no credit for overlapping benefits. Id. The Special Fund appealed to the Board, which reversed the AL J. Id. The Board then remanded the claim to the ALJ for additional findings and for calculation of the Special Fund's credit pursuant to Kentucky Revised Statute (KRS) 342.125(2)(b). Id. The Special Fund appealed to the Court of Appeals, arguing that the credit should be calculated pursuant to Whitaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Id. Apparently relying on Hook v. Hook, 563 S.W.2d 716 (1978), the Court of Appeals held that the Board's opinion was not final and appealable.' Id. at 569. 'We do not have available a copy of the Court of Appeals opinion in Morgan; however, from this Court's opinion it appears that the Court of Appeals erroneously 5  We reversed the Court of Appeals, finding that, while "the Board's decision divested the claimant of his victory before the ALJ on the question of credit . . . [it] did not divest the Special Fund of anything that the ALJ had previously decided in its favor." Id. Because the appellant, the Special Fund, had not been divested of anything by the Board's decision, we concluded that the Davis analysis did not apply. Id. Rather, we stated that the finality of the Board's decision turned on whether, absent an appeal, it would have become the law of the case, thus barring the Special Fund from questioning the Board's conclusion that the credit should be calculated pursuant to KRS 342.125(2)(b). Id. at 569-70. We determined that the Board's decision was final because, absent an appeal, the credit calculation decision by the Board would have become the law of the case. There is no law-of-the-case issue herein, thus Morgan is not applicable. We believe that Sidney Coal Co., Inc./ Clean Energy Mining Co. v. Huffman, 233 S.W.3d 710 (2007) is more nearly on point. Huffman suffered a crush injury to his right little finger and another crush injury to his left foot, which he alleged resulted in physical and psychological impairment. The medical proof was a mixed-bag with widely varied opinions regarding Huffman's impairment rating and restrictions. Based on that evidence, the Al.,J determined that Huffman's finger injury had resolved, and he assigned Huffman no impairment rating for that injury. As to Huffman's foot injury, the applied Hook v. Hook's Kentucky Rule of Civil Procedure 54 finality analysis to the Board's opinion. 6 ALJ believed Huffman's physician had made the correct diagnosis but had assigned a "suspect" impairment rating for that injury. Therefore, he adopted the impairment rating from one of the employer's evaluators and, because he believed Huffman's psychological evidence, the AliJ assigned an impairment rating accordingly. Huffman filed a petition for reconsideration arguing, in pertinent part, that the ALJ had ignored unrebutted medical proof regarding his finger-related impairment and a related period of temporary total disability. The ALJ denied the petition, and Huffman appealed to the Board, which "determined that [Huffman] was entitled to findings that appropriately addressed his theory of the case and demonstrated that the ALJ considered the evidence . . . and it held that the claim must be remanded for that purpose." Huffman at 714 (citations omitted). The Court of Appeals held that the Board's opinion was not final and appealable, nonetheless, it affirmed the Board. This Court agreed with the Board that Huffman "was entitled to at least some indication that the ALJ considered his theory of the case." Id. at 714. Furthermore, this Court noted that "[t]he Board's order of remand did not limit the ALJ to stating the reasons for awarding partial disability benefits but [it] permitted the ALJ to enter a different award after analyzing the issue." Id. While it is unclear from our opinion in Huffman whether the Board vacated the ALJ's opinion or whether it specifically stated that the ALJ could enter a different award on remand, it is clear that the ALJ's ability to do so was a key factor in determining finality. 7  Herein, the Board vacated the ALJ's opinion and remanded for additional proceedings. However, the Board did not specifically order or authorize the ALJ to reach a different result. Therefore, we must determine if, absent that specific order or authorization, the Board's opinion was final. Initially, we note and adopt, with modification for current practice, the holding from Davis that a Board opinion is final if it divests a party of a vested right by setting aside an ALJ's award or by authorizing or requiring the entry of a different award on remand. The substitution of and for or by the Court in dicta in Morgan was a misstatement of the holding from Davis, and we hereby correct that misstatement. Next, we note that, when the Board vacates an ALJ's opinion, it "nullif[ies] or cancel[s]; make[s] void; invalidate[s]" that opinion. Black's Law Dictionary (10th ed. 2014). When the Board vacated the ALJ's opinion, that opinion ceased to exist, and Hammond was divested of his permanent total disability award. Therefore, under what we believe to be the proper test from Davis, the Board's opinion was final and appealable. Finally, we note that, even if we believed that finality requires two findings - divestment of a vested interest and the authorization or requirement of a different award on remand - the Board's opinion met the second requirement. Because the Board vacated the ALJ's award, he is required to write a new opinion on remand; he cannot, as the Court of Appeals indicated, simply supplement his existing opinion with additional findings of fact. In the process of writing that new opinion, there is nothing to prevent the ALJ from 8 entering a different award, nor is there anything to compel the ALJ to enter the same award. By vacating the ALJ's opinion and requiring him to make additional findings, the Board has implicitly authorized him to enter a different award, thereby meeting the second alternative test for finality in Davis. IV. CONCLUSION. For the foregoing reasons, we reverse the Court of Appeals. Because the Court of Appeals did not address the substance of Hampton's appeal, which we believe was simply that the ALJ's award was not deficient, we remand so that the Court of Appeals can do so. In the event the Court of Appeals agrees with the Board that the ALJ's opinion is deficient, it is free to affirm the Board's opinion. However, in the event that the Court of Appeals disagrees with the Board regarding the sufficiency of the ALJ's opinion, it must remand to the Board for consideration of the substantive issues raised by Flav-O-Rich before the Board. All sitting. All concur. COUNSEL FOR APPELLANT: McKinnley Morgan Morgan Collins 86 Yeast COUNSEL FOR APPELLEE, FLAV-O-RICH DAIRIES: Berlin Tsai Lynch, Cox, Gilman 86 Goodman, PSC 9 

294 F.Supp.2d 946 (2003) Julie CLARK, Plaintiff, v. HEWITT ASSOCIATES, LLC, an Illinois limited liability company, Hewitt Associates Life Insurance Plan, and John Hancock Life Insurance Company, a Massachusetts corporation, Defendants. No. 03 C 3114. United States District Court, N.D. Illinois, Eastern Division. November 20, 2003. *947 *948 Nicholas Frank Esposito, Mark A. Schramm, Bradley K. Staubus, Cynthia Hannan Alkhouja, Esposito & Schramm, Chicago, IL, for Plaintiff. Mark A. Casciari, Sheldon Leigh Jeter, Seyfarth Shaw, William A. Chittenden, III, Craig Michael Bargher, Chittenden, Murday & Novotny, LLC, Chicago, IL, for Defendants. MEMORANDUM OPINION AND ORDER MORAN, Senior District Judge. Plaintiff Julie Clark brought this action against Hewitt Associates, LLC, and Hewitt's Life Insurance Plan (collectively Hewitt), and John Hancock Life Insurance (John Hancock), for failures of duty in violation of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. (Count I), breach of contract (Count II), and an improper insurance claims practice in violation of the Illinois Insurance Code (Count III). Both Hewitt and John Hancock filed motions to dismiss all three counts. Hancock's motion is granted, as well as Hewitt's motion to dismiss Counts II and III. Hewitt's motion to dismiss Count I is denied. BACKGROUND The following facts are as alleged by plaintiff in her complaint. She was married to Thomas Clark (Clark), a former employee of Hewitt who was enrolled in the company's health and welfare benefits program. John Hancock administers the basic and optional life insurance plans for Hewitt employees and their beneficiaries. Hewitt is the designated plan administrator. Hewitt paid for Clark's basic life insurance coverage of $55,000, while Clark paid for the additional optional coverage of $165,000, which he elected through Hewitt's online service. Clark named plaintiff as the beneficiary of both policies. On January 29, 2002, Clark committed suicide. Following her husband's death, plaintiff submitted a claim for benefits under Clark's basic and optional life insurance policies. While John Hancock paid plaintiff $55,000 for Clark's basic coverage, it denied her claim for $165,000 under the optional coverage policy. In a letter dated May 14, 2002, John Hancock explained that the optional life insurance policy expressly excluded payment for death due to suicide during the first two years after the employee becomes insured. Clark began working for Hewitt on May 7, 2001, and he committed suicide nine and-a-half months later. Plaintiff alleges that defendants never informed Clark of this provision in his policy. She states that defendants did not provide Clark with information regarding the terms of his optional life insurance at the time he applied, nor with a copy of the insurance policy afterwards. Plaintiff's complaint further alleges that on April 24, 2003, her attorney requested a reconsideration of the benefits denial, as well as proof that Clark received information regarding the conditions on his life insurance policy. As of July 31, 2003, plaintiff had not received any response. DISCUSSION A Federal Rule of Civil Procedure 12(b)(6) motion to dismiss tests the sufficiency *949 of the complaint, not the merits of the case. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In deciding a motion to dismiss, the court must assume the truth of all well-pleaded allegations, making all inferences in the plaintiff's favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir.1994). The court should dismiss a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Count I Both Hewitt and John Hancock filed motions to dismiss plaintiff's three counts. In Count I, plaintiff alleges that defendants failed to provide Clark with an explanation of benefits and a summary plan description, and also that they breached their fiduciary duty. Plaintiff's prayer for relief requests $165,000, the benefits to which she is entitled under the optional life insurance plan, plus interest, expenses and attorney's fees. In plaintiff's response to John Hancock's motion to dismiss, she asserts that both 29 U.S.C. § 1132(a)(3) and § 1132(c)(1)(B) provide remedies for Count I. Hewitt and John Hancock present a number of arguments for dismissal of this count. Both defendants argue that plaintiff may not bring her claim for $165,000 in life insurance benefits under § 1132(a)(3) because it only allows for equitable relief, not legal relief. They further argue that plaintiff may not seek relief under this "catchall" section because she can avail herself of a remedy under 29 U.S.C. § 1132(a)(1)(B)-the sole remedy for plaintiff's claim for life insurance benefits. We address each of these arguments in turn. In Count I of her complaint plaintiff cites 29 U.S.C. §§ 1104, 1022, and 1023 in support of her claims. Section 1104 addresses fiduciary duties, § 1022 explains the requirements of a summary plan description, and § 1023 discusses annual reports. Plaintiff must bring a civil action for violation of these sections under 29 U.S.C. § 1132. In her response brief plaintiff argues that §§ 1132(a)(3) and 1132(c)(1)(B) provide remedies for her claims in Count I. Section 1132(a)(3) states, "A civil action may be brought... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." Defendants argue that plaintiff may not bring this action under § 1132(a)(3) because she is asking for legal relief, the money due to her under her husband's optional life insurance plan, and this section only contemplates equitable relief. Plaintiff does not dispute that § 1132(a)(3) is limited to equitable relief. Instead, she contends that she is seeking equitable relief — asking the court to "estop Defendant from denying coverage based on policy language that neither she nor her husband had ever seen." However, Count I of plaintiff's complaint clearly requests $165,000 allegedly owed her under her husband's life insurance policy. In Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 548 (7th Cir.2003), Judge Posner recognized that "[a]lmost any legal claim can be given the form of an equitable claim (that is, a claim seeking an order to do or not do something)," but he cautioned, "such games with form should be discouraged." By labeling her monetary relief "estoppel," plaintiff appears to be playing such a game. Defendants further argue that plaintiff may not avail herself of relief *950 under § 1132(a)(3) because she has the right to seek relief under § 1132(a)(1)(B). We agree. Section 1132(a)(1)(B) states, "A civil action may be brought — (1) by a participant or beneficiary ... (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan...." Plaintiff is the named beneficiary of the optional life insurance plan and she is seeking benefits under the plan, she thus has the right to seek relief under § 1132(a)(1)(B). In Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), the Supreme Court explained that the "`catchall' provisions [§ 1132(a)(3) and § 1132(a)(5)] act as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 [29 U.S.C. § 1132] does not elsewhere adequately remedy." The Supreme Court granted relief under § 1132(a)(3) to the plaintiffs in Varity Corp. after determining that they could not proceed under any other section of ERISA. Id. at 515, 116 S.Ct. 1065. However, relying on the Supreme Court's reasoning, courts have denied relief under "catchall" provisions of ERISA when the plaintiff could have brought a claim for denial of benefits under § 1132(a)(1)(B). See Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 615 (6th Cir.1998)("Because § 1132(a)(1)(B) provides a remedy for Wilkins's alleged injury that allows him to bring a lawsuit to challenge the plan administrator's denial of benefits to which he believes he is entitled, he does not have a right to a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3).); Schluter v. Principal Life Insurance Co., 2001 WL 476589 at *4 (N.D.Ill.2001)("Schluter could not seek equitable relief under § 502(a)(3) because she is provided adequate relief by her right to bring a claim for denial of benefits under § 502(a)(1)(B)"); White v. Sundstrand Corp., 2000 WL 713739 at *12 (N.D.Ill.2000); Frank v. Ameritech Corp., 1999 WL 1011107 at *4 (N.D.Ill.1999). Plaintiff argues that she should not be precluded from seeking relief under § 1132(a)(3) because she may not be able to obtain benefits under § 1132(a)(1)(B) if Clark's life insurance policy does exclude benefits for those who commit suicide within two years of enrollment. Plaintiff attempts to analogize her situation with that of the plaintiffs in Varity Corp. The plaintiffs in that case were precluded from bringing a claim under § 1132(a)(1)(B) because it only applies to participants and beneficiaries, and plaintiffs were no longer enrolled in the plan. Varity Corp., 116 S.Ct. at 1079. Plaintiff here, on the other hand, does have the right to bring a claim under § 1132(a)(1)(B), regardless of its merits; therefore, she may not seek relief under § 1132(a)(3). See White v. Sundstrand, 2000 WL 713739 at *12 (N.D.Ill.2000)(finding that plaintiffs' unsuccessful denial of benefits claims under § 1132(a)(1)(B) did not make their breach of fiduciary duty claim under § 1132(a)(3) viable). John Hancock goes on to argue why plaintiff cannot state a claim against the company under § 1132(a)(1)(B) - Clark's life insurance plan expressly excludes payment under the given circumstances and an action under this section may only be maintained against the plan itself. The Seventh Circuit has held that actions to recover ERISA plan benefits may only be brought against the benefit plan. Neuma, Inc. v. AMP. Inc., 259 F.3d 864, 872 n. 4 (7th Cir.2001) ("We continually have noted that `ERISA permits suit to recover benefits only against the Plan as an entity.'"); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir.1996)("The appropriate defendant for a denial of benefits claim would be the Plan...."). Therefore, *951 plaintiff's claim for benefits under § 1132(a)(1)(B) cannot be brought against John Hancock. However, it can be brought against Hewitt Associates Life Insurance Plan. John Hancock argues that plaintiff's claim for benefits under § 1132(a)(1)(B) fails, regardless of the named defendant, because the plan expressly excludes benefits for a death resulting from suicide within two years of the date the employee becomes insured. Since the complaint admits that Clark committed suicide within two years of becoming insured, John Hancock argues that the claim must be dismissed. However, a dismissal of this claim is inappropriate because the provisions of Clark's insurance policy are contested by the parties. Plaintiff makes clear that she "does not, could not, admit that the effective policy contained the exclusionary language" to which John Hancock refers. As all allegations in plaintiff's complaint are taken as true, and all ambiguities are resolved in plaintiff's favor, plaintiff states a claim against Hewitt under § 1132(a)(1)(B). Plaintiff maintains that she can also seek relief in count I under § 1132(c)(1)(B). This section states: "(1) Any administrator ... (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper." 29 U.S.C. § 1132(c)(1)(B). John Hancock and Hewitt present different arguments for the dismissal of this claim. John Hancock argues that plaintiff cannot state a claim against the company under this section because the statute only applies to plan administrators. The company also contends that even if plaintiff could bring an action pursuant to § 1132(c)(1)(B), granting death benefits would not be a proper remedy for this technical violation. We agree that this action cannot be brought against John Hancock - it is not the alleged plan administrator. The Seventh Circuit has held that the plan administrator is the proper party to sue for a failure to provide a summary plan description. Hightshue v. AIG Life Insurance Co., 135 F.3d 1144, 1149 (7th Cir.1998); see Klosterman v. Western General Management, Inc., 32 F.3d 1119, 1122 (7th Cir.1994)(finding that both the ERISA statute and case law make clear that the only party responsible for violations of disclosure requirements is the plan administrator). As stated above, plaintiff's complaint identifies Hewitt, not John Hancock, as the plan administrator of Clark's optional life insurance policy. Plaintiff argues that John Hancock should nonetheless be held responsible because it had a copy of the policy, it received requests from plaintiff for such a copy, and, after litigation began, it provided plaintiff with a copy. However, neither John Hancock's possession of the policy, nor its decision to eventually provide plaintiff with a copy, rendered the company liable under the language of § 1132(c)(1)(B). As the alleged plan administrator, Hewitt can be held liable for a failure or refusal "to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary...." See 29 U.S.C. § 1132(c)(1)(B). Hewitt argues *952 that plaintiff cannot state a claim against it under § 1132(c)(1)(B) for two reasons: (1) the plaintiff did not demand a $100 per day penalty as required by the plain language of the section, and (2) just as plaintiff cannot seek a benefits award under the "catchall" provision, § 1132(a)(3), she cannot seek it under § 1132(c)(1)(B). Neither of these arguments compels dismissal. Though plaintiff did not specifically request the $100 per day penalty allowed under § 1132(c)(1)(B), she need not in order to state a claim. Furthermore, plaintiff's request for "any further relief that the court deems just and reasonable" encompasses any statutory penalties allowed for in § 1132(c)(1)(B). Hewitt's second argument also fails. Despite the availability of relief under § 1132(a)(1)(B), plaintiff is not wholly precluded from bringing a claim under § 1132(c)(1)(B), alleging a specific failure to provide requested information. Section 1132(c)(1)(B) is not a "catchall" provision like § 1132(a)(3), which offers appropriate relief only when § 1132 fails to provide an adequate remedy elsewhere. While plan benefits may not be appropriate relief under § 1132(a)(1)(B), plaintiff's request for these benefits does not defeat her claim. Nonetheless, plaintiff's claim still fails, for it does not allege the required elements for a violation of § 1132(c)(1)(B). The complaint states that Hewitt never provided Clark with detailed information on the optional life insurance policy's terms and conditions, nor with a copy of the policy. However, the complaint never alleges that Clark requested such information from Hewitt. Section 1132(c)(1)(B) obliges plan administrators to respond to requests for information, not to supply unsolicited information. While plaintiff does not state that her husband requested information, she does allege that her attorney made a written request for information regarding the life insurance policy on April 24, 2003. As of July 31, 2003, she had not received a response. Assuming that a request for information from a beneficiary's attorney triggers the requirements of § 1132(c)(1)(B),[1] plaintiff still fails to state a claim because the request was not made to Hewitt, the plan administrator, but to John Hancock. Even if plaintiff had successfully alleged that Hewitt or John Hancock breached a duty to supply a copy of Clark's life insurance policy (or any other policy information), she failed to allege that any harm resulted from this breach. To properly plead a § 1132(a)(3) claim "the plaintiff must allege that the breach of fiduciary duty caused some harm to him or her that can be remedied." Kamler v. H/N Telecommunication Services, Inc., 305 F.3d 672, 681 (7th Cir.2002). Plaintiff's alleged harm - defendants' denial of death benefits - was not caused by defendants' alleged breach of duty. Defendants' decision to deny benefits was just or unjust depending on the language of Clark's insurance policy. As noted earlier, we must wait at least until a motion for summary judgment to determine whether plaintiff is owed benefits under the insurance plan. However, it is clear that defendants' alleged failure to provide information did not result in the denial of death benefits to plaintiff. Plaintiff's entitlement (or lack of entitlement) to the insurance benefits, is wholly independent of her receipt *953 of a copy of the policy or any other information regarding the plan. Counts II and III In Count II, plaintiff alleges that defendants breached their life insurance contract with Clark by failing to provide him with a copy of the policy and denying plaintiff's claim. Count III states that defendants violated the Illinois Insurance Code, §§ 215 ILCS 5/154.5 and 5/154.6, by knowingly misrepresenting policy provisions and denying plaintiff's claim in bad faith. Defendants maintain that these claims are preempted by ERISA. While plaintiff does not contest that she cannot succeed on both her ERISA claim and Counts II and III, she asserts that her state law claims are not preempted because they are pled in the alternative. The Supreme Court discussed the scope of ERISA preemption in Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Noting the "expansive sweep" of § 514(a) of ERISA, the court determined that ERISA preempts any state law, including common law, that relates to an employee benefit plan. Id. at 48-49, 107 S.Ct. 1549. Plaintiff's breach of contract claim and Illinois Insurance Code claim, which are both rooted in Clark's optional life insurance policy, relate to an employee benefit plan. Thus, the preemption clause applies to these claims unless they fall within an ERISA preemption savings clause. In its motion to dismiss, Hewitt provides two reasons why plaintiff's Illinois Insurance Code claim is not saved by 29 U.S.C. § 1144(b)(2)(A), which states that nothing in the subchapter on preemption "shall be construed to exempt or relieve any person from any law of any State which regulates insurance...." Hewitt argues that Count III is preempted because the Illinois statutes upon which plaintiff relies do not qualify as laws that regulate insurance under the Supreme Court's interpretation of § 1444(b)(2)(A), see Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, ___, 123 S.Ct. 1471, 1479, 155 L.Ed.2d 468 (2003), and that it calls for state law remedies which supplement the remedies allowed by § 502 of ERISA, see Rudman v. Time Ins. Co., 1995 WL 239390 at *5-6 (N.D.Ill.1995). Plaintiff does not contest these arguments. Plaintiff does maintain, however, that she may plead these state law claims in the alternative, in the event that her ERISA claim does not succeed. Defendants respond that the likelihood of a party's success in bringing a claim has no effect on ERISA preemption. As defendants point out, in Pilot Life Ins. Co. the Supreme Court stated, "The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA." 481 U.S. at 54, 107 S.Ct. 1549. This language does not allow for plaintiffs to opt out of ERISA to pursue other state law claims related to an employee benefit plan, nor does it allow for plaintiffs to plead alternative claims in the event their ERISA claims fail. As the Seventh Circuit has expressly stated. "[T]he availability of a federal remedy is not a prerequisite for federal preemption." Lister v. Stark, 890 F.2d 941, 946 (1989). CONCLUSION For the foregoing reasons John Hancock's motion to dismiss all counts is granted. Hewitt's motion to dismiss Counts II and III is granted; however, its motion to dismiss Count I is denied. NOTES [1] In Bartling v. Fruehauf Corp., 29 F.3d 1062, 1072 (6th Cir.1994), the Sixth Circuit found that the beneficiary's attorney's request was not equivalent to that of the beneficiary. The court held that under ERISA a plan administrator is not required to disclose plan documents to a participant's or beneficiary's attorney absent a written release signed by the participant or beneficiary.

218 Wis.2d 605 (1998) 581 N.W.2d 564 IN RE the MARRIAGE OF: SCOTT M.H., Petitioner-Respondent, v. KATHLEEN M.H., Respondent-Appellant. IN the INTEREST OF RICHARD J.H., a Child Under the Age of Eighteen: SCOTT M.H., Petitioner-Respondent, v. KATHLEEN M.H., Respondent-Appellant. Nos. 97-0814, 97-0815. Court of Appeals of Wisconsin. Submitted on briefs March 3, 1998. Decided April 15, 1998. *607 On behalf of the respondent-appellant, the cause was submitted on the brief of Christine Harris of Milwaukee. On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Huismann of Waukesha. A guardian ad litem brief was filed by Daniel M. Kile of New Berlin. Before Snyder, P.J., Brown and Nettesheim, JJ. NETTESHEIM, J. Kathleen M.H. appeals from a trial court order which changed the custody and primary placement of her child, Richard, to her former husband, Scott M.H. The matter came before the trial court upon Scott's petition for a child abuse injunction pursuant to § 813.122, STATS. Although the trial court held that Scott had established grounds for an injunction, the court declined to issue an injunction. Instead, the court changed Richard's placement and custody in the parties' divorce action pursuant to § 767.325, STATS. On appeal, Kathleen contends that the child abuse injunction statute, § 813.122, STATS., does not authorize *608 a custody or placement change. Kathleen further argues that the trial court violated her due process right to notice when it transferred Richard's placement and custody under the aegis of the parties' divorce action. We disagree. We hold that § 813.122 envisions the possibility of a custodial or placement change when the respondent in the action is the custodial parent under a divorce judgment or order. We further hold that Kathleen had notice that her custodial or placement rights were at issue in the proceedings in the trial court. Kathleen and Scott were divorced on March 23, 1993. The parties were awarded joint legal custody of their only child, Richard, and Kathleen was awarded primary physical custody. In August 1995, Scott filed a motion in the divorce action seeking sole custody and placement of Richard. For reasons not explained in the parties' briefs, this matter was not scheduled for hearing until over a year later, in December 1996. However, prior to the scheduled hearing, Scott filed a petition for a temporary child abuse restraining order and injunction against Kathleen pursuant to § 813.122, STATS. The petition alleged that Kathleen had engaged in physical and sexual abuse of Richard who was then three years old. A hearing on this petition was held over a four-day period in late September and early October 1996. In a written order dated December 2, 1996, the trial court recited its finding that "the evidence submitted by Scott [H.] in support of his Petition for a child abuse injunction against Kathleen [H.], pursuant to § 813.122, Wis. Stats. is overwhelming. . . . [T]here is reasonable grounds to believe that Kathleen [H.] has engaged in, and based upon her prior conduct, may engage in abuse of Richard." Despite this finding, the *609 court dismissed the injunction action, instead taking jurisdiction over the matter in the parties' divorce action. Wearing its "divorce hat," the court changed Richard's custody and placement to Scott pursuant to § 767.325, STATS. The court additionally ordered supervised placement of Richard with Kathleen one time per week. The trial court stated that it was relying upon the evidence presented at the injunction hearing in support of its decision. Kathleen appeals the trial court's order. We begin by addressing Scott's contention that Kathleen waived her right to object to the trial court's procedure on appeal because she did not raise the issue before the trial court. Although this is a close question, we conclude that Kathleen did sufficiently preserve the issue for appellate review. [1] At the conclusion of the hearing, the trial court stated that it was considering dismissing the injunction action in favor of addressing the issue as part of Scott's pending motion for a change of Richard's custody and placement in the divorce action which was scheduled for a hearing some months later. Kathleen's attorney responded as follows: I think the court has reached a point in this trial it wants to make a decision, and I think the court is fully aware of the facts. Our position is [the abuse] didn't occur, that there has not been a meeting to the burden of proof. And I ask the court to not. . . move forward . . . in the injunction. Because as I said we don't object to dealing with it within—within the confines of the divorce case. Scott relies on the above statement in support of his waiver claim. However, we take note that Kathleen's *610 attorney completed the foregoing statement by noting his and Kathleen's "concern[ ] that [their] position on custody be fully presented to the court." Thus, despite counsel's statement that Kathleen would not object to the court acting in the divorce action, Kathleen was nevertheless seeking assurance that she be fully heard on the custody and placement issues. We therefore reject Scott's argument that Kathleen has waived her appellate claim that she was not on notice that her custody and placement rights to Richard were at risk. We thus turn to the merits. Kathleen first argues that the trial court acted without statutory authority when it modified Richard's custody and placement. She contends that the injunction statute, § 813.122, STATS., does not permit such action. She correctly notes that the statute is silent on the issue of custody in such a proceeding. Scott and Richard's guardian ad litem similarly agree, but they contend that § 813.122 implicitly authorizes the court to modify custody and primary placement of an abused child when the respondent is a custodial parent under a divorce judgment or order. [2] The issue presented in this case involves the interpretation of § 813.122, STATS. Statutory construction presents a question of law which we review independently. See Gonzalez v. Teskey, 160 Wis. 2d 1, 7-8, 465 N.W.2d 525, 528 (Ct. App. 1990). Pursuant to § 813.122(5)(a)3, STATS., the circuit court may issue an injunction ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim if the court finds "reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the child victim and the respondent may engage in, abuse of the child victim." The injunction issued "is effective *611 according to its terms, but for not more than 2 years or until the child victim attains 18 years of age, whichever occurs first." Section 813.122(5)(d)1. Kathleen argues that because § 813.122, STATS., does not expressly speak to the issues of custody or placement, the trial court acted beyond its statutory authority when it changed Richard's custody and placement following the hearing. However, we conclude that a transfer of custody is implicitly envisioned by § 813.122(5)(b) of the statute which states: "If the respondent is the parent of the child victim, the judge shall modify the order under par. (a) to provide the parent reasonable visitation rights, unless the judge finds that visitation would endanger the child's physical, mental or emotional health. The judge may provide that any authorized visitation be supervised." It is evident from this language that if the respondent parent is also the custodial parent, as is Kathleen in this case, visitation rights could not be accorded unless custody were transferred. This implicit authority is also revealed by the language of subsec. (5)(a) which allows the judge in an injunction proceeding to order the respondent to "avoid the child victim's residence . . . and to avoid contacting . . . the child victim unless the petitioner consents . . . and the judge agrees." Section 813.122(5)(a), STATS. If the respondent parent is also the custodial parent, as is Kathleen in this case, such limitations on contacts with the child could not be ordered unless custody were transferred.[1] *612 We conclude that the trial court has the authority to address custody and placement issues as they become pertinent to a hearing under § 813.122, STATS. Our interpretation of the statute controls Kathleen's related appellate complaint that the trial court nonetheless erred by issuing its order under the aegis of the parties' divorce action. Despite finding that Kathleen had abused Richard and that the grounds for an injunction had been established, the court declined to issue an injunction. The court stated: The difficult thing about this case to the court is . . . the restraining order . . . is a complete bar restraining the mother from going upon the premises where the child lives, and all sorts of things. . . . I don't think that is necessary. Therefore, the court dismissed the injunction petition in favor of addressing the abuse in the context of the parties' divorce action. The court then determined that Richard's custody and placement would be transferred to Scott with weekly supervised visitation periods with Kathleen. Even if we assume that the trial court procedurally erred by invoking its divorce jurisdiction, we hold that the error was harmless. As we have just explained, the injunction statute envisions a change of custody or placement when the respondent is the custodial parent. Here, the court factually determined that the grounds for an injunction had been established. Thus, the court could have entered the same order changing Richard's custody and placement in the injunction proceeding— the matter which was actually litigated. The court turned to the divorce action only because it concluded *613 that an injunction was too harsh and restrictive a sanction against Kathleen. We fail to see how Kathleen was harmed or can complain about that action. [3,4] We conclude that Kathleen did not waive her right to challenge the trial court procedures on appeal. However, we conclude that § 813.122, STATS., implicitly envisions a change of placement and custody if the trial court issues a child abuse injunction against a parent who has custody or placement of a child under a divorce judgment or order. As such, Kathleen had notice that her custodial and placement rights were at issue at the injunction hearing. We conclude that the trial court's procedures did not violate Kathleen's due process rights to fair and adequate notice. By the Court.—Order affirmed. NOTES [1] We find further support for our holding under § 813.122(5) (e), STATS., which authorizes the trial court to "direct the payment of child support using a method of calculation authorized under s. 767.25" if the court issues an injunction. Like visitation a recalculation of child support is an issue which need only be addressed if custodial arrangements are altered.

5 F.3d 530 McGinnis (Roy)v.Shalala (Donna E.); Musmeci (Peggy) v. Shalala (Donna) NOS. 92-3269, 92-3568 United States Court of Appeals,Fifth Circuit. Sept 15, 1993 E.D.La., 2 F.3d 548 1 DENIALS OF REHEARING EN BANC.

37 F.3d 1488 Salloum (Lisa M.)v.USAir, Inc. NO. 94-3108 United States Court of Appeals,Third Circuit. Aug 19, 1994 Appeal From: W.D.Pa., Lee, J. 1 AFFIRMED.

Case: 16-11308 Document: 00514077865 Page: 1 Date Filed: 07/18/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-11308 FILED Summary Calendar July 18, 2017 Lyle W. Cayce Clerk JOSEPH ARTHUR BOLTON, Petitioner-Appellant v. UNITED STATES OF AMERICA, Respondent-Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CV-582 Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. PER CURIAM: * Joseph Arthur Bolton, federal prisoner # 35674-177 and Texas prisoner # 1816000, appeals the district court’s denial of his postjudgment “motion seeking relief from federal detainer.” Bolton’s term of supervised release for threatening the president of the United States was revoked, and his 14-month revocation sentence was ordered to be served consecutively to any state * 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: 16-11308 Document: 00514077865 Page: 2 Date Filed: 07/18/2017 No. 16-11308 sentence imposed. Bolton’s postjudgment motion requested that his federal revocation sentence be ordered to run concurrently to his state sentence. On appeal, Bolton, who is in state custody, argues that he is entitled to credit towards his federal revocation sentence for his time spent in state custody because his state confinement resulted from his federal probation officer’s communication with a state police officer and because the federal detainer made him unable to post bail in state court. He also argues that his sentences should run concurrently in the interest of justice because counsel failed to raise the aforementioned issues before the district court. Those arguments, raised for the first time on appeal, will not be considered. See Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011). No provision conferred the district court with jurisdiction to consider Bolton’s postjudgment motion. Although the district court construed the motion as being raised pursuant to 28 U.S.C. § 2241, Bolton was incarcerated in the Southern District of Texas, and thus, the Northern District of Texas did not have jurisdiction to consider it under § 2241. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Moreover, as Bolton’s motion before the district court did not raise any errors that occurred at or prior to sentencing, 28 U.S.C. § 2255 did not provide a jurisdictional basis for the motion. Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). The motion could not have been filed pursuant to either 18 U.S.C. § 3742 or 18 U.S.C. § 3582(c). Regarding § 3742, Bolton’s time for filing a direct appeal ended in 2013. As to § 3582(c), Bolton, not the Bureau of Prisons, filed the motion. Moreover, in the motion, Bolton did not base his request for relief on any action of the United States Sentencing Commission. Federal Rules of Criminal Procedure 35 and 36 likewise do not apply. Bolton’s motion and circumstances do not fit within any of the provisions of 2  Case: 16-11308 Document: 00514077865 Page: 3 Date Filed: 07/18/2017 No. 16-11308 Rule 35. Moreover, his motion, which essentially sought credit for time served in state prison, is not cognizable under Rule 36. See United States v. Mares, 868 F.2d 151, 151 (5th Cir. 1989). In light of the foregoing, we AFFIRM on the alternative basis that the district court lacked jurisdiction to consider the motion. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Bolton’s motion for the appointment of counsel is DENIED. 3 

507 So.2d 911 (1987) DALLAS COUNTY BOARD OF EDUCATION v. John C. HENRY, et al. 85-656. Supreme Court of Alabama. May 1, 1987. John E. Pilcher of Pilcher & Pilcher, Selma, for appellant. J. Doyle Fuller and C. Knox McLaney, Montgomery, for appellees. STEAGALL, Justice. The issue in this case is whether the trial court correctly denied the motion of appellant, Dallas County Board of Education (hereinafter "Board"), to intervene in a lawsuit pending in the Circuit Court of Dallas County. We affirm. The suit in which the Board seeks to intervene was brought as a class action challenging the method used to determine the "current use" valuation of land for ad valorem tax purposes and seeking a refund of such taxes improperly collected. Named as defendants in the suit are the state commissioner of revenue, the state treasurer, the Dallas County tax assessor, the Dallas County tax collector, and the chairman of the Dallas County Commission. The Board sought to intervene as a party defendant as a matter of right pursuant to Rule 24(a), A.R.Civ.P. The trial court's denial of the Board's motion to intervene is an appealable order. Crossfield v. Allen, 494 So.2d 21 (Ala.1986); United States Fidelity & Guaranty Co. v. Adams, 485 So.2d 720 (Ala.1986); Thrasher v. Bartlett, 424 So.2d 605 (Ala.1982). Rule 24(a)(2), A.R.Civ.P., provides: "Upon timely application, anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." In order to determine whether the trial court erred in denying the Board's motion to intervene, we must consider the interest of the Board in the pending action. United States Fidelity & Guaranty Co. v. Adams, supra. The Board claims an interest in the action because a portion of the collected taxes that are the subject of the lawsuit was paid to the Board. According to the brief filed by the Board, approximately 25 percent of the taxes were dispersed to the Board by the county tax collector, and the Board "could be required to refund or pay" its proportionate share should the plaintiffs prevail in this action. Thus, the Board contends that it is precluded from protecting *912 its interest due to the trial court's denial of its motion to intervene. In State v. Colonial Refrigerated Transportation, Inc., 48 Ala. App. 46, 261 So.2d 767 (Ala.Civ.App.1971), aff'd, 288 Ala. 433, 261 So.2d 772 (1972), the Court of Civil Appeals determined that the trial court had abused its discretion in permitting a county board of education, a city, and a county director of revenue to intervene in an action in which the State sought to collect "escape ad valorem taxes" from Colonial. The intervenors argued "that they had an interest in the outcome of the litigation because they stood to gain revenue if the State was successful, and they stood to lose if Colonial was successful...." 48 Ala.App. at 49, 261 So.2d at 769. The Colonial court decided that the interest of the would-be intervenors in the litigation "amounts to no more than `concern' for the outcome, as any other recipient of tax benefits would exhibit. For example, any parent with a child in the county or city schools would be concerned, and any other citizen of the county would be concerned about the availability of tax money for the various services supplied by these governmental agencies." 48 Ala. App. at 50, 261 So.2d at 771. In the present case, we perceive the "interest" of the Board in the pending litigation to be no different from the "interest" advanced by the would-be intervenors in the Colonial case. The Board's assertion that a judgment ordering a refund of ad valorem taxes already collected and paid to the Board will impair the Board's ability to operate the Dallas County schools is no more than the assertion of a "concern" for the outcome of the litigation. This concern is undoubtedly shared by all citizens of the county, as well as by any other governmental agencies that received any part of the taxes claimed by plaintiffs to have been improperly collected. We are of the opinion that the Board does not have an interest in the subject of the pending action that will permit its intervention as of right pursuant to Rule 24(a), A.R.Civ.P. The order of the trial court is affirmed. AFFIRMED. TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.

774 So.2d 899 (2001) John J. LEACH, Appellant, v. STATE of Florida, Appellee. No. 4D00-922. District Court of Appeal of Florida, Fourth District. January 3, 2001. *900 Craig A. Boudreau, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Thomas C. Mielke, Assistant Attorney General, Fort Lauderdale, for appellee. PER CURIAM. Appellant, John J. Leach, pled guilty to felony driving under the influence and felony driving while his license was suspended. The lowest permissible prison sentence computed on appellant's guidelines scoresheet was 20.025 months. Leach was sentenced to twenty months in the Department of Corrections on the first count. On the second count Leach was sentenced to five years probation including completion of the long term Sheriffs Drug Farm program, as a special condition of probation. The probation period was to run consecutively to the prison sentence. Through his counsel, Leach filed a Motion to Correct Illegal Sentence in which he asserted that his sentence violated section 922.051, Florida Statute (1999), because the total of his cumulative sentence exceeds one year. The trial court denied the motion without a hearing and Leach timely filed this appeal. Leach argues on appeal that the trial court should have held a hearing to determine whether the special condition of probation, completing the Sheriff's Drug Farm program, was considered incarceration in the county jail. If it was, his sentence violates section 922.051, Florida Statutes (1999). That section provides: Imprisonment in county jail, term of 1 year or less When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of the prisoner's cumulative sentences is not more than 1 year. Under this statute, if Leach's sentence to the drug farm is considered incarceration, Leach's total cumulative sentence of twenty-nine months exceeds the one year limit. See Fleming v. State, 637 So.2d 945 (Fla. 5th DCA 1994). As there is no evidence in the record below from which to determine whether the sentence to the drug farm is sufficiently restrictive to be deemed the equivalent of incarceration, we reverse and remand for an evidentiary hearing to make that determination. See, e.g., Whitehead v. State, 677 So.2d 40 (Fla. 4th DCA 1996). See also Kamerman v. State 765 So.2d 63 (Fla. 4th DCA 2000); Rasik v. State, 717 So.2d 618 (Fla. 4th DCA 1998). REVERSE AND REMAND FOR EVIDENTIARY HEARING. AFFIRMED. STONE, SHAHOOD and HAZOURI, JJ., concur.

137 Ind. App. 605 (1965) 210 N.E.2d 446 MYLER v. MYLER ET AL. No. 20,123. Court of Appeals of Indiana. Filed October 6, 1965. *606 James D. Williams, of Corydon, for appellant. Robert W. Davis, of Corydon, for appellee. PRIME, P.J. Appellant brought this action in the Crawford Circuit Court to subject an interest held by appellee, Doit Myler, in certain real estate to appellant's claim resulting from unpaid support payments alleged to be due the appellant pursuant to a divorce decree entered of record on February 19, 1949, in the same court. The issues were raised by appellant's third amended complaint containing six (6) legal paragraphs and her first amended supplemental complaint, to which the appellees filed their demurrer. Appellees filed two demurrers to each complaint (third amended and supplemental), one by appellees, Doit and Hattie E. Myler, and one by Mary Beth Myler. However, inasmuch as the same questions are raised by both, we shall treat them as one. The trial court sustained both demurrers to each legal paragraph of the third amended complaint, and also both demurrers directed to the first amended supplemental complaint. Appellant refused to plead over and assigns as error the above rulings of the court. *607 The record discloses that the appellant, Dorothy Myler, and the appellee, Doit Myler, were divorced in 1949, custody of their three minor children being awarded to Dorothy Myler, and a support order was entered requiring the said Doit Myler to make weekly payments to the Clerk of the Court for the support of the three children. The record indicates that in 1953, the decree was modified to the extent of temporarily relieving Doit Myler of his legal obligation of support because of physical incapacitation. No further changes were made in respect to the divorce decree. In 1956, Hattie E. Myler, mother of the said Doit Myler, conveyed a certain parcel of real estate to her son, Doit Myler, and his second wife, Mary Beth Myler, as husband and wife, and reserved unto herself a life estate. The record fails to reveal whether or not any consideration passed to the said Hattie E. Myler from Doit or Mary Beth Myler individually or jointly, or whether the interest in the said real estate was a gift from the mother to her son and daughter-in-law. This action was commenced in 1958 by appellant in an effort to subject the interest of Doit Myler in the real estate acquired by him in 1956 to a claim of the appellant for unpaid support which she alleged had accrued and remained unpaid over the years subsequent to the decree of 1949 and prior to the conveyance in 1956. A substantial amount of the arrearage appears to have accrued prior to the modification order of 1953. No question was raised in the trial court as to the effect of the modification order on this cause, and in view of the decision hereinafter reached, we deem it unnecessary to consider the same, irrespective of the fact that we are permitted to go outside the memorandum to the demurrer in order to uphold the trial court's ruling in sustaining the said demurrer as urged by appellees in their answer *608 brief. Pelfree v. State (1957), 237 Ind. 302, 304, 145 N.E.2d 295; Lynch v. Holy Name Church (1962), 133 Ind. App. 492, 499, 179 N.E.2d 754. Legal paragraphs one, two, three and six raise the issue of whether or not appellant has acquired a lien against the interest in the land held by Doit Myler and Mary Beth Myler as tenants by the entireties by virtue of the 1949 decree and pursuant to the judgment lien statute of the state under the Acts 1881 (Spec. Sess.), Ch. 38, § 601, p. 240; 1929, Ch. 83, § 2, p. 278, the same being § 2-2706, Burns' 1946 Replacement. This very question was before this court in the case of Rosenberg v. American Trust, etc., Bank (1927), 86 Ind. App. 552, 156 N.E. 411, wherein the court stated at p. 556 as follows: "An order for the payment of money which may thereafter be so modified cannot be said to be a final judgment constituting a statutory lien on real estate. Wolverton v. Wolverton (1904), 163 Ind. 26, 35, 71 N.E. 123; Mansfield v. Hill (1910), 56 Ore. 400, 108 Pac. 1007; § 629 (§ 659 Burns' 1926) supra." We reaffirm this statement of the law and deem it to be controlling in the case at bar. Legal paragraph four of appellant's complaint alleges a right to recover on the theory that appellant first be granted a judgment against the appellee for unpaid support owed pursuant to the 1949 decree, which judgment would in turn become a lien against the interest of the appellee, Doit Myler, in the said real estate held as a tenancy by the entireties, said tenancy being held fraudulently with respect to the said appellant. To the effect that such procedure is proper, see Probst v. Probst (1942), 220 Ind. 200, 41 N.E.2d 608. *609 However, paragraph four fails to allege that the appellee, Doit Myler, used any of his own funds or furnished any portion of the consideration in acquiring the parcel of land in question. In an action to set aside a conveyance made to defraud transferee's creditors, such is an essential allegation in the complaint. Vonville v. Dexter (1948), 118 Ind. App. 187, 76 N.E.2d 856, 77 N.E.2d 759 rehearing denied. Legal paragraph five is based upon a theory not wholly clear from a reading of the complaint. However, it appears that appellant is asking the court to subject the interest of appellee, Doit Myler, in the real estate to the delinquent support payments by way of equitable relief. Pensinger v. Jarecki Mfg. Co. (1922), 78 Ind. App. 569, 136 N.E. 641. In any event, again the allegation that consideration was furnished by appellee, Doit Myler, is necessary and essential before paragraph five can state a cause of action based upon a theory of property being fraudulently held as tenancy by the entireties to the detriment of an individual creditor. Vonville v. Dexter, supra. Furthermore, absent a showing of fraud, the law is well settled in this state that a conveyance of real estate to a husband and wife creates an estate by the entireties which is immune to seizure and satisfaction of the individual debts of either. Eilts v. Moore (1946), 117 Ind. App. 27, 68 N.E.2d 795. Since the trial court did not err in sustaining the demurrer directed to all six legal paragraphs of appellant's third amended complaint, a fortiori the demurrer directed to the first amended supplemental complaint was properly sustained. Carr v. Besse (1924), 82 Ind. App. 124, 127, 143 N.E. 639. *610 Judgment affirmed. Carson and Wickens, JJ., concur. Faulconer, J., concurs in result. NOTE. — Reported in 210 N.E.2d 446.

39 Wn.2d 934 (1952) 239 P.2d 1051 CLARIBEL SIMPSON et al., Respondents, v. JOHN DOE et al., Defendants, STERLING THEATRES, INC., Appellant.[1] No. 31830. The Supreme Court of Washington, Department Two. January 17, 1952. Peyser, Cartano, Botzer & Chapman, for appellant. Kahin, Carmody & Horswill and Hereford T. Fitch, for respondents. HAMLEY, J. This action was brought to recover damages for injuries sustained when Mrs. Claribel Simpson fell in the ladies' lounge at the Garden Theatre, in Seattle. Mrs. Simpson will be referred to as if she were the only plaintiff and respondent. The theatre is owned and operated by Sterling Theatres, Inc., which was the only defendant served with the complaint. The jury returned a verdict for plaintiff in the sum of fifteen thousand dollars. Motions for judgment for defendant n.o.v., or, in the alternative, for a new trial, were denied, and judgment was entered on the verdict. Defendant appeals. *935 The only issue before us is whether Mrs. Simpson was contributorily negligent as a matter of law. This calls for a consideration of the pertinent evidence, viewed in the light most favorable to respondent. On the afternoon of May 14, 1949, Mrs. Simpson, then forty-nine years old, entered the theatre and took a seat on the main floor of the auditorium. During the intermission between two pictures, she left her seat for the purpose of going to the ladies' rest room. She walked up a carpeted stairway and entered the ladies' lounge. This was a rectangular room approximately eight and a half feet wide and seventeen feet long. Entrance to the lounge was gained by parting curtains over a doorway at one end of the room. The lounge was carpeted, wall to wall, with a rug of some medium shade which was neither extremely light nor extremely dark. The windows were draped so that no natural light entered the room. There was a light fixture in the ceiling of the lounge, but it was apparently not in use when Mrs. Simpson entered. However, there was a floor lamp in the corner opposite the entrance door, and at the same end of the lounge, which cast a glaring light toward the ceiling. The diffusion of this light was such that one could not read in the area adjacent to the lamp, and the other end of the lounge was only "dimly" lighted. However, there was sufficient light to enable one to find the door leading to the ladies' toilet room, which was located at the far end of the lounge. The floor level of the toilet room was about five inches higher than the floor level in the lounge. A step of that height was located flush with the doorway leading into the toilet room. The door between the two rooms swung inward towards the toilet room. The floor of the latter room consisted of grayish white tile, which was lighter than the lounge rug but tended to blend with it. The toilet room was well lighted. When Mrs. Simpson entered the lounge, she turned to her right, walked the length of the room, and entered the toilet room. She had no difficulty in finding the door to the *936 toilet room or in making the step up into that room. She testified that the lounge was dimly lighted "but not too dark to feel your way around." Mrs. Simpson admitted that she must have stepped up on going into the toilet room, but testified that the step was not impressed on her mind and she had no recollection of having stepped up as she entered that room. After a few minutes, she opened the door to leave that room, and hesitated slightly while she looked out into the lounge. She did not look directly down at her feet, but looked at the floor about three feet ahead of her "as you naturally look ahead as you walk." The light coming through the open doorway from the toilet room cast some additional light into the lounge, but this was minimized by the shadow cast by Mrs. Simpson's figure in the doorway. She did not notice the difference in floor level between the two rooms as she stepped forward into the lounge. She consequently fell, sustaining the injuries for which she seeks recovery. Eight witnesses corrobated Mrs. Simpson's testimony that the lounge was dimly lit. Six of these witnesses corroborated her testimony as to the deceptively level appearance of the floors of the two rooms, as viewed by one entering the lounge from the toilet room. One of these witnesses had broken her hip in a similar fall the previous summer under lighting conditions substantially the same as on the day here in question. There was no sign, hand rail, lighting or other device to give warning of the step. The facts summarized above indicate that Mrs. Simpson's fall was not due to a slippery or defective condition of the step, or because the step was abnormally high. It was due entirely to the fact that, when she walked back into the lounge, Mrs. Simpson was then unaware that there was any step at that place. Does such unawareness evidence contributory negligence on her part? The jury, who heard the witnesses and examined the premises, thought not. The trial judge agreed, *937 or at least concluded that there was substantial evidence to support the jury's finding. Except for the fact that Mrs. Simpson had used this same step a few minutes earlier, it is clear that this finding is supported by substantial evidence. The testimony overwhelmingly established that a deceptive condition existed relative to the floor levels of the two rooms. The jury verdict and judgment in fact foreclose that issue, since no error is assigned relative to the finding of appellant's primary negligence. Where the existence of deceptive conditions as to the presence of a hazard or danger is thus established, this in itself tends to negative a claim that one who is, in fact, deceived by such conditions, is guilty of contributory negligence. [1] The evidence shows affirmatively that Mrs. Simpson did not walk out into the lounge without looking where she was going. She hesitated momentarily and looked at a place on the floor about three feet ahead of her. We need not speculate as to whether she would have noted the step had she looked directly at her feet as she passed through the doorway. Where there is no reason to anticipate a hazard, reasonable care does not require one who is walking in a place provided for the purpose to keep his eyes riveted to the floor immediately in front of his feet. Griffin v. Cascade Theatres Corp., 10 Wn. (2d) 574, 583, 117 P. (2d) 651; Smith v. Manning's, Inc., 13 Wn. (2d) 573, 578, 126 P. (2d) 44. It is argued, however, that though Mrs. Simpson was not aware of the step at the time she fell, she should have been aware of it because she had used the step only a few minutes earlier. The legal question posed by this contention is not whether the jury could have based a finding of contributory negligence on respondent's failure to keep the step in mind, but whether such failure constitutes contributory negligence as a matter of law. Appellant contends that an affirmative answer to this question is required in view of our decision in Viles v. Thunborg, 164 Wash. 190, 2 P. (2d) 666. The facts recited *938 in that opinion indicate that Mrs. Viles went to visit a friend in the defendant's hotel. Sometime later, she desired to go to a rest room and received directions from the hotel tenant whom she was visiting. She stepped into a short hallway, walked north until she reached a hallway extending east and west, and then walked eastward. She passed the doors of several guest rooms along the south side of this hallway and, after walking eastward about sixty feet, came to the rest room on the same side. According to Mrs. Viles' testimony, an electric light attached to the wall a few feet east of the rest room was not burning, and the hallway was quite dark. However, the door of the rest room was standing ajar, and rays of light were reflected from that room into the hallway. She testified that, as she approached and entered the rest room, she observed that the floor was some five or six inches higher than the floor in the hallway. "I saw it and stepped up on it." The door of the rest room opened inwardly. On leaving the rest room a few minutes later and while stepping down into the hallway, she fell and was injured. Examination of the briefs filed in the Viles case indicates that Mrs. Viles' testimony as to whether she saw the step when she came out was somewhat conflicting and unsatisfactory. She first testified that she did not "notice" the step, never "thought" of the step, and "was looking down the hall and not remembering the step." She later testified, however, that "I do not remember if I saw the step when I came out. I was looking for a light." Mrs. Viles' testimony as to the care she exercised while leaving the rest room was also indefinite and conflicting. At one point she testified that she walked "right out." Later she testified that "I was looking for my bearing in the hall ..." The jury returned a verdict for Mrs. Viles, but the trial judge granted judgment for the defendant n.o.v. We affirmed, saying in part: "If she `walked right out,' then clearly she failed to exercise due care for her own safety, because as she entered *939 the lavatory she was aware of the step-off. If she was `looking for her bearing,' then she was cognizant of the step-off and it was incumbent upon her to exercise such care in stepping into the hallway as not to be precipitated onto the floor. This she failed to do.... "Upon approaching and entering the lavatory, she observed that the level of the toilet was higher than the level of the adjacent hallway, and she ascended to the higher level without difficulty or mishap. A few minutes later, on leaving the lavatory through the same door and over the same step, either because of inattention, thoughtlessness, haste, or miscalculation, she fell and sustained the injuries complained of. If, as she says, the hallway was dark or poorly lighted, then it was incumbent upon her to proceed with greater caution, and wait, after she had opened the door, until she had fixed in her mind's eye the floor level of the hallway before attempting to descend the step. Her failure to do this was the proximate cause of the injury, and bars any recovery against the respondent." (pp. 194-198) The judgment n.o.v. in the Viles case might well have rested upon the ground that Mrs. Viles must have actually been aware of the step as she left the rest room, or, if she was not aware of it, that she could have seen the step if she had exercised reasonable care. Nevertheless, in the quoted portion of the Viles opinion, the court infers that, having used the step as she entered the rest room, Mrs. Viles is chargable with being aware of it as she left. This reasoning may have been entirely justified under the particular facts of the Viles case. The door of the rest room was ajar as Mrs. Viles approached, tending to call particular attention to the step. She recalled, at the time of the trial, that she had seen the step as she entered the rest room. Before reaching the rest room, Mrs. Viles had proceeded down a long, level hallway, with only this one step to a different level. In the case before us, the facts are different in each of these respects. The door to the toilet room was not ajar, and there existed no circumstance tending to call special attention to the step. While Mrs. Simpson must have seen the step as she entered the toilet room, it made no impression *940 on her mind, and later she could not recall having seen or used the step. Before entering the toilet room, Mrs. Simpson had just come up the carpeted stairway leading to the lounge. In this latter respect the instant case is much like Hayden v. Colville Valley Nat. Bank, 180 Wash. 220, 39 P. (2d) 376, where a judgment for the defendant, n.o.v., was reversed. The plaintiff there, in walking to the second floor of an office building, had mounted a flight of twenty-seven steps, crossed a landing, and then mounted one additional step at right angles to the main stairway. She fell when, on her descent to the street, she failed to notice this top single step. While there were other factors, not here present, tending to divert the plaintiff's attention, the opinion indicates that the experience of mounting the main stairway immediately prior to using the single step tended to excuse the plaintiff from recalling the step when she retraced her way. In our view, the decision in the Viles case does not purport to lay down a general rule, applicable in all cases, or in this case, that one who takes a step up to a higher level is contributorily negligent, as a matter of law, in failing to remember that step while retracing his way a few minutes later. Appellant has cited a number of cases from other jurisdictions. Several of these are not "retracing" cases and so have no bearing upon the question of whether one is necessarily negligent in failing to remember a step recently used. Among the other decisions cited by appellant is Burdeaux v. Montgomery Ward & Co. (La. App.), 192 So. 728. In this case the fall was caused by a swinging toilet door, there being no claim that the plaintiff was unaware of the step. Likewise, in Pierce v. Burlington Transp. Co., 139 Neb. 423, 297 N.W. 656, there was no such claim, the plaintiff having slipped on the floor and then having fallen over the step. In Ware v. Evangelical, etc., 181 Mass. 285, 63 N.E. 885, the court made a passing remark to the effect that the plaintiff had not stumbled over the step as she went in. *941 However, this observation was made in connection with the court's ruling that the defendant was not guilty of primary negligence in maintaining the step. In Watkins v. Piggly Wiggly Bird Co., 31 F. (2d) 889, the plaintiff stopped on the sidewalk, in broad daylight, and pulled a screen door towards her before making a step up to the floor level of a store. She fell in leaving the store, when she pushed open the screen door "and stepped forward without looking." The court stated, among other things, that, having used the step a short time before, the plaintiff "knew the difference in the level" between the sidewalk and the floor of the store. In Wessner v. Blue Ridge Transp. Co., 338 Pa. 161, 12 A. (2d) 559, plaintiff's attention was called to the higher level of a toilet compartment when she stopped to deposit a coin before opening the door. She was injured when she left the compartment and "stepped forward without looking." The court observed that, having used the step in entering the compartment, the plaintiff "had actual notice that the step was there." In view of the factual situations involved in the Watkins and Wessner cases, the quoted observations relative to the plaintiff's duty to remember the step were probably entirely appropriate. Each of these two cases, as did the Viles case, involved circumstances calling particular attention to the step in question, fixing its presence in the mind of the plaintiff. We do not believe they can be regarded as announcing a general rule which is controlling with regard to the substantially different facts of the case before us. [2] Whether or not a person should be chargeable with remembering a particular hazard, such as a step of this kind, depends upon many factors which can ordinarily be evaluated only by triers of facts. The opportunities for distraction, the length of time elapsing before the way is retraced, and the peculiarities of construction, furnishings and light, all must be considered, and presumably were considered by the jury here. As was said in McStay v. Citizens Nat. Trust & Sav. Bank, 5 Cal. App. (2d) 595, 43 P. (2d) 560, 562, in affirming a judgment for a plaintiff who fell while retracing *942 her steps down from a platform in a dining room at the Roosevelt hotel in Hollywood: "On the question of contributory negligence of respondent Mrs. McStay, the evidence of her information, acts and conduct leading up to and surrounding her injury is of such nature as peculiarly calls for the determination thereof by triers of facts. It cannot be concluded therefrom that as a matter of law respondent was guilty of contributory negligence. Where different conclusions may be reasonably drawn by different minds from the same evidence, the decision must be left to the jury. And herein it is clear that whether or not the information possessed by Mrs. McStay was sufficient to impresss upon her mind the danger incident to the use of the platform and steps in question was for the jury to decide as an issue of fact." (p. 600) In our opinion, the trial court did not err in leaving the jury verdict undisturbed. The judgment is affirmed. SCHWELLENBACH, C.J., HILL, FINLEY, and OLSON, JJ., concur. February 29, 1952. Petition for rehearing denied. NOTES [1] Reported in 239 P. (2d) 1051.

115 N.H. 431 (1975) LAWRENCE BLAKE v. STATE OF NEW HAMPSHIRE No. 7102. Supreme Court of New Hampshire. July 31, 1975. *432 Warren B. Rudman, attorney general, and Charles G. Cleaveland, assistant attorney general (Mr. Cleaveland orally), for the State. Upton, Sanders & Smith (Mr. J. Gilbert Upton orally) for the plaintiff. PER CURIAM. On August 9, 1974, plaintiff filed a complaint in superior court against the State of New Hampshire claiming that he was illegally discharged from his employment with the State and seeking either reinstatement with back pay or damages. In the complaint as amended, plaintiff asserted that his discharge was illegal for three reasons: (1.) he was removed from office without cause and without prior notice and hearing in violation of his commission of office; (2.) his employment by the State constituted a contract at will which was terminated as the result of bad faith, malice and retaliation; and (3.) his employment with the State was terminated as a result of the exercise of his right of free speech as protected by the first and fourteenth amendments of the Federal Constitution, and without prior notice of the reasons for his discharge and an opportunity for a fair adversary hearing as required by the fourteenth amendment. The State moved to dismiss the complaint on the ground that even if the facts of plaintiff's allegations are admitted, there is no basis for legal relief. Johnson, J., reserved and transferred without ruling the question whether plaintiff's complaint states any cause of action which entitles him to relief. On May 18, 1970, the plaintiff was appointed director of the business profits tax division of the State of New Hampshire by the State tax commission with the approval of the Governor and Council. See RSA 77-A:15 I (Business Profits Tax, Adminstration), amended effective September 1, 1973, RSA 77-A:15 I (Supp. 1973). The commission of office specified that the plaintiff was "[t]o have and to hold the said office, with all the powers, privileges and immunities to the same belonging, for the term from and after May 18, 1970, provided you are of good behavior during said term." *433 As director of the business profits tax division, the plaintiff was, according to the statutory description of the position, an unclassified State employee "who shall serve at the pleasure of the [tax] commission." RSA 77-A:15 I; see RSA 98:2 (State Employees' Personnel System, Classified Service and Exemptions); RSA 4:1 (Powers of Governor and Council, Removal of Public Officers for Cause). As a result of the legislative reorganization of the State tax commission effective September 1, 1973, employees of the business profits tax division were transferred to the department of revenue administration. Pursuant to the reorganization RSA 77-A:15 I was amended to provide that the director of the business profits tax division "shall serve at the pleasure of commissioner" (i.e. Commissioner of the Department of Revenue Administration). RSA 77-A:15 I (Supp. 1973); see RSA 77-A:1 II (Supp. 1973); RSA 71-A:3 (Supp. 1973) (Commissioner of Revenue Administration). While he held the position of director of the business profits tax division, the plaintiff successfully administered and implemented the new business profits tax. By a memorandum dated July 30, 1974, the plaintiff was notified that "[u]nder the provisions of RSA 77-A:15, as amended, this memorandum is to advise you that your services are terminated as of this date." For the purpose of the State's motion to dismiss based on the complaint, plaintiff's allegations of fact are assumed to be true. Belisle v. Belisle, 88 N.H. 459, 460-61, 191 A. 273, 274 (1937); Barnard v. Insurance Co., 88 N.H. 292, 293, 188 A. 465, 466 (1936); Cleaves v. Peterboro Basket Co., 54 F.2d 101, 103 (D.N.H. 1931). If the facts as alleged constitute a basis for legal relief on any one of plaintiff's three claims, the motion to dismiss should be denied. F. James, Civil Procedure § 4.1 (1965); cf. Fed. R. Civ. P. 7(c), 12 (b) (6); 2A J. Moore, Federal Practice §7.06, at 1549 (1974); id. § 12.08, at 2265. In support of his first claim the plaintiff argues that since his commission of office stated that he was to hold the office of director "from and after May 18, 1970, provided you are of good behavior during said term", he could be dismissed only for cause after notice and hearing. Since he was appointed director of the business profits tax division with the approval of the Governor and Council, granting him all constitutional and statutory authority pertaining to his position, the plaintiff was a commissioned State officer as well as an unclassified State employee. See RSA 98:2; RSA 77-A:15 I (Supp. 1973). Part II, article 73 of the New Hampshire constitution requires *434 that the "tenure that all commissioned officers shall have by law in their offices shall be expressed in their respective commissions...." The tenure of office provided by statute for the director of the business profits tax division is "at the pleasure of the commissioner" of revenue administration. RSA 77-A:15 I (Supp. 1973). The quoted part of RSA 77-A:15 I (Supp. 1973) is a specific exception to the general statutory rule in this State that unclassified public officers appointed with the approval of the Governor and Council may be removed only for cause, "after public hearing and due notice of the charges preferred." RSA 4:1; Barry v. King, 106 N.H. 279, 281, 210 A.2d 161, 162 (1965); Opinion of the Justices, 115 N.H. 385, 341 A.2d 758 (1975). Although the plaintiff's commission of office stated that he was to remain in office during good behavior, the State, without citing any supportive authority, takes the position that the failure of the commission of office to accurately express the tenure provided by RSA 77-A:15 I is of no consequence since the mere act of commissioning the plaintiff could not have enlarged the specific statutory limitations on his term of office. Plaintiff maintains that his reliance on the unambiguous language of the commission in accepting and pursuing his employment with the State for four years justifies application of the rule allowing dismissal only for cause after notice and hearing. The State's failure in this case to follow the constitutional directive requiring the statutory tenure of all commissioned officers to be stated in their respective commissions, may have placed the plaintiff in a quandary as to whether his tenure was for good behavior as stated in the commission or at the pleasure of the commissioner as provided by RSA 77-A:15 I (Supp. 1973). A reasonable interpretation of the language contained in the commission would be that the plaintiff was to serve the State as long as he properly performed his duties. Assuming that the plaintiff can prove his alleged reliance on the language of the commission of office, he is entitled to the protection which that language affords to unclassified public employees. RSA 4:1; Barry v. King, 106 N.H. 279, 281, 210 A.2d 161, 162 (1965); see Annot., 99 A.L.R. 336, 368 (1935); Shurtleff v. United States, 189 U.S. 311, 314 (1903). See also Arnett v. Kennedy, 416 U.S. 134, 181 (1974) (White, J., concurring in part and dissenting in part). Providing protection to the plaintiff commensurate with the extent of his reliance on the express terms of his commission comports with the important policy of attracting and retaining qualified individuals in the service of this State. *435 Since the plaintiff's first reason for claiming that his discharge was illegal states a cause of action entitling him to be heard, it is unnecessary to reach the merit of his other two claims as to which we express no opinion prior to trial. The State's motion to dismiss should be denied. Remanded.

UNCLASSIFIEDIIFOR PUBLIC RELEASE FILED INITH THE UNITED STATES DISTRICT COURT ,..C O m : T Y OFFICER ,-,SO. DATE:'" ~n . FOR THE DISTRICT OF COLUMBIA ) HASSAN MOHAMMED ALI ) BIN ATTASH, ) ) Petitioner, ) ) v. ) Civil No. 05-1592 (RCL) ) BARACK OBAMA, et al., ) ) Respondents. ) ) ORDER Now before the Court is respondents' Unopposed Motion [229] for Leave to Provide a Substitute for Certain Documents. The subject of this motion is a collection of documents, discovered during respondents' search of reasonably available information indicating that one of Upon consideration of this motion, it is hereby ORDERED that respondents may provide the Declaration of Counsel attached to respondents' Motion [229] as a substitute for those _Documents that are neither exculpatory nor otherwise responsive to the Court's discovery orders in this c a s e _ ~c.~ Chie udge Royce C. Lamberth United States District Judge UNCLASSIFIEDIIFOR PUBLIC RELEASE 

COURT OF APPEALS OF VIRGINIA Present: Judges Baker, Coleman and Elder Argued at Salem, Virginia RONNIE JAMES GOODE MEMORANDUM OPINION * BY v. Record No. 1393-95-3 JUDGE SAM W. COLEMAN III OCTOBER 15, 1996 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge Vanessa E. Hicks, Assistant Pubic Defender (Office of the Public Defender, on brief), for appellant. John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee. Ronnie James Goode was convicted in a bench trial for possession of cocaine with intent to distribute in violation of Code § 18.2-248. Goode contends that the evidence is insufficient to prove that he had the intent to distribute. We find that the evidence is sufficient and affirm the defendant's conviction. On appeal, we review the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Where evidence of an intent to distribute is entirely circumstantial, "all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and * Pursuant to Code § 17-116.010 this opinion is not designated for publication.  exclude every reasonable hypothesis of innocence." Thus, the sufficiency of circumstances to prove an intent to distribute depends upon the inferences permissible from those circumstances. . . . If, however, other evidence also tends to prove the element of the crime required to be proven, the probative weight of the inferred fact need be no greater than that required of any other evidence admitted for consideration by the trier of fact, so long as all of the evidence proves the element beyond a reasonable doubt. Morton v. Commonwealth, 13 Va. App. 6, 9-10, 408 S.E.2d 583, 584-85 (1991) (citations omitted). The defendant contends that the circumstantial evidence, viewed in its most favorable light, proves that a drug sale was taking place between the defendant and the driver of the vehicle. He argues, however, that the evidence does not prove which of them was the seller and it does not exclude the hypothesis that he was purchasing cocaine, rather than distributing it. We disagree. The evidence presented was that the defendant was seen by Officers Riley and Sawyers running from the porch of a known drug house and entering the passenger side of a car. When the officers approached the vehicle, they observed a twenty-dollar bill resting on the seat between the defendant and the driver. The defendant had his left hand clinched resting on his left knee. Officer Riley asked the defendant to open his hand and he did so, revealing a plastic baggie containing a white, rock-like substance which in a field test proved to be cocaine. The - 2 - defendant was arrested and a search incident to arrest revealed $110 in mixed bills in the defendant's right front pocket. The defendant contends that this evidence alone is not sufficient to prove intent to distribute beyond a reasonable doubt. The defendant relies upon the decisions in Rice v. Commonwealth, 16 Va. App. 370, 429 S.E.2d 879 (1993) (holding possession of large amount of cash does not prove intent); Morton, 13 Va. App. 6, 408 S.E.2d 583 (1991) (holding defendant's approach of car did not exclude his being the buyer in transaction); and Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (holding amount of cocaine possessed too small to have intent to distribute) to support his contention. The circumstantial evidence in this case is not limited, as it was in Rice, Morton, and Stanley, to a single item of evidence of possessing a large amount of money, approaching a car, or having an amount of cocaine too small to distribute. Here a combination of factors preponderate to prove that the defendant was the seller, not the purchaser. "While no single piece of evidence may be sufficient, the 'combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)), cert. denied, 445 U.S. 972 (1980). Officer Riley testified at trial without objection as to the - 3 - custom in the area and as to this particular location for selling drugs. He testified that [w]hat they do there is they wait for a customer to drive up and somebody will come out from the outside of the porch area of the house, come out to the vehicle, and make a drug transaction, and then the vehicle will leave. If nobody's there at that time the vehicle would either go by -- go to another location. The defendant's actions at the time he was arrested matched this description of how drug sales were made. Moreover, the circumstances of the defendant leaving the house when a car approached, engaging in a drug transaction in which he had a rock of cocaine in his hand and a twenty-dollar bill was on the seat between him and the driver, and having $110 in mixed bills in his right front pocket, are sufficient to prove that he was the seller, rather than the buyer. The Commonwealth's evidence proved much more than that the defendant was present while a drug transaction occurred in an area that had a reputation for a high crime area, Riley v. Commonwealth, 13 Va. App. 494, 412 S.E.2d 724 (1993), as he exited a known crack house and engaged in a drug sale in a manner typical of drug dealers in that area. Furthermore, Officer Riley testified that the driver of the vehicle told him at the scene that the defendant was attempting to sell him cocaine. Most importantly, Officer Sawyers testified that the defendant told him, when interviewed at the station house, that the twenty-dollar bill belonged to the driver of the vehicle and that the driver wanted to buy drugs. The defendant's - 4 - admission supports the inference that he was the seller in the transaction. The evidence is sufficient to sustain the defendant's conviction for possession of cocaine with intent to distribute. Accordingly, we affirm the decision of the trial court. Affirmed. - 5 - 

364 S.W.3d 680 (2012) A.J.H. by next friend M.J.H., Petitioners/Respondents, v. M.A.H.S., Respondent/Respondent, v. Hais, Hais, Goldberger & Coyne, P.C., Intervenor/Appellant. No. ED 96873. Missouri Court of Appeals, Eastern District, Division Two. February 21, 2012. Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2012. Application for Transfer Denied May 29, 2012. *681 Alan S. Mandel, Michael J. Sudekum, Michael P. Downey, St. Louis, MO, for appellant. Lawrence G. Gillespie, Clayton, MO, for respondent. KENNETH M. ROMINES, J. This case concerns the court's inherent power to impose sanctions. Background and Procedural History M.J.H. (Father) filed a motion to modify child custody in May 2009. Hais, Hais, Goldberg & Coyne, P.C. (Appellant) represented M.A.H.S. (Mother) for the majority of the litigation. Early in the representation, Mother came to Appellant with a binder of emails from Father to his attorney. Appellant reviewed the emails and placed notes on certain of them. Based on the content of the emails, which Appellant believed indicated possible criminal wrong-doing by Father, Appellant counseled Mother to take the binder to law enforcement. After its initial review, Appellant consulted with an expert regarding its ethical obligations with respect to the emails, as a result of which Appellant informed Mother that it would not "use" the emails in the custody case. After being advised of this decision, and against the advice of counsel, Mother informed Father that she had the emails and attempted to use them as leverage in pretrial negotiations. Based on Mother's continued insistence on using the emails, Appellant withdrew from its representation of Mother. During the pendency of the custody case, Father filed a motion for sanctions against Mother. A hearing regarding that motion was held on 1 September 2010. Members of Appellant were subpoenaed to appear at that hearing, but due to scheduling conflicts and deficiencies in the subpoenas, the members did not actually attend. Based on evidence adduced at the 1 September 2010 hearing, Father filed a motion for sanctions against Appellant. After two additional hearings, at which Appellant appeared and was represented, the court imposed sanctions in the amount of $25,000 against Appellant. Standard of Review A trial court's imposition of sanctions is reviewed for abuse of discretion. *682 Camden v. Matthews, 306 S.W.3d 680, 683 (Mo.App. S.D.2010). "An abuse of discretion occurs when the court's order is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (quoting Rea v. Moore, 74 S.W.3d 795, 799 (Mo.App. S.D.2002)). Discussion While Appellant raised three points on appeal, as its second point is dispositive of the case, it will be addressed first. In its second point, Appellant claims the trial court erred in imposing sanctions because the court failed to make any findings regarding bad faith on the part of Appellant, and further that the court could not have made such a finding because Father failed to present any evidence demonstrating bad faith on the part of Appellant. Father argues that no such finding was required, and even if it was, there was ample evidence of bad faith to support the court's order. The court imposed sanctions against Appellant based on its "inherent powers."[1] The purpose of allowing courts to impose sanctions based on their inherent authority is two fold: one, to allow the court to vindicate judicial authority without resort to the more drastic sanctions like contempt of court; second, to make a prevailing party whole for expenses caused by his opponent's obstinacy. Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). However, "Missouri courts are cautioned to exercise their inherent powers "sparingly, wisely, temperately, and with judicial self-restraint."" Rea v. Moore, 74 S.W.3d 795, 800 (Mo.App. S.D.2002) (internal citations omitted). A court should rarely invoke its inherent power "because "[i]t is only one short step from the assertion of inherent power to the assumption of absolute power."" McPherson v. U.S. Physicians Mut. Risk Retention Group, 99 S.W.3d 462, 477 (Mo.App. W.D.2003) (internal citations omitted). The court may only sanction a party when that party has acted in bad faith. Id. at 481 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)). We decide that if the trial court does not make an explicit finding as to bad faith, there must at least be evidence in the record which would support such a finding. In this case there is simply nothing in this record indicating that Appellant acted in bad faith. In its judgment, the trial court acknowledged that none of Appellant's actions were illegal.[2] Instead, the court found Appellant's actions to be "shocking" and "wrong." Those actions included: Appellant's knowledge of the content of the email, continued possession rather than deletion of the emails, intent to "use" the emails to "hurt" Father, and failure to discourage Mother from sharing the emails with Appellant. Indeed, in fact Appellant's "use" of the emails amounted to placing post-it notes on particular emails. Although the trial court may have found these actions "shocking" and "wrong," none of Appellant's actions support the *683 conclusion that they were acting in bad faith. While there is no concrete definition of "bad faith," it embraces something more than bad judgment or negligence. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986). "It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another." Id. Nothing in the record demonstrates that Appellant was acting with any of those purposes. To the contrary, Appellant contacted an expert in legal ethics soon after it received the emails and followed the expert's advice as to how to handle the emails. Additionally, there was no showing that Appellant actually "used" the emails in any way in the litigation with Father. At oral argument, counsel for Father admitted that Appellant's "actions" did not in any way increase the amount of time he was required to spend on the case. As such, the "sanction" appears to be nothing more than a fine. In light of such deficiencies, the court's imposition of sanctions appears arbitrary and unreasonable. Conclusion The trial court not having a record demonstrating bad faith erred in imposing sanctions against Appellant in any amount. The judgment of the trial court is reversed. KENNETH M. ROMINES, J. KATHIANNE KNAUP CRANE, P.J. and ROY L. RICHTER, J., concur. NOTES [1] A court's "inherent power" to impose sanctions has been criticized in the dissent in Mitalovich v. Toomey, 217 S.W.3d 338 (Mo. App. E.D.2007) because such "power" inevitably produces unprincipled results and the powers of contempt and discovery sanctions should be sufficient. The state of the law is otherwise. [2] Although it appeared to Appellant that Father may have engaged in illegal activities. As such, according to its ethical duties, Appellant sent Mother to consult with Attorneys Scott Rosenblum and Robert Adler.

978 A.2d 33 (2009) 2009 VT 57 Brian BENSON as Administrator of the Estate of Alan H. Benson v. MVP HEALTH PLAN, INC. No. 08-055. Supreme Court of Vermont. May 29, 2009. *34 Amanda T. Rundle of Dakin & Benelli, P.C., Chester, for Plaintiff-Appellant. Shapleigh Smith, Jr. and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee. Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ¶ 1. SKOGLUND, J. Brian Benson, as administrator of Alan Benson's estate, appeals from a Windsor Superior Court order dismissing his suit against MVP Health Plan, Inc. (MVP) on statute-of-limitations grounds. We reverse and remand. ¶ 2. The relevant facts are not in dispute. Alan Benson died on October 18, 2002 after twenty-three days of hospitalization. On December 2, 2002, Brian Benson was appointed administrator of his estate. Beginning in January 2003, the administrator made a series of unsuccessful attempts on behalf of the estate to secure payment of the decedent's medical bills from decedent's insurer, MVP. On August 30, 2007, the administrator filed suit against MVP, alleging two counts of breach of contract and one count of bad faith. ¶ 3. MVP moved to dismiss, arguing that the claim was barred by the two-year limitations period set forth in 12 V.S.A. § 557(a). That statute reads as follows: If a person, by or against whom an action may be brought, dies before the expiration of the time within which such action may be commenced as provided by this chapter or dies within thirty days after the expiration of such times, the period of limitation as to such action shall cease to operate at the date of his death. After the issuance of letters testamentary or of administration, such action, if the cause of action survives, may be commenced by or against the executor or administrator within two years, and not after. Id. The administrator filed a memorandum in opposition to MVP's motion to dismiss, arguing that § 557(a) was inapplicable to claims that accrue after death, and that the estate's claims against MVP did not accrue until MVP repeatedly and unreasonably denied payment to the estate. The trial court recognized that, under the administrator's theory, the applicable limitations period would be the six-year period *35 set forth in the general statute of limitations, 12 V.S.A. § 511.[*] However, the trial court, quoting § 557, granted MVP's motion, reasoning: Even if we assume, for the sake of argument, that the Estate's cause of action did not accrue until after MVP denied its requests (during 2003), the statute does not set forth any exception for actions accruing after death. Rather, the statute applies when a person "dies before the expiration of the time within which [an] action may be commenced." ¶ 4. On appeal, the administrator argues that the tolling provision of § 557(a) is not applicable to the estate's cause of action. Thus, a question of law is presented, which we review de novo. Main St. Landing, LLC v. Lake St. Ass'n, 2006 VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931 (mem.). In cases of statutory interpretation, our review is nondeferential and plenary. Dep't of Corr. v. Human Rights Comm'n, 2006 VT 134, ¶ 7, 181 Vt. 225, 917 A.2d 451. Our primary objective is to effectuate the intent of the Legislature. Id. "Our first step is to look at the language of the statute itself; we presume the Legislature intended the plain, ordinary meaning of that statute." Weale v. Lund, 2006 VT 66, ¶ 6, 180 Vt. 551, 904 A.2d 1191 (mem.). Here, the language of the statute resolves the issue on appeal. We hold that the limitation period set forth in § 557(a) does not apply to causes of action that accrue to the estate after a decedent's death. ¶ 5. A cause of action does not accrue until each element of the cause of action exists. White v. White, 136 Vt. 271, 273, 388 A.2d 386, 388 (1978); Lycoming Fire Ins. Co. v. Batcheller & Sons, 62 Vt. 148, 152, 19 A. 982, 983 (1890). A cause of action for breach of contract accrues when the breach occurs. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 24, 399 A.2d 503, 505 (1979), and a cause of action against an insurance company for bad faith accrues when the company errs, unreasonably, in denying coverage. Bushey v. Allstate Ins. Co., 164 Vt. 399, 402, 670 A.2d 807, 809 (1995). The estate's complaint alleges that MVP breached the contract when it failed to pay a valid claim submitted by the administrator and repeatedly refused to respond to the administrator's grievances and requests for information and relief. The complaint alleges bad faith on the grounds that MVP denied the claim without a reasonable basis. Therefore, assuming these allegations to be true, see Winfield v. State, 172 Vt. 591, 593, 779 A.2d 649, 652 (2001) (mem.) ("In reviewing the trial court's disposition of a motion to dismiss, we assume that all well pleaded factual allegations in the complaint are true, as well as all reasonable inferences that may be derived therefrom."), the estate's causes of action accrued after the decedent's death. ¶ 6. Section 557(a) tolls the ordinary limitations period between a decedent's death and the appointment of an administrator of the decedent's estate, Pike v. Chuck's Willoughby Pub. Inc., 2006 VT 54, ¶ 9, 180 Vt. 25, 904 A.2d 1133 (characterizing § 557(a) as a tolling provision), and imposes a new two-year limitations period—beginning at the time of the appointment of letters testamentary or of administration—for certain actions. The statute contains only one direct statement of applicability. Section 557(a) applies if a person "by or against whom an action may *36 be brought ... dies before the expiration of [the ordinary limitations period for that action] or dies within thirty days after the expiration of such times." 12 V.S.A. § 557(a). Should the above-described situation occur, "the period of limitation as to such action shall cease to operate at the date of his death." Id. Based on the statutory language quoted above, MVP argues that § 557(a) applies to causes of action that accrue after death because a person who dies before a cause of action accrues necessarily dies before the expiration of that action's limitations period. This clever reading is flawed, however, because if the cause of action accrues after the person's death, it could not be brought by him or against him; it could only be brought by or against the decedent's estate. Mortimore v. Bashore, 317 Ill. 535, 148 N.E. 317, 319 (1925) ("The capacity to sue or be sued exists only in persons in being, and not in those who are dead, ... and so cannot be brought before the court."). The statute applies to causes of action that exist before a decedent's death—causes that could be brought by him or against him while he was alive. From a plain-language reading of the text, § 557(a) does not apply to causes of action that accrue after death. ¶ 7. Additionally, § 557(a) applies only "if the cause of action survives." 12 V.S.A. § 557(a) (emphasis added). The Legislature's use of the word "survives" indicates that it intended to craft a statute of limitations for certain survival actions. See, e.g., In re Estate of Peters, 171 Vt. 381, 386, 765 A.2d 468, 473 (2000) (characterizing § 557(a) as a "statute of limitations for survival actions"). Survival actions are generally understood to be lawsuits on behalf of a decedent's estate for injuries or damages incurred by the deceased before dying, Black's Law Dictionary 1486 (8th ed. 2004), and do not include causes of action accruing to an estate after a decedent's death. ¶ 8. MVP asserts two public-policy arguments in favor of applying § 557(a) to claims that accrue to an estate after a decedent's death. Neither is convincing. First, citing Estate of Harris v. Eichel, MVP contends that applying § 557(a) to such claims would be consistent with the Legislature's purpose of "plac[ing] the value of finality in the affairs of a decedent and his estate over the interest in preserving the general period of limitations in favor of the estate." 152 Vt. 180, 183-84, 565 A.2d 1281, 1283 (1988). MVP takes our reasoning in Harris out of context. In the quoted portion of Harris, we were rejecting the argument that § 557(a) operated only to lengthen, but not to shorten, the limitations period for survival actions. Our pronouncement about legislative preference for finality in the affairs of a deceased simply referred to the Legislature's having drafted § 557(a) in a way that could shorten the limitations period for some survival actions. It was not, as MVP would have it, a broad conclusion of legislative intent that should control this case. ¶ 9. MVP's second public-policy argument is that reading § 557(a) to establish a limitations period only for claims that accrue before death undermines the Legislature's policy preference for certainty. Citing Leo v. Hillman, MVP contends that § 557(a) is a broad statute "written so that an executor or administrator need not guess when an action might be brought... [and] [t]hat certainty is an important element of the cause of action." Leo v. Hillman, 164 Vt. 94, 104, 665 A.2d 572, 579 (1995). However, our decision here—that § 557(a) is inapplicable to causes of action that accrue after a decedent's death—clarifies for administrators which statutes of limitation govern claims by or against an estate, thus providing that certainty. *37 ¶ 10. Our interpretation of § 557(a) is also in harmony with this Court's prior decisions. MVP does not point out any cases, nor are we aware of any, where this Court has applied § 557(a) to a cause of action that accrued after death. Cf. In re Peters, 171 Vt. at 386-87, 765 A.2d at 473-74 (evaluating statute's applicability to suit brought by deceased wife's estate for husband's sexual battery); Leo, 164 Vt. at 103, 665 A.2d at 578-79 (upholding application of § 557(a) to pain-and-suffering claim brought by estate on behalf of deceased); Martel v. Stafford, 157 Vt. 604, 615, 603 A.2d 345, 351 (1991) (same); Estate of Harris, 152 Vt. at 182-83, 565 A.2d at 1282 (upholding application of § 557(a) to suit by administrator of deceased's estate against attorney who prepared documents for deceased); Law's Adm'r v. Culver, 121 Vt. 285, 287, 155 A.2d 855, 857 (1959) (stating that § 557(a) applies to survival action for bodily hurt). ¶ 11. In conclusion, the plain language of § 557(a) establishes a limitations period only for causes of action that could have been brought by or against the deceased during his lifetime and does not apply to causes of action by or against an estate that accrue after the decedent's death. Accordingly, the trial court erred in concluding that the estate's claim was barred by § 557(a). Reversed and remanded. NOTES [*] Section 511 reads as follows: "A civil action, except one brought upon the judgment or decree of a court of record of the United States or of this or some other state, and except as otherwise provided, shall be commenced within six years after the cause of action accrues and not thereafter."

03/02/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs November 14, 2019 STATE OF TENNESSEE v. DAVID DARRELL FLETCHER Appeal from the Circuit Court for Bedford County No. 18404 Forest A. Durard, Jr., Judge ___________________________________ No. M2018-01293-CCA-R3-CD ___________________________________ A Bedford County jury convicted the defendant, David Darrell Fletcher, of aggravated burglary (count 1), first degree premeditated murder (count 2), and first degree felony murder (count 3), and the trial court imposed an effective sentence of life plus 10 years. On appeal, the defendant challenges the sufficiency of the evidence supporting his first degree murder conviction and several of the trial court’s rulings. The defendant argues the trial court erred in admitting testimony regarding a statement he made to Amber Fletcher during a recorded phone call, in failing to designate three witnesses as accomplices as a matter of law and in failing to charge the jury accordingly, and in denying the defendant’s motions for a change of venue and for a mistrial. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court. However, we note, in merging the defendant’s convictions in counts 2 and 3, the trial court failed to impose a sentence for the merged conviction of count 3. Because the conviction of count 3 carries a mandatory life sentence, a new sentencing hearing is not required, but we remand the case to the trial court for the entry of a completed judgment form as to count 3. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part and Remanded in Part J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E. GLENN, JJ., joined. Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, David Darrell Fletcher. Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Robert J. Carter, District Attorney General; and Mike Randles and Richard Cawley, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION Facts and Procedural History This case arises from the gang-related shooting death of the victim, Angela Kibble, on September 14, 2015. For his participation in the crimes, a Bedford County grand jury indicted the defendant for aggravated burglary, first degree premeditated murder, and first degree felony murder. Tenn. Code Ann. §§ 39-13-202 (a)(1), (2); 39- 14-403. Prior to trial, the defendant filed a motion for a change of venue and a motion to declare Lakisha Denham, Marie Eshbaugh, and Cory Eddings as accomplices. The trial court denied the motion for a change of venue and reserved its ruling on the motion to declare the witnesses as accomplices until hearing the proof presented at trial. The defendant proceeded to trial on February 12, 2018, where the parties presented the following evidence. On September 6, 2015, Michael Sales, a member of the Crips street gang, murdered Capone Caruth, a member of the Gangster Disciples, in Fayetteville, Tennessee. State v. Michael Domonic Sales, No. M2017-01116-CCA-R3-CD (filed June 5, 2017). After committing the murder, Mr. Sales returned to Shelbyville, Tennessee where both he and his mother, the victim in this case, lived. Detective Joel Massey of the Fayetteville Police Department responded to the murder scene and observed a single gunshot wound to Mr. Caruth’s head. With the assistance of Tennessee Bureau of Investigation (TBI) Agent Zachary Burkhart, Detective Massey arrested Mr. Sales in Shelbyville at approximately 11:30 p.m. on September 13, 2015. Shortly after, the defendant and his co-defendants entered the victim’s apartment in search of Mr. Sales. When the victim failed to disclose Mr. Sales’ whereabouts, Kevaris Kelso fired a single gunshot to the victim’s head, and the group fled her apartment. Two co-defendants, Antonio Taylor and Octavius Ransom, testified at trial. Before participating in the murder, Mr. Taylor met the defendant at a park in Tullahoma, Tennessee often frequented by members of the Gangster Disciples. Danny Allen, Desean Askins, Cory Eddings, Marie Eshbaugh, and Lakisha Denham were with Mr. Taylor at the park. While there, the defendant stated he wanted to “[g]o talk to [Mr.] Kelso” in Shelbyville. Mr. Taylor explained they wanted to ask Mr. Kelso “what Michael Sales said to him” because Mr. Sales “killed one of our friends.” If the group found Mr. Sales, Mr. Taylor stated he planned “to jump on” him. Mr. Taylor stated he did not have a gun with him and did not see Mr. Eddings with a gun. -2-  The group traveled to Shelbyville in two cars: Ms. Eshbaugh’s maroon Nissan Rogue (the Rogue) and Ms. Denham’s silver Chevrolet Malibu (the Malibu). According to Mr. Taylor, the defendant drove the Malibu with Mr. Taylor, Mr. Askins, and Ms. Denham. Ms. Eshbaugh drove the Rogue with Mr. Eddings and Mr. Allen. Once in Shelbyville, the two cars stopped at a Kangaroo gas station where Mr. Taylor, Mr. Eddings, and Mr. Allen went inside and made purchases. At trial, Mr. Taylor identified himself on surveillance footage obtained from the gas station. The two cars then traveled to Chase Gross’s apartment looking for Mr. Kelso. Mr. Gross, driving a white Mercedes SUV (the Mercedes), then led the group to Mr. Kelso’s apartment. The defendant was still driving the Malibu and Ms. Eshbaugh was driving the Rogue. At Mr. Kelso’s apartment, the group found Mr. Kelso, Mr. Ransom, Raheem Maxwell, and Allen Carney, among others. According to Mr. Taylor, Mr. Sales had been at Mr. Kelso’s apartment earlier that night. While there, Mr. Sales bragged about killing Mr. Caruth and stated he planned to kill additional members of the Gangster Disciples. The defendant was upset Mr. Kelso allowed Mr. Sales to make the threatening statement, and he asked Mr. Kelso, “How you going to let Michael Sales come and say he just killed one and he coming to Tullahoma and kill 2 more.” The defendant asked Mr. Kelso if he had a gun, but he did not. Instead, Mr. Carney handed a “chrome and black” gun to the defendant. The defendant gave the gun to Mr. Kelso who placed it in the front pocket of his hoodie. The group then left Mr. Kelso’s apartment in search of Mr. Sales. According to Mr. Taylor, “Everyone just left. Everyone was looking at [Mr.] Kelso, and [Mr.] Kelso just led the way.” Because Mr. Taylor believed the group planned to beat up Mr. Sales if they found him, he asked Mr. Kelso, “[W]hat do you need a gun for?” Mr. Kelso did not respond. Mr. Taylor did not have or overhear any conversations with the defendant about what they would do to Mr. Sales if they found him. The group searched for Mr. Sales in the same three-car caravan from earlier in the night which included the Mercedes, the Rogue, and the Malibu: the defendant, Mr. Taylor, Mr. Askins, and Ms. Denham were in the Malibu; Mr. Eddings, Mr. Kelso, Mr. Allen, and Ms. Eshbaugh were in the Rogue; and Mr. Maxwell, Mr. Ransom, and Mr. Gross were in the Mercedes. At trial, the victim’s daughter, Lasheika Sales, noted the victim was Mr. Kelso’s aunt. Accordingly, Mr. Kelso knew where the victim lived, and he directed the group to her apartment located at 800 Belmont Avenue, Shelbyville, Tennessee in the Oak Hill Village Apartments. Mr. Kelso directed the caravan to the parking lot of the neighboring apartment complex, the Southgate Apartments, and the three cars backed into parking spaces. The defendant, Mr. Askins, Mr. Allen, Mr. Kelso, Mr. Gross, Mr. Ransom, and Mr. Maxwell got out of their respective cars while Mr. Eddings, Ms. Eshbaugh, and Ms. Denham remained in the cars. As the men approached the victim’s upstairs apartment, -3- the defendant told Mr. Kelso “to knock on the door and see if [Mr. Sales] is in there.” Instead, Mr. Kelso kicked the door, but it did not open. As the victim began opening the door, Mr. Kelso forced his way inside, and the group followed. Mr. Taylor stated the victim looked confused as she sat down on the couch. Mr. Kelso stood in front of the victim, and the defendant stood beside her. Mr. Kelso asked where Mr. Sales was, but the victim stated she did not know. After Mr. Kelso asked the victim a second time, he “pulled the gun out and pointed [it] to her head.” Mr. Taylor told Mr. Kelson, “don’t do nothing you are going to regret.” Mr. Kelso, however, looked at the defendant and then shot the victim in the left temple. Mr. Taylor was shocked and “[t]here was nothing else I could do but just run.” As the group ran, Mr. Kelso tried to “[t]oss the gun in [Mr. Taylor’s] hand,” but Mr. Taylor handed the gun back to him. In the parking lot, the men dispersed into the three cars. The defendant, Mr. Taylor, and Mr. Askins got into the Malibu, and Ms. Denham drove them to Tullahoma and then Winchester. In Winchester, Mr. Taylor and the defendant briefly went inside their respective apartments before getting back in the Malibu. The group then drove to Fayetteville where Ms. Denham dropped the defendant and Mr. Askins off at an apartment. At approximately 3:00 or 4:00 a.m., Ms. Denham and Mr. Taylor ended the night at Ms. Denham’s aunt’s apartment. For his involvement in the victim’s death, Mr. Taylor was charged with aggravated burglary, first degree premeditated murder, and felony murder. He gave a statement to police on October 12, 2015, and subsequently wrote letters to police recanting the same after the defendant threatened both him and his family. Mr. Taylor explained the defendant threatened his family on Facebook and him while in jail. Specifically, after their arrests, Mr. Taylor, Mr. Allen, Mr. Askins, Mr. Gross, Mr. Kelso, Mr. Maxwell, and the defendant were in the “cage,” or holding cell, together. The defendant said, “you know what is going to happen down the road if all of you wrote statements [and] testify.” Mr. Taylor admitted several discrepancies existed between his statement, his letters, and his testimony at Mr. Kelso’s and the defendant’s trials. However, he stated his present trial testimony was truthful “[b]ecause what happened to [the victim] wasn’t right and her daughters have to suffer for it. We went to look for her son. The [victim] had nothing to do with it.” Mr. Ransom then explained his involvement in the murder, noting he was at Mr. Kelso’s apartment with Mr. Carney when the defendant arrived. Initially, Mr. Ransom testified he did not remember the defendant making a comment to Mr. Kelso while at the apartment. However, after reviewing his prior statement, Mr. Ransom recalled the defendant said something about “[Mr. Sales] killed one and said he would kill another and 2 more in Tullahoma.” -4-  Mr. Ransom left Mr. Kelso’s apartment with the group in the Mercedes. He was the only person to exit the Mercedes at the victim’s apartment, and he heard the defendant tell Mr. Kelso “to kick the door in.” The defendant held the door open as the men filed into the apartment. Mr. Ransom was the last one inside. He heard Mr. Kelso ask the victim, “[W]here your son at?” He then heard a gunshot, and ran. Cory Eddings also testified, stating he was currently in custody in Lincoln County for violating the terms of his community corrections sentence. He explained his relationships with those involved in both Mr. Caruth’s and the victim’s deaths, noting he grew up with Mr. Caruth and witnessed his murder. Both Mr. Eddings and Mr. Caruth were members of the Gangster Disciples along with Mr. Kelso, Mr. Gross, Mr. Taylor, Mr. Askins, and Mr. Allen, while Mr. Sales was a member of the Crips. Mr. Eddings attended Mr. Caruth’s funeral in Fayetteville where he met the defendant, or “Day Day”/“Mac Day.” Mr. Eddings had the defendant listed in his cell phone as “Mac Day.” Mr. Eddings testified that he went to the park in Tullahoma the night of the victim’s murder in order to have sex with Ms. Eshbaugh. Though he interacted with the defendant, Mr. Askins, Mr. Taylor, Mr. Allen, and Ms. Denham, Mr. Eddings stayed in the Rogue with Ms. Eshbaugh for a majority of the 2 to 3 hours the group was at the park. As such, he did not see the defendant with a cell phone while they were there. Mr. Eddings explained that when the group left the park for Shelbyville they were going to find Mr. Kelso who would know where to find Mr. Sales in order “to jump on [Mr. Sales] or something.” As noted by Mr. Taylor, the two cars stopped at a Kangaroo gas station in Shelbyville. Mr. Eddings identified himself in a photograph and on the surveillance footage from the gas station, noting he was wearing a t-shirt depicting Mr. Caruth with the words, “Gone Too Soon.” He also identified Mr. Allen on the surveillance footage. The two cars then drove to Mr. Gross’ apartment because Mr. Gross “knew where to find [Mr.] Kelso,” who knew where to find Mr. Sales. Mr. Gross then led the group in his Mercedes to Mr. Kelso’s apartment where everyone went inside. In total, there were about 12 or 13 people inside the apartment. A drawing of Mr. Kelso’s living room with markings as to where Mr. Eddings and the defendant were sitting was entered into evidence. Mr. Eddings stated he overheard the defendant ask Mr. Kelso “something in the category of how he going to let Michael Sales tell him he got one, and was going to get 2 more or something in that category.” Mr. Eddings was unsure if Mr. Kelso responded to the defendant’s statement, but stated he did not see a gun while in the apartment. Mr. Eddings also denied having a gun. -5-  The group left Mr. Kelso’s apartment in search of Mr. Sales and eventually backed into parking spots at the Southgate Apartments. Mr. Eddings did not know who lived at the apartments or “what the game plan was,” but he believed the group was still looking for Mr. Sales. While Mr. Kelso and Mr. Askins got out of the Rogue, Mr. Eddings remained inside with Ms. Eshbaugh and began “messing around” with her. He also believed Ms. Denham remained in the Malibu, but he could not see who got out of the Mercedes. He saw the group of men who exited the cars talk before walking behind the cars and disappearing for 5 to 10 minutes. When the men returned, Mr. Askins and Mr. Kelso got back in the Rogue with Ms. Eshbaugh and Mr. Eddings, and the defendant returned to the Malibu. The cars then “pulled off.” Mr. Eddings did not ask anyone what happened during the 5 to 10 minutes when the group disappeared. He and Ms. Eshbaugh dropped Mr. Kelso off at his apartment in Shelbyville before driving back to Tullahoma where they rented a hotel room for the remainder of the night. Mr. Eddings noted he and the defendant exchanged phone calls throughout the evening but did not remember texting the defendant. He denied having the defendant’s phone at any point during the night and stated he had not spoken with the defendant since. Mr. Eddings asserted he learned of the victim’s death the day after the murder. He then read to the jury a Facebook post he made after learning the same: “I would never wish dead on a man’s mother. Through whatever I know God will handle the evil in his favor, and it always show because they end up in jail or hell. I’m praying for both families.” During cross-examination, Mr. Eddings discussed the statement he gave to Agent Burkhart on September 19, 2015. In the statement, Mr. Eddings said Ms. Denham was driving the Malibu on the night of the murder. At trial, however, Mr. Eddings stated he was unsure who drove the Malibu from Tullahoma to Shelbyville. Mr. Eddings stated he did not hear the defendant threaten anyone on September 13, 2015, noting the defendant was not threatening when he made a statement to Mr. Kelso regarding Mr. Sales’s comment about killing members of the Gangster Disciples. On the day of Mr. Caruth’s funeral, Mr. Eddings discussed finding Mr. Sales with the defendant, Mr. Taylor, Mr. Askins, and several others. However, while at the park, he did not recall having a similar conversation, though he believed the group was going to Shelbyville to find Mr. Kelso in order to find Mr. Sales. Mr. Eddings stated Ms. Eshbaugh did not know what was going on, “[s]he [was] just driving,” but noted the group did not discuss going to a party. He recalled testifying at Mr. Kelso’s trial that he did not get out at the victim’s apartment because he did not want to be a part of what they were doing, again believing the group was looking for Mr. Sales. Finally, Mr. Eddings stated he was not facing prosecution for the victim’s death, though he was recently sentenced in federal court for being a felon in possession of a firearm. -6-  Ms. Denham and Ms. Eshbaugh both testified regarding their involvement with the defendant and his co-defendants on September 13, 2015. That evening, Mr. Askins asked Ms. Denham to give him a ride from Fayetteville to Tullahoma. Though she did not want to go, Ms. Denham let Mr. Eddings drive her Malibu to Tullahoma along with Mr. Taylor and Mr. Askins. Upon arriving in Tullahoma, the group met the defendant and Ms. Eshbaugh at an apartment. The defendant wanted to go to Shelbyville, but Ms. Denham did not know why. She overheard the defendant on a phone call asking if he needed to be “strapped.” The defendant asked Ms. Denham to drive to Shelbyville, but she refused. As a result, the defendant drove her Malibu to Shelbyville, and Ms. Denham, Mr. Askins, and Mr. Taylor rode with him. As previously noted, the group stopped at a gas station before going to Mr. Gross’s apartment. Ms. Denham identified her Malibu and Ms. Eshbaugh’s Rogue on the gas station surveillance footage presented at trial. When the Mercedes, Malibu, and Rogue left Mr. Gross’s apartment, the defendant was still driving the Malibu. The caravan parked at Mr. Kelso’s apartment. Ms. Denham and Ms. Eshbaugh remained in their cars as the men in the group went inside. The defendant took Ms. Denham’s keys. He returned and instructed everyone to go inside. Once inside Mr. Kelso’s apartment, Ms. Denham saw a gun on the kitchen counter and heard Mr. Kelso say, “Leave the gun for protection.” Before leaving the apartment, Ms. Denham also heard Mr. Kelso say, “Let’s go see what the brother is doing.” The group, which included the defendant, Mr. Allen, Mr. Askins, Mr. Taylor, Mr. Eddings, Mr. Gross, Mr. Kelso, Ms. Eshbaugh, and a few others, then left the apartment. Ms. Denham got back in the Malibu with Mr. Askins and Mr. Taylor as the defendant drove to the Southgate Apartments along with the Rogue and the Mercedes. All three vehicles backed into parking spaces in order to be facing the street. Ms. Denham, Ms. Eshbaugh, and Mr. Eddings remained in their cars as the others disappeared out of sight. After 5 to 10 minutes, the group of men returned to the cars. The defendant, Mr. Askins, and Mr. Taylor got back in the Malibu, and the defendant asked Ms. Denham to take him to Tullahoma. Ms. Denham complied and followed the defendant’s directions back to Tullahoma. During the drive, Ms. Denham listened to the conversation between the defendant, Mr. Taylor, and Mr. Askins. She recalled the defendant saying, “Kelso beat that n*****’s ass.” Ms. Denham asked, “What n*****,” and the defendant responded, “the sh** that happened in Fayetteville.” Ms. Denham did not think the defendant was upset during the conversation and seemed to approve of what Mr. Kelso did. Upon arriving in Tullahoma, the group consisted of Ms. Denham, Ms. Eshbaugh, Mr. Eddings, Mr. Allen, Mr. Askins, Mr. Taylor, and the defendant. Ms. Denham, the defendant, Mr. Taylor, and Mr. Askins soon left Tullahoma and drove to Winchester. In -7- Winchester, they went to an apartment complex where the defendant and Mr. Taylor went inside different apartments. The defendant took Ms. Denham’s keys with him. Mr. Askins attempted to get the keys from the defendant, but instead returned to the car with the defendant. Mr. Taylor also returned, and Ms. Denham drove the group to Fayetteville. She dropped the defendant and Mr. Askins off at an apartment before going to her aunt’s apartment with Mr. Taylor, asserting they did not discuss what happened. She did not learn about the murder until she was questioned by police. During cross-examination, Ms. Denham explained the defendant “was upset and aggressive” on the night of the murder and noted she had not met the defendant previously. Ms. Denham stated she “basically had no choice” but to let the defendant drive her car because she had been drinking and “nobody else wanted to drive.” During redirect examination, Ms. Denham reiterated she did not ask the defendant for her keys in order to leave the situation because he was “very aggressive,” and even Mr. Taylor and Mr. Askins seemed scared of the defendant and were unable to get her keys from him. Ms. Denham did not want to go to Shelbyville or Tullahoma, but they refused to take her home when she asked. Ms. Denham stated she was not charged in the victim’s death. During his investigation, Agent Burkhart contacted Ms. Denham, and she provided three statements to law enforcement. Ms. Denham reviewed her first statement given on September 21, 2015, before answering questions about the same. Ms. Denham clarified she met Mr. Taylor the day before the murder and thought he was trying to hook up with her that night. She also explained her statement was inaccurate where she stated the defendant got in another car after they stopped at the gas station in Shelbyville. After reviewing her statement dated September 23, 2015, Ms. Denham again answered questions about the same. In that statement, Ms. Denham admitted she was not honest in her first statement, noting: “The reason I was dishonest about certain things was because I was scared. The guys involved in this whole thing have threatened my life[,] and they told me they were going to kill me.” Ms. Denham explained she did not know what occurred on the night in question, but she had been threatened “[b]ecause it was going around that someone had been murdered in Shelbyville. And on the streets, they was (sic) saying it had something to do with them. I didn’t know for sure, and someone called and was threatening me.” In her final statement, given November 5, 2015, Ms. Denham admitted she lied in her September 23 statement because she stated Mr. Taylor did not stay with her at her aunt’s house when, in fact, he did. While still at her aunt’s house, the defendant and another man came to speak with Mr. Taylor. The three left briefly, and Mr. Taylor -8- returned. Ms. Denham stated she has not seen or spoken to the defendant since the night of the murder. Ms. Eshbaugh also testified, stating that on September 13, 2015, she and Mr. Eddings planned to go to a party in Shelbyville. Ms. Eshbaugh drove the Rogue to the Carver Apartments in Tullahoma with Mr. Eddings where they met the defendant, Mr. Taylor, Ms. Denham, and a few others. Ms. Eshbaugh had not met the defendant before but knew him as “Day Day.” After staying in Tullahoma for approximately 15 minutes, the group left for the party in Shelbyville. Ms. Eshbaugh stated she did not really want to go, but the men said they would pay for her gas if she gave them a ride. Only Mr. Eddings rode with Ms. Eshbaugh, while the defendant drove Ms. Denham’s Malibu. After arriving in Shelbyville, both cars stopped at a gas station. At trial, Ms. Eshbaugh identified her Rogue and Ms. Denham’s Malibu on the surveillance footage. She also identified Mr. Taylor and Mr. Eddings on the video. Upon leaving the gas station, she followed the defendant, who was driving the Malibu, to Mr. Gross’s apartment where Ms. Eshbaugh remained in her car. Eventually, everyone returned to the cars and Mr. Gross led them to Mr. Kelso’s apartment at the Park Trail Apartments. When the group left Mr. Kelso’s apartment, Ms. Eshbaugh, Mr. Eddings, and Mr. Kelso got in the Rogue. Ms. Eshbaugh led the three cars, believing they were finally going to a party. She explained Mr. Kelso got in her car in order to tell her where to go “because he knew where [they] were going.” Mr. Eddings was texting on his cell phone as they drove, but Ms. Eshbaugh did not know with whom he was texting. When the group arrived at the “final set of apartments,” the defendant told Ms. Eshbaugh to back into the parking spot so “it would be easier to get out and leave.” The defendant also told her that “whenever we get ready to leave to follow the white SUV and go to the right.” Everyone got out of the cars except for Ms. Eshbaugh, Mr. Eddings, and Ms. Denham, who had moved to the driver’s seat of the Malibu. The men “ran around the corner to the left side of the vehicles and disappeared.” Ms. Eshbaugh thought they went inside to “check on the party to see if everything was okay before letting us females go in.” However, she waited in her car for approximately 10 to 15 minutes before the group ran back. Ms. Eshbaugh followed the Mercedes back to Mr. Kelso’s apartment where he left the group. As Ms. Eshbaugh drove back to Tullahoma, she asked Mr. Eddings questions, but he did not respond because he was on the phone. In Tullahoma, Ms. Eshbaugh drove to The Village where they met the defendant, Mr. Taylor, and Ms. Denham. Ms. Eshbaugh felt threatened after the defendant told her “not to tell anybody that we were in Shelbyville that night. They didn’t need to know -9- why we were here or if we were here, and that if anybody found out, it would not be pretty.” During cross-examination, Ms. Eshbaugh stated she wanted to hook up with Mr. Eddings on September 13, 2015. When she met him, she noticed he had a cell phone and a gun, but she did not see the gun once in Shelbyville or when inside Mr. Kelso’s apartment. Though the gun concerned her, she continued to hang out with Mr. Eddings, and the two spent the night together in a hotel. She believed she parked near the victim’s apartment around 2:00 or 3:00 a.m. and returned to Tullahoma between 4:00 and 5:00 a.m. However, she noted a receipt documenting she was at the gas station at approximately 11:30 p.m. would be a more accurate time of the events than her memory. Prior to September 13, Ms. Eshbaugh had not met the defendant and had not spoken to him since. Ms. Eshbaugh also addressed the two statements she provided to Agent Burkhart concerning her involvement in the murder. In the statements, Ms. Eshbaugh noted the defendant was driving a car. Mr. Eddings stayed in the car with her when they parked outside the victim’s apartment, but he got out for about 2 or 3 minutes and told her to follow the Mercedes when the men returned to the cars. Ms. Eshbaugh stated she was previously told to follow the Mercedes by the defendant. Ms. Eshbaugh stated Mr. Eddings placed a black and silver gun in her glove box when he got in her car, but she did not see Mr. Eddings with the gun at Mr. Kelso’s or the victim’s apartment. Ms. Eshbaugh thought Mr. Eddings took the gun out of the glove box while at Mr. Gross’s apartment. However, in her statement she noted Mr. Eddings took the gun out of the glove box and put it in his jacket before going into Mr. Kelso’s apartment. Ms. Eshbaugh affirmed she was and is scared of the defendant. Two of the victim’s neighbors testified as to their memory of September 13, 2015. Betty Robertson lived next door to the victim at the Oak Hill Village Apartments. On September 13, she fell asleep around 11:30 p.m. but awoke to a “pop” that “sounded like a firecracker” around 12:11 or 12:14 a.m. Charles Colon lived in the apartment below the victim and identified their respective apartments in a photograph at trial. Mr. Colon went to sleep around 11:00 or 11:45 p.m. Prior to 1:00 a.m., he heard “a whole bunch of footsteps running down the stairs.” The next morning, Mr. Colon noticed the victim’s apartment door was open, and he began calling her name. When she did not reply, Mr. Colon went to her apartment and saw the victim “sitting on the couch with blood coming down her head.” Mr. Colon ran to the maintenance office, and Thomas Mullins, the maintenance supervisor for the complex, called 9-1-1 at approximately 7:15 a.m. Officer Tory Moore of the Shelbyville Police Department responded to the 9-1-1 call. Mr. Mullins directed Officer Moore to the victim’s apartment. The door was open, - 10 - and Officer Moore observed the victim sitting on the couch in an unnatural position. Inside, he observed “a pool of blood on [the victim’s] blouse that was running from a wound in her head that was clearly a penetrating wound. It appeared she had been there a while based on her color.” Officers Jeff Goodrich and Mitchell Warren joined Officer Mullins at the scene and the three swept the residence, noting no one else was in the apartment and nothing appeared out of place. Officer Mullins secured and photographed the scene and created a crime scene log. Lieutenant Brian Crews of the Criminal Investigation Division (CID) of the Shelbyville Police Department and Detective Sam Jacobs also responded to the victim’s apartment on the morning of September 14, 2015. They saw the deceased victim on the couch with a gunshot wound to her head. Lieutenant Crews noted “a significant amount of blood” and stated it “looked like a hit” as there were no signs of a robbery or theft. Lieutenant Crews, however, did not observe any damage to the victim’s door. Additionally, he knew the victim was the mother of Michael Sales, who was involved in a murder in Fayetteville the prior week. Because he believed the murders to be related, Lieutenant Crews contacted the TBI. Detective Sam Jacobs photographed the scene and assisted TBI Agents Zachary Burkhart and Caleb Utterback in collecting evidence, including a shell casing located by the back door and a bullet fragment located near a table in the living room. Detective Jacobs indicated the location of the evidence in photographs of the victim’s apartment. Lieutenant Crews also identified numerous photographs depicting the apartment building, the victim, numerous views of her apartment including the living room, the door, and the balcony, and a Hornady .40 caliber spent shell casing found near the back door of the apartment. On September 15, 2015, Donald Whitaker contacted Lieutenant Crews and informed him that he was at the Kangaroo gas station on September 13, 2015, and observed men who might have been involved in the victim’s murder. As a result, Lieutenant Crews instructed Detective Jacobs to obtain and review any surveillance footage available from the gas station. The video footage corroborated Mr. Whitaker’s tip and enabled Lieutenant Crews to identify several potential suspects, including: the defendant, Mr. Allen, Mr. Askins, Mr. Taylor, Mr. Eddings, Mr. Gross, Mr. Kelso, Mr. Ransom, Mr. Maxwell, Mr. Carney, Ms. Eshbaugh, and Ms. Denham. Detective Jacobs also gathered surveillance footage from various businesses in the area and tracked the Rogue and the Malibu throughout Shelbyville on September 13, 2015. He compiled the pertinent video footage into one sequential video stream and created a list of each clip, noting the date, time, location, and a brief description of the - 11 - captured footage. As the video played for the jury at trial, Detective Jacobs described the same. The video begins with the Rogue and Malibu at the Kangaroo gas station at approximately 11:29 p.m. Mr. Taylor and Mr. Allen are seen exiting the Malibu and entering the gas station. Mr. Eddings is seen exiting the Rogue wearing a t-shirt with a picture and the words “Gone Too Soon.” Detective Jacobs thought the t-shirt was relevant to Mr. Caruth’s murder that occurred the previous week. Inside the gas station, Mr. Taylor, Mr. Allen, and Mr. Eddings purchased items, and Mr. Allen is seen handing money to Mr. Eddings. As a result, Detective Jacobs believed the Rogue and the Malibu were traveling together. Three receipts showing the purchases made by Mr. Taylor, Mr. Allen, and Mr. Eddings were entered into evidence. As the video continues, Mr. Eddings is seen pumping gas into the Rogue. The two cars left the gas station at approximately 11:40 p.m. From an overhead view, the vehicles are seen passing the Dover Street area. According to Detective Jacobs, Mr. Gross lived at 407 Dover Street. Detective Jacobs further explained, approximately 40 minutes prior to the Malibu and the Rogue entering the Dover Street area, Mr. Sales was arrested at 411 Dover Street. After approximately 6 minutes, the three cars, beginning with the Mercedes followed by the Malibu and the Rogue, left the Dover Street area and presumably Mr. Gross’s apartment. Though the caravan is lost on the video, it is eventually seen again driving away from the area of the Oak Hill Village Apartments at approximately 12:03 a.m. The next video shows the Mercedes driving away from where Mr. Kelso lived at the Park Trail Apartments. The Mercedes is seen at the Kangaroo gas station at approximately 12:21 a.m. where Mr. Gross made a purchase. Mr. Gross is seen leaving the gas station at 12:25 a.m. and driving towards Mr. Kelso’s apartment. Detective Jacobs admitted between 12:02 and 12:35 a.m., the three cars are not seen on video together. Instead, the Mercedes is seen independently and is the only vehicle seen during that time frame. At approximately 12:35 a.m., the Rogue, the Malibu, and the Mercedes are seen driving away from the Park Trail Apartments, in that order. The caravan drives south and is ultimately seen driving towards the Oak Hill Village Apartments, where the victim lived, at approximately 12:40 a.m. The last video captured shows the caravan approximately 500 to 600 yards away from the Oak Hill Village Apartments. Detective Jacobs identified photographs of the Oak Hill Village Apartments and noted the Southgate Apartments were located just past the Oak Hill Village Apartments. He explained if the caravan parked in the Southgate Apartments, as Mr. Kelso admitted, the group would be very close to the victim’s apartment. Detective Jacobs did not identify - 12 - the defendant on any of the videos and noted there is no video from the Oak Hill Village Apartments or the Southgate Apartments. Special Agent Andrew Vallee, an expert in communication analysis and mapping, cellular forensics, and law enforcement use of communications records, provided a thorough overview of how cellular mapping is performed and then detailed the defendant’s pertinent cell phone activity on September 13, 2015, using the maps he created as exhibits. At approximately 11:13 p.m., the defendant made an outgoing call from the Tullahoma area. The defendant placed three additional outgoing calls at 11:14 p.m., 11:14 p.m., and 11:18 p.m. as he traveled towards Shelbyville. Based upon two outgoing calls placed at approximately 11:22 p.m., the defendant had reached Shelbyville and the area of the Oak Hill Village Apartments. At 11:25 p.m., the defendant made two calls to Mr. Gross while in the same area. The next four calls placed by the defendant between 11:28 and 11:29 p.m. showed the defendant had traveled to the Shelbyville town center. While in the same area, the defendant received two calls from Ms. Fletcher at 11:38 p.m., a call from an unidentified number at 11:41 p.m., and a call from Mr. Eddings at 11:54 p.m. At the time of the calls, Agent Vallee explained the defendant was less than one mile from the victim’s apartment. At 11:57 p.m., Mr. Eddings called the defendant which placed the defendant south of Shelbyville. When the defendant terminated the call 35 seconds later, he had moved north, but was still in the area surrounding the victim’s apartment. At 12:19 a.m., the defendant placed two outgoing calls while in an area further north of the victim’s apartment than the previous calls. Finally, at 1:36 a.m., the defendant made an outgoing call from the Tullahoma area. Agent Vallee provided a chart mapping the defendant’s cell phone from 11:30 p.m. on September 13, 2015, until 2:00 a.m. on September 14, 2015, which indicated the defendant traveled from Shelbyville to Tullahoma. At 2:03 a.m., the defendant made an outgoing call from the Estill Springs area which is between Tullahoma and Winchester. Agent Vallee explained 17.8 miles separates the areas of Shelbyville and Tullahoma. Another cellular map created by Agent Vallee detailed the cellular connections made by Mr. Allen, Mr. Eddings, Mr. Gross, and the defendant between 11:30 p.m. and 1:30 a.m. on the night of the victim’s murder and portrayed the location of each person at the time of the connections. On cross-examination, Agent Vallee noted he also examined a Verizon Samsung flip phone during his investigation but determined it was not used on September 13, 2015. He clarified the cell phone records previously discussed were for a cell phone registered to the defendant, though he did not know if the defendant was the person actually using the phone on the night in question. Further, he explained he did not know every phone number that the defendant dialed or received calls from on September 13 or 14. Agent Vallee stated the defendant and Mr. Allen did not communicate via cell phone - 13 - on the night of the murder, noting he only analyzed the defendant’s records in this investigation. He further explained his mapping did not include for whether the phone calls were answered by the intended recipient. Agent Burkhart detailed his involvement in both Mr. Caruth’s and the victim’s murder investigations. He assisted the Fayetteville Police Department in locating Mr. Sales after Mr. Caruth’s murder. In doing so, Agent Burkhart spoke with the victim on September 10, 2015, at her apartment. At approximately 11:15 or 11:30 p.m. on September 13, 2015, Agent Burkhart participated in the arrest of Mr. Sales on Dover Street in Shelbyville. The next morning, Lieutenant Crews asked Agent Burkhart to come to the Oak Hill Village Apartments believing the victim’s murder could be “possible retaliation” for Mr. Caruth’s murder. Agent Burkhart identified the victim upon his arrival, collected evidence from the crime scene, and photographed the scene. During the initial investigation, Agent Utterback and members of the violent crime scene team arrived at the scene along with members of the Shelbyville Police Department. Shoe prints were found during a cursory examination, and Agent Miranda Gaddes was contacted as a result. Agent Burkhart located a projectile in the living room of the apartment and a shell casing near the back door. He created a diagram of the scene and collected sunflower seeds, cigarette butts, and the victim’s cell phone. After concluding the initial investigation of the victim’s apartment, Agent Burkhart transported the collected evidence to TBI Special Agent Steven Kennard. Special Agent Kennard submitted the evidence to the TBI headquarters in Nashville. The cigarette butts and sunflower seeds were submitted to the DNA Serology Unit and the projectile and spent cartridge case to the firearms unit. Agent Burkhart spoke with Detective Massey of the Fayetteville Police Department regarding the potential connection between the victim’s death and Mr. Caruth’s death. By the end of the day on September 14, Agent Burkhart was actively working with the Fayetteville Police Department as they believed the murders were connected. Throughout the initial stages of the investigation, Mr. Eddings continued to surface as a potential suspect. When Agent Burkhart learned Mr. Eddings was captured on the surveillance footage from the gas station, he spoke with Mr. Eddings, who identified himself in the footage and provided the names of additional people of interest, including the defendant, Mr. Kelso, and “a few women.” As the investigation progressed, Agent Burkhart interviewed Ms. Denham, Ms. Eshbaugh, and Mr. Kelso. Agent Burkhart conducted Mr. Kelso’s interview with Agent Russ Winkler. Prior to the interview, Agent Gaddes advised they look for Reebok Allen Iverson shoes as a possible shoe involved at the crime scene. Accordingly, during Mr. - 14 - Kelso’s interview, Agent Burkhart collected a pair of Reebok Allen Iverson shoes from Mr. Kelso that were subsequently processed by Agent Gaddes. During Ms. Eshbaugh and Ms. Denham’s interviews, the two women identified their cars in the surveillance footage. Ms. Eshbaugh also took Agent Burkhart to the Southgate Apartments where the cars had parked that evening -- approximately 100 yards from the victim’s apartment. Agent Burkhart and officers from the Shelbyville Police Department, including Detective Jacobs, interviewed Mr. Kelso a second time while he was incarcerated in Pennsylvania. After being Mirandized, Mr. Kelso confessed to shooting the victim. Additionally, after interviewing Mr. Taylor and Ms. Denham, Agent Burkhart learned the gun used in the victim’s murder might be in the Elk River in Fayetteville, Tennessee. However, a sweep of the river did not produce a gun. Agent Burkhart also obtained the cell phones of the defendant, Mr. Eddings, and Mr. Gross. He noted both Mr. Eddings and the defendant’s cell phones were forensically searched. Agent Burkhart detailed his interviews with the defendant and Ms. Fletcher. According to Agent Burkhart, Ms. Fletcher requested an interview during which she received numerous phone calls from the defendant. Agent Burkhart explained Ms. Fletcher “was crying, she seemed scared and her phone kept buzzing. And she said something to the effect of [‘]he’s going to keep calling.[’]” As a result, Agent Burkhart directed Ms. Fletcher to answer the defendant’s call and place the call on speaker phone. Agent Burkhart heard the defendant threaten Ms. Fletcher during the call. Ms. Fletcher asked Agent Burkhart about witness protection programs, and Agent Burkhart encouraged her to consider moving. At the conclusion of the interview, Agent Burkhart reduced Ms. Fletcher’s statement to writing which she reviewed, edited, and signed. Agent Burkhart denied threatening or intimidating Ms. Fletcher during the interview. During cross-examination, Agent Burkhart stated Ms. Fletcher contacted him approximately one month after she gave her statement and indicated it was not true. Agent Burkhart, however, did not meet with Ms. Fletcher again. He explained: In the first interview, this lady was scared out of her mind. She had been threatened in the middle of that investigation. She had also left for Ohio. She did contact me and talk to me about that statement. I told her that that was her -- her statement and her written statement, and at that time, no other statement was taken. Prior to interviewing Ms. Fletcher, Agent Burkhart interviewed the defendant on September 30, 2015, noting the defendant and Ms. Fletcher’s statements were similar. During the interview, the defendant disclosed he is a member of the Gangster Disciples and his street name is “Mac Day” and “Divy Odyssey.” The defendant stated he attended - 15 - Mr. Caruth’s funeral with “Black” and “Gold”1 where he met Mr. Eddings, and the two exchanged phone numbers. The defendant stated he knew Mr. Kelso, but he did not know Mr. Gross or Mr. Sales. The defendant admitted to hanging out with Mr. Taylor and Ms. Denham on September 13, 2015. The defendant stated he was driving Ms. Denham’s car because she had been drinking. The defendant denied knowing where Shelbyville was located but stated he may have driven through it on his way to Nashville. At the conclusion of the interview, the defendant reviewed and signed a written statement which was entered into evidence. Agent Burkhart began arresting individuals for the victim’s murder on October 8, 2015, including: the defendant, Mr. Allen, Mr. Askins, Mr. Taylor, Mr. Gross, Mr. Kelso, Mr. Ransom, and Mr. Maxwell. At the time of the arrests, Agent Burkhart knew Mr. Kelso fired the shot that killed the victim. After his arrest, the defendant asked to speak with Agent Burkhart at the Bedford County jail. Agent Burkhart described the conversation as “a fishing expedition” by the defendant in an attempt to learn how much the authorities knew regarding the victim’s murder. Accordingly, Agent Burkhart terminated the interview. Lieutenant Crews observed Agent Burkhart’s initial interview with the defendant, noting “[i]t became very obvious to me that [the defendant] was asking us questions in an attempt to determine who had provided information to us about him.” Agent Burkhart obtained and executed a search warrant for the defendant’s cell phone. Over the course of the investigation, Agent Burkhart learned the cell phone numbers of many individuals involved and noted the defendant had Mr. Eddings’s, Mr. Gross’s, Mr. Allen’s, and Ms. Fletcher’s cell phone numbers saved in his phone. During the investigation, Mr. Eddings provided his white iPhone 6 to Agent Burkhart. Mr. Eddings’s iPhone and the defendant’s cracked iPhone were entered into evidence along with a chart of the people of interest to the investigation and their nicknames. Agent Burkhart agreed there was no physical evidence tying the defendant to the murder. Instead, Agent Burkhart relied on the statements made throughout the investigation and “other evidence” to support arresting the defendant. Agent Burkhart noted Mr. Taylor made three statements and wrote letters to law enforcement. Agent Burkhart did not believe Mr. Taylor’s statements contradicted themselves, explaining Mr. Taylor was “very scared” throughout the investigation. Agent Burkhart learned Mr. Eddings had a silver/chrome and black gun, but it was not uncovered during the investigation. The investigation also revealed Mr. Carney had a black and chrome gun which ended up in Mr. Kelso’s possession prior to the murder. 1 Agent Burkhart was unable to identify those persons. - 16 - However, Agent Burkhart did not know which gun was actually used in the murder. Both Mr. Taylor and Ms. Denham attempted to lead Agent Burkhart to the murder weapon, but no weapon was recovered. Mr. Eddings told Agent Burkhart that Mr. Gross told him the defendant shot the victim. Agent Burkhart explained that throughout the investigation, nothing indicated Mr. Eddings entered the victim’s apartment. As a result, Mr. Eddings was not charged in her murder. Ms. Eshbaugh provided two statements to Agent Burkhart. In both, Ms. Eshbaugh described Mr. Eddings as having a gun the night of the murder. Ms. Eshbaugh also stated Mr. Eddings had the defendant’s cell phone at some point that night which was later returned to the defendant. Ms. Eshbaugh denied knowing what happened the night of the murder but stated the defendant threatened her as they drove back to Tullahoma. Agent Burkhart believed Ms. Eshbaugh clarified her first statement with her second statement. Ms. Denham gave three statements to Agent Burkhart. Agent Burkhart acknowledged discrepancies existed in Ms. Denham’s statements due to her fear throughout the investigation. Agent Burkhart acknowledged both Ms. Eshbaugh’s and Ms. Denham’s cars were involved on the night of the murder, but he refused to label either as getaway cars. Further, regarding any discrepancies in the witnesses’ statements obtained during the investigation, Agent Burkhart noted many of the witnesses were scared, specifically, Ms. Denham and Ms. Eshbaugh. Agent Burkhart stated both Mr. Kelso and Mr. Taylor claimed the defendant threatened Mr. Kelso into shooting the victim. Mr. Taylor told Agent Burkhart that he was scared and, as a result, Mr. Taylor was moved from the Bedford County jail. Mr. Taylor also implicated a man named, “Guta,” and stated in his letters that he was scared of Guta. However, Agent Burkhart was unable to identify anyone by that name despite learning the defendant had a “friend” named “Mack Guta” on Facebook. During redirect and re-cross, Agent Burkhart explained that while Ms. Eshbaugh thought Mr. Eddings had the defendant’s cell phone the night of the murder, Mr. Eddings denied having the phone. Ms. Eshbaugh described the phone as a flip phone during a pretrial meeting with the district attorney’s office, even though this detail was not reflected in any of Ms. Eshbaugh’s statements. A Samsung flip phone that was found on the defendant while in jail was entered into evidence. Agent Burkhart did not know when or by whom the flip phone was purchased or activated. Amber Fletcher, the defendant’s wife of 32 days, testified at trial. However, her testimony was difficult to elicit. Not only did she attempt to invoke the spousal privilege and her Fifth Amendment rights, but she stated that she felt threatened and coerced by the State in testifying and by Agent Burkhart in providing a statement during the - 17 - investigation. The trial court conducted a hearing outside of the presence of the jury to determine whether the spousal privilege applied. During the hearing, Ms. Fletcher explained she married the defendant on January 12, 2018. When asked if she gave a statement to Agent Burkhart on October 7, 2015, Ms. Fletcher attempted to invoke her right against self-incrimination. However, after consulting with counsel, Ms. Fletcher cooperated and answered questions from the State, defense counsel, and the trial court regarding her relationship with the defendant and the statement she gave to Agent Burkhart, including that at the time of the statement she was in a relationship with the defendant and pregnant with his child but not married to the defendant. After hearing Ms. Fletcher’s responses, the trial court ruled the spousal privilege did not apply as the October 7 statement was made prior to her marriage to the defendant. The State then proceeded with her direct examination. Throughout her testimony, the State referred to Ms. Fletcher’s October 7 statement as Ms. Fletcher could not recall the details of the same. Ultimately, Ms. Fletcher stated on September 13, 2015, the defendant woke her up around 10:00 p.m. at her apartment in Winchester, stating he could not spend the night with her because “[h]e had to go take care of something.” In her statement, Ms. Fletcher noted the defendant also told her he would not be able to talk to her on the phone. According to Ms. Fletcher, Mr. Taylor was with the defendant at the time. After the defendant left her apartment, Ms. Fletcher did not see him again until 8:00 a.m. on September 14. That day, Mr. Taylor’s mother and girlfriend came to Ms. Fletcher’s apartment in search of Mr. Taylor. After they left, the defendant asked Ms. Fletcher to pull up on her cell phone information about a shooting “that happened in Shelbyville.” When Ms. Fletcher asked the defendant why he wanted her to do so, the defendant stated “[t]hat he killed the lady.” Ms. Fletcher did not ask the defendant any further questions, but noted over the next several days, the defendant urged her not to speak about the “Shelbyville situation.” Additionally, in her statement, Ms. Fletcher noted the defendant threatened to kill her and “go after” her family if she told anyone about the murder. Ms. Fletcher described the defendant’s cell phone at the time of the murder as a black iPhone with a crack in it. She believed the defendant had his phone with him on the night of the murder. Ms. Fletcher also stated that at the time of the murder, the defendant carried a silver and black gun with him that he called “a strap.” During cross-examination, Ms. Fletcher stated she met with Agent Burkhart at the Coffee County courthouse in order to give a statement. She was pregnant at the time, and she provided the statement after Lisa Baker, the defendant’s ex-wife, encouraged her to do so. At trial, Ms. Fletcher explained she lied to Agent Burkhart in providing the statement. In reviewing her statement, Ms. Fletcher explained she did not remember if the defendant had his cell phone the night of the murder, but she believed she called him - 18 - at some point but did not remember speaking to him. When she woke up the next morning, the defendant was in her apartment and had his cell phone with him. Ms. Fletcher testified she did not hear the conversation the defendant had with Mr. Taylor’s mother or girlfriend that morning. However, she could not explain why in her statement she claimed she overheard the defendant, Mr. Taylor’s mother, and Mr. Taylor’s girlfriend discussing the victim’s death. Regarding the circumstances surrounding her statement, Ms. Fletcher believed she was interviewed for about an hour. She stated Agent Burkhart and Assistant District Attorney (ADA) Mike Randles claimed “[t]hat if I didn’t stick with exactly what I said, that I could get prosecuted.” Ms. Fletcher claimed she told Agent Burkhart that portions of her statement were false, but Agent Burkhart would not let her correct her statement. After making the statement, Ms. Fletcher noted Agent Burkhart and ADA Randles “made her leave the state.” She further noted that the night before her trial testimony, Agent Burkhart, District Attorney Robert Carter, ADA Randles, and ADA Richard Cawley told her she could be prosecuted if she did not “stick” to her story. She specifically stated she lied in her statement when she said that the defendant told her he killed the victim and that he always carried a gun. She further admitted that her cell phone was left on the table during the interview and that the defendant called her numerous times. The State then asked: “In fact, during those calls, at least one of those calls was recorded and [the defendant] said that, quote, he would leave you alone after he killed you and stomped the baby.” The defendant objected, arguing the statement was inflammatory and was not produced by the State. The trial court sustained the objection for other reasons, noting the question was leading and assumed facts not in evidence. The State continued, asking Ms. Fletcher, “Let me ask you, do you remember [the defendant] threatening to kill you and stomp the baby out of you?” Ms. Fletcher responded, “I don’t remember him saying anything.” Ms. Fletcher agreed she would be able to recognize the defendant’s voice on a recording, and the State prepared to play the recording of the October 7 phone call between Ms. Fletcher and the defendant. Before doing so, the defendant requested a 404(b) hearing in order to explore the introduction of the recorded phone call, claiming it detailed a crime for which the defendant had not been charged. Additionally, the defendant moved for a mistrial, but the trial court denied the same. During the 404(b) hearing, Ms. Fletcher agreed her cell phone was on the table in the interview room as she provided a statement to Agent Burkhart. When the defendant repeatedly called her cell phone, Agent Burkhart directed her to answer the call and put it on speaker phone, which Ms. Fletcher did. Ms. Fletcher admitted she knew the defendant was calling her from jail and identified her voice and the defendant’s voice on the recording. In the recording, the defendant threatened Ms. Fletcher stating he would kill - 19 - her and stomp the baby out of her. After a lengthy discussion with numerous objections and motions made to exclude the recording and any reference to the statement within, the trial court ultimately allowed the State to question Ms. Fletcher regarding the statement. The trial court reasoned the State could use the statement to rebut Ms. Fletcher’s allegation that she implicated the defendant in her statement after being coerced by the State. The State then continued with its direct examination of Ms. Fletcher. Ms. Fletcher stated she had met with the district attorney’s office twice during trial. During the first meeting, Ms. Fletcher felt District Attorney Carter “raised his voice and got a little snappy with me.” After indicating her October 7 statement was a lie during the meeting, Ms. Fletcher explained that ADA Randles “told me that I could get prosecuted for not getting on the stand and saying exactly what was in my statement and somebody else would be taking care of my kids.” As a result, Ms. Fletcher “felt like [her] arm was being twisted.” She acknowledged the prosecutors explained that she could be charged with perjury if she lied during her testimony. She also acknowledged District Attorney Carter asked her if she both loved and feared the defendant, but she did not remember answering in the affirmative. After the second meeting, Ms. Fletcher requested an attorney, and the trial court appointed one prior to the start of trial the next day. Ms. Fletcher maintained she attempted to tell officers the October 7 statement “was not all the way true.” Because the statement was not completely true and she was not permitted to correct the statement, Ms. Fletcher felt threatened by the prosecutors’ comment that she could be charged if she lied during her testimony. Ms. Fletcher admitted she was currently on probation which was why she was telling the truth during her testimony, and again stated she lied when she implicated the defendant in the victim’s murder. Ms. Fletcher reiterated that she did not feel threatened by the defendant and had never filed a domestic assault charge or an order of protection against him, noting she frequently threatened the defendant herself. Several experts also testified on behalf of the State and detailed their involvement in the investigation of the victim’s murder. As noted above, Agent Gaddes, an expert in trace evidence and a forensic scientist for the TBI, responded to the crime scene on September 14, 2015, in order to assist with shoe impressions found on the door of the victim’s apartment. In analyzing the impressions, Ms. Gaddes utilized the Shoe Print Image Capture and Retrieval Data Base (SICAR) and determined the impressions were made by a Reebok Allen Iverson athletic shoe. Agent Gaddes provided her findings to Agents Burkhart, Utterback, and Winkler and ultimately analyzed a pair of shoes obtained by Agent Burkhart from the Park Trail - 20 - Apartments. She compared both class and individual characteristics of the shoes obtained by Agent Burkhart with photographs of the shoe impressions taken from the crime scene and determined they matched.2 Dr. Laura Boos, an expert in forensic biology and special agent for the TBI, testified regarding the DNA analysis she performed on several cigarette butts, a sunflower seeds, Mr. Kelso’s shoes, and a pair of shorts. Though she performed numerous tests, Dr. Boos did not match the defendant’s DNA to any of the profiles she obtained. Dr. David Zimmerman, an expert in forensic pathology, performed the autopsy of the victim on September 15, 2015. Dr. Zimmerman testified the victim suffered a perforating gunshot wound to the head. The bullet entered the left side of the victim’s head and exited the right side of her neck. Soot and gun powder stippling surrounded the entrance wound and allowed Dr. Zimmerman to opine the gun was approximately 1 to 3 feet from the victim’s head when fired. Dr. Zimmerman collected bullet fragments from the wound track and noted the victim was shot with a handgun. Special Agent Jessica Hudson, a forensic scientist with the TBI, testified as an expert in firearms and toolmark identification. She examined the fired cartridge case and bullet found at the crime scene. She determined the items were consistent with a Hornady Critical Duty Brand Ammunition .40 caliber Smith & Wesson cartridge, and the bullet was most likely fired by a Smith & Wesson .40 caliber handgun (SW40VE). Agent Hudson noted Smith & Wesson makes a black and chrome/silver model of this type of handgun. A picture of an example of this type of gun was entered into evidence. As part of her report, Special Agent Hudson compared the bullet and cartridge case found at the victim’s apartment to the evidence she reviewed in Mr. Caruth’s case and determined the items did not match. She also explained a fired cartridge case or bullet would likely not retain DNA or fingerprints due to the high temperatures involved in firing a weapon. Special Agent Hudson stated nothing in her analysis of the bullet or the cartridge case linked the defendant to the evidence. She did not analyze any firearms in relation to the bullet or cartridge case and noted several variations of the Smith & Wesson 40VE exist besides the image presented as an example to the jury. She agreed the bullet and cartridge casing could have been fired from a different gun other than the SW40VE but noted “[t]he probability that this particular bullet and cartridge case came from a Smith & Wesson SW40VE is higher than the probability that it did not.” The bullet, cartridge case, and Special Agent Hudson’s report were entered into evidence. 2 Class shoe characteristics include size, shape, tread design, and general wear while individual characteristics include markings such as “nicks, gouges, [or] scrapes on the bottom of the shoe.” - 21 -  Finally, Ephriam Robinson testified he was currently serving time for a drug conviction but had not been offered any promises in exchange for his testimony. Mr. Robinson, a retired member of the Vice Lords gang, was familiar, in varying capacities, with the victim, the defendant, Mr. Sales, Mr. Kelso, and Mr. Taylor, noting Mr. Taylor is his cousin. Despite their differing gang affiliations, Mr. Robinson did not have any problems hanging out with Mr. Taylor or Mr. Kelso and noted he has been friends with the defendant since the 1990s, most recently seeing him in 2014. Mr. Robinson stated the defendant’s nicknames are “Day-Day” and “Mac Day-Day,” noting “Mac” is a term used within the Gangster Disciples. Mr. Robinson thought the defendant’s wife’s name was Lisa. Mr. Robinson described several conversations he had with the defendant while the two were incarcerated in the Bedford County jail. In June 2017, prior to a hearing in his case, Mr. Robinson was brought to the courthouse and placed in a holding cell with the defendant, Mr. Taylor, Mr. Kelso, and others. While in the cell, the defendant and Mr. Taylor got into an argument, and Mr. Taylor and Mr. Kelso were removed. The defendant then told Mr. Robinson, referring to Mr. Kelso and Mr. Taylor, “if they didn’t plead the Fifth when they go to court, that they would be taken care of once they get to prison. He said the only thing that would be able to save them is if they plead the Fifth and they had the paperwork to show that.” On November 20, 2017, Mr. Robinson was again in the holding cell with the defendant. On this occasion, the defendant told him “that he felt bad for having to make Kavaris Kelso shoot his auntie.” The defendant explained that “the reason why he had to do it is because [Mr.] Kelso had to show some type of loyalty towards the Gangster Disciples because he let [Mr. Sales] say . . . that he was going to go to Tullahoma and kill every G up there.”3 Additionally, the defendant told Mr. Robinson “that he didn’t feel like [Mr. Kelso] deserved the rank because he had to make him, he had to threaten his child and baby mother, his mother’s -- his daughter’s mother.” Finally, while in the holding cell in December 2017, the defendant told Mr. Robinson that “he was filing a motion to get -- to have a -- some girl come and testify on his behalf saying that he was not there.” The defendant also told Mr. Robinson that on the night of the victim’s murder, the defendant took a gun and cocaine from Mr. Carney. During cross-examination, Mr. Robinson acknowledged being housed with Mr. Taylor, Mr. Kelso, Mr. Askins, and Mr. Allen and to knowing Mr. Gross, Mr. Carney, Mr. Ransom, Mr. Eddings, and Mr. Sales. He again stated he spoke with the defendant while in the holding cell in June, November, and December of 2017, though he could not 3 Mr. Robinson explained a “G” was a Gangster Disciple. - 22 - recall the specific dates. He acknowledged that if the defendant did not have a court date in December 2017, he could not have talked to him that month. Mr. Robinson also thought he spoke with the defendant outside of a store in Tullahoma in 2014. When questioned about how he spoke to the defendant in 2014 if the defendant was in jail that year, Mr. Robinson stated he did not think the defendant was in jail during that time. Regardless of the dates, Mr. Robinson stated he was testifying truthfully. At the close of the State’s proof, the defendant made a motion for a judgment of acquittal and moved to have Ms. Eshbaugh, Ms. Denham, and Mr. Eddings declared as accomplices. The trial court denied both motions, and the defendant proceeded with his proof. Michelle Murray, the circuit court clerk for Bedford County, testified she maintains the records for all court proceedings, including any appearance, held in juvenile, circuit, and general sessions court. Ms. Murray’s records for the defendant did not reflect a court appearance for December 2017 or 2018. During cross-examination, Ms. Murray identified several dockets where the defendant was scheduled to appear. A June 19, 2017, docket listed the defendant, Mr. Gross, Mr. Kelso, Mr. Taylor, and Mr. Robinson. Ms. Murray stated the defendant, Mr. Kelso, and Mr. Robinson were also listed on the August 21, 2017, docket. She stated the defendant, Mr. Askins, Mr. Allen, Mr. Gross, Mr. Maxwell, and Mr. Robinson were listed on the docket for October 16, 2017. Finally, Ms. Murray noted the defendant, Mr. Kelso, and Mr. Robinson were listed on the docket for November 20, 2017. She did not see Mr. Taylor listed on the August, October, or November dockets. Ms. Murray noted, without looking at each individual file, she was unable to determine if any of the defendants listed were actually in court on their scheduled dates. Finally, the defendant testified, stating he was 32 years old and incarcerated. When not incarcerated, he lived in Winchester with his wife, Ms. Fletcher, and sold drugs in Tullahoma. He has been a member of the Gangster Disciples since he was a teenager and has a criminal history that includes two robbery convictions, a facilitation of aggravated robbery conviction, various drug offenses, being a felon in possession of a firearm, and most recently, charges for introducing contraband into a penal institution and filing a false report to a law enforcement agency. Despite being a member of the Gangster Disciples, the defendant stated he only knew Mr. Eddings, Mr. Kelso, and Mr. Taylor prior to September 13, 2015. The defendant met Mr. Eddings at Mr. Caruth’s funeral, he met Mr. Kelso for “like 5 minutes” at a cookout in Tullahoma in 2015, and he hung out with Mr. Taylor about 4 times in the two weeks prior to the murder. The defendant stated he did not know Mr. Caruth and had never met Mr. Ransom, Mr. Maxwell, or Mr. Carney. He further - 23 - explained he is a Nashville Gangster Disciple whereas the other men are from Shelbyville or Fayetteville. Though they are all members of the same gang, members “run with their town” and as a result, the defendant was not familiar with them. At approximately 5:00 or 6:00 p.m. on September 13, the defendant met Mr. Taylor, Ms. Eshbaugh, Mr. Eddings, and Mr. Allen in a park in Tullahoma in order to sell them cocaine. The group wanted to buy marijuana, and the defendant offered to help them do so. The defendant “jumped in the car with them and drove them . . . around Tullahoma,” noting he remained in Tullahoma the entire evening until he returned to Winchester with his brother. The defendant denied going to Shelbyville on September 13, 2015. He testified he did not know how his cell phone got to Shelbyville, claiming “I actually couldn’t -- did not have my phone that night. When they called me and I went to them to sell them cocaine, after I left I could not find my phone.” However, upon realizing he lost his phone, the defendant did not go back to Tullahoma to try to locate it. Rather, the defendant tried to call the phone but no one answered. On the day after the murder, Mr. Taylor returned the defendant’s cell phone to him at his apartment, noting Mr. Taylor lived in the same apartment complex. The defendant provided one written statement to police wherein he denied having any knowledge of the victim’s murder, stating he was in Tullahoma that night. The defendant addressed his relationship with Ms. Sales, the victim’s daughter. While in jail, he had a contraband cell phone which he used to access Facebook. He saw posts about the victim’s murder that referenced his name. In response to the posts, Ms. Sales made disparaging comments about the defendant which caused him to send her a message asking her to “stop judging” him as he “had nothing to do” with the murder. The defendant continued to have a conversation with Ms. Sales after initiating the same. The defendant stated he does not know Mr. Sales and does not know why Mr. Taylor, Mr. Eddings, Ms. Eshbaugh, Ms. Denham, or Mr. Ransom implicated him in the murder. The defendant testified he was not allowed to be in the “cage” with any of the people involved in the murder and was transferred from the Bedford County jail after his arrest. The defendant discussed his relationship with Ms. Fletcher, noting she visits him weekly and they talk on the phone daily. While they fight “[l]ike cats and dogs,” he does not know why she made false statements against him. The defendant stated that he has never met or spoken with Mr. Robinson and that it would have been “impossible” for Mr. Robinson to have seen him in 2014 because he was incarcerated from 2013 through 2015. He denied seeing Mr. Robinson in court in December 2017, noting he “is not allowed to be around the other guys.” The defendant stated he obtained a flip phone while incarcerated at the Coffee County jail which formed the basis of his charge for introducing contraband into a penal - 24 - facility. The defendant denied having a flip phone prior to being in jail and stated he did not own one on the night of the murder. The defendant claimed he did not know and had never met the victim. He denied directing Mr. Kelso to shoot her, denied providing Mr. Kelso with a gun, and denied going to Mr. Kelso’s apartment, Mr. Gross’s apartment, the parking lot outside of the victim’s apartment, or the victim’s apartment. The defendant also denied discussing or meeting with others regarding how to get revenge against Mr. Sales for the murder of Mr. Caruth. During cross-examination, the defendant again denied knowing Mr. Robinson and asserted Mr. Robinson was guessing when he testified that the defendant’s first wife’s was named Lisa. The defendant stated Mr. Eddings entered his phone number into the defendant’s cell phone when he met him. He reiterated he met Ms. Denham, Ms. Eshbaugh, and Mr. Allen for the first time on September 13, and he met Mr. Askins while in jail. The defendant admitted he had met Mr. Gross but denied having a contact for “Mac Chase Shelbyville” in his cell phone, claiming Agent Burkhart lied regarding his assertion that Mr. Gross’s number was saved in the defendant’s cell phone. He also admitted to selling cocaine to Mr. Taylor and then hanging out with the group at the park in Tullahoma. The defendant stated when the group went to find marijuana, he drove Ms. Denham’s car. The defendant explained the difference between his testimony and Ms. Denham’s on this fact is that Ms. Denham testified that he “drove somewhere I didn’t.” The defendant again stated he lost his phone the night of the murder and attempted to call it after realizing the same. However, when the State provided the defendant’s cell phone records for his review in order to identify when he attempted to call his missing phone, the defendant stated “You will have to find it. I was -- I don’t know them times, I didn’t have my phone during them times. I lost my phone once I left them.” The defendant argued the State failed to provide his cell phone records prior to 11:13 p.m., but acknowledged he did not request his records from Verizon and did not have proof to support his assertion. The defendant believed Mr. Taylor, Mr. Eddings, Ms. Eshbaugh, Ms. Denham, and Mr. Ransom all knew each other and implicated him, someone they did not know, as a result. He denied his nickname is “Day Day,” claiming it is actually “Little Freaky” or “Mac Day Debiossi.” He agreed he was aware Mr. Kelso admitted to shooting the victim in a statement to police. The defendant, however, claimed Mr. Kelso denied the defendant was present when Mr. Kelso shot the victim. - 25 -  The defendant explained he went to Mr. Caruth’s funeral to show respect and because “[s]omebody I knew told me what happened and they asked me if I would go with them.” He denied that members of the Gangster Disciples in one area might call members from another area to help after someone is murdered. He stated Mr. Sales’ murder of Mr. Caruth was not disrespectful to him, noting Mr. Caruth “was not one of my gang members, he was [Gangster Disciple], but from a different area.” However, the defendant stated if a member of another gang killed a member of the Nashville Gangster Disciples, the defendant would feel disrespected. The defendant denied stating, “How you going to let Michael Sales come and say he just killed one and he coming to Tullahoma and kill 2 more.” The defendant explained he “was never there to make that statement.” He denied having a gun on the night in question and denied making a phone call asking if he needed to be “strapped.” The defendant stated Ms. Fletcher testified that her October 7 statement, wherein she claimed the defendant routinely carried a silver and black gun called a “strap,” was a lie. During redirect, the defendant reiterated that he attempted to call his phone prior to 11:13 p.m. on September 13 after realizing it was lost but did not know when he lost the phone. The defendant admitted a collective exhibit of his cell phone records and his TOMIS report into evidence for identification only along with the defendant’s records from Coffee County. After the defendant closed his proof, the jury convicted him as charged. At the subsequent sentencing hearing, the trial court imposed an effective life sentence plus ten years. The defendant filed a motion for a new trial which the trial court denied. This timely appeal followed. Analysis I. Venue The defendant argues the trial court erred in denying his motion for a change of venue based upon numerous prospective jurors’ pretrial exposure to the case. The State contends the trial court did not abuse its discretion in denying the defendant’s motion, noting “[m]ost of the venire generally had only distant recollections of the media coverage, as did the jurors that actually sat on the jury.” The State also asserts the defendant failed to properly develop this issue for appellate review. Upon our review, we agree with the State. A trial court may “order a venue change when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed or for any other cause.” Tenn. R. Crim. P. 21(a). “Whether to grant a motion for change - 26 - of venue is left to the sound discretion of the trial court, and the court’s ruling will be reversed on appeal only upon a clear showing of an abuse of that discretion.” State v. William “Bill” Bosley, Jr., No. W2009-00783-CCA-R3-CD, 2010 WL 2219483, at *5 (Tenn. Crim. App. May 27, 2010) (citing State v. Davidson, 121 S.W.3d 600, 611-12 (Tenn. 2003)). A change of venue is not warranted simply because a juror has been exposed to pretrial publicity. Id. (citing State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997)). For this court to reverse a conviction based on a venue issue, the “‘defendant must demonstrate that the jurors who actually sat were biased or prejudiced against him.’” Id. (quoting State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992)). Here, the record demonstrates the trial court did not abuse its discretion in denying the defendant’s motion for a change of venue. Though the defendant included a transcript of the jury selection process and outlined the allegedly problematic jurors in his brief, he failed to provide any evidence demonstrating that the selected jurors were biased or prejudiced against him. Rather, the defendant generally asserts that eighteen jurors had pre-trial exposure to the case, “including knowledge of what transpired in the trial of the co-defendants, familial relations to the victim or co-defendants, and living in the same neighborhood where these events transpired.” The defendant failed to identify which jurors with potential exposure were actually selected for the jury and failed to explain how he was prejudiced by the same. Bosley, 2010 WL 2219483, at *5. In denying the defendant’s motion, the trial court asserted: I think that all of these jurors have demonstrated an ability to set aside what they read and heard, what they were told and whatnot and they are to base their decision on this case based on the evidence presented in the courtroom and the law as I give them. I think we have asked every one of them this. Nothing in the record warrants a reversal of the trial court’s determination. It is clear the defendant has failed to carry his burden as to this issue, and he is not entitled to relief.4 Furthermore, the defendant only exercised six peremptory challenges at trial when he was entitled to eight. Tenn. R. Crim. P. 24 (e)(2). As such, and as noted by the State, the defendant failed to use all of his peremptory challenges to remove the jurors complained of, and he is not entitled to relief as a result. Sommerville v. State, 521 S.W.2d 792, 797 (Tenn. 1975) (noting “that failure to challenge for cause or if said challenge is not sustained, failure to use any available peremptory challenge to remove the objectionable juror, precludes reliance upon the juror’s disqualification upon appeal”). 4 We also encourage the defendant to adhere to the formatting requirements of Rule 27 of the Rules of Appellate Procedure by including page numbers in any future briefs submitted to this Court. - 27 -  II. Sufficiency of the Evidence The defendant argues the evidence is insufficient to support his conviction for first degree premeditated murder because the State failed to provide “reliable” evidence to corroborate the testimony of his co-defendants or the witnesses who “should have been co-defendants in this case.” The defendant suggests the additional evidence presented by the State failed to tie him to the crimes, including the physical evidence, DNA evidence, video evidence, footprint evidence, and medical evidence, and asserts the cell phone evidence presented “indicated only that a phone, that may have belonged to the defendant was in Shelbyville on the date of the murder.” The State contends sufficient proof exists to corroborate all of the challenged testimony, including the defendant’s confession to Mr. Robinson and the cell phone evidence. When the sufficiency of the evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13 (e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme Court has stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a - 28 - convicted defendant has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Guilt may be found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for sufficiency of the evidence “‘is the same whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial evidence and the inferences to be drawn from this evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence, shall not reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id. At trial, the State relied on a theory of criminal responsibility. “A person is criminally responsible as a party to an offense, if the offense is committed by the person’s own conduct, by the conduct of another for which the person is criminally responsible, or both.” Tenn. Code Ann. § 39-11-401(a). Criminal responsibility for the actions of another arises when the defendant, “[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, . . . solicits, directs, aids, or attempts to aid another person to commit the offense[.]” Tenn. Code Ann. § 39-11-402(2). Criminal responsibility is not a separate crime but “is solely a theory by which the State may prove the defendant’s guilt of the alleged offense . . . based upon the conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). The defendant need not physically participate in the crime in order to be criminally responsible. Phillips v. State, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). To be criminally responsible for the acts of another, the defendant must: “‘in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree v. State, 546 S.W.2d 235,239 (Tenn. Crim. App. 1976)). The defendant must “knowingly, voluntarily and - 29 - with common intent unite with the principal offenders in the commission of the crime.” State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988). The jury convicted the defendant of the first degree premeditated murder of the victim. First degree murder is “a premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). In this context, premeditation is “an act done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). Tennessee Code Annotated section 39-13-202(d) further states: “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill preexist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. Id. “The element of premeditation is a question for the jury which may be established by proof of the circumstances surrounding the killing.” State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006) (citing State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)). The Tennessee Supreme Court has identified certain factors which tend to support a finding of premeditation, including: “the use of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence of procurement of a weapon; preparations before the killing for concealment of the crime, and calmness immediately after the killing.” Bland, 958 S.W.2d at 660 (citing State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992); State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)). Bland does not include an exhaustive list of factors for consideration when finding premeditation. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). A conclusion the killing was premeditated may also be supported by the nature of the killing or evidence establishing a motive. Id. Likewise, lack of provocation by the victim, failure to render aid, and destruction or secretion of evidence may also support an inference of premeditation. State v. Larkin, 443 S.W.3d 751, 815-16 (Tenn. Crim. App. 2013) (internal citations omitted). In attacking the sufficiency of the evidence as to his first degree premeditated murder conviction, the defendant argues that no physical evidence tied him to the murder and that the State failed to corroborate his co-defendants’ testimony. The record, however, does not support this argument. Rather, the evidence shows the defendant was aware Mr. Sales killed Mr. Caruth on September 6, 2015. The defendant attended Mr. Caruth’s funeral where he discussed locating Mr. Sales with Mr. Eddings, Mr. Taylor, and Mr. Askins. On September 13, 2015, the defendant told Ms. Fletcher he had to “take - 30 - care of something” before leaving to meet Mr. Taylor, Mr. Eddings, Mr. Askins, Ms. Denham, and Ms. Eshbaugh at a park in Tullahoma. Upon the defendant’s urging, the group drove to Shelbyville to discuss a comment Mr. Sales made to Mr. Kelso about killing members of the Gangster Disciples and, ultimately, to seek revenge for Mr. Caruth’s murder. The group made several stops in Shelbyville in their effort to locate Mr. Sales, and their general movements were captured on surveillance footage presented at trial. After stopping at a gas station, the group went to Mr. Gross’s apartment, and Mr. Gross led them to Mr. Kelso’s apartment. At Mr. Kelso’s apartment, Mr. Taylor and Mr. Ransom overheard the defendant ask Mr. Kelso, “How you going to let Michael Sales come and say he just killed one and he coming to Tullahoma and kill 2 more.” The defendant also handed Mr. Kelso a gun which Mr. Kelso placed in his hoodie. The group then set out to find Mr. Sales. Mr. Kelso, the victim’s nephew, led the group to the victim’s apartment. The group then parked in the neighboring parking lot at the Southgate Apartments. The defendant told Ms. Eshbaugh and Ms. Denham to back into the parking spots in order to be able to leave easily when the group returned to the cars. As the group approached the victim’s apartment, Mr. Taylor testified the defendant instructed Mr. Kelso to knock on the door to find out if Mr. Sales was in the apartment. Mr. Ransom testified the defendant told Mr. Kelso to kick in the door, which Mr. Kelso did, and the group forced their way inside the apartment. As the victim sat down on the couch, Mr. Kelso and the defendant stood in front of her, and Mr. Kelso twice demanded the location of Mr. Sales. When the victim failed to provide an answer, Mr. Kelso pulled out a gun, looked at the defendant, and shot the victim in the head. Dr. Zimmerman’s autopsy revealed the victim suffered a single gunshot wound to the head, and a bullet and shell casing were found in the victim’s apartment. Agent Burkhart testified both Mr. Kelso and Mr. Taylor stated the defendant threatened Mr. Kelso before Mr. Kelso shot the victim. Two neighbors heard activity coming from the victim’s apartment. Ms. Robertson heard a “pop” at approximately 12:11 or 12:14 a.m., and Mr. Colon heard footsteps running down the stairs before 1:00 a.m. The surveillance footage shows the Rogue, Malibu, and Mercedes traveling towards the victim’s apartment at approximately 12:40 a.m. as they neared the Southgate Apartments. The defendant’s cell phone records placed the defendant less than a mile from the victim’s apartment at approximately 11:38, 11:41, 11:54, and 11:57 p.m. After the murder, Ms. Denham testified the defendant referenced Mr. Caruth’s murder and stated, “Kelso beat that n*****’s ass.” Ms. Denham also stated she felt threatened by the men involved in the murder. Similarly, Ms. Eshbaugh testified the - 31 - defendant threatened her and told her not to tell anyone they were in Shelbyville on September 13, 2015. In addition, the morning after the murder, the defendant asked Ms. Fletcher to search for information about the victim’s murder because “he killed the lady” and told her not to mention the “Shelbyville situation” to anyone. During interviews with Agent Burkhart, Mr. Kelso admitted to killing the victim, and Mr. Taylor, Mr. Eddings, Mr. Ransom, Ms. Denham, and Ms. Eshbaugh all placed the defendant at the crime scene. Looking specifically to the premeditation factors outlined by our Supreme Court, the record establishes the defendant expressed his desire to seek revenge after Mr. Sales killed Mr. Caruth and bragged about the same. The defendant was upset by the comment Mr. Sales made to Mr. Kelso and sought out Mr. Kelso in order to address the situation. In doing so, the defendant and his co-defendants forced their way into the victim’s apartment in the early morning hours of September 14, 2015, armed with a gun. The victim was unarmed and surrounded by the men demanding to know where her son was. When she failed to provide an answer, Mr. Kelso shot her in the head at the defendant’s direction. After killing the victim, the defendant returned home. The next morning, the defendant asked his wife to look on the internet for information about the victim’s murder. See Bland, 958 S.W.2d at 660. The record makes clear the defendant participated in the shooting death of the victim on September 14, 2015, after spending the evening attempting to locate Mr. Sales. As such, the record supports the jury’s finding of premeditation in that the defendant participated in the death of the victim “after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202 (d). The defendant is not entitled to relief. In support of his challenge to the sufficiency of evidence presented at trial, the defendant contends there has been no corroboration implicating him apart from accomplice testimony. We disagree. The defendant is correct that, when the only proof of a crime is the uncorroborated testimony of one or more accomplices, then the evidence is insufficient to sustain a conviction as a matter of law. State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013) (citing State v. Little, 402 S.W.3d 202, 211-12 (Tenn. 2013)). Additionally, accomplices cannot corroborate each other. State v. Boxley, 76 S.W.3d 381, 386 (Tenn. Crim. App. 2001). This Court has defined the term “accomplice” to mean “one who knowingly, voluntarily, and with common intent with the principal unites in the commission of a crime.” State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997). This means that the person must do more than have a guilty knowledge, be morally delinquent, or participate in other offenses with the principal actor. State v. Jackson, 52 S.W.3d 661, 666 (Tenn. Crim. App. 2001). The test for whether a witness qualifies as an accomplice is “whether the alleged accomplice could be indicted for the same offense charged against the defendant.” Allen, 976 S.W.2d at 666. - 32 -  Although a defendant cannot be convicted solely upon the uncorroborated testimony of an accomplice, our Supreme Court has noted that the corroboration required can be slight. The Court stated that in order to properly corroborate accomplice testimony: [t]here must be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant’s identity. The corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commission of the crime charged. It is not necessary that the corroboration extend to every part of the accomplice’s [testimony]. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). Moreover, independent evidence, although slight and entitled to little weight when standing alone, is sufficient to corroborate accomplice testimony. State v. Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). However, evidence that merely casts suspicion on the accused is inadequate to corroborate an accomplice’s testimony. Boxley, 76 S.W.3d at 387. The sufficiency of the corroboration is a determination entrusted to the jury as the trier of fact. Shaw, 37 S.W.3d at 903. At trial, both Mr. Robinson and Ms. Fletcher testified the defendant confessed to participating in the victim’s murder. While in jail, Mr. Robinson stated the defendant told him that he felt bad for making Mr. Kelso kill his aunt, but that Mr. Kelso had to demonstrate his loyalty to the Gangster Disciples. The defendant also told Mr. Robinson he had to threaten Mr. Kelso into killing the victim. Agent Burkhart testified both Mr. Taylor and Mr. Kelso stated the defendant threatened Mr. Kelso prior to the shooting. The Tennessee Supreme Court “has recognized that accomplice testimony and a defendant’s confession may corroborate one another.” State v. Jose Lemanuel Hall, No. M2013-02090-CCA-R3CD, 2014 WL 4384318, at *10 (Tenn. Crim. App. Sept. 5, 2014) (citing Witham v. State, 232 S.W.2d 3 (Tenn. 1950) (“The confessions were admissible in evidence to corroborate the testimony of the accomplice which, in turn and to the same extent, corroborates the confessions.”)). The testimony of Mr. Robinson and Ms. Fletcher, two non-accomplices, sufficiently identified the defendant as a participant in the victim’s murder and corroborated the testimony of the accomplices who testified at trial. - 33 -  In addition to the above-outlined corroborating evidence, Ms. Denham, Ms. Eshbaugh, and Mr. Eddings all testified the defendant traveled from Tullahoma to Shelbyville in Ms. Denham’s Malibu. Agent Vallee tracked the defendant’s cell phone from Tullahoma to Shelbyville and placed the defendant’s cell phone near the victim’s apartment around the time of the murder. Detective Jacobs identified the Malibu driving throughout Shelbyville, including the area of the victim’s apartment, on surveillance footage prior to the murder. The evidence, as outlined more thoroughly above, also corroborated the defendant’s confession to Mr. Robinson and Ms. Fletcher, and the testimony of Mr. Taylor and Mr. Ransom. The defendant is not entitled to relief as to this issue. Any discrepancies in the testimonies do not prohibit a finding of corroboration as it was within the province of the jury to determine what evidence it found credible regarding a finding of sufficient corroboration. Id. Finally, we note, the defendant does not challenge his convictions for aggravated burglary or first degree felony murder, and instead argues the evidence was insufficient to sustain his conviction for conspiracy to commit first degree murder for which he was not charged or convicted. Regardless, based upon the foregoing reasoning, we conclude the evidence is sufficient to sustain the defendant’s convictions for aggravated burglary and first degree felony murder. III. Jury Instructions and Accomplices The defendant asserts the trial court erred in failing to declare Cory Eddings, Marie Eshbaugh, or Lakisha Denham as accomplices or co-defendants as a matter of law. The State insists the trial court “properly left it to the jury” to determine if these witnesses were accomplices based upon the disputed evidence produced at trial regarding their knowledge of the crimes. Further, the State contends any error in instructing the jury was harmless as their testimony was corroborated by the defendant’s confession to Mr. Robinson and the cell phone tracking proof. As previously noted, an accomplice is “one who knowingly, voluntarily, and with common intent with the principal unites in the commission of a crime.” Allen, 976 S.W.2d at 666. The facts of each particular case, as introduced at trial, regulate whether the jury or the trial court determines if a person is an accomplice. State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997) (citing Bethany v. State, 565 S.W.2d 900, 903 (Tenn. Crim. App. 1978)). “When the undisputed evidence clearly establishes the witness is an accomplice as a matter of law, the trial court, not the jury, must decide the issue. Id. (citations omitted). However, when the evidence presented “is unclear, conflicts, or is subject to different inferences, the jury, as the trier of fact, is to decide if the witness was an accomplice.” Id. (citations omitted). Upon a finding that a witness - 34 - was an accomplice, “the jury must decide whether the evidence adduced was sufficient to corroborate the witness’s testimony.” Id. (citations omitted). In the defendant’s case, the trial court allowed the jury to determine the accomplice status of Ms. Denham, Ms. Eshbaugh, and Mr. Eddings. While it is undisputed that neither Ms. Denham, Ms. Eshbaugh, nor Mr. Eddings were in the victim’s apartment during her murder, it is also undisputed that Ms. Denham, Ms. Eshbaugh, and Mr. Eddings traveled with the defendant and his co-defendants prior to, during, and after the murder. However, the evidence detailing their involvement in and degree of knowledge of the murder was unclear, conflicting, and subject to different inferences. Ms. Denham testified she did not know why the defendant wanted to go to Shelbyville when they were at the park in Tullahoma. When she refused to drive him, the defendant drove her car to Shelbyville, retained control of her keys, and refused to take her home. Ms. Denham testified she drove away from the victim’s apartment after the murder but did not know what happened at the time, claiming she did not learn about the murder until she was questioned by police. Mr. Eddings testified he thought the group was looking for Mr. Sales in order to beat him up. When the group parked near the victim’s apartment, he did not know who lived inside or “what the game plan was,” but he did not go inside because he did not want to be involved in the group’s activity. Ms. Eshbaugh testified she thought the group was going to a party in Shelbyville the night of the murder, and Mr. Eddings confirmed Ms. Eshbaugh did not know what the group was planning to do that night. Ms. Eshbaugh noted that Mr. Kelso directed her to the victim’s apartment and that the defendant instructed her to back into a parking space and follow the Mercedes when the group left the victim’s apartment. Though Mr. Eddings denied having a gun, Ms. Eshbaugh testified Mr. Eddings put a black and chrome gun in her glove box, noting her statement indicated Mr. Eddings took the gun into both Mr. Gross and Mr. Kelso’s apartments. Ms. Eshbaugh and Mr. Eddings each testified they learned of the victim’s murder the day after it happened. Agent Burkhart testified Ms. Denham and Ms. Eshbaugh were scared throughout the investigation and acknowledged numerous discrepancies in their statements. He did not consider the Rogue or the Malibu to be getaway cars. Finally, neither Ms. Denham, Ms. Eshbaugh, nor Mr. Eddings were charged in the victim’s murder. Accordingly, the record reflects the trial court properly instructed the jury by allowing the jury to determine whether Ms. Denham, Ms. Eshbaugh, or Mr. Eddings were accomplices to the murder as the evidence describing their involvement in the same was unclear, conflicting, and subject to different inferences. Griffis, 964 S.W.2d at 588. This Court presumes the jury followed the trial court’s instructions. State v. Joshua R. - 35 - Starner, No. M2014-01690-CCA-R3-CD, 2016 WL 1620778, at *21 (Tenn. Crim. App. Apr. 20, 2016) (citing State v. Young, 196 S.W.3d at 111; Shaw, 37 S.W.3d at 904). In addition and based upon our foregoing analysis, in the event the jury determined Ms. Denham, Ms. Eshbaugh, or Mr. Eddings to be an accomplice, the record is replete with evidence corroborating their testimony, including the surveillance footage, the records pinpointing the location of the defendant’s cell phone, the defendant’s testimony regarding who he met in the park, and Ms. Fletcher’s testimony concerning the defendant’s admission of guilt after the murder. Id. The defendant is not entitled to relief. IV. The Defendant’s Threat The defendant argues the trial court erred in allowing the State to question Ms. Fletcher about the defendant’s threatening to kill her and stomp the baby out of her. The defendant argues the statement was prejudicial, non-probative, and not relevant to his trial. The State contends the trial court properly allowed the testimony for impeachment purposes after Ms. Fletcher claimed investigators coerced her into giving a statement implicating the defendant and failing to recall the statement the defendant made to her during her testimony. The State asserts the impeachment was not unfairly prejudicial and noted the defendant opened the door to this line of testimony by questioning Ms. Fletcher about the police presence during her statement. Finally, the State contends the defendant’s threat was relevant to the trial and did not affect the verdict as the trial court provided a limiting instruction to the jury. We agree with the State. It is well-settled that “[t]he right to explore or examine witnesses for bias is a fundamental right.” State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001) (citation omitted). “The propriety, scope, manner and control of the cross-examination of witnesses, however, rests within the discretion of the trial court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (citations omitted). This Court will uphold the trial court’s determination absent an abuse of discretion. Sayles, 49 S.W.3d at 279. Here, the record indicates Ms. Fletcher implicated the defendant in the victim’s murder in a statement given to Agent Burkhart on October 7, 2015. At trial and upon questioning by the defendant, Ms. Fletcher asserted her statement to Agent Burkhart was false and alleged Agent Burkhart coerced her into giving the same, thus calling her credibility into question. As such, the trial court allowed the State to question Ms. Fletcher about the threat the defendant made to her during a phone call she received from him during the interview. During the phone call, the defendant threatened to “kill [Ms. Fletcher] and stomp the baby out of her.” The trial court reasoned the State could use the defendant’s statement to rebut Ms. Fletcher’s allegation that Agent Burkhart coerced her - 36 - into implicating the defendant in the murder in an effort to expose Ms. Fletcher’s bias. Sayles, 49 S.W.3d at 279; Dishman, 915 S.W.2d 458, 463. Ultimately, Ms. Fletcher admitted at trial that the defendant called her during the interview, she put the call on speaker phone, and the defendant threatened to kill her and stomp the baby out of her. After this testimony, the trial court provided a limiting instruction to the jury: Ladies and gentlemen of the jury; the statement that you heard, or the threat that was just conveyed to you by this witness is not to be used to determine this defendant’s guilt or innocence in this matter, okay, as inflammatory as perhaps as it may be or distasteful, you cannot use it to determine his guilt or innocence. It is simply used to determine the truthfulness or the motivation to either tell the truth or fabricate the story on October the 7th, 2015, in a statement that she gave to the TBI agent and other law enforcement personnel. Is anybody here who cannot follow that instruction? Okay. So I’m going to reiterate that the statement cannot be used to determine the defendant’s guilt or innocence in this case. All right? And everybody has indicated they can follow the [c]ourt’s instruction. Upon our review, we conclude Ms. Fletcher’s testimony was relevant to demonstrate any bias she harbored, and the trial court properly allowed this line of testimony for the limited purpose of identifying the same. In doing so, the trial court provided a limiting instruction regarding the testimony which we presume the jury followed. Joshua R. Starner, 2016 WL 1620778, at *21 (citations omitted). Accordingly, the defendant has failed to establish the trial court abused its discretion in permitting the testimony. The defendant is not entitled to relief. V. Motion for a Mistrial Similarly, the defendant argues the trial court erred in denying his motion for a mistrial after the State introduced evidence that the defendant threatened to kill Ms. Fletcher and stomp the baby out of her. The State asserts the trial court did not err in denying the motion as the trial court provided a limiting instruction regarding the statement, it did not affect the verdict, and the discussion about the phone call was had off the record. We agree with the State. In Tennessee, a mistrial “should be granted ‘only in the event of a manifest necessity that requires such action.’” State v. Leath, 461 S.W.3d 73, 100 (quoting State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (appendix) (internal quotations omitted)). The burden of establishing a “manifest necessity” lies with the party seeking the mistrial. Id. (citing State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996)). However, the - 37 - decision to grant a mistrial lies with the discretion of the trial court which will be reviewed for abuse of discretion. Id. The defendant argues a mistrial was warranted because the jury heard testimony regarding a statement he made to Ms. Fletcher wherein he threatened to kill her and stomp the baby out of her. The record, however, does not support this argument as it indicates the State only introduced this evidence in an effort to rebut Ms. Fletcher’s allegation that she was coerced into giving a statement by law enforcement. Further, our review of the record indicates the trial court did not allow the State to play the recording of the defendant threatening Ms. Fletcher and provided a limiting instruction regarding the statement, as noted above. For these reasons, nothing in the record suggests a manifest necessity exists in this instance to warrant a mistrial as the defendant has failed to provide specifics as to how the statement prejudiced his trial. The overwhelming amount of evidence of the defendant’s guilt also weighs against a finding of manifest necessity. Accordingly, the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. The defendant is not entitled to relief. Conclusion Based upon the foregoing authorities and reasoning, the judgments of the trial court are affirmed. However, we remand the case to the trial court for the entry of a completed judgment form as to count 3. ____________________________________ J. ROSS DYER, JUDGE - 38 - 

992 F.2d 319 Colonv.McClellan NO. 92-2440 United States Court of Appeals,Second Circuit. Mar 02, 1993 1 Appeal From: S.D.N.Y. 2 AFFIRMED.

Filed 1/11/18 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA MEDICAL ACQUISITION COMPANY, D072509 INC., (San Diego County Super. Ct. Nos. 37- Petitioner, 2014-00009108-CU-BC-NC; 37-2014- 00022523-CU-MC-NC) v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; TRI-CITY HEALTHCARE DISTRICT, Real Party in Interest. Original proceeding on a writ of mandate. Relief denied. California Business Law Group, Duane S. Horning, Tracy Schimelfenig; David A. Kay and Tara Lusher for Petitioner. Horvitz & Levy, Barry R. Levy, Mitchell C. Tilner; Gordon & Rees, Charles V. Berwanger and James E. Hawley for Real Party in Interest. No appearance for Respondent.  This eminent domain case presents a novel issue regarding a defendant's postjudgment withdrawal of an increased deposit made by the condemning agency. Below, the condemning agency, Tri-City Healthcare District (Tri-City), made a pretrial deposit of $4.7 million and sought to take immediate possession of the subject property, a partially completed medical building. Medical Acquisition Company, Inc. (MAC) stipulated to Tri-City's possession of the building and withdrew the $4.7 million deposited under the "quick-take" provision of the California Constitution (see Cal. Const., art. I, § 19, subd. (a)) and Code of Civil Procedure1 section 1255.010. The eminent domain case was consolidated with another case involving a lease between the parties and ultimately proceeded to trial where a jury determined just compensation for the taking was nearly $17 million. The court subsequently ordered Tri- City to increase its deposit by about $12.2 million. Among other procedural maneuvers, Tri-City filed a notice of abandonment of the eminent domain proceeding. However, the superior court granted MAC's motion to set aside the abandonment. Tri-City has appealed that order in addition to the judgment.2 Tri-City ultimately deposited the additional funds, and MAC applied for prompt release of those funds without any bond or undertaking. Tri-City opposed the application. The court allowed MAC to withdraw an additional $4.4 million, but required 1 Statutory references are to the Code of Civil Procedure unless otherwise specified. 2 Tri-City's related appeals are pending before this court, but are not part of this original proceeding. 2 a bond before MAC could withdraw the remaining amount. MAC then filed the instant petition for relief. MAC argues that after judgment, withdrawing a deposit made in an eminent domain action is governed solely by section 1268.140. Under that section, MAC contends the superior court could not impose any undertaking regarding the prompt release of a deposit to a single claimant after judgment has been entered. In addition, MAC asserts the bonding requirement here frustrates the purpose of the quick-take provision of the California Constitution, and thus, should be declared unconstitutional. Tri-City counters that the superior court had to impose an undertaking under section 1255.250. In the alternative, Tri-City maintains that the court had discretion to impose an undertaking under section 1268.140 and did not abuse its discretion by ordering the undertaking here. Finally, Tri-City insists MAC's constitutional challenge is without merit. In this matter of first impression, we conclude that MAC is correct that any postjudgment withdrawal of a deposit in an eminent domain case is governed by section 1268.140. However, that provision allows a court, in its discretion, to impose an undertaking upon objection by any party to the proceeding. (§ 1268.140, subd. (c).) Here, the court exercised its discretion by allowing MAC to withdraw a portion of the deposit without any bond or undertaking, but requiring an undertaking if MAC wished to withdraw the remaining amount. The court did so because Tri-City has a claim to those fees if its appeal on the abandonment issue is successful. On the record before us, MAC has not shown how the court abused its discretion under section 1268.140. 3  Additionally, we determine that MAC's contention that the bonding requirement is unconstitutional is without merit. As such, we deny the requested relief. FACTUAL AND PROCEDURAL BACKGROUND The case is well known to us as it has spawned two pending appeals and three previous writ petitions prior to the instant one. We thus present a more robust factual and procedural background than we might typically provide in considering a writ of mandate. We do so because we think the additional facts are important to add context to the issue we consider here. In December 2010, Tri-City and MAC executed two leases: (1) a ground lease, under which Tri-City leased open land within its Oceanside campus to MAC, and MAC agreed to construct, at its own expense, a 60,000-square foot, three-story medical office building on the land; and (2) a building lease, under which MAC agreed to sublease 25,000 square feet of the completed medical office building to Tri-City. Construction of the medical office building began in October 2011. In July 2012, a dispute arose. Tri-City contended that MAC had defaulted under the ground lease. Unable to resolve the dispute, MAC filed a complaint against Tri-City for, inter alia, breach of the ground lease. Tri-City subsequently filed a complaint against MAC alleging unlawful conflicts of interest and breach of lease, among other claims. Tri-City later amended its complaint to include a cause of action for eminent domain, seeking to condemn MAC's rights under the ground lease. On August 11, 2014, Tri-City filed a motion to take immediate possession of the ground lease under section 1255.410, which allows a condemning agency to take 4 possession of the condemned property before trial by depositing the probable amount of compensation as determined by appraisal. Tri-City deposited $4.7 million, the probable amount of compensation as determined by an appraiser, with the state treasurer. On August 28, 2014, MAC applied for an order to withdraw the $4.7 million deposit. On September 2, 2014, pursuant to the parties' stipulation, the court granted Tri- City's motion to take immediate possession. Ten days later, Tri-City took possession of the partially completed medical office building. The court also granted MAC's application to withdraw the deposit and signed an order directing the state treasurer to disburse the deposited funds plus interest to MAC. MAC received the deposited funds on October 23, 2014 and spent the money expanding its business and hiring additional employees. Tri-City maintains, and MAC does not dispute, that MAC cannot repay the $4.7 million if subsequently required to do so. The consolidated actions proceeded to trial. The jury returned a verdict finding that the fair market value of the medical office building was $16.83 million. The jury also found that Tri-City breached the implied covenant of good faith and fair dealing in the ground lease or building lease. The jury awarded MAC $2,933,700 in damages for Tri-City's breach of the implied covenant of good faith and fair dealing. The jury found no unlawful conflicts of interest on behalf of MAC. 5  On July 18, 2016, the court entered judgment reflecting the jury's verdict.3 About six weeks later, MAC filed a motion under section 1255.030 for an order requiring Tri- City to increase its deposit of probable compensation by about $12.2 million, which MAC calculated to be "the amount of its condemnation judgment plus prejudgment interest, less the $4.7 million deposit previously withdrawn by MAC." The superior court granted MAC's motion and signed an order requiring Tri-City to deposit $12,212,351.06 plus interest of $180.96 per day for each day after September 23, 2016 (Deposit Order). Tri-City filed a notice of appeal from the judgment, which it amended to include an appeal of the Deposit Order. Tri-City's appeal is pending in this court under case number D071311. In connection with its appeal of the Deposit Order, Tri-City filed a petition for a writ of supersedeas to stay enforcement of that order. We summarily denied the request for relief. Tri-City then filed a notice of abandonment of the eminent domain proceeding under section 1268.510, subdivision (a). MAC filed a motion to set aside Tri-City's abandonment of the eminent domain proceeding under section 1268.510, subdivision (b). After entertaining oral argument, the superior court granted MAC's motion to set aside the abandonment. Tri-City filed a notice of appeal from that order, which has been 3 The court subsequently amended the judgment to include certain fees and costs that were awarded after entry of the original judgment. 6 consolidated with Tri-City's previous appeals. Tri-City also filed a petition for writ of mandate challenging the order as well. We summarily denied that petition. When Tri-City did not pay the additional deposit as ordered by the superior court, MAC applied ex parte for an order and writ of execution directing the sheriff to enforce the order and for initiation of contempt proceedings. The superior court, unsure about its jurisdiction to enforce the order, suggested that MAC file a petition for writ of mandate with this court to seek advice as to the jurisdictional issue. MAC did so, but we summarily denied the petition. MAC then filed in this court a motion to dismiss Tri-City's appeal from the judgment on the ground Tri-City had failed to comply with the Deposit Order. We ordered Tri-City to comply with the Deposit Order within 60 days or we would dismiss its appeal. Tri-City ultimately complied with the Deposit Order by depositing $12,260,667.38 with the state treasurer. After we received notification of the deposit, we denied MAC's motion to dismiss Tri-City's appeal. MAC then filed an application for an order allowing it to withdraw the $12.2 million deposit without a bond or undertaking. Tri-City responded that under section 1255.250, the court had no power to allow MAC to withdraw the deposit unless MAC posted an undertaking to protect Tri-City and the public in case Tri-City prevails on appeal and MAC must return the withdrawn sums. Alternatively, Tri-City argued that under section 1268.140, the court should exercise its discretion to require an undertaking, 7 given MAC's professed inability to repay even the $4.7 million deposit it withdrew before trial. After hearing argument, the superior court issued an order granting in part and denying in part MAC's application. The court ordered the state treasurer to disburse $4.4 million of the deposit without a bond or other condition, and to disburse the "the balance upon posting a bond in the amount of the balance withdrawn." MAC subsequently filed the instant petition for writ of mandate, asking this court to order "the immediate release of the remaining 'probable compensation' deposit, without any bonding or undertaking requirement." We requested Tri-City to file an informal response to the petition. Tri-City complied with our request, and in response, MAC filed a reply. We then issued an order to show cause why the relief sought in the petition should not be granted. Tri-City filed a return by answer to petition for writ of mandate. MAC filed a reply. DISCUSSION "When the government exercises its power of eminent domain, and condemns or damages private property for public use, it must pay 'just compensation' to the owner. (Cal. Const., art I, § 19.)" (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacinto).) The landowner is to be compensated for the value of its property. (Ibid.) The landowner is entitled to a jury trial to determine the "just compensation" to which it is entitled. (See Cal. Const., art I, § 19; Escondido Union 8 School Dist. v. Casa Suenos De Oro, Inc. (2005) 129 Cal.App.4th 944, 958 (Escondido).)4 In a standard eminent domain proceeding, the government does not take possession and title until after judgment and full payment has been made; therefore, the " 'taking' " and the " 'compensation' " are contemporaneous. (Escondido, supra, 129 Cal.App.4th at p. 960.)5 However, California eminent domain law has developed to allow a condemner to take early possession of the property before the litigation is concluded "upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation." (Cal. Const., art I, § 19, subd. (a); see § 1255.410; Mt. San Jacinto, supra, 40 Cal.4th at p. 653.) The immediate possession procedure also is referred to as a " 'quick-take' " eminent domain action. (Ibid.; Escondido, supra, at p. 960.) Under the quick-take procedure, a condemning agency, pursuant to section 1255.010, may accomplish an early taking of the subject property by making a deposit of the "probable amount of compensation" at any time prior to entry of judgment. The amount of the deposit must be based on an appraisal by an expert qualified to express an 4 Other issues in an eminent domain case may be tried in addition to the just compensation question. For example, a landowner can challenge the government's right to condemn the subject property. (§§ 1250.360, 1250.370.) As there is no challenge to Tri-City's right to exercise the power of eminent domain in this case, we do not discuss this subject further. 5 Title to the subject property vests in the condemning party on the date of recordation of a final order of condemnation in the county recorder's office. (§ 1268.030.) 9 opinion as to the value of the property and must be supported by a written statement of, or summary of the basis for, the appraisal. (§ 1255.010, subd. (b).) After a deposit of probable compensation has been made, the court may order that possession of the property be transferred to the condemner, after considering any opposition from the owner of the property and making certain findings regarding the public entity's legal right to take the property and the relative hardships that would befall the parties were title not transferred until after legal proceedings are completed. (§ 1255.410.) Once the deposit is made, the property owner can apply to withdraw "all or any portion of the amount deposited," and the court "shall order the amount requested in the application, or such portion of that amount as the applicant is entitled to receive, to be paid to the applicant." (§§ 1255.210, 1255.220.) Additional "statutory procedural safeguards" apply to the determination of probable compensation in quick-take proceedings. (Mt. San Jacinto, supra, 40 Cal.4th at p. 660.) For example, at any time after a deposit has been made, the trial court shall, upon motion of any party with an interest in the property, "determine or redetermine whether the amount deposited is the probable amount of compensation that will be awarded in the proceeding." (§ 1255.030, subd. (a).) In ruling on the motion, the "court may order the plaintiff to increase the deposit or may deny the plaintiff possession of the property until the amount deposited has been increased to the amount specified in the order"; or if possession has already transferred "order the amount deposited to be increased to the amount determined to be the probable amount of compensation," and if 10 the plaintiff does not comply, dismiss the action and award litigation costs and damages to the defendant. (§ 1255.030, subds. (b), (c).) Also, the Legislature saw fit to include certain protections for the condemning agency or other entities claiming any interest in the deposit. (See §§ 1255.240, 1255.250.) These statutory protections are at the heart of the dispute here, and we therefore discuss them in detail below. Here, Tri-City, based on an appraisal of the partially constructed medical building, deposited $4.7 million with the state treasurer under section 1255.010. After Tri-City sought and was awarded early possession of the property, essentially extinguishing MAC's rights under the ground lease, MAC withdrew the $4.7 million Tri-City deposited. Some three years later, the matter finally proceeded to trial. At the end of that trial, however, the jury determined the value of the condemned medical building was $16.83 million. MAC then moved under section 1255.030 for an order requiring Tri-City to deposit the difference between the jury's determination of just compensation and the original deposit. After some attempts to avoid making the additional deposit, Tri-City eventually deposited the required funds with the state treasurer. MAC moved for an order to withdraw the additional amount, and Tri-City objected, claiming that MAC should be required to post a bond or an undertaking before withdrawing any additional funds. The court allowed MAC to withdraw $4.4 million of the additional deposit without a bond or other condition, but required MAC to post a bond or other undertaking to withdraw the remaining amount (about $7.8 million). 11  MAC argues the court erred in requiring it to post a bond or undertaking to withdraw the remaining funds from the deposit. Tri-City counters that the superior court erred by allowing MAC to withdraw any of the additional funds absent an undertaking. The foundation of the parties' dispute rests on the application of different eminent domain statutes. Tri-City asserts that section 1255.250 governs the circumstances here, and the court had no discretion but to order an undertaking under that statute. MAC insists that section 1255.250 only applies to withdrawals before the entry of judgment and that postjudgment withdrawals, such as the one at issue here, are governed by section 1268.140. MAC has the better argument. Section 1255.250, subdivision (a), provides in relevant part: "If the amount originally deposited is increased pursuant to Section 1255.030 and the total amount sought to be withdrawn exceeds the amount of the original deposit, the applicant, or each applicant if there are two or more, shall file an undertaking. The undertaking shall be in favor of the plaintiff and shall secure repayment of any amount withdrawn that exceeds the amount to which the applicant is entitled as finally determined in the eminent domain proceeding, together with interest as provided in Section 1255.280. If the undertaking is executed by an admitted surety insurer, the undertaking shall be in the amount by which the total amount to be withdrawn exceeds the amount originally deposited." Section 1255.250 appears in the Eminent Domain Law, Chapter 6 "Deposit and Withdrawal of Probable Compensation; Possession Prior to Judgment," article 2 "Withdrawal of Deposit." Article 2 begins with section 1255.210, which provides in relevant part: "Prior to entry of judgment, any defendant may apply to the court for the withdrawal of all or any portion of the amount deposited." (§ 1255.210.) The Law Revision Commission comment to section 1255.210 states: "Section 1255.210 is derived 12 from subdivisions (a) and (c) of former Section 1243.7. After entry of judgment, deposits made under this chapter may be withdrawn pursuant to Section 1268.140. See Section 1268.010 (upon entry of judgment deposit made pursuant to this chapter deemed to be deposit made pursuant to section 1268.110.)" (Cal. Law Revision Com. com., 19 West's Ann. Code Civ. Proc., (2007 ed.) foll. § 1255.210, p. 568.) Section 1255.250 is derived from former section 1243.7, subdivision (b). (Cal. Law Revision Com. com., supra, foll. § 1255.250, p. 574.) The location of section 1255.250 within the eminent domain statutory scheme indicates the Legislature's intent that its provisions apply before entry of judgment. The Law Revision Commission comment to section 1255.210 supports the contention that after judgment, withdrawals are governed by section 1268.140. This court reached the same conclusion over 30 years ago. (See San Diego Gas & Electric Co. v. Moreland Investment Co. (1986) 186 Cal.App.3d 1151, 1156 (San Diego) ["Once a judgment is entered in a condemnation case, there is only one statutory basis under which monies then on deposit or thereafter deposited may be withdrawn, specifically, section 1268.140 of the Code of Civil Procedure. The second sentence of the first paragraph of the Law Revision Commission comments to that section reads: 'Section 1268.140 is the only provision for withdrawal of a deposit after entry of judgment regardless of whether the deposit was made before or after judgment.' "].) Tri-City factually distinguishes San Diego, supra, 186 Cal.App.3d 1151, arguing that we should not follow that case because it did not address the issues presented here, namely whether sections 1255.030 and 1255.250 govern a postjudgment withdrawal of a deposit in a quick-take eminent domain proceeding. Although we concede that the issues 13 presented in San Diego did not require this court to consider sections 1255.030 and 1255.250, we are still left with our unequivocal conclusion that section 1268.140 is the only code section that governs withdrawal of funds in an eminent domain case after judgment, which is simply based on a plain reading of the statute. (See §1268.140, subd. (a) ["After entry of judgment, . . . ."].) Tri-City offers no persuasive argument why we should interpret the words "after entry of judgment" as merely a suggestion or one of multiple possible statutes that should govern a postjudgment withdrawal of a deposit. In addition, we disagree with Tri-City that Whittier Redevelopment Agency v. Oceanic Arts (1995) 33 Cal.App.4th 1052 (Oceanic Arts) warrants a different conclusion. That case did not involve a request to withdraw funds after judgment, or any issue of withdrawal of deposited funds at all. Rather, in Oceanic Arts, the appellate court affirmed the trial court's granting of the defendant owners' motion to require the plaintiff agency to increase its deposit following an order awarding the agency prejudgment possession and a judgment awarding defendants more than the amount deposited by the plaintiff as probable compensation. (Id. at p. 1054.) The court held that "when a plaintiff in an eminent domain action has acquired prejudgment possession of the property, the amount of the judgment exceeds the amount plaintiff has deposited as probable compensation and an appeal of the judgment is pending, the trial court has authority under section 1255.030 to order plaintiff to increase its deposit to an amount equal to the amount of the judgment." (Whittier, supra, at p. 1060.) Although the court alluded to various eminent domain statutes that offer a plaintiff protection in the eminent domain 14 context, it did not state that section 1255.250 would apply to a postjudgment withdrawal. And Tri-City offers no cogent argument why Oceanic Arts is applicable here. We therefore follow San Diego, supra, 186 Cal.App.3d 1151 and agree there is a specific statute that governs withdrawal of deposits after entry of judgment–section 1268.140. That statute provides: "(a) After entry of judgment, any defendant who has an interest in the property for which a deposit has been made may apply for and obtain a court order that he be paid from the deposit the amount to which he is entitled upon his filing either of the following: [¶] (1) A satisfaction of the judgment. [¶] (2) A receipt for the money which shall constitute a waiver by operation of law of all claims and defenses except a claim for greater compensation. [¶] . . . [¶] (c) Upon objection to the withdrawal made by any party to the proceeding, the court, in its discretion, may require the applicant to file an undertaking in the same manner and upon the conditions prescribed in Section 1255.240 for withdrawal of a deposit prior to entry of judgment. [¶] (d) If the judgment is reversed, vacated, or set aside, a defendant may withdraw a deposit only pursuant to Article 2 (commencing with Section 1255.210) of Chapter 6." (§ 1268.140.) Section 1268.140 addresses the issue here directly and allows the court discretion to require an undertaking. The statute would be rendered meaningless were we to determine that section 1255.250 applies after judgment to mandate an undertaking. We thus reject Tri-City's claim that section 1255.250 requires the court to impose an undertaking before allowing MAC, after judgment, to withdraw money to which it is entitled from the deposit. Nevertheless, despite arguing that section 1268.140 is the only statute that applies to a postjudgment withdrawal, MAC asserts that no circumstances existed here that would have allowed the court to exercise its discretion under the statute. MAC 15 emphasizes that, in deciding whether an undertaking is warranted, a superior court's discretion is constrained by the dictates of section 1255.240. Further, MAC insists that section limits a court's discretion to order an undertaking only if more than one defendant claims a right to the deposited funds. In other words, section 1255.240 does not apply to a situation like the one here, where the condemning agency attempted to abandon the eminent domain proceeding, and is appealing the superior court's order setting aside the abandonment. Section 1255.240, referenced in subdivision (c) of section 1268.140, provides, in part: "If the court determines that an applicant is entitled to withdraw any portion of a deposit that another party claims or to which another person may be entitled, the court may require the applicant, before withdrawing such a portion, to file an undertaking." (§ 1255.240, subd. (a).) MAC argues that the terms "another party" and "another person" could only refer to another "claimant." MAC further defines an "adverse claimant" as a person claiming title to the property against the owner. MAC asserts a condemning agency does not have any adverse claim to the subject property, but "simply a monetary interest in recovering any deposit withdrawn by the owner." Therefore, MAC insists that the condemning agency could never be a claimant. We do not read section 1255.240 so narrowly. That statute gives a court discretion to order an undertaking when an applicant is entitled to withdraw any portion of a deposit that another party or person may be entitled to. The statute does not focus on entities with an ownership interest in the subject property, but entities with a claim to the deposit. The statute does not use other limiting 16 words, like "additional applicant," "defendant," or "landowner" to further define a party or person that may have an interest in a portion of the deposit. And although one who has an interest in the property may also have a claim to at least a portion of the deposit, there is nothing in the statute that requires a "party" or a "person" to have such a property interest. Instead, the statute allows a court to order an undertaking if another entity has a claim that it is entitled to at least a portion of the deposit. It does not tether that claim to an interest in the subject property or otherwise condition that claim. Here, by way of abandonment and appeal of the order setting aside the abandonment, Tri-City contends it has an interest in at least a portion of the deposit. We agree. MAC also maintains that a condemning agency could never be a "party" or "person" under section 1255.240 because such an interpretation would render the statute nonsensical. To this end, MAC points out that section 1255.240, subdivision (a) limits the amount of the undertaking to "the portion claimed by the adverse claimant or appearing to belong to another person. If executed by two or more sureties, the amount shall not exceed double such portion." (§ 1255.240, subd. (a).) MAC thus argues that if a condemning agency could be a "claimant" under the statute, bonding of the entire amount would always be allowed, nullifying the section entirely. Alternatively stated, MAC is concerned that if a condemning agency appeals any eminent domain judgment, the defendant could be required, under section 1255.240, to offer an undertaking of the entire amount of the deposit. We do not share MAC's concern. MAC's argument assumes that a condemning agency appealing from an adverse eminent domain judgment will always argue that it is entitled to the entire amount of the 17 deposit. But for this to be true, the condemning agency would have to argue that it did not have to pay anything for the subject property. We struggle to contemplate a typical situation where a government agency would bring an eminent domain action against a private land owner, proceed to jury trial, have the jury award a value of just compensation, and then the agency argue nothing should have been paid. We do not foresee such tactics leading to the abuse of section 1255.240. Indeed, perhaps the only type of appeal where there would even be the potential for a bond of the entire amount of the deposit is when the condemning agency seeks to abandon the eminent domain action and return the property to the defendant. In that instance, it is possible that a superior court could require a bond equal to the entire deposit. Yet, this possibility does not cause us consternation because section 1255.240 is discretionary. And a superior court's use of discretion cannot be absurd, arbitrary, or beyond the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Section 1255.240 allows the superior court to require the undertaking and set the amount (with a ceiling placed on the amount). The instant matter is an excellent example of the court cautiously exercising that discretion with the goal of fairness to the parties. In exercising its discretion under section 1255.240 to require an undertaking before MAC could withdraw the remainder of the deposit after permitting MAC to withdraw an additional $4.4 million without any undertaking, the court explained: "All right. So as is with virtually everything in this case, there's never a clear simple path, and I find myself wading through the statutes and the decisions from prior courts that are close to, nearby, kind of speak towards what we're doing in trying to fashion the appropriate remedy. [¶] I'm going to quote one of my mentors, 18 which I probably have done in this case before because it's been appropriate, and that was Justice McIntyre who told me when I was appointed to the bench, 'When you look at everything and there's no clear direction and you truly have one of those cases where there's nothing exactly on point and you're having to kind of forage for yourself,' he said, 'Try and figure out what's fair and reasonable, and then tell us why you did it. As long as you were fair and reasonable and there's not something that goes the other way, we'll probably uphold you.' [¶] So I've looked at this, and I do think this Court is in a unique position, having lived through this case with you all for three plus years on countless motions, I think 900 entries in the Register of Actions. I don't think there's been an easier decision that's been before the Court. As I have said repeatedly, the level of lawyering in this case was extraordinary. As with anything else when you get to a jury, somebody is going to win and somebody is going to lose. [¶] So I have considered all of that. I have considered the prior fee order that I've made. I've considered the bargains that were struck by the parties throughout the prelitigation and litigation and expectancies of the parties. I've considered going forward what is in play and I've considered the Tri-City's financial situation as argued in prior motions, I've considered the plaintiff's - - . . . [¶] interjection by counsel] [¶] -- positions, financial condition, its submission of its financials, both in the underlying case as well as in prior arguments, and I have decided to release without bond $4.4 million of the money deposited. The remainder will require a bond. [¶] The Court's thinking is in part this: That is -- that the defense/respondent/cross-complainant maintains in its possession the property and the ability to use that property if it so seems fit, which has been encouraged multiple times by the Court. I've considered the cost and burden upon the plaintiff/petitioner as referenced in earlier motions, something along those lines. [¶] It therefore seems reasonable to the Court that this number, tied with the other number, puts the petitioner in the spot after payment of fees and everything else in at least as good a position as it -- it was at earlier in the case had this litigation not gone forward. It preserves the ability for the petitioner to recover the funds, the remainder. They're in a place where I believe they can't be touched, though I -- because of the allegations of financial stress on the respondent, I am at least a little bit concerned about whether that money is attachable by somebody else. [¶] But on the other hand, if the Court of Appeal goes a different direction -- I don't see that the petitioner's economics such that they wouldn't have the money to at least return everything except what they paid in attorney's fees, perhaps, if the Court of 19  Appeal were to order that, but it also preserves if the Court of Appeal goes a different direction, the public entity's ability to recover a substantial portion of those funds. So that will be the order of the Court. If you want, you can take the rest, but it would be subject to a bond. But as to the 4.4, you're entitled to remove that immediately, which puts you at 9.1 total. [¶] My recollection is it was about 2.15 in prior attorney's fees and costs that the petitioner incurred. If I round number it, it may be 250 for the appeal process and getting back to me, and then another $2.2 million, the 4.7 earlier put you back in that situation. [¶] That's how I got there. I'm not looking for further argument on it. I know you'd like more; I know you'd like less. You'd like a bigger bond; you'd like a smaller bond. [¶] I will say if you become -- not to invite you back, but if you become aware that there is a substantial threat to those funds, something happening to them that I'm unaware of, I would encourage you to come back and see me on that, but as long as everybody's confident that those funds will remain, they're able to satisfy the plaintiff should you succeed or return to the defense if you succeed, I think this is a reasonable result. [¶] It is not in any way, shape, or form a cut the baby in half or anything like that. I spent a lot of time with this trying to find that fair and reasonable position." In addition, our conclusion that sections 1268.140 and 1255.240 allow the court to order an undertaking here is further buttressed by section 1268.160. Subdivision (a) of that section provides: "Any amount withdrawn by a party pursuant to this article in excess of the amount to which he is entitled as finally determined in the eminent domain proceeding shall be paid to the parties entitled thereto. The court shall enter judgment accordingly." If the defendant fails to pay the judgment within 30 days, "the court may, on motion, enter judgment against the sureties, if any, for the amount of such judgment." (§ 1268.160, subd. (c).) Simply put, this code section allows a plaintiff to recoup the excess withdrawal not only from the defendant but any sureties as well. Accordingly, it appears the Legislature contemplated the possibility that a defendant would be required to 20 offer an undertaking before withdrawing some of the deposit. We have no indication that the Legislature confined those possibilities to prejudgment withdrawals under section 1255.250 or instances where more than one landowner and/or defendant exists. Thus, we conclude the Legislature saw fit to grant the superior court the discretion to require an undertaking on a postjudgment withdrawal to protect a plaintiff who may be entitled to some of the deposit. In summary, we conclude that section 1268.140 permits a court to order an undertaking before a defendant withdraws funds from a deposit after judgment. Per section 1255.240, a court may order an undertaking even when it is the condemning agency who is claiming an interest in at least a portion of the deposit. This seems to be especially appropriate in an instance like here, where there is an appeal regarding the condemning agency's attempt to abandon the eminent domain proceeding, the defendant already has withdrawn significant funds from the deposit (here, $9.1 million) and there is a question regarding the defendant's financial ability to return the funds to the condemning agency if later required to do so. MAC's final argument is that section 1268.140, as applied to it here, is unconstitutional. Specifically, MAC contends the undertaking requirement effectively prevents it from withdrawing the deposit as permitted under the California Constitution. As such, MAC insists we should find section 1268.140 unconstitutional. However, MAC 21 is not making a facial challenge to sections 1255.240 or 1268.140.6 Instead, he is making an as applied challenge to those statutes. "An as applied challenge may seek . . . relief from a specific application of a facially valid statute or ordinance to an individual . . . who [is] under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied. . . ." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe).) An as applied challenge "contemplates analysis of the facts of a particular case . . . to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to who it was applied of a protected right." (Ibid.) Article I, section 19 of the California Constitution authorizes the Legislature to enact statutory procedures to govern a quick-take eminent domain action, wherein a condemning agency may deposit the probable amount of compensation and take possession of the property before judgment and the condemnee may obtain the prompt release of the deposit. Per this authority, the Legislature enacted chapter 6 of the Eminent Domain Law (§§ 1255.010-1255.480), a comprehensive statutory scheme governing the quick-take process, including the deposit of the probable amount of 6 A litigant who seeks to prevail on a facial challenge to the constitutionality of a statute must establish, at a minimum, that the statute is unconstitutional " 'in the generality or great majority of cases.' " (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126-1127; italics omitted.) MAC makes no such arguments in its petition. Instead, it focuses on the application of sections 1268.140 and 1255.240 under the specific circumstances of the instant matter. 22 compensation, prejudgment possession by the plaintiff, and withdrawal of deposits by the defendant. (Cf. City of Needles v. Griswold (1992) 6 Cal.App.4th 1881, 1892.) Within the quick-take statutory scheme, the Legislature also was concerned about the potential that the condemnee would be unable to repay the amount, or a portion of the amount, it withdrew from the deposit if subsequently required to do so. Thus, it enacted sections 1255.240 and 1255.250. The former statute gives a court discretion to order an undertaking when two or more parties or persons claim entitlement to at least a portion of the deposit. (See § 1255.240, subd. (a).) The later statute requires a court to order an undertaking where an applicant or applicants seek to withdraw funds from the deposit prejudgment and those funds were increased, under section 1255.030, beyond the amount originally deposited. (§ 1255.250, subd. (a).) Both of those statutes reflect the Legislature's attempt to balance the various parties' interests and achieve fairness in a quick-take eminent domain action. In short, to effectuate subdivision (a) of section 19 of article I of the California Constitution, the statutes provide a mechanism that allows the plaintiff to take prejudgment possession (§ 1255.410) and the defendant to receive the potential just compensation at the time the plaintiff takes possession (§ 1255.210). The statutes also allow a party to ask the court to increase the amount of the deposit if justified (§ 1255.030), but protect against the possibilities that (1) a defendant will not be able to repay what it withdraws from the deposit under specific, limited circumstances; and (2) another entity may have a claim to the deposit (§§ 1255.240, 1255.250). 23  The basis of MAC's argument that the statutes are unconstitutional as applied to it is that requiring an undertaking effectively denies it the right to obtain prompt release of the funds of the deposit because bonding companies all require 100 percent collateral to issue a bond. Thus, under MAC's argument, it must offer the functional equivalent of the deposit before it can withdraw the deposit, effectively negating any value of obtaining the deposit. In other words, there is no prompt payment as required under the California Constitution. Because MAC raises an as applied constitutional challenge to section 1268.140, it is important that we briefly revisit the way that statute has been applied here. Below, the superior court ordered that, of the approximately $12.2 million in the deposit, MAC could withdraw $4.4 million without any undertaking. To withdraw the remaining amount of the deposit (about $7.8 million), MAC must offer an undertaking. MAC contends, under the application of section 1268.140 to it in this matter, the purpose of the prompt payment provision of the California Constitution is frustrated. However, on the record before us, MAC has not provided evidence to support its position. For example, MAC claims all bonding companies will require 100 percent collateral before they issue a bond to MAC. Nevertheless, MAC only points to e-mails from two bonding companies indicating that one company "requires full collateral[] . . . in the form of a cashier's check or an Irrevocable Letter of Credit" and another company requires "100% collateral of the $12,100,000 penalty." Based on these two e-mails (one that is simply relaying an alleged communication with a bonding company), MAC extrapolates that all bonding companies in the instant matter would require 100 percent 24 collateral before issuing a bond. There is no indication in the record that the two bonding companies MAC consulted speak for the entire industry. There is no evidence indicating that the typical practice for all bonding companies would be to require 100 percent collateral before issuing a bond. In addition, although the record is somewhat thin regarding the communications between MAC and the bonding companies, it appears the circumstances under which MAC asked for a bond are different from what is at issue here. Based on our readings of the relevant declarations and e-mails, it appears MAC approached the two bonding companies and asked them to anticipate the court requiring an undertaking for the entire $12.2 million deposit. The bonding companies responded accordingly. There is no indication in the record what the bonding companies would require from MAC to issue a bond for the additional $7.8 million, especially considering that MAC could obtain an additional $4.4 million without a bond. Finally, there was evidence in the record indicating that there was a possibility a company would be willing to provide a bond without an undertaking if it was satisfied with the requesting company's audited financials. In brief, on the record before us, MAC has not shown us that the application of section 1268.140 to it in this case deprived it of a protected right. (See Tobe, supra, 9 Cal.4th at p. 1084.) 25  DISPOSITION The request for relief is denied. Because of the novel issues involved in this matter, each side is to bear its own costs. HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J. 26 

101 A.2d 339 (1953) GLENN et ux. v. TIDE WATER ASSOCIATED OIL CO. Court of Chancery of Delaware, New Castle. December 9, 1953. Henry A. Wise, Jr., of Wise & Suddard, Wilmington, for plaintiffs. H. James Conaway, Jr., of Hering, Morris, James & Hitchens, Wilmington, for defendant. *340 BRAMHALL, Vice Chancellor. Plaintiffs are husband and wife and are the owners and lessors of a piece of land at 1814 Delaware Avenue, in the City of Wilmington, upon which is located a gasoline service station. On May 1, 1939, plaintiffs entered into a written agreement with defendant, under the terms of which plaintiffs leased to defendant the property in question for a term of three years at a rental of one cent per gallon for each gallon of defendant's gasoline sold on the premises during the term with a minimum rental of $60 per month for each full year of the term of the lease. Defendant was given the option to extend the term of the lease for four additional periods of one year each upon the same terms and conditions. Plaintiffs further gave to defendant an option to purchase said property during the term of the lease or any extension thereof for the price of $16,000. Desiring to borrow money by reason of financial difficulties, plaintiffs found it advisable to enter into a new lease with defendant for a flat monthly rental, the rent to be assigned *341 to the bank from which they were making a loan. Accordingly, on October 8, 1941, plaintiffs and defendant executed a new lease similar to the lease executed in 1939 with the exception that the term was for five years with right of renewal for five additional years, the rental was for the flat sum of $100 per month and the purchase price under the option was $8,000. All parties not only executed the new lease but initialed the clauses making the changes from the 1939 lease referred to. Plaintiffs were represented by counsel during the negotiations and at the time of settlement. Plaintiffs testified that immediately prior to their execution of the lease agreement plaintiff Charles A. Glenn inquired of the representatives of defendant as to whether or not the agreement was the same in all respects as the agreement executed in 1939. Plaintiffs testified that upon being informed that it was, they thereupon signed the agreement. Although plaintiffs were represented by reputable counsel, who was present at the time, plaintiffs' attention was not called to the fact that such statement, if made, was not correct. Plaintiffs further testified that they had no knowledge that the purchase price under the option was $8,000 instead of $16,000 until they were so informed by their counsel approximately a year later. On July 16, 1951, plaintiffs mailed to defendant by registered mail to its New York address a notice to defendant to vacate and quit the premises on November 1, 1951. Defendant notified plaintiffs by letter dated October 26, 1951, of its desire to exercise its option to purchase the property. The renewal term under the lease expired on October 31, 1951. On December 5, 1951, a tender was made upon plaintiffs on behalf of defendant of the purchase price under the option, together with deed to be executed by plaintiffs. This tender was refused. On December 14, 1951, after prior notice thereof to plaintiffs, another tender was attempted by defendant by tendering the purchase price and deed. However, neither plaintiffs nor anyone on their behalf appeared. Defendant objected to the introduction in evidence of the 1939 lease and to the testimony of plaintiffs with reference to the conversation between plaintiffs and the representatives of defendant with reference to the terms thereof, contending that the testimony of plaintiffs constituted a violation of the parol evidence rule. Plaintiffs' testimony related entirely to the conversation which took place immediately prior to the execution of the contract. Plaintiffs contend that they were misled by the statement alleged to have been made by defendant's representative to the effect that there had been no change therein. Plaintiffs further assert that in making the inquiry as to whether or not there had been any change in the contract they definitely had in mind the clause relating to the option to purchase. It is not clear as to what defendant's representatives understood by this question. It is not disputed that changes had been made in the contract other than the change in the amount of the purchase price under the option. Although the contract had been prepared at the request of defendant, it had been in the possession of plaintiffs' counsel for examination and approval for approximately two weeks before the time of settlement. The fact that no reference as to any of these changes was made to plaintiffs, either by their counsel or by defendant's representatives, is unexplained. Plaintiffs explain their failure to examine the contract which was before them by asserting that they relied upon the statements made on behalf of defendant and by the further statement that they would not have understood the agreement had they read it. Other witnesses called who were present at the time, including the then counsel for plaintiffs, were not helpful. They had no recollection relative to this conversation. In my opinion the testimony is admissible. While there is no evidence of actual fraud, there is evidence of a misrepresentation. Even innocent representations as to material circumstances are sufficient to refuse specific performance if the plaintiffs were induced to sign the contract *342 by reason thereof. Eastern States Petroleum Co. v. Universal Oil Products Co., 24 Del.Ch. 11, 3 A.2d 768, 775; Williams v. M. E. Blatt Co., 95 N.J.Eq. 326, 123 A. 362; Warner v. Giron, 141 N.J.Eq. 493, 58 A.2d 98; Wagner v. Allen, 184 Iowa 894, 169 N.W. 143; LaCourse v. Kiesel, 366 Pa. 385, 77 A.2d 877. See also Corbin on Contracts, Vol. 5, Sec. 1167, p. 724. The testimony offered relates entirely to the circumstances surrounding the execution of the agreement. It does not in any manner change or vary the terms of the agreement itself, but gives plaintiffs' explanation for their execution of the agreement containing the option clause for $8,000. The time, place and circumstances of the execution and the execution itself of a written instrument may be proved by parol. Plunkett v. Dillon, 4 Del.Ch. 198. See Gluckman v. Holzman, 29 Del.Ch. 458, 51 A.2d 487. I conclude that the testimony of plaintiffs as to the circumstances surrounding the execution of the contract is admissible. But defendant contends that even if I should consider the testimony of plaintiffs admissible and even if I should accept this testimony in full, plaintiffs, by their failure to act to reform or to cancel the agreement and by accepting the benefits thereof for a period of approximately nine years, have accepted the agreement and cannot now interpose an alleged misrepresentation on the part of defendant when defendant has called upon plaintiffs to comply with the terms and conditions to be performed by them. The agreement was drawn in order to permit plaintiffs to borrow money by making an assignment thereof. The rental was changed to a definite sum and increased to $100 per month. The term of the lease was extended to a period of five years. Plaintiffs admit that approximately a year after the execution of the agreement they were informed by their then counsel that the agreement provided for an absolute option on the part of defendant to purchase the premises for the sum of $8,000. Since that time, for a period of approximately nine years, plaintiffs have not complained of this alleged misrepresentation, but, on the contrary, have accepted the benefits thereof. A person who has been misled, upon learning the truth, is required with reasonable diligence to disaffirm the contract or to give the other party thereto an opportunity of rescinding it and of restoring both of them to their original position. He will not be permitted to continue to derive all possible benefits from the transaction and then, when he is called upon to comply, claim to be relieved from his own obligations on the ground of a misrepresentation of the other party made at the time of the execution of the agreement. Having conducted himself as though the transaction were still subsisting and binding he has waived all benefit of and relief from such misrepresentation. See cases cited in 3 Pomeroy's Equity Jurisprudence (5th Ed.) Sec. 897, p. 530, n. 2. Plaintiffs having elected the course of silence and inaction when it was their duty to speak or to act, equity will now withhold its aid. Bay Newfoundland Co., Ltd. v. Wilson & Co., Inc., 26 Del.Ch. 270, 28 A. 2d 157, affirmed 27 Del.Ch. 344, 37 A.2d 59, 63. Even if plaintiffs' actions should not amount to acquiescence, their acceptance of the contract for a period of approximately nine years after they ascertained that it contained an option to purchase for the sum of $8,000 and the acceptance of the benefits thereof constituted laches. Wright v. Scotton, 13 Del.Ch. 402, 121 A. 69, 31 A.L.R. 1162; Bovay v. H. M. Byllesby & Co., 25 Del.Ch. 1, 12 A.2d 178, 190; Martin v. Martin, Del.Ch., 74 A. 864. Plaintiffs have offered no justification for their silence and for their acceptance of the benefits of the agreement. I must therefore assume that even though they found the option clause in the agreement not to be in accordance with their understanding of *343 what it was supposed to be, they accepted the agreement in its entirety, including the option clause. I conclude that plaintiffs are prevented from asserting their claim as to the alleged misrepresentation by defendant's agent by reason of acquiescence and laches. Was defendant obliged to tender the purchase price prior to the termination of the lease? This question is more troublesome. The option clause in the lease provides as follows: "Lessor hereby grants to Lessee the further option to purchase the demised premises and all buildings, improvements and equipment thereon owned by Lessor at any time during the term aforesaid or any extension thereof, upon the following terms and conditions: "(a) Lessee shall give Lessor written notice of Lessee's election to exercise such option directed by registered mail to Lessor at Lessor's aforesaid address, or delivered to Lessor personally. "(b) The purchase price shall be Eight Thousand ($8,000.00) Dollars. "(c) Upon completion of Lessee's title examination, if title is satisfactory to Lessee, Lessee shall tender the purchase price to Lessor, and Lessor at the time of such tender shall deliver to Lessee a good and sufficient warranty deed and bill of sale conveying said premises and all buildings, improvements and equipment thereon owned by Lessor to Lessee, in fee simple, free and clear of all liens, encumbrances and restrictions whatsover. All proper adjustments shall be made at the time of such conveyance." It will be noted that the manner in which the option shall be exercised is provided for in the lease. It is stipulated therein that defendant shall give to the plaintiffs written notice of its desire to exercise the option and that upon completion of title examination on the part of defendant, if the title is then found to be satisfactory to defendant, defendant shall then tender the purchase price to plaintiffs, at which time plaintiffs shall deliver to defendant a good and sufficient warranty deed in fee simple for the premises, free and clear of all liens, encumbrances and restrictions whatsoever. Defendant notified plaintiffs of its desire to exercise the option prior to the date of the expiration of the lease. In that notice defendant requested plaintiffs to give it the name and address of plaintiffs' counsel, so that upon the completion of the title examination defendant might arrange with plaintiffs' counsel for a date, time and place of closing. Defendant received no reply to that letter. Tender of the purchase price was made by defendant upon plaintiffs on December 5, 1951, which was after the expiration of the term of the lease. Plaintiffs contend that, since the tender was not made prior to the termination of the lease, defendant cannot enforce the option. The option to purchase contained in a lease is equivalent to a continuing offer to sell, to which the notice of the election to purchase is an acceptance and the two constitute a completed contract of sale as of the date of the notice. Thompson on Real Property, Perm. Ed., Vol. 3, Sec. 1330, p. 494. The option in this case did not provide for the exercise thereof by a tender of the purchase price. That and the tender of the deed were to depend upon the examination of the title on behalf of defendant. So long as neither party made tender of the deed, on the one hand, or payment on the other, no one was in default and under the weight of authority either party could make proper tender and insist upon specific performance at any time unless barred by laches. Smith v. Gibson, 25 Neb. 511, 41 N.W. 360; McLean v. Neal, 29 Ga.App. 9, 113 S.E. 63; Durepo v. May, 73 R.I. 71, 54 A.2d 15, 172 A.L.R. 429. The fact that in the option clause it was provided first that notice should be given and, secondly, for tender after an examination of the title by defendant refutes, of itself, plaintiffs' contention that a tender was necessary at the time of the exercise of the option. If plaintiffs were insisting *344 that settlement be made prior to the termination of the lease, which was within a matter of five or six days, it should have communicated with defendant in response to defendant's letter, since defendant requested information essential to the completion of the settlement. Defendant's tender was made on December 5th, a matter of approximately five weeks after the termination of the lease. Although the option clause provided for written notice of election to exercise and for an opportunity to defendant to examine the title, no time limit was set for such examination. In the absence of such time limit it will be presumed that the parties contemplated a reasonable time. Smead v. Lamphear, 87 Vt. 1, 86 A. 1005; Texas Co. v. Crown Petroleum Corp., 137 Conn. 217, 75 A.2d 499; Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380. A period of approximately five weeks within which to examine the title and make settlement is unquestionably a reasonable time. Texas Co. v. Adams, 101 N.J.Eq. 500, 138 A. 655, reversed 141 A. 762. I conclude that defendant complied with the terms of the option by its written notice dated October 26, 1951. Plaintiffs assert that the option agreement constituted such an unconscionable bargain as to be unenforceable. The testimony with reference to the purchase price set forth in the option is very meager and what there is is unsatisfactory. The purchase price as set forth in the 1939 agreement was $16,000; the purchase in the 1941 agreement was $8,000. No satisfactory explanation is given for the reduction in price. Apparently such evidence was not available. Plaintiffs say that at the time they signed the agreement they relied upon the statement of defendant's agent that there had been no change in the contract. Yet the fact remains that plaintiffs knew that there had been some changes. The agreement was before them to read, if they so desired. It had been in possession of plaintiffs' counsel, for his examination and approval, for approximately two weeks. It is therefore significant that plaintiffs' counsel did not correct such misstatement, if made, at the time of the execution of the agreement. No evidence is offered as to the value of the property in question at the time of the execution of the agreement. Plaintiffs, according to their own testimony, learned about the purchase price as set forth in the option about a year after the execution of the agreement, when they were so informed by their counsel. Although they consulted counsel, they failed to notify defendant of the alleged misrepresentation or to take any action to cancel or reform the agreement. Plaintiffs had the burden of proving their contention that the purchase price was inadequate. They failed to meet that burden. Mere inadequacy of consideration, in the absence of any unfairness or overreaching, does not justify a denial of the right of specific performance where in other respects the contract conforms with the rules and principles of equity. See cases cited in 65 A.L.R. 86, Annotation. A court of equity does not attempt to weigh the actual value nor to insist upon the equivalent in contracts, when each party has equal competence. Lee v. Kirby, 104 Mass. 420; Lawson v. Mullinix, 104 Md. 156, 64 A. 938. In view of these circumstances, I do not find that the option clause of the agreement was so harsh and unconscionable as to be unenforceable. I conclude that the lease with option to purchase, dated October 8, 1941, is a valid and enforceable agreement, and that the option to purchase is valid in all respects and that defendant is entitled to a conveyance of the property by plaintiffs in accordance with the terms and conditions thereof. An order will be signed on notice in accordance with this opinion.

535 F.2d 1059 UNITED STATES of America, Appellee,v.Richard Lee KNIGHT, Appellant. No. 76-1059. United States Court of Appeals,Eighth Circuit. Submitted April 14, 1976.Decided May 25, 1976. Allan Goodloe, Jr., Clayton, Mo., for appellant; Shaw, Howlett & Schwartz, Clayton, Mo., on brief. Frank A. Bussmann, Asst. U. S. Atty., St. Louis, Mo., for appellee; Donald J. Stohr, U. S. Atty. (Barry A. Short, U. S. Atty., effective May 15, 1976), St. Louis, Mo., on brief. Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and WEBSTER, Circuit Judges. LAY, Circuit Judge. 1 This is an appeal from a conviction for possession of goods stolen from an interstate shipment in violation of 18 U.S.C. § 659. Defendant's basic contention is that the district court erred in admitting evidence of another similar crime. We reverse and remand for a new trial. 2 At the time of his arrest, defendant Richard Lee Knight was 29 years old, married, and had no prior convictions. He made his living in the taxicab business and supplemented his income by buying and selling merchandise of various kinds. On July 28, 1975, a warrant was issued authorizing a search of defendant's home for certain stolen goods. The search was conducted while the defendant was not at home, and after the officers found an organ, an amplifier and a TV set, all recently stolen from Riss International Trucking Company's loading docks, they asked Knight's wife to tell her husband to come to the police station the next day. Knight reported to the police station as requested, and when questioned, he explained that he bought the merchandise in mid-June for $1,000 in cash from a stranger named Robert Sorrell, who Knight said had contacted him to ask for a job as a cab driver. Knight showed the investigating officers a receipt purportedly signed by Sorrell, told them that Sorrell lived nearby in the Florissant, Missouri, area and gave them a description of the man. The authorities were unable to locate any individual named Sorrell. They apparently did locate Howard Combs, who had signed the receipt as a witness, but Combs did not testify for either side. 3 At trial, the government offered into evidence the defendant's explanation of his possession of the stolen items. In addition, a police officer was called to testify as to defendant's responses to questions about his possession of a large quantity of coffee. 4 The defendant objected, stating that there was no proof that the coffee was stolen and that the testimony was irrelevant to show knowledge and intent. The trial court asked counsel to approach the bench and required the government to show relevancy before admitting the proof. At that time the prosecutor stated to the trial judge: 5 Well, Judge, we're not certainly saying the coffee was stolen. We are just saying that he didn't care. He said, when asked about the coffee, he didn't care whether it was stolen or not, that he got it from a friend on a trucking dock (emphasis added). 6 Thereafter, the court allowed the officer to testify: 7 I asked him if he recently obtained any coffee and he stated he obtained some coffee from a friend of his who worked on a trucking dock which, when I asked him did he feel that the coffee was stolen he said it probably was. When I asked him if he would identify the person who gave him the coffee he stated that he did not wish to; he didn't want to get the person in any trouble. 8 When the defendant took the stand, the prosecutor cross-examined him about the coffee. At that time the exchange between the prosecutor and the defendant was as follows: 9 Q. And I believe you were asked if you thought the coffee was stolen and you said, I believe, that you suspected that it was? 10 A. I said that it possibly could be. 11 Q. Let me ask you if you answered that question this way, that it (the coffee) had been given to you by a source or someone from a trucking dock and that "I don't want to get anyone in a trick bag who just gives me something because we're friends. I don't know if the items were stolen or not and don't really care. I'm not going to tell you his name because I don't want to get him in trouble." Is that what you said? The defendant answered: 12 Part of that is true, sir. I did say that it was given to me and I didn't, I think the officer there wanted to know the name of the gentleman and I wouldn't reveal it, and that was my reason. 13 Immediately thereafter, the prosecutor asked: 14 Isn't it a fact, Mr. Knight, that you had bought stolen items before? 15 There was an objection but the court overruled it since the defendant denied the allegation before the objection. 16 There was no evidence that the coffee was stolen or that the defendant possessed any stolen goods other than the three items listed in the indictment. It is obvious, however, that the government wanted the jury to believe that the defendant knowingly possessed stolen coffee.1 Cf. United States v. Clemons, 503 F.2d 486 (8th Cir. 1974); Gart v. United States, 294 F. 66 (8th Cir. 1923). 17 Knight's indifference as to whether the coffee was stolen is not relevant to show knowledge and intent to possess other stolen property. For a defendant to be convicted under § 659, the prosecution must prove and the jury must find that the defendant had actual knowledge that the goods charged in the indictment were stolen. A defendant's alleged indifference as to whether other property was stolen has little probative value, especially when the government does not even show that the other property was stolen. 18 The possibility of prejudice from such evidence is great. When the testimony is considered along with the prosecutor's improper question suggesting that the government knew of regular dealings by the defendant in stolen goods2 we find that a new trial is required.3 19 Although there was sufficient circumstantial evidence of knowledge to sustain the verdict, we find that the trial court erred in allowing the government to cast suspicion on the defendant as a dealer in stolen goods by references to his possession of other goods not shown to be stolen. 20 Judgment reversed and remanded for a new trial. 1 In closing argument, the prosecutor said: What about that coffee? How does the defendant answer the remarks he made to the officers . . . ? You heard the comments. He told them, I believe, you correct me in your minds if I'm wrong, that he got the coffee from a friend off of a trucking dock, that he refused to name the friend because he didn't want to get anybody in the trick bag. He said he didn't know if the items were stolen but he suspected that they were. What does this tell you? Does it show intent? Does it provide an opportunity? Were the defendant's acts consistent with the act of an innocent man? 2 This obviously was "a groundless question to waft an unwarranted innuendo into the jury box." See Michelson v. United States, 335 U.S. 469, 481, 69 S.Ct. 213, 221, 93 L.Ed. 168, 176 (1948) 3 The trial court properly instructed that the jury could infer knowledge that the goods were stolen from the defendant's possession of recently stolen goods. See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Wilson, 523 F.2d 828 (8th Cir. 1975); Teel v. United States, 407 F.2d 604 (8th Cir. 1969); Sewell v. United States, 406 F.2d 1289 (8th Cir. 1969); Anderson v. United States, 406 F.2d 529 (8th Cir. 1969) Additionally, there was corroboration of defendant's guilty knowledge, see Burke v. United States, 388 F.2d 286 (8th Cir. 1968), in (1) the defendant's story that he bought the goods from a stranger in mid-June when in fact the TV set was not stolen from Riss Trucking until June 25, 1975; (2) the inability of anyone to locate Sorrell, who supposedly sold the goods to defendant Knight; (3) the fact that the defendant had previously worked unloading Riss trucks; and (4) the impeachment of his denial of knowing Jim Guinn, the Riss truck driver who had hauled the merchandise in question.

543 U.S. 1093 WORLEYv.UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 04-7301. Supreme Court of United States. January 18, 2005. 1 C. A. 4th Cir. Certiorari denied. Reported below: 91 Fed. Appx. 270.

Opinion issued August 12, 2014 In The Court of Appeals For The First District of Texas ———————————— NO. 01-13-00860-CV ——————————— SEAPRINTS, INC., HERMAN H. KOSTER, AND ELISABETH KOSTER, Appellants V. CADLEWAY PROPERTIES, INC., Appellee On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2012-72404 OPINION Appellants Seaprints, Inc., Herman H. Koster, and Elisabeth Koster filed a bill of review, seeking to vacate a 2007 default judgment entered against them in favor of appellee Cadleway Properties, Inc. The appellants claimed that they were never served with process and had no notice of the action in which the default judgment was rendered. Both sides of the dispute moved for traditional summary judgment, which the trial court entered in favor of Cadleway. However, because the appellants presented evidence corroborating their sworn denials of service, we reverse and remand the case for further proceedings consistent with this opinion. Background Seaprints, Inc., a corporation owned by Herman and Elisabeth Koster, secured a loan from the Small Business Administration in 1995. The Kosters both personally guaranteed the loan. Later, Cadleway Properties, Inc. acquired the note. When Seaprints stopped making payments, Cadleway sued Seaprints and the Kosters to enforce the note and personal guaranties. The parties dispute whether Seaprints and the Kosters were served with process. Curtis Wheeler, a licensed process server, executed affidavits of service for all defendants, stating that he personally delivered the citations at specified residential addresses to the Kosters in Seabrook, Texas, and to the registered agent of Seaprints, Mark Salbert, in League City, Texas. At the time Wheeler claimed to have accomplished service of process, Elisabeth and Herman were separated and living apart from each other. Though the couple did not divorce until later, at the time Herman was no longer living at the marital home in Seabrook, and he had moved into an apartment in Kemah, Texas. Salbert claimed that he was not at his League City residence at the time he was 2 allegedly served. In his affidavit, he declared that he had been at a pawn shop buying a carpet shampooer. No party ever filed an answer to Cadleway’s petition. On April 19, 2007, the trial court signed a default judgment awarding $11,295 and post-judgment interest to Cadleway. This document decreed that Cadleway “have and recover” judgment “from Defendant, Richard D. Cardenas”—a stranger to the lawsuit—and it did not specify a recovery from any defendant named in the suit. Recognizing the error months later, Cadleway filed a motion for judgment nunc pro tunc. On January 14, 2008, the trial court entered an “Order for Judgment Nunc Pro Tunc” and a new judgment substituting the three defendants’ names for “Richard D. Cardenas.” In their bill of review, Seaprints and the Kosters avowed that they had no contemporaneous knowledge of the judgment or these trial court proceedings. Cadleway eventually sold the judgment to National Judgment Recovery Center, L.P., which in turn obtained a writ of execution. On the basis of this writ, in September 2012 a commercial building owned by the Kosters and located in Brazoria County was seized and sold at auction by the local sheriff. The purchaser at the sheriff’s sale was SOCA Funding, LLC. Though they had been divorced for several years by this time, the Kosters had continued to jointly own the Brazoria County property, and they had borrowed money from a bank using the property as 3 collateral. In addition to the interest it acquired at the sheriff’s sale, SOCA also purchased the note and deed of trust the Kosters had given to the bank. The Kosters sued SOCA in Brazoria County, seeking to set aside the sheriff’s sale. They had long leased the Brazoria County building to a commercial tenant. In their affidavits, they claimed that they first heard of the judgment against them when their tenant informed them of the sheriff’s sale. They successfully obtained a temporary injunction requiring SOCA to conserve the rents it received and forbidding it from foreclosing. In addition to the Brazoria County action, Seaprints and the Kosters filed a bill of review in Harris County, in the same trial court that had entered the default judgment against them. Naming Cadleway as defendant, they alleged that a bill of review was proper as they never had received notice of the prior suit and they never had been served with process. They further argued that the judgment nunc pro tunc, substituting their names for “Richard D. Cardenas,” was improperly entered after the expiration of the trial court’s plenary power. They moved for traditional summary judgment arguing that the default judgment against them was thus void because it was made at a time when the trial court lacked jurisdiction. Cadleway also moved for traditional summary judgment. It argued that Seaprints and the Kosters, in the face of affidavits of service executed by a licensed 4 process server, failed to meet an enhanced burden of proof to demonstrate that they had not been served. Cadleway attached evidence to its motion, including: • Wheeler’s affidavits of service for Seaprints and each of the Kosters; • a transcript of the Kosters’ testimony in the Brazoria County proceeding; • a sworn “Designation and Disclaimer of Homestead” executed by the Kosters in 2008, in which they both identified the house in Seabrook as their homestead and the residence they had occupied since 1991; • franchise tax forms obtained from the Texas Secretary of State identifying the Kosters as officers of Seaprints and listing an address for both at the Seabrook house; • another affidavit from Wheeler in which he affirmed that he served the Kosters and Salbert (as registered agent for Seaprints), that he remembered having served them, that he remembered the location of their residences, and that he recognized the Kosters’ faces from their photographs; • an affidavit from an employee of the Harris County District Clerk who attested that notice of the entry of the default judgment was automatically mailed to Seaprints and the Kosters at their last known address, which was the Seabrook house; and • a certified copy of an abstract of judgment, reflecting a default judgment against Seaprints and the Kosters, filed in Harris County in June 2007. The appellants filed a response to Cadleway’s motion for summary judgment to which they attached evidence, including: • affidavits of the Kosters and Salbert, denying that they were served with process or had notice of the action and default judgment until they learned of the sheriff’s sale; • a copy of the 2009 decree of divorce dissolving the Kosters’ marriage; • documents reflecting Herman’s home address in Kemah, including his Texas driver’s license; 5  • a copy of a receipt from EZPAWN in Webster, Texas, indicating that Salbert purchased a carpet shampooer less than half an hour before the time indicated on Wheeler’s corresponding affidavit of service; • the affidavit of Diane Gillebaard affirming that the Kosters separated in 2006 and that Herman moved to an apartment that Gillebaard owned in Kemah; and • the affidavit of Kaye Sykes, a neighbor, affirming that the Kosters separated in 2006, that Herman moved to Kemah and “did not return after that to live with Elisabeth,” and that she “did not see Herman Koster around” the Seabrook house or the surrounding yacht club “at any time after he moved out in January of 2006.” Cadleway filed a reply to this response, in which it lodged numerous objections to the supporting evidence. For example, it objected that the receipt for the carpet shampooer was hearsay and that many statements in the affidavits were conclusory or speculative. Apart from these objections, Cadleway attached new evidence to its reply, including several deposition excerpts and a Lakewood Yacht Club activity log from the club’s guard booth indicating that a process server passed through to visit “Koster, Elisabeth & Herman” on the night that Wheeler claims to have served them. Ultimately, the trial court entered summary judgment in favor of Cadleway. It did not rule on Cadleway’s evidentiary objections. Seaprints and the Kosters filed a motion for new trial, which was overruled by operation of law. This appeal followed. 6  Analysis The appellants argue that the trial court erred both in granting Cadleway’s motion for summary judgment and in denying their own motion for summary judgment. With respect to Cadleway’s motion, they argue that they were entitled to proceed with their bill of review because they offered evidence corroborating their denials that they had been served with process. In regard to their own motion for summary judgment, they argue that the evidence conclusively established that the judgment nunc pro tunc replacing their names for “Richard D. Cardenas” was entered at a time after the trial court’s plenary power had expired, that it corrected a judicial error rather than a clerical error, and that it was accordingly void. I. Cadleway’s motion for summary judgment Traditional summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movant has the burden of showing that no genuine issue of material fact exists and that it is therefore entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment is required either to conclusively negate at least one essential element of the plaintiff’s cause of action or to conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). To determine whether there is a disputed material fact, we consider evidence favorable to the nonmovant as true 7 and draw every reasonable inference in its favor, resolving all doubts on the side of the nonmovant. Nixon, 690 S.W.2d at 548–49. “A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.” Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). Ordinarily, bill-of-review plaintiffs must plead and prove “(1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part.” Id. In this case, the appellants assert that they were never served with process. Bill-of-review plaintiffs who claim they were not served need not present a meritorious defense or evidence of fraud, accident, or mistake. Id. at 96–97. Furthermore, plaintiffs who prove non-service thereby conclusively establish their lack of fault or negligence. Id. at 97. Thus, proof of non-service conclusively establishes the “only element that bill of review plaintiffs are required to prove when they are asserting lack of service of process as their only defense.” Id. The bill-of-review plaintiff bears the burden of proving that he was not served with process. Id. Because a bill of review constitutes a direct attack on a judgment, no presumption applies in favor of the valid issuance, service, or return of the citation. Min v. Avila, 991 S.W.2d 495, 499 (Tex. App.—Houston [1st Dist.] 8 1999, no pet.). A “bill-of-review petitioner may therefore demonstrate that the judgment is invalid for lack of proper service of process, whether or not the face of the record discloses the invalidity and despite recitals of proper service in the judgment under attack.” Id. at 499–500. Nonetheless, a plaintiff’s bare denial that he was served is inadequate to carry his burden in the face of a valid return of service. Id. at 501. In order to overcome a prima facie showing of service of process established by the recitals in the officer’s return, the plaintiff must come forward with “evidence of supporting facts and circumstances” to corroborate his denial. Id. This evidence may be circumstantial and need not consist of the testimony of other witnesses. See id. at 501, 503. Indeed, the court in Min v. Avila, 991 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1999, no pet.), observed that the plaintiff’s own testimony may serve as corroborating evidence in this regard: “The prohibition against considering the challenger’s evidence applies only if the evidence does not rise above mere denial of service, or mere denial of service buttressed only by the serving officer’s inability to remember serving that particular party.” Id. at 503. Whatever the source of the evidence, the definitive test “is whether it demonstrates independent facts and circumstances that support, and thus corroborate, the challenger’s claim.” Id. For example, the bill-of-review plaintiff in Min corroborated his denial of service with his own testimony that he had moved away from the apartment where 9 he purportedly was served, that he had discontinued electrical service there, and that another family was living there at the time of the purported service. Id. Cadleway argues that a bill-of-review plaintiff must not only corroborate his denial of service, but that his evidence of non-service must satisfy an enhanced burden of proof “beyond preponderance of the evidence.” To support its position, Cadleway relies upon statements from several older cases. For example, in Cortimiglia v. Miller, 326 S.W.2d 278 (Tex. Civ. App.—Houston [1st Dist.] 1959, no writ), the court wrote: The law is well settled that the return of service either by a sheriff or any other officer authorized by law to make it, is prima facie evidence of the material facts recited therein and a court of equity should not set aside a judgment rendered thereon except upon clear, satisfactory and convincing proof of lack of service of process by the officer who made it. 326 S.W.2d at 282. Other cases referenced by Cadleway contain similar language. See Sgitcovich v. Oldfield, 220 S.W.2d 724 (Tex. Civ. App.—Galveston 1949, writ ref’d); Johnson v. Cole, 138 S.W.2d 910 (Tex. Civ. App.—Austin 1940, writ ref’d); Crawford v. Gibson, 203 S.W. 375 (Tex. Civ. App.—Dallas 1918, writ ref’d). All of these cases have an antecedent in Randall v. Collins, 58 Tex. 231 (1881). We disagree with Cadleway’s characterization of the burden of proof. As subsequent cases attest, the burden of proof for a bill-of-review plaintiff is preponderance of the evidence. Caldwell, 154 S.W.3d at 98 (“At trial, he must 10 establish by a preponderance of the evidence that he was never served.”); Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972) (“As in any other fact issue, the burden was . . . to establish his case by a preponderance of the evidence.”); Perez v. Old W. Capital Co., 411 S.W.3d 66, 72 (Tex. App.—El Paso 2013, no pet.) (“The party asserting lack of service must corroborate it with ‘evidence of supporting facts and circumstances’ by a preponderance of evidence.”). Past pronouncements to the contrary have been abrogated by these decisions of more recent vintage. Seaprints and the Kosters argue that they submitted corroborating evidence of their denials of service and that therefore summary judgment against them was improper. We review the record concerning each appellant individually to determine whether Salbert, Herman, and Elisabeth corroborated the denial of service with evidence of supporting facts and circumstances. A. Service on the agent of Seaprints Salbert, who was purportedly served as registered agent of Seaprints, executed an affidavit denying that he had been served with process. He further denied having had any awareness of the lawsuit until he was informed by the Kosters of their efforts to set aside the sheriff’s sale. Significantly, Salbert did not merely deny that he had been served, but he averred that on the morning at issue he had not been at his home in League City, but he was instead in the nearby town of Webster, buying a carpet shampooer. Salbert thus furnished testimony of an 11 independent fact or circumstance—his presence at a pawnshop in another town— and he did not merely deny that he had been served. See Min, 991 S.W.2d at 503. Moreover, the appellants presented a receipt indicating that Salbert purchased a carpet shampooer at 11:16 AM, seventeen minutes before the time listed on the affidavit of service. See Sanders v. Harder, 148 Tex. 593, 597, 227 S.W.2d 206, 209 (1950) (“[I]t is not required that the corroborating evidence be direct. It may be wholly circumstantial.”). Cadleway argues that the receipt was hearsay. Although Cadleway objected to this evidence in the trial court, it did not obtain a ruling on its objection. “Failure to secure the trial court’s ruling on the objections to the summary judgment evidence also waives the complaint for appeal.” Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial court’s order granting summary judgment in Cadleway’s favor does not function as an implicit ruling sustaining the objection. See Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.). While defects of substance in summary judgment evidence may be raised for the first time on appeal, hearsay is considered an objection as to form. See Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam) (failure to object to defects in form resulted in waiver); Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (defect of 12 substance may be raised for the first time on appeal but hearsay is defect of form, not substance). As such, Cadleway waived its objection, and the receipt remains part of the summary-judgment evidence we consider. In light of Salbert’s sworn statement that he was at another location on the morning when he purportedly was served and his presentation of the receipt, which corroborates his account, we conclude that Seaprints presented evidence of independent facts and circumstances to corroborate its denial of service. B. Service on Herman Koster Herman also executed an affidavit denying that he was served with process. In it, he averred that on the date he was purportedly served, February 6, 2007, he was living in Kemah and had separated from Elisabeth. He denied being at his former home in Seabrook at any time that day. He disavowed having had any knowledge of the lawsuit until he heard about the sheriff’s sale. In addition to Herman’s affidavit, the appellants offered copies of his car registration (dated July 30, 2007), bills (dated October 30, 2006 and May 9, 2007), and his driver’s license (expiration date, August 27, 2008), all showing his Kemah address. Furthermore, appellants presented the affidavit of Kay Sykes, a former neighbor of the Kosters in Seabrook, who averred, “Herman Koster moved to Kemah, Texas at the beginning of 2006 and did not return after that to live with Elisabeth.” Diane Gillebaard, in her affidavit, claimed Herman moved in January 2006 to an 13 apartment that she and her husband owned in Kemah and that he resided there until they sold the property in 2008. Like the successful bill-of-review plaintiff in Min, Herman corroborated his denial of service by affirming that he had changed his residence over a year before the date he was supposedly served at his former home. See Min, 991 S.W.2d at 503. He further stated that he and Elisabeth were separated at that time, “an independent fact or circumstance” consistent with his absence from the marital home. He also specifically denied being at the Seabrook residence at any time on the day when he was supposedly served. Aside from Herman’s testimony, appellants offered circumstantial evidence, in the form of the various documents bearing his Kemah address, to support Herman’s claim that he had changed residences. The affidavits of Sykes and Gillebaard are evidence that Herman was living in Kemah as he claims, and thus further circumstantial evidence that he was not present in Seabrook on the night he was supposed to have been served. Although Cadleway claims that the affidavits of Sykes and Gillebaard are “riddled with factual conclusions,” this objection is inadequate as it fails to identify specific objectionable portions of the affidavits or to explain why any particular passages should be disregarded as conclusory. See Walston v. Anglo-Dutch Petroleum (Tenge) L.L.C., No. 14–07–00959–CV, 2009 WL 2176320, at *8 n.8 (Tex. App.— Houston [14th Dist.] July 23, 2009, no pet.) (mem. op.) (dismissing objections to 14 affidavits when they were not supported by legal authority and failed to identify specific statements challenged within paragraphs); Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.) (refusing to consider objections to affidavits—that they were conclusory and not based on personal knowledge—when objections were not sufficiently specific). Given Herman’s denial that he was present at the Seabrook residence at any time on the day in question, his affirmation that he was living somewhere else due to his separation from his wife, and the several documents and collateral affidavits attesting to his change of residence, we conclude that he presented evidence of independent facts and circumstances to corroborate his denial of service. C. Service on Elisabeth Koster Elisabeth also made an affidavit denying that she was served with process. However, she did not deny being present at the Seabrook residence, and in her deposition, she admitted that “as far as [she] knew,” she was home in Seabrook on the night she was purportedly served. Like Herman and Salbert, she denied having had any knowledge of the proceedings against her until she learned of the sheriff’s sale. Elisabeth averred that she was the president of Seaprints and that Salbert, its registered agent, had never notified her that the company had been served with process or had a judgment entered against it. Referring to herself and Herman, she 15 further stated, “We could not possibly have both been served at my home address on that date because Herman Koster was not there on that date. We had separated and he moved to Kemah, Texas, in January of 2006.” Elisabeth also stated, “In August of 2008, Herman Koster and I refinanced the commercial property we owned in Pearland, Brazoria County, Texas with Amegy Bank. At that time, neither we nor the bank making the loan had any knowledge of the judgment made the subject of this case.” She continued, “In my opinion the property was worth at least $950,000 in 2012, and the outstanding mortgage against the property was less than $400,000. Had I known of any judgment against me which endangered my ownership in the property, I certainly would have taken action to protect my property.” Unlike the other two individuals purportedly served by Wheeler, Elisabeth did not claim to have been somewhere other than the address on the return of service at the time of the purported service. On the contrary, she acknowledged having been at her home. Nonetheless, the summary-judgment evidence, taken as a whole, adequately corroborated Elisabeth’s denial of service. Importantly, the affidavits of service claimed that both of the Kosters were served at the Seabrook residence at the same time. As both Kosters averred in their affidavits, Herman was not living at the Seabrook residence at that time and was not present on that night. The evidence suggesting that the affidavit of service was false as to Herman 16 therefore tends to suggest that the affidavit of service was false as to Elisabeth as well. Similarly, if taken as true, Salbert’s denial that he was served and the corroborating evidence that he was somewhere else that morning impeach Wheeler’s credibility and that of the affidavit he executed claiming to have served Elisabeth. Testimony in Ward v. Nava, 488 S.W.2d 736 (Tex. 1972), that the Supreme Court of Texas found corroborative illustrates the scope of circumstantial evidence upon which a bill-of-review plaintiff may rely: Ward stated in this affidavit that he was not served in person; that on Friday, November 19, 1971, someone, whose name he did not remember, called and asked about the lawsuit. Ward did not elaborate as to the identity of the party calling nor did he state for what reason the party calling might have an interest in the case. As a result of the call, Ward began looking for the papers that were supposed to have been served on him. He found the petition in his house as a result of his search on Sunday, November 21, and presumed that it had originally been left in his mailbox. He forgot to take the papers the next day, but delivered them to his insurance agent the following day, November 23, 1971. By this time the default judgment had been entered. The actions of Ward in searching for the papers and in promptly taking the papers to the insurance agent on their discovery constitute some corroborating evidence of Ward's contention that he had not been served. 488 S.W.2d at 737. Though this evidence was indirect, the court nonetheless found it sufficient to corroborate denial of service. 17  Elisabeth’s testimony about the value of the Brazoria County property and the Kosters’ successful use of it as collateral is further circumstantial evidence corroborating her denial of service. In Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950), the Supreme Court of Texas found the following facts to be corroborative of the bill-of-review plaintiff’s denial of service: An examination of the record has convinced us that there are corroborating circumstances in this case. Jim Sanders bought this property in 1925 and moved upon it in 1926. He married Jessie Sanders in 1933, and the property has been occupied by them as a homestead since that date. It would be most unnatural for a husband and wife to ignore a suit which would take their homestead from them. After the default judgment was rendered in 1941 their possession was not disturbed until a writ of scire facias was served upon them in this case approximately seven years later. That unusual delay unexplained lends some support to petitioners’ testimony. Jim Sanders testified that he made improvements on the property after 1941. . . . Other circumstances are relied upon by petitioners, but we think that those mentioned, while not as strong as might be desired, do constitute some competent evidence corroborating the testimony of the petitioners. 148 Tex. at 597–98, 227 S.W.2d at 209. Although the default judgment obtained by Cadleway did not concern title to the property ultimately seized in satisfaction of the judgment, which real estate was not appellants’ homestead, the evidence that a bank was willing to lend the Kosters money secured by property subject to execution under an unsatisfied judgment, and the fact that the two stood to lose a building with a value of $900,000 by not paying a default judgment of $11,295, is evidence that they lacked an awareness of the judgment against them. As in 18 Sanders, there was a delay of many years between entry of the judgment and an attempt to enforce it by seizure of the plaintiff’s property. To echo the Supreme Court, it would be most unnatural for two people to ignore a judgment that could take such a valuable property from them. In both Ward and Sanders, the Supreme Court allowed corroborating evidence to take the form of the parties’ testimony about their own behavior, including their own inaction, if that behavior could be seen as inconsistent with service and awareness of the proceedings against them. See Ward, 488 S.W.2d at 737; Sanders, 148 Tex. at 597–98, 227 S.W.2d at 209. Elisabeth’s statements in her affidavit about the value of the property and its use as collateral are likewise testimony as to behavior that could be regarded as inconsistent with service. Considering the evidence corroborating the other denials of service, the fact that Herman and Elisabeth were purportedly served at the same time and place, and the evidence presented of behavior inconsistent with awareness of the judgment, we conclude that Elisabeth corroborated her denial with supporting evidence of independent acts and circumstances. In its motion for summary judgment, Cadleway did not contend that the evidence it presented that the appellants were served, such as Wheeler’s new affidavit and the records from the security booth, conclusively established service. Rather, it argued that the appellants had offered nothing more than bare denials of 19 service, which denials were inadequate to the altered standard of proof required to controvert affidavits of service. Since each of the appellants produced evidence corroborating the denial of service, evidence that created a genuine issue of material fact on the subject of service under the corroboration requirement for a bill of review, the trial court should not have granted summary judgment for Cadleway. We sustain the appellants’ first issue. II. Seaprints and Kosters’ motion for summary judgment In their second issue, the appellants argue that the trial court should have granted their motion for summary judgment because the judgment nunc pro tunc against them was entered after the trial court’s plenary power had expired, it was correcting a judicial error, and it was therefore void. Crucially, however, the appellants do not argue in their brief, and they did not argue in their motion for summary judgment, that they conclusively established the elements of a bill of review. Whether a plaintiff is entitled to employ a bill of review is a necessary predicate that must be established if the validity of the judgment attacked is to be ruled upon. See Caldwell, 154 S.W.3d at 97–98 (clarifying procedures to be used when a plaintiff files a bill of review); Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979) (same). Therefore, regardless of the merits of the argument that the judgment was inappropriately amended nunc pro tunc to correct a judicial error, it would be precipitate for a court to enter summary judgment in their favor when 20 they still have not established the elements of a bill of review. Appellants’ second issue is overruled. Conclusion We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion. Michael Massengale Justice Panel consists of Chief Justice Radack, Justice Massengale, and Justice Huddle. 21 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0197V UNPUBLISHED ERNESTINE HARRIS, Chief Special Master Corcoran Petitioner, Filed: July 2, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Respondent. Shoulder Injury Related to Vaccine Administration (SIRVA) Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On February 4, 2019, Ernestine Harris filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of a tetanus-diphtheria-acellular pertussis (“Tdap” vaccination administered on September 28, 2017. Petition at 1,5. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 30, 2020, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). at 1. Specifically, Respondent concludes that Petitioner suffered a Table injury and states that “[n]o other causes for [P]etitioner’s SIRVA were identified.” Id. at 6. Respondent further agrees that the statutory six month sequela requirement has been satisfied. Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 

290 Wis.2d 512 (2006) 712 N.W.2d 86 2006 WI App 56 PLUCINSKI v. FROST. No. 2005AP001776. Court of Appeals of Wisconsin. February 2, 2006. Unpublished Opinion. Affirmed.

STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED October 16, 2018 Plaintiff-Appellee, v No. 338613 Berrien Circuit Court TIMOTHY YOUNG, JR., LC No. 2016-003942-FH Defendant-Appellant. Before: SAWYER, P.J., and STEPHENS and GADOLA, JJ. PER CURIAM. Defendant appeals as of right his convictions on two counts of assault with intent to do great bodily harm less than murder in violation of MCL 750.84, and two counts of possession of a firearm when committing or attempting to commit a felony in violation of MCL 750.227b(1) (felony-firearm). The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to concurrent terms of 120 months to 180 months’ imprisonment for his assault convictions to be served following two consecutive terms of 2 years’ imprisonment for his felony-firearm convictions. We affirm defendant’s convictions but reverse and remand for resentencing. On September 10, 2016, defendant’s neighbor, Jeanie Patton-Yarbrough, hosted a memorial gathering to commemorate her recently deceased sister. The memorial started around 2:00 p.m. and lasted until around midnight. Defendant also had some people over at his house, including his cousin Mceldon Gorman. He and Gorman both drank to the point of inebriation. During the afternoon, Gorman went over to Yarbrough’s memorial and ate some food. Because he was uninvited, Yarbrough asked him to leave and he returned to defendant’s house. Yarbrough drank alcohol throughout the day and into the night. Her cousin, Dontae Henderson also drank heavily that evening. As Yarbrough’s guests departed, Yarbrough and Henderson worked to clean up Yarbrough’s yard and house when defendant’s girlfriend stopped over and asked if she could stay at Yarbrough’s house for a while because she had an argument with defendant. She and Yarbrough talked for a while until she felt ready to return to defendant’s house around 1:00 a.m. on September 11, 2016. Yarbrough decided to accompany her because she desired to buy cigarettes from defendant, which she had done before. When Yarbrough entered defendant’s house, she and Gorman got into a dispute. The witnesses’ recollections varied as to what exactly transpired, but it appears that Yarbrough left -1- defendant’s house and returned home very angry and worked up. She decided to return to defendant’s house, and Henderson went with her. They entered defendant’s house and commenced to beat Gorman senseless. A friend of Yarbrough, Darnette Adkinson, later arrived at Yarbrough’s house, learned she was next-door, and hearing a commotion, went over to defendant’s house where she observed Yarbrough and Henderson beating Gorman. She implored them to leave. Defendant ultimately told Yarbrough and Henderson to get out of his house, and once they exited, he shut his front porch screen door. Yarbrough apparently realized she had not purchased the cigarettes she set out to buy from defendant, so she and Henderson turned back and started yelling about buying some cigarettes. Defendant appeared to agree and turned as though he was getting something. He opened the screen door, walked out onto his porch, reached back like he was getting a pack of cigarettes out of his pocket, pulled out a gun, and shot Yarbrough. Henderson said to defendant, “Fool, why you shoot—shoot her?” Then defendant shot Henderson in the chest. Yarbrough, Henderson, and Adkinson each testified that defendant had a gun and shot the women after things seemed to have calmed down. They each heard three to four gunshots. After he shot the women, defendant went behind his house. Police later recovered a .22 caliber revolver under a shed in defendant’s backyard that had four spent shells. Defendant was charged with two counts of assault with intent to commit murder in violation of MCL 750.83, two counts of felony-firearm, and one count of receiving and concealing a stolen firearm contrary to MCL 750.535b. Throughout his trial, defendant claimed that he had not had a gun and was not the shooter. On the second day of trial, defense counsel told the trial court that defendant maintained that he was not the shooter and did not commit the charged offenses but requested that the trial court provide the jury a self-defense or defense of others instruction as part of the final jury instructions. The trial court reflected upon the testimonies of Yarbrough, Henderson, and Adkinson regarding the incident and observed that, despite some discrepancies in their testimonies, each unequivocally identified defendant as the shooter. Further, the trial court recalled that no testimony established that anyone tried to hurt defendant or go back after Gorman when the shooting happened. The trial court, therefore, denied the request based on the evidence presented up to that point in the trial but indicated that it might change its decision depending upon the evidence presented during the remainder of the trial. After the close of all proofs, with one exception, the parties agreed to the final jury instructions. Defendant approved the trial court’s inclusion of instructions regarding the lesser included offense of assault with intent to do great bodily harm less than murder. In closing argument, defendant essentially argued that the prosecution failed to prove that he shot the gun and committed the charged offenses. The jury found defendant guilty of the lesser included offense of assault with intent to do great bodily harm less than murder. At defendant’s sentencing, the trial court assessed defendant 10 points for Prior Record Variable (PRV) 7 as required under MCL 777.57(1)(b) because he had one concurrent conviction resulting in a 10 point total PRV score and PRV Level C. The trial court assessed defendant a total Offense Variable (OV) score of 76 points resulting in an OV Level VI. Assault with intent to do great bodily harm less than murder is a Class D felony with a statutory maximum sentence of 10 years’ imprisonment. See MCL 750.84(1)(a). The Sentencing Guidelines specify for Class D offenses for a second-degree habitual offender with a PRV Level C and OV Level VI -2- that the minimum sentence is 29 to 71 months. The trial court sentenced defendant to concurrent terms of 120 months to 180 months’ imprisonment for his convictions for assault with intent to do great bodily harm less than murder. The trial court stated a few reasons for its departure from the guidelines and observed that its sentence exceeded the sentencing guidelines’ range but noted that they were advisory only pursuant to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). Defendant now appeals. Defendant first argues that he was denied his right to present a defense when the trial court refused to instruct the jury on self-defense or the defense of others. We disagree. We review de novo jury instruction issues involving questions of law. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). We review for an abuse of discretion a trial court’s determination whether a jury instruction is applicable to the facts of a case. Id. “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). “The defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice.” People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). We review de novo issues of statutory construction, which involve questions of law. People v Ryan, 295 Mich App 388, 400; 819 NW2d 55 (2012). “A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). “A defendant asserting an affirmative defense must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmative defense.” People v Crawford, 232 Mich App 608, 619; 591 NW2d 669 (1998). If a defendant introduces evidence supporting self-defense, he is entitled to a jury instruction on self-defense. People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). In People v Guajardo, 300 Mich App 26, 35; 832 NW2d 409 (2013) (citation omitted), this Court reaffirmed the general principle that “a defendant does not act in justifiable self- defense when he or she uses excessive force or when the defendant is the initial aggressor.” In this case, we find no evidence presented at trial that established that defendant acted in self-defense or the defense of another person. Yarbrough, Henderson, and Adkinson each testified that the arguments and altercations between Yarbrough, Henderson, and Gorman had ceased, and to the extent arguments occurred between Yarbrough, Henderson, and defendant, those also had ceased. Although the witnesses’ testimonies varied somewhat respecting the exact details of the events, Yarbrough, Henderson, and Adkinson’s testimonies were consistent. They testified unequivocally that defendant faced no threat of violence. Their testimonies established that Yarbrough and Henderson were outside defendant’s house when he stepped outside onto his porch, pointed a gun at them, opened fire, and shot them at close range. Yarbrough, Henderson, and Adkinson each testified that defendant had the gun and did the shooting. The evidence further established that Yarbrough and Henderson were unarmed. Further, at the time of the shooting, they were not making any aggressive movements toward defendant. -3-  Moreover, defendant did not advance a self-defense or defense of others theory at trial. He consistently defended throughout trial on the ground that he was not the person who shot Yarbrough and Henderson. He claimed someone else shot them. No testimony even remotely suggested that defendant acted in self-defense or the defense of another person. Although the evidence established that Yarbrough and Henderson beat Gorman repeatedly, the evidence did not establish that defendant intervened or actually took steps to protect Gorman. At most, some evidence was presented that defendant removed Yarbrough and Henderson from his house, terminating the altercation between the women and Gorman, after which the situation became calm. Nevertheless, despite removing them from his house, defendant retrieved a gun, approached Yarbrough and Henderson on or near his porch and shot them without provocation. No evidence established that defendant honestly and reasonably believed that the use of deadly force was necessary to prevent the imminent death of or imminent great bodily harm to himself or another person. Under the facts of this case as presented through the testimonies of Yarbrough, Henderson, and Adkinson, the evidence did not warrant giving the jury a self- defense or defense of others instruction. Therefore, the trial court did not abuse its discretion by declining to give the jury a self-defense or defense of others instruction because the evidence at trial did not support such an instruction. Defendant next argues that he should not have been sentenced as a second-offense habitual offender and that his sentence failed to meet the proportionality doctrine established by People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). We believe that the trial court correctly sentenced defendant as a second-offense habitual offender, but we agree that defendant’s sentence failed to meet the proportionality principle articulated in Milbourn. We review for an abuse of discretion whether a sentence is proportionate to the seriousness of the offense. People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). A trial court abuses its discretion when it chooses an outcome falling outside the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). We review for clear error a trial court’s reasons for a departure from the legislative sentencing guidelines. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). We review de novo questions of law. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). A sentence that fulfills the principle of proportionality under People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), is reasonable under Lockridge, 498 Mich 358. People v Steanhouse, 313 Mich App 1, 47-48; 880 NW2d 297 (2015), aff’d in part 500 Mich 453 (2017). Defendant argues that his second-offense habitual offender status must be vacated because the sentence enhancement was improperly based on a misdemeanor conviction. Defendant’s argument lacks merit. The second-offense habitual offender statute, MCL 769.10, states in pertinent part: (1) If a person has been convicted of a felony or an attempt to commit a felony, . . . and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows: -4-  (a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, the court, except as otherwise provided in this section or section 1 of chapter XI, may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than 1- 1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term. Under Michigan law, trial courts may consider misdemeanor convictions for which imprisonment of more than one year may be imposed for determination of habitual offender status. “Offenses punishable-by-more than one year of imprisonment are ‘felonies’ for purposes of the habitual-offender, probation, and consecutive sentencing statutes.” People v Smith, 423 Mich 427, 445; 378 NW2d 384 (1985). In this case, defendant pleaded guilty in 1984 to attempted resisting and obstructing in violation of MCL 750.479, which at the time, the crime was a misdemeanor punishable by imprisonment in the state prison for not more than two years. Thus, even though defendant’s attempted crime was a misdemeanor, because the crime was punishable by a maximum of two years’ imprisonment, it served as an “attempt to commit a felony,” and the trial court did not err when it relied on defendant’s previous conviction in sentencing defendant as a second-offense habitual offender. However, we find that defendant’s argument that the trial court imposed a disproportionate sentence for his assault convictions has merit. The Michigan Supreme Court recently clarified and reaffirmed its holding in Lockridge that sentencing courts must determine the applicable range of sentence under the sentencing guidelines and take such calculations into account when imposing a sentence even though the guidelines are advisory only and not mandatory. People v Steanhouse, 500 Mich 453, 470; 902 NW2d 327 (2017). We review a sentence that departs from the applicable guidelines range for reasonableness. Lockridge, 498 Mich at 392, citing United States v Booker, 543 US 220, 261; 125 S Ct 738; 160 L Ed 2d 621 (2005). Although Lockridge did not specify how a reasonableness analysis must be conducted by this Court, it made clear that sentencing courts must justify their sentences to facilitate appellate review. Lockridge, 498 Mich at 392. This Court has instructed that, when reviewing a sentence for reasonableness under the abuse of discretion standard, reviewing courts must determine whether the sentence fulfills the proportionality principle defined in Milbourn. Steanhouse, 313 Mich App at 42-48. Under the Milbourn proportionality principle, the trial court must determine whether the particular departure was proportionate to the circumstances of the offense and the offender. Milbourn, 435 Mich at 636. “[T]he ‘key test’ of proportionality is not whether the sentence departs from or adheres to the recommended range, but whether it reflects the seriousness of the matter.” People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995) (citation omitted). This Court recently explained in People v Steanhouse (On Remand), 322 Mich App 233, 238-239; 911 NW2d 253 (2017), the appropriate analysis for determining whether an upward departure by the trial court meets the Milbourn proportionality principle: Factors that may be considered under the principle of proportionality standard include, but are not limited to: -5-  (1) the seriousness of the offense; (2) factors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, the defendant’s misconduct while in custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation. [Citation omitted.] An appellate court must evaluate whether reasons exist to depart from the sentencing guidelines and whether the extent of the departure can satisfy the principle of proportionality. See Milbourn, 435 Mich at 659-660; 461 NW2d 1 (recognizing that “[e]ven where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality”). Therefore, even if cases where reasons exist to justify a departure sentence, the trial court’s articulation of the reasons for imposing a departure sentence must explain how the extent of the departure is proportionate to the seriousness of the circumstances surrounding the offense and the offender. See People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008) (“When departing, the trial court must explain why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been.”). In People v Dixon-Bey, 321 Mich App 490, 524-525; 909 NW2d 458 (2017), this Court clarified: Because the guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it follows that they continue to serve as a “useful tool” or “guideposts” for effectively combating disparity in sentencing. Therefore, relevant factors for determining whether a departure sentence is more proportionate than a sentence within the guidelines range continue to include (1) whether the guidelines accurately reflect the seriousness of the crime; (2) factors not considered by the guidelines; and (3) factors considered by the guidelines but given inadequate weight. When making this determination and sentencing a defendant, a trial court must justify the sentence imposed in order to facilitate appellate review, which includes an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been. [Quotation marks and citations omitted.] In this case, the trial court did not explain whether there were circumstances that were not adequately embodied within the variables used to score the guidelines. The trial court merely explained that the testimonies of witnesses at trial indicated that the victims were terrified and that defendant had shot them without provocation at close range causing them serious physical and emotional injuries. The trial court opined that defendant was a dangerous person and that its sentence appropriately fit the crimes, but it made no effort to justify why the substantial upward departure sentence it imposed was more proportionate to the offense and the offender than the minimum sentence range calculated under the guidelines. -6-  The record reflects that the trial court assessed the maximum number of points permissible under the facts of this case for each applicable sentencing guidelines offense variable. Defendant was assessed points for OVs 1 and 2 because of his aggravated use of the gun in the commission of the crimes. Defendant was assessed points for OVs 3 and 4 because of the serious physical and psychological injuries defendant inflicted upon his victims. Because two victims were placed in danger of physical injury or death, defendant was assessed points for OV 9, and he received one point for OV 12 because he committed one contemporaneous felonious criminal act. One cannot reasonably conclude that the scoring of the offense variables under the sentencing guidelines failed to adequately account for the seriousness of the crimes or the impact on defendant’s victims. All of the factors discussed by the trial court to support its departure sentence were accounted for by the offense variables. Further, the record reflects that, before his current felony convictions, defendant maintained employment and did not have a lengthy criminal history. The record did not indicate that defendant had a propensity for committing violent crimes, that he was a recidivist, or lacked potential for rehabilitation and deserved greater punishment than contemplated by the guidelines. Although defendant had 10 misdemeanor convictions, the most recent dated back to 1993. Despite defendant’s lack of remorse and continued denial of shooting his victims, nothing else in the record supported the conclusion that a departure sentence was more proportionate than a sentence within the guidelines. Accordingly, we believe that the trial court abused its discretion by imposing its upward departure sentence of a 120-month minimum sentence when the 29- month-to-71-month minimum sentence range calculated under the guidelines adequately took into account all of the variables relied upon by the trial court for its imposition of an upward departure. The trial court’s 120-month minimum sentence, therefore, exceeded the guidelines minimum range without justification. We hold that the trial court correctly sentenced defendant as a second-offense habitual offender. The misdemeanor the trial court considered was a felony for purposes of habitual offender determination because the attempted crime was punishable by more than one-year imprisonment. The trial court, however, abused its discretion by imposing its upward departure sentence of a 120-month minimum sentence when the 29-month–to-71-month minimum sentence range calculated under the guidelines adequately took into account all of the variables relied upon by the trial court for its imposition of a substantial, unjustifiable upward departure. Affirmed in part and reversed and remanded for resentencing. We do not retain jurisdiction. /s/ David H. Sawyer /s/ Cynthia Diane Stephens /s/ Michael F. Gadola -7- 

159 U.S. 651 16 S.Ct. 132 40 L.Ed. 293 MILLSv.GREEN. No. 732. November 25, 1895. H. N. Obear, for appellant. Wm. A. Barber, Edward McCrady and Geo. S. Mower, for appellee. Mr. Justice GRAY delivered the opinion of the court. 1 This was a bill in equity, filed April 19, 1895, in the circuit court of the United States for the district of South Carolina, by Lawrence P. Mills, alleging himself to be a citizen of the state of South Carolina and of the United States, and a resident of a certain precinct in the county of Richland, and qualified to vote at all federal and state elections in the precinct, and suing in behalf of himself and all other citizens of the county in like circumstances for an injunction against W. Briggs Green, the supervisor of registration of the county. 2 The bill alleged that by a statute of South Carolina of December 24, 1894, a convention was called to revise the constitution of the state, the delegates to be elected on the third Tuesday of August, 1895, and the convention to assemble on the second Tuesday of September, 1895; that the same and other statutes of South Carolina contained regulations as to the registration of voters, and as to certificates of registration, which were in violation of the constitution of South Carolina and of the constitution of the United States in various particulars, pointed out, as abridging, impeding, and destroying the suffrage of citizens of the state and of the United States; that the defendant was exercising the duties prescribed by those statutes, and intended to continue to do so, and specifically intended to furnish and deliver to the boards of managers appointed to hold the election of delegates to the constitutional convention the registration books of the several precincts, to be used by the managers at that election; that the plaintiff had failed to register as a voter because, notwithstanding repeated efforts to become registered, he found himself unable to comply with the unreasonable and burdensome regulations prescribed by the unconstitutional registration laws; that he was desirous of voting for delegates to the constitutional convention at the election prescribed by the statute of 1894 for that purpose; that the registration books in the defendant's hands did not and would not contain the plaintiff's name; that he, and others under like circumstances, would not be permitted by the managers to vote at that election, unless their names were found upon the books, and unless they could produce registration certificates; and that, if the defendant were permitted to continue the illegal, partial, and void registration, and were allowed to turn over the books to the managers, the plaintiff would be deprived of his right to vote at that election, and grievous and irreparable wrong would be done to him, and to other citizens under like circumstances. 3 The prayer of the bill was for 'a writ of injunction restraining and enjoining the said defendant, individually and as supervisor of registration, from the performance of any of the acts hereinbefore complained of,' and for further relief. 4 On the filing of the bill the circuit court granted a temporary injunction, as prayed for, and ordered notice to the defendant to show cause on May 2, 1895, why it should not be continued in force; and on that day, after a hearing, ordered it to be continued until the final determination of the case, or until the further order of the court. 67 Fed. 818. 5 The defendant appealed to the circuit court of appeals, which, on June 11, 1895, reversed the orders of the circuit court, dissolved the injunction, and remanded the case to that court, with directions to dismiss the bill. 25 U. S. App. 383, 69 Fed. 852. The plaintiff, on September 4, 1895, appealed to this court, and the appeal was entered in this court on September 19, 1895. 6 The defendant moved to dismiss the appeal, assigning, as one ground of his motion, 'that there is now no actual controversy involving real and substantial rights between the parties to the record, and no subjectmatter upon which the judgment of this court can operate.' 7 We are of opinion that the appeal must be dismissed upon this ground, without considering any other question appearing on the record or discussed by counsel. 8 The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence. Lord v. Veazie, 8 How. 251; California v. San Pablo & T. R. Co., 149 U. S. 308, 13 Sup. Ct. 876. 9 If a defendant, indeed, after notice of the filing of a bill in equity for an injunction to restrain the building of a house, or of a railroad, or of any other structure, persists in completing the building, the court nevertheless is not deprived of the authority, whenever, in its opinion, justice requires it, to deal with the rights of the parties as they stood at the commencement of the suit, and to compel the defendant to undo what he has wrongfully done since that time, or to answer in damages. Tucker v. Howard, 128 Mass. 361, 363, and cases cited; Attorney General v. Great Northern Ry. Co., 4 De Gex & S. 75, 94; Terhune v. Railroad Co., 36 N. J. Eq. 318, 38 N. J. Eq. 423; Town of Platteville v. Galean & S. W. R. Co., 43 Wis. 493. 10 But if the intervening event is owing either to the plaintiff's own act, or to a power beyond the control of either party, the court will stay its hand. 11 For example, appeals have been dismissed by this court when the plaintiff had executed a release of his right to appeal (Elwell v. Fosdick, 134 U. S. 500, 10 Sup. Ct. 598); or when the rights of both parties had come under the control of the same persons (Lord v. Veazie, 8 How. 251; Chamberlain v. Cleveland, 1 Black, 419; Paper Co. v. Heft, 8 Wall. 333; East Tennessee, V. & G. R. Co. v. Southern Tel. Co., 125 U. S. 695, 8 Sup. Ct. 1391; South Spring H. G. Min. Co. v. Amador M. G. Min. Co., 145 U. S. 300, 12 Sup. Ct. 921); or when the matter had been compromised and settled between the parties (Dakota Co. v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428); or when, pending a suit concerning the validity of the assessment of a tax, the tax was paid (San Mateo Co. v. Southern Pac. R. Co., 116 U. S. 138, 6 Sup. Ct. 317; Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620; Manufacturing Co. v. Wright, 141 U. S. 696, 12 Sup. Ct. 103); or the amount of the tax was tendered, and deposited in a bank, which, by statute, had the same effect as actual payment and receipt of the money (California v. San Pablo & T. R. Co., 149 U. S. 308, 13 Sup. Ct. 876). 12 Where appeals were taken from a decree of foreclosure and sale, and also from decrees made in execution of that decree, and the principal decree was reversed, it was held that the later appeals having been annulled by operation of law, their subject-matter was withdrawn, and they must be dismissed for lack of anything on which they could operate. Railroad Co. v. Fosdick, 106 U. S. 47, 84, 1 Sup. Ct. 10. 13 Where, pending an appeal from a decree dismissing a bill to restrain a sale of property of the plaintiff under assessments for street improvements, and to cancel tax-lien certificates, the assessments and certificates were quashed and annulled by a judgment in another suit, the appeal was dismissed, without costs to either party. Washington Market Co. v. District of Columbia, 137 U. S. 62, 11 Sup. Ct. 4. 14 Where, pending a writ of error in an action which did not survive by law, the plaintiff died, the writ of error was abated. Martin v. Railroad Co., 151 U. S. 673, 14 Sup. Ct. 533. 15 In the great case of State v. Wheeling & B. Bridge Co., which was a bill in equity, filed in this court, under its original jurisdiction, for an injunction against the construction and maintenance of a bridge across the Ohio river, to the obstruction of the free navigation of the river, this court entertained jurisdiction, and on May 27, 1852, decreed that the bridge was an obstruction, and a nuisance, and should be either abated or elevated so as not to interfere with the free navigation of the river, and awarded costs against the defendant; but suspended the enforcement of the decree for a limited time, to allow the defendant to carry out a scheme by which the obstruction to navigation might be removed. 13 How. 518, 626, 627. By the act of congress of August 31, 1852 (chapter 111, § 7), the defendant was authorized to have and maintain the bridge at its then site and elevation; and the officers and crews of all vessels and boats navigating the river were required to regulate the use of their vessels and boats, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of the bridge. 10 Stat. 112. The bridge having been blown down by a violent storm in the summer of 1854, and the defendant preparing to rebuild it according to the original plan, the plaintiff, on June 26, 1854, obtained from Mr. Justice Grier, in vacation, an injunction, which was served upon the defendant, notwithstanding which it proceeded with the erection of the bridge, and completed it in November, 1854. At December term, 1854, of this court, the defendant moved to dissolve that injunction, and the plaintiff filed motions for a sequestration against the defendant, and for an attachment for contempt against its officers for disobeying the former decree of this court and the injunction of Mr. Justice Grier, and for an execution for the costs awarded by the former decree of this court. This court held that the act of 1852 was a constitutional exercise of the power of congress to regulate interstate commerce, and that since that act that portion of its former decree which directed the alteration or abatement of the bridge could not be carried into execution; and therefore denied the plaintiff's motions for sequestration and attachment, dissolved the injunction, and only granted to the plaintiff execution for the costs decreed by this court before the passage of the act of congress. 18 How. 421, 435, 436, 459, 460. 16 In a suit by a county to restrain a railroad corporation from building a railroad along a public highway, the supreme court of Iowa held that an order refusing an injunction, though erroneous when made, should not be reversed when the legislature, pending the appeal, had authorized the act complained of. Linn Co. v. Hewitt, 55 Iowa, 505, 8 N. W. 340. 17 Still more analogous to the present case is one brought before the court of appeals of Now York, and stated in its opinion as follows: 'This action was commenced to restrain certain persons from proceeding to incorporate the village of North Tarrytown under the general act of the legislature authorizing the incorporation of villages. The persons made defendants are those who signed the notice required, and the officers of the town who would be inspectors of the election. A temporary injunction was obtained, which was dissolved, and the election was held, and a majority of votes determined in favor of the incorporation, and the proceedings for such incorporation have been perfected, village officers chosen, and the corporation is in operation. By a supplemental complaint these facts were set up, and judgment demanded that all these acts be declared null and void. The grounds of the action are that the statute was not complied with, and that the statute itself is unconstitutional. We do not deem it necessary to determine whether the action is maintainable as originally commenced. As it appeared upon the trial and is presented to us upon appeal, no effectual judgment can be rendered in it. The acts sought to be restrained have been consummated, and from a project to incorporate a village the village has become incorporated. The defendants are not necessary or proper parties to the action upon the facts disclosed at the trial. The village itself, or the trustees who are now exercising the franchise, are the necessary parties to the action, and an injunction restraining the defendants would have no practical effect upon the corporation. We do not deem it proper, therefore, to express an opinion upon the points presented involving the validity of the statute or the regularity of the proceedings under it, for the reason that a decision could not be made effectual by a judgment.' People v. Clark, 70 N. Y. 518. 18 In the case at bar the whole object of the bill was to secure a right to vote at the election, to be held, as the bill alleged, on the third Tuesday of August, 1895, of delegates to the constitutional convention of South Carolina. Before this appeal was taken by the plaintiff from the decree of the circuit court of appeals dismissing his bill, that date had passed; and, before the entry of the appeal in this court, the convention had assembled, pursuant to the statute of South Carolina of 1894, by which the convention had been called. 21 St. at Large S. C. pp. 802, 803. The election of the delegates and the assembling of the convention are public matters, to be taken notice of by the court, without formal plea or proof. The lower courts of the United States, and this court of appeal from their decisions, take judicial notice of the constitution and public laws of each state of the Union Owings v. Hull, 9 Pet. 607, 625; Lamar v. Micou, 112 U. S. 452, 474, 5 Sup. Ct. 221, and 114 U. S. 218, 223, 5 Sup. Ct. 857; Hanley v. Donoghue, 116 U. S. 1, 6, 6 Sup. Ct. 242; Bank v. Francklyn, 120 U. S. 747, 751, 7 Sup. Ct. 757; Gormley v. Bunyan, 138 U. S. 623, 11 Sup. Ct. 453; Martin v. Railroad Co., 151 U. S. 673, 678, 14 Sup. Ct. 533. Taking judicial notice of the constitution and laws of the state, this court must take judicial notice of the days of public general elections of members of the legislature, or of a convention to revise the fundamental law of the state, as well as of the times of the commencement of the sitting of those bodies, and of the dates when their acts take effect. 1 Greenl. Ev. § 6; Brown v. Piper, 91 U. S. 37, 42; Gardner v. The Collector, 6 Wall. 499; Hoyt v. Russell, 117 U. S. 401, 6 Sup. Ct. 881; Jones v. U. S., 137 U. S. 202, 216, 11 Sup. Ct. 80. 19 It is obvious, therefore, that, even if the bill could properly be held to present a case within the jurisdiction of the circuit court, no relief within the scope of the bill could now be granted. 20 Appeal dismissed, without costs to either party.

234 P.3d 299 (2010) Angela ERDMAN, Appellant, v. CHAPEL HILL PRESBYTERIAN CHURCH; Mark J. Toone, individually; and the marital community of Mark J. Toone and Jane Doe Toone, Respondents. No. 40247-5-II. Court of Appeals of Washington, Division 2. June 29, 2010. As Amended on Denial of Reconsideration July 28, 2010. *301 Robin Williams Phillips, Sean Vincent Small, Lasher Holzapfel Sperry & Ebberson PLLC, Seattle, WA, for Appellant. Elizabeth Pike Martin, Gordon Thomas Honeywell et al, William A. Coats, Daniel C. Montopoli, Attorneys at Law, Tacoma, WA, for Respondents. Elizabeth Pike Martin, Gordon Thomas Honeywell et al, Tacoma, WA, for Amicus Curiae on behalf of Presbytery of Olympia. HOUGHTON, J.P.T.[1] ¶ 1 Angela Erdman appeals the trial court's order dismissing her claims against Chapel Hill Presbyterian Church (Church) and its pastor, Mark Toone. She argues that the trial court erred in limiting discovery and in granting summary judgment. She also argues that RCW 49.60.040(11), the religious employer exemption under chapter 49.60 RCW, the Washington Law against Discrimination (WLAD), violates the state and federal constitutions. We affirm in part, reverse in part, and remand for further proceedings. FACTS ¶ 2 In 2003, Erdman became a Church elder. As an elder, she took ordination vows *302 in which she agreed to the Church's dispute resolution and disciplinary procedures. ¶ 3 In 2005, the Church hired Erdman as its Executive for Stewardship. The Church's job description for this position sets forth duties such as assisting with the development of the Church's vision, goals, and strategies; providing strategic leadership; assisting with decisions about the Church's financial and development strategies and goals; and creating a major donor development plan for the Church. The position did not require candidates to be an elder or to belong to the Church. ¶ 4 According to Erdman, her job generally involved developing the Church's annual budget, including managing an accounting and finance team; managing a department "responsible for all "accounting, payroll, tax, pricing, and banking functions;" and providing business case analysis, reviews, reports, and income statements to the Church and its lenders. Clerk's Papers (CP) at 317. The Church did not authorize her to administer sacraments or to conduct religious services as part of her position. ¶ 5 This case arises from Erdman's belief that tours of religious and historical sites led by Toone, the Church's senior pastor, possibly jeopardized the Church's tax exempt status. In September 2007, Erdman asked Toone to discuss her concerns about the tours. He assured her that the tours comported with the Church's mission and that many clergy followed this common ministry practice. He told her that he had also read documents she supplied regarding the issue and had discussed the matter with his accountant, who advised that the tours did not threaten the Church's tax exempt status. ¶ 6 On October 16, 2007, Toone sent Erdman an email stating that discussions between his and the Church's accountant assured him that the tours were proper and that he wanted to "close the loop" on the issue. CP (filed Oct. 28, 2009) at 829. Erdman responded twice, requesting Toone meet with her to discuss the tours. ¶ 7 On October 17, Toone met with Erdman. According to her, Toone stormed into her office; slammed the door; and proceeded to harass, physically intimidate, and verbally abuse her for 25 minutes.[2] Toone told her that the tours were proper, that her continued questioning was insubordination, and that she had unfairly impugned his reputation. That same day, she notified the Church's human resource director that she would not return to work in the near future. She also submitted a written complaint against Toone to the Church's human resource director.[3] On October 29, she took formal medical leave. ¶ 8 To resolve the dispute, Toone suspended all promotional activity for an upcoming tour and agreed to turn the matter over to the Church's governing body, the Session. A Session Committee, eventually comprising of five Church elders, met with Erdman to hear her concerns, review the tours, and address the interpersonal issues between her and Toone. ¶ 9 On November 30, Erdman contacted the Church, stating that her doctor had cleared her to return to work. The Church responded by placing her on administrative leave with pay, pending the Session Committee's investigation. In December, before the Session Committee completed its investigation, Erdman filed a grievance against Toone with the Presbytery of Olympia (Presbytery), the regional governing body of the Presbyterian Church. She based her grievance on her interpretation of the tour issue and on Toone's physical intimidation; verbal abuse; and threats about her job, including placing her on administrative leave. ¶ 10 On December 27, the Session Committee issued a report concluding that Toone *303 properly conducted his tours and that he did not harass or intimidate Erdman. The Session Committee also concluded that Erdman's implied threats through her attorney, false statements, and dissemination of disparaging emails throughout the investigation violated her ordination vows and the Church's scriptural teachings. Based on the Session Committee's conclusions and recommendation, the Church terminated Erdman's employment on December 31. ¶ 11 In January 2008, Erdman resubmitted her grievance to the Presbytery using its proper Form No. 26. In her Form No. 26 grievance, she accused Toone of violating scripture and Church law in (1) leading the tours, (2) physically intimidating her, (3) verbally abusing and harassing her, and (4) retaliating against her. Although in her Form No. 26 grievance, she did not set forth specific allegations against the Church, she claimed that Toone worked with the Session to prevent "full disclosure of truth" regarding the tours and that "significant portions" of the Session Committee's report bore "false witness and distortion of truth." CP (filed Oct. 28, 2009) at 845-46. ¶ 12 In response to Erdman's Form No. 26 grievance, the Presbytery appointed an Investigative Committee. After reviewing the matter, the Investigative Committee concluded that Erdman could not substantiate her allegations and declined to "fil[e] charges" against Toone. CP (filed Oct. 28, 2009) at 848. The Presbyterian Church's Book of Order (2007-2009) reserved Erdman's right to appeal the Investigative Committee's decision. ¶ 13 Erdman did not appeal. Instead, she sued Toone[4] and the Church. Toone and the Church moved for summary judgment. In response, Erdman amended her complaint, raising state law claims based on (1) negligent retention, (2) negligent supervision, (3) violations of the WLAD, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) wrongful discharge, (7) wrongful termination in violation of public policy, (8) retaliation, and (9) wrongful withholding of wages. Her amended complaint also raised federal law claims under Title VII of the Civil Rights Act of 1964 based on (1) religious and sexual discrimination, (2) harassment, (3) hostile work environment, and (4) retaliation. 42 U.S.C. § 2000e-2(a)(1). ¶ 14 Before the trial court ruled on the summary judgment motion, Erdman moved to compel the deposition of an Investigative Committee member and production of that Committee's investigation documents. The Church, Toone, and the Presbytery objected, arguing that granting the motions to compel would interfere with the Church's constitutionally protected authority to resolve Church discipline matters in ecclesiastical tribunals.[5] ¶ 15 The trial court reviewed the Investigative Committee's documents in camera.[6] It found that the First Amendment protected the Investigative Committee's thought processes contained in the documents and that Erdman had failed to demonstrate the required necessity for discovery. Although the trial court denied Erdman's motion to compel production of the documents, it granted her motion to compel the deposition of an Investigative Committee member. In doing so, it noted that no inquiry could be made into the Investigative Committee's thought processes. The trial court also found that the documents established that the Investigative Committee had considered each of Erdman's Form No. 26 grievance allegations. ¶ 16 After the deposition was taken, the Church and Toone renewed their motion for summary judgment. They argued that Erdman was a pastor and the ministerial *304 exception[7] applied depriving the trial court of jurisdiction to resolve disputes involving the relationship between the Church and its ministers. They further argued that the WLAD exempts religious organizations from its prohibitions. ¶ 17 After hearing argument, the trial court stated that it lacked sufficient facts to decide whether Erdman was a minister and declined to rule in the defendant's favor on the ministerial exception.[8] It further dismissed Erdman's intentional infliction of emotional distress (outrage) claims because she failed to meet the relevant legal standards. ¶ 18 Relying on the Division One decision in Elvig v. Ackles, 123 Wash.App. 491, 98 P.3d 524 (2004), the trial court also addressed the viability of certain claims under the ecclesiastical abstention doctrine.[9] It dismissed all claims that were based on facts that had been set forth in Erdman's Form No. 26 grievance. The trial court stated that "the decisions made by the [ecclesiastical] tribunal and the matters decided by the tribunal, claims based on those facts are barred." Verbatim Transcript of Proceedings at 25. ¶ 19 As a result, the trial court dismissed Erdman's negligent retention, negligent supervision, wrongful discharge, wrongful termination in violation of public policy, retaliation, negligent infliction of emotional distress, and federal law claims that were based on facts set forth in the grievance. It declined to dismiss her retaliation, negligent infliction of emotional distress, and willful withholding of wages claims that were not based on facts raised in her Form No. 26 grievance. ¶ 20 After Erdman voluntarily dismissed her remaining claims, she sought direct review in our Supreme Court. That court declined review and transferred the matter to us. ANALYSIS Motions to Compel Discovery ¶ 21 Erdman first contends that the trial court erred in denying her motion to compel production of documents. She also appeals its limitations on deposition questioning of an Investigative Committee member. ¶ 22 We review a trial court's discovery rulings under an abuse of discretion standard. T.S. v. Boy Scouts of Am., 157 Wash.2d 416, 423, 138 P.3d 1053 (2006). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. T.S., 157 Wash.2d at 423, 138 P.3d 1053. ¶ 23 Without citation to authority or to a record, Erdman argues that the trial court erred by excluding Investigative Committee documents reviewed in camera from discovery and by partially relying on those documents in granting summary judgment. We will not review this claimed error because Erdman failed to provide authority supporting her argument or to secure these documents for our review. See RAP 9.2(b) (appellant bears the burden of perfecting the record so that the reviewing court has before it all of the evidence relevant to the issue and matters not in the record will not be considered); RAP 10.3(a)(6) (parties must provide citation to authority supporting their arguments). *305 ¶ 24 Erdman also argues that the trial court improperly limited discovery through deposition testimony. We disagree. ¶ 25 The trial court foreclosed inquiry into the Investigative Committee's thought processes during discovery. We note that Erdman based her claims before the Committee entirely on scripture violations. Because inquiries into "the mind of the church" create an unconstitutional governmental entanglement with the church, the trial court did not abuse its discretion and Erdman's argument fails. Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir.1985) (subjecting church decisions involving spiritual functions to the "full panoply of legal process" violates the First Amendment). Ecclesiastical Abstention ¶ 26 Erdman next contends that the trial court erred in granting partial summary judgment based on ecclesiastical abstention. She asserts that it should not have dismissed her claims that were based on facts set forth in the Form No. 26 grievance because her claims involve secular issues and thus the Investigative Committee's decision does not bind civil courts. ¶ 27 We review an order granting summary judgment de novo. Campbell v. Ticor Title Ins. Co., 166 Wash.2d 466, 470, 209 P.3d 859 (2009). When reviewing a summary judgment order, we take the evidence in a light most favorable to the nonmoving party. Herron v. Tribune Publ'g Co., 108 Wash.2d 162, 170, 736 P.2d 249 (1987). A trial court properly grants summary judgment when no genuine issues of material fact preclude it. CR 56(c). ¶ 28 The trial court relied on Division One's Elvig opinion, 123 Wash.App. at 491, 98 P.3d 524, as authority compelling it to dismiss all of Erdman's claims.[10] In Elvig, an associate minister filed sexual misconduct complaints with the church about its pastor. Elvig, 123 Wash.App. at 493-94, 98 P.3d 524. An investigative committee conducted an inquiry and decided not to act against the pastor. Elvig, 123 Wash.App. at 494, 98 P.3d 524. Elvig appealed to the Permanent Judicial Commission, the Presbytery's highest adjudicatory body, and it affirmed the decision. Elvig, 123 Wash.App. at 494, 98 P.3d 524. Elvig then brought numerous claims, including sexual harassment, retaliation, and negligent supervision against the church and its pastor in civil court. Elvig, 123 Wash. App. at 495, 98 P.3d 524. The trial court granted summary judgment in favor of the church and its pastor and dismissed all her claims except one, which she then voluntarily dismissed. Elvig, 123 Wash.App. at 495, 98 P.3d 524. ¶ 29 In affirming dismissal of Elvig's claims on appeal, Division One noted that if the church accused of wrongdoing is a member of a hierarchically-organized church that has ecclesiastical judicial tribunals, civil courts must defer to the highest church tribunal's resolution of the matter, despite the fact that the dispute could be resolved by a civil court. Elvig, 123 Wash.App. at 496, 98 P.3d 524. It further stated: [A] civil court may adjudicate Elvig's claims only if: (1) liability would be based on secular conduct and would not require the court to interpret church doctrine or religious beliefs; (2) an ecclesiastical tribunal of a hierarchically-structured church has not already resolved the matter; and (3) Elvig's claims do not involve a church's ability to choose its ministers. 123 Wash.App. at 497, 98 P.3d 524 (footnote omitted). In setting forth this standard, the Elvig court relied on the United States Supreme Court decision in Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871). ¶ 30 In Watson, the Supreme Court explained the rationale for the ecclesiastical abstention doctrine: As regards its use in the matters we have been discussing it may very well be conceded that if the General Assembly of the Presbyterian Church should undertake to try one of its members for murder, and *306 punish him with death or imprisonment, its sentence would be of no validity in a civil court or anywhere else. Or if it should at the instance of one of its members entertain jurisdiction as between him and another member as to their individual right to property, real or personal, the right in no sense depending on ecclesiastical questions, its decision would be utterly disregarded by any civil court where it might be set up. And it might be said in a certain general sense very justly, that it was because the General Assembly had no jurisdiction of the case. Illustrations of this character could be multiplied in which the proposition of the Kentucky court would be strictly applicable. But it is a very different thing where a subject-matter of dispute, strictly and purely ecclesiastical in its character,—a matter over which the civil courts exercise no jurisdiction,—a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,— becomes the subject of its action. 80 U.S. at 732-33 (emphasis added). ¶ 31 Thus, the United States Supreme Court has interpreted the First Amendment to mandate that "civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical [structure] on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law" but not necessarily as to matters that fall outside these parameters. Serbian Eastern Orthodox Diocese for United States of Am. and Canada v. Milivojevich, 426 U.S. 696, 713, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). Washington courts have adopted the same rule in the property dispute context. In Presbytery of Seattle, Inc. v. Rohrbaugh, 79 Wash.2d 367, 373, 485 P.2d 615 (1971), our Supreme Court stated: [W]here a right of property in an action before a civil court depends upon a question of doctrine, ecclesiastical law, rule or custom, or church government, and the question has been decided by the highest tribunal within the organization to which it has been carried, the civil court will accept that decision as conclusive. Therefore, both federal and Washington courts abstain from asserting jurisdiction over civil claims solely dependent on interpretation of religious scripture or doctrine. See Milivojevich, 426 U.S. at 709, 96 S.Ct. 2372 (resolution of property dispute depended on resolution of religious dispute over bishop's defrockment); Rohrbaugh, 79 Wash.2d at 373, 485 P.2d 615. ¶ 32 Essentially, ecclesiastical abstention serves the constitutional purpose of maintaining separation of church and state, as well as the practical purpose of leaving interpretation of ecclesiastical law to the expert ecclesiastical authorities. Watson, 80 U.S. at 728-29. But this abstention does not, as the Watson and Milivojevich courts noted, apply in all circumstances. ¶ 33 Here, Erdman's claims against Toone and the Church involve prima facie elements of civil tort law, not ecclesiastical law.[11] Accordingly, we review each of Erdman's claims to determine whether the trial court properly granted summary judgment. Negligent Infliction of Emotional Distress ¶ 34 Erdman contends that the trial court erred in dismissing her claims for negligent infliction of emotional distress against the Church.[12] We disagree. ¶ 35 As our Supreme Court has recognized, "[t]he utility of permitting employers to handle workplace disputes outweighs the risk of harm to employees who may exhibit symptoms of emotional distress as a result. The employers, not the courts, are in the best position to determine whether such [workplace] disputes should be resolved by employee counseling, discipline, transfers, terminations or no action at all. While *307 such actions undoubtedly are stressful to impacted employees, the courts cannot guarantee a stress-free workplace." Snyder v. Med. Serv. Corp., 145 Wash.2d 233, 245, 35 P.3d 1158 (2001) (quoting Bishop v. State, 77 Wash.App. 228, 234, 889 P.2d 959 (1995)). Therefore, employer disciplinary decisions in workplace personality disputes may not result in liability for negligent infliction of emotional distress. Snyder, 145 Wash.2d at 245-46, 35 P.3d 1158. ¶ 36 Here, the Session Committee investigated a dispute between Erdman and Toone. The Session Committee ultimately recommended termination based on the evaluation of her actions. Such an employment decision does not give rise to a negligent infliction claim against the Church. Therefore, the trial court properly dismissed Erdman's claims against the Church. ¶ 37 Erdman further contends that the trial court erred in dismissing her claims for Toone's negligent infliction of emotional distress based on his abusive behavior toward her. We agree. ¶ 38 As we discussed above, the ecclesiastical abstention doctrine did not bar such a claim against him. Here, this claim survives summary judgment. Negligent Supervision And Retention ¶ 39 Erdman further contends that the trial court erred in dismissing her negligent retention and supervision claims against the Church based on its alleged failure to take action against its employee for inappropriate behavior and harassment. In analyzing her argument, we must determine whether allowing such a claim to proceed would violate the Free Exercise and Establishment Clauses of the First Amendment.[13] ¶ 40 State action, when applied to a church's religiously motivated activities, raises concerns under the First Amendment. Paul v. Watchtower Bible and Tract Soc'y of New York, Inc., 819 F.2d 875, 880 (9th Cir. 1987). The application of state laws, including common law tort rules, constitutes state action. Paul, 819 F.2d at 880. For example, the Free Exercise Clause prevents civil courts from intruding into ecclesiastical matters or interfering with governance of church affairs. Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 947 (9th Cir.1999). ¶ 41 Similarly, the Establishment Clause prohibits "`excessive government entanglement with religion.'" Bollard, 196 F.3d at 948 (quoting Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). Entanglement can take both substantive and procedural forms. Bollard, 196 F.3d at 948-49. Substantive entanglement can result, for example, from a civil court placing itself in the position of evaluating "`competing opinions on religious subjects.'" Bollard, 196 F.3d at 949 (quoting Equal Employment Opportunity Comm'n v. Catholic Univ. of Am., 83 F.3d 455, 465 (D.C.Cir.1996)). Procedural entanglement can result from "a protracted legal process pitting church and state as adversaries," especially when it would subject a church to "the full panoply of legal process designed to probe the mind of the church" in making religiously motivated decisions. Bollard, 196 F.3d at 949 (quoting Rayburn, 772 F.2d at 1171). The greatest risk of procedural entanglement exists when a substantive entanglement is at issue. Bollard, 196 F.3d at 949. ¶ 42 The Washington Supreme Court has stated that, in general, "[t]he First Amendment does not provide churches with absolute immunity to engage in tortious conduct. So long as liability is predicated on secular conduct and does not involve the interpretation of church doctrine or religious beliefs, it does not offend constitutional principles." C.J.C. v. Corp. of the Catholic Bishop of Yakima, 138 Wash.2d 699, 728, 985 P.2d 262 (1999). ¶ 43 In C.J.C., for example, the court concluded that, under the circumstances, a church could owe a duty of reasonable care to prevent harm intentionally inflicted on children by a church worker. 138 Wash.2d *308 at 720, 727-28, 985 P.2d 262. Likewise, as the Ninth Circuit observed, a "generalized and diffuse concern for church autonomy, without more," did not bar imposing tortious liability on a church for sexual harassment perpetuated by a minister against another employee. Bollard, 196 F.3d at 948. ¶ 44 The Ninth Circuit offers an instructive analysis in Bollard. In its Free Exercise Clause analysis, it noted that, because the defendant condemned the sexual harassment alleged by the plaintiff as inconsistent with its beliefs, allowing the suit to proceed would not significantly impact its religious beliefs or doctrines. Bollard, 196 F.3d at 947. Further, it noted that the Free Exercise Clause ministerial exception did not apply even when a minister was the perpetrator of harassment because "the [defendant] most certainly [did] not claim that allowing harassment to continue unrectified is a method of choosing [its] clergy."[14]Bollard, 196 F.3d at 947. ¶ 45 Likewise, in its Establishment Clause analysis, the Bollard court reasoned that substantive entanglement was not at issue based on its Free Exercise Clause analysis. 196 F.3d at 949. And it reasoned that allowing the suit to proceed would involve only a limited inquiry into "the nature and severity of the harassment and what measures, if any, were taken by the Jesuits" to exercise reasonable care to prevent or correct it. Bollard, 196 F.3d at 950. Thus, it required the jury to make only secular judgments, not evaluate religious doctrine or the reasonableness of the [defendant's] religious practices. Bollard, 196 F.3d at 950. Therefore, it concluded that the procedural entanglement in allowing the suit to proceed did not rise to a level violating the Establishment Clause. Bollard, 196 F.3d at 950. ¶ 46 Analyzing this case under Bollard, we first note that the church has not offered a religious justification for Toone's alleged tortious acts. Instead, it has denied that any misconduct occurred and argues that both the ministerial exception and ecclesiastical abstention bar consideration of Erdman's claims. Second, in its employee handbook, the Church specifically recognizes its prohibition against sexual harassment. Third, the Church's Book of Order states that the Session possesses responsibility "to provide for the administration of the program of the church, including ... fair employment practices." CP at 831. Thus, the Church's employment policies and church doctrine prohibit sexual harassment. Fourth, Erdman's negligent supervision and retention claims and the Church's potential defenses involve a limited, secular inquiry similar to the plaintiff's claims and potential defenses under Bollard.[15] ¶ 47 The First Amendment does not bar Erdman's negligent supervision and retention claims against the Church.[16] Thus, we remand for further proceedings. *309 Title VII Claims ¶ 48 Erdman also argues that the trial court erred in dismissing her federal Title VII claims. She raised Title VII claims of discrimination, harassment, hostile work environment, and retaliation based on her gender and her religious beliefs. ¶ 49 We initially note that Title VII allows religious employers to discriminate based on religion. See 42 U.S.C. § 2000e-1(a). Further, there is no individual liability under Title VII. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003). Thus, Erdman's Title VII claims based on religious discrimination or harassment fail as a matter of law. ¶ 50 Nevertheless, her other Title VII claims against the Church do not fail. As the Bollard court held that the First Amendment did not bar the plaintiff's Title VII claims based on sexual harassment, they are similarly not barred here. 196 F.3d at 948, 950. Likewise, the Ninth Circuit has held that the First Amendment does not bar Title VII gender discrimination claims against religious employers that prohibit such discrimination, and it does not bar retaliation claims brought by non-ministerial employees. Equal Employment Opportunity Comm'n v. Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1279, 1281 (9th Cir.1982), abrogated as recognized by American Friends Service Committee Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991).[17] Therefore, we remand for further proceedings. Washington Law Against Discrimination ¶ 51 Erdman further contends that the trial court erred in dismissing her claims under the WLAD due to its non-profit religious employer exemption, RCW 49.60.040(11). She also asserts that the statute is unconstitutional. We begin with the constitutionality argument. ¶ 52 We presume the constitutionality of RCW 49.60.040(11), which exempts non-profit religious employers from the WLAD. See City of Bellevue v. Lee, 166 Wash.2d 581, 585, 210 P.3d 1011 (2009). The statute provides: "Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit. RCW 49.60.040(11). ¶ 53 Erdman raises two constitutional arguments. First, she asserts that the statute violates article I, section 12, the privileges and immunities clause of the Washington Constitution. Second, she asserts that the statute violates the equal protection clause of the federal constitution. *310 ¶ 54 Initially, we note that Erdman cites no relevant authority regarding her article I, section 12 argument. She cites three cases: Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 280 n. 9, 285, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), Grant County Fire Protection Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 813, 83 P.3d 419 (2004), and Duranceau v. City of Tacoma, 27 Wash.App. 777, 620 P.2d 533 (1980). Piper and Grant County establish only the existence of a fundamental right to pursue an occupation. Furthermore, our Supreme Court also has rejected the applicability of Duranceau and the proposition that the religious employer exemption is governmental interference with the fundamental right to pursue an occupation in violation of article I, section 12. Farnam v. CRISTA Ministries, 116 Wash.2d 659, 680-81, 807 P.2d 830 (1991). Thus, we do not further discuss this argument. RAP 10.3(a)(6). ¶ 55 Likewise, in Farnam, our Supreme Court noted that it has often considered the Washington constitution's privileges and immunities clause and the federal constitution's equal protection clause as one issue. 116 Wash.2d at 681, 807 P.2d 830. It observed that the United States Supreme Court reviewed and upheld the federal counterpart to Washington's religious employer exemption under a rational basis standard because the exemption created employer classes based on religion and provided a "uniform benefit to all religions" rationally related to the "legitimate governmental purpose" of prohibiting significant government interference with the free exercise of religion. Farnam, 116 Wash.2d at 681, 807 P.2d 830 (citing Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 339, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987)). Thus, we may infer from our Supreme Court's observations in Farnam that the WLAD's religious employer exemption would be subject to and would survive a rational basis review under the federal equal protection clause. Having rejected Erdman's constitutional arguments, we turn to reviewing the statute's application. ¶ 56 Erdman brought claims against the Church under the WLAD based on sexual and religious harassment and retaliation for reporting this harassment. She also brought common law claims based on wrongful termination and discharge and retaliation for reporting this harassment and her belief that Toone's actions violated tax laws.[18] The plain language of RCW 49.60.040(11) bars her harassment and wrongful discharge claims under the WLAD and the trial court properly dismissed them. ¶ 57 Furthermore, Erdman's common law claims for retaliation,[19] wrongful termination, and wrongful discharge fall under the tort of wrongful discharge in violation of public policy. Claimants must demonstrate the existence of a clearly mandated public policy as part of establishing a wrongful discharge claim. Hubbard v. Spokane County, 146 Wash.2d 699, 707, 50 P.3d 602 (2002). Article I, section 11 of the Washington Constitution embodies this state's public policy of absolutely protecting "freedom of conscience in all matters of religious sentiment, belief and worship." The Church asserts that it fired Erdman for scripture violations. Thus, the trial court properly dismissed Erdman's common law employment claims based on reporting Toone's harassment. Conclusion ¶ 58 We affirm the trial court's discovery rulings. We further affirm the trial court's *311 order granting summary judgment and dismissing Erdman's common law claims against the Church for negligent infliction of emotional distress, wrongful discharge, retaliation, and wrongful termination in violation of public policy. ¶ 59 We also affirm the trial court's order granting summary judgment and dismissing Erdman's WLAD claims for harassment and wrongful discharge. ¶ 60 We reverse the trial court's grant of summary judgment on her negligent infliction of emotional distress claim against Toone. ¶ 61 We hold that the ecclesiastical abstention doctrine does not bar Erdman's remaining claims. Thus, we reverse the trial court's order granting summary judgment on that basis. ¶ 62 We further hold that the First Amendment does not bar her negligent supervision and retention and Title VII claims against the Church and, therefore, we reverse the trial court's order granting summary judgment on that basis. ¶ 63 Affirmed in part, reversed in part, and remanded for further proceedings.[20] We concur: ARMSTRONG, J., and PENOYAR, C.J. NOTES [1] Judge Houghton is serving as judge pro tempore of the Court of Appeals, Division II under RCW 2.06.150. [2] According to the Church's human resources director, since 1996, 15 other female church employees had made complaints about Toone's behavior. She did not recall the specific details of those complaints because most of the women said they felt too threatened by Toone to file them in written form. [3] The Church's employee handbook specifically prohibits sexual harassment. Additionally, the Church's Book of Order (2007-2009) states that its Session possesses responsibility "to provide for the administration of the program of the church, including ... fair employment practices." CP at 831. [4] Although Erdman sued Mark and Jane Doe Toone, for clarity we refer to Mark Toone's actions in this opinion. [5] The Presbytery made a special appearance below for purposes of objecting to a subpoena Erdman sought to enforce against it. It was not a party below. It has submitted an amicus curiae brief on appeal. [6] The record before us does not disclose what the trial court reviewed. The better practice for trial counsel would have been to move to seal the documents the trial court reviewed in camera, thus allowing for consideration on appeal. [7] The ministerial exception, precluding civil court review, derives from the Free Exercise and Establishment Clauses of the First Amendment. It serves to protect the relationship between religious organizations and their ministers from unconstitutional government interference. Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 945 (9th Cir.1999). But the exception does not apply to employees of a religious institution if they are not serving in a ministerial capacity. Bollard, 196 F.3d at 947. In Alcazar v. Corp. of the Catholic Archbishop, 598 F.3d 668, 676 (9th Cir.2010), the Ninth Circuit sets forth a three-part test for determining whether the exception applies. [8] Neither the record before the trial court nor before us adequately demonstrates that Erdman's claims would fail under the ministerial exception. Therefore, on remand, the trial court may consider this exception as further fleshed out by the parties. [9] The ecclesiastical abstention doctrine applies and bars civil court jurisdiction where the character of the dispute's subject matter is purely ecclesiastical. Watson v. Jones, 80 U.S. (13 Wall.) 679, 733, 20 L.Ed. 666 (1871). [10] Division One recently addressed the ecclesiastical abstention doctrine again in Rentz v. Werner, No. 62848-8-I, 2010 WL 2252529 (Wash.Ct.App. June 7, 2010). This case does not affect our analysis. [11] We recognize Toone and the Church may have possible defenses under the Free Exercise and Establishment Clauses. [12] As we already described, Erdman also voluntarily dismissed her negligent infliction of emotional distress claims based on facts not raised in her Form No. 26 grievance. [13] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I, cl. 1. [14] As the Ninth Circuit observed, "The Free Exercise Clause rationale for protecting a church's personnel decisions concerning its ministers is the necessity of allowing the church to choose its representatives using whatever criteria it deems relevant. Bollard, 196 F.3d at 947. Because no protected-choice rationale was present under the circumstances, allowing the plaintiff's claims to proceed did not intrude on church autonomy any more than "allowing parishioners' civil suits against a church for the negligent supervision of ministers who have subjected them to inappropriate sexual behavior." Bollard, 196 F.3d at 947-48. [15] In Bollard, the Ninth Circuit also noted that, because the plaintiff sought damages as his sole remedy, there was no danger of a remedy requiring continuing court action that would result in excessive entanglement with religion. 196 F.3d at 950. Here, Erdman also sought injunctive relief based only on the Church's discriminatory employment practices. We caution the trial court that should any of Erdman's claims prevail on remand, such injunctive relief would likely violate the Establishment Clause. [16] In its amicus brief, the Presbytery cites Germain v. Pullman Baptist Church, 96 Wash.App. 826, 980 P.2d 809 (1999), contending that a secular court's review of these claims would result in impermissible government entanglement with religion in violation of the Establishment Clause. Amicus Br. at 9. In Germain, Division Three, specifically noting that it was not deciding "whether the First Amendment forecloses all negligent supervision claims against churches based on the conduct of their ministers," held that "[t]he determination of whether to impose liability on a church where [the entire congregation held authority to terminate its pastor] would require the court to consider and interpret the church's laws and constitution," thus violating the First Amendment. Germain, 96 Wash.App. at 836, 837, 980 P.2d 809. Even assuming we agreed with the reasoning in Germain, the record in this case does not indicate that the church's congregation possesses such diffuse authority to terminate the pastor. Therefore, here Germain does not apply. The Presbytery also contends that review of Erdman's claims would violate the greater protection afforded religious beliefs and practices under article I, section 11 of the Washington state constitution. But our Supreme Court has noted in the context of an article I, section 11 case that if a party does not provide constitutional analysis under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), then appellate courts will not analyze separate state constitutional grounds in a case. Open Door Baptist Church v. Clark County, 140 Wash.2d 143, 151, 995 P.2d 33 (2000). It further stated that a Gunwall analysis is still required, even when on-point case law exists where the legal principles are not firmly established. Open Door Baptist Church, 140 Wash.2d at 151 n. 6, 995 P.2d 33. Here, the Presbytery did not conduct an article I, section 11 analysis and this case presents unsettled legal principles. Therefore, we do not further discuss its article I, section 11 argument. [17] RCW 49.60.180 provides: It is an unfair practice for any employer: .... (3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability RCW 49.60.180 was amended in 2006 and 2007. For purposes of this opinion, those changes do not affect our analysis. RCW 49.60.210(1) prohibits employers from discharging employees who oppose practices prohibited by chapter 49.60 RCW. [18] See footnote 14. [19] Erdman argues that the Church retaliated against her by discharging her for "whistleblowing" regarding the possible negative tax consequences for Toone's tours. She fails to meet the standard that requires her to identify the specific public policy. Hubbard v. Spokane County, 146 Wash.2d 699, 707, 50 P.3d 602 (2002) (claimant must demonstrate the existence of a clearly mandated public policy). Erdman also appears to have pleaded a claim for common law retaliation in violation of public policy. Because we have considered this tort as a single, common law tort of "retaliation and wrongful discharge in violation of public policy," we do not analyze it separately. See Jenkins v. Palmer, 116 Wash.App. 671, 677, 66 P.3d 1119 (2003). [20] As we noted, Erdman did not appeal the trial court's dismissal of her intentional infliction of emotional distress claim and she voluntarily dismissed the portions of her retaliation, negligent infliction of emotional distress, and willful withholding of wages claims that were not based on facts raised in her Form No. 26 grievance.

387 So.2d 237 (1980) Robert Bryan SASSER, alias v. STATE. 4 Div. 783. Court of Criminal Appeals of Alabama. April 22, 1980. Rehearing Denied May 27, 1980. Michael Crespi, Headland, George H. Jones, Birmingham, for appellant. *238 Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee. LEIGH M. CLARK, Retired Circuit Judge. Appellant-defendant was tried on an indictment charging him with committing an assault with a deadly instrument to-wit, a rifle, upon Deputy Sheriff Bill Shaw while engaged in the active discharge of his lawful duty or duties. Defendant had pleaded not guilty and not guilty by reason of insanity. A jury found him guilty as charged in the indictment, and the court fixed his punishment at imprisonment for twelve years and sentenced him accordingly. The cardinal issue presented by appellant is as to the sufficiency of the evidence to support the verdict, which was raised in the trial court by written request for the general charge in favor of defendant, which the trial court refused, and by a motion for a new trial that the trial court overruled. The issue as to the sufficiency of the evidence is divided into two parts. One is whether there should have been a verdict, under the direction or instruction of the court, of not guilty, and the other as to whether there should have been a verdict, under the direction or instruction of the court, of not guilty by reason of insanity. There is no merit, in our opinion, in the first phase of the issue presented by appellant. According to the undisputed evidence, on the morning of December 31, 1978, defendant came to the apartment of Randy Cooper, located behind the Townline Motel Restaurant in Andalusia, Alabama, and told Mr. Cooper that "the sheriff or the law was after him. And, I [Mr. Cooper] had better not let them have him." About that time, approximately 6:30, there was a knock at the apartment door, and Mr. Cooper answered the knock and saw Deputy Sheriff Bill Shaw at the door, who asked if the defendant was there. The answer of Mr. Cooper was that "he was not there." Officer Shaw then left the apartment. Mr. Cooper then left his apartment to make a phone call and upon his return defendant had left. Missing from the apartment at that time was a .22 250 Remington rifle, owned by Mr. Cooper. The rifle was loaded "with five rounds." While in the apartment defendant drank five or six glasses of wine, from a bottle of wine he had with him. He stated while there that he was attempting to sell wine to the restaurant. About 11:30 on the same morning, according to the testimony of A. A. Joseph, who lived in an apartment at the Townline Motel, he saw defendant in front of the motel; at that time defendant had a rifle in his hand with a scope on it, which was established by the evidence to have been the rifle that had been removed from Mr. Cooper's apartment. Defendant was in the "grass area by the road" at the intersection of Highway 29 and another road in front of the motel. Defendant "would stop so often and point it [the rifle] down the road and look through the scope, aim it down the road." A "police car" was "down the road" at the time. Soon thereafter Mr. Joseph heard some shots fired; then defendant came in the restaurant with the rifle and told Mr. Joseph "to get out of it," which he did. Defendant told Mr. Joseph that if he let anyone into the restaurant, he would blow Mr. Joseph's "head off." Mr. Earl Windham, manager of the Townline Motel, testified that between 11:00 A.M. and 12:00 Noon on December 31, 1978, while he was in his office, he saw defendant out on an island of the by-pass at the intersection of Highway 29 in front of the motel, with a rifle in his hand. He heard a shot and looked again at defendant and saw him shoot the rifle three times. It looked "like he was shooting right down the highway." A truck drove up in front of the office, and people started getting out and running. Mr. Windham managed to get most of his customers back into their rooms in the motel. He heard sirens blowing. He saw defendant get in Mr. Windham's truck, place his hands on the dash and find the key; defendant then drove off in the truck and went south on Highway 29. Defendant had not been registered at the motel on that occasion. *239 Deputy Sheriff Bill Shaw testified that on the morning of December 31, 1978, he went to the Townline Motel with a warrant for the arrest of defendant. He went to Mr. Cooper's apartment and was informed by Mr. Cooper that defendant was not there. Deputy Shaw then returned to the jail. At approximately 11:30 A.M. he received a telephone call and returned in a "marked patrol unit" of the Covington County Sheriff's Department. Soon after driving through the intersection, a bullet came through the door of the automobile he was driving. He further testified: "Q. Where did it go after it came through the door? "A. It came through right above the arm rest and struck me there (indicating), in the leg or a fragment did. "Q. Anyway, something came through the door? "A. Yes. "Q. At that time, whereabouts on here were you, or your car, now? (indicating diagram) "A. Just at the intersection there, you show a loop, I was in between, right in that area there. "Q. Somewhere in this area here? (Mr. McGill indicating on the diagram). "A. Right. "Q. When this hit the car, what did you do, at that time? "A. I tried to push the accelerator through the floorboard. "Q. Which direction did you go? "A. Back down the by-pass, back toward Rose's. ". . . . "Q. All right. After you turned around and got out of the car, could you see Bobby Sasser? "A. I could. "Q. Where was he? "A. In the middle of the highway. "Q. Was he walking, running, or what was he doing? "A. Well, he was moving around, like shuffling, like with his feet. "Q. All right. And, at that time, what did you do? "A. Reached around and turned on the public address system on my radio and tried to talk to him. "Q. Did you talk to him? "A. I considered myself talking to him. "Q. What did you say? "A. I said, Bobby, this is Bill Shaw. You know me. Put your gun down. "Q. All right. What did he do, when you told him that? "A. I didn't get any response. ". . . . "Q. When did you next see him? "A. Let's see . . . When the truck was coming out from behind the motel. "Q. When the truck came out from behind the motel, what did you do? "A. I hollered at Trooper Fowler, motioned for him. He was below me and I motioned for him to come up this way." Deputy Shaw further testified that they proceeded to follow defendant in the truck, fired at him and caught up with him after defendant had wrecked the truck in which he was traveling. As to the phase of the issue presented by appellant pertaining to the question whether there should have been a verdict, on direction or instruction of the court, that defendant was not guilty by reason of insanity, we find that there is no substantial dispute in the evidence. Defendant's evidence on the question consisted of the testimony of Dr. Virupaksha Kothandapani, a staff psychologist at Searcy Hospital, Mount Vernon, Alabama, since 1976, who first observed and tested defendant at Searcy Hospital upon his admission there on October 26, 1976. He was admitted on a "probate commitment." He testified to extensive tests and treatment of defendant at that time and on the three other occasions of three other admissions to the Searcy Hospital, including the admission soon after he was arrested for the alleged crime in the instant case. He diagnosed appellant's illness as manic-depressive psychosis, manic type. During his lengthy testimony, he said, inter alia: *240 "Psychosis is essentially characterized by loss of contact with reality, and the person is not able to think critically when he is going through psychosis. And, he is not able to act adaptively and the loss of controls are there to prevent [present] problems about his functioning. In other words, he does not function effectively. The main element of psychosis is loss of touch with reality. "Q. Does that include the ability to distinguish between right and wrong? "A. The person suffering from psychosis will not be able to distinguish right from wrong. ". . . . "He is acting simply on the basis of his impulse, and he is likely to go and do things to suit his own thinking which could be delusional. The delusion can take the form of grandiosity, a feeling that he is somebody like Napoleon or that he is a general or something like that. ". . . . "That is what happens in the manic phase. The person suffering from mania or manic phase is likely to make judgments so irrational and unrealistic that a common man would be able to see that as crazy. ". . . . "Q. Now, Mr. Cook asked you during his cross-examination of it was possible that Bobby Sasser could have been acting violent on December thirty-first of last year, not because of his psychosis but because of other factors. Doctor, do you have a professional judgment as to whether it is probable that he was acting violent due to other factors, other than psychosis? "A. I have given some considerable thought to this, and my opinion is that he was manic during that episode, alleged episode. "Q. Is this sort of violence consistent with an ex-marine acting out his combat experience? "A. It fits very well with the psychological picture." Dr. William H. Rudder, a psychiatrist engaged in private practice in Mobile and practicing two days a week at the Searcy State Hospital, said that his diagnosis of defendant was "manic depressive illness, manic type." That diagnosis never changed. A part of his testimony was as follows: "Q. Doctor, do you have an opinion, based on your knowledge of this case, as to whether on December thirty-first, 1978, Bobby Sasser was insane? "A. I have an opinion, yes. "Q. All right. What is your opinion? "A. It is my opinion that he was insane at that time. ". . . . "Q. All right. Now, during the period of December thirty-first of 1978, until January the fifth 1979, in your opinion, could Mr. Sasser distinguish between right and wrong? "A. You want an opinion? "Q. Yes. "A. I do not think he could distinguish between right and wrong. "Q. On none of those days? "A. Well, you asked me, you know, if we are going to have a hypothetical question we are going to have to apply it all the way across. "Q. Okay. "A. I couldn't tell you that I think he could, because I don't. "Q. All right. That is your opinion. None of those times that he could distinguish between right and wrong? "A. I couldn't say that there is not a single moment, that all of that time that he wouldn't know the difference between right and wrong, but if the Court would let me, I would like to say that ... ". . . . "Q. In his mind, do you think that Bobby Sasser knew that this rifle would kill a man, if he shot the man with it and hit him in a vital spot? "A. I think that he would probably know that fact, but he probably wouldn't be able to correlate it and abstractly relate *241 it to a human being, being dead or hurt. ". . . . "Q. Now, on December the thirty-first, 1978, you testified, I believe, on cross-examination that it is possible that this act, this act of shooting off the gun like that could be the conduct of violence of just a violent nature. Is it probable that it was that rather than a manifestation of the manic phase, manic depressive psychosis? "A. Well, I have known this man now for three years. I think, it was highly probable that it was his illness." The evidence shows that while defendant was under treatment at Searcy Hospital his medication included Lithium, which at times would cause an improvement in his condition, such an improvement that he could be released from the hospital in custody, on one occasion, of his father and on another occasion of legal authorities. In addition to the testimony of Dr. Kothandapani and Dr. William H. Rudder, on the question of defendant's mental condition, there are more than eight hundred transcript pages, some of them typed on both sides, constituting the hospital record of defendant at Searcy Hospital. Much of it is repetitive. Our attention has been called to none that is inconsistent with constant diagnosis of manic-depressive psychosis, manic type. The record shows that to some extent this condition could be controlled and caused to improve by Lithium and other drugs, but the conclusion seems inescapable that during such times as defendant was not being properly medicated by the specific medicine prescribed, his condition would revert to manic-depressive psychosis, manic type, rendering defendant insane, suffering from a mental disease that would render him incapable of discernment between right and wrong. The beneficent effect of medication administered by physicians and nurses at Searcy Hospital is vivified by the fact that the trial court had determined that defendant should be evaluated as to his mental competence to stand trial on the indictment in the instant case, and other felonies, and had ordered his transfer to Searcy Hospital for that purpose and thereafter he was found to be mentally competent to stand trial. The report of Dr. Noble Harrison, Ph.D., Unit Director, Unit IV, of the Alabama Department of Mental Health, Searcy Hospital, on March 22, 1979, furnishes the most concise narrative of defendant's mental condition and treatment to be found in any part of the record. We quote it for a better ready understanding of defendant's mental condition and treatment: "Mr. Robert Sasser is a 31 year old white male from Covington County who was Probate Court Committed to Searcy Hospital on 1-5-79. In addition to his Probate Commitment he has pending Circuit Court charges in Covington County, Alabama. This patient was first admitted to Searcy Hospital on Probate Court commitment from Tuscaloosa County on October 26, 1976. At that time he had reportedly taken his five year old daughter from his ex-wife's home and had planned to travel to New York with her, had attempted suicide and believed that very important figures in his home county were against him. He was determined to embark on a one man mission to correct all of the political corruption in his home county. He was very grandiose, very hyperactive and at that time, was given a psychiatric diagnosis of Manic Depressive Illness, Manic Type. He was discharged in substantial improvement on medication and was released from the hospital on a trial visit status on April 8, 1977 and was instructed to continue to take his medication which was Lithane 600 mg. t. i. d. and to report for regular serium lithium blood levels to help regulate the medication. He was eventually discharged from the hospital on October 8, 1977 after being on trial visit status for six months. His second admission was on January 5, 1978 again on a Probate Court commitment from Covington County, Ala. At that time he reportedly was threatening to harm other people in his community, was destroying property, and had destroyed various fixtures in the county jail where he had been held prior *242 to being sent to Searcy Hospital. He was seen several times by the consulting psychiatrist during this second hospitalization and was given a diagnosis of Manic Depressive Illness, Manic Type. He was placed on psychotrophic medication and after achieving a good remission on medication was again trial visited to the care of his father on April 3, 1978. He was again instructed to continue to take his medication including Eskalith, 600 mg. t. i. d., Artane, 5 mg. b. i. d. and Navane, 20 mg. q. i. d. It was recommended that he continue follow-up counseling sessions at the mental health center. The present admission followed a rather bizarre series of events, including his reportedly firing a rifle at the Deputy Sheriff and a car chase with the patient trying to evade the police in a pick-up truck and the police following him and Robert's subsequent wrecking of his pick-up truck. This incident followed reports that Robert's behavior had been deteriorating significantly since about Thanksgiving of 1978. He reportedly attempted to break out of jail whenever he was in the Covington County Jail and was brought to this hospital with instructions to supervise him very closely as he was a high elopement risk. On his first admission to the hospital, it was necessary to keep the patient in seclusion for a period of time due to his hyperactivity, grandiosity, and his aggressiveness and hostility on the ward. He was treated quite aggressively with psychotrophic medication including Navane and Lithium Carbonate and has resulted the medication and his management on the ward, his mental condition has quite substantially improved. At the present time, he has achieved a point in remission that the staff at the hospital is seriously considering recommending that he return to court to have his day. He is not considered an elopement risk at the present time, and he is not considered a threat to the safety of himself or others. Due to the fact that his mental condition and behavior has improved remarkably, it would be the recommendations of the staff at Searcy that with the court's permission he might be transferred from the maximum security unit to a section where less restrictive conditions for his treatment might be instituted. I would appreciate any response from the court in regard to this suggestion." Appellee relies heavily upon Code of Alabama 1975, § 15-16-2: "Every person over fourteen years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury." The cited section of the Code is to be found unchanged in each successive Code since 1896. Appellee also relies upon and quotes from Talbert v. State, 140 Ala. 96, 37 So. 78 (1904), in which it is said: ". . . That the defendant was `subject to spells of insanity from time to time,' raises no presumption in favor of the defendant that he was insane at the time of the commission of the alleged homicide, to the extent of shifting the burden to the state to prove his sanity.-Porter v. State, 135 Ala. 51, 56, 33 So. 694. . . ." The instant case is not one which can be accurately described as one of "spells of insanity." It is a case in which, according to the undisputed evidence, defendant was constantly insane except during periods in which his mental illness was controlled or made better by proper medication. The only evidence on the subject is to the effect that at the time of the alleged crime in the instant case he was not under proper medication and he was insane. It is true, as argued by appellee, that a jury may reject all expert testimony even though it is without conflict. Christian v. State, Ala., 351 So.2d 623 (1977). However, the rule stated in Christian, and some other rules stated therein, yield to an exception. As stated in Herbert v. State, Ala.Cr.App., 357 So.2d 683, 689, cert. denied, 357 So.2d 690 (1978): *243 "The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradicted. "`Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.' "Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934). "A review of the case law in this state reveals that on only two occasions has this exception been invoked by an appellate court and a judgment of conviction reversed because a jury verdict was contrary to the preponderance of the evidence on the issue of insanity. Those cases are Christian, supra; and Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954). Boyle, supra, although speaking to this issue, was reversed on other grounds. After careful consideration and long deliberation, we are of the opinion that the overwhelming evidence presented by the appellant has amply overcome the presumption of sanity." There could well be argument on both sides of any question as to the weight of the testimony of insanity in Herbert as compared with the weight of such testimony in the instant case, but in this case, as well as in Herbert, there is no evidence by which the testimony of two unimpeached and unimpeachable experts, to the effect that defendant was insane at the time of the alleged crime, may be disparaged. The history of the same mental illness and behavior, previous commitments of defendant as insane by reason of the same mental illness, his bizarre behavior that caused all persons concerned to treat defendant on the entire morning of the alleged crime as a crazy man, rather than as a sane criminal, are supportive of the testimony of the experts who took the stand. We repeat and apply here what was said in Herbert, supra, at 357 So.2d 690: "The appellant's conviction can only be sustained on the bare presumption of sanity prevailing as to every accused and afforded by statute. That presumption, being a presumption is rebuttable by clear and sufficient evidence reasonably satisfying the jury of the existence of the claimed mental incapacity. However, we consider the undisputed and substantial evidence as to the appellant's mental defectiveness to have overcome this presumption. "The verdict and judgment being contrary to the evidence and the legal principles applicable, this cause must be reversed for the failure of the trial judge to give the affirmative charge." The conclusions hereinabove reached make it unnecessary for us to attempt to resolve other issues presented by appellant. We are not unmindful of the fact that the result of a judgment of reversal in such a case as this leaves much to be desired in the field of a proper solution of the proliferating special problems pertaining to dangerous persons, who, after being held "not guilty by reason of insanity," are at some time thereafter released from treatment and custody and then rob and rape and kill again. Whatever the province of the judiciary as to such problems, it is definitely not the function of judges, either appellate or trial, in cases hinging upon whether one is guilty of a particular crime or not guilty by reason of insanity, to permit any such problem to sway them from the course that the law has set for them, which they themselves have uniformly declaimed as the course for triers of fact to follow. Speaking to the point nearly a half century ago, the Supreme Court of Alabama said: "Clearly the sole question in this connection was whether defendant was `not guilty by reason of insanity.' What might happen if he were sent to the insane asylum, instead of the penitentiary, should not have been thrown into the case to influence the verdict. "Maybe the law should provide some greater safeguards, such as a judicial inquiry, before persons found not guilty of murder by reason of insanity should be discharged from the hospital for the insane; but this should not be allowed to influence juries in trials like this. [Let us *244 now add, `or judges on appeal.']. State v. Johnson, 151 La. 625, 92 So. 139." Boyle v. State, 229 Ala. 212, 225-226, 154 So. 575, 587 (1934). The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby reversed and the cause remanded. REVERSED AND REMANDED. All the Judges concur, except DeCARLO, J., not sitting.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4325 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. QUINCY WILLIAMS, a/k/a Bandana, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:09-cr-00288-WDQ-19) Submitted: September 12, 2011 Decided: September 27, 2011 Before WILKINSON, MOTZ, and WYNN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. G. Godwin Oyewole, McLean, Virginia, for Appellant. Jonathan Biran, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Quincy Williams pled guilty pursuant to a plea agreement to conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d) (2006), and was sentenced to 121 months in prison. Counsel has filed an appeal pursuant to Anders v. California, 386 U.S. 738 (1967). In the Anders brief, counsel states that there are no meritorious grounds for appeal, but nonetheless asks this court to conduct an Anders review. Counsel has also moved for permission to withdraw from further representation of Williams. Williams has not filed a pro se supplemental brief, despite receiving notice of his right to do so. The Government moves to dismiss the appeal, in part, based on the appellate waiver in Williams’ plea agreement. We deny counsel’s motion to withdraw, dismiss the appeal in part, and affirm in part. A defendant may waive the right to appeal if that waiver is knowing and intelligent. See United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our independent review of the record supports the conclusion that Williams voluntarily and knowingly waived his right to appeal any sentence within or below an advisory Guidelines range resulting from an adjusted base offense level of thirty-one. Thus, we conclude that the waiver is valid and enforceable. 2  However, even a valid waiver does not waive all appellate claims. Specifically, a valid appeal waiver does not preclude a challenge to a sentence on the ground that it exceeds the statutory maximum or is based on a constitutionally impermissible factor such as race, arises from the denial of a motion to withdraw a guilty plea based on ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth Amendment right to counsel in proceedings following the guilty plea. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). Moreover, the appellate waiver in Williams’ plea agreement did not waive any claims Williams may have pertaining to his conviction or to a sentence calculated based on an adjusted base offense level greater than thirty-one. Williams raises no claims that fall outside the scope of his appellate waiver and does not oppose the Government’s motion. Thus, we grant the Government's motion to dismiss in part. Although we are charged under Anders with reviewing the record for unwaived error, we have reviewed the record in this case and have found no unwaived and meritorious issues for appeal. We therefore deny counsel’s motion to withdraw, dismiss the appeal in part and affirm in part. This court requires that counsel inform Williams, in writing, of his right to petition the Supreme Court of the United States for further review. If 3 Williams requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Williams. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. DISMISSED IN PART; AFFIRMED IN PART 4 

In the United States Court of Appeals For the Seventh Circuit No. 00-2190 C. James Youngs, Plaintiff-Appellant, v. Old Ben Coal Company, Defendant-Appellee. Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 97 C 148--Richard L. Young, Judge. Argued January 19, 2001--Decided March 15, 2001 Before Flaum, Chief Judge, and Posner and Ripple, Circuit Judges. Posner, Circuit Judge. C. James Youngs, the owner of a 400-acre tract of land on which the Old Ben Coal Company has strip- mining rights, brought this diversity suit (governed by Indiana law) against Old Ben for breach of contract, lost after a bench trial, and appeals. Old Ben caused the four oil wells on the land to be plugged, and later, having removed all the surface coal, ceased its coal-mining activities. Youngs seeks specific performance of what it claims to be Old Ben’s contractual obligation to restore the oil wells once Old Ben ceased its mining activities. Whether Youngs has such a right depends in the first instance on a series of contracts allocating rights in the tract in question. A fee simple in mineral-bearing land is actually a bundle of separate property rights, or as they are sometimes called "estates," and the rights can be owned by different persons. In 1949, the then owner of the entire fee simple leased to Bernard Bouchie the oil and gas estate in the land, that is, the right to extract oil and gas. The lessee was actually one of Bouchie’s predecessors, but that is one of a number of distracting and irrelevant details that we shall ignore in order to simplify our opinion. This 1949 lease is broadly worded and includes a grant to the lessee of "the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing" (that is, pipe). The estate itself, however, remained a part of the fee simple. In 1956, the fee simple, with the exception of the oil and gas estate, was sold to Youngs. The sale was expressly subject to the 1949 lease of oil and gas rights. In addition, the deed required the buyer, that is, Youngs, along with his successors and assigns, in the event that he or they took any oil wells "out of production," "to restore . . . said wells to production in substantially the condition that . . . they were in prior to taking . . . them out of production." In 1959 Youngs, whose fee-simple interest included the coal estate in the land, leased that estate, together with the coal estate in adjacent parcels owned by him, to Old Ben, subject to various encumbrances, including the 1949 oil lease and the restoration obligation in the 1956 deed. The 1959 lease expressly grants Old Ben the right to strip mine the property and hence to destroy the surface, destroy any structures (after due notice to their owner) on the surface, and destroy everything else down to the seam of coal to be mined, including any oil wells drilled pursuant to leases executed after this lease (that is, the 1959 coal lease). Youngs’s exploitation of any other mineral estates in the property was expressly subordinated to Old Ben’s rights under the lease. Youngs did not own the oil and gas estate in 1959, because it had been excepted from the grant to him of the fee simple in 1956. But he acquired that estate in 1975 and shortly afterwards sold the fee simple in the 400-acre tract to Old Ben, while reserving as his predecessor had done the oil and gas estate. The reservation was expressly subordinated to Old Ben’s rights under the 1959 coal lease. The upshot is that from 1975 on, Old Ben owned all the estates in the tract except the oil and gas estate, which remained in Youngs’s hands; and Bouchie was the lessee of that estate, operating the four oil wells. The production from the oil wells dwindled. No oil was produced after March 1989, and the last royalty payment, made by Bouchie to Youngs for 1989, was for only $155. The previous year, 1988, it had been $163, down from $3,941 in 1983. Old Ben wanted to strip mine the area occupied by the four wells, so in 1992, with the oil wells unused, it paid Bouchie, the lessee of the oil and gas estate under the 1949 lease, to remove the surface facilities (pumps, pipes, and storage tanks) and plug the wells. It then proceeded to strip mine the land formerly occupied by them. So far as appears, the price that Bouchie charged Old Ben for the removal did not include compensation for any loss of oil production. There was no such loss, because production had already ceased. The strip mining of the areas occupied by the wells was completed at some time prior to 1995, the year that Youngs discovered that the wells had been plugged and demanded that Old Ben restore them. Old Ben refused, precipitating this suit. An initial peculiarity about the suit is that the 1956 grant, by which Youngs acquired the 400-acre tract, required him to restore the oil wells after coal production ceased--yet the suit has him seeking to impose that obligation on Old Ben. The key date, however, from Youngs’s point of view, is 1975, when he acquired the oil and gas estate and therefore became the obligee under the restoration clause. The purpose of that clause in the 1956 grant was to obligate the owner of the other rights in the land, including most importantly the right to strip-mine coal, to restore the oil wells, for the benefit of the owner of the oil and gas estate when the interfering uses, such as strip mining, ceased, so that the production of oil could resume. In 1975 Youngs became the owner of the oil and gas estate and thus the beneficiary of the restoration obligation. He argues that Old Ben, as the coal operator, became the obligor, since both the coal lease, which was the original source of Old Ben’s rights, and the deed by which Old Ben acquired all the estates in the land except the oil and gas estate from Youngs in 1959, were expressly subject to the restoration obligation. There are several fallacies in this argument. The first is that it overlooks Bouchie’s rights. Youngs’s acquisition, first of the 400-acre tract (1956) and then of the oil and gas estate in the tract (1975), were subject to Bouchie’s preexisting rights conferred by the 1949 lease that he had obtained from the then owner of the oil and gas estate. Those rights, which later contracts to which Bouchie was not a party could not extinguish, included the right to demolish the oil wells with no obligation to restore them. So if when the oil wells ran dry Bouchie decided to demolish them Youngs could not object. But that is exactly what happened--when the oil wells ran dry, Bouchie decided to demolish them. True, he was persuaded to this decision by Old Ben’s money. Bouchie had no incentive to incur the expense of removing the wells, other than those parts that might have salvage value, and perhaps there were none; Old Ben did, to enable it to strip mine the land that the wells occupied. And so the stage was set for a mutually advantageous deal between Bouchie and Old Ben. We do not understand how Bouchie’s right to remove the wells could be thought conditional on his deciding to do so exclusively for his own purposes rather than at the behest of someone else, who wanted to use the land that the wells occupied. Nothing in the 1949 lease would have prevented Bouchie from assigning the lease to Old Ben, which could then have hired Bouchie or anyone else to do the actual removal. Youngs could not have blocked that transaction, and what difference can it make that instead of bothering with an assignment Bouchie and Old Ben contracted directly for the removal of the wells? Youngs argues that under Indiana law an oil and gas lease lapses after one year of nonproduction, which in the case of Bouchie’s lease would have been sometime early in 1989. The argument is unsound. After one year of nonproduction, the owner of the oil and gas estate can file a statement with the county recorder that the lease has expired. Ind. Code sec. 32-5-8-1; Wilson v. Elliott, 589 N.E.2d 259, 262 (Ill. App. 1992); Salmon v. Perez, 545 N.E.2d 21, 24 (Ill. App. 1989) ("the statute requires a one-year period of inactivity and a written request of the property owner before an oil and gas lease will become null and void"). But Youngs never did this. And so the lease was still in force in 1992 when Old Ben contracted with Bouchie for the removal of the wells. Even if the lease had terminated in 1989, Bouchie would have been entitled to a reasonable time within which to exercise his right under it to remove the wells, a right that by its nature persists after the expiration of the lease by reason of nonproduction--the lessee cannot reasonably be required to exercise his right of removal while the wells are still producing. The lease authorized Bouchie to remove fixtures, machinery, and casing "at any time," a standard phrase in so-called "removal of equipment clauses" and one that courts have interpreted as authorizing the lessee to remove the equipment before or after the lease expires, so long as the removal is done within a "reasonable time." Hardy v. Heeter, 96 N.E.2d 682, 684 (Ind. App. 1951); Smith v. Mesel, 84 N.E.2d 477 (Ind. App. 1949); Michaels v. Pontius, 137 N.E. 579 (Ind. App. 1922); 4 Eugene Kuntz, A Treatise on the Law of Oil and Gas sec. 50.3, p. 293 (1990). Since there appears to be no more recoverable oil, and Youngs had indicated no intentions with regard to the use of the land after the end of oil production and strip mining, three years might well have been a reasonable time, though that we need not decide. If the lease had terminated in 1989 and the wells had not been removed within a reasonable time thereafter, and if therefore they had been deemed abandoned and so had reverted to Youngs as the owner of the land to which they were affixed, Youngs might have a claim against Bouchie and Old Ben for having destroyed his fixtures. That is not the nature of his suit, but the issue of Bouchie’s rights comes in indirectly. The suit is based on Youngs’s express reservation in the 1959 coal lease of the right of restoration in the 1956 conveyance. It is on that reservation that Youngs builds his argument that even if Bouchie was entitled to remove the wells, Old Ben could not do anything directly or indirectly to bring about their removal because in the deed that it received from Youngs in 1959 it had acknowledged its obligation to restore the wells to their pristine condition when it finished mining the coal. But the 1959 conveyance, and any reservations in it, were subject to the 1949 lease. By virtue of that lease, Youngs could not prevent Bouchie from demolishing the wells without obligation to him until the lease was terminated, which did not happen, as we have seen; and that right of demolition would have been impaired had Bouchie been precluded from accepting Old Ben’s money to pay for the demolition. This result can be avoided, without reading the restoration clause out of the 1959 conveyance, by interpreting the clause to concern leases on other parcels covered by the conveyance of the coal estate to Old Ben (for remember that Youngs owned, and conveyed to Old Ben the coal estate in, land adjacent to the land subject to Bouchie’s oil lease) and future leases of oil rights on the 400-acre tract itself. Suppose that in 1960 Bouchie had surrendered his lease, and the owner of the oil and gas estate (which, remember, had been carved out from the 1959 transaction, and came into Youngs’s hands only in 1975) had granted another oil lease, say to X Drilling Company. Suppose that X had drilled several wells and produced oil, yielding royalties to the lessor. And suppose that later Old Ben, as the coal lessee, had paid X to remove the wells, as the coal lease of 1959 entitled it to do. If Old Ben then ceased mining the tract, it would be obligated to restore the wells. It wouldn’t matter if the lease to X had not incorporated the restoration clause or that Old Ben might have paid X to demolish the wells. Old Ben’s obligation to restore the wells under the restoration clause would depend only on its having ceased to mine for coal. It is true that this obligation would burden X, by making it less likely that X could shift the expense of demolishing the wells to someone else, namely Old Ben. But X would have acquired its lease with notice of the other encumbrances on the property, including the owner’s right to insist that his coal lessee restore any oil wells on the property to their pristine state when the lessee ceased mining. The terms of the lease would presumably have compensated X for the fact that this encumbrance might make the exercise of X’s right to remove its wells more costly than it otherwise would be. X would still be free to remove the wells at its own expense; it just would be less likely to be paid to do so by Old Ben. But Bouchie, having obtained his oil lease before the restoration clause entered the chain of title, did not hold the lease subject to the clause. He remained free by virtue of the priority of his lease to do anything he wanted with his oil wells--including accepting payment from Old Ben to demolish them. A conveyance of property is invalid to the extent the seller tries to convey an interest greater than he has. See, e.g., Ind. Code sec. 32-1-2-36; Crommelin v. Fain, 403 So.2d 177, 181 (Ala. 1981). Specifically, the conveyance of a fee simple does not extinguish an existing lease. Foertsch v. Schaus, 477 N.E.2d 566, 571 (Ind. App. 1985); Berman v. Sinclair Refining Co., 451 P.2d 742, 745 (Colo. 1969); Plastone Plastic Co. v. Whitman-Webb Realty Co., 176 So. 2d 27, 28 (Ala. 1965): Denco, Inc. v. Belk, 97 So. 2d 261, 265 (Fla. 1957). The restoration clause was subject to the earlier granted lease and could not give Youngs more rights than his grantor had. So far we have treated the issue of the enforceability of the restoration clause against Old Ben as an issue of general contract and property law. See, e.g., Reese Exploration, Inc. v. Williams Natural Gas, 983 F.2d 1514, 1518-19 (10th Cir. 1993); Federal Land Bank v. Texaco, Inc., 820 P.2d 1269, 1271 (Mont. 1991); Bi-County Properties v. Wampler, 378 N.E.2d 311, 314 (Ill. App. 1978). But it is also an issue of oil and gas law, which by defining property rights in these resources simplifies the interpretation of contracts involving them. As the district court pointed out, under the oil and gas law of Indiana (and generally) the oil and gas lessor retains the rights to the use of the surface of the land insofar as they can be exercised without interfering with the lessee’s op erations, a reversionary interest in any oil left over when the lease terminates, and a right to receive royalties on the oil produced under the lease. Foertsch v. Schaus, supra, 477 N.E.2d at 571; Carrigan v. Exxon Co. U.S.A., 877 F.2d 1237, 1242 (5th Cir. 1989); Krone v. Lacy, 97 N.W.2d 528, 533 (Neb. 1959); 3A W.L. Summers, The Law of Oil and Gas sec. 572, p. 8 (1958). Missing is any right to demand that the lessee leave his wells in working condition for the benefit of the lessor when the lease expires. In the absence of an express condition in the lease, that is not a right retained by the lessor when he grants an oil and gas lease. Hardy v. Heeter, supra, 96 N.E.2d at 684; Smith v. Mesel, supra, 84 N.E.2d at 478; Perry v. Acme Oil Co., 88 N.E. 859, 861 (Ind. App. 1909). This is one respect in which oil and gas law differs from standard property law; the default rule is that the fixtures belong to the lessee, not, as in the case of standard property law, to the lessor. And anyway there was an express right-to-remove clause, as we have seen. So when in 1956 the owner of the oil and gas estate in the 400-acre tract purported to reserve a right to demand restoration of any oil wells removed from the property, he was reserving a right that he did not have; it was not one of the rights he had retained in granting the 1949 oil lease. And so when Youngs obtained the oil and gas estate in 1975 he did not obtain a right to demand the restoration of oil wells on the property. The 1949 lease had given Bouchie carte blanche to deal with the oil wells. They were his to remove, abandon, sell, or demolish, as he wanted, subject only to a statutory duty to cap nonproducing wells. Ind. Code sec. 14-37- 8-1; Jarvis Drilling, Inc. v. Midwest Oil Producing Co., 626 N.E.2d 821, 826-28 (Ind. App. 1993). Youngs is attempting to enforce against Old Ben a right that belongs to Bouchie. Only if Bouchie had abandoned the wells to Youngs could Youngs have complained about Bouchie’s agreeing with Old Ben to demolish the wells. The principle of oil and gas law that defeats Youngs’s suit by denying that a right of restoration is a part of the oil and gas estate prevents the interference with a previous lease that we said would be caused if the lessor could, by a subsequent lease, deprive the previous lessee of the right to assign his right of removal. That is what Bouchie did in effect when he agreed with Old Ben to destroy the wells. There is still more that is wrong with Youngs’s claim. The restoration clause requires the restoration of the wells "to production." The implication is that there is still recoverable oil in the ground--otherwise there will be no production from the restored wells. The evidence is uncontradicted that these wells produced their last oil no later than March 1989; and production had been declining steadily for years. Maybe a few more drops could be squeezed out by heroic efforts, but production commensurate with the expense of restoring wells that have been completely demolished--all surface facilities and pipe removed and the wells themselves plugged with cement--was out of the question. Youngs claims that the issue of production is not before us, but he is wrong; Old Ben made it an issue in the district court, and Youngs never tried to present contrary evidence. Thus we can infer that the object of this suit is not to get Old Ben to restore the wells but to force Old Ben to pay its way out of the duty of restoration. Since the wells were no longer producing when they were destroyed, there is still another argument against Youngs: the obligation to restore is conditional on the wells’ having been taken out of production, and they were not. The exhaustion of the oil suggests a deeper objection to the suit, one that does not depend on the words "in production" or "out of production." The objection can be illustrated with the facts of the well-known case of Groves v. John Wunder Co., 286 N.W. 235 (Minn. 1939). The defendant as part of a larger deal with the plaintiff promised to level land owned by the latter, and broke his promise. But because the Great Depression had intervened between the making of the agreement and the defendant’s refusal to carry it out, the cost of leveling the land--$60,000--would have greatly exceeded the value of the land after it was leveled--$12,000. Nevertheless the plaintiff sued for, and won, the expense of leveling, on the theory that he had bargained for leveling come what may. The analogy to the present case is evident: Youngs is asking Old Ben to bear the cost of restoring wells that when restored will have no value. But Groves is not the law in Indiana. City of Anderson v. Salling Concrete Corp., 411 N.E.2d 728, 731-34 (Ind. App. 1980); see also Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (Okla. 1962); 3 E. Allan Farnsworth, Farnsworth on Contracts sec. 12.20c, p. 356 and nn. 17-18 (1990). Because the value of the plaintiff’s land had fallen, the breach of contract did not actually impose any loss on him, and the only proper remedy for a harmless breach is nominal damages. The effect of the award of damages was to shift from the owner of the land to the contractor a part of the risk of the fall in land values caused by the Depression. One expects the risk of a fall of the value of land to be borne by the owner of the land rather than by a contractor. It is the same here. Breach of a duty to restore the wells to their mint operating condition would impose no loss on the owner of the oil and gas estate in the land (Youngs), because there is no oil left in the ground and so no value to be obtained from oil wells. And one would expect the risk of the oil running out to be borne by the owner of the oil and gas estate, who has the reversionary interest in any oil that is left after the oil lease has terminated, rather than by a coal company. The owner of the oil and gas estate gains if there is oil left in the ground after the oil lease runs out, and so he should lose if there is no oil left. This case is actually worse for the plaintiff than Groves, because Youngs is seeking, but not wanting, specific performance. If he obtained the relief he is seeking, that would just be a prelude to a further negotiation with Old Ben. Youngs does not want nonproducing wells; he wants money to compensate him for a loss that he has not sustained, since the restoration of the wells would have value for him only if there were oil left in the ground. The essentially extortionate transaction, a source of transaction costs not offset by any social benefit, for which an order of specific performance would have set the stage is another compelling objection, though less to the claim underlying the suit than to the relief sought, the grant of which would be inequitable. Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 276 (7th Cir. 1992); Goldstick v. ICM Realty, 788 F.2d 456, 463 (7th Cir. 1986); Milbrew, Inc. v. Commissioner, 710 F.2d 1302, 1306-07 (7th Cir. 1983); Chicago & North Western Transportation Co. v. United States, 678 F.2d 665, 667- 68 (7th Cir. 1982). Were there a right of specific performance and to lost oil revenues because of the failure to restore the wells, then Youngs could obtain damages as well; but neither premise is supported. On multiple grounds, then, the district court was right to give judgment for Old Ben and dismiss the suit. Affirmed. 

740 S.W.2d 574 (1987) Willie Mitch BRAGG, Appellant, v. The STATE of Texas, Appellee. No. 01-87-00127-CR. Court of Appeals of Texas, Houston (1st Dist.). November 12, 1987. *575 James M. Seabolt, Houston, for appellant. John B. Holmes, Jr., Harris Co. Dist. Atty., Winston E. Cochran, Jr., Rob Kepple, Harris Co. Asst. Dist. Attys., Houston, for appellee. Before WARREN, COHEN and DUNN, JJ. OPINION DUNN, Justice. Appellant was convicted by the court for a violation of the Private Investigators and Private Security Agencies Act, a class A misdemeanor, Tex.Rev.Civ.Stat.Ann. art. 4413(29bb), sec. 13 (Vernon Supp.1987). The court assessed punishment at three days in jail with credit for two days served, and a $100 fine. Article 4413(29bb), section 13 reads: It shall be unlawful and punishable as provided in Section 44 of this Act for any person to engage in the business of, or perform any service as an investigations company, guard company, alarm systems company, armored car company, courier company, or guard dog company or to offer his services in such capacities or engage in any business or business activity required to be licensed by this Act unless he has obtained a license under the provisions of this Act. Appellant was charged with violating this statute when his guard company was employed to guard a roadway construction site, without his having obtained a license as required by the Act. Appellant contends that he was a "full time peace officer" at the time, and thus fell under one of the 18 exceptions to the application of the Act as spelled out in section 3(a), which reads: Exceptions Sec. 3(a) This act does not apply to: (3) a person who has full-time employment as a peace officer as defined by Article 2.12 Code of Criminal Procedure, 1965, who receives compensation for private employment on an individual or an independent contractor basis as a patrolman, guard, or watchman if such person is.... Appellant's three points of error all concern the section 3(a)(3) exception. Points of error one and two both challenge the trial court's overruling appellant's Motion to Quash Information. Point *576 of error one complains that the indictment was fundamentally defective for failure to allege a cause of action because the section 3(a)(3) exception of "a person who has full time employment as a peace officer" was not negated. In support of his argument, appellant relies on section 2.02 of the Texas Penal Code (Vernon 1974), McElroy v. State, 667 S.W.2d 856 (Tex.App.-Dallas 1984), aff'd, 720 S.W.2d 490 (Tex.Crim.App.1986). Section 2.02 requires the existence of an exception, spelled out in a specific way, to be negated in the charging instrument, and clearly exempts from its application any statute enacted prior to the effective date of the Penal Code [1974]. It is thus not applicable to article 4413(29bb), section 3, which was enacted in 1969. Appellant's reliance on the two McElroy decisions is also ill placed because while a majority of both courts voted to reverse the conviction, a majority failed to concur on the grounds that the indictment was fatally defective for failure to negate an exception to the offense charged. Furthermore, the placement and context of the exception in the statute at issue in McElroy differs significantly from our particular statute, and thus McElroy is distinguishable. McElroy, 667 S.W.2d at 864. We, therefore, must turn to the common law that existed prior to McElroy for our determination of whether failure to negate the exception in section 3 of the Act rendered the indictment fundamentally defective. The common law cited in McElroy, is that "where a penal statute embraces an exception which is part of the statute itself, or the exception appears with the enacting clause of the law, it is necessary for the State to negate such an exception in the indictment." Threlkeld v. State, 558 S.W. 2d 472, 473 (Tex.Crim.App.1977). It is necessary to refer for clarification to Baker v. State, 132 Tex.Crim. 527, 106 S.W.2d 308 (Tex.Crim.App.1937), the leading case on the issue that is cited by the Threlkeld court. If exceptions to a penal statute are placed in a separate section or article from the one defining the offense, or are not a necessary part of the definition or description of the offense, it is not necessary to negate such exceptions in the charging instrument. Baker, 106 S.W.2d at 311. The Private Investigators and Private Security Agencies Act, article 4413(29bb), is divided into four subchapters and includes some 50 sections. Section 3, containing the 18 exceptions to application of the Act, is in Subchapter A., a clearly separate section from section 13, defining the offense of failure to comply with the licensing requirements of the Act, in Subchapter C. Neither are the exceptions a necessary part of the definition nor description of the offense. Furthermore, it is unreasonable to expect an indictment to include negations of 18 situations to which the offense does not apply. We, therefore, find that the indictment was not fundamentally defective. Point of error one is overruled. In point of error two, appellant argues that the trial court erred in overruling his Motion to Quash Information because it was based upon a statute that was unconstitutionally vague on its face. Appellant contends that "full time," as utilized in the section 3(a)(3) exception, is not susceptible to universal interpretations so as to avoid arbitrary and capricious implementation; nor would it avoid placing a citizen in a position of guessing whether or not he is a "full time" peace officer within the meaning of the statute. Appellant disagrees with the 40-hour work week interpretation adopted by the Harris County District Attorney's Office. The Supreme Court, in finding the term "unreasonably low prices" in the Robinson-Patman Act not constitutionally vague under the circumstances, held: Void for vagueness simply means that criminal responsibility should not attach when one could not reasonably understand that his contemplated conduct is proscribed ... In determining the sufficiency of the notice, a statute must of necessity be examined in the light of the conduct with which a defendant is charged. *577 U.S. v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963) (emphasis added). "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974). There is testimony that while appellant was on call 24 hours a day as a "full time peace officer," he was required to work only four 8-hour shifts a month for $50 a month. While there might be some disagreement as to whether "full time employment as a peace officer" requires a 40-hour work week, it certainly would require more than four 8-hour shifts a month. We, therefore, find that appellant could not have reasonably thought that he was covered by the section 3(a)(3) exception and thus exempt from the licensing requirements of the Act. Consequently, appellant may not challenge the statute for vagueness. Parker, v. Levy, 417 U.S. at 756, 94 S.Ct. at 2561. Point of error two is overruled. In point of error three, appellant argues that the evidence was insufficient to support a finding of guilt because the State failed to prove beyond a reasonable doubt that appellant did not have "full time employment as a peace officer." The standard of review in a challenge to the sufficiency of the evidence to sustain a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime [or the non-existence of a defense] beyond a reasonable doubt. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.App.1986). As previously mentioned, the record reflects testimony that appellant, while employed as a "full time peace officer" on call 24 hours a day, was required to work only four 8-hour shifts per month. Furthermore, there was testimony that the guard work appellant was hired to do during his alleged "full time employment as a peace officer," encompassed approximately 8 hours a day for 45 days. We find such evidence to be sufficient to enable a rational trier of fact to have found beyond a reasonable doubt that appellant did not have "full time employment as a peace officer," as contemplated in section 3(a)(3) of the Act. Point of error three is overruled. The judgment of the trial court is affirmed.

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 27 2015 MOLLY C. DWYER, CLERK GLENDALE & 27TH INVESTMENTS, No. 13-16063 U.S. COURT OF APPEALS LLC, an Arizona limited liability company, D.C. No. 2:10-cv-00673-SRB Plaintiff - Appellee, MEMORANDUM* v. DELOS INSURANCE COMPANY, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding Argued and Submitted July 9, 2015 San Francisco, California Before: GILMAN,** GRABER, and WATFORD, Circuit Judges. In August 2008, a storm hit Phoenix and damaged a number of properties, including the Sterling International Hotel (the Property). Glendale & 27th Investments, LLC (Glendale), the owner of the Property, immediately filed a claim * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation. with its property insurance carrier, Delos Insurance Co. (Delos). Delos sent out several adjusters to inspect the damage over the next few weeks. The parties’ relationship rapidly deteriorated. Both sides retained counsel, and serious disagreements arose regarding which structures on the Property were covered by the insurance policy and how much of the damage was caused by the storm. Delos’s final offer to settle the claim was $50,000, which Glendale rejected. Almost a year and a half after the storm, Glendale sued Delos and several other defendants. The matter went to trial in January 2013. All defendants other than Delos settled with Glendale after the close of the evidence. Delos moved for judgment as a matter of law, which the district court denied. The jury returned a verdict against Delos for $144,383 in compensatory damages and $500,000 in punitive damages. In this timely appeal, Delos limits its arguments to the issue of punitive damages. We review de novo the district court’s denial of a motion for judgment as a matter of law. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1005 (9th Cir. 2004). A renewed motion for judgment as a matter of law is properly granted only “if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is 2 contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). “A jury’s verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion.” Id. Delos offers two arguments on appeal: (1) there was insufficient evidence to demonstrate that it had the “evil mind” necessary to impose punitive damages, such that the question should not have been submitted to the jury; and (2) even if a consideration of punitive damages was appropriate, the amount awarded by the jury was unconstitutionally excessive. Neither argument is availing. Glendale presented evidence that Delos made intentional and material misrepresentations in the administration of Glendale’s claim. When one adjuster acknowledged that the storm had caused substantial damage and that extensive repairs would be required, Delos sent in someone who concluded that the covered damage was much less extensive. It then refused to provide Glendale with copies of the annual reports prepared before the storm, which revealed that the property was in a good, well-maintained condition just three months before the storm. Delos also claimed to have conducted inspections that were simply never done, and it misrepresented the contents of reports that it received from inspections that were completed. 3  Although all of this could be interpreted as ordinary but questionable insurance practices, reasonable minds could rely on these examples, among others, to conclude that Delos “consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.” See Rawlings v. Apodaca, 726 P.2d 565, 578 (Ariz. 1986). We therefore conclude that the district court did not err in sending the question of punitive damages to the jury. Nor did the jury award an unconstitutionally excessive amount of punitive damages. The Supreme Court has recognized that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution,” than are awards ranging into the double- and triple-digit ratios. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003). The ratio of punitive to compensatory damages in this case was roughly 3.5 to 1. Both the Supreme Court and this court have repeatedly held that ratios such as these are constitutionally permissible. See, e.g., Planned Parenthood of Columbia/Willamette Inc. v. Am. Coal. of Life Activists, 422 F.3d 949, 962 (9th Cir. 2005) (“In cases where there are significant economic damages and punitive damages are warranted but behavior is not particularly egregious, a ratio of up to 4 to 1 serves as a good proxy for the limits of constitutionality.” (citing 4 State Farm, 538 U.S. at 425)). Delos has not demonstrated any compelling reason for us to deviate from that conclusion in the present case. AFFIRMED. 5 

898 F.2d 148Unpublished Disposition 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.Ronald FRANCOIS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ronald FRANCOIS, Defendant-Appellant. Nos. 88-5207, 89-7070. United States Court of Appeals, Fourth Circuit. Argued: July 27, 1989.Decided: March 5, 1990. Appeals from the United States District Court for the Northern District of West Virginia, at Elkins. Robert R. Merhige, Jr., Senior District Judge, sitting by designation. (CR-88-81) Trace Weese, Askin, Pill, Scales & Burke, L.C., Martinsburg, W. Va., for appellant. Thomas Oliver Mucklow, Assistant United States Attorney, Wheeling, W. Va., for appellee. On Brief: Steven M. Askin, Askin, Pill, Scales & Burke, L.C., Martinsburg, W. Va., for appellant. William A. Kolibash, United States Attorney; Beth Heier Lurz, Assistant United States Attorney, Wheeling, W.Va., for appellee. N.D.W.Va. AFFIRMED. Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges. PER CURIAM: 1 Ronald Francois appeals from his conviction under 21 U.S.C. section 841(a)(1) for possession of cocaine with intent to distribute. We find no merit in any of Francois' assignments of error, and we affirm. 2 Two Charles Town, West Virginia, police officers, Robert Buracker and Douglas Nichols, observed appellant Ronald Francois while the officers were on routine patrol in an area of Charles Town known as "the strip" that was notorious for its open air drug trafficking. Members of the federal narcotics task force had contacted Officer Buracker and asked him to help identify an individual who had sold drugs to them in that area the previous day. After observing Francois standing on a street corner, the officers, in an effort to move closer to Francois and possibly identify him, turned their police cruiser around and drove to the intersection where Francois was standing. As the officers approached the corner, Francois turned away and began walking up a one-way street in the direction opposite to the flow of traffic. Unable to follow Francois, the officers circled the block, where they met Francois walking up an intersecting road. 3 As the officers again drew near, Francois took a handkerchief from his pocket and put it to his face "like he was blowing his nose." In removing the handkerchief Francois dropped a piece of paper money from his pocket onto the sidewalk. While Francois continued to walk at the same pace, the officers stopped their car and Officer Buracker shouted to Francois, informing him of the fallen money. Francois returned to the location at which the money had fallen out, where he picked up the money and thanked the officer. Officer Buracker told Francois that he did not know him and asked his name, whereupon Francois immediately turned and ran. 4 Officer Buracker pursued Francois on foot. At several points during the chase, Buracker observed Francois reach into his right pocket "like he was trying to remove something." After covering approximately two blocks, Francois lost his balance and fell, catching himself with one arm and again reaching into his right pocket with his other hand. Buracker, who was immediately behind Francois at the time of the fall, took control of Francois by placing Francois' arm up behind his back. Buracker then rubbed his hand across Francois' pocket and, after feeling a lump inside, reached into the pocket of Francois' coveralls and removed a plastic bag that subsequently proved to contain 6.40 grams of 86.4% pure cocaine, also known as crack. Officer Buracker then placed Francois under arrest. 5 A federal grand jury later indicted Francois on two counts1 of possession of cocaine or crack with intent to distribute, a violation of 21 U.S.C. section 841(a)(1). At trial, a jury found Francois guilty of the first count, but acquitted him on count two. 6 Francois argues that the evidence used against him, the cocaine, was the product of an unconstitutional search and seizure. Specifically, Francois asserts that, because the chase, stop, and search of his person were not supported by probable cause or a reasonable suspicion of criminal activity, Officer Buracker's actions violated the fourth amendment to the Constitution and the district court should have suppressed the evidence Buracker obtained. 7 Francois incorrectly argues for de novo review of the denial of his motion to suppress. Because a district court "engages in a factual determination in resolving a dispute over the nature of an encounter between police and [a] citizen," however, the law in this circuit is that "we will not disturb such a determination unless it is clearly erroneous." United States v. Porter, 738 F.2d 622, 625 (4th Cir.) (en banc), cert. denied, 469 U.S. 983 (1984); accord United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989). 8 The Supreme Court has refused to fashion a bright-line rule applicable to investigatory pursuits. Michigan v. Chesternut, 486 U.S. 567, 572-73 (1988). Instead, the Supreme Court has decided that, in determining whether police conduct implicates the fourth amendment, courts should examine the totality of the circumstances surrounding the incident in each individual case. Id. Depending upon those circumstances, an encounter between police and a citizen may be voluntary contact that raises no constitutional concerns, a limited investigative stop that requires a reasonable, articulable suspicion of criminal activity, or a traditional arrest that requires probable cause. Porter, 738 F.2d at 625. 9 Given the facts of the instant case, we hold that Officer Buracker had a reasonable, articulable suspicion of criminal activity from the moment Francois fled, which justified a brief investigatory stop of Francois.2 First, the officers were on patrol in an area known for its criminal activity. See United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.) (area's disposition toward criminal activity is articulable fact), cert. denied, 56 U.S.L.W. 3383 (1987). In addition, the officers were attempting to identify an individual who had sold drugs to federal officers in that area the previous day. The officers first observed Francois standing on a street corner, a common practice for area drug sellers, and Francois moved away when he saw the officers approach. When the officers approached him a second time, Francois covered his face with a handkerchief, possibly in an attempt to conceal his features. Finally, and perhaps most significantly, when Officer Buracker asked Francois his name, Francois immediately took flight. See Chesternut, 486 U.S. at 576 (Kennedy, J., concurring) (respondent's unprovoked flight gave police ample cause to stop him); United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.1989) (suspect's immediate flight after encountering officers can create reasonable suspicion); United States v. Haye, 825 F.2d 32, 34-35 (4th Cir.1987) (same). Thus, Buracker's investigative stop of Francois was constitutionally permissible. 10 Similarly, the officer's retrieval of the cocaine from Francois' pocket was the result of an acceptable protective pat down and search for weapons. If an officer "has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose." Adams v. Williams, 407 U.S. 143, 146 (1972). Officer Buracker observed Francois reach into his pocket several times during the pursuit. At the suppression hearing, Officer Buracker testified that another man he had arrested, who had exhibited the same motions into his pocket during a pursuit, produced a nine millimeter handgun. The officer only reached into Francois' pocket after first patting it down and feeling a lump. Francois argues that, because Buracker later admitted that he probably could tell that the lump was not a nine millimeter handgun, the intrusion into Francois' pocket was improper. Buracker's candid reflection, however, is a distinction without a difference. The issue is not whether Buracker had reason to believe Francois' pocket contained a nine millimeter handgun, but whether he had reason to believe Francois was armed. Given Francois' actions as he ran and the officer's previous experience, Buracker had reason to believe that the lump was any one of a number of weapons. The Constitution did not limit Buracker to asking questions and "tak[ing] the risk that the answer might be a bullet." Terry v. Ohio, 392 U.S. 1, 33 (1968). 11 After an overall review of the totality of the circumstances, we have no difficulty in concluding that the trial court was not clearly erroneous in deciding that Officer Buracker's investigative stop, pat down, and search of Francois was justified because Buracker had a reasonable suspicion, grounded in specific and articulable facts, that Francois was involved in criminal activity and might be armed and dangerous. 12 Francois also claims that the trial court erred in refusing to sever for trial the two counts of the indictment; that it erred in permitting West Virginia State Police Officer Deborah DiFalco to give expert testimony concerning the value of cocaine found on Francois and the amount of cocaine which is normally used by a user; that there was insufficient evidence to support the verdict; and that the district court erred in not granting his motion for a new trial. 13 We are of opinion that the district court did not abuse its discretion in refusing to sever the two counts for trial, for among other reasons, the offense were of the same or similar character, F.R.Cr.P. 8(a), and the defendant has not carried the burden of demonstrating a strong showing of prejudice. United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir.1984). 14 We are also of opinion that the district court did not abuse its discretion in permitting the testimony of Officer DiFalco. Even if the point was preserved for appeal, which it probably was not, Officer DiFalco had been a state police officer for more than ten years and was a member of the Federal Narcotics Task Force. She had been involved in at least 100 drug arrests and numerous purchases of drugs, including crack cocaine. Her qualifications to give the testimony that she did on these facts were within the discretion of the district court, and we are of opinion it did not abuse its discretion. 15 We think there was sufficient evidence to support the verdict. The argument that there was insufficient evidence to establish an intent to distribute is belied by the fact that the crack in Francois' possession was worth approximately $1,300-$1,400, but the amount involved in an ordinary sale ranged from $20-$100. This evidence would have permitted the jury to infer that Francois did not possess the drug solely for his own use but intended to sell or otherwise distribute it. 16 We are also of opinion there was no error in the failure of the district court to grant a new trial. The argument is that the accumulation of the errors we have just mentioned as claimed was a sufficient reason to grant the motion. Since we have determined those assignments of error are without merit, however, the motion was likewise without merit. 17 The judgment of the district court is accordingly 18 AFFIRMED. 1 In addition to the charge arising out of the facts set forth above, the grand jury also charged that Francois possessed cocaine with intent to distribute on another occasion. Because the trial jury acquitted Francois on count two, the statement of facts relates only to the first count 2 Because we conclude that a reasonable, articulable suspicion of criminal activity existed at the outset of Officer Buracker's pursuit, it is unnecessary to determine the exact point at which Buracker's conduct accomplished a "seizure" under the fourth amendment. We therefore express no opinion concerning whether and under what circumstances police pursuit may constitute a seizure. See Michigan v. Chesternut, 486 U.S. 567, 575-76, n.9, (determining that police "chase" in issue did not constitute seizure and declining to determine whether pursuit ever could amount to seizure); id. at 576 (Kennedy, J., concurring) (police pursuit or chase does not constitute seizure until it achieves restraining effect)

685 F.2d 441 Escobedo-Medinav.Immigration and Naturalization Service 81-7547 UNITED STATES COURT OF APPEALS Ninth Circuit 7/28/82 1 B.I.A. DISMISSED

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-15789 Non-Argument Calendar ________________________ D.C. Docket No. 0:15-cr-60173-BB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GABRIEL SAMSON GASKINS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (March 6, 2017) Before ED CARNES, Chief Judge, MARCUS and FAY, Circuit Judges. PER CURIAM:  Gabriel Gaskins was charged with and convicted of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a), (b)(2). He appeals that conviction, contending that the district court abused its discretion at trial by allowing the government to use extrinsic evidence of his prior acts. I. The victim Gaskins was convicted of trafficking was A.K.L., a 17-year-old minor. A.K.L. advertised on Backpage.com, a website used for advertising escort and prostitution services, and on that page she listed that she was 21 years old. A man named Steven gave A.K.L. Gaskins’ phone number and told her that Gaskins would drive her to “outcalls,” which were dates where she needed someone to drive her to meet clients at the place of their choosing. A search of Gaskins’ phone records showed that Steven also sent Gaskins A.K.L.’s phone number, and that Steven called Gaskins and then messaged him “17,” to which Gaskins responded “That ain’t bad . . . .” A.K.L. testified that when she first met Gaskins, she showed him her Backpage advertisement but told him that she was actually 17 years old, and at one point she asked him if he knew someone who could make her a fake identification card so that she could stop engaging in prostitution and get a job as a club dancer. She also testified that she would receive around 20 requests for outcalls per day, and that Gaskins would drive her to meet those clients. While on their way to one 2 outcall, Gaskins was pulled over by law enforcement, A.K.L. was removed from the car, and while she was answering the officer’s questions, Gaskins honked the horn and yelled at her to stop talking to the police. At trial the government also introduced evidence of Gaskins’ interactions with two other minors, A.S. and A.C., who also had Backpage profiles and whom Gaskins drove to outcalls six months before he met A.K.L. Testimony showed that before Gaskins met A.K.L., officers conducting an undercover operation caught him with A.S. and A.C., at which point he was questioned. During that questioning Gaskins told the officer that he believed A.S. and A.C. were 21 (the age listed in their Backpage profiles) despite the officer’s statement that they “look[ed] like little babies.” At trial A.S. testified that after the night Gaskins was questioned, A.C. told him that A.S. was a minor, and that Gaskins nevertheless continued to drive A.S. to outcalls. II. Gaskins contends that the evidence as to A.S. and A.C. was inadmissible under Federal Rule of Evidence 404(b) because it was irrelevant and unduly prejudicial. We review the district court’s evidentiary rulings for an abuse of discretion. See United States v. Cunningham, 194 F.3d 1186, 1193 (11th Cir. 1999). “By definition . . . under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have 3 gone the other way had it been our call.” In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994). This standard “allow[s] a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989). While evidence of a crime, wrong, or other act is not admissible to show that “on a particular occasion the person acted in accordance with [his] character,” that evidence is admissible for other purposes, including to prove motive, intent, knowledge, or absence of mistake. Fed. R. Evid. 404(b). To be admissible under Rule 404(b), the evidence must be (1) relevant to an issue other than the defendant’s character; (2) established by sufficient proof that the jury could find that the defendant committed the extrinsic act; and (3) of probative value that is not substantially outweighed by undue prejudice under Federal Rule of Evidence 403. United States v. Matthews, 431 F.3d 1296, 1310–11 (11th Cir. 2005). Gaskins disputes only the first and third prongs of this admissibility test. For the first prong — relevance to an issue other than character or propensity — “where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the Rule 404(b) test is satisfied.” United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007). Here the state of mind at issue was Gaskins’ knowledge that A.K.L. was a minor. The evidence of the uncharged extrinsic conduct — that Gaskins had transported two minors whose 4 Backpage profiles falsely listed their ages and that he later found out that they were minors — was relevant to show that Gaskins was on notice not to rely on the age listed on the website. In other words, the evidence was relevant to show that Gaskins knew or should have known that even though A.K.L.’s Backpage profile stated that she was 21, she may have been younger than that and she could have been a minor. As to the third prong — requiring that probative value not be substantially outweighed by unfair prejudice — we assess the evidence “in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006). This determination “lies within the sound discretion of the district judge and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (quotation marks omitted). And because evidence of crimes, wrongs, or other acts “is inherently prejudicial to the defendant,” this third prong requires that the incremental probative value of the evidence be balanced against the potential for undue prejudice. United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013) (quotation marks omitted). 5  The district court did not abuse its discretion in finding that the third prong was met. The evidence was highly probative because the charged offense and Gaskins’ interactions with A.S. and A.C. were close both in nature and in time. See Jernigan, 341 F.3d at 1282. Although the government presented some evidence that Gaskins knew A.K.L.’s age, that evidence was not so strong that the evidence as to A.S. and A.C. was cumulative and lacked probative value. Gaskins contends that the prejudicial effect of the evidence as to A.S. and A.C. was undue because that evidence was “vivid” and “highly-inflammatory.” But “[t]hat the nature of the crime itself, and therefore the nature of the evidence tending to prove it, is emotionally charged does not mean that the prosecution must be deprived of its most probative evidence.” United States v. Smith, 459 F.3d 1276, 1296 (11th Cir. 2006). Here the nature of the extrinsic evidence was no more inflammatory or emotionally charged than the crime for which Gaskins was tried. And while Gaskins repeatedly points to the fact that the government presented more evidence about the extrinsic conduct than it did about the conduct for which he was charged, that does not mean that the probative value was substantially outweighed by an unduly prejudicial effect. See United States v. Delgado, 56 F.3d 1357, 1366 (11th Cir. 1995) (rejecting the defendant’s argument that the probative value of Rule 404(b) evidence, which “formed the bulk of 6 evidence against him,” was substantially outweighed by the risk of undue prejudice). Not only that, but the district court provided two limiting instructions at trial — one immediately after A.S. testified and one during the jury charge — and as a result the risk of prejudice was minimized. See United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“[T]he risk of undue prejudice to [the defendant] was reduced by the court’s limiting instruction.”); see also United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011) (“We presume that juries follow the instructions given to them.”). The district court did not abuse its discretion by allowing the government to use the evidence about A.S. and A.C. AFFIRMED. 7 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-03-00300-CR Godolfredo Salazar, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 02-857-K368, HONORABLE BURT CARNES, JUDGE PRESIDING MEMORANDUM OPINION A jury convicted appellant Godolfredo Salazar of three counts of aggravated sexual assault of a child and one count of indecency with a child. In one issue, appellant argues that the trial court erred in allowing several photographs into evidence. We affirm the trial court’s judgment. Appellant was accused and convicted of sexually assaulting B.A., his girlfriend’s nine-year-old child. B.A.’s teacher, the State’s outcry witness, testified about B.A.’s outcry and her description of the assaults, and B.A. testified herself, describing where and when appellant had assaulted her and how he restrained her during the assaults. Dr. Rachel Stover testified that she examined B.A. and observed that B.A. did not have a hymen and that her vaginal opening was “about double the upper limits of normal for her age and development, suggesting that it had been penetrated.” Stover also observed abnormal vaginal discharge and treated B.A. for a vaginal infection. Stover’s observations, combined with B.A.’s extreme fearfulness and the fact that B.A. said that it hurt when she urinated, led Stover to conclude that B.A. had been sexually abused. To help illustrate her testimony, Stover brought three photographs from a medical article. Stover testified that none of the photographs was of B.A. and she did not know the age of the subjects or whether they were pre- or post-pubescent. One photograph showed a vaginal area in which the hymen tissue was missing, which Stover testified is highly suggestive of repeated penetration, and the other two showed it intact. When the State offered the exhibit into evidence, appellant objected that the photographs should be excluded under rules 402 and 403 of the rules of evidence. See Tex. R. Evid. 402, 403. The trial court overruled the objection and admitted the photographic exhibit into evidence. A trial court’s ruling on the admissibility of evidence will be upheld unless we find an abuse of discretion, that is, that the decision “falls outside the zone of reasonable disagreement.” Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); see Santellan v. State, 939 S.W.2d 155, 169, 172 (Tex. Crim. App. 1997). Relevant evidence is admissible unless otherwise barred by constitution, statute, or rule. Tex. R. Evid. 402. Relevant evidence may be excluded if the trial court determines that its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403; Santellan, 939 S.W.2d at 169. If a defendant objects to evidence under rule 403, a trial court must weigh the evidence’s probative value against any danger of unfair prejudice or confusing or misleading the jury. Santellan, 939 S.W.2d at 169; see Poole v. State, 974 S.W.2d 892, 897 (Tex. App.—Austin 1998, pet. ref’d). Relevant evidence is presumed to be more probative than prejudicial, and we will reverse a trial court’s rule 403 balancing decision only if we find a clear abuse of discretion. Santellan, 939 2 S.W.2d at 169. Some factors to be considered when weighing probative value against prejudice are the number of exhibits, the level of detail, the size of the photographs, whether they are in color or black and white, whether they are close-ups, and the availability of other proof. Id. at 172. Generally, if testimony describing the subject of a photograph is admissible, the photograph itself is also admissible. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997); Dusek v. State, 978 S.W.2d 129, 136 (Tex. App.—Austin 1998, pet. ref’d). Appellant contends that because the photographs were not of B.A. and no photographs of B.A. were offered as a point of comparison with the photographs, they were not relevant. Appellant further argues that the photographs were unfairly prejudicial, confusing, or misleading because they were from a textbook and Stover could not testify as to the age of the subjects. Although Stover believed that the subjects of the photographs were pre-pubescent, that was not the relevant information to be taken from them. Instead, the relevance was in the depiction of the absence of a hymen due to repeated penetration versus the presence of hymen tissue. Stover testified that one of the main reasons she believed B.A. had been sexually abused was the lack of hymen tissue and then described what she meant by that statement. We cannot conclude that the trial court abused its discretion in finding that the photographs were relevant to illustrate Stover’s testimony. Having reviewed the record, neither can we hold that it was a clear abuse of discretion to find that the relevance of the photographs was not substantially outweighed by a danger of unfair prejudice or confusion. Stover’s testimony relating to the photographs was not overly long or 3 graphic. B.A. testified, describing the abuse, as did her teacher, to whom she made an initial outcry. Her mother also testified as to B.A.’s and appellant’s behavior during the relevant period of time. Although the photographs are close-ups of three vaginal openings, they are not overly graphic or disturbing. They illustrate Stover’s description of hymen tissue that one would expect to see in a child who has not been sexually abused. The trial court did not clearly abuse its discretion in admitting the photographs into evidence. We overrule appellant’s sole issue on appeal and affirm the judgment of conviction. __________________________________________ Jan P. Patterson, Justice Before Chief Justice Law, Justices Patterson and Puryear Affirmed Filed: June 24, 2004 Do Not Publish 4 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-06-00735-CV Texas Department of Public Safety, Appellant v. Sandra Scott Freitag, Appellee FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT NO. 25,989, HONORABLE HAROLD ROBERT TOWSLEE, JUDGE PRESIDING MEMORANDUM OPINION Appellant Texas Department of Public Safety has filed a motion to dismiss its appeal. See Tex. R. App. P. 42.1(a)(1). Appellee Sandra Scott Freitag does not oppose the motion. Accordingly, we grant appellant’s motion and dismiss the appeal. Id. W. Kenneth Law, Chief Justice Before Chief Justice Law, Justices Puryear and Henson Dismissed on Appellant’s Motion Filed: January 25, 2007 

452 S.W.2d 114 (1970) Irene DENNY, Plaintiff-Appellant, v. John P. MATHIEU, d/b/a 7-Up Bottling Company, Defendant-Respondent. No. 53379. Supreme Court of Missouri, En Banc. March 9, 1970. Rehearing Denied April 13, 1970. Orville C. Winchell, Lebanon, Orville Richardson, St. Louis, R. Jack Garrett, West Plains, for plaintiff-appellant. Farrington, Curtis & Strong, E. C. Curtis, Thomas Strong, Springfield, for defendant-respondent. FINCH, Judge. Plaintiff, a passenger in her husband's automobile, sued to recover $35,000 for personal injuries received when the car *115 collided at night with an unlighted truck which was stopped with the back end protruding out into the lane of the highway in which the automobile was traveling. The suit was filed against both the owner of the truck, Mathieu, and the driver, Rhodes. At the conclusion of all the evidence, plaintiff dismissed without prejudice as to Rhodes. Subsequently, after colloquy between counsel as to the reason for and the effect of such dismissal, counsel for plaintiff, during final argument, in response to defendant's contention, announced that "the case is dismissed as far as Rhodes is concerned with prejudice." Argument then was concluded and the case submitted to the jury, which returned a verdict in favor of defendant Mathieu. Plaintiff's motion for new trial was overruled and she appealed. Plaintiff asserts that alleged error in instructions and improper argument of counsel to the jury entitle her to a new trial. However, we first are confronted with and must decide the question raised on appeal by defendant that under the provisions of Supreme Court Rule 67.03, V.A. M.R., the dismissal of the case with prejudice as to defendant Rhodes operated as an adjudication on the merits in favor of Rhodes and against plaintiff, entitling Mathieu to judgment because he cannot be vicariously liable for acts of his employee which in effect have been determined to have been non-negligent. An opinion was written herein in Division holding that the dismissal with prejudice as to Rhodes did amount to an adjudication on the merits as to fault and liability of Rhodes and that as a result Mathieu could not be vicariously liable. Max v. Spaeth, Mo., 349 S.W.2d 1, was cited as dictating that conclusion. Thereafter, the case was ordered transferred to the Court en Banc for reargument. We now reverse and remand for new trial. At the outset, we start with the recognition that the law is well established "that if a plaintiff's petition against two defendants states only a case of liability upon the principle of respondeat superior, then, if there is a verdict discharging the one defendant for whose negligence only it is sought to hold the other defendant, no judgment can be based thereon against either defendant, and if entered must be set aside." Stoutimore v. Atchison, T. & S. F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658, 659; Lynch v. Hill, Mo., 443 S.W.2d 812; Goedecke v. Bi-State Development Agency of Mo.-Ill., Mo.App., 412 S.W.2d 189. Hence, if this case had been submitted to the jury against both Rhodes and Mathieu, and if the jury verdict had been in favor of defendant Rhodes, such verdict would have entitled Mathieu to judgment if, as recognized in Lynch v. Hill, supra, 443 S.W.2d l.c. 818, the trial was free of error. The question presented on this appeal is whether, under the provisions of Rule 67.03, the dismissal by plaintiff with prejudice as to defendant Rhodes is equivalent to a jury verdict in his favor and constitutes a bar to plaintiff's right to proceed as against defendant Mathieu. The pertinent part of Rule 67.03 is as follows: "* * * A dismissal with prejudice operates as an adjudication upon the merits. * * *" It is defendant's contention that a voluntary dismissal with prejudice, such as occurred here, unaccompanied by any settlement of any kind, or any payment of any consideration, or the execution of any release or stipulation, constitutes, under the quoted language of Rule 67.03, an adjudication similar to a jury verdict that the servant Rhodes was not liable, and that necessarily Mathieu cannot be vicariously liable. The only decision of this court cited by defendant in support of this contention is Max v. Spaeth, supra. In that case a car driven by Max collided with a truck belonging to Spaeth and driven by his employee, Wyatt. On February 2, 1959, Wyatt sued Max. After service and the filing of an answer, the suit was dismissed by a stipulation which recited that all matters and things in controversy in the *116 case had been compromised and settled, and that it was agreed that the case should be dismissed with prejudice to any future action on account of the things alleged in plaintiff's petition. Meanwhile, on February 6, 1959, Max had filed an independent suit against Spaeth, to which an answer and counterclaim for truck damage was filed. Thereafter, a stipulation for dismissal of defendant's counterclaim was filed September 25, which recited that all things covered in the counterclaim had been compromised and settled, and that it was stipulated that the counterclaim should be dismissed with prejudice as to all matters contained in the counterclaim. It also provided that the plaintiff's cause of action should remain on the docket without prejudice. After the counterclaim was dismissed, an amended answer was filed by Spaeth in which he asserted a right to be discharged because (1) the stipulation filed in Wyatt's original suit released Wyatt from all claims so that Spaeth could not be vicariously liable, and (2) no counterclaim had been filed by Max in that suit. Judgment for Spaeth on motion for summary judgment was entered and was affirmed on appeal. An examination of the opinion in Max discloses that the defense raised therein was based on language in the stipulation for dismissal which compromised and settled all matters and which was held to amount to a full release. The decision by this court is based on the language of that instrument. This is demonstrated by the language in the opinion which, after recognizing that a jury verdict in favor of a servant necessarily releases the master, says, 349 S.W.2d l.c. 3: "Certainly the same rule should apply when the question of a servant's liability is finally determined by a release as when it is determined by a verdict." The basis of the decision is disclosed again on the same page, when the court further says: "We hold that the settlement of Wyatt's suit released plaintiff's claim against him and therefore released plaintiff's claim against his employer, the defendant herein." Is the Max case authority for the proposition that merely the entry of a dismissal with prejudice is in fact an adjudication on the merits which is comparable in effect to a jury verdict? Actually, the only statement in the opinion which might be so construed is this sentence, 349 S.W.2d l.c. 3: "'A dismissal "with prejudice" operates as an adjudication upon the merits.' Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, 1003."[1] However, the fact is that the decision was not based on the above quoted sentence. This is shown by the sentence which immediately follows, l.c. 3: "Therefore, when plaintiff settled Wyatt's suit against her, agreeing without any qualifications that `all matters and things in controversy' had been `adjusted, compromised and finally settled,' she gave up all rights she might have had to sue him on any claim based on his negligence. This with the agreement for dismissal `with prejudice' amounted to a full release of Wyatt's liability to her." This statement by the court demonstrates that the decision was based upon the instrument which the parties signed whereby they agreed upon a release. An examination of decisions subsequent to Max v. Spaeth, supra, discloses that this court has not construed Rule 67.03 as meaning that dismissal of a case with prejudice necessarily and in all events amounts to an adjudication on the merits which is *117 the equivalent of a jury verdict determining liability. In Kirtley v. Irey, Mo., 375 S.W.2d 129, a collision occurred between Hammon's truck driven by Kirtley and an automobile driven by Irey. Kirtley and Hammon sued Irey for personal injuries and property damage. Irey answered and counterclaimed. Subsequently, the insurer for Hammon and Kirtley settled the Irey counterclaim for $2,000. A release was executed and the attorneys executed a stipulation dismissing the counterclaim with prejudice. Thereafter, defendant filed a motion for judgment on the pleadings on the basis that the action of attorneys for plaintiff's insurer in taking a general release and stipulating for a dismissal of the counterclaim with prejudice estopped and barred plaintiff from further prosecution of the suit. This motion was overruled, and the trial which followed resulted in a defendant's verdict. Thereafter, the trial court granted a new trial on account of an erroneous instruction. In affirming, this court held that the motion for judgment on the pleadings was properly overruled because the case falls within the rule that a liability insurer's settlement of a claim, made without assured's consent and not ratified by him, ordinarily will not bar an action by the assured against the person receiving the settlement on a claim arising out of the same state of facts. Next, in Portell v. Pevely Dairy Co., Mo., 388 S.W.2d 790, Portell sued Pevely and its driver, Bannon, for injuries received in a collision between Pevely's truck and plaintiff's automobile. Bannon filed a counterclaim. The case was tried, resulting in a verdict for defendants on plaintiff's cause of action and for Bannon in the amount of $1,500 on his counterclaim. Plaintiff filed an unavailing motion for new trial with respect to both her claim and the counterclaim and then appealed. Thereafter, attorneys for plaintiff's insurer, acting without participation or consent by plaintiff or her own attorney, settled Bannon's counterclaim. A stipulation was filed in the Circuit Court for dismissal of Bannon's counterclaim. It recited that all matters in connection with the counterclaim had been settled, but it also provided that this was "with the express stipulation and agreement that said dismissal will in no manner affect or prejudice plaintiff's claim now pending." Pursuant to the stipulation, the counterclaim was dismissed with prejudice. Thereafter, Pevely moved to dismiss plaintiff's appeal, contending that the dismissal with prejudice of the counterclaim operated as an adjudication on the merits, and that the settlement released it because its liability was dependent upon the negligence of Bannon. This court held that plaintiff's action was not barred by the dismissal with prejudice of the counterclaim, relying on Kirtley v. Irey, supra, and also citing Rudloff v. Johnson, 8th Cir., 252 F.2d 708, a decision in which the Court of Appeals for the 8th Circuit also held that such settlement and stipulation by attorneys for the insurer did not bind the insured nor constitute an adjudication on the merits so as to bar further action by the insured. The court held Max v. Spaeth, supra, to be inapplicable. Thereafter, in Pierson v. Allen, Mo., 409 S.W.2d 127, Pierson sued for damages and Allen counterclaimed. Subsequently, a stipulation for dismissal of plaintiff's petition was executed and filed. By its provisions plaintiff's cause of action was dismissed with prejudice to any other action concerning the matters set forth in the petition. The stipulation also provided that defendant's counterclaim, which was then pending, should not be affected by the dismissal of plaintiff's cause of action. Subsequently, different counsel, representing plaintiff's insurer, entered their appearance for plaintiff and filed an amended answer to the counterclaim, pleading estoppel as a result of the compromise settlement. The trial court entered an order dismissing defendant's counterclaim with prejudice. The opinion discusses Max, Portell, Kirtley, and other cases, including Landers v. Smith, Mo.App., 379 S.W.2d *118 884. The court concludes that the dismissal with prejudice of plaintiff's petition did not bar defendant from proceeding with his counterclaim. The opinion says, 409 S.W.2d l.c. 131: "Under these circumstances and authorities appellant is not to be deprived of his day in court by a proper compromise of respondent's claim which expressly reserved to appellant his right to continue with his counterclaim." Finally, in Black v. Perry Sanders Plumbing & Heating Co., Mo., 414 S.W.2d 241, Black, a truck operator, had a collision with a truck owned by Sanders and driven by his employee, Hayden. Hayden first sued Black, which case was removed to the Federal Court. A few days later, Black sued Sanders for damages resulting from alleged negligence of Hayden. Sanders filed an answer and counterclaim. Subsequently, counsel for Black's insurer settled Hayden's suit against Black, taking a release. In addition, a stipulation was executed whereby the case was dismissed with prejudice, but the stipulation provided that it should not affect the right of Black in his separate suit to prosecute his claim therein. Subsequently, Sanders filed a motion for summary judgment in Black's suit on the theory that the dismissal of Hayden's suit with prejudice operated as an adjudication on the merits, and that the settlement of Hayden's claim operated to release Sanders, whose liability was based solely on the acts of Hayden. This motion was sustained. On appeal Sanders, in support thereof, relies primarily on Max v. Spaeth, supra, and Keller v. Keklikian, supra. In reversing and remanding for trial, this court said, 414 S.W.2d l.c. 244: "This is not a case where, if appellant were to proceed on his claim against respondent based on employee Hayden's negligence and recover a verdict, both appellant and Hayden would be permitted to recover for the negligence of the other because Hayden's recovery was had upon a release which prohibited construing the settlement as an admission of liability; whereas, a jury verdict in favor of appellant would be an adjudication of liability on respondent based on the negligent acts of his employee Hayden. Pierson v. Allen, supra, 409 S.W.2d l.c. 131." The foregoing cases recognize that even where some settlement has been agreed upon and money paid, a stipulation for dismissal with prejudice does not automatically operate as an adjudication on the merits so as to bar subsequent litigation of other claims arising out of the same collision. This was true when a stipulation for dismissal expressly stated that it shall not interfere with the subsequent trial of the other claim or suit. It also was true where the settlement had been made by the insurer of one of the parties without participation or ratification by the insured, even though the stipulation for dismissal contained no express reservation of a right to proceed with the remaining claim or claims. In all of these instances, obviously, dismissal with prejudice was not construed by the court to be a determination on the merits equivalent to a jury verdict. This raises the question of the real meaning of Rule 67.03 and what its effect is. What does the rule mean when it says that a dismissal with prejudice "operates as an adjudication upon the merits?" We conclude that such dismissal actually adjudicates nothing. What it really does, and what is intended by the rule, is that the dismissal with prejudice serves as a mechanism for the termination of litigation rather than adjudication of the issues therein involved. Here, at the close of all the testimony, the plaintiff first dismissed the suit without prejudice as against Rhodes and the case then proceeded to argument. The record, incidentally, discloses that the plaintiff herself was not in the courtroom at the time the case was argued. During argument, there was a continuing colloquy between counsel with respect to the effect of the dismissal without prejudice of the suit against Rhodes. Counsel for defendant argued that plaintiff sought a verdict in this case and then could refile the next day against *119 Rhodes and, as he put it, seek to double up. Finally, Mr. Richardson, in final argument to the jury, said: "He tells you that we're going to sue Rhodes tomorrow. How would he like to hear this? I'm on record in that machine there. The order has not been written up. The case is dismissed as far as Rhodes is concerned with prejudice." Subsequently, the judgment which was entered contained this provision: "Before submitting her case to the jury, the plaintiff dismissed her cause of action and petition as to the defendant L. D. Rhodes, with prejudice against the reinstatement thereof. It is, therefore, ORDERED, ADJUDGED and DECREED that plaintiff's cause be and hereby is dismissed with prejudice as to the defendant L. D. Rhodes, and at the cost of the plaintiff." This dismissal was not construed or treated by the parties at that time as constituting the equivalent of a jury verdict which barred the plaintiff from proceeding further. Defendant did not make any such objection or ask for any such ruling, the plaintiff proceeded with her case against Mathieu and the case was submitted by the court to the jury. We hold that the dismissal with prejudice by plaintiff as to defendant Rhodes did not operate as such an adjudication on the merits as to prevent her from proceeding with the case against Mathieu. It was not the equivalent of a jury verdict in favor of Rhodes. Pursuant to the view expressed herein that such a dismissal serves as a mechanism to terminate litigation, the dismissal, of course, would bar plaintiff from filing a new suit against Rhodes. Such a conclusion is consistent with prior decisions of this court in Kirtley, Portell, Pierson and Black. To the extent that Max v. Spaeth may be authority for the proposition that a dismissal with prejudice amounts to an adjudication on the merits equivalent in effect to a jury verdict, it no longer should be followed.[2] The results reached in this case and in Kirtley, Portell, Pierson and Black demonstrate that Rule 67.03 does not express very well the effect of the dismissal of a case with prejudice. This court's new permanent committee on rules will be asked to consider this rule in the light of these cases and to suggest a revised rule which more accurately reflects the effect of the entry of an order of dismissal with prejudice. Plaintiff has suggested in the presentation of this case that we ought to review the validity of the rule of Max that the release of an employee also releases the employer, but we decline to do so because that would be inappropriate in this case. There was no settlement or release of any kind here, and anything we might say on that subject would be pure dictum. We proceed, therefore, to a consideration of the issues raised on plaintiff's appeal. Her first complaint is of defendant's Instruction No. 4, a contributory negligence instruction, which was as follows: "Your verdict must be for the defendant Mathieu whether or not defendant Mathieu was negligent, if you believe: "First, plaintiff knew, or by the use of ordinary care could have known that defendant's truck was stopped partly in plaintiff's lane of travel in time thereafter to have warned her husband to swerve but plaintiff failed to do so, and "Second, plaintiff's conduct submitted in paragraph First was negligent, and "Third, such negligence of plaintiff directly caused or directly contributed to *120 cause any damage plaintiff may have sustained. "The term `negligence' as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances." We have concluded that the above instruction was erroneous and requires that the case be reversed. In Happy v. Blanton, Mo., 303 S.W.2d 633, 638, this court held erroneous an instruction which required a guest passenger to maintain a lookout and warn the driver of dangerous situations she could have seen if she had maintained a lookout, even though the driver had been exercising the highest degree of care and plaintiff had no reason to believe he would not continue to do so. Instruction No. 4 allowed the jury to find plaintiff contributorily negligent if "by the use of ordinary care (she) could have known that defendant's truck was stopped partly in plaintiff's lane of travel * * *." That portion of the instruction violates the rule announced in Happy v. Blanton and similar cases. Since this case has been tried, additional MAI instructions for use in submitting contributory negligence have been approved and published in Missouri Approved Jury Instructions, Second Edition. Instruction No. 32.03 would appear to be appropriate in this case. It will be observed that in the Committee's Comment following that instruction reference is made to Happy v. Blanton and the fact that this court has held that a passenger has no duty to keep a lookout. In view of our decision to reverse and remand, we need not consider in detail other assignments of error asserted by the plaintiff, some or all of which may not arise at a retrial. However, we do observe that plaintiff complains of Instruction No. 3, which was a converse instruction. The defendant's own brief says with reference thereto that "Instruction No. 2 submitted only the personal misconduct of Mathieu." Undoubtedly, in view of this decision, this case on retrial will be submitted to the jury on the basis of alleged negligent acts of Rhodes as an employee of Mathieu. If it is, a converse telling the jury that plaintiff cannot recover if Mathieu was not guilty of personal misconduct would be erroneous. Actually, Mathieu was not present and what was done was by Rhodes, not Mathieu. We also note that plaintiff's instructions, including verdict directing Instruction No. 2, apparently did not indicate, as required by MAI, that they either were exact or modified numbered MAI instructions or that they did not come from MAI. At least, the transcript on appeal does not give this information. We cannot tell whether Instruction No. 2 was intended to be taken from the 17 series as modified under 18 because of the agency issue. On retrial, the mandate of MAI in this respect should be followed. We surmise that regular adherence in all cases to this requirement would result in fewer deviations from MAI. Reversed and remanded. SEILER and MORGAN, JJ., and SHANGLER, Sp. J., concur. HENLEY, C. J., and DONNELLY and HOLMAN, JJ., dissent. STORCKMAN, J., not sitting. NOTES [1] It is of interest to note that actually the case of Keller v. Keklikian, supra, did not hold that a dismissal with prejudice operates as an adjudication on the merits. At 244 S.W.2d l.c. 1003, the court said: "* * * it is not necessary to determine whether the judgment of dismissal in the first action was with or without prejudice to Keller's rights, or to decide whether that judgment was res adjudicata of Keller's claims arising out of the subject matter of the occurrence and of Keklikian's suit." Actually, the case was decided on the basis of the compulsory counterclaim statute. [2] In addition to Max v. Spaeth, supra, defendant also cites and relies upon DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342, which expressly held that a dismissal with prejudice was an adjudication on the merits. We have considered that case but are not persuaded thereby to a result different than the one herein reached.

461 F.Supp.2d 244 (2006) Stanford L. BURRIS, Plaintiff, v. RICHARDS PAVING, INC., Defendant. No. CIV. 04-1469-SLR. United States District Court, D. Delaware. November 9, 2006. *245 *246 Gary W. Aber, Esquire, Aber, Goldlust, Baker & Over, Wilmington, DE, Counsel for Plaintiff. Matthew P. Donelson, Esquire, Elzufon Austin Reardon Tarlov & Mondell, P.A., Wilmington, DE, Counsel for Defendant. MEMORANDUM OPINION ROBINSON, Chief Judge. I. INTRODUCTION On November 24, 2004, Stanford L. Burris ("plaintiff'), proceeding in forma pauperis, filed suit against Richards Paving, Inc. ("defendant"), alleging racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq ..[1] (D.I.2) This court entered a default judgment against defendant on June 9, 2005 (D.I.7); the default was vacated on July 6, 2005, per defendant's request (D.I.15). On August 5, 2005, defendant filed a motion to dismiss "because the complaint and supporting documents [did] not support a violation of Title VII based on plaintiffs race or color." (D.I. 17 at ¶ 5) Subsequently, the parties submitted a stipulation allowing plaintiff to amend his complaint and withdrawing defendant's motion to dismiss. (D.I.19) In his amended complaint, filed on September 20, 2005, plaintiff now alleges discrimination under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq .. (D.I.19, ex. 1) Presently before the court are defendant's motion for summary judgment and its three motions in limine.[2] (D.I.34, 42, 43, 44) The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343. II. BACKGROUND Plaintiffs larynx was surgically removed in 1991, leaving a hole in his neck and affecting his speaking voice. (D.I. 39 at 5; D.I. 40 at B15-B16) While plaintiff owns an electric voice box, he has not used it since 1991 or 1992. (D.I. 40 at B15) Plaintiff *247 contends that, although he does not personally consider himself disabled because of his voice, "a lot of employers" do. (Id. at B17) In April 2003, plaintiff applied for a job with defendant as a truck driver. (D.I. 35 at 2) Plaintiff, who is currently about 64 years old, has had a Commercial Driver's License ("CDL") since the age of 21. (D.I. 40 at B13) Plaintiffs interview was conducted by an employee of defendant's named David Moluski ("Moluski"), who took plaintiff on a driving test in a Mack dump truck.[3] (Id. at B18-B19) Plaintiff claims that Moluski stated that plaintiff had passed the driving test and asked to see a copy of plaintiffs driving record, which plaintiff provided the next day. (Id. at B20-B21) Moluski denies telling plaintiff the results of the driving test and stated in his deposition that plaintiff "could not handle the truck." (Id. at B39, B41) According to Moluski, he told plaintiff that he had to check with his supervisors before making a hiring decision (id. at B41); Moluski testified that he usually ends interviews with "bad driver[s]" in that manner in order to "alleviate[] any conflict with them" (id. at B41-B42). Plaintiff avers that when he returned to defendant's office with a copy of his driving record, Moluski stated that he could not hire plaintiff "because of [plaintiff's] voice," which Moluski "didn't think . . . would be clear enough over the CB [radio]." (Id. at B22, B24, B25) Plaintiff claims that he then offered to "use [his] electric larynx or [his] cell phone to communicate. And [Moluski] said no, that's not acceptable."[4] (Id. at B25-B26) Defendant denies this, stating that [i]t was not until plaintiff was informed that he would not be hired, that he began begging for a job and "volunteered" to take a radio test or to use his cell phone. At no time prior to being informed that he was not being hired, did the issue of his voice even come up in conversation. (D.I. 35 at 6) Plaintiffs subsequent request to work for defendant "as a laborer or [in] any capacity that [defendant] had open" was denied. (Id. at B26) Plaintiff, who claims he was "floored" by defendant's alleged refusal to' hire him because of his voice, then filed charges of discrimination with the Delaware Department of Labor, which eventually culminated in the action at bar. III. STANDARD OF REVIEW A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n. *248 1 (3d Cir.1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). With respect to summary judgment in discrimination cases, the court's role is "to determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff." Revis v. Slocomb Indus., 814 F.Supp. 1209, 1215 (D.Del. 1993) (quoting Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir.1987)). IV. DISCUSSION In order to establish a claim under the ADA, a plaintiff must first establish that he or she "(1) has a `disability' (2) is a `qualified individual' and (3) has suffered an adverse employment decision because of that disability." Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir.1998) (en banc) (citing Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.1998)). If a plaintiff meets this initial burden, the court must then determine whether the plaintiff has put forth direct or circumstantial evidence of discrimination. If the plaintiff has put forth direct evidence of discrimination, the court uses a "mixed motive" theory, meaning that "a plaintiff need only show that the unlawful motive was a `substantial motivating factor' in the adverse employment action." Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir.2003) (citations omitted). If, however, the plaintiff has put forth circumstantial evidence of discrimination, the court uses a pretext theory, which incorporates the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 68 (3d Cir.1996) (stating that, in ADA cases, courts are to apply the Title VII burden-shifting rules). Under the McDonnell Douglas burden-shifting analysis, once the plaintiff has established a prima facie case of discrimination, the burden of production switches to the defendant, who must "articulate some legitimate, nondiscriminatory reason" for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the defendant produces sufficient reasons for its actions, the burden switches back to the plaintiff to demonstrate that the defendant's reasons are merely a pretext for discrimination. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). To defeat a motion for summary judgment under this framework, plaintiff must point to some evidence from which the "factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that *249 an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Id. at 764. The ADA defines "the term `disability' . . ., with respect to an individual," as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff claims that he is disabled under the ADA because he has a physical impairment, id. § 12102(2)(A), or, in the alternative, is regarded by employers as having a physical impairment, id. § 12102(2)(C). (D.I. 39 at 13, 18) The court will consider each of these arguments in turn. A. Physical Impairment In pertinent part, the Code of Federal Regulations defines "physical or mental impairment" as: [a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. . . . 29 C.F.R. § 1630.2(h)(1) (emphasis added). A physical impairment "substantially limits" a "major life activity" .(which includes "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working," id. § 1630.2(i)), if it renders someone: (i) [u]nable to perform a major life activity that the average person in the general population can perform; or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. Id. § 1630.2(j)(1). Because plaintiff has suffered the loss of his larynx, a speech organ, the operative question becomes whether this physical impairment "substantially limits," within the meaning of the ADA, plaintiff's ability to engage in the major life activity of speaking. The Code of Federal Regulations dictates that several factors "should be considered in determining whether an individual is substantially limited in a major life activity," namely: "(i) [t]he nature and severity of the impairment; (ii)[t]he duration or expected duration of the impairment; and (iii)[t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. § 1630.2(j)(2). The removal of plaintiffs larynx is, without question, a permanent impairment that will persist for the duration of plaintiffs lifetime. The severity of plaintiff's impairment, however, appears to be limited to a diminution in the volume of his speaking voice and difficulty pronouncing certain words (though not to such an extent that plaintiff feels the need to use an electronic larynx). Despite his soft voice, plaintiff is able to communicate over a cellular phone (and, by his own admission, does so frequently).[5] (D.I. 40 at B29) Upon reviewing *250 the evidence of record, the court finds that plaintiffs condition neither renders him unable to speak nor significantly restricts the "condition, manner or duration" of his speech when compared with the speaking abilities of an average person in the general population.[6] 29 C.F.R. § 1630.2(j)(1). The record reveals no evidence that plaintiffs quiet speaking voice "substantially limits" his ability to perform the major life activity of speaking. Plaintiff cannot establish that he has an actual disability under the ADA;[7] therefore, he has failed to meet his initial burden of proof as to that count and the court need not engage in any further analysis. Because plaintiff has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, defendant is entitled to judgment as a matter of law, see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and its motion for summary judgment (D.I.34) is granted with respect to plaintiffs claim of actual disability. As a result, in order to prove that he is disabled under the meaning of the ADA, plaintiff must show that defendant improperly regarded him as having such a physical impairment. B. "Regarded As" Impaired Plaintiff argues that, in the event the court should find that he does not have an actual disability due to physical impairment, he is disabled because defendant regarded him as such. (D.I. 39 at 18-20) Under the ADA, a person is regarded as impaired when he: (1) [h]as a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) [h]as a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) [h]as none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l). While plaintiff has an impairment as defined by 29 C.F.R. § 1630.2(h), this court has already determined that such impairment does not substantially limit any of plaintiff's major life activities; therefore, in order to make a successful claim that he is "regarded as" disabled, plaintiff must show that his impairment was "treated by [defendant] as constituting such [a] limitation." Id. § 1630.2(l)(1). In support of his contention that defendant regarded his impairment as substantially limiting, plaintiff relies on "statements that [defendant's employees] made to the Delaware Department of Labor [("DDOL") ], that [plaintiff] could not communicate with them adequately during *251 the course of his employment." (D.I. 39 at 18) Aside from this single conclusory document,[8] plaintiff has not submitted any of the evidence on which such finding was based, including the purported statements by defendant's employees that plaintiff was not hired because he was unable to communicate with them. Indeed, other than the DDOL's Notice of Reasonable Cause Finding (which is inadmissible[9]) and his own testimony (that he was required to speak over a CB radio and not hired because of his voice), plaintiff has produced no evidence showing that defendant or its employees regarded him as substantially limited in the major life activity of speaking. Defendant, likewise, has proffered no substantive evidence, aside from Moluski's deposition testimony, that plaintiff's allegations are untrue. In order to grant defendant's motion for summary judgment, this court would have to weigh the credibility of plaintiff, Moluski, and their conflicting testimony. The United States Court of Appeals for the Third Circuit has held that, "[w]hile summary judgment may be based on affidavits, conflicts of credibility should not be resolved on a hearing on the motion for summary judgment unless the opponent's evidence is too incredible to be believed by reasonable minds.'" Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 909 (3d Cir.1984) (quoting 6 J. Moore, Moore's Federal Practice ¶ 56.15(4), at 56-524, 56-512.3 to 56-530 (2d ed.1976)). The record fails to reveal the volume or quality of speech necessary to be a dump truck driver. Nevertheless, should plaintiff prove that he was indeed asked to speak over a CB radio during his interview, a reasonable jury might be able to infer that defendant failed to hire plaintiff because Moluski regarded him as disabled. As recognized by the Third Circuit, "[l]t is the jury and not the court who is the ultimate fact finder." Id. at 909. The court concludes that plaintiff's testimony, if true, is not incredible, and leaves the ultimate determination of plaintiff's and Moluski's credibility to the jury; therefore, the portion of defendant's motion for summary judgment challenging plaintiffs "regarded as" claim of disability (D.I.34) is denied.[10] *252 V. CONCLUSION For the reasons stated above, defendant's motion for summary judgment is granted with regard to plaintiff's claim that he is actually disabled and denied as it pertains to the count alleging "regarded as" discrimination. Defendant's motions in limine are granted in part (excluding the DDOL's findings and evidence that plaintiff is actually disabled) and denied in part (with respect to the use of lay testimony). An appropriate order shall issue. NOTES [1] Plaintiff, in compliance with the law, filed suit within ninety days of receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission. (D.I. 2 at 4) [2] Defendant's motions in limine seek to preclude the introduction of the Delaware Department of Labor's Notice of Reasonable Cause Finding (D.I.42); the testimony of lay witnesses regarding plaintiff's lost wages claim (D.I.43); and any claims, arguments, or evidence purporting to show that plaintiff is actually disabled (D.I.44). [3] While the parties disagree over whether plaintiff was asked to speak over a CB radio at some point during the interview (see, e.g., D.I. 40 at B32-B33, B35, B46), it is undisputed that such an event did not occur during the road test itself (id. at B20). [4] The record indicates that plaintiff did not have his electric larynx with him at that time (D.I. 40 at 1326), presumably because he had not used it for over a decade (id. at B15). [5] Plaintiff's testimony about his speaking abilities belies his answering briefs contention that he can only "minimally communicate through the hole in his throat." (D.I. 39 at 15) [6] The determination of whether an impairment qualifies as a disability under the ADA is a fact-specific, case-by-case inquiry. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 185, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Although plaintiff cites several cases where speech impairments were found to pass muster under the ADA, one was reviewed under the lenient pleading standards of a motion to dismiss, Gottesman v. J.H. Batten, Inc., 286 F.Supp.2d 604 (M.D.N.C. 2003), while the plaintiff in the other case had significant ambulatory problems in addition to the difficulty the judge had in discerning what the plaintiff said, Dudley v. Hannaford Bros. Co., 190 F.Supp.2d 69 (D.Me.2002). [7] Consequently, defendant's motion in limine to preclude plaintiff from arguing that he is actually disabled (D.I.44) is granted. [8] In its Reasonable Cause Finding, the DDOL stated, under the heading "Undisputed Facts," that defendant "had an interview with [plaintiff] where the interviewer and [plaintiff] attempted to communicate using both a CB radio and a cell phone in an attempt to find a reasonable accommodation to [plaintiff's] disability." (D.I. 40 at B9) [9] As a matter of practice, this court regards documents such as the DDOL's Notice of Reasonable Cause Finding as inadmissible hearsay. Consequently, defendant's motion in limine to preclude testimony and evidence relating to the DDOL's findings (D.I.42) is granted. [10] One of defendant's motions in limine contends that, because plaintiff has not produced an expert report regarding his alleged lost wages and the deadline for acquiring such expert reports has passed, plaintiff should be precluded from seeking lost wages damages at trial. (D.I.43) Plaintiff responds: Based upon the information elicited from [Moluski], an adequate foundation would be established by which a jury could calculate the amount of lost wages and benefits that the plaintiff would have earned during his one year of unemployment, had the defendant not discriminated against him. Unlike the need to offer expert testimony as to the present value of future losses, the calculation of past lost wages, when there is an adequate factual foundation, requires only simple arithmetic. (D.I. 48 at ¶ 6) The court is not convinced that an expert witness is always necessary when addressing a claim for past lost wages. While the court will deny defendant's motion in limine on that issue (D.I.43), it will require plaintiff to make a proffer of the evidence and methods he intends to use to calculate such lost wages before it is introduced at trial.

FILED NOT FOR PUBLICATION JUN 27 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL ESPARZA, No. 10-55592 Petitioner-Appellant, D.C. No. CR 09-6251-PSG (MLG) v. MEMORANDUM* LELAND McEWEN, Warden, Respondent-Appellee. Appeal from the United States District Court for the Central District of California Philip S. Guitierrez, District Judge, Presiding Argued and Submitted June 2, 2014 Pasadena, California Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District Judge.** Daniel Esparza was convicted of second degree murder. In this appeal from the denial of a petition for a writ of habeas corpus, Esparza argues that trial counsel rendered ineffective assistance by: (1) failing to highlight the inconsistencies in the * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Edward R. Korman, Senior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation. state's ballistic evidence; and (2) failing to adequately investigate reports that another person had been identified as the shooter. 1. There were two different types of casings at the crime scene, including two .40 caliber spent casings directly across the street from where the victim was shot and two 9-millimeter spent casings approximately 400 feet away. The ballistics evidence established that the Glock handgun found in Esparza’s possession (three weeks later) had fired the .40 caliber spent casings at the crime scene directly across from the victim. There was, however, evidence to support an argument that the bullet which struck the victim may have been fired from a 9-millimeter weapon. This evidence was developed by petitioner’s trial counsel during cross-examination of the ballistics expert and, in his summation, he called attention to both the location of the shooting and the fact that the 9-millimeter casings were found there. [3 ER at 473.] Moreover, he argued from evidence that was elicited from the expert that, even if the Glock handgun was the murder weapon, the jury could find that Esparza received the Glock handgun after the shooting from a fellow gang member who used it to shoot the victim. Nevertheless, petitioner’s trial counsel placed greater emphasis on discrediting the eyewitness identification. In a written opinion, the trial judge rejected petitioner’s argument that his trial counsel should have placed greater emphasis on the evidence suggesting that the 2 murder weapon was not the Glock handgun that was found in petitioner’s possession three weeks later. While petitioner’s argument is not without some merit, it is not sufficient to justify habeas corpus relief. “Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court's application of Strickland was unreasonable under [AEDPA] § 2254(d) is all the more difficult.” Harrington v. Richter, 131 S.Ct. 770, 788 (2011). “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (internal citations omitted). After reviewing the record, we conclude that petitioner has not met this double deferential standard. 2. Relying entirely on a defense investigator’s report, which stated that Jesus Romero had been identified as the shooter but that the police had ruled him out because he was in Mexico at the time of the shooting, petitioner argues that his trial counsel should have done more to investigate the possibility that Romero was the shooter. In rejecting this claim, the trial judge observed that, “the investigative report . . . does not explain how Romero was identified as the shooter. In this regard, [it] is unclear whether the ‘identification’ was in fact made by an eye witness or by some other means. Moreover, assuming identification was made by an eye witness, Petitioner does not present evidence that the person who identified Romero as the 3 shooter was available to testify.” [1 ER at 50-51.] Under these circumstances, we cannot say that the trial judge unreasonably rejected this prong of petitioner’s ineffective assistance of counsel claim. 3. Esparza also seeks to raise the uncertified issue of whether the evidence of anonymous calls to the police identifying the shooter as a member of the Langdon gang violated his right to confrontation. As the district court properly instructed the jury, however, the anonymous calls were not offered to prove that the shooter was from Langdon, but to explain the officer’s next steps in the course of the investigation. See United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013). Indeed, except in unusual circumstances not present here, see Bruton v. United States, 391 U.S. 123, 135-36 (1968), “juries are presumed to follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 211 (1987). Moreover, the calls were not introduced into evidence to explain the basis of an expert’s opinion. See Williams v. Illinois, 132 S. Ct. 2221 (2012). Thus, Esparza has failed to raise a claim that is “debatable amongst jurists of reason,” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003), and we decline to issue a certificate of appealability, see 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1102–04 (9th Cir. 1999) (per curiam). AFFIRMED. 4 5 

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 24, 2012 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 10-3314 (D.C. No. 2:08-CR-20040-JWL-1) MICHAEL L. RICHARDS, (D. Kan.) Defendant-Appellant. ORDER AND JUDGMENT* Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges. A jury convicted Mr. Richards of two counts of distribution of marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D); one count of possession with intent to distribute marijuana, id.; one count of use of a firearm during and in relation to, or possession of a firearm in furtherance of, a drug trafficking crime, 18 U.S.C. § 924(c); and one count of being a felon in possession of a firearm and ammunition, * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R App. P. 32.1 and 10th Cir. R. 32.1. id. §§ 922(g)(1), 924(a)(2).1 The district court sentenced Mr. Richards to 60 months’ imprisonment on each of the marijuana counts and to 84 months’ imprisonment on the felon-in-possession count, all to run concurrently to each other; and to 60 months’ imprisonment on the use-of-a-firearm count, to run consecutively to the other counts, for a total sentence of imprisonment of 144 months. In imposing the 84-month sentence on the felon-in-possession count, the district court departed upward from the recommended Guideline range of 51 to 63 months. The district court also denied Mr. Richards’ motion for a downward departure. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), explaining why counsel believes there to be no reasonable grounds for appeal. Mr. Richards has filed a response requesting appointment of counsel and listing a number of issues for our consideration. The government did not file a response brief. In his Anders brief, counsel identifies the following potentially appealable issues in this case, none of which, according to counsel, has merit: (1) whether the government presented sufficient evidence to support each count on which Mr. Richards was convicted; (2) whether the district court committed reversible error 1 The jury acquitted Mr. Richards of one charged count of maintaining a residence for the purpose of distributing marijuana, 21 U.S.C. § 856(a)(1) & (2). It also answered “no” to the special question on the verdict form asking whether “the defendant discharged a firearm during and in relation to or in furtherance of a drug trafficking crime.” R., Vol. 1 at 223. -2- in its rulings on certain evidentiary issues and by failing to grant a mistrial after a specific reference was made during trial to Mr. Richards’ prior convictions; (3) whether the district court’s § 924(c) instruction was legally erroneous or unduly prejudicial; and (4) whether Mr. Richards’ sentence was procedurally and substantively reasonable. In his pro se response to counsel’s Anders brief, Mr. Richards presents additional argument and citations in support of these issues. He also challenges the district court’s § 924(c) instruction on grounds additional to those identified by counsel, see Aplt. Resp. at 6-8; contends that he received insufficient prior notice of the basis on which the district court predicated its upward departure, see id. at 10; and argues that “personal use” marijuana was improperly counted against him in deriving the base offense level used at sentencing, see id. at 11. Finally, he makes claims of ineffective assistance of trial counsel, which cannot be considered in this direct appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). When defense counsel files an Anders brief, we are required to conduct “a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744. After reviewing counsel’s helpful and excellent brief and the additional brief filed by Mr. Richards, and having conducted the examination required by Anders, we agree with counsel that Mr. Richards has no non-frivolous grounds he could raise on appeal. -3-  We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal. Mr. Richards’ motion for appointment of counsel is DENIED. We also DENY Mr. Richards’ “Motion for New Deadline,” filed May 18, 2012. The panel has reviewed the trial transcript and found no colorable basis for arguments not already presented. Entered for the Court Monroe G. McKay Circuit Judge -4- 

924 F.2d 1062 Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Prudence Sui-Ning CHOU, Plaintiff-Appellant,v.UNIVERSITY OF CALIFORNIA, Defendant-Appellee. No. 89-15629. United States Court of Appeals, Ninth Circuit. Submitted Dec. 7, 1990.*Decided Jan. 31, 1991. Before FARRIS, CYNTHIA HOLCOMB HALL, and KOZINSKI, Circuit Judges. 1 MEMORANDUM** 2 Prudence Sui-Ning Chou appeals in propria persona the district court's dismissal of her employment discrimination action against the University of California for her failure to comply with a court order compelling discovery, and the dismissal of her motion to reconsider the dismissal. She argues that her failure to comply with the order compelling discovery was not willful or in bad faith, and that dismissal therefore was inappropriate. We affirm. 3 Chou alleged in her complaint that professors at the University of California denied her employment on account of her race and sex in violation of Title VII of the Civil Rights Act of 1964. In an order entered January 11, 1988, the district judge instructed Chou to appear for her deposition to be taken on February 8, 1988, and advised her that her failure to appear and answer questions would be considered grounds for dismissal. 4 On January 21, 1988, Chou filed an objection to the order compelling discovery, in which she stated that the order was "incapable of execution" because she was in poor health, lacked funds, and had no car. She stated that public transportation took three hours from her home in Santa Rosa to the site of the deposition in Berkeley. Chou failed to appear for the scheduled deposition. On March 29, 1988, the district court dismissed her action with prejudice pursuant to Fed.R.Civ.P. 37(b)(2)(C). 5 Chou filed notice of appeal on March 31, 1988. On April 5, 1988, she filed a "post-judgment motion" in the district court for reconsideration of the order of dismissal. On July 1, 1988, we dismissed Chou's appeal for lack of jurisdiction pursuant to Fed.R.App.P. 4(a)(4), because her motion for reconsideration was pending in the district court. The district court dismissed Chou's motion for reconsideration on April 11, 1989, on the ground that she divested the district court of jurisdiction when she filed notice of appeal on March 31, 1988. We now treat Chou's appeal from the dismissal of her motion for reconsideration as a timely renewal of the appeal of the March 29, 1988 dismissal. 6 Federal Rule of Civil Procedure 37(b)(2) authorizes sanctions against a party who "fails to obey an order to provide or permit discovery." Such sanctions may include "[a]n order ... dismissing the action or proceeding or any part thereof." Fed.R.Civ.P. 37(b)(2)(C). Dismissal for failure to comply with a discovery order is appropriate only where the violation is "due to willfulness, bad faith, or fault of the party." United States for the Use and Benefit of Wiltec Guam, Inc. v. Kahaluu Construction Co., 857 F.2d 600, 603 (9th Cir.1988). 7 We reject Chou's argument that dismissal was improper because her failure to appear for deposition was not due to willfulness, bad faith, or fault on her part. In the absence of a definite and firm conviction that a clear error of judgment was made, we will not reverse the district court's finding as to willfulness, bad faith or fault. See United Artists Corp. v. La Cage aux Folles, Inc., 771 F.2d 1265, 1270 (9th Cir.1985). The record supports the district court's conclusion that Chou's discovery violations reflected willfulness and bad faith. Chou repeatedly failed to appear for depositions by the University of California's counsel, failed to answer questions at deposition, and left depositions prior to their completion. 8 The district court attempted to implement a lenient alternative sanction against Chou rather than dismiss her case. On January 7, 1988, the court denied the University's motion to dismiss Chou's action, and ordered Chou to appear and answer questions by deposition on February 8, 1988, at the office of the University's counsel. The court explicitly warned Chou that her failure to appear at the deposition and answer questions would be considered grounds for dismissal. Chou's argument that her health and lack of funds prevented her from being in Berkeley for the deposition lacks merit. That she filed a document stating her intention to miss the deposition with the district court on January 21, 1988, nineteen days before the scheduled deposition, indicates that her absence was willful. Chou offers no facts that rebut the conclusion that her failure to appear at the scheduled deposition was willful and attributable to her own fault. The district court was within its discretion in dismissing her action. See Kahaluu Construction Co., 857 F.2d at 603; La Cage aux Folles, 771 F.2d at 1270. 9 AFFIRMED. * The panel unanimously finds this case suitable for submission without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

790 F.2d 1270 58 A.F.T.R.2d 86-5118, 86-1 USTC P 9474 Kenneth H. LINN, et al., Plaintiffs-Appellants,v.Jack CHIVATERO, etc., et al., Defendants-Appellees. No. 85-3563. United States Court of Appeals,Fifth Circuit. June 6, 1986. Robert I. White, Houston, Tex., for plaintiffs-appellants. Gayle P. Miller, Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., U.S. Dept. of Justice, Washington, D.C., Robert E. Lindsay, Roger M. Olsen, Acting Asst. Atty. Gen., Washington, D.C., for defendants-appellees. Appeal from the United States District Court for the Eastern District of Louisiana. Before CLARK, Chief Judge, JOLLY and HILL, Circuit Judges. PER CURIAM: 1 John Stassi appeals the district court's denial of his request for attorney's fees and costs. We reverse. I. 2 In January, 1982, Internal Revenue Service Agent Wigginton issued an IRS summons to taxpayer Linn requiring production of certain corporate records. Linn's counsel, John Stassi, sent a messenger to deliver the documents. By mistake, both corporate and personal records were delivered. Stassi immediately informed Wigginton that only the corporate documents were responsive to the summons, that Linn's Fifth Amendment privilege was asserted with regard to the personal records and that he was on his way to pick up the records. When Stassi arrived, he and Agent Wigginton agreed to inventory the personal records and separate the corporate from the personal records on the following day. Instead, Wigginton worked until after midnight copying as many of the documents as she could. The next day Stassi and Wigginton segregated the documents into groups that were "responsive," "non-responsive" and "disputed." 3 When the IRS refused to return the disputed documents or any of the copies made, Linn and Stassi filed an action alleging violation of Linn's Fourth and Fifth Amendment rights and seeking a return of all of the originals and all disputed documents and copies along with an injunction against use of the information gathered from them. Stassi agreed to bear the costs of such suit since he was responsible for the oversight. The district court determined that the Anti-Injunction Act, 26 U.S.C. Sec. 7421(a), deprived it of jurisdiction to hear the complaint because the constitutional violations occurred incident to an IRS investigation. 4 On appeal, this Court held that the district court did have jurisdiction but declined to decide the constitutional issues. Linn v. Chivatero, 714 F.2d 1278 (5th Cir.1983). Two members of the panel based their holding on the inapplicability of the Anti-Injunction Act to Fourth Amendment claims. The other panel member found the Act applicable but determined that the case fell within the judicially-created exception to the Act set out in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). 5 Upon remand, the government declined to litigate further and judgment was entered pursuant to the government's motion to dismiss. Stassi then requested attorney's fees and costs under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(a) and (d). The district judge denied this request because he found that there was substantial justification for the government's position. Costs were also denied on the basis that Stassi and Linn were not "prevailing" parties since the court had not reached a decision on the merits. Stassi appeals the denial of attorney's fees and costs. II. 6 Before it was amended in 1985, the Equal Access to Justice Act provided for an award of attorney's fees to the prevailing party "unless the court finds that the position of the United States was substantially justified." 28 U.S.C. Sec. 2412(d)(1)(A). The phrase "position of the United States" was then subject to at least two interpretations: the first considered the position the agency took in the underlying action (agency position) and the second looked solely to the position the government took in the litigation (litigation position). In Russell v. National Mediation Board, 764 F.2d 341 (5th Cir.1985) (Russell I ), the Fifth Circuit adopted the litigation position theory. 7 The 1985 amendments to the Act define "position of the United States" as "in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. Sec. 2412(d)(2)(D). [Pub.L. 99-80 Aug. 5, 1985]. This amendment applies to "cases pending on or commenced on or after the date of the enactment of this Act," (August 5, 1985). This Court has held that the statute applies to fee applications pending on the date of enactment. Russell v. National Mediation Board, 775 F.2d 1284 (5th Cir.1985) (Russell II ) (withdrawing the opinion in Russell I ). Because the case before us today was still pending on remand to the district court on August 5, 1985 both parties concede that the amended Equal Access to Justice Act is applicable and thus that the definition of the "position of the United States" contained in the amended Act applies here. 8 Under the state of the law at the time of the district court's decision now on appeal, it is possible that the United States could have avoided the imposition of fees by asserting that its litigation position--a contest of jurisdiction--was justified. The district court, relying on the then-current authority of Russell I, did, indeed, find the government's litigation position to be substantially justified and accordingly denied Stassi's request for attorney's fees. We need not decide whether that ruling was correct when made because when Congress eliminated the conflict between the circuits on the meaning of "position of the United States," by requiring there be substantial justification for both the litigation position and the underlying action taken, it legislatively overruled Russell I--the predicate for the district court's holding. The government then could no longer justify its position. This change in the law requires this court to examine the agency's action and to consider whether the underlying actions of the IRS amounted to wrongful resistance of the request of Linn's attorney to retrieve Linn's personal documents and copies. 9 The government, by its actions, has implicitly conceded that this action was wrongful. Not only did the IRS agent, after reaching an oral agreement with Stassi, remain long after working hours to copy the documents before Stassi arrived the next day, but also after the Court found the government's litigation position lacked merit, the government chose to capitulate rather than litigate the validity of their actions. These factors indicate an acceptance of the complaint's characterization of the agency's actions which was that they were not justified at all. Certainly they were not substantially justified.III. 10 The government contends on the present appeal that Stassi is not the real party in interest in this action since it was Linn's constitutional rights that were asserted. At oral argument, counsel for the government informed the panel that Linn was a fugitive from justice and should not be allowed to continue his appeal in federal court. The government subsequently filed a motion to dismiss the appeal as to Linn. Stassi counters this argument by insisting that he is the real party in interest because he agreed to bear the entire cost of litigation and will be the party aggrieved in fact by the denial of attorney's fees. 11 We will not decide this issue because the government raises it for the first time on appeal. The government indicated in its most recent pleadings that Linn had been a fugitive since he was indicted on July 12, 1984, yet it did not choose to raise this substantive argument until Stassi appealed the denial of attorney's fees. We will not entertain an argument raised for the first time on appeal. Claims so raised are generally not reviewable by this Court unless they involve purely legal issues and refusal to consider them would result in grave injustice. Self v. Blackburn, 751 F.2d 789 (5th Cir.1985).1 IV. 12 Under the Equal Access to Justice Act Stassi is entitled to an award of attorney's fees. He was a prevailing party because the judgment entered in the litigation he brought granted him the relief he sought. The agency position of the United States was not justified. No special circumstances rendering an award of attorney's fees unjust are apparent. In addition, as the prevailing party in a civil action brought against the United States, Stassi is entitled to the costs incurred in the litigation. 28 U.S.C. Sec. 2412(a); 28 U.S.C. Sec. 1920; F.R.A.P. 39(a). The judgment appealed from is reversed and the action is remanded to the district court with directions to conduct such further proceedings as may be necessary to determine a reasonable fee for the service of Stassi's attorney in the instant proceeding if the parties are unable to agree on a proper fee amount, and to award those fees together with costs against the United States. 13 REVERSED AND REMANDED. 1 We note that the Fifth Circuit authority cited by the government in support of its contention is limited to the criminal context. See Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir.1976). Furthermore, Stassi is present in the jurisdiction and actively pursuing this appeal on his own behalf

264 F.Supp. 425 (1967) Edmund DINIS et al., Plaintiffs, v. John A. VOLPE, as Governor of the Commonwealth of Massachusetts, and Elliot L. RICHARDSON, as Attorney General of the Commonwealth of Massachusetts, and Kevin H. White, as Secretary of the Commonwealth of Massachusetts, Defendants. Civ. A. No. 66-767-G. United States District Court D. Massachusetts. February 15, 1967. *426 Edmund Dinis, New Bedford, Mass., for plaintiffs. David Berman, Asst. Atty. Gen., Boston, Mass., for defendants. Before WOODBURY,[*] Senior Circuit Judge, and WYZANSKI and GARRITY, District Judges. OPINION OF THE COURT WOODBURY, Senior Circuit Judge. This suit is brought by seven registered voters (one in each of the Third, Fourth, Fifth, Sixth, Ninth, Tenth and Eleventh Congressional Districts of the Commonwealth of Massachusetts), in their own behalf and in behalf of other eligible voters similarly situated, against the Governor, the Secretary of State and the Attorney General of Massachusetts. The prayer is for a declaration that the current Massachusetts Apportionment Act, Chapter 315, Acts of 1962, General Laws Chapter 57 § 1, as amended, is unconstitutional and for an injunction restraining the defendants "from assuming any responsibility or taking any action with respect to the nomination or election of Representatives to the Congress of the United States" from the Congressional Districts as they are now constituted. There being no genuine issue as to any material fact the case comes before this duly constituted district court of three judges on cross motions for summary judgment. Application of the provisions of § 22 of the Act of June 18, 1929, providing for the apportionment of Representatives in Congress, 46 Stat. 26, 27 as amended 2 U.S.C. § 2a, resulted after the 1960 census in the reduction of the Massachusetts delegation to the National House of Representatives from 14 to 12. Upon notification of this change as federal law requires, the Massachusetts House and Senate by joint order established a joint special committee "for the purpose of recommending a new division of the commonwealth into congressional districts in conformity with existing law." The committee split strictly along party lines and filed majority and minority reports. The Massachusetts Legislature did not adopt either report but enacted an apportionment of its own. The population discrepancies among the congressional districts as established by the legislature and among the districts as they would have been had either the majority or minority report of the joint special committee been adopted are shown by the following table, in which the "Deviation" *427 figures denote the variations from an ideal or average size district and the "%" figures denote the percentages of such deviations: LEGISLATURE'S COMMITTEE COMMITTEE MINORITY DISTRICTS PLAN MAJORITY PLAN PLAN --------------------------------------------------------------------------------------------------------- POPULATION DEVIATION % POPULATION DEVIATION % POPULATION DEVIATION % 1 376,336 -52,712 -12.4 404,541 -24,611 -5.7 404,727 -24,425 -5.7 2 388,578 -40,470 - 9.3 406,675 -22,477 -5.2 408,278 -20,874 -4.9 3 441,558 +12,510 + 3. 405,036 -24,116 -5.6 407,028 -22,124 -5.2 4 444,069 +15,021 + 3.5 406,311 -22,841 -5.3 415,611 -13,541 -3.2 5 450,716 +21,668 + 5.1 445,593 +16,441 +3.7 448,721 +19,569 +4.6 6 452,956 +23,908 + 5.6 449,429 +20,277 +4.8 452,956 +23,804 +5.6 7 392,350 -36,698 - 8.6 408,088 -21,064 -3.9 408,692 -20,460 -4.8 8 420,596 - 8,452 - 1.9 449,120 +19,968 +4.7 450,129 +20,977 +4.9 9 478,962 +49,914 +11.7 450,438 +21,286 +5. 407,839 -21,313 -5. 10 456,308 +27,260 + 6.3 445,396 +16,244 +3.6 445,200 +16,048 +3.7 11 441,180 +12,132 + 2.8 426,830 - 2,322 - .5 453,527 +24,375 +5.7 12 404,969 -24,079 - 5.6 452,438 +23,276 +5.5 447,187 +18,135 +4.2 ----------------------------------------------------------------------------------------------------------- Total 5,148,578 5,149,895 5,149,895 Ideal (1/12) 429,048 429,152 429,152 Variation between smallest and largest 102,626 47,887 48,790 (1st-9th) (1st-12th) (1st-11th) Ratio smallest to largest 1 to 1.27 1 to 1.12 1 to 1.12 *428 It is apparent that under the plan adopted by the legislature the difference in population between the largest and smallest districts, viz., the 1st and 9th, is 102,626, or approximately ¼ the size of an ideal district. Under the plans proposed in the majority and minority reports the differences between the largest and smallest districts were slightly less than 50,000, or approximately 1/10; the size of an ideal district. In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), decided some two years after the legislative apportionment here under consideration, the Supreme Court laid down the constitutional principles to be applied by state legislatures in establishing congressional districts. It said, pages 7 and 8, 84 S.Ct. page 530: "We hold that, construed in its historical context, the command of Art. I, § 2, that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." That is to say, the Court in Wesberry applied under Art. I § 2 the "one person, one vote" principle, see Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), to congressional districting which it had applied earlier in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962), under the Equal Protection Clause of the Fourteenth Amendment to districting for the election of representatives to the lower houses of state legislatures.[1] Although seats in both houses of bicameral state legislatures and seats in the United States House of Representatives must be apportioned on the basis of population, mathematical precision is not constitutionally required. The Court in Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), recognized that arithmetical equality of districts is a practically unattainable ideal. Moreover, even if arithmetical equality of districts based upon the latest census (reapportionment more frequently than after each decennial census is not constitutionally necessary, Reynolds v. Sims, supra, 583, 84 S.Ct. 1393), could be achieved by disregarding locally established voting precincts, which we do not understand to be a constitutional requirement, numerical equality would not obtain for long because of inevitable shifts in population from one area of a state to another. Recognizing these facts the Supreme Court has not set mathematical bounds to the scope of constitutionally permissible deviation from the ideal quotient.[2] On the contrary the Court has specifically warned that apportionment cases are not to be decided by solving an exercise in grade school arithmetic. In Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964), the Court was careful to point out that in affirming the decision below it did not mean to indicate any approval of the district court's attempt to state in mathematical language the constitutionally permissible bounds of discretion in deviating from apportionment according to population. It said: "In our view the problem does not lend itself to any such uniform formula, and it is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause. Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based *429 representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination." This language applies specifically to the apportionment of Representatives to state legislatures. Nevertheless, we think it clear that the language also applies to the apportionment of Representatives to the United States Congress. Of course figures are essential to show that population disparity of districts is de minimis, or, on the other hand, to show that population disparity is so gross as to suggest, if not clearly to establish, legislative disregard for the "one person, one vote" principle. The actual test, however, is not mathematical but is what is "practicable" under the particular circumstances of the state involved. Measured by this test the Massachusetts Congressional Apportionment Act does not pass constitutional muster. The reason for this is that there is nothing whatsoever before us to show that it would not have been entirely "practicable" for the legislature to have districted the Commonwealth not as it did, but as recommended by either the majority or minority of its joint special committee which, had it done so, would have provided districts more nearly equal in population as the above table clearly shows. This in a nut shell disposes of the case at bar. But we would be less than frank if we ended our opinion at this point. First and foremost we wish clearly to emphasize that we do not intend to imply, far less to hold, that apportionment according to either committee report would meet the federal constitutional standard. For all that has been made to appear it would be entirely "practicable" to divide the Commonwealth into even more nearly numerically equal districts. Moreover, it is evident from the joint special committee's reports that, lacking the guidance of Wesberry v. Sanders, neither the majority nor the minority confined its consideration to population but gave weight to constitutionally extraneous matters such as area. In the second place we think discussion of the proper use of other cases as precedents is in order. While staying within mathematical limits judicially approved in comparable congressional districting cases is not necessarily to stay within constitutional bounds for the reason, as we have already pointed out, that apportionment cases are not to be decided by application of any mathematical formula but must be solved by the test of practicability with reference to the specific situation present in the state involved,[3] nevertheless deviations from the ideal quotient judicially disapproved in other cases do give some indication of the limits of constitutional departure from numerical equality. This invites discussion of Grills v. Branigan, 255 F.Supp. 155 (S.D.Ind.1966), heavily relied upon by the defendants. In that case a majority of a three-judge district court for the Southern District of Indiana held constitutionally acceptable the Indiana Congressional Reapportionment Act of 1965 in a factual context rather strikingly similar to the present.[4] Specifically the court held that an extreme variation in the population of congressional districts from 369,663 to 454,208, or 84,545, or from an under population of 12.8% to an over population *430 of 7.2% for a total variance from the least to the highest populated district of 20%,[5] did not render the apportionment constitutionally invalid. But on appeal sub nom. Duddleston v. Grills, 385 U.S. 455, 87 S.Ct. 611, 17 L.Ed.2d 508 the Supreme Court on January 9, 1967, vacated the judgment of the district court and remanded for further consideration in the light of Swann v. Adams, decided on the same day, and also in the light of Wesberry v. Sanders and Reynolds v. Sims, supra. Having already discussed the last two cases we turn to Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501. Swann v. Adams is a state legislative apportionment case. In it a three-judge district court for the Southern District of Florida held a Florida apportionment constitutionally valid although the senate districts ranged in population from 87,595 to 114,053 or from 15.09% over represented to 10.56% under represented and the house districts ranged in population from 34,584 to 48,785 or from 18.28% over represented to 15.27% under represented. On appeal the Supreme Court reversed. It said: "We reverse for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts with respect to both the senate and house of representatives." The Court reiterated that mathematical exactness is not required in state apportionment plans. It said at page 444, 87 S.Ct. at page 572: "De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy." Defining "acceptable state policy" sufficient to justify deviations from a strict population basis for apportionment, the Court, referring to Reynolds v. Sims, 377 U.S. at page 579, 84 S.Ct. 1362 said: "* * * variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines." The Court declared that it had no alternative but to reverse because "no attempt had been made to explain or justify the many variations among the legislative districts." Since the Court vacated the judgment in Duddleston v. Grills and remanded for reconsideration in part on Swann v. Adams and Reynolds v. Sims, both state legislative apportionment cases, there can be no doubt that the principles enunciated in those cases apply also in congressional apportionment cases like Duddleston and the case at bar. We have discussed the opinion in Swann v. Adams in some detail and quoted from it at some length not merely because it is the last authoritative word on the subject but more importantly because, as the dissenting justices point out, it announces a departure from past practice in that it casts the burden on the state of explaining or justifying whatever departures there may be, within of course constitutionally imposed limits, from a strict population basis for districting. That is to say, states now must be prepared to show a valid reason for any departure, beyond de minimis, from districting strictly on the basis of population. We shall not now grant any injunctive relief. Instead, since the Massachusetts Legislature is now in session and the next congressional election is almost two years distant, and since "legislative *431 reapportionment is primarily a matter for legislative consideration and determination, and * * * judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so", Reynolds v. Sims, supra, 377 U.S. 586, 84 S.Ct. 394, quoted with approval in Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), we shall, in accordance with the general practice in these cases, retain our jurisdiction pending appropriate action by the Massachusetts Legislature. INTERLOCUTORY DECLARATORY DECREE This action came on for hearing before the Court, Woodbury, Senior Circuit Judge, and Wyzanski and Garrity, District Judges, and the issues having been duly heard on cross motions for summary judgment and a decision having been duly rendered, It is Declared that Chapter 57, section 1, of the General Laws of the Commonwealth of Massachusetts, as amended by Acts of 1962, Chapter 315, violates Art. I, § 2, of the Constitution of the United States and is invalid. The court will withhold further action until after the end of the current session of the Massachusetts Legislature. Jurisdiction over the parties is retained until further order of the court. Dated at Boston, Massachusetts, this 15th day of February, 1967. /s/ Russell H. Peck Clerk of Court PETER WOODBURY Senior Circuit Judge CHARLES E. WYZANSKI, JR. United States District Judge W. ARTHUR GARRITY, JR. United States District Judge NOTES [*] Sitting by designation. [1] It applied the same principle to districting for the election of representatives to the upper houses of bicameral state legislatures in Reynolds v. Sims, 377 U.S. 533, 568-571, 84 S.Ct. 1362, 12 L.Ed. 2d 506 (1964). [2] The ideal quotient, or ideal ratio, is the number obtained by dividing the number of inhabitants by the number of their representatives to be chosen. In this case it is the population of Massachusetts as of the last census, 5,148,578, divided by the number of representatives allocated to it, 12, or 429,048. [3] See Reynolds v. Sims, supra, 377 U.S. 578, 84 S.Ct. 1390, wherein the Court said: "What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case." See also Swann v. Adams, infra, in which the Court said: "* * * the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." [4] The majority of the court in doing so said it was "not unmindful" of the likelihood of improvements by subsequent legislation and "strongly suggested" that the General Assembly of Indiana take action to eliminate "any abnormalities in the 1965 congressional reapportionment Act." [5] None of the districts varied from the ideal population figure (423,863) by as much as 15% and only one by more than 10%.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-325-CV IN RE MICHAEL RICHARD MORRISSEY   RELATOR ------------ ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION (footnote: 1) ------------ The court has considered Relator’s petition for writ of mandamus and is of the opinion that relief should be denied. (footnote: 2)  Accordingly, Relator’s petition for writ of mandamus is denied. PER CURIAM PANEL:  GARDNER, DAUPHINOT, and WALKER, JJ. DELIVERED: November 25, 2009 FOOTNOTES 1:See Tex. R. App. P. 47.4. 2:This court has been informed by the district clerk’s office and by the trial court clerks for Criminal District Court No. 1 and Criminal District Court No. 3 that they have not received the application for writ of habeas corpus that Relator contends he filed on May 31, 2009.   Presentment of the motion to the trial court is a prerequisite to mandamus relief.   See O’Connor v. First Court of Appeals , 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding) (“Mandamus will issue when there is a legal duty to perform a non-discretionary act, a demand for performance, and a refusal.”); In re Chavez , 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding) (“Indeed, one can hardly be faulted for doing nothing if he were never aware of the need to act.”).   Because Relator’s motion has never been received by the district clerk’s office for filing, the Respondent has not been provided an opportunity to rule upon the motion.  

497 F.Supp.2d 666 (2007) In re LINERBOARD ANTITRUST LITIGATION. This Document Relates to: Procter & Gamble Company, et al. v. Stone Container Corporation, et al. Mars, Inc., et al. v. Stone Container Corporation, et al. Perdue Farms, Inc. v. Stone Container Corporation, et al. MDL No. 1261, Nos. 03C-3944 (N.D.Ill.), 03C-6977 (N.D.Ill.), 03-CV-1702 (D.Md.). United States District Court, E.D. Pennsylvania. July 30, 2007. *667 MEMORANDUM DuBOIS, District Judge. In this multidistrict litigation brought under Section 1 of the Sherman Act, 15 U.S.C. § 1, plaintiffs allege that several U.S. linerboard manufacturers conspired to restrict linerboard output in order to increase the price of corrugated sheets and corrugated boxes.[1] Currently before the Court is Defendants' Motion to Exclude the Testimony of Prof. Halbert L. White, Jr. ("Motion to Exclude"), the direct-action plaintiffs' damages expert. Defendants contend that Professor White's predictive econometric damages model does not address the issue of causation — whether defendants' alleged unlawful conduct caused the alleged overcharge *668 for corrugated sheets and corrugated boxes. Although defendants affirmatively challenge only the "fit" of Professor White's testimony, defendants' arguments also implicate the reliability of Professor White's methodology in the context of establishing antitrust damages. In contrast, defendants do not challenge Professors White's qualifications as an economist or the reliability of predictive modeling in other contexts.[2] After conducting oral argument and a Daubert hearing[3] on June 14, 2007 and July 2, 2007, the Court concludes that Professor White's damages model fits the facts of this case and is a reliable method of establishing causation of damages in price-fixing cases.[4] Accordingly, his testimony is admissible and defendants' Motion to Exclude is denied. The Court need not and does not address whether Professor White's testimony, standing alone, would be sufficient to support a finding of causation of damages so as to survive a motion for summary judgment.[5] I. BACKGROUND The factual background of this case is described in detail in this Court's previous opinions. See, e.g., In re Linerboard Antitrust Litig., 2000 WL 1475559, *1 (E.D.Pa. Oct.4, 2000) (denying motion to dismiss); In re Linerboard Antitrust Litig., 203 F.R.D. 197, 201-04 (E.D.Pa.2001), aff'd, 305 F.3d 145 (3d Cir.2002), cert. denied, 538 U.S. 977, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003) (certifying classes of direct purchasers of corrugated boxes and corrugated sheets); In re Linerboard Antitrust Litig., 296 F.Supp.2d 568 (E.D.Pa.2003) (approving final class settlement); In re Linerboard Antitrust Litig., 2004 WL 1221350, *1 (E.D.Pa. Jun.2, 2004) (awarding class counsel attorney's fees); In re Linerboard Antitrust Litig., 223 F.R.D. 335, 337 (E.D.Pa.2004) (denying motion to dismiss state claims based on statute of limitations); In re Linerboard Antitrust Litig., 223 F.R.D. 357 (E.D.Pa.2004) (denying motion under Rule 60 and motion for *669 expedited discovery); In re Linerboard Antitrust Litig., 2005 WL 1625040, *1 (E.D.Pa. July 11, 2005) (granting motion to remand for lack of subject matter jurisdiction); In re Linerboard Antitrust Litig., 443 F.Supp.2d 703 (E.D.Pa.2006) (granting motion for summary judgment against one direct action plaintiff). Accordingly, the Court sets forth only those facts necessary to resolve defendants' Motion to Exclude. A. Overview Plaintiffs in this case purchased corrugated products from defendants.[6] According to plaintiffs, defendants "conspired to raise the price of corrugated containers and corrugated sheets throughout the United States by restricting production and/or curtailing inventories in violation of federal antitrust laws." In re Linerboard Antitrust Litig., 223 F.R.D. 357, 359 (E.D.Pa.2004). Specifically, plaintiffs allege that defendant Stone Container Corporation ("Stone") devised a strategy to invite its competitors to increase the price of linerboard. As part of this strategy, Stone planned to take downtime at its plants to reduce its production and inventory of linerboard substantially, and contemporaneously to purchase substantial amounts of linerboard from competitors — actions which, plaintiffs allege, were extraordinary, and not in the regular course of business. * * * * * * The concerted actions of the defendants in taking downtime at the mills producing linerboard, and then increasing the price of linerboard, resulting in price increases for corrugated sheets and corrugated boxes, forms the basis of the conspiracy at issue in this case. In re Linerboard Antitrust Litig., 203 F.R.D. 197, 204 (E.D.Pa.2001). In its Memorandum addressing class certification, the Court explained that the conspiracy alleged in this case is tantamount to a price-fixing agreement. "An agreement on output also equates to a price-fixing agreement. If firms raise prices, the market's demand for their product will fall, so the amount supplied will fall too — in other words, output will be restricted. If instead firms restrict output directly, price will as mentioned rise in order to limit demand to the reduced supply." Id. at 216 (citing Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 226 (7th Cir.1978)). B. Discussion of Impact at the Class Certification Stage To demonstrate that the questions of law and fact common to the members of the class predominated over any questions affecting only individual members, the Court applied a presumption of impact known as the "Bogosian short-cut": "If, in this case, a nationwide conspiracy is proven, the result of which was to increase prices . . . beyond the prices which would obtain in a competitive regime, an individual plaintiff could prove fact of damage[7] simply by proving that *670 the free market prices would be lower than the prices paid and that he made some purchases at the higher price." Id. (citing Bogosian v. Gulf Oil Corp., 561 F.2d 434, 454 (3d Cir.1977)). The Court also briefly addressed plaintiffs' "econometric models to be used to establish impact." Id. at 218. Specifically, the Court examined the affidavit of Dr. John C. Beyer, plaintiffs' economic expert. As the Third Circuit explained in affirming the Court's class certification, In discussing . . . feasible approaches[] which could be used to provide quantitative methods for corroborating his opinion on impact and for estimating damages, [Dr. Beyer] suggested as a potential benchmark[] the potential prices charged for linerboard during a competitive period when there would be no effects of the conspiracy. He explained that the necessary data was available to do the analysis and described the types of data he would use. He discussed also a multiple regression model[8] to isolate the effects of various influences on corrugated container prices, thereby allowing a determination of the impact of any one of the variables, including, in this case, the impact of the conspiracy. In re Linerboard Antitrust Litig., 305 F.3d 145, 154 (3d Cir.2002). II. PROFESSOR WHITE'S ECONOMETRIC MODEL Direct-action plaintiffs retained Professor White to opine on the extent to which the alleged conspiracy caused them to pay higher prices for corrugated containers.[9] White Rpt. ¶ 1. The objective of Professor White's analysis was "to estimate `but-for' prices of corrugated containers and sheets, that is, the prices that would have prevailed but for the existence of the alleged conduct, covering every affected purchase for each plaintiff in this matter." Id. ¶ 120. In other words, Professor White estimated "but-for prices consistent with the level of competition and interaction of market forces that prevailed when the alleged conduct was not in effect." Id. To accomplish this, Professor White developed an "econometric model that relates product prices to the underlying costs and demand shifters in the industry using data that exclude the period of the alleged conduct. [He] then appl[ied] this relationship to estimate what prices would have been during the period of the alleged conduct, had they followed the relationship estimated outside the alleged conduct period." Id. The econometric model that Professor White developed and applied was a "prediction model." "A prediction model captures the statistical relationship between *671 prices and cost, demand, and other potentially predictive factors." Id. ¶ 126. Prediction models. . . . are fundamentally different than causal models (also known as "structural" models). Whereas causal models are intended to measure the ceteris paribus effects of specific economic factors, the purpose of a prediction models is to accurately predict outcomes that would be observed during a period of interest. Prediction models account for unobservable causal factors by the use of suitable proxies. Id. ¶ 130. "By constructing the prediction model using data that exclude the alleged conduct period, [Professor White] obtain[ed] a model that reflects the predictive relationship between prices and predictive factors in the absence of the alleged conduct." Id. ¶ 126. To select the relevant predictive factors for his regression equation,[10] Professor White first "identified a set of candidate predictor variables using economic theory and an understanding of the relevant market." Id. ¶ 127. He then "used a statistical criterion, cross-validation, to select from these candidate variables a subset of predictors that delivers superior accuracy. This method involves repeatedly holding out part of the data to measure the predictive ability of a given set of predictors." Id. "Among the predictive factors [Professor White] did not include are economic variables subject to the control of the defendants such as inventory levels or downtime that was taken for market purposes. Nor did [Professor White] include other variables whose values would be affected by the alleged coordinated action of the defendants, such as the price of recycled corrugated containers." Id. ¶ 129. Specifically, Professor White excluded inventories, capacity, capacity utilization, non-incident downtime,[11] number of suppliers, and the cost of recycled corrugated containers ("OCC"). July 2, 2007 Tr. at 27-28. According to Professor White, "use of actual values of such variables [could] have [had] the effect of absorbing part or all of the effect of the alleged conduct and is therefore clearly inappropriate." White Rpt. ¶ 129. Instead, Professor White utilized "predictors that drive the values of the potentially affected variable but that are not themselves affected by the alleged coordinated action of the defendants." Id. After Professor White estimated but-for prices, he calculated overcharges by subtracting the but-for price from the allegedly elevated prices paid by plaintiffs for corrugated products during "the damages period, i.e. from December 1993 through May 1997." Id. ¶ 182. Professor White concluded that the "overcharges from Temple-Inland and Gaylord for all purchases for the plaintiffs were $109.4 million during the damage period." Id. ¶ 183. Applying the U.S. bank prime loan rate *672 (averaging seven percent from 1993 to August 2006), Professor White further calculated that "the present value of plaintiffs' damages. . . . associated with purchases from Temple-Inland and Gaylord total $228.1 million during the damage period." Id. ¶ 185. According to Professor White, this figure "represents the total payments required to restore the plaintiffs to the same financial position that they would have enjoyed but for the defendants' alleged illegal cartel." Id. III. STANDARD OF REVIEW Federal Rule of Evidence 702 governs the admissibility of expert testimony. The rule provides as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. "Faced with a proffer of expert scientific testimony . . . the trial judge must determine . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This gatekeeping function extends beyond scientific testimony to testimony based on "technical" and "other specialized" knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "Rule 702 embodies three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.2000) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir.1994)). The party offering the expert must prove each of these requirements by a preponderance of the evidence. In re TMI Litig., 193 F.3d 613, 663 (3d Cir.1999). Defendants affirmatively challenge only the "fit" of Professor White's testimony.[12] For expert testimony to meet the "fit" requirement, it must "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. "This condition goes primarily to relevance. Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Daubert, 509 U.S. at 591, 113 S.Ct. 2786 (citing United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985)) (quotations omitted). "Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. In its reconsideration of Daubert on remand from the Supreme Court, the Ninth Circuit explained as follows: The Supreme Court recognized that the "fit" requirement "goes primarily to relevance," but it obviously did not intend the second prong of Rule 702 to be merely a reiteration of the general relevancy requirement of Rule 402. In elucidating *673 the "fit" requirement, the Supreme Court noted that scientific expert testimony carries special dangers to the fact-finding process because it "can be both powerful and quite misleading because of the difficulty in evaluating it." Federal judges must therefore exclude proffered scientific evidence under Rules 702 and 403 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case, and that it will not mislead the jury. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1321 (9th Cir.1995). As the Third Circuit recently stated, "[a]lthough we do not adopt the apparent presumption of exclusion enunciated by the Ninth Circuit, we agree with the spirit of our sister court's exhortation. In particular, district courts should tread carefully when evaluating proffered' expert testimony, paying special attention to the relevance prong of Daubert." United States v. Ford, 481 F.3d 215, 220 n. 6 (3d Cir.2007). The Third Circuit further explained that The discussion of "fit" in Paoli indicated that the standard for analyzing the fit of an expert's analysis to the case at hand is "not that high," but is "higher than bare relevance." That statement remains sound law inasmuch as it requires that experts who purport to apply their principles and methods to the facts of the case do so in a reliable manner. The Paoli Court's discussion of fit requires that expert opinions that apply principles or methods to the facts of the case and produce conclusions that have a debatable connection to the question in issue be predicated on a reliable methodology. This is the critical import of Paoli's discussion of fit within the context of reliability. Outside of this relatively narrow setting, "fit" is a relevance concern. Id. (citing Paoli, 35 F.3d at 745). As in Paoli, defendants' fit arguments in fact implicate the reliability of Professor White's methodology in certain respects. For example, defendants argue that it was inappropriate for Professor White to apply a cross-validated root mean squared error method[13] in selecting variables for his regression equation, and that Professor White incorrectly assumed that his benchmark period was free of collusion. July 2, 2007 Tr. at 115. "Under the liberal Daubert standard, the plaintiffs do not have to prove to the judge by a preponderance of the evidence that their expert's testimony is correct, they must only show that it is reliable. The requirement of reliability is lower than the standard of correctness." United States v. Williams, 2007 WL 1643197, *3 (3d Cir. Jun.7, 2007) (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786). "The judge does not have to determine that these methods are necessarily the best grounds to ascertain certain facts, but only that the evidence presented will help the trier of fact." Id. "Once the foundation for admissibility required by Daubert has been established, concerns about the validity of an expert's conclusions should not result in the exclusion of the expert's testimony. Rather, such concerns should be presented to the jury through cross examination, presentation *674 of contrary evidence and careful instruction on the burden of proof." Id. V. DISCUSSION A. Overview According to defendants, Professor White's model "is simply not helpful, because he has not done the analysis and rendered an opinion as to how that difference in price is connected to the specific conspiracy in this case." Reply at 7. Defendants' Motion to Exclude focuses on the following three arguments: (1) Professor White fails "to link the alleged price increase . . . to the allegedly wrongful conduct . . . and to exclude the possibility that legitimate factors, such as costs, capacity constraints, or increase in demand caused that increase in price." Mot. at 1. (2) Professor White "removed all variables that could be affected by Defendants' conduct — lawful or unlawful" such that there is "no way to isolate the pricing effect of lawful conduct from that of unlawful conduct." Reply at 11-12. (3) Professor White "fails to quantify the degree to which any economic factor — downtime, restricted production, or other — affected prices during the relevant period" and "ignores the timing and quantity of downtime taken. . . ." Mot. at 3. These arguments are distinct but present interrelated issues. The first argument pertains to controlling for exogenous economic factors (factors outside of defendants' control, such as demand), while the second argument pertains to disaggregation of defendants' lawful and allegedly unlawful conduct (factors within defendants' control).[14] The third argument pertains to disaggregation of specific acts alleged to be unlawful, and relating damages to those specific unlawful acts.[15] Based on these arguments, defendants contend that Professor "White is unable to opine as to how (or even whether) the alleged unlawful conduct affected prices. . . ." Mot. at 3. The Court disagrees. First, Professor White's econometric damages model properly controls for exogenous factors by incorporating all relevant "aspects of the economic reality of the [linerboard] market. . . ." Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir.2000). Second, Professor White's econometric damages model "separate[s] lawful from unlawful conduct." Id. Third, it was unnecessary for Professor White to particularize the effect that any one variable, such as downtime or inventories, had upon prices. LePage's Inc. v. *675 3M, 324 F.3d 141 (3d Cir.2003). The Court need not and does not address whether Professor White's testimony, standing alone, world be sufficient to support a finding of causation of damages so as to survive a motion for summary judgment. During the Daubert Hearing, defense counsel also argued that Professor White incorrectly assumed that his benchmark period was free of collusion. July 2, 2007 Tr. at 87. This argument is unavailing because, assuming that the benchmark period was not perfectly competitive, Professor White's damages calculation actually becomes a more conservative estimate. That is, if there was in fact collusion during the benchmark period, Professor White's but-for price estimate would be too high, causing his estimate of the overcharge (the difference between actual prices and but-for prices) to be too low. B. Legal Standard: Causation of Damages in Antitrust Cases "A consumer alleging antitrust violations cannot obtain damages without showing that he actually paid more than he would have paid in the absence of the violation.'" City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 265 (3d Cir.1998) (citing Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law, at 200 (1995) (noting that "determining whether antitrust injury is present necessarily involves examining whether there is a causal connection between the violation alleged and the injury")). Thus, "one pursuing antitrust recovery must establish that the damages suffered were caused by the defendant's participation in a scheme repugnant to the antitrust laws." In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1176 (3d Cir.1993) (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). In price-fixing cases, "causation of injury may be found as a matter of just and reasonable inference from proof of defendants' wrongful acts and their tendency to injure plaintiffs, and from evidence of change in prices not shown to be attributable to other causes." In re Indus. Silicon Antitrust Litig., 1998 WL 1031507, *4 (W.D.Pa. Oct.13, 1998) (citing In re Aluminum Phosphide Antitrust Litig., 893 F.Supp. 1497, 1499 (D.Kan.1995) (citing Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 262-64, 66 S.Ct. 574, 90 L.Ed. 652 (1946))) (emphasis added). "Once causation is determined, . . . the actual amount of damages may result from a `reasonable estimate, as long as the jury verdict is not the product of speculation or guess work.'" Lower Lake Erie, 998 F.2d at 1176 (citing MCI Communications Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1161 (7th Cir.1983)). "The relaxed measure of proof is afforded to the amount, not the causation of loss — the nexus between the defendant's illegal activity and the injuries suffered must be reasonably proven." Id. However, a plaintiffs "burden of proving the fact of damage . . . is satisfied by its proof of some damage flowing from the unlawful conspiracy; inquiry beyond this minimum point goes only to the amount and not the fact of damage. It is enough that the illegality is shown to be a material cause of the injury; a plaintiff need not exhaust all possible alternative sources of injury. . . ." Danny Kresky Enter. Corp. v. Magid, 716 F.2d 206, 209-10 (3d Cir.1983). Importantly, Daubert does not require a plaintiff to prove causation of damages "twice-they do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable" and fit the facts of the case. Paoli, 35 F.3d at 744. *676 "[P]laintiffs must be free to select their own [antitrust] damages theories as long as they are supported by a reasonable foundation." Danny Kresky, 716 F.2d at 213. Indeed, the Third Circuit has made clear that the standard for admitting expert testimony on antitrust damages is lower than a plaintiff's burden of proof in establishing antitrust damages. That dichotomy presents the same issues as are argued by the defendants in this case. They were explained by the Third Circuit in Stelwagon Mfg. Co. v. Tarmac Roofing Systems, Inc., 63 F.3d 1267 (3d Cir.1995), which criticized the damages expert in much the same way that defendants criticize Professor White: Significantly, Dr. Perry's analysis failed to sufficiently link any decline in Stelwagon's MAPs sales to price discrimination. The sales may have been lost for reasons apart from the price discrimination-reasons that Dr. Perry's analysis apparently did not take into account. For example, the evidence showed that Stelwagon had higher overhead costs than its competitors. In addition, there was undisputed evidence that Stelwagon experienced other business complications during the relevant time period. In 1988, for example, Stelwagon terminated a vice-president, two territorial managers and three key employees for their part in an embezzlement scheme. Id. at 1275. Nevertheless, the Third Circuit clearly stated that the expert's damages testimony was admissible: Although we do not agree with [defendant's] contention that the district court erred in admitting [the expert] testimony, or in failing to strike the testimony in response to a motion by [defendant] at the conclusion of the direct examination, we do agree that, standing alone, the expert's opinions, as reflected in his testimony and report, are insufficient to support the finding of actual damage. Id.; see also Callahan v. A.E.V., Inc., 182 F.3d 237, 256 (3d Cir.1999) (Becker, J.) (summarizing Stelwagon, 63 F.3d at 1275) (The "expert's testimony, although admissible evidence, was insufficient by itself to prove that the antitrust violations had in fact caused [the] losses.") C. Analysis of Defendants' Arguments 1. Incorporation of Exogenous Factors (Factors Beyond Defendants' Control) Defendants argue that Professor White fails "to link the alleged price increase . . . to the allegedly wrongful conduct . . . and to exclude the possibility that legitimate factors, such as costs, capacity constraints, or increase in demand caused that increase in price." Mot. at 1. In other words, defendants argue that Professor "White's "damage calculations [do not] control for exogenous factors that [could] have an adverse impact on the plaintiffs economic condition[,]" a question related to but distinct from the question whether Professor White's model disaggregates the effects of defendants' lawful conduct from defendants' unlawful conduct. Areeda & Hovenkamp, Antitrust Law ¶ 391g. The Court rejects this argument because Professor White's model properly accounted for exogenous factors such as cost, capacity constraints, and demand. In short, Professor White explained that it did not matter what specific demand, cost, or capacity variables were included or excluded from his regression equation, as long as tainted variables were excluded and the regression equation closely predicted actual prices during the benchmark period. a. Problems With "But-For" Models With respect to accounting for exogenous factors, the Third Circuit has specifically addressed the potential problems of "but for" econometric models in proving *677 causation of antitrust damages, albeit not in the context of price-fixing conspiracies. As explained in Rossi v. Standard Roofing, Inc., 156 F.3d 452 (3d Cir.1998) (Becker, J.), "but for" models do not attempt to measure the particularized effects of any specific alleged illegal practices, but rather rely on an aggregation of injury from all factors. Second, their hypothetical "but for" calculations usually rely upon unrealistic ex ante assumptions about the business environment, such as assumptions of perfect knowledge of future demand, future prices, and future costs that tend to overstate the plaintiffs damage claim. Thus, using a "but for" damage model arguably makes it impossible for the trier of fact to determine what, if any, injury derived from the defendant's antitrust violations as opposed to other factors, and courts sometimes reject such models as the basis of either causation or amount of injury. Id. at 485 (citations omitted). In that case, noting that the expert's damages model was "much less speculative" than other "but for" damages models, the Third Circuit found it inappropriate to exclude the model even though it did "not deal with the particularized effects of specific injuries, but rather aggregate[d] all . . . damages into one figure." Id. at 485-86. The Court further found that various extrinsic factors, not incorporated into plaintiffs model, were insufficient to warrant exclusion of plaintiffs model.[16]See id. The Third Circuit again "considered the sufficiency of expert evidence offered as proof of causation in antitrust cases" in Callahan, 182 F.3d at 256. In that case, "defendants criticize[d] [plaintiffs' expert] report for failing to take into account potential alternative causes for the plaintiffs' losses not attributable to the defendants' actions." Id. at 258 (emphasis added). Specifically, "defendants contend[ed] that . . . the expert's report was inadequate because it failed to consider alternative causes, so we must find [the] report inadequate because he failed to consider certain specific factors that might have affected the plaintiffs' business success, such as general economic conditions, changes in their operations during the relevant time period, or changes in costs." Id. The Third Circuit rejected this argument, noting that plaintiffs did "discuss some of these factors the defendants suggest he should have — including general economic conditions — albeit not to the degree the defendants might prefer." Id. The Court "found the export's [sic] report acceptable in spite of certain gaps," and stated that the factors "involve factual disputes that need to be resolved by the trier of fact, not by this court. . . ." Id. (quoting Rossi, 156 F.3d at 487).[17] *678 In the context of price-fixing cases, several other courts have recognized that "[m]erely pointing to economic conditions that may affect the dependant variable is not enough to call into question the reliability of an econometric model." In re Polypropylene Carpet Antitrust Litig., 93 F.Supp.2d 1348 (N.D.Ga.2000) (citing In re Indus. Silicon Antitrust Litig., 1998 WL 1031507, at *3 (W.D.Pa. Oct.13, 1998)). In that case, the court explained that Unless the party challenging a regression model proffers evidence that an omitted variable "is correlated with the dependant variable and is likely to affect the result of the regression analysis," the Court will not find that omission of the variable implicates the reliability of the model. Id. at 1365 (citation omitted). "It is only the rare case where the `regressions are so incomplete as to be irrelevant' and the expert's decisions regarding control variables are the basis to exclude the analysis." Gutierrez v. Johnson & Johnson, 2006 WL 3246605, *5 (D.N.J. Nov.6, 2006) ("The Court is unpersuaded that [the expert's] choice of variables renders her analysis so fatally flawed that it should be stricken as a matter of law."). These decisions are based on Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), in which the Supreme Court addressed omission of variables from regression analyses proffered to establish discrimination. The Fourth Circuit concluded that a regression analysis was "unacceptable as evidence of discrimination", because they did not include "all measurable variables thought to have an effect on salary level." Id. (quotations omitted). Finding this "view of the evidentiary value of the regression analyses . . . plainly incorrect[,]" the Supreme Court explained, While the omission of variables from a regression analysis may render the analysis less probative . . ., it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors must be considered unacceptable. . . . Normally, failure to include variables will affect the analysis' probativeness, not its admissibility. Id. at 400, 106 S.Ct. 3000 (quotation omitted). "There may, of course, be some regressions so incomplete as to be inadmissible as irrelevant. . . ."[18]Id. at 400 n. 10, 106 S.Ct. 3000. Defendants apparently concede that "conflicts between parties or experts over which variables are the proper variables to include in a model or which variables should be given more weight are simply issues of fact to be considered by juries." Reply at 16. According to defendants, they are "not quibbling with the variables, *679 . . . that wouldn't be an appropriate Daubert challenge and we've never done that." July 2, 2007 Tr. at 178. This is directly at odds with defendants' argument that Professor White's model did not account for legitimate factors affecting price such as costs, capacity constraints, or increase in demand. b. Incorporation of Exogenous Factors into Professor White's Model In this case, Professor White testified that he did incorporate all appropriate cost and demand factors. On the cost side, Professor White's regression equation included the following variables: woodchips, labor, coal, electric power, natural gas, oil railroad transportation, diesel fuel, caustic soda, sulfuric acid, sodium carbonate/sulfate, 3-month treasury bill, 10-year treasury note, and incident downtime. On the demand side, Professor White's regression equation included the following variables: U.S. durable and non-durable industrial production indices, foreign industrial production indices and exchange rates, and the price index for plastic packaging products (a substitute for packaging products made from corrugated cardboard). In contrast, Professor White excluded from his equation inventories, capacity, capacity utilization, non-incident downtime, number of suppliers, cost of recycled corrugated containers ("OCC"), and the paper component of the U.S. nondurable industrial production index. July 2, 2007 Tr. at 27-28. As evinced by Professor White's testimony during the Daubert hearing, it was appropriate for him to exclude these variables, because they were either tainted or duplicative. See Gutierrez, 2006 WL 3246605, at *6 (holding that an expert "exercised professional judgment in deciding what control variables to include in her analysis"). Moreover, he testified that the excluded variables were accounted for in his model indirectly, through proxy variables. The Court sets forth a small portion of Professor White's lengthy testimony on this issue: Q. Does the fact that only some variables were selected mean that your prediction equation, your multiple regression equation, takes no account of the variables that were not selected? A. Not at all. . . . [A]s I explained earlier, the purpose of the ensemble is to give the best prediction that includes not too many variables and not too few. The variables that are included act on their own together with the other variables that are included but they also act as proxies for other variables that don't make the grade. The reason those other variables don't make the grade is that the information that they contain is already included in the ensemble that I select. * * * * * * Q. Does the fact that the durable production variable [which accounted for roughly 23 percent of demand] was not selected [mean] that your model has nothing to do with reality? A. Absolutely not. . . . [A]s I've just explained, the variables that are included act for themselves but also as proxies for other variables that are not included. And if a variable isn't included it's because its information is already contained in the ensemble. So, in essence, it's redundant to put it in again. Id. at 47-48; see also id. at 41-42. Professor White testified similarly with respect to his rationale for excluding capacity from his prediction equation. Although Professor White did not include capacity "in the model as an explicit variable" *680 because it was tainted by the conspiracy, it is included indirectly through the process by which I modeled the but-for price during the benchmark period. So that even though capacity as a tainted variable isn't taken account of, the benchmark behavior of capacity, which is presumably lawful and more competitive, is taken into account, and I also described the exercise earlier this morning where I included that capacity and found that it didn't have much of an impact, if any, on the ultimate but-for prices. July 2, 2007 Tr. at 80-82. Moreover, in response to defendants' arguments, Professor White reran a number of variables in his model that defendants claim were overlooked. In doing so, he included containerboard capacity, containerboard inventories at mills, containerboard inventories at box plaints, total containerboard inventories, and OCC prices. White Rebuttal Rpt. at 15. "The damage estimates resulting from this exercise [were] very similar to those resulting from [Professor White's] final prediction equation." July 2, 2007 Tr. at 38. Professor White explained that this "means that the variables that I included in my final prediction equation essentially captured all of the information that otherwise would have been present in those capacity or inventory series."[19]Id. The Court notes that Professor White's analysis bears no similarity to the expert analysis excluded in In re Aluminum Phosphide Antitrust Litig., 893 F.Supp. 1497 (D.Kan.1995), a case upon which defendants rely. In that case, the expert "did not perform a regression analysis to address such obvious points as . . . the effect of supply, demand, competition or other factors that might impact price levels during both normative periods." Id. at 1504. The court held that, because the expert's testimony on antitrust damages was "based on unjustified assumptions and does not account for changes in other relevant market conditions, it would not assist a trier of fact to determine the fact or amount of plaintiffs' damages." Id. at 1507. In contrast, in this case, Professor White applied regression analysis to calculate a but-for price that reflected all salient exogenous factors, such as costs and demand, either directly or indirectly. See Blue Cross and Blue Shield United of Wisconsin v. Marshfield Clinic, 152 F.3d 588, 593 (7th Cir.1998) (Posner, J.) ("Statistical studies that fail to correct for salient factors, not attributable to the defendant's misconduct, that may have caused the harm of which the plaintiff is complaining do not provide a rational basis for a judgment."). Accordingly, the Court rejects defendants' argument that Professor White's model does not exclude the possibility that exogenous factors such as costs, capacity restraints, or increase in demand caused the alleged overcharge. In this case, that is an issue for the jury to resolve. 2. Disaggregation of Lawful and Unlawful Conduct According to defendants, there is "no way to isolate the pricing effect of lawful conduct from that of unlawful conduct" because Professor White "removed all variables that could be affected by Defendants' conduct — lawful or unlawful." *681 Reply at 11-12. Defendants argue that Bazemore and its progeny are inapposite to this case because Professor Whites "excludes the most important variables in this case — production and inventory. These variables are at the heart of Plaintiffs claims. Prof. White's model does not provide any direct way to connect a change in inventory or production to a change in price." Memorandum Regarding Authorities Identified by the Court at 2. The Court rejects this argument because, although Professor White's model does not isolate how any specific change in inventory or production led to a change of price, it isolates defendants' alleged collusive behavior as the cause of the alleged overcharge. First, it was appropriate for Professor White to remove all variables that could be affected by defendants' conduct, lawful or unlawful. As Professor White explained in his rebuttal report, To correctly estimate the impact of a treatment (the alleged conspiracy) the researcher must be careful to identify factors that affect the outcome of the concern (in our case corrugated container prices) but are not themselves affected by the treatment. Factors such as interest rates and electricity prices are examples of factors that are not themselves influenced by the alleged conspiracy. The researcher must also identify factors that affect the outcome of concern but are affected by the treatment. Inventory levels, market downtime, capacity and capacity utilization are all examples of the latter category. It is well established in the treatment effects literature that the inclusion of variables in this second category introduces bias into the estimation of the effect of interest. White Rebuttal Rept at 14. See also Gutierrez, 2006 WL 3246605, at *6 (noting that the expert "specifically chose not to include performance in her analyses because performance reviews were under the control of [defendant] and may incorporate discrimination rather than providing a neutral measure of productivity"). Second, defendants are incorrect in their assertion that, because Professor White's model was a predictive model rather than a structural model, Professor White cannot isolate defendants' unlawful behavior as the cause of the alleged overcharge. Professor White testified at length on this issue at the Daubert hearing: The important distinction here is that the but-for price . . . is constructed as a prediction model. I am not using a structural model for obtaining the but-for price. Nevertheless, there is a crucial and indeed focal structural element to my analysis, and that is the estimation of the effect of the alleged conspiracy by comparing the actual price to this prediction. * * * * * * [A] structural model is one that permits the data analysis to reveal the effect of a cause. . . . [M]y model is structural in that it permits me to reveal the effect of a specific cause, that is, the cause of the alleged conspiracy. * * * * * * [I]t's an important distinction to understand where the causality is being measured, that is, the effect of the alleged conduct in the conspiracy period, and where I am not attempting to measure cause and effect, which is in creating the but-for price. . . . [I]t suffices there to make a prediction. . . . [because] I'm being asked to make a prediction under the identical market circumstances during the alleged conduct period, not some set of hypothetical market conditions that might occur. . . . If I were attempting to do that, then I would be concerned *682 about understanding structural elements of the cost-and-demand factors, but that's not my goal. Because I am making predictions under the identical market conditions except for the presence of the alleged conspiracy, there's no need to have a structural analysis of the causal effect of each and every cost-and-demand shifter. . . . * * * * * * Even though I'm not saying what the effect of each and every cost-and-demand shifter was, I am taking them into account and then I am comparing that to the actual prices that occurred during the alleged conspiracy. July 2, 2007 Tr. at 107-09. Finally, the fact that Professor White excluded all variables within the defendants' control, rather than only those variables representing defendants' unlawful conduct, does not imply that Professor White's estimated overcharge may be attributable to non-collusive, lawful behavior on the part of defendants. Professor White testified that he could "rule out all [causal factors underling the alleged overcharge] but the alleged conspiracy by a process of elimination." Id. at 40. As Professor White elaborated, The principle of creating a but-for price requires that that prediction not be tainted by conduct associated with the alleged conspiracy. So in order to isolate that conduct that's not impacted by the alleged conspiracy, it's possible to reach back, in other words, go back through the decisions that are under the defendants' control and represent their behavior by the ultimate drivers, the cost and demand factors, that are not under their control or influence. So the cost and demand factors operating in the benchmark period then drive whatever those defendant decisions are as to inventories, downtime, et cetera, the aspects of those that are not contaminated by the alleged conspiracy because it's the benchmark period, as well as driving prices and quantities directly. The net result of that is this total relationship between the cost and demand factors driving prices and quantities. . . . So by being able to use the benchmark period to understand how prices respond to the underlying cost and demand factors I'm able to incorporate, albeit indirectly but also inherently, how decisions as to defendants' choice of inventories or down time or other variables ultimately impact prices and quantities. Id. at 33-34. Thus, the model inherently accounts for defendants' "[l]awful choices with respect to inventory and down time." Id. What Professor White is saying is this: It matters not that defendants' lawful conduct was not directly included in the variables that he selected for his regression equation. What matters is that the selected variables resulted in a predicted price during the benchmark period that was almost identical to the actual price in the benchmark period. Defendants' lawful conduct in the benchmark period was indirectly included through the selection of underlying variables; hence, it was indirectly included in the predicted but-for price in the damages period. That enabled Professor White to opine that the price difference in the damages period was attributable to the collusive conduct of the defendants and not attributable to lawful conduct on the part of defendants. Accordingly, the Court rejects defendants' argument that there is "no way to isolate the pricing effect of lawful conduct from that of unlawful conduct" because Professor White "removed all variables that could be affected by Defendants' conduct — lawful or unlawful." Reply at 11-12. *683 3. Segregation of Causal Factors Relatedly, defendants argue that Professor White "fails to quantify the degree to which any economic factor — downtime, restricted production, or other — affected prices during the relevant period" and "ignores the timing and quantity of downtime taken. . . ." Mot. at 2. This argument pertains to disaggregation of specific acts alleged to be unlawful, beyond mere disaggregation of defendants' lawful and allegedly unlawful conduct. The Third Circuit's decision in LePage's Inc. v. 3M, 324 F.3d 141 (3d Cir.2003), which recognizes that these arguments are interrelated, elucidates that quantifying the particular effect of any single factor is not essential to prove causation of damages in antitrust cases. As in this case, the defendant in LePage's "argue[d] that [plaintiffs expert] improperly failed to disaggregate damages, thereby providing the jury with no mechanism to discern damages arising from [defendant's] lawful conduct or other facts from damages arising from [defendant's] unlawful conduct." Id. at 166. The Third Circuit "noted that it would be extremely difficult, if not impossible, to segregate and attribute a fixed amount of damages to any one act as the theory was not that any one act in itself was unlawful, but that all the acts taken together showed [an antitrust] violation." Id. (citing Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802, 812 (3d Cir.1984)). Accordingly, the Third Circuit ruled that the antitrust defendant's "actions, taken as a whole, were found to violate [the antitrust laws], thus making the disaggregation that [defendant] speaks of to be unnecessary, if not impossible." Id. at 166. Professor White reliably isolated defendants' alleged collusive behavior "taken together" as the cause of the alleged overcharge; he need not have "segregate[d] and attribute[d] a fixed amount of damages to any one act" or factor in the alleged conspiracy in order to separate defendants' "lawful conduct . . . from [defendant's] unlawful conduct." Id.; see also Rossi, 156 F.3d at 485 (finding it inappropriate to preclude the model even though it did "not deal with the particularized effects of specific injuries, but rather aggregate[d] all . . . damages into one figure"). Accordingly, the Court rejects defendants' argument that Professor White "fails to quantify the degree to which any economic factor — downtime, restricted production, or other — affected prices during the relevant period" and "ignores the timing and quantity of downtime taken. . . ." Mot. at 2. 4. Collusion in the Benchmark Period During the Daubert hearing, defense counsel argued that Professor White's testimony should be excluded because he incorrectly assumed that his benchmark period was free of collusion. July 2, 2007 Tr. at 187. The Court rejects this argument. Professor White explained that "[t]he benchmark period has been taken as a period that represents the presumably lawful, more competitive conduct, which was the basis on which I constructed my but-for price prediction equation." Id. at 87. The Court approved of this technique in its class certification opinion. In re Linerboard Antitrust Litig., 203 F.R.D. 197, 218-19 (E.D.Pa.2001) ("Dr. Beyer stated that he would estimate linerboard prices that would have existed absent the conspiracy based on an analysis of linerboard pricing behavior during a more competitive period of time, either before or after the conspiracy." (emphasis added)). Professor White elaborated that the benchmark period is "a more competitive *684 period, presumably free of unlawful conduct, but . . . that if it were indeed a period that contained unlawful conduct my but-for price would be higher than would otherwise be the case. . . . [I]f there were some unlawful activity, my but-for price is higher than it would otherwise be and my damage estimate is conservative." Id. at 87-88. In other words, if there was in fact collusion during the benchmark period, Professor White's but-for price estimate would be too high, causing his estimate of the overcharge (the difference between actual prices and but-for prices) to be too low. Accordingly, the Court rejects defendants' argument that Professor White incorrectly assumed that his benchmark period was free of collusion. V. CONCLUSION The Court concludes that Professor White reliably estimated the alleged overcharge caused by the defendants' alleged price-fixing conspiracy, and that his methodology fits the facts of this case. "[S]hould the jury find that defendants conspired to fix prices, [Professor White's] proffered testimony will assist the jury in determining the amount of damages, if any, that plaintiffs incurred as a result of that conspiracy." In re Indus. Silicon Antitrust Litig., 1998 WL 1031507, at *4. Accordingly, defendants' Motion to Exclude is denied. An appropriate order follows. AND NOW, this 30th day of July, 2007, upon consideration of Defendants' Motion to Exclude The Testimony of Prof. Halbert L. White, Jr. (Document No. 893, filed March 23, 2007); Plaintiffs' Opposition to Defendants' Motion to Exclude the Testimony of Professor Halbert L. White, Jr. (Document No. 897, filed April 27, 2007); Defendants' Reply Brief in Support of Motion to Exclude the Testimony of Prof. Halbert L. White, Jr. (Document No. 902, filed May 14, 2007); Defendants' Reply Brief in Support of Motion to Exclude the Testimony of Prof. Halbert L. White, Jr. (Document No. 902, filed May 14, 2007); Plaintiffs' Surreply in Opposition to Defendants' Motion to Exclude the Testimony of Professor Halbert L. White, Jr. (Document No. 908, filed May 24, 2007); Defendants' Letter re Plaintiffs' Surreply in Opposition to Defendants' Motion to Exclude the Testimony of Professor Halbert L. White, Jr. (Document No. 916, filed June 4, 2007); and Defendants' Memorandum Regarding Authorities Cited by the Court (Document No. 938, filed July 2, 2007), following oral arguments and a Daubert hearing on June 14, 2007 and July 2, 2007, for the reasons set forth in the attached Memorandum, IT IS ORDERED that Defendants' Motion to Exclude The Testimony of Prof. Halbert L. White, Jr. (Document No. 893, filed March 23, 2007) is DENIED. NOTES [1] Linerboard includes any grade of paperboard suitable for use in the production of corrugated sheets, which are in turn used in the manufacture of corrugated boxes and for a variety of industrial and commercial applications. Corrugated sheets are made by gluing a fluted sheet which is not made of linerboard, known as the corrugating medium, between facing sheets of linerboard; corrugated sheets are also referred to as containerboard. The defendants named in the instant lawsuits are major integrated manufacturers and sellers of linerboard, corrugated sheets, and corrugated boxes. In re Linerboard Antitrust Litig., 203 F.R.D. 197, 202 (E.D.Pa.2001). [2] Although the Court does not address in detail Professor White's qualifications or the general reliability of predictive modeling, the Court concludes as follows: First, Professor White is well qualified to testify on damages in antitrust cases. He holds a Ph.D. in economics from the Massachusetts Institute of Technology, is a Professor of Economics at the University of California, San Diego, and is a Founder of Bates White, LLC, a consulting firm. He has published in peer-reviewed academic journals on topics in econometrics and statistics. His book, Asymptotic Theory for Econometricians, is a standard graduate level text in econometrics. Finally, he has testified as an expert and directed economic and statistical analysis of damages in several other multidistrict antitrust cases. White Rpt. at 17. Second, predictive modeling is a reliable methodology in other contexts. "Articles published in respected peer-reviewed scientific journals report [the use of predictive econometric models] to predict real estate prices, financial earnings, credit risk, marketing and advertising outcomes, payroll expenses, . . . and crop yields." Opp. at 30. [3] Under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), this Court must act as a gatekeeper to ensure that Professor White is qualified, that his testimony is reliable, and that his testimony fits the facts of the case. [4] In ruling upon the Motion to Exclude, the Court did not consider any issues presented by Defendants' Motion for Summary Judgment With Respect to Statutes of Limitations, which asks the Court to dismiss plaintiffs' claims as to a portion of the damages period. [5] See Callahan v. A.E.V., Inc., 182 F.3d 237, 256 (3d Cir.1999) (Becker, J.) (The "expert's testimony, although admissible evidence, was insufficient by itself to prove that the antitrust violations had in fact caused [the] losses.") (summarizing Stelwagon Mfg. Co. v. Tarmac Roofing Systems, Inc., 63 F.3d 1267 (3d Cir. 1995)). [6] The class action components of MDL 1261 have been settled. In re Linerboard Antitrust Litig., 292 F.Supp.2d 631 (E.D.Pa.2003). One-hundred and forty entities opted out of the classes. Thirteen groups of opt-outs subsequently filed direct actions against defendants. In re Linerboard Antitrust Litigation, 443 F.Supp.2d 703, 707 (E.D.Pa.2006). The claims against all defendants other than defendants Temple-inland, Inc. ("Temple-In-land") and Gaylord Container Corp. ("Gaylord") have either been settled or withdrawn. Id. This Memorandum pertains to the remaining direct action plaintiffs and defendants Temple-Inland and Gaylord. [7] The "fact of damage" is the impact of the unlawful activity. See In re Linerboard Antitrust Litigation, 203 F.R.D. 197, 214 (E.D.Pa. 2001) (citing Lumco Indus., Inc. v. Jeld-Wen, Inc., 171 F.R.D. 168, 172 (E.D.Pa.1997)). [8] Multiple regression analysis is a statistical tool for understanding the relationship between two or more variables. . . . [It] is sometimes well suited to the analysis of data about competing theories in which there are several possible explanations for the relationship among a number of explanatory variables. . . . [It] may also be useful (1) in determining whether a particular effect is present; (2) in measuring the magnitude of a particular effect; and (3) in forecasting what a particular effect would be, but for an intervening event. In re Linerboard Antitrust Litig., 203 F.R.D. 197, 219 (E.D.Pa.2001). [9] Specifically, Professor White's "charge [was] to determine the extent to which direct action plaintiffs were overcharged . . . as a result of an alleged price fixing conspiracy to restrict the supply of linerboard and corrugated medium and to elevate the prices of linerboard, corrugating medium, and corrugated product in the United States." White Rpt. ¶ 1 (emphasis added). [10] Professor White "estimated the prediction model using standard ridge regression methods," which "has a long history of use in statistics and econometrics." Id. ¶ 134. A regression equation consists of "a set of coefficients that are associated with each of the variables" selected for the equation. July 2, 2007 Tr. at 50. [11] Incident downtime is involuntary downtime taken by the defendants that is caused, for example, by mill accidents or regulatory shutdowns. See July 2, 2007 Tr. at 28-28, 91-92. Professor White "was careful to distinguish between incident downtime . . . and non-incident downtime." Id. at 98. By including the incident downtime in [his] model, [he] was able to build a prediction that took into account, using the underlying drivers of cost and demand, what the presumably lawful and more competitive behavior with regard to other types of downtime, market downtime, maintenance downtime, would be during the benchmark period, and that's what's relevant for the purpose of constructing the but-for line. Id. [12] Defendants state as follows in their motion: "Defendants do not question Prof. White's qualifications as an economist or the application of his methodology in other contexts. Rather Defendants question whether the methodology Professor White chose `fits' the facts in this case and Plaintiffs' theory of this case." Def.'s Mot. at 11. Defense counsel repeatedly stressed during the Daubert hearing that defendants were only making a "fit" challenge. [13] Professor White explained that the cross-validated root mean squared error is a measure of the squared error which is a measure of how well or poorly you're doing. The bigger the squared error, the worse you're doing, the smaller the better, on average the word "mean" conveys that. So it's the average squared error that is achieved when you apply the prediction equation to data that haven't been seen for purposes of estimation. July 2, 2007 Tr. at 45. [14] Suppose that an antitrust defendant has engaged in multiple activities that have imposed some injury on the plaintiff. If some of the defendant's conduct is lawful and some is lawful, the damage claim will have to be disaggregated. The reason for this is clear: . . . a plaintiff may recover a damage award that will return him to the financial position that he would have enjoyed but for the unlawful conduct. . . . The disaggregation requirement is distinct from the requirement that the plaintiff's damage calculations must control for exogenous factors that also have an adverse impact on the plaintiff's economic condition. Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Anaylsis of Antitrust Principles and Their Application ¶ 391g (2d ed.2000) (emphasis added). [15] Defendants distinguish between their arguments in a manner different from the approach taken by the Court. They state that Professor White's method: "(1) ignores the timing and quantity of downtime taken; (2) ignores other lawful factors that affected prices during the relevant period; and (3) fails to quantify the degree to which any economic factor — downtime, restricted production, or other — affected prices during the relevant period." Mot. at 3. The Court addresses each of these arguments in its analysis. [16] Although the Rossi court did not explicitly state that the expert report was admissible, it considered the exert report and stated as follows: We do not agree with the defendants' reading of these case (and, at all events, are not bound by them), which we conclude only stand for the proposition that some, not all, "but for" models are too speculative and must be precluded as a matter of law. The Rockhill Report, as we shall see, is much less speculative and does not suffer from many of the flaws in the damage models discussed in Van Dyk Research and Southern Pacific, and thus it is not comparable with them. Rossi, 156 F.3d at 485-86. [17] Also instructive on this point is J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1540 (3d Cir.1990), a Third Circuit case that discusses the Supreme Court's decision in Texaco Inc. v. Hasbrouck, 496 U.S. 543, 572, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990): To estimate its lost sales at trial, Hasbrouck's expert presented a market analysis comparing Hasbrouck's actual prices, volumes and profits to its estimated amount absent the discrimination. The expert utilized economic projections based upon various assumptions such as assuming Texaco did not offer a favored price to its competitors and assuming that Texaco lowered its price to Hasbrouck. On appeal, the Supreme Court decided that: [e]ven if some portion of some of the respondent's injuries may be attributable to the conduct of independent retailers, the expert testimony nevertheless provided a sufficient basis for an acceptable estimate of the amount of damages. J.F. Feeser, 909 F.2d at 1540 n. 16 (citing Texaco, 496 U.S. at 572, 110 S.Ct. 2535). [18] Other circuits interpret Bazemore to require a defendant to introduce "evidence to support the contention that the missing factor would explain the existing disparities" revealed by the regression analysis. Palmer v. Shultz, 815 F.2d 84, 101 (D.C.Cir.1987); Sobel v. Yeshiva Univ., 839 F.2d 18, 33-34 (2d. Cir.1988). Several courts in the Third Circuit have taken this approach. Churchill v. Int'l Bus. Machines, Inc., Nat'l Serv. Div., 759 F.Supp. 1089, 1099 (D.N.J.1991); Lanning v. Southeastern PA Transp. Audi., 1998 WL 341605, *66 (E.D.Pa. Jun.25, 1998), rev'd on other grounds, 181 F.3d 478 (3d Cir.1999). [19] Defendants stressed during the Daubert hearing that Professor White did not rerun his model using capacity utilization, but offered nothing to support that doing so would significantly affect Professor White's results. July 2, 2007 Tr. at 182-83; See Bazemore, 478 U.S. at 385, 106 S.Ct. 3000. The absence of this variable is discussed further in the Court's discussion of the disaggregation of defendants' lawful and unlawful conduct, supra.

62 So.3d 100 (2011) In re APPEAL OF DECISIONS OF DISCIPLINARY BOARD. No. 2011-OB-0590. Supreme Court of Louisiana. April 29, 2011. Leave to appeal denied.

265 S.C. 441 (1975) 219 S.E.2d 835 Earth Lee ROBINSON et al., Respondents, v. CITY OF CAYCE, and State Workman's Compensation Fund, Appellants. 20109 Supreme Court of South Carolina. November 18, 1975. *442 Messrs. Daniel R. McLeod, Atty. Gen., and G. William Thomason, of Columbia, for Appellants. Walter W. Brooks, Esq., of Columbia, for Respondents. *443 November 18, 1975. NESS, Acting Justice: John Robinson died from a heart attack suffered at work. His wife and the other statutory beneficiaries seek Workmen's Compensation benefits. A single commissioner awarded recovery; his finding was reversed by the full Commission which found the heart attack was not the result of unusual stress and strain from his employment. The Circuit Judge reinstated the single commissioner's award. The issue before us is whether the full Commission's finding is supported by competent evidence. We hold it is and reverse the Circuit Judge. Robinson died from a heart attack which occurred while driving a truck for the City of Cayce. The truck entered a highway intersection from an access road and collided with an automobile. There was no testimony the heart attack was caused by physical impact. Rather, claimants argue the heart attack was induced by unusual stress and strain resulting from visualizing the impending wreck. Two eye witnesses, with unobstructed views of the accident, offered conflicting testimony. James Black testified he observed the truck for over 100 feet as it made a downhill approach to the intersection. It appeared to be coasting without a driver. The truck ran a stop sign at the intersection and continued straight, without veering to the left, until impact. Black did not hear any brakes. He could see into the cab of the truck, but did not see anyone driving. Albert Norris observed Robinson stop at the sign at the intersection, disengage the clutch, and enter the highway. He saw Robinson sitting upright and driving until impact. Furthermore, as the automobile approached the intersection, Robinson swerved to the left, but was unable to avoid the collision. *444 In response to a hypothetical question which assumed Norris' testimony, a doctor stated Robinson died from a heart attack and it was most probably caused from his visualizing the impending wreck. In order for claimants to recover Workmen's Compensation benefits, they needed to show the heart attack was induced by "unexpected strain or overexertion in the performance of the duties of his employment, or by unusual and extraordinary conditions in the employment." Canady v. Charleston County School District and State Workmen's Compensation Fund, Smith's, June 24, 1975, page 9. The single commissioner found the heart attack was induced from Robinson seeing an oncoming car about to collide with his truck and concluded Robinson's death was caused by unusual and extraordinary conditions. The full Commission in reversing concluded the heart attack was not "induced by unexpected strain or overexertion of performance of his duties of his employment or by unusual and extraordinary conditions in his employment, and, therefore, is not constituted a compensable `accident.'" The Circuit Judge reinstated the single commissioner's award. Relying upon Norris' testimony, he found the evidence supported only one conclusion, that Robinson's heart attack resulted from visualizing the wreck. His order states: "the evidence presented by the eyewitness Norris to the effect that Mr. Robinson pulled up to the stop sign and then proceeded into the intersection veering left when it became apparent that a collision was going to occur is a sufficient demonstration of unusual stress or strain." The Commission is the fact finder in Workmen's Compensation cases. Neither the Circuit Court nor this Court may substitute its opinion of the facts when the Commission's finding is supported by competent evidence. Burns v. Joyner, Smith's, April 14, 1975; Davis *445 v. McAfee Mfg. Co., et al., 259 S.C. 433, 435, 192 S.E. (2d) 328 (1972). Furthermore, the Commission's findings may be based on reasonable inferences drawn from the testimony. Eagles v. Golden Cove, Inc., 260 S.C. 113, 117, 194 S.E. (2d) 397 (1973). Hence, our sole inquiry is whether the Commission's finding was supported by competent evidence. The eyewitness testimony was contradictory. The Commission and not the Court is charged with weighing the testimony. The Circuit Judge was in error in holding the Commission's findings lacked evidentiary support.[*] Reversed. LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur. NOTES [*] Actually, the full Commission's finding of fact is inadequate. It is really a conclusion of law. Robinson did not assail the finding of fact as being inadequate in the appeal to the Circuit Court. Had such been the case, we would remand to the Commission to find the component facts of this case.

[Cite as In re M.H., 2012-Ohio-1561.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT IN THE MATTER OF: JUDGES: Hon. Patricia A. Delaney, P .J. Hon. John W. Wise, J. M.H. Hon. Julie A. Edwards, J. A.B. Case No. 2011 CA 00279 MINOR CHILD(REN) OPINION CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 2010 JCV 00331 and 2011 JCV 00517 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: April 2, 2012 APPEARANCES: For Appellee For Appellant JAMES B. PHILLIPS ALLYSON J. BLAKE STARK COUNTY JFS 122 Central Plaza North 221 Third Street SE Suite 101 Canton, Ohio 44702 Canton, Ohio 44702 Stark County, Case No. 2011 CA 00279 2 Wise, J. {¶1} Appellant Helen Haught appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, which granted permanent custody of her two minor children to Appellee Stark County Department of Job and Family Services (“SCDJFS”). The relevant facts leading to this appeal are as follows. {¶2} Appellant is the mother of the two children at issue in this matter, M.H., born in 2002, and A.B., born in 2011. The alleged father of M.H. is deceased. The alleged father of A.B. is Raleigh Baldwin, who is not a participant in the present appeal.1 {¶3} On April 1, 2010, SCDJFS filed a complaint in the Stark County Court of Common Pleas, Juvenile Division, case no. 2010JCV00331, alleging M.H. to be a dependent, neglected, and/or abused child. SCDJFS filed the complaint based on concerns about, inter alia, appellant’s drug usage and emotional/mental health issues, and appellant repeatedly falsely claiming the child had certain medical issues. {¶4} The matter proceeded to an adjudicatory hearing. On June 24, 2010, the trial court issued a judgment entry finding M.H. to be dependent. Regarding disposition, M.H. was ordered to remain in the temporary custody of the agency. {¶5} A.B. was born in April 2011. On April 8, 2011, several days after her birth, SCDJFS filed a separate complaint in the Stark County Court of Common Pleas, Juvenile Division, case no. 2011JCV00517, alleging A.B. to be a dependent child. The trial court found A.B. to be dependent on June 29, 2011. 1 Baldwin never followed through on establishing paternity of A.B. (see trial court’s Findings of Fact and Conclusions of Law at 9), and appellant does not herein specifically argue that he should have been considered for purposes of placement or custody. Stark County, Case No. 2011 CA 00279 3 {¶6} Furthermore, on June 29, 2011, appellant stipulated to an extension of temporary custody to the agency in case no. 2010JCV00331. {¶7} On September 1, 2011, SCDJFS filed a permanent custody motion in each of the two cases. {¶8} On November 8, 2011, an evidentiary hearing was conducted on the permanent custody motions. Roger Baldwin, the alleged father of A.B., did not appear for the evidentiary hearing. {¶9} The trial court issued a judgment entry with findings of fact and conclusions of law on November 22, 2011, granting permanent custody of M.H. and A.B. to the agency. {¶10} On December 16, 2011, appellant filed a notice of appeal as to both juvenile court case numbers. She herein raises the following three Assignments of Error: {¶11} “I. THE TRIAL COURT ERRED IN FINDING THE CHILD [M.H.] HAD BEEN IN THE CUSTODY OF THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES FOR TWELVE OF THE LAST TWENTY-TWO MONTHS UNDER THE UNIQUE FACTS OF THE INSTANT CASE. {¶12} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. {¶13} “III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF Stark County, Case No. 2011 CA 00279 4 PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.” I. {¶14} In her First Assignment of Error, appellant contends the trial court erred in finding M.H. had been in agency custody for twelve out of twenty-two months. We disagree. {¶15} R.C. 2151.414 states in pertinent part: {¶16} “(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: {¶17} “ *** {¶18} (d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state. {¶19} “For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the Stark County, Case No. 2011 CA 00279 5 date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.” {¶20} The record reveals that M.H. was taken into agency custody on April 1, 2010, and remained there throughout the case. Tr. at 7-8. Pursuant to the above statutory guidance, sixty days after April 1, 2010, i.e., May 31, 2010, would be considered the starting date for purposes of the “12 of 22” rule. The permanent custody motion was filed on September 1, 2011, fifteen months after the statutory commencement of agency custody. We note it is considered axiomatic that a trial court may take judicial notice of its own docket. See Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580, 1994-Ohio-442. Although appellant presently contends that this case involved “unique circumstances” weighing against invocation of the “12 of 22” rule, we find the record justifies the trial court’s reliance on R.C. 2151.414(B)(1)(d). {¶21} Appellant's First Assignment of Error is overruled. II. {¶22} In her Second Assignment of Error, appellant contends the trial court erred in determining that A.B. cannot or should not be placed with her within a reasonable time. We disagree.2 {¶23} As an appellate court, we are not fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base his 2 Appellant herein also makes this argument in regard to M.H. However, because we have found no error in regard to the “12 of 22” finding as to M.H., we need only review the “best interest” portion of the permanent custody case as to him. See, e.g., In re Walton/Fortson Children, Stark App.No. 2007CA00200, 2007-Ohio-5819, ¶ 14. We therefore will focus on A.B. in the second assigned error. Stark County, Case No. 2011 CA 00279 6 or her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App.No. CA-5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. Furthermore, it is well-established that the trial court is in the best position to determine the credibility of witnesses. See, e.g., In re Brown, Summit App.No. 21004, 2002-Ohio-3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St .2d 230, 227 N.E.2d 212. {¶24} R.C. 2151.414(B)(1) reads as follows: “Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: {¶25} “(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, * * * and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents. {¶26} “(b) The child is abandoned. {¶27} “(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. Stark County, Case No. 2011 CA 00279 7 {¶28} “(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period * * *.” {¶29} In determining whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents (see R.C. 2151.414(B)(1)(a), supra), a trial court is to consider the existence of one or more factors under R.C. 2151.414(E), including whether or not “[f]ollowing the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.” See R.C. 2151.414(E)(1). {¶30} In the case sub judice, the agency presented the testimony of several witnesses and entered two psychological reports regarding appellant. The first witness, SCDJFS ongoing caseworker Cheri Smith noted that appellant’s case plan consisted of a parenting evaluation at Northeast Ohio Behavioral Health, drug treatment services at Quest, random urine screens, completion of Goodwill Parenting, and appellant obtaining housing and employment. A second parenting evaluation at Summit Psychological Services was also added to the case plan. Stark County, Case No. 2011 CA 00279 8 {¶31} Appellant completed her parenting evaluation at Northeast Ohio Behavioral Health (“NEOBH”), but did not complete the recommended Dialectical Behavior Therapy (“DBT”), as further discussed infra. She was terminated from Goodwill Parenting on her first attempt. On her second try, she merely received a “certificate of non-compliance.” Tr. at 18. She also completed the Quest program, but she tested positive for marijuana just one week before the permanent custody hearing. Appellant also moved several times between her mother’s apartment and Raleigh Baldwin’s apartment and never obtained satisfactory independent housing. Appellant also failed to obtain employment as per the case plan. {¶32} The court also heard the testimony of psychologist Dr. Corrine Mannino, who discussed appellant’s second parenting evaluation at Summit Psychological. Dr. Mannino did not recommend that appellant’s children should be returned to her unsupervised custody, noting inter alia that appellant had drug dependence and several mental health issues and was not compliant in taking medication for a seizure disorder, and that appellant’s intelligence was in the borderline range. {¶33} The agency also called psychologist Dr. Amy Thomas, who discussed, inter alia, appellant’s parenting evaluation at NEOBH. Dr. Thomas diagnosed appellant as having Factitious Disorder, Factitious Disorder by Proxy (i.e., Munchausen’s by Proxy), borderline personality disorder, and cannabis dependence. Appellant has, among other things, maintained a belief that M.H. is diabetic, even though he is not. Appellant’s IQ was determined to be 72. See Tr. at 48-51. Dr. Thomas concluded that appellant is “fragile” and unable to safely parent. Tr. at 65. Stark County, Case No. 2011 CA 00279 9 {¶34} In regard to DBT therapy, Dr. Thomas agreed that such treatment is not a “cure-all,” and she cautioned that she was not optimistic that it would benefit appellant in the near term. Tr. at 81-83. Although appellant contends that appellant’s DBT therapy was delayed through no fault of her own, due to the original need for further evaluation of appellant, upon review we hold the trial court did not err in determining that A.B. could not be placed with appellant within a reasonable time or should not be placed with appellant. {¶35} Appellant's Second Assignment of Error is overruled. III. {¶36} In her Third Assignment of Error, appellant contends the trial court erred in determining that granting permanent custody of M.H. and A.B. to the agency would be in the children’s best interests. We disagree. {¶37} We again note that as an appellate court, we are not fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base his or her judgment. Cross Truck, supra. It is also well- established that “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned.” In re Mauzy Children (Nov. 13, 2000), Stark App.No. 2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. Stark County, Case No. 2011 CA 00279 10 {¶38} In determining the best interest of a child for purposes of permanent custody disposition, the trial court is required to consider the factors contained in R.C. 2151.414(D). These factors are as follows: {¶39} “(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster care givers and out-of-home providers, and any other person who may significantly affect the child; {¶40} “(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; {¶41} “(3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period * * *; {¶42} “(4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; {¶43} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.” {¶44} In the case sub judice, ongoing caseworker, Cheri Smith, testified that M.H. has had great improvement in his behaviors since the agency obtained temporary custody, and he is no longer requiring his medication for ADHD. He has also made “significant progress” on overcoming his reading and writing delays. Tr. at 106. M.H. has indicated that he wishes to stay with his foster family if he cannot return to appellant. Both M.H. and A.B. are in the same foster placement. According to Smith, Stark County, Case No. 2011 CA 00279 11 the current foster mother is considering adopting both children and the children have developed a bond with her. The guardian ad litem, Attorney Mary Lou Sekula, expressed concerns about appellant’s physical and mental health issues, particularly as they would impact A.B. at her very young age, and Attorney Sekula recommended permanent custody of both children to the agency. {¶45} Upon review of the record and the findings of fact and conclusions of law therein, we conclude the trial court's grant of permanent custody of M.H. and A.B. to SCDJFS was made in the consideration of their best interests and did not constitute an error or an abuse of discretion. {¶46} Appellant's Third Assignment of Error is overruled. {¶47} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed. By: Wise, J. Delaney, P. J., and Edwards, J. concur ___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 0314 Stark County, Case No. 2011 CA 00279 12 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT IN THE MATTER OF: : : M.H. : : A.B. : JUDGMENT ENTRY : MINOR CHILD(REN) : Case No. 2011 CA 00279 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is affirmed. Costs assessed to appellant/mother. ___________________________________ ___________________________________ ___________________________________ JUDGES 

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-10-00322-CR DAVID LEE ELLIOTT, JR. APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY ---------- MEMORANDUM OPINION1 ---------- Appellant David Lee Elliott, Jr. appeals his conviction for sexual assault of a child. In two issues, he contends that the evidence is insufficient to support the conviction and that the trial court erred by allowing a witness’s attorney to make objections that were unrelated to the witness’s constitutional rights. We affirm. 1 See Tex. R. App. P. 47.4.  Background Facts When she was sixteen years old, Lauren McElhaney lived with appellant (her step-father) and Andrea McElhaney (her mother) at a house on Fagan Street in Blue Mound. According to Lauren, on September 4 or 5, 2009, because Amanda Stegall and Jeffrey Humphries were staying in a different room in the house, Lauren was sleeping in a bed with Andrea and appellant.2 Although Lauren went to sleep wearing shorts and panties, she awoke to find appellant’s tongue touching her vagina. Lauren loudly said, ―What the f---.‖ Appellant quickly went back to his side of the bed, and Andrea awoke. Lauren told Andrea what had happened, and Andrea became upset and said, ―Again, David‖ but then ―didn’t really do anything.‖ Lauren began crying. She did not call the police, however, because she was scared of appellant. According to Amanda’s testimony, Lauren, who was ―shaking and obviously upset,‖ came into Amanda and Jeffrey’s room. Lauren told Amanda that appellant had pulled her shorts down and licked the inside of her thighs. Minutes later, according to Amanda, appellant entered the room and said, ―I’m sorry, Lauren, I thought you was [sic] your mother.‖ 2 Lauren had used drugs with Andrea and appellant hours before they all slept, and Lauren suspected that Amanda and Jeffrey had also used drugs that day, although Amanda denied doing so. Amanda supplied methamphetamine for Andrea, Lauren, and appellant to use. Lauren testified that she had not used marijuana from September 2009 until the trial in July 2010. 2  Amanda believed that Lauren was afraid of appellant. She described Lauren and Andrea as having a friendly relationship rather than a normal mother to daughter relationship. She also said that Andrea sided with appellant more than Lauren but that Andrea and appellant’s relationship was ―[r]ocky. ‖ According to Amanda, for a couple of days after the incident occurred between appellant and Lauren, appellant carried a gun around the house; Amanda believed that appellant was trying to intimidate Lauren and Andrea. Amanda eventually moved out of the house because she ―couldn’t handle what was going on.‖ On September 9, 2009, upon receiving a request to investigate the incident between Lauren and appellant, Blue Mound Police Department Officer John Funk went to the Fagan Street house. He saw Lauren walking her dog and started a conversation with her. Lauren was embarrassed, and to Officer Funk, she appeared sad. They spoke for about ten minutes, and then appellant came outside and approached Officer Funk. Outside of Lauren’s presence, appellant denied knowing why Officer Funk was there, but Officer Funk told him that they had received allegations of inappropriate touching. Officer Funk detained appellant, and Lauren told Officer Funk that she was concerned that appellant would hurt her if she said anything. Eventually, again outside of Lauren’s presence, Officer Funk also talked to Andrea, who seemed nervous and hesitant. Andrea went inside the house and told Lauren ―[t]o not tell,‖ and when Lauren came back out, Officer Funk believed that Andrea had coerced Lauren 3 into saying something different than she had originally said. After Officer Funk told Lauren that he needed to hear the truth and informed her about the consequences (including arrest and jail time) that she could face for making a false police report, Lauren changed her story back to what she had first told Officer Funk (that appellant had sexually assaulted her). Officer Funk arrested appellant. A grand jury indicted appellant for sexual assault of a child. Appellant pled not guilty. The jury found him guilty and assessed his punishment at fourteen years’ confinement. He brought this appeal. Evidentiary Sufficiency In his first point, appellant argues that the evidence is insufficient to sustain his conviction. In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).3 This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the 3 Appellant challenges both legal and factual sufficiency. But the court of criminal appeals has overruled cases that allowed a factual sufficiency review and has held that there is ―no meaningful distinction between the . . . legal- sufficiency standard and the . . . factual-sufficiency standard.‖ Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Accordingly, we apply the Jackson standard to appellant’s sufficiency point. 4 evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary sufficiency review, we may not re- evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. To obtain appellant’s conviction for sexual assault of a child under the facts of this case, the State was required to prove that Lauren was under seventeen years old when appellant intentionally or knowingly caused her sexual organ to contact his mouth.4 See Tex. Penal Code Ann. § 22.011(a)(2)(C), (c)(1) (Vernon Supp. 2010); Thompson v. State, 85 S.W.3d 415, 418 (Tex. App.—Fort Worth 4 At trial, Lauren confirmed that she is not married to appellant. See Tex. Penal Code Ann. § 22.011(e)(1). 5 2002), aff’d, 108 S.W.3d 287 (Tex. Crim. App. 2003). Appellant argues that the State did not meet its burden of proof because the evidence concerning the sexual assault came from only Lauren, who vacillated before trial about whether the assault occurred; there was no physical evidence substantiating Lauren’s testimony; and the State’s witnesses raised the issue of whether appellant mistook Lauren for Andrea. Lauren testified to each element of the offense, and her testimony alone constitutes sufficient evidence to support appellant’s conviction. See, e.g., Halbrook v. State, 322 S.W.3d 716, 720 (Tex. App.—Texarkana 2010, no pet.); Johnston v. State, 230 S.W.3d 450, 455 (Tex. App.—Fort Worth 2007, no pet.); West v. State, 121 S.W.3d 95, 111 (Tex. App.—Fort Worth 2003, pet. ref’d). There is no general requirement that the testimony of a minor who is a sexual assault victim be corroborated by medical or physical evidence. See Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); Hohn v. State, 538 S.W.2d 619, 621 (Tex. Crim. App. 1976); Bargas v. State, 252 S.W.3d 876, 889 (Tex. App.— Houston [14th Dist.] 2008, no pet.). Furthermore, the jury’s guilty verdict establishes that despite a potential reduction in Lauren’s credibility that could have been associated with her drug use, the jury believed her testimony about the sexual assault and disbelieved any statements she made before trial indicating that the assault did not occur. See Lugo v. State, 299 S.W.3d 445, 453 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding that a jury was free to 6 believe a witness’s trial testimony over her prior statement made to the police); Dornbusch v. State, 156 S.W.3d 859, 872 (Tex. App.—Corpus Christi 2005, pet. ref’d) (―The jury was entitled to believe the clerk’s in-court testimony instead of her prior testimony.‖); Hernandez v. State, 903 S.W.2d 109, 113 (Tex. App.—Fort Worth 1995, pet. ref’d) (―The jury, being the judges of the facts and the credibility of the witnesses, could choose to believe or not believe the witnesses or any portion of their testimony.‖); see also Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (op. on reh’g) (explaining that ―[r]econciliation of conflicts and contradictions in the evidence is within the province of the jury‖). Also, the jury, in its discretion to weigh the evidence, could have rationally disbelieved appellant’s statement, made just after the sexual assault, that he mistakenly believed that Lauren was Andrea, because Lauren testified to other instances of abuse. See Brown, 270 S.W.3d at 568. Lauren testified that in 2003, when she was ten years old, appellant came into her bedroom and touched her vagina. He told her that he wanted to show her where her ―soft spot‖ was and that if she ―let him do it,‖ he would leave her alone. Lauren told Andrea, and Andrea and Lauren left appellant for two days before returning to live with him. According to Lauren, Andrea told her to change her story, so in 2007, after Lauren had told authorities what had happened, she signed a sworn statement 7 minimizing the incident.5 Lauren also said that appellant promised her a $10,000 car to change her story. She explained that she thought Andrea ―wouldn’t care about‖ her if she did not sign the statement. The State also presented evidence about a later incident that occurred between Lauren and appellant while they were camping. According to Lauren, during that incident, appellant tried to touch her ―in the front‖ either above or underneath her clothing.6 Further, Lauren said that more than once, appellant sat in their house in his boxers with his penis hanging out. Lauren also said that she had appellant paint the inside of her window because she suspected that he once watched her while she was getting dressed. Tarrant County Sheriff’s Office Detective Mike Coursey said that appellant, while referring to the camping trip incident, conceded to inappropriately touching someone and ―said it was an accident and immediately apologized.‖ Detective 5 The statement reads in part, [Appellant] and I would wrestle once a week and I enjoyed it. . . . I was dressed in my pajamas and was playfully trying to get away from him. As I did so, his hand touched my private area over my clothing. His hand was there only an instant. He apologized and we didn’t horseplay or wrestle after that. . . . Thinking back on this I feel I took it too seriously and that it was an accident. In my opinion [appellant] never intended this to happen and there was nothing sexual between us. 6 Lauren’s 2007 statement also recited, ―[Appellant] did not touch me during the camping incident.‖ 8 Coursey testified that appellant also admitted to inappropriately touching Lauren in her bedroom; appellant said that touching was likewise accidental. The jury could have chosen to believe Lauren’s testimony and disbelieve her 2007 retraction about appellant’s pattern of deviant sexual behavior. See Lugo, 299 S.W.3d at 453. Thus, the jury could have rationally rejected the theory that appellant was excused from the sexual assault because, on an isolated incident, he mistakenly thought that Lauren was Andrea. For these reasons, viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found that the State proved each element of appellant’s sexual assault beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. We overrule appellant’s first point. Allegedly Improper Objections In his second point, appellant contends that the trial court erred by allowing Amanda’s personal counsel (rather than the prosecutor) to object to questions during her testimony that were unrelated to her constitutional rights.7 Amanda was in custody when she testified. She was facing three petitions to revoke felony community supervision cases. Before Amanda’s testimony began, her counsel stated, 7 Appellant does not urge that the trial court made an incorrect evidentiary ruling connected to one of the objections. 9  Your Honor, I am Ms. Stegall’s attorney and just would like to put on the record that I would object and advise her to take the Fifth in the event that any questions are asked as to any of her pending cases. And I don’t know if the Court would prefer that we do a quick motion in limine as to any of her pending cases or if you would prefer that I would just object during testimony. But I would object in advance, regardless of any questions, regarding her current cases. The trial court did not directly express its preference regarding the timing of Amanda’s counsel’s objections. Nonetheless, during cross-examination of Amanda by appellant’s counsel, her counsel objected to several questions regarding her criminal cases. Appellant’s trial counsel did not complain about the appropriateness of these objections at any stage of the trial court’s proceedings. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009); Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (―[O]bjections promote the prevention and correction of errors.‖). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). 10  Some violations of a defendant’s rights may be raised on appeal without an objection at trial regarding the rights. Saldano, 70 S.W.3d at 888–89 (explaining that, for example, jurisdiction over the person and the constitutional prohibition of ex post facto laws are systemic issues that need not be preserved at trial); see Mendez, 138 S.W.3d at 342 (―Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . , all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).‖) (emphasis added). But appellant has not cited authority establishing that he has a systemic or waivable-only right to question a witness without encountering objections from the witness’s counsel, and we have not located such authority. Appellant argues that Amanda’s counsel’s objections prevented thorough cross-examination. The rights of cross-examination and confrontation are forfeited, however, by a failure to object at trial. Eustis v. State, 191 S.W.3d 879, 885 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Whitfield v. State, 137 S.W.3d 687, 692 (Tex. App.—Waco 2004, no pet.). Thus, we hold that appellant forfeited his right to complain about Amanda’s counsel’s objections by not seeking to prohibit those objections at trial. See Tex. R. App. P. 33.1(a)(1); Layton, 280 S.W.3d at 238–39; Robinson v. State, 310 S.W.3d 574, 577–78 (Tex. App.—Fort Worth 2010, no pet.). We overrule appellant’s second point. 11  Conclusion Having overruled both of appellant’s points, we affirm the trial court’s judgment. PER CURIAM PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: April 14, 2011 12 

993 F.2d 1538 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.Restoney ROBINSON, Plaintiff-Appellant,v.James C. FOX, Defendant-Appellee. No. 93-6230. United States Court of Appeals,Fourth Circuit. Submitted: May 3, 1993Decided: May 27, 1993 Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, District Judge. (MISC-92-90-5-BR) Restoney Robinson, Appellant Pro Se. E.D.N.C. AFFIRMED. Before RUSSELL and HALL, Circuit Judges, and SPROUSE, Senior Circuit Judge. PER CURIAM: OPINION 1 Restoney Robinson appeals from the district court's order dismissing his motion to amend the pleadings in a civil rights action which was previously dismissed by the district court and affirmed on appeal by this Court. Once Robinson appealed the original action, the district court no longer had jurisdiction and properly denied Robinson's motion. Consequently, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED

ACCEPTED 05-15-00939-cr FIFTH COURT OF APPEALS DALLAS, TEXAS 12/8/2015 9:40:26 AM LISA MATZ CLERK NOS. 05-15-00938-CR & 05-15-00939-CR FILED IN IN THE 5th COURT OF APPEALS DALLAS, TEXAS 12/8/2015 9:40:26 AM COURT OF APPEALS LISA MATZ Clerk FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS DEMARCUS JERMANE SAMPSON APPELLANT, V. THE STATE OF TEXAS, APPELLEE APPELLANT’S COURT APPOINTED COUNSEL’S MOTION TO WITHDRAW On appeal from Cause Number F09-12092-L & F09-12093-L in District Court No. 5 of Dallas County, Texas Honorable Carter Thompson, Judge Presiding JOHN TATUM 990 SOUTH SHERMAN STREET RICHARDSON, TEXAS 75081 (972) 705-9200 BAR NO. 19672500 ATTORNEY FOR APPELLANT  MOTION FOR WITHDRAWAL OF COUNSEL This Motion for Withdrawal of Court Appointed Counsel is brought by John Tatum, Movant, who is court appointed attorney of record for Demarcus Jermane Sampson. Movant requests the Court to grant Movant permission to withdraw as attorney for Demarcus Jermane Sampson in the appeal of these causes. In support, Movant shows: Good cause exists for withdrawal of Movant as counsel on appeal, in that pursuant to the statement made in the brief in support of this motion, counsel has expressed an opinion that in each case on appeal counsel is of the opinion that the appeal in each case is frivolous. This withdrawal is not sought for delay but required by the cases cited in the brief in support of this motion . A copy of this motion has been delivered to Demarcus Jermane Sampson. The last known address of Demarcus Jermane Sampson is BIN# 13049333, Dallas County Jail, Tank #3 W 06 P.O. Box 660334 Dallas, Texas 75266- 0334.  Movant prays that the Court enter an order discharging Movant as attorney of record on appeal in each case for Appellant, Demarcus Jermane Sampson. Respectfully submitted, /s/ John Tatum John Tatum 990 S. Sherman St. Richardson, Texas 75081 Ph. # (9720 705-9200) State Bar No. 19672500 CERTIFICATE OF SERVICE I, JOHN TATUM, do hereby certify that a true and correct copy of the foregoing Motion to Withdraw was delivered to Susan Hawk, Criminal District Attorney, Appellate Section, 11th floor, Frank Crowley Criminal Courts Building, Dallas, Texas 75207, on this 8th day of December, 2015. /s/ John Tatum JOHN TATUM  CERTIFICATE OF SERVICE The undersigned attorney for Appellant certifies that a true and correct copy of the foregoing motion to withdraw was mailed, postage prepaid, to Demarcus Jermane Sampson, BIN# 13049333, Dallas County Jail, Tank #3 W 06 P.O. Box 660334 Dallas, Texas 75266-0334 by U.S. Mail this the 8th day of December, 2015. /s/ John Tatum JOHN TATUM  CERTIFICATE OF COMPLIANCE I certify that this submitted e-mail attachment of Appellant’s Motion to Withdraw complies with the following requirements of the Court: 1. The motion is submitted by e-mail attachment; 2. The e-mail attachment is labeled with the following information: A. Case Name: Demarcus Jermane Sampson B. The Appellate Case Numbers: 05-15-00938-CR & 05-15-00939-CR C. The Type of Document: Motion D. Party for whom the document is being submitted: Appellant E. The Word Processing Software and Version Used to Prepare the Brief : Word Perfect X7 3. Copies have been sent to all parties associated with this case. /S/ JOHN TATUM 12/08/15 (Signature of filing party and date) John Tatum (Printed name) John Tatum, Attorney at Law Emailed Copy of motion 

79 F.Supp.2d 169 (1999) Francesca LONGO, Plaintiff, v. WAL-MART STORES, INC., Defendant. No. 98-CV-4340 (ADS). United States District Court, E.D. New York. December 18, 1999. *170 Goldstein & Goldstein, P.C., Brooklyn, NY, by Mark I. Goldstein, of counsel, for plaintiff. Bushell, Brody, Kleczka, Minasi & O'Connor, LLP, Northport, NY, by Thomas O'Connor of counsel, for defendant. MEMORANDUM OF DECISION AND ORDER SPATT, District Judge. As we approach the dawn of a new millennium, the age of the video deposition, at least as it relates to the testimony of treating physicians, is upon us. This is a personal injury action to recover damages for injuries allegedly suffered by the Plaintiff when she slipped and fell in a store owned by the Defendant Wal-Mart Stores, Inc. in Arizona. Presently before the Court is the Defendant's motion to transfer the case to the District Court for the District of Arizona. The Plaintiff's complaint alleges that on September 29, 1996, she slipped and fell on a wet floor in a Wal-Mart store located in Glendale, Arizona and suffered substantial injuries. The Plaintiff commenced an action on April 30, 1998 in New York State Supreme Court, Kings County, seeking $940,000 in damages. The complaint alleged that "at the time of the commencement of this action, Plaintiff Francesca Longo resided in the County of Kings, State of New York." The Defendant removed the case to this Court on diversity grounds on June 18, 1998, indicating that the Defendant was a Delaware corporation with its principal office in Arkansas. At some unspecified point thereafter, the Plaintiff was deposed at which time she testified that although she presently resided in New York, she intended to move permanently to Glendale, Arizona "within the next thirty days." Subsequently, on April 30, 1999, the Defendant served a request for admission on the Plaintiff's counsel, requesting that the Plaintiff admit that she presently resides in Glendale, Arizona. According to the Defendant's motion papers, no response to that request for admission was ever served by the Plaintiff, and therefore, the request is deemed admitted pursuant to Fed. R.Civ.P. 36(a). In addition, the Defendant alleges in its moving papers (and the Plaintiff does not dispute) that all of the potential witnesses, other than some of the doctors who have treated the Plaintiff, are all currently residing in Arizona. The Plaintiff opposes transfer of the case, alleging that she has been treated by six different medical providers, and that the burden on her of producing those witnesses for trial in Arizona would be extreme. By contrast, she alleges that there are only two potential fact witnesses for the Defendant, and that as a corporation of great financial means, the Defendant could more easily absorb the cost of producing those witnesses for trial in New York. DISCUSSION The moving party has the "burden to clearly establish that a transfer is appropriate and that the motion should be granted." Laumann Mfg. Corp. v. Castings USA Inc., 913 F.Supp. 712, 720 (E.D.N.Y.1996), see also Factors Etc. Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 (2d *171 Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). The Court's inquiry on a motion to transfer is two-fold. The first issue is whether the action sought to be transferred is one that "might have been brought" in the district court in which the moving party seeks to have the case litigated, namely, the transferee court. Here, the parties are diverse, with the Plaintiff admittedly being an Arizona resident and the Defendant's being a Delaware Corporation with its principal place of business in Arkansas. 28 U.S.C. § 1332. Venue in the District of Arizona would be proper under 28 U.S.C. § 1391(a)(2), as it is the district in which a substantial part of the acts or omissions giving rise to the claim occurred. Because the initial threshold question is answered affirmatively, then the court must then examine whether, "the convenience of parties and witnesses" and "the interest of justice", weighs in favor of a transfer to the proposed district. Laumann Mfg. Corp., 913 F.Supp. at 720; Modern Computer Corp. v. Ma, 862 F.Supp. 938, 947-48 (E.D.N.Y.1994). The moving party has the "burden to clearly establish that a transfer is appropriate and that the motion should be granted." Laumann Mfg. Corp., 913 F.Supp. at 720 (quoting Modern Computer Corp., 862 F.Supp. at 948); see also Factors Etc., 579 F.2d at 218-19. Although courts have employed a variety of factors that serve as a guidepost in helping to determine whether to transfer a case to another district, none of the factors are singly dispositive. Modern Computer Corp., 862 F.Supp. at 948. The criteria include: (1) convenience of the parties; (2) convenience of witness; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of witnesses; (6) the weight accorded the plaintiffs choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and (10) how best to serve the interest of justice, based on an assessment of the totality of material circumstances. Pall Corp. v. PTI Technologies, Inc., 992 F.Supp. 196, 199 (E.D.N.Y.1998); Wine Markets Int'l, Inc. v. Bass, 939 F.Supp. 178, 181 (E.D.N.Y.1996); Modern Computer Corp., 862 F.Supp. at 948. 1. Convenience of the parties The Court finds that the convenience of the parties is best served by transferring the case. The Plaintiff presently resides in Arizona, and thus, a transfer of the case actually works to her convenience. The Defendant, being principally located in Arkansas, is equally inconvenienced by trial in either New York or Arizona. However, since its Glendale, Arizona store is the location at issue here, trial in Arizona is more convenient to the Defendant than would be a trial in New York, as none of Defendant's New York stores are involved in the case. 2. Convenience and attendance of the witnesses The convenience of witnesses also seems to tip in favor of a transfer. The Defendant has identified two principal defense witnesses, Ken Money and Kimberly Matos, both of whom are Arizona residents. In addition, the Defendant's motion papers indicate that Plaintiff's primary fact witness, Joseph Gluck, also resides in Arizona. All three of these witnesses would be convenienced by a trial in Arizona rather than New York. Moreover, all three are beyond this Court's subpoena power, a factor that weighs especially heavily in favor of transfer. See Fischer v. Enterprise Rent-A-Car, 1996 WL 251426 (E.D.N.Y. 1996) citing Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 990 (E.D.N.Y. 1991). The Plaintiff's main argument in opposition to the motion to transfer venue to Arizona is that the Plaintiff was treated by five doctors and one "health care provider." The Plaintiff's papers do not identify *172 these providers. The Plaintiff's opposition to the motion implies that these medical providers are located in New York, although logic suggests that, if the Plaintiff was injured in Arizona, some of her medical providers — such as persons providing first aid or immediate treatment for her injuries — may be located in Arizona. Even assuming that all her medical providers reside in New York, the Plaintiff has not indicated whether all of the providers will necessarily testify live, nor does she indicate what hardships might arise from having such witnesses testify by deposition pursuant to Fed.R.Civ.P. 32. In the absence of such evidence to counterbalance the clear advantages shown by the Defendant of having the three identified fact witnesses testify in Arizona, the Court finds that the convenience of the witnesses weighs in favor of transfer. In addition, the Plaintiff can effectively place the testimony of her New York physicians before an Arizona jury by either a video deposition or live video testimony. It is recognized that a videotaped deposition is generally more effective than reading a transcript for the presentation of deposition testimony. In addition, the substantial fee of a physician witness can be reduced and valuable presentation time can be conserved by using videotaped depositions. For a discussion of the advantages of the use of video depositions at trial, see Federal Judicial Center, Manual for Complex Litigation 3d § 22.332 (1995), citing Michael J. Henke, The Taking and Use of Videotaped Depositions, 16 Am.J. Trial Advoc. 151, 165 (1992) and Joseph, Modern Visual Evidence, § 3.03[2][f] (1984; Supp.1997). See also Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 259 n. 6 (5th Cir.1985); United States v. Tunnell, 667 F.2d 1182, 1185 (5th Cir. 1982); Weiss v. Wayes, 132 F.R.D. 152, 154-55 (M.D.Pa.1990); Rice's Toyota World v. S.E. Toyota Distrib., 114 F.R.D. 647, 649 (M.D.N.C.1987); U.S. v. Baker, 45 F.3d 837 (4th Cir.1995) (video conference procedure in civil commitment hearing did not violate constitutional due process protection). 3. Relative means of the partiesu In determining whether to transfer a case, the Court may consider whether a disparity between the parties exists with respect to their relative means, especially in cases such as this one where an individual plaintiff is suing a large corporation. See e.g. National Utility Service, Inc. v. Queens Group, Inc., 857 F.Supp. 237, 242 (E.D.N.Y.1994). However, in this unusual situation, the Plaintiff is now a permanent resident of the transferee jurisdiction. Under these circumstances, the Court finds that a transfer of the case to Arizona would actually place less of a strain on the Plaintiff's means than would keeping the case in New York, which would require her to travel to this location to attend the trial. Thus, in this situation, the disparity of means between the individual Plaintiff and the corporate Defendant actually favors transferring the case. 4. Locus of operative facts and relative ease of access to sources of proof The injury at issue was sustained by the Plaintiff in Arizona. Transfer of the case to Arizona places the parties closer to the store location at issue for any discovery and inspection. Also, with the Plaintiff residing in Arizona, the most convenient place to conduct medical examinations of her by the Defendant would be Arizona. While transfer would move the parties further away from any medical providers the Plaintiff used in New York, discovery involving these providers would likely be conducted in large part by videotaped deposition or by documents that can be easily be mailed to Arizona. On the whole, the Defendant has demonstrated that this factor weighs in favor of transfer. 5. The weight accorded the plaintiffs choice of forum The Plaintiff's choice of forum is afforded "great weight" in considering the *173 appropriateness of a transfer. Wine Markets Int'l, supra. at 183. Here, the Plaintiff initially commenced this action in New York State. However, the Court observes that the Plaintiff's decision to commence the suit in New York may have been motivated by her residence being in New York at the time the case was filed. The fact that she has since relocated to Arizona causes the Court to question the logic of deferring to her initial selection of New York as a forum. Nevertheless, the Court will consider this factor as weighing in favor of denying transfer of the case. 7. Calendar congestion The Defendant has not offered any proof regarding the relative press of business in the District of Arizona. The Court notes that its own caseload is among the highest in the Federal judiciary, and on this basis, finds that this factor probably weighs in favor of transfer. However, because the Defendant has offered no evidence showing the District of Arizona's current caseload, the Court finds that this factor should be given minimal weight in the overall analysis. 8. The desirability of having the case tried by the forum familiar with the substantive law to be applied. This case concerns allegations of negligence against the Defendant. Thus, the case is governed by the substantive law of the state in which the acts or omissions took place, namely Arizona. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Block v. First Blood Assocs., 988 F.2d 344, 349 (2d Cir.1993); Humphreys v. Humphreys, 949 F.Supp. 1014, 1020 (E.D.N.Y.1997). While the Defendant has not offered any factual assertion that the substantive law of negligence in Arizona is significantly different from that applied in New York, the Court nevertheless finds that as a general rule, a District Court sitting in Arizona is more likely to be familiar with the substantive tort law of the State of Arizona than this Court. Therefore, the Court finds that this factor weighs slightly in favor of transfer. 9. Practical difficulties The Defendant has not offered any evidence of practical difficulties, other than those issues described above, that would result unless a transfer is granted. Therefore, the Court does not find that this factor weighs in favor of transfer. 10. How best to serve the interest of justice, based on an assessment of the totality of material circumstances Examining the totality of the circumstances, the Court is convinced that trial of this case in Arizona will best serve the interests of justice. The Court finds that the Plaintiff's current residence in Arizona makes a transfer there more convenient for her, as well as for the Defendant. The inconvenience of having some of the Plaintiff's medical providers travel to Arizona or, more reasonably, testify by video deposition or video testimony is clearly outweighed by the convenience of having discovery and trial take place in the district where the Plaintiff and all of the primary fact witnesses reside. Therefore, the Defendant's motion to transfer this case to the United States District Court for the District of Arizona is GRANTED. The Clerk of Court is directed to transfer the case. SO ORDERED

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-2526 NICHOLAS WEBB, et al., Plaintiffs-Appellants, v. FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16-cv-04664 — Andrea R. Wood, Judge. ____________________ ARGUED FEBRUARY 6, 2018 — DECIDED MAY 8, 2018 ____________________ Before RIPPLE, SYKES, and BARRETT, Circuit Judges. BARRETT, Circuit Judge. The parties cast this case as one about arbitral immunity, which is the ground on which the district court dismissed the complaint. It turns out, however, that the case is really about federal jurisdiction. We asked the parties to submit supplemental briefs on this question, and they both contend that subject matter jurisdiction exists. Their strongest argument is grounded in the diversity stat- ute, but the amount in controversy requirement presents an 2 No. 17-2526 obstacle: the complaint satisfies it only if Illinois law permits the plaintiffs to recover their legal expenses from the under- lying arbitration, this suit, or both. We conclude that while Illinois law permits the recovery of legal fees as damages in limited circumstances, those circumstances are not present here. I. In October 2013, brokers Nicholas Webb and Thad Bev- ersdorf were fired by their employer, Jefferies & Company, Inc. (“Jefferies”). They decided to challenge their termina- tion, and, as their employment contracts with Jefferies de- manded, they filed their claims in the Financial Industry Regulatory Authority’s (“FINRA”) arbitration forum. FINRA required them to sign an “Arbitration Submission Agree- ment,” which they did, and their dispute with Jefferies pro- ceeded in arbitration for the next two-and-a-half years. They withdrew their claims before a final decision was rendered. Under FINRA’s rules, that withdrawal constituted a dismis- sal with prejudice. After the arbitration failed, Webb and Beversdorf sued FINRA in the Circuit Court of Cook County, Illinois, alleging that FINRA breached its contract to arbitrate their dispute with Jefferies. They faulted FINRA for a number of things, including failing to properly train arbitrators, failing to pro- vide arbitrators with appropriate procedural mechanisms, interfering with the arbitrators’ discretion, and failing to permit reasonable discovery. They sought damages “in an amount in excess of $50,000” and a declaratory judgment identifying specified flaws in FINRA’s Code of Arbitration Procedure. FINRA removed the dispute to federal court, where it moved to dismiss on multiple grounds, including No. 17-2526 3 arbitral immunity. The district court held that FINRA was entitled to arbitral immunity and dismissed the suit. Webb and Beversdorf appeal this judgment. II. Neither side has raised a jurisdictional challenge, but we have an independent obligation to determine whether we have authority to resolve this dispute. Smith v. American Gen. Life & Acc. Ins. Co., 337 F.3d 888, 892 (7th Cir. 2003) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 287 n.10 (1938)). At oral argument, we ordered the parties to submit supplemental briefs on this issue. Both sides argue that di- versity jurisdiction exists, and FINRA argues that federal question jurisdiction exists as well. Because the argument for diversity is the stronger of the two, we begin there. The diversity statute, 28 U.S.C. § 1332, grants jurisdiction when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000, ex- clusive of interest and costs. Complete diversity is not a problem: Webb and Beversdorf are citizens of Illinois and FINRA is a Delaware corporation with its principal place of business in Washington, D.C. Identifying the amount in con- troversy is more complicated. After it removed the case to federal court, FINRA initially claimed that the amount in controversy was satisfied be- cause Webb and Beversdorf sought more than $1,000,000 from Jefferies. The district court properly rejected this argu- ment, because we have held that the amount at stake in an underlying arbitration does not count toward the amount in controversy in a suit between a party to the arbitration and the arbitrator. Caudle v. American Arbitration Ass’n, 230 F.3d 4 No. 17-2526 920, 922–23 (7th Cir. 2000). Jurisdiction turns on what is at stake between the parties to this suit—Webb and Beversdorf, the plaintiffs, and FINRA, the defendant. Webb and Beversdorf paid FINRA $1800 at the start of the arbitration; if that is all they lost, the amount in contro- versy is obviously far short of the jurisdictional mark. They also, however, seek to recover the legal fees that they in- curred both in the course of arbitrating against Jefferies and in preparing this lawsuit against FINRA.1 Webb and Bevers- dorf say that these fees—which exceed $75,000—were a rea- sonably foreseeable consequence of FINRA’s breach of the Arbitration Submission Agreement. See 24 WILLISTON ON CONTRACTS § 64.12 (4th ed. 2017) (“Consequential damages … include those damages that … were reasonably foreseea- ble or contemplated by the parties at the time the contract was entered into as a probable result of a breach.”). The dis- trict court accepted this argument and concluded that it had authority to adjudicate the suit. Legal fees may count toward the amount in controversy if the plaintiff has a right to them “based on contract, statute, or other legal authority.” Ross v. Inter-Ocean Ins. Co., 693 F.2d 659, 661 (7th Cir. 1982), abrogated on other grounds by Hart v. 1 In their supplemental briefs, Webb and Beversdorf stress the legal fees they incurred in “preparing to litigate” against FINRA, presumably because they recognize that the amount in controversy requirement must be satisfied at the time the lawsuit is filed in or removed to federal court. Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998) (“[J]urisdiction depends on the state of affairs when the case begins; what happens later is irrelevant.”). Even if they seek recovery of legal fees incurred after the case was removed, those fees cannot count toward the amount in controversy. No. 17-2526 5 Schering-Plough Corp., 253 F.3d 272, 274 (7th Cir. 2001). Webb and Beversdorf do not contend that FINRA assumed a con- tractual obligation to cover either the fees that they incurred in arbitration or those that they incurred in this lawsuit. That leaves statute or other authority. The parties agree that Illi- nois law governs, so we look there to determine whether Webb and Beversdorf could plausibly recover any of these legal fees as damages. It is clear that Webb and Beversdorf cannot recover the money spent preparing to litigate against FINRA. Illinois generally adheres to the American Rule that each party bears its own litigation costs. Duignan v. Lincoln Towers Ins. Agency, Inc., 667 N.E.2d 608, 613 (Ill. App. Ct. 1996). Its common law does not authorize a prevailing party to recover attorneys’ fees from an opponent. Ritter v. Ritter, 46 N.E.2d 41, 43 (Ill. 1943); see also Keefe-Shea Joint Venture v. City of Evanston, 845 N.E.2d 689, 702 (Ill. App. Ct. 2005). Any right to recovery must derive from contract or statute, Ritter, 46 N.E.2d at 43; Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 839 (7th Cir. 2010), and Webb and Beversdorf have not identified any contractual or statutory provision giving them that right. They are thus stuck with the longstanding rule that they must bear their own litigation expenses in this suit against FINRA, even if they ultimately win. But Webb and Beversdorf do not just seek recovery of the legal fees they have incurred litigating against FINRA; they also seek recovery of the legal fees they incurred arbitrating against Jefferies. This is a more plausible ground for recov- ery, because Illinois recognizes a “third party litigation ex- ception” to the American Rule. The Illinois Supreme Court has held that “where the wrongful acts of a defendant in- 6 No. 17-2526 volve the plaintiff in litigation with third parties or place him in such relation with others as to make it necessary to incur expense to protect his interest, the plaintiff can then recover damages against such wrongdoer, measured by the reasona- ble expenses of such litigation, including attorney fees.” Rit- ter, 46 N.E.2d at 44; see also RESTATEMENT (SECOND) OF TORTS § 914 (“One who through the tort of another has been re- quired to act in the protection of his interests by bringing or defending an action against a third person is entitled to re- cover reasonable compensation for loss of time, attorney fees, and other expenditures thereby suffered or incurred in the earlier action.”). While the exception arises more fre- quently in the context of torts than contracts, we assume that Illinois courts would recognize it in the latter context as well. See Colvin v. Monticello Communications, Inc., No. 91–C–2498, 1994 WL 113051, at *8–9 (N.D. Ill. Apr. 1, 1994) (allowing the recovery of legal fees when the defendant’s breach of con- tract placed the plaintiff in litigation with a third party); see also City of Cedarburg Light & Water Comm’n v. Glen Falls Ins. Co., 166 N.W.2d 165, 168 (Wis. 1969) (“[A] breach of contract as well as tort may be a basis for allowing the present plain- tiff to recover reasonable third party litigation expenses.”). FINRA—whose desire to be in federal court has motivated it to argue vigorously for a proposition otherwise against its interest—also insists that the “third party litigation excep- tion” to the American Rule applies here and could obligate it to pay for Webb and Beversdorf’s legal expenses if it breached the arbitration agreement. Webb and Beversdorf’s effort to recover expenses in- curred in an arbitration proceeding begun for its own pur- poses—to assert a wrongful termination claim against Jeffer- ies—distinguishes this case from those in which Illinois No. 17-2526 7 courts have applied the exception. Illinois courts have not applied the exception when the defendant caused the legal fees to increase in an already existing third-party suit; they have applied it when the defendant caused the third-party suit in the first place. The Illinois courts have invariably de- scribed the exception as applying when the defendant’s wrong forced the plaintiff into litigation with a third party. See, e.g., Ritter, 46 N.E.2d at 44 (holding that the exception applies “where the natural and proximate consequences of a wrongful act have been to involve the plaintiff in litigation with others” (emphasis added)); Philpot v. Taylor, 75 Ill. 309, 311 (Ill. 1874) (applying exception where the consequence of the defendant’s wrongful act “has been to plunge the plaintiff into a chancery suit” (emphasis added)); see also Champion Parts, Inc. v. Oppenheimer & Co., 878 F.2d 1003, 1006 (7th Cir. 1989) (noting that the plaintiff can recover attorneys’ fees if “one consequence of the tortfeasor’s actions is to involve a person in litigation with others” (emphasis added)). For example, Illi- nois courts have permitted plaintiffs to recover legal fees spent settling with an insurance company when the defend- ant wrongfully caused the company to cancel the plaintiff’s policy, Duignan, 667 N.E.2d at 613; obtaining refunds of tax penalties that were assessed on the plaintiff due to the de- fendant’s negligence, Sorenson v. Fio Rito, 413 N.E.2d 47, 52 (Ill. App. Ct. 1980); and filing a second divorce petition when the defendant’s legal malpractice resulted in the dismissal of the plaintiff’s first petition, Nettleton v. Stogsdill, 899 N.E.2d 1252, 1259 (Ill. App. Ct. 2008). In all of these instances, the third-party litigation existed because of the defendant’s al- leged wrong.2 And when the party seeking the recovery of 2 The dissent cites Certain Underwriters at Lloyd’s, London v. Johnson & 8 No. 17-2526 fees was the plaintiff in the third-party litigation, as Webb and Beversdorf were here, the third-party litigation has been undertaken to “cure the damage caused by the defendant.” Duignan, 667 N.E.2d at 613. Webb and Beversdorf did not undertake the arbitration to cure FINRA’s breach of contract; they undertook it to re- solve an employment dispute with Jefferies. FINRA’s al- leged breach of the arbitration agreement did not force Webb and Beversdorf into arbitration; it allegedly increased Bell, Ltd., No. 10–C–7151, 2011 WL 3757179 (N.D. Ill. Aug. 25, 2011), as persuasive authority for the proposition that Illinois law would permit the recovery of fees not only when the defendant forced the plaintiff into litigation, but also when the defendant increased the plaintiff’s expenses in otherwise existing litigation. It is, of course, the decisions of Illinois courts that control our interpretation of Illinois law. In any event, how- ever, Certain Underwriters is consistent with our view of Illinois law. There, an insurer brought a legal malpractice action against a law firm that represented it in two underlying suits. The district court held that Illinois law would permit the plaintiff to recover attorneys’ fees in one of the underlying suits based on the plaintiff’s allegation that “it would not have undertaken its representation of [the insured] in the underlying … lawsuit but for defendants’ advice.” In other words, but for the defend- ants’ negligence, the plaintiff would not have been involved in the third- party litigation. Id. at *5. The district court also held that Illinois law would permit the plaintiff to recover the cost of hiring new counsel to correct the defendants’ failure to sue a necessary party in both of the un- derlying suits. Id. at *6. Certain Underwriters tracks the Illinois cases be- cause it permits recovery of attorneys’ fees paid to new counsel in an attempt to “cure the damage,” Duignan, 667 N.E.2d at 613. Like the plain- tiffs in Nettleton v. Stogsdill and Sorenson v. Fio Rito—and unlike Webb and Beversdorf here—the plaintiffs in Certain Underwriters did not seek recovery of inflated expenses incurred in the course of the initial, flawed litigation; they sought recovery of fees paid to replacement counsel hired to fix the defendants’ mistakes. No. 17-2526 9 the costs of arbitration they had already begun. The straight- forward causal connection that justified application of the third-party litigation exception in other cases is not present in this suit. Even, then, if FINRA breached its contract with Webb and Beversdorf, that breach would not alleviate Webb and Beversdorf’s obligation to shoulder the legal costs asso- ciated with their decision to pursue a wrongful termination claim against Jefferies. See Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001) (“In the United States, parties are ordinarily re- quired to bear their own attorney's fees….”). Illinois courts have consistently described and applied the exception in a way that precludes its application here.3 When a defendant removes to federal court, as FINRA did here, its plausible and good faith estimate of the amount in controversy establishes jurisdiction unless it is a “legal certainty” that the plaintiffs’ claim is for less than the requi- site amount. St. Paul Mercury Indem. Co., 303 U.S. at 288–89; 3 We do not reach this conclusion simply because the cases have all involved a defendant whose wrong forced the plaintiff to bring or de- fend a third-party lawsuit. See Dissenting Op. at 16–17 (observing that the “frequent occurrence of a fact pattern does not impose an analytical limitation on a principle unless some animating component of that prin- ciple limits application to the particular fact pattern.”). While we do not think the uniform occurrence of this fact pattern irrelevant, our conclu- sion is driven by the way that the Illinois courts (and, for that matter, the RESTATEMENT (SECOND) OF TORTS, see supra at 6) state the rule governing the recovery of third-party litigation expenses: they invariably include this limitation. The limit is not irrational; indeed, we can imagine reasons why Illinois might want to draw a line between attorneys’ fees clearly attributable to the defendant’s breach and those that are harder to sort out. 10 No. 17-2526 Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 579 (7th Cir. 2017). Here, Illinois law makes it a “legal certainty” that Webb and Beversdorf’s claim is for less than the requisite amount.4 Diversity jurisdiction does not exist. III. Webb and Beversdorf leave it at diversity, but FINRA makes an additional argument for federal question jurisdic- 4 The dissent argues that the “legal certainty” standard, St. Paul Mer- cury Indem. Co., 303 U.S. at 289, requires a federal court, where possible, to construe state law to allow the recovery of damages. Dissenting Op. at 19–20. That is not how the “legal certainty” standard works. The court first decides whether, assuming the facts the plaintiff alleges are true, state law allows recovery of the damages the plaintiff seeks. If state law forecloses recovery of the damages, it is certain that the claim is for less than the jurisdictional amount. Otherwise, the court accepts the plain- tiff’s good faith valuation of the claim. See Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 315 (7th Cir. 1996) (applying this two-step inquiry); see also St. Paul Mercury Indem. Co., 303 U.S. at 288 (“The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plain- tiff controls.”). The point of the “legal certainty” test is not to guide the court’s interpretation of state law, but to save the court from having to make difficult predictions about whether and how much the plaintiff is likely to win. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006) (“[U]ncertainty about whether the plaintiff can prove its substan- tive claim, and whether damages (if the plaintiff prevails on the merits) will exceed the threshold, does not justify dismissal.”). To that end, the test distinguishes between the law (which can render a claim’s value cer- tain) and the facts (which, if plausible, cannot). So far as we can tell, the suggestion that the “legal certainty” standard requires a federal court to accept the plaintiff’s good-faith characterization of the law, as opposed to the plaintiff’s good-faith valuation of his claim, is novel. No. 17-2526 11 tion.5 According to FINRA, this dispute is one of the rare state-law causes of action that gives rise to federal question jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005); see also Merrill Lynch, Pierce, Fenner & Smith v. Manning, 136 S. Ct. 1562, 1566 (2016) (holding that the Grable & Sons test deter- mines the reach of “arising under” jurisdiction for purposes of the jurisdictional grant in the Securities Exchange Act of 1934).6 Its theory is that the presence of an issue of federal securities law transforms this state-law contract claim into one arising under federal law. Under Grable & Sons, a state-law claim may satisfy the “arising under” jurisdictional test if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in a federal court without dis- rupting the federal-state balance. Gunn v. Minton, 568 U.S. 251, 258 (2013) (citing Grable & Sons, 545 U.S. at 314); see also Evergreen Square of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 776 F.3d 463, 466 (7th Cir. 2015). Federal jurisdiction is rarely established on this basis. Hartland Lakeside Joint No. 3 School Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1033 (7th Cir. 2014). For a state-law claim to arise under a federal securities 5 FINRA invoked both diversity and federal question jurisdiction in its notice of removal. Because the district court concluded that diversity jurisdiction existed, it did not reach the question of federal question ju- risdiction. 6 FINRA invokes both the general federal question statute, 28 U.S.C. § 1331, and the exclusive jurisdictional provision in the Securities Ex- change Act of 1934, 15 U.S.C. § 78aa. Because the Supreme Court held in Manning, 136 S. Ct. at 1566, that the Grable & Sons test applies in both contexts, we do not consider the two statutes separately. 12 No. 17-2526 claim, an issue of federal law must be the “cornerstone” of the plaintiff’s complaint. Manning, 136 S. Ct. at 1569. This dispute does not make it past the first factor of the Grable & Sons test. FINRA contends that because the plain- tiffs’ suit implicates FINRA’s SEC-approved Code of Arbitra- tion Procedure, this case requires us to decide whether FINRA breached a duty it owed Webb and Beversdorf under the securities laws. But FINRA fails to identify a single pro- vision of federal law that we would have to interpret to re- solve this case. The question is whether FINRA breached its arbitration agreement, and no “inescapable” provision of federal law drives that analysis. Hartland, 756 F.3d at 1035. To be sure, FINRA is regulated by the SEC, and its duties under the federal securities laws might come up. But that does not make federal law the “cornerstone” of the plaintiff’s com- plaint. Manning, 136 S. Ct. at 1569. The Supreme Court has emphasized that a “federal role” is not enough. Id. As for the rest of the Grable & Sons test, an issue not raised cannot be actually disputed or substantial, and with- out any federal question necessarily in play, we need not consider how taking the question would affect the federal- state balance. This is a state-law contract claim, and FINRA’s effort to pull it within federal question jurisdiction fails. IV. We VACATE the judgment for lack of jurisdiction and REMAND the case to the district court with instructions to remand to state court. No. 17-2526 13 RIPPLE, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that federal question jurisdic- tion is lacking. However, I reach a different conclusion with respect to diversity jurisdiction. Specifically, I cannot agree that we know, to a “legal certainty,” that Messrs. Webb and Beversdorf cannot recover the damages that they allege, in- cluding the attorneys’ fees expended in the earlier arbitration. A defendant seeking removal of a state action to federal court must file a notice of removal “containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). “By design, § 1446(a) tracks the general plead- ing requirement stated in Rule 8(a) of the Fed- eral Rules of Civil Procedure.” As the Supreme Court explained in Dart Cherokee Basin Operating Co., “Congress, by borrowing the familiar ‘short and plain statement’ standard from Rule 8(a), intended to ‘simplify the “pleading” require- ments for removal’ and to clarify that courts should ‘apply the same liberal rules [to removal allegations] that are applied to other matters of pleading.’” Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 578 (7th Cir. 2017) (alteration in original) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (2014)). There- fore, “[j]ust as we generally accept the plaintiff’s good-faith allegations of the amount in controversy to establish diversity jurisdiction, ‘when a defendant seeks federal-court adjudica- tion, the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or 14 No. 17-2526 questioned by the court.’” Id. at 579 (footnote omitted) (quot- ing Dart Cherokee Basin Operating Co., 135 S. Ct. at 553). “Once this has been done, and supported by proof of any contested jurisdictional facts, the presumption is the one stated in St. Paul Mercury [Indemnity Co v. Red Cab Co., 303 U.S. 283, 291 (1938)]: the estimate of the dispute’s stakes advanced by the proponent of federal jurisdiction controls unless a recovery that large is legally impossible.” Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). We also have observed that the legal certainty test sets a high bar for excluding federal subject matter jurisdiction “for good reason: District courts should not get bogged down at the time of removal in evaluating claims on the merits to de- termine if jurisdiction exists.” Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir. 2011). Thus, typical examples of claims con- sidered “‘legally impossible’ for jurisdictional purposes” in- volve “statutory or contractual cap[s] on damages.” Id. With this principle in mind, we must turn to Illinois state law. Here, it is important not to get off on the wrong foot by how we characterize this action. It is not an attorneys’ fees ac- tion; it is a damages action based on the breach of a contract. This distinction is very important. Illinois normally would not allow the recoupment of attorneys’ fees for success in main- taining the present action. It does recognize, however, that at- torneys’ fees incurred in an earlier action can be a measure of damages for an individual’s misfeasance in that earlier action. See Duignan v. Lincoln Towers Ins. Agency, 667 N.E.2d 608, 613 (Ill. App. Ct. 1996). The Illinois appellate court explained the principles un- derlying this rule, and demonstrated their application, in Sorenson v. Fio Rito, 413 N.E.2d 47 (Ill. App. Ct. 1980). In No. 17-2526 15 Sorenson, a widow had retained an attorney, Fio Rito, to han- dle her husband’s estate. Rather than attending to it, however, the attorney let it languish in his office; taxes went unpaid, and tax authorities imposed penalties. Sorenson then retained a new attorney to handle the estate, and through that attor- ney’s unsuccessful attempts to obtain refunds of penalties and interest, she incurred attorneys’ fees. See id. at 50. Sorenson then brought an action against the first attorney, Fio Rito, for damages. Among the damages that she claimed were fees paid to her second attorney for challenging the penalties. The trial court ruled that Sorenson could recover these damages from Fio Rito. Fio Rito maintained in the state appellate court that the American Rule, which generally precludes a plaintiff from re- covering attorneys’ fees expended to bring a lawsuit against a wrongdoer, foreclosed such damages. See id. at 51. The ap- pellate court disagreed. It explained that Fio Rito was “con- fus[ing] the exception with the general rule. The general rule in Illinois is that one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of his act.” Id. The American Rule governing attorneys’ fees limited this general rule, but only in situations “where a successful lit- igant seeks to recover his costs in maintaining the lawsuit”; it was not “intended to preclude a plaintiff from recovering losses directly caused by the defendant’s conduct simply be- cause those losses happen to take the form of attorneys’ fees.” Id. at 51–52. Applying these principles to Sorenson’s claim, the court stated: The plaintiff here is not attempting to recover the attorneys’ fees she expended in bringing this 16 No. 17-2526 lawsuit. Rather, she seeks to recover losses in- curred in trying to obtain refunds of tax penal- ties which were assessed against her solely as a result of the defendant’s negligence. Had the plaintiff been forced to hire an accountant to re- pair the damage caused by the defendant’s con- duct, she would undoubtedly have been enti- tled to recover the accountant’s fee as an ordi- nary element of damages. There is no basis in logic for denying recovery of the same type of loss merely because the plaintiff required an at- torney instead of an accountant to correct the situation caused by the defendant’s neglect. In holding the defendant liable for the plaintiff’s losses, we are not violating the policy against “penalizing” a litigant for defending a lawsuit. We are simply following the general rule of re- quiring a wrongdoer to bear the consequences of his misconduct. Id. at 52. The facts of our case are different. Here, the plaintiffs are demanding that the arbitrator in the underlying matter re- imburse them for the attorney fees that they incurred because of the arbitrator’s alleged lapse. The principle nevertheless re- mains the same. As the majority notes, most cases addressing the recovery of attorneys’ fees involve situations in which “the defendant’s wrong forced the plaintiff into litigation with a third party”— “when the defendant caused the third-party suit” as opposed to simply “caus[ing] the legal fees to increase in an already existing third-party suit.” See Majority Opinion 6–7 (collecting cases). However, the frequent occurrence of a fact pattern No. 17-2526 17 does not impose an analytical limitation on a principle unless some animating component of that principle limits applica- tion to the particular fact pattern. Here, the majority points to no such consideration. Nor does Illinois case law suggest any such limitation. Indeed, a colleague on the district court has written that it demonstrates the opposite. In Certain Under- writers at Lloyd’s, London v. Johnson & Bell, Ltd., No. 10 C 7151, 2011 WL 3757179 (N.D. Ill Aug. 25, 2011), the underwriters had hired Johnson & Bell to analyze their coverage responsi- bilities in two lawsuits and “to prepare and file complaints for declaratory judgment as necessary in connection with both suits.” Id. at *1. The underwriters later brought an action in federal court asserting state law malpractice claims against Johnson & Bell related to its representation in the two earlier actions. Specifically, the underwriters alleged that it incurred unnecessary attorneys’ fees based on Johnson & Bell’s han- dling of two underlying actions, the Lewis action and the Zarndt action. One of Johnson & Bell’s alleged missteps was providing negligent advice to the underwriters that they had a duty to provide representation in the Lewis lawsuit. With respect to those fees, the underwriters contended that “it would not have undertaken its representation of the defendants in the underlying Lewis lawsuit but for defendants’ advice.” Id. at *5. The underwriters did not make an equivalent claim with re- spect to the Zarndt action. A separate failure, however, was that Johnson & Bell neg- ligently had failed to name a necessary party in both the Zarndt and Lewis actions. Consequently, they had to hire re- placement counsel in those lawsuits and to incur unnecessary attorneys’ fees to correct the errors. Relying on Sorenson and 18 No. 17-2526 other Illinois cases, the district court held that Illinois law did not bar the underwriters’ claims: “Defendants’ omission of FCC as a defendant in the … declaratory judgment actions al- legedly necessitated correction of the pleadings at a fixed cost to plaintiff. At the time the fees were incurred, it was clear that the fees were directly attributable to counsel’s neglect.” Id. at *7 (citing Sorenson, 413 N.E.2d at 52). The court saw no analyt- ical significance to the fact that the underwriters had incurred the fees in existing litigation, rather than incurred in a sepa- rate lawsuit. Moreover, the court made no distinction be- tween fees incurred in the Lewis action, which would not have been undertaken absent Johnson & Bell’s negligence, and those incurred in the Zarndt action, the defense of which the underwriters did not challenge. Here, Messrs. Webb and Beversdorf do not seek damages from FINRA in the form of attorneys’ fees expended in this action. Instead, they seek damages from FINRA that include the expenditure of attorneys’ fees in the underlying arbitra- tion. They claim that these damages are “the direct result” of FINRA’s failure to create fair procedures and of FINRA’s in- terference in the arbitral process.1 Illinois law does not pre- clude a plaintiff from “recovering losses directly caused by the defendant’s conduct simply because those losses happen to take the form of attorneys’ fees.” Sorenson, 413 N.E.2d at 52. Moreover, the court inquired, and plaintiffs’ counsel repre- sented on the record, that the fees paid to FINRA and to arbi- tral counsel exceeded $75,000.2 See Rising-Moore v. Red Roof 1 R.1-1 at 7. 2 See R.35-2 at 3–4. No. 17-2526 19 Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006) (finding that plain- tiff’s counsel’s settlement demand could support a finding that the amount in controversy had been satisfied); cf. Work- man v. United Parcel Serv., Inc., 234 F.3d 998, 1000 (7th Cir. 2000) (observing that a plaintiff’s refusal to stipulate that his claim is less than $75,000 raises an inference that he believes his claim is worth more). Consequently, the district court properly determined that the amount in controversy was not in question. As noted at the outset of this separate opinion, we have said, straightforwardly and firmly, that “[t]he legal-certainty test sets the bar high for excluding federal subject-matter ju- risdiction, and for good reason: District courts should not get bogged down at the time of removal in evaluating claims on the merits to determine if jurisdiction exists.” Carroll, 658 F.3d at 681. This rule, rooted in the long-standing jurisprudence of the Supreme Court, see St. Paul Mercury Indem. Co., 303 U.S. at 289, is followed faithfully throughout the Country, see, e.g., Colavito v. New York Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006). When the applicable state law definitively precludes recovery of the jurisdictional amount, we have not hesitated to say that the federal court is without jurisdiction. See, e.g., Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 317– 18 (7th Cir. 1996). However, when state law is “unsettled,” we will not engage in guesswork to resolve the issue of state law prematurely. Geschke v. Air Force Ass’n, 425 F.3d 337, 341 (7th Cir. 2005).3 3 We note in passing, however, that when a claim for punitive damages comprises the vast bulk of the amount necessary to reach the jurisdictional threshold, we have proceeded with a heightened degree of caution. See 20 No. 17-2526 Here, the majority opinion, quite admittedly, see Majority Opinion 9, engages in such guesswork. Frankly admitting that it cannot say with any certainty how Illinois courts would resolve the plaintiffs’ substantive claims, it ignores the court’s teaching in Geschke. Taking a guess on the content of state law, it denies the defendants their rightful federal forum. In doing so, it effectively chides the district court for having followed the established law of the circuit and tells future district courts to ignore Geschke and to follow its example today of becoming bogged down in reading “tea leaves” on the content of state law. It departs from the established practice of accepting ju- risdiction and of confronting the content of state law by later employing other federal practice devices that are far better suited to addressing, sometimes with the help of the state court, the intractable problems inherent in the “Erie guess.”4 See, e.g., Colavito, 438 F.3d at 231-35 (deciding the jurisdic- tional amount issue and then determining through motions for summary judgment, for dismissal for failure to state a claim, and by certification whether the plaintiff could state a viable cause of action). Because I believe that the district court followed estab- lished practice, grounded in well-settled case law across the Nation, I respectfully dissent from the dismissal for want of subject matter jurisdiction. Del Vecchio v. Conseco, Inc., 230 F.3d 974, 978–79 (7th Cir. 2000); see also Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993). 4 See generally Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdic- tion Through the Lens of Federalism, 78 Va. L. Rev. 1671 (1992). 

45 F.3d 140 UNITED STATES of America, Plaintiff-Appellee,v.Keith BOLEN, Defendant-Appellant. No. 94-1568. United States Court of Appeals,Seventh Circuit. Argued Nov. 29, 1994.Decided Jan. 6, 1995. Andrew B. Baker, Jr., Ronald J. Kurpiers, Asst. U.S. Attys., Joseph Alexis Cooley (argued), Office of the U.S. Atty., Dyer, IN, for plaintiff-appellee. Steven L. Mullins, William L. Touchette (argued), Merrillville, IN, for defendant-appellant. Before CUMMINGS, ESCHBACH, and KANNE, Circuit Judges. ESCHBACH, Circuit Judge. 1 Defendant Keith Bolen appeals from his conviction for retaliating against a federal witness in violation of 18 U.S.C. Sec. 1513. Bolen contends that the evidence presented at trial was insufficient to support his conviction. We affirm. I. 2 On June 25, 1993, Keith Bolen got into a fight with Gary Young in the parking lot of Holiday Liquors in Cedar Lake, Indiana. It was a Friday night, and Bolen had been out drinking beer with a group of friends. Ron Hummel, one of Bolen's friends, was driving them around in his jeep. Hummel stopped at Holiday Liquors and ran into the store to buy more beer. While Bolen and his friends were waiting in the jeep, Gary Young coincidentally pulled into the liquor store parking lot on his way home from work. Young had testified against Bolen in a federal criminal case less than four months earlier.1 3 As Young made his way from the parking lot to the liquor store, a fight broke out between him and Bolen. Although various witnesses at trial provided conflicting testimony as to how the fight started, it is undisputed that Bolen ultimately caused bodily injury to Young. The record indicates that the fight lasted for several minutes and that Young suffered a bloody nose and other facial injuries. The fight ended when Young entered the liquor store and Bolen returned to Hummel's jeep. 4 On September 8, 1993, a grand jury indicted Bolen on one count of retaliating against a federal witness in violation of 18 U.S.C. Sec. 1513. A jury trial commenced on November 10, 1993. Bolen moved for a judgment of acquittal at the close of the government's case, but the motion was denied. Bolen subsequently failed to renew his motion for judgment of acquittal at the close of his case or at the close of all the evidence. On November 12, 1993, the jury returned a verdict of guilty. Bolen filed a timely appeal, claiming that his conviction should be vacated because it was not supported by sufficient evidence. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. II. 5 Bolen's sole contention is that the evidence presented at trial was insufficient to support the jury's verdict finding him guilty of retaliating against a federal witness. In general, a verdict will withstand a sufficiency of the evidence challenge as long as the prosecution presented some evidence from which the jury could find guilt beyond a reasonable doubt. United States v. Villagrana, 5 F.3d 1048, 1051 (7th Cir.1993); United States v. Caudill, 915 F.2d 294, 297 (7th Cir.1990). In the case at bar, however, Bolen conceded at oral argument that he failed to preserve the issue of insufficient evidence for direct appellate review because he did not renew his motion for judgment of acquittal at the close of all the evidence in the trial court. Under such circumstances, "an appellate court may reverse a conviction for insufficiency of the evidence only where the defendant demonstrates a manifest miscarriage of justice." Caudill, 915 F.2d at 297; see United States v. Goulding, 26 F.3d 656, 663 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 673, 130 L.Ed.2d 605 (1994). Here, the jury's verdict against Bolen did not result in a manifest miscarriage of justice.2 6 In order to prove that Bolen retaliated against a federal witness in violation of 18 U.S.C. Sec. 1513, the government must show that Bolen caused bodily harm to Young "with the intent to retaliate" against Young for his attendance as a witness at Bolen's federal criminal trial in March, 1993. See 18 U.S.C. Sec. 1513(b).3 Bolen acknowledges that he caused bodily harm to Young, but he contends that the evidence presented at trial was insufficient to show that he acted with the requisite intent to retaliate against a witness. See United States v. Torres, 977 F.2d 321, 326 (7th Cir.1992) (stating that in a conviction under 18 U.S.C. Sec. 1513, "the government was required to establish that [the defendant] acted not only knowingly, but also with an intent to retaliate"). In reviewing sufficiency of the evidence challenges, we review the evidence in a light most favorable to the government and we defer to the jury's evaluation of the credibility of witnesses. United States v. Martinez, 937 F.2d 299, 303 (7th Cir.1991); Caudill, 915 F.2d at 297. 7 At trial, the government provided evidence that Bolen instigated the fight against Young and that references were made to Young "ratting" on Bolen. Young testified that as he was walking from the parking lot to the liquor store entrance, he was called over to the jeep in which Bolen and his friends were sitting. According to Young's testimony, he started to back away from the jeep as soon as he recognized Bolen's presence, and Bolen then jumped out of the jeep, confronted Young, and started beating him. Danny Miller, a government witness who had been standing next to the jeep in the Holiday Liquors parking lot when this incident occurred, testified that he heard someone from inside the jeep yell: "There's the guy that ratted on you." Miller further testified that he heard Bolen repeatedly ask Young: "Why did you rat on me?" 8 Not surprisingly, Bolen's witnesses at trial provided a different version of what transpired. They testified that Young had instigated the fight and that there was never any mention of Young's participation as a witness in Bolen's previous criminal trial. On appeal, Bolen argues in effect that the testimony of his witnesses was stronger and more credible than that of the prosecution; however, this is clearly a jury question. Viewing the evidence in a light most favorable to the government, and allowing the jury to evaluate the credibility of the witnesses, we are satisfied that there was sufficient evidence to support Bolen's conviction. Accordingly, there was no manifest miscarriage of justice. III. 9 For the foregoing reasons, the defendant's conviction is AFFIRMED. 1 On March 3, 1993, Young testified on behalf of the government in United States v. Bolen, No. HCR 92-138. Bolen had been charged with discharging a firearm at a civil aircraft in violation of 18 U.S.C. Sec. 32, and Young testified that he had heard shots from an automatic or semi-automatic weapon. Bolen was subsequently acquitted because of insufficient evidence 2 Even if Bolen had properly preserved the issue of insufficient evidence by renewing his motion for judgment of acquittal at the close of all the evidence, we would still find under the normal standard of review that there was sufficient evidence to support the jury's verdict in this case 3 Section 1513(b) provides: Whoever knowingly engages in any conduct and thereby causes bodily injury to another person ... with intent to retaliate against any person for-- (1) the attendance of a witness or party at an official proceeding, or any testimony given or any record, or other object produced by a witness in an official proceeding; or attempts to do so, shall be fined not more than $250,000 or imprisoned not more than ten years, or both.

9 Wn. App. 834 (1973) 515 P.2d 523 DALE A. McANULTY, Respondent, v. SNOHOMISH SCHOOL DISTRICT NO. 201, Appellant. No. 1668-1. The Court of Appeals of Washington, Division One. October 29, 1973. *835 Robert E. Schillberg, Prosecuting Attorney, Darrell L. Syferd and Elmer E. Johnston, Jr., Deputies, for appellant. Bovy, Graham, Cohen & Wampold and Norman W. Cohen, for respondent. FARRIS, J. Snohomish School District No. 201 appeals the trial court's award of damages to Dale McAnulty, a teacher, in his action for improper discharge from employment. On June 3, 1970, McAnulty, then a fifth-grade teacher for the predecessor of Snohomish School District No. 201, was informed by letter that he had been discharged by the school board. Thomas P. Graham, an attorney, replied to this discharge letter over McAnulty's signature informing the board that he would represent McAnulty, requesting a hearing, and asking that all further communication in this matter be directed to him. Subsequent to the hearing, at which Graham represented McAnulty, the board offered McAnulty a new contract subject to certain rules of conduct. The board received a letter signed by both Graham and McAnulty, dated August 5, 1970, which accepted the contract and agreed to abide by its conditions. On September 22, 1970, Paul Carboneau, the principal of McAnulty's school, sent a letter to McAnulty concerning his alleged violation of one of the conditions of the contract. Graham responded to that letter for McAnulty. On November 19, 1970, the board determined that there was cause to discharge McAnulty. The next day Carboneau called McAnulty to his office and told him without elaboration not to return to work on Monday; he would be sent an explanatory letter. Carboneau wrote a letter (salutation to McAnulty) dated November 20, 1970, detailing the reasons for his discharge. A copy of that letter was sent by registered mail to Graham, but neither the original nor a copy *836 was ever mailed to McAnulty. On November 25, 1970, McAnulty went to Graham's office and there read Graham's copy of the discharge letter. McAnulty filed suit in Snohomish County Superior Court for damages arising from his discharge. The court found that McAnulty had not been served with notice of discharge within the meaning of RCW 28A.58.450, and for that reason entered judgment for McAnulty. This appeal followed. We first consider the school district's contention that McAnulty was served with notice of discharge within the meaning of RCW 28A.58.450, which provides that a school board finding probable cause for the discharge of an employee shall notify such employee in writing of its decision, which notification shall specify the probable cause or causes for such action. Such notices shall be served upon that employee personally, or by certified or registered mail, or by leaving a copy of the notice at the house of his . .. usual abode ... The school district argues that since McAnulty had designated Graham as his agent to receive service, was immediately orally informed of his discharge, and within a week read Graham's copy of the discharge notice, the statutory service requirements were met. The record establishes that Graham had acted as McAnulty's attorney in the matter of the June 1970 discharge. McAnulty had requested at that time that further communication "in this matter" be directed to Graham. Exhibit No. 9. The school district argues that McAnulty was discharged primarily for violations of the probationary contract which was the upshot of that June discharge, and that the November 1970 discharge was part of the earlier discharge. Therefore, the school district argues, Graham continued to be McAnulty's agent and service on him was good service on McAnulty. [1] The trial court found that McAnulty was not served with notice of his discharge either personally or by certified or registered mail. That fact is not disputed. The court also *837 found that the matter of the June 1970 discharge had terminated and that the November 1970 discharge was a new matter. We may not substitute our own findings of fact for those of the trial court, if there is substantial evidence to support those findings. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). Here, the trial court reasonably found that the November 1970 discharge was a different, if related, matter from the June 1970 discharge. Neither McAnulty nor Graham had a duty to give notice of the termination of the agency, since the school board had an absolute statutory duty to serve McAnulty himself unless the November 1970 discharge was in fact the culmination of the single matter of the June 1970 discharge. [2, 3] The school district argues that even if Graham was not McAnulty's agent, RCW 28A.58.450 is not a service statute and under the circumstances its intent was satisfied by the actual notice of his discharge that McAnulty received. In State ex rel. Miller v. Tacoma, 177 Wash. 689, 33 P.2d 88 (1934), the court held that where an employee had received actual notice of the reasons for his discharge, the purpose of the statutory notice requirements had been satisfied despite deviations from the letter of the statute and the discharge was upheld. However, the statute at issue in Miller provided only for the furnishing of a statement in writing of the reasons for his discharge to a discharged employee. Here, RCW 28A.58.450 explicitly provides that notice of the reasons for discharge shall be "served upon that employee ..." (Italics ours.) Where a statute explicitly requires service and spells out the allowable methods for accomplishing such service, no deviation can be excused by the giving of actual notice; cf. Schultz v. Pasco, 39 Wn.2d 262, 235 P.2d 168 (1951). McAnulty cross-appeals for a jury trial, for an increase in attorney fees, for an increase in damages beyond the trial court's award of the remainder of his 1970-71 teaching salary, for reversal of the trial court's summary judgment *838 on his claim of defamation and interference with contractual relations, and for double damages under RCW 49.52.070. In view of the ruling of this court on the discharge question, the jury trial issue is moot. [4] The grant or denial of attorney fees is within the sound discretion of the trial court. Lande v. South Kitsap School Dist. 402, 2 Wn. App. 468, 469 P.2d 982 (1970). We find no abuse of discretion in the award made. [5] Although an improperly discharged teacher should recover all damages caused by his discharge, Foster v. Carson School Dist. 301, 63 Wn.2d 29, 385 P.2d 367 (1963), the mere expectancy of employment is not sufficient to award contract damages for the distant future. Moore v. Knowles, 466 F.2d 531 (5th Cir.1972). Here the trial judge's award of the balance of the year's wages was a reasonable limitation of recovery. The award of partial summary judgment on September 3, 1971, on the issue of defamation and interference with contractual relations was a final order within the meaning of CR 54(b). See Crosthwaite v. Crosthwaite, 56 Wn.2d 838, 358 P.2d 978 (1960). No appeal was taken from that order until May 15, 1972; it is now barred under CAROA 33(1). [6] Finally, RCW 49.52.070, the double damages statute, does not apply here. That statute provides double damages only for a willful withholding of wages. There is no testimony in the record to indicate that appellant school district did not have a genuine belief that McAnulty had been legitimately discharged and thus that his wages could properly be discontinued. An employer does not willfully withhold wages within the meaning of RCW 49.52.070 where he has a bona fide belief that he is not obligated to pay them. See State ex rel. Nilsen v. Lee, 251 Ore. 284, 444 P.2d 548 (1968). Here there was no willful wrongdoing; RCW 49.52.070 does not apply. Affirmed. SWANSON, C.J., and CALLOW, J., concur.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-300-CR JAMES DEAN GRAYSON APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY ------------ MEMORANDUM OPINION1 Appellant James Dean Grayson appeals his conviction for theft, contending in six points that the evidence is legally and factually insufficient to show that he intended to deprive anyone of property, that he unlawfully appropriated property, 1 See Tex. R. App. P. 47.4. 1 and that the complaining witness was the owner of the property. See Tex. Penal Code Ann. ' 31.03(a) (Vernon Supp. 2009). We affirm. Background Facts In 2008, the First Baptist Church of Euless (FBCE) needed a new digital mixing board and other equipment for its music department. Under FBCE=s policy, Alton LaGrappe, a church employee, collected three bids for the price of the equipment. The church eventually chose a bid for $15,510.59 from All A-Round Video and Sound (AAVS). AAVS submitted an invoice to the church. In February 2008, Gary Phillips, the church‘s administrative pastor who was responsible for its financial matters, authorized the church to purchase the equipment from AAVS through an internal purchase order. Phillips signed a check made out to AAVS from the church‘s Chase Bank account for the amount in AAVS=s invoice, and LaGrappe delivered the check to AAVS. Appellant, who had previously been employed and fired by the church, is the sole proprietor of AAVS. The church=s employees had been instructed to not do business with appellant.2 AAVS‘s $15,510.59 bid to the church for the equipment that the church was looking for was based on a deal that appellant had brokered 2 Appellant‘s counsel said during his opening statement that appellant had worked for the church‘s music department but was fired because he allowed someone to repossess property from the church after being instructed not to. The trial court excluded evidence about appellant‘s employment with the church. 2 with Nomad Productions, which is operated by Paul Glasgow. Glasgow told appellant that appellant would need to pay cash for the equipment. Appellant went to a Chase Bank branch and attempted to cash the check that LaGrappe had given him; the bank refused to do so. But then, appellant opened a checking account for AAVS at that same bank and deposited the check. Once appellant made the deposit, he immediately withdrew $3,510.59 and left the bank.3 In the meantime, an employee of the bank called FBCE to verify the legitimacy of the check and find out who had authorized it. Through the bank=s contacting the church, Phillips eventually became aware that appellant is the sole proprietor of AAVS. The church asked the bank to stop payment on the check, but that request came too late because the funds had already been deposited in AAVS‘s account. The bank also never placed a hold on AAVS‘s account. In the latter part of February 2008, seven days after his first withdrawal from his sole proprietor account, appellant withdrew $11,900, which was $100 less than the balance of the purchase price, from the account. He still did not purchase the 3 Appellant=s counsel theorized during his opening argument at trial that the initial withdrawal represented appellant=s commission for brokering the deal between the church and Nomad Productions. The invoice that was submitted by AAVS to the church does not reference appellant=s commission. 3 equipment for the church. On March 4, appellant sent Phillips an e-mail that stated the following: Gary, Through the grapevine I have heard that YOU intend on pressing charges against my company for fraud. I assure you that this is not the case. I had ordered parts and supplies to be delivered to the [FBCE] campus from Nomad Productions which is the company you told your staff to deal with after You had recognition that I was involved. . . .[4] There are issues that popped up after my departure from FBCE. . . . Please, as I have told ALTON to tell you, AAVS will have the church‘s funds back to the FBC CAMPUS. By March 18. Phillips responded to appellant=s e-mail on March 10 and informed appellant that if the funds were not returned to FBCE by March 18, Phillips would turn the matter over to legal counsel. March 18 came and went but no equipment or money arrived. On March 20, appellant e-mailed Phillips to inform him that he could not refund the church=s money because the money was not in his possession and that he could not deliver the promised equipment because it was Ano longer available at the price that was quoted.@ The next day, appellant e-mailed Phillips again and promised to refund the church=s money. 4 Glasgow testified that no one from FBCE ever contacted him about the equipment. 4  Appellant e-mailed Phillips yet again on March 26. He told Phillips that the original mixing board he had quoted was Aliquidated to another buyer before [he] could get the funds because of the fraud [allegations].@ Appellant went on to state that he had located similar equipment (although at a higher price) and promised to credit FBCE on its next purchase. In the end, FBCE did not receive the equipment or a refund of its money. Phillips contacted the police to allege that appellant had committed theft, and he learned at that time that appellant had withdrawn all of the church‘s money from AAVS‘s bank account. A grand jury indicted appellant for theft.5 Appellant waived his right to a jury and pled not guilty. The trial court found appellant guilty and pronounced a sentence of two years= confinement, but the court suspended that sentence, placed appellant on community supervision for five years, and ordered appellant to pay restitution of $15,510.59. Appellant filed notice of this appeal. Evidentiary Sufficiency Appellant claims that the evidence is legally and factually insufficient to support his conviction. In a theft case, the State must prove that (1) a person (2) with intent to deprive the owner (3) unlawfully appropriated (4) property. See Tex. 5 Theft of property valued between $1,500 and $20,000 is a state jail felony that carries punishment of up to two years= confinement. Tex. Penal Code Ann. '' 12.35(a), 31.03(e)(4) (Vernon Supp. 2009). 5 Penal Code Ann. ' 31.03(a); Ex parte Luna, 784 S.W.2d 369, 371 (Tex. Crim. App. 1990) (op. on reh‘g); Bokor v. State, 114 S.W.3d 558, 560 (Tex. App.CFort Worth 2002, no pet.). Elements of theft may be proved by direct or circumstantial evidence. See Bryant v. State, 627 S.W.2d 180, 182 (Tex. Crim. App. [Panel Op.] 1982); Christensen v. State, 240 S.W.3d 25, 32 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d) (op on reh‘g). Standards of review In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may not re-evaluate the 6 weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we Adetermine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder=s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfinder=s determination is manifestly unjust. Steadman, 280 S.W.3d at 7 246; Watson, 204 S.W.3d at 414B15, 417. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts the judgment. Watson, 204 S.W.3d at 417. 8  Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder=s determinations, Aparticularly those determinations concerning the weight and credibility of the evidence.@ Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417. Intent to deprive and unlawful appropriation In his first four points, appellant contends that the evidence is legally and factually insufficient to prove that he intended to deprive anyone of property or that he unlawfully appropriated property. Appellant briefed his contentions regarding intent to deprive and unlawful appropriation together. Because, under the facts of this case, the intent to deprive and unlawful appropriation elements both require the State to show that appellant had no intent to perform AAVS‘s agreement with the church at the time that he took the church‘s check, we will examine the elements together.6 A defendant ―deprives‖ someone of property by ―withhold[ing] property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner.‖ Tex. Penal Code Ann. 6 Appellant concedes in his brief that ―evidence of deception would generally tend to show an intent to deprive.‖ 9 ' 31.01(2)(A) (Vernon Supp. 2009). ―Relevant intent to deprive the owner of property is the accused‘s intent at the time of the taking.‖ Peterson v. State, 645 S.W.2d 807, 811 (Tex. Crim. App. 1983) (op. on reh‘g). ―It is well settled that intent to commit theft can be inferred from the surrounding circumstances.‖ Roper v. State, 917 S.W.2d 128, 132 (Tex. App.CFort Worth 1996, pet. ref=d) (citing Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974)). A person acts intentionally ―with respect to the nature of his conduct . . . when it is his conscious objective or desire to engage in the conduct.‖ Tex. Penal Code Ann. ' 6.03(a) (Vernon 2003). In determining whether the evidence is sufficient to establish that appellant had criminal intent to commit theft, we may consider whether he personally gained from what was taken, whether he partially performed on any of the representations that were made, and whether any inferences can properly be drawn from the combined force of the circumstantial evidence. Christensen, 240 S.W.3d at 32. Under the facts of this case, for appellant=s appropriation of property to have been unlawful, he must have taken the property without its owner‘s effective consent. See Tex. Penal Code Ann. ' 31.03(b)(1); 7 Schmitz v. State, 952 S.W.2d 922, 924 (Tex. App.CFort Worth 1997, pet. ref=d). Consent is not 7 Appropriation includes acquiring or exercising control over property. Tex. Penal Code Ann. ' 31.01(4)(B). 10 effective when it is Ainduced by deception or coercion.@ Tex. Penal Code Ann. § 31.01(3)(A). Thus, to show unlawful appropriation, the State must prove that at the time that appellant got the church=s check, he did so by deception or coercion. See Wilson v. State, 663 S.W.2d 834, 836B37 (Tex. Crim. App. 1984). Deception means the following: (A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; (B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true; [or] .... (E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed. Tex. Penal Code Ann. ' 31.01(1). Therefore, when an owner gives property or money voluntarily and in pursuit of a contractual agreement and there is insufficient evidence to show deception, the owner has given its effective consent and there is therefore no unlawful appropriation. See Peterson, 645 S.W.2d at 812; Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. [Panel Op.] 1982); Roper, 917 S.W.2d at 131B32; see also Jacobs v. State, 230 S.W.3d 225, 229B30 11 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (explaining that the Amere fact that one fails to return funds paid in advance after failing to perform a contract does not constitute theft‖ and that A[i]n sum, the State must show a rational factfinder could have found appellant had no intention of fulfilling his obligation under the agreement@). Here, Phillips voluntarily authorized the check=s delivery to AAVS under the parties= agreement. Thus, appellant=s nonperformance of AAVS‘s part of the bargain does not by itself show his unlawful appropriation. See Tex. Penal Code Ann. '' 31.01(1)(E), (3)(A), 31.03(b)(1). Instead, the State is required to prove that appellant did not intend to purchase the equipment for the church at the time that he received the check and therefore acquired Phillips=s consent by deception. Appellant‘s intent to steal the money and unlawfully appropriate it by deception may be inferred from the following facts: appellant did not disclose to Phillips that he was the proprietor of AAVS when he submitted the bid to the church through AAVS‘s invoice even though the church had previously fired him; appellant tried to cash the church‘s entire check upon receiving it; despite withdrawing $3,510.59 from the account on the day that he deposited the check, appellant did not buy any of the church‘s equipment that day or use the withdrawn money as a deposit for the equipment; despite withdrawing almost the entire remaining amount of money that was given to him by the church approximately one week later, appellant still did not buy the equipment even though Glasgow still had it; 12  after depositing the check in AAVS‘s account, appellant did not answer calls from one of the church‘s employees to the telephone number that appellant had listed on his AAVS invoice; appellant told Glasgow in an e-mail that the church had stopped payment on its check although, in fact, the church did not stop payment and the bank never placed a hold on AAVS‘s account; appellant promised to refund the church‘s money on several occasions and was given time by the church to do so, but he never returned the money; and appellant deceived the church by telling Phillips that the ―console that was in question [was] no longer available‖ and that it had been ―liquidated to another buyer before [he] could get the funds‖ when, in fact, Glasgow still had the console and never told appellant that the console had been sold. We recognize that some of the evidence in the record weighs against the trial court‘s decision to convict appellant. For example, Glasgow testified that he and appellant had multiple conversations in which they talked about the specific equipment that the church needed, including a mixing console, preamps, and a digital input/output card. Glasgow also said that after appellant received the church‘s check, appellant called Glasgow to tell him that appellant would meet him to pick up the equipment but that appellant never actually did so. While Glasgow‘s testimony about his communication with appellant before and after appellant received the church‘s check could imply that appellant intended to complete AAVS‘s transaction with the church at the time that he received the check, we conclude that because of appellant‘s misrepresentations regarding returning the church‘s money and regarding the equipment‘s alleged unavailability, 13 the trial court could have reasonably inferred that the communication was a ruse to cover up appellant‘s theft. Also, appellant‘s attempt to cash the church‘s check could imply that he was trying to complete AAVS‘s agreement with the church at that time since Glasgow required cash before transferring the equipment. However, the trial court could have also reasonably inferred appellant‘s intent to steal from his attempt to cash the check. Finally, witnesses testified that appellant has a good, dependable business reputation. But some of those witnesses conceded that they did not have any knowledge about the facts related to AAVS‘s agreement with the church. Appellant relies on Peterson and Roper to contend that the evidence is insufficient to convict him. In Peterson, the court of criminal appeals held that the evidence was legally insufficient to show that the defendant appropriated $58,000 by deception from a warehouse owner under a construction contract because, in part, the defendant completed between 75% and 95% of the construction work, there was a dispute between the defendant and the owner about terms of their agreement, and there were disputes between the defendant and construction material suppliers about how much he owed them or whether the suppliers had given him the correct materials for the job. 645 S.W.2d at 807–12. Unlike the defendant in Peterson, appellant did not partially perform his agreement with the church even though he had the funds to do so and the equipment was available to 14 be purchased. Also, unlike the construction agreement in Peterson, the record in this case does not show a dispute about the terms of AAVS‘s agreement with the church that contributed to appellant‘s failure to perform the agreement. In Roper, we held that the evidence was legally insufficient to prove theft because the defendant had consent to sell a farmer‘s hay and the defendant testified that he believed he was entitled to keep the money he made while selling the hay since the farmer owed him money for a commission and wages. 917 S.W.2d at 130–33. Here, appellant did not have any basis to believe that he was entitled to keep the church‘s money without providing any of the promised equipment. Rather, he deceived the church about whether he would return the money and whether he could have purchased the equipment from Nomad Productions with the money that the church had given him. Appellant‘s deception provided the trial court with circumstantial evidence that he intended to steal the church‘s money rather than perform the agreement. See Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d); Webb v. State, 752 S.W.2d 208, 210 (Tex. App.—Houston [1st Dist.] 1988, pet. ref‘d); Henke v. State, 730 S.W.2d 117, 118 (Tex. App.—Corpus Christi 1987, pet. ref‘d). In our legal sufficiency review, we must defer to the trial court‘s resolution of conflicting inferences that may be drawn from the evidence. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We conclude that, in 15 giving such deference in this case, the trial court could have rationally found that appellant did not intend to perform his agreement with the church at the time that he took its check, and the court therefore could have justifiably found the intent to deprive and unlawful appropriation elements beyond a reasonable doubt. Thus, we overrule appellant‘s first and third points. Similarly, while we have recognized that some inferences that could be drawn from the evidence conflict with the trial court‘s decision to convict appellant, we cannot conclude that the weight of those inferences is so great to make the trial court‘s judgment manifestly unjust. See Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414B15, 417. We may not hold that the evidence is factually insufficient merely because we ―harbor a subjective level of reasonable doubt to overturn [the] conviction.‖ Watson, 204 S.W.3d at 417. Thus, we hold that the evidence is factually sufficient to prove the elements of intent to deprive and unlawful appropriation, and we overrule appellant‘s second and fourth points. Phillips’s ownership of the money In his fifth and six points, appellant contends that the evidence is legally and factually insufficient to prove that Phillips was the owner of the money that he took. An owner is someone who has a ―greater right to possession of the property than the actor.‖ Tex. Penal Code Ann. ' 1.07(a)(35)(A). 16  Appellant‘s argument that Phillips was not the owner of the money seems to be dependent on a positive resolution of his first four points; appellant succinctly contends in his brief that the ―trial record establishes only the existence of a civil contract dispute. Consequently, the evidence is legally and factually insufficient to prove beyond a reasonable doubt that the complaining witness had a greater right to possession‖ of the money. We have upheld the trial court‘s implicit findings that appellant intended to deprive Phillips of the money and unlawfully appropriated it; the evidence shows more than a civil contract dispute. Furthermore, the evidence shows that Phillips has authority to spend money on the church‘s behalf. Phillips testified that he is responsible for overseeing all of the church‘s fiduciary matters and keeping records of business purchases. Also, Phillips signed the purchase order that authorized the delivery of the church‘s check to appellant. We hold that this evidence, coupled with appellant‘s unlawful appropriation of the money, shows that Phillips had a greater right to possession of the $15,510.59 than appellant. See Jordan v. State, 707 S.W.2d 641, 644 (Tex. Crim. App. 1986) (holding that a store manager who had ―control and managerial authority over the store and its money‖ qualified as an owner under the statutory definition). In other words, the evidence is sufficient to show that Phillips qualifies as the church‘s ―special owner.‖ Liggens v. State, 50 S.W.3d 657, 660 (Tex. App.—Fort Worth 2001, pet. ref‘d) (holding that a store 17 manager had a greater right to possession than the defendant and explaining that a ―‗special owner‘ is an individual, such as an employee, who is in care, custody, or control of the property belonging to another person or a corporation‖); see also Jackson v. State, 270 S.W.3d 649, 657 (Tex. App.—Fort Worth 2008, pet. ref‘d) (holding that a car dealership‘s employee qualified as the owner of a car because he had a greater right of possession than the defendant). For these reasons, viewing the evidence in the light most favorable to the verdict, we hold that the trial court could have rationally found beyond a reasonable doubt that Phillips was the owner of the money; thus, the evidence is legally sufficient as to that element. See Clayton, 235 S.W.3d at 778. We have not found any evidence in the record that weighs against Phillips‘s ownership of the money. Viewing the evidence in a neutral light, we cannot conclude that it is so weak concerning Phillips‘s ownership of the money that the trial court‘s verdict is clearly wrong or manifestly unjust. Therefore, the evidence is also factually sufficient as to that element. See Steadman, 280 S.W.3d at 246. We overrule appellant‘s fifth and sixth points. Conclusion Having overruled each of appellant‘s six points, we affirm the trial court‘s judgment. TERRIE LIVINGSTON 18  CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: August 5, 2010 19 

127 Ga. App. 735 (1972) 195 S.E.2d 213 SMITH v. POTEET et al. 47551. Court of Appeals of Georgia. Submitted October 5, 1972. Decided November 17, 1972. Rehearing Denied December 6, 1972. Congdon, Williams & Daniel, W. Barry Williams, Robert C. Daniel, Jr., for appellant. Fulcher, Hagler, Harper & Reed, Wiley S. Obenshain, III, Gould B. Hagler, George B. Rushing, for appellees. CLARK, Judge. Funerals are lachrymose affairs. For the plaintiff, an elderly mourning relative and retired schoolteacher, her sadness was increased when she sustained painful injuries from a fall which occurred as she was walking across the artificial grass cover customarily placed at the burial site. In the complaint filed against both the funeral director and the cemetery the negligence charged against both defendants was "in permitting the hole or depression in the ground to remain in a spot where it would be walked into by complainant and in covering said hole or depression with artificial grass, so that it could not be seen or observed." The funeral firm filed a third-party complaint against Wilbert Burial *736 Vault Co. alleging the fault, if any, to be upon that concern which had prepared the area at the request of the funeral home. This third-party complaint was dismissed on the morning of the trial with the funeral director subsequently defending upon the theory that Wilbert Burial Vault Co. was an independent contractor so that its negligence, if any, would not be chargeable to Poteet. From the antagonistic ambiance concomitant with a hard-fought courtroom battle between capable advocates the jury returned a verdict for both defendants. This was followed by a motion for new trial which as amended was overruled and the instant appeal followed. 1. "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code § 105-401. A duty of ordinary care was owed to plaintiff. The "standard is whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what he reasonably would have done to prevent injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened and the effectiveness of the action taken." Shockley v. Zayre of Atlanta, 118 Ga. App. 672 (165 SE2d 179). The facts sub judice are analogous to those in Roberts v. Wicker, 213 Ga. 352 (99 SE2d 84), where a judgment of nonsuit was granted. There plaintiff tripped on a threshold strip, commonly used in other buildings. "One would not necessarily observe the ridge on the metal strip or the groove in it by walking through the door, but one would have to get down on the floor and take a level view of the strip to discern its condition... There is nothing in the evidence to show or indicate the necessity of making such an inspection to ascertain the possible or probable existence of any defect, such as that other people had tripped or fallen while walking over the threshold *737 strip. Ordinary diligence, under such circumstances and the facts of this case, did not require an inspection where the defendants had no reason to think an inspection was necessary." Roberts v. Wicker, supra, pp. 354, 356. "The pedestrian is not entitled to an absolutely level, smooth and unobstructed passageway... Shearman & Redfield on Negligence, Vol. 4, p. 1817, § 795." Butler v. Jones, 85 Ga. App. 158, 162 (68 SE2d 173). "Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised, according to the nature of the use to which the property is devoted, ... and whether the condition could have been discovered by proper inspection [is a question] for the jury. [Cits.]." Jones v. Hunter, 94 Ga. App. 316, 320 (94 SE2d 384), as cited with approval in Martin v. Henson, 95 Ga. App. 715, 737 (99 SE2d 251). If there were any acts of negligence, who had the duty of care and thereby became liable for breach of this duty? "The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer." Code § 105-501. However, under Code § 105-502 (5) the relationship of master and servant may be created where the contract gives, or the employer assumes "the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Blair v. Smith, 201 Ga. 747, 748 (41 SE2d 133). If there is a "specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has [not] retained the right to control the manner, method and means of performance of the contract, and that the employee is ... an independent contractor." Golosh v. Cherokee Cab Co., 226 Ga. 636, 638 (176 SE2d 925), as cited recently by the Court *738 of Appeals in Moon v. Georgia Power Co., 127 Ga. App. 524. As against the defendant funeral director, plaintiff emphasizes the provisions of §§ 84-801, 84-803 and 84-804 in Chapter 84-8 of our Code captioned "Funeral Directors and Embalmers," codified from Ga. L. 1950, p. 238 et seq. As is stated in the opening declaration of public policy, this statute is "an exercise of the health powers of the State" with the legislation providing through a State board for licensing of persons as "an embalmer or funeral director" who meet the qualifications specified in § 84-809. The rationale behind this statute is that unless a human body is properly embalmed and buried or cremated, it may become a health hazard. Thus, such services as involve handling the corpse cannot be delegated or contracted to an unlicensed individual. However, one must distinguish between the portions of a funeral director's work which are directly aligned with his statutory professional responsibility of embalming and burial and those responsibilities of embalming and burial and those responsibilities he assumes because of our social mores.[1] The former is fixed by statute to avoid health hazards. The latter is decreed by society because of our culture and customs. Preparations made for relatives and friends to attend funeral services clearly fall under the latter category and no health hazard is involved. Therefore, Wilbert Burial Vault Co. was not forbidden by law from serving as an independent contractor in preparing the burial site including placement of the artificial grass carpeting. The relationship between the parties was for the jury as the trior of fact to determine. That along with other factual issues was properly submitted to the jury for their determination. "After a verdict, the evidence is construed in its light most favorable to the prevailing party, for *739 every presumption and inference is in favor of the verdict." Brown v. Wingard, 122 Ga. App. 544 (1) (177 SE2d 797). Where there is evidence sufficient to support the verdict and it has the approval of the trial judge, the judgment will be affirmed. M. & G. Textile Co. v. West Point-Pepperell, 126 Ga. App. 43 (189 SE2d 878); Dade v. Dade, 213 Ga. 533 (100 SE2d 181). The judgment for the defendants is supported by the evidence and is in accordance with the law. Therefore, enumerations 1, 2, 3 and 11 dealing with the general grounds of the new trial motion are without merit. 3. Enumeration number 4 contends the court erred in permitting counsel for one co-defendant to cross examine the agent of another co-defendant. "This court will not interfere with the action of the trial judge in allowing `double' or `multiple' cross examination of witnesses, particularly in a situation such as here shown involving more than two parties, absent a showing of a manifest abuse of discretion. The clear intent of Code § 38-1705 is to recognize and allow the right of cross examination for witnesses called by other parties, and we consider it quite proper for the trial court to regard such witnesses as witnesses `called against' another party seeking cross examination, unless the absence of any `distinct interests' clearly appears." Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123, 126 (159 SE2d 730). The defendants sub judice have definite, distinct interests. If negligence is assumed then the jury must determine who committed the negligent act: (1) Westover Memorial Park, Inc., who cared for the grounds and dug the grave; (2) Wilbert Burial Vault Co., who supplied the vault and set up other equipment necessary for a funeral, such as artificial carpet, chairs and tent; (3) the Poteets who, as funeral directors, embalmed the body and arranged for services including the work done by Wilbert. In addition, the jury must determine whether the Poteets had assumed a master-servant relationship with Wilbert Burial Vault, and thus were responsible for its acts. The court *740 did not abuse its discretion as the evidence clearly indicated "distinct interest" among the defendants. See also Akridge v. Atlanta Journal Co., 56 Ga. App. 812 (194 SE 590) and Rainey v. Moon, 187 Ga. 712, 717 (2 SE2d 405). Enumeration number 4 is therefore without merit. 4. Enumeration number 5 contends that the court erred in permitting defendant Howard Poteet to testify concerning his contract with Wilbert Burial Vault Co. This testimony is relevant as it would aid the jury in determining the status of Wilbert Burial Vault Co., and consequently whether the Poteets were liable for Wilbert's acts in addition to their own. "Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case." McNabb v. State, 70 Ga. App. 798, 799 (29 SE2d 643). "When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of the, in connection with the other facts in evidence, they are such as the jury ought to be permitted to hear." Walker v. Roberts, 20 Ga. 15 (1). Appellant's objection to admissibility was in part based on a contention that appellees had not pleaded the independent contractual relationship as an affirmative defense. Code Ann. § 81A-108 (c) was not applicable as neither agency nor an independent contractual relationship is one of those listed therein as an affirmative defense. Therefore this enumeration is without merit. 5. Enumeration number 6 contends that the court erred in striking the following testimony of defendant Howard Poteet: "Q. And don't you represent to them [family and friends that come to the funeral] that they are going to have a safe place to walk and are not going to fall down and break their arm? A. Yes, Sir. Q. And this is part of your service and you represent that these things are not going to happen?" Defendant's counsel objected and the court sustained the objection on the ground that "He can't foresee what's *741 going or not going to happen. " T. 85-86. "There is no merit in the remaining ground of the amended motion, which complains of the exclusion of testimony as to where the plaintiff spent the night, when it appeared that the testimony of the witness must of necessity be merely a conjecture." Gunnin v. Bankers, &c. Ins. Co., 66 Ga. App. 574, 575 (18 SE2d 563). The right of broad cross examination does not include the admissibility of otherwise inadmissible or irrelevant evidence. Morgan v. State, 211 Ga. 172 (84 SE2d 365). 6. Enumeration number 7 contends the court erred in charging the plaintiff's duty to exercise ordinary care to avoid the consequences of any negligence by defendants when such is apparent or in the exercise of ordinary care should have become apparent to plaintiff. The charge as given was correct as an abstract principle of law. Code § 105-603; Tidwell v. Tidwell, 92 Ga. App. 54 (87 SE2d 657). When the particular language complained of states an abstract principle of law it is then necessary for examination of the record to ascertain if the complaining party has been injured by the giving of such instruction. Troy v. Wright Body Works, 109 Ga. App. 346 (136 SE2d 197); Anderson v. Southern R. Co., 107 Ga. 500 (4) (33 SE 644). "An instruction containing a correct legal principle. though inappropriate to the case, if not prejudicial to the contention of the losing party, affords no sufficient reason for granting a new trial." Turner v. Elliott, 127 Ga. 338 (3) (56 SE 434). See also Rolan v. Rittenhouse, 107 Ga. App. 769 (3) (131 SE2d 112). As was said in Wilson v. Harrell, 87 Ga. App. 793, 795 (75 SE2d 436): "While the giving of this charge may have been inapt and not entirely adjusted to the pleadings or the evidence, it was not reversible error." 7. Enumeration number 8 attacks inclusion in the charge of the legal theory of "accident." The 9th enumeration attacks the failure to include in the jury charge that portion of Code § 105-502 which in subparagraph 4 provides that an employer is liable for the negligence of a contractor *742 "if the wrongful act is the violation of a duty imposed by statute." Both attacks are based upon the contention there was negligence per se through violation of standards contained in Code Ann. Ch. 84-8. As we have heretofore pointed out the work assigned to Wilbert as an independent contractor of preparing the burial site, including placing artificial grass, chairs, and normal burial equipment, would not come within the professional category such as embalming and corpse preparations which must be performed by the individual professional licensee. Furthermore, "`The term (accident) has been used to refer to ... a happening which, although not wholly free from negligence by such person, was not proximately caused by a failure of either of the parties to a case to exercise ordinary care in the situation.' 65 CJS 646, Negligence, § 21 (a) (1), citing Pickering v. Wagnon, 91 Ga. App. 610 (86 SE2d 621) and Boatright v. Sosebee, 108 Ga. App. 19 (132 SE2d 155)." Teppenpaw v. Blaylock, 126 Ga. App. 576, 579 (191 SE2d 466). Where there is evidence of "accident" in the record, it is not error to charge the jury on that subject. Caldwell v. Knight, 94 Ga. App. 827 (96 SE2d 331). See also Trammell v. Williams, 97 Ga. App. 31 (101 SE2d 887). 8. Enumeration number 10 contends the court erred in failing to inform plaintiff's counsel as to the court's proposed action on defendants' requests to charge. Code Ann. § 70-207 (b) states: "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury..." As this is similar to Rule 51 of the Federal Rules of Civil Procedure, the application by the Federal courts has persuasive influence in our consideration. Ga. Power Co. v. Maddox, 113 Ga. App. 642 (149 SE2d 393). These cases point out that "an essential purpose of Rule 51 is to permit counsel to argue intelligently upon the evidence, within the framework of the applicable law, and also, by reason of advance notice as to the disposition of requests for instructions, to alert *743 him to take appropriate exceptions following delivery of the charge." Tyrill v. Alcoa Steamship Co., 185 FSupp. 822, 824 (S. D. N. Y. 1960). For reversal to be obtained for such inadvertent oversight, it is necessary to show substantial prejudice to have resulted. Levin v. Joseph E. Seagram & Sons, 158 F2d 55 (7th Cir.); Finkle v. N. Y., N. H. &c. R. Co., 26 FRD 9 (D. C. Conn. 1960). From the manner in which the record shows plaintiff's capable counsel noted his objections to the charge it appears that his client has not been prejudiced. Moreover, as was noted in the Finkle case, supra, p. 10. "when counsel embark upon their summations without any request for such information, the trial judge may usually infer that they envisage no need for such information and treat the requirement as waived." In dealing with procedural rules and the requirement that harmful error must be shown in order to obtain a reversal upon appeal our Fifth Circuit concluded in Dallas R. &c. Co. v. Sullivan, 108 F2d 581, 584 (1940) that "Dialectical perfection, metaphysical nicety, abstract inerrancy, are not expected or required of Federal trial courts." We are constrained to add that this same language is applicable to state trial courts. Judgment affirmed. Eberhardt, P. J., and Deen, J., concur. NOTES [1] In 1963 a noted English writer, Jessica Mitford, dealt interestingly with this subject in The American Way of Death (Simon & Schuster, Inc., New York).

455 F.2d 798 Robert N. HAYES, Jr., No. 1863, Appellant,v.SECRETARY OF DEPARTMENT OF PUBLIC SAFETY, Appellee. No. 71-1325. United States Court of Appeals,Fourth Circuit. Jan. 25, 1972. Before WINTER, CRAVEN and BUTZNER, Circuit Judges. PER CURIAM: 1 Plaintiff, as disclosed by the covering letter of Patuxent Institution transmitting his pro se pleading, is a "patient" at Patuxent Institution. He sued the Secretary of the Maryland Department of Public Safety.1 The Secretary is the head of the department, Ann.Code of Md., Art. 41, Sec. 204 (1971 Replacement Vol.) and the department includes the Patuxent Institution and the Maryland State Police, Ann.Code of Md., Art. 41, Sec. 204A; Art. 31B, Sec. 2; Art. 88B, Sec. 23 (1971 Replacement Vol. and 1971 Supp.). Plaintiff alleged acts of misconduct on the part of the custodial force (presumably of the Institution), i. e., beating a named inmate, using mace and practicing brutality on other named inmates, withholding food from inmates because they protested, stealing food of inmates, beating and chaining two other inmates for misconduct and failing to provide medical treatment to inmates who were ill. Plaintiff alleged that he had requested both the defendant and the State Police at Waterloo, Maryland (a barrack near Patuxent Institution) and, in particular Trooper W. F. Lefevre, to investigate these complaints against the authorities at Patuxent, but that he received no replies. Invoking jurisdiction under 28 U.S.C.A. Sec. 1343, plaintiff prayed an injunction to restrain the State Police "from the continue discriminating against inmates when it comes to filing and investigating complaints of inmates against institution authorities for brutality and violation of the public laws [sic]." 2 The district court allowed the pleading to be filed in forma pauperis, but, without requiring an answer, dismissed it as frivolous. It assigned as reasons for that conclusion: 3 1. No exhaustion of State remedies, administratively, through the appropriate State's Attorney or the Attorney General of Maryland or through the State courts, is alleged. 4 2. No evidence of discrimination is alleged or indicated, in that there is no allegation that similar inquiries made by inmates of other institutions, or by the public at large, have been answered. 5 3. No showing has been made that Trooper Lefevre had any authority to investigate complaints, or to reply to them. 6 4. The court is not aware of any holding that each individual citizen has a civil right to require an answer to any complaint made even with respect to himself, much less others, or to a request for an investigation. 7 We disagree. We reverse the judgment of dismissal and remand for further proceedings. 8 Viewed with the liberality that must be afforded pro se pleadings, plaintiff has alleged a cause of action under 42 U.S.C.A. Sec. 1983, of which the district court had jurisdiction under 28 U.S.C.A. Sec. 1343. In essence plaintiff has alleged a violation of the rights of inmates to be afforded due process and not to be subjected to cruel and unusual punishment and, indeed, plaintiff has also alleged misconduct of the type mounting up to acts made criminal by the law of Maryland, e. g., common law assault and battery. Plaintiff has alleged that he reported the matters both to the defendant and the Maryland State Police and requested an investigation and corrective action. While the district court treated the essence of his complaint as one of the failures of defendant and the police to report to him, we do not read his allegation so technically or so narrowly. Rather, it seems to us that plaintiff is saying that on information and belief nothing has been done. As we will elaborate later, we think that a good cause of action may have been alleged against the police2 and the complaint contains allegations that would support a request for relief against defendant in his administration of Patuxent Institution. 9 We respond to the reasons of the district court for dismissal: 10 1. Exhaustion of state remedies, administratively or through the state courts, is not a prerequisite to the exercise of federal jurisdiction under the Civil Rights Act of 1871. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Liles v. South Carolina Department of Corrections, 414 F.2d 612 (4 Cir. 1969). See also, Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (per curiam); McNeese v. Board of Educ., 373 U.S. 668, 671-672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963) (alternative holding). While Maryland has recently established an Inmate Grievance Commission, Ann. Code of Md., Art. 41, Sec. 204F (1971 Supp.), to determine and recommend the proper redress for meritorious grievances of inmates of Patuxent and other correctional institutions, we take judicial notice of the fact that the Commission is not yet fully operative. When it is, there will be time enough for the Supreme Court to determine if Monroe v. Pape, and, we, our own decisions, should be reexamined. That time is not the present. 11 2. It is true that plaintiff does not specifically allege that charges of law violations by inmates of other institutions or the public at large have been investigated by the Maryland State Police, and that reports of investigations have been made. But, as we have said, we can only conclude that plaintiff is alleging police inaction. Unless we presume that there has been a major breakdown of the police function, we can assume that complaints of law violation by the public at large are investigated where they are as pointed and specific as those alleged by plaintiff, and even that some of the complaining parties do receive some word of the outcome of the investigation. We think that plaintiff has, therefore, indicated discrimination by his allegations. 12 3. Whether Trooper Lefevre has authority to investigate complaints or to reply to them is largely irrelevant, because plaintiff has alleged that he also complained to defendant, the overall administrative head of both Patuxent Institution and the Maryland State Police, who, unquestionably, had authority to act and to direct others to act. At the same time, we would assume that every police officer has authority to receive a report of a violation of law and authority to set in motion a proper investigation of the case. 13 4. While the district court read plaintiff's complaint narrowly to allege that plaintiff was entitled to a report of the investigation he requested, we read it as an allegation, on information and belief, that no investigation was undertaken. When the allegation is so read, plaintiff's theory of his case is novel. It is that the police can investigate charges of brutality and misconduct against correctional officials made by inmates where the alleged brutality and misconduct are a violation of civil rights and are so aggravated as to amount to a violation of state law. We know of no authority to sustain the proposition, yet we are certainly not prepared to reject it summarily, as did the district court, without requiring a responsive pleading and, if there is an issue of fact, an evidentiary hearing. Although under Monroe v. Pape, supra, and its progeny, we think that we presently lack authority to require exhaustion of state remedies, the states are certainly to be encouraged to deal with complaints of institutional brutality through their own police, through their own courts and through their own administrative procedures, rather than to constitute the federal courts the sole instrument for redress of inmates' grievances. 14 Some additional comments should supplement our conclusion that plaintiff has alleged a cause of action immune to summary dismissal. First, it appears that plaintiff may have an additional cause of action under the Civil Rights Act of 1871 against the officials of Patuxent Institution to require that it be administered in such a manner as not to violate the rights of those who are subjected to its treatment. It is true that plaintiff has not alleged that brutality or other misconduct has been practiced on him, but he has, in effect, alleged that he is part of an institutional population which must live from day to day under the constant threat of brutality and misconduct. It would seem, therefore, that plaintiff is "injured," is a member of a class which is "injured" and is thus competent to maintain a class action for himself and others similarly situated. Jackson v. Bishop, 404 F.2d 571 (8 Cir. 1968); Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff'd 442 F.2d 304 (8 Cir. 1971); Morris v. Travisono, 310 F.Supp. 857 (D.R.I. 1971). See, also, Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Smith v. Board of Education, 365 F.2d 770, 776 (8 Cir. 1966); Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403-404 (C.D.Cal. 1970); Note, Limiting The Section 1983 Action In The Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486, 1495, 1497 (1969). Second, with regard to the cause of action which plaintiff has alleged, judicial time would be conserved by a sharpening of the allegations and a refinement of the legal theory or theories under which plaintiff proceeds. These considerations lead us to direct that on remand the district court appoint counsel to represent plaintiff and direct that an amended complaint be filed within a reasonable time before a responsive pleading is required. Cf. Holt v. Sarver, 442 F.2d 304, 305 (8 Cir. 1971); Jackson v. Bishop, 404 F.2d 571, 572-573 (8 Cir. 1968). 15 Reversed and remanded. 1 The complete name of the department is Department of Public Safety and Correctional Services 2 Since the complaint was dismissed summarily, we treat as proven the factual allegations therein. Whether the allegations are proven must await the time of trial or proof offered in support of a motion for summary judgment

298 So.2d 622 (1973) Leonard Ray WILSON, Sr. v. Peggy Dickerson WILSON (York). Civ. 173. Court of Civil Appeals of Alabama. December 12, 1973. Rehearing Denied January 9, 1974. *623 Hubert L. Taylor, Gadsden, for appellant. Corretti, Newsom, Rogers & May, Birmingham, for appellee. BRADLEY, Judge. This is an appeal from a decree of the Walker County Circuit Court, in Equity, *624 granting and denying relief as requested by the parties in their respective petitions to modify a final decree of divorce. The appellant, in his petition for modification of the divorce decree, requested that custody of a minor child of the marriage, Leonard Ray Wilson, Jr., now be vested in him on the grounds that the appellee was neglecting the child, mistreating it, and also attempting to alienate the child's affections for him. Further, it was stated that appellant had just discovered that his former wife had engaged in adulterous conduct prior to their divorce. It was also requested that the appellee be required to petition the Probate Court of Shelby County, Alabama for rescission of its order changing the name of the minor child in question from Leonard Ray Wilson, Jr. to Ray Frank York. The appellee cross-petitioned for a modification of the same divorce decree and requested that the amount of child support be increased and that she be awarded attorney's fees. In support of her request for an increase in child support, the appellee pointed out that the divorce decree, which affirmed an agreement between the parties, awarded $50 per month for the child, Leonard Ray Wilson, Jr., and $50 per month for the unborn child. The pregnancy resulted in twins being born, and appellee asked for an increase in support payments for the additional child. She also sought additional support money due to increase in the cost of living. The trial court's decree awarded $165 for child support, denied the request for change of custody, denied the request that appellee be required to initiate proceedings to rescind the order of the Shelby County Probate Court's changing the name of Leonard Ray Wilson, Jr. to Ray Frank York, and denied the request for an award of attorney's fee to appellee. From said decree an appeal has been perfected to this court. The appellee in this cause has filed a motion to strike from the record an amendment to the petition filed by the appellant in the trial court. We believe that the motion is due to be granted. The transcript shows that the appellant filed that amendment in open court and that the appellee requested a continuance pending that motion. The trial judge said that it would be some time before the motion for the continuance could be heard. The attorney for appellant then made the following statement: "MR. HARDWICK: Well, your Honor, insofar as this petition is concerned, I have it, and I have presented it to the Court as an aid, and I am willing at this time to withdraw the amendment that I have presented to the Court, and we will proceed accordingly as intended. I thought that this would be some assistance to Mr. Corretti and the Judge, but if it will cause problems, we won't file it, and we would like to proceed." We believe that this statement constitutes a withdrawel of the proposed amendment and it is due to be stricken from the record. Appellant filed nineteen assignments of error, only nine of which were argued. Those assignments not argued are deemed waived. Supreme Court Rule 9. In assignment of error two, appellant contends that the decree of the trial court filed on January 9, 1973 is not final but is still in fieri. He argues that the language used in the first part of the decree to the effect, ". . . that . . . relief should be granted in part and denied in part in both petitions . . ." indicates that something remains to be done since he did not receive any relief in response to his petition for modification. A decree in fieri will not support an appeal. But, the test of the finality of a decree which will support an appeal is *625 not whether the cause is in peri, but whether the decree rendered ascertains and declares the rights of the parties. Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939. It has also been held that a decree which declares the rights of the parties and settles the equities is final even though further proceedings by the court are envisioned so as to effectuate the decree. Newton v. Ware, 271 Ala. 444, 124 So.2d 664. In the instant case, we believe that the rights and equities of the parties have been adjudicated. Custody of the children was denied to the father and left with the mother; support for the children was increased as requested by the mother and opposed by the father; attorney fees as requested by appellee and opposed by appellant were refused; and request by appellant to have the order of Shelby County Probate Court changing the name of the oldest son set aside was denied. As we view the request for relief as set out in the respective pleadings, nothing remains to be done by the trial court as regards the rights and equities of the parties; consequently the decree is final and supportive of the appeal taken. In assignments of error three, four and five, appellant contends that the trial court erred in refusing to award custody of Leonard Ray Wilson, Jr. to him and in assignments of error seven, eight and nine, the contention is that the trial court erred in requiring him to pay increased child support. Both contentions are based on the lack of sufficient evidence to support the trial court's decree. The testimony was taken orally before the court sitting without a jury, and it was conflicting. For example, there was testimony by appellant that the appellee had engaged in adulterous conduct prior to the divorce and he had just learned about it. The appellee denied ever having engaged in such conduct. The appellant and his mother testified that Leonard Ray Wilson, Jr. was dirty and ill-cared for, and had been mistreated by appellee and her new husband. Appellee denied that she or her husband had mistreated the child and she testified that the child was kept clean, provided with suitable clothes, dental and medical care and toys. Several witnesses confirmed that the child was clean, well-dressed, well-behaved and appeared to love its mother. These same witnesses stated that appellee appeared to be a loving and concerned mother. There was evidence that the appellant had agreed in the divorce proceeding to pay $50 per month for Leonard Ray Wilson, Jr. and $50 per month for the unborn child. Instead of one child, there were two children born as a result of appellee's pregnancy. There was testimony from appellee and several of her witnesses that the cost of living had increased about twenty-five percent. The testimony from appellant and several of his witnesses was to the effect that the cost of living had increased anywhere from three to ten percent. There was evidence that appellant's income was about $1,000 per month and that his assets were in the neighborhood of $30,000 to $40,000. He was not married and lived alone. He did not have a regular job. Appellee was married, her husband worked and earned $3.50 per hour. Appellee was employed and earned $625 per month. She employed a maid to keep her house and care for the children and paid the maid $55 per week. To authorize an equity court to modify a final divorce decree so as to alter the custody arrangements, the petitioner must show a change in the circumstances since that final decree. McBride v. McBride, 268 Ala. 619, 109 So.2d 718. Furthermore, where the evidence is heard ore tenus in a child custody case, the findings and conclusions of the trial court will not be changed unless they are deemed to be plainly and palpably wrong. Wilkes v. Wilkes, 270 Ala. 341, 118 So.2d 906. As stated before, the evidence was in sharp conflict and it was the duty of the *626 trial court to resolve the conflicts and decide the matter and when it does so, unless it is plainly and palpably wrong, we have no authority to change its decree. And, in this instance, we are not so persuaded. The same rules apply when examining a chancellor's decree for error in the award of increased child support, i. e., child support or an increase thereof will not be awarded unless there are changed circumstances warranting it. The evidence relating to the request for more support money for the children in question was in sharp conflict and was resolved by the court when it awarded more child support. After careful examination of the facts relating to this aspect of the case, we cannot say that the trial court abused its discretion by requiring appellant to increase the amount of support given to his children. In assignment of error six, appellant says that the trial court erred in not requiring appellee to initiate proceedings to have rescinded the order of the Shelby County Probate Court changing the name of Leonard Ray Wilson, Jr. to Ray Frank York. The above allegation and request for relief was set out in appellant's petition for modification of the divorce decree wherein he sought custody of the child, Leonard Ray Wilson, Jr. The context in which this allegation appears in the petition for modification persuades the court that the relief requested pertaining to the name change amounts to no more than a collateral attack on the order of the Shelby County Probate Court. Judgments or decrees of a probate court are not subject to collateral attack. Foxworth v. White, 72 Ala. 224; Edmondson et al. v. Jones, 204 Ala. 133, 85 So. 799. Such decrees, judgments or orders can be set aside only after a direct attack in a proper proceeding and in the applicable forum. Edmondson et al. v. Jones, supra. Assignment of error fourteen is based on the contention that the trial court erred in refusing to allow a newspaper clipping to be admitted into evidence. The newspaper clipping was an announcement of the approaching marriage of the parties to this proceeding by the grandparents of appellee. Appellant argued that the purpose in attempting to admit the newspaper article was to show that appellee was not a fit and proper person to have custody of the child in question. As has been stated many times by the appellate courts of this state, the only issue before the trial court on a petition to modify a divorce decree to change the custody of a minor child is whether or not there has been a sufficient change in circumstances since the final decree so as to warrant such relief. Parker v. Parker, 269 Ala. 299, 112 So.2d 467. The newspaper clipping attempted to be placed into evidence related to an event that occurred prior to the marriage of the parties and obviously prior to the final decree of divorce. The remoteness in time of this event as it related to the issue before the trial court, i. e., changed conditions relating to custody since the final decree, would be of major concern as to its admissibility and we cannot say that the court erred in refusing to so admit it on that basis. No reversible error having been argued, this case is affirmed. Motion to strike granted. Affirmed. WRIGHT, P. J., and HOLMES, J., concur.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0823n.06 Case No. 13-2652 FILED Oct 30, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT THOMPSON I.G., LLC, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN EDGETECH I.G. INC., ) DISTRICT OF MICHIGAN ) Defendant-Appellee. ) ) ____________________________________/ ) Before: KEITH, MOORE, and STRANCH, Circuit Judges DAMON J. KEITH, Circuit Judge. This case presents a commercial dispute arising from a contract for the sale of window parts. Plaintiff-Appellant Thompson I.G., LLC (“Thompson”) is a Michigan company that manufactures windows. Thompson bought foam “spacers” from Defendant-Appellee Edgetech I.G., Inc. (“Edgetech”), an Ohio corporation, for use in its windows. Thompson sued Edgetech based on allegations that the spacers were defective, asserting claims for breach of contract, breach of express warranty, breach of implied warranty, and fraud. The district court dismissed Thompson’s breach of implied warranty claim and granted summary judgment on the others. Thompson appeals from the district court’s final judgment. For the reasons that follow, we AFFIRM the judgment of the district court. -1- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. I. BACKGROUND Thompson manufactures insulated glass (“IG”) units. IG units are large window parts consisting of two panes of insulated glass. Edgetech manufactures smaller window parts called spacers. Apparently, in 2003, Edgetech marketed a spacer called Super Spacer to Thompson. Super Spacer maintains the glass panes in IG units at the desired air space, thus promoting insulation. In contrast to traditional aluminum spacers, Super Spacer is made of foam. Although Edgetech manufactures more than one type of Super Spacer, this case concerns the Super Spacer whose foam contains ethylene propylene diene monomer (“EPDM”). Unless otherwise noted, “Super Spacer” refers to the EPDM-type Super Spacer. In January 2005, Thompson and Edgetech held a meeting at Edgetech’s Ohio facility. There, Edgetech employee Larry Johnson made a PowerPoint presentation. Thompson’s former president, Russell Manser, states that Johnson made a misrepresentation during the presentation. Manser asserts that Johnson falsely stated that Super Spacer had passed testing standards of the American Society for Testing and Materials. R. at 1767.1 Likewise, Thompson asserts that the presentation’s slides show that Edgetech represented that Super Spacer had passed various tests from other standards organizations. R. at 2083, 2093. But Gerhard Reichert, a former senior- level Edgetech employee and coinventor of Super Spacer, states that Super Spacer had failed some of these tests and that Edgetech knew so. R. at 2050–51. Reichert also states that, from 2004 to 2011, numerous Edgetech customers complained that Super Spacer had failed the 1 “R.” designates citations to the paginated record of the proceedings below. Thus, “R. at 1767” refers to PageID 1767, “R. at 2083” refers to PageID 2083, and so on. -2- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. “fogging test,” which means that the window assemblies using the Super Spacer fogged up during testing. R. at 2480.2 Manser adds that, during the same meeting, Johnson and another Edgetech representative recommended that Thompson use Fenzi polysulfide (“polysulfide”) as a secondary sealant. According to Thompson, one must use a secondary sealant with EPDM because EPDM outgasses at or above 60°C and the secondary sealant prevents the outgassing.3 4 Manser further asserts that the Edgetech representatives discussed using hot melt butyl or polyurethane as a secondary sealant instead of polysulfide. The Edgetech representatives did not recommend hot melt butyl. They knew that Thompson planned to install some of the IG units in RVs and concluded that hot melt butyl would melt under the intense heat that the exposed RV windows would experience. Manser does not explain why polyurethane was not selected. R. at 2495. For his part, Reichert states that he knew that “EPDM was not designed for polysulfide” and that this combination had failed industry standards in several countries. R. at 2479. Reichert adds that he advised “countless” Edgetech customers over the years to use silicone spacers, not EPDM spacers, with polysulfide. R. at 2482. Likewise, other Thompson witnesses suggested that EPDM was incompatible with polysulfide. See, e.g., R. at 2487–88, 2499–2500. In February 2005, the Parties entered into a Usage Purchase Agreement (“Contract”). R. at 1815. Thereby, Thompson agreed to purchase a minimum of sixty million linear feet of Super Spacer over approximately five years. R. at 1815–16. The Contract incorporated the terms of a 2 The parties dispute the cause of the windows’ fogging. Thompson argues that the windows fogged because Edgetech’s Super Spacers were “outgassing,” meaning that they released gas that was trapped between the two window panes in the assembly. Edgetech argues that the windows fogged because Thompson assembled them poorly, which allowed moisture from outside to enter. 3 Although Thompson states on brief that EPDM and Super Spacer would outgas at 50°C, Thompson’s expert testified that these products outgassed at or above 60°C. R. at 2462. Whether these products outgassed at 50°C or 60°C is ultimately immaterial. 4 The distinction between a primary sealant and a secondary sealant is irrelevant to the analysis. -3- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. document titled Terms and Conditions of Sale (“Terms”). R. at 1814. Paragraph 4 of the Terms is titled “Limited Warranty.” Under paragraph 4, Edgetech expressly guaranteed that the Super Spacer would be “free of manufacturing defects at the time of shipping from Edgetech.” R. at 1814. For its part, paragraph 19 states that the Contract “shall be governed by the laws of the State of Ohio.” R. at 1814. According to Thompson engineer Ed Wilson, Thompson started receiving defective IG units in February/March 2011.5 R. at 1458. Around that time, Wilson instructed Thompson employees to preserve the returned IG units. R. at 1458. On or around March 31, 2011, Thompson filed suit against Edgetech in Michigan state court. On June 30, 2011, Edgetech removed the case on the basis of diversity jurisdiction. Thompson filed an amended complaint on August 29, 2011. The amended complaint asserted claims for breach of contract, breach of implied warranty, breach of express warranty, and fraud. For reasons irrelevant here, the district court granted a motion to dismiss the implied warranty claim. Edgetech moved to disqualify Reichert and Stephen H. Howes as Thompson’s experts. The district court granted the motion to disqualify Reichert. Noting that Reichert had been a “longstanding, high-ranking employee of Edgetech,” the district court reasoned that “[a]llowing Reichert to serve as an expert is analogous to an expert switching sides mid-litigation.” R. at 549. Yet the district court did not conclude that Reichert could not testify as a fact witness and Edgetech has not so argued. For his part, Howes was not disqualified. Thompson tendered Howes to testify that Super Spacer was incompatible with polysulfide and that this incompatibility caused the windows in question to outgas. Howes intended to base his testimony on testing he conducted “when trying to create a competitive product . . . .” R. at 2414. 5 It is unclear whether Thompson alleges to have received defective IG units before this date. -4- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. Thompson also proffered Howes’s opinion that five returned windows were defective because their Super Spacers outgassed.6 Edgetech urged the district court to disqualify Howes because (1) he failed to save any data or material from his tests supposedly showing that Super Spacer was incompatible with polysulfide; and (2) he only visually examined the five returned windows and failed to break them open and examine the actual fog. Although the district court noted that the scientific basis of Howes’s opinion was “attenuated” and “[might] not withstand scrutiny on cross-examination,” it declined to disqualify him. R. at 2416. The Parties do not contest the district court’s disposition of the motions to disqualify. Edgetech also moved for sanctions, alleging that Thompson spoliated evidence and committed fraud on the district court. Edgetech argued that Thompson failed to preserve the defective windows and obstructed the efforts of its expert, William Lingell, to inspect the five windows that Howes visually examined. Thompson itemized the defective windows in a “Warranty Report” purporting to show that its customers returned 277 windows due to defective Super Spacer. Manser stated that the warranty report constituted Thompson’s “best guess” of all the Super Spacer failures. R. at 1739. Manser acknowledged that the warranty report does not show whether the windows had Super Spacers or metal (i.e., aluminum) spacers. R. at 1739–40. Likewise, two Thompson customers stated that some of the claims in the report were for metal spacers. R. at 1848–58, 1860. Another Thompson customer stated that it never submitted certain claims in the report. R. at 1861. At any rate, it is undisputed that Thompson failed to produce these windows. Thompson blamed this failure on the difficulty of removing the windows without 6 Howes originally stated that he examined six windows and later changed this number to five. Although Thompson was supposed to make these windows available to Edgetech for inspection, some evidence suggests that Thompson made only four windows available. But whether Howes examined four or five windows is immaterial to the issues at hand. Consistent with Howes’s latest declaration, we assume that he inspected five. -5- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. breaking their glass and at least two customers’ destruction of the units and/or failure to return them. R. at 1398, 1402–03, 1408. Yet Manser stated that Thompson received defective IG units in the 2004–2011 period and estimated that it discarded 375 such units at its Michigan facility. R. at 1183. Although Manser later stated that the 375 estimate was “way off,” he did not disavow his earlier statement that Thompson discarded some IG units. Paul Lewis, a Thompson sales representative, also stated that Thompson discarded returned IG units. R. at 1431. Thompson downplays the extent to which the discarded IG units contained Super Spacer. Thompson also asserts that it notified its employees as early as May 2011 that the Super Spacer units needed to be preserved. R. at 1492, 1494. But other evidence indicates that Thompson failed to notify some of its employees to preserve the Super Spacer units and failed to institute a procedure to prevent their disposal until some time between January and March 2013. R. at 1157, 1183, 1205. Nonetheless, the district court denied Edgetech’s motion for sanctions. In reaching this conclusion, the district court reasoned that (1) Thompson sought to safeguard the windows early in the case; and (2) Thompson’s alleged spoliation did not preclude Lingell from forming his opinion that poor workmanship by Thompson caused the failures. Edgetech moved for summary judgment. Among other things, Edgetech argued that: (1) Thompson could not demonstrate breach or causation on its breach of contract and breach of express warranty claims; and (2) Michigan’s economic loss doctrine barred Thompson’s fraud claim. On November 14, 2013, the district court entered an opinion and order granting Edgetech’s summary judgment motion and dismissing the case. See R. at 2603. The district court held that Thompson submitted insufficient evidence to show that the Super Spacers outgassed or that any outgassing caused the damages detailed in the warranty report. R. at 2611–12. The district court also held that Thompson’s fraud claim failed as a matter of law under Michigan’s -6- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. economic loss doctrine, which Thompson conceded barred said claim. The district court applied Michigan law because Michigan was the forum state and it saw no rational reason to apply Ohio law. Thompson appealed. Thompson argues that the district court overlooked evidence supporting its contract and warranty claims. For instance, Thompson customer Wynne stated that it received claims for under one-half percent of its IG units with aluminum spacers for roughly two decades, but that it received as many as 100 times more warranty claims for Super Spacer units when it started using them. R. at 2533–54, 2536, 2538–39. Similarly, Thompson customer Oxbowindo stated that its failure rate for aluminum IG units was “less than one percent.” R. at 2545. Two other Thompson customers stated that the outgassing in the Super Spacer units primarily occurred in windows facing the sun. R. at 2527, 2544. According to Thompson, these statements comport with Howes’s opinion that Super Spacer outgasses at or above 60°C. Additionally, Thompson argues that Ohio law applies to its fraud claim and that Ohio’s economic loss doctrine does not bar said claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 (2012). II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir. 1988) (citations omitted). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is “material” if it “might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. -7- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. In determining whether a reasonable jury could return a verdict for the nonmoving party, we “view the evidence and draw all reasonable inferences in favor of the nonmoving party.” Sec’y of U.S. Dep’t of Labor v. Gilley, 290 F.3d 827, 829 (6th Cir. 2002) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party cannot create a genuine dispute of material fact through “mere speculation, conjecture, or fantasy.” Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004) (citation omitted) (internal quotation marks omitted). III. ANALYSIS A. Breach of Contract and Breach of Warranty The district court held that Thompson submitted insufficient evidence to show that the Super Spacers outgassed or that any outgassing caused the damages detailed in the warranty report. Thompson contends that its circumstantial evidence creates genuine disputes of material fact on the issues of breach and causation. Edgetech responds that Thompson’s evidence is insufficient in this regard. The district court applied Ohio law to Thompson’s breach of contract and warranty claims. The Parties agree that Ohio law applies to these claims. Unless otherwise indicated, we treat these claims in tandem as they present overlapping issues. Under the Ohio version of the Uniform Commercial Code, to prevail on a breach of express warranty claim, the plaintiff must show that: (1) an express warranty exists; (2) the product under warranty is defective; (3) the plaintiff provided the defendant with reasonable notice of the defect; and (4) the plaintiff suffered an injury as a result of the defect. See Litehouse Prods., Inc. v. A.M.I. Int’l, Ltd., No. 46834, 1984 WL 4539, at * 3 (Ohio Ct. App. Mar. 8, 1984); McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 753 (N.D. Ohio 2010) (citations omitted); cf. -8- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. Ohio Rev. Code Ann. § 1302.27 cmt. 13 (LexisNexis 2012) (“In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained.”); Drayton v. Jiffee Chem. Corp., 591 F.2d 352, 359 (6th Cir. 1978) (stating that “breach of an express warranty, if causally related to the injury, [is] actionable” under Ohio law). In this case, Thompson’s evidence was insufficient for a reasonable juror to conclude that the Super Spacer units were defective. Manser conceded that the warranty report was only his best guess as to the identity and number of the defective Super Spacer windows. Furthermore, Manser acknowledged that the report did not show whether the listed windows had foam or aluminum spacers, and Thompson’s customers stated that some of the listed windows had aluminum spacers. Therefore, although some of the windows in the report could have contained defective Super Spacer, a juror would have to rely on “mere speculation, conjecture, or fantasy” to so conclude. See Lewis, 355 F.3d at 533. The evidence was also inadequate to reasonably conclude that Super Spacer caused the windows to outgas. Thompson failed to preserve the windows in the warranty report and the report does not list the five windows that Howes visually examined and determined failed due to outgassing. R. at 1458, 1821. Consequently, Thompson failed to present expert testimony on (1) whether the windows in the report outgassed and (2) whether Super Spacer caused the alleged outgassing. Although Ohio law does not always require expert testimony to prove that a design is defective, the causation issues here are too complex for the jury to decide without the help of expert testimony. Compare Grover Hill Grain Co. v. Baughman-Oster, Inc., 728 F.2d 784, 793–94 (1984), with Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 529 (6th Cir. 2012). Even Howes stated that he did not know why the windows in the report failed. R. at -9- Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. 2269. Furthermore, although Howes visually examined five other windows and concluded that Super Spacer caused them to outgas, he stated that determining whether the fog was outgassing or mere “water fog” required a “destructive” test. R. at 1285, 1364, 1867. Heather Abbas, Thompson’s director of quality, agreed that a destructive test was required. R. at 1891–92. Hence, it is unclear how a rational juror could conclude that Super Spacer caused the five visually examined windows to outgas. Thompson contends that its circumstantial evidence creates triable issues on breach and causation. To that end, Thompson points to evidence purporting to prove that: (1) both EPDM and Super Spacer outgas; (2) Super Spacer field failures were heat-related as Howes predicted; (3) Super Spacer units failed much more than aluminum units; (4) Super Spacer was incompatible with polysulfide; and (5) Thompson has sound workmanship. We recognize that circumstantial evidence may suffice in some cases to show that a defective product caused a given injury. Rayco Mfg., Inc. v. Deutz Corp., 497 F. App’x 515, 518 (6th Cir. 2012) (citing State Farm Fire & Cas. Co. v. Chrysler Corp., 523 N.E.2d 489, 493–94 (Ohio 1988)). However, we disagree that Thompson’s circumstantial evidence creates genuine issues for trial. Thompson’s counterargument overlooks the obvious. There is not enough evidence to reasonably conclude that the windows Thompson designates as defective contained Super Spacer. In any event, evidentiary items (1) – (3) share an infirmity: Thompson’s and Howes’s failures to preserve pertinent evidence and data preclude meaningful comparative analysis. It is unclear that the properties of the EPDM and Super Spacer that Howes tested are comparable to the Super Spacer at issue; that the Super Spacer units and aluminum units were alike in all material respects; that the sunny conditions under which the Super Spacer at issue failed were similar to Howes’s laboratory conditions; and so on. Cf. Glastetter v. Novartis Pharms. Corp., 252 F.3d - 10 - Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. 986, 990 (8th Cir. 2001) (citation omitted) (stating that “[e]ven minor deviations in molecular structure can radically change a particular substance’s properties and propensities”). As to item (4), although there may be evidence supporting the inference that Super Spacer is incompatible with polysulfide, Thompson opted to use polysulfide as a secondary sealant and applied it to the IG units itself. Thus, item (4) does not indicate that the Super Spacer at issue was defective when Edgetech shipped it. Concerning item (5), while Thompson arguably submitted evidence from which one could infer that it had sound workmanship overall, sound workmanship alone is generally insufficient to show breach of express warranty by a parts supplier. Therefore, the evidence was insufficient for a rational juror to conclude that the Super Spacer windows were defective or that Super Spacer caused any observed outgassing. Accordingly, the district court did not err in granting summary judgment on Thompson’s interrelated claims for breach of warranty and breach of contract. B. Fraud Thompson asserts a fraud claim based on Edgetech’s alleged misrepresentation that polysulfide was a suitable secondary sealant to use with Super Spacer. The district court applied Michigan law to Thompson’s fraud claim and concluded that Michigan’s economic loss doctrine barred it. Thompson concedes that Michigan law would bar its fraud claim. Appellant’s Br. at 37; R. at 1977. Thus, we have no occasion to address this issue. Nevertheless, Thompson argues that the district court should have applied Ohio law to its fraud claim and that Ohio’s economic loss doctrine does not bar said claim. We review a district court’s choice-of-law determination de novo. Performance Contracting Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014) (citing Mill’s Pride, Inc. v. Cont’l Ins. Co., 300 F.3d 701, 704 (6th Cir. 2002)). - 11 - Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. “Federal courts sitting in diversity must apply the choice-of-law rules of the forum state.” Muncie Power Prods., Inc. v. United Techs. Automotive, Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citations omitted). Michigan courts “apply Michigan law unless a ‘rational reason’ to do otherwise exists.” Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich. 1997) (quoting Olmstead v. Anderson, 400 N.W.2d 292, 302, 305 (Mich. 1987)). Michigan courts employ a two-step approach to determine whether there is a rational reason to displace Michigan law. Id. First, the court “must determine if any foreign state has an interest in having its law applied.” Id. “If no state has such an interest, the presumption that Michigan law will apply cannot be overcome.” Id. But if a foreign state has an interest in applying its law, the court “must then determine if Michigan’s interests mandate that Michigan law be applied[] despite the foreign interests.” Id. “Although this balancing approach most frequently favors using [Michigan law], Michigan courts nonetheless use another state’s law where the other state has a significant interest and Michigan has only a minimal interest in the matter[.]” Hall v. Gen. Motors Corp., 582 N.W.2d 866, 868 (Mich. Ct. App. 1998). The following nonexhaustive list of considerations informs this determination: (1) whether the injury occurred in the state whose law a party seeks to apply, see Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690, 695, 698 (6th Cir. 2013); Radeljak v. Daimlerchrysler Corp., 719 N.W.2d 40, 46 (Mich. 2006) (“‘[There] is a local interest in having localized controversies decided at home.’” (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947))); (2) the extent to which the relevant commercial activity took place in the state whose law a party seeks to apply, see Standard Fire, 723 F.3d at 699; (3) whether a party seeks to defeat the application of the law of its home state, Olmstead, 400 N.W.2d at 304 (“Since defendant is a citizen of Michigan, there can be no serious argument that applying Michigan law will defeat his expectations.”); (4) the forum state’s interest in applying its own law, Radeljak, - 12 - Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. 719 N.W.2d at 46 (“‘[There] is an appropriateness . . . in having the trial . . . in a forum that is at home with the state law that must govern the case . . . .’” (quoting Gilbert, 330 U.S. at 509)); (5) whether the law of the foreign state would entitle the party to greater relief than the law of the party’s home state, cf. Standard Fire, 723 F.3d at 698 (“Michigan was deemed to have no interest in affording greater rights of tort recovery to a Tennessee resident than would Tennessee law.”); Frydrych v. Wentland, 652 N.W.2d 483, 486 (Mich. Ct. App. 2002) (citation omitted) (“Michigan has little or no interest in affording greater rights of tort recovery to a foreign state resident than those afforded by the foreign state.”); and (6) whether courts in the foreign state whose law the party seeks to apply would apply Michigan law, Sutherland, 562 N.W.2d at 473. To be expeditious, we go directly to step two. Here, Michigan’s interests in applying its law to Thompson’s fraud claim dwarf any countervailing interests on Ohio’s part. Although Edgetech made the alleged misrepresentation in Ohio, the vast bulk of the outgassing (i.e., the alleged injury) took place in Michigan. Likewise, while Edgetech manufactured the Super Spacer in Ohio, the other relevant commercial activity primarily took place in Michigan. For instance, Thompson relied on the alleged misrepresentation in Michigan by entering into the Contract at its Fenton office, see R. at 1816, issued purchase orders and payment in Michigan, and manufactured the defective IG units in Michigan. Furthermore, most of Thompson’s customers are located in Michigan, the units failed largely in Michigan, and Thompson’s remedial efforts took place in Michigan. As to factors (3) and (4), Michigan’s interests outweigh Ohio’s because Thompson is a Michigan company and the district court had a general interest in applying Michigan law. Regarding factor (5), Thompson seeks the application of Ohio law to obviate an unfavorable outcome under Michigan law. Although Thompson could counter that Edgetech also seeks a favorable outcome - 13 - Case No. 13-2652 Thompson I.G., LLC v. Edgetech I.G., Inc. under the law of another state, Edgetech is a foreign defendant seeking the application of the law of the forum state. Thus, Edgetech’s conduct does not suggest “law shopping.” Cf. Ferens v. John Deere Co., 494 U.S. 516, 539 (1990) (Scalia, J., dissenting). As for factor (6), Ohio conflict-of-law rules would mandate the application of Michigan law. Under Ohio law, “a presumption is created that the law of the place of the injury controls unless another jurisdiction has a more significant relationship to the lawsuit.” Morgan v. Biro Mfg. Co., Inc., 474 N.E.2d 286, 289 (Ohio 1984) (citing Restatement (Second) of Conflicts of Laws § 146 (1971)). Where, as here, the alleged tort occurred in more than one state, “the place of the wrong is the state where the last event necessary to make the actor liable took place.” Bailey v. Chattem, Inc., 684 F.2d 386, 392 (6th Cir. 1982) (applying Tennessee law) (citation omitted) (internal quotation marks omitted). “Under this lex loci delicti approach, ‘[when] a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations are made.’” Id. (quoting Restatement (First) of Conflicts of Laws § 377 n.4 (1934)). Thus, because Thompson sustained the alleged loss in Michigan, Michigan law applies to Thompson’s fraud claim. Accordingly, the district court did not err in granting summary judgment on Thompson’s fraud claim.7 IV. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. 7 Thompson also suggests that the Contract contains a choice-of-law clause requiring the application of Ohio law to its fraud claim. However, choice-of-law clauses are not invariably enforceable under Michigan law. See Johnson v. Ventra Grp., Inc., 191 F.3d 732, 739 (6th Cir. 1999) (citation omitted). Moreover, under the circumstances of this case, the provision that the Contract “shall be governed by the laws of the State of Ohio” appears to be sufficiently narrow to exclude Thompson’s fraud claim, which lacks a sufficiently close relationship to the Contract. - 14 - 

FILED NOT FOR PUBLICATION FEB 18 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NATIONAL UNION FIRE INSURANCE No. 17-35404 COMPANY OF PITTSBURGH, PA, D.C. No. 2:16-cv-01461-JLR Plaintiff-Appellee, v. MEMORANDUM* ZILLOW, INC., Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Argued and Submitted February 6, 2020 Seattle, Washington Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,** District Judge. Zillow, Inc. appeals the district court’s order entering judgment on the pleadings in favor of National Union Fire Insurance Company of Pittsburgh, Pa. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, United States Chief District Judge for the District of Minnesota, sitting by designation. (“National Union”) and dismissing Zillow’s counterclaims. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part, affirm in part, and remand for further proceedings. 1. Zillow challenges the district court’s declaration that Zillow’s professional liability insurance policy (“Policy”)—which provided coverage “solely with respect to Claims first made against an Insured during the Policy Period . . . and reported to the Insurer”—did not cover a copyright-infringement lawsuit brought against Zillow by VHT, Inc. during the Policy Period (“VHT Action”). The district court determined that, because the VHT Action was “based on the same wrongful conduct” as that alleged by VHT, Inc. in a demand letter sent to Zillow prior to the Policy Period (“VHT Demand Letter”), the VHT Demand Letter and the VHT Action comprised “a single Claim that was first made” prior to the Policy Period, and thus was not covered by the Policy. The district court’s interpretation finds no support in the plain language of the Policy. Instead, the Policy defines a “Claim” as either “(1) a written demand for money, services, non-monetary relief or injunctive relief; or (2) a Suit.” A “Suit” is further defined as “a civil proceeding for monetary, non-monetary or injunctive relief, which is commenced by service of a complaint or similar 2 pleading.” The VHT Action falls squarely within the definition of a “Suit,” and is therefore a “Claim,” which was made during the Policy Period. National Union nevertheless maintains that the Policy’s use of the phrase “Claims first made” implicitly requires that the VHT Demand Letter and the VHT Action be treated collectively as a single Claim for purposes of coverage, because both Claims are based upon the same wrongful conduct. But, unlike a number of other claims-first-made policies cited by both parties, the Policy does not contain a provision expressly providing for the integration of factually related Claims. Had National Union wanted factually similar Claims to be integrated under the Policy’s coverage provision, it could have easily drafted the Policy to include such a requirement. See Queen City Farms, Inc. v. Cent. Nat’l Ins. Co. of Omaha, 882 P.2d 703, 713 (Wash. 1994) (“As [the insured] correctly notes, if the insurers wanted an objective standard to apply, they could easily have drafted language to that effect.”). As Zillow argues, several other provisions in the Policy underscore that factually related Claims are not necessarily integrated under the coverage provision. Overton v. Consol. Ins. Co., 38 P.3d 322, 325 (Wash. 2002) (“Interpretation of insurance policies is a question of law, in which the policy is construed as a whole and each clause is given force and effect.”). For example, the 3 Policy includes an exclusion from coverage for Claims “alleging, arising out of, based upon or attributable to any Wrongful Acts, or any Related Acts thereto, alleged or contained in any Claim which has been reported, or in any circumstances of which notice has been given, under any [prior policy].” If National Union were correct that factually related Claims were integrated under the Policy’s “Claims first made” provision, this exclusion would be rendered meaningless, because any Claim involving the same Wrongful Act as that alleged in an earlier Claim made under a prior policy would already fall outside of the Policy’s coverage provision. See Kut Suen Lui v. Essex Ins. Co., 375 P.3d 596, 602 (Wash. 2016) (refusing to interpret an insurance policy in a manner that would cause language to become superfluous and without meaning). However, while the Policy does not expressly require the integration of factually related Claims, neither does it unambiguously resolve the coverage issue before us. Zillow maintains that, under the Policy’s disjunctive definition of a Claim, the VHT Demand Letter (i.e., “a written demand”) and the VHT Action (i.e., “a Suit”) must be considered “separate and distinct” Claims for coverage purposes. While we do not agree with the district court’s reasoning that the Policy’s use of the word “or” in the definition of a “Claim” was merely “required by basic grammatical considerations,” we do not find the Policy’s coverage 4 provision as unambiguous as Zillow contends. In particular, the Policy’s use of the term “Claims first made” suggests that—under circumstances unclear from the language of the Policy—a Claim made against Zillow might be the reassertion of a prior unreported Claim. A contrary conclusion would render superfluous the Policy’s use of the word “first.” See Kut Suen Lui, 375 P.3d at 602. Because the Policy “is fairly susceptible to two different interpretations, both of which are reasonable,” we find the Policy’s “Claims first made” coverage provision ambiguous. See Quadrant Corp. v. Am. States Ins. Co., 110 P.3d 733, 737 (Wash. 2005) (quoting Weyerhaeuser Co. v. Commercial Union Ins. Co., 15 P.3d 115, 122 (Wash. 2000)). Under Washington law, “[i]f a clause is ambiguous, [a court] may rely on extrinsic evidence of the intent of the parties to resolve the ambiguity. Any ambiguity remaining after examination of the applicable extrinsic evidence is resolved against the insurer and in favor of the insured.” Id. (citation omitted). We therefore reverse and remand to the district court for consideration of any admissible extrinsic evidence of the parties’ intent to resolve the ambiguity in the coverage provision. After considering the extrinsic evidence, any remaining ambiguity relating to the coverage issue must be resolved in favor of Zillow. 2. Zillow also argues that the district court erred in dismissing its breach-of- contract counterclaim, which alleges that National Union breached its duty to 5 defend under the Policy “by failing to pay or reimburse any of Zillow’s defense costs.” Zillow maintains that National Union’s duty to defend was triggered by notice of the VHT Action, and that National Union cannot be relieved of that duty until it is clear that the VHT Action is not covered by the Policy. See Am. Best Food, Inc. v. Alea London, Ltd., 229 P.3d 693, 696 (Wash. 2010). Even assuming, for the sake of argument, that National Union had a duty to defend Zillow in the VHT Action, Zillow failed to plausibly allege that National Union breached its duty by not paying Zillow’s defense costs. See Nw. Indep. Forest Mfrs. v. Dep’t of Labor and Indus., 899 P.2d 6, 9 (Wash. Ct. App. 1995). Under the plain language of the Policy, “[f]ees, costs, charges, billings and any other expense incurred through any law firm” not selected in accordance with the procedures set forth in Endorsement #5 “shall not be recoverable under this policy as Defense Costs or otherwise.” Zillow does not allege that its defense counsel in the VHT Action were selected in accordance with Endorsement #5’s procedures. In fact, the record reflects the contrary. Accordingly, because Zillow does not allege that National Union breached its duty to defend by failing to pay or reimburse defense costs recoverable under the Policy, Zillow has failed to state a plausible claim for relief. Therefore, the district court properly dismissed Zillow’s breach-of-contract counterclaim. See 6 Cassirer v. Thyssen-Bornemisza Collection Found., 862 F.3d 951, 974 (9th Cir. 2017) (“[I]f the district court’s order can be sustained on any ground supported by the record that was before the district court at the time of the ruling, we are obliged to affirm the district court.” (quoting Jewel Cos., Inc. v. Pay Less Drug Stores Nw. Inc., 741 F.2d 1555, 1564–65 (9th Cir. 1984))). 3. Although the district court properly dismissed Zillow’s breach-of-contract counterclaim, Zillow argues that the district court erred in denying it leave to amend on grounds of futility. In particular, Zillow maintains on appeal that “[q]uestions of fact exist as to whether National Union waived any condition or requirement in the Policy on selection of counsel.” Because we do not find that “it is clear, upon de novo review, that the [counterclaim] could not be saved by any amendment,” we reverse and remand to the district court to reconsider whether amendment is appropriate. See Curry v. Yelp Inc., 875 F.3d 1219, 1228 (9th Cir. 2017) (quoting Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009)). Each party shall bear its own costs on appeal. REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings. 7 

9 So.3d 585 (2007) FERNANDO LOURENCO MILINER v. STATE. No. CR-06-0759. Court of Criminal Appeals of Alabama. May 11, 2007. Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.

490 S.E.2d 274 (1997) 25 Va. App. 565 Lemar Jamie ANDERSON, s/k/a Lamar Jamie Anderson v. COMMONWEALTH of Virginia. No. 2145-96-1. Court of Appeals of Virginia, Norfolk. September 16, 1997. Order Granting En Banc October 14, 1997. James Amery Thurman (Thurman & Thurman, on brief), Virginia Beach, for appellant. Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee. *275 Present: COLEMAN and WILLIS, JJ., and HODGES, Senior Judge. WILLIS, Judge. On appeal, Lemar Jamie Anderson contends that the trial court erred in denying his motion to suppress evidence seized from his person. He argues that his prior waiver of his Fourth Amendment right against unreasonable searches and seizures could not validate an otherwise invalid search. We disagree and affirm the judgment of the trial court. I. FACTS On January 9, 1995, pursuant to a written plea agreement, Anderson pled guilty to feloniously possessing a firearm on school property. Under the terms of the plea agreement, Anderson agreed to waive "his Fourth Amendment right against unreasonable searches and seizures" for one year. Following a colloquy in which Anderson acknowledged that he understood the agreement, the sentencing judge found that Anderson's plea was entered freely and voluntarily. Prior to the trial court's acceptance of the plea agreement, the prosecutor stated: [W]e've given him every incentive in the world to remain of good behavior. He will know as he's out and about that he can be stopped at any time and be checked to make sure he is not carrying drugs or weapons or anything else. At the sentencing hearing, the Commonwealth introduced certified copies of Anderson's two prior misdemeanor convictions for possession of marijuana with intent to distribute. The stated purpose for offering Anderson's prior record was to demonstrate his history of recidivism and drug use and to explain the inclusion of the waiver provision. In accordance with the plea agreement, the January, 1995 sentencing order provided, in pertinent part: [4] That the defendant shall waive his Fourth Amendment right against unreasonable searches and seizures for a term of one year from the date of sentencing, to-wit: he shall submit his person, place of residence and property to searches and seizures at any time of the day or night by any law enforcement officer with or without a warrant. On June 21, 1995, two City of Virginia Beach police officers working as private security guards saw Anderson and two other individuals alight from a van, "being very loud in public." The officers approached the men and seized from Anderson: 0.07 grams of cocaine, which he dropped on the ground; a .357 magnum firearm in his backpack; and 0.18 ounces of marijuana in a baggie in his backpack. The circumstances did not support a warrantless search of Anderson's person. Anderson was indicted for possession of cocaine, possession of a firearm after having been convicted of a felony, possession of a controlled substance while in possession of a firearm, and possession of marijuana. He moved pre-trial to suppress the evidence seized from his person, arguing that his prior waiver of his Fourth Amendment rights was invalid. The trial court ruled that the waiver was valid and denied the motion to suppress. II. OTHER JURISDICTIONS Anderson contends that his waiver of his Fourth Amendment rights as a condition of the January, 1995 plea agreement did not validate the search of his person. This issue is one of first impression in Virginia. However, other jurisdictions have addressed similar questions regarding waiver of Fourth Amendment rights as a condition of probation or of sentence suspension. See generally Phillip E. Hassman, Annotation, Validity of Requirement That as Condition of Probation, Defendant Submit to Warrantless Searches, 79 A.L.R.3d 1083 (1977). A. In Tamez v. State, 534 S.W.2d 686 (Tex.Ct. Crim.App.1976), the Texas Court of Criminal Appeals struck down a probationary condition requiring the defendant to submit his person, residence or vehicle to search by any peace officer at any time. Acknowledging that probationary conditions may be upheld if reasonably related to rehabilitation of the *276 accused or protection of the public, id. at 691, the Texas court invalidated the Fourth Amendment waiver because it found: (1) the choice of accepting the condition or of going to prison rendered the defendant's decision coerced and involuntary; and (2) the waiver was too broad and did not serve the ends of probation. Id. at 692. Similarly other jurisdictions have struck down so-called "blanket" provisions because of their overbreadth. See United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975) (en banc) (search provision too broad under federal statute); Grubbs v. State, 373 So.2d 905 (Fla.1979) (probation condition imposed by trial judge allowing warrantless search at any time by law enforcement official too broad); Kirkpatrick v. State, 412 So.2d 903, 905 (Fla.Dist.Ct. App.1982) (drug offender's probation search condition "improper and should be stricken"); State v. Fields, 67 Haw. 268, 686 P.2d 1379 (1984) (probation condition permitting warrantless search for drugs at any time too broad absent reasonable suspicion). Some courts have held that the waiver of Fourth Amendment rights in return for probation or parole is legally coercive, thereby negating voluntary consent. See United States ex rel. Coleman v. Smith, 395 F.Supp. 1155, 1157 (W.D.N.Y.1975); People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250, 255 (1975). But see People v. Richards, 76 Mich.App. 695, 256 N.W.2d 793, 795 (1977). B. Other jurisdictions have taken a different view. In People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (1971), the California Supreme Court upheld a probation condition that required a narcotics offender to "`submit his person, place of residence, vehicle, to search and seizure at any time of the day or night, with or without a search warrant, whenever requested to do so by the Probation Officer or any law enforcement officer.'" Id. 97 Cal.Rptr. at 303, 488 P.2d at 631. The California court ruled that this condition had been validly imposed, was "reasonably related to the probationer's prior criminal conduct[,] and [was] aimed at deterring or discovering subsequent criminal offenses." Id. at 304, 488 P.2d at 632. Moreover, "when [a] defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had." Id. at 306, 488 P.2d at 634. See Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982) (upholding condition providing for warrantless searches by law enforcement or probation officers to extent conducted for probationary purposes); State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977) (upholding condition that a convicted burglar submit to warrantless searches at any time by law enforcement or probation officers); In re Marcellus L., 229 Cal.App.3d 134, 279 Cal.Rptr. 901 (1991) (upholding warrantless search by police officer who lacked prior knowledge of probation search condition); State v. Josephson, 125 Idaho 119, 867 P.2d 993 (App.1993) (holding that defendant voluntarily consented to search condition); Allen v. State, 258 Ga. 424, 369 S.E.2d 909 (1988) (plea bargain agreement to waive Fourth Amendment protection valid); Himmage v. State, 88 Nev. 296, 496 P.2d 763 (1972); State v. Perbix, 331 N.W.2d 14 (N.D.1983). Some jurisdictions that permit a condition of probation or parole to circumscribe a convicted criminal's Fourth Amendment protection from governmental intrusion have limited the scope of the warrantless search condition. Some courts have restricted who may authorize the search[1] and the grounds upon which warrantless searches may be made.[2] Some courts require a reasonable nexus between the warrantless search provision *277 and the offense for which the offender was convicted.[3] In In re: Tyrell J., 8 Cal.4th 68, 32 Cal. Rptr.2d 33, 876 P.2d 519 (1994), a juvenile was searched by a police officer who was unaware that the juvenile had waived his Fourth Amendment rights as a condition of probation. Despite the lack of probable cause, the California Supreme Court held that "a juvenile probationer subject to a valid search condition does not have a reasonable expectation of privacy over his person or property." The court noted that: In this case, [the defendant] was subject to a valid search condition, directly imposed on him by the juvenile court in a prior matter. We presume that he was aware of that limitation on his freedom, and that any police officer, probation officer, or school official could at any time stop him on the street, at school, or even enter his home, and ask that he submit to a warrantless search. There is no indication the minor was led to believe that only police officers who were aware of the condition would validly execute it. The minor certainly could not reasonably have believed [the police officer] would not search him, for he did not know whether [the officer] was aware of the search condition. Thus, any expectation the minor may have had concerning the privacy of his bag of marijuana was manifestly unreasonable. Id. 32 Cal.Rptr.2d at 43-44, 876 P.2d at 529-30 (footnote omitted). Anderson argues that the California cases are inapposite because they concern conditions of probation, whereas his waiver was a condition of a suspended sentence. The law of Virginia distinguishes the suspension of a sentence from the imposition of probation. See Grant v. Commonwealth, 223 Va. 680, 292 S.E.2d 348 (1982). Code §§ 19.2-303, 19.2-304. However, the conditions imposed in probation and those imposed in the suspension of sentences need not be analyzed in different contexts. The common objective of such conditions is to protect society and to promote rehabilitation of the convict. Both probation and the suspension of a sentence involve the trial court's discretionary, and conditional, release of a convict from the service of a sentence within the penal system. In State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974), the Court of Appeals of North Carolina, approving a Fourth Amendment waiver as a condition of a suspended sentence, stated: Rights guaranteed by the Fourth Amendment may be waived, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477[ ] (1946), and the voluntary consent to warrantless search of one's premises will render competent evidence obtained by the search. [ ] We see no sound reason why such waiver and consent may not effectively be given by agreeing thereto as one of the conditions of a suspended sentence. This should especially be true, where, as here, such condition is clearly designed to facilitate the State's supervision of the probationer's rehabilitation. Id. at 665, 207 S.E.2d at 264-65 (citation omitted).[4] III. VALIDITY OF THE WAIVER Our view of the Fourth Amendment and of applicable public policy leads us to *278 conclude that Anderson's waiver was valid. In reaching that conclusion, we have considered the contrary arguments invoked by other jurisdictions and argued by Anderson. A. COERCIVENESS Anderson argues that a waiver given under threat of criminal punishment results from coercion. We find this argument unpersuasive. The prospect of punishment confronted Anderson not for the purpose of inducing him to give the waiver, but rather as the consequence of the crime for which he was convicted. Furthermore, the waiver was not imposed upon Anderson by the sentencing court. It was an element of his voluntary plea agreement, and as such, was proposed by him to the sentencing court. Anderson was a moving party. He sought the imposition of the waiver. To conclude that Anderson's decision to petition for a suspended sentence conditioned upon the search provision was coerced would necessarily invalidate all conditions of plea agreements. See State v. Josephson, 125 Idaho 119, 867 P.2d 993, 996 (App.1993); State v. Morgan, 206 Neb. 818, 295 N.W.2d 285, 288-89 (1980). An offender's selection between two sanctions resulting from his own wrongdoing constitutes choice, not coercion. B. OVERBREADTH Anderson argues that the waiver was overbroad, both in scope and in duration. We disagree. The scope of the waiver was necessary to its effectiveness. Its purpose was to ensure Anderson's good conduct. His vulnerability to search was an inducement to his abstention from possession of contraband and from illegal possession of weapons. Most waivers are prospective. Usually, a waiver is given seconds or minutes prior to the authorized search. However, on occasion, a waiver may precede the search thereby authorized by hours or days. See Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477 (1946) (upholding prospective contractual waiver permitting government inspection of business records). We perceive no conceptual objection to yet further prolongation of a waiver. In this case, Anderson, the moving party, set the duration of his waiver. We see no reason to repudiate in retrospect the agreement that he proposed and voluntarily undertook. See Mitchell, 207 S.E.2d at 264-65. C. REASONABLENESS Upon a defendant's criminal conviction, a trial judge "may suspend imposition of sentence or suspend the sentence in whole or part and in addition may place the accused on probation under such conditions as the court shall determine...." Code § 19.2-303. "The only limitation placed upon the discretion of the trial court in its determination of what conditions are to be imposed is that a condition be `reasonable' ... `having due regard to the nature of the offense, the background of the offender and the surrounding circumstances.'" Nuckoles v. Commonwealth, 12 Va.App. 1083, 1086, 407 S.E.2d 355, 356 (1991) (quoting Loving v. Commonwealth, 206 Va. 924, 930, 147 S.E.2d 78, 83 (1966), rev'd on other grounds, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)). The Fourth Amendment forbids unreasonable searches and seizures. Waiver is a long accepted circumstance that may render a search reasonable. Anderson had a history of illegal firearm and drug possession. The purpose of the waiver was to ensure that he would cease such unlawful conduct. That purpose sought to promote public order and safety, to effect Anderson's rehabilitation, and to justify sparing him punishment and permitting him to remain at liberty. We find all these objectives to be reasonable. D. PUBLIC POLICY The public policy of the Commonwealth seeks to avoid the unnecessary imposition of punishment, to promote public order and safety, and to effect the rehabilitation of malefactors. See Singleton v. Commonwealth, 11 Va.App. 575, 578, 400 S.E.2d 205, *279 207 (1991); Deal v. Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899 (1992). The waiver proposed by Anderson and incorporated into his January, 1995 sentence served those purposes. IV. THE NATURE OF THE WAIVER Anderson argues that at his sentencing in January, 1995, he did not waive his Fourth Amendment rights, but simply agreed to give such a waiver in the future should a search of his person, place of residence or property be sought. He argues that the language in his sentencing order "[t]hat the defendant shall waive his Fourth Amendment right" denotes a requirement of future action on his part, rather than a recital of a present waiver. This is not the interpretation that the trial court adopted, and we think it unreasonable and unlikely that the parties intended such a meaning at the January, 1995 sentencing. We construe the words "shall waive" to state an imperative, not to refer to a future act. The construction adopted by the trial court is supported by the record of the January, 1995 sentencing proceedings. Anderson argues that because he did not, in January, 1995, give an ongoing waiver, but rather merely agreed to give a future waiver, his refusal to submit to a search on June 21, 1995, could amount to no more than a violation of the conditions of his suspended sentence, and could not validate an otherwise unreasonable warrantless search of his person. Because of the view that we take of the nature of the waiver, we reject this argument. V. POLICE OFFICERS' KNOWLEDGE Finally, Anderson contends that the police officers' lack of knowledge of his waiver prevents the officers' reliance upon the waiver to justify an otherwise unconstitutional search. This argument misses the point. The conduct of the officers is not at issue.[5] Absent a legitimate expectation of privacy, there can be no violation of the Fourth Amendment. In determining whether a criminal defendant enjoys a reasonable expectation of privacy in the object to be searched, we consider whether he has exhibited an expectation of privacy in the object and whether that expectation is one that "society is prepared to recognize as reasonable." Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). See Wells v. Commonwealth, 6 Va.App. 541, 549, 371 S.E.2d 19, 23 (1988). Admittedly, Anderson exhibited a subjective expectation of privacy over the controlled substances and the handgun in his backpack. However, he had divested himself of the right to such an expectation when he knowingly and voluntarily waived his Fourth Amendment right to be free from unreasonable searches and seizures. Because Anderson was subject to a valid search condition, he could claim no legitimate expectation of privacy. The judgment of the trial court is affirmed. Affirmed. COLEMAN, Judge, concurring in part, and dissenting in part. I concur and join in Part IV of the majority opinion rejecting the defendant's claim that, under the terms of the plea agreement, he did not grant a present waiver but "simply agreed to give such a waiver in the future." As to the validity of that wavier provision as construed by the majority, I find it unnecessary to address that question because, in my view, the scope of the defendant's waiver in this case was limited to allowing police officers, including the defendant's probation officer, to conduct reasonable searches without obtaining a warrant to search the defendant's person, residence, vehicle, and other places where he might have a protected privacy interest in order to supervise his probation. The search undertaken in this case was clearly unrelated to the supervision of defendant's probation, as evidenced by the fact that the officer was *280 unaware of the defendant's status and the waiver he had executed. The purpose of the waiver of the reasonableness requirement was to enable law enforcement officers or those persons supervising the defendant's probation to search him or his protected areas of privacy in order to assure compliance with the terms and conditions of his probation, which required that he not use or possess drugs and that he not violate the law. The waiver did not constitute, in my opinion, a carte blanche forfeiture by the defendant of his Fourth Amendment rights so as to legitimize every search of his person or possessions. Thus, I would hold that the police officers' warrantless search of the defendant conducted without probable cause or without his consent and without knowledge of or pursuant to the waiver provision was unreasonable and violated the defendant's protection of the Fourth Amendment. Accordingly, the cocaine, marijuana, and firearm were illegally seized and should have been suppressed based upon the exclusionary rule set down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).[6] The majority, relying upon the California case of In re: Tyrell J., 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519 (1994), and the North Carolina case of State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974), the latter having been overruled by statute, necessarily holds that the officers' otherwise illegal search of the defendant was reasonable because, in the waiver, the defendant had forfeited his reasonable expectation of privacy, regardless of whether the officer knew of or was conducting the search pursuant to the defendant's waiver. I disagree with that interpretation of the waiver and disagree with the majority's assertion that "[t]he conduct of the officers is not at issue." In order for police officers to lawfully seize and search a suspect without a warrant, the officers must have either probable cause to arrest, consent, or be acting in reliance upon or pursuant to a valid waiver. The officers possessed none of these prerequisites. The majority's holding, which is based upon the waiver, would validate every otherwise illegal search or seizure of the defendant, presumably in any jurisdiction, even though no probable cause existed to suspect the accused of criminal activity, except, perhaps, where the officers use excessive force. The defendant's waiver in this case was not, in my opinion, that broad or far-reaching. The purpose of the waiver was to allow law enforcement officers, including the defendant's probation officer, who knew of the defendant's probationary status, to be able to monitor the defendant's conduct and behavior by searching him, his home, his vehicle, or personal belongings without notice and without probable cause. The defendant did not forfeit "whatever claim of privacy he otherwise might have," as the majority holds.[7] A waiver for the limited purpose we have here is, in my judgment, a legitimate and effective enforcement tool, similar to the requirement that probationers submit to urine screens, which enable the authorities to assure that a probationer or convict with a suspended sentence is adhering to the conditions of probation or suspension. The defendant's waiver was not, in my opinion, a forfeiture of all Fourth Amendment protections. As with consent, unless officers conduct a search within the scope of the consent or waiver, a warrantless search without probable cause is unreasonable. Accordingly, because the trial court erred in not suppressing the evidence, I respectfully dissent. Upon a Petition for Rehearing En Banc Before the Full Court On September 24, 1997 came the appellant, by court-appointed counsel, and filed a petition *281 praying that the Court set aside the judgment rendered herein on September 16, 1997, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on September 16, 1997 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court. The parties shall file briefs in compliance with Rule 5A:35. It is further ordered that the appellant shall file with the clerk of this Court ten additional copies of the appendix previously filed in this case. NOTES [1] See, e.g., Roman v. State, 570 P.2d 1235, 1242 n. 20 (Alaska 1977) ("correctional authorities"); State v. Bollinger, 169 N.J.Super. 553, 405 A.2d 432 (Law Div.1979) (probation officers); State v. Age, 38 Or.App. 501, 590 P.2d 759, 763-64 (1979) (under direction and control of probation officer); State v. Cummings, 262 N.W.2d 56, 61 (S.D.1978) (noting that search condition required prior consent from probation officer). [2] See, e.g., Consuelo-Gonzalez, 521 F.2d at 266 (reasonable cause); Roman, 570 P.2d at 1241, 1243 (reasonable cause); State v. Burke, 235 Mont. 165, 766 P.2d 254, 256 (1988) ("reasonable grounds"); Himmage, 496 P.2d at 764-65 (reasonable cause); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983) ("reasonable grounds"). [3] See, e.g., United States v. Schoenrock, 868 F.2d 289 (8th Cir.1989) (probation search condition of drug offender for alcohol and controlled substances); United States v. Sharp, 931 F.2d 1310 (8th Cir.1991) (search condition of supervised release of drug offender for controlled substances and alcohol); Roman, 570 P.2d at 1242-43 (reasonably related to rehabilitation and crime for which offender was convicted); People v. Hellenthal, 186 Mich.App. 484, 465 N.W.2d 329, 330 (1990) (reasonably tailored to rehabilitation); State v. Fetterhoff, 739 S.W.2d 573 (Mo.Ct.App. 1987) (requiring drunk driver to submit to blood alcohol test upon request of any law enforcement officer); State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980) (requiring drug offender to submit to search at any time by any law enforcement officer, with or without cause, for controlled substances); State v. Bollinger, 169 N.J.Super. 553, 405 A.2d 432 (Law Div.1979) (search of drug offender for controlled substances at a reasonable time and in a reasonable manner); State v. Age, 38 Or.App. 501, 590 P.2d 759, 763-64 (1979) (probation condition must be reasonably related to offense for which convicted or needs of effective probation); State v. Moses, 159 Vt. 294, 618 A.2d 478, 484 (1992) (condition must meet probation needs). [4] Subsequently, the North Carolina legislature enacted a statute that "forbids requiring as a part of a probationary sentence the condition that a defendant consent to a warrantless search by anyone other than a probation officer." State v. Moore, 37 N.C.App. 729, 247 S.E.2d 250, 251 (1978). See N.C. Gen.Stat. § 15A-1343(b1)(7). [5] In addition, the record does not reveal any harassing or intimidating conduct by the officers. See United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.1975) (en banc). To the contrary, the officers came upon three "very loud" individuals alighting from a van, and investigated the situation. [6] My view of the case would not necessarily preclude the illegally seized evidence from being used to revoke the defendant's probation or suspended sentences even if the search was not conducted for the purpose of supervising the defendant's probation. See Anderson v. Commonwealth, 251 Va. 437, 470 S.E.2d 862 (1996); Johnson v. Commonwealth, 21 Va.App. 172, 462 S.E.2d 907 (1995). [7] As previously noted, because of the manner in which I construe the waiver, I do not reach the question of the constitutionality of a waiver of all Fourth Amendment rights.

791 F.2d 939 *Armstrongv.Allstate Ins. 85-8995 United States Court of Appeals,Eleventh Circuit. 5/19/86 1 M.D.Ga. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 11th Cir.R. 23.

Supreme Court of Florida ____________ No. SC13-2168 ____________ MARIANNE EDWARDS, Petitioner, vs. THE SUNRISE OPHTHALMOLOGY ASC, etc., et al., Respondents. [March 26, 2015] PER CURIAM. We initially accepted jurisdiction to review the Fourth District Court of Appeal’s decision in Edwards v. Sunrise Opthalmology ASC, LLC, 134 So. 3d 1056 (Fla. 4th DCA 2013). See art. V, § 3(b)(3), Fla. Const. However, upon further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we dismiss the petition. It is so ordered. LABARGA, C.J., and PARIENTE, CANADY, POLSTON, and PERRY, JJ., concur. LEWIS and QUINCE, JJ., dissent. NO MOTION FOR REHEARING WILL BE ALLOWED. Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fourth District - Case No. 4D12-143 (Broward County) Rodrigo Louis Saavedra of Rodrigo L. Saavedra, Jr., P.A., Fort Lauderdale, Florida, and Lincoln J. Connolly of Lincoln J. Connolly Trials & Appeals, P.A., Miami, Florida, for Petitioner Burt Edward Redlus of the Law Offices of Burt E. Redlus, P.A., Miami, Florida, and John David Kelner, Hollywood, Florida, for Respondents Gil A. Epstein, M.D. and Fort Lauderdale Eye Institute, Inc. Iain Leslie Cooper Kennedy of Shook Hardy & Bacon, LLP, Miami, Florida, for Amici Curiae Florida Medical Association and American Medical Association -2- 

117 F.Supp.2d 434 (2000) Aubrey C. LEWIS, Jr., Plaintiff, v. UNITED AIR LINES, INC., Defendant. No. Civ.A. 99-1741. United States District Court, D. New Jersey. September 28, 2000. *435 Jacques Catafago, Catafago Law Firm, P.C., New York City, NY, for plaintiff Aubrey C. Lewis, Jr. Robert S. Raymar, Hellring, Lindeman, Goldstein & Siegal, Newark, NJ, for defendant, United Air Lines, Inc. OPINION & ORDER HOCHBERG, District Judge. This matter comes before the Court on the Motion to Dismiss of Defendant United Air Lines, Inc., pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Having reviewed the submissions of the parties without oral argument, pursuant to Fed.R.Civ.P. 78, and for the following reasons, this Court will grant Defendant's Motion to Dismiss. STATEMENT OF FACTS Plaintiff Aubrey Lewis, an African-American contractor, was the President and sole shareholder of Lewis Contracting Corporation, Inc. (hereinafter "LLC"). LLC was a successful and competitive certified Minority Business Enterprise ("MBE"). To qualify for MBE status, a *436 program designed to promote minority persons and companies, a company must have at least 51% minority ownership. In November 1993, LLC was the successful low bidder on a construction project managed by defendant United Air Lines, Inc. (hereinafter "Defendant" or "United") and funded by the Port Authority at the Newark International Airport. The contract completion date was March 20, 1994 and the original contract price for the project was over $1,500,000. However, excessive change orders, allegedly due to poor planning by Defendant's management, inflated the final contract price to $2,100,000. Months after the contract was awarded, LLC was required to obtain a performance bond for the cost of the project. Plaintiff procured the bond and Westchester Fire Insurance Company issued the bond on June 9, 1994. Plaintiff asserts that the requirement to post a bond discriminated against Plaintiff because non-minority contractors were not required to secure such bonds for similar projects. Plaintiff also asserts that Defendant's Senior Project Manager, Norman Fischer (hereinafter "Fischer"), made repeated discriminatory and derogatory comments to and about Plaintiff because of his race. Specifically, Fischer made it clear to Plaintiff that he did not like people of color, made racist comments to Plaintiff and blamed LLC for the problems concerning the project awarded to LLC. On one occasion, Fischer asked Plaintiff, "Why do colored people find so many excuses for their performance?" On another occasion, Fischer stated, "Why do colored people always want preferential treatment?" On January 8, 1995, Plaintiff wrote a letter to Fischer expressing his concern about the racist and disparaging remarks made about Plaintiff and LLC. Plaintiff also asserts that Fischer disparaged him in front of his peers, potential employers and other United workers by circulating a letter dated February 7, 1995, which discussed the agenda for an upcoming meeting. Item No. 7 on that agenda was to provide "a method to allow for additional fees due to delays by contractors Lewis and McGriff." Both referenced contractors were African-American. Fischer was reprimanded by an employee of the Port Authority, who stated that Fischer's comment implied that MBE contractors are incompetent and cause delays and requested that Fischer correct the agenda. In a letter to LCC dated February 22, 1995, Fischer informed Plaintiff that Fischer had learned that LLC was downsizing and that, as a result, LLC would be removed from Defendant's General Contractor bid list. On February 24, 1995, Plaintiff's counsel responded by letter, informing Fischer that he was mistaken and LLC was continuing its rapid expansion. The letter from Plaintiff's counsel also put Fischer and Defendant on notice that Plaintiff was aware of certain letters to and from Fischer concerning LLC's performance. Plaintiff's counsel stated that counsel intended to look further into Fischer's communications concerning Plaintiff and LLC. On March 10, 1995 Fischer responded to the letter from Plaintiff's counsel, stating that he had been misinformed and that LLC had remained and would continue to remain on Defendant's bid list. Plaintiff contends that Fischer's February 22, 1995 letter was a pretext for discriminating against Plaintiff by removing Plaintiff's company from Defendant's bid list, thereby preventing Plaintiff from bidding on lucrative contracts. Plaintiff further asserts that, to date, he has not received a single invitation to bid on another project with United Air Lines, despite Defendant having accepted dozens of bids for similar contracts since March 10, 1995. Plaintiff completed the change orders on the original project in or about May 1997. PROCEDURE On April 15, 1999, Plaintiff filed a complaint in this Court. At the time Plaintiff *437 appeared pro se. On September 7, 1999, after Defendant filed a motion to dismiss the case, Plaintiff, who had hired counsel, amended his complaint (hereinafter the "Amended Complaint"), alleging violation of his civil rights under 42 U.S.C. § 1981, tortious interference and breach of contract. Defendant now moves to dismiss the Amended Complaint in its entirety, pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1) for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction, respectively. For the reasons set forth below, Defendant's motion is granted. DISCUSSION I. Standard of Review A. Standard of Review of a Fed. R.Civ.P. 12(b)(6) Motion to Dismiss In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents that the plaintiff's claims are based upon. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993), cert. denied, 510 U.S. 1042, 114 S.Ct. 687, 126 L.Ed.2d 655 (1994); see also In re Donald J. Trump Casino Securities Lit., 7 F.3d 357, 368 n. 9 (3d Cir. 1993); cert. denied, sub nom., Gollomp v. Trump, 510 U.S. 1178, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). Motions to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action result in a determination on the merits at an early stage of a plaintiff's case. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). As a result, "plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Id. In order to grant a 12(b)(6) motion to dismiss, the court must find that the plaintiff will be unable to prevail even if plaintiff proves all the allegations in the complaint. The court's decision must be based solely on the legal sufficiency of the complaint. See id. B. Standard of Review of a Fed. R.Civ.P. 12(b)(1) Motion to Dismiss In evaluating a motion to dismiss under 12(b)(1) for lack of subject matter jurisdiction, the Court must first determine whether defendant's motion attacks the complaint as deficient on its face, or whether defendant's motion attacks the existence of subject matter jurisdiction in fact. Mortensen, 549 F.2d at 891. Where defendant's 12(b)(1) motion facially attacks the complaint, the Court must take all allegations in the complaint as true. Id. Where however, defendant attacks the Court's subject matter jurisdiction in fact, no presumptive truthfulness attaches to plaintiff's allegations and the Court may weigh the evidence to satisfy itself that subject matter jurisdiction exists in fact. Id. at 891. Plaintiff bears the burden of proof that subject matter jurisdiction does in fact exist. Id. Defendants here challenge jurisdiction in fact. As a result, the Court may weigh the evidence to determine whether subject matter jurisdiction in fact exists. As a federal court of limited jurisdiction, this Court, in addition, has its own independent obligation to address questions of subject matter jurisdiction. See Meritcare Inc. v. St. Paul Mercury Insurance Co., 166 F.3d 214, 217 (3d Cir.1999). II. Plaintiff's Claim Under 42 U.S.C. § 1981 is Barred By the Statute of Limitations A. New Jersey's Two-Year Statute of Limitations is Applicable to Plaintiff's Claim The parties dispute which limitations period is applicable to Plaintiff's claims under 42 U.S.C. § 1981. Plaintiff argues that the Court should apply New Jersey's sixyear *438 contract statute of limitations. (See Pl. Opp'n Br. at 3-7). Defendant argues that the Court should apply New Jersey's two-year personal injury limitations period. (See Def.Br. at 5-6). For the reasons set forth below, this Court finds that the applicable limitations period is New Jersey's two-year statute applicable to personal injury claims. To determine the statute of limitations for a federal cause of action when the same has not been established by Congress, "the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so." Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985). To promote uniformity within each State, the Supreme Court held, in Wilson and Goodman v. Lukens Steel Co., 482 U.S. 656, 660-662, 107 S.Ct. 2617, 2620-22, 96 L.Ed.2d 572 (1987) respectively, that Section 1983 and Section 1981 claims are best characterized as personal injury actions and thus that it is proper for the District Courts to apply the forum state's limitations period governing personal injury actions to claims under §§ 1981 and 1983. Thus, New Jersey's two-year statute of limitations applicable to personal injury claims governs the timeliness of Plaintiff's Section 1981 claim.[1]See Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1087-88 (3d Cir.1988) (affirming application of New Jersey's two-year limitations period under N.J.Stat.Ann. § 2A:14-2); Zubi v. AT&T Corp., 1999 WL 334916 (D.N.J. April 6, 1999), aff'd, 219 F.3d 220, 222 (3d Cir.2000) ("District Court properly applied New Jersey's two-year statute of limitations for personal injury claims."); Stewart v. Rutgers, 930 F.Supp. 1034, 1047 (D.N.J.1996), rev'd on other grounds, 120 F.3d 426 (3d Cir.1997) ("[a] Federal court sitting in the State of New Jersey applies New Jersey's two-year limitations period to actions brought pursuant to Sections 1981 and 1983."); Tummala v. Merck & Co., Inc., 1995 WL 669220, * 11 (D.N.J. Nov.9, 1995) (two-year limitations period of N.J.Stat. Ann. § 2A:14-2 applies to Section 1981 claims). The enactment of 28 U.S.C. § 1658 did not change the settled law in this Circuit regarding limitations periods for Section 1981 cases.[2] The limitations period for Section 1981 discrimination cases begins to run when the Plaintiff knows or reasonably should know that the discriminatory act occurred. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (limitations period commenced to run when the allegedly discriminatory act was taken and communicated to Plaintiff); Miller v. Beneficial Management Corp., 977 F.2d 834, 842-44 (3d Cir.1992); see generally Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1418-1419 (3d Cir.1991). B. Plaintiff Cannot Plead A Continuing Violation of 42 U.S.C. § 1981 Plaintiff argues in the alternative that even if the two-year limitations period applies, his claims are not barred under the continuing violation theory. The continuing violation theory, recognized by the Supreme Court in Delaware State College *439 v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980), permits a plaintiff to prove a violation of Section 1981 by relying upon discriminatory acts that occurred outside of the limitations period, so long as the plaintiff can demonstrate that the acts constitute part of a pattern of discriminatory behavior, that occurred, in part, within the limitations period. See West v. Philadelphia Electric Co., 45 F.3d 744, 754 (3d Cir.1995). In determining whether the continuing violation theory is applicable, "[t]he crucial question is whether any present violation exists." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). The continuing violation theory is inapplicable to "isolated instances of discrimination concluded in the past, even though the effects persist into the present." E.E.O.C. v. Westinghouse Elec. Corp., 725 F.2d 211, 218 (3d Cir.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984). Thus, to adequately assert a continuing violation of Section 1981, for purposes of circumventing the applicable two-year limitations period, Plaintiff must first "demonstrate that at least one act occurred within the filing period." West, 45 F.3d at 754-55. Plaintiff must then establish that the discriminatory act or acts are "more than the occurrence of isolated or sporadic acts of discrimination." West, 45 F.3d at 755 (citing Jewett v. International Tel. And Tel. Corp., 653 F.2d 89, 91 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981).) In other words, Plaintiff must establish that the acts complained of, both within and without the limitations period, are part of a "persistent, on-going pattern" of discrimination. West, 45 F.3d at 755.[3] Plaintiff filed his initial Complaint on April 15, 1999. Thus in order to employ the continuing violation theory, Plaintiff must allege at least one discriminatory act that occurred on or after April 15, 1997. Plaintiff has failed to do so. Plaintiff's first allegation of discriminatory conduct is his assertion that the requirement to post a bond discriminated against Plaintiff because non-minority contractors were not required to secure such bonds for similar projects. Plaintiff knew of the bond requirement and posted the bond on June 9, 1994. Second, Plaintiff asserts that Fischer made repeated discriminatory and derogatory comments to and about Plaintiff because of his race. Plaintiff confronted Fischer about those comments in Plaintiff's January 8, 1995 letter. Third, Plaintiff asserts that Fischer disparaged him in front of his peers, potential employers and other United workers by circulating a letter dated February 7, 1995, which discussed the agenda for an upcoming meeting. It is unclear from the Amended Complaint precisely when Plaintiff became aware of the February 7, 1995 agenda. However, it is clear that Plaintiff knew of the agenda at the latest on February 24, 1995, when Plaintiff's counsel wrote to Fischer regarding, inter alia, the February 7, 1995 agenda and informed Fischer that counsel intended to explore the matter further. Fourth, Plaintiff contends that Fischer's February 22, 1995 letter was a pretext for discriminating against Plaintiff by removing Plaintiff's company from Defendant's bid list, thereby preventing Plaintiff from *440 bidding on lucrative contracts. At that time, Plaintiff was represented by counsel who responded to the February 22, 1995 letter. In counsel's letter of February 24, 1995, Fischer and Defendant were put on notice that Plaintiff was aware of disparaging correspondence to and from Fischer concerning LLC's performance, that Plaintiff and his counsel found the February 22, 1995 letter "strange" in light of the discriminatory comments made about Plaintiff and LLC and that Plaintiff's counsel intended to look further into Fischer's communications concerning Plaintiff and LLC. Fifth, Plaintiff asserts that he received a response letter from Fischer, dated March 10, 1995 that stated Fischer had been misinformed and that Plaintiff would remain on Defendant's bid list. Plaintiff contends that he was indeed removed from and was not placed back on the list as Fischer had stated. None of the foregoing allegations of discrimination occurred within the two-year limitations period, that is, on or after April 15, 1997. Plaintiff thus attempts to assert continuation of the alleged discriminatory acts through two theories. First, Plaintiff asserts that, to date, he has not received a single invitation to bid on another project with United Air Lines, despite Defendant having accepted dozens of bids for similar contracts since March 10, 1995. This argument is unavailing. The proper focus for purposes of the limitations period is the time of the discriminatory act. See Ricks, 449 U.S. at 258, 101 S.Ct. at 504, 66 L.Ed.2d 431. Here, the last act was Fischer's failure to place Plaintiff back on Defendant's bid list. Nowhere in Plaintiff's Amended Complaint does he allege that subsequent to the March 10, 1995 letter something occurred that made him aware that he was not placed back on the bid list and thus he would not receive any further invitations to bid on contracts. Nor does Plaintiff assert that he followed up to assure that he was put back on the list or that he asked any representative of Defendant why he was not being invited to bid on subsequent contracts. Plaintiff simply asserts that the passage of time alerted him that he must not have been placed back on the bid list and thus he must have been subjected to discriminatory conduct. Yet, Plaintiff puts forth nothing to justify why his claim wasn't asserted in 1995, or 1996, or early 1997. Were this Court to adopt Plaintiff's position, there would be no limitations period on claims of this kind. Plaintiff had two full years from March 10, 1995 to recognize that he had not again been invited to bid on one of Defendant's contracts and to timely assert his rights.[4] This Court finds that Plaintiff knew or should have known of the alleged discriminatory conduct within that period of time. He and his counsel, who had been retained prior to February 24, 1995, had ample time to investigate whether bids for other comparable contractors were being solicited during that two-year period and whether Plaintiff was being excluded. Indeed, Plaintiff's own affidavit indicates that he knew he had a discrimination claim but had made a business decision to forego that claim. (See September 1999 Affidavit of Aubrey C. Lewis, Jr. ¶ 48.) Plaintiff also argues that he did not complete the initial contract awarded to LLC until May 1997 and Defendant's discriminatory conduct thus continued by virtue of Plaintiff's continued employment until May 1997. However, the Supreme Court has made clear that "[m]ere continuity of employment, without more, is insufficient to *441 prolong the life of a cause of action for employment discrimination." Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Upon thorough review of Plaintiff's Amended Complaint and Affidavit in Opposition to Defendant's Motion to Dismiss, this Court finds that Plaintiff has failed to allege a single discriminatory act occurring within the two-year limitations period. Taken in the light most favorable to Plaintiff, the last act of discrimination alleged by Plaintiff occurred on March 10, 1995, when Fischer sent a letter to Plaintiff informing Plaintiff that he would remain on Defendant's bid list, when in fact, as Plaintiff alleges, he was indeed removed from and not placed back on Defendant's bid list. Having failed to meet the first prong of the continuing violation theory, no basis upon which to employ that theory here exists. Thus, Plaintiff may not avail himself of the continuing violation theory to toll the two-year statute of limitations applicable to his Section 1981 claim.[5] C. Plaintiff is Not Entitled to Equitably Toll His Claim Plaintiff also asserts that his claim is timely because it is subject to equitable tolling. In certain cases, limitations periods in discrimination cases may be equitably tolled. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 309 (3d Cir.1983), cert. dismissed, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984). The Third Circuit looks to "three principal though not exclusive situations where equitable tolling may be appropriate... (1)[if] the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748, 753 (3d Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983). Plaintiff claims that he is entitled to invoke the doctrine of equitable tolling based upon his May 1997 conversation with Chuck Minor, an employee of Defendant allegedly sent to "smooth things out" with the Plaintiff. Plaintiff asserts that when he informed Minor, both orally and by letter dated April 27, 1997, that he was extremely dissatisfied with Defendant's discriminatory actions and was contemplating a lawsuit, Minor quickly promised Plaintiff jobs. Specifically, Plaintiff alleges that Minor told him that Defendant was happy with his work and that Plaintiff would be invited to bid on some additional projects soon. Plaintiff has not yet been invited to bid on any additional contracts. While equitable tolling does apply "where the employer's own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his rights," Meyer, 720 F.2d at 307 (quotations omitted), it cannot properly be applied here. As earlier stated, the limitations period for the last act of alleged discrimination began to run at the latest on March 10, 1995 and as of March 10, 1997, Plaintiff's claim was no longer timely. Equitable tolling functions to halt an already running limitations period that has not yet expired; it does not function to revive a stale claim. Thus the conversation with Minor, which occurred after the limitations *442 period had run, cannot breathe life into Plaintiff's already untimely claim. In short, had Plaintiff filed suit in May 1997, as he states was contemplated, his claim would have been barred by the two-year limitations period applicable to Section 1981 claims under New Jersey law.[6] In the case before the Court, Plaintiff was aware of each of the alleged acts of discrimination, at the latest, as of March 10, 1995. At that time his counsel had already informed Defendant, through Mr. Fischer, that Plaintiff intended to "explore further the peculiar and denigrating communications" referenced in counsel's February 24, 1995 letter. Plaintiff further asserts that after receiving Fischer's March 10, 1995 letter, which informed Plaintiff that Fischer had indeed been "misinformed" and that Plaintiff would be put back on Defendant's bid list, that Plaintiff "remained skeptical" but "gave defendant the benefit of the doubt." (Am. Cmplt. ¶ 23.) Despite being represented by counsel who specifically addressed the allegations of discrimination at issue and despite Plaintiff's continued skepticism, Plaintiff did nothing until April 15, 1999— over four years later—to assert his rights. As discussed earlier, the May 1997 conversation does not revive Plaintiff's claim. Plaintiff's Section 1981 claim is barred by the two-year statute of limitations. III. This Court Lacks Subject Matter on the Basis of Diversity of Citizenship "It is ... well established that when jurisdiction depends upon diverse citizenship the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived." Carlsberg Resources Corp. v. Cambria Savings and Loan Association, 554 F.2d 1254, 1256 (1977) (citing Thomas v. Board of Trustees, 195 U.S. 207, 211, 25 S.Ct. 24, 49 L.Ed. 160 (1904)). In order to state subject matter jurisdiction on the basis of diversity of the parties, plaintiffs must affirmatively plead the citizenship of all parties. See Chemical Leaman Tank Lines, Inc. v. Aetna Casualty Ins. & Surety Co., 177 F.3d 210, 222 n. 13 (3d Cir. 1999); see also American Motorists Ins. Co. v. American Employers' Ins. Co., 600 F.2d 15 (5th Cir.1979). It is only when these facts are affirmatively pleaded that the Court can properly determine whether complete diversity of the parties in fact exists and thus whether the Court has jurisdiction to adjudicate the matter. Here, Plaintiff's allegations are inadequate. Moreover, Plaintiff neither asserts diversity jurisdiction nor disputes Defendant's contention that Plaintiff has been repeatedly asked to correct the Amended Complaint to assert it if possible. Thus, the Court finds no basis upon which to exercise diversity jurisdiction in this matter. IV. Plaintiff's State Law Claims Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if all federal claims have been dismissed. 28 U.S.C.A. § 1367(c)(3) (West 1993). Having found that Plaintiff has failed to state a federal cause of action and as this Court lacks diversity jurisdiction to hear Plaintiff's state law claims, this Court declines to exercise jurisdiction over Plaintiff's state law claims. Thus, Plaintiff's state law claims are dismissed without prejudice for Plaintiff to refile them in New Jersey Superior Court. 28 U.S.C. § 1367(c)(3). CONCLUSION For the foregoing reasons, it is on this 28th day of September, 2000, hereby *443 ORDERED that the Motion to Dismiss of Defendant United Air Lines, Inc. be, and is hereby GRANTED; and it is further ORDERED that Plaintiff's state law claims be, and are hereby dismissed without prejudice for Plaintiff to refile in the New Jersey Superior Court; and it is further ORDERED that this case is closed. NOTES [1] The Court notes that while Plaintiff cites to Third Circuit cases applying New Jersey's six-year contract statute of limitations to claims under 42 U.S.C. § 1981, every one of those cases predates the Supreme Court's decision in Goodman. (See Pl. Opp'n Br. at 7.) Thus, none of the cases cited by Plaintiff controls here. [2] Section 1658, enacted December 1, 1990, states, "Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues." 28 U.S.C. § 1658. In Zubi v. AT&T Corp., 219 F.3d 220, 226 (3d Cir.2000), the Third Circuit held that an action brought under 42 U.S.C. § 1981 "arises under an Act of Congress enacted before December 1, 1990, and is governed by New Jersey's two year limitations period." Thus Plaintiff may not avail himself of the four-year limitations period prescribed in 28 U.S.C. § 1658. [3] In determining whether alleged acts of discrimination are part of a "persistent, on-going pattern" of discrimination, the Third Circuit has cited as helpful, the Fifth Circuit's non-exhaustive list of factors set forth in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983). Under the Berry factors, "the inquiry into the existence of a continuing violation would consider: (i) subject matter—whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence—whether the nature of the violations should trigger the employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate." West, 45 F.3d at 755. [4] The assertions in his Opposition brief that "Plaintiff did not become aware of the extent of Norman Fischer's discriminatory acts against him until 1997" (Pl. Opp'n Br. at 5) and that "[o]nly recently has plaintiff come to learn that defendant has and continues to actively contact[ ] members on their bid list for various construction jobs" (Pl. Opp'n Br. at 11) are nowhere in Plaintiff's Amended Complaint nor in his affidavit. These bald assertions are simply insufficient for this Court to invoke either the continuing violation theory or equitable estoppel. [5] Although it is not necessary to determine whether Defendant's alleged discriminatory acts constitute a "persistent, on-going pattern" of discrimination, Plaintiff's Amended Complaint and Affidavit in Opposition to Defendant's Motion to Dismiss allege no facts to support the contention that the alleged discriminatory acts are part of a pattern of discrimination. The Third Circuit instructs that "a court must be circumspect in relating discrete incidents to each other" and that "a careful analysis must be made before acts are considered part of a pattern." Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 484 (3d Cir.1997). It is the opinion of this Court that, even if Plaintiff had alleged a discriminatory act with the limitations period, Plaintiff's allegations speak of, at best, "isolated instances of discrimination," which would not support a continuing violation theory. [6] Furthermore, the Court finds that the statements allegedly made by Minor, even in the light most favorable to Plaintiff, are insufficient to find that Defendant actively misled Plaintiff in an effort to keep Plaintiff from timely asserting his rights. See Rolo v. City Investing Co. Liquidating Trust, 845 F.Supp. 182, 244 (D.N.J.1993).

254 F.3d 877 (9th Cir. 2001) S.V., PLAINTIFF-APPELLEE,v.SHERWOOD SCHOOL DISTRICT, DEFENDANT-APPELLANT. No. 00-35100 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 5, 2001Filed June 26, 2001 Richard G. Cohn-Lee, The Hungerford Law Firm, West Linn, Oregon, for the defendant-appellant. Jerry C. Goodman, Jerry C. Goodman, P.C., Eugene, Oregon, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding D.C. No. CV-99-01109-JO Before: Thomas G. Nelson, Susan P. Graber, and Johnnie B. Rawlinson, Circuit Judges. Judge Graber Portland, Oregon OPINION GRABER, Circuit Judge: 1 Defendant Sherwood School District ("School District") appeals the district court's declaratory ruling that Oregon Revised Statutes ("ORS") §§ 12.080(2) provides the applicable statute of limitations in Oregon for a claim for tuition reimbursement under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§§§ 1400 to 1487. We hold that ORS §§ 30.275(8) governs instead and, accordingly, reverse. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff S.V. seeks tuition reimbursement for the special education services he obtained at the private schools that he attended after his parents decided that his public school was not providing him with a "free appropriate public education" as required by the IDEA. 20 U.S.C. §§ 1400. S.V. attended private schools from the fall of 1996 until November 1998, when he returned to public school. He now receives special education services, the adequacy of which is not in question. 3 On March 25, 1999, S.V.'s parents requested a due process hearing. They alleged that the School District had failed to provide a free appropriate public education to S.V. until November 1998. As a remedy, they requested tuition reimbursement for the private school tuition that they had paid. Before the hearing officer addressed the merits of S.V.'s case, S.V. sought a declaratory ruling that the six-year statute of limitations contained in ORS §§ 12.080(2) applied to his claim for tuition reimbursement. On July 19, 1999, the hearing officer ruled that ORS §§ 30.275(8) provided the applicable statute of limitations, a two-year period. 4 S.V. appealed that decision to the federal district court, which reversed the hearing officer's decision and held that ORS §§ 12.080(2) applied. The School District timely filed this appeal. STANDARD OF REVIEW 5 We review de novo the district court's determination of an appropriate statute of limitations. United States v. Hughes Air- craft Co., 162 F.3d 1027, 1034 (9th Cir. 1998). DISCUSSION A. Statutes of Limitations under the IDEA 6 The IDEA specifies no limitations period governing either a plaintiff's request for an administrative hearing or the filing of a civil action. Livingston Sch. Dist. Nos. 4 & 1 v. Keenan, 82 F.3d 912, 915 (9th Cir. 1996); Dreher v. Amphitheater Unified Sch. Dist., 22 F.3d 228, 231 (9th Cir. 1994). Therefore, we "must determine the most closely analogous state statute of limitations" and apply that statute"unless it would undermine the policies underlying the IDEA." Livingston Sch. Dist., 82 F.3d at 915. In order to assess which state statute of limitations is most analogous, the court "must characterize the essence of the claim in the pending case, and decide which state statute provides the most appropriate limiting principle." Wilson v. Garcia, 471 U.S. 261, 268 (1985). 7 We have never considered the appropriate limitations period governing a request for a due process hearing (as distinguished from the initiation of a civil action) on a claim arising under the IDEA. However, the First, Fourth, and Eighth Circuits have applied the analysis governing the determination of the limitations period for the filing of a civil action to the determination of the limitations period for the initial filing of an administrative claim under the IDEA. Strawn v. Missouri State Bd. of Educ, 210 F.3d 954, 957-58 (8th Cir. 2000); Manning v. Fairfax County Sch. Bd., 176 F.3d 235, 237-38 (4th Cir. 1999); Murphy v. Timberlane Reg'l Sch. Dist., 22 F.3d 1186, 1193-94 (1st Cir. 1994). Both the First and Fourth Circuits reasoned simply that, for the purpose of ensuring the timely pursuit of a claim, there is no reason to distinguish between a claim filed in an administrative body and one filed in court. Manning, 176 F.3d at 238; Murphy, 22 F.3d at 1193- 94. The Eighth Circuit did not acknowledge the distinction between administrative hearings and court proceedings. Strawn, 210 F.3d at 957-58. We see no good reason to depart from the approaches adopted by our sister circuits. 8 Twice we have addressed the appropriate limitations period for filing civil actions under the IDEA. Livingston Sch. Dist., 82 F.3d at 915; Dreher, 22 F.3d at 231. In Dreher, we held that the applicable statute of limitations for a claim of tuition reimbursement in Arizona was the statute providing the one- year period applicable to " `liabilit[ies] created by statute, other than penalty or forfeiture.' " 22 F.3d at 232 (alteration in original) (quoting Ariz. Rev. Stat. Ann. §§ 12-541). We considered two statutes of limitations: one that governed appeals from agencies' decisions, and one that governed claims arising from liabilities created by statute. Id. We concluded that, because no administrative hearing had been granted on the plaintiff's claim, the action was not analogous to an appeal from an administrative decision. As a result, we characterized the plaintiff's claim as a liability created by statute and applied a one-year statute of limitations. Invoking a similar analysis, but reaching a different result, we held in Livingston School District that the appropriate limitations period in Montana for an action seeking review of a hearing officer's decision on an IDEA claim was the 60-day period for requests for judicial review of agency decisions. 82 F.3d at 916-17. 9 B. The Statute of Limitations for S.V.'s Claim 10 In order to select a statute of limitations here, we first must characterize S.V.'s claim. S.V. seeks reimbursement for tuition expenses incurred when the School District allegedly breached its duty under the IDEA to provide him with a "free appropriate public education." Thus, consistent with our decision in Dreher, S.V.'s claim can be characterized as a claim arising from a liability created by statute. 11 Our next step is to identify the Oregon statute of limitations that applies to claims analogous to S.V.'s. Oregon law provides two potentially applicable statutes of limitations. The first, and the one adopted by the district court, is ORS §§ 12.080(2), which states that "[a]n action upon a liability created by statute, other than a penalty or forfeiture,. . . shall be commenced within six years." 12 The second potentially applicable statute of limitations, and the one applied by the hearing officer, is the two-year period contained in the Oregon Tort Claims Act ("OTCA"), ORS §§§§ 30.260 to 30.302. Under Oregon law, a claim alleging a public body's breach of duty imposed by statute is governed by the OTCA. See ORS §§§§ 30.260(8) (defining "tort") and 30.265 (discussing the scope of the OTCA). With two exceptions that do not apply to this case, the limitations period for any claim to which the OTCA applies is two years. ORS §§ 30.275(8). The Oregon Court of Appeals has held specifically that this two-year limitations period applies to a claim against a public body arising from a breach of duties imposed by a federal statute. See Butterfield v. Oregon, 987 P.2d 569, 574-75 (Or. Ct. App. 1999) (holding that the OTCA limitations period applied to a claim alleging a breach of the Fair Labor Standards Act by the state). 13 As discussed above, S.V. asserts that the School District is liable for his tuition because it breached its statutory duty to provide a free appropriate public education. The School District is unquestionably a "public body." ORS §§ 30.260(4)(b). Because the IDEA, and not a contract or a quasi-contract, is the source of the School District's alleged duty to S.V., his claim falls within the statutory definition of a tort: 14 [T]he breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi- contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy. 15 ORS §§ 30.260(8). Under that definition, S.V.'s claim is a "tort" within the meaning of the OTCA whether his requested remedy for breach of statutory duty is characterized as damages or as equitable relief. 16 Thus, we are confronted with a choice between two statutes of limitations, both of which, by their terms, could apply to S.V.'s claim. We adopt the limitations period in the OTCA for two reasons. First, the OTCA statute of limitations applies specifically to claims alleging breaches of statutory duty by school districts and other public bodies. By contrast, ORS §§ 12.080 is a general, "catchall" statute of limitations that applies broadly to any claim alleging a "liability created by statute" for which no other limitations period is provided. It is a well-established tenet of statutory construction that a specific statute controls over a general statute. United States v. Navarro, 160 F.3d 1254, 1256-57 (9th Cir. 1998); Davis v. Wasco Intermediate Educ. Dist., 593 P.2d 1152, 1158 (Or. 1979). 17 Second, a two-year limitations period is consistent with both the policy underlying the IDEA and with the limitations periods adopted by most other circuits. A six-year period is not. 18 The Eighth Circuit recently decided whether to apply a five-year or a two-year statute of limitations to an IDEA claim. Strawn, 210 F.3d at 957. Although both statutes arguably encompassed IDEA claims, the court adopted the two- year statute after concluding that the five-year statute would frustrate public policy. Id. at 957-58. In reaching its conclusion, the court summarized the policy underlying the IDEA: 19 The statutory framework of the IDEA and the statute's purpose show that a five-year statute of limitations would frustrate the federal policy of quick resolution of IDEA claims. The IDEA provides for substantial parental involvement in the IEP [individualized educational program] process, annual reviews, and annual notice to parents of procedural rights. See 20 U.S.C. §§ 1414(d)[(1)](B)(i) (parents must be part of IEP team); 20 U.S.C. §§ 1414(d)(4)(A)(i) (annual review); 20 U.S.C. §§ 1415(b)-(d) (notice of procedural rights). This statutory scheme mandating parental participation in an annual decision-making process demonstrates that Congress intended for parents to be actively implicated in the expeditious resolution of IDEA concerns. In addition, children protected by the IDEA benefit greatly from quick resolution of disputes because lost education is a substantial harm, and that harm is exactly what the IDEA was meant to prevent. 20 Id. at 957. The court concluded that a two-year statute of limitations served those policies: It was short enough to allow expeditious resolution of claims, but long enough to allow parents "the opportunity to protect their disabled children's rights." Id. at 958. 21 We agree with the Eighth Circuit's interpretation of the policy underlying the IDEA. Moreover, its choice of a two- year limitations period is in accord with the lengths of limitations periods approved by most other courts. See James v. Upper Arlington City Sch. Dist., 228 F.3d 764, 769 (6th Cir. 2000) (holding that either a four-year or a two-year limitations period applies to claims under the IDEA in Ohio for tuition reimbursement; either way, the claims were time- barred); Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir. 2000) (holding that the three-year statute of limitations applicable to §§ 1983 actions in Arkansas governed IDEA claims); Manning, 176 F.3d at 239 (holding that, in Virginia, a one-year limitations period applies to a request for an administrative hearing on a claim alleging a violation of the IDEA). But see CM v. Board of Educ., 241 F.3d 374, 379- 80 (4th Cir. 2001) (applying a 60-day limitations period contained in a North Carolina statute enacted specifically to address IDEA claims); Murphy, 22 F.3d at 1192-93 (applying New Hampshire's "catchall" six-year statute of limitations to a claim for compensatory education under the IDEA). 22 In sum, a two-year limitations period supports the IDEA's policies of expeditious resolution of disputes and ongoing parental involvement in the education of disabled children. A six-year statute of limitations would frustrate that policy by permitting parents to wait for up to half the total length of a child's primary and secondary educational experience before raising a claim that the school district had failed to provide the student with a free appropriate public education and was liable for private-school tuition. For all these reasons, ORS §§ 30.275(8) provides a limitations period of an appropriate length. CONCLUSION 23 We hold that ORS §§ 30.275(8) provides the statute of limitations governing S.V.'s claim. We reverse and remand for further proceedings consistent with this opinion. 24 REVERSED and REMANDED.

684 So.2d 186 (1996) STATE of Florida, Petitioner, v. Maurice Morsells HORN, Respondent. Maurice Morsells HORN, Petitioner, v. STATE of Florida, Respondent. Nos. 87788, 87789. Supreme Court of Florida. December 5, 1996. *187 Robert A. Butterworth, Attorney General; James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Petitioner/Respondent. Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Respondent/Petitioner. PER CURIAM. We have for review a decision certifying two questions to be of great public importance: DOES THE DECISION IN [CONEY V. STATE, 653 So.2d 1009 (Fla.1995)] APPLY TO "PIPELINE CASES," THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR NOT YET FINAL DURING THE TIME [CONEY] WAS UNDER CONSIDERATION BUT PRIOR TO THE ISSUANCE OF THE OPINION? and WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD DEGREE (FELONY) MURDER, DO STATE V. GRAY, 654 So.2d 552 (Fla.1995), AND SECTION 924.34, FLORIDA STATUTES (1991) REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER IS NO, THEN DO LESSER-INCLUDED OFFENSES OF THE CHARGED OFFENSE REMAIN VIABLE FOR A NEW TRIAL? Horn v. State, 677 So.2d 320, 322, 323 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answered the first question in Boyett v. State, No. 81,971, ___ So.2d ___ [1996 WL 693616] (Fla. Dec. 5, 1996). There we wrote: In Coney, we expressly held that "our ruling today clarifying this issue is prospective only." Unless we explicitly state otherwise, a rule of law which is to be given prospective application does not apply to those cases which have been tried before the rule is announced. Because Boyett had already been tried when Coney issued, Coney does not apply. Boyett, slip op. at 5-6, ___ So.2d at ___ ___. Accordingly, we answer this certified question in the negative. We answered the second question in State v. Wilson, 680 So.2d 411 (Fla.1996), by holding that where a conviction for attempted felony murder has been vacated on the basis of our opinion in Gray, the proper remedy is retrial on any lesser included offense which was instructed on at trial. Here, Horn's conviction for third-degree attempted felony murder means he was effectually acquitted of the charged offense of second-degree *188 felony murder. He may therefore be tried on the other offenses instructed on below which were equal to or lesser than third-degree felony murder: attempted manslaughter and aggravated assault. Accordingly, we answer part one of this certified question in the negative, and part two of this certified question in the affirmative. We answer the certified questions as explained above, approve the district court's decision, and remand to the district court for proceedings consistent with this opinion. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

FILED United States Court of Appeals Tenth Circuit December 11, 2008 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court HADASSAH MARA COHEN, Plaintiff-Appellant, v. No. 07-6241 (D.C. No. 5:07-CV-00645-HE) DR. C. KIM WINKELMAN, (W.D. Okla.) Comanche Nation College President; * COMANCHE NATION COLLEGE, Defendants-Appellees. ORDER AND JUDGMENT ** Before LUCERO, EBEL, and HARTZ, Circuit Judges. Hadassah Mara Cohen appeals the district court’s dismissal of her complaint against the Comanche Nation College and its President, Dr. C. Kim * Both Cohen and the district court spelled Winkelman’s last name as “Winkleman” and, as a result, the appeal was docketed with that spelling. It appears from the record, however, that the correct spelling is “Winkelman.” Accordingly, we have corrected the caption and use the correct spelling throughout this order and judgment. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. Winkelman (collectively “the tribal defendants”). 1 Cohen alleges that the tribal defendants violated her procedural due process and equal protection rights in violation of § 1302 of the Indian Civil Rights Act (“ICRA”), 25 U.S.C. §§ 1301- 03, by terminating her employment contract. The district court dismissed the complaint on the basis of issue preclusion because it had previously concluded, in a prior case between the same parties, that it lacked subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm on the alternative ground that the district court lacked jurisdiction to entertain Cohen’s second lawsuit because of tribal sovereign immunity. I The Comanche Nation (“the Nation”) is a federally-recognized Indian tribe located in Oklahoma. See Indian Entities Recognized & Eligible to Receive Services From the United States Bureau of Indian Affairs, 73 Fed. Reg. 18553, 18554 (Apr. 4, 2008). In 2002, the Nation chartered the Comanche Nation College (“the College”) to “provide educational opportunities for Comanche tribal members, members of other tribal nations, and others to learn the necessary knowledge and skills to be successful in a multicultural society.” Charter, Comanche Nation College, Art. II. The College was designated as a tribal 1 As the substance and caption of Cohen’s complaint make clear, and as the district court indicated, Cohen is suing Winkelman in his official capacity as the College’s president. Cohen v. Winkleman (“Cohen II”), No. CIV-07-645-HE, 2007 WL 2746913, at *1 n.1 (W.D. Okla. Sep. 20, 2007). -2- enterprise pursuant to the Nation’s “sovereign right of self-government and its authority to foster the general welfare and education of the Comanche citizens.” Charter, Comanche Nation College, Pmbl. On June 17, 2005, Cohen and the tribal defendants entered into the employment agreement giving rise to this lawsuit. 2 Under the terms of the contract, Cohen was to serve for three years as the Director of Planning, Operations, and Assessments of the College beginning on August 15, 2005. If the employment agreement were terminated without cause, the tribal defendants agreed to buy out Cohen’s contract. Despite this commitment, on September 9, 2005, the tribal defendants terminated Cohen’s employment without cause yet refused to buy out the contract. In November 2005, Cohen sued the tribal defendants in federal court alleging that they had (1) breached the employment agreement and, in so doing, (2) violated ICRA. Cohen v. Winkleman (“Cohen I”), 428 F. Supp. 2d 1184, 1186 (W.D. Okla. 2006). 3 On April 17, 2006, the district court granted the tribal defendants’ motion to dismiss for lack of subject matter jurisdiction and, in the alternative, for failure to state a claim. Id. at 1189. Dismissal was predicated on 2 Because this case reaches us following the tribal defendants’ successful motion to dismiss, we accept as true all the allegations in Cohen’s complaint. Ordinance 59 Ass’n v. U.S. Dep’t of the Interior, 163 F.3d 1150, 1152 (10th Cir. 1998). 3 No copy of the complaint in Cohen I appears in the record, so we rely on the district court’s summary of the claims from its order dismissing that case. -3- the conclusion that the sovereign immunity of the Comanche Nation, which extended to Winkelman and the College, barred Cohen’s breach of contract claim and deprived the court of jurisdiction. Id. at 1186. As to the ICRA claim, the court concluded that it did not fall within the narrow exception to tribal sovereign immunity we announced in Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682, 685 (10th Cir. 1980), and the court therefore lacked subject matter jurisdiction, Cohen I, 428 F. Supp. 2d at 1188-89. Cohen failed to meet the Dry Creek exception because she did not establish (1) that a tribal forum was unavailable or (2) that the allegations were outside internal tribal affairs. Id. at 1187-89. On the basis of the Dry Creek exception, the district court found that Cohen failed to demonstrate unavailability of a tribal forum because “she ha[d] not yet filed suit or otherwise formally pursued this matter” in a tribal court. Id. at 1188; see White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984) (“In addition, to adhere to the principles of Santa Clara [Pueblo v. Martinez, 436 U.S. 49 (1978)], the aggrieved party must have actually sought a tribal remedy, not merely have alleged its futility.”). Presumably prompted by this language, Cohen sought to establish unavailability by filing her claim in a tribal forum, the Court of Indian Offenses. That court dismissed Cohen’s claim on May 17, 2007, because the Comanche Nation had not expressly waived its sovereign immunity. That decision was not appealed. -4-  On June 6, 2007, Cohen once again sued Winkelman and the College in federal court seeking money damages for alleged violations of procedural due process and equal protection in violation of ICRA. 4 Cohen II, 2007 WL 2746913, at *1. The tribal defendants moved to dismiss for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), and for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1). Cohen II, 2007 WL 2746913, at *1. Cohen failed to state a claim, the tribal defendants argued, because she was precluded by the decision in Cohen I from relitigating the lack of subject matter jurisdiction. Even if the issue were not precluded, the tribal defendants contended that the district court lacked subject matter jurisdiction because the Dry Creek exception to tribal sovereign immunity did not apply. On September 20, 2007, the district court dismissed Cohen II because Cohen I precluded Cohen from establishing jurisdiction under Dry Creek. 2007 WL 2746913, at *2. This appeal follows. II We review questions of tribal sovereign immunity de novo. Walton v. Tesuque Pueblo, 443 F.3d 1274, 1277 (10th Cir. 2006). “It is well established that Indian tribes possess the common law immunity from suit traditionally enjoyed by sovereign powers.” Berrey v. Asarco, Inc., 439 F.3d 636, 643 (10th Cir. 2006) (citing Santa Clara, 436 U.S. at 58); see also Kiowa Tribe of Okla. v. 4 In this second lawsuit, Cohen abandoned her breach of contract claim. -5- Mfg. Techs., Inc, 523 U.S. 751, 754 (1998); Puyallup Tribe, Inc. v. Dep’t of Game of the State of Wash., 433 U.S. 165, 172-73 (1977). Tribal sovereign immunity extends to subdivisions of the tribe, Native Am. Distrib. v. Seneca- Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir. 2008), and to tribal officials, so long as the officials are acting within the scope of their permissibly delegated official powers, see Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006). Yet, Congress retains plenary power to authorize a lawsuit against an Indian tribe, Santa Clara, 436 U.S. at 58, and a tribe may always waive sovereign immunity and consent to suit, Kiowa Tribe, 523 U.S. at 754; Native Am. Distrib., 546 F.3d at 1293; Walton, 443 F.3d at 1277; E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1304 (10th Cir. 2001); Ute Distrib. Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1263 (10th Cir. 1998). Absent congressional abrogation or an express waiver by the tribe, sovereign immunity deprives the federal courts of jurisdiction to entertain lawsuits against an Indian tribe, its subdivisions, or its officials acting within their official capacities. See Native Am. Distrib., 546 F.3d at 1293; see also FDIC. v. Meyer, 512 U.S. 471, 475 (1994). In this case, Cohen has sued both the College and its president, Winkelman. Neither party disputes that the College, as a chartered tribal enterprise of the Comanche Nation, constitutes a subdivision of the tribe for the purposes of sovereign immunity. See Native Am. Distrib., 546 F.3d at 1293-95 (holding that a commercial venture of the Seneca-Cayuga Tribe constituted a tribal enterprise -6- protected by sovereign immunity). Nor do the parties dispute that Winkelman is a tribal official acting in his official capacity and within the scope of his official duties. See id. at 1297 (“[T]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” (quotation omitted)). Thus, we have no reason to question the district court’s determination that, absent abrogation or waiver, the sovereign immunity of the Comanche Nation extends both to the College and to Winkelman. Because the tribal defendants have not expressly waived their sovereign immunity, Cohen’s case may proceed in federal court only if Congress has abrogated that immunity. See id. at 1293. In Santa Clara, the Supreme Court held that ICRA abrogated the sovereign immunity of tribes only for habeas corpus actions brought under 25 U.S.C. § 1303. 5 436 U.S. at 70. Two years later, in Dry Creek, this court recognized a limited exception to Santa Clara’s seemingly absolute holding that ICRA did not abrogate tribal sovereign immunity outside the habeas context. 623 F.2d at 685. According to Dry Creek, a federal court has jurisdiction pursuant to § 1302 to entertain an ICRA lawsuit against an Indian tribe if: (1) the dispute involves a non-Indian, (2) a tribal forum is unavailable, and (3) the dispute involves issues 5 In relevant part, 25 U.S.C. § 1303 provides: “The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” Cohen does not argue that her claim is cognizable under this section. -7- outside internal tribal affairs. Walton, 443 F.3d at 1278; Ordinance 59 Ass’n, 163 F.3d at 1156. In the nearly thirty years since that decision, we have applied the Dry Creek exception in only one case—Dry Creek itself. See Walton, 443 F.3d at 1278 (collecting cases). We have repeatedly emphasized its “minimal precedential value,” Ordinance 59 Ass’n, 163 F.3d at 1158, reasoning that “the Dry Creek opinion must be regarded as requiring narrow interpretation in order to not come into conflict with the decision of the Supreme Court in Santa Clara,” White, 728 F.2d at 1312. Despite Dry Creek’s “minimal precedential value,” Cohen maintains that the federal district court had jurisdiction to hear her claim against the tribal defendants, arguing that she meets all three prongs. The tribal defendants, however, contest whether Cohen meets Dry Creek’s second prong—unavailability of a tribal forum. In response, Cohen urges that a tribal forum was unavailable because the Court of Indian Offenses dismissed her claim as having been barred by sovereign immunity. Walton squarely forecloses Cohen’s argument. In Walton, we held that “[a] tribal court’s dismissal of a suit as barred by sovereign immunity is simply not the same thing as having no tribal forum to hear the dispute.” 443 F.3d at 1279. A contrary holding, we concluded, would directly conflict with Santa Clara. Id. As in Walton, Cohen cannot establish federal court jurisdiction under Dry Creek on the mere claim that the Court of Indian Offenses dismissed her case based on sovereign immunity. Because Cohen -8- cannot satisfy Dry Creek’s narrow exception, the Comanche Nation’s sovereign immunity bars her claims against both tribal defendants. Thus, the district court lacked jurisdiction to entertain Cohen’s lawsuit. 6 III For the foregoing reasons, the judgment of the district court is AFFIRMED. The tribal defendants’ motion for sanctions is DENIED. ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge 6 Although the district court found the issue of subject matter jurisdiction precluded by its decision in Cohen I, we need not resolve the case on that basis and may affirm the district court’s ruling on alternative grounds. United States v. Lott, 310 F.3d 1231, 1242 n.7 (10th Cir. 2002). -9- 

108 F.3d 1377 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.David E. JAY, Defendant-Appellant. No. 95-4238. United States Court of Appeals, Sixth Circuit. March 6, 1997. Before: SILER, COLE, and VAN GRAAFEILAND,* Circuit Judges. PER CURIAM. 1 On May 25, 1994, David E. Jay, defendant, pled guilty to a two-count indictment charging him with: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); and (2) making false statements to a firearms dealer in violation of 18 U.S.C. § 922(a)(6). He was sentenced to a term of imprisonment of 51 months. On appeal, Jay claims that the district court erred in denying his motion for a downward departure from the sentencing guidelines range and in denying his motion to dismiss the first count of his indictment. Because a review of the record convinces us that the district court understood that it had discretion to depart downward from the sentencing guidelines, we DISMISS Jay's appeal of his sentence for want of jurisdiction. Further, because 18 U.S.C. § 922(g) is constitutional, we AFFIRM the district court's denial of Jay's motion to dismiss the first count of the indictment. I. 2 Jay purchased a firearm from a federally licensed dealer and indicated that he had no prior felony convictions, although he had previously been convicted of a felony. Later, he was stopped by police who discovered the handgun in his vehicle. 3 Jay neither denies buying the firearm in question nor denies lying on the firearms application. He instead claims that he purchased the firearm for his own protection after the occurrence of recent thefts and robberies involving his employment with Jay's Boom Trucking. At sentencing, the district judge denied Jay's motion for a downward departure. 4 Jay first orally moved for downward departure during an earlier sentencing hearing. Based on the lack of notice to the court and to the government, the hearing was continued to provide Jay the opportunity to file a motion and to give the government and the court the opportunity to review the issue. At this hearing, the district court judge stated that it was her belief that a motion for downward departure was permissible when there existed no plea agreement stating otherwise. 5 The court also heard and denied Jay's motion to dismiss count one of his indictment on the basis that 18 U.S.C. § 922(g)(1) constitutes an invalid exercise of Congress' power under the Commerce Clause of the United States Constitution.1 This section provides, in relevant part, that it is unlawful for certain persons, including convicted felons, to "possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). II. 6 We are first asked to determine whether the district court's refusal to depart downward from the sentencing guidelines was an exercise of discretion or a legal determination that there was no authority for departure in response to Jay's claim that he purchased the firearm for his own protection. Ordinarily, a district court's discretionary refusal to depart downward from the sentencing guidelines range is not appealable. United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995). When the guideline range was properly computed, the district court was aware of its discretion to depart, and the sentence imposed was not illegal or a result of an incorrect application of the guidelines, the failure to depart is not reviewable. United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995). "An appeal may be taken, however, when the district court believed that it lacked any authority to depart downward as a matter of law." Ebolum, 72 F.3d at 37. 7 To determine whether the district court's refusal to depart downward was an exercise of discretion or a legal determination that there was no authority to depart, we review the sentencing hearing transcript. Id. Jay claims that the judge refused to depart downward because she believed that she had "no authority whatsoever to exercise discretion in this matter." At the earlier sentencing hearing, however, the judge stated that she believed that a motion for downward departure was permissible in this case and continued the hearing so that she could have everything that could be made available to her and have some time to reflect on it before making a decision whether to depart downward. Such comments do not reflect a belief that departure was legally precluded. 8 In support of his argument that the district court judge misunderstood her authority, Jay points to statements she made at the final hearing. In particular, Jay refers to the statements, "I just don't think that it would hold up. I think that the circuit would reverse it and you would have some false hope and then that wouldn't happen." These statements do not demonstrate that the judge believed that she lacked the authority to consider the defendant's mitigating circumstances. Rather, they indicate a belief that under the circumstances of Jay's case, downward departure was unwarranted. 9 As further support, Jay points to the judge's statements that she was "not happy about the sentences that are required in these cases " (emphasis added); that she did not grant a downward departure in cases as compelling or even more compelling than Jay's case; and that she tells "every felon [she] ever convict[s] please don't have weapons because the sentences are very long and there is not anything really a Judge can do." By these statements, the judge did not manifest a belief that she was without authority to depart downward. Instead, she was saying that when the facts of such a case do not merit a downward departure, a judge has no option but to impose the required sentence, which even at its minimum is quite lengthy. 10 Furthermore, absent any indication in the sentencing transcript to the contrary, we assume that the district court exercised its discretion and found downward departure to be unwarranted. See Byrd, 53 F.3d at 145. Thus, because Jay's sentence was properly computed and not otherwise unlawful and because the district court was aware of its discretion, we may not review the district court's refusal to depart downward. III. 11 Jay next asks this court, relying on United States v. Lopez, 115 S.Ct. 1624 (1995), to recognize that 18 U.S.C. § 922(g)(1) constitutes an improper exercise of power under the Commerce Clause, and to reverse the district court's denial of his motion to dismiss count one of the indictment. This issue has been previously addressed by this court in United States v. Turner, 77 F.3d 887, 889 (6th Cir.1996), when we held section 922(g)(1) to be constitutional. Accord United States v. Murphy, 96 F.3d 846, 848 (1996). Consequently, the district court correctly denied Jay's motion to dismiss count one of the indictment. IV. 12 Jay's appeal of his sentence is DISMISSED for lack of jurisdiction, see United States v. Dellinger, 986 F.2d 1042, 1044 (6th Cir.1993), and his motion to dismiss count one of the indictment is AFFIRMED. * The Honorable E.A. Van Graafeiland, Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation 1 When Jay initially entered his plea of guilty to count one, he did not waive his right to move for its dismissal. A plea of guilty generally waives all nonjurisdictional defects, but it does not foreclose review of a claim that the statute under which the defendant was charged is unconstitutional. United States v. Cox, 464 F.2d 937, 940 (6th Cir.1972)